In 2005, when the Supreme Court handed down its 5-4 decision in Kelo v. New London in favor of the Connecticut town, it had a ripple effect across the country, with some 43 states changing their eminent domain statutes.In New York, the decision seemed to reverberate in a different direction. Instead of reform, a wave of new eminent domain–driven projects sprang up.
One—Bruce Ratner’s Atlantic Yards arena cum condos plan—verges on groundbreaking while another—Columbia’s proposed Manhattanville campus—has just lost a crucial court case, with others—Willets Point, a casino for Niagra Falls—on the horizon. Now, a clutch of Albany pols are preparing to begin changing what some consider the worst eminent domain laws in the country.
Leading the charge is state Senator Bill Perkins, whose district covers much of Harlem. “I think the forces are coming together for change to take place,” Perkins said. “There is, from my observation, growing interest on a grassroots level.” As chair of the Committee on Corporations, Authorities and Commissions, Perkins oversees the main executor of eminent domain in New York, the Empire State Development Corporation.
Among those joining Perkins is fellow senator James Alesi, a republican who represents the rural areas surrounding Rochester. “After many decades, it is time for an overhaul for what has become a double-edged sword of beneficial economic development but also deleterious theft,” said Alesi at a January 5 hearing held on eminent domain reform, the first of many planned in the coming months across the state.
The hearing was held at the ominous 19-story state office building on 125th Street in Harlem, one of many so-called urban renewal projects undertaken in the 1960s and 1970s by then-governor Nelson Rockefeller. It was an irony not lost on those in attendance that they were the indirect beneficiaries of eminent domain.
Norman Siegel, the noted civil rights attorney who represented one of the plaintiffs in the Columbia case, was quick to point out that it was for just such public purpose that Rockefeller first created the Urban Development Corporation the day after Martin Luther King, Jr., was murdered, to help take land from greedy landlords and other unrepentant nogoodniks, erasing blight for affordable housing and public buildings. “But we have moved 180 degrees opposite, where land is taken from the community and given to the powerful and greedy,” Siegel said.
As chair of the Committee on Corporations, Authorities and Commissions, Perkins has some oversight of the main executor of eminent domain in New York, the Empire State Development Corporation. The senator stressed that he has some ideas about how to address eminent domain, but he does not want to tip his hand this early and also hopes to gain insight and ideas from the public.
There were proposals aplenty, ranging from compensation reform to abolishing the ESDC. One of the most obvious suggestions was to essentially reverse *Kelo and outlaw the taking of private property for anything but use by the government. But given the power of real-estate interests in the state and the proclivity of certain politicians, *including Mayor Michael R. Bloomberg, toward development, such a provision is unlikely.
The simplest changes may affect eminent domain litigation. Numerous attorneys advocated for a more open legal process to allow landowners to challenge eminent domain proposals. In New York, all such cases forbid jury trials, a practice exercised by no other state. “You slip on the floor, you get a jury,” Michael Rikon said. “You have your property taken, you get nothing but a judge. Let the people decide what’s right and wrong.”
The Paterson administration’s position on eminent domain is somewhat murky. In 2005, after *Kelo and with Columbia ramping up its plans, the then-senator called for a moratorium on eminent domain, but since becoming governor in 2008, Paterson has neither stated his opinion, nor intervened at Atlantic Yards or Manhattanville.
Warner Johnson, an ESDC spokesperson, declined to discuss what he called hypothetical changes to eminent domain law, but he reaffirmed its importance. "Eminent domain is an essential governmental tool that allows for the implementation of important development projects to the benefit of the public at large," Johnson wrote in an email.
This is not the first time the state has attempted to reform eminent domain, however. Shortly after Kelo was decided, Alesi convened numerous hearings as Perkins is doing now. The result produced a report hundreds of pages long, but little else. Asked how things will be different this time, Perkins argued the Supreme Court decision was not as close to home as these more recent actions are. And even if he can’t stop Ratner or Columbia, he emphasized that they are not the last people New Yorkers have to worry about.
“This is just the beginning, there will be more,” Perkins said after the hearing. “People have to understand this isn’t like making instant rice or instant coffee. This is going to take time.”