Farewell my ol’ pal Izzy and his pet rat.
A federal judge on Wednesday upheld New York’s $3 billion redevelopment plan for Willets Point, an industrial section of Queens dominated by car-repair shops and waste-management businesses, finding that although the city had neglected the neighborhood’s infrastructure for decades, the constitutional rights of the businesses there — many of which will be forced to relocate under the plan — were not violated.
The plaintiffs, who organized themselves into an entity called the Willets Point Industry and Realty Association, and who “have established thriving businesses (notwithstanding the grossly inadequate infrastructure of the area)” and employ hundreds of people, “are understandably aggrieved by the fact that the plan that the city is in the process of implementing has no place for them,” the judge, Edward R. Korman of Federal District Court in Brooklyn, wrote. However, he ruled, it was not the place of federal judges to intervene in the dispute.
...Mayor Michael R. Bloomberg’s redevelopment plan was approved by the City Council, 42 to 2, last November. It calls for new sanitary and stormwater sewers, more power lines and new roadways and bicycle lanes. It also seeks new mixed-use development — including, possibly, a hotel and convention center — but envisions sweeping away the current industrial uses through eminent domain.
Judge Korman expressed sympathy for the plaintiffs whose property would be acquired by the government (with compensation) but found that they lacked a federal claim. “The timing of this lawsuit as well as plaintiffs’ own admissions at oral argument suggests,” he wrote, that the “real purpose of their lawsuit is to obstruct and forestall the implementation of the approved plan.”
Repoz
Posted: November 27, 2009 at 12:28 AM |
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That's not to make a value judgment - there's nothing morally wrong with those businesses' behavior. I'm just saying it's a gray area in a number of respects.
Uh, "power play" is quite a stretch. Municipalities have done this sort of thing since the Kilo decision and have been upheld by the courts every time (some states have enacted laws preventing it, but NY isn't one of them). The key phrase here is:
The city isn't just taking the land like a thief in the night. The owners will be compensated, probably more favorably than if they were just selling it on the market.
Pfizer has pulled out of the deal, and all they managed to create was a bunch of vacant land.
The city won't be building anything itself - once they've made the capital improvements they'll rezone it for residential use and sell it to developers. They'll likely write inclusionary housing into the zoning, which lets developers build larger if they include a certain number of affordable housing units.
So . . . state and local governments should never attempt redevelopment?
Link to the decision. It's not actually a challenge of the redevelopment, but rather an argument that the city's refusal to provide basic services was constituionally impermissible.
EDIT- This is a nice roadmap for future redeveloment efforts. If the city simply cuts off services to the affected area, they drive down the value of the property substantially. Therefore, when its time to pay "compensation"- the numbers are much smaller- to say nothing of the money saved by cutting off services in the first place. It's a win-win!
Apparently the City has slacked off somewhat--and I'm not really 100% behind this decision--but I think this is a better argument for use of ED than the Atlantic Yards project, for example.
The point here is that they shouldn't abuse eminent domain to seize land from one private party and give it to another. It should be strictly limited for real public uses (i.e. highways, sewage plants, schools, etc.). Not to help your real estate cronies do a development cheaper.
But in reality, yes. Government should stay the hell out of real estate development. Ease up restrictive zoning rules and let the private sector work.
The history of "redevelopment" in this country has largely been a disaster. From urban cores hollowed out and destroyed by expressways carved through the middle of neighborhoods, and enclosed malls that destroyed local businesses, to Corbusier-style public housing projects that made neighborhoods unlivable by destroying street-life and local retail and unimprovable b/c of their size and structure.
Wander around Manhattan. Many of the "slums" that government left alone have been gentrified and are lovely areas now. The "slums" that government "redeveloped" are still blighted high-rise projects with no hope of significant improvement.
This and the Atlantic Yards project are imo, despite the license to steal that is Kelo, evil. The government should not have the right to take property from one citizen and give to another. They call the Atlantic Ave (Yards makes it sound undeveloped and empty) area blighted when apartments there sold for multiples of the average house price in America. Totall crap.
I spent several seconds wondering what erectile dysfunction had to do with real estate, then I realized that Freud explains NY architecture very well.
Even the big project developments in Manhattan aren't bad, really. In a lot of Manhattan, the projects are the only things preventing full-on yuppie ghettos. They are relatively integrated into the neighborhoods. Nothing like the Milbrook/Mitchell Houses monolith in the Bronx.
But this Willets Point thing (and the Atlantic Yards and the threatened use of eminent domain in West Harlem on behalf of Columbia University -- for a project I actually largely favor, if not for the eminent domain) is troubling.
Isn't this the ambience at a Mets game, too?
That's not the neighborhood.
So has the history of the development of underregulated real estate.
And if there's a tree, we'll ram it.
'Cause I'm talkin' progress here.
Yes, sir. I'm talkin' development.
Everyone should look at the aftermath of the 2000 MVP votes. Jeff Kent and Jason Giambi are crap now.
The current state of affairs is indeed the aftermath of Kelo v. New London, not the development plan. The development plan was initiated in 1998; eminent domain was to take place back around 2000 if not for the suits. Kelo and subsequent actions took 8 years to resolve. In those 8 years the economic landscape completely changed, much like the baseball skills of Kent and Giambi.
This is not to suggest the legal actions shouldn't have taken place. Certainly they should have. And it's not the fault of Kelo and others that the economy went in the crapper. But the passage of time forced by the legal actions did have an effect on that development plan. If you expect Willets Point to be held up 8 years while legal claims are made and resolved, sure, who knows what'll happen in that time. Given the precedent of Kelo I don't think the same risk exists here. Otherwise I'm not sure what lesson we're supposed to learn from Kelo that applies to any other such development.
The difference being that there *is* commerce and activity going on in Willets' Point. That fact, however, being inconvenient for the developers who want to build whoknowswhat there.
There's really nothing up in that Manhattanville district that Columbia wants to develop in - and the Manhattanville project should bring a lot more positive externalities to the neighboring districts.
IMHO.
There's really nothing up in that Manhattanville district that Columbia wants to develop in - and the Manhattanville project should bring a lot more positive externalities to the neighboring districts.
I completely agree about the relative value of the activities currently being pursued in those two neighborhoods. They're talking about expropriating a gas station and a couple of self-storage operations in West Harlem, which don't do anything to (A) make it a vital and lively neighborhood or (B) generate significant economic activity. I support the plan that Columbia has for the area and would like to see it acquire the land for that purpose. And I say that as an alum who has a real suspicion of Columbia's intentions in some of its development.
But I find it troubling in principle that government would exercise eminent domain for this purpose. Because that principle then leads to things like what's going on in Willets Point where the idea is to expropriate a whole lot of thriving businesses which do generate a good deal of economic activity and, what's worse, it gives government incentive to fail in its basic functions so as to create "blight," whatever that means.
The owners, particularly the guy who owns the self-storage places, are reluctant/unwilling to sell. My sense is that the gas station folks would sell, but they have been offered a new station out in the boondocks of Queens which would be much less valuable (in their view) than the current location, which is right of the West Side Highway. The self-storage guy seems even less inclined to sell out. There was a family which owned other self-storage places there which held out for awhile before settling for a nice payout.
And it's definitely billions, or at least it was before it turned out that a lot of the money was a figment of the financial imagination.
Another wrinkle in a plan involving Columbia University is that one has to wonder what the tax implication for the city is. The present owner pays real estate tax. Does Columbia?
Here in Central Massachusetts, the City of Worcester does not like it that Clark University and Holy Cross have plans to gobble up parts of different neighborhoods. And a big part of the reason why is taxes. They're decent neighborhoods now that pay taxes. These two tax exempt institutions don't have to, though they might be making some kind of PILOT, payment in lieu of taxes, donations to the City. Is New York promoting the removal of taxable land from the city's balance sheets and why?
A lot of states do, as I understand. New York happens not to be one of them. One wonders if the family tie of the former governor to a major real estate developer has something to do with that. Or the fact that the mayor's sole purpose in life is to facilitate the construction of granite-countertopped luxury condos for Wall Street scumbags.
Yeah, they're rich as hell (which is why I don't donate them a red cent), but if the gas station and self-storage folks don't feel like selling, there's nothing Columbia can do without the state.
The city is in favor of it. They view this as (A) a huge jobs program, both for construction jobs and highly paid university employees (New York City has an income tax) and (B) an opportunity to create a core for biotech industry in the city and region. I do think that this project would be a boon for the city and the neighborhood (assuming they commit to a strong community benefit package), but the use of eminent domain to get makes me very uncomfortable.
Jane Jacobs never had millions of dollars of family real estate development money to fund her ascent to the Attorney General's and then Governor's offices. Eliot Spitzer did.
"I'm taking you by eminent domain, baby!"
"Oh Eliot!"
"I'm taking you by eminent domain, baby!"
"Oh Eliot!"
You can't trust a Horace Mann man.
Wow, an O's fan that isn't in favor of wishful long-term plans that end in failure?
You truly can find anything on the internets.
Sucks for the Pirates, then.
rLr tells a very, um, slanted view of the Columbia eminent domain debacle. My understanding, as an alum and current student, is that Manhattanville is almost a paradigmatic eminent domain situation: The self-storage guy is a final holdout who's leveraging his hold-out status to get a way-above-market buyout from CU, like many multiples of market value. Unlike with the Kelo/Willets Point/Atlantic Avenue developments, there are clearly demonstrable wide-reaching and long-lasting economic benefits associated with the development beyond the increased tax revenue to the city. Manhattanville -is- blighted under any definition of the word; even the original building stock in that area is crappy because it was located in the trough of the 125th Street fault and was swampy and marred by the elevated IRT line. It's highly, highly unlikely the neighborhood would ever gentrify on its own without Columbia's organized redevlopment.
My brain made the voice for this sound like Phil Hartmann doing his Frank Sinatra impression.
Daley has abused "blight" so far, that all of the high property districts in the city are categorized as "blight" so he can siphon a large portion of the property tax money into his private slush TIF funds, and divert millions of dollars from the statewide education fund.
We have to assume that when we create these definitions and legal constraints that despots like Bloomberg or Daley will find themselves in office at some point.
I agree with all that, as I thought I made clear, but am still uncomfortable with the use of eminent domain in principle because there's a clear slippery slope involved in turning private property over to other private owners.
(Note that the phrase "above market" doesn't make any sense when there is no market because the owner doesn't want to sell.)
In fact, he's not the lone "holdout." Many property owners didn't want to sell; Columbia threatened to use eminent domain on a lot of residential property, as well. But that didn't sell so well politically, so Columbia backed off on them, and decided to only threaten eminent domain against the less sympathetic (to the media) commercial property owners.
In fact, the "paradigmatic eminent domain situation" is when a specific piece of land is needed for a public use, like building a military base in a particular area for military reasons, or perhaps a road, railroad, or utility wires that have to go through a particular parcel, and there's no way to build these things without the particular parcel of land. Setting aside the lack of public use here, there's no reason why Columbia needs his land; it just wants it, because it's elitist and greedy. If he really were a lone holdout, it could simply develop the nearby land that it owns; he only owns a small portion of Manhattanville. They just don't want to share with a property that they consider
Oh, and as for "clearly demonstrable benefits," if it were so "clear," the state wouldn't have fought so hard against releasing the studies that allegedly showed this. (Let me clarify -- there are clear benefits to Columbia. but that's hardly the issue, now is it?) And they might have hired an impartial firm to conduct the studies, rather than the same firm Columbia had previously hired to push for the project on its behalf. But setting those procedural matters aside, benefits <u>compared to what</u>? Compared to Columbia buying up most of the area property and letting it sit vacant to make the area look blighted? Sure. Compared to Columbia simply developing its own land, and leaving this landowner alone?
In any case, there are simply no guarantees that the project will generate any of the alleged benefits. I'll support the next private-private eminent domain transfer in which the developer-recipient of the land provides a contractual guarantee that the city will see the promised benefits. If Columbia wants to guarantee, contractually, that there will be X new jobs and Y new tax revenues, and will make up the difference otherwise, then I'll believe that there are "clearly demonstrable benefits."
(It would also be more convincing as a claim if condemning authorities didn't fight so hard against making "clearly demonstrable benefits" the legal standard; instead, they want -- and the property-disrespecting courts have largely given them -- a deferential standard in which the city merely has to recite that by rote to avoid judicial scrutiny. )
For most of American history, ED was deemed a justified "taking for public use" under the 5th Amendment. Public use was a public road, a public park or a public facility (such as a property needed to sink a well for the public water supply). When a public agency had another alternative which did not require the taking of land from a private owner, ED (even with "just comepensation") was not the normal paradigm.
However, since Kelo, the paradigm has shifted. Where I live -- near Sacramento -- I wrote columns againt a government takeover by ED of the largest privately owned farm in Northern California. The argument of the county government was that it needed to takeover the farm because government could manage the farm better. Fortunately, my argument ultimately prevailed and the county backed off.
The SF Chronicle today discussed the Kelo aftermath in its lead editorial:
Concur.
So, about 55 years of ignoring the text of the 5th. Fun times.
Which text?
Let's set aside for the moment the argument that the legislature, not the courts, should determine what constitutes a valid public use, though that argument is powerful.
Where does it say property shall not be taken for private use with just compensation?
There is no textualist argument that private property cannot be taken by the government, with due process of law.
However, my understanding of the original intent of the language in the 5th Amendment defined a public use as a taking for use by the public, not redevelopment for a different private use. As such, public use was a public park, a public street, a public school, etc. No public use is whatever a public agency wants it to mean, unless there is legislation otherwise curtailing ED for such uses.
Move down the Constitution 5 more amendments: The onus is on you, Freeball, to show where in the text where government has the authority to take private property for a private use.
This may be persuasive to people who believe that the original intent should control (although even so I'm not sure I follow), but it is not likely to be persuasive to somebody who doesn't accept that premise (which is the problem with all arguments based on original intent).
Of course all the Democratic appointees on the Court voted for the taking, and the three appointees that most conservative Republicans like dissented.
Coincidence, I am sure.
Let's set aside for the moment the argument that the legislature, not the courts, should determine what constitutes a valid public use, though that argument is powerful.
Where does it say property shall not be taken for private use with just compensation?
There is no textualist argument that private property cannot be taken by the government, with due process of law.
So you're fine with your town or city taking your house, paying you what they deem "fair" and selling the land to someone else to put up a bigger house so they'll pay more taxes?
Of course not, but that doesn't mean the Constitution gives me recourse to the courts to stop them.
NoNow public use is whatever a public agency wants it to mean ..."Do you really think the drafters of the Constitution meant for your interpretation to be the rule of law? Why would anyone want that to be the rule of law in this county?
I guess this is the same logic that thinks the government taking over 1/6 of the economy would be a splendid idea.
And pretending the U.S. didn't progress and evolve over the last 200 plus years is just as fool-hardy.
Oh look, another subject on which snapper is a m-f expert.
Heh. Original intent. The pretension that when the Constitution was drawn up that everybody involved agreed on each part, and that there was zero intentional ambiguity in parts left in for future generations to resolve. And that we know for certain which parts had total agreement, and which parts didn't. Also known as the attempt to shut down discussion by claiming that one has knowledge that he doesn't actually possess.
In any event, none of this changes the facts that originalism lacks the power to persuade people who don't believe in originalism to begin with. "That is the result that originalism requires" doesn't get you there.
Anyway, I also think the people championing original intent just use it for their own purposes and not apply it uniformly. Just look at the 2nd amendment:
How did a 'well regulated Militia' become a 'personal right to bear arms'? Note: I'm not trying to derail the thread. Really.
As I said, Berman in 1954 started the expansion of the definition of public use, and it was a unanimous decision. Midkiff in 1984 expanded public use more, it was also unanimous. The point of that is, blame one political party or the other if it makes you feel better, but both parties have had more than enough time to pass appropriate legislation to change it. Neither has.
This is an astonishing response. In case you don't understand your own words but what you've just said is that you don't think that there should be any recourse against abuse of power. Or, perhaps, it is impossible for an elected government to abuse its power.
You, good sir, are on the side of the devils on this one. Positivism is nothing but the handmaiden to powers that be.
And wrong. If there was no bar, explicitly or implicitly, against the government taking private property for private use, then there'd be no need for attempting to fit in these takings under eminent domain.
I see "original intent" as being a broad view of the intent, not a narrow reading. So when you say in #76 things like "there was zero intentional ambiguity" it has no meaning to me. But just because you have a broad reading -- for example, as new forms of speech come about with technology -- a broad reading of the 1st Amendment can cover them under the notion of speech. However, broad intent only goes so far. I don't see how any court could permit warrantless wiretaps, yet they have.
What I don't understand about those who disregard original intent, but say they value the Constitution, is why they don't push for new amendments, if we have evolved in such a way that the writers of the Constitution and its amendments would have objected to. For example, I see the powers of the federal government to outlaw various narcotics (including some which are not traded between states or even between people) as an obvious violation of the limited enumerated powers of Article 1 Section 8 and a violation of Amendment X. Back almost a hundred years ago when the country had evolved in opposition to alcohol, the people understood that the federal government had no authority to tell a guy who wanted to make some rotgut in his yard that he couldn't or prohibit him from selling his whiskey to his friends. So the people instead amended the Constitution to allow the federal government to have powers it was not originally given. Then some time after Prohibition was repealed, the war on drugs began, and a new view of the Constitution seems to have emerged (under FDR) which allowed the feds to do whatever they wanted under the notion of evolving language.
Their intent isn't automatically given the force of law. The text they left behind (like the words "public use") is given that priority. When the text doesn't squarely cover an issue (is typing on the internet speech) or, as in Tripon's example, when the understanding of the words changes over time, we use original intent as an interpretive tool in order to figure out what to do. Is it perfect- not even close. Is it better than the infinitely malleable Constitution that doesn't even control when its text is on point? Only if you believe in the rule of law as opposed to the rule of whoever has the biggest stick/the most judges in his pocket.
Tripon- in the context of that time, well regulated meant something roughly akin to reasonably proficient (a good pocket-watch at the time might have been described as well regulated.) Essentially what they are saying is- we might need guys with guns who know how to use them, so the fed can never take those guns away from the people. The fact that the word regulated now has a very different meaning makes the 2A seem difficult- but it's really rather easy to deal with.
Ok, we agree then - just so long as I can have an abortion on demand.
Again, this assumes that original intent is the law -- that is a conclusion, not an argument.
It is probably true that state and local governments can only do what their constitutions empower them to do, but that doesn't mean a proscription on takings for public use without just compensation equals a proscription on takings for private use with just compensation.
Try to make a limited point, people attribute to you all manner of additional crazy viewpoints.
I didn't know this, very edifying.
Also, Tripon, in the context of the 18th century, the militia meant every adult male (roughly age 16-60). They were to be on call to defend the community and provide their own arms.
From The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm
So, basically, the "well-regulated militia" was every individual.
http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London If groups such as the NAACP, and the Libertarian Party are on the same side, I don't think you can just say its a Liberal/conservative split and then call it a day.
Except that, if the government isn't given the power in the Constitution, it doesn't have it. Because of the clauses or amendments that say that. Logically I understand your point, but when we're talking about eminent domain, it doesn't work.
But, akrasian, what's the alternative?
If you don't follow original intent, all you have left is the Constitution means what the people in power want it mean. It offers no protection against the majority if it can be reinterpreted at will.
What if some day the majority wants to interpret that as allowing debtors who default to be sold into slavery, as long as we make defaulting on your debts a misdemeanor?
How do you argue that is un-Constitutional without reference to what the drafters intended the "punishment for crime" language to mean?
Of course the answer is that nobody would try to bring back slavery in the first place because nobody is that ####### crazy.
So we have no Constitutional protection? We just have to hope that no one is ever that crazy? Why have a Constitution at all?
I'm not sure what you're trying to say here. if you're saying that a state needs the federal constitution to affirmatively give it a power, you're wrong. If you're saying that certain state constitutions don't permit the sort of takings we're talking about here, I don't have a view of that, it isn't what was at issue in Kelo, and it has nothing to do with whether or not there is a textual constitutional argument that New Haven (or NYC) lacks this power.
And if desirability is justification for a constitutional rule, you find yourself in the same situation.
If the text is clear, what difference does it make what the drafters intended? Would it make a difference if they didn't understand prostitution, identity theft, sex with a minor, or snorting coke to be crimes?
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