Reclaiming the Promise of the Judicial Branch: Toward a More Meaningful Standard of Judicial Review as Applied to New York Eminent Domain Law
Franzese, Paula, Fordham Urban Law Journal
INTRODUCTION I. The New York Approach to Eminent Domain Law II. "Blight" as a Standardless Standard III. A Blind Deference and the Potential for Abuse: The New York Courts' Reluctance to Second-Guess Agency Determinations IV. The Legislative Prerogative: Statutory Reform Efforts in a Post-Kelo Nation V. Putting Some Muscle Back Into Judicial Review: Reinvention in New York Conclusion
New York courts have long embraced a posture of considerable judicial restraint when passing upon the coordinating branches' determinations of blight in eminent domain cases. Notwithstanding the U.S. Supreme Court's controversial 2005 pronouncement in Kelo v. City of New London, (1) after which forty-three states heeded the majority's invitation to refine their own laws to more strenuously protect private property rights, (2) New York's government-permissive statutory scheme and solicitous judicial response remains unchanged. As recently as the last judicial term, the New York Court of Appeals, in Kaur v. New York State Urban Development Corp. (3) and Goldstein v. Pataki, (4) concluded that the Empire State Development Corporation's (ESDC's) findings of blight must stand, unless patently irrational or baseless:
In Kaur, the court afforded wholesale deference to the legislative body's characterization of relevant parts of West Harlem as "substantially unsafe, unsanitary, substandard, and deteriorated," (6) notwithstanding the fact that those characterizations rested in considerable part on the machinations of the very enterprise--Columbia University--that would stand to gain from the blight designation. The blight characterization inspired a host of vociferous objections. (7) Nonetheless, the court deemed firm and immutable the premise that the judicial branch must not substitute its judgment for that of the legislatively designated agency.
Similarly, in Goldstein, the Atlantic Yards case, New York's highest court endorsed the condemnation of a residential community to make way for a "mixed-use development" that was proposed by private developer Forest City Ratner Companies (FCRC) for the benefit of that developer. (8) The exercise of eminent domain would allow for the construction of a sports arena to house the NBA Nets franchise. (9) The court of appeals noted that affected private property owners were "doubtless correct that the conditions cited in support of the blight finding at issue do not begin to approach in severity the dire circumstances of urban slum dwelling described" in earlier court precedent. (10) Still, the court chose to defer whole-wholesale to the agency's determination of blight, concluding that once the legislative agency has made its findings, absent a showing of corruption or irrationality, "there is nothing for the courts to do about it." (11)
New York's expansive approach to government's eminent domain powers is manifested in the generous two-fold classification process that its statutory scheme allows. Under the New York State Urban Development Corporation Act (UDCA), a government agency may justify a taking of private property if the property is determined to have fallen prey to "blight," or, in the alternative, if the land will be used in a manner that can support its classification as a "civic project." (12) Blight designations are readily affirmed, as courts routinely defer to agency determinations. In the rare instance that the agency is unable to demonstrate blight, the civic purpose classification serves as a catch-all, effectively assuring that the exercise of eminent domain will go forward. Kaur makes plain the extent of the New York judiciary's disinclination to enter the fray. (13) There, the court afforded the agency's blight designation wholesale deference while simultaneously declining to disturb its subsidiary determination that the taking for a private educational institution, Columbia University, qualified as a valid "civic project. …