October 28, 2010

The continuing fight against eminent domain abuse

By The continuing fight against eminent domain abuse

Author:  Damien M. Schiff

Last week, PLF filed an amicus brief in support of the property owners' petition for certiorari in the United States Supreme Court in Tuck-It-Away, Inc. v. New York State Urban Development Corporation.  The case is about Columbia University's plan to extend its campus into the Manhattanville neighborhood of Harlem.  The so-called "redevelopment plan" that the state agency adopted required the condemnation of many small businesses in the area, all for ostensible "public" purposes, but for the real purpose of facilitating the university's expansion.

The case record is pretty clear on that point.  For example, the redevelopment area was not economically depressed when the redevelopment plan was initiated; the redevelopment plan was paid for by Columbia, not a government agency; the government gave no serious consideration to other competing plans; and Columbia already owns or controls many of the allegedly blighted properties.  Notwithstanding these rather bad facts, the New York Court of Appeals rejected the landowners' challenge to this "pretextual" condemnation, concluding that the state could have rationally considered the plan to further blight remediation and other "civic" purposes.

PLF is asking the High Court to take up the case to explain when heightened judicial scrutiny should be applied to claims that the government is using a purportedly public use as a mere pretext to accomplish an otherwise impermissible private taking.  The majority and concurring opinions in Kelo v. City of New London anticipate that some such claims should receive close judicial inspection, but the opinions are not clear on when that heightened scrutiny should be applied.  The lower federal and state courts, since Kelo, are all over the map on the question.  That's why we're hoping that the SCOTUS will take up the case.

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