Upcoming Eminent Domain Case Could Impact All New York Property Owners;

John Kramer
John Kramer · September 15, 2009

Arlington, Va.—If you own a piece of property in New York, you should care deeply about a case about to be argued before the state’s highest court.

Goldstein v. New York State Urban Development Corporation—a challenge to New York’s controversial use of eminent domain to hand privately owned businesses and homes in Brooklyn over to private developer Forest City Ratner as part of the Atlantic Yards development—could impact the rights of anyone who owns property in the Empire State. This will be the first time the State Court of Appeals—New York’s highest court—considers limits on the use of eminent domain since the infamous 2005 Kelo v. City of New London eminent domain case before the U.S. Supreme Court, which allowed eminent domain for private development and sparked a nationwide backlash. The court will hear oral arguments in the case in Albany on October 14, at 2 p.m.

The State Court of Appeals recently granted the Institute for Justice (IJ)—the organization that represented property owners in the Kelo case and that is likewise fighting for New York property owners—permission to submit a friend-of-the-court brief in New York’s most important eminent domain case in decades. In its brief, IJ urges the court to hold that the state constitution prohibits the government from using eminent domain to transfer property from one private owner to another for the latter’s private use. That is exactly what is happening in Brooklyn. Download a copy of IJ’s brief.

“Our message to the court is simple,” explained IJ Senior Attorney Dana Berliner. “New York’s constitution does not allow the government to take away someone’s property just to enrich a private developer. Although the U.S. Supreme Court answered this question incorrectly in Kelo, it invited states to provide their citizens with greater protections. New York should accept that invitation.”

The nearly unanimous public outcry against the Kelo decision led to a national wave of eminent domain reform, as both state legislatures and state courts rushed to protect property owners from unholy alliances of land-hungry developers and tax-hungry governments. New York remains one of only seven states that have not enacted any post-Kelo reforms.

“In practice, every state supreme court that has looked at the issue of eminent domain since Kelo has rejected the U.S. Supreme Court’s reasoning,” said Robert McNamara, an IJ staff attorney. “In state after state, courts have ruled in favor of property owners and against eminent domain abuse. The New York Court of Appeals should do the same.”

“Property rights are just as important to homeowners in New York as they are to people across the country, and New York’s constitution provides powerful protection for those rights,” concluded Berliner. “The Court of Appeals should join other courts nationwide in vindicating the rights of property owners.”