Condemnation friendly or land use wise? A broad interpretation of the public use requirement works well for New York City

Fordham Law Review

Volumn 76, Issue 2, 2007, Pages 1121-1175

  Farjad, Nasim ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 38149131337     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (391)

1. 545 U.S. 469 (2005).
2. See U.S. Const. amend. V (providing that private property shall not "be taken for public use, without just compensation").
3. In re County of Nassau, 136 N.Y.S.2d 166, 169 (Sup. Ct. 1954) (examining the power of a referee who had determined the amount of just compensation, altered the acquisition maps, and created new map dimensions for a proposed condemnation).
4. Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (discussing the incorporation of the Takings Clause into the Fourteenth Amendment to make it applicable to state governments).
5. U.S. Const. amend. V.
6. Id.
7. See, e.g., N.Y. Em. Dom. Proc. Law §§ 101-707 (McKinney 2006).
8. Compare id., with U.S. Const. amend. V.
9. See Kelo v. City of New London, 545 U.S. 469, 486-90 (2005).
10. Id. at 489.
11. See infra Part I.C.1 (discussing the general public reaction to the Kelo decision as exemplified in public opinion polls, newspaper articles, and legal journals).
12. See infra Part II.A.1.
13. See, e.g., Nicole Gelinas, Imminent Domain?, City J., June 30, 2005, http://www.city-journal.org/html/eon_06_30_05ng.html; see also infra Part II.A (discussing reasons why New York's eminent domain law must change).
14. See generally infra Parts I.A.1, II.A.
15. 348 U.S. 26 (1954).
16. 467 U.S. 229 (1984).
17. 545 U.S. 469 (2005).
18. By upholding an economic development taking, Kelo sparked a nationwide debate over the validity of using a broad interpretation of the public use requirement.
19. See generally N.Y. Em. Dom. Proc. Law §§ 101-707 (McKinney 2006).
20. See id. §§ 101, 103.
21. Id. § 103.
22. See U.S. Const. amend. V; N.Y. Const, art. I, § 6.
23. See generally N.Y. Em. Dom. Proc. Law §§ 101-707; see, e.g., In re Atl. Ins. Co., 232 N.Y.S. 489, 493 (Sup. Ct. 1929).
24. See N.Y. Em. Dom. Proc. Law § 201.
25. See id. §§ 201-202.
26. See id. § 202. The Eminent Domain Procedure Law (EDPL) now requires notice to be served upon the owner or last owner or the attorney of the owner of the property as shown on assessment records. Id.
27. The EDPL states that "[t]he condemnor, at all stages prior to or subsequent to an acquisition by eminent domain of real property necessary for a proposed public project shall make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement." Id. § 301.
28. See id. §§ 500-514.
29. See generally infra Part II.A.
30. See § 202.
31. See generally id. §§ 101, 103. The EDPL was first enacted in 1977 and became effective July 1, 1978. Comparing the text of these two sections of the EDPL to the original Act shows no "new section" additions to amend the "public use" or "public project" language. Id.
32. See §§ 101-103.
33. See generally infra Part II.A.
34. See John Caher, 'Kelo'-Related Bills Pass Senate Judiciary Body, N.Y.L.J., May 3, 2006, at 2 [hereinafter Caher, 'Kelo'-Related Bills] (reporting that four bills passed the State Senate Judiciary Committee on May 2, 2006). The New York State Bar Association also reacted to the Kelo decision by requesting that the legislature create a commission to study eminent domain in New York to avoid a "backlash" to Kelo. See John Caher, State Bar Backs Study to Moderate Post-'Kelo' Backlash, N.Y.L.J., Apr. 7, 2006, at 1 [hereinafter Caher, State Bar Backs Study].
35. See Caher, 'Kelo'-Related Bills, supra note 34.
36. Id.; see also Carol W. LaGrasse, A Slew of Property Rights Bills Submitted to State Legislatures, Prop. Rights Found. of Am., Inc., June 2006, http://prfamerica.org/SlewOfPropertyRightsBills.html.
37. See LaGrasse, supra note 36. The third bill, proposed by New York State Senator Carl Marcellino, set out to define "'economic development' in the context of eminent domain and require[d] homeowner impact assessment" while the fourth bill proposed defining "blight." Id.
38. Id.
39. See Caher, 'Kelo'-Related Bills, supra note 34.
40. See Jacob E. Amir, A Review of Takings Under Kelo v. New London in Light of General Constitutional Principles and Its Impact upon Zoning Laws Restricting Socially Unacceptable Enterprises, 32 Westchester B.J. 13, 19 n.18 (2005).
41. Id.
42. See, e.g., County of Jefferson v. Horbiger, 243 N.Y.S. 30 (App. Div. 1930); KJC Realty, Inc. v. State, 329 N.Y.S.2d 252 (Sup. Ct. 1972), aff'd, 295 N.E.2d 797 (1973).
43. See, e.g., In re N.Y. Cent. R.R. Co., 66 N.Y. 407 (1876); Rensselaer & Saratoga R.R. Co. v. Davis, 43 N.Y. 137 (1870).
44. See, e.g., People v. Adirondack Ry. Co., 54 N.E. 689 (N.Y. 1899), aff'd, 176 U.S. 335 (1900).
45. See, e.g., N.Y. City Hous. Auth. v. Muller, 1 N.E.2d 153, 154 (N.Y. 1936).
46. Yonkers Cmty. Dev. Agency v. Morris, 335 N.E.2d 327, 332 (N.Y. 1975) (discussing the removal of various conditions as constituting a public use). The Yonkers court stated, [T]he liberal rather than literal definition of a "blighted" area [is] now universally indorsed by case law. Many factors and interrelationships of factors may be significant . . . such . . . as irregularity of the plots, inadequacy of the streets, diversity of land ownership making assemblage of property difficult, incompatibility of the existing mixture of residential and industrial property, overcrowding, the incidence of crime, lack of sanitation, the drain an area makes on municipal services, fire hazards, traffic congestion, and pollution. It can encompass areas in the process of deterioration or threatened with it as well as ones already rendered useless, prevention being an important purpose. It is "something more than deteriorated structures. It involves improper land use." Id. (quoting John F. Cook, The Battle Against Blight, 43 Marq. L. Rev. 444, 445 (1960)).
47. See generally infra Part I.A.2.
48. Yonkers, 335 N.E.2d at 330 (discussing the evolving definition of blight to satisfy the public use requirement).
49. Muller, 1 N.E.2d at 155 (holding that slum clearance and building low-income housing constitute a public use).
50. See id. at 156. See generally Yonkers, 335 N.E.2d at 327.
51. Muller, 1 N.E.2d at 155.
52. Id. at 153.
53. See id. at 155.
54. Id.
55. Id. at 156.
56. Id. at 154.
57. Id. at 153; see also 1934 N.Y. Laws 14, §§ 60-78. The Muller court paraphrased the language of the Municipal Housing Authorities Law as follows: [A] city may set up an authority with power to investigate and study living and housing conditions in the city, and to plan and carry out projects for the clearing, replanning, and reconstruction of slum areas and the providing of housing accommodations for persons of low income . . . . It is granted the power of eminent domain, to be exercised as provided, and it is exempted from the payment of certain taxes and fees. In enacting the statute, the Legislature, after thorough investigation, made certain findings of fact, upon the basis of which it determined and declared the necessity in the public interest of the provisions enacted and that the objects thereof were "public uses and purposes for which public money may be spent and private property acquired." Muller, 1 N.E.2d at 153-54.
58. See Muller, 1 N.E.2d at 154.
59. See Byrne ex rel. Pine Grove Beach Ass'n v. N.Y. State Office of Parks, Recreation & Historic Pres., 476 N.Y.S.2d 42, 42 (App. Div. 1984).
60. Id.
61. Id. (citing N.Y. City Hous. Auth. v. Muller, 1 N.E.2d 153 (N.Y. 1936)). This interpretation of the public use requirement has been quoted by other New York courts to justify various condemnations. See, e.g., Greenwich Assoc. v. Metro. Transp. Auth., 548 N.Y.S.2d 190, 193 (App. Div. 1989) (holding that the alleviation of traffic congestion around Grand Central Terminal and the protection of its architectural elements were encompassed by the broad definition of public use).
62. Byrne, 476 N.Y.S.2d at 43 (partially quoting N.Y. Em. Dom. Proc. Law § 207 (McKinney 2006)). The court was quoting the earlier version of the New York Eminent Domain Procedure Law, which has not been altered, and thus the citation provided in this footnote reflects the most recent publication of the law.
63. Id.
64. Yonkers Cmty. Dev. Agency v. Morris, 335 N.E.2d 327, 332 (N.Y. 1975) (stating that the "liberal rather than literal definition of a 'blighted area' [is] now universally indorsed by case law").
65. See New York State Urban Development Corporation Act, N.Y. Unconsol. Law § 252(2) (McKinney 2006).
66. Id.
67. Id.
68. Id.
69. Id.
70. See generally Rosenthal & Rosenthal Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d 44 (2d Cir. 1985).
71. Id. at 45 (citing its earlier decision in Natural Resources Defense Council, Inc. v. City of New York, 672 F.2d 292, 294 (2d Cir. 1982), cert. dismissed, 450 U.S. 920 (1982), where it had discussed the "characteristics contributing to [the] blighted environment" in Times Square).
72. See, e.g., Natural Res. Def. Council, 672 F.2d at 297 (upholding the sufficiency of the proceedings used to determine that the condemnation of private property in Times Square constituted a public use);
73. see also Douglas Davis, Strange Invaders, Newsweek, Nov. 19, 1984, at 91 (discussing the controversy surrounding the 42nd Street Redevelopment Project);
74. Alan Finder & Katherine Roberts, The Rising Stake in Times Square, N.Y. Times, Oct. 28, 1984, § 4, at 6E (discussing property owner resistance to the Times Square development projects).
75. See Rosenthal, 771 F.2d at 46 ("It makes no difference that the property will be transferred to private developers, for the power of eminent domain is merely the means to the end.").
76. See id.
77. It appears that the Rosenthal court no longer viewed blight as solely consisting of physical deterioration and substandard buildings created by slum conditions, but also viewed blight as consisting of conditions that created economic stagnation. The Rosenthal court seems to have been using a "liberal rather than literal definition of a 'blighted' area," which justifies the Yonkers court's observations that a more liberal definition of blight was "universally indorsed by case law" when determining that a taking's purpose was to rid an area of blight. Yonkers Cmty. Dev. Agency v. Morris, 335 N.E.2d 327, 332 (N.Y. 1975).
78. Rosenthal, 771 F.2d at 46 (quoting Berman v. Parker, 348 U.S. 26, 35 (1954)).
79. Id.
80. See generally W. 41st St. Realty L.L.C. v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (App. Div. 2002).
81. See id. at 123.
82. Id.
83. Id. at 124. The court in West 41st St. Realty, just like the court in Rosenthal, seems to have also used a broad definition of blight to include both "physical and economic decay." Id. For a more detailed discussion of the evolving definition of blight, see Yonkers Community Development Agency v. Morris, 335 N.E.2d 327, 332 (N.Y. 1975).
84. W. 41st St. Realty, 744 N.Y.S.2d at 126.
85. Id. A proposed Urban Development Corporation (UDC) project requires the UDC to "find that: (1) the proposed project site is substandard or unsanitary and impairs sound growth and development; (2) there is a plan for clearance, replanning, reconstruction and rehabilitation of that area; and, (3) the plan affords maximum participation by private enterprise." Id. at 124 (citing New York State Urban Development Corporation Act, N.Y. Unconsol. Law § 6260(c) (McKinney 2000)). The court was citing the earlier version of the New York State Urban Development Corporation Act, which has not been altered, and thus, the citation provided in this footnote reflects a more recent publication of the law. It is important to note that other New York courts have also acknowledged the controversy surrounding condemnations in which private entities benefit and have held that "[e]minent domain cannot be used as a mere pretext for conferring benefits upon purely private entities and persons." 49 WB, L.L.C v. Vill. of Haverstraw, 839 N.Y.S.2d 127, 137 (App. Div. 2007) (citing Kelo v. City of New London, 545 U.S. 469, 478 (2005), and Woodfield Equities v. Inc. Vill. of Patchogue, 813 N.Y.S.2d 184, 185 (App. Div. 2006)). Yet, just as the West 41st St. Realty court held, most other New York courts have also held that "the fact that an intended public use confers incidental benefit to private persons or entities will not invalidate the condemnation of private property." 49 WB, L.L.C., 839 N.Y.S.2d at 137; see also Kelo, 545 U.S. at 478; Yonkers, 335 N.E.2d at 331; Vitucci v. N.Y. City Sch. Constr. Auth., 735 N.Y.S.2d 560, 562 (App. Div. 2001); Ne. Parent & Child Soc'y, Inc. v. Schenectady Indus. Dev. Agency, 494 N.Y.S.2d 503, 504-05 (App. Div. 1985).
86. See generally Yonkers, 335 N.E.2d at 330.
87. Id. at 330, 332 (stating that the broad definition of blight "is something more than deteriorated structures" and "involves improper land use") (quoting Cook, supra note 46, at 445); see also Kelo, 545 U.S. at 481.
88. Yonkers, 335 N.E.2d at 332; see also N.Y. City Hous. Auth. v. Muller, 1 N.E.2d 153, 154 (N.Y. 1936).
89. See Yonkers, 335 N.E.2d at 331; Vitucci, 735 N.Y.S.2d at 560. See generally In re Fisher, 730 N.Y.S.2d 516 (App. Div. 2001); Ne. Parent, 494 N.Y.S.2d at 504.
90. See Ne. Parent, 494 N.Y.S.2d at 504.
91. Id.
92. Id.
93. Id.
94. Id.
95. See Vitucci v. N.Y. City Sch. Constr. Auth., 735 N.Y.S.2d 560, 562 (App. Div. 2001).
96. Id. at 561.
97. Id.
98. Id. at 562. The court further held that, "[i]f a municipality determines that a new business may create jobs, provide infrastructure, and stimulate the local economy, those are legitimate public purposes which justify the use of the power of eminent domain." Id.
99. See In re Fisher, 730 N.Y.S.2d 516, 516 (App. Div. 2001). Although the court held for the UDC, the actual condemnation and New York Stock Exchange move has not occurred.
100. Id. at 517.
101. See generally Rosenthal & Rosenthal Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d 44 (2d Cir. 1985); N.Y. City Hous. Auth. v. Muller, 1 N.E.2d 153 (N.Y. 1936); W. 41st St. Realty L.L.C. v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (App. Div. 2002).
102. See generally Ne. Parent & Child Soc'y, Inc. v. Schenectady Indus. Dev. Agency, 494 N.Y.S.2d 503 (App. Div. 1985); Vitucci, 735 N.Y.S.2d 560; In re Fisher, 730 N.Y.S.2d at 516.
103. See Yonkers Cmty. Dev. Agency v. Morris, 335 N.E.2d 327, 332 (N.Y. 1975).
104. See infra Part I.A.2.a.-c
105. See infra Part II.A.
106. See generally Matwijczuk v. Comm'r of Transp., 423 N.Y.S.2d 574 (Sup. Ct. 1979).
107. Id. at 575.
108. Id. (internal quotation marks omitted).
109. Id. at 575-76.
110. Id. at 576.
111. See generally Kelo v. City of New London, 545 U.S. 469 (2005); Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984); Berman v. Parker, 348 U.S. 26 (1954).
112. See Berman, 348 U.S. at 31.
113. See id. at 28-29.
114. Id. at 28 (internal quotation marks omitted).
115. See id. at 28-30.
116. Id. at 31.
117. See id.; see also Elizabeth F. Gallagher, Note, Breaking New Ground: Using Eminent Domain for Economic Development, 73 Fordham L. Rev. 1837, 1843 (2005) (stating that Berman upheld the use of eminent domain to transfer property from one private owner to another).
118. See Berman, 348 U.S. at 28.
119. Id. at 31.
120. See id.; see also Gallagher, supra note 115, at 1843 (stating that in Berman, the "Supreme Court . . . allowed the use of eminent domain to transfer property from one private party to another for the purpose of blight clearance"); Glen H. Sturtevant, Jr., Note, Economic Development as Public Use: Why Justice Ryan's Poletown Dissent Provides a Better Way to Decide Kelo and Future Public Use Cases, 15 Fed. Cir. B.J. 201, 201-02 (2005) (writing that Berman has been one of the U.S. Supreme Court's "most prominent public use cases in the past 50 years" and that it demonstrates the Court's deference to governmental decisions to use eminent domain).
121. See Berman, 348 U.S. at 33.
122. Id; see also Richard O. Brooks, Kelo and the "Whaling City": The Failure of the Supreme Court's Opportunity to Articulate a Public Purpose of Sustainability, in The Supreme Court and Takings: Four Essays, at 5 (2006), available at http://www.vjel.org/books/pdf/ PUBS10003.pdf (stating that Berman upheld the use of eminent domain for a public purpose).
123. Berman, 348 U.S. at 34, 36; see also Sturtevant, Jr., supra note 118.
124. Berman, 348 U.S. at 35.
125. Id. (quoting Schneider v. D.C. Redevelopment Land Agency, 117 F. Supp. 705, 724-25 (D.C. Cir. 1953)).
126. Id. at 31.
127. See Sturtevant, Jr., supra note 118, at 202 (writing that "the Midkiff Court stated that . . . governmental determinations of public use only warrant highly deferential rational basis scrutiny. Under this standard of review, the Court upholds the government's use of eminent domain, provided it is 'rationally related to a conceivable public purpose.'" (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984))).
128. See Haw. Hous. Auth., 467 U.S. at 241-42.
129. Id. at 232.
130. Id.
131. Id.
132. Id. at 233.
133. Id. at 233-34.
134. Id. at 244; see also Nicole Stelle Garnett, The Public-Use Question as a Takings Problem, 71 Geo. Wash. L. Rev. 934, 982 (2003) ("By requiring the government to link the means and ends of an exercise of eminent domain, courts would place important structural limitations on the power of eminent domain while respecting the prerogative of the political branches to determine what policy ends are in the public interest."). Garnett argued that the "the [Midkiff] Court equated 'public use' and 'public interest,' and . . . held that the government has virtually unfettered discretion to exercise its power of eminent domain to advance any conceivable public purpose." Id. at 940.
135. Midkiff, 467 U.S. at 243.
136. 545 U.S. 469 (2005).
137. Id. at 472.
138. Id. at 473.
139. Id.
140. Id.
141. Id. at 474.
142. Id. at 474-75.
143. Id. at 475.
144. Id. at 476 n.4.
145. Id. at 476.
146. Id. at 484; see also David Schultz, Economic Development and Eminent Domain After Kelo: Property Rights and "Public Use" Under State Constitutions, 11 Alb. L. Envtl. Outlook J. 41, 43, 73-84 (2006) (stating that the Kelo Court upheld the use of eminent domain for economic development purposes and discussing the patterns of state court decisions after the Kelo decision).
147. Kelo, 545 U.S. at 494 (O'Connor, J., dissenting).
148. Id. at 497-98.
149. See id. at 479-80 (majority opinion). The Court stated, "Not only was the 'use by the public' test difficult to administer (e.g., what proportion of the public need have access to the property? At what price?), but it proved to be impractical given the diverse and always evolving needs of society." Id. at 479. The Court then provided an example of when it had rejected the "use by the public test" by explaining that in Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531 (1906), the Court had upheld a mining company's use of an aerial bucket line to transport ore over property that it did not own. See Kelo, 545 U.S. at 480. The Court also pointed to various state court decisions that used a broader interpretation of public use to allow takings that did not literally and directly constitute "use by the public": From upholding the Mill Acts (which authorized manufacturers dependent on power-producing dams to flood upstream lands in exchange for just compensation), to approving takings necessary for the economic development of the West through mining and irrigation, many state courts either circumvented the "use by the public" test when necessary or abandoned it completely. Id. at 479 n.8 (citing Philip Nichols, Jr., The Meaning of Public Use in the Law of Eminent Domain, 20 B.U. L. Rev. 615, 619-24 (1940)).
150. Kelo, 545 U.S. at 484. The Court went on to discuss other takings that it had found to constitute a public use, such as those that facilitated agriculture and mining, and takings that promoted a "'well-balanced' community through redevelopment." Id. (citing Berman v. Parker, 348 U.S. 26, 33 (1954)).
151. Id. at 485. For a similar argument, see Sturtevant, Jr., supra note 118, at 204 n.25 (arguing that "'[w]ithout eminent domain, it would be virtually impossible to fathom an alternative means of establishing such a complex network of transportation as exists in this country. Clearly, among other contributing factors, our roads, freeways, highways, interstates, and certainly railroads have, in large part, allowed for the prodigious economic status the United States enjoys today.'" (quoting Joseph J. Lazzarotti, Public Use or Public Abuse, 68 UMKC L. Rev. 49 (1999))).
152. Kelo, 545 U.S. at 480 ("Without exception, our cases have defined [the public purpose] concept broadly, reflecting our longstanding policy of deference to the legislative judgments in this field.").
153. Id. at 482; see also Avi Salzman, Homeowners Shown the Door, N.Y. Times, July 3, 2005, § 14 (Conn.), at 1 ("The way courts have interpreted eminent domain laws has evolved over the last two centuries. Cities and states have taken private property through eminent domain laws since early in the nation's history, often to build roads or other pieces of public infrastructure.").
154. Kelo, 545 U.S. at 489-90. It should be noted that New York City, by filing an amicus brief arguing that there can be increases in tax revenue and employment if a city is allowed to determine what public use is, was among the group of amicus curiae that aided New London in its Supreme Court battle. See Brief for the City of New York as Amicus Curiae Supporting Respondents at 1, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108) [hereinafter Brief for the City of New York] (stating that economic development takings can create jobs as exemplified by the Metrotech development project in Brooklyn, New York, which created thousands of jobs in Brooklyn); see also Paul Moses, 'Times' to Commoners: Go Elsewhere, Vill. Voice, Aug. 23, 2005, at 27 (arguing that the eminent domain friendly borough of Manhattan and Mayor Michael Bloomberg supported the building of the new New York Times headquarters in Times Square).
155. At the time of the Kelo decision, New York was one of six states to broadly interpret the public use requirement to allow for economic development takings. In addition to New York and Connecticut, four other states - Kansas, Maryland, Minnesota, and North Dakota - also broadly interpreted public use to allow for economic development takings. See Elsa Brenner, Homes Taken, Lives Rebuilt, N.Y. Times, July 31, 2005, § 14 (Westchester), at 1 (discussing the good and bad effects of eminent domain in villages in New York).
156. See Laura Mansnerus, Battle to Revise Eminent Domain Law Escalates in Trenton, N.Y. Times, June 16, 2006, at B5 (discussing the "media-generated hysteria" surrounding eminent domain in New Jersey after the Kelo decision); see also Marc B. Mihaly, Public-Private Redevelopment Partnerships and the Supreme Court: Kelo v. City of New London, in The Supreme Court and Takings: Four Essays, supra note 120, at 41, 41 ("Though with less animus than the organized political right, Americans of most political persuasions found the [Kelo] majority decision wrong-headed and oppressive.").
157. See Editorial, Eminent Latitude, Wash. Post, June 24, 2005, at A30;
158. Charles Hurt, Congress Assails Domain Ruling, Wash. Times, July 1, 2005, at A1 (stating that District of Columbia Mayor Anthony Williams also hailed the ruling, calling it a "victory");
159. Editorial, The Limits of Property Rights, N.Y. Times, June 24, 2005, at A22 (calling the ruling "a welcome vindication of cities' ability to act in the public interest" and "a setback to the 'property rights' movement, which is trying to block government from imposing reasonable zoning and environmental regulations").
160. See Blaine Harden & Juliet Eilperin, Court Ruling Fuels Dispute in West over Eminent Domain: Initiatives Challenge Land-Use Regulations, Wash. Post, Oct. 2, 2006, at A3 (discussing the outcry over the Kelo decision by stating that "[l]ibertarians and land developers have found populist fodder in a contentious Supreme Court decision from last year that favors eminent domain over private property");
161. William Yardley, Anger Drives Property Rights Measures, N.Y. Times, Oct. 8, 2006, § 1, at 34 (stating that "the backlash against the [Kelo] ruling has made property rights one of the most closely watched ballot issues nationwide").
162. Castle Coalition, The Polls Are In: Americans Overwhelmingly Oppose Use of Eminent Domain for Private Gain, http://www.castlecoalition.org/resources/ kelo_polls.html (last visited Sept. 21, 2007) (citing a variety of polls such as the CNN poll, Wall Street Journal/NBC News Poll, MSNBC poll, and the Christian Science Monitor Poll); see also Bernard W. Bell, Legislatively Revising Kelo v. City of New London: Eminent Domain, Federalism, and Congressional Powers, 32 J. Legis. 165, 166 (2006).
163. Adam Liptak, Case Won on Appeal (To Public), N.Y. Times, July 30, 2006, § 4, at 3.
164. Id.
165. Ian Urbina, Ohio Supreme Court Rejects Taking of Homes for Project, N.Y. Times, July 27, 2006, at A18 (discussing the public backlash to the Kelo decision and an Ohio Supreme Court ruling against economic development takings).
166. Id. (internal quotation marks omitted).
167. See infra Part I.C.2.
168. See Kelo v. City of New London, 545 U.S. 469, 489 (2005) (stating that the opinion did not "preclude[] any State from placing further restrictions on its exercise of the takings power").
169. Mihaly, supra note 154, at 41 ("The universality of [the] response [to Kelo] hardly escaped the notice of legislators. In the months since the opinion, members of Congress, state legislators, and even councilpersons in charter cities have introduced measures containing palliatives or correctives to the perceived abuse."); see Terry Pristin, Voters Back Limits on Eminent Domain, N.Y. Times, Nov. 15, 2006, at C6 (stating that "34 states ha[d] adopted laws or passed ballot measures" in response to the Kelo decision); see also infra Part I.C.2.
170. See Nat'l Conf. of State Legislatures, Eminent Domain: 2005 State Legislation, http://www.ncsl.org/programs/natres/post-keloleg.htm (last visited Sept. 21, 2007) [hereinafter Eminent Domain 2005].
171. See id.
172. See Nat'l Conf. of State Legislatures, Eminent Domain: 2006 State Legislation, http://www.ncsl.org/programs/natres/emindomainleg06.htm (last visited Sept. 21, 2007) [hereinafter Eminent Domain 2006].
173. Id.
174. Information on eminent domain legislation passed in 2007 is current as of publication.
175. See Nat'l Conf. of State Legislatures, Eminent Domain: 2007 State Legislation, http://www.ncsl.org/programs/natres/emindomainleg07.htm (last visited Sept. 21, 2007) [hereinafter Eminent Domain 2007]. The six states that passed eminent domain legislation in 2007 were Montana, New Mexico, North Dakota, Utah, Virginia, and Wyoming. Id.
176. See infra notes 173-75 and accompanying text.
177. See infra notes 176-83 and accompanying text.
178. See infra notes 184-89 and accompanying text.
179. See generally S.B. 363, 60th Leg., Gen. Sess. (Mont. 2007); L.B. 924, 99th Leg., Gen. Sess. (Neb. 2006); S.B. 2214, 60th Leg., Reg. Sess. (N.D. 2007); S.B. 781, 2007 Gen. Assem., Reconvened Sess. (Va. 2007). For a complete list of states prohibiting the use of eminent domain for economic development takings, see Eminent Domain 2005, supra note 165; Eminent Domain 2006, supra note 167; and Eminent Domain 2007, supra note 170.
180. See Ala. Code § 11-47- 170(b) (Supp. 2006).
181. See S.B. 363, 60th Leg., Gen. Sess. (Mont. 2007); see also Eminent Domain 2007, supra note 170.
182. See Eminent Domain 2006, supra note 167.
183. Id.; see also H.F. 2351, 81st Gen. Assem., Reg. Sess. (Iowa 2006) (providing revised definitions labeled as "Additional Limitations on Exercise of [Eminent Domain] Power"). Both the House and Senate overrode the Iowa governor's veto in July 2006. See H.J. 1781, 81st Gen. Assem., Extraordinary Sess. (Iowa 2006); S.J. 1110 81st Gen. Assem., Extraordinary Sess. (Iowa 2006).
184. Eminent Domain 2006, supra note 167; see also H.F. 2351 § 6A.22.
185. H.F. 2351 § 6A.22(2)(a)(5).
186. Id.
187. Id. § 6A.22(2)(b).
188. Eminent Domain 2007, supra note 170. Virginia enacted Senate Bill 781 to amend the Virginia Code by adding section 1-237.1 to define public use by stating that it was the acquisition of property where (i) the property is taken for the possession, ownership, occupation, and enjoyment of property by the public or a public corporation; (ii) the property is taken for construction, maintenance, or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public; (iii) the property is taken for the creation or functioning of any public service corporation, public service company, or railroad; (iv) the property is taken for the provision of any authorized utility service by a government utility corporation; (v) the property is taken for the elimination of blight provided that the property itself is a blighted property; or (vi) the property taken is in a redevelopment or conservation area and is abandoned or the acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all the owners. S.B. 781. 2007 Gen. Assem., Reconvened Sess. (Va. 2007). For a complete list of states that have enacted similar legislation, see Eminent Domain 2005, supra note 165; Eminent Domain 2006, supra note 167; and Eminent Domain 2007, supra note 170. 184. See S.B. 363, 60th Leg., Gen. Sess. (Mont. 2007); see also L.B. 924, 99th Leg., Gen. Sess. (Neb. 2006); H.B. 124, 59th Leg., Gen Sess. (Wyo. 2007). For the entire list of states that have enacted similar legislation, see Eminent Domain 2005, supra note 165; Eminent Domain 2006, supra note 167; and Eminent Domain 2007, supra note 170.
189. For a list of states that decided to study the effects of eminent domain before enacting eminent domain legislation, see Eminent Domain 2005, supra note 165; Eminent Domain 2006, supra note 167; and Eminent Domain 2007, supra note 170.
190. See S.B. 167, 126th Gen. Assem., Reg. Sess. (Ohio 2005).
191. Id.
192. See id.
193. See id. § (3)(A). The New York State Senate took similar action by passing legislation that created a commission to study the effects of eminent domain. See Press Release, John A. DeFrancisco, New York State Senator, Senate Passes Measure Cosponsored By Sen. DeFrancisco to Study Eminent Domain (June 22, 2006), available at http://senatordefrancisco.org/ press_archive_story.asp?id=14315 ("In the wake of the decision in the Kelo v. City of New London case we need to make sure that the rights of individual property owners in Central New York and elsewhere remain protected . . . . We need to study this issue and take action to ensure that the use of eminent domain is not abused and used only for public purposes." (internal quotation marks omitted)).
194. See Ohio S.B. 167 § (3)(A).
195. See Kelo v. City of New London, 545 U.S. 469, 480 (2005).
196. See S.B. 117, 56th Leg., Gen. Sess. (Utah 2006) (citing amendments to the eminent domain statute, Utah Code Ann. § 78-34-4 (2007)). Note that, although the bill cited an earlier edition of the code, this Note cites the most recent edition.
197. See id. (citing the amended eminent domain statute, Utah Code Ann. § 78-34-4(2)(e) (2007)).
198. See generally Eminent Domain 2006, supra note 167.
199. See Eminent Domain 2005, supra note 165 (listing Kansas and Michigan as two of the states requiring a more rigid compensation scheme); see also Eminent Domain 2006, supra note 167.
200. S.B. 323, 81st Leg., Gen. Sess. (Kan. 2006).
201. See supra Part I.C.2.a.
202. S.B. 323 § (3)(a).
203. Id. 323 § (2)(f).
204. See generally N.Y. Em. Dom. Proc. Law §§ 101-707 (McKinney 2006); see also supra notes 19-28 and accompanying text.
205. See supra Part I.A.2.
206. See supra Part I.C.2.a.
207. See Richard H. Escobales, Jr., Editorial, The Transition in the Court, N.Y. Times, Sept. 7, 2005, at A24 (writing about a New York citizen who "worr[ies]. . . about judges who transmogrify the meaning of basic constitutional protections . . . to expand government power, as in Kelo v. New London"); Robert Steinback, Not at Home with Eminent Domain Threat, Times Union, June 25, 2006, at E6 ("An individual's home should be his castle, not some condominium developer's next meal."); Op-Ed., 7Ae Eminent Domain Fight-Back, N.Y. Sun, Oct. 5, 2005, at 6 (writing about eminent domain "abuses" in New York and stating that "[l]egislators owe it to their constituents to curb these abuses before they go any further"); see also Brenner, supra note 153 (writing about the effects of New York's eminent domain practices on the village of Port Chester and stating that "[t]he term 'eminent domain,' which has been in the forefront of the collective consciousness in Port Chester for the last decade, has become more familiar on the national stage" since the Kelo decision); Press Release, John DeFrancisco, supra note 189; Gelinas, supra note 13.
208. See Elizabeth Benjamin, Property Rights at Stake, Times Union, Oct. 19, 2005, at Al (reporting on New York state senators' calls for a change in New York's eminent domain laws); see also Gelinas, supra note 13.
209. Gelinas, supra note 13 (internal quotation marks omitted) (quoting Dana Berliner, a senior attorney at the Institute for Justice, a public interest law firm that advocates for restricting New York's eminent domain laws).
210. Benjamin, supra note 204 (quoting New York State Senator James Alesi).
211. See, e.g., Rosenthal & Rosenthal Inc. v. New York State Urban
212. See supra Part I.A.2.c.
213. See generally W. 41st St. Realty L.L.C v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (App. Div. 2002); see also Rosenthal, 771 F.2d at 46; supra text accompanying notes 81-83.
214. Yonkers, 335 N.E.2d at 332 (stating that the broad definition of blight '"is something more than deteriorated structures'" and '"involves improper land use'" (quoting Cook, supra note 46, at 445)).
215. 60 Minutes, Eminent Domain: Being Abused?, CBSNews.com, July 4, 2004, http://www.cbsnews.com/stories/2003/09/26/60minutes/main575343. shtml?source=search_story (retelling a story that aired on CBS in 2003 by correspondent Mike Wallace on eminent domain takings benefiting private entities).
216. See Yonkers, 335 N.E.2d at 330-31.
217. See, e.g., W. 41st St. Realty, IAA N.Y.S.2d at 123.
218. See id.
219. See, e.g., Rosenthal & Rosenthal v. N.Y. State Urban Dev. Corp., 771 F.2d 44, 45-46 (2d Cir. 1985). The Rosenthal building was not blighted, yet it was located in a blighted area. The court held that its taking was acceptable because it served the public purpose of eliminating slum conditions and economic stagnation. Id.
220. Dana Berliner, Op-Ed., Search and Destroy, N.Y. Times, Sept. 26, 2004, § 14 (Long Island), at 15 (arguing that municipalities, the legislature, and New York courts need to act together to restrict and enforce New York's eminent domain laws). Berliner suggests that . New York courts should follow the Michigan Supreme Court's holding in County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), which ruled that under Michigan's constitution "cities cannot take property for private development just because it might be more economically productive as something else." Id.
221. See Berliner, supra note 216; see also Yonkers, 335 N.E.2d at 330.
222. See supra note 34 and accompanying text; see also LaGrasse, supra note 36.
223. Berliner, supra note 216.
224. Kelo v. City of New London, 545 U.S. 469, 521 (2005) (Thomas, J., dissenting).
225. Id. (internal quotation marks omitted). Justice Clarence Thomas went on to state that of the families displaced by urban renewal from 1949 to 1963, over sixty percent of the families were nonwhite (based on families whose race was known), and over fifty percent of nonwhite families and close to forty percent of the white families had incomes that were low enough to qualify for public housing. Id. at 522 (citing B. Frieden & L. Sagalyn, Downtown, Inc.: How America Rebuilds Cities 17 (1989)). Writing for the dissent in the Kelo decision, Justice Sandra Day O'Connor also pointed out the flaws in a broad interpretation of the public use requirement by stating, "The government. . . has license to transfer property from those with fewer resources to those with more." Id. at 505 (O'Connor, J., dissenting).
226. See "The Kelo Decision: Investigating Takings of Homes and Other Private Property": Hearing Before the S. Comm. on the Judiciary, 108th Cong. (2005) (testimony of U.S. Sen. John Cornyn), http://judiciary.senate.gov/ testimony.cfm?id=1612&wit_id=4543 (quoting from the NAACP's amicus brief for the Kelo decision and testifying that the broad use of eminent domain targets disadvantaged persons and ethnic minorities).
227. See Benjamin, supra note 204.
228. Id.
229. Id. Steven Anderson, who also coordinates the grassroots property rights project Castle Coalition, points out that neighborhoods that are less politically connected, as opposed to affluent neighborhoods, tend to be eminent domain targets. Id.
230. See U.S. Const. amend. V.
231. N.Y. Const, art I, § 7.
232. N.Y. Em. Dom. Proc. Law §§ 500-514 (McKinney 2006). New York courts have found that "[j]ust compensation necessarily includes not only the full value of the property taken, but also interest on that amount throughout the period between the taking and final payment." Marine Midland Bank, N.A. v. State, 460 N.Y.S.2d 902, 903 (1983) (citing In re Bronx River Parkway, 29 N.E.2d 465 (N.Y. 1940), and A.F. & G. Realty Corp. v. City of New York, 313 U.S. 540 (1941)).
233. Phil Reisman, Where's Robin Hood When You Need Him?, J. News, Sept. 20, 2005, at 1B (discussing the battles surrounding the Port Chester taking, which gave the downtown area to developers).
234. Id.
235. See Kelo v. City of New London, 545 U.S. 469, 521 (2005) (Thomas, J., dissenting) ("[N]o compensation is possible for the subjective value of [condemned] lands to the individuals displaced and the indignity inflicted by uprooting them from their homes."); see also William M. Treanor, On My Mind: Upper West Side Story, Forbes.com, Nov. 16, 2005, http://www.forbes.eom/columnists/2005/11/16/oped-eminent- domaincx_wmt_1116domain.html (discussing the beneficial use of economic development purposes while also acknowledging that there may be problems with "just compensation").
236. See Eminent Domain: Hearing Before the N. Y. State S. Comm. on the Judiciary, 110th Cong. (2006) (testimony of Carol W. LaGrasse, President of Property Rights Foundation of America, Inc.) [hereinafter Testimony of Carol W. LaGrasse], available at http://prfamerica.org/testimony/Testimony4-3- 2006.html.
237. Id.; see also Eleanor Randolph, Opinion, Robert Moses, Builder, Left Behind His Power Tool, N.Y. Times, Feb. 14, 2007, at A26 (discussing the legacy that Robert Moses left behind and advocating for condemning agencies to act more responsibly when determining where and how they will use their eminent domain powers).
238. See Randolph, supra note 233; see also Robert A. Caro, The Power Broker 399, 837 (1974). Robert Caro writes about the rise and fall of Robert Moses in the 1920s and 1930s and the way Moses used his unchecked powers, especially as the "Park Commissioner [with] absolute power" and as the City Construction Coordinator, to transform New York City while at the same time disregarding the homes and businesses the city's citizenry had created. Id. "[M]ost of the great roads of antiquity . . . were roads through open country. Their builders . . . did not have to evict from their homes tens of thousands of protesting voters, demolish those homes, tunnel under or cut across subways and elevated railroads . . . ." Id. (referring to the Cross-Bronx Expressway).
239. See Randolph, supra note 233; see also Caro, supra note 234, at 557. Caro discusses the way Robert Moses transformed different parts of New York City, such as the West Side, without caring about the effects of his transformation on the African American population in Harlem: "Robert Moses spent millions of dollars enlarging Riverside Park . . . but he did not spend a dime for that purpose between 125th and 155th streets . . . not one acre to the part of the park most likely to be used by black people." Id.
240. See Randolph, supra note 233.
241. Id.
242. Kelo v. City of New London, 545 U.S. 469, 505 (2005) (O'Connor, J., dissenting).
243. See Randolph, supra note 233.
244. See, e.g., Testimony of Carol W. LaGrasse, supra note 232.
245. See Berman v. Parker, 348 U.S. 26, 33 (1954).
246. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229. 242 (1984).
247. See Kelo, 545 U.S. at 483-85.
248. See Mihaly, supra note 154, at 44-45 stating, A century of trial-and-error approaches to the stubborn persistence of economic decline and social impoverishment in large areas in central cities has led both the public and private sectors to conclude that a major obstacle to economic revitalization of urban cores is "over-subdivision," where old land use patterns leave the artifact of multiple small lots under different ownerships that the unassisted market, even over time, cannot assemble into lots of a shape and size that would accommodate contemporary land uses. If the private sector attempted to redevelop such a deteriorated area, some owners would sell or join as partners in a revitalization effort, but others would simply hold out for a higher price, one that rendered an already pioneering project financially impossible. The effort would collapse. Id.; see also Berman, 348 U.S. at 35 (discussing the difficulty that would result if individual property owners were allowed to resist condemnations in an area targeted for a development program).
249. See Mihaly, supra note 154, at 43 (writing that the majority of property condemned around the country has not been residential property, but instead undeveloped land and land in "holding uses," such as warehouses and parking lots).
250. See Rosenthal & Rosenthal Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d 44, 46 (2d Cir. 1985) (upholding the UDC's condemnation of two structurally sound buildings as part of a redevelopment program in Times Square); N.Y. City Hous. Auth. v. Muller, 1 N.E.2d 153, 153-54 (N.Y. 1936) (allowing the New York Housing Authority to condemn two tenement houses already surrounded by land that the City had previously acquired to clear the area of slum and build low incoming housing). See generally W. 41st St. Realty L.L.C. v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (App. Div. 2002).
251. See supra Part II.A. 1, II.A.3; see also supra note 34 and accompanying text.
252. M. Robert Goldstein & Michael Rikon, Condemnation and Tax Certiorari: What Hath 'Kelo' Wrought?, N.Y.L J., June 28, 2006, at 3 (internal quotation marks omitted).
253. See Joseph William Singer, The Reliance Interest in Property, 40 Stan. L. Rev. 611, 737-39 (1988).
254. Id. (suggesting that such takings would fulfill the public use requirement because they would "achiev[e] the public purpose of correcting a market failure or otherwise promot[e] economic development or alleviat[e] economic distress").
255. Brief for the City of New York, supra note 152, at 5; see Paul Boudreaux, Eminent Domain, Property Rights, and the Solution of Representation Reinforcement, 83 Denv. U. L. Rev. 1, 18-19 (2006) ("Stung by movement of wealth and jobs to favored suburbs, many American cities have become desperate to retain and attract businesses and tax bases. . .. To lower the cost of doing business in their communities, cities are encouraged to take steps such as giving tax breaks, curbing regulations, and lowering the cost of land through creative use of eminent domain.").
256. Brief for the City of New York, supra note 152, at 4-5.
257. See In re Fisher, 730 N.Y.S.2d 516, 517 (App. Div. 2001). The use of eminent domain to protect the economic welfare of a community has also been acknowledged by the Supreme Court. In Kelo, the majority discussed the importance of eminent domain for state welfare by stating that, "[i]n our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question." Kelo v. City of New London, 545 U.S. 469, 484 (2005).
258. Brief for the City of New York, supra note 152, at 9 (citing Wilson v. Long Branch, 142 A.2d 837, 842-43 (N.J. 1958), cert. denied, 358 U.S. 873 (1958)).
259. See supra Part I.A.2.b-c.
260. Peter Applebome, City's Success Built on Power to Seize Land, N.Y. Times, July 20, 2005, at B5.
261. See id.
262. Id.
263. Id. (quoting Michael W. Freimuth, Stamford's director of economic development, in his support for cities using eminent domain to maintain economic stability).
264. Mihaly, supra note 154, at 42 (stating that "[m]ost Americans enjoy the fruits of revitalized urban cores, but they do not understand how the transformation occurred. Nor do they know that the very nature of land development in the city center has evolved"); see also "The Kelo Decision: Investigating Takings of Homes and Other Private Property": Hearing Before the S. Comm. on the Judiciary, 108th Cong. (2005) (testimony of Eddie A. Perez, Mayor of Hartford, Connecticut), http://judiciary.senate.gov/ testimony.cfm?id=1612&wit_id=4659 [hereinafter Testimony of Eddie A. Perez] (stating that "eminent domain is a powerful economic development tool used sparingly that helps cities create jobs, grow business and strengthen neighborhoods").
265. See, e.g., Brief for the City of New York, supra note 152, at 1-2.
266. Jeffrey D. Friedlander, Eminent Domain in the City: From Metrotech to 42nd Street, N.Y.L.J., Mar. 28, 2005, at 3.
267. Brief for the City of New York, supra note 152, at 1; see also Press Release, Times Square Alliance, Times Square Alliance Announces Results of Latest Report on Economic Contribution of Times Square to NYC Economy (May 9, 2007), available at http://www.timessquarenyc.org/media/documents/ economicrelease.pdf.
268. See Press Release, Times Square Alliance, supra note 263. In its report, the Times Square Alliance stated that "[t]he total economic output of Times Square is more than the 2006 GDPs of Bolivia and Panama combined." Id.
269. Id.
270. John Caher, Existing State Law Protects Property Owners, Experts Say, N.Y.L.J., Oct. 19, 2005, at 1 (recounting Michael Cardozo's speech to state senators during the New York State Senate Judiciary Committee Hearing on Oct. 18, 2005); see generally Brief for the City of New York, supra note 152.
271. Courtesy Sandwich Shop, Inc. v. Port of N.Y. Auth., 190 N.E.2d 402, 404 (N.Y. 1963), appeal dismissed, 375 U.S. 78 (1963).
272. Id. at 404-05.
273. Id.
274. Id. at 405.
275. Id. (quoting N.Y. City Hous. Auth. v. Muller, 1 N.E.2d 153 (N.Y. 1936)).
276. Brief for the City of New York, supra note 152, at 1.
277. Treanor, supra note 231.
278. See id.
279. See id.; see also Brief for the City of New York, supra note 152, at 1 ("Lincoln Center for the Performing Arts was created through the use of condemnation, and it, in turn, not only became the anchor for many of the City's leading cultural arts venues, but it also spurred tremendous private residential development on Manhattan's Upper West Side.").
280. These success stories exemplify how new public facilities, new commercial development, and new housing can provide businesses and amenities that can reinvent an urban center. See Mihaly, supra note 154, at 47 (stating that the "typical scenes of redevelopment" often feature "[n]ew public facilities, often in tandem with new affordable housing, rise on vacant or under-utilized sites, producing uses and amenities that reinvent the urban center").
281. Courtesy Sandwich Shop, Inc. v. Port of N.Y. Auth., 190 N.E.2d 402, 406 (N.Y. 1963), appeal dismissed, 375 U.S. 78 (1963).
282. See Lorraine Power Tharp et al., Warren's Weed, New York Real Property § 28.01 (5th ed. 2004) (discussing how, up until 1978, New York had followed the general condemnation law which had been the source of many complaints by all parties involved in eminent domain proceedings).
283. See id. Before the enactment of New York's Eminent Domain Procedure Law, the state's condemnation law was only used when a condemning authority did not have its own condemnation procedure laws. Furthermore, even takings where the City of New York sought to exercise the power of eminent domain were controlled by the City's Administrative Code, as opposed to the New York State Condemnation Law. Id.
284. See supra text accompanying notes 19-28.
285. See N.Y. Em. Dom. Proc. Law § 104 (McKinney 2006) (stating that "[t]he eminent domain procedure law shall be uniformly applied to any and all acquisitions by eminent domain of real property within the state of New York").
286. See id. § 101.
287. See Tharp et al., supra note 278, § 28.46 (discussing N.Y. Em. Dom. Proc. Law § 201).
288. See N.Y. Em. Dom. Proc. Law § 207(A).
289. See, e.g., Matwijczuk v. Comm'r of Transp., 423 N.Y.S.2d 574 (Sup. Ct. 1979).
290. See N.Y. Em. Dom. Proc. Law § 207(c)(1)-(4).
291. John R. Nolon & Jessica A. Bacher, 'Takings' and the Court: Despite Alarmists, 'Kelo' Decision Protects Property Owners and Serves the General Good, N.Y.L.J., June 29, 2005, at 5; see, e.g., Ne. Parent & Child Soc'y, Inc. v. Schenectady Indus. Dev. Agency, 494 N.Y.S.2d 503, 504 (App. Div. 1985) (stating that the Schenectady Industrial Development Agency correctly followed eminent domain procedures by holding a public hearing concerning the proposed taking, and making findings relative to the condemnation site - "the economic, environmental and social impacts of the intended use of the property" - before determining that the condemnation would serve a public use).
292. See Nolan & Bacher, supra note 287.
293. Id. It is also important to note that the condemning agencies, such as the UDC (also known as the Empire State Development Corporation) provide copies of the project plan, environmental impact statement, a transcript of the public hearing, and a copy of the public hearing notice for development projects they proposes to undertake. See, e.g., Empire State Dev. Corp., Atlantic Yards Arena & Redevelopment Project, http://www.empire.state.ny.us/ AtlanticYards/ (last visited Sept. 22, 2007) [hereinafter Atlantic Yards].
294. Brief for the City of New York, supra note 152, at 8.
295. "The Kelo Decision: Investigating Takings of Homes and Other Private Property": Hearing Before the S. Comm. on the Judiciary, 108th Cong. (2005) (testimony of Thomas A. Merrill, Charles Keller Beekman Professor, Columbia Law School), http://judiciary.senate.gov/testimony.cfm?id= 1612&wit_id=4661 [hereinafter Testimony of Merrill]. This Note interprets Professor Merrill's use of the word blight in the narrow sense - conditions created by slums - as opposed to the liberal, or broad, definition of the word that the New York judiciary has used, which encompasses conditions created by improper land use and/or economic stagnation.
296. Id.; see also Boudreaux, supra note 251, at 9 (writing that eminent domain has often targeted poor and minority communities such as the condemnation that the Supreme Court upheld in Berman - most of the residents in the community were black). This Note uses the word "truly" to distinguish between a broad definition of blight, which defines blight as constituting social and economic blight in addition to physical blight, and the narrow definition of blight, which only constitutes deteriorated structures.
297. Boudreaux, supra note 251, at 19.
298. Id. at 21.
299. See Testimony of Merrill, supra note 291.
300. Id.
301. See Kelo v. City of New London, 545 U.S. 469 (2005); Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984); Berman v. Parker, 348 U.S. 26 (1954); see also supra Part I.B.
302. See Berman, 348 U.S. at 28.
303. See Midkiff, 467 U.S. at 241-42.
304. See Kelo, 545 U.S. at 484.
305. See id.
306. See In re Fisher, 730 N.Y.S.2d 516, 517 (App. Div. 2001); Vitucci v. N.Y. City Sch. Constr. Auth., 735 N.Y.S.2d 560, 562 (App. Div. 2001); Ne. Parent & Child Soc'y, Inc. v. Schenectady Indus. Dev. Agency, 494 N.Y.S.2d 503, 505 (App. Div. 1985).
307. See generally supra Part I.A.2.a-c
308. See generally supra Part I.A.2.a-c
309. See Kelo, 545 U.S. at 480-83.
310. See id.; see also text accompanying notes 147-49.
311. See Kelo, 545 U.S. at 479-83; see also supra note 147 and accompanying text.
312. The Kelo dissent discussed the three accepted categories of takings which constituted public use. Kelo, 545 U.S. at 497-98 (O'Connor, L, dissenting).
313. See N.Y. City Hous. Auth. v. Muller, 1 N.E.2d 153, 154 (N.Y. 1936).
314. 37 N.Y.2d 478, 483-84 (1975).
315. Id. at 481.
316. Byrne ex rel. Pine Grove Beach Ass'n v. N.Y. State Office of Parks, Recreation & Historic Preservation, 476 N.Y.S.2d 42, 42 (App. Div. 1984); see also Muller, 1 N.E.2d at 155.
317. See In re Fisher, 730 N.Y.S.2d 516, 517 (App. Div. 2001); Vitucci v. N.Y. City Sch. Constr. Auth., 735 N.Y.S.2d 560, 562 (App. Div. 2001); Ne. Parent & Child Soc'y, Inc. v. Schenectady Indus. Dev. Agency, 494 N.Y.S.2d 503, 504 (App. Div. 1985).
318. See Rosenthal & Rosenthal Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d 44, 45 (2d Cir. 1985); W. 41st St. Realty L.L.C. v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121, 126 (App. Div. 2002); Byrne, 476 N.Y.S.2d at 42-13.
319. See generally Part I.A.2.a-c.
320. Kelo, 545 U.S. at 479.
321. See generally id. at 484.
322. Id. at 498 (O'Connor, J., dissenting).
323. See id. (listing the transfer of private property to common carries as one of the three "generally identified categories of takings that comply with the public use requirement").
324. See supra Part I.C.
325. Kelo, 545 U.S. at 482 (majority opinion).
326. See supra text accompanying notes 244-46; see also supra Part II.B.2.
327. See supra notes 263-66, 272-76 and accompanying text; see also Brief for the City of New York, supra note 152, at 1.
328. See supra Part II.A. 1; supra notes 226-30 and accompanying text.
329. See supra Part H.B.2.
330. 744 N.Y.S.2d 121 (App. Div. 2002).
331. 771 F.2d 44 (2d Cir. 1985).
332. Mihaly, supra note 154, at 47; see also supra text accompanying notes 262-65.
333. See supra note 266 and accompanying text. 330. See id.
334. See Press Release, Times Square Alliance, supra note 263; see also supra text accompanying notes 262-65.
335. See supra text accompanying notes 262-65.
336. See supra text accompanying notes 262-65.
337. See supra text accompanying notes 267-72.
338. See Courtesy Sandwich Shop, Inc. v. Port of N.Y. Auth., 190 N.E.2d 402, 405 (N.Y. 1963), appeal dismissed, 375 U.S. 78 (1963).
339. See Parke Chapman, Commercial Development Still on Track, Real Estate Wkly., Nov. 7, 2001, at 1.
340. See generally supra Part II.A.
341. See Press Release, Times Square Alliance, supra note 263 ("Times Square is not just one of New York City's most popular destinations - it in essence represents its own distinct and powerful economy within the City, pumping tens of billions of dollars into the local economy. In this way, Times Square is a vital organ to New York City - a critical element in the City's financial landscape."); see also supra Part II.B.1-2.
342. See New York State Urban Development Corporation Act § 2 (McKinney 2006); supra text accompanying notes 65-69.
343. Brief for the City of New York, supra note 152, at 2.
344. Id. at 3.
345. See supra text accompanying notes 256-59.
346. See supra text accompanying notes 249-54; see also Brief for the City of New York, supra note 152 and accompanying text.
347. See supra text accompanying notes 255-57.
348. Brief for the City of New York, supra note 152, at 5; see also supra text accompanying note 248.
349. See supra Part I.C.2.a.
350. See supra Part I.C.2.b.
351. Compare S.B. 117, 56th Leg., Gen. Sess. (Utah 2006), with N.Y. Em. Dom. Proc. Law §§ 201-02 (McKinney 2006), and Tharp et al., supra note 278, § 28.46 (discussing the EDPL's requirements for public hearings).
352. See Tharp et al., supra note 278, § 28.46 (discussing the EDPL's requirements in § 201).
353. See id. § 28.46; see also supra text accompanying notes 283-86.
354. See supra text accompanying notes 283-87.
355. See supra text accompanying notes 287-90.
356. See supra text accompanying notes 288-89.
357. See Empire State Dev. Corp., supra note 289 and accompanying text.
358. See supra Part II.A.3.
359. See N.Y. Em. Dom. Proc. Law §§ 103-104 (McKinney 2006); see also Tharp et al., supra note 278, § 28.46. Section 103 defines a "condemnor" as "any entity vested with the power of eminent domain," and section 104 states that "[t]he eminent domain procedure law shall be uniformly applied to any and all acquisitions by eminent domain of real property within the state." N.Y. Em. Dom. Proc. Law §§ 103-104.
360. See supra text accompanying notes 19-28, 283-90.
361. See supra text accompanying notes 7-8.
362. See supra Part II.A.1.
363. See supra text accompanying notes 229-31.
364. See Gallagher, supra note 115, at 1866-67 (arguing that the political process is a means by which concerned citizens can instigate eminent domain change). This proposition has also been suggested for citizens of other cities, such as those in Connecticut, where the mayor of the City of Hartford testified before the U.S. Senate Judiciary Committee and stated, There is a way for citizens that are particularly upset with the use of eminent domain to voice their discontent. Hartford residents vote policy makers into office. If there is a concern over a certain policy, the remedy for citizens is to make their opinions heard not only through civic involvement and awareness, but also through the ballot box. Testimony of Eddie A. Perez, supra note 260.
365. See supra text accompanying note 266; see also Benjamin, supra note 204; LaGrasse supra note 38.
366. Lou Dobbs, Dobbs: A Big 'Hallelujah' for American Voters, CNN.com, Nov. 9, 2006, http://www.cnn.com/2006/US/11/08/Dobbs.Nov9/index.html.
367. Id.
368. See supra note 248 and accompanying text; see also Brief for the City of New York, supra note 152, at 5 (stating that economic development is a "crucial tool" for the city).
369. See, e.g., Berliner, supra note 216; see also Part II.A.1.
370. See Part II.A.1.
371. See Gallagher, supra note 115, at 1866-67 (arguing that governments rely on the power of eminent domain to carry out large-scale development projects by assembling large parcels of land); see, e.g., Rosenthal & Rosenthal Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d 44, 46 (2d Cir. 1985); supra text accompanying notes 244-46.
372. See Gallagher, supra note 115, at 1866-67; see also Rosenthal, 771 F.2d at 46. Note that the Supreme Court has also recognized that a redevelopment project may sometimes require the condemnation of both blighted and un-blighted property. See Berman v. Parker, 348 U.S. 26, 35 (1954).
373. See supra Part 1.A.2.b.
374. See, e.g., Rosenthal, 771 F.2d at 46.
375. See supra notes 244-46 and accompanying text.
376. See supra notes 178-82 and accompanying text.
377. See supra text accompanying notes 291-94.
378. See Testimony of Merrill, supra note 291; see also supra text accompanying note 295.
379. See Testimony of Merrill, supra note 291.
380. See supra Part II.A.2.
381. See supra Part I.C.2.a.
382. See supra text accompanying note 248; see also supra Part II.B.1.
383. See supra text accompanying notes 196-99.
384. See supra text accompanying notes 196-99.
385. See supra text accompanying note 199.
386. See supra Parts I.A.2.b-c, III.A.
387. See supra Part II.A.
388. See supra Part II.B.2.
389. See supra Part II.B.2.
390. See supra Part III.D.
391. Brief for the City of New York, supra note 152, at 5.