In November, New Yorks Court of Appeals, the states highest court, upheld the use of eminent domain to take homes and small businesses to make way for wealthy developer Bruce Ratners so-called Atlantic Yards development: 16 mammoth skyscrapers centered around a basketball arena. The court accepted the Empire State Development Corporations contention that the area was blightedbased on a study that Ratner paid for himself and which wasnt even initiated until years after the project was announced.
The court didnt go so far as to embrace the reasoning of the U.S. Supreme Courts infamous 2005 ruling in Kelo v. City of New London, which allows governments to condemn property for economic-development reasons alone, regardless of whether the property is blighted. And just a few weeks later, a lower court rejected a similar attempt to condemn blighted properties in West Harlem on behalf of Columbia University, which was seeking to obtain a 17-acre site for expansion. But this limitation offers little comfort to property owners in New York State, which remains the nations worst abuser of eminent domain. Thousands of properties remain at risk for condemnation under the absurdly lax blight standards given a green light by the states highest court.
In her Kelo dissent, former Supreme Court Justice Sandra Day OConnor predicted that the fallout from this decision will not be random . . . the government now has license to transfer property from those with fewer resources to those with more. In a separate dissent, citing the legacy of urban renewal, Justice Clarence Thomas wrote that losses [from eminent domain] will fall disproportionately on poor communities.
In 2007, we tested that hypothesis. Using census data, we constructed a demographic profile of residents from 112 cities in 26 states, including New York, living in project areas where eminent domain had been used or threatened. As we reported in the journal Urban Studies, when compared with residents of communities surrounding the project areas, those living under the cloud of condemnation were significantly more likely to be poor, minority, and less educated.
We recently conducted a similar analysis of 11 locations in the New York metropolitan area (New York City and Long Island) under threat of condemnation as blighted or urban renewal areas, and thus subject to eminent domain for private development under the courts ruling. The project areas are in Brooklyn (Atlantic Yards), West Harlem-Manhattanville (the area targeted by Columbia University), Jamaica (Queens), Baldwin and New Cassel (Nassau County, Long Island), and East Harlemitself home to six urban renewal areas. We found that eminent-domain abuse in New York disproportionately affects ethnic and racial minorities and those less well-off and less educated. The 11 project areas we studied where eminent domain is authorized have a greater percentage of minority residents (92 percent) compared with the counties in which theyre located (57 percent). This disparity is far more pronounced in New York than in our national sample, where 58 percent of project-area residents are minorities, compared with 45 percent in surrounding communities.
Median incomes in New York project areas are considerably less ($21,323.32) than in surrounding areas ($29,880.25). Residents of project areas are more likely to be impoverished (28 percent) than in surrounding communities (17 percent). Forty percent of project-area residents do not have high school diplomas, compared to just 24 percent outside of the project areas. Project-area residents are also far more likely to rent their homes or apartments (87 percent) than residents of surrounding areas (62 percent), and the project areas themselves are more likely to be home to children (28 percent) than surrounding communities (23 percent).
Taken together, the data reveal that especially in New York City, eminent domain falls more heavily on the less affluentexactly as OConnor and Thomas predicted it would. Of course, these results do not suggest that local authorities intentionally target these communities for removal. Nonetheless, the data show that local governments wield condemnation against those least equipped to defend their homes and businesses. In effect, New Yorks Court of Appeals has endorsed Robin Hood in reverse, taking from the poor to give to the rich.
Following Kelo, 43 states passed reforms to rein in eminent domain abuse. New York did not. In 2009, legislators in Albany introduced dozens of bills, ranging from strong reforms such as forbidding condemnation for private projects to superficial remedies like requiring another round of hearings, an additional vote on projects, and the creation of a comprehensive redevelopment plan prior to condemnation. As in every legislative session since Kelo, bills languished in committee.
The Court of Appeals ruling should be a clarion call to state legislators that they cannot avoid the issue any longer. The courts deference to blight designations, and the punitive nature of eminent-domain abuse, suggest that mere procedural reforms will not suffice. To protect New York property owners, eminent domain for private development must be brought to an end.
Dick Carpenter is director of strategic research and John K. Ross is research associate at the Institute for Justice.