In today’s decision in Kaur v. New York State Urban Development Corp., The New York Court of Appeals (the state’s highest court) has upheld the condemnation of property in the Manhattanville area of New York City for transfer to Columbia University. This outcome is not surprising. In fact, I predicted it back in December. In the recent Atlantic Yards case, the Court of Appeals had already held that state and local officials could declare virtually any area “blighted” and thereby make it eligible for condemnation and transfer to favored private interest groups.
Nonetheless, there are several extremely troubling aspects of this case. As in the Atlantic Yards decision, the court upheld an extremely dubious “blight” condemnation by applying a rule holding that any area could be declared blighted so long as it might be “underdeveloped.” Indeed, even the presence of underdevelopment (a phenomenon that occurs in almost every neighborhood at one time or another) need not actually be proven. Instead, the government need only show that there is “room for reasonable difference of opinion as to whether an area is blighted.” As the lower court opinion in Kaur pointed out, this kind of lax standard would allow the city to declare “[v]irtually every neighborhood in the five boroughs” blighted. And, as I pointed out in this post, the court’s position makes a mockery of the New York state constitution, which allows blight condemnations only in “substandard and insanitary areas.”
Even worse, the Court of Appeals in Kaur brushed aside or completely ignored extensive evidence showing that the blight study justifying the condemnations had been rigged in Columbia’s favor and that Columbia itself was likely responsible for most of the “blighted” conditions. The key “blight” study was conducted by AKRF, a consulting firm hired by Columbia. As the lower court decision pointed out:
It is critical to recognize that [the state Economic Development Corporation's] 2002 West Harlem Master Plan which was created prior to the scheme to balkanize Manhattanville for Columbia’s benefit found no blight, nor did it describe any blighted condition or area in Manhattanville. Instead... the Plan noted that West Harlem had great potential for development that could be jump-started with rezoning. It was only after the Plan was published in August 2002 that the rezoning of the “upland” area was essentially given over to the unbridled discretion of Columbia. In little more than a year from publication of the Plan, EDC joined with Columbia in proposing the use of eminent domain to allow Columbia to develop Manhattanville for Columbia’s sole benefit.
This ultimately became the defining moment for the end game of blight. Having committed to allow Columbia to annex Manhattanville, the EDC and [Empire State Development Corporation] were compelled to engineer a public purpose for a quintessentially private development: eradication of blight.
From this point forward, Columbia proceeded to acquire by lease or purchase a vast amount of property in Manhattanville. It is apparent from the record that ESDC had no intention of determining if Manhattanville was blighted prior to, or apart from Columbia’s control of the area.... Throughout this time Columbia not only purchased or gained control over most of the properties in the area, but it also forced out tenant businesses, ultimately vacating, in 17 buildings, 50% or more of the tenants. The petitioners clearly demonstrate that Columbia also let water infiltration conditions in property it acquired go unaddressed, even when minor and economically rational repairs could arrest deterioration. Columbia left Building Code violations open, and let tenants use premises in violation of local codes and ordinances by parking cars on sidewalks and obstructing fire exits, and maintaining garbage and debris in certain buildings over a period of years....
ESDC delayed making any inquiry into the conditions in Manhattanville until long after Columbia gained control over the very properties that would form the basis for a subsequent blight study. This conduct continued when ESDC authorized AKRF to use a methodology biased in Columbia’s favor. Specifically, AKRF was to “highlight” such blight conditions as it found, and it was to prepare individual building reports “focusing on characteristics that demonstrate blight conditions.”
This search for distinct “blight conditions” led to the preposterous summary of building and sidewalk defects compiled by AKRF, which was then accepted as a valid methodology and amplified by Earth Tech. Even a cursory examination of the study reveals the idiocy of considering things like unpainted block walls or loose awning supports as evidence of a blighted neighborhood.
The Court of Appeals decision completely ignored the fact that Columbia may well have created much of the “blight” that justified the condemnation transferring property to the university. On the issue of the objectivity of the AKRF study, the Court of Appeals opinion claimed that the mere fact that AKRF was employed by Columbia does not disprove the validity of its conclusions, and also notes that those conclusions were validated by a later study conducted by another firm. It does not consider the evidence cited by the lower court showing that the methodologies of both studies were deliberately biased in Columbia’s favor.
It is perhaps worth noting that AKRF was also the firm that conducted an equally dubious blight study justifying the Atlantic Yards takings. In that case, the blight study and takings were heavily influenced by politically influential developer Bruce Ratner, the originator of the development project in question.
The Court of Appeals also makes much of claims that the Columbia project will produce important public benefits by creating jobs and other economic payoffs. However, there is little if any proof that the condemnation of these particular properties (which are only a small part of the total area where Columbia wants to build) is actually needed to produce those benefits. Moreover, as I point out in this article, private interest groups and local governments routinely inflate such estimates because once the property is condemned, they are not legally required to actually produce the economic gains that supposedly justified the condemnation in the first place. Based on past experience, it would not be at all surprising if Columbia ultimately fails to produce more than a small fraction of the benefits it now predicts.
The problem of over-broad definitions of blight is hardly limited to New York. It is present in numerous other states too, including many that have enacted post-Kelo eminent domain reform laws. Nonetheless, the Atlantic Yards and Kaur cases set a new low in this field. Not only has the New York Court of Appeals applied an extraordinarily broad definition of blight, it has also endorsed blight designations based on studies that are probably rigged in favor of private interests who benefit from condemning the areas in question. Moreover, it has opened the door to condemnations based on the presence of “blight” created by the very people who will get to own the property after it is taken.
UPDATE: Tim Sandefur and the Inverse Condemnation blog have further comments on the decision.
UPDATE #2: Matt Festa of the Land Use Prof blog comments here:
I expected the standard Kelo-style deference to legislative and executive officials to determine what things are in the public benefit (although I thought the Court rather passively accepted the argument that Columbia = education (nonprofit!) and education = good = constitutionally sufficient public benefit). But I was still a little surprised at the extent to which the Court seems to bend over backwards to disclaim any competence at all to evaluate the sufficiency of a “blight” determination by the government (which also gets to decide to use eminent domain). That’s the rational basis test taken to its logical extreme.