NEW YORK STATE ASSEMBLY PUBLIC HEARING ON EMINENT DOMAIN, Transcript, 11/4/05

NEW YORK STATE ASSEMBLY
PUBLIC HEARING
ON
EMINENT DOMAIN
ASSEMBLY STANDING COMMITTEE ON JUDICIARY,
ASSEMBLY STANDING COMMITTEE ON CORPORATIONS,
AUTHORITIES AND COMMISSIONS, ASSEMBLY STANDING
COMMITTEE ON LOCAL GOVERNMENTS AND ASSEMBLY
STANDING COMMITTEE ON GOVERNMENTAL OPERATIONS
Assembly Hearing Room

250 Broadway, 19th Floor
New York, New York
Friday, November 4, 2005

10:40 a.m.
EN-DE REPORTING SERVICES

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2
COMMITTEE MEMBERS:
ASSEMBLYWOMAN HELEN WEINSTEIN, Chair
ASSEMBLYMAN ROBERT K. SWEENEY, Chair
ASSEMBLYMAN RICHARD BRODSKY, Chair
ASSEMBLYWOMAN ROANN M. DESTITO, Chair
ASSEMBLYMAN DANIEL ODONNELL
ASSEMBLYMAN CHARLES D. LAVINE
ASSEMBLYMAN MARK WEPRIN
ASSEMBLYMAN ROGER GREEN

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LIST OF WITNESSES
MICHAEL CARDOZO
NYC Corporation Counsel . . . . . . . . . . . . . .
LISA BOVA-HIATT, Deputy Chief

NYC Corporation Counsel . . . . . . . . . . . . . .
19
KATHRYN WYLDE
Partnership for New York City . . . . . . . . . . .
61
SCOTT BULLOCK
Institute for Justice . . . . . . . . . . . . . . .
84
JOHN ECHEVERRIA
Georgetown Law and Policy Institute/NRDC. . . . . .
92
PHILIP WEINBERG, Professor

St. Johns University. . . . . . . . . . . . . . . 154
MINDY FULLILOVE, Professor of Psychiatry
Columbia University . . . . . . . . . . . . . . . . 157
DANIEL GOLDSTEIN
Develop Dont Destroy Brooklyn. . . . . . . . . . . 189

212-962-2961
Hearing on Eminent Domain 11-4-05

CHAIRWOMAN WEINSTEIN:
Good morning to
everyone.
This is the hearing on the exercise of
eminent domain in New York State.
Assemblywoman Helene Weinstein, Chair of the
Assembly Judiciary Committee.
this hearing, along with, on my left, Assemblyman
Brodsky, Richard Brodsky, Chairman of the
Assembly Standing Committee Corporations,
Im
Im sponsoring
10
Authorities and Commissions.
11
Assemblyman Sweeney on my right, Chair of the
12
Assembly Committee on local governments.
13
series of hearings are also co-chaired by Roanne
14
Destito, the Chair of the Governmental Operations
15
Committee who, because of scheduling conflicts,
16
will not be able to join us today.
17
joined by one of our colleagues, Assemblyman
18
Roger Green from Brooklyn.
19
Also, co-chaired by
These
Were also
The central purpose of these hearings is
20
to examine the various issues raised by the
21
recent decision of the Supreme Court in Kelo v.
22
New London and whether, in light of this
23
decision, legislation should be enacted in New
24
York to further regulate the power of eminent
25
domain.
I think most people know that the Kelo

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decision reaffirmed the power of local
governments to seize private property for
economic development purposes.
approved the longstanding role of the State
Legislatures to restrict or expand this grant of
authority.
receiving testimony on the issues surrounding the
sovereign exercise of eminent domain, including
The Court also
The Committees look forward to
10
application constitutional standards and the role
11
of local government approval when eminent domain
12
is used by public authorities or public benefit
13
corporations.
14
addressing the issue of eminent domain for
15
purposes of economic development, including the
16
use of comprehensive development plans and fiscal
17
impact statements.
18
to communities, such as public notice, due
19
process protections, as well as compensation to
20
adversely affected parties can be discussed.
21
We also welcome testimony
Further, issues significant
We have, in the Judiciary Committee, a
22
number of bills that further regulate the power
23
of eminent domain.
24
Kelo decision, some were introduced following
25
that decision.
Some weve had before the
I believe on the hearing notice

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the list of those bill numbers is attached.
also welcome testimony on those specific
proposals before the Judiciary Committee.
We
I would ask people who are testifying
5
6
today well, first, we will ask the reporter to
swear people in.
someone at the back desk know.
people if, at all possible, to summarize their
If thats a problem, please let

We also would ask
10
remarks so that there is time for interaction
11
between the people testifying and the legislators
12
here.
13
14
15
That being said, Mr. Brodsky, do you have

any opening?
ASSEMBLYMAN BRODSKY:
I just wanted to
16
express my appreciation and thanks to you for
17
your continued vigilance in this.
18
the first reform of eminent domain two years ago,
19
it came through your Committee.
20
has been extraordinary and helpful.
21
When we did
Your work here
We are in a very unusual situation.
22
Were now at a point in the public discourse
23
where community activist, in many cases across
24
the country who are traditionally grass-root
25
progressive are aligned to the Scalia Thomas

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theory of public purpose, and where major
developers have formed alliances with major
community organizations in ways we never have.
There is enormous confusion about what the law
is, much less what it ought to be.

The purpose of these hearings is to first
7
8
get very clear what New York Law is, to
understand what the choices are that were going
10
to have to make, and then to make them with good
11
speed.
12
doing a bill.
13
testimony today, as we did on Monday in Albany.
14
15
I believe the Senate is interested in

And we look forward to the
I would like to thank everybody for being

here.
16
With that being
17
said, wed like to call our first witness.
18
New York City Corporation Counsel, Michael
19
Cardozo.
20
MICHAEL CARDOZO, having been first duly
21
sworn by a Notary Public of the State of New
22
York, testified as follows:
23
The
Mr. Cardozo,
24
Chairwoman Weinstein gets to be the nice guy, and
25
I get to say wed really like the testimony to be

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as abbreviated as you could make it, consistent
with your own satisfaction that youre getting a
chance to fully express your views so we have
more time to talk among us.

MR. CARDOZO:
6
7
I will do my best, Mr.
Brodsky.
MR. CARDOZO:
Thank you.
As Corporation Counsel of
10
the City of New York, I am honored to appear
11
before you today and to share the Citys views on
12
eminent domain with you.
13
Im joined on my left by Lisa Bova-Hiatt,
14
a Deputy Chief in my office who has principal
15
responsibility for all condemnation matters
16
involving New York City.
17
The Kelo decision has created widespread
18
fears that the Supreme Court has suddenly given a
19
license to governments to eject homeowners from
20
their property.
21
suggesting that out-of-control governments can
22
now take virtually any property for almost any
23
reason, and that New York homeowners have no
24
protections against arbitrary government seizure
25
in their homes.
You have already hear testimony
This is wrong.
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I want to talk to you today for just a
few moments, plainly and calmly, to make three
points.
sweeping legal change in New York.
it has absolutely no effect whatsoever.
a critical point, it seems to me, to be
emphasized
and this City need the power of eminent domain,
First, Kelo does not represent a

In New York,
That is
Second, the citizens of this State
10
including for economic development.
11
New York law already regulates and limits the
12
powers of eminent domain with a detailed and
13
common sense process that protects all property
14
owners.
15
And, third,
Very briefly, Kelo was recognized is
16
simply a reaffirmation of a power by the Supreme
17
Court that really predates our Federal
18
Constitution.
19
reluctantly by governments, that is a vital
20
aspect of sovereignty in order to build schools,
21
highways, parks, and urban development projects.
22
The statute at issue in Kelo, a
It is a power that is used
23
Connecticut statute, authorized the use of
24
eminent domain for economic development.
25
Supreme Court did not break any new ground, held

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The
10
that the statute was constitutional within
certain parameters.
Weinstein just pointed out, the court also held
that each state was free to limit the power of
eminent domain.
decision did not weaken New Yorks law, which
imposes far, far greater restrictions on eminent
domain in the Connecticut statute.
But, as Assemblyman
And, therefore, the Kelo
10
I would suggest to you that to impose
11
still further limits on the power of economic
12
domain in New York beyond those already existing
13
could cripple the power in this State to develop
14
vital economic growth.
15
think this is a point that also must be
16
emphasized, to a brief discussion of the
17
importance of eminent domain, how it is crucial
18
to the fiscal health of this State.
19
highlight briefly the instances of how eminent
20
domain has helped New York City.
21
Lincoln Center.
And this leads me, and I
Let me just
A very long time ago
22
when I was growing up in the West 70s in New
23
York, the area just to the south consisted of
24
increasingly run down buildings and blight.
25
the 1960s the City exercised its power of

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In
11
eminent domain, created Lincoln Center for the
Performing Arts and revitalized the entire West
Side area.
Times Square.
In the 1970s Times
Square, one of the great symbols of this State,
became a national showcase for urban blight and
decay.
theatres struggled to exist in the midst of peep
Crime was rampant and the Broadway
10
shows and rundown buildings.
11
of eminent domain, 13 acres in and around Times
12
Square have been reborn as a tourist friendly
13
location.
14
With the assistance
More recently, Metrotech in Brooklyn.
In
15
the 1980s much of the Brooklyn Bridge area was
16
blighted and underutilized.
17
a local university, the City, utilizing where
18
necessary its power of condemnation, transformed
19
this area into Metrotech, an urban office park
20
that, in turn, has attracted additional
21
development activity, including the Marriot
22
Hotel, the first hotel in Brooklyn since the
23
1930s.
24
responsible for millions of dollars in sales,
25
property and income tax revenues every year.
In partnership with
City statistics show that Metrotech is

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The
New York Times has called Metrotech easily New
York Citys leading phased office development
project, second in scale only to the World
Financial Center.
12
These projects, and many others, could
6
7
not have occurred without the use of eminent
domain.
Now, eminent domain is rarely a
10
governments first choice.
11
time consuming.
12
create a greater good, especially in this State
13
and this City where we have substantial
14
protections for homeowners and other property
15
owners.
16
The protections that already exist substantially
17
and procedurally in New York.
It is costly; it is
But it can be necessary to
And this leads me to my final point.
18
The City does not have a black check,
19
even if it wanted to, to condemn property for
20
economic development.
21
strongly enough.
22
and post Kelo, neither New York City nor any
23
other municipality in this State, can condemn
24
property for economic development purposes unless
25
it shows that, and Im quoting from the statute:
I cant emphasize this
Under New York law, both pre

212-962-2961
1
2
13
the area is a substandard or unsanitary area,
or is in danger of becoming a substandard or
unsanitary area and tends to impair or arrest the
sound growth and development of the
municipality.
also required if the Empire State Development
Corporation, rather than a municipality, seeks to
exercise the power of eminent domain.
10
And this need to show blight is
This blight limitation was not in the
11
Connecticut statute and it places a substantial
12
restriction on the power of government in New
13
York.
14
nor its municipalities can condemn property
15
simply because it has an economic development
16
project in mind.
17
is substandard or unsanitary.
18
Unlike Connecticut, neither New York State
It must show that the property
And aside from this, New York has
19
substantial protections for individual property
20
owners.
21
including some that have recently been added by
22
Assemblyman Brodsky.
23
review and approval must occur to ensure that all
24
affected parties are adequately heard prior to
25
the acquisition.
Theres lots of procedural protections,
Layers and layers of public

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14
In New York City, for example, the public
2
3
review process is government by the Uniform Land
Use Review Procedure, affectionately known as
ULURP.
an application by the condemning authority, a
hearing before any affected community boards,
input by the local borough president, another
hearing before the City Planning Commission, and
And this process includes the filing of
10
the right and always the opportunity for the City
11
Counsel to act.
12
done, the affected property owner will receive
13
what the court determines to be the fair market
14
value for his condemned property.
15
And then, when all of this is
Even the public benefit corporation like
16
the Empire State Development Corporation,
17
although not subject to local review in every
18
instance, is required by statute to consult and
19
cooperate with local elected officials and
20
community leaders.
21
significant procedural requirements in addition
22
to those set forth in the eminent domain
23
procedure law.
24
hearings, must adopt a general project plan, and
25
then must obtain unanimous approval from the
It is also subject to
The ESCD must hold public

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15
public authorities control board before it can
acquire property by eminent domain.
procedures, I suggest, foster an open and
transparent process to facilitate the acquisition
of property by eminent domain.
And these
I want to emphasize again that New York
City uses this power sparingly.
power that is vital to the economic and social
But it is a
10
well being of the City and the entire State.
11
the power is the product of decades of careful
12
weighing of the needs of the municipalities and
13
property owners.
14
And
I am not suggesting that the ECPL cannot
15
or should not be changed; rather, we must be very
16
careful not to upset the current laws balancing
17
of interests, which has served this state and its
18
residents well.
19
York City, I urge you to defer consideration of
20
the various substantive proposals pending before
21
you and instead create, as Assemblyman Brodsky
22
and others have suggested, a temporary commission
23
that will carefully consider the ramifications of
24
altering the states already extensive eminent
25
domain process.
And, therefore, on behalf of New

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16

That Commission, with input from the
2
3
state, including New York City, should examine
existing law, its effectiveness, and fairness
from the perspective of both the individual
property owner and the government, and then make
recommendations for potential change.
8
9
Thank you for allowing me to testify here

today.
10
Id be happy to answer any questions.

Thank you.
Before
11
we begin, I want to acknowledge weve been joined
12
by Assemblyman Mark Weprin, a member of the
13
Judiciary Committee here.
14
sure other do also.
15
I have a few and Im
Does the City of New York ever use
16
eminent or has used eminent domain for economic
17
development purposes without the presence of
18
blight?
19
MR. CARDOZO:
Absolutely no.
The
20
statute, and I think this is very, very
21
important.
22
municipality, including New York City has, to
23
condemn property in the economic development area
24
Im not talking about for schools or something
25
like that.
The only authorization that any
But, if were talking about economic

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17
development, Assemblyman, we only are allowed to
condemn in the event of a finding of blight.
4
5
6
7
Where do you find
that in the statutes of the Constitution?

MR. CARDOZO:
Id be happy to bring that.
Obviously, as we all know, the City can only do
what its authorized by statute.
statute, Assemblyman, the only statute that
And the only
10
allows New York City to take land for what is
11
loosely being referred to here as economic
12
development, is General Municipal Law 503.
13
Section 503 of the General Municipal Law
14
authorizes New York City to take land for urban
15
renewal but only upon a finding that the area is
16
substandard or insanitary.
17
no other statutory provision, if were talking
18
about economic development as distinct from
19
schools or roads or something like that, there is
20
absolutely no other statutory provision that
21
authorizes the City of New York to condemn
22
property.
23
And
There is absolutely
Does that
24
limitation flow to instrumentalities of the
25
government of the City of New York as well?

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MR. CARDOZO:
18
Unlike upstate IDAs,
Assemblyman, the only power for condemnation that
could be exercised by New York City is by New
York City itself.

6
7
City of New York has no power of condemnation?
8
9
The IDA of the
MR. CARDOZO:
Thats correct.
Section
917 of the General Municipal Law specifically
10
accepts New York City IDA from the powers that
11
upstate IDAs have.
12
13
On this particular
point
14
MR. CARDOZO:
15
Yes.
Are there any
16
other instrumentalities of the City of New York
17
that have the residual power under state statute
18
to exercise eminent domain?
19
MR. CARDOZO:
20
21
22
I believe not.
Could you do a
more complete search?

MR. CARDOZO:
Sure.
But I knew this was
23
an issue that concerned you, based upon a
24
conversation you and I had a couple of weeks ago
25
and I have looked at that.
Id be more than

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happy to confirm that to you.
19
Is it not true
that other authorities of the State of New York
which do operate within the City are not
constrained by the blight limitation?
MR. CARDOZO:
Ah
MR. CARDOZO:
No.
ESDC for one?
ESCD has exactly the
10
same blight limitation.
11
attention to Id be happy to give you the
12
citation of the unconsolidated ah, Section
13
6253 of the Unconsolidated Laws limit the power
14
of the ESCD.
15
16
I would call your
Is the same true
for the MTA?
17
MR. CARDOZO:
18
MS. BOVA-HIATT:
Im not familiar with

The MTA can only acquire
19
property for transportation purposes.
20
21
22
We need you to be
sworn in.
LISA BOVA-HIATT, having been first duly
23
24
25
MR. CARDOZO:
The MTA, as I was reminded

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20
by Ms. Bova-Hiatt, can only condemn property for
transportation.
4
5
School Construction Authority?
MR. CARDOZO:
8
9
10
11
Is it true for the
Yes.
Is it true for the
MR. CARDOZO:
The School Construction
Authority condemns property for schools.

Is it true for the
12
it condemns property where a school is
13
involved.
14
you find that there would be a limitation there?
15
If theres a multi-use building, would
MR. CARDOZO:
Well, it can be an issue.
16
But the statutory authority of the SCA is for the
17
purpose of schools.
18
And with respect
19
to other state authorities which have similar
20
broad grants of authority, have you done the
21
review to see whether their condemnation powers
22
are limited by this blight assessment?
23
MR. CARDOZO:
Yes.
There have been, in
24
special certain instances there have been special
25
state statutes passed, for example, I think the

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21
original World Trade Center statute, which did
not have that limitation or the New York Stock
Exchange statute.
statute.
power by the state, I believe my statement is
correct.
8
9
That was pursuant to a special
But as a matter of general grant of
interrupt.
10
I didnt mean to
Ill get back to my questions.
To get back to the
11
issue of blight.
12
was some suggestion that since most of the
13
current definition of blight is by court
14
interpretation, that perhaps there would be some
15
advantage to have a statute that more clearly
16
spelled out what is blight for the purposes of
17
eminent domain.
18
that?
19
At our hearing in Albany there
Do you have any thoughts on
MR. CARDOZO:
I think we would have to be
20
very careful about that.
21
that is this.
22
Municipal Law, in Section 505, does define
23
substandard or insanitary area, along with, I
24
think, Section 502 which defines it a little bit
25
more precisely.
And the reason I say
As we know, in the General
It does spell that out.

212-962-2961
As you
22
note, theres been a number of court decisions.

To start legislating in this area, again,
3
4
I think is simply going to, therefore, produce
lots and lots of litigation.
we have a statute thats been on the books for
probably 30 or more years with court
interpretations on it, it really is probably
better to leave that lapsed rather than try to
10
reword the statute and then produce additional
11
litigation.
12
that that would be an appropriate topic for a
13
temporary commission to take a harder look at.
14
I think that when
On the other hand, I would suggest
When New York City
15
does, and you mentioned a few projects in New
16
York.
17
development one.
18
eminent domain powers in relation to economic
19
development, is it always done subject to a
20
comprehensive economic development plan?
21
I guess Metrotech would be the economic

When New York does use its
MR. CARDOZO:
Yes.
Under the relevant
22
statutes, again, if you look at Section 505, I
23
believe it is of the General Municipal Law, there
24
is a requirement that there been, I think its
25
called an urban renewal plan that is prepared and

212-962-2961
23
has to be reviewed and goes through the lengthy
ULURP process.
course, mean an appropriate environmental review.
Inevitably, that will also, of
Another issue that
was raised in Albany that has been raised is the
and that appears in many of the legislation
thats before our Committee is the issue of, I
guess you would call it a super payment or above-
10
market value.
11
above market value for private residence when
12
eminent domain is for economic development
13
purposes.
14
125 percent.
15
that have other dollar figures.
16
if you could comment on that concept of what
17
impact enacting such a payment above market value
18
would have in proceedings, the Citys proceedings
19
in relation to economic development.
20
was some comment made that to enact a statute
21
that would allow or that would require a
22
municipality to pay above-market value might be
23
in violation of the Constitution, Article 8,
24
Section 1, I believe it is.
25
address those various issues relating to
Mr. Brodskys bill has 150 percent
Assemblyman Tokazs (phonetic) bill is

I think there maybe other bills
I was wondering
Also, there
So, if you could

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24
compensation above market value.
3
4
5
MR. CARDOZO:
Sure.
Ill try to keep
them all in mind.

I think you have to start from the
philosophical point.
Economic development
limited by the blight limitation, we believe, and
I think its long established in this state, is
beneficial to the City and the State.
We have to
10
have the ability, in appropriate instances, to
11
economically develop.
12
projects I listed, and Im sure youre more
13
familiar than I, there are projects around the
14
state all of which have benefited the state in
15
giving a revitalization to areas that would not
16
have otherwise have happened.
17
If you look at the
Every time were going to potentially
18
make a change into the economic into the
19
condemnation statute, we have to be careful to
20
keep in mind what were trying to achieve.
21
it seems to me what were trying to achieve on
22
the philosophical level is to be sure theres
23
appropriate protections to the affected property
24
owner, to be sure that the affected property
25
owner is receiving just compensation and Ill

212-962-2961
And
25
come back to that in a moment and at the same
time, not losing sight of the purpose that were
doing it for when the benefit of the entire state
or the entire state.
this more costly to the state, which goes to the
150 percent or some concept like that, what you
are obviously doing is potentially increasing the
cost to the taxpayer of engaging in the economic
So, if, in fact, one makes
10
development as limited by blight.
11
therefore, if you put too much of an additional
12
cost factor imposed on the state to do that, you
13
are, as a practical matter, making it more
14
difficult and therefore less likely for that to
15
occur.
16
And,
Now, certainly the affected taxpayer
17
should receive just compensation.
18
obviously what the law has long required.
19
cases that are pointed out, and it seems to me
20
from a policy point of view this is right.
21
compensation should be fair and just to the
22
taxpayer excuse me to the taxpayer or the
23
government on the one hand and the property owner
24
on the other hand.
25
the amount by say 50 percent that the property
And that is
The
The
And to, therefore, increase

212-962-2961
26
owner would otherwise receive, you are benefiting
the property owner to an extent much more than
expected, but you are penalizing the taxpayer and
I think it is potentially very dangerous to the
ultimate goal that were trying to achieve.
would be very, very hesitant to increase the
compensation beyond the well established rules
relating to how you calculate fair and best use
10
So I
point.
11
As to the constitutional issue that you
12
referred to, weve only had a brief opportunity
13
to look at that.
14
raised on the constitutionality.
15
dont feel comfortable as I sit here today to
16
give you my definitive opinion on that.
I think a serious question is
17
18
ASSEMBLYMAN SWEENEY:
I certainly
Mr. Sweeney.
Im just curious.
19
In New York City the process that you use for
20
taking property, at any point during that process
21
is there any elected official whos required to
22
sign off on it, formally sign off on it?
23
MR. CARDOZO:
Not just any elected
24
official.
25
condemnation process for the kind of purposes
When New York City engages in the

212-962-2961
27
that were talking about, economic development is
limited by blight.
the ULURP procedure.
give you a thumb nail sketch of what that is.
It must go through, first,

And let me very briefly
What that means is that after the
appropriate urban renewal plan has been filed,
first the community board, after appropriate
notice, all the kinds of notice, including
10
personal service on the affected property owners
11
as suggested by Mr. Brodskys bill of a couple of
12
years ago.
13
there is a public hearing by the community board
14
which must make a recommendation.
15
relevant borough president and, in certain
16
instances depending upon the nature of the
17
borough board, has a right to submit its
18
recommendation, i.e., modify, yeah, nay.
19
after the community board has had its say and
20
recommendation and the borough president has
21
weighed in, the City Planning Commission holds
22
another hearing, and then it votes up or down on
23
the proposal.
After the public has been notified,
Then, the
Then,
But thats not the end of it.
24
The City Counsel, under the City Charter,
25
has the absolute ability to consider every single

212-962-2961
28
urban renewal project.
renewal project, then the City Counsel, in its
time limit set out in the charter, the City
Counsel itself must then vote whether or not to
approve, disapprove, et cetera, the
recommendation that has come to it.
areas where it might not have the mandatory
discretion, in urban renewal projects it does.
It must, if its an urban
Even in
10
It must make the vote.
11
projects, it has the right to call the particular
12
project up for a vote.
13
Counsel decision the Mayor has his veto powers on
14
that.
15
In other more limited
Then, following the City
So, the answer to your question, Mr.
16
Sweeney, and if Ive gone on too long I
17
apologize, is you got community board approval,
18
you got borough president approval, you have the
19
City Planning Commission, and ultimately you have
20
the City Counsel.
21
22
All of them
mandated?
23
MR. CARDOZO:
24
25
MR. CARDOZO:
Yes.
Yes.
To act?
By Section 917, I

212-962-2961
believe it is, of the Charter.

3
4
29
Can I ask another
question?
Does the ULURUP process apply to a
5
6
condemnation or to a land use change pursuant to
a condemnation?
condemnation, per say, with no other actions
taken, would ULURP apply?
10
11
If you were to do a
MR. CARDOZO:
ULURP would not apply Im
sorry.
12
MS. BOVA-HIATT:
13
MR. CARDOZO:
ULURP does apply.
I misspoke.
ULURP is
14
required for any acquisition of real property by
15
the City of New York.
16
17
And its agencies?
And its IDAs?
18
MR. CARDOZO:
19
MS. BOVA-HIATT:
20
MR. CARDOZO:
Yes.
Yes.
An IDA does not have, as I
21
said before, condemnation authority in New York
22
City.
23
24
have to sort this one out.
25
testimony.
Were going to
But I appreciate your
Thank you.
212-962-2961
1
2
30

ASSEMBLYMAN GREEN:
I want to get to the
issue of compensation because I think one of the
things that was articulated in the Supreme Court
decision, I think particularly by the minority
and I think it resonated with the number of
people, is the issue of a corporation where the
state or city gives power, issues power by
eminent domain, executes power of eminent domain
10
for the purpose of a corporation that then takes
11
property from an individual homeowner or someone
12
that might be owning both either manufacturing
13
space or commercial retail property.
14
saying that you would be concerned about the
15
prescription in Mr. Brodskys bill, payment above
16
market value of 150 percent that it would impact
17
upon the taxpayers?
18
MR. CARDOZO:
19
ASSEMBLYMAN GREEN:
Youre
Yes.
All right.
What then
20
if there was legislation that really essentially
21
mandated that the corporation which would be
22
receiving profits in out years were in fact
23
developing some sense of reciprocity, a
24
prescription in which out of their profits they
25
would pay the property owner and their heirs

212-962-2961
31
back?
here is not only the immediate impact but also
issues of generational wealth that have been
essentially impacted upon.
Because I think what were dealing with
MR. CARDOZO:
I understand the question,
Assemblyman.
But I think it really becomes the
same issue because when a private developer, as
you referred to, might be involved in a project,
10
a private developer is going to take a look at
11
this.
12
the various governmental approvals might not
13
occur.
14
successes, there certainly have been failures.
15
So the private developer is taking a risk.
16
so, if youre saying, in effect, the 50 percent
17
wont come from the government but under some
18
kind of formula it would be paid for down the
19
road by the private developer, I think you have
20
the same concern.
21
be over compensating the property owner, because
22
he should get fair market value, and you are
23
imposing a deterrent for the private developer to
24
make an agreement that hes going to redevelop
25
this area and, therefore, youre going to make it
There are obvious risks involved.
Some of
While we can all talk about the
And
I think you are going to then

212-962-2961
32
far more difficult for the government to engage
in the kinds of projects that were talking
about.
ASSEMBLYMAN GREEN:
I know it will be
more difficult.
I guess what Im getting out is
how do we balance the whole issue of property
imperative with moral imperative of protecting
generational wealth, particularly among property
10
owners.
11
that we should consider.
In fact, in my bill
12
thats what we would do.
We would not put the
13
burden on taxpayers but on the corporation given
14
the fact that they have made certain, many of
15
them will have made certain projections,
16
particularly to their shareholders, of profits
17
that they will in fact be seeing in out years.
18
would suggest that perhaps those profits should
19
inure to the benefit of those property owners, as
20
well as the heirs of the property owners.
21
I guess to me I think that is something
MR. CARDOZO:
I understand the point.
22
think we have to be careful not to think that the
23
property owner, the private developer is the big
24
bad guy so we can say government and taxpayers
25
you wont pay this and the ultimate private

212-962-2961
33
developer will.
developer, in your phrase, is really the person
who is implementing the municipalitys plan.
if in fact its going to be potentially more
costly to the private developer, what youre
doing is youre decreasing the incentives for him
to take these risks, and youre making it,
therefore, more difficult for the City to engage
Because I think the private
10
in the kinds of projects that were talking
11
about.
12
13
ASSEMBLYMAN WEPRIN:
Cardozo.
MR. CARDOZO:
17
ASSEMBLYMAN WEPRIN:
19
Just quickly, Mr.
Good to see you.
16
18
Assemblyman Weprin
and then Mr. Brodsky.
14
15
So,
Nice to see you.

Thank you for being
here today.
I just wanted to ask you about the gist
20
of your argument is that there are enough
21
protections in the law currently that we
22
shouldnt fear the Supreme Court ruling, that
23
currently New York law allows for enough
24
protections.
25
temporary commission to consider the
And then you talk about creating a

212-962-2961
34
ramifications.
think that commission would be?
your position is that things are okay now, is it
just like a commission for the sake of being
there as sort of a stalling tactic to sort of
punt on the issues so it sort of goes away?
8
9
Could you elaborate on what you
MR. CARDOZO:
No.
And, indeed, if
I dont think so.
think the Kelo decision has certainly raised
10
concerns.
11
dismissing every concern out of hand.
12
example, I think we learned a couple of years ago
13
that the procedural protections in the
14
condemnation area could be improved in terms of
15
notice, and so that was adopted.
16
IDA concerns upstate that have been raised.
17
points that Assemblyman Green was just raising,
18
well, my initial reaction is that I dont agree
19
with him.
20
dispassionate look by people who deal with
21
condemnation and development issues over time
22
with a commission composed of people from across
23
the state who deal with this might suggest that
24
some modest adjustments might be appropriate.
25
And I dont mean to sound like Im

But, for
There are some

The
It would seem to me that a
Mr. Brodsky.

212-962-2961
35
Thank you.
you, Mr. Cardozo, for scowling an, I think,
thoughtful testimony.
MR. CARDOZO:
Thank you.
think I tend to agree with you.
a lot of areas.
together.
10
11
12
13
14
15
16
Thank
In many ways I
Were unclear in
Weve mashed a lot of stuff
The exception, as I understand it,
applies only to housing and economic development.

It does not apply to the exercise of eminent
domain for other purposes.
MR. CARDOZO:
Such as a school or roads
or transportation or something like that.

A new City Hall.
Whatever it may be.
17
MR. CARDOZO:
18
That is correct.
Okay.
So we are
19
properly looking at economic development, but we
20
do have other concerns with respect to its use
21
more broadly.
22
Second of all, Im just still unclear
23
about the extent to which the blight exception
24
applies to the various agencies and sub-agencies
25
of both state and city government.

212-962-2961
Were going
36
to be taking a look at that.
a more thorough review and we can talk.

MR. CARDOZO:
I assume youll do
Actually, I just made a
note to myself.
is probably the wrong forum to both talk to you,
or your counsel, or to, in effect, give you
perhaps a detailed letter with citations.
Id be more than happy, and this
10
We accept.
Fine.
Third of all, it is clear that in spite
11
of all that, regularly our large economic
12
development projects, those restrictions have not
13
withstood.
14
it were.
15
or the Stock Exchange, those requirements were
16
left behind.
17
They are abandoned in the breach as

That the World Trade Center legislation
MR. CARDOZO:
Well, of course whatever
18
legislation may ultimate come out of this
19
particular hearing, nothing will prohibit the
20
State Legislature down the road from passing some
21
additional piece of legislation such as happened
22
in the Stock Exchange.
23
I understand our
24
powers are not limited in that way.
25
assume then, however, that your point to us would

212-962-2961
I would
37
be we should never do that again.
MR. CARDOZO:
I certainly dont claim to
know all the intricacies of what compelled the
State Legislature in the I guess it was the
70s or 60s with respect to the World Trade
Center and more recently in the Stock Exchange.
8
9
10
11
12
13
14
Exchange deal done?
MR. CARDOZO:
When was the Stock
Do you remember when?

I think the legislation was
the late 1990s.

Well, thats
fairly recent.
MR. CARDOZO:
Thats right.
I just dont
15
want to claim knowledge because I was doing
16
something else at the time.
17
You defended the
18
blight exception as a stall yard element of
19
restrictions.
20
MR. CARDOZO:
21
22
23
Yes.
Absolutely.
Under what
circumstances should we abandon it?

MR. CARDOZO:
Mr. Brodsky, I think the
24
exigencies at the time that the state faced were
25
such that at the time after weighing the relevant

212-962-2961
38
factors I assume that the Legislature decided
that they wanted to not have a blight limitation.

I think youre
right.
But my question to you is under what
circumstances would you recommend that we abandon
the blight protection issue?
MR. CARDOZO:
that at this moment.
Im not prepared to answer

But I think that the blight
10
limitation has served the City and the State
11
well.
12
should be very careful before we alter the blight
13
limitation.
14
circumstances we should eliminate the blight
15
limitation, Im really not prepared to answer.
16
17
And so Im suggesting to you that we
If youre asking me under what
On what
circumstances should we eliminate it or limit it?
18
Ill give you both verses.
19
MR. CARDOZO:
I think I would not change,
20
as I indicate in my testimony, I would not change
21
the blight limitation.
22
appropriate protections in the law on blight
23
limitation.
24
circumstances it should be softened, loosened,
25
what have you, as I sit here today Im not
I think we have
If youre asking me under what

212-962-2961
39
prepared to answer that.
issue that I gather happened in the 1970s for
the World Trade Center and people felt was true
in the Stock Exchange
If theres a particular
Would you gather
your thoughts and let us know what those might
be?
MR. CARDOZO:
If I have some additional
10
thoughts.
11
response to Assemblyman Weprins question to me
12
that may well be something that the temporary
13
commission could take a look at.
14
15
But Im asking for
your views.
16
17
And, by the way, I think that, in
MR. CARDOZO:
Id be happy to give them
to you.
18
And clearly, what
19
were talking about is not a statewide phenomena;
20
it only applies to New York City, as you
21
mentioned in your own testimony.
22
restrictions.
23
MR. CARDOZO:
No.
The blight
I specifically said
24
that ESDC, which has statewide power in this area
25

212-962-2961
IDAs outside the
City can operate without the blight restriction.

MR. CARDOZO:
4
5
40
I dont believe thats
correct.
MR. CARDOZO:
I believe it is.
Well, why dont we add that
to our list of things to have a further
discussion about?
10
11
We will.
Which
brings me to a couple of basic questions.
12
In my vocabulary blight is Latin for poor
13
people.
14
we should not, if the overall good of the city
15
and economic development load is called upon, why
16
we should not exercise condemnation power in non-
17
blighted areas?
18
Can you explain under what circumstance
MR. CARDOZO:
Well, I think one of the
19
reasons you have the blight limitation is to be
20
sure that you are not simply condemning property
21
in a particular kind of neighborhood that is
22
otherwise perfectly economically viable.
23
24
25
But if an economic
project is large enough

MR. CARDOZO:
If -
Can I finish?

212-962-2961
41
I just want to
focus my question and you can answer it later.
want to focus the question.
whatever time you need to answer it.
mean to interrupt you.
the purpose of the blight exception is.
question is why should there be a limitation that
says the city may only bring economic development
Ill give you

I dont
But I do understand what

The
10
to areas which are otherwise known as poor or
11
blighted areas?
12
MR. CARDOZO:
Youre making an equation
13
that I dont agree with, between poor and
14
blighted.
15
example, that is not blighted, thats not
16
environmentally damaged, thats not vacant,
17
doesnt have a lot of problems, the fact that
18
its a low income neighborhood would not mean it
19
is blighted and, therefore, this limitation as it
20
exists now would prevent condemnation.
21
fact, the neighborhood is run down, vacant
22
buildings and things of that nature, abandoned
23
lots, dangerous and so forth, then its
24
economically blighted.
25
with you that blight equals a poor neighborhood.
If its a low income neighborhood, for
If, in
But I would not agree

212-962-2961
3
4
42
You dont see a
correlation?
MR. CARDOZO:
I recognize that its more
likely than not that the economically run down
neighborhood that has the attributes I just
referred to may predominantly be occupied by
people who are not in the upper economic
eschalance.
Think of the Lincoln Center area.
10
The blocks in the 60s in the 1970s that
11
ultimate led to Lincoln Center.
12
we look at things historically, that was a
13
vibrant neighborhood.
14
Buildings became dilapidated.
Lots of crime.
15
Lots of environment problems.
And it led to it.
16
Presumably, as
It became rundown.
But the fact, and I really think this is an
17
important point.
18
has low income people in it does not, per say,
19
mean it is blighted.
20
21
The fact that a neighborhood
I take your point.
But my point is why should the sacrifice of
22
contributing your home to the common good for the
23
overall economic benefit of the City be limited
24
to areas which not all blighted areas are poor or
25
not all poor areas but blighted, but all blighted

212-962-2961
areas are poor.
43
And why should a middle
MR. CARDOZO:
I dont agree with that.
Why should Park
Avenue escape from the notion that if we can site
a usually beneficial economic development project
there, why should they be excused from that
contribution?
MR. CARDOZO:
Let me point out.
Times
10
Square was not all poor when the whole urban
11
renewal process began in the 1970s.
12
certainly Broadway theatres.
13
struggling but they were not, per say, poor.
14
You had
They were
Lets take Park
15
Avenue.
16
legally from being considered for a project which
17
in the overall would benefit the people of the
18
entire City?
19
20
21
Why should Park Avenue be excused
Ms. Wylde will have her chance to testify

in a moment.
Im sorry.
MR. CARDOZO:
Because the limitation is
22
that the government should not be able to willy
23
nilly simply say, and this is the distinction, I
24
think, between the Connecticut law that was at
25
issue in Kelo and the New York law.

212-962-2961
Simply
44
because the government decides, yes, this is a
perfect middle income or high income area, but we
think we can get more tax ratable if we change
it, thats balancing the public interest and the
rights of property owners against the government.
The government has made the decision thats not
8
9
a good enough reason to allow a condemnation.

Why dont we just
10
balance it in the particular case?
11
them from responsibility as a matter of law?
12
13
14
MR. CARDOZO:
Why excuse
Well, what would the
standard be?
The standard would
15
be its got to be a really good project.
16
a really good project.
17
MR. CARDOZO:
Heres
Then youre suggesting
18
making it, I would think what youre suggesting
19
is then youre making it easier for government to
20
condemn property whenever it says heres a really
21
good project.
22
I view that as a
23
political comment, Mr. Cardozo, not as a comment
24
about whether or not people, by virtue of the
25
overall income levels of their neighborhoods

212-962-2961
45
should be legally excused from participating.

MR. CARDOZO:
Well, because I think, Mr.
Brodsky, I didnt intend it to be a political
comment.
theres a balancing of interests, and this goes
to some of my earlier responses.
balancing of interest that lies at the core of
the issues we are talking about.
What I intended it to be is that
Theres a
And the balance
10
of the interest is the rights of the property
11
owner to receive fair compensation to know that
12
if the property is condemned hes going to get
13
fair compensation.
14
government and the taxpayers to say, in certain
15
instances, we want to be able to develop this
16
because we do want to have economic development
17
going forward.
18
struck in this state, and it has served as I
19
suggest to you well, is to not give a blank
20
check, as arguably was the case in Kelo, not give
21
a blank check to the government, not force the
22
private homeowner or landowner to have to fight
23
the government in court on all these issues, but
24
instead require the government not just to think
25
it can make more money in the particular area,
Its the right of the
And the balance that has been

212-962-2961
46
but to show that the area is blighted.
Im still not
clear as to why they should be excused as a
matter of law if the project is good enough.
MR. CARDOZO:
Good enough, I guess, is
good enough in the eye of the beholder.
think then in any particular instance, any
particular government says I think this is a good
10
project, you are imposing a very, very
11
substantial burden on
12
13
MR. CARDOZO:
14
Im sorry.
And I
Rich people.
on various people.
Yes.
You said rich people?
15
16
MR. CARDOZO:
Rich people.
Im sorry.
I misheard you.
17
Because it could be a perfectly appropriate
18
neighborhood that is fine, middle income, low
19
income, or high income.
20
have and I think that the history of this state
21
is such, we dont want to have, as we have in
22
Connecticut, the ability of the government to
23
make that decision.
24
25
I dont think we want to
Obviously we have
a Im deeply uncomfortable with the blight.

212-962-2961
47
What you view as a protection, I view as a
targeting mechanism.
is right or wrong right now, but its something
we need to think about.
questions.
I dont know if one of us
I have two other
Do you not see a distinction that we
7
8
ought to take into account when property is
transferred not to public ownership but back to
10
another private owner?
11
is distinguishable social, legal, and community
12
impacts that ought to be factored into the
13
process?
14
MR. CARDOZO:
Do you not see that there
And the reason, I guess, is
15
just an extension of what Mr. Green was asking
16
me.
17
Let me just respond to that hypothetical.

Lets assume theres no private developer
18
in the mix today and the government decides
19
today, give me the benefit of my hypothetical,
20
with real blight, the government decides to
21
condemn with the hope that later on its going to
22
be able to find a private developer.
23
condemns on day one under the proposal the
24
government is going to have to pay that money.
25
And then, maybe its going to be able to entice a

212-962-2961
If it
48
private developer to come in.
have to do this all itself.
government has to say to the private developer, I
dont have to pay 50 percent of the profits, you
do, I think you are going to deter that kind of
project.
of deterrence at that point.
Its not going to

And if the
That maybe worthy

If we are, as a
10
government, going to take someones home not for
11
the conventional public purpose but for the
12
purpose of transferring it either immediately or
13
in the foreseeable future to a private party, you
14
do not see that that raises distinguishable legal
15
and social matters?
16
MR. CARDOZO:
I dont.
Because I think
17
if you want to have economic development with
18
government as the engine for that, instead of
19
having to require the private taxpayer to pay the
20
government for that we all benefit by the ability
21
of the government to have that tab picked up by
22
the private developer who will be taking the risk
23
at the same time.
24
developer youre going to have to pay
25
substantially increased compensation, it is going
And to say to the private

212-962-2961
49
to be a deterrent to the economic development.
know Im repeating myself, but that is what Im
saying.
And in the context
of this discussion where that private developer
benefits from the ability of the state to use its
extraordinary powers to save someones home, it
does not seem to me, again this is a matter of
10
philosophy, that we are way off base in saying if
11
youre going to make a profit as a result of the
12
actions of the state then the people from whom
13
the property was taken should, I guess in some
14
way, share in that profit.
15
MR. CARDOZO:
Theres an assumption that
16
hes going to make a profit.
17
may make a profit.
18
Conceitedly, he
And hes also taking a risk.
Hes taking a lot of risk.
And if what you are
19
doing is making it more difficult for these
20
projects to go forward, youre making it more
21
likely that the government is going to have to
22
pay that and, therefore, the taxpayer is going to
23
have to pay it itself.
24
therefore, more likely that these projects will
25
not occur, and I dont think you want to do that.
Youre making it,

212-962-2961
50
I would
characterize my views differently.
I would
characterize my views as saying that there is
something different in the transfer of private
property to the state in condemnation and then
back to a private person.
sharing of the burden it seems to me that right
not the aggrieved homeowner or business owner is
10
not in effect fairly compensated, although he or
11
she may be justly compensated.
12
to try to, I think, extend that.
13
your patience and for the thoughtfulness of your
14
answers.
And that in the
15
16
ASSEMBLYMAN GREEN:
And were going

I thank you for
Mr. Green.
Yeah.
I just have
17
one other question.
18
like to raise is the question of when the state
19
exercises eminent domain for a developer and the
20
developer cancels or fails to complete the
21
development project, which has happened in the
22
past, do you think our current laws provide
23
enough safeguard with respect to that issue?
24
this has happened in the past.
25
example, Baruch College in the Atlantic Yards
One of the areas that Id
And
And I cite, for

212-962-2961
51
complex across the street from Atlantic Yards.
It was supposed to have been built over 20 years
ago.
number of homes were taken.
came into fruition and as a result the state
actually created blight.
we have in law to protect ourselves from that
occurring again in the future?
10
The state executed eminent domain.
MR. CARDOZO:
The project never
What safeguards should
As I understand the
11
question is you have a plan, its planned to have
12
an economic development, and for whatever reason,
13
despite everyones best intent, it never comes to
14
being.
15
to a piece of property that is denominated on a
16
map as a park or a future park or a future
17
school, but its never there.
18
I suppose in some respects thats similar
I wouldnt put the private developer
19
necessarily as the ogre.
20
government was doing that, frankly, you could
21
have exactly the same problem.
22
exercise if the property owner receives, if
23
its condemned, if the property owner would
24
receive just compensation.
25
and I understand the citation of examples, maybe
Because even if the
Again, if you
If this is a problem,

212-962-2961
52
thats something that the temporary commission
should take a look at.
condemned, the property will have received the
fair and just compensation.
But if the property is
ASSEMBLYMAN GREEN:
I understand that.
But it gets at the heart of what was the initial
intent of many of these projects, which was
overall community and economic revitalization.
10
And what Im suggesting is that in some cases
11
theres an execution of eminent domain, property
12
is taken, property is torn down, and what is left
13
there is additional blight.
14
is do we need additional safeguards to ensure
15
that that doesnt occur?
16
MR. CARDOZO:
And so the question
And, as we all know,
17
unfortunately government starts on a project and
18
doesnt finish it for a variety of reasons.
19
20
ASSEMBLYMAN GREEN:
Market pressures,
blah, blah, blah.
21
MR. CARDOZO:
22
dumps or something like that.
23
to prevent that, and maybe we should take a look
24
at that.
25
owner is concerned, as distinct from the overall
The economy goes into the

We certainly want
But as far as the individual property

212-962-2961
53
problem this creates, as long as the property
owner has received fair and just compensation, I
dont see that as a problem for the property
owner.
unintentionally created, to use your word, a
blighted area, thats something that we could
take a look at.
9
10
I can understand it if you
A quick question.
While we talk about blighted areas, obviously
11
you discussed vacant lots, buildings with lots of
12
vacancies, otherwise kind of run down buildings.
13
When theres a plan just correct me if Im
14
wrong.
15
theres a plan for economic development, as part
16
of a plan they may be blighted areas contained
17
within that area, but the eminent domain law can
18
be used with the blighted provision for
19
properties that arent in fact blighted that are
20
within that contemplation of that economic
21
development area.
22
My understanding is even in areas where
MR. CARDOZO:
I think what youre
23
referring to is okay.
24
the overall area is blighted, but there may be
25
particular pockets, if you will, a block, or a
We would all agree that

212-962-2961
54
building, or what have you, that might not, if
you were just looking at that block, might not be
blighted.
to a decision of the Supreme Court in the 1950s.
If the government makes the decision that if we
And this obviously, and this goes back
just, in effect, exempt Block A or Block B, it
may not be feasible to have the overall
development project.
And if were going to start
10
excepting out a block or two, first of all, you
11
may run into the danger that that might some day
12
become blighted and therefore affected.
13
if youre going to try and upgrade the whole
14
area, inevitably there may be some incidental
15
consequences on a particular building or a
16
particular block that per say is not blighted.
17
And, so
And for the
18
purposes of public use the blighted definition is
19
not a requirement.
20
21
MR. CARDOZO:
Public use for schools and
22
23
MR. CARDOZO:
24
25
A school or road.
That is correct.
And what about
situations where there is a road connecting two

212-962-2961
55
shopping centers where clearly the benefit, while
the road itself is a public use and a public road
but the benefit is the economic development to
the private businesses in each of the respective
shopping centers.
there?
8
9
Do you see any distinction
MR. CARDOZO:
I think were going to get
into almost impossible line drawing.
I have no
10
doubt that long before I was involved in this,
11
when the New York State Thruway was built it was
12
a lot easier to get to places, and there were a
13
lot of people whose businesses undoubtedly
14
benefited.
15
improve a road and its easier to get from Point
16
A to Point B, people in that area are going to
17
benefit.
18
benefits.
19
particular area the people at the other end of
20
that road are probably going to benefit.
21
dont think that changes the analysis.
22
And when you build a road and you
Theyre all going to be incidental

Yes.
When you extend the Thruway in a
But I
I think there was
23
a misunderstanding.
24
the condemnation powers of the City are limited
25
to the blighted area.
Youre not testifying that

212-962-2961
MR. CARDOZO:
56
No.
Once theres a
finding of blight in an area they can condemn
much more broadly than just the blighted area,
not just within the zone.
MR. CARDOZO:
As long as the condemnation
is within the approved project.
renewal project says its 20 blocks, and if Block
10
11
So if the urban
A within that 20 block per say is not blighted

12
about within the zone.
13
zone, is it not true?
Im not talking
You may go outside the
14
MR. CARDOZO:
15
outside of the urban renewal?
16
within if youre talking about for economic
17
development purposes, Mr. Brodsky, in order for
18
the City of New York to exercise its right of
19
condemnation it must have been approved, the
20
overall project must have been approved.
21
you have a project thats ten blocks away outside
22
of that project, we could not condemn that.
23
24
25
No.
For abutting property
It has to be
So, if
Take a bulls eye.
You have a bulls eye 100 yards wide that is

blighted.
212-962-2961
MR. CARDOZO:
57
Right.
You are not
restricted in your condemnation power to that
circle.
You may extend it to 1,000 yards in
circle.
Im pretty sure Im right on this one.
If you can argue that the outside area is
threatened.
case.
10
I think theres a Court of Appeals
A Yonkers Development Authority case.

MR. CARDOZO:
If were talking about the
11
City of New York my understanding is, first of
12
all, the ULURP process requires the filing of an
13
urban renewal plan and that plan will denominate
14
the geographic area thats part of the plan.
15
Assuming that you go through all the hoops and
16
that plan is approved, the power of condemnation
17
could be exercised by the City of New York within
18
that geographical limitation.
19
Putting aside the
20
questions of holes within the blighted area, that
21
plan could be much wider than the blighted area.
22
23
24
25
MR. CARDOZO:
Yes.
Im sorry.
I would
agree.
And you could
condemn anywhere within the plan area.

212-962-2961
MR. CARDOZO:
plan area.
58
You can condemn within the
Yes.
So you can condemn
non-blighted areas as part of an overall plan if
at the core of the problem is a blighted area.

MR. CARDOZO:
I thought thats what I was
saying to the Assemblyman.
question was if its not within the plan, if its
10
outside the scope of the plan, then you could not
11
condemn.
12
I thought your
Mr. Green has a
13
question.
14
weve been joined by two other members of the
15
Judiciary Committee.
16
Assemblyman Danny ODonnell, and next to him
17
Chuck Lavine from Long Island.
But I first want to acknowledge that
On my far right is
18
Mr. Green.
19
ASSEMBLYMAN GREEN:
Yes.
My very last
20
question.
21
initiates an economic development plan with a
22
developer and the developer as part of the
23
footprint of this project purchases, lets say,
24
98 percent of the properties in the footprint and
25
then the state moves to execute eminent domain,
Lets say that the City and State

212-962-2961
59
the state would actually be executing eminent
domain on the properties that the developer
himself has already purchased.
MR. CARDOZO:
Im not sure I follow that
last sentence.
purchased the properties.
8
9
You said the developer had
ASSEMBLYMAN GREEN:
Yes.
I said that the
state and city initiated an economic development
10
plan, and that as part of that the developer went
11
forward and purchased most of the properties
12
within that footprint.
13
percent of the property.
14
executes eminent domain.
Lets say 92 percent, 98

The state afterwards
15
MR. CARDOZO:
16
17
18
Why would it do that?

Only on the
properties
MR. CARDOZO:
It would exercise eminent
19
domain on the properties that the developer did
20
not purchase.
21
ASSEMBLYMAN GREEN:
Executes eminent
22
domain in the footprint, which would include
23
properties that he didnt purchase and properties
24
that he did purchase.
25
You would only

212-962-2961
60
exercise eminent domain on properties where there
werent building buyers.

ASSEMBLYMAN GREEN:
Not necessarily.
If
I read the law correctly it is very possible that
if, in fact, properties have been purchased
within the footprint of an economic development
plan and the state executes eminent domain that
that could in fact impact on properties that were
10
purchased by the developer.
11
MR. CARDOZO:
I guess thats
12
theoretically possible.
13
14
Im not sure the reality
ASSEMBLYMAN GREEN:
I guess what Im
15
saying is how would we safeguard should there
16
be some clarity in the law that creates
17
essentially like a firewall that would
18
MR. CARDOZO:
Im not sure that I
19
understand.
20
municipality.
21
protecting.
22
piece of property from someone and the state or
23
the city would then condemn that property, I
24
dont quite know why that would happen and I
25
dont know who were protecting in your
Youre increasing the cost to the

Im not sure who youre
If the developer goes out and buys a

212-962-2961
hypothetical.
sir.
61
I guess Im just not following it,
ASSEMBLYMAN GREEN:
Thank you very
We appreciate your
much.
7
8
testimony.
MR. CARDOZO:
10
11
Thank you.
And we look
forward to receiving some follow up on that.
12
13
Okay.
Our next witness is Kathryn Wylde,

President of the Partnership for New York City.
14
Ms. Wylde,
15
welcome.
16
possible to summarize your testimony.
17
18
19
20
21
22
It falls to me again to say if its
three pages.
You only have
Go ahead and read it.
MS. WYLDE:
Thats okay.
Ill summarize.
I was more interested in some of the discussion

than my paper.
KATHRYNE WYLDE, having been first duly
23
24
25
MS. WYLDE:
Im Kathryn Wylde.

212-962-2961
Im
62
President of the Partnership for New York City.
I was interested in many of the points raised
because for almost 40 years, more than 35 years,
Ive been involved in community affordable
housing, economic development primarily in the
five boroughs of the City of New York.
think whats missing from the conversation and
from the discussion of the Kelo case and Im
And I
10
really glad that you took the initiative to have
11
this hearing, unlike the U.S. House of
12
Representatives which managed to overwhelmingly
13
pass a change in the law that will profoundly
14
affect cities all over the country, yesterday,
15
if, in fact, the Senate goes forward with it,
16
without a conversation with the people who have
17
spent the last 40 years working on the revival of
18
urban areas that we almost lost during the 60s
19
and 70s.
20
And I think at this point its hard to
21
remember that the tool kit that has been put
22
together over the 40 years to leverage private
23
reinvestment into communities that had no
24
economic base, this is just part of that tool
25
kit.
The use of economic domain for economic

212-962-2961
63
development purposes to control the speculation
thats created when government decides, the
private sectors speculation thats created when
government decides they want to take an action in
the public interest to basically improve the
economy, to eliminate blight.
chain reaction of speculation that only the
threat of the power of eminent domain can
10
11
That sets off a
control.
There are a number of other examples I
12
can give you because Ive been involved in many,
13
many specific projects over the years where
14
eminent domain was a small piece of a much larger
15
puzzle that involves long range planning and
16
thinking through development.
17
Some of the issues that were raised
18
earlier, in particular Assemblyman Green who has
19
long experience in Brooklyn.
20
urban renewal and condemnation got a bad name
21
when it was a function of following the federal
22
urban renewal law during the 50s and 60s in
23
order to create public housing and other large
24
public project, mostly public housing.
25
federal government had enacted urban renewal
I think that the

212-962-2961
The
64
where they gave powers of condemnation and they
gave funds then supposedly to rebuild.
they pulled the plug on the funds in the 70s.
And so it left the city with a large number of
urban renewal sites that were vacant, derelict,
where people couldnt get financing.
they were condemned and held by government.
Often times they werent even condemned; they
10
11
Well,
Sometimes
were just held off the market.

So, its a complex issue that has a
12
history that is difficult.
13
since that time in the 70s that local
14
governments and the state, to some extent, but
15
particularly cities, large cities, have used this
16
as an indispensable part of the process of
17
rebuilding.
18
I think, though,
We, in urban development, have a mantra
19
that you renew cities or you die.
20
building on second or third generation sites.
21
And when we do projects of significant scale, we
22
have to assemble sites.
23
condemnation is the tool that we use.
24
component of that project its absolutely
25
essential to the Citys future, its urban
Were usually
The power of

212-962-2961
As a
65
development program, its continual renewal in
regeneration.
And my experience in New York, and Ive been
involved in dozens of these cases, mostly for
affordable housing and economic development, my
experience is they are done carefully, they are
done thoughtfully, they look at every parcel with
inter-zone and make a decision with the community
It has to be used judiciously.
10
in terms of whether it should be subject to
11
condemnation or left out of the condemnation
12
plan.
13
Its not an all or nothing situation.

Now, I also think a complicating factor
14
concerns of people in rural areas, and the
15
farmlands in particular, about use of
16
condemnation by the state.
17
something that we, as an organization, would not
18
oppose taking a hard look at.
19
other issues, and the conversation about having a
20
commission to kind of sort through these is a
21
very positive one.
22
if you havent spent a career in housing and
23
economic development, its hard to come in and
24
understand sort of how this framework of
25
public/private relationships have been put
And I think thats
I think there are
But its very hard to come in

212-962-2961
66
together and how they have served the public
good.
through that exercise and to see where, for
examples, property thats hanging out there under
condemnation shouldnt be able to come back into
the marketplace.
And I think it would be useful to go
When I started in housing and community
development there was almost no place in the City
10
of New York outside the luxury areas of Manhattan
11
where you could build a house or rent an
12
apartment or you could see a house or rent an
13
apartment for more than it cost to build.
14
no private market functioning in the City in the
15
60s and 70s.
16
think thats made people forget that its not
17
necessarily always going to be this way.
18
in fact, our economy is very cyclical.
19
future of our City depends on constant private
20
investment and rebuilding.
21
public money to the job alone.
22
leverage private money.
23
the tool kit by which we do that in economic
24
development.
25
are doing to examine this issue will ratchet up
We had
We have a robust one today, and I
That,
The
We dont have enough

We have to
And this is just part of
And I hope that the work that you

212-962-2961
67
to the national scene so that we can get the
Senate before it takes precipitous action.
MS. WYLDE:
Down.
Did you say up?
Sorry.
Washington is
down.
Down to the federal government.
the Senate will provide some consideration of our
package of really urban redevelopment tools
before taking an action.
10
Thank you.
11
CHARWOMAN WEINSTEIN:
12
13
So that
I just have a
question before I call on some of my colleagues.

You mention in your testimony the procedure here
14
in New York, ULURP, the various levels of
15
government, and Corporation Counsel also talked
16
about, that have to give their approval prior to
17
the use of eminent domain here in New York City.
18
As we heard from testimony in Albany,
19
particularly of an RDAs Act, there is no or
20
when youre taking for public use by a state
21
agency the local government, the local elected
22
officials do not have sometimes either the
23
ability to vote their approval up or their
24
disapproval or even have any official say in that
25
proceeding.
Would you support changes or would

212-962-2961
68
you recommend based on your experience changes
for outside, areas outside of New York City
similar to some of the procedures that are
required here in New York City?

MS. WYLDE:
My own bias is that land use
and development are profoundly local decisions.
So I think that New York Citys model is a good
one.
Im not familiar enough with what kind of
10
abuses exist outside of New York City to be able
11
to respond to that.
12
I cant recall a situation in which New
13
York State has come in and used its powers in New
14
York City without a home rule invitation, the
15
friendly condemnation invitation from the City.
16
17
I think the
thruway is probably one of those examples.
18
MS. WYLDE:
19
development.
20
further.
I was thinking economic
I dont think I can comment
21
Assemblyman Weprin.
22
ASSEMBLYMAN WEPRIN:
This may not be what
23
youre prepared to answer.
24
it was the House passed, the law that the House
25
passed?
Can you describe what

212-962-2961
69

MS. WYLDE:
Yes.
They basically said
that they were trying to undo the Kelo decision,
and they said that if a community uses the power
of eminent domain for economic development
purposes, to condemn property that they will pull
their federal economic development funds for two
years, essentially.
ASSEMBLYMAN WEPRIN:
9
10
If they use it in
any way, shape or form?
11
MS. WYLDE:
For economic development.
12
Mr. Brodsky.
13
Ms. Wylde, I
14
didnt want to get into a long debate, a longer
15
debate with Mr. Cardozo than was his necessary.
16
But his read of the statutes and mine dont
17
comport.
18
example, although they say its just for
19
transportation purposes, theres case law in the
20
state that says the raising of revenue for the
21
transportation system is a transportation
22
purpose.
23
build, lets say, oh, a stadium on the west side,
24
one could have the MTA the MTA could have used
25
condemnation power to do that arguing that the
The MTAs ability to condemn, for
So, theoretically, if one wanted to

212-962-2961
70
proceeds to them were a transportation purpose.
So, I do not accept yet, and we dont
know what the law is.
is yet in the state.
do not accept that the protections in place in
New York within the City are adequate.
8
9
No one knows what the law

Thats problem one.
I do take your testimony to say, however,

that no change in law is needed now.
10
MS. WYLDE:
11
12
13
But I
No.
I think
Aside from the
commission.
MS. WYLDE:
its worth discussing.
One,
14
as I say, I plead ignorance on the implications
15
throughout New York State.
16
issue that Assemblyman Green raised about how
17
long properties can hang out there is a
18
legitimate one because neighborhoods change and
19
Ive experienced enough in neighborhoods where
20
the property hanging out there while one
21
bureaucracy after another didnt go forward with
22
plans, has had a depressing affect and has done
23
anything but contribute to economic development.
And I think that the
24
I think it is worth looking at the whole area
25
and looking at it from a statewide perspective.

212-962-2961
71
And, if as you say there are state authorities
that have the ability to come into New York City
and its neighborhoods and exercise those powers
in areas that are not strictly limited to their
public infrastructure purpose, I think thats
wrong.
8
9
You heard my
colloquy with Mr. Cadozo about the virtues and
10
defects of the concept of blight.
11
reason to excuse Park Avenue from being at least
12
put into an equation about relative costs and
13
benefits.
14
be subject to condemnation for purposes of
15
economic development?
16
17
18
Do you see any
Should they, as a matter of law, never
MS. WYLDE:
The problem is I dont think
its a matter of law; its a matter of economics.

I cant imagine a scenario
19
It is a matter of
20
law now and my point is it ought to be a matter
21
of economics.
22
Right now
MS. WYLDE:
I wouldnt disagree with you
23
on that.
24
law.
25
use taxpayer dollars if it wasnt resulting in
I think its a matter of economics, not
It would be irresponsible for the City to

212-962-2961
72
significant appreciation and just the cost and
limitations.
the government can put in in terms of public
resources into these projects.
leverage private dollars.
got highest and best use, what are you doing?
8
9
The fact is its very limited what
And if youve already
an academic theory.
They have to
Im not sure its
If you go up Park Avenue as
10
far as the hospital corridor or the museum
11
corridor which have potentials to expand in areas
12
that could bring economic growth.
13
City of New York, the state theoretically cant
14
do it.
15
into what we mean by the word blight.
Right now, the
I think thats an interesting insight
16
MS. WYLDE:
17
Thank you.
18
Mr. ODonnell.
19
ASSEMBLYMAN ODONNELL:
It is.
Back to the land
20
uses local issue.
21
Court decision is primarily about the question of
22
what is a public benefit and whether or not
23
somebody, a private for-profit group of some sort
24
has the power to claim that whatever that is
25
drives that.
My concern about the Supreme
So in the local part of that in my

212-962-2961
73
district that has to do with Columbia University.
And what Columbia University is trying to do is
holding the possibility of taking the eminent
domain pieces of Harlem, claiming that theyre
blighted.
in fact, create a process by which the community
gets to participate.
not about what the local community people feel.
The ULURP protections that exist do,
But in the end its really
10
It becomes a much larger issue than that.
11
Obviously a local community board can vote no on
12
any ULURP application it wants, and those votes
13
are regularly ignored at the upper levels of
14
government and those votes are regularly ignored
15
in the City Council, as well.
16
To follow up on Richards question about
17
blight, what does blight mean and when is blight
18
blight?
19
you have experienced the evolution of what these
20
different neighborhoods are.
21
people may have argued that the meat packing
22
district was blighted.
23
would argue that Dunbow was blighted.
24
theyre the hottest, hippest places to be.
25
dont even have expensive enough clothing to go
And when you are talking about Manhattan
Ten years ago some
Twenty years ago somebody

212-962-2961
Now,
I
74
out there.
without the assistance of eminent domain, without
the assistance of the government
Okay?
So that evolution took place
MS. WYLDE:
Oh, you see thats where I
would disagree.
come back without the use of eminent domain in
downtown Brooklyn and the revitalization of the
Brooklyn Quarter I think is just not right.
10
The idea that Dunbow would have
Well, I mean
11
thats an interesting question because I happened
12
to work there at the time.
13
Brooklynite for almost a decade.
14
my experience the process was very slow but it
15
began a very long time ago.
16
economic engines that New York City has and its
17
need for artists and art space and a variety of
18
things drove the beginning of what Dunbow now is.
19
I was a downtown
That area, from
Some of the same
You are certainly correct that without the
20
other components to it it may have not become
21
what it is.
22
how blight gets to be defined and who gets to
23
define it.
24
about peoples homes, youre talking about people
25
who have for 20 or 30 years lived in communities
But the concern is about what and
Particularly when youre talking

212-962-2961
75
and suffered through the difficulties of what
that meant.
not decent access to a good grocery store,
theyve overcome that or pushed through that.
And then they learn that now that they succeeded
in doing that, they run the risk of having an
entity come along and say, by the way, that
beautiful rent stabilized apartment that you have
In Dunbow or Manhattanville that was
10
is no longer available to you because not a
11
government, a private institution has decided
12
that its needs are greater than your needs.
13
I would like you to, just if you can, to
14
briefly address that particular conflict knowing
15
that theres not a right or wrong answer here.
16
But I am interested in your perspective.
17
MS. WYLDE:
I think my perspective is on
18
longer term cycles.
19
economy is relatively good right now means that
20
were less willing to make hard decisions about
21
land use.
22
would have the issues look differently, the
23
individual projects look differently depending on
24
what you think the need is for it.
25
were talking about is when you look at a
And the fact that our
But I do think that over time, if you

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To me, what
76
blighted condition youre talking about what are
the long range needs of the City and how is this
land in this location contributing and then you
balance private and public interest.
that under the system that has evolved in New
York City with the various changes in our City
Charter, where we have the City Council voting on
every one of these decisions and weve got a
And I think
10
process that forces open review, usually involves
11
a year environmental process with a whole
12
parallel set of hearings there, I think we have a
13
very complete and good process in New York City,
14
Im not speaking of the rest of the state, for
15
New York City for making these decisions when the
16
City undertakes a neighborhood economic
17
development plan.
18
Its important to point out in Columbia
19
if the City and the City procedures dont support
20
what they want to do, they dont have the right
21
of condemnation.
22
plead their case to the City.
23
sector decision.
24
25
They really have to come and
Then its a public
Yeah, but the
problem I have is that in reality those local

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the most local level, which are the community
boards in New York City, that those decisions and
the processes that the law mandates are followed
but their opinion is regularly ignored.
dont mean ignored like, oh, gee, we dont think
youre the right things.
care that you did it.
used to chair those ULURP hearings, knowing that
And I
Its like we dont even
And so as the person who
10
it was to some degree a horse and pony show
11
because no matter how a unanimous vote in
12
opposition to a ULURP at a community board was
13
rarely given anything more than a glance by the
14
people who are making the larger decisions and
15
looking at the 50 year plan or whatever else it
16
may be.
17
So, I guess what Im saying is I,
18
personally, agree that the procedures are in
19
place but I am troubled because I know that at
20
the local level those firmly held positions based
21
on sometimes very, very important principles are
22
often ignored by the great planning minds who
23
presume that they know better.
24
25
MS. WYLDE:
But theyre political as well
as planning minds that get a vote on this.

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And I
78
think weve had the experience in the last year
or two in New York City where weve seen that the
process does have some balance and local voices
can be heard.
is pretty good.
at the issues youre addressing, particularly in
the context of whats going on nationally.
in terms of the resolution of the kind of issues
I feel that our land use process

I think that it is worth looking
But
10
youre talking about, I dont think eminent
11
domain, I mean, I dont think thats the issue.
12
Youre talking about more fundamental charter
13
issues.
14
15
16
Brodsky.
Assemblyman
Assemblyman Green.
ASSEMBLYMAN GREEN:
Yes.
The same
17
question that was placed before Mr. Cardozo Id
18
like to hear your take on it.
19
the flash point issue in Kelo, which is
20
essentially the state executing eminent domain,
21
the property being turned over to a corporation
22
and then how do we get at a fair and just
23
compensation for property that was taken from a
24
private property owner.
25
fair compensation, reciprocity, and possibly even
This gets back to
I guess the issue of

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79
reparations is something that keeps coming into
my head.
about basically is whether or not we should have
a prescription in law that essentially provides
fair compensation for property owners and the
heirs of property owners where profits are taken
from the corporation to arrive at that fair
compensation.
10
What I mean is or what Im concerned
MS. WYLDE:
Typically, its a public or
11
not-for-profit corporation often that is the
12
custodian of the property for decades before
13
there may be private developers that come in to
14
work on it.
15
how the process actually works is only in
16
exceptional cases.
So, I just dont my experience of
17
ASSEMBLYMAN GREEN:
18
MS. WYLDE:
Times Square.
Well, in the case of Times
19
Square, no.
20
long period of time.
21
started having individual negotiations for
22
developers to come in.
Theres just no way to
23
project in most cases.
I think the projects that
24
are top of mind Atlantic Yards now, for
25
example.
That was in a public entity for a

Fifteen years before you
Where youve got a developer in place,

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80
thats an unusual situation, not the typical
situation.
ASSEMBLYMAN GREEN:
4
5
case with Kelo, correct?
Connecticut.
MS. WYLDE:
7
8
know.
In New London,
It may have been.
I dont
But I dont think that was the issue.

ASSEMBLYMAN GREEN:
9
10
But that was also the
I think it was one of
the issues.
MS. WYLDE:
11
I dont think you can if
12
you ratchet up the cost of the economic
13
development project you probably will simply
14
ratchet up what the public has to contribute to
15
it.
16
term major development projects that you can
17
project and somehow bring more to the table
18
because you just dont know whats going to
19
happen.
20
usually on a phase basis over decades in terms of
21
the large ones.
22
way that you know where the markets going to be,
23
what are the resources, whats going to happen,
24
whos going to ultimately be in the drivers seat
25
because that often changes several times.
I dont think theres any way on these long
These are projects that are built
And theres just no practical

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81
mean, youre really relying on government to
carry out a plan over years that the theres no
private player to attach it to.

ASSEMBLYMAN GREEN:
But lets say, for
instance, in the case of the Atlantic Yards
project where the developer obviously had to go
back to his investors, his shareholders and to
articulate the projected profits that would be
10
made as a result of this project.
11
MS. WYLDE:
Correct?
He has to go to his banks, to
12
his shareholders, to his board and project
13
profits.
14
depend on a whole series of things happening or
15
not happening.
16
expense into those projections the chances are
17
that that will be passed along in some way, shape
18
or form, if its a public mandate to the public.
19
But those are projections and they
And if you add an additional
ASSEMBLYMAN GREEN:
But if the law has a
20
prescription that essentially says that the
21
developer, the private corporation should provide
22
fair compensation from their profits to property
23
owners where the state has taken those profits,
24
wouldnt they not project that in their proposal
25
and put that before their shareholders?

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1
2
82

MS. WYLDE:
They would.
It will simply
take out some of the community benefits youve
negotiated, some of the affordable housing youve
negotiated.
be generated.
money thats going to be generated over the site
over time and no one knows what that is up front.
Its not like more money is going to

So youve got a fixed amount of
You do your best projections.
You negotiate a
10
deal that your investors will support.
11
cant project those numbers.
12
to try to negotiate something like that, all Im
13
saying is the pie is this big because everybodys
14
got their own view of the pie.
15
what it will ultimately be, but the projection on
16
the part of all of the participants, theyve
17
decided what the pie is, theyre dividing it up
18
with community benefits agreements, and if you
19
want to compensate more for the land owner, which
20
very often is not which most often, in my
21
experience, is not a private homeowner but is
22
somebody who has other uses on the site or has
23
been holding the site inspect because they bought
24
it because they heard the government was going to
25
do an urban renewal plan, if you want to give
But you
And if youre going
Im not saying

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83
them 150 cents on the dollar, Im just saying
its going to come out of some place else.
you for your testimony today.
Thank you.
Thank
Next we have a panel with John Echeverria
from Georgetown Law and Policy Institute and
Scott Bullock from the Institute of Justice.
Wed like to limit
10
the witnesses to five or ten minutes of direct
11
testimony so theres more time for questions.
12
13
14
MR. BULLOCK:
that and will be summarizing my testimony.

15
begin then?
16
get sworn in.
17
I will just be submitting
Why dont you
Well let you begin first after you
JOHN ECHEVERRIA, having been first duly
18
19
20
SCOTT BULLOCK, having been first duly
21
22
23
24
dont you begin?
25
remarks while you start.
Mr. Bullock, why
We can look at Mr. Echeverrias

We can multitask here.

212-962-2961
MR. BULLOCK:
Thank you very much.
84
My
name is Scott Bullock.
Im Senior Attorney with
the Institute for Justice in Washington, D.C.
And thank you for the opportunity to testify
today.
case and what I think should be the Legislature
in New Yorks proper response to the decision,
and then will be submitting written testimony
I want to talk briefly about the Kelo
10
with some more specific comments on some of the
11
legislative proposals shortly.
12
The Institute for Justice, where Im an
13
attorney who represented the property owners in
14
the landmark case of Kelo v. New London, I argued
15
that case before the Supreme Court and we
16
represented the property owners from the trial
17
court up to and including the U.S. Supreme Court.
18
And Im happy to report that theyre all still
19
in their homes and enjoying the homes that they
20
know and love so dearly and we are fighting hard
21
to allow them to hold onto their homes, despite
22
the loss in the court.
23
They are true American revolutionaries.
24
They have touched off a controversy now and have
25
put into the public eye an issue that had been

212-962-2961
85
bubbling for a number of years, but its not put
to the national perspective that it has been
placed in now as a result of the Courts
outrageous Kelo decision.
I think one would be hard pressed to find
a Supreme Court decision that has generated such
uniform outrage across the country and across the
political spectrum.
10
11
Polls are overwhelmingly
against what the court decided in the Kelo case.

And, thankfully, Legislators throughout the
12
country are responding to this and looking
13
seriously at changing their laws.
14
speakers previously mentioned, just last night in
15
Washington, the U.S. House of Representative
16
overwhelmingly voted to strip federal funding for
17
cities that use eminent domain for private
18
development and to show the range of support that
19
stopping eminent domain has, the Congress passed
20
that.
21
376 to 38.
22
across the political spectrum to end eminent
23
domain abuse and to essentially show Congresss
24
strong disapproval of the Kelo case.
25
As one of the
The House of Representatives passed that

So it was clearly a bipartisan effort
In Kelo, the Court held that private

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86
economic development alone is a public use and
that the Fifth Amendment provides very little, if
any, protection to property owners to face the
loss of their property for private economic
development.
OConnor, the specter of condemnation now hangs
over all property.
Ritz Carlton.
In the words of Justice Sandra Day
A Motel 6 can be taken for a
Any home can be taken for a
10
shopping mall.
11
factory.
12
OConnor was talking about.
13
examples that we documented in a report that we
14
did just a couple of years ago called Public
15
Power/Private Gain, where we documented over
16
10,000 instances of real or threatened private to
17
private condemnations of property.
18
unfortunately, New York is a state that
19
desperately needs eminent domain reform because
20
the power is abused in this State.
21
Any farm can be taken for a
Those arent hypotheticals that Justice

Those are real world
And
Like Connecticut, New York allows eminent
22
domain simply for private economic development,
23
even in the absence of a finding of blight.
24
needs to be changed.
25
That
That needs to be addressed.
And we encourage the Assembly to pass

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87
sustentative, not cosmetic, eminent domain
reform.
to look at a serious proposal is the legislation
that just passed the U.S. House of
Representatives last night.
legislation that truly does address the problem.
What it does is it defines economic development
and says, essentially, the Assembly was going to
And I think an excellent place to start
It is solid
10
pass something like this.
11
cannot be used simply for the generation of more
12
tax revenues or job creation or the
13
revitalization of the economy.
14
outright, which is what the court allowed for in
15
the Kelo case.
16
just says that if a city does this theyll lose
17
their federal funding.
18
in New York, you could simply prohibit these
19
types of takings.
20
That eminent domain
It prohibits that
In the federal legislation it
But if it was legislation
The other thing that the legislation does
21
is it puts a real definition to blight and what
22
are blighted areas.
23
condemn property that is truly blighted or is it
24
an example, as blight laws have been abused in
25
the past where the government is simply trying to
And can the government

212-962-2961
88
get property for economic development and abusing
the blight laws by saying that a particular
neighborhood is blighted even though it would not
meet most peoples definition of a blighted
neighborhood.
blight.
falling down, that are truly in disrepair that
the community wants to revitalize, but it does
The federal legislation defines
It allows it for properties that are
10
not use it simply as a tool to gain property for
11
private economic development.
12
So I would encourage this Committee and
13
other members of the Assembly to look at the
14
federal legislation that was passed that can
15
serve as a model, I think, for eminent domain
16
reform throughout the country.
17
I would just like to add a couple of
18
thoughts in response to some of the matters that
19
I heard or in response to some of the things that
20
you hear when people address the Kelo decision
21
and about why defenders of eminent domain think
22
that this is necessary to preserve in something
23
that the government should not change.
24
25
First of all, eminent domain for private

economic development is simply not necessary.
212-962-2961
89
The former speaker here said that eminent domain
was simply one of the tools that they used in the
past for private economic development.
think its important to point out that changing
the law to prohibit the use of eminent domain for
private economic development would not in any way
undercut the myriad ways that government has at
its disposal to encourage economic development,
10
to incentive cities and other municipalities to
11
do economic development projects, to even have
12
public/private partnerships.
13
thing that they cannot do which a vast majority
14
of Americans are opposed to is to take property
15
from one private owner and hand it over to
16
another private owner.
17
prohibited under the Constitution, unfortunately
18
the court got that wrong, most Americans find
19
that concept deeply offensive and it should stop.
20
And I
Simply the one
Not only should that be
But the good news is that eminent domain in a
21
vast majority of these cases is simply not
22
necessary.
23
country every single day without the use of
24
eminent domain and it will continue if the
25
Legislature prohibited the use of eminent domain
Economic development happens in this

212-962-2961
for private economic development.
90
One of the most interesting books that I
saw in preparing for the Kelo case was a book
that was cited actually by the other side in the
briefs that were filed before the court, and it
was a book called Architectural Holdouts.
was a book about building in New York City,
perhaps the most densely developed area in the
And it
10
country, if not the world.
11
people can develop even if there is some
12
recalcitrant holdout that might be trying to stop
13
something.
14
this, because the response you always here is
15
what about the holdout.
16
real problem.
17
their homes or hold onto their small businesses,
18
economic development can happen.
19
actually demonstrated that in something like New
20
York and actually the holdouts had led to some
21
pretty interesting architectural designs and
22
pretty innovative ones, as well.
23
And it showed how
There are possibilities of doing
Typically, thats not a
And if people want to hold onto
And this book
The last point that I want to leave with
24
you today and I think its important to
25
underscore is the problem with simply changing

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91
eminent domain procedures or allowing for more
hoops for the government to jump through if
theyre going to do an eminent domain project, is
that it does not really help the property owner.
Because in most of these cases were talking
about homeowners or small business owners that
simply cannot afford to fight an eminent domain
action.
You know, often times defenders of
10
eminent domain abuse will say, well, if the
11
procedures werent followed or something happened
12
and the private developers had too much
13
influence, well the property owners can just
14
challenge that in court and get their day in
15
court.
16
After working on these cases for years
17
and being involved in dozens of cases, I know
18
that a vast majority of property owners simply
19
cannot afford the expense of fighting an eminent
20
domain action.
21
will quickly exceed the value of the property and
22
often times people throw in the towel even though
23
they dont want to give up their property or give
24
up their business simply because they cannot
25
afford the massive legal expenses that go in to
The costs of the legal battle

212-962-2961
92
holding onto your property because they have to
pay a lawyer out of pocket.
for Justice, even though we try to help as many
property owners as we can fight eminent domain
abuse, we can only take on a very small fraction
of the overall eminent domain cases that happen.
And we are the only organization that actually
And the Institute
litigates these cases in court.
So thats
10
another reason why it is very important for the
11
Assembly to pass substantive eminent domain
12
legislation that stops something that a vast
13
majority of Americans oppose.
14
15
16
MR. ECHEVERRIA:
17
opportunity to testify.
18
up to New York from Washington, D.C. to be here
19
today.
20
my own behalf, but on behalf of the Natural
21
Resources Defense Council.
22
with Assemblyman Brodskys injunction, I will try
23
to be very brief.
24
25
Thank you.
Thank you for the

I am delighted to come
Im pleased to be testifying not only on
And in accordance
I know essentially nothing about New York

law.
Im not familiar with many of the acronyms

212-962-2961
93
Ive heard today, so dont ask me about any of
those subjects.
about the takings issue of eminent domain, and I
will try to speak generally about those issues
from my from a national perspective on this
issue.
8
9
I pretend to know something
I want to very briefly address four

topics.
One is the Kelo decision.
Secondly, I
10
want to talk about the rationales for the use of
11
eminent domain and the benefits of the use of
12
eminent domain.
13
the understandable concerns that the use of
14
eminent domain raises and the policy solutions
15
that that suggests.
16
quickly tick off some general ideas I have about
17
how the eminent domain process can be reformed to
18
address the very legitimate public concerns.
19
First of all, let me start with the Kelo
20
decision.
21
Thirdly, I want to talk about
And, finally, I want to very
It is popular in some circles to attack
22
every judicial decision for which a politician
23
disagrees as an example of outrageous judicial
24
activism.
25
Exhibit A in that phenomenon.
Unfortunately, the Kelo decision is

Scott described

212-962-2961
94
the Kelo decision as an outrageous decision.
were on opposite sides of the case.
was a wonderful decision.
correctly decided, and I thought it was a model
of judicial restraint.
We
I thought it
I thought it was
What the Supreme Court said is the
Constitution does not ban state and local
governments from using the eminent domain power
10
for economic development purposes.
And in
11
reaching that result, the Court, in every
12
conceivable sense of the term, acted in a
13
restrained way.
14
the best understanding of the language and
15
original understanding of the public use
16
requirement of the takings clause.
17
was consistent with over 100 years of Supreme
18
Court precedent.
19
acknowledged that they would have to jettison
20
prior decisions, including prior decisions they,
21
themselves, had written in order to reach a
22
different result.
23
the decision does is it says its up to the
24
Legislatures, up to Congress, and up to the State
25
Legislators to place what limitations they wish
Its decision was consistent with
The decision
The dissenters in the decision
And, most importantly, what

212-962-2961
95
on the power of eminent domain.
has always been and that is how it is after Kelo.
That is, as it
And to describe the Kelo decision as an
outrageous judicial interference with the
political process strikes me as just bizarre.
If anything, if anything, the Kelo
decision actually narrowed the permissible scope
of the eminent domain power.
If you look at the
10
famous Berman v. Parker decision, a famous urban
11
development decision in the 1950s or a later
12
case out of Hawaii, the Supreme Court articulated
13
an enormously differential standard about how
14
eminent domain power should be reviewed by the
15
courts.
16
court adopted, the majority of the court adopted
17
a much more skeptical position on how eminent
18
domain ought to be exercised and emphasized that
19
an A to B transfer simply for the purpose of
20
benefiting B is not permissible under the
21
Constitution, and said that they were willing to
22
uphold the use of eminent domain, as in the case
23
in New London, because there had been a very
24
deliberate process in which there was a plan, in
25
which the City Council signed off that the City
By contrast, in the Kelo decision the

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96
was trying to address a real economic need.

Let me talk about why the eminent domain
3
4
power is needed.
The basic problem is one of the
holdout.
domain project in my neighborhood in Washington,
D.C. involving our new stadium.
Well, why would you need the eminent domain
power?
I was interested in a recent eminent
I was curious.
I went up to the title office and I
10
pulled the land record for that site.
11
its typical of other areas in D.C. and other
12
areas in New York City and other areas of New
13
York State with enormously divided property
14
ownership.
15
a piece of paper and you say well if the City,
16
the State or a developer is trying to put
17
together a large scale project, trying to get all
18
those land owners to work together is either
19
impossible, because theres going to be one
20
idiosyncratic person who says Im not going to
21
sell at any price, or youre going to put a few
22
land owners in the position, after others have
23
sold out at fair market value, of being able to
24
extract monopolous profits.
25
eminent domain power, as many others have
Im sure
And you simply look at those lines on
In my view, the

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97
observed for years, is essential in order to deal
with a holdout problem.

Without the ability to deal with a
4
5
holdout, cities like New York are placed at an
enormous disadvantage compared to other
communities in revitalizing themselves, and
attracting jobs, and generating tax revenue.
Inevitably, developers, if unable to find
10
projects in suitable sites in inner cities and
11
inner suburbs are forced to go to the outer
12
rings.
13
concerned about this issue, because without the
14
power of eminent domain were going to see more
15
sprawl development on the outer rings gobbling up
16
vacant land that ought to be conserved when we
17
should be concentrating development in urban
18
areas.
19
This is why groups like NRDC are
Now, what are the legitimate concerns
20
that this raises?
21
reflect on it, recognize that our home is not
22
simply an asset.
23
can get for it in the open market.
24
our ticket to membership in a community and all
25
the associations we have in that community.
I think all of us, if we
Its not simply the price we

212-962-2961
It represents
Our
98
neighbors.
Our own sense of personal history.
question that taking private property is
disruptive and most especially taking private
homes is enormously disruptive.
A familiar place for our children.

Theres no
Furthermore, eminent domain projects
7
8
often single out, not necessarily one or two, but
a relatively few number of property owners and
10
say were going to select you for bearing this
11
burden.
12
government pay compensation and, in my view, that
13
the government think about paying extra
14
compensation in some circumstances.
15
So its entirely appropriate that the
So, given the special concerns that the
16
use of eminent domain raises, it seems to me that
17
the barrier, in effect, ought to be high, that it
18
ought to be reserved for great projects, and that
19
the government should make a special effort to
20
make sure that landowners whose properties are
21
taken are dealt with fairly.
22
Finally, let me just briefly comment on
23
some ideas for how to improve the eminent domain
24
process.
25
decision invites the State Legislatures and
As I said at the beginning, the Kelo

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99
Congress to address this issue.
dont agree with much that the Institute for
Justice says and does, I do think they provided a
public sense in a sense that theyve case new
light in this issue.
examined the way it should be examined, and I
think its entirely appropriate that youre
holding this hearing and thinking about changes
10
And although I
Eminent domain has not been
that should be made.
11
Contrary to Scotts position, I think the
12
primary avenue for reform lies in better process.
13
In ensuring, for example, that responsible
14
elected officials review and take responsibility
15
for the decision to use the eminent domain power.
16
That the use of eminent domain is not done is
17
not done in an ad hoc fashion but, rather, is
18
carried out in the context of a comprehensive
19
community planning effort, which is both public
20
and transparent and considered.
21
addition, that there be an additional requirement
22
that local communities, much like now under the
23
Environmental Review Statutes, communities have
24
to prepared environmental impact statements, that
25
it would make sense to prepare written analyses
And, in

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100
of the impact of proposed projects on a
community.
economic development?
terms of tax revenues?
alternatives to the use of eminent domain?
many homeowners are being affected?
their needs to be addressed?
What are the benefits in terms of

What are the benefits in
What were the
How
How will
I think all of those things are
10
appropriate in the context of use of eminent
11
domain for economic development purposes, but I
12
wouldnt necessarily limit it to that context.
13
The House bill that just passed said well, if
14
youre a utility, if youre ConEd or if youre
15
building a private toll road, well of course we
16
have no concerns with that.
17
ahead and build that.
18
constrain that in any way.
19
that a homeowner whose home is taken for a road
20
or by the utility has concerns that maybe
21
slightly different when that property is being
22
turned over to a developer for some major public
23
project.
24
and I think you have to think about reform in a
25
larger context.
You can just go
Were not trying to

But the reality is
But theyre nonetheless very serious,

212-962-2961
101
One of my favorite ideas, and I guess
2
3
this goes on sometimes and sometimes not, is to
try to seek ways of separating out the public
review process decision whether or not to do a
project, the decision whether or not to exercise
eminent domain from the process of selecting a
developer.
think, is too often developers come up with a
One of the problems in this area, I
10
good idea and basically enlist the government,
11
public officials as agents of their private
12
development plans.
13
ensure that eminent domain is used by public
14
authorities for public purposes and developers,
15
when private developers are brought in, and they
16
bring a lot of skills to the table, are serving
17
as the agents of the public and not the other way
18
around.
19
We need to reverse that and
On the other hand, Im very much opposed
20
to the approach which is followed in the House
21
bill.
22
absolute way permissible and impermissible uses
23
of the eminent domain power things that should
24
be allowed and shouldnt be allowed.
25
Im trying to sort of figure out in an
First of all, as I mentioned, I think we

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102
need reform across the board.
its a toll road or simply because the utility is
involved, I dont think we should say we have no
concerns about the taking of private property.
Also, many of the most successful eminent domain
projects today and development projects generally
involve mixed uses, whether theyre public
spaces, private spaces, commercial office spaces,
And simply because
10
theyre private residences.
11
think, want to encourage those kinds of mixed
12
uses.
13
well you can take for this purpose, and not that
14
purpose, but not for others, you defeat the
15
opportunity to pursue mixed uses.
16
We very much, I
But if you take the approach of saying
Its also, I think, very hard to draw
17
sensible lines here.
18
in Congress seems to be intent on allowing
19
opportunities for stadiums to go forward.
20
may have something to do with the fact that
21
President Bush made a fortune building a stadium
22
in Texas, relying on part on the eminent domain
23
power.
24
for example, shopping centers.
25
the Anacostia neighborhood has successfully
The Republican leadership
That
But they seem less enthusiastic about,

But in my City,

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persuaded the D.C. City Council to authorize the
use of eminent domain so the Skyland Mall can be
redeveloped so that the people east of the City
in Washington can have one sit down restaurant.
I have a hard time finding a principle line
between stadiums and shopping centers.
8
9
And, finally, if you take sort of the

categorical approach you end up with a sort of
10
strange phenomenon of saying as long as its
11
publicly owned its okay.
12
transfer that were concerned about.
13
guess, what were going to end up with is
14
publicly owned stadiums and publicly owned
15
shopping centers.
16
us want to go in that direction.
17
Its the private

So then, I
Frankly, I dont think any of
I think its a complicated question, but
18
I am inclined to support the notion of a modest
19
premium, particularly for homeowners who are
20
affected by takings of private property.
21
theres a cost involved in that and I think
22
theres a potential for abuse.
23
suggestion that Tom Merrill, who authorized the
24
brief that we filed in the Supreme Court, has
25
offered which is that the amount of extra
I think
I endorse the

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104
compensation be key to the tenure of the
landowner in the community.
there for 30 years, theyre entitled to extra
compensation.
moved into the neighborhood last month, theyre
not.
8
9
If somebodys been
If theres a savvy speculator who
Then, finally, let me just close with a

suggestion that the idea of a commission, I
10
think, is a worthy one.
11
delay consideration of the process, but I think
12
youd arrive at a much more sensible result.
13
This is a very complicated issue, and how you
14
evaluate it really depends on your sense of how
15
the world works and what kinds of results these
16
projects produce.
17
individuals who have been traumatized by the use
18
of eminent domain.
19
Not because it would
Scott cites examples of
I spoke with a couple of homeowners in
20
Norwood, Ohio who sold property under the threat
21
of eminent domain. I talked to a woman named
22
Donna Lake who sold her property.
23
sell it, but she negotiated a price and got more
24
than fair market value.
25
going to name her daughters wedding after the
She had to
And she said she was

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105
developer because she was paying with the money
she got from the sale.
were delighted to be living in a quieter
neighborhood than they were before.
Plus, she and her husband
Now, the people in Norwood who were
6
7
affected by eminent domain apparently largely
supported it.
who supported it objected to the efforts by the
There were some holdouts.
Those
10
Institute for Justice to come into the
11
neighborhood and block the economic development
12
project by putting up Institute for Injustice
13
signs on their lawns.
14
varies.
15
projects are less good.
16
have their property taken.
17
Now, I think the story
I think some projects are good.
Some are very unhappy.
Some
Some people are happy to

Some are indifferent.
But I think we need a
18
lot more facts and you need a lot more facts to
19
really make a sound decision about how this
20
process ought to be reformed.
21
And I will close with that.
22
23
24
25
Thank you.
Thank you.
Assemblyman Brodsky.
Mr. Bullock.
phrase you repeatedly use is private eminent

212-962-2961
The
domain abuse.
those?
How do I know when I see one of
MR. BULLOCK:
106
Well, the term is eminent
domain abuse.
types if misuses of eminent domain. One is when
it is used simply for private economic
development purposes, like the situation that was
in Kelo.
10
11
We use that really to classify two
What do you mean
by private economic development purposes?

MR. BULLOCK:
12
The taking is for the
13
purpose of gaining more tax revenue and creating
14
jobs.
15
targeted simply because the government thinks
16
somebody could make more productive use of this
17
property than the current owners are making of
18
it.
19
radical about the Kelo case.
20
21
And the neighborhood that is targeted it
And thats one of the things thats so
If youll help me
out here.
22
MR. BULLOCK:
Yep.
23
Objection one is
24
if the purpose of the taking is to increase tax
25
revenues and creates jobs its an invalid taking.

212-962-2961
1
2
3
Its not just a bad idea, but constitutional

value.
MR. BULLOCK:
4
5
What was the other
reason?
8
9
That was our perspective,
and we lost by one vote at the Supreme Court.
6
7
107
MR. BULLOCK:
And the other issue that we
address and that we fight against is what we
10
called basically the misuse of blight laws.
11
blight laws are abused and the real purpose is to
12
get eminent domain power to do a development
13
project.
When
The concern is not really about blight.
14
The concern is getting the property because
15
under the Berman decision by the U.S. Supreme
16
Court, if an area is declared blighted, as was
17
discussed before, then the government can use
18
eminent domain power to remove people from that
19
area.
20
21
22
For purposes other
than economic development.

MR. BULLOCK:
Supposedly the purpose in
23
that instance is to remove blight.
That was the
24
justification behind it.
25
on is that they want the land for economic
But whats really going

212-962-2961
development.
108
If a public body
comes in and seeks to create an institution that
creates enormous tax revenues and jobs, do you
object as a matter of constitutional principal?
MR. BULLOCK:
you two parodies.
If a public institution
Im going to give
Syracuse University up in
10
Northern New York and the State University of New
11
York, the public college, Syracuse is private
12
come to the Thruway Authority and say condemn
13
this land adjacent to the thruway so we can put a
14
research center on there.
15
jobs and pay enormous tax revenue.
16
constitutional objection if the State University
17
does it?
18
19
20
MR. BULLOCK:
No.
It will create 1,000
Because if its a
public use, if the government owns the land

21
separate things here.
22
then you say owns the land.
Weve got two
You said public use and
23
MR. BULLOCK:
24
25
Do you have a
Right.
You see a
different under the Constitution.

212-962-2961
When SUNY does
it, its okay.
constitutionally invalid.
When Syracuse does it, its
MR. BULLOCK:
109
Same project.
Yes, unless its authorized
for.
If the government owns the land, if it is
being done for a public use then by definition
then it is constitutional.
explicitly authorizes that.
The Constitution
So its the
10
ownership transfer that is the constitutionally
11
offensive act; its not the purpose of the
12
facility.
13
correct?
14
Theyre identical facilities.
MR. BULLOCK:
Uhm, well, sure.
Is that
And this
15
is the question that the court addressed.
16
they went through this.
17
dissent I think very carefully goes through the
18
analysis of showing what are legitimate public
19
uses and what are not.
20
owns the property, if it is for a public use,
21
then by definition it is going to be
22
constitutionally valid.
23
And
And Justice Thomas
And if the government
If the public
24
comes in and says I want to build a playground,
25
its constitutionally valid.

212-962-2961
MR. BULLOCK:
110
Yes.
But if they want
to build if Syracuse comes and says I want to
build a project that creates 1,000 jobs and pays
tax revenues, then thats constitutionally
invalid.
MR. BULLOCK:
Well, if its going to if
its owned by a private party and youre taking
10
land from one private owner and transferring it
11
to another private owner
12
13
of the constitutional defect.
14
MR. BULLOCK:
15
Thats the heart
Thats the heart of the
constitutional defect.
16
Why is that
17
relevant in practical terms in any way to modern
18
life?
19
clause to public ownership not public benefit,
20
why is that good public policy aside from the
21
victims it may create, which Ill talk about in a
22
moment?
23
24
25
If youre trying to restrict the takings
MR. BULLOCK:
Oh.
Leaving aside the
victims, heres one of the real problems with it.

If its limited to public use and true public
212-962-2961
111
uses or things that are owned by the public or
people have an equal right of access to

4
5
If I may.
Excuse
me.
MR. BULLOCK:
Sure.
You keep using the
term public use when I thought I heard you say
public ownership.
10
MR. BULLOCK:
Well, the takings clause if
11
broader.
12
public use.
13
utilities, and railroad and other such
14
institutions can receive the power of eminent
15
domain.
16
access to the railroad, to the utility line, than
17
those who have been declared
18
Its not just public ownership; its

And that is why things like
Because the public has an equal right of
And an equal right
19
of access to that research center.
20
is not barred in any way that they would not be
21
bared by SUNY, by the State University.
22
access is exactly what the government would
23
offer, why is there a constitutional defect?
24
25
MR. BULLOCK:
If the public
If the
I dont know what youre
talking about with access.
I mean, could any

212-962-2961
112
private party go into a research center and
obtain office space there?

A private parking
lot versus a public parking lot.
that.
it wants to come in and they pay a fee thats no
good.
9
10
Lets take
If the private parking lot takes anybody
MR. BULLOCK:
Thats true.
But if its a
11
public parking lot that anyone can go into thats
12
okay if you pay the same fee.
13
MR. BULLOCK:
14
15
Again, if its public
ownership theres not a constitutional problem.

16
back is why is that relevant?
17
MR. BULLOCK:
And my question
Its extremely relevant for
18
this reason:
19
with having public benefit.
20
is the public benefits that come from economic
21
development in the form of higher tax revenue and
22
more jobs, then there is no limit on eminent
23
domain authority.
24
government can always make the claim that
25
somebodys home, somebodys business would be
public benefit heres the problem

If the justification
There is none because the

212-962-2961
113
more productive and create more public benefits
if it was in the hands of a business or in the
hands of a larger business.

Surely we can deal
with a slippery slope without setting a
constitutional prohibition against anything that
is owned by a private party.
MR. BULLOCK:
Well, there can be private
10
ownership if the public has an equal right of
11
access to it.
12
That addresses the utilities.
13
14
That addresses the rail road.
And the parking
lot?
15
MR. BULLOCK:
Well, the parking lot is
16
not going to be controlled by public bodies.
17
Thats another.
18
19
MR. BULLOCK:
20
21
22
23
And the mall?
The mall is just privately
owned.
public access.
Theres complete
Whats the problem?
MR. BULLOCK:
Well, because the mall is
24
not a common carrier under the law and thats the
25
justification for it.

212-962-2961
constitutional justification.
MR. BULLOCK:
114
Thats not a
I encourage you,
Assemblyman, to read Justice Thomas dissent in
the Kelo case where he makes a very solid
constitutional argument from history, from text
about the very distinctions were talking about
here.
10
It makes absolute sense and it can be
applied in the real world.

11
So the standard is
12
private ownership is okay if its a common
13
carrier
14
MR. BULLOCK:
Right.
15
but its not okay
16
if there is equal public access if it is not a
17
common carrier.
18
MR. BULLOCK:
Theres no public right of
19
access, typically, to most privately owned
20
places.
21
thats true of Wal-Mart.
22
Costco.
23
And thats true of shopping malls.
And
And thats true of
If we condition
24
the exercise of eminent domain on that equal
25
public access, does that solve your problem?

212-962-2961
MR. BULLOCK:
No.
115
Because they are not
regulated to the extent that utilities and common
carriers are.
rail roads and utilities its not just the public
access thats there, but its the very close
regulation by public bodies.
utilities can only charge certain rates.
want to have a rate increase, they have to apply
10
for it.
11
well.
12
public bodies.
13
14
15
Because importantly for this like
So, in other words,

If they
And the same thing with rail roads as

They were very tightly controlled by
Wal-Mart is not a public body.
deregulated now.
Theyre all
Theyre all deregulated.
MR. BULLOCK:
Well, interestingly enough,
16
and possibly, and the law could change on this.
17
One example of this is in California a utility
18
company can use its eminent domain power in order
19
to condemn four utility lines.
20
a legitimate public use.
21
said we want to get into the cell phone business
22
and we want to now condemn property and lease it
23
out to cell phone companies, and the court said
24
thats not a legitimate public use.
25
They said thats
But the utility company
Mr. Echeverria, do

212-962-2961
you want to comment on this?

MR. ECHEVERRIA:
3
4
116
I was wondering why I
was here.
We often wonder
that ourselves, just so you know, when Richards
around.
8
9
ODonnell.
10
Thank you, Mr.
I appreciate it.
MR. ECHEVERRIA:
There a couple of
11
things Scott said.
12
is the government is seeking to generate revenues
13
and generate jobs.
14
breathtaking statement to say when the
15
government, the elected officials make it their
16
object to produce tax revenues to pay for
17
education, to pay for health services.
18
sort of an evil to be confronted.
19
worse.
20
that its simply a misrepresentation that Kelo
21
was exclusively about more revenues and more
22
jobs.
23
it selected an area that was adjacent to a
24
planned site that the Pfizer Corporation was
25
going to redevelop and dedicate to a research
One, he said, the evil here
It seems to me as sort of a
This is
And jobs, even
People are going to get salaries.
Beyond
Its very clear that what the city did was

212-962-2961
117
facility.
adjacent area.
want to create a public park space along the
waterfront.
hotel, residential.
area.
developer in who is selected in that instance
after the fact and then implement that vision.
10
Its simply incorrect to say that that doesnt
11
represent the public definition of a vision and
12
the public implementation of that in which
13
private parties were brought in to carry it out.
14
They said we want to redevelop this

We want to create a museum.
We
We want mixed uses commercial,

We have a vision for this
And then were going to bring a private
Whether one can draw a distinction
15
between things that are public uses and not
16
public uses utilities, I think, are a
17
fascinating example.
18
privately owned gas company in America, who
19
happens to be a staunch libertarian, has
20
reportedly bragged that his company has never in
21
its history used the eminent domain power to site
22
a natural gas facility.
23
That might be overstating it.
24
natural gas companies dont feel the same way
25
because theyve made sure theyve gotten an
The owner of the largest
That may be Hubertus.

Apparently other

212-962-2961
118
exception.
they can accommodate themselves, too, if you want
to go that way.
But the fact of the matter is that
I was talking with somebody who was
5
6
dealing with the property rights issue in Georgia
and talking to landowners and said what are the
big issues that you face as landowners?
your property rights being infringed?
How are
They said
10
our big problem is the utilities.
11
heard of the Endangered Species Act.
12
have many wetlands issues.
13
utilities who are running all these slides over
14
our property.
15
going to deal with that category, that thats
16
sort of legitimately exempt from review seems to
17
me the wrong approach.
18
Weve never
We dont
But its the
So to sort of say that were not
Finally, the Supreme Court upheld a
19
California rule that says under the First
20
Amendment theres a right of access to shopping
21
malls.
22
is sort of our town center.
23
engage in public/political debate, you have to
24
have to malls.
25
a right of access, common access to malls just as
Because in todays times, a shopping mall

And if you want to
So, in a very real sense there is

212-962-2961
119
there is a right of access to

That would
probably be implemented by the State Legislature
under that decision.
right.
Legislature, say free speech
That is not an unequivocal
Thats limited to where we, on the State
MR. ECHEVERRIA:
Supreme Court, I believe it was.
In that case the State

But it was a
10
right recognized under state law and it was not
11
an infringement on the owners private property
12
rights to implement that state law based right of
13
access to the mall.
14
I dont know how you distinguish, again,
15
stadiums versus malls, but it seems to me that a
16
mall is, in todays times, a quintessential
17
public project.
18
Thank you.
19
Mr. Lavine.
20
ASSEMBLYMAN LAVINE:
Thank you.
Mr.
21
Echeverria, is the Georgetown Environmental Law
22
and Policy Institute involved in any eminent
23
domain litigation in the State of New York now,
24
to your knowledge?
25
MR. ECHEVERRIA:
No.

212-962-2961
1
2
120

ASSEMBLYMAN LAVINE:
Oh, okay.
Mr.
Bullock, is the Institute for Justice involved in
any eminent domain litigation in the State of New
York now, to your knowledge?
MR. BULLOCK:
We are.
We are involved in
a federal case thats before the Second Circuit
that challenged the eminent domain procedures
that the Assembly actually did recently change.
10
We represent a fellow in Port Chester who had his
11
property taken for a private development project.
12
Thats our only current New York case that we
13
are involved in.
14
I mentioned, Public Power, Private Gain, several
15
examples of the private-to-private transfers of
16
property that weve been addressing.
17
ASSEMBLYMAN LAVINE:
But we list, in the report that
Now, Mr. Bullock.
18
Let me just give you an example, and this is an
19
example of something thats occurring in one of
20
the municipalities in my district.
21
A community development agency, pursuant
22
to an urban renewal plan, fully vetted before the
23
community, many years in existence, is procuring
24
land which would be, Im sure even under your
25
definition considered blighted and polluted in

212-962-2961
121
order to redevelop a creek which has been
polluted for well over 100 years.
is that the community development agency will
procure the property, some of it possibly through
the use of eminent domain and will then enter
into a land disposition agreement with a private
developer.
from your perspective, is being adhered to up
Now, the idea
Do I take it that the Constitution,
10
until the moment in time that the land
11
disposition agreement is signed?
12
MR. BULLOCK:
Uh, I dont know the
13
details of the project.
14
directly.
15
it, a truly polluted area, the government could
16
rely on its traditional condemnation power in
17
those instances.
18
the power to condemn properties that were
19
contaminated, buildings that were dilapidated,
20
buildings that were delinquent on taxes.
21
legislation that were talking about would not
22
change that.
23
that you had described would pass muster under
24
the Constitution and under the legislation that
25
was just approved by the House of Representatives
I can only comment on it
I think from what you had described
The government has always had
The
So it seems to me that the project

212-962-2961
last night.
ASSEMBLYMAN LAVINE:
122
Then let me give you
a hypothetical.
this area would qualify as being blighted under
your definition but 15 percent would not.
that 15 percent is located in little bits and
pieces within the confines of the 85 percent.
What then are the constitutional rights as you
10
view them of the owners of those 15 percent of
11
the property and the urban renewal plan, in order
12
to function, requires 100 percent usage of this
13
chunk of earth?
14
Let us say that 85 percent of
MR. BULLOCK:
And
Well, it is something that,
15
again, the legislation addresses.
16
is something that I am willing to recognize that
17
the blighted justification for the use of eminent
18
domain has been around for a long time.
19
been with us for 50 years.
20
ASSEMBLYMAN LAVINE:
And I think it
Its
Its American troops
21
returning from Europe after the second World War
22
who viewed blight here in, for example, the City
23
of Detroit and said to themselves, not much
24
difference between portions of the City of
25
Detroit and Dresden.
Fair enough?

212-962-2961
MR. BULLOCK:
ASSEMBLYMAN LAVINE:
philosophical basis.
MR. BULLOCK:
123
Absolutely.
Okay.
Thats the
That was the philosophical
basis for it.
And of course I think everybody
would agree, and I think even John would agree
with us, that the urban renewal projects at that
time, even though while largely well intentioned
10
were in many ways disasters for inner cities.
11
thats another problem that has plagued urban
12
renewal throughout all of this.
13
So
And I agree with Justice Thomas in his
14
discussion in what is the proper role of eminent
15
domain and whether it should be confined for
16
public uses.
17
situation where blight is determined on a
18
property-by-property basis.
19
ASSEMBLYMAN LAVINE:
And I would like to have a
But
So, lets assume we
20
have 15 percent of our 100 percent that doesnt
21
qualify for your definition of blight.
22
MR. BULLOCK:
You didnt let me get to
23
the but.
24
recognizing that cities do have an interest in
25
trying to revitalize truly blighted
But, as a compromise measure, in

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124
neighborhoods, then the House legislation does
address this and makes it so that a majority of
properties would have to qualify for a blighted
designation.
that was actually passed, if Im not mistaken.
But there has to be either a substantial or a
majority of the properties have to meet a
blighted designation.
I think that was the latest one
So, in that situation,
10
even under the reform legislation that was passed
11
by the House, it would qualify.
12
advocate, however, is adding something else which
13
Connecticut actually has in their urban renewal
14
statute.
15
designation, eminent domain could be used to
16
accomplish that, then there should be a
17
requirement in the law that the taking of so-
18
called non-blighted properties in an overall
19
blighted area has to be essential in order to
20
accomplish the redevelopment projects.
21
think thats important language.
22
burden is on the government to show that the
23
project will not happen unless we have the non-
24
blighted properties in an overall blighted area.
25
And what I would
If youre going to have a blighted area
ASSEMBLYMAN LAVINE:
And I
So then the
Mr. Echeverria.

212-962-2961
How
125
is the Georgetown Environmental Law and Policy
Institute funded?
MR. ECHEVERRIA:
Largely by private
foundations of various kinds that support our
educational research programs.

ASSEMBLYMAN LAVINE:
7
8
Mr. Bullock.
How is
it that the Institute for Justice is funded?
MR. BULLOCK:
The same way.
10
foundations and individuals.
11
corporations and no developers.
12
ASSEMBLYMAN LAVINE:
13
foundations?
14
us?
15
Private
Very few
Which private
Can you share that information with
MR. BULLOCK:
Its available on our
16
website.
17
from both the left and the right.
18
primary basis from support comes from
19
individuals.
20
us more than six percent of our operating budget.
21
22
23
They range from many different groups

But our
No one institution or entity gives
So its very diversified.

ASSEMBLYMAN LAVINE:
Thank you,
gentlemen.
24
25
Mr. ODonnell.
Briefly, just a

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126
couple of quick questions.
familiar with any circumstances where a private
entity went out and began acquiring a bunch of
property in order to let that property
deteriorate in order, therefore, to qualify for
blight?
that ever happening?
MR. BULLOCK:
Do you have that?
No.
Mr. Bullock.
Are you
Were you aware of
Im not personally
10
aware of that.
11
of the problems with blight laws is the blight
12
designations that are imposed upon certain areas
13
of the city are open-ended and people feel like
14
if the government can take my property in a
15
blighted area, I have no incentive to invest in
16
it, to maintain it, to do something like that.
17
So even though it might not be blighted
18
originally, the blight designation itself
19
actually contributes to the deterioration of the
20
neighborhood.
21
problem with the abuse of blight laws.
22
What I think has happened and one
And I think that thats another
Mr. Echeverria, I
23
want to thank you for your comprehensive
24
testimony that you provided in writing.
25
support one of the bills that I actually have

212-962-2961
You
127
proposed to the Assembly, and I can use all the
help I can get to get my bills passed.
appreciate that.
about a hypothetical in terms of what the
private/public conflict is in some places.
So I
But let me ask you a question
In the area that I referred to earlier,
there are public streets, there is access.
can drive on them.
You can walk on them.
You
You
10
could even go up and put your toe in the Hudson
11
River from them if you wanted to do so currently.
12
A private university wants to extend their
13
campus to it, which would essentially permit them
14
to put a fence around that area preventing me, as
15
a member of the public, from walking on it,
16
driving on it, or sticking my toe in the Hudson.
17
Do you find that troubling at all?
That in
18
terms of the public/private debate that this
19
eminent domain can be used to sort of deprive me,
20
as a member of the public, from access.
21
just say I dont be that they will end up doing.
22
They dont want to do that.
23
permitted to do that.
24
at all in your viewpoint?
25
Let me
But they would be
Is that troubling to you
MR. ECHEVERRIA:
It is troubling for

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128
various reasons.
because theres a law in legal tradition of
recognizing public rights in waters and public
rights of access to waters.
owns the water and owns the riverbed.
notion that the public is being denied access to
its own property seems to raise special problems
for me.
10
I guess most particularly
The public generally
So the
Well, but what
11
the eminent domain the way it would have to
12
work is it would have to transfer this property
13
which currently has public streets on it and
14
public sidewalks on it, as well as privately
15
owned buildings, to somebody who had the ability
16
to put a fence around it and say thats no longer
17
a public street, thats no longer a public
18
sidewalk, thats now part of our property and if
19
you dont have a proper I.D. card youre not
20
allowed to walk here.
21
MR. ECHEVERRIA:
I dont know the
22
particulars of the situation or the particulars
23
of New York law, but other states have said that
24
attempts by local governments or the legislature
25
to limit access to public waters may violate the

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129
public trust doctrine and may go beyond the
legislative powers.
be a basis for challenging an attempt to use the
eminent domain power on that one.

6
7
It may be that there would
Thank you very
much.
Mr. Brodsky.
Mr. Bullock, if
10
there is an adequate and fair determination of
11
blight on a particular parcel, do you still have
12
a constitutional objection to the use of eminent
13
domain for economic development in which title is
14
passed to another private party?
15
16
MR. BULLOCK:
Do I have a constitutional
objection to it?
17
18
MR. BULLOCK:
Yes.
Under my understanding of
19
the Constitution I would.
20
think that it is a compromise measure because of
21
the long history of urban renewal programs and
22
the concern about truly blighted neighborhoods
23
that we would support legislation that prohibited
24
the use of eminent domain simply for private
25
development projects and actually allowed it only
But, as I said, I

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130
for truly blighted areas, where the neighborhood
wants to have it revitalized.

Do you understand
the concern that that leaves rich people alone
for the exercise of a Constitutional power?
should we do that?
8
9
MR. BULLOCK:
Why
Its interesting you should
mention that because I dont really understand
10
that argument.
11
from eminent domain.
12
going to be used the wealthiest of neighborhoods.
13
Rich people are always protected

Eminent domain is never
Should we as a
14
matter of law forbid it rather than simply just
15
recognize the practicality?
16
blight theory does.
17
legally impossible to exercise that power in
18
areas that have wealthy communities.
19
MR. BULLOCK:
Thats what the
The blight theory says it is
Well, not only just wealthy
20
communities where its never used anyway.
21
cannot be used in middle class neighborhoods and
22
in working class neighborhoods.
23
tell you the hypotheticals are interesting.
24
like them and its important to fine tune this,
25
as well.
But it
And I got to
But, the eminent domain cases that

212-962-2961
131
were involved in, its not the situations that
weve been addressing here and Ive addressed in
other legislative testimonies.
neighborhoods being taken for lifestyle centers.
Its
Its small businesses being taken for larger
businesses.
Its those types of situations.
And
the neighborhoods that are targeted are typically
those that happen to have nice views of the
10
water, and they happen to have access to
11
highways.
12
typically targeted.
13
to point out, if you had a truly definition of
14
blight and you had areas like in Philadelphia
15
where you have largely abandoned properties and
16
properties where people are really crying out for
17
economic development, eminent domain could still
18
be used in those areas, and it would not really
19
target the poor neighborhoods.
20
target those areas that the community wants to
21
have revitalized.
22
23
Those are the neighborhoods that are

And I think its important
It would really
If Justice Thomas
decision was the law, however, it could not.
24
MR. BULLOCK:
25
a property-by-property basis.
It would have to be done on

Thats right.

212-962-2961
132
Let me ask you
sort of a related question.
basis for your position on eminent domain linked
at all to your views on regulatory takings?

MR. BULLOCK:
No.
Is your theoretical
And interestingly
enough, I disagree with John in regulatory
takings.
is that you can be in favor of a strong public
But I think whats important about this
10
use clause and still think that regulatory
11
takings should be given a very narrow definition.
12
And weve worked with people who believe that
13
very thing because theres a lot of people who
14
are concerned about takings of private property
15
that would disagree with typical property rights
16
advocates on the issue of regulatory takings.
17
18
of the Oregon initiative?
19
MR. BULLOCK:
We were not involved.
20
typically dont do that.
21
in that.
22
23
24
25
Are you supportive
So we were not involved
Is it your opinion
that that was a good initiative?

MR. BULLOCK:
We
I havent looked at it
closely enough to know the details of it.

212-962-2961
We
133
have filed briefs in port and regulatory takings
cases, and we do advocate greater protections for
that.
this issue can be separated out and would have no
impact upon the issue of regulatory takings if
the issue of private-to-private transfers of land
was addressed by the Assembly.
But I think it is important to stress that
Mr. Bullock, in
10
his earlier testimony, Mr. Echeverria,
11
characterized things short of the position
12
advocated as cosmetic.
13
now considering is the suggestion for a property
14
rights ombudsman, which has been tried in the
15
State of Utah.
16
or not useful idea?
17
One of the things we are
Do you find that to be a useful
MR. ECHEVERRIA:
Im told by the Utah
18
ombudsman that his program is very successful,
19
and hes produced a lot of good results.
20
intimately familiar with his work and the results
21
hes accomplished.
22
Im not
The skepticism I have is it seems like a
23
very ad hoc process in which there are sort of
24
very ad hoc conversations.
25
much of a lawyer, but I kind of like enforceable
I guess Im maybe too

212-962-2961
134
procedural requirements and sometimes enforceable
substantive standards that people could actually
go to court to enforce.
nervous about relegating people to too informal a
process.
If I could comment briefly on the blight
7
8
So Im a little bit
issue.
10
MR. ECHEVERRIA:
Please.
Im unfortunately not as
11
well informed as I should be.
12
yesterday and I have a kind of pile of amendments
13
and proposed legislation.
The House acted
This can be confirmed.
14
But my latest understanding was that the House
15
was essentially eliminating the blight exception
16
and basically saying that only in cases in which
17
theres an imminent threat to life or public
18
health could you rely on a kind of hard rationale
19
for using eminent domain.
20
it
21
22
that Mr. Bullock?
23
that?
24
25
That, as I understand
Can you confirm
Do you know anything about
MR. BULLOCK:
You know, I was up in New
London yesterday so I dont know the exact

212-962-2961
legislation that was passed.
Im sorry, Mr.
Echeverria.
MR. ECHEVERRIA:
5
6
135
I could confirm that to
you.
would be helpful to us.
MR. ECHEVERRIA:
Would you?
That
It was a little bit of
10
the nature of the coalition that was working on
11
this issue which is sort of the libertarian
12
right, if you will, and some prominent
13
representatives of the Congressional Black Caucus
14
who had a long-term sorry history of dealing with
15
blight designations were very adamant in making
16
sure that it was very much confined.
17
ranking member of the Judiciary Committee, for
18
example, is very concerned about getting a narrow
19
definition of blight.
So the
20
Under the federal legislation, my
21
understanding is that New Yorks ability to carry
22
out eminent domain the way it currently
23
authorizes under New York law would be very
24
severely constrained.
25
In my view, in an ideal world, the State

212-962-2961
136
of New York would step back, perhaps in the
context of this commission, and examine whether
or not the blight designation makes any sense.
think its a very old fashioned way to approach
the question of whether or not you should use
eminent domain.
been used in the past and could be used in the
future as an excuse for targeting lower income
10
communities, minority communities, communities
11
without a great deal of political power.
12
you have legislation or you have a constitutional
13
role that says were going to restrict all kinds
14
of use of eminent domain, but as long as you
15
could define the community as bad enough, then
16
public authorities are free to go forward with an
17
eminent domain.
18
adverse targeting effect.
19
I am very concerned that it has
So if
It seems to me it could have an
Furthermore, experience has shown that
20
the term is highly malleable and very
21
unpredictable in application.
22
based on some litigation in California, for
23
example, that the term blight has been applied to
24
properties that are it would surprise the
25
neighborhood, as well as the neighbors to
Im understanding,

212-962-2961
137
discover that this area is officially a blighted
area.
wrong question but most of the wrong questions.
Its backward looking.
And it seems to me it asks not all the
It says whats there now.
It doesnt ask what could it be.
It doesnt ask
are the homeowners are going to be relocated?
Are they going to receive just compensation or
fair compensation?
It doesnt ask whether its
10
going to be a great project.
11
that those are, if not the questions, certainly
12
centrally important questions.
13
narrowly on a blight exception, no matter how
14
defined you could avoid asking what I think are
15
the most important questions.
16
And it seems to me
And if you rely
So, if youre inclined to take a bigger
17
look at how eminent domain should be used, I
18
would think that you should look carefully at
19
whether or not blight should remain as a
20
precondition for the use of eminent domain power.
21
I heard you
22
earlier say, I believe, that you favored elected
23
officials making the final decisions.
24
mishear that?
25
MR. ECHEVERRIA:
Absolutely.

212-962-2961
Did I
Yes.
138
Mr. Bullock, do
you have a position on that or is that just
cosmetic?
MR. BULLOCK:
On the ombudsman?
On the decision
about condemnation to be made only by an elected
official or elected officials.
MR. BULLOCK:
I dont know of any
10
situations where its not made by an elected
11
official in some capacity.
12
In the State of
13
New York, under our authority system these non-
14
elected bodies who created the Metropolitan
15
Transportation Authority, among others, theyre
16
not constrained by approval by elected officials.
17
18
Is that a matter that should be corrected?

MR. BULLOCK:
Sure.
Absolutely.
I mean,
19
if there are not votes upon it, on particular
20
condemnations by local officials and only by the
21
state officials, then absolutely.
22
favor of something like that.
23
thats a good change, but its not sufficient.
24
25
I would be in
I think that
Final question.
Mr. Bullock, your Institute of Justice is

212-962-2961
139
characterized or self-characterized as a
conservative legal think tank.

MR. BULLOCK:
Well, were not a think
tank.
Were a litigation group.
describe ourselves as conservative.
MR. BULLOCK:
9
10
We do not
The people do.
I think wrongly.
We
describe ourselves as libertarian.

Does it not strike
11
you as strange that the ideological preference
12
for limited judicial activity for judges who will
13
no overturn legislative bodies has been turned on
14
its head in this case?
15
MR. BULLOCK:
Well, you know I never like
16
the term judicial activism or judicial restraint
17
because I just dont think they actually capture
18
what the judiciary should be doing.
19
use clause is an explicit part of the
20
Constitution, and if legislative bodies violate
21
it then I think the judiciary has to play a very
22
active role in overturning that.
23
you that if somebody says that this is an example
24
of judicial activism, the Kelo case, I think that
25
that is incorrect because this was a case where I
The public
I agree with

212-962-2961
140
think the judiciary failed to step up and impose
some limitations upon legislative bodies.
Thank you.
Mr. Lavine.
ASSEMBLYMAN LAVINE:
Thanks.
Mr.
Echeverria, other than for environmental
litigation is the Georgetown Environmental Law
and Policy Institute engaged in litigation of any
10
11
12
13
other issues?
MR. ECHEVERRIA:
Im sorry.
Apart from
what, sir?
ASSEMBLYMAN LAVINE:
Apart from
14
environmental issues, does the Georgetown
15
Environmental Law and Policy Institute get
16
involved with litigation of any other issues?
17
MR. ECHEVERRIA:
Well, we deal with a
18
number of environmental issues, but weve also
19
gotten involved in other issues relating to
20
regulation and management of property.
21
example, we represented the Attorney General and
22
the Governor of Hawaii before the Supreme Court
23
in the case of Lingual v. Chevron this year.
24
dealt with the authority of the legitimacy of
25
Hawaii legislation regulating the rent that oil

212-962-2961
For
It
141
companies could charge independent dealers in
order to protect consumers from high gasoline
prices.
learn that it was brought under the takings
clause of the Fifth Amendment.
that kind of claim had no business being brought
under the takings clause and were vindicated in
that view.
10
11
It claims, you might be surprised to
We argued that
Our work gets us into topics beyond,
strictly speaking, environmental law.

ASSEMBLYMAN LAVINE:
Thank you.
And Mr.
12
Bullock, what about the Institute for Justice?
13
What kind of things is that involved with?
14
MR. BULLOCK:
Well, we do all
15
constitutional litigation.
16
primarily in four areas, what we call economic
17
liberty where we challenge barriers to
18
entrepreneurship, private property rights,
19
educational freedom and First Amendment.
20
is a part of an overall, of a larger program.
21
ASSEMBLYMAN LAVINE:
And we litigation
Okay.
So this
And what
22
aspect, in particular of educational freedom is
23
the Institute for Justice devoting its
24
intensities towards?
25
MR. BULLOCK:
Weve been primarily

212-962-2961
142
involved in defense of school choice programs
that have been passed by legislative bodies.
ASSEMBLYMAN LAVINE:
Now, I want to thank
you both for being here this morning and this
afternoon.
a very charged subject.
based on the best factual knowledge that we are
able to develop.
This is historically and emotionally

And we need to proceed
Each of you has been very
10
helpful, and I think youd agree that the public
11
hearing process gives us an opportunity to vet,
12
question, and understand much better these
13
extraordinarily complicated issues.
14
But can I ask you one question?
There
15
does seem to be a little concern this morning
16
about what the United States Congress, the House
17
of Representatives has done and no one seems to
18
have a good sense or a good feel for it.
19
shouldnt say about it.
20
subject of public hearings?
21
MR. BULLOCK:
Was that bill the
Yes, it was.
The members
22
for the Institute of Justice testified at it.
23
think there was at least, Im not sure of the
24
exact number of hearings, but there were clearly
25
legislative hearings in several different

212-962-2961
143
committees, I think, in the house.

ASSEMBLYMAN LAVINE:
3
4
what do you think about that?
MR. BULLOCK:
Mr. Echeverria,
To give you a sense of how
they do it down there, the Agriculture Committee
held a hearing on the Kelo issue.
ten witnesses.
a statement about how outrageous the Kelo
They had about
Every single witness started with
10
decision was and how it was absolutely important
11
for the preservation of the republic that the
12
House pass revolutionary legislation.

Im sorry to report to you from
13
14
Washington, D.C., that the House of
15
Representatives is no longer a thoughtful,
16
deliberative body that looks at issues in an
17
intelligent way, and the legislation thats been
18
produced by the House reflects the process that
19
the followed.
20
21
22
ASSEMBLYMAN LAVINE:
shocked.
Shocked.
Im just
Thank you.
MR. ECHEVERRIA:
If I can commend
23
Congressman Nadler for his valued efforts to
24
stand up for
25
I think Mr.

212-962-2961
Bullock wants to say something.

MR. BULLOCK:
144
Well, Mr. Nadler stood
virtually alone in opposing the legislation that
was passed.
out that this had overwhelmingly broad consensus
for it.
divided city where virtually nothing happens in
the House that is bipartisan, this truly did
And I think its important to point
At a time when Washington is a bitterly
10
unite people from across the aisle.
11
dont see numbers like the ones I just read to
12
you outside of programs for childhood
13
immunization or something like that.
14
the breathe of support.
15
16
MR. BULLOCK:
17
18
MR. BULLOCK:
So it shows
Or the Iraq War.
Whats that?
Or the Iraq War.
I dont even know if the
19
numbers were high for the Iraq War.
20
not anymore.
21
And you
Certainly
To return to New
22
York and eminent domain.
23
just help clarify for me some of your responses
24
that you said to Mr. Brodsky with the example of
25
a parking facility.
Mr. Bullock, could you
You have the municipal

212-962-2961
145
parking facility, the locality built or,
actually, theres a need for a parking facility
and theres some private land that needs to be
taken by eminent domain.
has two choices, it could take the land, build a
parking lot and run it through their Department
of Transportation or whatever agency, or they can
take the land and have a private developer
And the municipality
10
develop a parking lot.
11
in that facility is going to be the same, whether
12
its a city municipal lot or private lot.
13
you again describe how you draw a difference
14
between whether that eminent domain procedure is
15
appropriate in that circumstance?
16
appropriate when its the city thats going to
17
run the lot and why not when the city is going to
18
have the developer put the risk of running the
19
lot.
20
MR. BULLOCK:
And the fee for parking
Can
Why its
Well, I think part of the
21
problem, and you might want to address this in
22
the legislation if this actually is a real issue.
23
24
25
Parking is a big
issue in New York City.

MR. BULLOCK:
Oh, sure.
Of course it is.

212-962-2961
146
But the ownership issue and that sort of thing.
And if you want to have I think the real need
for it, the real determination is from where is
this desire coming from?
decided that the public needs a public parking
lot.
8
9
Have the public bodies
true.
Theres been studies.
Assume that thats

Theres a shopping
10
area and no place to park.
11
use the municipal park thats right adjacent to
12
this land.
13
MR. BULLOCK:
Theres no place to
And its not in response to
14
a private development that just went up next
15
door.
16
Theres a desire,
17
the city wants to be able to attract people to
18
come into that community.
19
MR. BULLOCK:
Right.
20
been involved in a case.
21
law on it.
22
23
You know, I havent
I havent looked at the
I think it could be a situation where
Oh.
For example,
24
my own community of Sheepshead Bay theres a
25
desire to have people come and enjoy the day and

212-962-2961
147
parking is given as a reason why people cant
come.
The lack of parking.

MR. BULLOCK:
Right.
And I think in
those instances if the public bodies actually
then in some ways maintained control over the
parking facility and were ultimately responsible
for it, then it would qualify as a public use.
Let me give you an example of it, as well, where
10
11
I dont make it so much based upon

Its just the
12
constitutional issue that if its public
13
ownership its okay; but if its private
14
ownership its not okay.
15
fact that the Constitution allows that public
16
taking when its public ownership?
17
MR. BULLOCK:
Do you objection to the
Right now were talking
18
about policy because the court has spoken and the
19
court has made it very clear that they are going
20
to have a very broad interpretation of the public
21
use requirement of the Constitution.
22
courts have spoken and basically agree with the
23
U.S. Supreme Court.
24
about what the Legislature wants to do in
25
response to that.
New York
So now were just talking
I think it, at the very least,

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148
needs to narrow the definition of public use.

What Im trying to point out here is a
3
4
situation like a prison.
public use.
public decides that they need to have a prison,
Ill often times
8
9
10
A prison is obviously a
And if a prison is built and the
Actually, in New
York State often prisons are considered economic

development and not public use.
11
MR. BULLOCK:
That should not be
12
absolutely the justification for it.
13
course prisons now are typically run by private
14
bodies.
15
definition of public use or under the legislation
16
that was proposed, what is ultimately going to be
17
a public use.
18
Now, that would not change under our
19
good; private toll road, bad.
20
Constitutionally?
21
MR. BULLOCK:
depends on the access.
23
cases that looked at it.
25
Public toll road,

Right?
Constitutionally it all
22
24
But of
And there were actually
Equal access.
Public toll road, good; private let me rephrase

212-962-2961
that.
road, bad.
Public toll road, good; private non-toll
MR. BULLOCK:
149
Under a proper
understanding of the Constitution, correct.
But
let me address something here because, as I said
these are interesting hypotheticals and you could
always pick out the cases where its going to be
a difficult call.
That, I think no law is
10
going to be perfect.
11
law is perfection.
12
carefully crafted laws there is going to be
13
certain issues on the margin that youre going to
14
have to address as to whether or not its a
15
public or a private use.
Ninety-five percent in the

And even if you pass the most
16
17
MR. BULLOCK:
No.
No.
Nice try.
But heres the
18
important point.
19
all the cases that we deal with and all the cases
20
that you look at in the book that we put
21
together, Public Power, Private Gain, thats not
22
what people object to.
23
things like big box retail stores, lifestyle
24
centers, neighborhoods being taken for shopping
25
malls.
Heres the important point.
What they object to are
Thats where the controversy is, not on

212-962-2961
In
the issues of the
150
If you gave me a
rule that solved that problem and didnt create a
set of other problems of the kind weve been
discussing, then we might agree.
your rule goes beyond your examples and therein
is where we have a very, very, very difficult
problem.
The problem is
And I dont know what were going to
10
do.
11
forum to say 95 percent is good.
12
to offer us a rule, that rule better apply
13
intelligently across the board.
14
But I dont think its good enough in this
MR. BULLOCK:
If youre going
And I think it does.
If
15
you look at the legislation that was passed by
16
the U.S. House of Representatives, it does apply
17
in a vast majority of cases.
18
always come up with a hypothetical that somebody
19
hadnt thought of?
20
happens in the law.
21
lot clearer than most legislation that is passed.
22
Of course.
Again, could you
That always
But this rule is a heck of a
I mean, look at the Disabilities Act.
I mean,
23
reasonable accommodation and then leave it up to
24
judges and courts to try to decide what that
25
actually means.
This provides real definitions.

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1
2
151
It doesnt just say economic development, figure
it out.
provides some real teeth and substance to it and
thats why I think you can address the vast
majority of this.
Blight, figure out what that means.
It
Assuming we all
know whats in the bill, which we dont know yet,
you may be right.
10
MR. BULLOCK:
Well and I would urge you
11
also to look on our website where we have model
12
legislation that we drafted that addresses these
13
very issues, not just the House of
14
Representatives where they were changing it up
15
until the very last minute and we cant know
16
exactly what the details are.
17
legislation that addresses these very issues on
18
our website.
19
MR. ECHEVERRIA:
But we have draft
Well, let me give you
20
some examples, as I understand it, would be
21
defeated under the House bill.
22
the Baltimore waterfront, Lincoln Center and
23
Fordham University and of greatest personal
24
important to me, we have a stadium going up in my
25
neighborhood for the Washington Nationals.
The renovation of

212-962-2961
Under
152
that proposal the public would acquire the site,
build a stadium and enter into a lease with Major
League Baseball and then ultimately with the team
owners.
then lease to a private interest thats going to
make any money.
exclusion, which I havent seen yet for baseball,
and there maybe ultimately a baseball exclusion
The House bill says you cant take and
So, unless theres some
10
for the reasons that I explained, the bill, as
11
drafted, would prohibit the development of
12
baseball stadiums in the nations capitol.
13
I just wanted to
14
say I thought your testimony today was
15
extraordinary.
16
And we thank you for schlepping.
That, Mr. Bullock, is a New York term meaning
17
make the shuttle up.
18
extraordinary testimony.
19
I thank you very much for
MR. ECHEVERRIA:
I just have one last
20
though in response to the kind remarks about our
21
great contribution today.
22
modest contribution, at best, because this is a
23
very complicated issue.
24
details.
25
And I think we made a
The devil is in the
One thing that I think you could very

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153
usefully do if you were inclined to go with a
commission approach, that has occurred to me as
you were speaking, was to get me or I could work
with somebody and nominate the ten best eminent
domain projects of the history of New York State.
And Scott could nominate the ten most abusive
examples.
and information about the process that was
You could actually collect some facts
10
followed and the results achieved, talk to the
11
affected landowners, talk to the businesses, find
12
out what tax revenues were generated, what the
13
collateral benefits were and say how does this
14
process working on the ground, and what is it
15
meaning to real communities and real people.
16
only with that kind of information in hand, which
17
takes a lot of work, but only with that
18
information in had can you really make a
19
considered judgment.
20
And
With all due respect to Scott, I dont
21
think you can rely on his telephone size,
22
telephone book size compilation of the 10,000
23
eminent domain horror stories because on
24
examination they dont all turn out to hold
25
water.
212-962-2961
2
3
154

Thank you very
much.
Our next panel, we have Professor Philip
4
5
Weinberg, a Professor at St. Johns University
and Mindy Fullilove, Professor Clinical
Psychiatry at Columbia University.
8
9
10
PHILIP WEINBERG, having been first duly

11
MINDY FULLILOVE, having been first duly
12
13
14
15
Professor
Weinberg.
16
PROFESSOR WEINBERG:
Thank you very
17
much.
18
Theyre in my prepared testimony.
Im going to summarize my remarks.
19
My take on this is in between those who
20
think that Kelo was an unmitigated disaster and
21
that the worlds going to come to an end, and
22
those who applaud it as merely restating the law.
23
I think that there is a strong need for the
24
Assembly and, indeed, the State Legislature to
25
address these issues.
Theres no use talking

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155
about the Constitution for a while because the
Supreme Court has spoken, although I must say
that I disagree with the decision.
Justice OConnor had it exactly right.
thats not our issue.
be done to fix the problem.
I thought
But
Our issue is what ought to
I think what needs to be done is to
eliminate or severely curtail the ability of the
10
state and the various agencies, the IDAs and all
11
the rest.
12
perhaps the City is more hamstrung that some of
13
the other agencies.
14
and the Port Authority, and the IDAs upstate have
15
a virtually untrammled ability to exercise
16
eminent domain through economic purposes.
17
think thats wrong and I think the Legislature
18
ought to step up and limit very strictly what
19
those agencies can do.
20
And we heard from Mr. Cardozo that
But we know that the MTA,
And I
I would, in fact, limit it to blight,
21
even though Ive heard criticism of that word and
22
some of those criticisms I share.
23
eliminating blight such as was done in Time
24
Square by the City of New York was commendable
25
because there the blight really amounted to the

212-962-2961
But I think
156
danger of crime where people simply didnt want
to go to Times Square.
from going into the middle of Brooklyn and using
eminent domain to build a sports stadium and some
high rise buildings which will mostly be market
rate housing and the rest.
differentiate.
middle, sure.
Thats very different
To me its easy to
Theres always a problem in the

But its easy to differentiate
10
between those two situations.
11
pure economic development ala Kelo v. City of New
12
London or, for that matter, a sports stadium
13
whether its on the west side or Brooklyn, ought
14
to be something that the Legislature ought to
15
empower these agencies to do.
And I dont think
I share the concern about the MTA, for
16
17
example, saying well anything that we do that
18
produces revenue, because we run trains, makes it
19
okay.
20
transportation, if they want to build a new rail
21
line, fine.
22
the situation in a lot of these eminent domain
23
economic development scenarios.
24
the Legislature has to step up and limit it.
25
When theyre condemning property for
Make them sandwiches.
Thats not
And I do think
Now, when you exercise eminent domain to

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157
remove blight, when the blight is pollution, when
the blight is contamination, when the blight is a
high crime incidence, then I think its perfectly
valid to use it.
expressed by Assemblyman Brodsky and others that
blight can be misused.
talking about a working class neighborhood and in
deciding that its blighted.
But I share of the concerns
When youre simply
Bango.
Then
10
youre betting with the shirts of people who
11
ought not to be victimized by the eminent domain
12
process.
13
Thats further a concern because of the
14
attitude that the courts have where the will
15
essentially rubber stamp because the test is only
16
whether the agency acted rationally and its a
17
very difficult burden for the attackers, assuming
18
they have the funds and the time to hire lawyers
19
and attack these things, to overcome.
20
So, I have comment on the specific
21
legislation which are in my written comments.
22
Id be glad to talk about those.
23
those are my points.
24
25
DR. FULLILOVE:
But essentially
Thanks for inviting me.
Im a psychiatrist so I come at this from a

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158
completely different perspective.
this comes from the burden of disease which is
localized in some poor communities in New York
City and elsewhere in the United States.
Historically, the connection between the use of
eminent domain for urban renewal and other
processes of spatial dislocation and the
flourishing of disease in poor neighborhoods.
My interest in
So
10
I want to specifically oppose this concept that
11
the way to manage blight to is use eminent
12
domain.
13
approach.
14
I think its really quite the wrong
Our research, and weve been to many
15
studies in many cities in the United States, and
16
Canada, and Europe to examine these issues has
17
really looked at the long-term consequences.
18
starting with urban renewal in the 50s and 60s,
19
asking people, planners, advocates, historians,
20
residents, politicians what do you think happened
21
over the long run?
22
stories is that the costs are different and much
23
worse than are generally dealt with.
24
look at the results of eminent domain, we look at
25
the thing thats in the place, Lincoln Center,
So,
What emerges from these

212-962-2961
When we
159
but we dont look at what happened to the people
who used to live there and what happened to them.

4
5
In the San Juan
Hill neighborhood.
DR. FULLILOVE:
Exactly.
Where did all
those people go?
What were their lives
afterwards?
people who are displaced bearing the brunt of the
And, in fact, this issue of the
10
costs is very true.
11
them to be displaced can be compensated or is
12
compensated.
13
true for poor black people who are 63 percent of
14
the people who were displaced by urban renewal in
15
the 1950s and 60s can only move to other
16
segregated areas which are typically low on the
17
list for investment of any kind.
18
only move to areas which are likely to be sites
19
of disinvestment -- so supermarkets moving out,
20
banks moving out, businesses moving out.
21
Therefore, theyre going to crumble into blight
22
and then they will have to be moved again.
23
Very little of what it cost
Typically, and this is especially
So they can
The new application of urban renewal to
24
the new blighted area moves the same people
25
again.
So, at each of these turns of the cycle

212-962-2961
160
people are impoverished economically and
socially.
the psychological damages both the grief for
their lost neighborhood and their lost home, and
a substantial alienation from the U.S.
Government.
to the current commission, were no small part a
result of a reaction to urban renewal, worsening
10
11
They are psychologically damaged, and
The riots in the 1960s, according
the conditions of the urban poor.

This burden of economic, social, and
12
psychological impoverishment and political
13
alienation is then started again as the people
14
are moved again.
15
state and I really would like to stress that a
16
city can actually solve its problems of dealing
17
with blight by using urban renewal, pushing the
18
poor, pushing the poor, pushing the poor.
19
Because the City can actually push the poor out
20
of its boundaries.
21
another city which will then collapse and have
22
the problems of crime and disinvestment that used
23
to be someplace else.
24
some way pick up the check for this.
25
original city which got rid of its problem is
This becomes a problem for the
Then theyll arrive in
The state will have to in

212-962-2961
The
161
blameless.
detail in Newark, New Jersey, which has managed
to push its problems of crime and poverty into
the cities of Irvington and East Orange, which
have subsequently collapsed and have much higher
crime rates than Newark does at the present time.
8
9
We observe this process in great
They used to be prosperous suburbs.
Chicago is
in the process of pushing its problems out to the
10
near suburbs.
11
surrounding cities go down and I think that this
12
becomes of great concern to the state.
13
Furthermore, in all of these projects, more
14
affordable low income housing is destroyed than
15
has ever been replaced.
16
steady downward stream of the amount of
17
affordable low income housing in the nation and
18
this contributes to the problem of homelessness.
19
20
21
While the city prospers, these
Hence, weve been on
In fact, its the source of the problem of

homelessness.
The first point I want to make is that
22
the cost to the people who get displaced, and to
23
the city, and to the state far exceed whats ever
24
usually discussed or estimated.
25
costs have to do with the fact that when you do a
Much of these

212-962-2961
162
big urban renewal project you wreck a
neighborhood.
fundamental unit of social organization, a
fundamental political unit, but it also exists
because people invest their time and energy into
working together and creating self-help
organizations.
can literally find thousands of organizations in
And a neighborhood is both a
In any decent neighborhood you
10
even a very small neighborhood.
11
could up all the religious organizations, and all
12
the youth sports organizations, and after school,
13
and bridge clubs, all of these things help people
14
sustain themselves.
15
neighborhood, you destroy all of those
16
organizations.
17
disappear.
18
the enormous task of having to start over.
19
society thats rapidly moving forward, anybody
20
who has to start over is disadvantaged fairly
21
permanently.
22
By the time you
When you bulldoze a
They are not portable.
They
And, therefore, people are left with

In a
One of the things that I think is
23
essential is that we have much more appreciation
24
in the ways in which neighborhoods are the
25
cornerstone of our society and our democracy and

212-962-2961
163
we wreck them at our peril because they are hard
to replace and hard to repair.
economically, it seems to me, impossible to
replace low income housing at the rate of which
we can destroy it.
It is
So, just to further stress that blight is
7
8
a symptom, its not the disease.
disease is, in my opinion -- Im a psychiatrist
The real
10
and Im an economist - that we never have
11
investment spread evenly over the landscape.
12
theres a lot of investment right now in Times
13
Square, but theres not investment in other
14
places.
15
there isnt investment are the places where
16
theres blight.
17
we get investments spread more equitably across
18
the landscape.
19
Its not everywhere.
So
The places where
Thus, the real issue is how do
When we go into poor neighborhoods that
20
have blighted, we look at the symptom and say we
21
have to get rid of the neighborhood.
22
of the neighborhood impoverishes the people.
23
on the other hand, we can bring in investment,
24
what I have observed over, and over again is that
25
neighborhoods, because they have this wealth of

212-962-2961
Getting rid
If,
164
organizations, this wealth of history, and
because it is a center of human life, can
flourish.
see a bit of rain fall in a desert, you see a lot
of flowers bloom.
investment in a very impoverished neighborhood
can often make an enormous difference.
studied this very carefully in Harlem when Harlem
And the best analogy is that if you
So, a small amount of
We
10
Congregations for Community Improvements started
11
doing housing redevelopment.
12
how much bringing one building back on line did
13
to energy a much larger area.
14
15
It was astounding
I think that eminent domain is terrible.

Its not a solution to blight or poverty.
It
16
makes the area look better, but it doesnt help
17
the former citizens.
18
Our research would suggest that most of the
19
people who are harmed in this way who are poor
20
and especially those who are black never recover.
21
In fact, it harms them.
They are set on a permanent downward path of
22
disadvantaged.
23
aggravated by this process.
24
is a terrible idea.
25
Their disadvantage is severely

The blight exception
Mr. Brodsky has

212-962-2961
some questions.
165
Ms. Fullilove, it
sounds to me like your real grievance is against
what well call, I think we understand each
other, urban renewal.
same objections if the urban renewal were
essentially voluntary.
were offered three times the values of their
That you would have the
If people, for example,
10
homes, all sold out voluntarily, then the
11
problems that you so ably described would still
12
exist.
13
would be relocated.
14
better off economically, but not enough to
15
substantially change their individual situations
16
and lives.
17
Neighborhoods would be destroyed.
People
They might be a little bit
We are examining in this hearing the
18
exercise of the ultimately power of the state to
19
take peoples property.
20
work a distinction when the process is moved
21
forward voluntarily versus when its moved forward
22
by eminent domain?
23
DR. FULLILOVE:
Do you see from your
Absolutely.
Especially
24
for the poor and the vulnerable, and especially
25
for African Americans.

212-962-2961
166

The issue has been alluded to before.
2
3
These are people who have relatively are
incapable of influencing the political system.
So the idea that nobody would ever take the land
of people on Park Avenue, but they would take the
land of poor people, especially poor people of
color.
people are kind of putting poor people on land is
In fact, it often seems to me that poor
10
a kind of holding action.
11
to take next, so you put them there.
12
13
DR. FULLILOVE:
14
You, meaning the people
Did I just get you
people.
17
DR. FULLILOVE:
18
19
Whos you?
who have the power to do
15
16
Its the land you want
ahead.
20
Those people.
I see.
Okay.
Go
Theres a point here.

DR. FULLILOVE:
The point is that your
21
question is there a difference when its
22
voluntary and when its coercive.
23
People will agree to sell their land for a better
24
offer.
25
Absolutely.
You can make me an offer I cant refuse.
People sell at a certain point when the house

212-962-2961
167
reaches a certain amount of money and they sell
and feel good.
but neighborhoods do evolve and do change.
government coming in suddenly and saying we are
going to take this land and people feeling that
they have no effective voice in the process, what
Mr. ODonnell talked about.
vote at the local community board, but nobody
It does change the neighborhood

The
They might to get
10
listens to them higher up.
11
profound feeling of alienation and really the
12
place to see this importantly is around the riots
13
in the 1960s and in the Turner Commission Report
14
its amply documented.
15
This produces such a
And I share your
16
observation.
17
relocating people or taking their property for a
18
mall.
19
for purposes of building a hospital in a
20
community thats medically underserved.
21
have the same objection?
22
But put the case that were not
But the case that were using that tool
DR. FULLILOVE:
23
issue.
24
have been moved too much.
25
physician.
Do you
I dont think thats the
I think the issue is at this point people

Im speaking as a
More important than building a

212-962-2961
168
hospital to take care of peoples health is they
invest in neighborhoods.
sick.
epidemics of the past 20 years that Ive studied
-- the crack epidemic, the AIDS epidemic, asthma
epidemic, obesity epidemic - are related to the
destabilization of neighborhoods.
much more health by stabilizing neighborhoods
10
11
12
13
People are going to be
Theyre more likely to be ill.
The great
Youd create
than by building a hospital.

I think that weve just moved poor people
much too much.
PROFESSOR WEINBERG:
If I could just
14
chime in here for one second.
15
a big difference between a hospital or another
16
kind of a public use and the kind of urban
17
renewal that was the subject of Kelo and that
18
were talking about today.
19
Legislature has commendably known when to use and
20
when to withhold the eminent domain power because
21
Im thinking of the different, but not so
22
different, situation upstate where there was
23
concern about protecting the New York City water
24
supply, but the City was not given the power of
25
eminent domain around its reservoirs.
Of course theres
I do agree that this

212-962-2961
It was
169
told go ahead and buy land up there, but you
cant use eminent domain.
ago, but not today, to protect its reservoirs.
They used it 100 years
DR. FULLILOVE:
Let me ask
If I could just add.
University of Medicine and Dentistry, which
started out as a college of medicine and
dentistry, was really one of the things that
The
10
touched off the Newark riot of 1967, because they
11
were going to condemn a very large area of land,
12
150 acres to give it to the medical school.
13
people really profoundly object to having their
14
land taken, even for something that seems like a
15
good cause.
16
underserved community.
17
their land forcibly taken from them.
18
So,
Newark was a very medically

People dont want to have
I hate to sound
19
brutal about this, but there maybe times when the
20
overall public good may require the creation of a
21
class of people who will sacrifice.
22
recognize, as you do, that the reality of our
23
political life in this nation is that those
24
people tend to be poor people.
25
examining and hopefully weve learned something
Now, I
But we are

212-962-2961
170
from the 60s.
whether theres a way to use the tool without
creating the outcomes you so vividly describe.
So, its something were thinking about.
know from the point of view of a psychiatrist
whether we need the help.
little counseling here.
And what were wrestling with is
DR. FULLILOVE:
I dont
I mean, we may need a
Eminent domain is an
10
important tool.
11
employed without an adequate cost accounting,
12
its improper.
13
been appropriate.
14
peoples lives, youre going to impoverish them,
15
and youre going to make them permanently unable
16
to participate in the economy, what are the costs
17
to the state in doing that?
18
19
When it doesnt take when its
The cost accounting has never

So if youre going to destroy
Could you give us
a list of what you view as compensable costs?
20
DR. FULLILOVE:
21
I would be happy to.

Would you?
That
22
would be very helpful.
23
Mr. Bullocks view of the legal issue which is it
24
is the transfer of private property to private
25
property is a constitutional infirmity.
Professor, I understood

212-962-2961
What is
171
your constitutional objection to the use of
eminent domain for economic development purposes?
PROFESSOR WEINBERG:
I dont think its
purely a question or even primarily of public
versus private because as even Mr. Bullock
conceited, and I part company with him in most
areas of life and law, but obviously railroads
and utilities have to have the right or it would
10
take a corkscrew shaped railroad to get from New
11
York to Buffalo if they didnt have the power of
12
eminent domain.
13
Its not a question of private.
For
14
example, in your parking lot example, or
15
Assemblywoman Weinsteins, I would regard that as
16
exactly the same.
17
parking lot to serve the downtown shopping area
18
or Sheepshead Bay where people like to go to eat
19
seafood and the rest, to me it doesnt make any
20
difference at all whether its a private
21
22
23
If its a public use to have a
Then whats your
constitutional objection?
PROFESSOR WEINBERG:
My constitutional
24
objection is to expanding public use and now, of
25
course, were talking about the Legislature as

212-962-2961
172
the court invited in Kelo stepping into the
breach which the court did not

What should we not
permit as a matter of law in New York, the use of
eminent domain for economic development?

PROFESSOR WEINBERG:
I would say economic
development has to be limited to situations where
theres blight narrowly defined to include
10
pollution, contamination, Times Square in the
11
70s, but not viable just because they happen to
12
be poor, just because they happen to be minority,
13
tough luck neighborhoods.
14
troubles me.
15
And thats what
If I could show
16
you a huge economic development project where we
17
would agree there were huge benefits to providing
18
jobs, jobs at all income ranges and that there
19
was complete public access and it was on Park
20
Avenue, you would not want us to use the power of
21
eminent domain to create that project.
22
PROFESSOR WEINBERG:
Thats exactly
23
right.
24
Supreme Court of Michigan, in a shocking case
25
thats been overruled, the so-called Pulltown
And let me give you an example.

212-962-2961
The
173
case, allowed, as Im sure many of you know,
allowed the City of Detroit to condemn property,
not blighted property at all.
class neighborhood, viable neighborhood, to build
a GM assembly plant.
its going to bring in jobs and ratables and so
on.
take your poison.
It was a working
And the rationalization was
It will benefit the whole city.
And so just
I think that was correctly
10
overruled much later.
11
and the Legislature has to step up and draw a
12
line between pure economic development and public
13
use.
I think we can draw a line
14
15
the public not benefit to the public.
16
PROFESSOR WEINBERG:
Public use, use by
I think its public
17
benefit but that has to be narrowly because
18
semantically public benefit would include the GM
19
plan and the shopping mall.
20
You can write a
21
definition I invite you to inform the committee
22
members of your definition of public benefit that
23
can be included in the statute.
24
helpful.
25
PROFESSOR WEINBERG:
It would be
Ill get back to you

212-962-2961
on that.
174
Last question.
Weve also looked at what we referred to
dismissibly as cosmetic changes such as having
the power exercised only by elected officials,
not by unelected bureaucracies.
opinion as to whether thats a good idea?
PROFESSOR WEINBERG:
Do you have an
Yeah, thanks.
First
10
of all, its obviously better to have
11
accountability and I share the concern thats
12
been expressed about public authorities acting
13
without the approval of elected officials.
14
that would help.
15
the Justice OConnor dissent pointed this out in
16
the Kelo case, that its not a panacea to have
17
elected officials because frequently elected
18
officials are going to be on the lets throw out
19
these people and develop for economic benefit
20
alone.
21
Carlton.
22
turning into the Pfizer Development.
23
think its a cure all to say that elected
24
officials have to sign off because sometimes
25
theyre going to be wrong and procedural
Sure
But in the end, I think, and
The Super 6 turning into the Ritz

Mrs. Kelos house and her others

212-962-2961
So I dont
175
safeguards are not sufficient protection.
they help.
a substantive safeguard here that public use has
to be defined the way I believe the Constitution
intended that it be defined, and which any way
the court has allowed the Legislature to define.
Sure,
I think in the end theres got to be
Thank you.
Mr. OConnell.
10
Yes.
Perhaps if
11
they made all Motel 6s Ritz Carltons but you
12
still charged Motel 6 prices that would qualify
13
as a public benefit.
14
questions.
15
Let me ask you a couple of
Im obviously shocked and discomforted by
16
the notion that I would agree with Judge Thomas
17
about anything.
18
make are this.
19
distinction.
20
to us when you give that to us.
21
examples that I gave about the ability of a
22
private organization to acquire land through this
23
process that would permit them to then put a
24
fence around it when it used to be land that you
25
were allowed to walk on.
The two points I would like to

One is the public/private
How you define them will be helpful

The previous
Is that something that

212-962-2961
you were troubled by?

PROFESSOR WEINBERG:
176
Yes.
I happen to
share my friend John Echeverrias point about the
public trust doctrine probably being the
safeguard in the case of waterfront property.
But, of course, the problem is broader than that.
And I very much share the concern that shopping
malls and private sports stadiums operated by
10
private hugely lucrative companies are not public
11
uses.
12
Dr. Fullilove, I
13
want to thank you profoundly for being here
14
because your perspective is very refreshing.
15
Because I agree with you; I dont believe the
16
costs are every properly calculated.
17
like for you to just comment, if you could, on
18
the distinction, the history of what eminent
19
domain was, was taking vacant land in a field
20
somewhere because you needed to put up a highway
21
or you needed to run power lines.
22
from where people live.
23
the last 40 or 50 years is the use of eminent
24
domain to take away property in a variety of
25
circumstances where people are densely populated
I would
So, far away
What we dealt with in

212-962-2961
177
and they utilize the communities differently.
And, so, in the example of you can eventually
charge enough money or this being an offer you
cant refuse, if you are an apartment building
owner and you are given enough money, youll sell
your apartment building.
building owner is compensated.
who fill the apartment building who contribute to
So the apartment
But the people
10
the life in the community, those people are not
11
compensated in eminent domain takings.
12
those people whose lives are disrupted and I
13
believe that youre entirely correct.
14
about moving checkers around the checkerboard
15
than in ever, in fact, addressing the issues
16
where these people live and how their lives are
17
negatively affected.
18
or information that you could provide to the
19
Committee, Id be very appreciative.
20
And its
Its more
So if you had any studies
DR. FULLILOVE:
I would certainly agree
21
with you.
22
compensation has to go far beyond the property
23
owners and really has to consider what are the
24
costs of wrecking the neighborhood.
25
believe in democracy, we would wreck
The issue of just and fair

212-962-2961
If we really
178
neighborhoods very cautiously because they are
the cornerstone of democracy.
I personally believe that the founding
fathers, many of whom had come over from England,
had actually lived eminent domain because of the
Enclosure Acts and they knew perfectly well what
they were talking about when they said public use
and not private profit.
The Enclosure laws were
10
about taking common land and giving it to private
11
landowners.
12
and they were completely against this idea.
So I think they knew perfectly well
13
14
ASSEMBLYMAN LAVINE:
15
Mr. Lavine.
Thank you.
Dr.
Fullilove, am I pronouncing your name correctly?
16
DR. FULLILOVE:
17
ASSEMBLYMAN LAVINE:
Yes you are.

Good.
Let me just
18
offer a little different perspective, although
19
the philosophy will remain the same, from my
20
colleague Mr. ODonnell.
21
the Midwest the term railroaded, as we know it,
22
meant the railroads came in and knocked you off
23
your property but those are ranchers and cowboys
24
out there.
25
Having grown up out in
I respect tremendously your observations

212-962-2961
179
on the misuse of eminent domain over the years.
Eminent domain used as a guise or a ruse for what
we might term, I guess the old term would be
social engineering has hurt us.
tremendously.
It hurts us today.
tremendously.
Especially when it has moved
members of a population who have been moved far
too often in our history against their collective
10
It hurts us
Historically
or individual will.
11
Im trying to just understand part of
12
your point about the use of eminent domain.
13
you against its use categorically across the
14
board ever?
15
DR. FULLILOVE:
Are
I am against wrecking
16
neighborhoods categorically ever.
17
we wreck neighborhoods under the guise that they
18
are blighted because we have disinvested.
19
think that a neighborhood is a historically
20
involved entity thats precious and that we
21
should nurture them.
22
evolve.
23
collapse.
24
more organic urban development where you nurture
25
whats there.
I think that
They will change and
But if we didnt disinvest they wouldnt

I believe that we should be doing much
Columbia University owns half the

212-962-2961
180
buildings in Manhattanville.
build really an urban campus thats interspersed
with the other buildings?
and storage company have to go?
next door to the University?
University be part of the City?
much more organic development.
land.
Why cant they
Why does the moving

Why cant it be
Why cant they

That would be a
They own a lot of
Why dont they build on what they own?
10
Why do they have to take everybody elses?
11
really because they want to make a pseudo
12
enclosure.
13
but there will psychologically be a fence around
14
it.
15
to keep people out.
16
that thats that.
17
Its
They may not put a fence around it,
They will have landscaped it to be a fence

Im against that.
I think
Were in a situation where for 50 years
18
weve rather blithely wrecked American
19
neighborhoods for economic development, and weve
20
created enormous disasters.
21
(phonetic) I-Go projects in St. Louis which were
22
built in the 50s, dynamited in 1972, and where
23
the land is vacant in 2005.
24
stories about that.
25
dynamiting neighborhoods and its the poor who
Think of the Pruitt
There are plenty of
Weve been very blithe about

212-962-2961
bear the burden of that.
have a new philosophy.
181
So I think we have to
If I were going to recommend anything to
the Assembly, its as you go home to your
constituents and you walk around the
neighborhoods with them, ask them how do you feel
about your neighborhood?
neighborhood?
10
What makes this a good
How can I help you make it better?
ASSEMBLYMAN LAVINE:
Do you think the
11
concept of having a state ombudsman who would be
12
sensitive to these concerns would be constructive
13
or useful?
14
DR. FULLILOVE:
You know, probably the
15
issue is that the ombudsman is really the
16
electory.
17
constituents are concerned about eminent domain.
18
Im sure you all are here because your
And I think that if you walk around the
19
neighborhoods you represent and learn about them
20
that that would be the most useful thing you
21
could do.
22
went to Mr. Brodskys district and walked around
23
neighborhoods with him and vice versa.
24
the neighborhoods of New York State and how do we
25
support all of them?
If people understood say Mr. Sweeney
What are
Its this knowledge of

212-962-2961
182
neighborhoods thats missing in our sociology.
Its missing in our legislation thats
fundamental.
ASSEMBLYMAN LAVINE:
Thank you.
if you might both address the issue of
compensation.
committee talk about some conversation above fair
I have a question,
A number of the bills before the
10
market value.
11
another 150.
12
think you alluded to, Dr. Fullilove, of
13
compensation for renters and for costs above fair
14
market value.
15
like to hear some comments about the compensation
16
issue.
17
One suggests 125 percent and

And also address the issue that I
I was just wondering.
PROFESSOR WEINBERG:
I would
My own take on that
18
is that compensation over fair market value,
19
aside from the constitutional issues that Mr.
20
Cardozo raised earlier today, is really just if
21
condemnation is invalid in the first place
22
because its purely for economic development,
23
then sugar coating it doesnt make it any better.
24
I think we have to address the substantive issue
25
and not the compensation issue.
I think theyre

212-962-2961
183
separate.
economic development for shopping malls and the
like, then uses or abuses of condemnation, then I
think we can use the time honored fair market
value without trying to impose a sweetener.
me, its as dangerous as most artificial
sweeteners.
I think if we curb the kinds of
DR. FULLILOVE:
To
It seems to me that
10
because blight really represents disinvestment,
11
the neighborhoods and disinvestment is
12
structured by any number of policies, many of
13
them historic but which are still influencing the
14
way our cities work today, redlining, for
15
example.
16
The property is undervalued.
So its fair
17
market value is undervalued and its shaped by
18
all this history.
19
get it its going to double and triple.
20
isnt the fair market value the future fair
21
market value.
22
the second issue is that what if you were to add
23
up everything thats in a neighborhood and
24
compensate the neighborhood for its contents?
25
Just as an example, but one which I find the most
So, as soon as the developers

So, why
So thats the first issue.

212-962-2961
But
disturbing from my own research.
184
Urban African American ghettos, which
3
4
were targeted for urban renewal, possibly 1,000
of them were destroyed in that period, were homes
of jazz.
neighborhoods and they were part of the jazz
circuit.
institutions and depended on being in the centers
There are many jazz clubs in the
But they were regional marginal
10
of commercial activity which were most likely to
11
be near downtown and to be bulldozed.
12
very few of those businesses could relocate and,
13
therefore, thousands of jazz clubs were wiped out
14
between 1950 and 1970.
15
art form in the United States.
16
because the artists went to Europe and to Japan.
17
And, so
Jazz almost died as an

It was kept alive
How would you value that?
That this
18
original American art form was almost destroyed
19
by the use of eminent domain, sort of blithe use
20
of eminent domain.
21
the cost to America, to New York State, to New
22
York City, of using eminent domain.
23
list.
24
25
That should be factored into
Its a big
Mary Bishop who is a reporter in Roanoke

said that you ought to include the fact that when
212-962-2961
185
you sit on your porch theres a particular way in
which the sunlight comes over your neighbors
house.
5
6
being here.
Im sorry.
7
8
9
Thank you both for
Mr. Green.
Assemblyman
Green.
ASSEMBLYMAN GREEN:
Again, going back to
10
the compensation component.
11
saying any sweetener would be a problem.
12
the context of procedural law sometimes we put
13
prescriptions in that essentially create breaks
14
on well, it could create breaks with respect
15
to, in this case, development that might lead to
16
eminent domain or abuse of eminent domain.
17
back to the concept of if, in fact, there was
18
legislative prescription that called upon the
19
developer to provide compensation which came from
20
their profits in out years, would that or would
21
that not at least create some breaks with respect
22
to developers coming into neighborhoods and with
23
respect to, lets say, the Empire State
24
Development Corporation by example, creating an
25
incentive for development thats based upon
Because youre

212-962-2961
But in
Going
186
economic development purposes.

PROFESSOR WEINBERG:
It might very well
have that effect, but I would rather get to the
source of the problem and limit or curtail the
ability to use eminent domain for those purposes
in the first place.
why should I get 100 percent of the value if its
taken for a road, or a public school, or a
Because if I lose my house,
10
transit line and 150 if its taken for a sports
11
stadium.
12
theres economic development that somebody ought
13
to reimburse.
14
and limit the economic development takings in the
15
first place, and thats the best protection that
16
the homeowner in Brooklyn or anyplace can have.
17
18
19
Im sympathetic with the view that if
But Id rather cut off the source
ASSEMBLYMAN GREEN:
So in that sense you
do favor the House bill that

PROFESSOR WEINBERG:
No.
I think the
20
House bill probably went too far.
21
theres a way to craft it so that economic
22
development takings are limited to blight, and
23
blight is narrowly defined.
24
heard, and I havent see it with my own eyes, the
25
House bill may go further in that direction than
I think
But from what Ive

212-962-2961
187
I think most of us would want to go.
ought to look at the House bill before we talk
about it too much.
ASSEMBLYMAN GREEN:
But we all
What if there was
language in the bill that also had a new
definition of blight?
8
9
That would help?
PROFESSOR WEINBERG:
Yeah.
If blighted
was limited to contaminated, polluted, high
10
incidence of crime as opposed to just poor
11
people, then you want to look at what the purpose
12
of the taking is as well.
13
ASSEMBLYMAN GREEN:
14
PROFESSOR WEINBERG:
Okay.
Shopping malls,
15
basketball stadiums, to me are not public uses
16
whether the area is blighted or not.
17
just not public uses.
18
19
ASSEMBLYMAN GREEN:
Theyre
Dealing with renters.
What if we had a clause that essentially called
20
for the developer to provide reasonable
21
comparable living space, particularly if theyre
22
developing housing?
23
space would be provided to the renters within the
24
new location that would be developed.
25
your reaction be to that?
Reasonable comparable living

212-962-2961
What would
188

PROFESSOR WEINBERG:
I think that might
make a lot of sense.
If, indeed, a commission is
set up, that would be a perfect issue for that
commission to look at.
something thats worth exploring.
I think there is
As I understand it, the tenant gets
7
8
relocation costs, but thats just the mover and
the costs of the crates and barrels.
What youre
10
talking about, and which I think agree with, is
11
something broader than that and I think thats
12
definitely worth exploring.
13
ASSEMBLYMAN GREEN:
Okay.
And then also
14
the same principles could be used with respect to
15
owners of commercial retail space, as well.
16
PROFESSOR WEINBERG:
17
18
I think so.
Yeah.
Thank you both for
being here.
19
Our final witness is Daniel Goldstein
20
from the organization Develop Dont Destroy
21
Brooklyn.
22
the Committee is accepting written testimony from
23
people who were not invited to testify if you
24
want to address the issues raised in our hearing
25
notice.
I would just let people know here that

212-962-2961
189
Mr. Goldstein, we have your written
testimony and would appreciate if you could
summarize as you reference back to the materials
rather than read word for word.
MR. GOLDSTEIN:
7
8
9
I was hoping to read word
for word.
Maybe skip a word
here or there.
10
MR. GOLDSTEIN:
11
DANIEL GOLDSTEIN, having been first duly
Ill do my best.
12
13
14
MR. GOLDSTEIN:
In my prepared remarks I
15
did not mention the word compensation at all and
16
thats because if your civil rights and liberties
17
are being abused, what are they worth exactly?
18
dont think theres a price, 150 percent or
19
whatever that theyre worth as Professor Weinberg
20
kind of said.
21
cares about the compensation.
22
figure out an appropriate compensation both for
23
homeowners, renters, and business owners.
24
surely, when the developer is going to make a
25
profit many times of what the worth is before
If the use is wrong, then who

Im sure youll

212-962-2961
But,
190
condemnation, the people condemned should share
in that.
opinion.
But compensation is not the issue in my
Its a shame that Mr. Cardozo had to
leave because Im very familiar with the Atlantic
Yards proposal and opposed to it.
he said about ULURP, about a deliberative
process, a local process does not apply to the
And everything
10
largest development plan in Brooklyn in the past
11
three decades.
12
is no overall planning process.
13
by our City Council.
14
community boards.
15
None official.
16
shows, but there is not ULURP process.
17
There is no ULURP process.
No input from city planning.
There have been some dog and pony
This project was proposed two years ago

by the developer.
19
process, the developers idea.
20
economic development plan.
22
23
There is no vote
Theres no input from
18
21
There
Its the developer driven

It is not an
I will try to go through my remarks not

word for word.
As I said, my name is Daniel Goldstein.
24
I live in Brooklyn.
25
in Prospect Heights, and it happens to sit at
My home is on Pacific Street

212-962-2961
191
center court of the Forest City Ratners Atlantic
Yards proposal which is for an arena and about
9.1 million square feet of development.
would be taken by eminent domain, and I and my
neighbors and that neighborhood have lived under
that threat for nearly two years now.
8
9
My home
Im also the spokesperson for Develop

Dont Destroy Brooklyn, which leads a grassroots
10
coalition of community organizations opposed to
11
that plan, as well as the use of eminent domain
12
for that development.
13
5,000 members.
14
amicus brief supporting the petitioner, Susette
15
Kelo.
16
Our organization has about
And last December we filed an
The Ratner plan involves three key issues
17
that weve talked a lot about here today.
18
thats the misuse of eminent domain the key
19
issues are local oversight so-called economic
20
development, and so-called blight.
21
And
I want to be clear that I dont have an
22
agenda other than advocacy for reforming New
23
Yorks eminent domain law.
24
epidemic of abuse of that law and the
25
Constitution or what was called in the 1800s the
Because there is an

212-962-2961
192
despotic power.
property rights agenda.
proponents of eminent domain, condemnation for
so-called economic development, I also do not
have a corporatist agenda.
I do not have an extreme

And unlike many of the
I truly believe that what I have to say
7
8
represents the views of the vast majority of
everyday citizens of our state and country.
This
10
is because the issue at hand is not simply a
11
property rights issue or an economic development
12
issue, but rather it is an issue of civil rights
13
and civil liberties.
14
and liberties needs to stop now.
15
The abuse of those rights
The facts on the ground in Brooklyn is
16
this.
17
skyscrapers proposed by Forest City Ratner.
18
firm has benefited from the use of eminent domain
19
for the New York Times headquarters which is
20
going up, as well as Metrotech, which was touched
21
on earlier, though not named
22
Theres a proposal for an arena and 17

That
The project proposes the use of eminent
23
domain for about 53 buildings.
24
around 800 people and 35 businesses.
25
the threat of eminent domain, Mr. Ratners firm
It would displace

212-962-2961
Wielding
193
has bought out many residents and some
businesses, but many still remain and will
challenge condemnation.
As I said, even though its the largest
5
6
development proposal for Brooklyn in at least 30
years, it completely bypasses the normal ULURP
process.
borough president, community boards, and
City Council, City Planning, the
10
community residents have no say at all in the
11
project not in the planning, the oversight,
12
approval or invocation of eminent domain.
13
is no comprehensive economic development plan.
14
The lead agency is one of the public authorities
15
or public corporations that weve talked about
16
today, thats the ESDC.
17
There
December 03 is when the project was
18
proposed or unveiled with a lot of fanfare and
19
political support.
20
official this past September.
21
years, before any official or agency has approved
22
eminent domain, an entire neighborhood has lived
23
under that developers threat of eminent domain
24
without the state or city even having the decency
25
to explain to the citizens in that footprint what
But the project was only made

So, for nearly two

212-962-2961
194
the law entails and what the timeline of that
project would be.
allowed the developer to use the states
constitutionally granted power as a threat to
block bust a community.
West Harlem with the Columbia University
expansion.
that would do the condemnation.
10
The State has, therefore,
This is also going on in
Not surprisingly, its the same ESDC
Two weeks ago I was at Senator Alesis
11
hearing on this same eminent domain issue.
12
that hearing, in the amicus brief supporting New
13
London and the responses of some of the
14
proponents of eminent domain, in the wake of that
15
five-four decision, what Ive heard over, and
16
over, and over is the extreme importance of local
17
planning, oversight and approval for development
18
plans involving condemnation.
19
sentiment of supporters of eminent domain, and
20
theyre absolutely right.
21
require that the use of eminent domain receive a
22
vote by local city councils.
23
At
Thats the
New York State must
My State Senator, Velmanette Montgomery,
24
and Mr. Brodsky have a bill that is very narrowly
25
focused that would require eminent domain in New

212-962-2961
195
York City to go through a vote of the City
Council, and I believe that that must be passed.
By the way, Mr. Brodskys co-sponsors is one of
my other local Assembly Members, Joan Millman,
whose district has a part of the Ratner plan, as
well.
That bill should be passed.
8
9
The question of public use/public

benefit, and I dont envy you having to define
10
those, but I think its simple.
11
says public use, so its public use.
12
benefit is something else, providing jobs,
13
housing, new tax revenue.
14
benefit.
15
Sure.
The Constitution
Public
Thats a public
But our Constitution says public use.

Many Americans, I believe, and Mr.
16
Bullock alluded to this about polling, would
17
posit that the abuse of eminent domain is an
18
abuse of the Constitution.
19
is that the abuse of eminent domain is an abuse
20
of power that renders the constitutional takings
21
clause meaningless and does truly threaten every
22
unconnected property owner and their tenants
23
throughout New York.
24
power is formulated by the unholy alliance
25
between government and private developers, who
And what is certain
Too often this abuse of

212-962-2961
196
are major political players or donors in a
specific city or statewide.
More often than not so-called economic
development simply means increased tax revenue
for a locality.
slope that Mr. Brodsky alluded to.
locality, what city in this country ever stopped
seeking more tax revenues?
10
But here that is a slippery

What
It never ends.
As Dr. Fullilove said, the foundation of
11
community or alluded to the foundation of a
12
community consists of homes and small business.
13
The abuse of eminent domain destroys lives and
14
those communities.
15
her book which is called Root Shock, is all about
16
that and goes in-depth about what she was talking
17
about.
18
considering reforming our eminent domain laws.
19
I dont think she mentioned
It should be read by any Legislator
I think the question what is the abuse of
20
eminent domain, I think it is like pornography.
21
You do know it when you see it.
22
pretty obvious to the citizen and the Legislator
23
what an abuse is of eminent domain.
24
of the Ratner project, the abuse of eminent
25
domain has reached, in my opinion, a corrupt
I think its

212-962-2961
In the case
197
extreme where the favoritism is blatant, the
cronyism is clear and the developer is an old law
school buddy of our Governor Pataki, one to he
projects chief political supporters.
has a cozy relationship with Mayor Bloomberg.
Just this past week if you watched the two
debates, the issue of Atlantic Yards came up in
each debate.
Mr. Ratner
Mayor Bloomberg cavalierly said
10
this project has had more scrutiny than any other
11
development project or as much scrutiny as any
12
development project in the Citys history.
13
Thats a fantasy world.
14
occurred, as I explained earlier.
The exact opposite has
15
Also, something thats very disturbing.
16
Forest City Ratner has the Atlantic Center Mall
17
and one of the tenants is the ESDC.
18
directly adjacent to this proposed site.
19
disturbing.
20
This is
Thats
Favoritism and the absence of a
21
legitimate planning process is precisely what
22
Justice Kennedy had in mind in his Kelo decision.
23
He wrote a concurring opinion which hasnt been
24
touched on here today where he wrote, Transfers
25
intended to confer benefits on particular,

212-962-2961
198
favored private entities, and with only
incidental or pretextual public benefits, are
forbidden by the Public Use Clause.
Kelo decision, Columbia Law School professor and
eminent domain expert Thomas Merrill said in the
New York Sun that, The court responded more
favorably to the New London than they would have
if it had been the Ratner plan they were
10
After the
considering.
11
Professor Miller and his colleague John
12
Echeverria, who spoke earlier, they co-wrote an
13
amicus brief for the American Planning
14
Association in support of New London.
15
that brief it stated that, The dangers of
16
eminent domain should be addressed by ensuring
17
that it remains a second best alternative to
18
market exchange as means of acquiring resources
19
by encouraging careful planning and public
20
participation and decisions to invoke the power
21
of eminent domain.
22
opinion, leaves the simple impression that should
23
be included in any reform of our eminent domain
24
law.
25
And in
That argument, in my
When there is no careful planning process

212-962-2961
199
and no genuine public participation, eminent
domain simply cannot be used.
other bill, also co-sponsored by Assemblywoman
Millman, would fulfill that goal.
comprehensive economic development plan, this
bill would eliminate boondoggle projects and
projects that use eminent domain as a first
resort, rather than a last resort.
10
Mr. Brodskys
By requiring a
But I think we need further reform.
The
11
situation Ive described in Brooklyn is in most
12
part not unique.
13
seems, from the testimony today in that there is
14
really no meaningful local input.
Although it is unique, it
15
Mr. Brodskys bill is a good start, but
16
stricter public use requirements are necessary.
17
We need to rein in eminent domain and bring it
18
back to the traditional public use meaning.
19
reform would outlaw condemnation for the benefit
20
of private developers.
21
avoid the cronyism and favoritism which pits the
22
wealthy and powerful versus the powerless.
23
Eminent domain should not be used for private
24
for-profit developments no matter what the
25
benefit is to a locality.
Such
And by doing so, it would
And certainly RFPs and

212-962-2961
200
competitive bidding should be mandated for public
project using eminent domain.
The Atlantic Yards project will use
MR. GOLDSTEIN:
Ill go through
blight and then Ill finish.
8
9
Yes.
Mr. Goldstein.
Right.
I dont
want to cut you off in making your points, and
10
perhaps if you limit yourself to some of the
11
points rather than more of the example.
12
been a bit over the ten minutes.
13
a bit over.
Youve
Actually quite
14
MR. GOLDSTEIN:
15
The Atlantic Yards project will use
Very well.
16
blight to justify the use of eminent domain.
17
This is laughable.
18
MTA rail yards, you have a handful of properties
19
that are either vacant or vacant lots or falling
20
apart.
21
properties.
22
are perfectly viable homes and businesses.
23
In a 22 acre site you have
The developer owns a number of those

But the majority of the properties
The fact that the current precedence in
24
the courts for using blight allow condemnation of
25
a whole area because some of that area is

212-962-2961
201
underutilized or falling apart, that is, really,
I think something that all of you Legislators
need to look at.
Blight needs to be clearly defined.
cases, those environmental reviews are written in
tandem with the developer and consultants.
Clearly, its to their benefit to call an area
blighted.
It needs to clearly defined.

In many
I dont think a developer should have
10
any say at all in whether or not an area is
11
determined to be blighted.
12
Ill stop there.
13
If eminent domain is going to be used, it
One last thing.
14
must be used as a last resort.
15
cases, like Atlantic Yards, like Columbia, and
16
many other cases, its the first resort and its
17
a first resort because its implied that it will
18
be used.
19
used.
20
sell their homes.
21
and then used when its invoked.
22
used as a last resort.
23
In too many
Its directly said that it will be
Because of that people are threatened and

So it is used both as a threat
So it must be
Thank you.
24
you for accommodating the committee.
25
Brodsky has a few questions.

212-962-2961
Thank
Assemblyman
202
Your testimony is
that ULURP, that this project is not subject to
ULURP.
MR. GOLDSTEIN:
Thats a big part of my
testimony.
on the use of eminent domain and the PSCB,
Sylver, Bruno, Pataki, will approve what the ESDC
approves.
10
There will be the ESCD will decide
11
correct.
12
alone.
13
Thats not
The PSCB will deal with the financing
MR. GOLDSTEIN:
My understanding is it
14
will also they will vote on the approval of the
15
final EIS.
16
If Im wrong
I think thats not
17
correct.
18
PSCB would keep fairly religiously to financing.
19
20
21
22
I dont know that its material, but
MR. GOLDSTEIN:
Then it means absolutely
no elected official has any say.

Corporation Counsel Cardozos testimony?
23
MR. GOLDSTEIN:
24
25
Where you here for
I was.
And you heard him
say that ULURP was applying to all projects in

212-962-2961
the city?
MR. GOLDSTEIN:
Yes.
MR. GOLDSTEIN:
Its absolutely untrue.

Then you disagree
with that.
MR. GOLDSTEIN:
10
11
And you disagree
with that?
203
Whats that?
Thats a yes.
disagree with it.
12
MR. GOLDSTEIN:
I disagree with it.
13
surprises me that he would be so adamant that
14
thats the case.
15
16
You
that.
It
Well clarify
Thats why were here.
17
If the site including your house was
18
exactly the same but they wanted to build a
19
hospital, would you have the same objection?
20
MR. GOLDSTEIN:
If this were what I
21
consider public use, I wouldnt be happy to leave
22
my home but I would leave it.
23
By public use you
24
mean just public ownership or do you mean public
25
benefit?
212-962-2961
204

MR. GOLDSTEIN:
I mean public ownership
and for use by the public.
A stadium and luxury
housing and commercial space is not for the
publics use.
Anything you build may benefit.
Yes, there will be a benefit.
Yes.
The Supreme Court
has made clear that public ownership is a too
limited legal concept for the purposes of the
10
condemnation law.
11
benefit.
12
are cases that came out of California and the
13
west where irrigation was a big issue and land
14
was taken essentially for the purpose of
15
providing water to somebody else.
16
taken to get to her ranch.
17
for a rule here because hard cases make bad law
18
on both sides of it.
19
not going to put a lawyers burden on you but
20
what you and your organization can be helpful
21
with is giving us something of a rule, not just
22
what you dont think the standard should be, but
23
what the standard should be.
24
the testimony today has been extraordinary from a
25
variety of points of view, Im truly in my own
Theyve talked about public
Now, Ill give you an example.
There
My land was
Now, were looking
Youre not a lawyer and Im
Because although

212-962-2961
205
mind not closer to knowing what that line is.
am not of the view that Mr. Bullock met his
burden of saying somehow the private/public
ownership issue was enough.
projects that are profit making and popular.
Profit making, popular and privately owned.
Thats not to take a position on the Ratner
project, which Im not doing.
I can conceive of
Its to say you
10
can be helpful to us by giving us a rule that we
11
can live by because we may act on this thing
12
pretty quickly.
13
I would ask you to go back and have your
14
many lawyers, I assume there are many of them in
15
Brooklyn
16
17
18
19
20
21
22
23
MR. GOLDSTEIN:
No.
This is the peoples
fight.
Distinguish
between people and lawyers.

MR. GOLDSTEIN:
Lawyers are the ones who
want to be paid and people have to pay them.

I see.
What do
you do for a living?
24
MR. GOLDSTEIN:
25
I am an activist.
Good answer.

212-962-2961
206
Thank you for your testimony today.
really, truly be helpful as we try to do
something here, not just listen to complaints to
get some sort of rules.

MR. GOLDSTEIN:
It would
I would say a bottom line
in a rule should be that any so-called economic
development project should come out of an elected
body not out of
10
I appreciate your
11
support for the procedural changes were talking
12
about.
13
circumstance.
14
at the beginning of the day.
But the rule.
You cant do it in this
Im not any closer now than I was

Thank you.
15
MR. GOLDSTEIN:
16
17
Thank you.
Mr. ODonnell.
I just want to
18
sort of inquire a little bit about the history
19
here.
Do you own where you live or do you rent?
20
MR. GOLDSTEIN:
21
22
23
24
25
I own a condo.
So at some point
did someone send you a letter saying great news.

Were going to buy it from you.
Is that what
happened to you?
MR. GOLDSTEIN:
The project was leaked

212-962-2961
207
out through rumors in the press then finally
unveiled in December 03.
went to the developer; some didnt.
contacted eventually by the developer when I
didnt go along with some of my neighbors who did
settle with the buyout.
hasnt come and said wed like no.
Theres nothing like that.
Some of my neighbors
But no.
No.
I was
The Government
No.
Theres been no
10
process.
11
meeting with the developer, what happens if I
12
dont make a deal with you and they say you will
13
be condemned.
14
official process.
15
When Ive asked the developer in
Thats the way its gone.
No
Did they
16
communicate with you and say well give you X
17
amount of dollars for your condo or did they not
18
communicate with you.
19
MR. GOLDSTEIN:
Oh, yes.
I met with the
20
representative from Forest City Ratner.
21
made an offer that Im not interested in.
22
Okay.
They
Then they
23
told you if you dont take it theyre going to
24
take the property away anyway?
25
MR. GOLDSTEIN:
At some point I was told

212-962-2961
208
that, yes.
same message.
can deal with the state who will condemn you.
I know of neighbors who have had the

Not that they would take it, you
Okay.
And so is
there any hope for you to hold onto your
apartment?
followed by those lawyers?
lawyers, too, but I very rarely get paid to do
10
11
Are there legal things that are being

Im one of those
that.
MR. GOLDSTEIN:
It wont be ripe until
12
eminent domain is invoked and then we intend to
13
challenge it.
14
opinion as very powerful.
15
will be used and we will have to argue that, and
16
I know that thats very difficult to do.
17
We look to that Kennedy concurring

It seems to me blight
Let me make a
18
couple of presumptions here and ask you what your
19
opinion is.
20
ULURP proceeding, and presuming that the
21
community board conducted hearings as required by
22
the ULURP rules and presuming that the community
23
board said we are opposed to this project, do you
24
therefore presume that when that became voted
25
upon by the city council that your position would
Presuming that there had been a

212-962-2961
have prevailed?
MR. GOLDSTEIN:
No.
209
I think the City
Council would have voted for this project.
do think that had it gone through ULURP, the
daylight that would have been shed on it would be
far greater than what has occurred.
Council would have voted on it.
would have been made to convince them that its
10
But I
I think the
Our efforts
the wrong thing to vote for it.
11
And do you
12
believe if in fact a ULURP process had been
13
followed that that would have been advantageous
14
to your position when you eventually have
15
litigation?
16
MR. GOLDSTEIN:
17
18
No.
much.
19
20
MR. GOLDSTEIN:
21
Thank you very
going back.
22
Mr. Green.
By the way, theres no
You cant now come up with a plan.
I understand
23
that.
24
what were trying to consider here, what
25
procedure safeguards could be put into place to
What I was trying to get at was part of

212-962-2961
210
prevent this from happening again.
obviously, I saw you sitting here and saw you
listen to everyones testimony.
familiar with the ULURP process and what its
strengths and weaknesses are.
really is in your particular fight what you
thought about if we try to interject additional
procedural safeguards, if you believe that would
So,
Im very
The question
10
or would not have changed where you are
11
currently.
12
MR. GOLDSTEIN:
But I do think it
13
certainly would have reshaped the project or had
14
that potential had it gone through that process.
15
16
17
and clear.
I hear you loud
ASSEMBLYMAN GREEN:
Could you restate or
18
summarize again, looking at the fact that this
19
bypassed the City that theres a different
20
process, there is no ULURP process linked to the
21
Empire State Development Corporation.
22
your druthers with respect to procedural law that
23
should be integrated into the processes of the
24
Empire State Development Corporation or other
25
public authorities, what are the key principles

212-962-2961
If you had
211
and the core values that you think should be part
of that law?
MR. GOLDSTEIN:
I dont think a project
like this should go through that state process,
unless Im misunderstanding your question.
ASSEMBLYMAN GREEN:
MR. GODLSTEIN:
9
10
11
12
should go through ULURP.
A project like this

Is that the question?
ASSEMBLYMAN GREEN:
Thats one.
What should it do?
Thats the question.
A project like this should go
through ULURP.
13
Given the fact that this project is not
14
going to go through ULURP and it is going to go
15
through state authorization because, correct me
16
if Im wrong, state authorization may not only
17
consider the financing of the project that will
18
go before the public authority control board but
19
may allow for other kinds of amendments, what
20
might you suggest to the State Legislature with
21
respect to, again, procedural law?
22
given the reality that when this project came out
23
there was no economic development planning
24
processes then. The fact that there was no ULURP
25
process, but it is going before the State

212-962-2961
I mean,
212
Legislature, this body, what would you recommend?

MR. GOLDSTEIN:
Im sorry.
going before the State Legislature?
ASSEMBLYMAN GREEN:
MR. GOLDSTEIN:
ASSEMBLYMAN GREEN:
10
It is going to go
before the State Legislature.
If it were
The financing?
The financing.
We
did not increase our borrowing ability so it will

have to go before the State Legislature.
11
MR. GOLDSTEIN:
If you say so it must.
12
My reading of the MOU doesnt say that the
13
bonding its not clear where the $100 million
14
is going to come from. Im not sure where it goes
15
--
16
ASSEMBLYMAN GREEN:
Thats exactly
17
correct.
18
basically just a memorandum of understanding.
19
was not linked to any increased authorization on
20
our part to provide for additional resources for
21
this project.
22
Thats what Im saying.
The MOU is
It
Thats the point that Im making.
MR. GOLDSTEIN:
Well, I think if and when
23
the Legislature is evaluating whether or not to
24
put $100 million or whatever into the project, I
25
think you have to evaluate the cost and benefits.

212-962-2961
1
2
213

You also need to evaluate, if you can achieve
some of those benefits without using eminent
domain at a lower cost.
truly evaluate the project.
difficult to do that at this point the way things
have gone.
question.
whether or not to fund the project as the MOU had
I mean, you mean to

I think its
Maybe Im not understanding your

If the only say the Legislature has is
10
said, I assume the Legislature needs to evaluate
11
if its worth the investment.
12
13
14
15
16
I want to thank
you -MR. GOLDSTEIN:
May I just add one thing,
and its important about blight.

17
I want to thank you for coming.
18
MR. GOLDSTEIN:
19
I was going to say
Sorry.
Its been very
20
helpful testimony.
21
process in trying to get your points of view out.
22
I appreciate your coming down to understand what
I know its been a difficult
23
we should be doing.
24
want to add, please do so.
25
If theres anything else you
MR. GOLDSTEIN:
It does seem to me from

212-962-2961
214
today that you will take a serious look at the
misuse of blight.
obviously, is very familiar with the neighborhood
and the footprint.
call that area blighted a lot of Rogers district
could be called blighted.
8
9
10
If anyone of you Roger,
Whats troubling is if you
ASSEMBLYMAN GREEN:
The area, for the
record, the area is not blighted.
For the
record.
11
MR. GOLDSTEIN:
And I appreciate that.
12
And Roger is correct.
13
Real Deal Real Estate Magazine theres a glowing
14
article about how booming that area is.
15
the buildings they got it wrong that was
16
mentioned in that article was my building, which
17
is a converted warehouse which six months after
18
it opened and people moved in, this project came
19
along.
20
has emptied out.
21
that.
22
Just this week, in the
One of
Within a year and a half, the building

Im glad to hear Roger say
If blight can be used for this
23
neighborhood, as you go eastward in Brooklyn you
24
better watch out because it will just continue.
25
Thank you very

212-962-2961
much for your testimony.

215
Thank you for
being able to be here with us.
No one else has
any questions for your Mr. Goldstein.

That concludes this hearing.
There maybe
additional hearings held in other parts of the
state.
today and participated.
10
11
I want to thank everybody who testified
(Whereupon, the Hearing on Eminent Domain

is adjourned at 2:35 p.m.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
212-962-2961
216
C E R T I F I C A T E
I, FRANK GRAY, a Shorthand Reporter and

Notary Public in and for the State of New York,
do hereby stated:
THAT I attended at the time and place above
mentioned and took stenographic record of the
proceedings in the above-entitled matter;
THAT the foregoing transcript is a true and
accurate transcript of the same and the whole
thereof, according to the best of my ability and
belief.
IN WITNESS WHEREOF, I have hereunto set my
hand this _________ day of __________, 2005.
___________________________
FRANK GRAY

212-962-2961

NEW YORK STATE ASSEMBLY PUBLIC HEARING ON EMINENT DOMAIN, Transcript, 11/4/05

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NEW YORK STATE ASSEMBLY PUBLIC HEARING ON EMINENT DOMAIN, Transcript, 11/4/05

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NEW YORK STATE ASSEMBLY

Assembly Hearing Room

Friday, November 4, 2005

EN-DE REPORTING SERVICES

EN-DE REPORTING SERVICES

LISA BOVA-HIATT, Deputy Chief

PHILIP WEINBERG, Professor

EN-DE REPORTING SERVICES

Hearing on Eminent Domain 11-4-05

This is the hearing on the exercise of

eminent domain in New York State.

Assemblywoman Helene Weinstein, Chair of the

Assembly Judiciary Committee.

this hearing, along with, on my left, Assemblyman

Brodsky, Richard Brodsky, Chairman of the

Assembly Standing Committee Corporations,

Authorities and Commissions.

Assemblyman Sweeney on my right, Chair of the

Assembly Committee on local governments.

series of hearings are also co-chaired by Roanne

Destito, the Chair of the Governmental Operations

Committee who, because of scheduling conflicts,

will not be able to join us today.

joined by one of our colleagues, Assemblyman

Roger Green from Brooklyn.

The central purpose of these hearings is

to examine the various issues raised by the

recent decision of the Supreme Court in Kelo v.

New London and whether, in light of this

decision, legislation should be enacted in New

York to further regulate the power of eminent

I think most people know that the Kelo

Hearing on Eminent Domain 11-4-05

decision reaffirmed the power of local

governments to seize private property for

economic development purposes.

approved the longstanding role of the State

Legislatures to restrict or expand this grant of

receiving testimony on the issues surrounding the

sovereign exercise of eminent domain, including

The Court also

The Committees look forward to

application constitutional standards and the role

of local government approval when eminent domain

is used by public authorities or public benefit

addressing the issue of eminent domain for

purposes of economic development, including the

use of comprehensive development plans and fiscal

to communities, such as public notice, due

process protections, as well as compensation to

adversely affected parties can be discussed.

We also welcome testimony

Further, issues significant

We have, in the Judiciary Committee, a

number of bills that further regulate the power

Kelo decision, some were introduced following

Some weve had before the

I believe on the hearing notice

Hearing on Eminent Domain 11-4-05

the list of those bill numbers is attached.

also welcome testimony on those specific

proposals before the Judiciary Committee.

I would ask people who are testifying