Kelo and Us

Editorial of The New York Sun
April 3, 2008

One of the most important Constitutional questions in the history of our Republic might be decided over a few acres of rat infested railroad yards in Brooklyn and a handful of doughty home owners who like living nearby. The question is whether the Constitution permits a developer to seize the property of the few residents continuing to live in the footprint of the proposed Atlantic Yards development near downtown Brooklyn.

The question is now pending before the Supreme Court of the United States because, as our Joseph Goldstein reported yesterday at Page 1, more than a dozen plaintiffs, including three homeowners, are asking the court to forbid their eviction in an eminent domain action being pursued to make way for the Forest City Enterprises to develop the area. The stakes don't get higher, for the individuals, for the city, and for the country.

Eminent domain became a household phrase in 2005, when the Supreme Court brushed aside the question of property rights and issued a decision, in Kelo v. City of New London, that enabled the government to seize private property not to build a highway, a school, a park, or other clearly public use, but to turn it over to private hands to further economic development. Economic development is great, but so is getting to live in the home that one purchased.

What the court had to decide in Kelo was what constituted a public purpose, for that is the only purpose for which the Founding Fathers of America permitted the government to seize property from private owners (and then only with just compensation). What good is a property deed in the first place if a developer can un-house its owner merely by convincing several public officials that a high rise or a shopping mall would fit nicely on one's property.

There's little doubt that the Atlantic Yards project, which is being developed by Bruce Ratner, would bring a host of benefits to Brooklyn, such as a basketball team, housing, office space, some daring architecture, and commerce. The main legal impediment now are just a few holdouts in the neighborhood. We would like them to move, as would many New Yorkers, and make room for the project. The questions is: can the government force them out?

The Atlantic Yards case, if the Nine take it, would give the high court the opportunity to backtrack from Kelo, if only modestly. What the Brooklyn plaintiffs are asking is for the Supreme Court to ensure that they receive a trial, at which they would seek to prove that the whole Atlantic Yards project is geared towards private profit, not what the plaintiffs see as public good. They say that the Atlantic Yards proposal has been shielded, by such officials such as Governor Pataki and Mayor Bloomberg, from legislative review. The plaintiffs also claim that any public benefits of the project are incidental.

Their suit was first filed in 2006 at the United States District Court at Brooklyn. Two federal lower courts dismissed that lawsuit. In February, a panel of appellate judges who ride the 2nd United States Circuit noted that the plaintiffs wanted access to e-mails of Mr. Ratner and other documents that might help them make their case. The riders of the 2nd decided that ordering such documents to be handed over would involve an "unprecedented level of intrusion" by the courts.

One of the big questions in the case is what the City of New York is going to do — how hard it is going to fight and on what grounds. Mayor Bloomberg has, at least in the public debate, taken an aggressive stance generally in favor of the use of the condemnation process and eminent domain, arguing that our great city couldn't have been built without it. But there may be a sense that the market has shifted under the Brooklyn development and this isn't a case on which anyone, save for the homeowners, wants to go to the mat. It's hard to imagine there's not a market clearing price for all this, but sometimes there is not. In which case no one will envy the Nine this decision.