Thursday, December 9, 2010

Columbia eminent domain case: One of the Supreme Court "Petitions to Watch"

SCOTUSblog has included the Columbia University eminent domain case Tuck-It-Away, Inc. v. New York State Urban Development Corporation, dba Empire State Development Corporation, Docket 10-402 in this week's edition of "Petitions to Watch." The petition for certiorari filed by these Harlem property owners will be included among the many the Court will consider when the Justices conference tomorrow, December 10. The Justices' decisions to grant or deny will be released on Monday, December 13.

This case concerns the proposed expansion of Columbia University into a Harlem neighborhood by way of the Empire State Development Corporation (ESDC), the same agency that enabled Forest City Ratner to take private homes and businesses for the Atlantic Yards arena and multi-use redevelopment. In New York, the ESDC is a governmental agency with the power of eminent domain. Similar to the Atlantic Yards case, the property owners in the Columbia expansion have disputed the ESDC's blight study and findings that their properties are blighted. Additionally, the property owners in the Columbia case presented evidence of pretext in the record on the part of the condemnors (ESDC and Columbia), which was considered by the Appellate Division and that court struck down the taking. On appeal, the NY Court of Appeals (the state's highest court) held that judicial review of the record in the exercise of eminent domain was improper, and that the question of whether property can be taken because it is found to be "substandard or insanitary" is a one for the taking agencies rather than the courts.

The property owners' petition for certiorari poses two Questions Presented:
This Petition should be granted to address two urgent questions arising from the Court of Appeals of New York's dismissal of Petitioners' challenge to the legitimacy of the governmental takings at issue in this case:
1. Whether it was error for the Court of Appeals of New York to disregard the principles enunciated in Kelo v. City of New London, 545 U.S. 469 (2005) in sanctioning the use of eminent domain for the benefit of a private developer, when the circumstances presented by the instant case exemplify the very bad faith, pretext, and favoritism that this Court warned could result if Kelo's safeguards were ignored?
2. Whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States imposes any minimum procedural standards, in accordance with the requirement of fundamental fairness, to preserve a property owner's meaningful opportunity to be heard within the context of an eminent domain taking?
On his Atlantic Yards Report blog, Journalist Norman Oder has provided a bit of history of the Columbia case as well as presented a detailed summary and analysis of the issues. Additionally,
Robert Thomas has posted the cert petition and subsequent briefs on his inversecondemnation blog here. Both blogs are recommended reading. [Disclosure: Robert Thomas is the Hawaii Member of the Owners' Counsel of America.]

More on Monday when the Conference results are released.

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