As reported, the New York Court of Appeals (the highest court in NY) held that private property in Brooklyn could be seized and be used as part of a massive economic development project (Atlantic Yards project). The project will feature a new arena for the New Jersey Nets and high-rise buildings for both commercial and residential uses.

This case in many ways shows how prohibiting takings for economic development isn’t enough when the government can seize private property using a very broad definition of “blight.”

The New York Court held that the takings were permissible because the property met the definition of “blight.” The Court stressed that it must be deferential in allowing the legislature to determine what “blight” meant.

One of the Court’s major errors was not recognizing that the taking was actually for “economic development,” and blight was simply a pretext.

In other words, the only reason why there were takings was because of economic development reasons–the blight excuse was used after the fact.

The dissent (Justice Smith) identified this point:

It is clear to me from the record that the elimination of blight, in the sense of substandard and unsanitary conditions that present a danger to public safety, was never the bona fide purpose of the development at issue in this case….

According to the petition in this case, when the project was originally announced in 2003 the public benefit claimed for it was economic development — job creation and the bringing of a professional basketball team to Brooklyn. Petitioners allege that nothing was said about “blight” by the sponsors of the project until 2005...

In light of the special status accorded to blight in the New York law of eminent domain, the inference that it was a pretext, not the true motive for this development, seems compelling.

Key points about this case and problems with the “blight excuse”:

1) Broad definitions of blight, even if they have little to no connection what really is “blight,” allows the government to seize property for any reason. Courts usually will allow these excessively broad definitions.

2) Even when economic development is clearly the primary motive, the blight excuse will give the government the necessary basis for taking property for economic development–showing that blight is a pretext is tough.

3) By its nature, taking property for blight is also, simultaneously, taking property for economic development–a city isn’t going to seize property unless it has some development plan in mind.

If the NC legislature really wants to address economic development takings, then a constitutional amendment needs to clarify that private property may only be taken for blight when the property itself poses a clear risk to the health and safety of the public.

What happened in New York is just as bad as what happened in New London (in Kelo). Properties in perfectly fine condition are being seized to help developers. The only difference is New London was honest in admitting that the taking was for economic development, as opposed to blight.