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Associated Press/Photo by Kathy Willens

Land grabbers

Cities 2010 | Post-Kelo laws were supposed to stop the use of eminent domain for the benefit of private developers; in New York and elsewhere, the taking continues

Issue: "Cities of God and Man," March 27, 2010

BROOKLYN-On Dec. 27, 2009, Brooklyn staged a revolt. Standing next to a 9-foot-tall guillotine made of Pabst Blue Ribbon cans, the manager of Freddy's Bar and Backroom read a screed from a scroll. He excoriated a developer who is using eminent domain to claim private property in the surrounding neighborhood, then stood aside as an executioner with a hood and a scythe read a death sentence: "Eminent domain, you are hereby condemned, having become a thief and a traitor." Spectators cried, "Off with its head!" as the guillotine blade fell and a head (or more precisely, a white ball with "Eminent Domain Theft" painted in red letters) rolled.

The message was clear: Don't mess with a neighborhood dive bar, or with New Yorkers who have saved to buy their own homes in a city where two-thirds of the population still rents. Forest City Ratner Companies (FCRC) is planning to put a $4 billion development project where Freddy's Bar and Backroom now stands. FCRC predicts that the Atlantic Yards development project will generate $5.6 billion in new tax revenues over the next three decades-but homeowners and bar-goers believe it will just seize their homes and gut their neighborhood.

The Brooklyn revolutionaries are not alone. In the 2005 court case Kelo v. City of New London, the United States Supreme Court ruled that local governments could-to further "economic development"-use eminent domain to force a property owner to transfer his property to a private developer. By June 2006, local governments had approved 117 projects using eminent domain for private development and had either threatened or condemned 5,783 pieces of property.

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The Kelo backlash was bipartisan and vehement-36 states passed laws to protect homeowners from eminent domain for private development-but accomplished little. Ilya Somin, professor of law at George Mason University, estimates in a paper for the Minnesota Law Review that 22 of the 36 laws are merely symbolic-"likely to impose few, if any, meaningful restrictions on economic development takings." In Connecticut, the reform law is so feeble it would not even protect Susette Kelo and the original Connecticut litigants.

At issue is the definition of "blight." Many of the laws still allow developers to take blighted property, and the laws define blight broadly. In Nevada, for example, a parcel is blighted if the lots are "of irregular form and shape." California and Illinois' definitions could prove worrisome after the housing crisis, since a property is blighted if its value declines. Somin said this definition is "tailor-made for abuse" because property values can decline even in times of economic plenty. With these definitions, it's unsurprising that eminent domain affects primarily poorer communities. According to a study by Dick Carpenter and John Ross, in areas where private developers threaten or use eminent domain, the median income is about $19,000 and 25 percent of the residents live at or below poverty level.

Of the 20 states that are the worst offenders-those with the greatest number of private-to-private takings between 1998 and 2002-only seven have enacted effective reform.

New York is not one of them. New York defines blight as substandard and insanitary-a term originally used to refer to slums and tenements without running water or sewage facilities. Now case law and statute have defined "substandard and insanitary" to include "impractical street widths," irregularly shaped lots, and "unsuitable topography." Matthew Brinckherhoff, lawyer for homeowners, said New York's definition of blight is so amorphous and vague that "it really does beg for people to fight about it."

And they certainly have. The Empire State Development's blight report said the 22 acres FCRC needs for its project are "characterized by blighted conditions including structurally unsound buildings, debris-filled vacant lots, environmental concerns, high crime rates, and underutilization." The report describes "cracked and crumbling sidewalks that are overgrown with weeds and strewn with trash."

But Daniel Goldstein, who paid $590,000 for an apartment that sits where FCRC now wants to build an arena, takes issue with the idea that the property is only valuable to Ratner.

Goldstein bought his 1,290-square-foot apartment in 2003, after a five-year search to buy. The neighborhood is a good place to raise a family since it is near the kid-friendly Park Slope neighborhood and the Fort Greene neighborhood, where writers like Jhumpa Lahiri and Colson Whitehead reside. Goldstein's living room is scattered with wedding photos and his toddler's toys. Potted plants line big windows that look out onto church steeples and sky, but there are signs of his seven-year battle to keep his home. Framed newspaper clippings hang on the wall and a sign from the Castle Coalition-"Hands off my business"-adorns his front door.

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