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David Reiss, a professor at Brooklyn Law School and expert on eminent domain, said some condemnations in New York City might have failed the test Kennedy set in the New London case. "The Kennedy concurrence implies that sweetheart deals made in back rooms might not pass constitutional muster," Reiss said, "and as many development deals in New York are conducted in back rooms, it raises concerns that they would not be constitutional under Kennedy's view."
photo: Kate Englund
In the Times deal, the city and state made a no-bid pact despite prior plans to seek competitive bids for the choice midtown site the newspaper company wanted. The Times also got tens of millions of dollars in city subsidies based on what it said were the high costs of keeping 750 workers based in the city instead of New Jerseyï¿½costs that, it was clear at the time, were vastly overestimated by Timesexecutives, as the Voice has reported ("The Paper of Wreckage," June 17, 2002). The Times got these subsidies even though, as previously reported, another developer, Gary Barnett, said he would build a 50-story office tower without heavy tax breaks. Barnettï¿½who made headlines recently by competing with Forest City Ratner Companies to build in downtown Brooklynï¿½even owned part of the site.
The question remains: Would the Times deal with a favored developer have passed Kennedy's test?
"The Supreme Court was in fact asked to take cert [hear an appeal] in our case and refused," said Usnik, the Times spokesperson.
"Presumably that was because the justices did not see a constitutional problem in the condemnation."
Further, he said in an e-mail, New York courts found that the Times building benefited the public by replacing urban blight in Times Square. These are not the minor or "pretextual" benefits that Kennedy was concerned about, Usnik said. (You weren't aware that booming Times Square is still blighted?)
But is that enough of a "public use" for the state to seize one privately owned office building to replace it with a more exclusive one that someone else owns? Reiss, the Brooklyn Law professor, suggested that the standard should be "substantial use by the general public." It would be interesting to see that applied to an office building that bars all employment offices except for executive-search firms.
But any change in New York's eminent-domain law will have to overcome strong opposition. The Bloomberg administration made New York the only city to come to New London's aid with an amicus brief, arguing that jobs can be created if city officials are free to determine what a "public use" is. What it means is that unless your household employs more people than, say, a basketball arena, you're unprotected.
See you in Starbucks.