Sotomayor and Screw You
"As Naked an Abuse of Government Power as Could be Imagined"
How the Sotomayor nomination revived the debate over eminent domain abuse
Damon W. Root | June 25, 2009
Property rights were probably the last thing on President Barack Obama's mind
when he selected Judge Sonia Sotomayor to replace retiring Supreme Court Justice
David Souter. But that hasn't stopped Sotomayor's nomination from reigniting the
long-simmering national debate over the use and abuse of eminent domain.
The controversy centers on
Sotomayor's vote in a 2006 eminent domain case, Didden v. Village of Port
Chester. New York entrepreneur Bart Didden says Port Chester condemned his land
after he refused to pay $800,000 (or grant a 50 percent stake in his business)
to a developer hired by the village. One day after Didden refused to pay those
bribes, Port Chester began eminent domain proceedings against him.
As University of Chicago law
professor Richard Epstein put it, "The case involved about as naked an
abuse of government power as could be imagined." But that didn't stop Judge
Sotomayor and two of her colleagues on the 2nd Circuit Court of Appeals from
upholding the district court decision that ruled in favor of the village.
Still, this ugly decision wasn't entirely without precedent. Didden came on
the heels of the Supreme Court's notorious 2005 decision in Kelo v. City of New
London, which endorsed the government's power to seize property from one private
party and hand it over to another so long as the taking was part of a
"comprehensive" redevelopment scheme. That decision sparked nationwide
outrage on both sides of the political aisle, including the passage of laws
protecting property rights from Kelo-style abuse in 43 states. (The Supreme
Court declined to hear Didden's appeal.)
None of that is likely to derail Sotomayor's nomination, however, which the
Senate is fully expected to approve next month. But this renewed national focus
on eminent domain abuse might still benefit a group of long-suffering property
owners in Brooklyn, New York, who have been waging a five-year battle against
the combined forces of Mayor Michael Bloomberg, the Metropolitan Transit
Authority (MTA), real estate developer Bruce Ratner, and the Empire State
Development Corporation (ESDC), a controversial quasi-public entity empowered by
the state to seize private property via eminent domain.
At issue is the so-called Atlantic Yards project, a 22-acre redevelopment
boondoggle centered on a new sports arena for the New Jersey Nets, a
professional basketball team that just happens to be owned by Atlantic Yards
developer Bruce Ratner. Property owner Daniel Goldstein and others brought suit,
claiming the ESDC's use of eminent domain violates their property rights and
oversteps even Kelo's generous interpretation of the Constitution's Public Use
Clause. In particular, the plaintiffs argue that the alleged "civic
benefits" of the project—including a fancy arena designed by celebrity
architect Frank Gehry—were just pretexts used to justify handing both private
and public land over to a politically-connected developer without considering
any competing proposals. Last year the Supreme Court declined to hear arguments
in their case, Goldstein v. Pataki, which is now working its way through state
This week the saga went from bad to worse, as the MTA, which controls the
central portion of the land needed for the project, released a disastrous new
plan. Consider this: In 2006 the MTA agreed to sell Ratner its 8-acre Vanderbilt
rail yard—which had been appraised at over $200 million—for a lump-sum
payment of just $100 million. Now the MTA says Ratner can pay just $20 million
upfront, with the rest due over the next 22 years.
As the New York Post (which supports the Atlantic Yards project) declared in
an editorial attacking the new deal, "After pleading poverty, jacking up
[subway] fares and squeezing $2 billion from Albany, the MTA is now flush with
cash. Or so one might think—if the agency OKs a plan to let a developer pay
for air rights over the Atlantic Avenue rail yard on a 22-year layaway
It's also worth noting that Ratner recently fired Frank Gehry, whose status
as a global architectural celebrity had been one of the major "civic
benefit" talking points in favor of the redevelopment. This prompted New
York Times architectural critic Nicolai Ouroussoff to denounce Ratner's actions
as "a shameful betrayal of the public trust, one that should enrage all
those who care about this city." (The New York Times, by the way, currently
operates out of a Times Square skyscraper built in partnership with Bruce Ratner
that sits atop land seized via eminent domain.)
So what happens next? The state will no doubt approve this sweetheart deal
just as it approved the previous one. But Ratner still needs to sell more than
$500 million in arena bonds and break ground before year's end in order to
qualify for tax-exempt status. Here's hoping Goldstein's lawsuit, a lousy
economy, and renewed public outrage over eminent domain abuse make the Atlantic
Yards the perfect size to fail.
Damon W. Root is a Reason associate editor.
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