10/04/2004

Battle Over Eminent Domain Rages Around CU
Columbia (University) Spectator, 10/4/04

Eminent Domain: Two Little Words Stir Big Community Outcry Against University

By Jimmy Vielkind

From 125th Street to College Walk, there's a simple two-word phrase that has been causing quite a bit of controversy. It's "eminent domain," and the words have spawned a debate among academics, judges, and community activists.

Eminent domain is the power of government to purchase land — even against the will of the owner — for public use. As Columbia moves ahead with plans to develop a new campus in Manhattanville, area residents and business owners are concerned about its use.

Law professors say the legal basis for land owners to challenge eminent domain in Manhattanville is shaky, but some local business owners still say that the use of eminent domain would not be appropriate, even if it is legally allowed.

Columbia administrators have said repeatedly that Columbia has nothing to do with that process.

"Columbia University does not have the legal power or authority to exercise eminent domain," said Senior Executive Vice President Robert Kasdin. Kasdin is right. The authority for eminent domain comes from the New York State Constitution, which states simply that "private property shall not be taken for public use without just compensation" (Article 1, Ch. 7).

But like most important legal principals, eminent domain has evolved a great deal over time and these two lines are the genesis for entire volumes of case law.

One important concept in the law that has evolved over time is the meaning of "public use." At first, this meant public works like schools, hospitals, and highways.

But beginning with the origins of urban renewal and public housing in the 1930s, the government — or a public authority acting on its behalf — began to condemn land in cities because it was rundown. This gave rise to large areas being designated as "blighted" to make way for public housing projects, a process that has since been widely criticized.

If the state were to grant such a blight designation for Manhattanville, it would pave the way for the use of eminent domain to force businesses to sell to a private developer, including Columbia.

While Columbia denies it is pushing for such a designation and would not comment on whether the expansion area is blighted, community advocates are fighting such a designation. Community Board 9 unanimously passed a resolution condemning the use of eminent domain for private benefit, and a protest held by the Coalition to Preserve

Community brought close to 100 people to Columbia's doorstep. Most important is a promised legal fight against the state if it tries to use eminent domain. Enter Norman Siegel, a prominent civil rights attorney who has been hired by the businesses in the area including the Pearlgreen Corporation, a construction supply business, and Tuck-it-Away, a self-storage company.

Siegel has some potent ammunition to work with. He will argue that the Columbia expansion, regardless of any potential public benefit, does not constitute a public use, and therefore does not warrant eminent domain. He will cite a ruling this summer by the Michigan Supreme Court. In County of Wayne v. Hathcock, the court ruled unanimously against a county in Michigan that condemned property to develop a business and technology park in conjunction with a new airport.

The ruling overturned the 1981 case of Poletown Neighborhood Council v. Detroit. In this case, the City of Detroit took over a large part of the Poletown neighborhood to give to General Motors to build a plant. It set the bar for private developments and eminent domain.

"Poletown is like the universally hated case," said the University's Beekman Professor of Law Tom Merrill.

However, Merrill didn't think the Michigan ruling would have any bearing in New York. "I don't think the New York courts will find anything in Hathcock that would cause them to visit their own eminent domain precedents, and there's a lot of precedent in New York that is quite lenient," he said.

Merrill's point is echoed in a recent issue of the New York Law Journal. Both point to a case where land was condemned by the city for a new building for the New York Times on 42nd Street and 8th Avenue.

"The court long ago rejected any literal requirement that condemned property be put into use for the general public," agreed Richard Briffault, a professor at the Columbia Law School.

"My sense is that Columbia is less of a hard case because we're talking about an educational institution, and there's a tradition of higher education being seen as more generally having a public benefit, even if the public doesn't have access," he said.

Siegel says he will wait for his day in court, and notes a growing trend in courts around the country to update their eminent domain definitions in line with the Hathcock case.

But his day in court may not come. The U.S. Supreme Court announced last week that it will take up a case from Connecticut where the state supreme court ruled in favor of allowing the City of New London to condemn 1,300 acres and lease them to a private developer for a token sum to build residential units and a hotel. A decision should come by this spring.

Regardless of the legality of the decision, the business owners on the ground feel any use of eminent domain would be morally wrong.

"Why do the businesses that were here when nobody else wanted to be here have to go?" asked Anne Whitman, the president of Hudson Moving and Storage. "We were here when the times were rough, and we should be allowed to stay and see them get better."

Larry Greenberg of Pearlgreen agreed.

"We find it ironic that publicly the University has promised to develop the area in a way that benefits the community, but privately claims that the community has to leave in order for that to occur," he said.


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