Update: a follow up from lawprof Steve Eagle here.
Thanks to colleague Dwight Merriam for pointing out a recent decision that we missed from the Court of Appeals, New York’s highest court. In Uptown Holdings, LLC v. City of New York, 2011 NY Slip Op 01071 (Feb. 17, 2011), the court sua sponte dismissed the appeal because “no substantial constitutional question is directly involved.” We’ve been following the case, in which the Appellate Division held that the city’s Department of Housing Preservation and Development validly condemned property, upholding the taking against a due process and a public use challenge, because Kelo does not require a taking to be part of a comprehensive plan.
Judge Smith concurred in a short statement:
Smith, J. (concurring): I agree that no substantial constitutional issue is presented, because, as the concurring opinion in the Appellate Division points out, this case is controlled by Matter of Goldstein v New York State Urban Dev. Corp. (13 NY3d 511 [2009]) and Matter of Kaur v New York State Urban Dev. Corp. (15 NY3d 235 [2010]). I think it necessary to point out, however, that our dismissal of this appeal does not imply endorsement of the Appellate Division majority opinion, which may be read to suggest that Kelo v New London (545 US 469 [2005]) should be followed by New York courts interpreting the New York Constitution (see Goldstein, 13 NY3d at 546 [Smith, J., dissenting] [“The good news from today’s decision is that our Court has not followed the lead of the United States Supreme Court in rendering the ‘public use’ restriction on the Eminent Domain Clause virtually meaningless.”])
Now I am confused. Judge Smith, as you may recall, dissented in Goldstein. Now he’s concurring (as he did in Kaur) since Goldstein is controlling (check), but on the grounds that New York constitutional law might not have to reach the depths of Kelo (which Smith characterizes as rendering the public use clause virtually meaningless – check), i.e., that New York law as expressed in Goldstein and Kaur might provide more protections than the Fifth Amendment, and thus is not meaningless?
Judge Smith, bless him, had the courage to be the lone dissenting voice in Goldstein, although we’ve never quite figured out how the the public use clause in the New York Constitution can provide more protection than the Fifth Amendment’s Public Use Clause as interpreted in Kelo, but at the same time allow a “blight” standard that is so deferential to the agency’s determination of blight that it renders judicial review meaningless. Is he arguing that because unlike Goldstein and Kaur that Uptown Holdings is not a blight case that the result should be different?
I might not be a member of the New York Bar, but if that’s the case my mind is officially blown.