Develop Don’t Destroy 104597/07 (Brooklyn) v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009) is the latest decision involving Brooklyn’s Atlantic Yards redevelopment project. See “A Hole Grows In Brooklyn” from the Wall Street Journal for more. An earlier constitutional objection to the public use of the taking was rejected in Goldstein v. Pataki,516 F.3d 50 (2d Cir. 2008). The most recent case involves the amount of scrutiny a court should give a blight designation that is used as a trigger to eminent domain. The short answer: none.
Six of the eight city blocks needed for the project had been designated as blighted since 1968 and there was no dispute that redevelopment was appropriate in that area. Another two blocks, however, were recently deemed to be blighted even though they are not “substandard and insanitary,” and property owners challenged the designation.
The Appellate Division first rejected several challenges to the sufficiency of the environmental impact statements before holding that because the question of whether the area was blighted was a matter of “a difference of opinion,” the court was required to defer to the agency’s judgment. The court held that only if the area did not “absolutely defy description as ‘substandard and insanitary,'” the court must accept the blight conclusion:
The issue posed is not which of the parties has more persuasively characterized the area in question, but whether there was any basis at all for the exercise by the agency of the legislatively conferred power to make a blight finding, and plainly there was.
Slip op. at 9. The court recognized this standard of review in reality means no judicial review at all, or at least no review that is in any way meaningful:
In the many years since Kaskel [v. Impellitteri, 306 N.Y. 73, 78 (1953), cert. denied, 347 U.S. 934 (1954)], agency blight findings have been found deficient in this State only where they were utterly unsupported (see e.g. Yonkers Community Dev. Agency [v. Morris, 37 N.Y.2d 478, 484 (1975)]), and there has been no case in which the condition of an area has been deemed sufficiently at odds with an agency blight finding to raise a factual issue as to whether the agency exceeded its authority in making the finding.
Slip op. at 9. You read that right: not a single case where a claim that a blight finding was wrong has gone to trial.
The court cited Jo & Wo Realty Corp. v City of New York, 157 A.D. 2d 205, 555 N.Y.S. 2d 271 (1990), as an example of how “highly malleable” the concept of blight is in New York. The property in that case was the New York Coliseum site on Columbus Circle, “undoubtedly, even at the time of the litigation, one of the most valuable pieces of real estate in the City, bordering upon the very exclusive southwestern corner of Central Park.” But the court deferred to the agency’s determination that the property was “blighted” because it was “outmoded, underbuilt and insufficiently utilized,” and therefore subject to redevelopment into the present Time-Warner Center, an upscale shopping mall:
The point to be made is that “blight” has proved over time to be ahighly malleable and elastic concept capable of enormously diverseapplication. This is not in the main attributable to the ingenuity ofconsultants eager to please the developers who pay their bills, butbecause the concept, within the field of its likely use, is morefacilitative than limiting.
Develop Don’t Destroy, slip op. at 9. If the term “blight” is subject to varying definitions, then it could literally anything the agency says it means. Might makes blight. And if a “difference of opinion” over a malleable term is all that is needed to insulate the agency’s conclusion from judicial review, is it any wonder that no New York court has ever disagreed with a finding of blight?
One justice concurred separately to note that despite his belief that the agency “is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are ‘underutilized,'” there was nothing for the court to do, because “[w]hile I deplore the destruction of the neighborhood in this fashion, I cannot say, as a matter of law, that the [agency] did not have sufficient evidence of record to find ‘blight.'”