Eminent Domain's Future Unsure: Columbia (University) Spectator, 2/23/05

The Supreme Court Hears Arguments on CT Case With Implications for Manhattanville

By Erin Durkin

As home owners from New London, CT packed the courtroom here to await a decision on the fate of their dwellings, Manhattanville residents wondered whether the resolution might change the ground rules in the fight against the expansion.

The controversy over eminent domain reached the U.S. Supreme Court yesterday, as the justices listened to arguments in Kelo v. New London, a case whose outcome will define the limits of the government’s power to buy property against the owner’s will for “public use.” The court’s decision may affect how Columbia obtains properties for its expansion.

Historically, eminent domain has been used to acquire land for public projects. More recently, governments have used eminent domain to promote economic development, condemning property and turning it over to private developers to create jobs and tax revenue in economically troubled areas.

In Kelo, a group of New London homeowners challenged the city’s use of eminent domain to forcibly buy their homes for a major development project. The owners argued that the Supreme Court should rule broadly that economic development does not constitute public use under the 5th Amendment.

“Every city has problems and wants more tax revenues,” said Scott Bullock, the homeowners’ lawyer. “Without any limits on the government’s eminent domain power, every home, church, or corner store” would be at risk.

Barring a broad ruling, they asked the Court to overturn the condemnations of their homes on the grounds that in order for eminent domain to be used, economic benefit must be “reasonably foreseeable.” Municipalities must show that proposed economic benefits will actually come about.

The city argued that the court does not have the right to assess whether development is necessary.

“The principle purpose of the takings clause is to provide for just compensation,” said Wesley Horton, attorney for the city. “There is no principled place for a court to make what is essentially a value judgment” about the public worth of the project. He stressed that the proposed project would create jobs in an economically troubled area.

The courts decision could have major implications for the use of eminent domain in Columbia’s expansion.

Attorney Norman Siegel, representative of West Harlem Business Group, a group of Manhattanville property owners unwilling to sell to Columbia and who fear eminent domain will be invoked on their property, filed an amicus curiae brief on behalf of the homeowners. He wrote in the brief that his clients are in “a circumstance similar to the circumstances of petitioners.” He has called for New York officials to suspend use of eminent domain until the Court rules in Kelo.

Columbia maintains that as a private institution, it does not have the power to use eminent domain. “Columbia will continue to negotiate the purchase of properties needed...and manage the overall development process in a way that addresses the needs of individual owners and tenants, meets the University’s objectives and brings economic prosperity to Northern Manhattan and the city as a whole by creating construction and permanent jobs,” said Liz Golden, Columbia’s director of operations, planning, and special projects, in an e-mail. She said it would be speculative to comment on the outcome of the case.

The seven justices present at yesterday’s arguments raised questions about arguments in both sides in the case.

Justice Ruth Bader Ginsburg responded to the argument that cities only use eminent domain for tax revenues, saying that “more than tax revenue was at stake,” since New London “had gone down and down” economically.

Justice Antonin Scalia, who expressed sympathy for the homeowners at several points during the arguments, led the Court in questioning Horton. The city “just wants to take property from people who pay less taxes and give it to people who pay more taxes,” he said.

Asked if this was a fair characterization of his argument, Horton jokingly replied, “If it’s a significant amount” of additional revenue. Justice Sandra Day O’Connor suggested that by that standard, the government could condemn a Motel 6 to make way for a Ritz Carleton.

Participants addressed assembled media in a press conference after the arguments. “I was very encouraged by today’s arguments,” said Susette Kelo, a plaintiff in the case. “I feel [the justices] are sympathetic to the homeowners.”

In reference to individuals losing their homes, Horton said, “Obviously it’s very sad when things like that happen,” but stressed that “to have to deal with a bunch of holdouts makes it more difficult to attract developers.”

Donald Borut, executive director of the National League of Cities, which filed an amicus curiae on behalf of the New London government, agreed. He said in an interview that, should the Court overturn the condemnations, “It would mean that a major tool that cities have used for years to create economic opportunity for citizens would be taken away.”

“The dilemma is you have people who own property ... who don’t want to leave,” Borut said. “You’ve also got 1,500 people who lost their jobs who [want] to work.”

Siegel said he was “cautiously optimistic” after viewing the arguments. He hopes the Court will rule broadly that economic development does not constitute a form of public use. Under such a ruling, he said, “the argument that Columbia has been making up to today — more jobs, more taxes — would be unacceptable for the employment of eminent domain.”

A more narrow ruling overturning the condemnations based on a “reasonable foreseeability” test, Siegel said, would open the door for him to challenge Columbia to provide evidence to back up its projections on expansion-provided jobs and revenue.

Siegel said that even if the Court upholds the New London condemnations, it won’t make things worse for his clients.

Columbia law school professor Tom Merrill said that a broad ruling against the use of eminent domain would “cause some issues for Columbia.” However, he said, “I think it’s unlikely that the Court would go that far.”

“One thing that might make the case different is that Columbia...being a university, has more of a public benefit” Law School professor Warren Briffault said pointing to education and research opportunities Columbia offers.

Siegel acknowledged that “the fact that Columbia is an educational institution makes the issue a little more difficult,” but stressed that “Columbia is still a private entity.”

A decision is expected in June.

The Columbia Spectator: www.columbiaspectator.com