Column: Public Use, Robert Moses and the Fight Over Atlantic Yards (New York Law Journal)

A recently published book, Wrestling with Moses, recounts battles waged by renowned urban-planning advocate Jane Jacobs against projects proposed by master planner Robert Moses that would have torn down hundreds of residential buildings in Manhattan to clear the way for “urban renewal.” With the New York Court of Appeals now poised to rule in the long-running eminent-domain fight arising out of the proposed condemnation of homes and other private property for a sports arena and luxury housing in Brooklyn’s Atlantic Yards, the book’s discussion of Moses’ bulldozing of New York City neighborhoods takes on special resonance.

Moses’ widespread use of eminent domain coincided with a significant relaxation by the Court of Appeals of its view of the state constitutional provision that regulates government taking of private property. This approach corresponded with similar trends in federal law, which culminated four years ago in the United States Supreme Court decision in Kelo v. City New London, Connecticut, in which the Court approved the condemnation of private property to clear the way for a massive private development project. Kelo ignited a national controversy about the government’s power to seize private property and turn it over to private interests for economic development. In light of this controversy, the surprise decision by the New York Court of Appeals to take on the Atlantic Yards case provokes the question whether the court is considering moving back towards its pre-Moses condemnation jurisprudence.

Pre-Moses Condemnation Law

In terms largely unchanged since its original adoption in 1821, the New York Constitution provides that “Private property shall not be taken for public use without just compensation.” At the heart of the Atlantic Yards litigation and many prior Court of Appeals cases involving condemnation of private property for conveyance to another private entity is the issue whether the taking of private property qualifies as a “public use.”

Adopting a novel approach to stare decisis, those challenging the Atlantic Yards project argue that “modern” condemnation decisions by the Court of Appeals are aberrational and that the true law of the court is the law that existed until the 1930s. Regardless of the merits of this view of stare decisis, it is true that the Court of Appeals had a narrower view of what constituted “public use” in the first hundred years of its interpretation of that term than it has since.

Two cases illustrating the court’s earlier approach are In re Niagara Falls & Whirlpool Railway Co. from 1888 and Bradley v. Degnon Contracting Co. from 1918. The Niagara Falls case arose out of a plan to condemn private property near Niagara Falls and turn it over to a railroad that would operate a short line to provide views of the falls. Though the Court of Appeals long had held that the taking of property for the construction of rail lines qualified as a public use, it rejected the taking in this case. The court explained that, despite the fact the railroad as described in its official documents plainly qualified for the exercise of eminent domain, an examination of the project’s details revealed that the intended specific use was not public because it had no proper station at its end, would not transport freight, could only operate during part of the year, and was intended only to provide “for the portion of the public who may visit Niagara Falls, better opportunities for seeing the natural attractions of the locality.” In taking this approach, the court outlined a relatively narrow view of public use:

What is a public use is incapable of exact definition. The expressions public interest and public use are not synonymous. The establishment of furnaces, mills and manufactures, the building of churches and hotels, and other similar enterprises, are more or less matters of public concern, and promote, in a general sense, the public welfare. But they lie without the domain of public uses for which private ownership may be displaced by compulsory proceedings.

The court also squarely rejected the notion that a right of public access to the intended use was sufficient to satisfy the requirement of public use: “The fact that … the road will be public in the sense that all who desire will be entitled to be carried upon it is not sufficient, we think, in view of the other necessary limitations, to make the enterprise a public one so as to justify condemnation proceedings.”

In a similar vein the court rejected a public use argument 30 years later in 1918 when it decided the Bradley case. There, a private contractor working on construction of the New York City subway had built down the middle of a Brooklyn street a rail line to remove materials being excavated for the subway. After noting that it long had recognized that railroad use of a street amounted to a taking of the property of adjoining land owners, the court outlined a relatively restrictive view of public use:

To constitute a use public, it must be for the benefit and advantage of all the public and in which all have a right to share–a use which the public have a right to freely enter upon under terms common to all. Public use necessarily implies the right of use by the public. The character of the use, whether public or private, is determined by the extent of the right by the public to its use, and not by the extent to which that right is or may be exercised. If a person or corporation holds or possesses the use, the public must have the right to demand and compel access to or the enjoyment of it.

In light of these principles, the court held that the tramway did not qualify as a public use because it could only be used for the removal of the excavated materials, even though the use was part of a broader use — subway construction — that plainly was public. Suggesting that each portion of a project might be subject to independent use analysis, the court said, “It is true its use facilitated and progressed the completion of a great public enterprise, but that fact … does not enter into the distinction between a public use and a private use.”

Condemnation in the Moses Era

As Robert Moses ascended to power and remade the landscape of much of New York City, the New York Court of Appeals embraced a far more expansive view of public use when the government’s sought to seize private property. That shift is best represented by the 1936 decision in New York City Housing Authority v. Muller and the 1975 decision in Yonkers Community Development Agency v. Morris, the court’s most recent significant ruling on eminent domain.

The Muller case arose out of the New York City Housing Authority’s condemnation of an area on Manhattan’s Lower East Side, which included “two old-law tenement houses” owned by the person challenging the condemnation, to clear the way for a pubic housing project. Though it did not entail a conveyance of property to a private entity, the case marked a substantial shift in the way the court discussed the state constitution’s public-use requirement. Most significantly, the court held that “slum clearance” itself was a sufficient public use regardless of the subsequent use of the property. In doing so, it eschewed any inquiry into the planned use of the property in such circumstances:

Use of a proposed structure, facility or service by everybody and anybody is one of the abandoned universal tests of public use. The designated class to whom incidental benefits will come are persons with an income under $2,500 a year, and it consists of two-thirds of the city’s population. But the essential purpose of the legislation is not to benefit that class or any class; it is to protect and safeguard the entire public from the menace of the slums.

In Yonkers Development Authority, decided in 1975 just as the Moses era was ending, the Court of Appeals went even farther. The dispute there arose when the Yonkers development authority moved to condemn private property so it could convey it to the Otis Elevator Company, “a leading industrial employer in the City of Yonkers,” so the company could expand its own facilities. In rejecting the challenge to the condemnation, the court held that the government’s right to take property regardless of the intended use went beyond slum clearance to remedying areas that were economically underdeveloped:

Historically, urban renewal began as an effort to remove “substandard and insanitary” conditions which threatened the health and welfare of the public, in other words “slums,” whose eradication was in itself found to constitute a public purpose for which the condemnation powers of government might constitutionally be employed. Gradually, as the complexities of urban conditions became better understood, it has become clear that the areas eligible for such renewal are not limited to “slums” as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose.

According to the court, the public-use inquiry ended if the government could establish that the property was underdeveloped: “Where, then, land is found to be substandard, its taking for urban renewal is for a public purpose.” Thus, under such circumstances, there was no need to balance the public benefit against the private benefit: “It would not then be necessary, as a precondition to the taking, to determine that the public benefit in assuring the retention of Otis as an increased source of employment opportunity in Yonkers was sufficient to outweigh the benefit that may be conferred on Otis.”

The Fate of Atlantic Yards

Given the Court of Appeals rulings in cases like Yonkers and Muller, the legal challenge to the Atlantic Yards project faces formidable obstacles. Nonetheless, the court chose to take the case when it could have simply let stand the Appellate Division’s ruling rejecting the challenge. Moreover, as dramatically illustrated by its May 2009 ruling invalidating warrantless police use of GPS devices to track suspects, the Court of Appeals seems newly open to construing state constitutional guarantees more broadly than their federal counterparts. (The Atlantic Yard challengers have litigated and lost their federal eminent-domain claim.)

Looming over these legal considerations is the legacy of Robert Moses. Though hailed as a heroic figure during his time, public opinion has dramatically shifted about the mass relocations and neighborhood destruction caused by his public projects — made possible by the aggressive use of eminent domain. For instance, it is inconceivable to think that a proposal to build an elevated 10-lane highway through the middle of Soho and the Lower East Side, with the demolition of over 400 residential and commercial buildings, would be considered now. Yet, had it not been for Jane Jacobs and her advocacy, Moses’ Lower Manhattan Expressway almost certainly would have been built in the late 1960s.

Jacobs died in 2006, one year after the Supreme Court decided the Kelo case, in which she had filed an amicus curiae brief. Though the Court in Kelo effectively eliminated the federal Constitution as a barrier to the use of eminent domain to block property seizures for private economic development, we soon will see if the New York Court of Appeals is prepared to take a different path.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.