Arguing that the project will benefit a private party and that the proposed condemnation will there by violate the constitutional restraints against the condemning private party to give another private party will fail as long as it could be said the public purpose is dominant. See Waldo’s, Inc. v Vill. Of Johnson City, 74 NY2d 718, 720 (1989); see also Yonkers Cmty. Dev. Agency v Morris, 27 NY2d 478, 482 (1975).
Virtually any purpose will be acceptable including the condemnation of a historic waterfront for a shopping mall (see Brody v Vill. Of Port Chester, 434 F3d 121, 124 (2d Cir. 2005)) to condemning non-blighted buildings for a basketball arena (see Goldstein v N.Y. State Urban Dev. Corp., 13 NY3d 511 (2009)), or for that matter, taking private land being developed as a CVS drugstore to a private developer who, after demanding $800,000 as an alternative to condemnation, then had it condemned for a Walgreen’s drug store. See Didden v Vill. of Port Chester, 173 Fed.App’x 931, 932-933 (2d Cir. 2006).
Public Use Doesn’t Really Mean Public Use
Kelo v City of New London, 545 US 469 (2005)relied, to a large extent, on Berman v Parker which allowed the condemnation of a department store in good repair so as to allow a blight removal project. Berman v Parker, 348 US 26 (1954). New York’s constitution should preclude the exercise of the power of eminent domain for private development. The language of the limitation in New York’s Constitution: “Private property shall not be taken for public use without just compensation.” N.Y. Const. art. I, § 7(a). Interestingly, when interpreting the language of the U.S. Constitution, there is a presumption “that every word in the document has independent meaning, ‘that no word was unnecessarily used, or needlessly added.’” Kelo v City of New London, 545 US 469, 496 (2005) (O’Connor, J., dissenting) (quoting Wright v United States, 302 U.S. 583, 588 (1938)). But over the years, by judicial decision, “public use” became interpreted to also mean “public purpose” or “public benefit.” See id. at 479-80. The modification of the constitutional limitation that “private property [shall not] be taken for public use, without just compensation” reached its zenith in Courtesy Sandwich Shop, Inc. v Port of New York Authority, where the Court of Appeals approved the condemnation of some thirteen city blocks for the commercial venture known as the World Trade Center as a “facility of commerce” and therefore, a public purpose. 12 NY2d 379, 388-89 (1963). But compare the law in New Jersey which has held that not only must the proposed taking be for a public purpose, it must also be “needed” for a specific project requiring the condemnor to establish that the targeted property is “reasonably necessary” for the project. Borough of Glassboro v Grossman, ____ NJ. Super ____ (App. Div.) Slip Op Jan. 7, 2019.
Legislative deference does not mean that the judiciary’s hands are tied. In Brody v Village of Port Chester,the United Stated Court of Appeals for the Second Circuit held:
At the outset, we must note that, despite the broad deference given to the government’s decision to exercise its power of eminent domain, at bottom, ‘the question [what is a public use] remains a judicial one…which [the courts] must decide in performing [their] duty of enforcing the provisions of the Federal Constitution.’ The Supreme Court has long recognized this crucial, albeit limited, role that the courts play in enforcing the public use limitation. Thus, while the legislative decision to condemn is not reviewable, the purpose of the condemnation is. The role of the judiciary, however narrow, in setting the outer boundaries of public use is an important constitutional limitation. To say that no right to notice or a hearing attaches to the public use requirement would be to render meaningless the court’s role as an arbiter of a constitutional limitation on the sovereign’s power to seize private property. Brody v Vill of Port Chester, 434 F3d 121, 128-29 (2d Cir. 2005) (citations omitted). A recent decision on the subject was Kaur v New York State Urban Development Corp., where the Court of Appeals reversed a decision of the Appellate Division, First Department, which granted a petition prescribed under Section 207 of the EDPL. 15 NY3d 235, 261-62 (2010). The court held that a condemnation for Columbia University, a private school, was supported by a sufficient public use, benefit, or purpose. Id. at 258-59. It also held, citing Goldstein, that the “findings of blight and determination[s] that the condemnation of [the] petitioners’ property qualified as a ‘land use improvement project’ were rationally based and entitled to deference.” Id. at 244 (citing Goldstein v N.Y. State Dev. Corp., 13 NY3d 511 (2009)).
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