I know, I know, there is supposed to be a public use for the parcel to be acquired. But, don’t worry, we can find a public purpose later.
NY Waterway is an essential ferry operation running ferry and bus service in the Port of New York and New Jersey and in the Hudson Valley. It has 32 vessels with an average ridership of 18,000 a day. The ferry company purchased the Union Dry Dock to create a ferry home port for maintenance and fueling. The City of Hoboken wants the former shipyard to become a public open space. Great idea. I can see the children playing on the decrepit piers now.
But the public allegedly objected to expanding and operating the facility. The City and NY Waterways entered into an agreement. The agreement stipulated that Hoboken would buy the property for $18.5 million and temporarily lease it to NY Waterway until they completed building a facility in Weehawken. But the agreement is not going to stand because Hoboken decided it can’t wait. The City Council unanimously adopted an ordinance on October 19th that will allow Hoboken to acquire the Union Dry Dock site by condemning it.
We can’t speak to New Jersey Law, but New York Law clearly requires that it be established that any proposed condemnation be for a public use, benefit or purpose. EDPL Sec. 207(c). In the Hoboken case, we have the Mayor’s explanation for the need of the taking, “so Hoboken can have this critical waterfront property in our possession in the coming months.”
Courts have not strictly enforced the public use requirement. Indeed, 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’Conner, J., dissenting) (quoting Wright v United States, 302 US 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 479-480. The modification of the constitutional limitation that “private property [shall not] be taken for pubic 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 use. 12 NY2d 379, 388-89 (1963).
Legislative deference does not mean that the judiciary’s hands are tied. In Brody v Village of Port Chester, the United States 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 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 F.3d 121, 128-29 (2d Cir. 2005) (citations omitted).
New York’s most recent decision on the subject was Kauer 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)).