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Full-Text Articles in Law
Against Mushy Balancing Tests In Blight Condemnation Jurisprudence, Roderick M. Hills
Against Mushy Balancing Tests In Blight Condemnation Jurisprudence, Roderick M. Hills
Fordham Urban Law Journal
Professor Somin has written an incisive critique of the New York Court of Appeals’ decisions in Kaur and Goldstein, the gist of which is that the Court did not do enough to stop “highly abusive blight condemnations.” There are, however, two difficulties with the critique. First, as a matter of legalistic interpretation of the New York Constitution, the critique is not very persuasive. Second, as a matter of policy, Professor Somin’s proposal is unlikely to be adopted by any judge influenced by the same political process that lead to the condemnations that Professor Somin attacks.
New York’S Fight Over Blight: The Role Of Economic Underutilization In Kaur, Kaitlyn L. Piper
New York’S Fight Over Blight: The Role Of Economic Underutilization In Kaur, Kaitlyn L. Piper
Fordham Urban Law Journal
This note discusses the issues raised by the policy of seizing land through eminent domain by saying that a certain property is "blighted". The author of the note feels that blight should be limited and not merely a way of saying that economic interests of the city are better served by seizing the property through eminent domain. Part I of this Note describes the background of eminent domain and, in particular, the elimination of blight as a qualifying public use. It summarizes the history of the “public use” requirement in the federal and state context and how economic underutilization fits …
Let There Be Blight: Blight Condemnations In New York After Goldstein And Kaur, Ilya Somin
Let There Be Blight: Blight Condemnations In New York After Goldstein And Kaur, Ilya Somin
Fordham Urban Law Journal
This Article analyzes the New York cases of Kaur v. New York State Urban Development Corp. and Goldstein v. New York State Urban Development Corp. and asserts that the New York Court of Appeals erred in allowing such an expansive definition of "blight" and defining pretextual takings too narrowly. Part I Describes the two cases. Part II explains the concept of blight condemnation and how it was used in the two cases. Part III discusses how the two cases treat the federal constitutional standard for pretextual takings. The Article concludes that eminent domain reform requires a narrower definition of "blight" …
The Problem With Pretext, Lynn E. Blais
The Problem With Pretext, Lynn E. Blais
Fordham Urban Law Journal
This Article examines the problems with the Supreme Court's holding in Kelo v. City of New London that the concept of public use is expansive unless the government is asserting the public use as a "mere pretext" and the true purpose is private benefit. The author examines the level of scrutiny applied in such cases, the link between pretext and motive, and the tests applied to evaluate pretext challenges: the burden-shifting motives test, the sufficiency of the plan taste, and the benefits to the public test. The author concludes that pretext is an "unworkable mechanism" for evaluating public use cases.
Gallenthin V. Kaur: A Comparative Analysis Of How The New Jersey And New York Courts Approach Judicial Review Of The Exercise Of Eminent Domain For Redevelopment, Ronald K. Chen
Fordham Urban Law Journal
This Article explores two explanations for why New Jersey and New York take different approaches to judicial review of exercises of eminent domain. Part I examines the approach of both states and their differing procedures for review of administrative agency determinations. Part II discusses how each states' courts and legislatures define "blight." Part III examines how New York's approach leaves municipal officials and redevelopers free to use the more flexible concept of "underutilization" as a proxy for "blight."
Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle
Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle
Fordham Urban Law Journal
Dirigisme is the "policy of state direction and control in economic and social matters. This Article examines dirigisme as it relates to state control of land use. It also analyzes the development of eminent domain law and the requirement that takings be for public use. The author argues that the New York Court of Appeals "subordinates constitutional protections for private property to centralized development," specifically examining the recent Goldstein and Kaur opinions. The Article also discusses the implications of condemnation for transfer for private redevelopment, including lack of transparency, secondary rent seeking, possibilities of corruption, and the inefficient use of …
Reclaiming The Promise Of The Judicial Branch: Toward A More Meaningful Standard Of Judicial Review As Applied To New York Eminent Domain Law, Paula Franzese
Reclaiming The Promise Of The Judicial Branch: Toward A More Meaningful Standard Of Judicial Review As Applied To New York Eminent Domain Law, Paula Franzese
Fordham Urban Law Journal
This Article asserts that the New York model of eminent domain and judicial review must be reworked to provide a meaningful balance between private property rights and concerns for public good. Part I sets forth current doctrine and procedure which New York agencies must follow when exercising the power of eminent domain. Part II explores how blight has become a "standardless standard" in New York. Part III examines New York courts' reluctance to overturn agency decisions and the potential for abuse that this creates. Part IV examines other jurisdictions which have imposed stricter standards when examining public use. Part V …
The Use And Abuse Of Blight In Eminent Domain, Martin E. Gold, Lynne B. Sagalyn
The Use And Abuse Of Blight In Eminent Domain, Martin E. Gold, Lynne B. Sagalyn
Fordham Urban Law Journal
This Article examines the term "blight" and how it is used in eminent domain cases. Part I discusses the development of the term and how various states define it. Part II lays out a hierarchy which may be used to compare the private benefits on one hand and the public benefits on the other hand in redevelopment projects. In Part III, the Columbia University expansion in Manhattanville is examined, at both the New York Appellate Division and Court of Appeals levels. Part IV discusses how forty-three states redefined blight after the Kelo case. Part V discusses how political and business …
Condemning The Decisions Of The Past: Eminent Domain And Democratic Accountability, Christopher Serkin
Condemning The Decisions Of The Past: Eminent Domain And Democratic Accountability, Christopher Serkin
Fordham Urban Law Journal
This Essay argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The author proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for acquiring "democratic legitimacy." He explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York's waterfront, which had been essentially cut off by highways.
Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, Daniel S. Hafetz
Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, Daniel S. Hafetz
Fordham Law Review
In 2005, the U.S. Supreme Court ruled in Kelo v. City of New London that governments may take one’s private property and give it to another for the purpose of promoting economic development. The Court held that, in evaluating Fifth Amendment challenges to such takings, courts should defer to legislative judgments as to what constitutes a valid public purpose. Critics argue that this decision opened the floodgates to pretextual abuse. Specifically, they contend that local governments that exercise the eminent domain power are often motivated by a desire to favor another private party. After Kelo, courts have struggled to reconcile …
Protecting Status: The Mortgage Crisis, Eminent Domain, And The Ethic Of The Homeownership, Rachel D. Godsil, David V. Simunovich
Protecting Status: The Mortgage Crisis, Eminent Domain, And The Ethic Of The Homeownership, Rachel D. Godsil, David V. Simunovich
Fordham Law Review
Homeownership is in crisis. Millions of families are at risk of foreclosure as they are caught between declining housing values and rising interest payments on adjustable-rate mortgages. The primary concern for such families is not that they will become homeless—most families who lose their homes could afford to become renters—but rather that they will lose their status as homeowners. For families required to sell their property by the government’s use of eminent domain, a similar issue arises, as the “fair market value” of some homes (the standard measure of compensation) is generally not enough to allow the family to purchase …
Condemnation Friendly Or Land Use Wise? A Broad Interpretation Of The Public Use Requirement Works Well For New York City, Nasim Farjad
Condemnation Friendly Or Land Use Wise? A Broad Interpretation Of The Public Use Requirement Works Well For New York City, Nasim Farjad
Fordham Law Review
A broadly interpreted definition of the public use and/or purpose requirement for condemnations has been a part of New York's legal landscape for decades. Although New York's use of eminent domain for economic development projects has been repeatedly criticized, the benefits from such condemnations, such as increased tax revenues, employment opportunities, and overall neighborhood revitalizations, outweigh any arguments put forth for prohibiting economic development takings from constituting a public use.
Public Use Or Private Benefit? The Post-Kelo Intersection Of Religious Land Use And The Public Use Doctrine, Nicholas William Haddad
Public Use Or Private Benefit? The Post-Kelo Intersection Of Religious Land Use And The Public Use Doctrine, Nicholas William Haddad
Fordham Law Review
No abstract provided.
A Second Take: Re-Examining Our Regulatory Takings Jurisprudence Post-Tahoe, Robert W. Diubaldo
A Second Take: Re-Examining Our Regulatory Takings Jurisprudence Post-Tahoe, Robert W. Diubaldo
Fordham Urban Law Journal
This Note discusses the aftermath of the landmark case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agencey. This Comment first discusses the background of regulatory takings jurisprudence, from Justice Holmes' landmark Pennsylvania Coal opinion to the present. It further analyzes the recent Tahoe decision, focusing on both the strengths and weaknesses of the decision and its potential impact on the future of takings. Finally, the Comment offers a different analytical framework from which to analyze regulatory takings. Under this theory, courts would abandon the partial/total distinction, and instead focus on the actual loss from the landowner's point of view. …
Defining "Property" In The Just Compensation Clause, D. Benjamin Barros
Defining "Property" In The Just Compensation Clause, D. Benjamin Barros
Fordham Law Review
No abstract provided.
Dolan V. Tigard And The Rough Proportionality Test: Roughly Speaking, Why Isn't A Nexus Enough?, Christopher J. St. Jeanos
Dolan V. Tigard And The Rough Proportionality Test: Roughly Speaking, Why Isn't A Nexus Enough?, Christopher J. St. Jeanos
Fordham Law Review
No abstract provided.
The Next Wave In Public Beach Access: Removal Of States As Trustees Of Public Trust Properties, James M. Kehoe
The Next Wave In Public Beach Access: Removal Of States As Trustees Of Public Trust Properties, James M. Kehoe
Fordham Law Review
No abstract provided.
Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor
Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor
Fordham Urban Law Journal
In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford reviewed Dennis Coyle's book "Property Rights and the Constitution." Radford's theory relies on the idea that property rights deserve greater constitutional protection than they have received in the 60 years since the Supreme Court accepted the legitimacy of the regulatory state. This article reviews Radford's interpretation and criticism of Coyle's theory, analyzes Radford's theories in light of recent cases, and discussed the constitutional implications of Radford's analysis and how they relate to the economic regulations that they empower.
Tenements And Takings: Tenement House Department Of New York V. Moeschen As A Counterpoint To Lochner V. New York, Judith A. Gilbert
Tenements And Takings: Tenement House Department Of New York V. Moeschen As A Counterpoint To Lochner V. New York, Judith A. Gilbert
Fordham Urban Law Journal
“The sharp rightward shift in land use law, and particularly in ‘takings’ jurisprudence, in the 1980s prompted anguished responses from advocates of government regulation who characterized the trend as a ‘return to the good old days of Locke and Lochner,’ ‘the Reagan Revolution's Lochnerian [r]eturn,’ ‘a revival of decisions like Lochner,’ ‘origins [in] the set of beliefs associated with the Lochner era,’ and ‘Back to the Future: From Nollan to Lochner.’ Critics were reacting in particular to an ominous alignment in the constitutional heavens: a constellation of United States Supreme Court decisions restricting the ability of state and local governments …
The Constitutionality Of Taking A Sports Franchise By Eminent Domain And The Need For Federal Legislation To Restrict Franchise Relocation, Thomas W. E. Joyce, Iii
The Constitutionality Of Taking A Sports Franchise By Eminent Domain And The Need For Federal Legislation To Restrict Franchise Relocation, Thomas W. E. Joyce, Iii
Fordham Urban Law Journal
In 1985, two cities were in proceedings to each take over a sports franchises located within their respective cities. However, a number of constitutional limitations may prevent a city from taking sports franchises. This Note examines the constitutional public use, just compensation,right to travel and commerce clause limitations as applied to the taking of sports franchises by eminent domain. This Note concludes that eminent domain is an improper method of protecting cities' interests in preventing the relocation of sports franchises. Consequently, it suggests that only carefully drawn federal legislation can protect a city's interest in keeping its sports franchises without …
De Facto Takings And The Pursuit Of Just Compensation, Thomas S. Szatkowski
De Facto Takings And The Pursuit Of Just Compensation, Thomas S. Szatkowski
Fordham Law Review
No abstract provided.
De Facto Takings And The Pursuit Of Just Compensation, Thomas S. Szatkowski
De Facto Takings And The Pursuit Of Just Compensation, Thomas S. Szatkowski
Fordham Law Review
No abstract provided.
Elimination Of The Highest And Best Use Principle: Another Path Through The Middle Way, Joseph P. Tomain
Elimination Of The Highest And Best Use Principle: Another Path Through The Middle Way, Joseph P. Tomain
Fordham Law Review
No abstract provided.
Public Land Ownership: Frameworks For Evaluation, Edward F.C. Mcgonagle
Public Land Ownership: Frameworks For Evaluation, Edward F.C. Mcgonagle
Fordham Urban Law Journal
In November 1975, York University sponsored a Public Land Ownership Conference in Toronto, Canada. It's purpose was to examine public land ownership as a means to accomplish social objectives related to land use. This book, organized into five chapters, is an outgrowth of the conference and consists of papers prepared for the conference and commentaries made by various conferees, with the additions of a general introduction, concluding commentary, and a preface for each chapter with an introductory essay on the general theme of the chapter. A compilation of papers from various writers may pose problems for readers through the incredibly …
Eminent Domain--Blight Declaration--Extensive Delay In Initiating Condemnation After Declaration Of Blight May Constitute A Taking Under State Constitution, Janine P. Hornicek
Eminent Domain--Blight Declaration--Extensive Delay In Initiating Condemnation After Declaration Of Blight May Constitute A Taking Under State Constitution, Janine P. Hornicek
Fordham Urban Law Journal
In 1958, the City of Trenton examined the possibility of redeveloping a large portion of its downtown area. In 1967, after a tortuous planning process, the land designated for redevelopment was declared blighted. Plaintiff, the owner of a large commercial building in this redevelopment area, alleged that in 1963 it began losing tenants because of the widespread publicity given to the threatened condemnation. After the 1967 declaration of blight, the area deteriorated markedly. By 1973, plaintiff’s building was almost entirely vacant, yielding $6,300 in rent compared to costs of $9,500 in insurance changes and $30,000 in annual property taxes. Plaintiff …
Protection Of Mortgagee's Investment When The Security Is Condemned In New York
Protection Of Mortgagee's Investment When The Security Is Condemned In New York
Fordham Law Review
No abstract provided.