The first of May was a big day for those who care about eminent domain reform.

Standing on the front steps of Flushing Library that day, Mayor Bloomberg unveiled a master plan for redevelopment of the Willets Point peninsula – a 75-acre area of Queens near Shea Stadium that's known all over the region for its inexpensive auto repair shops and junkyards. The mayor enthused over plans for what he called “the city’s first truly green community” – a projected convention center, hotel and 5.5 million square feet of residential space that “would use the latest energy-efficient technology.” But when asked what would become of the 250 business owners there now, many of whom could be found demonstrating against the city’s plans a couple of hours later, Bloomberg claimed it wouldn’t be hard to make a case for removing them through eminent domain if it came to that – “but my hope is we won’t have to.”

Meanwhile at City Hall, members of City Council were debating the merits of a study released in March, sponsored by the city's Economic Development Corporation (EDC), which officially cleared the way for the condemnation of seven 19th-century rowhouses in downtown Brooklyn. Homeowners and community activists have claimed the buildings were used as safe houses for escaping slaves on the Underground Railroad and have called for turning the houses into a museum. But EDC representatives said the study turned up little or no evidence of that history, thus removing the last remaining obstacle to building a proposed parking garage and public park as part of a major renovation underway of the entire neighborhood. (They do acknowledge that a considerable amount of abolitionist activity took place in the downtown area generally.)

During the proceedings that followed, Councilmember Letitia James, a Prospect Heights Democrat, asked a question that, it turns out, applies to city plans in both cases. “Have you considered incorporating the houses in your plan?” she asked. “Particularly since you’re going to turn those properties into a grassy knoll? Instead of a grassy knoll, couldn’t you leave the houses intact?”

The EDC has spent the last several years taking bids from developers and drawing up and modifying plans for both the Queens and Brooklyn sites. But according to attorney Lisa Bova-Hiatt, the deputy chief for condemnation in the city’s Law Department, the EDC does not itself have the power of eminent domain, though other city and state agencies do. Legally, the agency is a nonprofit that works at the mayor’s behest but isn’t recognized as an official public body. At the state level, the Empire State Development Corporation (with the initials ESDC, “a lot of people confuse the two,” Bova-Hiatt noted), the Department of Transportation, the Metropolitan Transportation Authority and, for certain purposes, the Port Authority of New York and New Jersey all have eminent domain powers.

In East New York, for instance, the MTA has recently threatened to claim land owned by the Legion Lighting Company in order to expand a bus depot there. More controversial from the perspective of reform are “developer-driven” proposals for Atlantic Yards in Brooklyn and Columbia University’s new campus in West Harlem, because in both of those cases the state-run ESDC is threatening to acquire property not for its own use but for the use of a private developer and university.

For municipal projects, by contrast, it’s the city of New York that exercises eminent domain on behalf of its various departments, including the Department of Housing Preservation and Development (HPD), the Department of Environmental Protection, the Department of Parks and Recreation, and more. “[The city] can reclaim land for public libraries and schools, highways and parks,” said Bova-Hiatt. “In a city like New York, eminent domain is crucial to the city’s environmental and fiscal health.”

Several experts agreed with that general sentiment but expressed concern about some of the specifics.

Ever since the Supreme Court reaffirmed the legitimacy of so-called "economic development takings" in Kelo v. New London in 2005, activists on both the right and left have called for voluntary substantive limitations on the government’s eminent domain powers – meaning they think the government should forego condemnations that transfer private property from one individual to another only in order to increase the tax base or bring in new jobs. Some think eminent domain should only be employed if the government retains the property title, the land is kept open to the general public, or a legitimate public carrier needs it to provide services like electricity, gas, or telephone. Others think that if economic development takings are allowed at all, they should be restricted to cases where a demonstrable public harm is avoided.

Thomas Merrill, an administrative law professor at Columbia University who testified before Congress in 2005 about eminent domain reform, said he found suggestions like these to be “draconian.”

“It’s just too hard to anticipate all the ways rearranging property rights are to the public advantage,” he said.   

Merrill also claimed that many of the government procedures restricting the use of eminent domain are about 100 years out of date, however. He suggested that instead of the state or city first condemning the property and then holding a public hearing to see whether the condemnation meets the court’s understanding of the meaning of “public use,” which is the normal course of things, the government should have all eminent domain proceedings go directly through a legislative body (rather than the above-mentioned public authorities such as MTA, ESDC, etc.) And, just as important, it should require an assessment of a range of planning options, so that they can be weighed against one another publicly. The federal Environmental Protection Agency already does this, “so it would be fairly easy to adopt,” he noted.

“You have to be careful about proceduralizing these things too much, but requiring an assessment of the alternatives would give people a better sense that [all the available options] were being considered and weighed," Merrill said. "There would be less of a sense that these things were arbitrary and capricious.”   

From a city planning perspective, Tom Angotti, a professor of planning at Hunter College and the author of a recent report on Willets Point, agreed with that suggestion, saying that “it’s absolutely absurd to condemn properties that could just as easily be incorporated into the larger plans.”

“The EDC appears to be addicted to the large-scale, mega projects,” Angotti said. “They’re really not very skillful at dealing with incremental developments that nurture local economies and residential development.”

And in the case of Willets Point, he noted that if the city were truly interested in environmentally sustainable development, it would at least consider keeping all those auto-related businesses together, because scattering them could make enforcing environmental standards more difficult.

For some, then, the question remains: Did the EDC consider alternatives? Did they invest in a downtown Brooklyn plan in which the Duffield Street houses were preserved and the public park nixed? Did they think about redeveloping Willets Point around the existing auto body shops and junkyards, instead of investing millions in their relocation and job training for an estimated 1,800 workers?

Back at the City Council hearing it wasn't clear from EDC Senior Vice President Kate Collignon’s response, but Councilmember James asserted later that, in the case of the Duffield Street houses, they didn’t. And EDC spokesperson Yonit Golub couldn’t say one way or another regarding Willets Point.

According to Bova-Hiatt, the procedures governing the municipal use of eminent domain are different depending on the reasons invoked, but in the case of the downtown Brooklyn and Willets Point plans they work like this: Based on assessments of the area’s economic and environmental condition, HPD designates “an urban renewal area,” which is akin to calling the district “depressed” or “blighted.” The urban renewal designation goes through the city’s public planning process, so the City Council and local community board members get to vote on it.

Bova-Hiatt said that, unlike in Kelo v. New London, purely economic development takings are already illegal in New York state. Here, there has to be a determination of blight, though “what constitutes blight is an important subject of discussion,” she acknowledged. “It really depends on the locale.”

One thing is perfectly clear, however: The EDC doesn’t have to wait on HPD before spending time and money on plans that ultimately rely on the government’s power of eminent domain. Last summer, for instance, they went so far as to invite bids from private developers for the Willets Point peninsula, even though the land was still in private hands and no urban renewal designation had been issued. According to Angotti, this is a significant privilege, because “once you’ve created the threat of eminent domain, you’ve already set in motion land speculation – it has the effect of encouraging land assembly of the property” – and turning back becomes that much more difficult.

State Assemblyman Richard Brodsky (D-Westchester) has introduced an eminent domain reform bill that would address some of these issues. If passed, the bill would create an eminent domain ombudsman to help owners of condemned land navigate their legal options; increase compensation from the market-rate value of their land to 150 to 200 percent of that value, in order to account for the private developer’s expected profits; and, as Merrill suggested, it would require all condemnations to cross the desks of elected officials, instead of those of unelected bureaucrats. When asked about the bill’s current status, Brodsky reported cheerfully: "It’s bottled up in the judiciary committee, but we’re trying to get it out of there as fast as possible.”

As yet, however, the one thing the new bill doesn’t require is the one thing that could make a difference for those Duffield Street homeowners: a public weighing of the costs and benefits of a “grassy knoll” versus a museum dedicated to Brooklyn’s role in the Underground Railroad. As Joy Chatel, a Duffield Street homeowner who’s been fighting the city’s downtown Brooklyn plan, told a group of protesters and reporters: “This is not just about black history but New York history, American history. Sometimes we just need to accept what is." Although HPD plans to discuss the acquisitions at a hearing on May 22, the city's impending use of eminent domain appears to be beyond the control of elected representatives – or citizens.

This story has been corrected. 5/21/07

- David Giles