Two decisions this term by the New York Court of Appeals in eminent domain cases—the second coming almost five years to the day after the U.S. Supreme Court’s June 23, 2005, eminent domain ruling in Kelo v. City of New London1—make it clear that, at least in New York, government has broad power to use its statutory and constitutional eminent domain authority. With little likelihood in the near future that the legislature will limit that power—which opponents might view, especially now, as virtually unfettered—there may only be one practical limitation on eminent domain in New York, i.e., the cost, as illustrated in the recent decision by the Court of Claims in Gyrodyne Co. of America Inc. v. State.2

Atlantic Yards

Last November, the Court of Appeals decided Matter of Goldstein v. N.Y. State Urban Dev. Corp.,3 holding that the findings of the Empire State Development Corporation (ESDC), formerly the New York State Urban Development Corporation, of blight and its determination pursuant to Eminent Domain Proceedings Law (EDPL) §204 that the condemnation of privately owned property known as the “Atlantic Yards” in downtown Brooklyn for inclusion in a proposed 22-acre mixed-use development qualified as a “land use improvement project” were rationally based and entitled to deference, notwithstanding that the project was to be undertaken by developer Bruce Ratner and the real estate entities of which he is a principal.

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