Much Ado About Eminent Domain

After guaranteeing the rights to a grand jury, due process, and freedom from double jeopardy and self-incrimination, the Fifth Amendment ends with the words "nor shall private property be taken for public use, without just compensation." That would have been fine, except that the past 214 years have seen an ever-changing definition of "public use."

Strictly speaking, "public use" means "direct use by the public"-a highway or a park, for example. But what if "public purpose" were also factored into the mix? A sewage treatment plant isn't directly used by the public, but it directly serves a public purpose. But suppose the park is operated by a private organization that commits to keeping the park open to the public, or that the sewage plant is operated by a private corporation that is nevertheless tied into a municipal water grid. Are those legitimate interpretations of "public use"? Most people would say yes.

But what if "public purpose" were to be extended even further to include taxes? For liberals, more tax money serves a public purpose because the government can spend more on social programs. For conservatives, more tax money serves a public purpose because the government can cut taxes. Such was the reasoning in this summer's 5-4 Supreme Court decision of Kelo v. New London, which allowed the city of New London to take a row of houses and grant the land rights to Pfizer, Inc.-not to build a new park open to the public or a new sewage plant serving the public, but a new office complex for Pfizer. The "public use" justification? According to Justice Stevens: "increased tax revenue."

Of course, it provoked an immediate response from the anti-Manhattanville expansion camp. Attorney Norman Siegel instantly swore that he would fight it all the way back up to the Supreme Court. Then there were the crows of victory when the New York House of Representatives proposed that a committee recommend that Governor Pataki impose a six-month moratorium on its use. As for me, I have four words of advice: chill the hell out.

The decision doesn't give New York State any more legal backing for using eminent domain in the case of Manhattanville, nor does it give anti-expansionists any more legal ammunition should it be challenged.

To begin with, the beneficiaries of Kelo v. New London were the city of New London and Pfizer, Inc. Pfizer wanted to build a private office complex dedicated to profit-centered activities. If New York State invokes eminent domain for Manhattanville, the developer will be Columbia University, not Wal-Mart. Columbia's plans call for an open campus dedicated to education, not profit, with cross-streets preserved and a large open-area public park in the center.

Next, the approach New York State will take in deciding whether to use eminent domain is to first determine if Manhattanville is blighted. The right of a government authority to take land under "blight" conditions has been repeatedly upheld and reaffirmed since it was established in the 1954 decision of Berman v. Parker. The Kelo decision, on the other hand, deals only with properties that are not "blighted or otherwise in poor condition." In other words, legally speaking, Kelo doesn't apply to Manhattanville and brings nothing new to the table.

If anything happens in Manhattanville, the process won't be guided by Kelo v. New London but rather by the original ruling of Berman v. Parker: it has to be "injurious to the public health, safety, morals, and welfare" to be considered blighted. Is it? Perhaps. All I can say is that having walked through Manhattanville after dark, it's not something that I'm eager to do again. Will allowing Columbia to purchase and redevelop it serve both a public purpose and the public good? One could make that argument. After all, there will be a public park, public streets, and a public school. More than a quarter of Columbia's $2.2 billion operating budget is drawn from government grants for publicly approved research and education.

The controversy these days isn't whether the Manhattanville area would be better off hosting a Columbia campus than existing in its present state, or if the case with Manhattanville calls for the use of eminent domain, both of which are still contested. Both have been settled. If anything, the looser definition of "public use" established in Kelo strengthens the position of New York State where eminent domain is concerned, even if the specific circumstances don't apply to Manhattanville. The real debate is whether the State should displace six businesses and cause a local appreciation in rent in return for the revitalization and redevelopment of an area to have national and potentially global impact. The spirit and letter of the law merely say it is permissible. The burden of proving whether it is proper or not lies with Community Board 9.