Standing Pat in a Post-Kelo World: Preservation of Broad Eminent Domain Power in Kaur V. New York State Development Corp

IntroductionThe right of property has been called "the guardian of every other right."1 It is not, however, an absolute right-property has always been subject to reasonable statutory and judge-made regulations.2 The consequent tension between state power and individual rights is particularly evident in cases of eminent domain, or the right of a government, through the formal process of condemnation, to seize private property without consent.3The Takings Clause, part of the Fifth Amendment of the U.S. Constitution, limits the exercise of eminent domain through the "public use" requirement, which mandates that any government taking serve a public purpose.4 To illustrate, it would be unconstitutional for the federal government to take private property from A and transfer it to B for the sole private benefit of B.5 Disputes involving eminent domain, however, are often not so clear-cut.6 For instance, what if B is a private party but promises to develop the land in a manner that yields substantial public benefit?7This was the question that confronted the U.S. Supreme Court in 2005 in Kelo v. City of New London.8 The state was attempting to seize private property through eminent domain, and then turn it over to other private parties for commercial development.9 The Court upheld the taking in a contentious 5-4 decision, reasoning that economic development by private parties could be a valid public use within the meaning of the Takings Clause.10 aur II ).16In response to Kelo and the public outcry it provoked, many state legislatures sought to limit eminent domain.11 By June 2008, thirty-seven states had enacted some form of legislation curtailing its exercise.12 New York, however, was not one of them.13 Although the movement to rein in eminent domain found no traction in the state legislature, it persisted in the state courts in the form of petitions challenging state condemnations of property.14 In 2009, Kaur v. New York State Urban Development Corp. (Kaur I ) came to the First Department of the New York Supreme Court, Appellate Division, presenting many of the same issues at controversy in Kelo.15 Although the Appellate Division took the opportunity to curtail the state's power of eminent domain in Kaur I, it was ultimately reversed by the Court of Appeals, New York's highest court, in the 2010 case Kaur v. New York State Urban Development Corp. (KPart I of this Comment provides a brief legal history of eminent domain in New York-with a specific focus on condemnations for blight removal and civic projects-to contextualize the decisions reached in Kaur I and Kaur II.17 Part II examines how the two courts reached their respective decisions, with a particular emphasis on the standards of review employed and the degree of deference accorded to agency determinations. 18 Finally, Part III argues that the standards for review and deference that won out-those employed by the Court of Appeals- help to preserve the tradition of broad eminent domain power in New York by limiting the judiciary's power to invalidate state condemnations. 19I. Eminent Domain in New York: A Brief Legal HistoryThe takings clause of the New York state constitution, like that of the U.S. Constitution, includes a public use requirement that requires state takings of private property to serve a public purpose.20 In 1936, in New York City Housing Authority v. Muller, the Court of Appeals held that removal of blight constitutes a public purpose.21 The U.S. Supreme Court reiterated as much in 1954 in Berman v. Parker, holding that blight removal, slum clearance, and redevelopment could permissibly trigger eminent domain.22 It has since become a well-established principle in New York case law that blight removal is a public use within the meaning of the state takings clause, and therefore a valid predicate for the exercise of eminent domain.23Moreover, the state constitution expressly empowers the legislature to provide for the "clearance, replanning, reconstruction and rehabilitation" of blighted areas. …