New York State and City are increasingly desperate for tax revenue. This desperation makes the highest state court’s upcoming ruling on whether the Empire State Development Corp. (ESDC) has the right to seize private property for the Atlantic Yards redevelopment project in Brooklyn very important to private property rights here.

The most significant component of Atlantic Yards is high-rise, market-rate apartment buildings. The state has declared the property blighted, and thus fit for condemnation, not based on dangerous or unsanitary conditions, but largely on “underutilization” — that is, that people aren’t using their property to the maximum allowed under the law.

In arguments this week, one judge asked the state’s lawyer: “is it the law of New York that if I own a house in an area that the government thinks could be improved, a perfectly nice house, it’s a clean house, nothing particularly wrong with the area, but it could be better, more vibrant, more dynamic businesses, is that enough for the government to [condemn and seize] the house?”

The state’s answer: “Under New York State constitutional law, yes, it is.” The state’s attorney cited a case that goes back to the construction of the World Trade Center, in which the the state court approved the condemnation of 13 blocks in Lower Manhattan to build a project that it thought would be a tremendous economic boon.

But the state judges in that case ruled based on federal law. And New York State’s actual constitution has no murky “public purpose” clause under which economic development usually falls, only a clear “public use” clause. In fact, voters rejected a “public purpose” addition to the state constitution more than 40 years ago.

This distinction has become much clearer and more important since the 2005 Kelo case, in which the U.S. Supreme Court officially green-lighted a much broader definition of “public purpose” under the U.S. Constitution’s “public use” clause to include economic development.

The court, then, has a chance to reassert the state constitution in the Atlantic Yards case, which, interpreted correctly, holds New York to a higher standard.

If it does not, anyone who lives in an “underutilized” property — like a three-story brownstone on a lot that’s fit for a skyscraper — should be very worried.

His property rights are only subject to Albany’s disinclination to seize his property in an attempt to squeeze out more tax revenues for the ever-insatiated political interests.

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