LongBench v2 / 66f958b3bb02136c067c5219 / In light of the empirical data reflecting a decline in urban renewal projects…

Is the government exhausting its powers? An empirical
examination of eminent domain exercises in New York
City pre- and post-Kelo
Abstract
A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state’s emi-
nent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as
one of the single states not to respond with a legislative amendment. In this study, I ask whether the state’s predation was
greater in the years following these legal and political developments, in light of the freedom which was granted to local politi-
cians by both the Supreme Court and the state’s legislators. The article hypothesizes that contrary to common perceptions,
judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous
statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo.
The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly
expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the
law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper
finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a tak-
ing for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even
when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to
an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and
that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their
exercise of power.
Keywords: eminent domain, private property, state predation, takings for economic development projects.
1. Introduction
In June 2005, the U.S. Supreme Court delivered one of its most influential decisions in terms of the ensuing legis-
lative backlash. In Kelo v. City of New London,1 the U.S. Supreme Court ruled that the Public Use Clause of the
U.S. Constitution Fifth Amendment does not deny states the power to take private property for “public purpose”
that is not a collective good. Furthermore, the Court ruled that the states’ power applies to takings for “private
benefit,” even in cases where the property taken was not blighted.2 The decision therefore permitted transferring
private property to private parties simply for the purpose of economic development, even if the property taken
could not be said to inflict harm on society.
There is an ongoing debate as to whether the Kelo decision reaffirmed a preexisting doctrine,3 or significantly
extended it. Be it as it may, the decision was met with strong public opposition, which was reflected in several
state and national polls (Hoehn & Adanu, 2014; Somin, 2015, pp. 140–141; Strother, 2016), and encouraged by
intensified media coverage (L

opez et al., 2007; Nadler et al., 2008; Strother, 2017, pp. 87; Zilis, 2015). Notwith-
standing, as the Kelo majority of justices emphasized in their decision, nothing in it precluded “any State from
placing further restrictions on its exercise of the takings power” (Kelo, at 489). Indeed, all but five states enacted
post-Kelo reforms to their eminent domain state laws or constitutions.4 Most of these legislative reforms took
*Correspondence: Ronit Levine-Schnur, Harry Radzyner Law School, Reichman University
(Interdisciplinary Center Herzliya), 8 University Ave., Herzliya, Israel. Email: ronit.levineschnur@idc.ac.il
Conflict of interest: The author declares no conflicts of interest.
Accepted for publication 17 March 2022.
© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits use and distribution in any
medium, provided the original work is properly cited, the use is non-commercial and no modifications or adaptations are made.
Regulation & Governance (2023) 17, 449–468
doi:10.1111/rego.12464


place soon after the decision (Somin, 2015, pp. 179). Kelo has therefore resulted in more new state legislation
than any other Supreme Court decision in American history (Morriss, 2009; Nadler et al., 2008; Somin, 2015,
pp. 135–136).
The Kelo case and its aftermath provide an opportunity to test the interplay between courts, legislators, and
public opinion following a state-empowering decision (Sharp & Haider-Markel, 2008). Kelo offers an empirical
example or “social experiment” in Posner’s words (2008, p. 319) to explore state- and city-specific policies that
develop under flexible limitations set by federal constitutional law. The comprehensive legislative response to the
Kelo case has therefore been used by some as evidence to support the functionality of the political process
(Posner, 2008, p. 319; Stevens, 2005, p. 4). Ostensibly, just as traditional political theory predicts, rights supported
by the majority are well protected through the political process and are not dependent on judicial intervention
for their recognition (Ely, 1980, pp. 87–88), that is, if the majority’s rights are infringed it would exploit its politi-
cal power to direct the government to what it perceives as the right direction. Furthermore, if no reform is
approved in a particular state, this is arguably because in that state, the public’s opinion does not sufficiently dis-
approve of the Court’s decision, and not because of any systemic failure.
However, the picture seems to be much more complex than that. Many of the legislative reforms have been
little more than symbolic. They have not abolished or strictly limited economic development takings, allegedly
failing to meet popular demand. For example, many states have banned takings for economic development pur-
poses but exempted blight condemnation, allowing significant loopholes in their reforms (Somin, 2015, p. 150).
This is in line with the public choice theory prediction that in response to public outcry, legislators have a strong
incentive to do something to appeal to their constituents’ demands. Rational legislators may be inclined to settle
for symbolic reassurances to an outraged populace (Edelman, 1985; L

opez et al., 2009, p. 107). Indeed, Somin
argues that the weakness of much of post-Kelo legislation can be attributed to the public’s ignorance.
While the public did show interest in the issue of economic development takings soon after the Kelo decision
was granted, and while this interest was firmly expressed so that legislators responded in a way that resonated
with deliberative democracy, this popular interest was not transformed into an ability to scrutinize the details of
a proposed reform legislation (Somin, 2015, p. 166). This argument can be extended to explain why, in the
minority states, no legislative reforms were enacted despite that even in them the revealed popular opinion was
against the Court’s decision (cf. Gutmann & Thompson, 2009).
Somin views the Kelo legislative backlash as a strong indication for the limitation of traditional political the-
ory (Somin, 2015, p. 178). He further argues that as the public’s attention to eminent domain tails off over time,
the weakness of the legislative response will be abused by interest groups aiming to promote economic develop-
ment and blight condemnations without fear of public scrutiny. Therefore, the need for judicial intervention may
well increase over time rather than diminish (Somin, 2015, pp. 179–180). Consequentially, according to this
application of public choice theory, the Court’s reluctance to intervene, coupled with the popular voter’s political
ignorance, would result in a gradual distancing from what the majority wants.
Notwithstanding the strong scholarly rhetoric, the predictions of the public ignorance theory have never been
empirically tested. No study has sought to test empirically the question of whether, in the absence of legal duty to
avoid takings for economic development and blight condemnation, the government would indeed exercise its
eminent-domain power excessively to the detriment of its citizens’ preferences. In fact, there is a paucity of quan-
titative literature on the factors that influence the decision to use eminent domain. One recent attempt to fill this
gap was a survey of country managers in North Carolina examining how they used eminent domain and their
attitudes toward it for the period between 2002 and 2007 (Hoyman & McCall, 2010). While the survey showed
that the county governments were extremely cautious in their use of eminent domain authority, allowing only
7 out of 99 instances for economic development, the authors concluded that it would be premature to character-
ize their analysis as a true impact study because not enough time has passed between the Court’s decision and
the survey (Hoyman & McCall, 2010, p. 891).
This paper seeks to fill the void by providing an empirical examination of a single case study to show how
the public debate following the Court’s decision relates to actual eminent-domain practice. It presents an alterna-
tive hypothesis to the prevailing theories: public officials in the taking context are attuned to the public’s prefer-
ences and to actual planning needs and therefore avoid exercising the full capacity of their powers even though
they are legally permitted to do so.
© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
450
R. Levine-Schnur
Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and
post-Kelo
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Empirically testing the validity of the competing hypotheses is a difficult task. The approach of this paper is
to focus on New York City, which thanks to data availability, provides an empirical opportunity to analyze the
effect of Kelo on a specific case study. New York State is one of the few states that have not reformed their emi-
nent domain law after the decision. Moreover, the State’s highest court reapproved the pro-taking practices even
after Kelo (Mihaly & Smith, 2011),5 making an exception to the general post-Kelo pattern of stronger state judi-
cial scrutiny of public use issues (Somin, 2015, pp. 190–191). Noticeably, in two of the five states that did not
reform their takings laws following Kelo, the high courts increased protections against takings for private use.
Based on the case law, New York seems to be a case of resistance to the “Kelo storm.”6
This study uses a quasi-experimental approach, taking advantage of availability of accurate micro-data on
eminent-domain practices for New York City’s condemnations over a substantial period before and after the legal
change. Digging into the City Record and reviewing cases, data were collected and coded on all exercises of emi-
nent domain by New York City from 2002 to 2019. In addition, Yun-chien Chang’s novel studies on compensa-
tion practices in the city (Chang, 2010, 2011), which he generously made available for this study, enabled the
compilation of full data on the condemnation practices of New York City from 1991 to 2003.
The study reveals that over a period of 29 years, the City executed its condemnation powers over 197 projects
that included 3359 lots across the five boroughs, comprising the sample group. Following the logic of the public
choice hypothesis, one could expect to see, for the post-2005 group, no apparent change in condemnations for
non-public use purposes—economic development or urban renewal—if not a gradual increase with such takings.
However, I find that while the City was not legally bound to do so, in the years following the Kelo decision, it sig-
nificantly dropped condemnation for economic development and economic renewal by 90%. The findings appear
to call into question the prominence of traditional political theory and the public choice hypothesis as the single
explanation for government behavior in the taking context. This holds true even if considering the effect of the
economic recession of 2008.
The remainder of the paper unfolds in four sections. Section 2 explains the relevant New York eminent
domain law and presents current perceptions about its condemnation practices before and after Kelo. Section 3
constructs the research design, providing the specifics of the study settings and data sources. Next, Section 4
details the findings. Finally, Section 5 discusses possible interpretations of the findings and points out the limita-
tions of the study. A short conclusion ensues.
2. Current perceptions about New York’s condemnation practices pre- and post-Kelo
A common perception about New York after Kelo is that the Court’s decision bolstered the state and particularly
New York City’s abuse of eminent domain for economic development purposes (Somin, 2015, p. 85). Advocates
working with the Institute for Justice opined that following Kelo, state and local officials in New York “responded
with a binge of takings for private development to rival any other state in the nation,” and that “city officials appear
to be acting as if no one will be looking over their shoulder,” where the legislature “has left New Yorkers at the
mercy of unholy alliances between land-hungry developers and their bureaucratic allies” (McNamara, 2011,
pp. 296–297, 300). Another advocate who led the Kelo case before the Supreme Court commented that since Kelo,
“the use of eminent domain in New York has been by far the worst. It sounds like a parody of takings horror
stories.” (Berliner, 2015, pp. 89; see also Carpenter & Ross, 2010).
This pessimistic opinion regarding New York’s response to Kelo is based on a number of reasons that are
reviewed below. First, the fact that there was no legislative reform in the state. Second, that two high-profile pro-
jects met the approval of state courts. And lastly, the Institute for Justice’s reports displaying critical growth in
the number of takings for economic development projects in New York post-Kelo.
The fact that no legislative reform took place cannot be disputed. However, it does not necessarily imply
worsening taking practices in the post-Kelo period, if prior to the decision there was already a long and
established tradition of taking for economic development. Indeed, this was the case in New York.
New York’s Constitution Eminent Domain Clause7 mirrors the wording of the U.S. Constitution Fifth
Amendment. Accordingly, the jurisprudence dealing with the New York constitutional provision has generally
fallen in line with the Supreme Court’s interpretation of the Public Use Clause, if not foreshadowing it
(Salkin, 2007, p. 4). From early on, New York State and New York City in particular have been among the most
© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
451
Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo R. Levine-
Schnur
 17485991, 2023, 2, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/rego.12464, Wiley Online Library on [29/09/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License


prominent supporters of takings for private-to-private blight condemnations (Caro, 1974; Jacobs, 1961, pp. 7–8;
Pritchett, 2003, p. 37; see also Goldberger, 2007; Somin, 2015, p. 86), with strong backing by state courts (Nichols
Jr, 1940, p. 630, n. 80; Salkin, 2007). This has been expanded over the years to encompass a very broad justifica-
tion for economic development takings (Hills, 2012).
New York’s Eminent Domain Procedure Law (EDPL), which dates back to 1977, is considered as employing
“loose statutory restrictions” on eminent domain power. While it enumerates these powers and specifies bureau-
cratic procedures, it does not otherwise place restrictions on condemning authorities’ powers (L

opez et al., 2009,
p. 104). In particular, EDPL Section 103(G) states: “‘Public project’ means any program or project for which
acquisition of property may be required for a public use, benefit or purpose.” In addition, the Urban Renewal
Article of the General Municipal Law,8 enacted in 1961, which is the primary legislative provision concerning tak-
ings for the purpose of economic development, mandates that eminent domain may be exercised in “substandard
or insanitary areas.” In fact, this was interpreted so that blight is not necessary in order to use eminent domain;
and property may be taken even if it is not substandard if this proves necessary in order to rehabilitate a larger
area (Salkin, 2007, p. 6).
Consequently, New York’s courts have created a presumption that economic development is a public purpose
(Salkin, 2007, p. 5; Hills, 2012). As one court puts it, “in New York, the term ‘public use’ broadly encompasses
any use, including urban renewal, which contributes to the health, safety and general welfare of the public.”9
Absent a clear showing of unreasonableness, the courts’ review is limited only to ascertain whether the project is
rationally related to a conceivable public purpose.
Following the Kelo decision there have been at least 17 post-Kelo bills to reform the EDPL or the State’s Con-
stitution.10 The New York State Bar Association convened a Special Task Force on Eminent Domain, which fol-
lowing a statewide summit in 2006, published an interim report including eight recommendations for amending
eminent domain practices. The proposal was adopted by the Bar’s House of Delegates. Furthermore, a number of
municipalities have adopted local eminent domain resolutions or laws. However, none of the bills has been
enacted, nor have the EDPL or the State’s constitution been reformed. There is no clear explanation for that. For
the purposes of this study, I did not explore records of the New York City government and the governments of
the five boroughs to determine whether anyone was talking about Kelo. Nor can I answer the question whether
mayoral or local campaigns turn on condemnation policy or at least discuss policy.
Two studies on states’ responses to Kelo have aimed to explain differences in legislative behavior. Overall, they
provide a variety of potentially relevant factors. Sharp and Haider-Markel studied state legislative responses for
the two years following the decision. Their analysis suggests the need to discount the effect of political factors as
predictors for states’ behavior, in line with prior studies on states’ responses to the Supreme Court’s abortion pol-
icy “invitation” to the states (Cohen & Barrilleaux, 1993; Medoff, 2002; Sharp & Haider-Markel, 2008). However,
they stressed the role of interest groups at the state level, particularly that of populist or grassroots activist
involvement in legislation, which is more successful in states where legislatures’ professionalism is weaker
(Sharp & Haider-Markel, 2008). In another study, L

opez et al. (2009) identified that the decision to enact a mean-
ingful restriction on the eminent domain power was a function of political economy measures: states with more
economic freedom, greater value of new housing construction, and less racial and income inequality were more
likely to have enacted stronger restrictions. This study, conducted three years after the Kelo decision, rightly
predicted that New York would be among the few states unlikely to reform their laws at all.11 Nevertheless, this
fact alone cannot support the perception of New York’s growing appetite for takings following Kelo.
The second reason that underlies the common perception about New York’s response has to do with two
high-profile decisions delivered by the New York Court of Appeals in 2009 and 2010.12 These decisions contin-
ued to give wide scope for for-profit condemnation projects (Somin, 2010). In Goldstein, also known as the Atlan-
tic Yards project, the Empire State Development Cooperation (ESDC), a state agency, took private property in
order to transfer it to a private developer, Bruce Ratner. The initial plan was to build high-income housing and a
new stadium for the New Jersey (Brooklyn) Nets basketball team. The project was first announced in 2003 and
the land was formally taken at the end of 2006. The ESDC was also involved in Kaur, also known as the Colum-
bia University project. Private property was taken in order to expand the University and build new educational
and research facilities on its campus. The project was first announced in 2001 and the land was formally taken in
August 2008.
© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
452
R. Levine-Schnur
Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and
post-Kelo
 17485991, 2023, 2, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/rego.12464, Wiley Online Library on [29/09/2024]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License


In both cases, the state’s courts approved the takings while relying on a broad definition of “blight,”13
although not necessarily broader than in prior cases (Hills, 2012). Indeed, as one justice put it, these rulings “have
made plain that there is no longer any judicial oversight of eminent domain proceedings,”14 but the only
advancement compared to earlier jurisprudence is that the Court ruled that pre-Kelo practices would persist. The
question is therefore whether beyond their high profile, these cases are representative of New York City’s practical
response to Kelo. Recall that in both cases, the projects began long before the Kelo decision. Moreover, they were
controlled by a state agency whose involvement allowed the City to avoid public criticism (Fischel, 2004). In
other words, while it cannot be disputed that in these projects the ESDC has advanced massive taking of private
property for economic development or non-public use ends, it is not clear to what extent they reflect the city’s
taking practices following Kelo. The claim that the rulings place “property owners across the state, particularly
those in New York City, at risk and makes legislative reform an even more pressing priority” (Carpenter &
Ross, 2010) needs to be tested if the implication is that the risk has actually grown.
Lastly, we turn to the reported numbers of takings. Prior to Kelo, the Institute for Justice published a compar-
ative review of states’ takings practices and in particular takings for economic development purposes
(Berliner, 2003). The empirical findings
of this study
were relied
on by many
subsequent
studies
(e.g., Kerekes, 2011; Lanza et al., 2013; L

opez et al., 2009; Sharp & Haider-Markel, 2008). For New York State, the
Institute was able to locate only 14 private use projects from 1998 to 2002, covering as little as 57 businesses (and
threatening another 89). In addition, for the three-year period 1998–2000, a survey of the New York Unified
Court System revealed 490 condemnations filed for all taking purposes, including traditional public uses. These
numbers appeared to the reporter suspiciously low in comparison with other states, a finding that did not stop
her from portraying New York City as “the site of some of the most egregious condemnations for private use”
(Berliner, 2003, p. 2) and New York State as “perhaps the worst state in the country for eminent domain abuse.”
(Berliner, 2003, p. 144). However, when calculating the number of economic development takings (including
threatened properties) per total housing units or total population, the State is ranked 23 out of 50 (Kerekes, 2011,
pp. 206–207).
The Institute for Justice’s updated review from 2009, which was also based on news reports, observed that
between 1998 and 2008, 2226 properties across the state were condemned or threatened with condemnation for
private development involving 74 development projects (Walsh & McNamara, 2009). Compared to the Institute’s
earlier study reported above, the average number of properties involved grew fourfold (from 48.6 to 202.3 per
annum), while the average number of projects grew by a factor of 1.44 (from 4.66 to 6.72). However, in the year
following the Kelo decision (June 2005 to June 2006), Berliner estimated that across the country the number of
properties condemned or threatened with the use of eminent domain to benefit other private parties
(Berliner, 2006) was nearly three times higher per year than in 1998–2002. Based on these estimations, the
growth patterns observed for New York were not dramatically different than were those across the country
(Kerekes & Stansel, 2016).
The attempts to properly identify the patterns of takings in New York following the decision were therefore
partial and incomplete. Thus, as the New York State Bar Association Task Force on Eminent Domain reported,
empirical data on actual eminent domain practices were lacking: “little State-specific research and data exist to
accurately assess both the need for, and impact of, many of the proposed reforms” (New York State Bar
Association, 2007). The purpose of this paper is therefore to test whether indeed following Kelo, New York City
unleashed its powers as predicted by public choice theory and practitioners.
3. Methodology
In Kelo v. City of New London, the Supreme Court empowered states to toughen their eminent domain laws so
that takings of private property for purposes such as economic development and urban renewal would be banned.
While almost all the states accepted this “invitation” due to the overwhelming public response, New York did not
respond with a legislative reform. This provides us with a natural opportunity to examine how public officials
react to a change with revealed public preferences that are not transformed into a change in the legally binding
limitations on the use of power. The intensity of the public debate was an exogenous event whose occurrence was
not anticipated, especially since the Court did not in fact change the preexisting doctrine (Bell &
© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
453
Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo R. Levine-
Schnur
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Parchomovsky, 2006). Where the treatment is applied randomly, not as a policy response to trends in levels of
activity and without relation to the prior state of affairs of the dependent variable, “the correlation between pre-
test scores and exposure to treatment is zero” (Campbell & Ross, 1968, p. 40). Even though in such cases, it is
reasonable to interpret trends prior to, and after, the political response as evidence of its causal impact
(Gerring & McDermott, 2007, p. 6). Nonetheless, caution should be exercised when inferring causality because of
the inability to produce sufficient controls or a proper control group. This study aims therefore to describe the
results, test whether the legal development is associated with changes in the taking practices and suggest this case
study only as a prediction (Privitera, 2018, pp. 240–241). I have no data on the actual needs (the demand side).
Nor can such data be obtained. “Natural experiment” design of this type has its limitations.
The logic of the public choice/political ignorance argument suggests that public officials in New York, left to
their own devices by Kelo and no further state-level legislative or judicial interventions, would respond to Kelo by
disproportional engagement with takings, particularly for economic development or urban renewal after 2005. To
test empirically the effect of the decision on taking practices in New York City, this study uses a pre-post
section quasi-experiment. To that end, a substantially long period before and after the legal change needs to be
studied and compared. The data include all condemnation exercises by the City or ESDC15 during a decade and
a half before and after the decision (1991–2019), their specific taking purposes, and their exact dates and
locations.
In order to estimate the effect of the legal decision on condemnation practices, the following multiple logistic
regression was estimated:
Prob TakingType ¼ urban renewal
ð
Þ ¼ boroughþlegal changeþproject sizeþelection yearþerror:
The dependent variable is taking projects for any purpose other than “pure” or “traditional” public good. I
cluster all such purposes as “urban renewal,” including both what could be labeled as slum remediation, blight
removal, and economic development projects where the property taken cannot be said to inflict harm on society.
I also did not distinguish between cases where the property is transferred from private owners to the public or to
other private parties, a distinction that fueled much of the debate around Kelo. If the purpose of taking was not
solely for general “traditional” public use, that is, collective goods (Epstein, 1985; Hoyman & McCall, 2010,
p. 886), it was categorized as “urban renewal.”
This clustering is justified both on practical and theoretical grounds. Practically, the data do not allow to
properly distinguish between the blight and economic renewal projects without injecting high degree of discre-
tion. The data available on each project are not detailed enough to properly attest to whether prior to condemna-
tion the property inflicted harm on its surroundings.
Theoretically, what may be identified as blight areas in need of a fix might rest on biased considerations,
insensitive to local communities’ needs and customs. Furthermore, it is possible that conditions of “blight” were
created as a result of intended actions by developer. So was argued, for instance, with respect to Columbia
University’s Manhattanville expansion and the Atlantic Yards. Critics of the project accused Columbia of using
the property that it owned to create the blight that would ease its use of eminent domain (Levin, 2016). Thus,
although these distinctions were prominent in scholarship post-Kelo, the data cannot properly capture it.
Testing the decision whether to execute an urban renewal project requires centering the analysis around pro-
jects and not their sizes or the numbers of lots or blocks associated with them. As full data on project sizes in
terms of land taken were not available and cannot be computed, the regression uses as controls project size in
terms of the number of blocks (or lots) associated with it. Other independent variables include the legal change,
boroughs, and mayoral election years. For robustness an alternative estimation is offered where the number of
lots per taking is used as a multiplier to the observations. In addition to the multiple regression model, separate
models were estimated for each period in order to directly assess whether the yearly trend for the share of urban
renewal projects relative to other types of takings projects changed between the pre-2005 period and after it.
3.1. Data
Prior research indicated the difficulties of obtaining data on condemnation practices in the city (Chang, 2011;
2010). Therefore, three data strategies were employed. For additional information about the data collection
© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
454
R. Levine-Schnur
Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and
post-Kelo
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methods and the databases see the Supplementary Appendix. The first data source is based on Yun-chien Chang’s
two original studies on eminent domain in New York City, focusing on compensation paid from 1990 to 2003
(Chang, 2010, 2011, p. 201). In the first paper published in the Journal of Legal Studies, he collected data on con-
demnation compensation from 1990 to 2002 from title certification sheets stored in the N.Y.C. Comptroller’s
Office and from the records stored in the five county courts (Chang, 2010). Chang identified 430 fee condemna-
tion settlements during this 13-year period. For the second paper, published by the Journal of Empirical Legal
Studies, Chang collected 27 court-adjudicated compensation cases, which he believed to be the entire population
of court compensation cases in the city for 1990–2003 (Chang, 2011). The cases were secured from a variety of
resources, most importantly the record rooms of the five county courts.
The second data source was condemnation notices by the City or ESDC published in the City Record—Official
Journal of the City of New York.16 The City Record is an established institution dating back to 1873
(Kilgannon, 2019). However, to the best of my knowledge, no prior study has examined its records systematically
to observe municipal practices over a long term. Every year, an average of 250 daily issues is published. Complete
PDF files of daily issues are available from 5 March 2008 to date.17 Unfortunately, earlier volumes were not elec-
tronically available at the time of study. For issues published since 2013, the City Record is also available through
an online searchable database, CROL, made public in 2017.18
The third data source was case reviews for the entire period under examination. Lexis Advance was searched
for New York cases in both state and federal courts, using the search term “eminent domain procedure law.” This
resulted in 329 hits for state courts, of which 261 cases were decided after 1 January 1990. A similar search was
also conducted for federal cases, limiting to “New York” in addition to “eminent domain procedure law,”
resulting in 99 hits, 82 of which were in the period under study.
Two additional previous studies on condemnation in New York were consulted. First, Carpenter and
Ross (2010) analyzed development projects in New York City and Long Island to determine the demographic
profile of residents of communities surrounding project areas. They were able to find information on six projects
where eminent domain had been used or threatened. This included three projects represented in this study—
West Harlem-Manhattanville, Atlantic Yards, and the Harlem-East Harlem Urban Renewal Area—as well as two
other projects in Long Island, which is not included in this study, and another in Jamaica. Second, another report
by the Institute for Justice (Walsh & McNamara, 2009) added to the three abovementioned projects the Brooklyn
Center Urban Renewal, and the Willets Point Urban Renewal Plan, also represented in this study.
Lastly, I referred to the New York City Automated Register Information System (ACRIS).19 ACRIS includes
all documentation about property sales and records in the city. The system, which is under the responsibility of
the City Register, includes documentation of deeds, mortgages, and satisfactions of mortgages, Uniform Commer-
cial Code (UCC) financing statements, and Notices of Federal Tax Liens. The system allows to search property
records and to view documents for each borough except Staten Island from 1966 to the present. The entire set
contains (as of 12 February 2020) 14,985,920 records of transactions of all kinds. For each registration, the docu-
ment type is identified. There are 124 possible document types distributed among four categories: deeds and
other conveyances, other documents, mortgages and instruments, and UCC and Federal Liens. Only two docu-
ment types are directly related to condemnation: “Condemnation Proceedings” and “Notice of Appropriation.”
Only 139 documents of these types were found in the examined period, clearly suggesting that this search proce-
dure is unproductive, for reasons that are beyond the current scope.
4. Findings
This section provides a general description of the levels of activity over the entire study period and for each of
the tested periods (before and after Kelo). This is followed by explanations of the relevant variables of project size
and project purpose. Finally, the regression results are described.
4.1. Description of the data
As can be seen in Table 1, the Case Review provided information on a total of 22 projects. These projects range
from 2000 to 2008, with one project in 1991. The Case Review also provided additional information on one
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project already covered by Chang’s database. This distribution indicates that Chang’s database is thorough and
reliable for both compensation analysis and for the condemnation practice at large, with a caveat that toward the
end of his examined period compensation settlements were not yet secured for projects only just announced. In
addition, the Case Review does not add cases to the period covered thoroughly by the City Record database
(March 2008 onwards).
For the years covered exclusively by the Case Review (2004–2007), there were 12 projects, with an annual rate
of 3, whereas the average annual rate of projects for the years covered by Chang and City Record databases was
6.53, and 7.41, respectively. This gap indicates that either the case review is not comprehensive enough to identify
all relevant projects, or that these years were different because of the legal change or unrelated reasons. The data
do not allow determining which, posing an empirical limitation that cannot be eliminated. In other words, due to
data limitations, the immediate short-term response to the legal change cannot be properly verified. The data can
provide much better knowledge on the long-term effect. However, it should be emphasized that the Case Review
as a limited data source is the only source available for the years adjacent to the legal change, both before and
after. Hence, there is no intentional manipulation.
4.2. Taking activity levels
As can also be seen in Table 1, the integrated dataset, which is based on the three data sources, includes 3359
lots20 (compromising 0.4% of the city’s lots, Ellen et al., 2016, p. 13), over 640 blocks condemned in the examined
period, representing 197 development projects.21
Table 1
Summary of projects, blocks, and lots by source and by legal change
2005
Source
Projects
Blocks
Lots
Pre
Chang
85
265
687
Chang + Case Review
1
7
10
Case Review
12
14
48
All sources
98
286
745
Post
City Record
89
322
2490
Case Review
10
32
124
All sources
99
354
2614
Total
197
640
3359
1991
and
1993 1995
1997
1999
2001 2003
2005
2007
2009
2011 2013
2015
2017
2019
Figure 1
Takings in New York City (1991–2019) by projects (n = 197), blocks (n = 640), and lots (n = 3359).
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Figure 1 overlays the number of projects, blocks, and lots taken per year across the city. As can be observed,
the number of projects is quite stationary over the period (1–13 per year), while that of blocks and lots varies. A
pairwise correlation per year, displayed in Table 2 shows that while there is a strong correlation between projects
and blocks as well as between blocks and lots, there is a weak correlation (at the 5% level) between projects and
lots over the years.
As shown in Table 1, comparing the observations before and after 2005 reveals virtually no change in the
number of projects, a slight increase in the number of blocks affected, and an inconsistent fluctuation in the
number of lots. In order to examine the change in project sizes between the periods, a Wilcoxon test was esti-
mated. No statistically significant difference in project sizes between the periods was found by lots (χ2
197,1 = 3.72,
p = 0.05) or by blocks (χ2
197,1 = 1.13, p = 0.29). The jump in the number of lots in the post-period is totally
attributed to five infrastructure projects that together include 1529 lots (58% of the lots taken in the post-period).
If these projects are excluded, the proportion between blocks and lots per project in both periods is roughly
the same.
4.3. Project size
The distributions of the number of blocks and lots per project have long tails to the right with rare extreme cases
(see Table 3).
It is therefore better to incorporate blocks and lots as measurements of project size using three aggregated
ordinal categories. By blocks, projects were classified as small (one block), medium (two to four), or large (five or
more). By lots, projects were classified as small (less than 5 lots), medium (5–25), or large (over 25). The two
classifications are not identical but rather close with a Gamma measurement of 0.93 (95% confidence interval
[CI] 0.89–0.97). Using these scales enables the analysis to take into account the different magnitudes of projects
while the comparison between them provides robustness confirmation.
Moving to the categorical variable allows to observe that the differences between the pre- and post-periods
are still insignificant for project size, by either lots (χ2
197,2 = 3.72, p = 0.16) or blocks (χ2
197,2 = 5.471, p = 0.06).
Table 2
Pairwise correlations—per year, for projects, blocks, and lots
Variable
By variable
Correlation
95%
CI
p value
Count
Blocks
Lots
0.79
0.59
0.89
<0.0001
29
Blocks
Projects
0.71
0.47
0.86
<0.0001
29
Lots
Projects
0.37
0.01
0.65
0.0470
29
Abbreviation: CI, confidence interval.
Table 3
Summary statistics for lots and blocks per project by pre/post-2005
2005
Pre
Post
All
N lots
N blocks
N lots
N blocks
N lots
N blocks
Mean
7.60
2.92
26.40
3.58
17.05
3.25
SD
9.93
3.35
85.78
5.45
61.78
4.53
Min
1
0
1
0
1
0
Quantile 25
1.0
1
1.0
1
1.0
1
Median
2.5
1
4.0
2
3.0
1
Quantile 75
11.0
3.25
15.0
4
13.0
3.5
Max
42
15
756
37
756
37
Sum
745
286
2614
354
3359
640
N projects
98
98
99
99
197
197
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4.4. Project purpose
The main variable, project purpose, can now be examined. For the 197 projects in this study, I determined the
project purpose based on the information provided in the condemnation notices (for City Record) or court cases
(for Case Review), or based on Chang’s comments. For a few borderline cases, the purpose was verified using
Google Earth and other available sources such as relevant committee minutes. All projects that were purposed for
blight or economic development were marked as “Urban Renewal.” As a reminder, if the purpose of taking was
not solely for general “traditional” public use, that is, collective goods, it was categorized as “Urban Renewal.”
Seven different purposes emerged, as summarized in Table 4.
In light of the research question, project purpose is better characterized as a binary variable: urban renewal
(22%) or other (78%). Assessing the difference between urban renewal and other projects in terms of their sizes,
no
difference
was
detected
for
project
size
by
either
lots
(χ2
197,2
=
4.52,
p
=
0.1)
or
blocks
(χ2
197,2 = 2.3, p = 0.32).
Figure 2 shows the share of urban renewal projects per year, displaying an overall decrease over time. Looking
more closely at the activity per mayoral election year, no clear pattern can be observed. In three of the election
years, the share was zero, while in the other three the share was higher than that of the surrounding years.
Table 4
Full scope of project purposes (n = 197)
Purpose
Count
Prob (%)
Infrastructure
62
31
Urban renewal
43
22
Community facilities
28
14
Blue belt†
23
12
School
18
9
Park
16
8
Infrastructure, park
4
2
Unknown
3
2
Total
197
100
†This term is used in the condemnation proceedings and stands for waterfront development. Much of the post-Kelo water-
front development in NYC has been parkland and transit, so this category does not actually differ from “Infrastructure” and
“Park” in the same table, and it is presented in terms of accuracy.
1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 2017 2019
Figure 2
Share of urban renewal projects, per year, 1991–2019 (election years marked with *).
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Table 5 identifies for each borough the number of projects, their purpose, and size. It becomes clear that
Staten Island, which has a relatively high share of projects, has not experienced any taking for the purpose of
urban renewal throughout the examined period.
From Table 5, it can be seen that while the total number of projects and blocks taken for urban renewal
decreased after 2005, it slightly increased for lots. This can be explained by the relatively large number of lots per
project for the two urban renewal projects in Queens post-2005. These projects are the two phases of the Willets
Point urban renewal project.22
4.5. Results
To examine whether the probability of a taking project for urban renewal changed after the Court’s decision in
Kelo, a multiple logistic regression was estimated. The dependent variable is 1 for urban renewal project and
0 otherwise. The independent variables are Borough, Project Size (by Blocks),23 the dummy Legal Change, and
the dummy Election Year for mayoral elections in New York City.24 Table 6 shows the model’s parameter esti-
mates and odds ratios (OR). After controlling for all other independent variables, the probability of an urban
renewal project is estimated at 10% of that from before the 2005 legal change (OR = 0.10, p < 0.001, 95% CI
0.03–0.29).
Significant differences were found between the following pairs of boroughs: Queens–Brooklyn (OR = 0.06,
p < 0.01, 95% CI 0.01–0.30); Queens–Manhattan (0.09, p < 0.01, 95% CI 0.02–0.43). This means that the proba-
bility of urban renewal takings in Queens is 6% of that in Brooklyn and 9% of that in Manhattan. Other paired
comparisons were not significant.
All pairs of project sizes categories were found to be significant: two to four blocks—one block (OR = 4.64,
p = 0.02, 95% CI 1.27–16.90); five or more—one (OR = 33.00, p < 0.0001, 95% CI 5.90–184.61); and five or
more—two to four blocks (OR = 7.11, p = 0.03, 95% CI 1.27–39.74). Therefore, the probability for the largest
project size category to be for urban renewal is on average 7.1 times higher than when the taking involves 2–4
blocks. When compared to the one-block category, the probability is estimated at 33 times on average. The prob-
ability of urban renewal taking for a 2- to 4-block project size is 4.64 times higher than for the one-block cate-
gory. Lastly, the coefficient for Election Year was insignificant, indicating no difference in the probability of
urban renewal takings in such years.
Table 5
Distribution of projects, lots, and blocks by boroughs and project purpose
Borough
2005
Urban renewal
Other
Projects
Blocks
Lots
Projects
Blocks
Lots
Brooklyn
Pre
17
76
201
11
12
18
Post
5
13
124
20
24
44
All
22
89
325
31
36
62
Manhattan
Pre
9
8
20
9
9
12
Post
2
8
65
9
25
47
All
11
16
85
18
34
59
Bronx
Pre
4
19
47
4
4
5
Post
0
—
—
6
8
24
All
4
19
47
10
12
29
Queens
Pre
4
16
47
17
38
93
Post
2
19
158
18
77
828
All
6
35
205
35
115
921
Staten Island
Pre
0
—
—
23
104
302
Post
0
—
—
37
180
1324
All
0
—
—
60
284
1626
All
Pre
34
119
315
64
167
430
Post
9
40
347
90
314
2267
All
43
159
662
154
481
2697
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For robustness testing of the model parameterization, an alternative estimation is offered in the Supplemen-
tary Appendix (Table S1). Here, the number of lots per taking is used as a multiplier to the observations (fre-
quency). This could be justified based on the notion that takings are enacted upon lots as a derivative of the
project. In this case, the prediction for the difference in probability of a taking to be designated for urban renewal
post-2005 is still 90% lower than before the legal change (OR = 0.1, p < 0.0001, 95% CI 0.06–0.15). As expected,
goodness-of-fit has improved in terms of McFadden’s R2 to 0.44. Otherwise, the inflation of the observations has
increased the significance of the parameters. Differences between boroughs have become clearly significant. Now
only the difference between Queens and Brooklyn is insignificant while all others are significant. Significant dif-
ferences also occur between all three categories of project size (blocks) and between an election year and other
years.
In order to assess whether the trend for the share of urban renewal projects was in decline prior to the legal
change in 2005, a separate regression was estimated. For the first period of 1991–2005, a simple logistic regression
was estimated, with only the year as an independent predictor. Here, the coefficient (and the model as a whole)
was not significant (B = 0.04, p = 0.45), indicating a steady pace at the period average of 45% urban renewal
projects across the overall takings (Fig. 3). In comparison, for the post-period, the overall average share of urban
renewal projects was 14.5%. Here, the coefficient was significant (B = 0.22, p = 0.03*), indicating a decline over
the years in the share of urban renewal projects (Fig. 4). Note that while the number of urban renewal projects
declined between the periods (from 34 to 9), the number of other projects increased (from 41 to 53). Had the
number of other projects been kept steady, the share of urban renewal projects for the post-period was 18%, rela-
tive to 45% in the pre-period.
Table 6
Multiple logistic regression for an urban renewal project (n = 137)
Term
Estimate
SE
χ2
Pv χ2
Intercept
1.03
0.37
7.65
0.006
Borough (Brooklyn)
1.02
0.39
6.75
0.009
Borough (Manhattan)
0.69
0.41
2.81
0.094
Borough (Bronx)
0.02
0.60
0.00
0.975
Project size (blocks) (2–4—one)
1.53
0.66
5.41
0.020
Project size (blocks) (5 or more—2–4)
1.96
0.88
5.00
0.025
2005 (post–pre)
2.35
0.57
16.94
<0.0001
Election year (election–no election)
0.22
0.52
0.17
0.681
Odds ratios—urban renewal project versus other purposes
Borough
OR
Pv χ 2
95% CI
Manhattan–Brooklyn
0.72
0.55
0.24
2.11
Bronx–Brooklyn
0.37
0.23
0.07
1.89
Bronx–Manhattan
0.51
0.43
0.10
2.73
Queens–Brooklyn
0.06
0.00
0.01
0.30
Queens–Manhattan
0.09
0.00
0.02
0.43
Queens–Bronx
0.17
0.08
0.02
1.23
Project size (blocks)
2–4—one
4.64
0.02
1.27
16.90
5 or more—one
33.00
<0.0001
5.90
184.61
5 or more—2–4
7.11
0.03
1.27
39.74
2005 legal change
Post–pre
0.10
<0.0001
0.03
0.29
Election year
Election–no election
1.24
0.68
0.44
3.46
Note: McFadden’s R2 = 0.26, n = 137. Parameter estimates for boroughs are all referenced to an average category, parameters
for project size, legal change, and elections are all estimated relative to the adjacent category. Abbreviation: CI, confidence
interval; OR, odds ratio; Pv, P value.
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5. Discussion
Studying condemnations in New York City for a period of 29 years allows a quasi-experimental test of the com-
mon assertion that left to their own devices by the Supreme Court decision, city officials under no constitutional
impediment to their power would become more aggressive in their eminent domain practices. The findings refute
this hypothesis, showing that the Court’s decision that approved taking for economic development projects,
which was followed by extensive public debate but no legislative reform in New York, had no long-term observ-
able positive effect on the government’s engagement in such takings. On the contrary: the probability of taking
for an urban renewal project dropped by 90%. At the same time, no increase in the average size of projects
emerged, nor an increase in the overall level of taking activity, keeping a modest average of 6–7 development pro-
jects per year throughout the City’s five boroughs. Therefore, the City did not show a bigger appetite for urban
renewal including economic development takings after the decision, despite that the Court’s invitation to the
states to amend their laws was not officially accepted by New York State.
Figure 3
Logistic fit of urban renewal project share by year, pre-2005 (n = 75).
Figure 4
Logistic fit of urban renewal project share by year, post-2005 (n = 62).
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In the three-player game portrayed by traditional political theory, featuring courts, legislators and public opin-
ion, the popular majority’s dissatisfaction with a court’s decision triggers the legislator’s reaction. The multiple
reforms that followed the Kelo decision were used to support the effectiveness of the political system in the face
of contemporary views that we live in an era of disenchantment with the legislative process (Scheppele, 2009).
Thus, if no reform was approved in a particular state, this was arguably because in that state, public opinion did
not sufficiently disapprove of the Court’s decision. Public ignorance theory predicted that the Court’s reluctance
to intervene coupled by the popular voter’s political ignorance would result in a gradual distancing from what the
majority wanted. These predictions are not supported.
I thus contend that neither traditional political theory nor the public ignorance theory pays proper respect to
the factors that affect a fourth player: public officials. The assumption that the public’s ignorance leaves property
owners in the hands of eager land developers ignores the political effect the Court’s decision has on public offi-
cials; in particular, in the case of takings in urban environments, local public officials. In this more realistic four-
player game, the motivating forces at work on local officials’ expected behavior should also be considered.
The public’s revealed opinion about economic development projects not only affects legislators but also has a
lingering effect on elected and non-elected members of the executive. While the public may be ignorant about the
details of a legislative reform, or might lose interest over time, these professional players possess high degrees of
knowledge and institutional memory. Their actions are therefore prone to be affected by popular views, even if
that is not strictly formalized in legislation or constantly at the focus of the political debate. This is supported by
the insignificant effect of election years on taking practices. Therefore, observing differences in legislation or in
legislative responses is insufficient to fully capture the consequences of a public debate on constitutional matters
or its legislative consequences (Byrne, 2017; Turnbull et al., 2017; Turnbull & Salvino, 2009, p. 795). The need to
focus on the executive’s response is in line with current political theory works that identify the growing trend of
executive aggrandizement (Graber et al., 2018; Khaitan, 2019; Uitz, 2018).
The findings of the current study are consistent with recent empirical studies that call into question the pre-
dominant perception that government officials, when exercising their eminent domain power, act as narrow max-
imizers of self-interest who are exclusively motivated by budgetary constraints, specifically those created by
compensation rules (Chang, 2009; Levine-Schnur & Parchomovsky, 2016). These studies lend qualified support
to the alternative hypothesis that when taking private property, government officials are largely motivated by a
variety of budgetary and non-budgetary considerations, such as actual needs, fairness, and political effects.
Accordingly, it is not surprising to find a shift in taking practices reflecting revealed public disapproval of takings
for economic development and urban renewal, even where the legislative response is lacking; and we may expect
this shift to last long after the issue has lost popular attention. Thus, left to their own devices, government offi-
cials would not necessarily exhaust their power. They would still be sensitive to both planning needs and political
responses.
A wise referee of this paper advised to consider the theories discussed above as not necessarily mutually
exclusive. Thus, according to the public choice theory, as time passes and attention wanes, politicians will return
to their prior habits. However, despite their inclination to attend to pressures by interest groups that might come
with personal gain, politicians are also careful enough not to go against the popular sentiment. The question is
really how much time has to pass before we are able to test if the second set of incentives has a lasting impact.
The empirics of this paper allows to support the contention that there are more considerations at play than exis-
ting theories predict, but they may not provide a sufficient mechanism to predict what would happen in the
future.
It should also be pointed that there is a bit of a paradox in a possible argument that the reaction to Kelo
shows that judicial protection is not necessary, because political processes can take care of the situation (either by
passing legislation or just by changing the incentives of executive officials). After all, the reaction to Kelo occurred
because a high-profile case got to a major state or federal appellate court. In a regime where it is basically settled
that “public use” means almost anything the government says it does, there will not be such cases (or at least they
will not get to high-level courts), and thus few or no opportunities to generate such negative public reactions,
which in turn might deter future abuses. This suggests that even if public use standards are not as tight as some
critics advocate, they do need to be restrictive enough to generate at least some high-profile litigation. Again, the
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period studied is long, but not long enough to determine whether the effect of Kelo is strong enough to deter
abuses indefinitely.
Soon after the Kelo decision was delivered, Patricia Salkin predicted that it would not expand or limit eminent
domain practices in New York. Referring also to New Jersey and Pennsylvania, she commented that since these
states had already been practicing condemnations for economic development projects for many years (and with-
out strong public opposition, as documented by Becher (2014) for Pennsylvania), “the real impact of Kelo in the
tri-state area has been the increased media attention to urban redevelopment projects, a more informed constitu-
ency due to the media attention, and perhaps more cautious government officials who are likely more inclined to
review potential projects with greater scrutiny” (Salkin, 2007, pp. 25–26). Similarly, Clayton Gillette asserted that
Kelo would not result in excessive abuse of powers, but rather would have minimal impact on the allocation of
substantive property rights due to the political process itself (Gillette, 2005). According to the present findings,
this is indeed what happened.
As mentioned, in addition to the uproar generated by Kelo, during the period under study New York City
also had two local eminent domain controversies that too generated a great deal of publicity—the Kaur (Colum-
bia) case and the Goldstein (Atlantic Yards) case. Both cases reached the New York Court of Appeals and were
the subject of protests, extensive media coverage, and so on. Perhaps some of the evidence is explicable by these
high-profile controversies, not just effects of the reaction to Kelo. Even if this is true, the opposite link between
the court decision and the following practices remains.
The data I cite focuses on actual condemnations. But one might expect the mere threat of eminent domain to
be enough to get people to sell “voluntarily.” So, one possible alternative explanation for the data is that, post-
Kelo, people threatened with condemnation were even more likely to give in without a fight (or at least without
getting to the point where eminent domain was formally used) than before. My answer to that is that the data
based on City Records includes all instances where at least the first stage of condemnation procedures was under-
taken (that being a notice about a public hearing), regardless of what was later withdrawn. Chang’s database as
well as the Case Review refer to cases where the procedure was completed. Given that for New York the doctrine
wasn’t expanded by the Kelo decision, I doubt that there is a reason to believe that the mere threat of condemna-
tion in the post-period would result in relatively greater numbers of surrenders than before. Therefore, including
all condemnations procedures for most of the post-period allows a proper treatment of this concern. Note, how-
ever, that due to practical reasons presented above, actual transactions based on condemnation threat that did
not take any formal form resulting in “voluntary” sales are impossible to catch.
In conclusion, I should emphasize that we ought to be very careful regarding casual inferences here. As previ-
ously noted, urban renewal projects are often multi-year endeavors. Had Kelo made redevelopment projects eas-
ier, those projects would appear in the data a few years after 23 June 2005, the date on which the Supreme Court
handed down Kelo. This period where it becomes theoretically possible to see Kelo-enabled development coin-
cides with the 2008 Great Recession and ensuing credit crunch that hindered large-scale private development. It
would seem less likely that developers would undertake large projects during a recession. However, the Recession
was an exogenous shock that reversed over the years. As displayed in Figure S1, although the level of building
permits issued each year suffered slight drop in 2008–2010 (reaching to a maximum of 10% loss), the trend was
soon overturned, with growing numbers of permits over the years. Such is the case with construction spending
(although here the drop was evidenced a bit later, between 2011 and 2013). Given that the study covers the
period until the end of 2019, this short downturn is not significant and cannot explain the shift in identified con-
demnation practices. As the analysis presented above shows, the trend over the years in the post-period was a
continuous decline in the share of urban renewal projects which does not fit the Recession-effect hypothesis.
The findings cannot provide clear answer to the reason why the probability for urban renewal projects
dropped over time. It might be simply because most of the feasible urban renewal projects have been done, so the
need for such projects naturally dies out, or the practical availably given external limitation such as extended des-
ignation of historic districts (Ellen et al., 2016) actually prohibits further projects, with or without Kelo.
In summary, the conclusions offered above are confined to the specific case study tested. They are not
expected to hold for different settings not tested. Based on the novel data-collection methods introduced here,
this study may pave the way for future studies to focus on other jurisdictions and their response to Kelo. The
© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
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Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo R. Levine-
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accumulation of such studies would provide a broader perspective and allow further comparisons that would
strengthen our understanding of the wider implications of the effect of the legal change on taking practices.
6. Conclusion
The American nation is currently broadly interrogating the tools that have historically produced geographic seg-
regation and destroyed Black and other minorities’ wealth. Eminent domain is prominent in this debate. This
study offers essential hand-collected data about how New York City is using eminent domain. The study provides
a useful estimation of the effect of a state-empowering Supreme Court decision that was followed by strong public
opposition but no state legislative reform. It shows that in New York City, there was a sharp decline in the proba-
bility of urban renewal taking projects following Kelo, despite the fact that New York was one of the few states
that did not amend their eminent domain laws after the decision. The findings indicate that government officials
do not exercise the full range of their eminent domain capacity even if they know that their decisions would not
be in fact judicially scrutinized. Furthermore, city officials are either not required to or not interested in advanc-
ing publicly sensitive development projects that pose a threat both to their diverse constituency and to the inter-
ests of real-estate investors.
This study supports the assertion that the influence of this decision would not be as dramatic as some suspect,
because as the New York City case shows, actual practices of land condemnations, even where no meaningful
restrictions apply, are rather balanced and limited—far from that which is legally permissible.
The present findings suggest that despite the absence of strict limitations on the government’s power, govern-
ments can function well based on market forces and planning needs. Nonetheless, revealed public preferences do
affect the government’s behavior. On the basis of the current findings, future studies should proceed in two direc-
tions: one that attempts to better understand the current findings, another that attempts to explore their potential
extrapolation. First, future studies should try to better distinguish between condemnations to remove blight and
those that aim to improve the use of property that was not inflicting harm; and between takings from private to
public and from private to private. They should also try to assess the specific interest Kelo generated among NYC
government, by examining the records of New York City government and the governments of the five boroughs
or the campaigns for mayoral or local offices.
Second, future research should attempt to test whether the main finding regarding the responsiveness of gov-
ernment decisionmaking to the revealed information on the public’s opinion is valid in other contexts as well. It
seems a fundamental political question. Moreover, the methods used to test it in this specific context, such as the
review of the City Record used in this paper for the first time, may be further employed for other related contexts
in which intuition supports the overall conclusion, but evidence is lacking.
Acknowledgments
The study would not have been possible without the generous access Yun-chien Chang allowed me to the data-
base he created for his studies on NYC. Nimrod Karin and Alina Aharonovitz provided superb research assis-
tance, while Ron Horne delivered excellent support with the statistics. I thank the four anonymous referees,
Ronen Avraham, Tamar Kricheli-Katz, Amnon Lehavi, Daphna Lewinsohn-Zamir, Adi Libson, Moran Ofir, Gid-
eon Parchomovsky, Yuval Procaccia, Yaniv Roznai, David Schleicher, Ilya Somin, Eyal Zamir, and participants
and organizers at the State and Local Government Law Works-in-Progress Conference; Association for Law,
Property, and Society Annual Meeting; Israeli Law and Economics Association Conference; Private and Commer-
cial Law Workshop at the Hebrew University Law Faculty; Law and Economics Workshop at Tel Aviv University
Law Faculty, and Reichman University Law School Faculty Seminar, for valuable insights, comments, and
suggestions.
Endnotes
1
Kelo v. City of New London, 545 U.S. 469 (2005).
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464
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2
Taking for urban renewal that includes the destruction of deteriorated housing is also known as “blight condemnation.”
However, the exact definition for blight is subject to interpretation and is not standardized.
3
Berman v. Parker, 348 U.S. 26 (1954).
4
Berliner (2015) counts only 44 states making statutory or constitutional improvements, although she acknowledges that
the 45th state, New Jersey, did pass a statute purporting to increase eminent domain protections. For an up-to-date listing
of post-Kelo state legislative initiatives, see, “The Castle Coalition: 50 State Report Card: Tracking Eminent Domain
Reform Legislation since Kelo,” http://castlecoalition.org/50-state-report-card.
5
Goldstein v. New York State Urban Development Corp., 921 N.E.2d 164 (N.Y. 2009); Kaur v. New York State Urban Devel-
opment Corp., 933 N.E.2d 721 (N.Y. 2010).
6
The other states are Arkansas and Massachusetts. Additionally, no amends took place in the District of Columbia, and
the US territories.
7
N.Y. CONST. ART. I § 7 (“Private property shall not be taken for public use without just compensation”).
8
N.Y. GEN. MUN. LAW §§ 500 et seq; § 502. See also N.Y. CONST. ART. XVIII § 1.
9
Matter of C/S 12th Ave. LLC v. City of New York, 32 A.D.3d 1, 10–11, 815 N.Y.S.2d 516, 525, 2006 N.Y. App. Div. LEXIS
6897, 17–18, 2006 NY Slip Op 4172, 8 (N.Y. App. Div. 1st Dep’t May 25, 2006).
10
For example, S. 5936, 228th Sess. (N.Y. 2005); S. 5961, 228th Sess. (N.Y. 2005); S. 7358, 229th Sess. (N.Y. 2006). For more
details see New York State Bar Association Special Task Force on Eminent Domain, Report 3, 2006.
11
It should be noted that NYC, Boston, and DC, where no legislative change occurred, form the Northeast Corridor, which
is among the most densely settled and wealthiest regions in the nation. These cities are more intensely developed than all
but
a
handful
of
other
places
in
the
nation
(Northeast
Corridor
Infrastructure
and
Operations
Advisory
Commission, 2014).
12
Goldstein v. New York State Urban Development Corp., 921 N.E.2d 164 (N.Y. 2009); Kaur v. New York State Urban Devel-
opment Corp., 933 N.E.2d 721 (N.Y. 2010).
13
In Goldstein v. Pataki, 516 F.3d 50 (2nd Cir. 2008), the Second Circuit rejected a pretextual taking claim.
14
Matter of Uptown Holdings, LLC v. City of New York, 77 A.D.3d 434, 908 N.Y.S.2d 657, 2010 N.Y. App. Div. LEXIS 7343,
2010 NY Slip Op 7227 (Justice Catterson). See also Nat. Fuel Gas Supply Corp. v. Schueckler, No. 29 (N.Y. 23 June 2020)
(Justice Rivera).
15
Condemnations by the New York State Dormitory Authority were not included.
16
The journal is published Monday through Friday, except legal holidays, by the Department of Citywide Administrative
Services of the City of New York under Authority of Section 1066 of the New York City Charter.
17
https://www1.nyc.gov/site/dcas/about/city-record.page.
18
NYC Citywide Administrative Services—The City Record Online, https://a856-cityrecord.nyc.gov/Search/Advanced.
19
https://data.cityofnewyork.us/browse?q=acris&tags=acris+land+records.
20
A lot, which in fact refers to a Tax Lot, is a subdivision of a Tax Block and represents the property unique location. A
Tax Block is a sub-division of the borough on which real properties are located. See New York City, Glossary of Terms for
Property Sales Files, https://www1.nyc.gov/assets/finance/downloads/pdf/07pdf/glossary_rsf071607.pdf.
21
The date of the Court’s decision (23 June 2005) was the cut-off point. In 2005, there were two taking projects prior to that
date, which were attributed to the pre-legal-change group, and two taking projects after that date, which were attributed
to the post-legal-change group.
22
See: https://edc.nyc/project/willets-point.
23
When estimating project size by lots similar results were obtained.
24
The model cannot account for the interaction between legal change and project size as well as legal change and borough
due to the limited number of observations.
DATA AVAILABILITY STATEMENT
The data that support the findings of this study are available from the corresponding author upon reasonable
request.
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© 2022 The Author. Regulation & Governance published by John Wiley & Sons Australia, Ltd.
467
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Schnur
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Supporting information
Additional Supporting Information may be found in the online version of this article at the publisher’s web-site:
Appendix S1. Supporting Information.
Figure S1 Building permits issued and construction spending, in NYC, by year (2000–2019) (Source: Office of
the New York State Comptroller, 2021).
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R. Levine-Schnur
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post-Kelo
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