Cover Up at NYSDOT?

It has been seven months since Willets Point United, and its traffic consultant Brian Ketcham, demonstrated the blatant deficiency of a Van Wyck ramp report submitted by NYC EDC to the NYSDOT. The state agency is responsible for initially approving these ramps-or not-with the Federal Highway Administration having the last word on their feasibility. So the question that we ask, is there a cover up at NYSDOT?

In this interim seven month period, EDC and its consultants, in apparent secrecy and collusion with the oversight agency, have been working feverishly-to address the gross defects of their original submission (a revised ramp report was first slated to be ready in March). But, the WPU and Ketcham, after having been the key actors in insuring that the original report was sent back for revision, (in spite of promises from NYSDOT that they would be included in the revision process) have been left out; leaving EDC's original axe to grind consultant as the sole interlocutor with the state on the ramps feasibility.

As a result of the agency's reneging on an open, professional review process, WPU has been forced to file numerous Freedom of Information requests just to obtain information that, if transparency was valued, would be shared collegially in the interest of insuring that the impact of the ramps on the entire Queens highway grid system would be honestly evaluated. Instead the EDC consultant, AKRF, whose work was not only deficient but, arguably deceptive, has been allowed to act as the sole provider of technical knowledge to the agency.

The compelling question is, why has NYSDOT circled the wagons and resisted the free and open exchange of information? This is the question that WPU's Ketcham has asked DOT Commissioner Stanley Gee in a letter to the agency head. In particular, Ketcham raises the issue of NYSDOT's accountability to the public: "Given your distinguished career at the Federal Highway Administration and more recently at New York State Department of Transportation, I am bringing to your attention current Departmental practices that undermine your objective of improving its performance, accountability and communication within and outside the agency."

Ketcham goes on to highlight the agency's curious stonewalling:

"Over the past year, I have been reviewing these projects and nearly 90 other new projects near the Willets Point site. I have generated numerous letters to your agency regarding these projects along with submitting a number of technical reports for your agency’s review... In addition, on February 19, 2010, I also presented much of these materials to representatives of Region 11 along with representatives of the Federal Highway Administration (FHWA) and the New York City Economic Development Corporation (NYCEDC). At that meeting we were promised a technical dialogue with NYSDOT along with an open process for the review of this project. However, no open process has occurred and all my submissions have been ignored. What is going on with NYSDOT? Recent FOILed documents suggest your agency appears to be inappropriately colluding with NYCEDC and the FHWA to approve a project which they know to be seriously flawed. I trust this is not the case."

And then Ketcham gets to the information that WPU has received-information that raises serious questions about NYSDOT's impartiality: "Over the last year, I have identified numerous problems with this project that have been publicly ignored by NYSDOT and by NYCEDC. Recently released internal memos obtained using the Freedom of Information Law suggest that the technical staff of NYSDOT shared many of these concerns but appear to have been overruled by policy makers that have been under pressure to facilitate the approval of the AMR and thus of the Willets Point Plan."

So, after acknowledging serious problems in the EDC ramp report, NYSDOT proceeded to shut off any public vetting of the data submissions-relying exclusively on AKRF. But was this prudent and in the public interest? It is even more questionable considering that AKRF has a prior consulting relationship with NYSDOT-and is in fact used by the agency for all or most of its third party reviews. It is the closeness of this relationship, in our view, militates against both transparency and thoroughness.

Concerns over AKRF's impartiality are certainly not new. In the environmental and eminent domain reviews surrounding the Columbia University expansion, AKRF represented both the university and the Empire State Development Corporation-and was excoriated by the Appellate Court for this conflict of interest. Arguably, in the case of the Van Wyck ramps, the relationship between the agency and this consultant could easily impair impartiality, given the fact that there would be an a priori assumption on the part of NYSDOT staff that AKRF's work didn't need to be fully vetted.

This, at least according to the e-mails that WPU obtained, appears to be exactly what did happen-and the, "Environmental Group," at NYSDOT was poised to green light what turned out to be a defective AKRF submission:

"Jimmy Lau (NYSDOT), 9/25/2009 at 12:48PM: "... I read through the Willets Point Draft Access Modification Report. ... In every aspect the report is complete and well documented through my cursor [sic] review.... After this review I have no major comments that would change the relevance of this submission and that they should finalize this report and submit for final design approval."

But this cursory and cavalier review was demonstrably inadequate-as the subsequent intervention by Brian Ketcham underscored fatal flaws in the ramp report. But the Ketcham critique should have triggered a red flag at NYSDOT concerning the integrity of its consultant contractor AKRF. Ketcham's letter to the commissioner makes the point that AKRF's ramp report thoroughly contradicted the original EIS traffic study that AKRF supervised in its role as lead consultant in the Willets Point land use review:

"The draft AMR assumed that, in contrast to the 50% of total Willets Point traffic reported in the FGEIS, just 16% would utilize the new ramps. This unexplained discrepancy leaves a third of the PM peak hour traffic, about 1,900 vehicles, unaccounted for in both the Willets Point FGEIS and in the AMR, presumably on local roads."

How could AKRF, given its dual role in the crafting of the two discrepant studies, submit the second report-if it were acting in good faith-with no reference to the original land use review? Here's the money quote from the Ketcham letter:

"AKRF was the lead consultant for both the FGEIS for the Willets Point Plan and the AMR for the Van Wyck ramps (as well as the FEIS for nearby Flushing Commons. They must have or should have been fully aware that these two reports present traffic projections that are hugely different. AKRF’s role was further compromised by their ongoing contractual relationships with NYCEDC and with NYSDOT which ordinarily relied on them to provide third party review of environmental analyses. Clearly, something is wrong with NYSDOT’s review process."

The existence of these discrepancies and the coziness of the relationship between NYSDOT and AKRF/EDC is why the state's leading environmental group, the Natural Resources Defense Council, wrote to the agency-and to the FHWA-advocating for a fully independent review of these Van Wyck ramps under the National Environmental Policy Act. The fact that NYSDOT blew NRDC off in its request dramatizes the suspicion that whatever is going on at the agency, isn't a fair and open review process.

The environmental impact of the massive Willets Point project-a development that will flood Queens roads and highways and severely challenge the inadequate mass transit infrastructure-needs to be reviewed impartially. What we have seen in the original land use review, and now in the ramp oversight as well, is a review process that is simply broken. The failure to analyze what this project's impact would be-along with an additional 20 million square feet of additional development-will have a profound, and severely negative, consequence for all of Queens County.

We'll give the persevering Ketcham the final word: "NYSDOT must undertake an independent review of the Willets Point FGEIS and the Van Wyck ramps AMR. Your agency does this routinely as is evident in your ongoing term contract with AKRF to review Region 11 EISs. A dozen groups representing Queens communities within two miles of the Willets Point site strongly support an independent engineering review. There is clearly precedent for taking this action. So, what is stopping you from hiring another consultant to undertake an independent review?"

Blighted Reason

Judgment Day has finally arrived for the eminent domain suit against the tag team of Columbia University and the Empire State Development Corporation-partners in crime against the efforts of Nick Sprayregen to keep his own property. And the Court of Appeals will be focusing on the issue that we have been hitting on for a good time: blight and its rather fluid legal definition.

Reason Magazine lays out the Sprayregen case, and why on the key issue of blight the higher court may deviate from its ruling upholding the takings in the Atlantic Yards situation: “In its notorious 2009 decision upholding the use of eminent domain on behalf of a professional basketball stadium in Brooklyn, New York’s highest court acknowledged that “there remains a hypothetical case in which we might intervene to prevent an urban redevelopment condemnation on public use grounds—where ‘the physical conditions of an area might be such that it would be irrational and baseless to call it substandard and insanitary.’”

And, of course, the blight in the Columbia expansion effort is as good example of creative accounting as we have ever seen: “But Columbia’s schemes came to a halt last December when a state appellate court struck down the ESDC’s actions. Writing for a majority of the Supreme Court Appellate Division, First Department, Justice James Catterson denounced the ESDC for being “biased in Columbia’s favor” and condemned the agency’s blight determination as “mere sophistry.” It’s now up to the Court of Appeals to decide whether Justice Catterson got it right.”

Well, in our view-and it is one that devolves from the manner in which Norman Siegel skillfully uncovered the collusion between the applicant and the determining agency-peas in a pod couldn’t be more comfortable together: “This documentary record, which Siegel carefully details in the legal brief he submitted to the Court of Appeals, offers a convincing and damning portrait of government malfeasance on behalf of an elite private institution.”

In the center of the collusion, none other than the dirty-handed AKRF-consultants to die for if you want to achieve predetermined results: “In 2006, for instance, the ESDC hired the planning firm Allee King Rosen & Fleming, Inc. (AKRF) to perform an “impartial” blight study of Manhattanville. Yet as internal documents later revealed, the study was explicitly designed to rubber stamp the Columbia-ESDC agenda. In its initial outline, AKRF promised to “focus on characteristics that demonstrate blight conditions” and to emphasize “highlighting any physical blight that may be present.” In other words, the purpose of the report wasn’t to objectively determine if blight conditions were present, it was to “focus” on a pre-ordained conclusion that benefitted Columbia.”

These are the same folks who are also in the middle of a put up job over traffic analysis at Willets Point-“supervising” two firms who came to impossibly different conclusions over ramp traffic from the proposed development to the Van Wyck Expressway. But the Columbia situation really exposes how these liars for hire operate: “And AKRF was hardly a neutral party. Not only was the firm on Columbia’s payroll at that point, but at least six different AKRF employees were working on both the blight study and the redevelopment plan—a flagrant conflict of interests. Indeed, as New York’s Appellate Division, First Department concluded in an earlier decision related to the Manhattanville expansion plan, AKRF served an “advocacy function for Columbia” and suffered an “inherent conflict in serving two masters.”

But in reality, there was only one master-and it certainly wasn’t the truth. That’s because the city and state were nothing more than Columbia’s handmaidens; leading to the Appellate Court’s obvious conclusion that this wasn’t a, “civic project.” But the AKRF blight analysis exposed the firm for the fakirs they are-conjurers in the traditional religious terminology.

And conjure they most certainly did: “AKRF’s “impartial” study was even worse. For starters, AKRF failed to mention that Columbia owned 76 percent of the property in the neighborhood and was therefore directly responsible for the overwhelming majority of blight conditions that it found. Of the five buildings cited as being hazardous to the public, for example, four turned out to be under Columbia’s control. Similarly, all seven buildings cited for hazardous garbage or debris are Columbia-owned and all 12 examples of vermin occurred in Columbia buildings. Yet despite Columbia’s destructive and illegal behavior, the ESDC still plans to reward the university by seizing the last holdout properties on its behalf.”

All of this attempted sleight-of-hand dramatizes the extent to which the public authorities have allowed Columbia to bully local property owners-and the fact that 91% in the expansion footprint is in the university’s, or the public’s control, should enable Columbia to proceed without grabbing the Sprayregen and Singh’s (gas station owners) parcels. Or at least, agree to negotiate the housing swap plan that Sprayregen put forward three years ago.

But perhaps the university’s hubris will become its undoing-with the Court of Appeals laying waste to its pursuit of lebensraum. We’ll give Reason the last word: “In sum, a powerful state agency secretly colluded with a powerful private university in order to trample constitutional rights, violate the letter and spirit of the law, and force law-abiding tenants out of their homes and businesses in order to manufacture self-serving blight conditions that disfigured an otherwise livable and commercially viable neighborhood. If there was ever a case where New York’s highest court should intervene against eminent domain abuse, this is it.”

Here's the Willets Point United's Press release in support of Nick Sprayregen and the Singhs:

From: Willets Point United Inc. ("WPU") • www.willetspoint.org • unitedtriangle@gmail.com Spokesperson: Richard Lipsky • 914-572-2865 Attorney: Mike Rikon • 212-422-4000

New York, New York – June 1, 2010 For Immediate Release "Willets Point United Inc. supports Kaur plaintiffs; Recognizes fundamental similarities with Willets Point land grab" Members of Willets Point United Inc. ("WPU") have traveled to Albany to support the plaintiff property owners in Kaur v. Urban Development Corporation, and to attend the oral arguments. The circumstances of the Empire State Development Corporation's intended use of eminent domain in West Harlem to benefit Columbia University, closely resemble the City of New York's intended use of eminent domain at Willets Point to benefit an as-yet-unnamed private developer.

Self-made "blight": In West Harlem, Columbia acquired a number of buildings via private transactions, and then deliberately allowed them to sit vacant and deteriorate, thereby establishing self-made "blight" that has become a questionable basis for the use of eminent domain. Similarly, at Willets Point, the City of New York has systematically deprived the neighborhood of municipal services and infrastructure for several decades, while allowing the public property there to fall into a state of self-made disrepair, which the City believes constitutes "blight" that may become a basis for the City's use of eminent domain.

Same "blight" consultant: When authoring the West Harlem "blight study", consultant Allee King Rosen & Fleming, Inc. ("AKRF") was not a neutral party, and its report – instead of being impartial – was designed to promote a pre-ordained conclusion that benefitted Columbia University. The same firm – AKRF – also authored the Neighborhood Conditions Study that pertains to Willets Point.

No "public use": Although the Fifth Amendment requires a "public use" when property is acquired by eminent domain, in West Harlem the exercise of eminent domain is to benefit Columbia University, a private institution. At Willets Point, the exercise of eminent is to benefit an as-yet-unnamed private developer; or perhaps even a sports team franchise, as has recently been rumored.

WPU is a coalition of more than 20 Willets Point property owners who are actively opposing the City of New York's attempt to acquire their land. WPU believes that the outrageous attempts to exercise eminent domain in West Harlem and at Willets Point clearly underscore the urgent need for reform of New York State's eminent domain law, as has already been done by more than 40 other states in response to the notorious 2005 Kelo eminent domain decision. WPU calls for a moratorium on all use of eminent domain within New York State, until such time as the Eminent Domain Procedure Law has been revised to define "blight" and "just compensation"; to provide for full judicial review, including cross-examination of witnesses; and to prohibit the use of eminent domain to condemn property to facilitate development by new and favored private owners who seek merely to replace one existing use of the property with another.

Will Queens Roads Become Like China's?

The oversight of the proposal to build two ramps off of the Van Wyck Expressway-in order to accommodate the massive Willets Point development-is mired in secrecy; and the question of just how honest and accurate the regulatory review will be is definitely up in the air. If nothing is done to create an independent oversight process, it is likely that Queens residents will be facing road conditions-as the picture on the left dramatizes-that will mimic those of China. Under the current methodology implemented by NYSDOT, the reliance on the flawed work and questionable ethics of the enviromental consultant AKRF, indicates to us that the process has been hot wired and the public interest jettisoned.

Let's start by examining what the NYSDOT's normal protocol is when they are confronted with an expensive and complex application that will impact the state and federal highway system. Thanks to the freedom of information data we have received we know the answer to this. The following inter-agency e-mail exchange illustrates the department's standard operating procedure:

Ian Francis (NYSDOT), 9/24/2009 at 10:19AM:

"The only outstanding comments are from the Environmental group, Jim Lau's group has to do the review in-house since AKRF prepared the report and they are the consultant retained to assist Environmental with reviews."

Jimmy Lau (NYSDOT), 9/25/2009 at 12:48PM:
"... I read through the Willets Point Draft Access Modification Report. ... In every aspect the report is complete and well documented through my cursor [sic] review.... After this review I have no major comments that would change the relevance of this submission and that they should finalize this report and submit for final design approval."

What does this signify? In the first place, it indicates that NYSDOT has a standard procedure for conducting an independent review, one that utilizes a consultant and not the in-house expertise of the agency-whatever that may be. The problem in the case of the ramps, however, is that EDC's consultant, AKRF, is also-in good monopoly fashion-the agency's own independent contractor.

In a true best practices environment, then, NYSDOT would proceed to let a contract out for an independent review of AKRF's submission on behalf of EDC. It did no such thing-and in fact allowed AKRF's flawed work to be vetted by the in-house staff that traditionally relies on this independent contractor; one that the department-and particularly this division-undoubtedly has a close working relation with.

Unsurprisingly, the head of the Environmental Group was poised-a year ago-to green light the AKRF work that was later found to be flawed; a consequence in large part of the intervention of WPU's Brian Ketcham who demonstrated just how defective AKRF's submission was. In the best of all possible worlds, NYSDOT would have reacted to these events with extreme caution-and would have, as a result, looked to get an unbiased traffic consultant in to review Ketcham's and AKRF's conflicting reports.

However, it did no such thing. It maintained an exclusive and secretive relationship with the EDC consultant in its review; in spite of the claims expressed in a meeting in February that there would be an open line of communication with the whistle blower Ketcham-whose superior work product had forced EDC to revise its defective ramp report.

But it gets worse. Seeing just how egregious the defective AKRF report was-and the way in which NYSDOT was continuing to rely on a consultant that had submitted shoddy and deceptive work-WPU approached the Natural Resources Defense Council-arguably the state's leading environmental group. When NRDC reviewed the Ketcham critique of AKRF's work, it fired off a letter to both NYSDOT and the Federal Highway Administration calling on both agencies to initiate an independent review of the ramps.

NRDC's request was a simple one: "NRDC is not taking a position on advancing the Willets Point project or on constructing the ramps. But based on our preliminary review, we are concerned over the discrepancies in the study results, and also by the prospect that a project could impair regional mobility..:Thus consistent with our position on other large-scale regional development projects we believe that the stakes are high enough with the building of new access ramps for the Willets Point project to warrant a full environmental review under the National Environmental Policy Act (NEPA)...By undertaking such independent review, the public can be satisfies that the proposal's impacts have been adequately assessed..."

In July, however, NYSDOT informed NRDC that it didn't need to do any independent review saying, "The NEPA documents that are being developed are an Environmental Assessment and a revised Access Modification Report....We understand the request for an independent review but believe that working closely with NYCEDC, we can assure that the data will be based on sound data."

How blatant a slap in the face is this to transparency and the public interest? How can anyone trust the consultants who attempted to deceive the state agency with a fatally flawed document-one that contradicted its own earlier report submitted to the NYC Council as part of the land use review application? And what does it say about NYSDOT's integrity when the agency ignores the deceptive practices of the consultant and allows it to continue to perform as the exclusive agent for providing traffic data to determine the viability of the Van Wyck ramps?

We can see just how NYSDOT lacks trustworthiness and integrity in its apparent willingness to ignore the keen skeptical insights of Michael Bergman, its own structural engineer. Bergman told agency policy makers that the EDC report was simply junk.

Michael Bergmann (NYSDOT), 12/18/2009 at 3:40PM:

"I am not satisfied with the original document or with any of the responses. The consultant apparently refuses to recognize that his entire data collection work on the VWE near (former) Shea Stadium was badly flawed, because it took place during a major construction project. I have criticized his speed analysis, and his response was that the speeds and traffic volumes are related. His statement is correct, but that means that the traffic volumes used in the report are also flawed...

In my opinion, the report we have is poorly done and is not adequate justification for changes in access to an Interstate highway."

Yet, in spite of Bergman's attempt at righteous intervention, policymaker Pete King wants to move ahead:

Peter King (NYSDOT), 12/23/2009 at 5:22PM:

After several phone calls with EDC and internal discussion, we have the attached. Mike, I think you're correct in noting, earlier in the review, that the questions we raised were not being answered. Rather than tell us how they would address an in issue, they kept telling us why the issue wasn't being addressed. However, in looking at the attached, I believe that, by and large, they are making credible comments to our concerns. I know that there have been considerable discussions with EDC, URS, P/B (who did the modeling for X735.56) and regional staff. Planning is satisfied, as is Traffic/ Safety that the modeling and design speed issues have been adequately addressed."

But, of course, nothing had been adequately addressed-and the intervention by Ketcham and WPU blew a hole in this rush-to-approve effort to accept a ramp report that NYSDOT was later forced to admit was defective. Now the public is being asked to accept the agency's judgment that it can trust the defectors over at AKRF-this should be unacceptable to any Queens resident-or any local elected officials who still have their wits about them.

As Ketcham asked in an e-mail to us: "Does NYSDOT really want to trust an outfit that could not do quality control of their products and protect them from this nonsense?" And Queens gadfly Benjamin Haber, writing in the Ridgewood Ledger, agrees: "In addition to the loss of hundreds of small businesses and the jobs of thousands of employees and their dependents, the proposed Willets Point project also involves the general public, whose daily lives will be affected by the huge increase in the volume of vehicular traffic on the Grand Central Parkway and the Van Wyck Expressway. Suffice it to say, the Willets Point businesses and their employees and the general public are entitled to a full and fair discussion of the issues, something the Bloomberg administration and the city Economic Development Corp. have sought to avoid."

But if this ramp construction is allowed to go forward-rubber stamped by an agency whose internal communications indicate that it has an unhealthy slavishness towards the mayor and his minions-then it is the communities of East Elmhurst, Kew Gardens, Corona, Flushing and College Point-just to name a few-that will suffer the cosnsequences of the malfeasance of the regulators. If this happens, the China Syndrome will come to Queens.

Blight Makes Right

In a companion editorial in today's NY post, Tom Eliot exposes the climate of collusion that often is generated when land use decisions are being made in NYC. In this case it is the relationship between the consultant AKRF, Columbia, and the state's economic development agency, ESDC. As we have ourselves pointed out, AKRF is no disinterested consultant since, as CU's land use advisor, it has a vested interest in finding that the area the university wants to expand into is "blighted." So, how can the AKRF folks be working simultaneously for the state?

A local judge wondered the same thing; "While acting for Columbia, AKRF has an interest of its own in the outcome of [ESDC's] action, as AKRF, presumably, seeks to succeed in securing an outcome that its client, Columbia, would favor." But ESDC's appeal of that ruling won't be heard until December, so everything's going ahead for now."

That doesn't take away from the obvious implications that the state has impaneled a hanging jury in this matter, and when people's property is in the balance we should be able to do better than this. The conflicts of interest here, calls into question the legitimacy of the entire expansion plan, something that elected officials should be able to recognize if they can don the cloak of impartiality.

What this should mean is that there are a myriad set of reasons for saying the Columbia plan is badly in need of compromise and serious revision. Nick Sprayregen has offered his own possible olive branch. How long will the university dither, and leave themselves at the mercy of consultants-of all stripes-who may not be able to advise them properly?

Derailing the Collusion Express

In the run up to the city council land use vote on Willets Point one thing is crystal clear: no one bothered to even read the fictional narrative prepared by AKRF in lieu of an actual environmental review. If they had, a great deal of negotiated modification would have occurred-spurred by local council members concerned about just how to mitigate the 80,000 cars a day that the project will generate (and that's according to the low ball figures provided by the city's favorite consulting lap dog).

And in addition, there might have been more safeguards negotiated to insure that the final environmental review for the one actual mitigating factor-proposed ramps off of the Van Wyck-was done by an independent team of consultants, with a proviso that the entire review process be re-submitted to the council for approval. All of this might have happened if there was any genuine concern for environmental impacts at either the city council or the city planning commission.

The reality is, however, that the entire ULURP process has degenerated into a Kabuki theater performance-with the AKRF's and URS's of the world getting paid huge coin for an expensive pantomime act that is never really examined by any of the decision makers in the legislative play acting. In fact, as we told our consultant Ketcham-a true Diogenes in a world of liars for hire-the only time these traffic studies actually get read is when the Alliance hires him to review them.

So, while a reform of the ULURP fraud is way over due, we come back to the sleight-of-hand exercise on the Willets Point traffic stop. The original EIS-and its accompanying traffic study-was handled by the folks at AKRF, the same candid cameras who gave us the duel representation effort on the Columbia expansion scheme; representing the city for a blight study, and Columbia for the environmental review.

Now AKRF doesn't do the traffic work-and in the case of Willets Point the work was farmed out to an outfit called Eng-Wong Taub. Still, as we pointed out, E-WT's analysis, although alarming and severe, was still de minimis, underestimating just what the overall traffic volume would do to the contiguous communities. But what is truly alarming, is that the second subcontractor for the AMR (ramps) report-URS-has managed to submit traffic data that totally contradicts what is contained in the original traffic study done under ULURP for the original zoning application.

As Brian Ketcham's letter has told NYSDOT-the review agency for the ramps-the AMR report fails to account for the original documentation provided the city under CEQR: "However, I will show you that the draft AMR does not appear to fully account for the Willets Point Development Plan and other approved development in close proximity to the ramps that will generate approximately 100,000 trips per day in 2017 (including 80,000 from the Willets Point project) and will continue to do so in 2035."

Which means that AKRF-yes, once again-as the general contractor for both the FGEIS and the AMR report (or at least the consultant that was most familiar with both documents) has managed to keep quiet about what it should know intimately: that the two reports are contradictory, with the AMR document a clear attempt to both minimize and mislead the NYSDOT and the FHWA authority so that the ramps can be approved-even though they will apparently do little to mitigate the severe traffic impacts that the Willets Point development will foist on its neighboring communities.

All of which should provide ample fodder for a State Senate Transportation Committee hearing-and the fact that Senator Perkins, the official who has lead the fight against agency/consultant collusion, also sits on the committee is fortuitous for those who want to put an end to fixed development games sponsored by quasi-independent state or city agencies. In the case of Willets Point, sunlight will be the best disinfectant.

Blight is in the Mind of the Beholden

On Thursday, according to the intrepid Eliot Brown at the Observer, it appears that the long awaited ESDC blight study will be unveiled: "Just when news started to slow for the summer on the development front, New York's Empire State Development Corporation dropped this bombshell in the agenda for its monthly meeting [PDF]: Columbia University "Land Use Improvement Project and Civic Project Findings." Translation: the state will unveil the blight study, the first step in the use of eminent domain for Columbia's 17-acre West Harlem site."

Get ready for the fireworks on this front. Remember that the study has been done by Columbia's own in-house consultants AKRF-an abbreviation that stands for "Dewey, Cheatum and Howe!" Blight, in this case, is in the mind of the beholden.

This unnaturally close, almost incestuous, relationship between Columbia, AKRF and ESDC has been one of the subjects of a lawsuit brought by our client Tuck-it-Away, the self-storage company that is in the line of the Columbia bulldozer. As one commenter to the blog post points out: "Perhaps more important is a decision handed down just today that ruled in favor of Mr. Sprayregen. It upholds a lower court's decision to release documents that the state refused to hand over plus the court raises the real issue of conflict of interest between Columbia and the state in their hiring, at the same time, the same consultant. Stay tuned for more."

The line in the sand nature of what's ahead comes as a result of the university's lack of eagerness to pursue the land swap that Mr. Sprayregen put forward late last year. As Nick's attorney Norman Siegel points out: "Columbia had numerous opportunities to amicably resolve this, but ethey chose not to, and the battle lines are drawn," said Norman Siegal, Mr. Sprayregen's attorney. "This controversy has been brewing for at least five years."

In Brown's follow-up post on the successful Sprayregen lawsuit, the conflict of interest issue is brought to the fore: "The major landowner fighting Columbia University's expansion, Nick Sprayregen, today came out victorious over the state's Empire State Development Corporation today in an appellate court ruling on a case involving the Freedom of Information Law.
The case concerned the release of documents and correspondences between the state and its contractor AKRF, mostly surrounding the creation of a blight study (slated for release Thursday). Mr. Sprayregen, represented by attorney Norman Siegel, defeated the state at the first level last year, with the court offering criticism that the same contractor, AKRF, was used for both the blight study and the environmental review."

The question that remains in all of this, is how the courts will view the AKRF "findings." The bigger question perhaps should be, in the words of Clint Eastwood, be posed to Columbia: "Do you feel lucky, punk?"

A (K)nown (R)cognized (F)lunky

According to the Observer, State Senator Bill Perkins really went after ESDC for its use of the consultant AKRF in its blight study if the area in and around the Columbia University expansion footprint: "State Senator Bill Perkins is apparently not happy about the state's choice of consultants.One consultant, specifically: AKRF, the New York-based firm that
has established itself as the unchallenged king of environmental review in the city and state, dominating the field of government contracts."

The problem is two fold. In the first place, AKRF has a virtual monopoly on this work-and, as with every monopoly, the lack of competition erodes the quality of their work product. Secondly, as the Observer points out, this is a multi-million dollar consulting business where certain results are being looked for: "But regardless of whether a blight study firm serves two masters there might be more structural issues at hand. Much like credit ratings agencies, firms that do blight studies are paid by those who want favorable ratings: the state only brings on a firm to do a blight study when it wants a finding of blight, an implied disincentive for any firm that might repeatedly fail to find blighted conditions."

Or, as Judge Catterson might have phrased it: "the fix is in" when this kind of collusion and self serving consulting is being done. It is even more egregious given that the statute on blight is so amorphous to begin with: "And the bluster over AKRF might be quibbling over details: The standard of what constitutes blight, a necessary step for eminent domain in economic development projects, is very low. It would not take a biased firm to find the few cracked sidewalks and vacant apartments needed to show "blight," at least based on the definition of the term that has typically been upheld by the courts in New York State."

All of which means that it is now more incumbent than ever for the legislature to, first tighten up the blight statute to afford much greater protection to property owners; and, secondly, for the eminent domain process to be made more equitable by creating an independent consulting mechanism so that favored consultants aren't always designated to do the state's or a developer's bidding.

In fact, we would argue that the state should be required to pay for an independent review of environmental and blight matters-and award the money to threatened property owners so that they can choose the consultants. This would create a situation where there would be at least two separate opinions that the courts might consider if a project was challenged. The current bag job scenario is no longer tenable-and the AKRF monopoly must be broken up in the interests of both fairness and good public policy.

Eminently Destructive

The board of the Empire State Development Corporation voted yesterday, after spirited testimony that was decidedly negative, to support going forward, using eminent domain, on behalf of Columbia University's expansion plan. As the New York Observer wrote: "The state's main development agency, the Empire State Development Corporation, kicked of the public process for eminent domain for Columbia University's 17-acre West Harlem expansion today, starting a final chapter in the approvals for the contentious $7 billion initiative."

There were, however, two new wrinkles added: "In announcing the process, ESDC President Avi Schick unveiled two unexpected nuggets of news surrounding the plan: yet another concession package from Columbia and a second blight study." Another consultant and blight study, you say? Why the need?

Well, as the NY Sun reported yesterday, the appellate court ruling raised a real conflict of interest problem for ESDC and Columbia; furthering the prospects that Nick Srayregen and his attorney Norman Siegel might prevail in de-railing the study and postponing any ED action: "Further complicating matters and possibly adding a legal foothold for Mr. Siegel was a ruling that came down on Tuesday from a state appellate court. The ruling upheld a June 2007 decision that said the ESDC's decision to hire AKRF, which had also worked for Columbia, represented a conflict of interest."

State Senator Bill Perkins chimed in for the Sun on this precise issue: "State Senator William Perkins said in an interview that in light of the ruling, the Columbia University development process should be immediately halted because, if nothing else, it fuels "the perception of collusion" between the state, Columbia, and AKRF. "It would seem to me that it would have been easy to get another consultant and avoid any stench of collusion, and it would seem to me very irresponsible to subject the agency and its credibility to such an easily avoidable accusation," he said."

Perkins, who is the ranking minority member on the senate's corporation committee (and potentially Richard Brodsky's partner in crime should the Dems take over), continued in this vein at yesterday's ESDC hearing. According to the Observer: "So everything's copacetic, right?
State Senator Bill Perkins, the main elected official critical of the expansion, was not too pleased that he wasn't informed about the second study (he told the Sun today that the state should do a second study). In his comments at the board meeting, he had a rather contentious back and forth with Mr. Schick, seemingly trying to push his buttons (at least in private, many in government say Mr. Schick has something of a short fuse), though the ESDC president kept his cool.
A sampling of the exchange:

Mr. Perkins: "Why was I not told that such a study was in the works?"
"Senator, I don't know, there are numerous—"
...
Mr. Perkins: "Do we have staff here that can go get the information that I am requesting so that before I leave I can know for sure what I'm talking about?"

"Senator before you leave today, we will endeavor to get the answer—

"Endeavor? That sounds like it's something that's difficult to do. It is either yes you will get it, or no you won't."

"Senator—Senator, with all respect, in the dozen meetings and conversations you and I have had—"

Perkins was simply underscoring the larger conflict of interest point-one that isn't resolved by last minute sleights of hand that pull a new consultant out of a hat. Perkins went on to ask: "Whose data is being used? (by the new guys); "When were the surveys done?" Clearly, Perkins knows a set-up when he sees it.

Here's how Sprayregen, in yesterday' Crain's Insider, described the court's verdict on the AKRF matter: "But the key is the court’s finding of “an inherent conflict in [Alee King] serving two masters,” Sprayregen says. “This puts a cloud over the blight study. It raises issues of bias. We intend to attack the validity of the blight study. Without that study, there is no eminent domain.” The substitution effect fools no one. As we told one reporter, when you put a new cover on an old study isn't that, by definition, a cover-up?

The hearing also brought the issue of housing to the fore, with Nellie Baily of the Harlem Tenants Council blasting the CU plan for its displacement-according to Columbia's own report-of 5,000 residents. Nothing in the new bennies reported addresses the housing question-a real big opening to the Sprayregen swap concept unveiled at the end of last year.

Which brings us to the blight designation itself. According to the Times CityRoom Blog yesterday: "Opponents of the $6 billion expansion plan said the results of the study that found the area to blighted were a foregone conclusion, because AKRF Inc., the firm hired by the state to conduct the report, known as a blight study, had also performed an environmental analysis of the same site for Columbia University. (Two courts have questioned whether it was appropriate for the state to have used the same consultant that Columbia did.) The report by AKRF found that the area mostly comprised “aging, poorly maintained and functionally obsolete industrial buildings with little indication of recent reinvestment to revive their generally deteriorated condition.”

So, which report's being used here? And what use is the new consultant? As Norman Siegel told the hearing, the idea that the area in question is blighted is directly challenged by the definition in the statute; and any deterioration in the neighborhood is a direct result of the planned destruction initiated by Columbia itself after it purchased the properties it currently owns. It should be one heck of a legal battle ahead.

Columbia, ESDC-AKRF'd Up

In what may become a watershed decision, Judge Shirley Werner Kornreich ruled that the Empire State Development Corporation must hand over confidential documents and correspondence to opponents of the Columbia expansion plan. As the NY Times reports this morning, the judge made her ruling "because of an appearance of collusion between the state and Columbia."

The main issue, one that we have commented on before, is the fact that the consulting firm AKRF is employed by Columbia to give the environmental impact of the university's expansion the most favorable gloss, while at the same time working for ESDC as a consultant in order to "determine" whether the area Columbia wants to seize is really "blighted." As we said previously, this is the equivalent of a take home exam that the student gets to mark herself; and it raises serious questions about the legitimacy of the entire process.

Now we have commented previously about the serious weaknesses in the city's land use review process, and in particular the worthiness of the so-called environmental consulting work that is done on behalf of developers. The good folks at the Manhattan Institute, no knee-jerk opponents of development, have cogently alerted us to the unhealthy collaboration between developers, their environmental consultants, and the review agencies that are supposed to do the proper due diligence of the data that is submitted on behalf of development projects.

The key analysis in the Institute report was the observation that no one wants to go on record "blowing the whistle" if something in the data submitted doesn't ring true. Therefore, the review process often becomes a charade and, unless the opponents have the resources to fight-like those in West Harlem-communities are never adequately informed about the real impacts of development.

The untoward situation up at Columbia, however, goes way beyond the generic inadequacy of ULURP. In this case, all pretense of fairness has been tossed out the window and the foxes haven't even bothered to dress up as chickens. As Justice Kornreich says, "'A.K.R.F, presumably, seeks to succeed in securing an outcome that its client, Columbia, would favor.'"

In some ways ESDC, Columbia and AKRF have done us all a favor and, through their blatant disregard for any semblance of pretense, clearly demonstrated the phony nature of the UURP process in this city. Now the only thing that needs to be done here is for the consultants to be recused; and for the entire ULURP process to be suspended until a clearer understanding of the interrelationships between the parties is fully revealed.

The failure of the city to do this would seem to us to imperil the project in the litigation that will almost certainly occur should the expansion be approved by the city. In any case, as Norm Siegal points out in the Times this morning the entire project reeks of collusion: "'The easiest way to put it is that you can't serve two masters...The government has the power to condemn my clients' property. But the process should be neutral and objective, and when you find out that the government has retained Columbia's consultant, it can't be neutral anymore.'"

"Cooked Process"

An article in today's NY Daily News contains an apt quote from State Senator Bill Perkins. Referring to the fact that the state used Columbia's own consultant, AKRF, to determine that the land that the university wants the state to condemn is blighted, Perkins said the following: "This was a cooked process," he said."

And, of course, it is just that. But we shouldn't be so shocked by this, since it is something that animates all of the ULURP applications that the city entertains. The developer chooses an environmental consultant who then "finds" just what the developer would wish found. A nice cozy, and not very transparent arrangement that creates a sham review process, since few lawmakers have either the skill or the time to fully evaluate the findings that are put before them.

We're reminded of a time long ago-and not much has changed since-when the developer of a Pathmark supermarket on the Lower East Side submitted a required traffic and parking analysis; an analysis that was subsequently vetted by the city planners and given the green light. When we did our own review, however, we found that the study was a complete replication of one that had been done for a Pathmark store in Gowanus. No one had even bothered to look!

The larger point here is that the entire ULURP process has to be changed, and the consultants need to be hired by an independent review agency; after all, how could a minimizing traffic study for the Gateway Mall be accepted on asthma alley in the Bronx? The fact that AKRF describes itself as one of the, "top firms in its field," is, in this context, more of an indictment than an approbation.

So it's not really the fact that AKRF has a blatant conflict that is disturbing in the ESDC case. Rather, it is the fact that the entire process is thoroughly imbued with conflicts and had AKRF not been Columbia's hired lap dog, it still would have come up with the same well-paid for advice on blight-it's what they're in the business of doing, and damn the public interest. Independent environmental analysis is almost impossible to come by since firms that want to be successful understand just where their bread will be buttered.

Extra Benefits

One other point from yesterday's NY Daily News: "Columbia University will pump an additional $21 million into neighborhood services as it pushes to get its controversial $7 billion expansion plan approved, the Daily News has learned. The school will also offer 40 undergraduate scholarships a year to students near its west Harlem campus, as well as two free classes a year for 50 area seniors, said Avi Schick, downstate president of the Empire State Development Corporation. "We went back and we said, how do we really integrate Columbia and the community?" Schick said. "When we vote to approve the plan, these are included."

That's not even a close shave from Shick. These extras are simply window dressing, and as we've said before the Columbia plan, unlike those of Harvard and Yale, walls itself off from the community; something that a few schollies will not change one iota. What would, "integrate Columbia and the community," is a housing plan that would address residential displacement. After all, when CU is finished expanding, the "community" won't even be there for the supposed integration.

High Sierra

The Sierra Club has joined with the Natural Resources Defense Council in calling for an independent study of the Willets Point ramps. When we last left off, the revised ramp report and environmental assessment from EDC-via NYSDOT-was supposed to be oven ready shortly after Labor Day. With nothing yet forthcoming, it appears that the state agency is till having some nettlesome issues with the ramp application-a perfect time to agree with the two environmental groups that an independent second opinion is badly needed.

In its letter to DOT, the Sierra Club made this salient point: "While we take no position on the development itself, we are concerned about insuring that the review of the ramps-particularly because of the massive number of projected vehicle trips that the project will generate-is done in the most transparent and unbiased a manner as possible."

And the group went on to point out that the use of AKRF to evaluate the ramps raises real concerns about impartiality, "Our concerns are magnified by the fact that the consultant hired by EDC, AKRF, is also the contractor that New York State DOT uses to conduct third party reviews. However, because AKRF is the consultant on the ramp project, DOT decided not to utilize any outside vendor to review the traffic impacts of the proposed ramps. So for the Sierra Club, whose only concern is for the most accurate oversight possible, the relationship between AKRF and the state agency is a real cause for alarm."

But, as we have pointed out on innumerable occasions, it isn't only Willets Point that is a cause for alarm-a clear evaluation of the cumulative impact of scores of Queens projects needs to be done if the Bloombergistas are serious about air quality and sustainability: "
The Sierra Club is further concerned by the fact that the Willets Point ramps are designed to facilitate a 10 million square foot development that is just one of an additional 60 or 70 additional projects; projects that will amount to a total of 30 million new square feet of car dependent development in and around this area of Queens. Put simply, there is proposed-or already approved-a huge increase in vehicular traffic for which the current roads and highways are ill equipped to accommodate."

Which brings us to the charade of the mayor's PLaNYC 2030. You can't be promoting all of this auto and truck dependent development while, at the same time, claiming the mantle of Kermit the Mayor. But while the NRDC and the Sierra Club are alive to the mayor's rampant hypocrisy, the NY League of Conservation Voters-along with the Environmental Defense Fund-suffers from a Benjamin-induced lockjaw when it comes to taking any stand that exposes the mayor's double talk.

As far as the NYLCV is concerned it is, as the Marxists say, no accident. In May of this year the mayor was the League's keynote speaker-a reward for the group's supine response to the assault of the Bloomberg economic development team on the city's air quality-and we could find no public comment from League director Marcia Bystryn about the alarming DOH air quality study this past summer.

But the League has been played by Bloomberg for awhile, and it would be interesting for the press to track the money trail from the mayor's sources. This is still a, "not for nothing," city-and there are enough things that the Bloombergistas have done for an independent environmental group to criticize. And, of course the League's and EDF's complicity in the Willets Point development is a blatant signal that their speech isn't as free as it should be.

But silent complicity isn't Bystryn's style-and she told the Observer, after endorsing the mayor's third term last year, "that Bloomberg has "the most comprehensive sustainable agenda in the country." She praised his use of "strategies and metrics." Not sure what that babble means, but when it comes to Bloomnberg's metrics, we're sure that Bystryn really sizes up.

What this means for Queens County is that the environmental chorus has been muted in the face of a massive traffic influx courtesy of EDC and its Big Real Estate sycophancy. When the borough's elected officials-with a few notable exceptions-also remain quiescent it doesn't bode well for the environmental health of Queens residents.

We'll give the Sierra Club the last word on the impacts of the unsustainable Bloomberg development blueprint: "In the past NYSDOT has been blindsided by economic developments in NYC for which the agency was unprepared to deal with-developments that exacerbated the city’s air quality and gridlocked its roads and expressways. Now that it is aware of the potential impacts of the Willets Point project, and numerous additional projects, it is incumbent on DOT, as well as the federal overseers, to insure that the potential impacts of all this auto dependent development is accurately analyzed."

AKRF'd Up

Crain's In$ider is reporting this morning on the legal challenge brought against the ESDC for its hiring of the consulting firm AKRK. Lawyer Norman Siegal, who represents our client Tuck-it-Away, among other businesses in the footprint of the proposed Columbia University expansion, is arguing that the consultants, who are also representing Columbia in its environmental review, can't be used by the state to determine whether the area in question is "blighted."

In essence, as we have argued before, AKRF (and Columbia by extension) is getting to mark its own exam which, as Siegal points out is inappropriate because "the company can't serve two masters." AKRF's argument that, "there is no conflict because the projects are being handled by two different departments in the planning firm," simply fails the laugh test.

It does, however, in a dramatically glaring fashion underscore what the Manhattan Institute has astutely pointed out about the entire ULURP charade: these consultants are in the tank and can't be depended on for any kind of honest evaluation. Which is another reason why communities are so cynical about the entire phony environmental process.

The environment has nothing to do with any of the outcomes in these land use fights. The review process is pure Kabuki theater and is designed to make believe there is a community consultation. The process, inherently political, needs to be changed so that local neighborhoods that are going to be impacted can have a bigger voice in the outcome.

Which is precisely the point that Councilman Garodnick makes in this morning's NY Post. "Disputes on proposals intensify because communities don't have a chance to share their vision until it's too late. On the Columbia University redevelopment, for one, the local community board chair recently said: 'On a scale of 1 to 10 Columbia is a minus five in terms of trust.'" Garodnick calls for a process that includes the community early on, and points to a project on the East Side that does just that. He goes on to say that, "With communities in the lead, development's future could be one of collaboration-not recrimination."

Which is precisely why the Columbia expansion plan is so flawed. There has been collaboration; perhaps the demographics of West Harlem differentiate it from the East Side and obviate the need to really look to partner with "those people." In any case, the AKRF boondoggle only serves to accentuate that stench that is arising uptown, as the "progressive" forces of Columbia University look to reach out to West Harlem and teach the community its own kind of civics lesson.

Willets Point Ramp Questions-And the Need for Sunlight

With a promised hearing on the Willets Point ramp construction scheduled for next month, it is appropriate to look at where the proposal stands going into the hearing. It should be recalled that in order to build these ramps, a ramp report called an AMR is required by the applicant-in this case the NYC EDC. All through last year EDC's consultant AKRF, and its traffic subcontractor UBS, were working assiduously to garner a fast approval from the two oversight agencies-NYSDOT, and the FHWA. Owing to a series of e-mails that Willets Point United has obtained from DOT (under duress) through freedom of information, we are beginning to get a picture that the approval process was continuing swimmingly-and the agencies in question were getting ready to sign off on the AMR.

But a funny thing happened on the way to the forum-and the jest involved the intervention of WPU and its ace traffic consultant Brian Ketcham. After Ketcham got through analyzing the AMR--and comparing it to the original traffic report submitted by EDC in its land use application to City Planning-the report that looked so princely, was transformed into a frog; and the draft AMR was sent back to the drawing board. That was in February.

But let us digress for a moment here and make some salient points about the approval process-and what it says about proper due diligence in the public interest. In the first place, as the e-mails highlight, the normal third party vettor for these kinds of submissions to DOT is none other than our old friend AKRF. What a pity it was, however, that AKRF was unavailable for this rigorous duty since it was also the lead consultant to the submitter-EDC.

This turns out to be, as the lawyers are wont to say, a difference without distinction. Because if the DOT's favorite sun was the "consigliere" for the applicant than it was apparently presumed by DOT that the work submitted-and evaluated in-house-was beyond reproach. On the part of NYSDOT, the tone of the emails indicates an expectation and predisposition to approve some version of the proposed ramps, and to do so in compliance with NYCEDC’s schedule. There is no discussion of the possibility that the ramps will not merit approval, or that the ramps and the associated development will hinder the operation of the Van Wyck Expressway.

And the FHWA? The federal oversight agency also seemed unseemly eager to short circuit any lengthy review-and one of its minions said he, “did some digging” to assess whether it can approve the AMR at the local FHWA office, thereby helping NYCEDC by shortening the approval process by many months versus sending the AMR to FHWA headquarters in Washington, DC for approval there."

Phil Eng of NYSDOT emerges from this correspondence as a particularly eager accomplice of-not the mission to protect the public-but EDC's timeline for a quick approval. Here's a sample of Eng's exchanges:

* Philip Eng (NYSDOT) promised an expedited review of the draft AMR. See email dated 9/11/2009 at 4:02PM, forwarding other email dated 9/11/2009: “On August 5, 2009, a draft copy of the Access Modification Report (AMR) for the referenced project was sent to your office for review and comments. Please provide the status of the comments. A copy of the original transmittal memo is attached to this e-mail. The memo states the Regional Director P. Eng promised an expedited review of the report.”

* Phillip Eng (NYSDOT) is concerned with accommodating NYCEDC’s approval schedule. See email dated 9/24/2009 at 1:39PM, forwarding email dated 8/19/2009 at 11:55AM: “Ian, Where do we stand on the AMR and the schedule we have in place to meet EDC's timeline needs? Thanks.”

* Phillip Eng (NYSDOT) is again concerned with accommodating NYCEDC’s approval schedule. See email dated 9/24/2009 at 1:39PM, forwarding email dated 9/23/2009 at 11:38AM: “The scheduled [sic] showed that we wanted to submit comments to EDC by 9/15. Did we?”

* Philip Eng (NYSDOT) again prompts underlings to complete analyses of the draft AMR. See email dated 10/15/2009 at 9:26AM: “How is the schedule? Have we sent comments to EDC yet? The schedule shows them resubmitting the AMR to us by 11/1. Thanks.”

In all of the e-mails we have examined, there was only one discouraging word noted. One keen agency staffer asked: "Does this report supplement and is harmonious with any EDC impact statements for Willets Point? And: Are Citifield events factored in the traffic studies as well as future commercial developments in College Point?” 

The reply email, if any, has not been provided to WPU. But, even in the absence of such a reply, we know that the staffer's question was never seriously addressed because it was only when Ketcham did what the DOT staffer asked that the dead cat was let out of the DOT/EDC bag job. All of which raises enormously serious questions for the legislative oversight hearing-and beyond to the federal approval process.

In the short term-and this situation keeps rearing its ugly head on project after project-we are witnessing how the monopoly status of one consultant, as Norm Siegel demonstrated in the Columbia situation, corrupts the possibility for an open, honest, and transparent environmental review process. In the long run-and keep in mind the fact that the collusion is ongoing since DOT has shut Ketcham and WPU out from its re-review of the AMR-the collusive nature of the process dramatizes the compelling need, as NRDC has requested, for an independent review under the National Environmental Policy Act.

In a subsequent post we will outline what the federal guidelines under NEPA entail-and what should be done to insure that the fix isn't in. More and more civic groups-along with NRDC-have called for independent review, one that doesn't let the applicant EDC choose its favored (wholly owned subsidiary) consultant. This is a goal that should be endorsed by all civic, environmental, and good government groups-and every single elected official in Queens. Whether that actually happens-and the pols stand up for transparency and propriety-remains to be seen. As always, we will be giving them the opportunity to fail.

The Great Wal-Mart of Bloomberg

Crain's Insider, apparently looking to emulate the Onion for great satire, has an item on Bloomberg, Wal-Mart and promises unkept-the post's title is, The Bloomberg Wall: "Before last fall's election, the union representing supermarket workers endorsed Mayor Mike Bloomberg based on word from the mayor's campaign that Bloomberg would not spend political capital to bring Walmart to the city, according to the union. At the same time, Bob Lieber, then deputy mayor for economic development, was pledging to do his part to help Walmart, according to a source who heard it firsthand. The most benign conclusion that can be drawn from the discrepancy is that a thick wall separated campaign and administration operations."

Benign conclusions aside, this is all purely a case of bait and switch-and there is no wall of separation between the campaign and the mayor. Putting it charitably, how could there be for someone who believes in the principle of, l'etat, c'est moi. But relying on mayoral assurances is not a sound organizational decision-nor is similar ingenuousness when it comes to the promises of Related-just ask CM Barron.

All of which brings to mind the situation regarding the Columbia University expansion-and the allegation that its consultant AKRF was conflicted since it also represented ESDC. In its defense, AKRF claimed that there was a, "wall of separation," between the two sides of the firm that were working for the two separate clients. Judge Catterson of the Appellate Court saw right through this, pointing out that the fix was in: "But the court, and in our view got it right, saw it otherwise-and paid particular attention to the collusion between the university, its consultants and the state. As the Observer had pointed out about the court's ruling "It also was highly critical of the process of determining blight, a major component of the use of eminent domain. The state had hired the consulting firm AKRF to do both the environmental review for the project and the determination of blight. Ultimately, the ESDC brought in a second contractor to replicate the original blight study, but, as the court pointed out, this was well after the decision had been made to use eminent domain."

So much for these virtual walls. In dealing with Ross and Bloomberg (Bialystock and Bloom?), it is absolutely essential to get everything in writing-notarized, if possible. Which brings to mind Justice Hugo Black's observation about loyalty oaths, "Words uttered under coercion are proof of loyalty to nothing but self-interest..."

Property Value Changes

Gotham Gazette has an interesting story on the prospects of getting NY State's eminent domain laws changed-and the piece is highlighted with a nice picture of Nick Sprayregen's Harlem storage property. Still, the chances of legislative changes to the current antiquated and inequitable statute is rather daunting.

As GG points out: "Assemblyman Richard Brodsky has put together a package of legislation that would create a commission to review the state's eminent domain process, give land owners fair compensation for their property and establish an ombudsman who would help land owners whose property is targeted by eminent domain. Later this week Sen. Bill Perkins will unveil legislation that he says would change the state's eminent domain laws to better protect property owners. The situation in the legislature, along with a recent appellate court ruling that found the process the state used to take land for a Columbia University satellite campus in upper Manhattan was unconstitutional, could result in the first major changes to New York's eminent domain laws in more than 30 years."

But there are powerful forces at work to thwart any real change: "But developers, real estate interests and some politicians fear changes could make it more difficult for the state to improve blighted neighborhoods in desperate need of investment, infrastructure and jobs. "Eminent domain is an essential governmental tool that allows for the implementation of important development projects to the benefit of the public at large," Lisa Willner, public affairs manager for Empire State Development Corp., which oversees the state's eminent domain process, said in a statement."

Perhaps the most significant area that needs to be changed is the way in which blight is defined-or isn't: "State law defines blight as "substandard and insanitary." Land that is determined to be blighted can be given by the state to another private owner for the purpose of economic development. The state can also use blight determination to make way for public works projects such as roads. According to attorney Michael Rikon, who represents property owners in the Willet's Point section of Queens, where the city is planning a major redevelopment, the term is so vague that the contractors used by the government basically make up formulas as they go along. "The definition of blight is so broad it could come down to cracks in the sidewalk. Even the mayor's townhouse could be blighted, because it only supports one family," he said."

Should Bloomberg be worried? Not really-the state has never taken property from the truly wealthy, and Norman Siegal nails this entire discussion: "Civil rights attorney Norman Siegel, who represents Tuck-It-Away, a storage company that is fighting Columbia University's expansion plans, agrees. "Basically they are saying if there is a Motel 8 and Hilton comes along and says they can make the property more valuable, then it [the Motel 8] can be declared blighted." Many advocates, Siegel said, have begun saying the land in these cases should not be labeled "blighted," but "coveted."

And to make the blighters even more arbitrary, we get the collusion of the consultants: "Of further concern to Rikon, Siegel and others is who makes the call. While the board of the Empire State Development Corp. technically determines whether a property is blighted, the agency hires a contractor who is paid millions of dollars to conduct the technical study and write a report. In the case of Columbia's campus expansion, the university and the development corporation used the same contractor, AKRF, at the same time."

AKRF, never before known for standup comedy, defends its work in this manner: "As a firm of planners and analysts, AKRF's responsibility is the collection and assessment of data in an objective and thorough manner," a spokesman for the firm said. '"Any suggestion that the firm -- widely recognized as a trusted industry leader -- would compromise the quality of its work is incorrect."

Which brings us to the situation with the environmental work that the firm has done for EDC at Willets Point. As consultants on the original EIS, as well as the study done for the crucial ramp construction approval, we marvel at how, "a trusted industry leader," could be part of two different and wildly contradictory reports-for basically analyzing the same traffic in the WP area. And, as an aside, wasn't Enron also an industry leader?

But what's truly egregious in the eminent domain statute is the absence of any real equal protection and due process for the landowners-and Brodsky and Perkins are looking to change this: "According to Siegel, property owners only get one, very narrow chance to argue that their property should not be taken away from them. He said landowners in other states have more of an opportunity to challenge decisions. "As far as I can tell New York is the only state where you start at the appeals level," Siegel said. "You get 15 minutes to argue. There is no cross-examination. I think it is a violation of due process."

And five years after the silly-and wrongheaded-Kelo decision, NY lags behind so many other states that saw the need to change: "Most states changed the process and the standards for applying eminent domain following a Supreme Court ruling in 2005. In Kelo v. City of New London [Connecticut], the court decided that a state can take property from a private owner and transfer it to another owner for the sake of economic development. Forty-three states then changed their laws to protect property owners. New York did not."

Still, we are encouraged by the growing coalition of forces interested in altering the retrograde status quo on this issue-and we look forward to playing a role in helping advance the changes that are surely needed. With Pfizer fleeing New London and leaving the city with a vacant money pit, we need to wise up quick before even more people lose their property with the ripped off NY tax payers getting stuck with the bill.

Conflicted Loyalties

The relative lack of press coverage of the decision by the state appellate court to uphold the lower court's ruling on the freedom of information lawsuit brought by the West Harlem Business Group was disappointing. Clearly, the appellate court upheld, not only the supreme court's initial ruling, but the underlying premise of the ruling.

That underlying premise, captured well by the CityRoom blog of the NY Times (the one outlet other than the Observer that broke the story the other day) was that there was an unnatural intimacy between Columbia, ESDC, and the consultant AKRF: "Consultants dealing with state agencies may be exempt from public disclosure laws, but in this case the judges found that a conflict of interest nullified the exemption in certain areas. “Supreme Court clearly had reason to doubt A.K.R.F.’s independence, objectivity and sense of what good judgment calls for,” because of the consultant’s ties to Columbia, Judge James M. Catterson wrote in his majority opinion."

Powerful stuff, redolent it seems to us, of collusion at the highest level. If anyone thinks that this soon to be released blight study is anything more than "one lying and the other one swearing to it," than their naivete is robust indeed. As our client Nick Sprayregen told the Times: "Nick Sprayregen, a member for the group, said the court’s ruling affirmed his belief “that the whole process of Columbia's request for the state to condemn private property is tainted with conflicts of interest.”

ESDC, long with Columbia, will be really rolling the dice if it goes into court defending the work of AKRF; and the parties involved in all of these shenanigans would be better served to sit with Nick and negotiate a deal that would extricate the colluders from serious potential harm. What we've found over the years, however, is folks don't always understand where their own interests lie.

Collusion With Columbia

As we have been reporting for the past two years, Columbia University and New York State have colluded to violate the basic property rights of storage king Nick Sparyaregen; and the collusion exposes the lack of fairness that's involved in the entire eminent domain process in New York. As Damon Root writes in the NY Post today: "Collusion between Columbia University and the Empire State Development Corp. over using the ESDC's powers of eminent domain to acquire land for the school seems to violate both the letter and spirit of the law."

The entire concept of "blight" is called into question by the use of a consultant that was on the university's payroll while, at the same time, reaping millions from the state's tax payers: "In 2006, the ESDC hired the planning firm Allee King Rosen & Fleming, Inc. (AKRF) to perform an "impartial" neighborhood blight study. Yet the firm was already on Columbia's payroll and actively working on the school's controversial Manhattanville plan. According to billing records Sprayregen obtained through the state Freedom of Information Law, as many as six AKRF employees worked on both the blight study and the redevelopment project - by definition, a conflict of interest."

So, surprise, surprise, what do you think these colluders discovered? Right, horrible blight: "For starters, AKRF failed to mention that Columbia already owns 76 percent of the neighborhood - and was thus directly responsible for the overwhelming majority of alleged blight that it now seeks to exploit, from overflowing basement trash heaps to major roof and skylight leaks. Numerous tenants have now reported that the university refused to perform basic and necessary repairs - thereby both pushing tenants out of Columbia-owned buildings and manufacturing the ugly conditions that later advanced the school's real-estate interests."

Now that the university and the city own around 91% of the entire proposed development parcel, you'd think that the university could either proceed without the use of eminent domain-or make Sprayregen a great offer to leaver. Neither of these options is, however, being pursued; since Columbia's pursuit of lebensraum is designed to achieve total victory-and the removal of any vestigial "blight" that they don't own and control.

Let's hope that the courts see otherwise-and that they put the brakes on the conspiracy that's afoot in this development scheme. The use of eminent domain is bad enough without the collusion of state officials who rig the process even further against property owners.