In a decision that is as legally wrongheaded (and dangerously far-reaching) as this city has ever seen Supreme Court Justice Cahn has ruled that the Bronx Terminal Market merchants can be evicted from space that many of them have occupied for decades. What makes the decision dangerous is that, aside from the lack of any prevailing legal precedent (let's make up the law as we go along), it gives the mayor the power to supersede the Charter and, in the process, takes away from the City Council its vested authority in this area under Section 384 (b) (1).
In a nutshell Judge Cahn-job is saying that under City Charter Section 1301 (pp.17-18 of the decision) the Commissioner of Business Services has a unilateral right to do anything he wants in regard to not only the city's "Public Markets" but to "wharf property" as well. We have already commented on this ludicrous application of what Related has called the "market exception," and its implications are far-reaching indeed.
What Judge Cahn is saying is that Commissioner Walsh, in his authority to lease and redevelop the public markets, can enter into agreements to essentially eliminate the markets under his administrative control. This is asinine and would mean that he could decide to turn the Hunts Point and Gansevoort Meat Markets into condominiums without having to subject the decision to any Council review.
In Vietnam-era terms, Walsh can destroy the BTM in order to save it. What's next? Will the Parks Commissioner be given the authority under this silly "exception" to convert a greenspace into a shopping mall? The argument here is that Walsh has the authority to redevelop the market only if he continues its current function as a public market.
A suburban mall is not anything close to a public market and this decision needs to be overturned, either legally or politically. If the City Council doesn't address this usurpation of power than it will be inviting further mayoral aggrandizement and the concomitant diminution of its legislative purview.
Any council member who represents a public market or a waterfront wharf area needs to take careful note of this illegal land grab. The first thing that came to our mind was the Gansevoort Market smack in the new Speaker's district. If the Council is to reassert its legitimate perogatives it needs to throw this Gateway Mall application back in the city's (and Cahn-job's) face.
After it does this the Council should immediately commence to write legislation that closes this ridiculous but dangerous market loophole. Than, as we said yesterday a fair and open process, one that includes competitive bidding, can be substituted for the dishonest taint surrounding the entire BTM fiasco. The Cahn decision only adds to the compelling rationale that the Gateway Mall needs to be turned down flat.