Friday, December 04, 2009

Might Makes Blight

Perhaps the most significant aspect of the appellate court ruling in favor of Tuck-it-Away against Columbia's attempt to use the state to take away its property, is Judge Catterson's scathing attack on how ESDC colluded with the university to come up with the conclusion that there area around the storage facility was blighted. The NY Post nails it: "The fix was in. The state and Columbia University conspired "in bad faith" to use eminent domain to seize six properties in West Harlem, the state Appellate Division ruled yesterday in a harshly worded decision that slams the brakes on the controversial plan."

And the court went on to say: "The state agency in charge of eminent domain and the school even "predetermined the unconstitutional outcome" by cooking up findings that the neighborhood was "blighted" and that the school's $6 billion expansion plan, therefore, served a "civic use."

The court also totally derided the idea that there was any public purpose in the taking of our former client's property: "The exercise of eminent domain power" by the Empire State Development Corp. "to benefit a private elite education institution is violatitive" of the US and New York state constitutions and should not be allowed, the Appellate Division ruling said."

The NY Times captures the essence of the court ruling: "Mr. Sprayregen and the family that owns the stations challenged the process the state used in finding that the neighborhood was blighted. Writing for the majority, Justice James M. Catterson said there was a conflict of interest when the state hired the same real estate consultant, AKRF, that Columbia had hired to make the determination of blight. “We questioned AKRF’s ability to provide ‘objective advice’ to the E.S.D.C., particularly with respect to its preparation of the blight study,” Justice Catterson wrote. The blight designation, the court said, was “mere sophistry” about a neighborhood that was already undergoing a renaissance. The state’s development corporation committed to rezoning long before the study, “not for the goal of general economic development or to remediate an area that was blighted before Columbia acquired over 50 percent of the property, but rather solely for the expansion itself.”

Now the question remains as to what the New York State Court of Appeals will do-after all it ruled 6-1 in favor of the Atlantic Yards project. Attorney Norman Siegel is optimistic, saying that the two legal approaches are not the same. As Crain's reports: "Columbia didn’t have an immediate comment. In a statement, the ESDC said it believe the decision was wrong and it attends to appeal to the state’s highest court- the New York State Court of Appeals. Late last month, that court ruled that the state could use eminent domain to clear the site for the massive Atlantic Yards $4.9 billion project in Brooklyn. Mr. Siegel said there are differences between the two cases. For example, Mr. Siegel argued it was inappropriate for the state to use eminent domain for a private institution such as Columbia because not everyone can attend the university."

Still, the caustic nature of this court ruling-the harshest that we've ever seen-gives Tuck-it-Away's Nick Sprayregen some good cause for possible success at the next level. As the NY Times tells us "The majority opinion was scathing in its appraisal of how the “scheme was hatched,” using terms like “sophistry” and “idiocy” in describing how the state went about declaring the neighborhood blighted, the main prerequisite for eminent domain."

But even if Sprayregen succeeds at the Court of Appeals, this doesn't preclude Columbia from expanding-and Nick never was opposed to the concept, only its all-or-nothing approach: "Mr. Sprayregen said he never opposed the plan. “The research and education they will perform are very beneficial,” he said. “The fact remains that even if they don’t get the last 5 percent, they can still go ahead and build their campus.”

In fact, this gives Sprayregen some leverage in his efforts to negotiate with Columbia and pursue his own plans to develop affordable housing in conjunction with the university's plan-an idea that CU failed to pick up on when the development was going through its land use application at the city council. But that depends on what the state's highest court decides.

Without a doubt, however, the decision has given a shot in the arm to our friends over at Willets Point: "A year ago, the City Council authorized the use of eminent domain to take a 62-acre area of mostly salvage yards and auto repair shops known as Willets Point in Queens. “The tide may be turning on the use of eminent domain for private purposes,” said Jake Bono, a spokesman for Willets Point United, a group of property owners opposed to condemnation."

And, given all of his yeoman-like work, we'll give Norm Siegel the last word. As the Post reports: "Norman Siegel, a lawyer for businesses fighting property seizure, said the ruling shows "property owners can fight back against the state when eminent domain is thrust upon them."


Crain's Insider also gives a shout out to the fighters at Willets Point:

"Eminent Domain Opponents Cheer

Willets Point United, a coalition of property owners fighting condemnation of their land, was heartened by yesterday's court ruling in the Columbia University eminent domain case. “We believe the tide is starting to turn,” says coalition member Jake Bono."