Thursday, December 03, 2009

Sprayregen Beats Columbia!

In a jaw dropping decision, a NY State Appelate Court, in a 3-2 ruling, declared that the use of eminent domain to allow Columbia University to expand in West Harlem was unconstitutional. Judge Catterson, speaking for the majority, couldn't have been stronger:

"The exercise of eminent domain power by the New York State Urban Development Corporation d/b/a Empire State Development Corporation (hereinafter referred to as "ESDC") to benefit a private elite education institution is violative of the Takings Clause of the U.S. Constitution, article 1, § 7 of the New York Constitution, and the "first principles of the social contract." The process employed by ESDC predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court. In short, it is a skein worth unraveling."

In essence, the court determined that the use of eminent domain was not for any public purpose-a point that we have made constantly in our defense of Tuck-it-Away's Nick Sprayregen. This was a plan that was conceived by Columbia for its own benefit-and the collusion between the university and the city was evident to this court. As the Observer points out: "In an unexpected major decision, a New York appellate court has overturned the use of eminent domain to create a new West Harlem campus for Columbia University, ruling the action unconstitutional. The cases were brought by the defiant owner of a set of storage warehouses in West Harlem, Nick Sprayregen, and the owners of two gas stations in the footprint for the 17-acre campus, called Manahttanville. Mr. Sprayregen sued to block the land takings in January, after the use of eminent domain was approved by the state's development agency, the Empire State Development Corporation."

Judge Catterson saw through the ruse here: "The decision, written by Justice James Catterson, finds a difference between the use of eminent domain for Columbia and in other cases such as the landmark Kelo v. New London case, in which the U.S. Supreme Court in 2005 upheld the use of eminent domain for economic development. In the case of Columbia, the decision says, the clear beneficiary was Columbia, not the public. Columbia, by buying up property and not maintaining sidewalks, helped to create blight, the court found, and the university underwrote costs for the entire project, rather than the city or state committing funds..."

Catterson blisters ESDC on this point: "The record shows no evidence that ESDC placed any constraints upon Columbia's plans, required any accommodation of existing, or competing uses, or any limitations on the scale or configuration of Columbia's scheme for the annexation of Manhattanville. Thus, the record makes plain that rather than the identity of the ultimate private beneficiary being unknown at the time that the redevelopment scheme was initially contemplated, the ultimate private beneficiary of the scheme for the private annexation of Manhattanville was the progenitor of its own benefit."

And the collusion of the consultants that we underscored in 2007 came back to bite the university-and we cited a Weekly Standard piece that demonstrated this basic unfairness: "So to recap: The state of New York hired a firm that works for Columbia to carry out the blight study. The firm used personnel who were working for Columbia on the project, and Columbia reviewed this work as it progressed. You will perhaps not be surprised to learn that AKRF's report declared the Manhattanville neighborhood was blighted--the precise result Columbia desired."

But, as City Room reports, the ruling isn't fatal to the expansion-but restricts Columbia's ubber alles approach: "The court’s decision is not fatal to to its expansion plan. It already owns or controls 91 percent of the 17-acres–61 of 67 buildings–in the project area. It can simply build around the other property owners, or come to some sort of agreement. But the state and the university had always sought the entire site."

In fact, Sprayregen had offered the university a compromise plan that would have swapped properties so that Nick could build affordable housing on the East Side of Broadway-outside of the direct footprint of the university's "bathtub." The swap plan was rejected by the university-and in light of the court decision today that rejection turns out to be somewhat ironic. If it had agreed to allow the affordable housing plan to proceed, Columbia would have killed two birds with the proverbial single stone; taking Sprayregen out of the mix as an opponent, while at the same time, giving its plan a real public purpose.

As to be expected, the ruling buoyed our friends at Willets Point. As the Observer points out: "The ruling has also caught the eye of a set of business owners at Willets Point in Queens, where the city seems likely to use eminent domain. "We look forward to the same kind of vindication if the city coerces eminent domain on Willets Point," business owner Jake Bono said in a statement. That project, however, is a full city initiative for which no private developer has yet been identified."

True, but the Willets Point development is a taking of private property and transferring it for another private use-at least in our view. Still, the ruling was indeed shocking-and just may reverberate throughout NY State politics-and the notion of public use may indeed need to be further refined. As Daily Politics reports-citing the court: "The use of eminent domain should also be rejected on the grounds that Columbia's expansion is not a 'civic project,'" the decision reads.

"ESDC states that the project will be used by Columbia for "education related uses," and thus the project serves a civic purpose. The petitioners correctly contend that within the definition of Uncons. Laws § 6253(6)(d) (UDCA 3(6)(d)), a private university does not constitute facilities for a 'civic project. The statutory definition does refer to educational uses, but the final clause "or other civic purposes," clearly restricts the educational purposes qualifying for a civic project to only such educational purposes as constitute a "civic purpose...Were we to grant civic purpose status to a private university for purposes of eminent domain, we are doing that which the Legislature has explicitly failed to do: as in California and Connecticut, that decision is solely the province of the state legislature."

Spryregen was clearly ecstatic over the ruling-a vindication of his quixotic quest that even we doubted he could pull off. As he told City Room: "I feel unbelievable,” Mr. Sprayregen said following Thursday’s decision. “I was always cautiously optimistic. But I was aware we were going against 50 tears of unfair cases against property owners.”

And the true kudos go to the intrepid legal work of the indomitable Norman Siegel: "Norman Siegel, a lawyer for the property owners who opposed the use of eminent domain on behalf of Columbia, called the court’s decision a “major victory” in a state that has been very deferential to the state’s power to take private property. He said the ruling establishes “a road map for how property owners can fight these battles.”

So this was a real case of David and Goliath-and we believe that it will be seen as a nationally significant decision. But, first things first. It should be a clear signal to the state, that the eminent domain law here needs to be changed.