Wednesday, January 20, 2010

NY Times Focuses on Eminent Domain

Our old friend Terry Pristin casts her keen eye at one of the issues that could well play a role in the upcoming election cycle-the use of eminent domain, After observing that the 2005 Kelo decision led to legislative changes all over the country, but not in NY, she goes on to point out: "Some lawmakers tried to revise the state’s condemnation procedures in the wake of the Connecticut case, but their bills died because of strenuous opposition from the Bloomberg administration. Now, however, attention is again being focused on whether New York has too much power to force the sale of private property for economic development. A recent appellate court decision barred a state agency from condemning businesses occupying land that Columbia University wants for its $6.3 billion expansion. Even if the strongly worded ruling is overturned, as several land-use lawyers expect, it is providing fodder for people who believe the existing system is unfair to property owners."

To say that the real estate community has been shook, is to put it mildly: "The opinion on Dec. 3 by the New York Supreme Court’s appellate division, which found there was no civic or public purpose or blight to justify condemning Tuck-It-Away’s buildings for the university’s new campus, has unnerved public officials and developers. The Columbia decision “is the first thing that’s happened in New York that suggests the threat of a change in our eminent domain law,” said Kathryn S. Wylde, chief executive of the Partnership for New York City, a leading business group. “I think it’s frightening because there are few more important investments in our city’s future than that which Columbia is making.”

Really? Well, in our view, there is no more important an issue than the preservation of the rights of Americans to hold on to their hard earned property-and Wylde avoids the chicanery that was the basis of the adverse Appellate Court decision. But the worry that is felt among the bien pensants of real estate isn't limited to eminent domain alone: "The clamor for reform is also being driven by a recent wave of sentiment against development in New York, as demonstrated last month when the City Council defied Mr. Bloomberg and rejected a plan by the Related Companies to convert the Kingsbridge Armory in the Bronx into a shopping center. Emboldening critics is the sense that Mr. Bloomberg’s influence has waned since his narrow victory in last fall’s mayoral race."

WPU's attorney captures the mood: “I think people are really getting a foul smell from what’s been going on,” said Michael Rikon, a lawyer who represents business owners in the Willets Point section of Queens, where the city intends to condemn property to make way for a large redevelopment project."

What Columbia's supporters don't get is that their high handedness is turning the folks off-as if it couldn't go out and negotiate in the private sector without the use of the government pistola. Instead, they cry: "At the Harlem hearing, a Columbia executive vice president, Maxine Griffith, said the holdout properties were needed because the 16 new buildings would be connected underground. “If the basement can’t be connected, I don’t see how we can proceed,” she said."

Well Columbia could have entertained the swap that Nick Sprayregen had proposed. But, no, not when it knew that it had the power of the state to force its will on the feisty property owner-along with compliant consultants who were willing to find blight even before they took the train up to 125th Street: "The court chastised the state agency for commissioning its study of neighborhood conditions from the same consultant, Allee, King, Rosen & Fleming, known as AKRF, that Columbia had hired to help plan the project and prepare the environmental impact statement. State Senator Bill Perkins, a Harlem Democrat whose district includes the neighborhood where Columbia is seeking to build its new campus, peppered Empire State officials at the hearing with questions about their reliance on AKRF, which has played a prominent role in most of the city’s major development projects. Accusing the consultants of having a “particular agenda in mind,” Mr. Perkins said that “it just doesn’t look good.”

So, perhaps a new day is dawning-with the possibility of legislative changes, particularly when it comes to both the lack of any real due process, as well as the definition of blight that is currently vague, apparently not accidentally so: "Mr. Siegel said New York was the only state that did not permit people resisting condemnation to be heard at the trial-court level, where there would be an opportunity for discovery and cross-examination of witnesses. A provision to require trial-level review could be part of new legislation being drafted by Mr. Perkins, said Amy Lavine, a staff attorney with Albany Law School’s Government Law Center, who is advising the state senator. At the top of her list is substituting a specific definition of blight for the current standard of “substandard and insanitary.”

What might that look like? Lavine tells us: "One model might be Pennsylvania’s law from 2006, which permits a blight finding only when a substantial number of properties meet certain conditions like being “unfit for public habitation” or having been tax delinquent for two years. “It’s about making sure there are objective standards relating to public health and safety,” Ms. Lavine said."

But that would eliminate the current arbitrary bogarting that Wylde and her cohort are so enamored with-knowing that the use of eminent domain would never adversely impact them! We'll give Bill Perkins the last word on this: "Senator Perkins, who quoted the conservative columnist George Will with approval at the public hearing, said he expected to build a bipartisan coalition to improve the condemnation process. “Eminent domain is like a gun to people’s head,” he said."