Condemning the Condemnors: Willets Point Eminent Domain Hearing Today

The city is holding a condemnation hearing today for those property owners in what it has called, Phase I, of the Willets Point development. Phase is an excellent term because EDC, the city's rogue development arm, is certainly not at all fazed by bending the law-where it doesn't outright violate it. Today's hearing is a case in point.

Put simply, Phase I is a fiction that has been created out of whole cloth by EDC because it cannot easily garner approval of the ramps that the agency had claimed were a necessary prerequisite for any development at Willets Point. Here is a draft statement from Willets Point United's Mike Gerrard, arguably the city's leading environmental lawyer. Gerrard's testimony today foreshadows the legal case that WPU will bring against the city's untoward attempt to proceed with the eminent domain hearing today:

Statement of Michael B. Gerrard

Arnold & Porter LLP

On Behalf of Willets Point United and Individual Property Owners

EDPL Public Hearing on Willets Point Development Plan

March 2, 2011

                            The City’s proposed actions violate the law in at least four separate ways:

               1.  The City’s proposed actions violate binding pledges that the City previously made to the New York Supreme Court, on which the Court relied.

               2.  The City’s proposed actions amount to segmentation, which is impermissible under the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR).

               3.  The City’s failure to prepare a supplemental environmental impact statement violates SEQRA and CEQR.

               4.  The City’s proposed actions are a violation of federal law -- the National Environmental Policy Act (NEPA).

As a result of these numerous violations of law, my clients Willets Point United and individual property owners who are members of WPU plan to institute legal action against the City in New York Supreme Court.

                                                   Violations of Pledges to Court

In the Ardizzone v. Bloomberg litigation, Robert Lieber, Deputy Mayor for Economic Development, submitted an affidavit dated June 29, 2009 in which he stated in Paragraph 20, "The City will not acquire title to any property through Article 4 of the Eminent Domain Procedure Law (“EDPL”) until after ramps for the Van Wyck Expressway are approved by FHWA."

In her decision of August 16, 2010 deciding the case, Justice Madden stated (on pp. 18-19), "At oral argument [for WPU's Article 78], counsel for respondent [City] stated that if the ramps are not approved, the respondents cannot 'proceed with the plan as conceived and approved.' Transcript at 33.  For the purposes of this review, this court assumes that if the ramps are not approved, additional review under SEQRA will be required."

Thus the City represented to the court, in a sworn affidavit, that it would not take my clients’ property by eminent domain until the FHWA has approved the ramps.  Counsel to the City told the court at oral argument that the project cannot proceed unless the ramps are approved.  The court relied on these representations.  They are binding on the City.

Moreover, the attempt to condemn properties prior to approval of the ramps violates several statements made in the Final Generic Environmental Impact Statement:

“The City will not take possession of property acquired by eminent domain before the NEPA process is complete and the ramps are approved.” – Willets Point FGEIS, Chapter 29, General Comments, Response G-8, September 12, 2008.

“The City has maintained communication and close coordination with NYSDOT from the inception of the project, outlining a range of conceptual design options and working with options that NYSDOT determined were preferable.  It is fully expected that such approvals will be obtained and the design will be progressed in light of design suggestions to be made by both NYSDOT and the FHWA.  Furthermore, the proposed ramps are an integral part of the Willets Point Development Plan.  The developer’s agreement would stipulate that following approval of the Van Wyck Expressway ramps but prior to completion of ramp construction, no buildings would be occupied unless the developer demonstrates that earlier occupancy of such buildings would not result in significant adverse impacts that have not already been described in this GEIS.” – Willets Point FGEIS, Chapter 29, Section 17 (Traffic and Parking), Response 17-6, September 12, 2008.

The FHWA has not approved the ramps. Nor has the New York State Department of Transportation (NYSDOT), whose approval is also needed.

                                                                Segmentation

The City’s Technical Memorandum for the Willets Point Development Plan FGEIS, Updated Plan, February 10, 2011 (“TM004”), makes clear that the City intends to proceed with the full plan for Willets Point, and that the construction of ramps connecting with the Van Wyck Expressway is an essential part of this plan. (E.g., -- “the City remains committed to the new Van Wyck connections,” TM004 p. 5; “Like the Approved Plan, the Updated Plan would include new connections to the Van Wyck Expressway,” TM004 p. 7.) The City has been pledging for years that this approval was imminent, but it has not arrived, and it is obviously nowhere in sight.  Thus the City has violated its pledges to the Court and its representations in the FGEIS, and in desperation is attempting to start the project without this essential approval.

It is also attempting to start the project with no one having any clear idea what impacts the project would have with the ramps.  There are two prior analyses by the City of traffic conditions with the ramps -- the FGEIS and the Access Modification Report (AMR).  As we have previously shown in detail, the results of these two studies were radically different. No further illumination is supplied in TM004, yet the City wants to go forward with the condemnation.

The SEQRA regulations prohibit considering only a part or segment of an action. 6 N.Y.C.R.R. § 617.3(g)(1).  The City’s current attempt is remarkably similar to a situation that the New York Court of Appeals found to be impermissible segmentation, where the reconstruction of a highway interchange was closely linked to the widening of the one of the highways connecting there, but the two efforts were not considered together.  Village of Westbury v. Department of Transportation, 75 N.Y.2d 62 (1989).  Numerous subsequent decisions have likewise struck down the comparable segmentation of intimately linked undertakings. E.g., AC 1 Shore Road, LLC v. Incorporated Village of Great Neck, 43 A.D.3d 439 (2d Dept. 2007); Long Island Pine Barrens Society, Inc. v. Town Board of Riverhead, 290 A.D.2d 448 (2d Dept. 2002); City of Buffalo v. New York State Department of Transportation, 184 Misc.2d 243 (Sup.Ct. Erie Co. 2000).

The Appellate Division has previously endorsed the consideration of modifications to a highway access ramp as part of the underlying project. Coalition Against Lincoln West Inc. v. Weinshall, 21 A.D.2d 215 (1^st Dept. 2005), leave to appeal denied, 5 N.Y.3d 715 (2005).  That was not done here, as it should have been.

                                                   Failure to Prepare Supplemental EIS

SEQRA requires a supplemental EIS whenever there are significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from changes proposed for the project, newly discovered information, or a change in circumstances related to the project. 6 N.Y.C.R.R. § 617.9(a)(7)(i).

All of these situations are present here. The attempt to institute condemnation without the essential approvals for the Van Wyck ramps is a change to the project, and a change in circumstances; the inability to obtain the essential approvals by now, despite the City’s promises that they would be in hand, is newly discovered information.  A supplemental EIS is required.

The need for a supplemental EIS is especially compelling where, as here, there have been substantial unexplained discrepancies between the City’s two prior studies of the traffic implications of the ramps -- the FGEIS and the AMR -- and the public should have a full opportunity to comment. That opportunity has not been provided under SEQRA.  Making matters worse, TM004 does not provide the information necessary to understand these discrepancies, and the City has failed to fully answer numerous Freedom of Information Law requests aimed at obtaining the documents that would

illuminate this and other questions.  This hearing is premature in the absence of full compliance with FOIL.

Further enhancing the need for a supplemental EIS are the admissions in TM004  that many of the significant traffic impacts of the revised project are unmitigatable (Appx. C p. 13), and that there would be numerous significant adverse impacts on the Van Wyck mainline and existing ramps (Appx. D p. 31).

                                                            Violations of NEPA

Since the Van Wyck ramps are an essential part of the project, and they require federal approval, the project is subject to NEPA. The  City has long acknowledged the applicability of NEPA. See, e.g., TM004 p. 4.

NEPA, like SEQRA, prohibits segmentation.  40 C.F.R. § 1508.25.  That prohibition has been violated here.

We will submit more detailed comments during the written comment period.

Greg David: Willets Point Truther

In yesterday's Crain's web edition, commentator Greg Davis purports to set the record straight on Willets Point with an article inaptly titled. "Important Truths about Willets Point." As the late Daniel Patrick Moynihan once remarked, everyone is entitled to their own opinion, but not their own set of facts. So, in the service of a bit of cognitive dissonance for David-someone who has demonstrated little concern or regard for any one's constitutional property rights in NYC-we offer a rebuttal.

What was particularly irksome in the David piece was his lack of interest in understanding just what it is that opponents of the Willets Point development have been arguing-something that would have been accomplished with a simple phone call to us with his questions. By not doing so, however, he makes some rather basic errors of fact.

He begins by asserting that today's eminent domain hearing is the, "end game." "It may appear Wednesday at a public hearing that there is considerable opposition to the Bloomberg administration's plan to clean up and redevelop the hazard waste site known as Willets Point, Queens. Don't be deceived. Tomorrow is the end game of a decades-long effort to made Willets Point a generator of jobs and business activity. Also don't forget that the last-ditch efforts of the few holdout businesses have extracted a steep cost: preventing the city's economy from being as prosperous as it could be.

Where to begin? As we have pointed out, the term,"holdout businesses" is simply a canard and a calumny that thoroughly distorts reality. Shame on you Greg! You can't be holding out if the city has never even given you an offer. And if there has been no offers proffered, how can these, "holdouts," be preventing anything? If there's been a delay here it is because of the city's own malfeasance and missteps.

In addition, to say there are a few businesses left is also to do violence to the truth-since there is a large majority of businesses who have not sold their property: "The opposition has been greatly overstated. In a 2007 survey, Hunter College researchers found exactly one resident in the area. At the time, there were 225 businesses, mostly auto parts and repair business. They employed 1,300 people. Most of the major businesses in the area have reached agreements with the city to relocate elsewhere, mostly to nearby College Point. The numbers of remaining businesses and workers is much smaller today."

Well, some twenty odd businesses have negotiated sales with the city-sweetheart deals, in our view-which means that over 85% of the businesses, land owned and/or tenanted, remain. Not our definition of a few at all. So what the city has tried to do is to pay through the nose for the big guys so it could be free to beat up on the woman and children left standing-but, so far, it hasn't worked out as planned.

But if the "holdouts' haven't prevented the development from proceeding, what has been the holdup? Here David remains totally confused-mangling the environmental issues in one dismissive sentence: "Meanwhile, opponents keep inventing strategies to derail the city. For a while, it was the idea that planned highway ramps somehow violated the environmental impact statement. A judge dismissed the claim summarily.

This is flat out wrong. Willets Point United brought an Article 78 lawsuit that challenged the city's SEQR review of the development-saying that the ULURP process was premature since the crucial ramps off of the Van Wyck had yet to be approved. Judge Madden ruled for the city based on the alocution-a sworn affidavit-of then Deputy Mayor Robert Lieber that the city would not do what it has started to do today: condemn any one's property before the ramps were approved. In other words, there was no harm, no foul for the aggrieved property owners because they would be able to challenge the ramp approval before having to worry about condemnation.

But the city has gone back on its word. Why? Because we have demonstrated that the traffic data submitted to the state was insufficient-fraudulent in our view. It has been over 15 months since that application was essentially bitch slapped by State DOT. This, Greg, is the holdup-and the critique we made of the city's shoddy environmental data was no invention since the state responded by utilizing the information to send EDC back to the drawing board.

Facts are stubborn things, no? The only party doing any inventing has been the EDC consultants-dummying data that proved to be inadequate. Faced with being stymied at the regulatory level, EDC decided that it would go back on its word to the court-and in all of its testimony to the city council-and begin development without a ramp approval that it claimed was essential. It is in fact, then, EDC's so-called Phase I that is the mother of all inventions-a totally new version of the Willets Point project that needs a supplemental EIS, and can't go forward without it This is the grounds for the lawsuit that WPU will file.

David also errs by saying that the opposition to Willets Point development has been overstated. It only appears that way since the relatively small band of little guys has put an effective monkey wrench into the EDC pipe dreams. In reality, the support-however misguided-has been widespread among the political class. But by refusing to truly engage with the opposition's cogent argument, what else does David have left but ad hominen attacks and mischaracterization?

David, like the blind squirrel, does find one nugget of truth, but relegates it to an almost throw away line at the end: "There are questions about Willets Point--how much can the financially strapped city invest in the cleanup, and what will the interest of private sector developers be in building the housing and commercial space the city envisions?"

Gee, Greg, perhaps we should examine this with 2011 eyes to determine feasibility-before commencing a condemnation proceeding that could lead the City of New York straight down the garden path-to New London and its fiscal fiasco post Kelo. Having introduced this nugget of wisdom, however, David shrinks back from following it to its logical conclusion-caution, not full speed ahead.

As a result, he concludes with the following: "But those are not reasons to give up and leave Willets Point as it is. Whatever happens will be better than what exists today and will create jobs and help diversify the economy."

Not having the financial wherewithal to successfully complete the development of Willets Point is no reason to give up? It's OK for David to advocate taking away people's property based on sheer speculation? Nothing could demonstrate his lack of appreciation for constitutional property rights than that conclusion.

One last reflection-on Greg David's genuflection to Mike Bloomberg: "Only Mayor Michael Bloomberg has gotten this far, which says a lot about the backbone of this administration." Not really. It is more an expression of the mayor's edifice complex, and his insouciance about any possible negative impact that his chainsaw malling of the city has wrought. And his disregard, as evidenced by EDC's extra-legal maneuvering, for honesty, integrity, and the rule of law.

The Willets Point project was midwifed in illegality by the hiring of Claire Shulman's astroturf LDC. It proceeded apace through the invidious offering of boucoup bucks to large property owners-folks represented by Peter Vallone, whose latest claim to fame was his three time endorsement of the mayor. Nothing to see there. It then moved on to fraudulent traffic submissions to NYS DOT, and now to violating sworn court testimony.

This, friends, isn't an example of backbone. It is a manifestation of a bullying administration with little regard for either legal niceties or the fate of small property owners-revealing in the process that the man who has claimed to be above special interest is, in reality, their apotheosis-a classless example of class interest.

Ketcham Calls Out AKRF and EDC

We are taking the liberty of giving everyone a preview of the statement that WPU's traffic engineer, Brian Ketcham, will be making before the EDPL hearing on Wednesday. A careful perusal of Ketcham's traffic analysis will give everyone a crystal clear idea why EDC is going forward with a rampless Phase I before obtaining regulatory approval for the Van Wyck ramps-ramps that fail to mitigate the project's massive traffic generation. Ketcham's analysis will also be the crucial evidence that WPU will use to invalidate EDC's extra-legal maneuvering.

Here's Ketcham's statement:

"Nearly four decades ago William Hoppen and I took on the West Side Highway project.  We did so alone.  And we paid for all of our work in cash and in careers.  The City, State and Federal governments spent $150 million to stop us.  They could not.   Although they did torture us afterwards.

Westway was not nearly so complicated as Willets Point.  Nor as divisive!   As with Willets Point, Westway was a multi-billion project.  A huge land development swindle that would have made the City’s favored developers billions.  Another similarity is that the Westway engineers, Parsons Brinckerhoff, were the same folks who were to form AKRF, the environmental engineering firm who botched the Willets Point environmental impact statement and have caused the multi-year delay in this project. 

These engineering firms along with NYCEDC will ultimately be responsible for the collapse of the Willets Point project.  In the case of Westway these environmental engineers could not make the case in support for Westway.  Their efforts cost taxpayers $150,000,000 and they did not have a clue.  It is incredible to think about that battle nearly 40 years later.   

For Willets Point, the problem is that AKRF knows precisely what they are doing and they have to lie to make their case.  They know that Willets Point is too big for the Flushing area. They know the surrounding roadway network cannot accommodate Willets Point traffic.  They know that the Van Wyck Expressway and connecting expressways cannot accommodate so much additional traffic.  They know there is no additional transit capacity to accommodate Willets Point and the other projects like Flushing Commons and that even more traffic will be forced onto the area than reported.  

They lied and they got caught.  They have lied repeatedly. Over the last 18 months we have provided NYCEDC, NYSDOT and the FHWA dozens of documents supporting these assertions, identifying the errors, omissions and outright lies that forced EDC in 2010 to withdraw its application for ramps connecting Willets Point to the Van Wyck Expressway.  

While these agencies have failed to directly acknowledge these reports they have been forced, based on these documents, to delay any action on the Willets Point project.  Within the next month I will be providing you with a new report summarizing the situation today, critiquing the latest efforts by EDC to sell their Willets Point project, and connecting the current problems that we have identified with all of the many reports that we have submitted over the past 18 months.  

The ramps will not help reduce the impact of the Willets Point project.  The surrounding roads and expressways cannot accommodate this project let alone the other 20 million square feet of new development generating more than 170,000 new car and truck trips daily.  The existing transit systems cannot accommodate 200,000 more daily trips leaving most of these travelers to use their cars and add to the areas Super-Gridlock conditions.  

The NYCEDC cannot meet any of the eight FHWA criteria for ramp approval and, as NYCEDC has said repeatedly, the Willets Point project will not work without the ramps.  The Willets Point Development Plan is fatally flawed and must be abandoned."  

Sick Transit Gloria: A Sadik-Khan Job

Sadik-Khan is at it again-this time it is the arbitrary remaking of 34th Street that has her Utopian dreams all aflame. The NY Post has the editorial response: "City Transportation Commissioner Janette Sadik-Khan — a k a The Thing That Ate Times Square — is on her way back for seconds. New York’s bicycle belle has her eye on 34th Street this time, which she’s planning to transform into another teeming walrus wharf . . . er, pedestrian plaza. She’s planning to swipe the entire block between Fifth and Sixth avenues, permitting only buses to pass through. Nor will the chop stop there: 34th Street is to run eastbound only from Fifth Avenue, and westward from Sixth Avenue, rendering the road useless as a thoroughfare."

The Post, as we do, believes that this is asinine: "Certainly her new plan would severely degrade one of New York’s premier commercial districts, for no discernible good purpose other than to give a boost to the lawn-chair and roller-blade industries. Worse still, she’s proceeding with her $30 million scheme in secret and without a shred of real accountability."

Andrea Peyser agrees-and weighs in in yesterday's Post: "At issue is a project bigger than the detested, dangerous bike lanes and despised pedestrian plazas that have sprouted up like a cancer, to applause from Mayor Bloomberg. The new plan is Sadik-Khan's crowning achievement. Her Taj Mahal. Her Coney Island fun house. It's called the 34th Street Transitway. And as plans reveal, it's a doozy -- meant to surrender that main Midtown thoroughfare to buses while preventing passenger cars from traveling it from the Lincoln Tunnel to the Midtown Tunnel. The project is a budding Titanic -- a monstrous muddle of bus routes, bike lanes and pedestrian malls."

When we last encountered this maven of mischief she was fiddling while the the city was buried under a blizzard-but practical matters are not her métier. The Post gnashes its teeth over this inanity, but doesn't feel that there is much that can be done-aside from public caterwauling: "Which is why it is critical that the City Council exert its every power to force Madame Bike-Lady to explain — publicly and in detail — what she has in mind, and precisely what its impact will be. True, the council doesn’t have any authority over the DOT, but it can use its bully pulpit to shine a light on the department’s hush-hush maneuvers...This time, it can do something to protect existing commerce — and jobs — from the wrath of Sadik-Khan."

We disagree that the council is helpless to stop this maneuver-it may be self-checked, but it isn't powerless. What the body can do is challenge this cockamamie scheme under the rubric of SEQR-the state's environmental quality review act. Put simply, this is a massive undertaking that will have an equally large impact on the city's environment. The council should warn the mayor that it Sadik-=khan doesn't submit this to a full environmental review, it will go into court to force the department's hand. It is time for the legislature to re-assert its own oversight prerogatives.

We'll give, along with Peyser, two outspoken New Yorkers the last word: "It should be scrapped. "Oh, my God! This means all of our side streets will become tunnel-to-tunnel streets," said Marisa Bulzone, a 35th Street resident. "How many meetings do I have to go to and tell officials that 33rd Street does not go through? You'd think they'd know this. They don't!"  Lisa Pyle of Manhattan griped, "This is a case of Mayor Bloomberg hiring those he enjoys as dinner guests, like [Schools Chancellor] Cathie Black. "I bet [Sadik-Khan] doesn't even own a car -- maybe doesn't even have a license." Stop her before it's too late.

Calling Out Eduardo Giraldo

In yesterday's NY Times story on Willets Point there was one item that we found disturbing. Not surprising, mind you, but disturbing because it represents a pattern of dishonest representation. We're referring to the comments of Eduardo Giraldo: "While some critics have portrayed the redevelopment of Willets Point as a class battle by a billionaire mayor intent on supplanting scrap metal with sushi, the Bloomberg administration has some unlikely allies in the project. “We see Willets Point as a form of modern-day slavery in which poor people are working in conditions worse than in their home countries,” said Eduardo Giraldo, head of the Hispanic Chamber of Commerce of Queens. “It is better to shut it down.”

This is the same Giraldo who has come out four square in support of Walmart in NYC-clearly a man whose allegiance is ruled by expedience; in this case, the cash nexus looms large. So Giraldo's concerns for the plight of the workers is suspect-and if the city does evict the businesses from Willets Point you will not find Giraldo within ten miles of helping the "exploited" workers find new work-his job will have been completed.

Giraldo has anointed himself as a spokesman for Hispanixs, but his group is a rump organization that is not a part of the official NYS Federation of Hispanic Chambers of Commerce. His grass roots support? When he ran for the city council in 2009 against Julissa Ferreras he was beaten in a landslide: "City Councilwoman Julissa Ferreras (D-East Elmhurst) handily defeated challenger Eduardo Giraldo to win the Democratic primary for the 21st District seat. Ferreras, the incumbent who won the seat in a special election in February after her former boss Hiram Monserrate ascended to the state Senate, had 65.9 percent of the vote compared with Giraldo’s 34.1 percent, according to city Board of Election figures. She had no known Republican opponents."

We'll give the hapless Giraldo the last word: “I think we worked hard,” Giraldo said. “We gave it 110 percent. ... I think the turnout was very low and we weren’t able to persuade the people to vote for me."

EDC's Day of Reckoning

On Wednesday, the city is holding what we believe to be an illegal eminent domain hearing-which, if true, wouldn't surprise any one who has followed the Willets Point saga over the past few years. After all, when NYC government can begin the development process by illegally hiring a local development corporation to lobbying its behalf, then all the illegality that follows shouldn't be shocking. But it actually is.

Yesterday the NY Times focused in on Willets Point and underscored the extent to which the little guys are being hosed:

"Two years ago, as the mayor attended the Mets’ home opener at the new Citi Field, Adrien Nicolescue, an auto mechanic from Romania, joined a procession of honking garbage trucks to protest the city’s plans to condemn the nearby Willets Point area and build a $3 billion project of apartments, office buildings, stores, restaurants and a hotel. But as his comrades geared up for another showdown with the mayor at a public hearing on the project scheduled for Wednesday, Mr. Nicolescue decided to pack up and leave. “I am going home, back to Romania,” he said, standing on the same pothole-pocked corner of Willets Point where he has been drawing in customers for windshield repairs for 36 years. Willets Point, in Queens, is a 61-acre expanse of junkyards and auto-repair shops so squalid that local business owners compare it to Iraq. “I don’t want to leave,” Mr. Nicolescue said, “but I have nowhere to go. This may look like the third world, but it is my world.”

The Times continues: "But opponents of the Bloomberg plan counter that the project is speculative and environmentally unsound. They insist that the area, however bedraggled, has become an Ellis Island of sorts for a newly arriving underclass that depends on it to get by. They also complain bitterly that the city is shutting down thriving small businesses that have nowhere else to go."

But the efforts of Willets Point United have so far stymied EDC is its land grab-and the group will soon be arguing in court that a process that began with the illegal lobbying of Claire Shulman has now degenerated even further with the city's efforts to avoid complying with the original terms of the environmental review that was the basis for the city council's approval in 2008. Nothing is more exemplary of the corrupt nature of the process than the discriminatory manner that EDC has used against the smaller property owners-nothing more egregious than the treatment of Flushing Towing's Carlos Canal.

EDC's jaundiced outlook is given exposure by the Times: "City officials estimate that Willets Point is home to 255 businesses, which employ about 1,700 people, some in sheds made of tin or cinder blocks. Of 74 property owners, 28 have agreed to sell their land or relocate, city officials say; the city already owns 90 percent of the property where the first five-year phase of development would go."

Do the math. Less than half of the property owners have settled with the city, but that represents the largest percentagee of the property-which means that, since EDC has yet to negotiate with the others, the city has looked to buy off the big guys with sweetheart deals, and have the luxury to bully the little folks, who are treated as little more than bugs on the EDC microscope. How else to explain no negotiations in over two years with the majority of all of the property owners?

Think of it, though. There are 1700 workers at Willets Point that will soon have no place to go if this corrupt deal goes forward-and if you believe that the city will sincerely work to relocate these folks, just ask all of the Bronx Terminal market wholesalers who were treated with disdain by EDC, scattered to the four winds, as it made that property available to Related in a no bid conveyance. But let's not get too far ahead of ourselves.

The illegality of the EDC condemnation effort will be subject to a vigorous legal challenge-but not one that rests exclusively on the eminent domain issue. How could it? There is no protection for property owners under NY law, so this challenge will be based on the EDC's violation of the environmental laws it promised to uphold, but didn't as soon as  the going got too tough. Here's where the fabled Mike Gerrard comes in.

rGerard will file suit on WPU's behalf on the following grounds-and in his own words:

            "1.  The City’s proposed actions violate binding pledges that the City previously made to the New York Supreme Court, on which the Court relied.

            2.  The City’s proposed actions amount to segmentation, which is impermissible under the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR).

            3.  The City’s failure to prepare a supplemental environmental impact statement violates SEQRA and CEQR.

            4.  The City’s proposed actions are a violation of federal law -- the National Environmental Policy Act (NEPA).

            As a result of these numerous violations of law, my clients Willets Point  United and individual property owners who are members of WPU plan to institute legal action against the City in New York Supreme Court."

As Gerrard goes on to point out-referencing the misrepresentations of then Deputy Mayor Lieber to the court: "...the City represented to the court, in a sworn affidavit, that it would not take my clients’ property by eminent domain until the FHWA has approved the ramps.  Counsel to the City told the court at oral argument that the project cannot proceed unless the ramps are approved.  The court relied on these representations.  They are binding on the City."

So, in our view, this EDPL hearing is nothing but a sham-as EDC tries to salvage progress on the Willets Point development out of its ineptitude over failing to garner approval for the Van Wyck ramps. It is a fitting culmination-a cherry on the sundae-to an entire process characterized by abuse and illegality.

We'll give Willets Point United's Ralph St. John the last word-but EDC hasn't heard the last from WPU by any means: "Meanwhile, some small business owners are frustrated that their neighbors are getting lucrative deals from the city and they are not. Ralph St. John, whose company has built apartment buildings and parks for the city for nearly 20 years, said he had been offered nothing, and that his 18 employees would lose their jobs if he were forced to leave. City officials said that Mr. St. John’s land was not earmarked for development in the first phase, and that by the time the city was ready to make a deal with him, his land would probably have increased in value. But Mr. St. John, who is 77, does not want to live in limbo.

“If you want what I got, act like a man and come face me,” he said. “Don’t use eminent domain and steal from me.”

TINOs: Teachers in Name Only?

The NY Post has a story yeterday that reported on the 1500 UFT members who are being paid not to teach as part of a negotiated union-release program: "In the city's funny math, you get only one teacher for the price of two. The Department of Education pays about 1,500 teachers for time they spend on union activities -- and pays other teachers to replace them in the classroom. It's a sweetheart deal that costs taxpayers an extra $9 million a year to pay fill-ins for instructors who are sprung -- at full pay -- to carry out responsibilities for the United Federation of Teachers."

In a time of fiscal austerity, some folks think that the practice should end: "With Mayor Bloomberg calling for thousands of teacher layoffs to balance the 2012 budget, critics say it's time to halt the extravagant benefit. "In these tight fiscal times, it defies common sense to pay two different people to do one job," said Dick Dadey, executive director of Citizens Union, a government watchdog. "It's a waste of money."

Perhaps Dadey is right, but there's a couple of larger points that get lost in the midst of all the union focused bashing-and, ironically, it is made by E.J. McMahon, certainly no fan of labor. As he pointed out in the same edition of the Post, commenting on Wisconsin and Governor Cuomo's challenges to rein in labor costs: "It’s pointless to blame the unions themselves for this situation. After all, they are only acting the way unions are supposed to act — relentlessly pursuing the interests of their members, period. The real blame falls on the generations of elected officials who have abdicated their responsibility by creating and nurturing this system."

And the issue with the union released teachers fall on the nonfeasance of the current occupant of city hall. As the union spokesman told the Post: "UFT spokesman Dick Riley said such arrangements are common among city unions "and were instituted with the agreement of NYC government."  The mayor, probably out of town, was unavalable for a comment.

It is high time for both the Post and the NY Daily News to refocus their attention on where it belongs-the mismanagement of the educational edifice by the mayor and his dearly departed ed head, Joel Klein. (These papers share in the culpability since they promoted the mayor's faux achievements uncritically.) After all, Bloomberg and Klein are the ones who larded up the DOE payroll with 16,000 additional personnel-money fro nothing in our view. And they're the ones who promoted an out sized NYC educational achiement that is turining out to be made almost entirely out of whole cloth.

Now, what may be true is that the UFT colluded for too long with the mayor's phony test score bonus regime-but the blame needs to be redirected to the man in charge of the fiasco. And can we stop with all of this LIFO propopaganda? Seniority may be a flawed system for hiring and firing teachers but, much like democracy, it might also be better than all of the alternatives-at least under the current structure of public education. In NYC, are we going to replace seniority with a system controlled by Bloomberg and his lackeys? Talk about making a bad situation worse!

The reality here is that the mayor's nine year rule has been less than stellar in regards to the educational change that he told us should be the basis for determining whether he has been a success or a failure. When we add the incredible increase in funds and personnel into the mix, the evaluation falls from a D to an F. The teacher's union has played a role in all of this, but it hasn't been a starring one. That honor goes to Hizzoner.

Voodoo Reporting

On Saturday the local tabs did return to the story of the fatal Flatbush fire-but not as we hoped. Neither the NY Post nor the NY Daily News-or the NY Times, for that matter-went back to examine whether or not the city's reduced manning policies played a role in the tragedy. Not when you can introduce the possibility that voodoo sex had something to do with fire-and both the Post and the News felt this was front page importance.

Here's the Post's sensational lede: "A wild candlelit sex ritual between a Brooklyn woman and her voodoo priest got so hot and heavy, they ended up torching their clothes and sheets -- sparking the nasty fire that killed a retired teacher and left 100 people homeless last week, sources said yesterday."

The News chimes in: "A Voodoo sex romp triggered the Brooklyn blaze that killed one person and left dozens homeless when a ceremony meant to bring good luck went horribly wrong, sources said yesterday." The Times account was, as expected, a bit less lurid: "A fatal five-alarm fire that roared through a building in Flatbush, Brooklyn, last Saturday was ignited by candles arrayed around a bed for a voodoo ceremony, Fire Department officials said Friday."

Now we don't really blame the papers for reporting this-it is all quite juicy, after all. But we do expect that the press might want to focus on a critical management issue that could, if not altered, lead to more fire fatalities in the future. Only the News even bothered to mention this issue: "The firefighters union said staffing cuts contributed to the spread of the fire, but Fire Commissioner Salvatore Cassano, without referring to the couple having sex, blamed other errors. "This fire had so many of those elements - candles left on the floor near combustible material, one of the occupants trying to douse the flames before calling 911, and an open door, which allowed fire to spread into the hallway," Cassano said. "Hopefully others will learn from this tragedy."

We can imagine that Commissioner Cassono was relieved to have  a sensational action as the proximate cause of the blaze-and we have no doubt that the failures of the occupants of the apartment played a role in the tragic results. But to state this, and this alone, is to fail to further explain that irresponsibility is all too often at the root of why fires are started-but this has absolutely nothing to do with the failure to control the blaze that led to a woman perishing; along with a total building demolition.

In our view, the manning issue is a critical one-and it points to the failure of the management priorities of the Bloombergistas. This is an administration that added 16,000 more personnel to the DOE, leading to a grand total of 23% of our high school graduates being college ready-yet it wants to pinch pennies on fire truck manning where lives are at risk.

We notice that Commissioner Cassano left out entirely any possibility that the failure to control the fire might have been a result of management failures-both manning and command decisions in the minutes leading up to the eventual fatality. That is why a thorough investigation is needed, and if the fire unions are proven correct, we can put the death of  Mary Feagin right up there with the snowfu and CityTime scandals-more evidence of just how egregious it was for the mayor to usurp a third term.

Hold Up, Not Holdouts

We have been inveighing against the use of the term, "holdouts," to describe Willets Point property owners who are not on;y unwilling to seel their property, but even more importantly, have yet to be approached by EDC to negotiate a sale-as is required by the Eminent Domain Procedure Law. The urgency of the issue is magnified by the fact that the city is holding an eminent domain hearing on Wednesday.

The Flushing Times has the story: "The hearing, scheduled from 4 p.m. to 8 p.m. March 2 in the auditorium of the library, located at 41-17 Main St., will be the only official opportunity for Willets landowners and business owners, as well as any other concerned citizens, to voice their views about the $3 billion plans to representatives of the city Economic Development Corp. and Cornerstone Group, the firm handling relocation of area businesses."

Ah yes, the Cornerstone Group-the same pretenders who EDC put in charge of the relocation of the businesses that were thrwon out of the Bronx Terminal Market. As we pointed out five years ago about these no-bid favorites: "There is a constant reference to the Cornerstone Group as the city’s relocation expert. Still? Doesn’t our “senior counsel” realize that these dopey consultants had labored long and hard Xeroxing advertisements from the local newspapers and passed off this effort as relocation (of course she does, she just doesn’t give a damn)?"

But we digress. The issue here is the city's flauting of the very law it is sworn to uphold-and we will now rely on the wisdom of one of the foremost experts on the EDPL, Mike Rikon, to explain just how tainted this process has been ever since the city council passed the Willets Point ULURP appliocation in the fall of 2008. Once the council passed the application, the eminent domain procedures in the EDPL should have been initiated in order for the city to be in compliance with the law.

Here's Rikon's analysis: "The Council of the City of New York adopted Resolution No. 1759 on December 18, 2008. This Resolution with other related Resolutions adopted the Willets Point Urban Renewal Area.  The Resolution approved the Urban Renewal Plan, the Resolution states, “the Plan requires the acquisition and subsequent disposition of property within the Willets Point Urban Renewal Area.”  This is the predicate authorization to condemn."

Once the authorization is in place, then the next steps are clear-to everyone bu the city, it appears: "When the City Council authorizes acquisition of private property, the City is required to comply with the Eminent Domain Procedure Law.  That law requires the appraisal of the properties to be acquired and the written offer of an amount that represents 100% of the highest approved appraisal."

Instead, the city did the complete opposite, in a move rife with favoritism and potential corruption:

"When the City Council authorizes acquisition of private property, the City is required to comply with the Eminent Domain Procedure Law.  That law requires the appraisal of the properties to be acquired and the written offer of an amount that represents 100% of the highest approved appraisal. It is no secret that those owners who obtained favorable deals were also those that supported members of the City Council that wrote an “adamant opposition” letter signed by 29 members to prevent the project’s approval.  But the Project was approved after the negotiated agreements were made. 

The City’s improper conduct in ignoring the law’s requirement of written offers based on fair market appraisals and equal treatment to all property owners is inexcusable.  The law was adopted to prevent corruption and special deals."

But, as we pointed out last week in regards to the disgraceful treatment of Carlos Canal  and Flushing Towing, favoritism and inequity is at the heart of this entire process: "EDC lied to Canal-and took him through a two year sham relocation process. But Canal shouldn't feel too bad. EDC has lied to the city council, lied to the court, and lied to almost every other land owner that wasn't singled out for favored nation status-lying to Canal is part of a systematic pattern of dishonesty that will be challenged in court."

Of course, as we have pointed out continually, the city also told one and all that condemnation-a supposed last resort-would not begin until the city got approvals for those crucial ramps. That position held until it became clear that the ramp approvals-thought to be a slam dunk by EDC-all of a sudden became problematic after WPU exposed the deficiency of the traffic data submitted by the agency's compromised consultants. These so called experts, so unused to anyone challenging their work, must have been stunned when WPU's Brian Ketcham exposed it as a sham-and the agency itself has been playing catch up ever since.

So the move to the EDPL hearing, in spite of the fact that the remaining property owners have yet to even get the required appraisals, no less an offer, is one of desperation on the part of EDC-a desperation so profound that this rogue group is willing to roll the legal dice by violating what it has alocuted to the court about the ramp approvals proceeding any eminent domain process.

We'll give Rikon the last word: "Condemnation is a very significant power.  It enables a condemnor to forcibly take title to someone’s land or business If this awesome power is to be used by the government, it must be used carefully, legally and only when necessary." 

Questionable Calorie Counting: Part II

Last week we opined about the self serving NYC DOH study of its menu labeling. In this week's Crain's we are force fed so more pablum from the agency on the topic: "The city's 2008 menu-labeling law has been criticized since the day it was implemented as being both burdensome to chain restaurants and ineffective for customers: No study had shown that posting calorie information induces restaurant patrons to make healthier selections. That could change. The Department of Health and Mental Hygiene says its new research shows that the 15% of fast-food patrons in the city who use the information eat an average of 106 fewer calories than those who don't see or ignore the calorie content."

Nah, not very likely-and who's gonna believe the department that gets to mark its own test papers? For a more realistic appraisal of the DOH self survey, listen to NYU's Marion Nestle-a proponent of aggressive intervention for healthier eating: "New York University used a similar approach in a February study of teenagers who ate at fast-food outlets. But researchers concluded that their calorie intake was unchanged. “Most studies show very, very small effects,” said Marion Nestle, a professor of nutrition at NYU. The city's study could be significant. “It shows a small effect, but it's bigger than any other that has been seen.”

The department, of course, refused to share its methodology with Crains: "City officials refused to share further details because the study is being peer-reviewed for possible publication in an academic journal. The research project, begun in the spring of 2009, cataloged 12,000 lunch receipts at McDonald's, Burger King, Wendy's and eight other fast-food chains in the city."

Well, the last effort by the department to get peer reviewed on menu labeling fell flat-and independent studies-like this one-have shown no effect whatsoever. As the authors tell us: "We examined the influence of menu calorie labels on fast food choices in the wake of New York City’s labeling mandate. Receipts and survey responses were collected from 1,156 adults at fast-food restaurants in low-income, minority New York communities. These were compared to a sample in Newark, New Jersey, a city that had not introduced menu labeling. We found that 27.7 percent who saw calorie labeling in New York said the information influenced their choices. However, we did not detect a change in calories purchased after the introduction of calorie labeling. We encourage more research on menu labeling and greater attention to evaluating and implementing other obesity-related policies."

As we told Crains: "Critics said the law is a compliance hassle for food operators and has had little measurable benefit. Richard Lipsky, a small business lobbyist who has represented restaurant owners, said the city's findings were self-serving. “They should be taken with a grain of salt,” he said. “No pun intended.”

Four Flushing

As EDC proceeds in its extra-legal efforts to condemn the property of Willets Point businesses, one landowner stands out-Carlos Canal, the owner of Flushing Towing. Canal's saga dramatizes just how underhanded EDC can be when it comes to dealing with those businesses threatened by condemnation.

You see, Canal actually wanted to make a deal and move to the College Point Corporate Park-as was reported locally: "In a meeting with Community Board 7 members Tuesday night, the city Economic Development Corp. announced that it plans to move five Willets Point businesses to the College Point Corporate Park. According to the EDC plans, Feinstein Ironworks, T. Mina Building Supply Co., Sambucci Bros. Auto Salvage, Mets Metals and Flushing Towing would be moved to the Corporate Park and occupy space on two parcels of city-owned land. The EDC said it hopes to begin the public approval process on the proposal Feb. 19."

And that's what did happen. Canal's relocation to College Point went through ULURP and he, along with larger entities like Sambucci and Feinstein Iron Works, were prepared to move-until something very strange happened. According to Canal, the final phase of the approval process came at the Queens Borough Board where CB 7's Chair, Fire Marshal Gene Kelty, pitched a fit about the Flushing Towing move.

As Canal puts it, Kelty screamed at him telling the Hispanic immigrant that College Point wasn't the place for him-and perhaps he should consider a more appropriate Corona or Jamaica location. The insinuation, made right in front of EDC, was a clear one-we don't want your kind here. The Flushing Times has the sanitized version: "The original plan for moving the businesses, introduced in February 2009, would also have relocated Flushing Towing and Mets Metals, which were slated to move to the north end of the corporate park.The businesses were dropped from the proposal after they hit snags with CB 7 and the EDC. CB 7 Chairman Eugene Kelty said in May that those two companies’ futures would be hashed out at a later date."

Honest Abe, Kelty is not-and his comments about a later date obfuscate the fact that Kelty was not going to allow Canal to come into his neighborhood-and incredibly EDC and BP Marshall acquiesced to the kind of behavior that should have gotten Kelty referred to the Human Rights Commission.

EDC's collusion is manifest-as we commented last year:

"Tonight, a hastily arranged meeting between a CB7 committee and NYCEDC occurred inside the College Point Corporate Park office trailer. The purpose was to again review NYCEDC's plans to relocate 3 businesses from Willets Point to the College Point Corporate Park, prior to the votes that will be held on Monday by the Queens Borough Board. If the Borough Board approves on Monday, then NYCEDC will be legally permitted to transfer the titles of the College Point properties to the 3 Willets Point businesses to enable their relocation.

The 3 businesses represented at tonight's meeting and which will be the subject of Monday's Borough Board votes are Feinstein Ironworks, Sambucci Bros. Auto Salvage and T. Mina Supply. Those who have followed the Willets Point story may recall that last year, a total of 5 Willets Point businesses were approved by CB7, the Queens Borough President, the City Planning Commission and the City Council to relocate to property within the College Point Corporate Park. Tonight's meeting and Monday's Borough Board vote account for only 3 of those total 5 businesses. The 2 businesses that are being denied relocation at present are Flushing Towing and Mets Metals.

Although the proprietor of Flushing Towing had been invited to attend tonight's meeting, earlier today he was again contacted by NYCEDC and told that the meeting was "canceled". This outright lie seems concocted to discourage this business owner from showing up at tonight's meeting, and thereby eliminate any questions about why all 5 businesses whose relocations were approved last year by CB7, the Queens Borough President, the City Planning Commission and the City Council, are not in fact being relocated. (emphasis added)

Meanwhile, why the relocation of 2 other approved businesses is not proceeding is unknown."

Currently, Canal is in limbo-with the eminent domain hearing on Wednesday focusing directly on his property located in the fictitious Phase I. Canal, told to find his own alternative site, did find a slightly larger and more expensive location. When he asked EDC, however, for the same $400/sq. ft. that the corporation ponied up for Feinstein, he was shot down-further indication of how the current condemnation process is rife with favoritism and inequity.

In essence then, EDC lied to Canal-and took him through a two year sham relocation process. But Canal shouldn't feel too bad. EDC has lied to the city council, lied to the court, and lied to almost every other land owner that wasn't singled out for favored nation status-lying to Canal is part of a systematic pattern of dishonesty that will be challenged in court. It's just too bad that only one elected official can be counted on to stand up to the agency's outrageous conduct.

Non-Kosher Food Fund?

The NY Daily News is continuing to report on the fact that a Kosher supermarket in Brooklyn has received $2 million to expand: "An angrily divided community board has voted to support a controversial tax break for a Midwood supermarket. Supporters and opponents of the $2 million tax break for Moisha's Discount Supermarket clashed at a raucous Community Board 12 meeting Tuesday night over the plan - and allegations district manager Wolf Sender lied to city officials when he said the board supported the subsidy, even though members had never considered it."

What's missing from the article, however, is the source of the funds-there is the city's Fresh Program that supports supermarket expansion; along with a similar state effort called, "Healthy Food and Healthy Communities Fund." It would be interesting to find out since the community here is not one that is typically seen as underserved.

The Karma Brooklyn Blog gives us an answer: "On February 3rd, the New York City Industrial Development Agency (IDA) held a hearing on an application to FRESH by Moisha's Kosher Discount Supermarket. The Project Description reads

Moisha’s Kosher Discount Supermarket, Inc. (“Moisha’s” or the “Company”) currently operates a 7,000 square foot retail supermarket in the Flatbush section of Brooklyn. Moisha’s is seeking assistance through the Agency’s FRESH program to expand this facility to create an approximately 15,000 sq. ft. supermarket with parking for 45 cars."

As the Daily News pointed out in an earlier story, the grant to Moishe's is controversial-with CM Barron being the most vocal critic:  

"A politically connected Brooklyn supermarket is getting a $2 million tax break intended for neighborhoods desperate for grocery stores - even though it's got plenty of competition.Moisha's Kosher Discount Supermarket is to receive $1.93 million to double its size on Avenue M in Midwood. The money comes from the Food Retail Expansion to Support Health program - which targets neighborhoods in Central Brooklyn, northern Manhattan, the South Bronx and other neighborhoods where fresh food is hard to find. Even though Moisha's is outside the target zone, city officials say the neighborhood counts as "underserved."

To us, this means that the entire Fresh Program needs to be re-evaluated. Our own view-devloped from the experience of some of our good friends in the supermarket business-is that the effort is woefully inadequate, and will little to help assuage the city's loss of over 300 supermarkets in the past decade. The dominant question here, is how has the Fresh Program helped those areas most in need. Midwood is not one of those neighborhoods.

As the News points out, "The Daily News counted 10 markets within 5 blocks of the store, all selling fresh fruits and vegetables. Owners Moisha and Barry Binik and their families have doled out at least $41,690 in contributions to local pols in the last decade. "This is not an underserved neighborhood," said Louie Mancuso, 60, who lives across the street. "That's a fraud."

With Walmart poised to enter the city, and using the underserved food desert argument as part of their propaganda, it is important to take a look at all of the city's efforts to address the problems that local supermarkets face in their efforts to expand and become more profitable. The fact that Moisha's may have used its political influence to unfairly influence the selection process, raises questions of both equity and efficacy. In a strange way, Walmart's appropriation of the food access issue could become a catalyst to examine how effective-or not-the Bloombergistas have been in meeting the need for better access to fresh food.

Compulsive Miseducation

The bad news keeps pouring in-and the Bloomberg Educational Miracle is crumbling along with it. The latest comes from the NY Times report on the national science test scores: "Only 18 percent of the city’s public school fourth graders and 13 percent of its eighth graders demonstrated proficiency on the most recent national science exams, far below state and national levels, according to results released Thursday. Alan J. Friedman, a member of the National Assessment Governing Board, which oversees the tests, called the city’s results “a big disappointment,” particularly because New York has a number of cultural organizations devoted to science, like the Museum of Natural History and the New York Hall of Science in Queens, which he directed for 22 years."

Another sad example of how much the trumpeted Bloomberg education gains have turned into just so much hot air-something that Sol Stern and Fred Siegel document extensively in Commentary. (We plan a fuller analysis of this next week). Stern and Siegal dramatize the extent to which Kleinberg used the fraudulent state test scores to promote the mayor's remarkable educational breakthroughs-and the collusionj between the mayor and the UFT's Weingarten to cover up the growing suspicion that the scores were unreliable at best.

Weingarten got more teachers, higher salaries and better benefits-along with undeserved bonuses for her members-while the mayor got a silent partner in a fraud perpetuated on the school kids and their parents. S&S also highlight the role of Al Sharpton in the conspiracy of silence-something we have also pointed out in our, "dog that didn't bark" commentary. They underscore the correlation between the Sharpton Code of Omerta and a money trail leading directly and indirectly from the mayor to the Cash and Carry man of the cashmere cloth.

All of which makes the latest news about the science tests unsurprising-but it also reveals the extent to which, "teaching to the test," has undermined overall learning: "Nationwide, more students show proficiency in math and English than in science, and the city has scored closer to the national average on those tests than in science. Mr. Friedman, of the national board, said over all, the city’s poor performance in science suggested that the emphasis on math and English, which have been the main measures of school progress under the federal No Child Left Behind law, had come at the expense of other subjects. “It does play a big role,” he said, “and that’s one of the major problems we have.”

These national results are also further evidence that the state tests-and the city's reliance on them-are part of an outrageous fraud that has, as we have pointed out, approached Enron-like proportions: "The results also call into question the rigor of New York State’s own science exams, which are given to all fourth and eighth graders. On the most recent state exams, 80 percent of the city’s fourth graders and 49 percent of its eighth graders showed proficiency."

Of course, the results are even worse for racial minorities-as the NY Post reports: "A breakdown of the city scores by race and ethnicity saw 41 percent of white students pass, compared to pass rates of 34 percent among Asian/Pacific Islanders, 10 percent among Hispanic students and just 9 percent among black students. In eighth grade, 36 percent of Asian/Pacific Islanders scored proficiently, compared to 29 percent of white students, 6 percent of Hispanic students and 5 percent of black students."

We await with bated breathe for the righteous indignation of the rabble rousing reverend-something that will never happen as long as those checks can still continue to be cashed. All of this is strong evidence that Mike Bloomberg's tenure has been, charitably, less than stellar; and that the Stern/Siegel critique is long overdue.

Willets Point Development Defense Fund

The Queens Tribune has a story today giving the defenders of the Willets Point project the opportunity to put their feet in their mouth-reacting it seems to the "reams" of publicity that WPU has garnered: "As the redevelopment of Willets Point marches onward, opponents of the plan have often successfully kept themselves in the media spotlight, staging press conferences and reacting to the City’s every move. They have garnered a consistent trail of newspaper ink and TV time in the process."

Those poor supporters! All they have is the weight of the city and the muscle of eminent domain-but apparently not a very good narrative, so let's give these neglected folks a chance to have a voice. If the stakes weren't so high, this would all be quite funny: "But less often heard are the plan’s supporters, who include elected officials and local business leaders. Each harbors specific reasons for supporting Iron Triangle’s redevelopment, which looks to transform the 62-acre patch of industrial business and junk yards into a mix of housing, commerce and community space."

Whose up first? None other than the state senator whose son was the lead lobbyist for the project: "“I’m a yea-sayer,” said Stavisky.

“When I look at the derelict, debris-ridden site, I cringe.” The area is in dire need of an economic rejuvenation, one that takes it away from its current state, according to Stavisky. “[The redevelopment] will improve the area but also make it a destination, not an area where you speed up on the highway so you don’t have to look at it,” she added."

We wonder who's writing her material? Perhaps Jackie Mason-since the senator is unaware of how ironic and comical her comments about speeding on the highway are. If she bothered to carefully examine the environmental review-and the subsequent traffic studies for ramps on and off the Van Wyck-she would discover that if this 80,000 a day car generator is actually built, no one will be speeding anywhere, since the highway will be gridlocked!

But, of course, no one would dispute her observation about the area's blight-just as to the equity and constitutionality of the city's remedy. That doesn't disturb the other booster that the Tribune calls upon-the head of the Queens Chamber of Commerce: "The project’s opposition befuddles the Queens Chamber of Commerce’s Executive Vice President Jack Friedman, who sees nothing but benefits from the plan’s completion. “Whoever is opposed to this project, God bless them, but this area is not helping anyone,” he said. The plan’s convention center remains the lynchpin (sic) of the Chamber’s support, Friedman said, but the overall economic boon redevelopment will bring sustains the group’s position. “Right now, the current situation in Willets Point is not helping anybody,” he said."

Is he serious? The area isn't helping anyone? What about the hundreds of workers who are earning a living at the site-not to mention the property owners who are paying taxes to the city for nothing in return in the way of services? But Friedman remains befuddled by people who object to the government taking their property at eminent domain gunpoint? God bless his flippant insouciance about basic constitutional rights. We suspect that he would feel differently if his own house was in the way of the eminent domain bulldozer.

All of this dragging out of the usual suspects is no accident. EDC needs the cover for its outright lying to all manner of public officials and the judiciary-a practice that, in reading the comments in the Tribune, is a habit that the agency obviously finds hard to break.

Here's the main whopper: "Opponents grew more vocal at the beginning of the month, when the EDC began formal proceedings that would eventually lead to the acquisition of the remaining land in Phase 1 through the use of eminent domain.The agency has maintained it will keep negotiations open and says the landowners will get fair market value for their property, should it be obtained through eminent domain. “As we seek to reach agreements with the nine remaining businesses, we will also begin the legal process that gives us the option to condemn these properties if needed, so that we can continue to move forward,” Wood said."

"Keep negotiations open?" How about institute them in the first place? Let's hook Wood up to a lie detector and see how the needle jumps. We won't even go into the canard about fair market value-a concept that really only has merit when one business person makes an offer to purchase another's property. A court ruling is fair only to the gun owner-and when you're commencing eminent domain before having had a single negotiation with the vast majority of remaining property owners, the entire concept of fairness is rendered obsolete-EDC's own oxymoron.

Than there's the fictitious Phase I: "Opponents have taken the EDC to task for past promises made by the City to keep eminent domain off the table until exit ramps off the Van Wyck Expressway were approved by the state’s Dept. of Transportation.The EDC maintains its new phased-in approach eliminates the necessity for the ramps’ approval, adding it anticipates their revised plan’s approval shortly. The first part of the redevelopment will include affordable housing, a hotel, infrastructure improvements, retail and two acres of open space." (emphasis added)

Who in Jack Friedman's name is going to approve this plan? Perhaps a committee of Seth Pinsky, the state senator and the former Queens BP would suffice? Seriously, though, any plan modification needs to have a new traffic study-and go through a new SEQR review. And shouldn't condemnation await this review process-as the city and the court has previously agreed?

The Tribune concludes with the following admission from EDC: "The EDC plans to release a Request for Proposals for Phase 1’s developer in April." The admission here is that there is no developer, hence no plan-which makes the entire condemnation process both speculative and illegal. The ramps have not been approved. The underlying soil conditions remain unexamined. The cost of remediation is unknown-and there is no clear indication that the city, or any potential developer, has the money to undertake this venture (or the will to do so).

That friends, is the essence of speculative condemnation. We have a mayor in his swan song on the municipal stage using his remaining power to condemn property for a use that may never come to fruition-and we're, like Diogenes, looking for the honest person to stand up and say it. The City of New York is heading on the same road as New London after it condemned poor Suzette Kelo's house for a phantom project that was never even commenced. Empty fields of bad dreams is in this city's future if no one puts the brakes on the hubris of this mayor.

Addendum

Crain's Insider is reporting that some folks (unwilling to go on the record) are upset by State Senator Tony Avella's critique of the Willets Point development: "State Sen. Tony Avella reiterated his opposition to the redevelopment of Willets Point in a Daily News column Wednesday that irked proponents of the plan. “He's carpetbagging,” an insider close to the project said. “Avella doesn't even represent the district.”

Is that you Evan? Well, whoever it is, misses the larger point-the Willets Point development, with its 80,000 car trips a day, will overwhelm the all of the surrounding communities. This is not some small project that Avella is sticking his nose into-violating normal political protocol.

As WPU's traffic expert Brian Ketcham has pointed out to us in his critique of the EDC consultants: "For Willets Point the problem is that AKRF knows precisely what they are doing and they have to lie to make their case.  They know that Willets Point is too big for the Flushing area.  They know the surrounding roadway network cannot accommodate Willets Point traffic.  They know that the Van Wyck Expressway and connecting expressways cannot accommodate so much additional traffic.  They know there is no additional transit capacity to accommodate Willets Point and the other projects like Flushing Commons and that even more traffic will be forced onto the area than reported.   They lied and they got caught.  They have lied repeatedly."

Given the size and scope of the Willets Point mega-project, Avella is well within his rights to open up on it-the real conundrum is, why he is such a lonely voice in the Van Wyck wilderness? The silence of the lambs on this is deafening.

Calorie Recount

Crain's Insider is reporting that the NYC DOH has come up with its own "study" of menu labeling-and shockingly it shows a positive impact on customer choice: "The city's menu labeling law inspires about 15% of consumers to change their purchasing habits, leading them to eat an average of 100 fewer calories per purchase, a new study presented by the city's Department of Health and Mental Hygiene concludes. The results show that menu labeling, controversial when introduced in 2008, is “not going to solve the obesity epidemic,” said a city health official, but it does have an impact. The official said a Starbucks survey showed that menu labeling had no impact on sales, but purchases totaled 6% fewer calories."

We say shockingly, because the city is famous-like the old Horn and Hardart's-for self serving. Whether it is studies of bike lanes or pedestrian plazas; or ramps off of the Van Wyck-the studies always show just what the city would like us to believe. But what makes the calorie counting study peerless is that it has no peer review to bolster its credibility.

And credible it isn't since, as we have seen, there has been no independent study to demonstrate that forcing fast food operators to post calorie counts has had any real impact on customers making better choices. As City Room reported last week: "Researchers at New York University have found that calorie-posting in fast-food restaurants has little influence on the foods teenagers order. They found that more than half of the teenagers noticed the calorie postings. A quarter of the teenagers said they were weight-conscious, and 9 percent of the teenagers said the labeling made them buy lower-calorie foods. But when the researchers examined their receipts, they found that the actual calorie counts were the same before and after restaurants began posting calories. Teenagers typically bought food totaling about 725 calories."

It should be pointed out that the NYU research team is led by Marion Nestle, a proponent of menu labeling-making the results believable since Nestle is, as the lawyers say, arguing against interest. And of course it would be useful to actually see the DOH study methodology since previous research efforts by the department have been spit out by reputable journals.

As we pointed out over three years ago-in response to a NY Times editorial, the evidence used to support the regulation was never seen or reviewed by anyone outside of the DOH: "The answer is in a survey that, as far as we know, no one has seen and almost certainly was not scientifically designed and peer-reviewed. According to this survey, the customers at Subways are being informed about calorie counts and because they are, better nutritional choices are being made: "The big chains fighting the city might take a cue from Subway. The sandwich maker is using calorie counts as a marketing tool and a way to build on its reputation as a more healthful fast-food alternative. It has voluntarily posted calories where customers can easily see them, usually on the menu board."

But the Times was proved wrong-as was the moonbat judge who ruled in the city's favor, claiming that menu labeling would reduce the obesity epidemic (something that the DOH has now backed away from): "In a 27-page opinion, Judge Holwell accepted one of the city’s main arguments for posting calorie counts — that doing so would help reduce obesity, which city officials say has reached epidemic levels. “It seems reasonable to expect that some consumers will use the information” on menu boards and menus “to select lower-calorie meals,” the judge wrote. He added that “these choices will lead to a lower incidence of obesity.”

That's what you get when judges act as nutritionists and sociologists-while swallowing whole what the self servers tell them. At the end of the day, the entire experiment has fallen flat-except over at Starbucks where more health conscious higher income yuppies are leaving out the muffins while drinking their lattes and frappuccinos.