Saturday, November 10, 2007

State appellate court dismisses renters' case challenging AY relocation offer

Though members of a state appellate court on October 5 expressed some skepticism regarding the relocation plan for 13 residential tenants due to be displaced by the Atlantic Yards development, in a decision issued yesterday, the four judges unanimously upheld the plan.

The case, known as Matter of Anderson v. New York State Urban Development Corporation (the latter now doing business as the Empire State Development Corporation, or ESDC), was the second brought by attorney George Locker on behalf of 13 tenants (12 in rent-stabilized units) at 624 Pacific Street and 473 Dean Street.

The other case, which contended that the tenants were not condemnees and thus should be able to challenge the state's action in trial court rather than the appellate court designated to hear challenges to the Eminent Domain Procedure Law (EDPL), was dismissed on October 16.

Relocation questions

To relocate the tenants, the state has promised to provide, at minimum, the services of a real estate broker, moving assistance, and a $5000 payment—but that, attorney Locker argued, would hardly guarantee similarly affordable housing in today's real estate market. He called it an "illusory plan," thus unlawful.

The ESDC pointed to a previous court decision which upheld a similar plan; Locker urged the judges not to follow a decision reached in a case where the plaintiffs represented themselves. The ESDC also cited an enhanced relocation offer from developer Forest City Ratner, which is referred to in the record before the court but, according to Locker, not offered to his clients.

Of the four-member panel, Justice Robert Spolzino seemed particularly skeptical during the oral argument, but he joined the brief opinion issued yesterday.

Two other cases, organized by Develop Don't Destroy Brooklyn, are pending; one, in federal appellate court, challenges the use of eminent domain, while the other, in state court, challenges the environmental review of the project.

This case was the only one formally blocking the ESDC from moving to condemn properties, even though it’s likely the agency wouldn’t proceed against plaintiffs in the eminent domain case until it’s resolved.

The ESDC and Forest City Ratner expressed satisfaction with the decision, saying it was another step closer to bringing the project and its benefits to fruition. Locker said he'd appeal the decision to the Court of Appeals, the state's highest court.
[Update: That was discretionary.]

The decision

Judicial review of a condemnation proceeding is limited to whether (1) the proceeding was in conformity with the federal and state constitutions, (2) the proposed acquisition was within the condemnor’s statutory jurisdiction or authority, (3) the condemnor’s determinations and findings were made in accordance with the procedures set forth in EDPL article 2 and the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]), and (4) a public use, benefit, or purpose will be served by the proposed acquisition (see EDPL 207[C]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 418). “If an adequate basis for a determination is shown ‘and the objector cannot show that the determination was ‘without foundation’, the agency’s determination should be confirmed’”...

The petitioners contend that the respondent failed to satisfy the requirements of the New York State Urban Development Corporation Act... which provides that the respondent is without authority to condemn real property except upon finding that there is “a feasible method for the relocation of families and individuals displaced from the project area into decent, safe and sanitary dwellings, which are or will be provided in the project area or in other areas not generally less desirable in regard to public utilities and public and commercial facilities, at rents or prices within the financial means of such families, and reasonably accessible to their places of employment” (hereinafter a feasible method for relocation). The petitioners argue that the respondent failed to make a specific finding that there existed a feasible method for relocation and, to the extent that such a conclusion can be inferred, that it is without foundation in the record. We have reviewed the petitioners’ contentions and find them to be without merit.

Contrary to the petitioners’ argument, the respondent did find, in its resolutions dated July 8, 2006, which were ratified and reaffirmed in resolutions dated December 8, 2006, that a feasible method for relocation existed. The foundation for that finding is in the Final Environmental Impact Statement (hereinafter FEIS), which was explicitly referenced in one of the resolutions dated December 8, 2006. The petitioners do not challenge the finding, reflected in the FEIS, that only 146 residents would be displaced by the project, and that this number of residents constitutes less than one-tenth of one percent of the residents within a three-quarter-mile radius of the project. In these circumstances, the petitioners’ argument that the respondent was required to conduct an additional study of the availability of housing in the area is without merit, and the plan for services to the displaced residents that the respondent has adopted, including professional relocation consulting, real estate brokerage and moving services, the payment of moving expenses, and an additional monetary payment for other ancillary expenses, provides a sufficient foundation for the respondent’s finding that a feasible method for relocation exists (see Matter of Fisher v New York State Urban Dev. Corp., 287 AD2d 262, 264).

The petitioners’ contention that the respondent failed to take a “hard look” at the impact on them of their displacement from their residences, in accordance with SEQRA, is also without merit. While SEQRA review requires a lead agency to take a hard look at the socioeconomic impact of a project on the community as a whole, including “the impact that a project may have on population patterns or existing community character, with or without a separate impact on the physical environment” (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 368), the agency is not obligated to separately consider the impact on a particular subgroup or upon particular individuals (see Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 420-421). Here, a review of the FEIS reveals that the respondent appropriately considered the impact that the displacement of all households within the project site would have on the socioeconomic profile and character of the community as a whole, and there is no basis upon which to disturb its conclusion that the project would not lead to a significant adverse socioeconomic impact due to direct residential displacement.

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