Sunday, December 21, 2008

As Columbia plan gets approved, a fight over blight and eminent domain emerges

Well, as the New York Times reported Friday, in an article headlined State Officials Approve Expansion by Columbia, the Empire State Development Corporation (ESDC), as expected, approved the Columbia University expansion project in West Harlem, aka Manhattanville.

The vote, however, "came after two hours of impassioned testimony against the plan by more than two dozen people, including residents, local business owners and their lawyers." (I don't think testimony was allowed when the ESDC approved the Atlantic Yards plan two years ago. Post-Gargano progress?)

Civil rights lawyer Norman Siegel, who represents Tuck-It-Away storage company owner Nick Sprayregen, the main (of two) landowners resisting eminent domain, said he'd file a lawsuit. Approval by the state's Public Authorities Control Board (PACB) is still necessary.

Sponsor blight?

The Times quoted Sprayregen:
He claims that the university purposely blighted the area by buying up property and then neglecting and “warehousing” it. Central to the suit, he said, would be recently acquired documentation that “paints a damning picture of the process, including collusion between Columbia and New York State, and conflicts of interests.”

Some of these issues came up last year, he said, in a case in which a state judge questioned the independence of the state development corporation, citing the appearance of collusion between the corporation and Columbia after the agency hired a consultant who was already working for Columbia on the Manhattanville project.


The back story

I'm hardly as up to speed on the Columbia situation as I am on AY, but, if Sprayregen's contentions are accurate--and so far, the courts have been sympathetic--the Columbia case may be even more outrageous than the AY case when it comes to blight.

After all, with Atlantic Yards, the state punted when asked to acknowledge that government agencies were responsible for the blight along the Metropolitan Transportation Authority's Vanderbilt Yard. With Columbia, the university seems to be responsible for a large portion of the blight.

That's the theme of Columbia University, Slumlord, a long article in the conservative Weekly Standard, which might be expected to take a withering look at eminent domain.

Jonathan V. Last writes:
It’s a curious situation—the government punishing a landowner who takes care of his property and rewarding an owner who does not. But this is the through-the-looking-glass world of New York eminent domain law.

Interestingly, while Columbia owns 70 percent of the land it seeks and public agencies control 26 percent, 4 percent is owned by Sprayregen and the Singh family, which owns two gas stations. (With Atlantic Yards, about 14% of the amount of footprint land is not owned or controlled by the developer or the government. More on this tomorrow.)

The blight fight

Last points out the uphill battle facing those challenging blight designations, issues pointed out at a State Senate hearing in September:
In New York, blight is essentially whatever the government says it is.

...But New York makes challenging eminent domain even more difficult. State law does not allow property owners to challenge eminent domain claims in a trial court. In every other state in the Union, owners have the right to challenge the government’s assertion of eminent domain before a trial judge—meaning that they get the chance for discovery, to call witnesses on their behalf, to introduce evidence, and to challenge the government’s assertions. New York routes challenges to eminent domain takings directly to an appellate court, where property owners are given 10 minutes to argue their case before a judge and cannot embark on any findings of fact—let alone challenge the facts asserted by the government. As Robert McNamara, a staff attorney for the Institute of Justice, wryly notes, “New York doesn’t just stack the deck against property owners. They don’t even let the property owners play.”


Sprayregen says he's committed to spending 3 million on legal fees for a case he expects to lose. That's well more than Develop Don't Destroy Brooklyn, which also has a volunteer legal team, has spent on various AY cases.

Last's article describes a series of blight studies, first conducted by a consulting firm called Urbitran--a study released only after Sprayregen's multiple Freedom of Information Law requests. Nearly all of these buildings within the zone of the Columbia expansion plan were owned by the university.

ESDC tried again, and used Columbia’s own consulting firm, AKRF:
The state of New York was charging a firm being paid significant amounts by Columbia University to make a determination of potentially great benefit to Columbia University. But, the ESDC was also more careful than the EDC had been. Before awarding the contract to perform the study, the ESDC asked AKRF to submit “preliminary” findings on blight in Manhattanville. This they did on August 23, 2006. The ESDC was pleased with what AKRF was suggesting it would find and, on September 11, 2006, signed a contract with AKRF to carry out the study.

As part of his fight to collect material from Columbia and the ESDC, Sprayregen went to court requesting documents pertaining to the ESDC’s relationship with AKRF.

In March 2007, Dennis Mincieli, an AKRF vice president, insisted in a court filing (arguing against one of Sprayregen’s FOIL requests) that there was nothing improper in the relationship because a “Chinese wall” had been erected between the teams working for Columbia and the ESDC. This was a dubious claim—after all, the same company benefited, even if the staffs were segregated—but it turned out not even to be true.


The ESDC, concerned that AKRF's study might be problematic legally, then hired another consultant, Earthtech, to replicate the AKRF study--which it did.

In the Atlantic Yards case, as I reported in August, ESDC hired AKRF after--not while--it had been working for Forest City Ratner. The ESDC's conflict-of-interest policy apparently doesn't address issues of consecutive representation. And AKRF was hired without any competitive bidding or public notice because the ESDC was convinced speed and continuity were important. AKRF never conducted a market study that was part of its contract scope.

Chutzpah

Last writes:
In its brief arguing against the temporary restraining order, the ESDC’s lawyers claimed that a delay in closing the Public Record might cost human lives:
"By 2011, this country will have a virtual tsunami of Alzheimer’s patients as baby boomers age. . . . Here, the first building to be constructed, the Jerome L. Greene Science Center, would be devoted to curing diseases, such as autism, dementia, Alzheimer’s and schizophrenia. The money is already available for the construction of that Center. How does one place a price tag in human suffering on delaying a possible cure of any such diseases by 18 months, 12 months, or 6 months?"

In the annals of eminent domain litigation, it’s hard to find a more brazen contention.


Well, it's certainly a lesser outrage, but it is just as brutally weird for the ESDC, as I wrote in September, in the litigation over the AY environmental review, to criticize the appellants by calling the AY arena the "Barclays Center," which just happens to be the name the developer uses.

Kelo redux?

Last thinks, as did AY opponents in their case, that the Supreme Court's Kelo v. New London case may have an impact on the Columbia case. No, Sprayregen won't be able to establish that the ESDC was engaged in “impermissible favoritism” toward Columbia, given that such a designation is much more likely in a trial court. (That's why the Develop Don't Destroy Brooklyn-organized lawsuit was first filed in federal court.)

Last thinks Sprayregen can argue that Columbia’s plan, unlike that endorsed in Kelo, is not “comprehensive” because Columbia has not made firm plans for the site. I'm not so sure; I suspect that the state will argue that the framework, at least, is comprehensive, and courts will defer to that.

And while courts have readily agreed to included non-blighted property to create contiguous sites, writes Last:
the Court has not been confronted with a case in which the neighborhood blight was directly caused by the party seeking the benefit of eminent domain.

Would that hold weight? I'm not sure, but it sure would be interesting to hear argued.

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