Monday, December 21, 2009

As Perkins pushes for reform of eminent domain laws, Paterson stands ground, backs ESDC's appeal in Columbia case

How things have changed. A little more four years ago, state Senator David Paterson and Council Member Bill Perkins were of the same mind on eminent domain, especially concerned about Columbia University's planned expansion in West Harlem, an area in their districts.

They called for a moratorium on the use of eminent domain in the wake of the U.S. Supreme Court's controversial 5-4 Kelo vs. New London decision upholding eminent domain for economic development.

Now Perkins is in the state Senate, the leader of a somewhat lonely legislative effort to reform the state's eminent domain laws, much criticized by not only the libertarian Institute for Justice but also civil rights lawyers like the diehard liberal Norman Siegel. (Perkins has a letter in today's Times asserting that the state's "attempted taking of private property on behalf of Columbia University illustrates how the current process lacks accountability, transparency or meaningful public participation.")

Now Paterson is governor, with a much larger constituency and having inherited some projects--like Atlantic Yards and Columbia--that depend on eminent domain.

And, in separate appearances Saturday just a few blocks (and a few hours) away, Perkins highlighted the need for change, and Paterson stood his ground.

Call for change

As a prelude to a state Senate hearing scheduled for January 5 (at the State Office Building in Harlem), Perkins on Saturday hosted a public meeting in Harlem, welcoming representatives of the high-profile eminent domain fights concerning Atlantic Yards, Columbia, and Willets Point, as well as regular constituents. (There were fewer of the latter, but a snowstorm was on the way.)

While the big news was the last-minute letter Perkins sent Paterson raising questions about the Atlantic Yards issuance, Perkins was buoyed by the Appellate Division's surprising decision blocking eminent domain for the Columbia expansion, a decision Perkins asked the Empire State Development Corporation (ESDC) not to appeal.

Perkins brandished tongue-in-cheek petitions asking for both the Columbia campus and Gracie Mansion to be declared blighted, based on such criteria as underutilization, which was slammed in the Columbia decision.

"Blight is in the eye of the beholder," he said. "Blight is in the eye of the mighty."

Added Michael Rikon, a lawyer who has long represented those facing eminent domain, "Blight must mean blight." He said a new commission was needed to reform eminent domain laws. (That was a suggestion, yet unheeded, of a state Bar Association task force on eminent domain.)

Meanwhile, consultants like AKRF, which worked in both the AY and Columbia cases--consecutively for the developer/state in the former, and simultaneously in the latter--are "hired because the results are guaranteed," Rikon said.

Over to Paterson

Perkins, at the meeting, noted that Paterson would be making an appearance at a Police Athletic League event nearby, and several members of the press trooped over. After the Governor choose winners of a raffle for holiday toys, he emerged from the gymnasium for a brief, impromptu press conference. (Here are two segments on AY.)

The New York Observer's Jimmy Vielkind asked Paterson about the Columbia case, noting that the ESDC was charged with using eminent domain improperly; should the state appeal and was the process sound?



"We thought that the process was in compliance with land use principles and did not violate eminent domain," Paterson responded. "When I was a state senator in 2005 and I saw the original plan for Columbia, I was virulently opposed to it. But we felt that ESDC and Columbia University had adjusted that plan to be in compliance with the law."

Well, the contours of the plan were not at issue so much as the conduct of the ESDC. And Paterson's concerns in 2005 went beyond Columbia, since he called for a moratorium.

Then Paterson gained a bit of steam, perhaps more confident of his argument. "This whole idea of telling people not to appeal, if ESDC had won at the Appellate Division, the other side would have appealed to the Court of Appeals," he said. "People told me not to appeal the Lieutenant Governor appointment after the Court of Appeals--remember, ruled against it unanimously, and if I had listened to them, we wouldn't have a Lieutenant Governor. That's why we're going to let the Court of Appeals look at it and we'll abide with the decision either way."

Actually, it was the Appellate Division that ruled against Paterson's appointment of Richard Ravitch as Lieutenant Governor, and the Court of Appeals that reversed it, ruling 4-3 in favor of the appointment.

Vielkind followed up with more details from the case, noting the charge of improper collusion between the ESDC and Columbia and the charge that the blight study was, in the words of Justice James Catterson, "mere sophistry." Was the relationship improper?

"If the relationship was too close, and the Court of Appeals finds that, then we will stop the whole process." Paterson said. "We didn't think that it was, and that's why we're appealing."

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