Wednesday, December 30, 2009

ESDC files, shares condemnation petition, but condemnees will resist; will January 29 be the day it's resolved?

While it's difficult to challenge a condemnation petition--"It has to be limited to procedural defects, and that’s rare," attorney Michael Rikon told me--the Empire State Development Corporation's (ESDC) legal filing to take private (and public) property within the Atlantic Yards footprint won't be a walkover. (The petition is at bottom.)

"We will challenge the petition. It is defective in many respects," stated attorney Matthew Brinckerhoff, who is representing condo owner and Develop Don't Destroy Brooklyn spokesman Daniel Goldstein (and perhaps others). "The details will be laid out in our opposition to the petition, which we are working on."

Brinckerhoff was the lead attorney for the plaintiffs in the unsuccessful constitutional challenge to the ESDC's use of eminent domain; he has asked the Court of Appeals to reopen the case in light of seemingly contradictory decision by a lower court in the case challenging the ESDC's use of eminent domain for the Columbia University expansion.

Henry Weinstein, who owns more than an acre of property in the southeast segment of the AY footprint, a block slated to become an interim surface parking lot, told me he would "fight tooth and nail."

George Locker, who represents several rent-stabilized tenants, stated, "The New York Court of Appeals has held that the New York State Division of Housing and Community Renewal, and not the New York State Supreme Court, has 'original and exclusive jurisdiction' over the eviction of Rent Stabilized tenants and the demolition of Rent Stabilized housing. ESDC cannot use the vesting proceeding so that Ratner, my clients' landlord, can make an end run around NYS DHCR. I will move to dismiss ESDC's petition based, among other grounds, on the court's lack of subject matter jurisdiction over the Rent Stabilized tenants. Given the clear and controlling law on this question, ESDC will be unable to remove my clients from their homes. Instead, Ratner, like all other landlords, will be compelled to make an application to NYS DHCR after the current leases expire, including one in 2011."

(He's made that argument previously, but the case was dismissed on other grounds.)

Property sought

The ESDC aims to take property in two or more stages; the first acquisition is for the first phase, including the arena block, the southeast block needed for the parking lot, and piece of property needed for a new railyard.

It also would condemn three blocks: Pacific Street between Carlton and Vanderbilt avenues; Pacific Street between Flatbush and Sixth avenues; and Fifth Avenue between Atlantic and Flatbush avenues, including the traffic island at Fifth Avenue and Pacific Street.

Procedure issues

The document, which was filed on December 23 in Supreme Court in Kings Country, is returnable January 29, 2010, which is presumably the time for legal arguments--unless it's postponed.

The ESDC seeks an order that would authorize it to file acquisition maps, which would then give it title to the property sought. Compensation would be determined by the court. Within 30 days after vesting title, ESDC would serve a Notice of Acquisition upon each condemnee, who would then have 120 days to file a written claim for damage.

Note that the list of properties to be condemned include those owned by Forest City Ratner--so-called "friendly condemnations" aimed to clear title.

IBO: $10M subsidy from city property

According to the New York City Independent Budget Office (IBO), the contribution of city streets and property constitutes a subsidy of nearly $10 million:
Contributions of City Property. The city will provide some property for the project at no cost. According to the latest modified project plan, this will include the street bed of Fifth Avenue between Flatbush and Atlantic Avenues and the street bed of Pacific street between Flatbush and Sixth Avenues, as well as a small traffic triangle at the intersection of Fifth Avenue and Pacific Street. Based on recent sales prices in the area, IBO estimates that the 2010 sales value of this property is $3.7 million. Not selling this land at a market price to another developer or to FCRC adds to the opportunity cost of the project. In the portion of the project east of Sixth Avenue— which is outside of the arena footprint—FCRC is committed to paying a market price for the street bed of Pacific Street between Sixth and Vanderbilt Avenues.

The city will also transfer two city-owned parcels to the Empire State Development Corporation (ESDC) at no cost, which will then be leased to FCRC, that appear to be included in the arena site. The first (block 1127, lot 33) is valued by the Department of Finance at $124,000 on the current tax roll, and the second (block 1118, lot 6) has a reported full market value of $5.8 million. Based on these market values, the value of the subsidy from ignoring the opportunity to sell these properties is $6.0 million.
Atlantic Yards Petition

2 comments:

  1. The so-called friendly condemnations of Ratner-owned buildings are intended not just to clear title, but to extinguish the rent stabilized leases. However, the court does not have the jurisdiction to do this.

    ReplyDelete
  2. "Condemnation" "take" "seize," all words used to hide what eminent domain for private gain really is.

    Let's call it what it is: theft.

    ReplyDelete