Saturday, December 05, 2009

Law professor Salkin: "messy situation" on eminent domain may lead to new legislation clarifying blight (cracked sidewalks!)

So, how to sort out the tension between an Appellate Division decision denying the Empire State Development Corporation's (ESDC) use of eminent domain for the Columbia University expansion and a Court of Appeals decision enabling the ESDC's use of eminent domain for Atlantic Yards?

"We have a little bit of a messy situation right now," observed Patricia (Patty) Salkin, Director of the Government Law Center of Albany Law School and author of the Law of the Land blog, on yesterday's Capitol Pressroom, a daily one-hour public radio news magazine broadcast from Albany. (The segment begins at about 14:33 of the show.)

While she wasn't ready to say that the Columbia decision would be reversed on appeal, she did suggest that loose standards to determine blight, allowing the inclusion of cracked sidewalks--which, I'd pointed out, were also cited in the Atlantic Yards Blight Study (right)--would prompt a new legislative look at eminent domain.

There have been periodic bills and hearings, including a state Senate hearing in September 2008, but no action. In fact, a New York State Bar Association Task Force in 2007 called for a state commission on eminent domain, but there was no follow-up.

Greg David: case will be reversed

On WNYC radio's Financial 411 yesterday (at about 3 minutes in), Greg David, director of the business and economics reporting program at the CUNY Graduate School of Journalism (and Crain's editorial director) suggested the Columbia decision will be overturned.

"You know what I think?" David asked rhetorically. "I think the judges in the appellate court, in the Columbia case, had done their decision and decided not to remake it after their bosses at the Court of Appeals put out a ruling very different. The odds are very strong that this decision will be overturned in no time at all by the Court of Appeals. It directly contradicts the law, as laid out, in the Court of Appeals rulings."

"I know [plaintiffs' attorney] Norm Siegel claims the two cases are very different," David continued. "I read the decision in the Brooklyn case. It directly says the courts can't second-guess the authorities. It directly says the courts can't impose their own view of what the word blight is. I may be wrong. I'll personally be shocked if the appellate court ruling in the Columbia case isn't set aside very quickly."

(I think it's somewhat more complicated; Siegel has distinguished the cases by noting that the Columbia case involves a private university, which can't have a civic project. And there are different fact patterns. But the blight questions are similar, as Ilya Somin observes, so it would be hard for the Court of Appeals, if it were to rule on blight, to distinguish the cases. I do think David's right in suggesting the appellate court ignored the higher one, given that the AY decision wasn't mentioned in the main opinion. But the lower court's conclusions about arbitrary blight standards should prompt the Court of Appeals to look harder than it did previously.)

Crain's survey

Here's a Crain's New York Business reader survey on eminent domain, asking respondents which decision is better for the city: Columbia, Atlantic Yards, or neither. Right now, while AY (38%) trumps Columbia (17%)--the latter a not surprising result, given the audience--the leader is neither (45%):
Neither. Until it becomes more transparent, the eminent domain process is bad for the city, no matter what project it affects.
Public policy issue

Beyond the Columbia appeal, Salkin said on Capitol Pressroom, is the public policy issue facing both the Court of Appeals and the state legislature: "I think there is growing pressure in New York for the legislature to decide exactly what is going to be blight. And how are we going to define blight. We have it defined in statute right now, but it is clearly ambiguous; it says that if it is an unsanitary condition."

In the Atlantic Yards decision, and in the dissent in the Columbia case, she noted, the judges indicated that they knew what blight meant based on case law.

Host Susan Arbetter suggested that blight might be like obscenity, determined by individual communities.

Salkin assented, but that's not so. Blight is defined by state agencies like the ESDC.

Bogus blight

Salkin pointed out that people, including property owners and investors, think arbitrary definition of blight is unfair and want more guidance.

"One of the interesting things in the Columbia case, and one of the things that was really the downfall," she said, "was that Columbia used the same consultant to do their Blight Study as did the property owners in the Atlantic Yards case."

(Actually, same consultant, AKRF, was working for the ESDC, not the property owners, though it had previously worked for Forest City Ratner.)

"In the Atlantic Yards case, it said they considered buildings that were at least 50% vacant to exhibit blight," Salkin observed. "But in the Columbia University case, they said if it was 25% or more vacant, then it would be considered blight."

"And the other things that were in the blight study for Columbia," Salkin said, "they went down to the sidewalk and they said, Y'know, well, if there's a crack in the sidewalk, that's a condition exhibiting blight, and the majority in the Appellate Division decision said, My gosh, that's about every neighborhood block in New York City, in the five boroughs."

"The interpretation, in order to support the study and the findings, to give Columbia University what they wanted, just went too far in this case, there was no good faith," she said.

Cracked sidewalks, of course, were also cited in the Atlantic Yards Blight Study, as seen at right.

What next?

Arbetter asked if the Court of Appeals, having already ruled in favor of eminent domain in the Atlantic Yards case, would thus rule in favor of the Columbia project.

"Well, I don't know," responded Salkin. "Because the Court of Appeals did say they were deferring to the legislative determination because there was sufficient evidence in the record and the studies and reports and planning was a little bit different in the Atlantic Yards case. And the Court of Appeals also said in the Atlantic Yards decision that the legislature could address this."

"I think there are a lot of members of the legislature who are growing impatient with the way that things are playing out," she said. "I think we are going to see some significant eminent domain legislation coming out in the next few weeks." (Maybe from state Senator Bill Perkins?)

But that may not necessarily cause the court to change its policy on blight.

Columbia vs. AY

"We should also note that Columbia University already owns or controls about 91% of the 17-acre site," Salkin observed. "So some people believe that Columbia University is going to go ahead anyway and will just build around the area that is the subject of the controversy. But of course they'd like the whole thing."

By contrast, Forest City Ratner can't build the arena and associated properties without eminent domain.

3 comments:

  1. Catterson is disgusted with the cowardice of the judiciary, and he spoke out. That doesn't mean that his decision will be overturned.
    Norman's case established bad faith on the part of ESDC. He demolished (heh heh) ESDC's three bogus blight studies on the facts. ESDC ignored court orders to produce FOIL documents, which is not good form. Norman's victory will be upheld, but on narrower grounds. As for the inevitability of new legislation to define blight,do we have a functioning state legislature? NYC tenants are still waiting for the repeal of vacancy decontrol and the Urstadt Law. Come to think of it, there is a certain blighted quality about Albany politics. Too bad we can't define them out of existence.

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  2. Is it time that New York State joint with the majority of the USA (43 state who have passed legislation that cutails Eminent Domain Abuse)? NYS and NY are the two worst abuser of Eminent Domain Abuse.

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  3. Finally, a court pushing back on eminent domain. Let’s see if it stands. Eminent domain is a sobering experience. Private property owners facing the threat of eminent domain quickly learn that they are not standing on a level playing field legally, economically or politically.

    Among other lessons, there is a lot of play in the “just” of “just compensation.” The power of eminent domain brings with it a sense of entitlement. At that point, property owners are merely an obstacle to be swept aside — when, in fact, they possess the key asset coveted by government and the corporation.

    But property owners can fight back. Our two-year battle against Houston-based Spectra Energy which seized our property rights for an underground gas storage field led to the development of a website which has begun to attract whistle blowers inside the energy industry. We are collaborating and helping property owners in many states. For info, visit the site: http://www.spectraenergywatch.com/blog/

    By the way, our new neighbor, Spectra Energy, has received two Notice of Violations for “unlawful conduct” over the past two months related to emergency shutdowns and emissions at its storage field in Bedford County, PA. Reports of contaminated water supplies are on the rise since they began operations.

    Like Kelo, the ripple effects of eminent domain are never over.

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