Friday, December 04, 2009

Lawyer who won Columbia case "cautiously optimistic" about surviving appeal, says creation of record key to win

So, can yesterday's surprising 3-2 Appellate Division decision blocking the Empire State Development Corporation's (ESDC) pursuit of eminent domain for the Columbia University expansion plan be upheld at the Court of Appeals?

"I'm cautiously optimistic," plaintiffs' attorney Norman Siegel said in an interview last night, mindful that Justice James Catterson's two-judge plurality opinion ignored the Court of Appeals decision last week upholding the ESDC's use of eminent domain in the Atlantic Yards case. "We really have to change the law of New York, and Catterson's decision could be a catalyst."

"We have huge challenges facing us," he acknowledged, given that the Court of Appeals would have to essentially change course. "I'm aware, as a litigator, that this is a win for December 3, and we have to go to Albany, but I know how to get to Albany."

He argued just a few weeks ago at the Court of Appeals on an ancillary case regarding the ESDC's appeal of a ruling regarding the Freedom of Information Law (FOIL).

The appeal in this case could be heard as early as March, with a decision coming six weeks later.

"Significant win"

"This is a significant win for property owners and community activists who oppose eminent domain," Siegel said. "The road map is that no longer can we allow just the government to do the Blight Study, we need to find the resources and find the experts who can work with us and put our own study in."

(I pointed out similarities and differences between the Columbia and AY cases, while the attorney in the AY case cited fundamental similarities. Siegel, who represented Develop Don't Destroy Brooklyn after its formation, agreed that, in both cases, blight was used as a pretext, given that the projects were announced well before blight was cited as a justification for eminent domain.)

"No-Blight Study"

Siegel noted that the Columbia plaintiffs created their own "No-Blight Study" to submit to the court, and Catterson embraced it, writing:
The "no blight" study proffered by the petitioners sets forth all of the factors that AKRF, Earth Tech and ESDC should have considered, but did not, to arrive at any conclusion that Manhattanville was, or was not, blighted. The study contains an analysis of real estate values, rental demand, rezoning applications and multiple prior proposals for the development of Manhattanville's waterfront and new commercial ventures; all omitted from ESDC's studies. ESDC failed to demonstrate any significant health or safety issues other than minor code violations that exist throughout the city, but more particularly in the buildings controlled by Columbia.
In the Atlantic Yards case, consultant AKRF was supposed to analyze real estate values and rental demand, but never did so. AY opponents critiqued the AKRF study forcefully but did not create as robust a record.

Using FOILs

Siegel noted that, because New York's Eminent Domain Procedure Law (EDPL) does not allow for facts to be elicited through the legal process of discovery or trial testimony, his team used the Freedom of Information Law (FOIL) to get information from the ESDC.

"The FOILs were crucial," he said, "not only substantively, but we won on the issue of due process, that they didn't provide the documents we wanted after they closed the record."

He added, "I think the record shows there was manipulation, bad faith, it was all result-oriented."

Because you can't file a FOIL asking for documents going forward, "every six months, you have to do another FOIL," he said.

(Siegel similarly discussed strategy after the oral argument in May.)

Challenging the blight standard

Unlike in the Atlantic Yards case, the plaintiffs in the Columbia case "challenged the constitutionality of the blight standard on its face and as applied," Siegel said.

Catterson concluded it was unconstitutional as applied:
The petitioners assert, inter alia, that UDCA is unconstitutional as applied by the ESDC because the agency has failed to adopt, retain or promulgate any regulation or written standard for the finding of blight.
Community role

Though the case was funded by one deep-pocketed property owner, Nick Sprayregen of Tuck-It-Away, Siegel said Sprayregen was still a "David" compared to the "Goliath" of Columbia and the state. (Update: Sprayregen told the Times he has spent $2 million; Develop Don't Destroy Brooklyn has raised about $1.25 million from 4500 donors.)

He added that the role of a diverse group of business owners and community activists in West Harlem was important to backing the case. "So many people in New York City were giving up, [thinking] you can't beat the developers," he said. "This gives kind of a ray of hope that you keep fighting and put together a record as best you can, and you can win."

"I said today I was proud to be a lawyer and proud of the court system," said Siegel, predicting the decision will "have a ripple effect" around the country.

1 comment:

  1. Three cheers for Norm's team.

    For the first time, the elephant in the room is visible, and boy does it stink!

    ReplyDelete