Skip to main content

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. Three cheers for Norm's team.

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


Post a Comment

Popular posts from this blog

Forest City acknowledges unspecified delays in Pacific Park, cites $300 million "impairment" in project value; what about affordable housing pledge?

Updated Monday Nov. 7 am: Note follow-up coverage of stock price drop and investor conference call and pending questions.

Pacific Park Brooklyn is seriously delayed, Forest City Realty Trust said yesterday in a news release, which further acknowledged that the project has caused a $300 million impairment, or write-down of the asset, as the expected revenues no longer exceed the carrying cost.

The Cleveland-based developer, parent of Brooklyn-based Forest City Ratner, which is a 30% investor in Pacific Park along with 70% partner/overseer Greenland USA, blamed the "significant impairment" on an oversupply of market-rate apartments, the uncertain fate of the 421-a tax break, and a continued increase in construction costs.

While the delay essentially confirms the obvious, given that two major buildings have not launched despite plans to do so, it raises significant questions about the future of the project, including:
if market-rate construction is delayed, will the affordable h…

Revising official figures, new report reveals Nets averaged just 11,622 home fans last season, Islanders drew 11,200 (and have option to leave in 2018)

The Brooklyn Nets drew an average of only 11,622 fans per home game in their most recent (and lousy) season, more than 23% below the announced official attendance figure, and little more than 65% of the Barclays Center's capacity.

The New York Islanders also drew some 19.4% below announced attendance, or 11,200 fans per home game.

The surprising numbers were disclosed in a consultant's report attached to the Preliminary Official Statement for the refinancing of some $462 million in tax-exempt bonds for the Barclays Center (plus another $20 million in taxable bonds). The refinancing should lower costs to Mikhail Prokhorov, owner of the arena operating company, by and average of $3.4 million a year through 2044 in paying off arena construction.

According to official figures, the Brooklyn Nets attendance averaged 17,187 in the debut season, 2012-13, 17,251 in 2013-14, 17,037 in 2014-15, and 15,125 in the most recent season, 2015-16. For hoops, the arena holds 17,732.

But official…

At 550 Vanderbilt, big chunk of apartments pitched to Chinese buyers as "international units"

One key to sales at the 550 Vanderbilt condo is the connection to China, thanks to Shanghai-based developer Greenland Holdings.

It's the parent of Greenland USA, which as part of Greenland Forest City Partners owns 70% of Pacific Park (except 461 Dean and the arena).

And sales in China may help explain how the developer was able to claim early momentum.
"Since 550 Vanderbilt launched pre-sales in June [2015], more than 80 residences have gone into contract, representing over 30% of the building’s 278 total residences," the developer said in a 9/25/15 press release announcing the opening of a sales gallery in Brooklyn. "The strong response from the marketplace indicates the high level of demand for well-designed new luxury homes in Brooklyn..."

Maybe. Or maybe it just meant a decent initial pipeline to Chinese buyers.

As lawyer Jay Neveloff, who represents Forest City, told the Real Deal in 2015, a project involving a Chinese firm "creates a huge market for…

Is Barclays Center dumping the Islanders, or are they renegotiating? Evidence varies (bond doc, cash receipts); NHL attendance biggest variable

The Internet has been abuzz since Bloomberg's Scott Soshnick reported 1/30/17, using an overly conclusory headline, that Brooklyn’s Barclays Center Is Dumping the Islanders.

That would end an unusual arrangement in which the arena agrees to pay the team a fixed sum (minus certain expenses), in exchange for keeping tickets, suite, and sponsorship revenue.

The arena would earn more without the hockey team, according to Bloomberg, which cited “a financial projection shared with potential investors showed the Islanders won’t contribute any revenue after the 2018-19 season--a clear signal that the team won’t play there, the people said."

That "signal," however, is hardly definitive, as are the media leaks about a prospective new arena in Queens, as shown in the screenshot below from Newsday. Both sides are surely pushing for advantage, if not bluffing.

Consider: the arena and the Islanders can't even formally begin their opt-out talks until after this season. The disc…

Skanska says it "expected to assemble a properly designed modular building, not engage in an iterative R&D experiment"

On 12/10/16, I noted that FastCo.Design's Prefab's Moment of Reckoning article dialed back the gush on the 461 Dean modular tower compared to the publication's previous coverage.

Still, I noted that the article relied on developer Forest City Ratner and architect SHoP to put the best possible spin on what was clearly a failure. From the article: At the project's outset, it took the factory (managed by Skanska at the time) two to three weeks to build a module. By the end, under FCRC's management, the builders cut that down to six days. "The project took a little longer than expected and cost a little bit more than expected because we started the project with the wrong contractor," [Forest City's Adam] Greene says.Skanska jabs back
Well, Forest City's estranged partner Skanska later weighed in--not sure whether they weren't asked or just missed a deadline--and their article was updated 12/13/16. Here's Skanska's statement, which shows th…

Not just logistics: bypassing Brooklyn for DNC 2016 also saved on optics (role of Russian oligarch, Shanghai government)

Surely the logistical challenges of holding a national presidential nominating convention in Brooklyn were the main (and stated) reasons for the Democratic National Committee's choice of Philadelphia.

And, as I wrote in NY Slant, the huge security cordon in Philadelphia would have been impossible in Brooklyn.

But consider also the optics. As I wrote in my 1/21/15 op-ed in the Times arguing that the choice of Brooklyn was a bad idea:
The arena also raises ethically sticky questions for the Democrats. While the Barclays Center is owned primarily by Forest City Ratner, 45 percent of it is owned by the Russian billionaire Mikhail D. Prokhorov (who also owns 80 percent of the Brooklyn Nets). Mr. Prokhorov has a necessarily cordial relationship with Russia’s president, Vladimir V. Putin — though he has been critical of Mr. Putin in the past, last year, at the Russian president’s request, he tried to transfer ownership of the Nets to one of his Moscow-based companies. An oligarch-owned a…