Wednesday, January 20, 2010

In Times article on blight reform, city lawyer recognizes opportunity for "thoughtful change," AKRF relies on Thor's flack

A New York Times reporter attended the January 5 public hearing held by state Senator Bill Perkins on eminent domain, and the article, Lesson on Limits of Eminent Domain at Columbia, offers a reasonable overview of the criticism of and support for current eminent domain laws.

(The article appears on the Real Estate page in the Business section, though it more readily could appear on the front page or in the Metro section, given that it's an important public policy issue. Still, it contains an atypically responsible double disclosure: Forest City was The New York Times Company’s partner in the development of its headquarters building on land on Eighth Avenue that was acquired by the state through eminent domain.)

Notably, the Times cites strenuous opposition from the Bloomberg administration as blocking any effort to reform state eminent domain laws in the wake of the Supreme Court's controversial 2005 Kelo v. New London decision--but a Bloomberg official says the city would not oppose “thoughtful change” in the eminent domain laws.

And ubiquitous environmental consultant AKRF, which works simultaneously (Columbia University expansion) or consecutively (Atlantic Yards) with project applicants and the Empire State Development Corporation, is apparently feeling a bit of heat, relying on a public relations consultant to issue a boilerplate statement in its defense.

The Columbia case

The Times reports on the surprising 3-2 decision blocking the Empire State Development Corporation's (ESDC) pursuit of eminent domain for the Columbia University expansion, one which seemingly conflicts with a Court of Appeals decision allowing eminent domain for Atlantic Yards and, even if overturned, "as several land-use lawyers expect," has provided momentum for reform.

The city's leading defender of eminent domain gets her say:
The Columbia decision “is the first thing that’s happened in New York that suggests the threat of a change in our eminent domain law,” said Kathryn S. Wylde, chief executive of the Partnership for New York City, a leading business group. “I think it’s frightening because there are few more important investments in our city’s future than that which Columbia is making.”
Well, it's the first thing that Wylde is taking seriously. She, apparently, was not quizzed on whether she thinks that underutilization, for example, is a legitimate indicator of blight--something criticized by syndicated columnist George Will.

Blight and AKRF

The Times reports on the state's favorite consultant:
The ruling also labeled the blight designation obtained by the state agency “mere sophistry” that was concocted years after Columbia developed its plans. The court chastised the state agency for commissioning its study of neighborhood conditions from the same consultant, Allee, King, Rosen & Fleming, known as AKRF, that Columbia had hired to help plan the project and prepare the environmental impact statement.

...Accusing the consultants of having a “particular agenda in mind,” Mr. Perkins said that “it just doesn’t look good.”

...Lee Silberstein, a spokesman for AKRF, said in a statement: “For more than 25 years, AKRF has built its reputation through the objective gathering and analysis of data. Any suggestion that the firm — widely recognized as a trusted industry leader — would compromise the quality of its work is incorrect.”
Silberstein is not an actual AKRF employee but rather a public relations consultant, noted for his work on behalf of Joe Sitt's Thor Equities, which bought land in Coney Island.

AKRF should be pressed on why, for example, it considers minor cracks in the sidewalk to be blight.

While ESDC General Counsel Anita Laremont is quoted as saying AKRF is most qualified, the article does not tease out how the ESDC's practices--preferring a consultant that already has a head start on a project by working for the developer--favor AKRF or Laremont's dubious claims that the agency's board, rather than AKRF, finds blight and that AKRF was hired to do a study of neighborhood conditions in the AY case.

New York an outlier

Critics of the current law get their say, with civil rights attorney Norman Siegel, successful so far in the Columbia case, pointing out, as he did at the hearing, that only in New York do those resisting condemnation not get the opportunity to have their case heard in trial court--rather than the Appellate Division, where witnesses cannot be called.

Perkins advisor Amy Lavine, a staff attorney with Albany Law School’s Government Law Center, says new legislation could include such trial-level review.

Blight revised?

The article concludes:
At the top of [Lavine's] list is substituting a specific definition of blight for the current standard of “substandard and insanitary.”

One model might be Pennsylvania’s law from 2006, which permits a blight finding only when a substantial number of properties meet certain conditions like being “unfit for public habitation” or having been tax delinquent for two years.

...Lisa Bova-Hiatt, a deputy chief at the New York City Law Department... said the city would not oppose “thoughtful change” in the eminent domain laws.

“What you don’t want to happen,” she said, “is for the hysteria of the moment to force ill-considered action.”
Well, the "moment" began in 2005. But the Bloomberg administration's support is key to getting more legislators on board.

Another solution to blight would be abatement, enforcing existing laws and regulations.

City attorney in 2007

But Bova-Hiatt knows that eminent domain law needs reform. At a panel in May 2007, Bova-Hiatt acknowledged that “New York State has adopted a very broad definition of what constitutes a public use. And in fact, the definition, through case law, is anything that benefits the general health safety and welfare of the municipality… And I think you can pretty much fit anything into that definition.”

She also used the word “thoughtful” to describe needed changes in state law, noting that, when the city acquires property by eminent domain, it must go through the many-layered Uniform Land Use Review Procedure (ULURP), which was bypassed in the AY case.

“I’d like to think that the process that we have, at least with respect to acquisitions by the City of New York, is already thoughtful, and to the extent that it can be made more thoughtful, great,” she said.

After citing the use of eminent domain for Melrose Commons in the Bronx, she was asked if the thoughtful planning in that case had been applied to the Atlantic Yards case.

Her response: “Well, the city of New York is not the condemning authority with Atlantic Yards. And because it’s pending litigation, I don’t want to offer my opinion, because that might not necessarily be the opinion of the city of New York. But, from what I’ve heard, there was a difference between what happened in Melrose Commons and what happened in Atlantic Yards.”

Which is why new legislation has some legs.

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