Tuesday, June 01, 2010

Columbia eminent domain appeal today in Albany; Atlantic Yards decision invoked regularly; will Court of Appeals revise NY's role as national outlier?

The eminent domain case involving the Columbia University expansion--a $6.28 billion, 17-acre project in West Harlem's Manhattanville--will be heard this afternoon at 2 pm (webcast) before the Court of Appeals in Albany.

It may seem like an uphill battle for the appellant Empire State Development Corporation (ESDC), which--shockingly--lost a split decision (a two-judge plurality, a concurrence on other grounds, and a two-judge dissent) last December, before the Appellate Division, the intermediate court where all eminent domain cases begin.

But it's probably more of an uphill battle for the winners, property owners represented by attorney Norman Siegel, since Justice James Catterson, author of the plurality opinion, glaringly failed to grapple with the Court of Appeals' ruling just nine days earlier in the Atlantic Yards eminent domain case.

In the latter, the court 6-1 upheld the use of eminent domain, saying that when there were reasonable differences of opinion on blight judges had to defer to agencies like the ESDC.

Just like AY?

So in legal papers the ESDC argues that the Columbia case is essentially like the Atlantic Yards case (Goldstein vs. New York State Urban Development Corporation, aka ESDC), and the Columbia plaintiffs (Tuck-It-Away, a company owned by Nick Sprayregen, and a gas station owned by Parminder Kaur and family members) say it's not, in part because the AY site includes part of a previously-designated urban renewal area as well as a railyard, considered to be de facto blight.

(Of course the plaintiffs in the AY case were all from outside those zones.)

The plaintiffs and their allies are relying on a line from the Atlantic Yards decision that indicated that the court, which sets out general deference toward agencies like the ESDC, might step in:
There remains a hypothetical case in which we might intervene to prevent an urban redevelopment condemnation on public use grounds—where ‘the physical conditions of an area might be such that it would be irrational and baseless to call it substandard and insanitary.'
They say the Columbia case, known as Kaur vs. New York State Urban Development Corporation (aka ESDC)--which involves a much stronger record compiled by the plaintiffs' side, including allegations of bad faith (three separate studies to find blight, including one by the consultant AKRF, already employed by Columbia on the case), as well as the ESDC's recalcitrance regarding Freedom of Information Law (FOIL) requests--is that case. Thus they are "cautiously optimistic."

(Remember, AKRF also worked on Atlantic Yards, but its work for Forest City Ratner and then the ESDC was consecutive.)

New York as national outlier

At issue is not only Columbia's massive project--ultimately supposed to have 6.8 million square feet, 14,000 people employed in construction (is that 14,000 job-years?), and 6000 permanent jobs--but the contours of eminent domain in New York State..

The libertarian Institute for Justice (IJ), which brought the case that led to the Supreme Court's controversial 2005 5-4 decision in Kelo vs. New London, upholding eminent domain for economic development, has focused on New York's notably condemnor-friendly eminent domain laws.

In a press release, the IJ states:
In the wake of Kelo, 43 states have passed laws to limit the ability of government officials to abuse eminent domain, and state court after state court has rejected Kelo-style takings. New York stands alone in its abject failure to provide its citizens with any meaningful protection from eminent domain for private gain, and this case represents an opportunity for enough to, finally, be enough.
Its amicus brief in the Columbia case makes the same point, noting that the public hearing on eminent domain--rather than any adversarial proceeding--is the beginning and the end of the inquiry:
New York stands literally alone in providing property owners with such a circumscribed opportunity to defend their property, and this Court must take that into account in determining the requirements of due process.
And what does the ESDC say in response? It dodges the question:
Petitioners also suggest that the grant of exclusive jurisdiction to the Appellate Division violates their due process rights. Similarly, the Institute for Justice, in its amicus brief, argues that "New York stands literally alone in providing property owners with such a circumscribed opportunity to defend their property." But the procedure provided by the Legislature is consistent with its intent to create expeditious review and avoid project delay.
A post-argument press conference in Albany today includes not only the plaintiffs and Harlem activists, but also Daniel Goldstein of Develop Don’t Destroy Brooklyn, the lead plaintiff in the AY eminent domain cases.

(Other amicus briefs supporting the landowners come from Harlem State Senator Bill Perkins, who's aimed at eminent domain reform, and the Student Coalition on Expansion and Gentrification. Amicus briefs supporting the state come from the City of New York and Columbia. All but the latter are excerpted and linked below.)

More on the case

For some background, check, the Columbia Spectator (1, 2), a Sprayregen op-ed in the Post, and a roundup in the libertarian Reason.

Why, if Columbia (thanks to land purchases) and the city already control 91% of the site, do they need eminent domain? Because of the "Central Below-Grade Service Area" (aka the "bathtub") that would provide utilities, deliveries, and parking, among other things. So there's no Plan B, according to the Spectator.

A long feature in the Columbia Current by Armin Rosen adds some valuable gloss on the use of eminent domain:
“Columbia was using the threat of eminent domain before they even had it approved,” says [Ramon] Diaz [of Floridita restaurant]. “When people were being difficult they would always insinuate that they were going to get a lot less if [the ESDC] could exercise eminent domain.” And once they had sold, Columbia made them sign a “gag order” which Diaz says extends to private conversations as well as public statements (he suggested that he would not have been able to talk to me at all if he had already cut a deal with Columbia).
ESDC arguments

The ESDC brief points to the previous decision's unwillingness to grapple with precedent:
The plurality opinion in the Appellate Division, written by Justice Catterson (and joined in by Justice Nardelli) wholly ignored the decision of this Court issued nine days earlier in Goldstein v. New York State Urban Dev. Corp. The plurality should have confirmed ESDC' s Determination and Findings unless there was "no room for reasonable difference of opinion as to whether the area is blighted." Instead, the plurality conducted what in substance was a de novo review of the record, second guessing ESDC' s reasoned decision that the Project qualifies as a Land Use Improvement Project. In doing so, the plurality disregarded overwhelming evidence that the Project Site is blighted. Three independent neighborhood conditions studies all documented evidence that numerous buildings in the area are in poor condition as a result of structural deterioration, years of neglect, and environmental and other insanitary conditions.
Catterson's opinion had criticized the ESDC for using the malleable and questionable criterion of underutilization, which was also criticized by the AY petitioners:
In contravention of decades of this Court's precedents, the plurality held that it was error for ESDC to even consider underutilization. The plurality also held unconstitutionally vague "as applied" the term "substandard and insanitary" area, which this Court had applied in Goldstein. The plurality's "void for vagueness" holding is inconsistent with decades of New York case law.
As for the FOIL issue, the ESDC brief states:
A third member of the panel, Justice Richter, concurred only on the ground that, in her view, ESDC closed the record and made its Determination and Findings prematurely in view of unresolved Freedom of Information Law ("FOIL") disputes, including one that was pending in this Court. The documents withheld by ESDC as exempt under FOIL were peripheral and did not impede Petitioners' ability to participate in the ESDC hearing and public comment period under the EDPL.
Crucial to the lower court's decision was an affirmative factual record compiled on behalf of the plaintiffs, but the ESDC says it's irrelevant:
Justice Catterson rejected the findings of blight made by ESDC, which relied on these documented and undisputed facts of record, finding instead that the only proper analysis was performed by counsel for the Tuck-It-Away Petitioners' attorneys in their so-called "no blight" study." A difference of opinion-even among experts - would not be a sufficient basis to disturb an agency's determination of blight. But here, there was not even a disagreement among experts, as Petitioners' attorneys have no demonstrated expertise in the pertinent engineering and planning disciplines whose expertise ESDC drew upon in making its blight finding.
Also, while the landowners argue that courts should apply a heightened level of scrutiny, the ESDC brief says that the court plurality "incorrectly relied on an Ohio case, where courts do not show deference to the legislative determinations of condemning authorities."

Can a project from a private university be a "Civic Project" under the Urban Development Corporation Law? The plurality said no, but the ESDC calls that a stilted reading.

And what about the red flags set up in the Kelo decision, which--especially in Justice Anthony Kennedy's concurrence--calls for courts to look carefully when there are indicia of favoritism? Kelo is irrelevant, says the ESDC, because this case has to do with blight, not economic development as in the New London case. (Of course, as noted in the AY litigation, blight in the form of underutilization does implicate economic development.)

Landowners' response

The brief on behalf of the landowners starts off by contrasting the case with the AY decision:
The present case is not about a difference of opinion, but about deliberate and documented acts of bad faith. In Manhattanville there was no prior legal designation of an urban renewal area and no de-facto blight condition such as a rail yard. To the extent any conditions were documented that could conceivably be indicative of blight, such as vacancy and limited building conditions, these were caused by Columbia with ESDC’s knowledge.

Here, ESDC hired Columbia’s consultant AKRF to find a basis for blight, which two courts concluded was a conflict of interest and likely to be biased. And here Respondent-Appellant’s late devised alternative bases for participation as a “civic” project are legally unprecedented and padded with other alleged “civic purposes” that are clearly extraneous to the purpose for which the facilities are to be built.

New York courts have in the past given wide latitude to agency discretion in the use of eminent domain, but at some point an outer limit must be defined, so that not any area may be called “blighted” or not any project may be called a “civic project.” ESDC’s actions in this case exceed that threshold limit.

Most importantly, this case is different in that here, perhaps uniquely in New York eminent domain jurisprudence, Petitioners-Respondents have been able to establish a substantial affirmative record of their own. The record documents ESDC and New York City’s favoritism towards Columbia, Columbia’s role in driving the project from its inception, ESDC’s consent to design the project exclusively for the benefit of the private beneficiary, and its collusion with that beneficiary in manipulating the planning and approval process.

Petitioners-Respondents have been able to construct this record by exercising the public’s right of access to government records under FOIL. They have met fierce resistance, to the point where this Court has found Respondent-Appellant to have violated its duties under FOIL, requiring Petitioners-Respondents to engage in extensive litigation to vindicate the public’s right of access to agency records.
The petitioners argue that Columbia drove the process:
Even with a recalcitrant ESDC refusing to produce documents under FOIL while rushing to close the public record, Petitioners-Respondents have been able to show a process by ESDC utterly devoid of independent review. Petitioners-Respondents established that ESDC played a subservient role to Columbia, with all documents drafted by Columbia’s attorneys and consultants, and the agency imposing no limitation on Columbia’s pre-existing plan, but only close collaboration with Columbia to devise bases for pretextual findings.
They note that neither the West Harlem Master Plan (2002) nor the Community Board 9 197-a plan (2005) found Manhattanville blighted

They argue that the blight study was predetermined:
In its initial outline for the blight study, AKRF proposed to “focus on characteristics that demonstrate blight conditions”, and to provide lot profiles “highlighting any physical blight that may be present.”
And they argue against judicial deference:
This case is not a case for automatic deference to legislative determinations delegated to Respondent-appellant’s agency.

Petitioner-Respondents are not simply disagreeing with Respondent-Appellant as to whether the area is blighted. Petitioner-Respondents also maintain that the process by which Respondent-Appellant reached its finding was corrupted by Respondent-Appellant’s actions in knowingly manipulating the process to reach a predetermined result, including abandoning an initial blight study, letting Columbia control the property that was to be the subject of study, hiring Columbia’s consultant to study the conditions overwhelmingly in Columbia owned buildings, that Columbia had created, exacerbated or maintained, directing or allowing that consultant to use a biased methodology, and hiring another consultant to “replicate” the first after the first’s conflicts of interest were exposed. Under New York law, such an allegation of bad faith does not require deference to the agency’s discretion.

This case is different from most cases that allege bad faith and pretext, including the case recently before this court, Matter of Goldstein v. New York State Urban Dev. Corp., because here the Petitioners-Respondents have been able to create a record documenting the original and dominant purpose of the plan, as well as the deceptive conduct of Respondent-Appellant ESDC
What about underutilization?
AKRF’s peculiar use of underutilization as a blight factor appeals to a preference for larger buildings over smaller buildings. Such a policy can be readily accommodated through the simple and unintrusive public action of re-zoning, as the City stated in the West Harlem Master Plan.
Similarly, but unmentioned, a rezoning could have unlocked the development potential of the blocks in the Atlantic Yards site.

The crime study in the AY Blight Study was notoriously deceptive; it turns out that claims in the Columbia case were similarly sketchy:
AKRF also cited crime as an indicator of blight, but the evidence it offered was insufficient to show any actual elevated incidence of crime. AKRF based its conclusion of elevated crime on police precinct reporting sectors in which almost the entire populations are located in separate residential areas of such different population and land use as to make statistics from those sectors meaningless for any assessment of crime rate within the Manhattanville industrial area. The methodological inadequacy of this attempt was so transparent that Earthtech simply dropped the chapter.
Another interesting contrasts involves documentation:
In the Atlantic Yards study, AKRF averaged approximately three photographs per building. In Manhattanville, it averaged approximately ten, as much a measure of AKRF’s necessary reliance on “deteriorated structures” for lack of other plausible indices blight, than a rational measure of typical area conditions.
Here's more argument about inconsistency:
Furthermore, AKRF and Earthtech relied heavily on building code violations in Manhattanville as an indicator of blight, even though in Brooklyn AKRF had explicitly rejected such evidence as being unreliable.

By adding a vacancy here, an “underutilized” designation there, a “safety condition” here, or a “deteriorated condition” based on an outdated building code violation there, or simply ignoring Columbia’s failure to repair a skylight or unclog a drain, AKRF and Earthtech were able to conclude that at least 51% of the properties could be assigned at least two blight indicators.

The statutory definition of blight in the UDCL invites such cherry picking of data, and permits the tabulation of unrelated and unweighted data, which can then be shoe-horned into one factor category or another, to arrive at a misleading aggregate that misrepresents any given neighborhood.
The petitioners argue that the designation as a “civic project” was belated:
As a last-ditch fallback position – in the event that an absence of a blight finding precluded the use of eminent domain – ESDC sought to re-characterize the project as a “civic project” under the UDCA, so as to avail itself of an alternative means to exercise eminent domain over the area in question. In support of this effort, ESDC, in a September 2006 GPP draft, tacked onto the project’s title the obligatory language “civic project,” and suddenly began to reference the project’s alleged educational and public benefits, ultimately stating in its Determination and Findings that the project qualified “separately and independently” as a “civic project” pursuant to the UDCA § 10 (d).

Yet the record clearly demonstrates that the project was never originally intended or designed to advance educational, civic, or public purposes, but, rather, had always been envisioned as an economic development project. This late-breaking attempt to rescue the project – which lacked any prior basis or analysis – was simply an after-the-fact attempt by ESDC to hedge its bets.
And they say it should be subject to Kelo:
Columbia and EDC had always promoted the project as a boon to economic development: that it would create jobs and develop a biotech industry in New York City, that it would help Columbia compete against other private universities, and that it would maintain New York’s place as a center for higher education. The record in this case amply demonstrates a longstanding policy commitment to a unitary Columbia plan, and only a convoluted, complex and late conceived statement of public purpose. Because Kelo devoted special attention to the issue of favoritism and pretext in public/private development projects, Kelo provides a highly appropriate framework of analysis for this case.
And while the ESDC argues that the plan for Manhattanville was "comprehensive"--given the extensive environmental review process--the petitioners argue that the lens is wrong:
The Columbia plan was never comprehensive in the sense given by Justice Kennedy, because it was never intended to meet the needs of the residents or businesses of Manhattanville or West Harlem, and was conceived without their participation. It was never formulated independently of Columbia’s interests.

As Justice Kennedy’s controlling concurrence stated, such situations demand a heightened standard of judicial review going beyond traditional deference to the legislative agency. “A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose.” Kelo. “There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.”

The present case is one where such heightened scrutiny is in order. Had Kelo been presented with the facts in this case, it would most likely have been decided the other way.
ESDC reply brief

The ESDC gets the last word:
Contrary to Petitioners' unsupported assertions, the approvals that were issued at the end of this lengthy and comprehensive planning process reflect the due deliberation of the City and ESDC, the careful consideration of objective data and public input.
And the ESDC says its studies are rational:
Petitioners also allege that the Project Site is not blighted and claim that all three consulting firms retained by EDC and ESDC used "biased" methodologies and "manipulated" their neighborhood conditions reports. But these consultants properly focused on the physical conditions on the Project Site and concluded that they are substandard and insanitary; this conclusion was rational and based on a sound foundation in the record. This conclusion is not made irrational merely because Petitioners disagree with the methodologies employed by the consulting firms (as opposed to the facts in their reports).
As for the debate over a Civic Project, the ESDC states:
Petitioners also argue, contrary to the plain language of the UDC Act and common sense, that the Project is not "educational" because it involves a private university. The UDC Act definition of "Civic Project," which expressly includes educational projects, does not restrict such projects to public schools. Petitioners' argument that the Project will not serve a public purpose is likewise baseless since the concept of public purpose is expansive...
Is the blight definition too vague, as many believe?
Finally, there is no basis for Petitioners' contention that the UDC Act definition of "substandard and insanitary conditions" should be struck down as unconstitutional under the void for vagueness doctrine. The UDC Act defines "substandard and insanitary" conditions by describing a variety of conditions that ESDC may consider in making its blight determinations. This Court and other courts of this State have applied that definition without constitutional difficulty for decades, including most recently in the Goldstein case just last year.
Nor is the process inherently biased just because a private entity proposes it, the brief states, again citing the AY case.

As for the allegedly "belated" addition of the words "Civic Project" to the title of the Project, the ESDC says that, by August 2004, when Columbia began to draft a General Project Plan, "it was clear that the purpose of the Project was to advance education," and earlier drafts "were just part of the lengthy planning process."

As for Columbia's role, the ESDC responds that "it is undisputed that ESDC's staff prepared the final decision documents at issue in this proceeding, after making numerous changes from the initial drafts prepared by Columbia."

Should the notion of a Civic Project be construed narrowly?
Petitioners next argue that no case has ever held that a project involving educational facilities to be operated by a private university may qualify as a Civic Project. But no court has held to the contrary, and in the Atlantic Yards matter, the courts upheld a project involving the use of eminent domain for a privately operated basketball arena. In connection with that project, the Appellate Division interpreted the term "recreational" in the definition of Civic Project broadly to include the private arena.
Should courts stop the ESDC from using physical conditions alone--rather than along with market study--to establish blight? No, because the AY case and others upheld such methodology.

Ultimately, argues the ESDC, it's a difference of opinion, and courts can't step in:
When separated from the allegations of bad faith, Petitioners' argument reduces to whether the buildings are deteriorated and obsolete enough, and whether the area is undeveloped or under-developed enough, to support ESDC's finding. That Petitioners' views differ from ESDC's findings, however, is an insufficient ground to reject ESDC' s findings.

Moreover, contrary to Petitioners' allegations, the methodology used by AKRF was not biased. The lot-by-lot analysis used by AKRF and Earth Tech to document neighborhood conditions was similar to the analysis AKRF used for the Atlantic Yards project that this Court upheld in Goldstein. Rather than properly deferring to ESDC's decision to rely on the detailed factual record and analysis documented by its own consultants, the plurality accepted wholesale Petitioners' allegations of bad faith, impermissibly conducted its own superficial and de novo review of the record, and concluded that ESDC should have relied on the so-called "No Blight" study.
The ESDC also takes issue with the allegations by the petitioners, accepted by the plurality, that Columbia created the appearance of blight by leaving building code violations open, and by creating vacancies in buildings it bought.

The ESDC says it acted in good faith in responding to the FOIL request, producing more than 20,000 of pages of documents, with more than 8,000 of them before the ESDC issued its Determination and Findings:
Responding to Petitioners' requests has been an enormous undertaking, carried on over four years, resulting in ESDC's retaining outside counsel who, together with ESDC staff, spent hundreds of hours searching through more than 45,000 pages of materials and producing more than 20,000
pages of documents.
If the record had been held open until all pending FOIL requests were resolved, that "will lead to an endless procession of FOIL requests - followed by litigation," a tactic that will "effectively thwart" many projects.

Is the definition of blight too vague?
Petitioners argue, contrary to longstanding precedent, that the UDC Act is void for vagueness because it does not set forth specific criteria to be considered in determining whether a site is blighted.

Most recently, in Goldstein, the Court explained that "[i]t is important to stress that lending precise content to these general terms has not been, and may not be, primarily a judicial exercise." The Court added that it would only substitute its views as to the adequacy of an agency's blight findings "where there is no room for reasonable difference of opinion as to whether an area is blighted."
Brief from New York City

The city's amicus brief sets out the stakes:
In addition to the interest of the City in the general eminent domain implications of this appeal, the City has a particular interest because the Project will serve the City's goals to foster the growth of education and academic research and civic resources and maintain its standing as a leader in higher education, a label critical to continued urban growth.

...The plurality's conclusion, which underlies much of the opinion, that this acquisition is the product of a "scheme" where Columbia University is the "sole beneficiary" of this project has no basis in the record and is simply not true. The record makes clear that the City has a tremendous stake in the implementation of the Project for the very reason that the City will be a primary recipient of the very public benefits this Project will bestow.
And it cites a couple of poster children for eminent domain:
Finally, the City is concerned with the impact of the Court's ruling on the critical role of private entities in facilitating public projects that require the use of eminent domain. Unfounded suspicions regarding the true motivations of public officials cannot be the basis to undermine a project where the public benefits, like here, are not illusory. In the City, most significant public redevelopment projects can only be accomplished through public-private partnerships. For example, private investment used in conjunction with eminent domain helped facilitate the rebirth of Times Square into a tourist friendly location. Similarly, a formerly blighted and underutilized area of Brooklyn was transformed into Metrotech, an urban office park that has in turn attracted additional development activity. Development projects like Metrotech, which involved the assemblage of 123 separately owned sites, would never happen in a city like New York without the assistance of eminent domain.
In echoes of the ESDC brief, the city points out that the plurality relied on a rationale similar to the unsuccessful arguments advanced by the petitioners in the AY case.

The brief breaks it down:
The only issue for the Court is the competency of the blight study and if "reasonable minds" can differ as to whether the study supports a finding of blight. This would be the same standard if Columbia had hired the expert who prepared the blight study.


The city cites another AY case, the one challenging the environmental review, nothing that "the Appellate Division wrote, very poignantly," that:
The point to be made is that 'blight' has proved over time to be a highly malleable and elastic concept capable of enormously diverse application. This is not in the main attributable to the ingenuity of consultants eager to please the developers who pay their bills, but because the concept, within the field of its likely use, is more facilitative than limiting.


Is this a watershed case?
This Court noted that there might be a "hypothetical" case where the Judiciary might intervene because it would be "irrational and baseless" to call an area "substandard and insanitary." Goldstein. This is clearly not the case here. The studies relied on by ESDC provided a rational basis for its conclusion that the project site was substandard. Thus the record clearly demonstrates that, at most, at issue here is a difference of opinion and that this is not an occasion for judges to "substitute their views" as to whether the area is blighted.
The IJ argument

The Institute for Justice, which also filed an amicus brief in the AY case, argues that they're different:
The flagrant due process violations that occurred here--with the government withholding documents that it was ordered to produce in parallel FOIL litigation while simultaneously closing the administrative record in the eminent domain proceeding--distinguish this case from this Court's most recent decision on the exercise of eminent domain, Goldstein v. New York State Urban Development Corporation,13 N.Y.3d 511 (N.Y. 2009), which did not involve any due process claims.
There's also a debate about pretext:
Contrary to respondents' assertions, the pretext claim also distinguishes this case from Goldstein. Although plaintiffs in Goldstein alleged that the private redevelopment of a blighted area was pretextual, nearly all of the evidence of pretext had occurred after the public hearing, and therefore, was not considered by the courts.
Well yes, and no. One of the larger pieces of evidence was that the state didn't announce the goal of blight removal until well after the project was announced. The dissenter in the AY case thought that was a big deal, while the majority ignored it.

The Perkins argument

Perkins, who's trying to reform eminent domain law, suggests this case could be a start:
While it is settled law that the task of defining the “public use” is legislative in nature, the courts remain responsible for determining whether a public use actually exists in a particular case, or whether an asserted public use is being put forward in bad faith or as a mere pretext. The judicial function in public use challenges is not only deeply rooted in case law and history; it is a crucial check on the legislative power and necessary to the working of a truly democratic process. Thus, while blight removal may generally be a public use, the court below rightfully accepted its responsibility to review the facts of this case to determine whether blight removal was, in fact, the true purpose of the takings at issue. To do otherwise would have been an abdication of the court's duty.
He backs the petitioners' case for bad faith:
The petitioners‟ evidence shows that ESDC and Columbia acted in bad faith to manufacture a pretextual basis for condemning their property, as the true purpose—to transfer the land to an elite private university for a private campus development—is not a public use. Columbia not only designed and funded the development plans; it also disregarded existing community planning objectives and let its own properties in the project footprint decay so as create its own blight. ESDC, moreover, sought no competing proposals for the property, and it hired Columbia‟s consultant to compile the blight study which would eventually serve as the basis for the condemnation.
And the court should step in and say the blight standards are too vague:
The concept of blight, as this Court has recognized, is extremely flexible. While it may be the legislature‟s duty to enact specific criteria for blight, this Court nevertheless has a duty to ensure that property deemed blighted conforms to the most basic element of blight, namely, that it is an actual economic or social liability that threatens surrounding property or persons.
The standard for blight is said to be too vague:
ESDC's enabling legislation, the Urban Development Corporation Act (UDCA) contains only a circular definition of “substandard and insanitary,” defining those terms to mean “slum, blighted, deteriorated or deteriorating area, or an area which has a blighting influence on the surrounding area.” While this definition may have been upheld in the past, it has become unmoored from the historical contexts that once informed its meaning, and this Court should acknowledge that more exacting standards are necessary today. Indeed, this Court admitted in Goldstein that “[i]t may be that the bar has now been set too low.” Although the Court explained that this was a matter for the legislature to remedy, Goldstein, unlike this case, did not raise the question of unconstitutional vagueness.
Oh, and there was supposed to be market study--as with the AY Blight Study:
ESDC has not considered it necessary to follow this guidance (which is not included in the formal definition of “substandard and insanitary”), as is demonstrated by the fact that no market analysis was conducted as part of the study that deemed Manhattanville blighted, even though the contract for the blight study originally included this as a requirement. While the enumeration of specific and objective standards defining blight is a task that should be left to the legislature, it is well within the purview of this Court to hold that the UDCA‟s definition of blight is unconstitutionally vague on its face, unless read with the limitation that blight must impose a real and present threat to surrounding property or persons.
The brief takes aim at the ESDC, which--though called a "legislative agency," to which deference should be given--isn't quite that:
Where private interests capture quasi-public redevelopment agencies, the malleability of the concept of blight accrues to their advantage. As this Court recently recognized in Matter of Goldstein v. Urban Development Corporation, the threshold for deeming property “blighted” is extremely low. But when nearly any property in an urban area can be deemed “blighted” and therefore subject to condemnation, the motivation for redeveloping a particular area is more likely to be based on its desirability for private development, and not the severity of substandard conditions or the actual existence of market problems necessitating government intervention. As a result, condemnations for urban redevelopment are more susceptible than other uses of eminent domain to be based on pretextual and bad faith “blight” determinations.
And, says Perkins, a higher standard of review was appropriate:
Because petitioners challenge not only the existence of a general public use for the project, but the propriety and reliability of ESDC's blight determination, as well as the process that led up to it, the plurality was correct in applying what may be considered a more searching standard of review than the exceptionally deferential rational basis test applied in typical public use cases.
Student opposition

A Columbia student group adds another opinion on the meaning of public use:
The Student Coalition on Expansion and Gentrification (SCEG) at Columbia University formed in fall of 2003 in response to student concern about the University’s recently announced expansion into West Harlem. Since 2003, SCEG has been present as observers and participants at every stage of the expansion project… The opposition of Columbia students to the use of eminent domain has been consistent and steadfast.

...The second proposition, which the Appellate Division ruled to be wholly unsupported by the record and precedent, was that the project has a public use, benefit or purpose, a necessary precondition for the exercise of eminent domain. It is upon this proposition that we, as students and prime beneficiaries of the uses and purposes of both the existing campus and the prospective Project, can comment in the most substantial detail.

...While the research and academic activities resulting from the expansion of an elite university may very well be beneficial to some, the extremely high cost of access to these facilities as well as the history of confrontation with the populations of the surrounding communities are likely to make these benefits unavailable to both neighborhood residents and the general public.
They say Columbia has been far from transparent:
Throughout our history as a student organization, we have encountered a complete lack of disclosure about expansion-related details from the Columbia University administration, as well as a lack of meaningful avenues for either student or community engagement.

...As such, it appears curious that a project that has been presented by the state as having a “public use, benefit or purpose” is unable to garner significant support in either the communities that would supposedly benefit (represented by community actors such as Community Board 9) or among its own constituency, the student body.

The yawning chasm between the University’s rhetoric regarding community engagement and the reality of its action is not a matter that can be litigated. However, as the determination of what is or is not a “public use, benefit, or purpose” is an inherently subjective determination, the University's behavior becomes relevant in this decision.
Note that while Forest City Ratner proffered (paid) Community Benefits Agreement partners to indicate public support, the three affected Community Boards either opposed the project or raised major questions about it.
ESDC Appellant_Brief to Court of Appeals_3!8!10

Spray Reg En Brief

Reply Brief in Columbia Eminent Domain Appeal, Empire State Development Corporation

New York City Law Department Amicus Brief in Columbia Eminent Domain Appeal

State Senator Bill Perkins Amicus Brief in Columbia Eminent Domain Appeal


Amicus Curiae on Behalf of Students Opposing the Expansion


Columbia Eminent Domain Case Amicus by Brief Institute for Justice

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