As I reported after watching the oral argument in Kaur v. N.Y.S. Urban Development Corp., the judges--including Atlantic Yards dissenter Robert Smith--felt bound by their decision in the Atlantic Yards case last November, a decision that was glaringly ignored by the two-judge plurality who shortly afterward ruled against the ESDC in the Columbia case.
I concur in the result on constraint of Matter of Goldstein v New York State Urban Dev. Corp. The finding of "blight" in this case seems to me strained and pretextual, but it is no more so than the comparable finding in Goldstein. Accepting Goldstein as I must, I agree in substance with all but section VI of the majority opinion.The decision, I wrote, would hinge on how seriously the court took allegations of bad faith by the ESDC and biased methodology by its consultants. Answer: not much.
The court ignored a memo from an ESDC lawyer, as cited by property owners' attorney Norman Siegel, that stated, We are going to manufacture support for condemnation.
Nor did the court look at Justice Anthony Kennedy's concurrence in the U.S. Supreme Court's 2005 Kelo v. New London decision, which set out guidelines--such as when a sweetheart deal was indicated--for when courts should apply greater scrutiny.
According to the Observer, Nick Sprayregen, who owns Tuck-It-Away storage company and has spent more than $2 million on legal cases--more than twice as much as has been spent in the Atlantic Yards cases--vowed to appeal.
"This decision, if not overturned, will allow eminent domain abuse in New York to become even worse than it is now," he wrote. "In effect, this court is sending a clear signal that a blight designation, even is caused by the very developer seeking the use of eminent domain, is acceptable."
Dana Berliner, a senior attorney at the libertarian Institute for Justice (IJ), stated, “The sad truth is that, in New York, the government not only can hand your property over to private developers for no better reason than that it likes them more than it likes you, but it does so on an alarmingly regular basis.”
The IJ, which brought the controversial Kelo v. New London case to the Supreme Court in 2005, this week singled out the Goldstein case and New York as outliers in the national trend to tighten eminent domain laws.
The oral argument in the case got little coverage.
Today, among articles I checked, only the Associated Press's Michael Virtanen, WNYC's Matthew Schuerman, and New York Observer's Eliot Brown got it right, explaining that Smith's concurrence was compelled by the decision he disagreed with in the Atlantic Yards case.
The New York Times reported simply that "Smith agreed that the state had the power to decide what constituted blight." The New York Law Journal similarly reported that Smith "agreed with all of the Court's ruling except the part" regarding a civic project.
Crain's New York Business ignored Smith's concurrence.
A mistaken AY mention
The opinion of the court, written by Judge Carmen Beauchamp Ciparick, contained a erroneous reference to the AY case:
Most recently, in determining that the area in downtown Brooklyn, known as the Atlantic Yards, was blighted, ESDC relied upon an AKRF neighborhood conditions study (see Matter of Goldstein, 13 NY3d at 518).It's not downtown, and it's not known as "the Atlantic Yards." But Forest City Ratner's clever branding, teamed with shorthand, leads to errors.
Fundamental deference to ESDC
In Matter of Goldstein, we reaffirmed the longstanding doctrine that the role of the Judiciary is limited in reviewing findings of blight in eminent domain proceedings (see id. At 526). Because the determinations of blight and public purpose are the province of the Legislature, and are entitled to deference by the Judiciary...Blight standards too vague?
Here, the two reports prepared by ESDC consultants -- consisting of a voluminous compilation of documents and photographs of property conditions -- arrive at the conclusion that the area of the Project site is blighted. Just as in Matter of Goldstein, "all that is at issue is a reasonable difference of opinion as to whether the area in question is in fact substandard and insanitary," which is "not a sufficient predicate . . . to supplant [ESDC's] determination" (13 NY3d at 528).
Ciparick also dismissed a challenge to the state's blight standards:
In addition to attacking the neighborhood blight studies and ESDC's determination based on those studies, petitioners also challenge the constitutionality of the statutory term "substandard or insanitary area" (see Uncons Laws §§ 6253  and 6260 [c] ). They argue that we should find this term void for vagueness. This contention is likewise unpersuasive.Earlier study legit?
Not only has this Court, but the Supreme Court has consistently held that blight is an elastic concept that does not call for an inflexible, one-size-fits-all definition (see Berman v Parker, ). Rather, blight or "substandard or insanitary areas," as we held in Matter of Goldstein and Yonkers Community Dev. Agency, must be viewed on a case-by-case basis. Accordingly, because the UDC Act provides adequate meaning to the term "substandard or insanitary area," we reject petitioners' argument that the statute is unconstitutionally vague on its face.
Though the ESDC relied on a blight study conducted by consultant AKRF, which was also working for Columbia, Ciparck noted that another study, but the New York City Economic Development Corporation, was made at a time when Columbia was only beginning to purchase property:
Indeed, the Urbitran study unequivocally concluded that there was "ample evidence of deterioration of the building stock in the study area" and that "substandard and unsanitary conditions were detected in the area."The legitimacy of that study was at issue, given that, according to the property owners' brief, that study was abandoned after an eleven-page draft text with no individual building reports.
(The ESDC defended the Urbitran study but did not, according to my reading, address whether it had been abandoned.)
Ciparick also ruled that the project was also a civic project--which does not require a blight finding and is defined as "[a] project or that portion of a multi-purpose project designed and intended for the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes."
Siegel had argued that a private university didn't deserve deference, and ESDC attorney John Casolaro was forced to agree that, under the state's reasoning, even a trade school would qualify as a beneficiary of eminent domain.
Ciparick cited another case in the Atlantic Yards litigation:
Indeed, there is nothing in the statutory language limiting a proposed educational project to public educational institutions. Moreover, consonant with the policy articulated in the UDC Act, ESDC has a history of participation in civic projects involving private entities. The most recent example of a civic project is the Atlantic Yards project, which authorized a private entity to construct and operate an arena for the Nets professional basketball franchise.Boundaries of a civic project
The proposed Project here is at least as compelling in its civic dimension as the private development in Matter of Develop Don't Destroy (Brooklyn). Unlike the Nets basketball franchise, Columbia University, though private, operates as a non-profit educational corporation. Thus, the concern that a private enterprise will be profiting through eminent domain is not present. Rather, the purpose of the Project is unquestionably to promote education and academic research while providing public benefits to the local community.
How far could it go? Smith warned:
The majority seems to read this definition as broadly as its literal language permits. It implies that any public or private activity that can fairly be called educational -- or, by implication, cultural or recreational and so forth -- will qualify a project as "civic." Surely this approach will, in some imaginable cases, cause the statute to be unconstitutional as applied: would anyone seriously suggest, for example, that private tennis camps or karate schools ("educational" uses), or private casinos or adult video stores ("recreational" uses), qualify as "public" uses in the constitutional sense?Ciparick responded in a footnote:
Since the constitutionality of the UDC Act pertaining to "civic projects" is not challenged by petitioners, we respectfully disagree with our concurring colleague that it should be addressed here. Moreover, we do not believe that anything in our opinion could reasonably be construed to mean that "private tennis camps or karate schools" or "private casinos or adult video stores" would qualify as a "civic project" within the meaning of the UDC Act.It's a good question. After all, Supreme Court Justice Joan Madden, in deciding that the Atlantic Yards arena was a civic project, went to the dictionary.
As I noted in January 2008, because sports spectatorship is a form of amusement, which is one definition of "recreational," Madden wrote, the arena qualifies as a facility designed and intended for "recreational purposes," and as such constitutes a "civic project" as defined under the UDCA.
To me, Shoot the Freak at Coney Island would also qualify.