Now, after seeing a surprising Appellate Division victory overturned unanimously by the state Court of Appeals, which relied on its Atlantic Yards decision, Sprayregen and the Kaur/Singh family that owns a gas station on the project site have filed their Petition for a Writ of Certiorari (below), the request for the court to hear the case.
It's always a long shot--fewer than 1% of petitions are granted--but this petition, authored by attorney Norman Siegel and a host of others, hammers home the state court's failure to address the guidelines seemingly set forth in Justice John Paul Stevens's majority opinion and Justice Anthony Kennedy's concurrence in the 2005 Kelo v. New London case, in which the court upheld eminent domain by a 5-4 margin.
The petition states:
In sharp contrast to the situation in Kelo, in which a municipal agency adopted a “carefully considered” development plan which had no preselected private beneficiary, ESDC worked backwards, pre-ordaining Columbia as the beneficiary of its eminent domain power. Having settled on this, ESDC endorsed a plan, developed behind closed doors by Columbia itself, to transfer private property to Columbia in furtherance of the university’s expansion dreams. ESDC then collaborated with Columbia to devise after-the-fact traditional public purposes to justify the takings, and even allowed Columbia to create the very blight-like conditions that ESDC then proposed to remediate.The decision is Appendix A to the cert petition.
The use of eminent domain here was thus a fait accompli meant to circumvent any obstacles to the realization of Columbia’s private agenda. A two-judge plurality of New York's appellate court recognized that the takings were unconstitutional under Kelo, and a third judge joined the plurality to hold that the condemnation was invalid because ESDC had violated petitioners’ due process rights. New York's highest court, the Court of Appeals of New York (“Court of Appeals”) nonetheless reversed, upholding ESDC's actions in a 34-page decision that never once mentioned Kelo.
I wrote in June that the court didn't look at Kennedy's concurrence, which sets out indicia of a sweetheart deal. As the petition points out, the court didn't even look at the majority opinion.
Note that, in the Court of Appeals' decision last November in the Atlantic Yards case, the majority opinion also ignored Kelo. Dissenting Justice Robert Smith, rather than looking to Kelo for reasons to crack down on eminent domain, rather suggested that it eased the burden on government agencies.
The challenge posed by Kelo
In an effort to convince the Supreme Court to accept the case, the new petition argues that guidance is necessary beyond New York:
The Court of Appeals’ conscious disregard of Kelo should warrant certiorari in its own right, but, in any event, has ramifications far beyond the particulars of this case. The Kelo majority made clear that its decision was predicated on the existence of certain minimum safeguards that demonstrated the absence of favoritism or pretext on the part of a condemning authority. Since Kelo, however, courts have struggled to interpret concepts like “mere pretext,” “favoritism,” and “a comprehensive development plan,” leading to inconsistent results around the country. The Court of Appeals’ outright refusal to address Kelo brings this confusion to a new level. if such significant evidence of bad faith, pretext, and impermissible favoritism in the context of eminent domain is insufficient to trigger the protections discussed in Kelo, then Kelo itself, and its safeguards, have been rendered meaningless.And there's one more reason:
Moreover, Respondent’s arbitrary and premature closing of the administrative record prior to the resolution of petitioners’ freedom of information law (“FOIL”) litigation violated petitioners’ due process...The Petillo email
While I'd previously quoted Siegel as saying an ESDC staffer's memo stated, We are going to manufacture support for condemnation, that's not quite right--though it's still pretty blatant.
According to the petition:
Indeed, by e-mail dated May 12, 2006, ESDC's Senior Counsel, Joseph Petillo ("Petillo"), questioned a draft Request for Proposal ("RFP") for the Manhattanville blight study, stating, "Why do this?... I'm uncomfortable with us shining a spotlight on the process used to manufacture support for condemnation." Petillo then added: "In this post-Kelo period, perhaps we want to craft the support for our blight findings in a less public way--such as more discretely wrapping this up with work being performed by the EIS consultant."The email itself is Appendix C to the petition.
Petition to U.S. Supreme Court in Columbia University eminent domain case