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Justice Catterson says of Court of Appeals opinion in AY eminent domain case, "I don't know what it means"; rues that his critique was "an epic fail"

This is Part 1 of a three-part series (Part 2, Part 3) on Fordham Law School's eminent domain symposium in February.

James Catterson, an Associate Justice of the New York State Supreme Court, Appellate Division, First Department, has been the most conspicuous judicial critic of eminent domain jurisprudence in New York, writing the plurality opinion, later reversed, denying the state's effort to condemn land for the Columbia University expansion, and penning a scorching concurrence in the case upholding dismissal of challenge to the Atlantic Yards environmental review.

Nor has Catterson shied away from public, pungent criticism of the Court of Appeals' decision in the Columbia and predecessor Atlantic Yards cases, calling it confusingly opaque. He spoke at Taking New York: The Opportunities, Challenges, and Dangers Posed by the Use of Eminent Domain in New York, a symposium February 11 sponsored by Fordham Law School.'

The overview

In opening remarks lasting a little more than half an hour, the bow-tied Catterson--brisk, earthy, self-deprecating--offered what he termed a "Cook's tour" of the history of eminent domain.

Then, in the final minutes, he spoke about the November 2009 Atlantic Yards decision, Goldstein, et al., v. New York State Urban Development Corporation, d/b/a Empire State Development Corporation, and the Columbia case, Parminder Kaur, et al., v. New York State Urban Development Corporation.

Court of Appeals ignored Kelo

While Catterson noted that he'd written extensively about the import of the Supreme Court's controversial 2005 Kelo v. New London decision, "unfortunately, the Court of Appeals didn't think the case was important, because in Goldstein, they don't mention Kelo, once. In Columbia, they don't mention Kelo, once."

(Justice Robert Smith, the sole dissenter in the Atlantic Yards case, did mention Kelo.)

Limited scope for judges

"They do say the following, and I'm going to leave it to the panelists to decide what this means, because I read it a thousand times, I still don't know what it means," Catterson said.

Then, in a quizzical tone, he read a passage from "my good friend Chief Judge [Jonathan] Lippman" in the Goldstein case:
It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for those of the legislatively designated agencies.
"Leaving aside the redundancy and the double negative, I still don't know what it means," Catterson declared.

Problem continues, he says

"Let me leave you with this. I suppose it's a confession of sorts," Catterson said. "I wrote a one-page concurrence, in a condemnation case involving the East Harlem Development Project. It's one of the great regrets of my judicial career. I should have written more, albeit a quixotic and fool's errand."

Here's what Catterson wrote 10/12/10, in Matter of Uptown Holdings, LLC v City of New York, a statement that got belated notice in the New York Post:
In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of underutilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v New York State Urban Dev. Corp. and Matter of Kaur v New York State Urban Dev. Corp. have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.
(Emphasis added)

Record is "beyond horrific"

"If you ever get a chance to look at the record," Catterson continued. "It is horrific. It is beyond horrific. The East 125th Street project was approved by the City Planning Commission in August of '08, no mention of blight. The City Council approves it unanimously, no mention of blight."

"December 26, some property owners commence an Article 78 proceeding, challenging the condemnation. It is only on March 27 of '09, when the city files its return, that they include a blight study no thicker than my notes," he said. "It is an eye-opener that that is what is jurisprudence in New York has come to."

"It is a series of colloquial observations encompassing not the six acres on two contiguous blocks, but essentially 150 blocks in East Harlem. The entire 150-block area is used to ascertain whether there is blight. And the evidence of blight in the three blocks at issue is a massive study in subterfuge, all in the aim of justifying the claim, in that taking, of underutilization."

"Where it goes from here, I don't know," Catterson concluded, pugnacious and rueful at the same time. "Like I said, for me, so far it's been an epic fail."

Looking at the documents

Documents in the East Harlem case are collected here. I didn't read the entire record, but it supports Catterson's observations, if not precisely. (Here's 2/5/11 New York Times coverage sympathetic to the property owners, but it doesn't dig into the case.)

A memo (p. 13) from property owners notes that the blight study was not considered or submitted to the City Planning Commission before it passed resolutions, and an affirmation by Assistant Corporation Counsel Haley Stein affirmation admits only that the document was submitted to City Council. The memo says there's no evidence in the Council transcript that it was considered.

The Stein affirmation states:
Regardless, in this case, City Respondents acted appropriately in designating Petitioners’ properties as part of the Plan. HPD and its consultants conducted a Blight Study, completed on January 16, 2008, documenting the blighted conditions in the area as a whole, as well as analysis of each individual Block and Lot comprising the East 125th Street Project Site. R. at Ex. 2, 11. The Study, which HPD submitted to the City Council in connection with its consideration of the Plan approval and designation as an urban renewal area, found, among other things, that 42% of the Project Site was vacant space, and that the Site contained vacant, abandoned, substandard buildings in poor or critical condition characterized by physical deterioration.
The property owners state in a press release:
(3) The City, which owns 80% of the property in the project area, blighted its own property to justify the taking. The private parties are not blighted at all; they are well maintained, productive commercial properties.
They add in this press release:
The City submitted a 2008 Blight Study to support the finding of blight in the Harlem-East Harlem Urban Renewal area, and specifically in the E125 Project site area. The Blight Study did not identify the property owners, but merely laid out each lot and the conditions observed on each. EHARM’s Attorney Mr. Nugent reviewed each lot in the proposed E125 Project area and cross-referenced it with the property ownership records and he found that one property owner was responsible for the majority of the so-called “blight” in East Harlem. Essentially, he identified a “Slum Lord of East Harlem.”

This single property owner has been the owner of these properties for over 30 years and had over 24 critical conditions on its properties, including graffiti, litter, broken fences, broken sidewalks, deteriorating surface conditions. Mr. Nugent discovered that the “Slum Lord of East Harlem” is the City of New York.