Vinson & Elkins Files Amicus Brief in Support of Petitioners in Willets Point Condemnation Lawsuit in the New York Appellate Division, Second Dept

January 26, 2012 — Vinson & Elkins has filed an Amicus brief in support of the petitioners in Serrone v. City of New York, a lawsuit challenging the City of New York’s planned redevelopment of the Willets Point area in Queens, New York.

The petitioners in Serrone, a group of Willets Point businesses and landowners, challenged the City’s redevelopment on a number of grounds, including compliance with New York environmental laws and the city’s planned use of eminent domain to take private property. The case implicates important questions about the protection of private property rights under the United States and New York constitutions, including whether there is a judicially-enforceable limit on the government’s exercise of eminent domain in cases where the government alleges that a property is “blighted” or of sub-standard condition.

Vinson & Elkins partner David Hawkins and associate Jeremy Marwell, together with co-counsel John S. Marwell of Shamberg Marwell & Hollis PC, filed the brief on behalf of the Property Rights Foundation of America, Inc., a New York-based nonprofit organization dedicated to providing information and education about the right to own and use private property. The brief argued that the proposed taking is unconstitutional and that courts must retain an important role in articulating and policing constitutional boundaries on the government’s use of eminent domain.

Vinson & Elkins’ Condemnation and Land Use litigation group is dedicated to condemnation and land use trial and appellate work. V&E’s condemnation lawyers have significant experience litigating against federal, state, county, and local governments as well as private corporations that have been legislatively delegated the power of eminent domain. Our representation includes properties of all sizes, shapes, and uses including residential, commercial, industrial, ranch, and special purpose properties (schools and churches), as well as vacant land.

Vinson & Elkins LLP is an international law firm with approximately 760 lawyers across 15 offices worldwide. For more information, please contact Susan Peters at 1.212.237.0149.

WPU to MLB: You'll Regret a 2013 All-Star Game at CitiField

What does the Great American Pastime-baseball-have in common with the un-American abuse of eminent domain, the eradication of scores of minority-owned businesses, the City's decades-long willful neglect of an entire neighborhood? Well, absolutely nothing as it turns out, but if MLB gets its way and schedules an All Star Game at CiitiField than the great American game will be colluding with a project based on lies and deception-and WPU intends to aggressively promote all of this to world-wide media, if Major League Baseball dares to hold its 2013 All-Star Game right next to our property at Willets Point.

The following letter, sent by WPU to Baseball Commissioner Allan "Bud" Selig, makes clear that for a variety of reasons, MLB would be wise to consider other venues for its 2013 All-Star Game.

MLB All Star Game Letter 120114

Unconventional Wisdom

The governor made big news last week when he announced that he was selecting the Aqueduct raceway site as the location for a new NYC convention center-but not everyone thinks this is a good idea: "Still, the question is whether the Queens project makes sense, experts said. The convention business is highly competitive, and attendance is falling around the country. Most convention centers are run by public authorities at a deficit."

Add Helen Marshal to the doubters. In 2008 she approved the original Willets Point plan with the expressed purpose that it includes a convention center: "In an opinion signed today, Ms. Marshall called Willets Point “underutilized” and said it was time to redevelop the 61-acre neighborhood in the shadows of the Mets new Citi Field. But she added 11 conditions to her recommendation, calling for continued community input, more affordable housing, guarantees of a convention center..."

The removal of the convention center possibility only highlights how the Willets Point plan is really no plan at all-something that former Council member Monserrate realized back before he changed sides on the issue: "Unfortunately, the Queens Borough President chose to support this vague and noncommittal plan rather than question it,” City Councilman Hiram Monserrate said in a statement. “That's why the project's opposition continues to grow broader and deeper.”

The convention center bait and switch adds fuel to the fire of the WPU criticism of EDC's latest change of plans-a Phase 1 that was never envisioned when the city council approved the project. On January, 27th Judge Joan Madden will have the city and WPU's Mike Gerrard in court to argue the legality of this phased-in development. She should keep the convention center switcheroo in mind when she decides just what to do with the failed promises of EDC.

How Farsighted is Eric Schneiderman?

Word comes from the Ithaca Journal-courtesy of Liz Benjamin-that AG Schneiderman is looking into local development corporations. Who knew? It doesn't appear, however, that the NYS AG is willing to look too close to home:

"New York Attorney General Eric Schneiderman has found “red flags” in a review of local development corporations that uncovered the potential for self-dealing, nepotism, improper loans and exorbitant expenses at some. He has been examining the more than 200 local development corporations statewide, reviewing salaries and spending at the nonprofits that do government work but with fewer restrictions and less oversight. The review has led to deeper examinations of several organizations, including the Multi-County Community Development Corp. and its affiliate Rehabilitation Support Services Inc. Those organizations provide residential and day services for mental health and drug abuse clients in the Hudson Valley and part of western New York."

The AG has been like Horton Hatches a Who-a well meaning elephant faithfully sitting on the investigation started by the intrepid Andrew Cuomo of ethical fame-but willing to wait indefinitely until the mother bird returns. The gestation period of this investigation is worthy of a herd of elephants.

Look forward to grievous evidence of wrongdoing that will soon be uncovered in Oneonta or some other boondocks location. Closer to home the intrepid elephant morphs into the three monkeys who cannot see, hear, or speak of evil.

Big Ben Haber

Throughout this entire Willets Point struggle there has been one voice of intellect and integrity that has stood out-and that voice belongs to Ben Haber a man whose letters to the local papers have struck back at the city's hypocrisies and venality. True to form he continues in his role as the voice of reason by lashing out at the city's sewer hypocrisy:

"In its mishandling of Willets Point, the city Economic Development Corp. has qualified for the Chutzpah Award of the Year. Notwithstanding the lack of sewers in Willets Point, the city not only ignored repeated requests from property owners for many years to install sewers, but collected sewer rent for the non-existent sewers...It willfully allowed the area to fall into structural disrepair and then mislabeled it as substandard. Now comes the pinnacle of absurdity in that the EDC has awarded the sewer contract to a New Jersey-based company (“Avella, biz group slam EDC,” Flushing Times, Dec. 1-7)."

Haber also underscores the central point that WPU has been making about the city's eminent domain abuse: "It made a mockery of the understanding that eminent domain was to be used for public purposes and not to subsidize fat-cat real estate developers."

Make no mistake about it, the Willets Point development will go down in the annals of the city's history-along with the theft of the Bronx Terminal Market by Dan Doctoroff for his friend Steve Ross--as the exemplar of crony capitalism and what Newsday's Dan Janison has coined as patricianage. Unfortunately there are far too few Habers around to righteously call out the self servers.

He does, however, end his letter with an important policy suggestion-and for that he deserves the last word: "By no stretch of the imagination can the proposed Willets Point development in its concept, planning and implementation qualify as democracy in action. Machine politics would fit the bill. The time has come to remove the EDC’s jurisdiction from the mayor and make it accountable to the City Council."

The Willets Point Land Grab is Just Like What Happened in Wukan, China

This blog post has been written by the attorneys from Goldstein, Goldstein, Rikon & Gottlieb, P.C.-the lawyers that drafted the petition.

Willets Point United is pleased to announce that it has filed its final brief with the NYS Appellate Division in our case challenging the use of eminent domain ("Serrone v. City of New York"). This culminates a three year process that began when the city council approved the land use application for the development of Willets Point before the city received approval for the Van Wyck ramps-and action that led to the current condemnation proceeding that the city promised the court would not occur before ramps were signed off on.

The Petitioners in Serrone v. The City of New York, the lawsuit commenced to stop the condemnation of twenty acres, or a third of Willets Point filed their reply brief in the Appellate Division in Brooklyn. In addition, two amicus briefs were filed supporting the effort to stop the improper condemnation. One brief was filed by the Institute for Justice, the second by the Property Rights Foundation of America.

In their brief, the petitioners stated that in reality, what the City of New York is attempting to perpetrate at Willets Point, Queens is little different than the land grab in Wukan, China. Wukan is a small fishing village in Guangdong Province whose residents rose in revolt over a land grab by local officials to turn over to their land to connected real estate developers.

But China is a communist country, how can that happen here? We have constitutional rights granted by the U.S. Constitution and New York State Constitution that provide that private property may not be taken by government except for a public purpose, and then only after protecting the due process rights of property owners, don’t we? But isn’t the City trying to do a land grab without according any constitutional rights to the people of Willets Point, just as happens in communist China?

In the briefs filed to stop this wrongful exercise of the most awesome of governmental powers, the property owners detailed the wrongful conduct of the City from the very start. This began with the Mayor’s office having EDC, a non-profit entity, pay money to another non-profit entity to lobby the City Council to approve the project. Non-profits are precluded was from lobbying. Indeed, former Borough President, Claire Shulman, who headed the lobbying effort for the Flushing, Willets Point Corona Local Development Corp was hit with a $59,090 fine by the City Clerk because of her failure to register as a lobby. The Attorney General is still reviewing the illegal lobbying issue.

Then there was the special deals made with the larger owners in Willets Point which violated the law’s requirement for fairness and equal treatment of who are slated for condemnation. The violations of the Constitution and New York’s Eminent Domain Procedural Law mark a new low in the use of eminent domain.

The brief authored by Michael Rikon with the environmental legal issues drafted by Michael Gerrard, point out the outrageous conduct by the City, starting with the failure to provide proper notice of the public hearing.

The City of New York was required to provide notice of the public hearing by complying with the Constitution’s due process procedural requirements. The notice is required to clearly state that those property owners who may subsequently wish to challenge condemnation of their property via judicial review must do so within thirty days after the condemnation makes it “Determination and Findings” which authorize condemnation.

There are over 150 Spanish speaking businesses employing over 654 people in the 20 acres. It has long been the law that a commercial tenant has the constitutional right to recover for the taking of its trade fixtures.

There is no reason for not personally serving people who will lose their businesses. The commercial tenants on the site were well known to the City. The City had become the landlord to the vast majority of the condemnees and had actual knowledge of their names and addresses. No reason is offered for the failure to effect personal service. Certainly if one of its tenants became delinquent in payment of rent, the City would be required to obtain personal jurisdiction to evict them. Why would the procedural due process required by the Constitution be excused because the City desires to condemn their trade fixtures?

There was no excuse for the denial of due process. The City knew exactly who occupies the premises in Phase I. Due process requires that a deprivation of property be preceded by notice that is “reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action.”

But the most important element of the notice is the absolute necessity of warning the condemnees that their property rights could be lost as a result of the hearing. This was not done. Nor is there anything in the Notice of Hearing that warns that a proceeding within thirty days after a “Determination and Findings” is adopted must be commenced.

There is more, much more in terms of the conduct of the City, and this blog will discuss the other serious violations presented to the court in subsequent issues.

A Do-Over, by Any Other Name

On November 9, the New York City Economic Development Corporation (NYCEDC) held its "Public Information Meeting" for the public to discuss and ask questions about NYCEDC's permit application to allow toxic water removed from the Willets Point sewer construction site to be discharged, after filtering, into the Flushing bay. But even before that meeting occurred, it was obvious that NYCEDC had failed to comply with the written public participation plan that it had presented to the Department of Environmental Conservation (DEC), as well as applicable DEC regulations.

For example, NYCEDC held its November 9 meeting:

• While completely concealing from the public the permit application that was supposed to be the topic of that meeting;

• Without making available project-related documents approximately 15 days in advance of the meeting (or perhaps at any time whatsoever in advance of the meeting);

• After deliberately omitting from the written meeting stakeholders outreach list all Willets Point businesses, including those located on 126th Street immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work – while including on the written notification list 35 church organizations that are located one mile away.

On November 21, 2011, environmental attorney Michael Gerrard of Arnold & Porter LLP, representing Willets Point United Inc. (WPU), notified DEC of multiple failures of NYCEDC, including those summarized above, to comply with the written public participation plan presented to DEC, as well as provisions of DEC Commissioner Policy 29.

DEC must have appreciated that its consideration of NYCEDC's permit application would lack necessary integrity, if it relied upon the inadequate public participation implemented thus far by NYCEDC. And so it comes as no surprise that, after receiving attorney Gerrard's letter, NYCEDC has since acceded to WPU's demands, by:

• Making available to the public the permit application document that had previously been completely concealed;

• Scheduling a new public participation meeting;

• Making available to the public project-related documents in advance of the new public participation meeting;

• Including in the written meeting stakeholders outreach list Willets Point businesses immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work.

Make no mistake about it: NYCEDC is taking those extraordinary steps, not because NYCEDC enjoys public participation in its projects, but because it must correct its failures to comply with its written public participation plan, as well as applicable DEC regulations.

In particular, the new public information meeting to be held tonight is obviously intended to correct the failures of the original meeting. Significantly, the original public information meeting held on November 9 was supposed to have been the only such meeting. (See page 4 of the original Public Participation Plan, http://www.nycedc.com/ProjectsOpportunities/CurrentProjects/Queens/WilletsPointDevelopmentDistrict/Documents/Public%20Participation%20Plan.pdf: "One public information meeting will be held at a publicly accessible location in Flushing to provide information about the construction of the proposed sanitary and storm water sewer lines and the associated NYSDEC permitting process.")

The new meeting is, for all intents and purposes, a do-over – necessary to correct failures of the original.

Now, we understand that no one likes to admit they have failed – especially when doing so could threaten their holiday bonuses.

So while NYCEDC incredulously spins tonight's new public information meeting as a mere "follow-up", the fact of the matter is that this meeting is a do-over, implemented because WPU has held NYCEDC to account, and necessary to correct NYCEDC's prior failures.

Significantly, tonight's sewer meeting do-over is just one example of WPU holding NYCEDC to account, and turning back the clock on aspects of the proposed Willets Point development. That has happened before: After WPU brought to the attention of state and federal regulators fatal flaws in NYCEDC's application for the proposed Van Wyck ramps, the entire process for evaluating those proposed ramps was revised, and still remains incomplete more than two years later. More recently, after WPU brought to the attention of State Supreme Court Justice Joan Madden that NYCEDC intends to proceed with "Phase One" of the proposed Willets Point development without having approval of the proposed Van Wyck ramps, and to condemn Willets Point property on that basis – in direct contradiction of the City's prior representations to Judge Madden's court – Judge Madden has decided to re-open WPU's Article 78 case "in the interests of justice".

We're weren't surprised that NYCEDC and the City attempted to distract from all of that, by staging a sewer project groundbreaking on December 1, 2011 despite not having obtained the required DEC permit, and despite knowing that NYCEDC had failed to implement a proper public participation process (and that it would have to be re-done). Tellingly, NYCEDC's consultant mailed notices regarding the public information meeting do-over on December 2, 2011 – one day after the Mayor's groundbreaking press conference. That prevented members of the press from questioning the Mayor about NYCEDC's revised public participation plan during the groundbreaking press conference.

WPU will continue to hold NYCEDC and the City to account. We're unfazed by the Mayor's phony press conferences, and by NYCEDC's laughably inaccurate spin. For each failure of NYCEDC, expect a do-over. One step forward, but two steps back. And to NYCEDC chief Seth Pinsky we say: Axe those holiday bonuses.

[The December 19, 2011 sewer permit public participation meeting will be held from 6:15PM - 8:15PM at the Al Oerter Recreation Center, 131-40 Fowler Avenue. NYCEDC has not posted notice of this meeting on its web site, apparently preferring low attendance.]