Op-ed by State Senator Tony Avella

New York City scraps word on Willets Point redevelopment project land grab
by State Senator Tony Avella

Recently, the city announced that it would commence eminent domain proceedings against nine Willets Point businesses in what has been described as Phase I of the overall plan to redevelop the 62 acres known as the Iron Triangle.

What is particularly distressing about that announcement is that the city, through the Economic Development Corporation, is once again going back on its word.

As a former member of the City Council, I - along with many of my colleagues - was concerned that the use of eminent domain in this instance was an abuse of the process. Eminent domain should only be used to take private property for a specific public benefit not, as in the case of Willets Point, to turn the property over to a private developer who will make millions. Where is the public benefit?

I voted against the project for this reason and other deficiencies in the proposal. Unfortunately, the Council sided with the mayor and approved this land grab.

Following the city's approval, Willets Point United, a group organized by area business owners, hired a traffic consultant, Brian Ketcham, to review the city's environmental review of the impact this massive project would create. It was discovered that the city, in order to mitigate very serious traffic congestion issues, had proposed the creation of several ramps off the Van Wyck Expressway.

The city had argued in the environmental review that the ramps were the linchpin of the project, primarily because the development was estimated to generate 80,000 car trips a day. Without the ramps, the Willets Point development would overwhelm local streets and would be environmentally unmanageable. Nowhere in any of the environmental documents was there a scenario whereby the project in whole or in part could proceed without these crucial ramps.

However, the ramp design is faulty, and necessary approval from the state Department of Transportation has not been forthcoming.

As part of public comments, EDC had promised that eminent domain would be used only as a last resort, and it would not be used prior to the approval of the ramps. Well, despite the unresolved ramp issue, EDC is moving to condemn family-owned businesses.

In essence, EDC, stymied by a difficult state and federal approval process, is looking to make an end run around this impasse and create an entirely new project - one that has never been properly reviewed by the Council.

In my view, this is a complete violation of the land use review process and requisites that the Council approved in 2008. EDC alleges that the ramps are not necessary for the first phase of the project, a phase that encompasses 20 acres and will include, according to EDC, a retail corridor, hotel and housing. But since no study was done on this partial development, the assertions of EDC are without merit or credibility.

There is simply no way that the city can argue that the first phase does not need these ramps. As a result, the only credible alternative is for the Council to demand a new environmental review and a completely new land use application to determine if what EDC is arguing has any validity. The public must have an opportunity to comment on this new plan.

The city is facing a severe fiscal crisis, with huge budget cuts and layoffs that appear to be unavoidable. In this fiscal environment, putting aside all the contradictions and bad faith coming out of EDC, can the city now afford to spend billions of dollars to buy out local businesses? Even if the city is successful in this land grab, development is years off and will probably take decades. In the interim, jobs will be lost and the city will lose the tax revenue from all the businesses that it will have forced to close.

The entire Willets Point development has taken a turn for the worse. It now needs to be reevaluated in light of the city's current fiscal situation and the questionable nature of the ability of the project to mitigate huge and potentially disastrous environmental impacts.

If this reevaluation doesn't occur, the city is in grave danger of bequeathing to future generations an empty field and significant loss of business/sales tax revenue.

Tony Avella, a Democrat, represents the 11th District in the New York State Senate.

Printed in the Daily News today.

3 more for good measure

LAND RUSH Queens Courier

Holdouts dig in at Willets Point Crain's New York

Neither hindsight nor oversight is 20/20 at the City Council Neighborhood Retail Alliance

Wonderful comment on the second article:

Welcome to more government theft. In New York State, a finding that an area is blighted is a pretext for most if not all eminent domain takings.

In all cases, one must ask who's responsible for the blighting? Usually it is the government or the private party that is seeking to steal someone else's property. In the case of Willets Point, the... (more) City is the cause of the blight because they failed to install and maintain sewers and sidewalks. The fact that the City government is required to provide these is, of course, irrelevant.

Not mentioned in the article was the eternal and ever repeated promise of 10,000 jobs. It's always 10,000 jobs, no matter what business may be occupying the space.

Kelo had two effects. One was to increase takings and the other was to inspire private individual property owners to fight even more fiercely. Plus legislators accross the country began to rewrite the eminent domain laws to protect people from arbitrary seizures or seizures based on flimsy grounds like blight.

Unfortunately, New York State is still in the dark ages and continues to be the serial eminent domain abuser it has always been. Witness the taking in connection with Columbia University. As with Kelo, this is the taking by one private entity of another(s) private property. Only under the bizarre rules of eminent domain would this not be called theft.

But it is theft, grand theft eminent domain.

Another round of articles for you

Willets Pt. Group Gains Allies In Fight Queens Tribune

Sharp words at rally on eminent domain Queens Chronicle

Willets businesses get eminent domain docs Times Ledger

And our personal favorite:

Bloomberg admin devious over how it uses eminent domain Times Ledger:

An integral part of the Bloomberg administration’s misguided Willets Point project is the use of ramps to and from the Van Wyck Expressway to handle the expected huge increase of vehicular traffic the project will cause. Even without the project the Van Wyck and Grand Central Parkway are currently often clogged. The traffic issue as yet has not been resolved nor approved by the Federal Highway Administration.

Previously, Bloomberg officials have gone on record that no attempt to acquire Willets Point property through the eminent domain procedure law will be made until the Van Wyck ramps have been approved by the FHA. In the typical devious manner in which the Bloomberg administration has proceeded, notwithstanding that the ramp issue is still open, The Wall Street Journal reported Feb. 3 that Seth Pinsky, president of the city Economic Development Corp., threatened to begin condemnation of Willets Point properties last week. Whether this was a fact or just another attempt to intimidate the small business people in the area, I do not know, but clearly it does not comport with good government standards.

And speaking of the hundreds of small businesses and their thousands of employees and dependents who will be dispossessed and discarded, back in 1960 — when in connection with the then-upcoming 1964 World’s Fair — an attempt was made to evict the Willets Point property owners so as to include the area in the fair. The owners through their attorney, Mario Cuomo, who later became governor, fought the issue through the courts.

As the late David Oats reported in an article he wrote in the Queens Courier Jan. 31, 2001, “Cuomo argued forcefully and eloquently that the junk yards were tax payers honest businesses, performing a service, not necessarily a pretty one, but a necessary one, and to take those immigrants and sons and daughters of immigrants off the tax rolls while there was already huge amounts of parklands next door was not only cruel but bad city planning. After a three year battle The New York State Court of Appeals agreed with Cuomo’s argument and the Willets Point junk yards could stay.”

In the absence of the use of eminent domain, the Bloomberg administration would be unable to seize private Willets Point property. In a 5-4 decision, the U.S. Supreme Court in the case of Kelo v. City of New London, Conn., rejected the time-honored concept that eminent domain could only be used for a public purpose — e.g., a public building, a highway, etc., but approved the use of eminent domain to take property for commercial use.

As a result of that decision, 43 states have enacted legislation that prohibits or curtails the use of eminent domain to seize private property for economic development purposes. New York state is not one of those states. Cuomo was known to have been a good baseball player. How fitting it would be for Mario’ son Andrew, our current governor, to step up to the plate and hit a grand slam by having legislation enacted making New York state the 44th state to prohibit or curtail the taking of private property for commercial purposes — all to the roaring approval of not only baseball fans, but the poor and middle class and small businesses.

Benjamin M. Haber
Flushing

Link roundup

We'll let you digest this coverage of eminent domain for private gain at Willets Point and then we'll be back with commentary.

Regaining City Council Oversight Authority Neighborhood Retail Alliance

Does this End Justify the Means? Times Ledger editorial

Willets Point property owners face eminent domain seizures Queens Courier

Biz owners keep battling EDC plan kicks off, but Willets Pt. holds out Daily News

Willets Point and EDC Dishonesty: The Compelling Need for Legislative Oversight Neighborhood Retail Alliance

Related Problems for Walmart Neighborhood Retail Alliance

City Warns Holdouts in Queens of Eminent Domain Proceedings WNYC

Unions squeeze Walmart partners Crain's New York Business

Eminent domain is "premature"; owners Queens Chronicle

Queens 'Walmart wage' mart NY Post

New York City Prepares to Seize Willets Point Properties Epoch Times

EDC Outdoes Itself on Willets Point Chicanery Neighborhood Retail Alliance

Eminent Domain Comes To Willets Pt. Queens Tribune

City moves on eminent domain Times Ledger

City jumping the gun by resorting to condemnation

In Thursday's Wall Street Journal, Seth Pinsky, President of the New York City Economic Development Corporation ("EDC"), threatens to begin condemnation of Willets Point properties next week.

First and foremost, Willets Point United Inc. ("WPU") wants everyone to recognize that Pinsky will use eminent domain to seize our properties, NOT for any necessary or urgent public purpose which is the traditional justification for eminent domain, such as building a highway through the area, or a hospital; but rather, just because the City administration prefers to see other businesses replace ours, at this site. Eminent domain was never intended to facilitate decisions by members of an elite class, to repurpose property according to their own preferences, to be used by their fellow elites – and in the process, trample the rights of private property owners, like us. Since the infamous Kelo Supreme Court decision, 43 other states have enacted legislation that prohibits or curtails the use of eminent domain to seize private property for economic development purposes – but New York State has not yet amended its law. Instead of respecting the obvious nationwide backlash against clear eminent domain abuse, Pinsky, EDC and Bloomberg will shamefully exploit New York's failure to amend its law.

We therefore consider Willets Point to be the front line battle against inappropriate and abusive mis-use of eminent domain within New York State – a battle which we know is of utmost concern to everyone who owns, or aspires to own, property within this state. We will act accordingly.

We find it especially disturbing that the City of New York will begin the process of condemning property at Willets Point, considering that there are WPU members who have yet to be contacted by the EDC. How can the City characterize property owners as "holdouts" in the press, when the City has never even picked up the telephone to discuss any plans with them?

In fact, so non-communicative has the City been, that we do not even know at this time which of WPU's members will or will not be affected by condemnation of properties located within EDC's amorphous "Phase 1".

EDC has published various maps – each of which shows different borders of what might constitute "Phase 1" of the proposed development. For example, EDC's "Adjusted Plan" goes no further than 34th Avenue, while EDC's "Staged Acquisition Alternative" includes property up to Northern Boulevard. This confirms, as we have observed since 2007, that EDC apparently does not know what its plan is, for our area.

Pinsky, in his haste to condemn, apparently has forgotten one minor detail – that even if the City attempts to condemn our property, the City cannot take title or possession of it unless the proposed Van Wyck Expressway ramps are first approved. With no such approval on the books (and legal challenges ahead, in the event there would be such an approval), any condemnation will be purely speculative – and we understand that courts have not permitted that.

Given Pinsky's remarks to the Wall Street Journal regarding Willets Point condemnation, bear in mind the following representations by the City, already in the record:

"The City will not take possession of property acquired by eminent domain before the NEPA process is complete and the ramps are approved." – Willets Point FGEIS, Chapter 29, General Comments, Response G-8, September 12, 2008.

"The City will not acquire title to any property through Article 4 of the Eminent Domain Procedure Law (“EDPL”) until after ramps for the Van Wyck Expressway are approved by FHWA." – Affidavit of Robert Lieber, Deputy Mayor for Economic Development, June 29, 2009, filed with Supreme Court of the State of New York (WPU's Article 78 case).

"At oral argument [for WPU's Article 78], counsel for respondent [City] stated that if the ramps are not approved, the respondents cannot 'proceed with the plan as conceived and approved.' Transcript at 33.

For the purposes of this review, this court assumes that if the ramps are not approved, additional review under SEQRA will be required." – Decision of Hon. Joan Madden, August 16, 2010, p. 18-19, re: Article 78 filed by WPU.

Considering the above, the City's use of eminent domain now – without any ramp approval – represents a "speculative condemnation", which we understand courts have not permitted. Stated differently, there is obviously no point to condemn property, when the condemnor cannot take possession or title to that property.

As events unfold, we urge observers to always be mindful of the very serious property rights issues that are implicated, which may eventually impact others just as they are now impacting us. As hardscrabble a place as Willets Point sometimes can be, it is also a place where the most important American rights still exist and will be honorably defended by people of best intentions.

– The Membership of Willets Point United, Inc.