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.