Wednesday, March 30, 2011

Out of the City's Domain

As we commented yesterday, Judge Joan Madden has thrown the city a curve ball by issuing her order to show cause against that effort to segment the Willets Point project and avoid proper review of the Van Wyck ramps. In doing so, Madden explicitly rejected the city's argument that this entire dispute could be rolled into the eminent domain challenge.

We anticipate that EDC will try to make this case when they submit papers to the judge in response to her order. We know exactly why the city is trying to use the ED gambit-they are on stronger legal ground-given how the NY State courts have ruled on condemnation challenges-in this are then in the environmental arena where its case is much weaker.

This view is brought home in a City Hall story this week, cleverly titled "Imminent Domain," that focuses in on the eminent domain fight at Willets Point:

"By next summer, the dilapidated jumble of auto shops in Willets Point should be starting to transform into a slick new development featuring mixed-income housing, a hotel and a convention center.

But first the city must take on a small band of business owners trying to hold onto their property in the Queens neighborhood, and while recent experience shows that the city has the upper hand in securing the land for the project, the group is eager to learn from recent economic development fights."

Which is precisely why WPU is fighting a two front legal war-the ED battle field is littered with failed litigants: "Two other redevelopment projects in the city, Atlantic Yards in Brooklyn and Columbia University's expansion in Manhattan, recently reaffirmed the right of government to take private property in New York and turn it over to private developers. As the city takes its first step toward using eminent domain in Willets Point, opponents are looking carefully at the legal battles over those two projects, as a guide for which strategies to follow and which to avoid."

Norman Siegel, who fought Columbia and the city valiantly, makes the point: "Unfortunately you can't ignore that precedent," said Norman Siegel, an attorney who argued unsuccessfully against eminent domain in the Columbia expansion and has advised the Willets Point property owners. "The court in both Atlantic Yards and Columbia upheld the use of eminent domain, which confirms that the New York courts are extremely deferential to the government agencies with regard to their finding of eminent domain."

WPU is trying a different tack, and is avoiding the public use argument that didn't work elsewhere: "Opponents to the Willets Point development will also try to show that any blight, or substandard conditions that allow the government to take property, is a direct result of the city's failure to install sewers and drainage systems and build sidewalks.The argument is similar to a claim in the Columbia case, in which opponents accused the university of allowing property it had purchased to fall into disrepair.That argument failed to sway the courts, but Siegel, an attorney in that case, said that Willets Point property owners have a strong argument."They had over the years requested the city improve that area, including putting in a drainage system and creating sidewalks, and the city never did that," Siegel said. "If there was blight, it was caused by the city, not by the individual property owners."

City Hall does also mention in passing the WPU environmental challenge: "Willets Point United also filed an environmental legal challenge in late March, arguing that the city must fulfill its promise to get state approval for ramps to connect the development to the Van Wyck Expressway before using eminent domain. The filing also challenges breaking up the project into separate phases, which it says avoids the issue of the ramps by delaying them until a later phase."

The city, commenting before Judge Madden's ruling yesterday, sounded confident: "We feel confident that we are on strong legal footing and look forward to resolving this matter as quickly as possible so that this project, which will create thousands of jobs in Queens, can move forward without further delays," said Julie Wood, an EDC spokesperson."

But it's Seth Pinsky's comments that need to be drug tested-particularly his statements on the ramps: "In a recent blog post, EDC President Seth Pinsky wrote that he expects the city to "receive all necessary approvals for these planned ramps in the coming months."

If that were so, why is EDC proceeding in its current phased segmentation without the ramp approvals that he says are imminent? Isn't it better to simply wait the pro forma few months rather than proceed in a manner that just might pique the judge that ruled in the city's favor last year? (Based on awaiting the ramp approval)

Pinsky, standing on some softening legal grounds, goes on to make the case a popularity contest: "Pinsky also emphasized the jobs the project would bring and its broad support. "This is a project that is overwhelmingly supported by the City's elected officials, arose out of a community planning process, with a first phase that is funded and ready to go, despite today's challenging fiscal environment," Pinsky wrote."

As City Hall concludes, however, it will be the courts and not any public opinion poll that will determine the outcome of this fight. The exit question for us is, Will the city now continue to pursue the EDPL path without waiting for the environmental issues to play out in Judge Madden's court? If it does it could be playing with fire-further provoking a jurist that has seen that the city's sworn representations aren't to be taken seriously.