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.