Ratner Must Pay Up: And So Will NYC for Willets Point United

As Develop Don’t Destroy is reporting:

“A judge today ruled that the Empire State Development Corporation ("ESDC") is liable for legal fees incurred by community groups that sued successfully to compel a supplemental environmental impact study (SEIS) for the second phase of Forest City's controversial Atlantic Yards project.  She referred the parties to a referee to determine the amount of the award, which under an agreement with ESDC, Forest City Ratner will then have to pay.”

Good for them! Just another example of how Big Real Estate cheats their asses off and expects the politicians and the courts to turn the other way:

"Justice Friedman's ruling today is another reminder of the sordid 10-year history of the Atlantic Yards project, which to this day has largely failed to deliver on the promises that were used to sell it to the people of New York," said Candace Carponter, Develop Don't Destroy Brooklyn's legal director.  "We're gratified by today's decision, but the fact remains that, as Justice Friedman suggests, had the ESDC and Forest City Ratner not knowingly misrepresented the facts to the court, the entire Atlantic Yards project, including the heavily subsidized Barclays Center, would never have gotten off the drawing board."

Too often, these kinds of vindications come posthumously-and what should be seen as criminal or civil liability ends up being simply throwing coins at beggars. Willets Point United is facing the same situation-with the criminal activity being exposed and little or no consequences for the perps. But when the city pulled its eminent domain proceeding-fearing the exposure of massive corruption-they opened the tax payers to being on the hook for all of the WPU legal fees. As the Daily News reported:

“A group of Willets Point property owners want the city to pay their hefty legal fees after pulling plans last week to take over their land through eminent domain proceedings. The city halted its controversial approach because it was instead nearing a deal with a developer to overhaul the industrial cluster of auto body shops and scrap yards next to Citi Field.”

Show us the money-the city must be made responsible for putting the property owners through a living hell. All for nothing, as the News points out:

"Michael Rikon, an attorney representing about two-dozen WilletsPoint business owners, said he will file a petition for the city to repay his clients’ legal fees. Willets Point United members have shelled out more than $300,000 in legal fees since 2008, he said. That number is on top of the money group members paid to attorney Michael Gerrard, who represented them in their fight against new exit ramps on the VanWyck Expressway. Rikon said his clients are entitled to the money under section 702 of New York State eminent domain law."

The $300,000 is really chump change when seen in the context of a $400 million boondoggle-and still escalating fraud-but it is symbolic of the disregard of the plutocrats for the fate of the peons. The City Council has now been given the opportunity to give this bait and switch the bum’s rush, but given the total lack of character of the leadership-and their obeisance to Big Real Estate (not to mention the complete lack of competency of the local council member)-this is as unlikely as the sun setting in the East. It will be up to the new mayor to take a look at all of the unethical and criminal behavior involved in this mayoral grift-and decide if there really will be a new day for New Yorkers.

City likely owes us more than $1M

From today's Daily News:

Lawyers representing more than a dozen business owners of the gritty Iron Triangle are awaiting a judge’s decision on whether the city will be required to pay their legal expenses, which have surpassed more than $1 million.

Michael Rikon and Michael Gerrard both told the Daily News on Monday that once the city dropped its eminent domain bid last May in favor of a different development, it became obligated to reimburse their fees.

“The statute is very clear,” said Gerrard, who is seeking over $609,000 for work that his firm Arnold & Porter performed. “If the city abandons the condemnation, the parties whose lands were being condemned are entitled to their legal fees.”

The city decided to not proceed with its eminent domain bid. Instead, it announced in June a 23-acre development to be built by the Queens Development Group, a joint venture between Sterling Equities and the Related Cos.

The statute that Rikon and Gerrard are basing their case on is Section 702 of New York State’s eminent domain law, which states if the “procedure to acquire such property is abandoned by the condemnor ... the condemnor shall be obligated to reimburse the condemnee.”

The EDC was well aware that supplemental environmental reviews would be needed for the project, so they dropped their bid in May, court documents show.

When you play around with taxpayer money, it's taxpayers that get burned.

Statement of Michael Rikon, Counsel to Willets Point United, Inc. on Lawsuit Filed

Queens, New York, June 2, 2011, Lawsuit Filed

Property owners and commercial tenants in the twenty (20) acre parcel, designated phase 1, in the Willets Point Development plan, filed a lawsuit pursuant to the Eminent Domain Procedure Law to annul a “Determination and Findings” adopted by the City of New York to take their property by use of eminent domain. The lawsuit was filed in the Appellate Division, Second Department in Brooklyn.

The Petition seeks to set aside the authorization to condemn because of violation of the United States and New York Constitutions. The Petition also alleges substantial violations of Federal and State Law.

No Public Use

Among the many challenges made to the decision to condemn is the fact that “there is no specific development plans.” This is a case of “condemn first, decide what to do with the property later.” Both the United States and New York State Constitutions provide that private property cannot be taken by the exercise of eminent domain absent a public use.

It is extremely doubtful whether any developer will come forward willing to undertake the development of such a large area of property. This is especially true when considering the potential need for environment remediation, the need for sanitary and storm sewers, and the need to fill seven feet or more to prevent flooding.

City Denied Spanish-Speaking Business People Due Process

The City knew that there are over 150 Spanish-speaking businesses in Phase 1. The City failed to provide Notice of the Public hearing or advise of the consequences of the hearing in Spanish.

It held a public hearing without providing a Spanish interpreter. The Spanish-speaking members of the public and property owners were not able to comprehend what was being said. Nor was the “hearing officer” able to understand what the Spanish-speaking individuals said. For these individuals, it was as if no hearing was conducted at all.

The City has deliberately misrepresented the rights of commercial tenants to obtain just compensation for their trade fixtures. It has told the small businesses that the limit of their entitlement upon condemnation is $4,000 for moving expenses which is absolutely untrue.

The City Violated the Environmental Conservation Law

The City has failed to take the necessary “hard look” at the environment impacts of the proposed condemnation.

The City proposes to condemn without first having obtained approvals for new ramps off the Van Wyck Expressway. The City has acknowledged that the proposed ramps were an “integral” and “key” part of the development plan.

The City is also violating the E.C.L. by segmenting the Willets Point Development project into segments.

The City’s Final Generic Environmental Impact Statement (FGEIS) specifically rejected a phase development approach.

In order to proceed forward with a phase condemnation – without Van Wyck access ramps, the City must first complete a Supplemental Environmental Impact Statement (SEIS).

The City has failed account for the terrible and unmitigable traffic impacts the development will cause.

Failure of Equal Protection Of the Law

New York’s Eminent Domain Procedure Law requires that all condemnees, real property owners and commercial tenants receive a written offer of 100% of the highest approved appraised value for their property. This was not done in Willets Point for a single condemnee. Instead, the City made “sweetheart” deals with select prominent owners that garnered political opposition to the project’s approval. Once the “sweetheart” deals were made, City Council members formerly opposing the project, then approved it.

This selective treatment is clearly a violation of the statute and a violation of equal protection of the law.

The approval of the project was also the result of the illegal lobbying funded by the Mayor utilizing former Borough President, Claire Shulman, an unregistered lobbyist who was otherwise precluded from such activity because she was an officer of a non-profit organization which itself is barred from lobbying. The New York State Attorney General is conducting an investigation regarding the blatant violation of Law which corrupted the Legislative Process.

The environmental issues were drafted by Michael B. Gerrard, Esq., a partner in Arnold and Porter, LLP

Michael Rikon is a partner in Goldstein, Rikon & Rikon, P.C. 212-422-4000 ext. 23

Crain's Insider Focuses on WPU Eminent Domain Challenge

In this morning's Crain's Insider (subsc.), the newsletter reports on the WPU eminent domain lawsuit that will be filed soon against the city:

"Mike Rikon, the lawyer handling Willets Point businesses' lawsuit fighting eminent-domain condemnations, says a handful of such suits have succeeded in New York, usually on environmental grounds. That's his primary argument in the Queens case, but he's also asserting that City Council approval of the city's action resulted from illegal lobbying by a city-funded local development corporation and from “special deals” the Bloomberg administration made in buying out property owners favored by the council. Rikon said the city erred by not making formal offers and not giving hearing notices to all owners and tenants."

As we have pointed out before, there are proper procedures for treating potential condemnees-and Rikon has highlighted just how far EDC has strayed from following these legal parameters. So the skirting of the legal niceties continues apace in this development.

From the mayor's, "they do it all the time," excuse for the illegal Shulman role in lobbying for the plan, to the end run of proper environmental review of the Van Wyck ramps, EDC does not ever feel constrained by the law-or certainly by what is ethical and proper. We will now see if the courts will constrain this rogue agency and restore the rule of law on Willets Point. The city's illegal bullying tactics need to be stopped.

Sweetheart Deals and Cannon Fodder

Knowledgeable observers were surprised that the original Willets Point business coalition, the Willets Point Industry and Realty Association, hired Peter Vallone Sr. to lobby on its behalf. Vallone had no record of engaging in adversarial battles against the political establishment-quite the opposite. Vallone's entire political carer was spent in cutting deals, and if WPU's lawyer Mike Rikon is correct in his submissions to the city, many of the larger members of this original group knew exactly what they were doing by engaging Mr. Vallone.

For a select few, the Vallone representation resulted in sweetheart deals cut for their benefit; agreements that were not available to any of the smaller property owners who were not part of the WPIRA inner circle. According to attorney Rikon, this violates the essence of the state's Eminent Domain Procedure Law (EDPL). Once the city council passed its ULURP application for the Willlets Point project, all of the proper protocols under the EDPL should have been triggered and observed. This is not anywhere near what happened.

As Rikon points out: "There has been a violation of the entire process set forth in the Eminent Domain Procedure Law at Section 303 thereof which requires independent appraisals of the properties to be condemned with a written offer of 100% of the highest approved appraised value. This was not done for all condemnees or even for a single condemnee. Rather, what followed were individual oral offers and negotiations to select individuals but not to all of the property owners. This is a violation of the statute. It is also a violation of equal protection of the law. See EDPL Section 101.

And Rikon goes on to say:"What was done in the Willets Point Development Project was to make deals with prominent owners of property who had garnered political opposition to the project’s approval. But the deals did not follow compliance with EDPL Section 303. The deals, containing extraordinary provisions, were made only to appease the opposition from the members of the City Council supported by the select property owners."

What this also means is that the entire opposition to the Willets Point development was Kabuki theater-a staged production designed to enhance the bargaining position of the larger members of the WPIRA coalition. The corollary to this observation is that the little guys-property owners, tenant owners, and workers-were simply used as cannon fodder. They were sold out in the end, but in reality, their disposal was planned for from the beginning.

In some ways, we can appreciate the skill in which this was done-and kudos to those businesses that, as a result, made out like bandits. That, however, doesn't excuse the city's violation of the EDPL which, if true, adds to the growing list of illegal and unethical behaviors we have seen in this entire process.

But let's put a face on the sweetness of the deals we are talking about-as Rikon does in his discussion of the deal made with Part Authority:

"The NYCEDC also entered into a contract with Parts Authority Partners Real Estate, LLC on September 26, 2008...The NYCEDC contract agreed to pay the seller $18,150,000 for a 24,739 square foot site.

In addition, the contract provided the seller with numerous extraordinary benefits. The contract was conditioned upon the seller receiving $1.5 million dollars in relocation assistance. The seller and its multiple tenants (Hunt Construction, Mets Stadium Auto Glass, Anjo Realty and CBS Outdoor) were permitted to remain on the property for at least, but possibly more than, 24 months.

During that time, the seller was only required to pay rent in the amount of $1 per month. The NYCEDC would pay all real estate taxes. In addition, despite the fact that NYCEDC would be the owner and landlord, the seller was permitted to collect all rents from its tenants/subtenants on the property. The NYCEDC also agreed to pay New York City Transfer Taxes and any title insurance premiums."

Sweet indeed-and a justification for the Vallone hiring if there ever was one. Rikon summarizes: "In light of the above, it is clear that a select group of property owners, but not all, received preferential treatment from the City of New York including “sweetheart deals,” relocation assistance, a significant loan at a discount rate, rent free accommodations, option contracts at preferential values, agreements by the City to purchase land on the owner’s behalf, the entitlement to collect rent from subtenants but without having to pay any rent to the City, and title to newly constructed City facilities and buildings. This selective preferential treatment is clearly a violation of the statute and a violation of equal protection of the law."

How below board and corrupt was this? Recall Fernanda Santos' City Room article that revealed nicely the EDC scheme: "Whenever the city pursues a development project that involves buying land from private parties, it usually keeps details of the negotiations with property owners under wraps. Sale prices are rarely disclosed to avoid influencing other owners into asking more for their property.That has been the case in Willets Point, a 62-acre section of Queens next to Citi Field that is the target of one of Mayor Michael R. Bloomberg’s most ambitious development plans."

Except, as Rikon points out, the invocation of the EDPL protocols legally requires the city not to do this: "When asked which parcels the city had bought and how much it had paid for them, David Lombino, a spokesman for the Economic Development Corporation, said he could not disclose that information “because it would impede negotiations with other landlords going forward.”

The scheme was so important to EDC that it screamed bloody murder at the City Room expose-calling Santos to have her correct some of the property sale details. But in the end, there was one thing that EDC refused to do-comply with the terms of EDPL: "Mr. Lombino still declined to disclose how much the city paid per square foot of land — or building — it has acquired in Willets Point."

What about the rest of the "holdouts?" To this day they have yet to receive any written offer as required by law-and the city has commenced condemnation of their property. So, a process that began with the illegal lobbying work of Claire Shulman has continued along the same tawdry vein-with EDC acting outside of the law because it believes that it can, after paying off the larger property owners, simply beat up on the little guys.

Rikon: No public use at Willets Point

STATEMENT OF MICHAEL RIKON, ATTORNEY FOR WILLETS POINT UNITED, INC. AND INDIVIDUAL PROPERTY OWNERS EDPL SECTION 201
PUBLIC HEARING MARCH 2, 2011

MY NAME IS MICHAEL RIKON, MY LAW FIRM GOLDSTEIN, RIKON & RIKON, P.C. REPRESENTS WILLETS POINT UNITED, INC. AND INDIVIDUAL PROPERTY OWNERS. THIS PUBLIC HEARING VIOLATES THE EMINENT DOMAIN PROCEDURE LAW, THE CONSTITUTION AND DUE PROCESS. WILLETS POINT UNITED, INC. IS A COMMUNITY ORGANIZATION CONSISTING OF 12 PROPERTY AND BUSINESS OWNERS THE 62 ACRE PROJECT WILL AFFECT 255 BUSINESS AND SOME 55 PARCELS OF LAND.

AT THE OUTSET, THE NOTICE GIVEN FOR THIS PUBLIC HEARING VIOLATES THE DUE PROCESS CLAUSE. THE HEARING “LEGAL NOTICE” STATES THAT THE PUBLIC HEARING IS TO CONSIDER THE PROPOSED ACQUISITION BY CONDEMNATION OF CERTAIN PROPERTY IN FURTHERANCE OF THE WILLETS POINT DEVELOPMENT PLAN.

THE NOTICE GOES ON TO DESCRIBE THE AREA ENCOMPASSED BY THE PLAN AS A 61.4 ACRE INDUSTRIAL SITE. IT THEN DESCRIBES A SMALLER AREA WHICH IT CALLS PHASE I, BUT IT ONLY IDENTIFIED AND GAVE NOTICE TO THOSE PROPERTY OWNERS IN PHASE I, THIS VIOLATES THE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF ALL THE OTHER OWNERS. THIS HEARING AND ANY DETERMINATION AND FINDINGS ADOPTED BASED ON THE HEARING WILL BE CONTRARY TO THE LAW.

THERE IS NO PUBLIC USE FOR THE WILLETS POINT CONDEMNATION. BOTH OUR UNITED STATES AND NEW YORK STATE CONSTITUTIONS REQUIRE THAT FOR PRIVATE PROPERTY TO BE TAKEN BY THE EXERCISE OF EMINENT DOMAIN IT MUST BE FOR A PUBLIC USE. THAT LIMITATION IS FOUND WITHIN THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION. “…NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION.” THESE LIMITATIONS ARE MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT. PUBLIC USE MUST BE PRESENT IN ANY CONDEMNATION IN NEW YORK STATE. THE RECENT CASES, IN OUR COURT OF APPEALS, ATLANTIC YARDS, COLUMBIA UNIVERSITY, UPTOWN PROPERTIES ALL WERE BASED ON BLIGHT CHALLENGES.

BUT THE COURT OF APPEALS HAS MADE CLEAR OUR STATE CONSTITUTION STILL REQUIRES A PUBLIC USE BEFORE PROPERTY MAY BE TAKEN. THUS FOR ANY CONDEMNATION TO GO FORWARD IN WILLETS POINT, THERE MUST BE A PUBLIC USE FOR THE PROPERTY TO BE TAKEN. THE PROPOSED TAKING IS WITHOUT LOGIC OR REASON. IT IS NOTHING MORE THAN A FIGMENT OF MAYOR BLOOMBERG’S IMAGINATION.

QUITE SIMPLY, YOU CANNOT TAKE PRIVATE PROPERTY ON SPECULATION. THERE IS NO DEVELOPER.

THE EXECUTIVE SUMMARY FOR THE WILLETS POINT DEVELOPMENT PLAN FROM THE OFFICE OF THE MAYOR, DATED FEBRUARY 10, 2011 ADMITS “THERE IS NO SPECIFIC DEVELOPMENT PLAN.” THE ENTIRE DESCRIPTION OF THE PROJECT AS IS SET FORTH IN AN ILLEGALLY PREPARED TECHNICAL MEMORANDUM FOR THE WILLETS POINT DEVELOPMENT PLAN DATED FEBRUARY 10, 2011, IS A HOPELESSLY OBSCURE DESCRIPTION OF THE PROJECT WHICH CANNOT BE JUSTIFIED.

THE PROPOSED CONDEMNATION IS ALSO SPECULATIVE BECAUSE NOTHING CAN BE DEVELOPED UNLESS THE EXTRAORDINARY TRAFFIC PROBLEMS ARE DEALT WITH BY OBTAINING APPROVALS TO BUILD NEW RAMPS TO THE VAN WYCK EXPRESSWAY.

THE PROJECT IS ALSO SPECULATIVE BECAUSE THE CITY HAS INTENTIONALLY DEPRIVED WILLETS POINT OF ESSENTIAL MUNICIPAL SERVICES. THERE ARE NO WASTE SEWERS. THERE ARE NO STORM WATER SEWERS. THERE HAS BEEN TOTAL NEGLECT IN MAINTAINING STREETS AND ROADWAYS. THERE HAS BEEN NO CODE ENFORCEMENT. INDEED, THE CITY HAS INTENTIONALLY CREATED BLIGHT AND NOW WISHES TO USE IT AS A PREDICATE FOR CONDEMNATION

BUT IT IS THIS LACK OF ESSENTIAL SERVICES THAT WILL PREVENT THE IMAGINARY DEVELOPER FROM CONSTRUCTING ANYTHING IN THE PROJECT AREA.

ANOTHER PHYSICAL BAR WHICH PREVENTS DEVELOPMENT OF THE SITE IS THAT THE SOIL CANNOT SUPPORT STRUCTURES DREAMED OF WITHOUT EXTRAORDINARY EXPENSE. THEN THERE IS THE ALLEGED CONTAMINATION WHICH WOULD HAVE TO BE REMOVED. THE CITY OF NEW YORK ALSO STATES THAT UP TO 7 FEET OF FILL WOULD BE REQUIRED. WE DO NOT KNOW IF THE AMOUNT OF FILL WOULD INCREASE AFTER REMEDIATION. WE ARE TALKING ABOUT 61.4 ACRES.

WHO WOULD PAY FOR THIS? HOW MANY BILLIONS WILL IT COST THE CITY OF NEW YORK? IT HAS NOT BEEN SHOWN THAT ANY DEVELOPER WOULD UNDERTAKE ANY PART OF THE ILLUSORY PROJECT WITH THE ATTENDANT EXTRAORDINARY COSTS. THERE IS NO PUBLIC USE OF THE LAND NOW OR IN THE NEAR FUTURE THE PROPOSED CONDEMNATION IS SPECULATIVE AND UNCONSTITUTIONAL.

Alexander Hamilton was a “Holdout”

Alexander Hamilton was a “Holdout”
By Michael Rikon

According to an article published February 20, 2011, in Crain’s internet magazine, NewYorkbusiness.com, “Holdouts dig in at Willets Point”, the local business owners are fighting City efforts to turn the 62 acre area into a mixed-use development.

Crain’s isn’t the first to use the pejorative term “holdouts”. In an internet article dated February 13, 2011, WNYC News issued an article titled “City warns Holdouts in Queens of Eminent Domain proceedings.”

This is truly remarkable. What makes it truly remarkable is the concept that a property owner or business owner would be considered a “holdout” for refusing to sell to the City of New York.

Can the reporters who write these articles be so naïve as to the power of eminent domain inherent in the City? Has anyone taken the time to explore the facts and circumstances of the history of this disgraceful proceeding?

Let us set forth the facts of this abusive use of the power of eminent domain. The Council of the City of New York adopted Resolution No. 1759 on December 18, 2008.

This Resolution with other related Resolutions adopted the Willets Point Urban Renewal Area. The Resolution approved the Urban Renewal Plan, the Resolution states, “the Plan requires the acquisition and subsequent disposition of property within the Willets Point Urban Renewal Area.” This is the predicate authorization to condemn.

Although the City is holding a statutorily required public hearing under Article 2 of the Eminent Domain Procedure Law, make no mistake, the authorization for the proposed condemnation is the City Council’s Resolution adopted in 2008.

When the City Council authorizes acquisition of private property, the City is required to comply with the Eminent Domain Procedure Law. That law requires the appraisal of the properties to be acquired and the written offer of an amount that represents 100% of the highest approved appraisal.

This was not done in Willets Point. What was accomplished was the purchase of the properties of the largest owners on extraordinary terms including land to relocate to. And, the ability to stay put even after the condemnation. The City has not made good faith offers to the small owners.

The Eminent Domain Procedure Law requires equal treatment to all property owners. So why does the largest condemning authority in the country chose to ignore the law? Because it is politically convenient. It is no secret that those owners who obtained favorable deals were also those that supported members of the City Council that wrote an “adamant opposition” letter signed by 29 members to prevent the project’s approval. But the Project was approved after the negotiated agreements were made.

The City’s improper conduct in ignoring the law’s requirement of written offers based on fair market appraisals and equal treatment to all property owners is inexcusable. The law was adopted to prevent corruption and special deals.

Indeed, the very scheduling of the Eminent Domain Hearing when the City knows it cannot proceed because it cannot build without ramps to the Van Wyck Expressway is just another improper move to force deals.

Condemnation is a very significant power. It enables a condemnor to forcibly take title to someone’s land or business.

If this awesome power is to be used by the government, it must be used carefully, legally and only when necessary.

Americans have property rights which are guaranteed by out constitutions.

And, remember what Alexander Hamilton said at the Philadelphia Convention, “the security of property” is one of the “great obj(ects) of Gov(ernment)” 1 Record of the Federal Convention of 1787, P. 302. Perhaps Alexander Hamilton was also a “holdout”.

For further information contact Michael Rikon at 212-422-4000 Ext. 23.

Columbia U. ruling's impact on Willets Point

From the NY Times:

New York’s highest court handed Columbia University a major victory on Thursday for its $6.3 billion plan to build a satellite campus in Harlem, ruling that the state could seize private property for the project.

Nicholas Sprayregen owns four Tuck-it-Away Self Storage buildings in the area including this one at Broadway in between 131 St. and 132 St. The storage facility at left is on the land that is being taken over by Columbia University.

In a unanimous decision, the Court of Appeals overturned a lower court ruling that prohibited the state from using eminent domain to take property in the 17-acre expansion zone west of Broadway, known as Manhattanville, without the owners’ consent. The ruling held that the courts must give deference to the state’s determination that the area was “blighted” and that condemnation on behalf of a university served a public purpose, two ways that the project could qualify for eminent domain under state law.

Norman Siegel, who represented the losing owners, said he was “extremely disappointed” in the decision and would appeal to the Supreme Court. Although state law allows eminent domain to be used for educational purposes, he argued that it did not explicitly permit a private institution to benefit from it.

“The decision sets a terrible precedent regarding the use of eminent domain,” he said.

Still, the decision was not unexpected, said Michael Rikon, a lawyer who specializes in condemnation law and real estate litigation.

“It is virtually impossible to stop a condemnation in New York because of the courts’ deference to agencies’ determination,” Mr. Rikon said. “Even though the courts say they won’t be a rubber stamp, that’s in essence what they’ve become.”

The ruling does not bode well for property owners in Willets Point, Queens, a neglected neighborhood near Citi Field, who oppose the city’s effort to take their land for a redevelopment plan, Mr. Rikon said.

Those owners, who are considering a lawsuit against condemnation, contend that the area is blighted only because the city has refused to pave the streets properly and install sewers. But their current lawsuit challenging the city’s plan on environmental grounds is unaffected by the ruling.

“It’s time for the State of New York to do something about this,” Mr. Rikon said. “They should create a commission on eminent domain to revise the law.”

Atlantic Yards opponents basically being held hostage in their own homes!

From Atlantic Yards Report:

Things are getting truly strange for Daniel Goldstein, spokesman for Develop Don't Destroy Brooklyn, who with his wife and child is the only resident left on Pacific Street between Fifth and Sixth avenues.

Goldstein lost his condo to condemnation last week and his street and two others were closed and made private.

Now that his street is closed to traffic--permanently at Fifth Avenue, and via guarded barriers at Sixth Avenue, anyone visiting Goldstein must provide advance notice, which means friends have been stopped by guards and kept him on the phone today with representatives of both Forest City Ratner and the Empire State Development Corporation (ESDC), which owns his property.

Goldstein on March 4 received a letter (below) from Charles Webb, ESDC Condemnation Counsel, informing him that "ESDC requires you to relocate by April 3, 2010 (thirty days after the date of this letter) so that development plans for the Atlantic Yards Arena and Redevelopment Project... may proceed."

Goldstein's attorney Michael Rikon responded forcefully, on behalf of Goldstein and other footprint property owners, calling Webb's letter "an attempt to intimidate our clients":

First, you have absolutely no right to inform anyone that they must vacate by April 3, 2010. You must understand that condemnees have the protection of New York's Eminent Domain Procedure Law. You cannot even suggest a vacate date until you comply with the requirements of the law.

Those requirements include a notice of acquisition and a good faith advance payment. Then the date to vacate would be set by the condemnation court.

He added that "no roadway or access to a street or highway may be interfered with."

And it's about time...

From the Gotham Gazette:

When Henry Weinstein bought a commercial building at752 Pacific St. in Brooklyn 1985 he never expected that 20 years later the government would want to take it away and give to a developer. Weinstein said that he would be shocked if his land was being taken for a hospital, a bridge or a library. But seeing it seized to make way for Forest City Ratner's Atlantic Yards project shakes his faith in the government. "This is the most un-American thing I have ever experienced," he said.

As New York City has reshaped itself over the past decade, the government has given private developers, such as Forest City Ratner, a powerful tool -- an eminent domain law that allows them to seize land from other property owners. Now some politicians believe the law needs change to protect property owners, such as Weinstein.

Assemblyman Richard Brodsky has put together a package of legislation that would create a commission to review the state's eminent domain process, give land owners fair compensation for their property and establish an ombudsman who would help land owners whose property is targeted by eminent domain. Later this week Sen. Bill Perkins will unveil legislation that he says would change the state's eminent domain laws to better protect property owners. The situation in the legislature, along with a recent appellate court ruling that found the process the state used to take land for a Columbia University satellite campus in upper Manhattan was unconstitutional, could result in the first major changes to New York's eminent domain laws in more than 30 years.

The possibility that the state might finally redo its eminent domain laws -- laws that have remained the same as other states updated theirs -- has caught the interest of civil rights lawyers, property owners and advocates. But developers, real estate interests and some politicians fear changes could make it more difficult for the state to improve blighted neighborhoods in desperate need of investment, infrastructure and jobs.

According to attorney Michael Rikon, who represents property owners in the Willet's Point section of Queens, where the city is planning a major redevelopment, the term is so vague that the contractors used by the government basically make up formulas as they go along. "The definition of blight is so broad it could come down to cracks in the sidewalk. Even the mayor's townhouse could be blighted, because it only supports one family," he said.

Civil rights attorney Norman Siegel, who represents Tuck-It-Away, a storage company that is fighting Columbia University's expansion plans, agrees. "Basically they are saying if there is a Motel 8 and Hilton comes along and says they can make the property more valuable, then it [the Motel 8] can be declared blighted." Many advocates, Siegel said, have begun saying the land in these cases should not be labeled "blighted," but "coveted."

Siegel calls eminent domain one of the premier civil rights issues of this century. "I really think it is the civil rights issue of the 21st century. It disproportionately impacts poor neighborhoods and people of color. It cuts across partisan lines," he said.

Is change in NYS eminent domain law coming?

From the Architect's Newspaper:

...Now, a clutch of Albany pols are preparing to begin changing what some consider the worst eminent domain laws in the country.

Perkins and Alessi at an eminent domain hearing in Harlem earlier this month.
Tracy Collins

Leading the charge is state Senator Bill Perkins, whose district covers much of Harlem. “I think the forces are coming together for change to take place,” Perkins said. “There is, from my observation, growing interest on a grassroots level.” As chair of the Committee on Corporations, Authorities and Commissions, Perkins oversees the main executor of eminent domain in New York, the Empire State Development Corporation.

Among those joining Perkins is fellow senator James Alesi, a republican who represents the rural areas surrounding Rochester. “After many decades, it is time for an overhaul for what has become a double-edged sword of beneficial economic development but also deleterious theft,” said Alesi at a January 5 hearing held on eminent domain reform, the first of many planned in the coming months across the state.

As chair of the Committee on Corporations, Authorities and Commissions, Perkins has some oversight of the main executor of eminent domain in New York, the Empire State Development Corporation. The senator stressed that he has some ideas about how to address eminent domain, but he does not want to tip his hand this early and also hopes to gain insight and ideas from the public.

There were proposals aplenty, ranging from compensation reform to abolishing the ESDC. One of the most obvious suggestions was to essentially reverse *Kelo and outlaw the taking of private property for anything but use by the government. But given the power of real-estate interests in the state and the proclivity of certain politicians, *including Mayor Michael R. Bloomberg, toward development, such a provision is unlikely.

The simplest changes may affect eminent domain litigation. Numerous attorneys advocated for a more open legal process to allow landowners to challenge eminent domain proposals. In New York, all such cases forbid jury trials, a practice exercised by no other state. “You slip on the floor, you get a jury,” Michael Rikon said. “You have your property taken, you get nothing but a judge. Let the people decide what’s right and wrong.”

Gideon's Trumpet is not as optimistic, however:

"Our view of that thankless endeavor is that there will be eminent domain reform in New York when pigs learn to fly. That state has over a period of decades evolved such a kleptocratic legal culture that we have difficulty seeing what forces would take the lead in getting the legislature to make effective reforms. And as for New York judges, . . . Just read up on how judges are picked in New York. It’s all there in the archives of the New York Times.

So we offer our best wishes to the beleaguered New Yorkers trying to keep their property out of the clutches of local redevelopers, or at least to be fairly compensated when their property is taken. As that old, politically incorrect punchline from an old World War II joke went: Rots of ruck, guys."

Change is in the air

From the NY Times:

“I think people are really getting a foul smell from what’s been going on,” said Michael Rikon, a lawyer who represents business owners in the Willets Point section of Queens, where the city intends to condemn property to make way for a large redevelopment project.

Mr. Siegel said New York was the only state that did not permit people resisting condemnation to be heard at the trial-court level, where there would be an opportunity for discovery and cross-examination of witnesses.

A provision to require trial-level review could be part of new legislation being drafted by Mr. Perkins, said Amy Lavine, a staff attorney with Albany Law School’s Government Law Center, who is advising the state senator. At the top of her list is substituting a specific definition of blight for the current standard of “substandard and insanitary.”

One model might be Pennsylvania’s law from 2006, which permits a blight finding only when a substantial number of properties meet certain conditions like being “unfit for public habitation” or having been tax delinquent for two years. “It’s about making sure there are objective standards relating to public health and safety,” Ms. Lavine said.

Ms. Lavine said she also supported lengthening the 30-day time limit for mounting a condemnation challenge.

Senator Perkins, who quoted the conservative columnist George Will with approval at the public hearing, said he expected to build a bipartisan coalition to improve the condemnation process. “Eminent domain is like a gun to people’s head,” he said.

Saturday's Community Meeting of Eminent Domain Actions

Senator Bill Perkins holds Community Meeting of Eminent Domain Actions. Willets Point United participated as did our attorney, Mike Rikon.

WPU attends Senator Perkins' Community Meeting

WPU attended State Senator Bill Perkins' Community Meeting on Eminent Domain at Manhattan Pentecostal Church today.

WPU President Jerry Antonacci spoke about how the EDC is "reading from a script" since every few years the city or state comes up with an eminent domain-requiring development scheme for Willets Point.

Attorney Mike Rikon also spoke about how wrong the use of eminent domain is without a public use and to benefit private developers.

Attorneys Norm Siegel and David Smith, representatives of Develop Don't Destroy and the families fighting the Columbia University expansion also spoke.

Senator Perkins announced that his committee will be holding hearings on all of the currently proposed NYC projects that require eminent domain.

One goal of the meeting was to start a coalition to fight eminent domain abuse across New York State and members of all the groups present signed up to do just that.


Atlantic Yards Report has more.

WPU earns the support of State Senator Bill Perkins

This morning, WPU members Jake Bono, Jerry Antonacci and Len Scarola and WPU's attorney Mike Rikon, attended a meeting with Senator Bill Perkins who is leading the charge against Eminent Domain abuse in New York State. He expressed his support for our group's cause. More importantly, he will eventually push for legislation that would overhaul eminent domain law in NY State. He is the only elected official that has put his/her name to the possibility of such a reform.

WPU will be attending Senator Perkins' town hall meeting regarding the Columbia University development project THIS SATURDAY MORNING from 9:30 am - 11:30am (see the attached flier for more details). He stated that this type of local meeting is the beginning phase of his plan that will influence a climate of change with respect to eminent domain law and is CRITICAL to the eventual passing of any legislation in support of property rights. He plans on holding a meeting for each major current eminent domain case; Columbia U, Atlantic Yards & possibly Willets Point. He even expressed interest in holding a meeting on Didden vs. The Town of Port Chester. The purpose is to expose all the corruption involved with these cases. (A Willets Point hearing would require several days.)

Saturday, December 19th
Community Meeting on Eminent Domain
Manhattan Pentecostal Church
547 West 125th St
New York, NY 10027
9:30 AM - 11:30 AM

Taking our fight to the courts

Willets Point United has been busy filing court documents and making appearances.

Our attorney, Mike Rikon, filed an Amicus Brief in the Goldstein v. Pataki case which is being heard October 15th in front of the NY State Court of Appeals. The Empire State Development Corporation tried to block the brief, but it was admitted by the court (see below).



Also on August 21st, WPU's attorney, Michael Gerrard, challenged the city's environmental impact statement in front of NYS Supreme Court Justice Joan Madden and we are awaiting her decision. Here is our brief in that case.

Videos of City Hall Press Conference

Richard Lipsky and Michael Rikon

Bart Didden

Jake Bono

Arturo Olaya

Daniel Goldstein

Jerry Antonacci

Richard Lipsky joins WP United's team

WPU is pleased to have media relations expert Richard Lipsky join its world-class team of expert advocates, which already includes Michael Rikon, the top eminent domain attorney in New York State, and Michael Gerrard, the renowned environmental attorney.

WPU is confident that this team collectively will present the most formidable challenge imaginable to Mayor Bloomberg's intended land grab at Willets Point.

Press conference Monday at City Hall re: Sonia Sotomayor

Willets Point United joins other local neighborhood groups and workers to raise questions about the nomination of Judge Sonya Sotomayor

When: Monday, July 20th, 2009

Where: City Hall Steps

Time: 1:00 PM

Scores of local businesses, their workers, and neighborhood activists will be coming to City Hall on Monday to raise questions about the eminent domain views of Supreme Court nominee Sonya Sotomayor. Jerry Antonacci, the leader of Willets Point United, expresses the concern that the judge has shown a lack of empathy for small property owners, homeowners, and small businesses:

“The day has come where people are tired of being abused and tired of having their land, businesses and homes taken. 92% of Americans are against the use of eminent domain for the transfer of private property to another private use. We at Willets Point United are hopeful that Judge Sotomayor will come to see the groundswell of opposition around the country on eminent domain and take a hard look at her previous views. We hope Judge Sotomayor stands for the constitutionally guaranteed right to private property, and honors what the people want and not what developers want”.

Judge Sonya Sotomayor’s nomination to the Supreme Court of the United States has placed the issue of eminent domain front and center in the nomination process-as US senators have questioned her about her views; in particular a severely criticized decision in Didden v. Village of Port Chester that saw the judge rule adversely against the property rights of a local businessman.

In the Port Chester case, at least in the view of a number of respected legal scholars, the judge signed on to, “perhaps the worst federal court property rights decision in recent memory.” This decision, as well as Sotomayor’s equivocal responses to the questions on eminent domain posed in her hearing last week, is what is causing real concerns among the local New York groups; and the reason why they will be out in force on Monday.

Willets Point United is calling on Judge Sotomayor to come to Willets Point so she can see firsthand what the city wants to do to replace the 2500 hardworking-mostly immigrant-workers gainfully employed with the 250 local businesses facing eviction to make way for a private development. As Antonacci says,

“Property rights used to be sacred, but local governments, with the collusion of the Supreme Court in the Kelo case, have eroded this right-and it needs to be restored to its honored constitutional status. If they can take our businesses away than no one’s home is safe in this country from the reach of greedy developers and corrupt local elected officials. Our fight is the kind of fight that Sonya Sotomayor would have led when she worked for the Puerto Rican Defense Fund a few decades ago. We are calling on her to remember her roots and treat our rights with the respect they deserve.”

Michael Rikon, the eminent domain attorney for the Willets Point businesses, points out that Judge Sotomayor’s Didden decision is a cause for genuine concern:

“I found Judge Sotomayor’s explanation to the Senate Judiciary Committee lacking. She testified that the Didden case was barred by a statute of limitations problem in that the plaintiffs knew that the property was to be taken and did not act timely. That answer avoids addressing the issue of whether a private person could legally demand $ 800,000 from another private party just so the property owner could be able to avoid condemnation. I view Judge Sotomayor’s appointment to the Supreme Court as a threat to property rights.”

Willets Point United, along with the 2500 mostly immigrant workers, calls on Judge Sotomayor, now that she has returned to NYC, to come visit with them at the Iron Triangle to really discover the dangers that the abuse of eminent domain can cause; and to take a fresh look at this salient constitutional issue.

Senate must question Sotomayor on eminent domain abuse

From the Neighborhood Retail Alliance:

As the NY Times reported a few days ago: "Judge Sonia Sotomayor will doubtless be questioned about Kelo at her confirmation hearings next month. But her answers will be complicated by her participation in a 2006 decision applying and extending Kelo. Bart Didden, the property owner on the losing side of that decision, Didden v. Village of Port Chester, said in an interview that he had been contacted by aides to Republicans on the Senate Judiciary Committee who seemed eager to explore Judge Sotomayor’s views on property rights."

...the Didden case-and Sotomayor's decision-is grist for the Judiciary Committee's mill: "The ruling in Didden is not popular among some property rights and constitutional law professors. Eight of them filed a brief in 2006 unsuccessfully urging the Supreme Court to hear an appeal. “This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”

But, of course, we have our own ED issues here in NYC that would benefit from a little disinfecting sunlight; and our friends at Willets Point are right there in the forefront. The Willets Point United group, with its capable attorney Michael Rikon, are challenging the city's efforts to remove them from their properties.

The key issue here-and the one that the senate should be questioning Stotomayor on-is when is a public use not a public use. Bart Didden certainly has some ideas on this:

"The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion. Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place. “Here is a private person standing in the shoes of the government with the power to condemn or not condemn,” Mr. Didden said. “The $800,000 wasn’t going to rehabilitate a public park or build a soccer stadium. It was going into his pocket.”

We hope that the senate probes this issue thoroughly. There's a great deal at stake.