Statement of Michael B. Gerrard at EDPL Public Hearing

Statement of Michael B. Gerrard
Arnold & Porter LLP
On Behalf of Willets Point United and Individual Property Owners
EDPL Public Hearing on Willets Point Development Plan
March 2, 2011

The City’s proposed actions violate the law in at least four separate ways:
1. The City’s proposed actions violate binding pledges that the City previously made to the New York Supreme Court, on which the Court relied.
2. The City’s proposed actions amount to segmentation, which is impermissible under the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR).
3. The City’s failure to prepare a supplemental environmental impact statement violates SEQRA and CEQR.
4. The City’s proposed actions are a violation of federal law -- the National Environmental Policy Act (NEPA).
As a result of these numerous violations of law, my clients Willets Point United and individual property owners who are members of WPU plan to institute legal action against the City in New York Supreme Court.

Violations of Pledges to Court
In the Ardizzone v. Bloomberg litigation, Robert Lieber, Deputy Mayor for Economic Development, submitted an affidavit dated June 29, 2009 in which he stated in Paragraph 20, "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."

In her decision of August 16, 2010 deciding the case, Justice Madden stated (on pp. 18-19), "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."

Thus the City represented to the court, in a sworn affidavit, that it would not take my clients’ property by eminent domain until the FHWA has approved the ramps. Counsel to the City told the court at oral argument that the project cannot proceed unless the ramps are approved. The court relied on these representations. They are binding on the City.

Moreover, the attempt to condemn properties prior to approval of the ramps violates several statements made in the Final Generic Environmental Impact Statement:
“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 has maintained communication and close coordination with NYSDOT from the inception of the project, outlining a range of conceptual design options and working with options that NYSDOT determined were preferable. It is fully expected that such approvals will be obtained and the design will be progressed in light of design suggestions to be made by both NYSDOT and the FHWA. Furthermore, the proposed ramps are an integral part of the Willets Point Development Plan. The developer’s agreement would stipulate that following approval of the Van Wyck Expressway ramps but prior to completion of ramp construction, no buildings would be occupied unless the developer demonstrates that earlier occupancy of such buildings would not result in significant adverse impacts that have not already been described in this GEIS.” – Willets Point FGEIS, Chapter 29, Section 17 (Traffic and Parking), Response 17-6, September 12, 2008.

The FHWA has not approved the ramps. Nor has the New York State Department of Transportation (NYSDOT), whose approval is also needed.

Segmentation
The City’s Technical Memorandum for the Willets Point Development Plan FGEIS, Updated Plan, February 10, 2011 (“TM004”), makes clear that the City intends to proceed with the full plan for Willets Point, and that the construction of ramps connecting with the Van Wyck Expressway is an essential part of this plan. (E.g., -- “the City remains committed to the new Van Wyck connections,” TM004 p. 5; “Like the Approved Plan, the Updated Plan would include new connections to the Van Wyck Expressway,” TM004 p. 7.) The City has been pledging for years that this approval was imminent, but it has not arrived, and it is obviously nowhere in sight. Thus the City has violated its pledges to the Court and its representations in the FGEIS, and in desperation is attempting to start the project without this essential approval.

It is also attempting to start the project with no one having any clear idea what impacts the project would have with the ramps. There are two prior analyses by the City of traffic conditions with the ramps -- the FGEIS and the Access Modification Report (AMR). As we have previously shown in detail, the results of these two studies were radically different. No further illumination is supplied in TM004, yet the City wants to go forward with the condemnation.

The SEQRA regulations prohibit considering only a part or segment of an action. 6 N.Y.C.R.R. § 617.3(g)(1). The City’s current attempt is remarkably similar to a situation that the New York Court of Appeals found to be impermissible segmentation, where the reconstruction of a highway interchange was closely linked to the widening of the one of the highways connecting there, but the two efforts were not considered together. Village of Westbury v. Department of Transportation, 75 N.Y.2d 62 (1989). Numerous subsequent decisions have likewise struck down the comparable segmentation of intimately linked undertakings. E.g., AC 1 Shore Road, LLC v. Incorporated Village of Great Neck, 43 A.D.3d 439 (2d Dept. 2007); Long Island Pine Barrens Society, Inc. v. Town Board of Riverhead, 290 A.D.2d 448 (2d Dept. 2002); City of Buffalo v. New York State Department of Transportation, 184 Misc.2d 243 (Sup.Ct. Erie Co. 2000).

The Appellate Division has previously endorsed the consideration of modifications to a highway access ramp as part of the underlying project. Coalition Against Lincoln West Inc. v. Weinshall, 21 A.D.2d 215 (1st Dept. 2005), leave to appeal denied, 5 N.Y.3d 715 (2005). That was not done here, as it should have been.

Failure to Prepare Supplemental EIS
SEQRA requires a supplemental EIS whenever there are significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from changes proposed for the project, newly discovered information, or a change in circumstances related to the project. 6 N.Y.C.R.R. § 617.9(a)(7)(i).

All of these situations are present here. The attempt to institute condemnation without the essential approvals for the Van Wyck ramps is a change to the project, and a change in circumstances; the inability to obtain the essential approvals by now, despite the City’s promises that they would be in hand, is newly discovered information. A supplemental EIS is required.

The need for a supplemental EIS is especially compelling where, as here, there have been substantial unexplained discrepancies between the City’s two prior studies of the traffic implications of the ramps -- the FGEIS and the AMR -- and the public should have a full opportunity to comment. That opportunity has not been provided under SEQRA. Making matters worse, TM004 does not provide the information necessary to understand these discrepancies, and the City has failed to fully answer numerous Freedom of Information Law requests aimed at obtaining the documents that would
illuminate this and other questions. This hearing is premature in the absence of full compliance with FOIL.

Further enhancing the need for a supplemental EIS are the admissions in TM004 that many of the significant traffic impacts of the revised project are unmitigatable (Appx. C p. 13), and that there would be numerous significant adverse impacts on the Van Wyck mainline and existing ramps (Appx. D p. 31).

Violations of NEPA
Since the Van Wyck ramps are an essential part of the project, and they require federal approval, the project is subject to NEPA. The City has long acknowledged the applicability of NEPA. See, e.g., TM004 p. 4.

NEPA, like SEQRA, prohibits segmentation. 40 C.F.R. § 1508.25. That prohibition has been violated here.

We will submit more detailed comments during the written comment period.

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.

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.