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.”
If you own a piece of property in New York State, you won’t like today’s ruling by the state’s high court.
The New York Court of Appeals—that state’s highest court—today overturned a lower court’s ruling that had blocked the New York State Urban Development Corporation from using eminent domain to take property away from a group of small-business owners in upper Manhattan and turn it over to Columbia University for private development. Today’s decision comes on the heels of the court’s decision last year in Goldstein v. Urban Development Corporation, which allowed homes and businesses in Brooklyn to be turned over to wealthy developer Bruce Ratner to build luxury condominiums and a basketball arena.
“Once again, New York’s courts have completely ignored the abuse of power by government bureaucrats and politically connected developers,” said Dana Berliner, a senior attorney at the Institute for Justice. IJ litigates nationwide against eminent domain abuse and filed a brief with the Court in favor of Harlem property owners. “The sad truth is that, in New York, the government not only can hand your property over to private developers for no better reason than that it likes them more than it likes you, but it does so on an alarmingly regular basis.” Last year, IJ catalogued the staggering rate at which properties are taken for private use in the Empire State in a report, Building Empires, Destroying Homes, available at www.ij.org/BuildingEmpires.
According to another report by the Institute for Justice on eminent domain abuse in New York, titled Empire State Eminent Domain: Robin Hood in Reverse, eminent domain abuse disproportionately targets those who are less well-off and less educated, as well as ethnic and racial minorities—populations least able to fight back and thus most in need of protection from abuse. In New York, more than elsewhere in the country, this means taking from the poor to give to the rich. A copy of that report is available at: http://www.ij.org/3045.
A lower court had previously refused to allow the condemnations to go forward, noting that the state agency’s assertion that it was taking the properties to eliminate “blight” was clearly nothing but a pretext for using government power to further Columbia’s pre-existing expansion plans. In today’s ruling, Kaur v. New York State Urban Development Corporation, Judge Carmen Ciparick wrote that the lower court should not have looked so closely at the agency’s blight findings, which should be “entitled to deference by the judiciary.”
“In other words, the court is saying that judges shouldn’t judge,” said IJ President and General Counsel Chip Mellor.
Associate Judge Robert S. Smith concurred in the result, noting that he was bound by the court’s earlier decision in the Goldstein case. “The finding of ‘blight’ in this case seems to me strained and pretextual,” Judge Smith wrote, “but it is no more so than the comparable finding in Goldstein.”
“No one taking a fair look at the state’s finding of ‘blight’—which is based on a report that was commissioned years after Columbia decided it wanted these properties—could think it is anything but a pretext for handing over these properties to another private owner,” explained Robert McNamara, an Institute for Justice staff attorney. “This isn’t judicial ‘deference.’ It’s judicial blindness.”
The New York opinion comes only one day after the fifth anniversary of the U.S. Supreme Court’s ruling in Kelo v. City of New London. That opinion—which allowed the government to condemn homes in the name of “economic development”—spurred a national backlash, leading to legislative changes and court decisions providing property owners with greater protection in 43 states. Political and judicial leaders in New York, however, have refused to reform their eminent domain laws, which are among the worst in the nation. More information on the post-Kelo backlash is available at: www.ij.org/KeloAt5.
“New York remains one of only seven states that has failed to provide any legislative reform of eminent domain, and it is the only state whose highest court has allowed private property to be taken for private use since the Kelo decision,” explained Christina Walsh, IJ’s director of activism and coalitions. “Every state high court to hear an eminent domain case since Kelo has applied greater judicial scrutiny—every state, that is, except New York. The New York Court of Appeals is the only state high court that gives complete and abject deference to the actions of condemning agencies, no matter how suspicious.”
“Today’s decision confirms what we already knew: Judicial review of eminent domain in New York is fundamentally broken,” concluded McNamara. “Unless the Legislature takes meaningful steps to protect property rights, New York property owners will find themselves out in the cold—in some cases all too literally.”
43 State Legislatures & Many State Supreme Courts Reject Ruling, Act to Protect Property from Eminent Domain Abuse
Arlington, Va.—Kelo was the U.S. Supreme Court ruling that became the property rights shot heard ’round the world. Wednesday marks its fifth anniversary.
In the merely five years since that infamous ruling, the vast majority of state legislatures, many state supreme courts and the public itself have acted to limit Kelo, which took away the homes of seven New London, Conn., families for private development and sparked a nationwide backlash against eminent domain for private gain.
And what now stands on the land where 75 homes once stood around Susette Kelo’s little pink house? Nothing but barren fields, weeds and feral cats. Ten years lost and more than $80 million in taxpayer money spent. Even Pfizer, which received massive corporate welfare to move to New London and sparked the abuses of eminent domain, has now announced that it will close its research and development headquarters and leave New London.
These dramatic changes are addressed in a new report issued today by the Institute for Justice: “Five Years After Kelo: The Sweeping Backlash Against One of the Supreme Court’s Most-Despised Decisions,” available at: www.ij.org/KeloAt5. IJ also created a brief video (available at www.ij.org/KeloAt5Video) outlining the successes in the five years since the Kelo ruling.
“For property owners nationwide, Kelo remains the classic example of losing the battle but winning the war,” said Scott Bullock, an Institute for Justice senior attorney who argued the case on behalf of the homeowners. “After the Supreme Court completely abdicated its role as guardian of rights under the U.S. Constitution, there has been an unprecedented public revolt against the decision in terms of public opinion, citizen activism, legislative changes, state court decisions and lessons learned from the New London debacle. More work needs to be done, but the results of the Kelo backlash have been striking. The Institute for Justice used to get continual requests for assistance in fighting eminent domain for private gain. Now, we receive far fewer and, of those, many are defeated by activism in the court of public opinion before they ever reach a court of law.”
In the five years since Kelo was handed down:
* 43 states have passed either constitutional amendments or statutes that reformed their eminent domain laws to better protect private property rights. Although the quality and type of reform varies, the bottom line is that virtually all of the reforms amount to net increases in protections for property owners faced with eminent domain abuse. (For a state-by-state grading of all state eminent domain reforms, see: http://castlecoalition.org/57.) * Nine state high courts restricted the use of eminent domain for private development while only one (New York) has so far refused to do so. * Kelo educated the public about eminent domain abuse, and polls consistently show that Americans are overwhelmingly opposed to Kelo and support efforts to change the law to better protect property rights. Among the most-recent surveys was one conducted by the Associated Press, which found 87 percent of respondents said government shouldn’t have the power of eminent domain for redevelopment, 75 percent opposed government taking private property and handing it over to a developer, and 88 percent of respondents said property rights are just as important as freedom of speech and religion. * Citizen activists defeated at least 44 projects that sought to abuse eminent domain for private gain in the five-year period since Kelo.
“This significant public opposition to eminent domain abuse led to a complete change in the public’s view on this issue,” said Christina Walsh, IJ’s director of activism and coalitions. “Although public officials, planners and developers in the past could keep condemnations for private gain under the public’s radar screen and thus usually get away with the seizure of homes and small businesses, that is no longer the case.”
“One of the other reasons for this fundamental shift in eminent domain policy has been the response of state courts to Kelo,” said Dana Berliner, an IJ senior attorney and co-counsel in the Kelo case. “When the U.S. Supreme Court decided not to correctly interpret the U.S. Constitution, the state high courts began to fill that void. For example, the courts in Hawaii, Ohio, New Jersey and Pennsylvania—all states that used to regularly abuse eminent domain—each decided that, unlike the U.S. Supreme Court, they would closely scrutinize municipal takings and prevent unconstitutional abuses.”
There is one significant exception to this good news for property owners in state courts—New York. The Court of Appeals (New York’s highest court) routinely ignores evidence of eminent domain abuse, refusing to give the facts any real scrutiny. The Court of Appeals does have a chance to redeem itself in another challenge to a completely trumped-up claim of blight, combined with concealment of relevant evidence, in another case currently pending before it involving the use of eminent domain to expand Columbia (a private university) in Harlem. New Yorkers can only hope the Court of Appeals will remove its head from the sand before reaching its final decision.
“Even though the Fort Trumbull neighborhood was lost, Susette Kelo’s little pink house, where this fight all began, still stands, now in downtown New London about one mile away from Fort Trumbull,” said Chip Mellor, president and general counsel of the Institute for Justice. “Like Betsy Ross’ house in Philadelphia and Paul Revere’s home in Boston, Susette Kelo’s pink cottage stands as a monument to her and her neighbors’ struggle, one that has changed this nation for the better.”
For a compelling account of the history and back-story of the New London controversy, read Jeff Benedict’s “Little Pink House: A True Story of Defiance and Courage” published in 2009 by Grand Central Publishing.
Willets Point Group Claims Cuomo Delay by Michael Howard Saul Wall Street Journal, 6/22/10
Queens property owners battling Mayor Michael Bloomberg's effort to redevelop the area near Citi Field are accusing Attorney General Andrew Cuomo of dragging his feet in a yearlong investigation into whether a city-funded corporation broke state law by lobbying for the plan.
The controversy surrounding the Flushing Willets Point Corona Local Development Corp. has exposed friction between aides to Mr. Bloomberg and Mr. Cuomo over how quickly the city handed over documents to state investigators.
In a June 17 letter reviewed by The Wall Street Journal, the Willets Point property owners demanded Mr. Cuomo, who is running for governor, respond to their allegation that the corporation, led by former Queens Borough President Claire Shulman, conducted an extensive lobbying effort in violation of state law. Ms. Shulman denied any wrongdoing in an interview.
"We're getting a little frustrated on what's taking so long and why he's not acting more quickly," said Jerry Antonacci, president of Willets Point United Inc., the group that filed the complaint against Ms. Shulman's corporation.
"There is no reason for a delay in this."
Mr. Antonacci said he believes politics might be at play because, in his view, it's an open-shut case. "I do feel there's some behind-the-door politicking going on," he said. "That's what I feel in my gut."
Richard Bamberger, a spokesman for Mr. Cuomo, said, "It's an ongoing investigation and therefore it would be inappropriate to comment."
The attorney general's office has complained about the speed with which the city has responded to requests for information.
The final batch of requested documents from the city arrived at Mr. Cuomo's office last week, a person familiar with the probe said. And Mr. Cuomo's office still needs to interview additional witnesses, the person said.
Terri Sasanow, senior counsel at the city's law department, said, "The city has fully compiled with all document requests from the attorney general."
Willets Point, a 62-acre site that is adjacent to Flushing Meadows Park and Citi Field, is filled with scrap yards and auto- repair shops. The mayor's plan, approved by the City Council in 2008, calls for a massive cleanup and the creation of 5,500 housing units and eight acres of parks and playgrounds. The business owners in Mr. Antonacci's group don't want to sell their properties to the city.
Ms. Shulman's corporation received hundreds of thousands of dollars in both public and private money to build support for Mr. Bloomberg's plan. State law prohibits local development corporations, such as the Ms. Shulman's, from attempting to "influence legislation by propaganda or otherwise."
"We did everything in good faith and we continue to believe that," Ms. Shulman said. "It's a good project," she added, referring to the mayor's plans for the area. Ms. Shulman admitted she and her group engaged in lobbying.
"Did we go to speak to members of the City Council? Yes, we did," she said. "We hired lobbyists."
Bob Bishop, an attorney for Ms. Shulman's corporation, said that he believes state law prohibits lobbying of the Legislature. Since Ms. Shulman lobbied the City Council, he said, "the activity is not illegal."
"We are waiting for guidance from the attorney general," he said.
Last year, the City Clerk imposed a $59,090 fine against the corporation because Ms. Shulman failed to register as a lobbyist.
At the time, it was the largest fine issued by the City Clerk for lobbying activity.
Live television: Jake Bono of Bono Sawdust appears on Fox News Channel's "It's Your Land" series, June 13, 2010. The City of New York intends to forcibly evict the property owners and 250 businesses, including Bono Sawdust, from the Willets Point neighborhood, then give the 62 acres of property to an as-yet-unidentified private party that is preferred by the City. Bono Sawdust is a third-generation business that has owned property and operated successfully at Willets Point for more than 70 years, and is not interested in leaving. Bono is a member of Willets Point United Inc., a coalition of property owners who are opposed to the City's plan to forcibly acquire their properties.
This video has been minimally edited to reduce certain introductory material that does not pertain to Bono or to Willets Point.
“This is not to disrespect the flag or America," says Jake Bono, "this is a symbol of when your property or life is in distress. Americans are supposed to turn the flag upside down in this way."
Bono sits in the office of the building built by his grandfather, the feisty and pugnacious 34 year old wearing a blue tee-shirt emblazoned with an upside-down American flag and the words: "Distressed Americans."
Another small upside down flag is hanging on the wall, and for Jake and his family business, Bono Sawdust Supply, you can't help see his frustration, disappointment, and shaken faith in our system that he holds so dear. He fears that he and his family's legacy will fall victim to eminent domain.
"This is not what the founding fathers, this is not what is supposed to happen here in America," he says. "This is mind-boggling to us."
For 77 years, since his grandfather and two uncles founded the company in 1933, the family firm has manufactured saw dust for industrial uses. There are only a handful of such firms in the nation, and he says his is the last in New York State. Now the City of New York wants him, and other property owners, out of the 62 acre area known as Willets Point, a run-down and dusty industrial area in the shadow of the new Citi Field baseball stadium of the New York Mets. The government plans to rehabilitate the area.
Bono and 21 others are waging a long battle. The city government wants to tear down Willets Point, and build a new development of housing, parks, and recreation facilities. In order to do that, the city is threatening to use eminent domain against Bono and the property owners who refuse to sell.
"If it was a road or a hospital, or something that was needed," says Bono, "we would say we had bad luck and we would not be trying to hold on to what is ours," he says. "What it means to us is everything. It's everything that you work for...How could you not feel safe in our house? How could you not feel safe in your business, that one day the city, if they feel like putting something else there, could just take it away from you?," he asks, saying he should not be in the position of being forced to move his business.
"It's not about why can't I move, why don't I have my rights?" he asks.
"What we'd love to see, aside from not getting evicted at Willets Point, is for the state to change the law," says Richard Lipsky, a lobbyist and media consultant who advises the holdout property owners who have formed the group, Willets Point United. He says the state should "create a definition for what blight is, and what public use is, and offer some protections which don't exist under New York State law today."
While officials praise the planned development, others like Bono remain with a shadow over their future. He knows, under the law, that the government can pay him what is considered a 'fair market value" for his property, whether he likes it or not.
"They're not going to win," he vows. "They're going to try hard, but they are not going to win...We have to fight for our lives to keep what is ours."
The Fox News segment (which does not yet appear on the website) will be running periodically on the air throughout the coming days.
The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.
Willets Point Watchdog
"Sunlight is the best disinfectant."
Thomas Jefferson, founding father of the United States:
"The same prudence which in private life would forbid our paying our own money for unexplained projects, forbids it in the dispensation of the public moneys."
John Adams (Founding Father & 2nd President of the United States):
"The moment the idea is admitted into society that property is not as sacred as the laws of God, and there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be sacred or liberty cannot exist."
Under the plan of Mayor Michael Bloomberg, The Bullpen Shop is to be demolished and its property forcibly acquired via eminent domain, to enable the Mayor's controversial $4,000,000,000.00 legacy development project.
Corporations, Authorities and Commissions Public Hearing - 1/5/10
From the NY Times:
