Perkins kicks off hearings on eminent domain reform

Sometimes a court decision can lead to a movement.

At least, this is what State Senator Bill Perkins, who represents Harlem, said at a public hearing on Tuesday about the status of Columbia’s planned campus expansion in Manhattanville.

The New York State Supreme Court recently threatened Columbia’s vision, and a movement for statewide reform that Perkins has announced may prove to be a further roadblock for the University, supporters say.

The first victory

Tuesday’s hearing came on the heels of the New York State Supreme Court, Appellate Division’s decision last month that declared eminent domain—the process by which the state can seize private property for “public use” in exchange for market-rate compensation—in the 17-acre expansion zone to be illegal, a major setback for the University’s campus development plans.

It was a surprising victory for Tuck-it-Away Storage owner Nick Sprayregen and gas station owners Gurnam Singh and Parminder Kaur, the last two private landowners in the expansion area who have not struck land deals with the University.

And University President Lee Bollinger said after the ruling that the project may not happen at all without eminent domain.

The Empire State Development Corporation—the state body that approved eminent domain for the project in December 2008—will appeal the decision to New York’s highest court, the Court of Appeals. Columbia is not a direct party in the case.

The start of a movement

In the wake of this victory, Perkins has spoken out against the state’s current procedures for invoking eminent domain. He wrote a letter last month to Governor David Paterson, CC ’77, urging him not to appeal last month’s Appellate Division ruling.

Soon after, he wrote a letter to the editor of the New York Times, criticizing a Times staff editorial that had called the court’s decision “weakly reasoned.” Perkins argued that the state’s process of invoking eminent domain “lacks accountability, transparency, or meaningful public participation.”

Tuesday’s public hearing drew Harlem residents, business owners, and University and state officials to the Adam Clayton Powell State Office Building. As part of a series of public hearings Perkins plans to hold, the meeting featured a slew of testifiers and witnesses who spoke to the need for legislation to reform the state’s eminent domain laws.

“Today is the first step in shifting the pendulum of power away from the unrestricted and abusive use of eminent domain back to a proper balance that protects the rights of tenants, property owners, and businesses,” Perkins said.

But now, Perkins has taken these criticisms beyond the domain of politicians and the media, soliciting input from the public as well.

In an interview after the hearing, Perkins said, “There’s a momentum building like I’ve never seen before. People are coming from all over to share, people from all over the state.”

Impetus for reform

In a 2005 case, Kelo v. City of New London, the U.S. Supreme Court ruled that land could be transferred from one private owner to another through eminent domain to promote “economic rejuvenation,” as Justice John Stevens wrote in his decision. Supporters of eminent domain have cited this case as precedent for the idea that the seizure of land for a private entity can still constitute “public use,” but Perkins said the ruling contained language that encouraged states to review their own eminent domain statutes.

Since then, 43 states have reformed their eminent domain laws, but New York has yet to do so, he said.

“The continued failure to pass reform will undoubtedly result in more eminent domain abuse, notwithstanding the road map that our case provides for other condemnees,” Sprayregen said at the hearing.

Further compelling the state to take action was the recent Court of Appeals ruling upholding the use of eminent domain for the Atlantic Yards development in Brooklyn.

While those in support of the use of eminent domain contend that this legal precedent should be applied to Columbia’s case, opponents argue that the two cases are very different.

The New York Times stated in its editorial criticizing the Manhattanville ruling that the ruling is contradictory and “out of step with eminent domain law.”

This reflects an underlying dilemma in New York’s judicial system: As court rulings continue to contradict each other, what is the role of legal precedent in eminent domain cases—or does it have a role at all? This was one of many systematic ambiguities that Perkins said needed to be addressed.

Conflicts of interest?

Unclear precedents are problematic, but conflicts of interest in eminent domain cases have also created urgent needs for systematic reform, Perkins said.

The ESDC hired Allee, King, Rosen, and Fleming to conduct the blight study used to determine whether Manhattanville was in an economic condition beyond the potential for natural repair, thus justifying state seizure of properties for the public good. But the firm was also hired by the University to assist in preparing the expansion plan and an environmental impact statement.

Perkins questioned ESDC’s rationale for choosing AKRF given this potential conflict.

“If they [AKRF] say blight over here, and you hire them to do the same study, why use the same consultant and make it so colluded?” Perkins asked. “There are no other firms in the world who can do this?”

ESDC representatives countered that there was no such “collusion,” maintaining that their decision to hire AKRF had to do with what they saw as its unparalleled ability to carry out the blight study, pointing to the firm’s large staff and its unmatched level of expertise.

ESDC General Counsel Anita Laremont said that blight “is not a static kind of measurement that can be provided with specific criteria and different factors in a specific environment,” and explained the importance of selecting a firm that can accurately determine “quantity-driven” data. “We would be very happy if there were more capable firms,” she added.

Perkins also asked about AKRF’s track record concerning blight studies, to which Laremont responded that to her knowledge, the firm has ruled affirmatively in all cases. She added that ESDC hired another firm, Earth Tech, to conduct a secondary study of the area, which likewise ruled affirmatively.

“That’s unfair—you could have just gone with Earth Tech and we wouldn’t even be having this conversation,” Perkins responded. “I want to make sure you understand that there are others who can give you the product without the controversy.”

He called ESDC’s decision to hire the same firm as the University “an Achilles heel in terms of public perception.”

Perkins said in an interview after the hearing, “I’m not sure if they don’t get it, or if they get it and they’re trying to get away with it.”

Later testifiers called for reform to prevent such potential conflicts of interest from occurring again.

Tom DeMott, a member of the local activist group Coalition to Preserve Community, added, “The very possibility of conflict of interest should be taken out of the realm of the process.”

And while Columbia is not a direct party to the case, Maxine Griffith, the University’s executive vice president of government and community affairs and special advisor for campus planning, and Marcelo Velez, associate vice president for Manhattanville capital construction in Columbia University facilities, testified at the hearing. Griffith said that legal issues were out of her area of expertise when questioned about the matter. She told Perkins that the University would get back to him on questions that could not be answered at the hearing, and that a future meeting would be set up to discuss unresolved details.

A need for clarification

Beyond reforms to the blight study process, Perkins said there was also a need for clarification of the definition of blight itself—or lack thereof.

Perkins and many testifiers at the meeting asserted that the state’s blight definition is vague, which he said is problematic given blight’s pivotal role in eminent domain cases. Without reaching an agreement with the two holdouts, Columbia was forced to rely on eminent domain to build on those sites, and eminent domain can only be invoked if the area is designated as blighted.

“Our state’s blight statutes need to be clarified and updated,” Sprayregen said. “As things stand now, an agency can pretty much declare any neighborhood to be blighted.”

Morningside Heights resident Joel Griffiths criticized the University for, he said, imposing a blight definition on the neighborhood.

“Even if the criterion of blight is used, the New York State Supreme Court decision makes clear that the determination of blight in this case was a fraud, and that, rather, Columbia was engaged in the process of blight creation—hopefully not an example of the public good it is expected to perform,” he said.

Laremont from the ESDC acknowledged during the questioning session that the blight study “doesn’t include the opinions of property owners,” but is determined by a board of people who rarely examine “the scene of the crime,” instead relying on photographs to make their judgments. These judgments explain the ESDC’s July 2008 decision to declare Manhattanville blighted.

When explaining the blight designation at the time, the ESDC said, “The high percentage of lots with deteriorating, insanitary and/or underutilized property conditions indicates that the Project Site has been suffering from long-term poor maintenance and disinvestment,” preventing “the integration of the Project Site into the surrounding community.”

“The blight studies have evolved over time,” Laremont said in the hearing, explaining that they did not begin as a criterion, but rather became a part of the process for the purpose of documentation.

Still, testifiers questioned ESDC’s use of the term, pointing to its continually changing definition in order to meet the needs of its beneficiaries. University officials did not say anything in regards to blight designation at the hearing.

“‘Blight,’ an important word in eminent domain law, doesn’t mean ‘blight’ anymore, since the majority of the property in the city now qualifies as blighted,” Michael White, CEO and managing director of the blog Noticing New York, said. “‘Blight’ now simply means any land coveted for by a developer.”

Just the beginning

Though the number of attendees at the hearing dwindled by the third hour, the calls for reform did not.

Among the many reforms suggested, Ruth Eisenberg, a member of the Coalition to Preserve Community, called on the state to prohibit the use of eminent domain on affordable housing units, though Columbia has promised not to seek eminent domain on residential buildings in the area. She also suggested that property owners affected by eminent domain be compensated at the rezoned value of their property—not its market value at the time of acquisition.

DeMott called for complete disclosure of all eminent domain correspondences.

Perkins emphasized that, while proposed reforms are promising, it will be a long road ahead. towards achieving legislation that will incorporate these reforms.

“This is not like instant rice. It’s going to be an uphill battle,” he said, but added, “We’re going to win, without a doubt.”