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 Jan. 6 about the status of Columbia’s planned campus expansion in Manhattanville.
The New York State Supreme Court, Appellate Division recently threatened Columbia’s vision with a surprising court decision not in their favor. Now, a movement for statewide eminent domain reform that Perkins has announced may prove to be a further roadblock for the University, supporters say.
The first victory
The Jan. 6 hearing came on the heels of the New York State Supreme Court, Appellate Division’s 3-2 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 Self-Storage owner Nick Sprayregen and gas station owners Gurnam Singh and Parminder Kaur, the last private landowners in the expansion area who have not struck land deals with the University.
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—appealed the decision this month 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 Gov. David Paterson, CC ’77, urging him not to appeal the 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.”
The public hearing in January 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.
In an interview after the hearing, he commented, “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 in a 5-4 decision that land could be transferred from one private owner to another through eminent domain to promote “economic rejuvenation,” as Justice John Paul 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 not, he said.
Under New York State Eminent Domain Procedure Law, prior to a property’s acquisition the condemnor must hold a hearing with the affected property owners, who can then file a petition to raise an appeal at the Appellate Division of the State Supreme Court. But many advocates of reform assert that New York state law should offer a trial prior to the case reaching the Appellate Division, as they say most other states do.
“Anybody who is threatened with loss of property should have the right to a trial—it’s an unconstitutional taking,” David Smith, Singh’s and Kaur’s attorney, said in an interview after the hearing, explaining that according to the state’s current law, “you don’t have the right to question the other side. It’s outrageous.”
Sprayregen said at the hearing, “The continued failure to pass reform will undoubtedly result in more eminent domain abuse.”
Further compelling the state to take action was the recent 6-1 Court of Appeals ruling upholding the use of eminent domain for the Atlantic Yards development in Brooklyn. Atlantic Yards is a mixed-use commercial and residential development.
“Since the decision [in the December Appellate Court case] was 3-2, there were two judges who did in fact think that the state should win the case, and when this case gets to the Court of Appeals, one possibility is that they will decide it is consistent with Atlantic Yards and reverse the decision,” Lance Liebman, a Columbia Law School professor and director of the Parker School of Foreign and Comparative Law, said in an interview after the hearing.
While those in support of eminent domain use in Manhattanville contend that the legal precedent of Atlantic Yards should be applied to Columbia’s case, opponents argue that the two cases are distinct, citing such differences as the methodologies used to conduct the blight studies and the blight findings themselves.
But the New York Times, which used ESDC to invoke eminent domain in order to develop its new headquarters in Midtown, stated in its editorial criticizing the Manhattanville ruling that the decision was “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 reform, Perkins said.
The ESDC hired the consulting firm Allee King Rosen and Fleming (AKRF) to conduct a blight study, which was 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 University also hired AKRF 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 “empirical” 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, and it also ruled affirmatively.
“That’s unfair—you could have just gone with Earth Tech and we wouldn’t even be having this conversation,” Perkins responded, adding 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.”
Tom DeMott, a member of the local activist group Coalition to Preserve Community, testified for reform, saying, “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 facilities, also testified at the hearing.
When questioned, Griffith said that legal issues were outside her area of expertise. She told Perkins that the University would get back to him on questions that could not be answered at the hearing.
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.
Sprayregen, who called for updated language, said, “As things stand now, an agency can pretty much declare any neighborhood to be blighted.”
The problem is historically rooted, some argue.
“Particular legal criterion should have been rethought years ago,” Julia Vitullo-Martin, a senior fellow at the Manhattan Institute and director of the Center for Rethinking Development, said in an interview after the hearing.
“The blight analysis comes out of Berman v. Parker, and it was rather cavalierly set out in that decision,” she added, referring to the U.S. Supreme Court’s unanimous 1954 ruling that declared private property could be taken for a public purpose with just compensation.
Further complicating the matter is federalism, a cornerstone feature of American government in which sovereignty is divided between state governments and the federal government.
“The United States Supreme Court has not insisted that eminent domain can only be used on something that’s an ugly slum—eminent domain can be used to pursue a public policy of economic development that dates back to the first case in the Supreme Court,” Liebman said. “That’s the question of national, constitutional law. The states are free to decide how they define blight.”
ESDC’s Laremont 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.
In defending the blight designation at the time, an ESDC statement 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.”
“The blight studies have evolved over time,” Laremont said at the hearing. They did not start out as a requirement, but rather became a part of the process for the purpose of documentation.
University officials did not say anything with regard to blight designation at the hearing.
Michael White, CEO and managing director of the blog Noticing New York, said at the hearing that the term “blight” has lost meaning, and “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.
DeMott called for complete disclosure of all eminent domain correspondences.
And Vitullo-Martin said that while reforms are important, it is also necessary to convince the public of the importance of a project.
“Eminent domain always combines the legal questions with the political ones, and for eminent domain to be successful in America, both sets of criteria have to be met,” she said.
Perkins emphasized that, while the proposed reforms are promising, it will be a long road ahead toward achieving legislation that incorporates these ideas.
“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.”
kim.kirschenbaum@columbiaspectator.com
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