News | West Harlem

Precedent uncertain for eminent domain lawsuit

Columbia’s Manhattanville expansion plan seemed to be approaching the finish line, but last December, the New York State Supreme Court, Appellate Division threw a wrench in the plans, deeming the use of eminent domain for the project illegal.

On June 1, the Court of Appeals—the highest court in New York—will re-examine whether the state can, on Columbia’s behalf, seize private property for the “public good” in exchange for market-rate compensation. The fate of eminent domain could determine the fate of the expansion.

Many players hoping to predict the outcome have turned to the November 2009 Goldstein v. New York State Urban Development Corporation case, in which the Court of Appeals upheld the use of eminent domain for the Atlantic Yards commercial development in Brooklyn.

To some, the link seems clear: If the Court of Appeals forbade eminent domain in Manhattanville, they argue, it would violate its own precedent. But the plaintiffs here say the legal issues and the projects on the whole are very different.

The original plan

In 2003, the University proposed a 17-acre campus in West Harlem. Today, it owns about 91 percent of the land, but there are five parcels whose owners have refused to sell: three Tuck-It-Away Self-Storage buildings owned by Nick Sprayregen, and two gas stations owned by Gurnam Singh and Parminder Kaur.

In December 2008, the Empire State Development Corporation approved the use of eminent domain on Columbia’s behalf, but Sprayregen, Singh, and Kaur challenged the decision.

On Dec. 4, 2009, the Appellate Division struck down ESDC’s approval in a sharply worded opinion by Justice James Catterson, who wrote, “The process employed by ESDC predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and … precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court.”

Columbia claims the project constitutes a public use because it will create jobs and scientific research facilities. And while eminent domain had traditionally been used for explicitly public purposes—to build a highway or a bridge, for instance—the U.S. Supreme Court affirmed in 2005 in the landmark Kelo v. City of New London case that it can also, under certain conditions, be used to transfer property from one private owner to another.

An ESDC-commissioned “blight study” concluded in July 2008 that Manhattanville was in a condition of economic disrepair beyond the potential for natural relief. But opponents argue that the blight is only on University-owned properties, and point to the fact that AKRF—the company ESDC hired to conduct the blight study—was also a consultant for the University. This, they argue, constitutes “collusion” between Columbia and ESDC and biased the results of the study.

The brief that Norman Siegel and David Smith—the attorneys for Sprayregen and Singh/Kaur, respectively—submitted to the Court of Appeals in April states, “ESDC hired Columbia’s consultant AKRF to find a basis for blight, which two courts [the State Supreme Court for New York County and the Appellate Division] concluded was a conflict of interest and likely to be biased.” The brief argues further that the bases for “participation as a ‘civic’ project are legally unprecedented and padded with other alleged ‘civic purposes’ that are clearly extraneous to the purpose for which the facilities are to be built.”

In June 2007, Justice Shirley Werner Kornreich of the State Supreme Court ordered ESDC to release documents concerning the possible collusion to Sprayregen and Siegel, who had requested them through the Freedom of Information Law. ESDC eventually did so, but only after the deadline for submitting documents for inclusion in the Appellate Division case had passed. Siegel argues that this violated Sprayregen’s due process rights, as it prevented him from submitting all the relevant information for the court’s consideration.

The Appellate Division sided with eminent domain opponents on the public use and collusion points. In the Atlantic Yards case, the Court of Appeals ruled oppositely on public use, but collusion was not an issue there. Siegel cited this as a crucial difference between the cases.

Substantive differences?

Another difference between Manhattanville and Atlantic Yards, Siegel said, is the “substantial affirmative record” he and Sprayregen compiled that went far beyond a simple response to ESDC’s claims.

“We put in thousands of pieces of paper that were our documents, and the most outstanding one was the ‘no-blight study,’ which is a 500-page document that we spent two years developing, which counters their [ESDC’s] study saying the neighborhood is blighted,” Siegel said. “The Goldstein case didn’t have anything like that.”

But while Siegel emphasized the differences between the cases, others cite many similarities.

The discrepancy between the Atlantic Yards and Manhattanville rulings “just suggests the confusion in this area, and the disparity of treatment,” said Paula Franzese, a property law expert who is a visiting political science professor at Barnard College and a professor at Seton Hall Law School in New Jersey. “Eminent domain cases always involve a balancing of competing equities, and courts are revealing a certain duality in attempting to accommodate … the appropriate concerns.”

Franzese added, “We see that the public use test is met for economic revitalization in Atlantic Yards, and yet we see a concededly analogous purpose stymied in the Manhattanville case.”

Julia Vitullo-Martin, a senior fellow at the Manhattan Institute, a think tank that examines urban economic policy issues, said, “I would be surprised if Judge Catterson’s decision stands up to the state level.”

Columbia Law School professor Lance Liebman agreed: “If the Court of Appeals still has the same views they held when they decided Atlantic Yards,” he said, “then the chances of a Columbia victory are good.”

University administrators would not speak to comparisons between Manhattanville and Atlantic Yards, and ESDC spokesperson Warner Johnston declined to comment, citing ESDC’s policy of not discussing pending litigation.

Though Robert Kasdin, senior executive vice president of the University, said in an interview in January that he could not make a comparison, he did say, “President Bollinger has made the commitment ... that under no conditions would Columbia seek eminent domain with respect to any residential properties.”

In an interview two years earlier, when asked why the University drew the line at residential properties, he said, “I think commercial transactions are fundamentally different from making people feel insecure in their homes.”

In contrast, in the Atlantic Yards case, the state approved eminent domain on residences.

Briefs from parties—and students

Both sides have filed briefs with the Court of Appeals, laying out their arguments. The Student Coalition on Expansion and Gentrification—a group of Columbia students who have been active in opposing eminent domain in Manhattanville—also recently submitted an amicus curiae brief, or a brief written by a person who has a vested interest in the case but is not an official party to it.

The brief from Sprayregen and Siegel notes that in the Atlantic Yards ruling—which would seem to set a precedent in favor of eminent domain—the Court of Appeals acknowledged that there can be exceptions, as the opinion stated, “There remains a hypothetical case in which we might intervene to prevent an urban redevelopment condemnation on public use grounds—where ‘the physical conditions of an area might be such that it would be irrational and baseless to call it substandard and insanitary.’”

“The present case [Manhattanville] is such a case,” the brief says.

SCEG’s amicus brief—which member Ben Totushek, GS, said is the result of a semester of research—echoes the plaintiffs’ arguments, but what distinguishes it is its focus on “the University’s behavior” in its pursuit of eminent domain. The brief says, “Ultimately, any request that Columbia makes of city and state agencies is effectively done in our [students’] name and on our behalf.”

It adds, “The yawning chasm between the University’s rhetoric regarding community engagement and the reality of its action is not a matter that can be litigated. However, as the determination of what is or is not a ‘public use, benefit, or purpose’ is an inherently subjective determination, the University’s behavior becomes relevant. … The history of obfuscation of both the University and the Appellant-Respondent [ESDC], as well as the clearly stated opposition to eminent domain use at every stage of the Project’s development should … be considered in the evaluation of the Project.”

Uncertain precedent

The two landmark U.S. Supreme Court cases on eminent domain are Berman v. Parker, decided in 1954, and Kelo in 2005. In the former, the court ruled unanimously that governmental seizure of private property with just compensation is permissible under the Takings Clause of the Fifth Amendment if it is for a “public purpose.”

The court held that a property may be seized if it would benefit a larger revitalization project, even if the property were in good condition and being productively used.

Fifty-one years later, the court ruled in the Kelo case that the city of New London, Conn. could seize the house of Susette Kelo on behalf of the pharmaceutical company Pfizer, which wanted to open a research facility. It held that eminent domain could be used to transfer property to a private developer not only if the land in question was blighted—as Berman v. Parker had said—but also if it was not blighted, so long as the project promoted economic development of an under-used area.

“The U.S. Supreme Court has been quite open and broad about what states can consider blight,” Liebman, the Columbia expert, said. It “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.”

It is the Kelo precedent that ESDC is relying on, but with dozens of state and national rulings over the years, it is difficult to determine which will be used in a particular case, and Siegel argued that the Appellate Division ruling could be the beginning of a new precedent.

Siegel said shortly after the ruling in December in his and Sprayregen’s favor, “It creates some hope that you can win these fights.” He also cited the concurring opinion in Kelo from Justice Anthony Kennedy, who argued that there are cases in which applying the Public Use Clause to justify eminent domain, as Kelo permitted, would be unconstitutional. Kennedy’s opinion stated that a taking is not justified if it “is intended to favor a particular private party, with only incidental or pretextual public benefits.”

Vitullo-Martin said she remains confident that the Court of Appeals will rule in ESDC’s favor, but she added, “The whole cultural shift, legally and politically, is toward a more severe look at eminent domain.”

Long-term implications

Whichever way the court rules in June, the decision is sure to have broad implications.

“If the Court of Appeals rules against eminent domain, that will be a change in New York law that will have national significance,” Liebman said.

On the other hand, if the court rules in favor of ESDC and Columbia, opponents of eminent domain could pursue a new national precedent. Since three Supreme Court justices have been replaced since Kelo was decided, Liebman said, “Someone might decide to see if the Supreme Court would reconsider Kelo.”

In the short-term, Columbia’s vision for Manhattanville may stand or fall on the outcome. If the Court of Appeals rules for eminent domain, the Supreme Court would be the private landowners’ only remaining recourse. If the court rules against eminent domain, though, the picture would become much murkier.

University officials insist they need every property in the project area: They want an integrated campus, they say, not a “checkerboard” development with non-University buildings scattered throughout. And shortly after the Appellate Division ruling, University President Lee Bollinger said the Court of Appeals ruling would “determine whether or not we have a new campus.”

Despite all the precedents, the outcome remains uncertain. “Only on the most general of levels, where one looks at the two cases [Manhattanville and Atlantic Yards] as both being about eminent domain, can one refer to them as largely being the same,” Sprayregen said. “The fact remains that anyone who reads the briefs … will clearly see that there are major differences between the facts.”

“I can understand why some people are somewhat surprised,” Siegel said. “The Court of Appeals ruled the way it did in Goldstein, and therefore they’re confident they’ll have the Court of Appeals reverse the Tuck-It-Away case. But they’re different—the record is different, the issues are different.”

Kim Kirschenbaum contributed to this article.

maggie.astor@columbiaspectator.com

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Anonymous posted on

Excellent article. All of the Spectator's recent reporting on this topic has been really top-notch.

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Anonymous posted on

There may be differences in some issues with the two cases, but the overriding issue is the same: should government take private property and transfer it to other private owners for uses outside the traditional notion of eminent domain of schools, roads and hospitals. THE PROBLEM is The Constitution of the United States is supposed to protect individual citizens and their land, and New York State is breaking that sacred promise.

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joebrown1966 posted on

The whole thing reminds me of painting roses red. Columbia declares that the neighborhood is blighted -- but it is Columbia's own property that is the actual blight! Buuuut - they seem to have "convinced " some public(?) offiicials that they need to tear down everybody else's house to make a better world. To me this represents failure - of the public officials who are supposed to protect the people, and failure of our government in general to remain aloof from representing what are clearly private interests. Such blatant disregard for the laws and mores of society. It makes the people look like helpless pawns.

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Anonymous posted on

If you look at the three Supreme Court cases that have dealt with eminent domain in the 20th century, they are
Berman v Parker (1954)
Hawaii Housing Authority v Midkiff (1984)
Kelo v New London (2005)

Berman was a watershed case because it allowed the government to take private land by eminent domain and give it to a private developer as part of community redevelopment/economic revitalization plans that the city council had approved. Justice William O. Douglas, in the majority opinion for Berman, essentially said that the Court has to defer to the legislature. If the city council or state legislature or Congress says that a community development plan serves a legitimate "public purpose," then the Court has should not rule the use of eminent domain in that instance unconstitutional unless it's clear that the taking only benefits a private party and not the community in general. Berman was also important because not all of the buildings taken were actually "blighted" but the community as a whole was, so the Supreme Court ruled that it was legitimate to take all properties in an area, blighted or non-blighted, to serve the "public purpose" of community redevelopment.

In Midkiff, the Court upheld the redistribution of land from land owners who owned something like 70% of the land in Hawaii to their tenants. That was a unique case as a result of the colonization and exploitation of Hawaii by Americans in the 19th century, but still: the Court ruled it was constitutional to take land from one private landowner and give it to another, so long as it served what the legislature considered a "public purpose."

Kelo was essentially just another version of Berman. Again, the Supreme Court ruled (in a more controversial 5-4 decision) that the use of eminent domain was constitutional so long as the city legislature determined it to be taken in accordance with the "public purpose" of improving the community, economically or even aesthetically!

Right or wrong, the Supreme Court has repeatedly ruled that if the legislature thinks eminent domain would "improve the community," then its use (with just compensation, of course) is constitutional. Berman is the controlling precedent, and it's been re-affirmed time and time again. In the past century, the Supreme Court has always ruled in favor of eminent domain, even as its use moved farther and farther away from its original purpose to seize land to be owned and administrated by the government and used by the public (e.g. highways). As a result, if/when this case makes it to the Supreme Court, I have very little doubt that they will find in favor of Columbia.

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