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December 3, 2009

Appellate Division overturns ESDC's use of eminent domain for Columbia expansion; how different is it from AY?

Atlantic Yards Report

A big development in New York City eminent domain news — the Appellate Division has ruled against the ESDC's planned use of eminent domain for Columbia University's Manhattanville land grab.

From the majority opinion in the Appellate Division's 3-2 overturning of the Empire State Development Corporation's (ESDC) planned use of eminent domain for the Columbia University expansion:

It is recognized that Kelo, as described below, did not concern an area characterized as "blighted." However, the blight designation in the instant case is mere sophistry. It was utilized by ESDC years after the scheme was hatched to justify the employment of eminent domain but this project has always primarily concerned a massive capital project for Columbia. Indeed, it is nothing more than economic redevelopment wearing a different face.

So too did the Atlantic Yards petitioners argue that blight was a pretext because it wasn't mentioned as a justification for the project for more than a year after it was announced--an issue ignored by the majority in the Court of Appeals decision last week.

Underutilization

Wrote Justice James Catterson (who also filed a fiery concurrence in the case challenging the AY environmental review):

The most egregious conclusion offered in support of the finding of blight is that of underutilization. AKRF and Earth Tech allege the existence of blight from, inter alia, the degree of utilization, or percentage of maximum permitted floor area ratio ("FAR") to which lots are built. The theoretical justification for using the degree of utilization of development rights as an indicator of blight is the inference that it reflects owners' inability to make profitable use of full development rights due to lack of demand. Lack of demand can only be determined in relation to the FAR when combined with the zoning for the area in question. Manhattanville, for the relevant period, was zoned to allow maximum FAR of two, leaving owners essentially with a choice between a one or two-story structure. No rationale was presented by the respondents for the wholly arbitrary standard of counting any lot built to 60% or less of maximum FAR as constituting a blighted condition.

This is the exact same ratio used in the Atlantic Yards Blight Study.

Norman Oder has more details on the other side of the link.

article

NoLandGrab: This is great news for the business owners who steadfastly refused to cave in under the threat of eminent domain, but it does leave Atlantic Yards opponents scratching their heads and asking, "how is Columbia U. so different from Bruce Ratner?"

Posted by eric at December 3, 2009 3:18 PM