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December 4, 2009
EMINENT DOMAINIA: Columbia University Edition
NY Daily News, No eminent domain for Columbia University expansion: court
In a blistering ruling, an appeals court Thursday blocked the state from seizing private properties for the $6.3 billion expansion of Columbia University.
The Appellate Division's 3-to-2 ruling upheld charges by several commercial property owners that the Empire State Development Corp. stacked the deck in favor of Columbia University in allowing the use of eminent domain.
"The process employed by ESDC predetermined the unconstitutional outcome," the judges ruled.
The appeals court said the ESDC's finding that the Manhattanville neighborhood was blighted and underused "was bereft of facts."
...The narrow Columbia decision is bound to be appealed to the state's highest court, the Court of Appeals.
Recently, the top court ruled in favor of eminent domain in the much-litigated Atlantic Yards project to build a new home for the Nets in Brooklyn.
The Wall Street Journal Law Blog, Eminent Domain Month Continues: Kelo No Help For Columbia’s Plans
The last few weeks have been hot and heavy on the Eminent Domain front. We had news about the fallout from the Supreme Court’s 2005 Kelo decision; a big ruling for private developers in the Brooklyn Atlantic Yards case; and arguments at the U.S. Supreme Court over whether Florida’s beach renourishment program constitutes a “taking.”
But wait, there’s more. Earlier today, the appellate division of the New York state Supreme Court found Columbia University’s expansion plans, which propose condemnation of parts of a 17-acre lot in West Harlem, unconstitutional.
The New York Times, Court Bars New York’s Takeover of Land for Columbia Campus
The majority opinion was scathing in its appraisal of how the “scheme was hatched,” using terms like “sophistry” and “idiocy” in describing how the state went about declaring the neighborhood blighted, the main prerequisite for eminent domain.
The $6.3 billion expansion plan is not dead; an appeal has been promised, and Columbia still controls most of the land. But at a time when the government’s use of eminent domain on behalf of private interests has become increasingly controversial, the ruling was a boon for opponents.
“I feel unbelievable,” said Nicholas Sprayregen, the owner of several self-storage warehouses in the Manhattanville expansion area and one of two property owners who have refused to sell to the university. “I was always cautiously optimistic. But I was aware we were going against 50 years of unfair cases against property owners.”
...The court’s decision, if it is upheld, is not fatal to the plan. Columbia already owns or controls 61 of 67 buildings in the 17-acre project area. Presumably, it can build around the holdout owners, or come to agreement with them. But the state and the university have sought the entire site.
Which begs the question: why not just build around them in the first place?
AKRF, the firm that did the Environmental Impact study for the project, as well as the Atlantic Yards EIS, and just about every other EIS in New York State, and which seems to have never found an impact it didn't like, defended itself after being admonished by the court for a lack of objectivity:
A spokesman for the firm said in response to the court’s ruling: “As a firm of planners and analysts, AKRF’s responsibility is the collection and assessment of data in an objective and thorough manner. Our analyses help inform a public decision-making process. They are not advocacy documents.”
NoLandGrab: Yeah, right — it's just coincidence that every damned one of them ends up reaching the conclusions that the state and the developers want them to reach.
The Volokh Conspiracy, New York Intermediate Appellate Court Invalidates Taking of “Blighted” Property for Transfer to Columbia University, but Contradicts Recent State Supreme Court in the Process
There is, however, one major problem with the Kaur decision: it seems to contradict the New York Court of Appeals’ (the state supreme court) recent decision in the Atlantic Yards case, Goldstein v. New York Urban Development Corporation, which specifically ruled that a property can be declared blighted and condemned if there was “economic underdevelopment” or “stagnation” in the area. As I explained in this post, Goldstein allows state officials to designate almost any area as blighted and then condemn property within it. As an intermediate appellate court, the Kaur court is required to follow state supreme court rulings. Unfortunately, the Kaur majority barely even mentions Goldstein, except for noting that the same private consultant conducted the study allegedly proving the existence of “blight” in both cases. Perhaps this neglect is explained by the fact that the Atlantic Yards opinion was only issued last week. If so, the Kaur court should have taken more time to fully consider it. The contradiction with Goldstein is in fact noted by the Kaur dissenters, who point out that the state supreme court ruling requires broad deference to administrative blight determinations, even if there is considerable evidence that the determination was flawed.
It might still be possible to invalidate the Manhattanville takings in a way consistent with Goldstein. For example, the Kaur majority based its ruling in part on the fact that the government failed to follow some of the procedural requirements of New York’s blight statute.
However, the central holding of Kaur - that “underutilization” isn’t enough to prove blight — is in clear tension with the Atlantic Yards decision. The fact that the same consultant conducted both blight studies and used similar arguments to justify his findings only accentuates the tension. Indeed, “underutilization” was the main evidence for the existence of blight in the Atlantic Yards project area, as well as in the part of Manhattanville condemned for transfer to Columbia.
NY1, Court Decision Halts Columbia Expansion
In a statement, the agency said, "ESDC believes the decision to be wrong and inconsistent with established law, as consistently articulated by the New York State Court of Appeals, most recently with respect to ESDC's Atlantic Yards project."
Curbed, State's Land Seizure for Columbia Expansion Ruled Unconstitutional!
The ESDC plans to appeal the surprising decision. Why surprising? Because eminent domain decisions, like at Atlantic Yards recently, have a way of going the government's way.
Click here to download a PDF of the court's 65-page decision.
Posted by eric at December 4, 2009 8:55 AM