News | West Harlem

Court of Appeals grills state on M'ville blight, civic purpose of expansion

After more than six years of buildup, the fate of eminent domain in Manhattanville came down to 45 minutes in a small courtroom in Albany.

On Tuesday, the seven judges of the New York State Court of Appeals, the highest court in the state, heard oral arguments on whether the state should be allowed to invoke eminent domain—the process of seizing private properties for a “civic purpose” in exchange for market-rate compensation—on Columbia’s behalf. The University plans to build a 17-acre campus in West Harlem, but two business owners, who represent about 9 percent of the land in the expansion zone, have refused to sell their properties.

Former New York Civil Liberties Union director Norman Siegel argued on behalf of Tuck-It-Away Self-Storage owner Nick Sprayregen and gas station owners Gurnam Singh and Parminder Kaur, and attorney John Casolaro represented the Empire State Development Corporation, the body that approved eminent domain for the project in December 2008.

Sprayregen, Singh, and Kaur challenged that approval in court in January 2009, and last December, the New York State Supreme Court, Appellate Division declared eminent domain in Manhattanville illegal in a 3-2 decision, which ESDC immediately appealed.

That brought the fight to the Court of Appeals, where Siegel called on the judges to uphold the Appellate Division ruling on several bases: one, that ESDC declared the neighborhood “blighted” in “bad faith” and based on faulty methodology; two, that there was “collusion” between ESDC and Columbia, because ESDC hired a company to conduct a blight study when that company was also a contractor for the University; three, that the expansion of a private university does not constitute a “civic purpose”; and four, that Sprayregen’s due process rights were violated when ESDC refused to turn over certain documents requested under the Freedom of Information Law in time for them to be included in the record for this case.

Casolaro, meanwhile, urged the court to reverse the Appellate Division ruling because, he said, the blight study was conducted fairly and impartially; Columbia had a right to participate in the process and to collaborate with ESDC; educational institutions fall under the civic use definition in the Urban Development Corporation Act, regardless of whether they are public or private; and Sprayregen was given access to all relevant documents that could have affected the outcome of the case.

In his presentation, Siegel honed in on issues surrounding blight—a condition of disrepair beyond the potential for natural relief—and emphasized that his objection was not to the finding of blight itself, but to the methodology ESDC used to make that finding. Echoing the Appellate Division’s assertion that “the time has come to categorically reject eminent domain takings solely based on underutilization,” he argued that the criteria ESDC used to declare the area blighted were skewed toward a particular conclusion.

“The studies should be disregarded because the methodology was biased,” he said. “You can’t just isolate conditions. Deteriorated structures are not enough [to constitute blight]. Because there’s garbage in a building, the neighborhood is blighted?”

Casolaro stated in response that no one had disputed the legitimacy of the materials produced for the blight study—photographs, for instance—and that there was no collusion inherent in choosing the consulting firm Allee King Rosen & Fleming to conduct the blight study, despite its ties to Columbia. He argued that the term "blighted" does not necessarily have to connote a place completely run to the ground, echoing a recent Court of Appeals decision that ruled in favor of eminent domain in the Atlantic Yards commercial development project in Brooklyn and concluded that “blighted areas are not limited to slums,” and that it is not necessary for “a finding of blight ... [to] be based upon conditions replicating those ... in the midst of the Great Depression.”

“ESDC reasonably relied on AKRF as it has done many times in the past, and its decisions have been affirmed by this court and other courts," Casolaro said.

The judges grilled both attorneys with rapid-fire questions, often interjecting mid-sentence with follow-up questions. They were particularly interrogative concerning the concept of a civic purpose, a term for which the two parties presented opposing definitions. Siegel claimed—as the Appellate Division ruling stated—that “you need public education” to constitute an educational civic project, but Casolaro countered, “The legislature has indicated that this [the Columbia expansion] serves a public purpose. There is a need for educational facilities in the state, and the involvement of private institutions is appropriate.”

Casolaro sought to distance his argument from that made in the U.S. Supreme Court's landmark 2005 Kelo v. City of New London decision, because while the court approved eminent domain in that instance, Justice Anthony Kennedy's concurring opinion left open the possibility that future eminent domain pursuits could be rejected if the project in question selectively benefited a particular party—something the Manhattanville holdouts have alleged in this case. Casolaro argued that Kelo concerned economic development projects and that this is instead a land use improvement project. However, economic development has been one of the main points in Columbia's campaign, and Kelo set a broad precedent: Justice John Paul Stevens wrote in his majority opinion that land can be transferred from one private owner to another through eminent domain to promote “economic rejuvenation,” thus expanding the definition of what may constitute a “public use."

“We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects,” Stevens wrote in his opinion. Casolaro effectively drew on this argument, stating that the public may ultimately be better served by a private than a public enterprise.

“What-if” scenarios dominated much of the questioning, as the judges appeared to test whether the attorneys would apply their legal reasoning consistently to all cases. One judge asked Siegel if he would consider eminent domain more acceptable if it were City College—a public institution—expanding, instead of Columbia. He answered that it would be. “It changes the dynamic,” he said. “They [Columbia] are a private institution, and therefore they can’t become a civic project.”

The judges posed a hypothetical question to Casolaro as well, asking if he believed the arguments he was making in favor of eminent domain for Columbia could be applied to the expansion of other private, elite schools such as Dalton on the Upper East Side or Collegiate on the Upper West Side. Many in the audience seemed surprised by his response that it could be, and in a press conference after the hearing, State Senator Bill Perkins—who represents Manhattanville—sharply criticized the idea that the expansion of such schools could constitute a civic use.

In his last point, Siegel argued that Sprayregen’s due process rights were violated when he did not receive all the documents he requested from ESDC in time to incorporate them into his argument in this case. In a separate case last December, the Court of Appeals ordered ESDC to release seven specific documents that it had previously withheld, and it did—but not before the deadline for submitting materials for consideration in the eminent domain suit had already passed.

But Casolaro said of the documents ESDC refused to provide, “They’re not material to their arguments and not material to the issues in this case.” There was no due process violation because there is no reason to believe the documents in question would have changed the outcome of the case, he said.

Beyond the speaker’s dais and the dialogue between the lawyers and the judges, a large audience gathered to watch the case unfold. Well over 100 people crowded into the courtroom, and even more were relegated to an overflow room with a closed-circuit television. Many attendees were West Harlem residents, and a large number were members of local activist groups such as the Coalition to Preserve Community. CPC and other organizations sponsored a full bus from Harlem to Albany, as did Perkins, who has been an outspoken critic of the use of eminent domain in Manhattanville.

These attendees, who gathered at the door to the courtroom well before it opened and jostled for prime positions in line, expressed a range of emotions, from anger at Columbia and ESDC to confidence in a legal victory.

Nellie Bailey, president of the Harlem Tenants Council, echoed Siegel in distinguishing this case from that of Atlantic Yards, the mixed-use commercial development project in Brooklyn for which the Court of Appeals affirmed the legality of eminent domain last November.

“The key difference is the decision from the Appellate Division, and the thousands of documents that establish conclusively the collusion [between Columbia and ESDC],” Bailey said. “I think it’s going to be very difficult for the court to ignore that. This is not a subjective case. These are the facts as they were ascertained.”

Even though a ruling isn’t expected for another six weeks or so, according to Siegel, opponents of eminent domain emerged from the courtroom feeling victorious.

“We did win here today,” CPC member Tom DeMott, CC ’80, said at the post-hearing press conference. “We won because we’re all out here as a culmination of eight years of resistance.”

“We won,” Perkins echoed. “All the lawyers, all of us, have proven that the lack of transparency and the lack of accountability with regard to the eminent domain process is something that needs to be changed, and we have successfully challenged that.”

"The law makes it very difficult for the businesses to prevail, but the facts of the case make it very difficult to enforce the state law," said Ben Totushek, GS and a member of Columbia's Student Coalition on Expansion and Gentrification. "I think we have a new precedent on our hands."

Before the hearing, both Sprayregen and Siegel repeated a longtime catchphrase, saying they were “cautiously optimistic” that the court would rule in their favor.

“We’re feeling good,” Sprayregen said. “If this court takes the time to review the briefs like the first court [Appellate Division] did, and really looks at the subject matter, I think they will make a similar decision.” At the post-hearing press conference, he added, “I think it went very well. … But the point is, no matter what happens today, we need to continue to fight for our private property rights.”

Siegel told Spectator after the press conference that despite his optimism, “You can’t read the tea leaves based on an oral argument.”

Several University administrators attended the hearing, but did not comment. Columbia has traditionally declined to comment on this lawsuit, as it is not technically a party in it, and ESDC has a policy of not commenting on pending litigation.

news@columbiaspectator.com

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Anonymous posted on

Bang up summary, Maggie and Kim.

One small clarification. Casolaro argued that this case is nothing like Kelo v. City of New London. He is afraid of the binding precedent of Justice Kennedy's concurring decision. He distinguishes this project as a land use improvement project, and Kelo as an economic development project, because Columbia is a not-for-profit corporation. He may get away with this distinction, and did cite some cases to back himself up, but I doubt that he can completely write off the importance of Kelo on such a superficial distinction.

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Anonymous posted on

That precedent, by the way, essentially states that in an economic development project wherein condemned property is transferred to a private entity, there must be the utmost assurance that no one private entity was singled out for special treatment by the state. Pfizer may have benefitted from the New London development, but to Justice Kennedy's mind, every effort towards transparency and equality of treatment was taken by the city. The majority needed his decision to prevail, so his concurrence has particular weight, perhaps the key to understanding the implications of Kelo.

The idea that this is not at heart an economic development project, however, is specious at best. Columbia certainly argues that the economic benefits to the neighborhood are what's "in it" for the community. Without those econ. benefits, what was "in it" for the residents of NYC who don't go to Columbia?

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eicos posted on

"The idea that this is not at heart an economic development project, however, is specious at best."

I suppose this depends on what you mean by "economic development project." The project will undoubtedly have economic benefits for Columbia, but there is good reason to be suspicious that its benefits will redound to the community. The way Columbia carried out its community engagement procedures smacks of the entitlement of moneyed elites - at no time was there any pretense that Columbia's plans were up for discussion. Rather, it was clear that Columbia assumed that as long as it went through the motions of community engagement, providing a minimal sop to quiet the displaced, that their own interests would be upheld in any court challenges. The Supreme Court decision was a much-needed reaffirmation of the integrity of the judiciary, and a well-deserved shot across the bow for arrogant Columbia.

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Anonymous posted on

Absolutely right. I think Columbia confused "good community relations" with "doing whatever you want and making speeches with all of the right buzzwords."

I also think that there is a naive presumption among the Columbia community and some members of the resident population that what's good for Columbia will be good for the city. I grew up in a suburb of New Haven, CT, and watched as Yale became the city's largest employer. Yale paid wages that could charitably be described as substandard even as their endowment grew to a staggering size (some number of billions that would have done a Fortune 500 company proud). All this while New Haven sank deeper and deeper into poverty.

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Anonymous posted on

DBA, thank you for so succinctly crystallizing the extent to which opposition to Columbia's expansion has been about: sticking a thumb in the eye of "moneyed elites" and chastening an "arrogant" and distrusted institution.

Not sure if you have a sense of irony that the practical effects of the current struggle amount to 1) increasing the negotiating leverage of another "elite" (Sprayregen), 2) holding up a CU benefits agreement worth hundreds of millions for the community, and 3) delaying a major academic development project that will have a tremendously positive impact in economic and societal terms.

I hope you will find your self-righteous display of proletarian purity to have been worth it.

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eicos posted on

Do you have a point to make, or are you just determined to be contrarian?

1.) Yes, Sprayregen is a rich asshole - so what? That doesn't make it right for a richer organization to trample over his contract rights for their convenience.

2.) You can say that the CBA was worth "hundreds of millions of dollars" (actually, about $150M), but considering that the final package was unanimously opposed by the CB9 executive committee, the use of the words "community" and "agreement" is pure Orwell. You should read Spec's own coverage of the debacle - even the NYC Bar Association has opposed the proceedings.

3.) Columbia University is one of the most powerful organizations in the city. No matter what you think the benefits of an expansion might be, if they want to displace people, they need to come to an agreement with those people, rather than trying to abuse the legal process to kick them out with a fraction of the compensation they deserve. If they can't come to an agreement they can afford, then perhaps they should delay or reconsider their expansion plan. As it is, it has been painfully obvious (and I say "painfully" because I am a recent Columbia alum) that Columbia regards West Harlem as a reservoir of land and cheap labor to be exploited as needed.

That the Manhattanville expansion would have, as you say, a "tremendously positive impact," has not at all been shown, unless you mean a positive impact for Columbia itself. To ignore the obvious risk of injustice resulting from the desire by an elite, private university to expand into a poor area whose inhabitants have little chance of ever attending the university is to commit an act of willful self-deception. You should spend more time shoring up your arguments, and less time impugning the motives of those who disagree with you.

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Anonymous posted on

DBA: What "people" are being displaced here? There are two commercial property owners holding up the process at this point -- that's it. You speak as if there were actually a residential neighborhood of poor people about to be trodden underfoot.

Second, regarding these two commercial property owners, Columbia is not using any process to "kick them out" -- the state is. Eminent domain has been around for a very long time, and it is needed today precisely for these kinds of situations. In this instance, the public interest is served not only by having the development plan go forward, but also by the very existence of a legal mechanism that prevents one or two recalcitrant individuals from single-handedly stopping a large project -- and/or exacting extortionist rents in the process. You may have some interesting ideas about what the holdouts "deserve," but if you don't think there has been an offer on the table that is a great deal higher than market value on these properties, then you're similarly deluding yourself.

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CU_Alum posted on

The public benefit at issue in Kelo was a new source of tax revenue, but that is not the only type of public benefit that can justify the use of eminent domain. CU won't pay taxes, but its role as an economic engine for the city and region will expand. It will also produce more and better-educated graduates, many of whom will stay in NYC. And at the same time, the new development will improve a generally blighted area. These are not the same benefits that were at stake in Kelo, but that does not make Kelo irrelevant.

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Anonymous posted on

Well done; that is the point. However, the ESDC wants to have it both ways, i.e. it wants the general thrust of the Kelo decision to bolster its efforts in Manhattahville, all the while claiming that the difference in benefits: tax revenue versus general economic improvement, makes the concurrence of Justice Kennedy irrelevant. That concurrence, as SIPA '12 stated above, is quite damning to the ESDC and Columbia.

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Anonymous posted on

Kelo v. New London was a horrible decision, both in terms of judicial analysis (stretching Berman and Midkiff to obscene degrees to essentially render protection under the takings clause meaningless) and economic reasoning. See O'Connor's dissent, and the Supreme Court Economic Review (Volume 17). The "public benefit" was a supposed increase in future tax revenue and jobs (the Pfizer R&D campus at the center of the case has since closed--how 'bout nem apples?). The problem with land-grabbers and planners is that they lack the knowledge to effectively forecast future financial conditions, let alone economic conditions. Plus, empirical research suggests that the burden of eminent domain condemnations, particularly when "blight" declarations are made, falls primarily on lower-income households and businesses. Not the best way to lift the poor out of poverty, eh, do-gooder land-grabbers?

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