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NY State’s Economic-Development Agency OKs Eminent Domain in Columbia Project

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New York state’s economic-development agency has invoked the right of a government to appropriate private property to clear the path for Columbia University to begin work on its $6.3 billion mixed-use project, which the school said will add nearly 2.6 million square feet of new research lab space to Manhattan’s West Harlem.
 
The Empire State Development Corp.’s decision — which cleared the project’s largest hurdle, but does not signal an unequivocal green light for the project, has also set the stage for a legal battle that could torpedo the project and rewrite how the state uses eminent domain in future large-scale redevelopment efforts.
 
In a decision widely expected for months by supporters of Columbia’s project and critics of its reliance on eminent domain, the board of directors of the state Empire State Development Corp. unanimously voted on Dec. 18 to approve the university’s plan to expand a half-mile northwest of its main campus in Manhattan’s Morningside Heights section into a 17-acre section of West Harlem that retains its 19th century name of Manhattanville.
 
Columbia also sought, and won from ESD, a commitment to use its eminent-domain power to condemn parcels owned by two holdout business owners that have balked at coming to terms with the university. The two are Nick Sprayregen, owner of the Tuck-It-Away regional chain of self-storage sites, and the Singh family, which owns a pair of automobile-service stations and a car wash business.
 
Columbia is also expected to surmount the final state hurdle to full approval by New York state — approval of the project by its Public Authorities Control Board, which oversees ESD.
 
Lawyers representing Sprayregen and the Singh family told BioRegion News last week they would file suit within 30 days in the Appellate Division of state Supreme Court — where court cases involving eminent domain are first heard in New York — to block the state from using condemnation powers for Columbia’s project.
 
 
“The decision to use eminent domain is unconstitutional and illegal, because 1) it’s not for public use, and 2) there’s no blight, and the methodology [ESD consultants] used for blight was bad-faith, and subjective to the point of void-for-vagueness,” said Norman Siegel, a New York City attorney representing Sprayregen and Tuck-It-Away in three current state lawsuits involving the Columbia project.
 
Siegel told BRN that a key argument in the Columbia eminent-domain lawsuit will be the state’s lack of a uniform standard for measuring “blight,” a prerequisite condition for redevelopment projects.
 
Siegel cited an Ohio court case in which the state’s highest court in 2006 unanimously overturned the taking of private homes by the city of Norwood to make way for a large mixed-use redevelopment project planned by developer Jeffrey Anderson’s Rookwood Partners.
 
In its decision in Norwood v. Horney, the Ohio Supreme Court sided with two holdout homeowners in ruling that the city could not justify taking their homes solely based on the economic benefit to the city of the $125 million retail/restaurant-office-condominium complex proposed by Rookwood.
 
That would appear to conflict with Kelo v. New London, the case in which the US Supreme Court held by a 5-4 majority that defined the general benefit of economic growth as a permissible “public use” to justify taking private property under the Fifth Amendment of the US Constitution.
 
But unlike Kelo, the Ohio ruling — which Siegel calls “a primer for us in our litigation” — also struck down a portion of the state’s eminent domain law for being too imprecise when it allowed the use of “deteriorating area” as a standard for determining whether private property is subject to condemnation. The “deteriorating area” standard was also unconstitutional because it was based in part on speculation as to the future condition of a property rather than its condition at the time of appropriation, the Ohio court ruled.
 
“It’s very applicable to New York. It has a similar kind of dynamic when they talk about it is or it’s about to be blighted,” Siegel told BRN. “What does that mean? What factors are they using?
 
“The property owner really doesn’t know what he or she must do to make sure that their property is not considered blighted. And if it’s vague and they don’t know what they can do, how can the government punish them when the standard is not clear and concise?” he added. “I think this to be a test case that’s historic.”
 
Yet Norwood v. Horney didn’t stop Ohio legislators in 2007 from passing, and Gov. Ted Strickland from signing, Senate Bill 7. That measure allows officials to base eminent domain decisions in part on a combination of subjective factors, including building obsolescence, dilapidation and deterioration, excessiveness of density, and faultiness of lot or street layout.
 

“If there is blight, it is Columbia-created blight. They own the vast percentage of property in the area. This is a problem of their creation.”

For its part, ESD concluded the West Harlem section eyed by Columbia contained neighborhood blight that warranted redevelopment and even condemnation. The agency cited studies supporting its findings conducted by two ESD consultants: planning firm AKRF and Earth Tech.
 
During a discussion period minutes before their formal vote, ESD board member Derrick Cephas, who is president and CEO of Amalgamated Bank, asked how the state defined blight. Anita Laremont, ESD senior vice president and general counsel, cited the 1968 Urban Development Corporation Act, which created one of the agency’s predecessors. The act established two standards for blighted properties — substandard and unsanitary — that officials over the years have applied at their discretion.
 
“Each project plan, as you will see in the project plan here, measured the area in relation to those two words, substandard and unsanitary,” Laremont said. “There is no set of absolute strict standards that we can apply [to the Columbia project]. And there is a degree of latitude that we apply in making that determination. That’s the way we’ve done it all along,” she said, adding that similar ESD decisions in the past have withstood legal challenges.
 
In an interview after the meeting, ESD spokesman Warner Johnston said the state did not employ a uniform standard for blight because conditions differed from community to community — especially in New York City, which is “arguably one of the most diverse [cities] in composition of its buildings, its architecture.”
 
“We can’t create a set of standards that’s going to be used in [one of New York City’s five boroughs] and then apply that to [another borough]. Everything needs to be looked at individually,” Johnston told BRN. “There are no set and clear guidelines on what defines it. Each case has to be looked at on a case-by-case basis. That’s one reason why we come to third-party consultants.”
 
Johnston defended ESD’s application of eminent domain as “a very valuable tool that is exercised with extreme caution.”
 
Cephas was one of two recently appointed ESD board members to ask questions before voting for the Columbia project and eminent domain; the other was Mark Hamister, whose Hamister Group in upstate Williamsville provides healthcare- and hospitality-management services.
 
Columbia won’t discuss the prospect of a new court battle focused on eminent domain. A university spokeswoman, Victoria Benitez, told BRN on Dec. 22 the university was in “design and pre construction” phases of its project.

She said Columbia would be able to fund the project despite the economic upheaval of recent months.

“Columbia pays for its capital projects through a combination of debt — we remain a AAA, with the highest short term rating as well — gifts (like that of Dawn Greene for the Jerome L. Greene Science Center to be located in Manhattanville), and cash (and our operating revenues for this fiscal year remain consistent with our budget),” Benitez said via e-mail.

As of Nov. 30th fundraising gifts and pledges continue to remain ahead of last year and in recent weeks we hit the $3 billion mark toward the $4 billion fundraising campaign announced in September 2006 and scheduled to run through 2011,” Benitez added. 

 
Columbia has limited its public comment to a one-sentence statement it shared with several New York City news organizations: “We are pleased that the ESDC has approved the General Project Plan.”
 
Siegel and Tuck-It-Away are already battling Columbia in three state court cases: In September, state Supreme Court Justice Jane Solomon rejected arguments by four Tuck-It-Away entities when she ruled in Tuck-It-Away Associates, LP v. City of New York that New York’s City Council took the “hard look” required under the state Environmental Quality Review Act in reviewing the environmental effects of the project; that it did not fail to consider alternatives; and did not illegally segment its review when its final environmental-impact statement said that a "probabilistic risk-based analysis" will be performed in the future on the project’s central below-grade service area, in particular the way the foundation would be built.
 
Tuck-It-Away and other critics of Columbia’s project had sought more study on concerns they raised about the university’s plan to use a slurry wall structure that would serve as the project’s foundation while preventing outside water pressure — the project would rise beside the Hudson River — from moving walls and basements [BRN, March 31].
 
Tuck-It-Away is currently appealing that decision in the court’s Appellate Division.
 
The company is also challenging ESD in three cases concerning the agency’s refusal to furnish documents sought by the business under the state Freedom of Information Law. Tuck-It-Away is in state Supreme Court in two FOIL cases, awaiting more documents; while two cases are pending in the appellate division.
 
‘Columbia-Created Blight’
 
Columbia’s plan calls for construction of 16 buildings and renovation of a 17th, totaling 6.8 million square feet of space, including nearly 2.6 million square feet of new research lab space and 296,201 square feet of support space. “Columbia anticipates constructing approximately 1.4 million [gross square feet] of new facilities by 2015 and an additional approximately 5.4 million GSF by 2033, the project plan stated.
 
Columbia has said it needs the new space to compete better with other top-tier research universities for researchers, and to accommodate several growing programs unable to expand within its existing 36-acre Morningside Heights campus [BRN, Dec. 17, 2007].
 
Those programs include the Jerome L. Greene Science Center for Columbia’s Mind, Brain and Behavior initiative, which would find a permanent home within part of the 351,310 square feet of lab space slated to be built in the project’s first phase, slated to wrap up in 2015.
 
In its General Project Plan Columbia said its project would generate 14,000 construction jobs between 2008 and 2033, when “approximately” 6,000 permanent university jobs are expected, not counting an unspecified number of retail and neighborhood services employees to be based on the ground floors of the project’s 17 planned buildings.
 
Columbia has long argued that its project offered the best prospects for the university to address what it has called shortages of laboratory and classroom space within its 36-acre Morningside Heights campus at a time when several of its programs are growing.
 
But at last week’s ESD meeting, as many of them have said for the past four years,  Siegel and 13 other speakers complained that Columbia’s project discriminates against blacks and Latinos because both groups comprised the majority of the 5,000 residents that would need to be relocated.
 
Maria Cassidy, ESD’s head counsel overseeing Columbia’s project for the agency, said at the board meeting her agency has sought to protect those residents. She cited amendments to the general project plan that bar ESD from acquiring via eminent domain any of seven residential buildings within the project site “while they remain occupied by residential occupants,” and would wait until at least 2018 before seeking condemnation of mixed-use buildings that contain residential units.
 
Project critics also complained that the ESD’s review process was skewed toward Columbia and did not give due consideration to the comments of neighborhood residents and groups critical of the project. They cited the absence of board members from public hearings held early in September, and the fact that while ESD conducted two neighborhood conditions or “blight” studies, the second one by Earth Tech occurred only after it was revealed the consultant conducting the first study, planning firm AKRF, had the university as one of its clients while its project was under ESD review.
 
Speaking with reporters in July, ESD’s then-president and chief operating officer Avi Schick insisted the agency hired Earth Tech because the AKRF study was two years old and ESD wanted to ensure its blight finding reflected more recent conditions.
 
Siegel and Sprayregen were among the 14 speakers, as were 17-year-old Aman Kaur, whose father, Gurman, has owned the service stations for 25 years; and Singh’s lawyer, David Smith of the New York City law firm Goldberg Weprin & Ustin.
 
“If there is blight, it is Columbia-created blight. They own the vast percentage of property in the area. This is a problem of their creation. I certainly do not think that [large grocery] Fairway views this area as a location of blight, nor do the many people who call this their home,” Smith said. “Columbia must not be allowed to steamroll through this area.”
 
Sprayregen and the Singh family own 4 percent of the project site. Columbia owns 80 percent, with the remaining land under control of either the university or public agencies.
 
“Can’t we figure out a compromise for 4 or 5 percent? And why does Columbia has to have it all?” Siegel rhetorically asked before the ESD board. “They’re greedy. They want it all. Don’t give it to them.”
 
Johnston defended ESD’s process by noting that its review of Columbia’s Manhattanville project was the longest of any project examined in the history of the agency and predecessors. He said the four public hearings held on the project were more than the typical number, and said ESD sought to accommodate critics by allowing their lawyer to submit materials past the deadline for written public comments.
 
Siding with Sprayregen and the Singhs have been several neighborhood civic groups. While saying they do not object to Columbia expanding into their neighborhood, the groups have called for the university, the city, and the state to rule out the use of eminent domain for the project.
 
Critics have also urged Columbia to develop its expansion project along the lines of a land-use guideline developed by Community Board 9 Manhattan, which serves West Harlem, under 197-a of the New York City Charter. The 197-a plan would have barred eminent domain and limited new academic research to a center for clean manufacturing or “Zero Waste Studies.” Columbia has opposed the 197-a plan, saying it would allow the university to build only 662,000 square feet of facilities, but no lab space.
 
The 197-a plan has been rejected by Columbia, ESD, and New York City as being inadequate to meet the university’s needs.
 
ESD’s vote came five months after it “adopted” the general project plan, allowing for reviews to advance; and a year, less one day, to Dec. 19, 2007, when a City Council majority rezoned Columbia’s redevelopment site among 35 acres of West Harlem, all with the project in mind [BRN, Dec. 31, 2007].

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