In its notorious 2009 decision upholding the use of eminent domain on behalf of a professional basketball stadium in Brooklyn, New York's highest court acknowledged that "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.'"
That case is no longer hypothetical.
On June 1, New York's Court of Appeals will hear oral arguments in Kaur v. Urban Development Corporation. At issue is the state's controversial use of eminent domain on behalf of Columbia University, which wants free rein to build a sweeping new 17-acre research campus in the West Harlem neighborhood of Manhattanville. To that end, Columbia joined forces with the Empire State Development Corporation (ESDC), the powerful yet little-known state agency authorized to bypass zoning laws and seize private property via eminent domain. In July 2008 the ESDC declared Manhattanville to be "blighted," the state of severe economic disrepair required to trigger an eminent domain taking under state law.
But Columbia's schemes came to a halt last December when a state appellate court struck down the ESDC's actions. Writing for a majority of the Supreme Court Appellate Division, First Department, Justice James Catterson denounced the ESDC for being "biased in Columbia's favor" and condemned the agency's blight determination as "mere sophistry." It's now up to the Court of Appeals to decide whether Justice Catterson got it right.
He did. As lead attorney and former New York Civil Liberties Union executive director Norman Siegel has been able to prove thanks to reams of documents retrieved via the state's Freedom of Information Law, Columbia and the ESDC actively colluded in order to produce the very conditions of blight that would then allow the ESDC to seize property on the university's behalf. This documentary record, which Siegel carefully details in the legal brief he submitted to the Court of Appeals, offers a convincing and damning portrait of government malfeasance on behalf of an elite private institution.
In 2006, for instance, the ESDC hired the planning firm Allee King Rosen & Fleming, Inc. (AKRF) to perform an "impartial" blight study of Manhattanville. Yet as internal documents later revealed, the study was explicitly designed to rubber stamp the Columbia-ESDC agenda. In its initial outline, AKRF promised to "focus on characteristics that demonstrate blight conditions" and to emphasize "highlighting any physical blight that may be present." In other words, the purpose of the report wasn't to objectively determine if blight conditions were present, it was to "focus" on a pre-ordained conclusion that benefitted Columbia.
And AKRF was hardly a neutral party. Not only was the firm on Columbia's payroll at that point, but at least six different AKRF employees were working on both the blight study and the redevelopment plan—a flagrant conflict of interests. Indeed, as New York's Appellate Division, First Department concluded in an earlier decision related to the Manhattanville expansion plan, AKRF served an "advocacy function for Columbia" and suffered an "inherent conflict in serving two masters."
AKRF's "impartial" study was even worse. For starters, AKRF failed to mention that Columbia owned 76 percent of the property in the neighborhood and was therefore directly responsible for the overwhelming majority of blight conditions that it found. Of the five buildings cited as being hazardous to the public, for example, four turned out to be under Columbia's control. Similarly, all seven buildings cited for hazardous garbage or debris are Columbia-owned and all 12 examples of vermin occurred in Columbia buildings. Yet despite Columbia's destructive and illegal behavior, the ESDC still plans to reward the university by seizing the last holdout properties on its behalf.
Equally disturbing is the fact that Columbia owns 17 of the 18 vacant buildings cited in the AKRF study. As numerous tenants from those properties have now reported, Columbia refused to perform basic and necessary repairs, which both pushed tenants out and manufactured the ugly conditions that later advanced the university's long-term agenda. As Nick Sprayregen, one of the embattled property owners involved in the case, observed in a 2008 Wall Street Journal article, "Only a few years ago, this area was undergoing a resurgence. Virtually all property was occupied, many by long-standing family operations such as my own. Now most of those businesses are gone—forced out by the university."
Indeed, AKRF openly acknowledged Columbia's blight-making role in the preliminary findings it delivered to the ESDC, where the firm identified "Open violations in CU Buildings" and "History of CU repairs to properties" among its "issues of concern." To make matters worse, Columbia bullied local property owners with the threat of government abuse. As Ramon Diaz, owner of the popular Manhattanville restaurant La Floridita, told student journalist Armin Rosen, "Columbia was using the threat of eminent domain before they even had it approved." According to Diaz, "When people were being difficult, they would always insinuate that they were going to get a lot less if [the ESDC] could exercise eminent domain."
Thanks to those threats and to some aggressive land buying, Columbia now owns 76 percent of the neighborhood. Combine that with the 15 percent of Manhattanville controlled by either New York City or by the Metropolitan Transit Authority, and Columbia effectively controls 91 percent. That's more than enough land to build a swanky new campus without the forcible government seizure of anybody's private property.
In sum, a powerful state agency secretly colluded with a powerful private university in order to trample constitutional rights, violate the letter and spirit of the law, and force law-abiding tenants out of their homes and businesses in order to manufacture self-serving blight conditions that disfigured an otherwise livable and commercially viable neighborhood. If there was ever a case where New York's highest court should intervene against eminent domain abuse, this is it.
Damon W. Root is an associate editor at Reason magazine.
Bonus Reason.tv Video: Watch the staff and patrons of Freddy's Bar in Brooklyn discuss their fight against New York's eminent domain abuse.