It’s old news to eminent domain mavens that often the municipal plans for a new public or not-so-public improvement, that are presented to courts in cases where the hapless owners challenge the right to take, undergo a miraculous transformation after they are rubber-stamped by compliant judges. This sort of thing goes back to Berman v. Parker, the 1954 U.S. Supreme Court case approving the taking of private land from its rightful owners in order to reconvey it to a chosen redeveloper who then goes on to build purely private malls, condos, car factories and dealerships, or even casinos in some of the best neighborhoods in Manhattan, in the hope of makiing oodles of money, while the owners of the taken land are undercompensated.
In Berman, the gimmick was that the redevelopment plan that was sold to the Supreme Court provided that at least one-third of the new dwellings built on the site of the taken properties would be low cost rentals, renting for no more than $17 per room, per month. The ostensible idea was that this would improve the lot of the poor folks who lived in the slums of Southwest Washington, and who would thus gain decent housing at affordable rates. Yeah! Ri-i-i-i-ght. In reality, as described in Amy Lavine’s article Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010), after the taking was approved in Berman, the ordinance was amended to eliminate that provision, and the poor folks in Southwest Washington were shoved aside and crowded into other slums in the District of Columbia, to make room for more upscale inhabitants who replaced them, giving rise to the bon mot that “Urban renewal is Negro removal.” A few years after Berman, the Wall Street Journal reported that affluent tenants of the new apartments built on that site, were staging a rent strike to protest high rents. So much for low cost housing.
Now, we learn of another bait-and-switch gimmick in New York arising from the proposed Willets Point redevelopment project . Willets Point is a kind of neighborhood that though butt-ugly, is indispensable to the functioning of a modern city. You have to have some place to put all those car repair shops, junk yards, and other unlovely businesses that are essential to modern living. Ah, but that very feature of these neighborhoods is what makes them vulnerable to charges that they are “blighted” and as such proper objects of redevelopment. Which, if you think about it, is nonsense. Where else are you going to put inherently grundgy enterprises of that kind? Park Avenue?
So the city has begun the process of establishing a redevelopment project that would take the 62-acre Willets Point area and replace its current land uses with, well, the usual sort of stuff that redevelopment produces. Which can be outrageous for several reasons, notably the reverse Robin Hood nature of the process that takes from small, middle-class owned businesses and gives to the wealthy folks with city hall connections. In the case of Willets Point, the problem is acute because most of the properties in the redevelopment project area are devoted to business uses, and New York follows the outrageous and archaic rue that makes losses inflicted on business owners when the premises on which their businesses operate and they cannot relocate, non-compensable. And please spare us the BS about the Relocation Assistance Act calling for “compensation” in such cases. Why BS and why the quotation marks? Because, first of all, by its terms the Act is unenforceable, and it limits such compensation to $10,000. These days, for that kind of money you can’t buy a decent pushcart, much less a real business. So very often, takings of land on which small, one-location businesses are situated, spell their end. Back in the heyday of redevelopment, when hundreds of thousands of people were being displaced by redevelopment annually, a study by the Commission on Intergovernmental Relations disclosed that some 80% of small, one-location, individually-owned businesses did not survive a condemnation.
So the property owners in Willets Point, almost all small business owners, are rightly incensed at what appears to be in store for them.
But we promised to talk about “bait-and-sw itch,” didn’t we? Well, in the case of Willets Point, the environmental impact report (that was duly approved by a New York trial court) provided for the construction of some highway off-ramps, but it turned out that the city was talking out of both sides of its mouth. It represented to the court that it would build those ramps, but in its submission to the Federal Highway Administration it represented the opposite. Which, in the words of Rick Hills of the PrawsBlawg is “doubly odd because the two reports were authored by the same consulting firm.” Click here.
So far, this would appear to be a dog-bites-man story — par for the course. We actually wrote an entire law review article on this subject – Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Plans — Sorry About That, Justice Stevens, 39 Urban Lawyer 529 (2007). But it appears that things are different here because this is not a right-to-take case — it’s an environmental review case. Moreover, the city came across an intellectually honest judge who is not about to take this sort of stuff lying down. For the opinion of Judge Joan A. Madden, in Ardizone v. Bloomberg, NY Supr. Ct. Index No. 103406/09, filed December 6, 2011, click here. Quoth her Honor:
“I relied upon the City’s representations. As the City has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment.”
So is it back to the drawing board? A definite maybe. The order calls for further proceedings to determine whether the court should exercise its inherent power to look into this situation, although since the right-to-take issue is pending before the New York Appellate Division, that determination will await the outcome of that appellate proceeding.
Being a cynical curmudgeon when it comes to adjudications of eminent domain issues, we are not holding our breath while waiting for justice to be done. But to see an intellectually honest judge in action in one of these cases, particularly in New York, is a good thing. So we conclude with three loud “Attagirls!” for Judge Madden, and an invitation to our readers to stay tuned.
Who knows, though this is New York, it is possible that justice will be done. Enjoy it if and when it happens, but don’t bet on it.