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Kaur v. New York State Urban Development Corporation

June 24, 2010

IN THE MATTER OF PARMINDER KAUR, ET AL., RESPONDENTS,
v.
NEW YORK STATE URBAN DEVELOPMENT CORPORATION, &C., APPELLANT.
IN THE MATTER OF TUCK-IT-AWAY, INC., ET AL., RESPONDENTS,
v.
NEW YORK STATE URBAN DEVELOPMENT CORPORATION, &C., APPELLANT.



The opinion of the court was delivered by: Ciparick, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In this appeal, we are called upon to determine whether respondent's exercise of its power of eminent domain to acquire petitioners' property for the development of a new Columbia University campus was supported by a sufficient public use, benefit or purpose (see New York Const art I, § 7 [a]; Eminent Domain Procedure Law 207 [C] [4]). We answer this question in the affirmative and conclude, pursuant to our recent holding in Matter of Goldstein v New York State Urban Dev. Corp. (13 NY3d 511 [2009]), that the Empire State Development Corporation's ("ESDC") findings of blight and determination that the condemnation of petitioners' property qualified as a "land use improvement project" were rationally based and entitled to deference. We also conclude that the alternative finding of "civic purpose," likewise, had a rational basis.

I.

Petitioners in this proceeding are the owners of different commercial establishments located in the West Harlem neighborhood of Manhattan. Petitioners Parminder Kaur and Amanjit Kaur own a gasoline service station located on West 125th Street. Petitioners Tuck-It-Away, Inc., Tuck-It-Away Bridgeport, Inc., Tuck-It-Away at 133rd Street, Inc., and Tuck-It-Away Associates, L.P. (collectively "TIA") own storage facilities located on Broadway and on West 131st and West 125th Streets. Petitioner P.G. Singh Enterprises, LLP also owns a gasoline service station located on West 125th Street.

On December 8, 2008, respondent ESDC issued a determination pursuant to EDPL 204, concluding that it should use its power of condemnation to purchase 17 acres of privately owned property, including petitioners', in connection with the Columbia University Educational Mixed Use Development Land Use Improvement and Civic Project (the "Project"). Located in the Manhattanville section of West Harlem, the Project site will extend from the south side of West 125th Street to the north side of West 133rd Street and will be bounded by Broadway and Old Broadway on the east and 12th Avenue on the west. The majority of the buildings located within the proposed Project site are commercial and it is undisputed that petitioners' property is among the property that ESDC is seeking to acquire.*fn1

The Project contemplates the construction of a new urban campus that would consist of 16 new state-of-the-art buildings, the adaptive reuse of an existing building and a multi-level below-grade support space. Approximating 6.8 million gross square feet in size, the Project provides for the creation of about two acres of publicly accessible open space, a retail market along 12th Avenue and widened, tree-lined sidewalks. The new buildings will house, among other things, teaching facilities, academic research centers, graduate student and faculty housing as well as an area devoted to services for the local community. Columbia University, a not-for-profit educational corporation, will exclusively underwrite the cost of this Project and not seek financial assistance from the government.*fn2

The origins of the Project trace back to 2001 when Columbia first approached the New York City Economic Development Corporation ("EDC") to redevelop the West Harlem area. Following Columbia's interest in revitalizing the neighborhood and expanding its campus, EDC commenced a general economic study of the neighborhood. It issued its report, the West Harlem Master Plan (the "Plan"), in August 2002, which outlined a series of strategies for the economic development of the region that would encompass three stages.*fn3 To effectuate these stated goals, the Plan envisioned changes in zoning that would foster job growth, shopping opportunities and the general enlivening of street life. Significantly, the Plan recognized that "[n]eighboring institutions such as Columbia's Morningside Heights campus, the main campus of City College, and the Columbia Presbyterian Medical Center can be key catalysts in the economic development of West Harlem. Not only can these institutions provide the dayto-day presence that will enliven the area as a regional attraction, they can also act as partners in job creation."

In 2003, EDC hired Urbitran Associates ("Urbitran"), an engineering, architecture and planning firm, to conduct a separate study, examining the neighborhood conditions of West Harlem. Urbitran documented and photographed the area of the Project site as well as the surrounding area and focused its analysis on four major criteria: (1) signs of deterioration, (2) substandard or unsanitary conditions, (3) adequacy of infrastructure and (4) indications of the impairment of sound growth in the surrounding community. The study, issued by EDC in August 2004, determined that the conditions in the study area merited a designation of blight. Specifically, the study revealed that several of the buildings throughout West Harlem were dilapidated.*fn4 Urbitran also concluded that numerous buildings evidenced poor exterior conditions and structural degradation. According to this study, two of the blocks with the highest number of deficient buildings and lots are within the Project site.

Meanwhile, as Urbitran performed its neighborhood conditions study of West Harlem, Columbia began to purchase property located within the Project site.*fn5 ESDC met with Columbia and EDC for the first time in March 2004 to discuss the proposed condemnation of petitioners' land. As the talks between ESDC, EDC and Columbia ensued, Columbia hired the environmental planning and consulting firm Allee King Rosen & Fleming ("AKRF") to assist Columbia in seeking the necessary agency approval for the Project as well as to prepare the required environmental impact statement ("EIS"). On July 30, 2004, ESDC and Columbia entered into an agreement, which provided that Columbia would pay ESDC's costs associated with the Project.

In September 2006, notwithstanding the results of the Urbitran study, ESDC retained AKRF to perform a neighborhood conditions report of the Project site on its behalf. ESDC chose AKRF, in part, because it was already familiar with the Project site. Moreover, ESDC had worked with AKRF before on other studies in connection with other condemnation proceedings.*fn6 In turn, AKRF hired Thornton Tomasetti, an engineering firm, to inspect and evaluate the physical conditions of the structures within the Project site.

AKRF photographed and conducted detailed inspections of each of the individual lots in the Project site. It documented structural conditions, vacancy rates, site utilization, property ownership, and crime data. For each building on the Project site, it also documented the physical and structural conditions, health and safety concerns, building code violations, underutilization, and environmental hazards. AKRF said it selected these factors "because they are generally accepted indicators of disinvestment in a neighborhood. The widespread presence of one or more of these factors can also demonstrate the need for revitalization and redevelopment of an area." Based on these factors, on November 1, 2007, AKRF issued its Manhattanville Neighborhood Conditions Study. This study concluded that the Project site was "substantially unsafe, unsanitary, substandard, and deteriorated" or, in short, blighted.

As ESDC prepared to issue its "blight study" of the Project site, Columbia moved towards obtaining the necessary agency approval to realize its expansion plan. Indeed, the public process for this Project was extensive and formally began when the New York City Planning Commission ("CPC") first considered whether to authorize the rezoning of about 35 acres of West Harlem, including the 17 acre Project site. The rezoning of this area, recommended in EDC's West Harlem Master Plan, triggered a thorough review according to New York City's Urban Land Use Review Procedure ("ULURP").

Consequently, on November 16, 2007, CPC, pursuant to the New York State Environmental Quality Review Act ("SEQRA") and the City Environmental Quality Review Act ("CEQRA") issued a notice of completion for the Project's final EIS ("FEIS"). The FEIS evaluated nine different plans for the Project site. Since none of the other plans provided for publicly accessible open spaces and community facilities, CPC determined that the proposed alternatives were less beneficial to the public than the rezoning based on Columbia's proposal.

Ten days after it issued the notice of completion, CPC released its findings on the FEIS. In its findings, CPC noted that Columbia "is of significant importance to the City and State as a center of educational excellence and a source of economic growth, and the Academic Mixed Use Development Plan is intended to fulfill these public purposes." Thus, CPC approved the rezoning that would allow Columbia to construct "a new urban campus" that will be "integrated with the urban grid, with all streets remaining open to the public . . . and a new open space network open to University-affiliated personnel and the general public alike." CPC further recognized that the proposed Project may require the use of eminent domain, which, if necessary, "would serve a public purpose insofar as it would allow for realization of the public benefits of the Columbia proposal." Following CPC's approval of the rezoning in West Harlem, the City Council held a public hearing on this matter and on December 19, 2007, it approved the 35 acre rezoning of West Harlem.

Meanwhile, certain business groups located within the Project site, including petitioner TIA, requested documents related to the Project on several occasions pursuant to the Freedom of Information Law ("FOIL"). In response, ESDC turned over about 8,000 pages of documents to petitioners. Petitioner TIA and the other business groups, however, believing that they were entitled to other documents not disclosed by ESDC, filed separate CPLR article 78 petitions.

Supreme Court, after an extensive in camera review of the documents in dispute, granted the applications of petitioner TIA and the other business groups and ordered, in relevant part, the release of certain documents in ESDC's possession, including documents related to its July 2004 agreement with Columbia as well as its correspondence with AKRF. ESDC appealed the order of Supreme Court to the Appellate Division. On July 15, 2008, the Appellate Division affirmed the portion of Supreme Court's order requiring the disclosure of documents related to ESDC's agreement with Columbia as well as its communication with AKRF (see Matter of Tuck-It-Away Assoc., L.P. v Empire State Dev. Corp., 54 AD3d 154, 162 [1st Dept 2008]). In its ruling, the court called into question AKRF's "tangled relationships" with both ESDC and Columbia (Matter of Tuck-It-Away Assoc., L.P., 54 AD3d at 166). Following the order of the Appellate Division, ESDC disclosed its correspondence with AKRF, but otherwise appealed the order of the Appellate Division to this Court.

It is important to note that the appeal brought before us late last year concerned the disclosure of just five documents (see Matter of West Harlem Business Group v Empire State Dev. Corp., 13 NY3d 882, 884 [2009]). ESDC argued to us and the courts below that the July 2004 paperwork related to its agreement with Columbia was exempt from disclosure under Public Officers Law § 87 (2) (c) because disclosure "would impair present or imminent contract awards or collective bargaining negotiations." We concluded, however, that ESDC failed to meet its burden under FOIL of establishing that those documents were exempt from disclosure because it did not articulate a particularized reason for denying disclosure. Accordingly, we affirmed the order of the Appellate Division.

Because the courts below raised concerns about the propriety of ESDC's choice to hire AKRF to conduct a neighborhood conditions study of West Harlem, ESDC retained a second engineering and environmental consultant, Earth Tech, to separately assess the conditions of the Project site and issue an independent report. Earth Tech, which had no prior affiliation with Columbia, was specifically instructed not to provide any services to Columbia while it worked for ESDC.

Charged with the task of performing yet another "blight study" of the area, Earth Tech engineers independently photographed, inspected and assessed each of the lots on the Project site. In May 2008, Earth Tech issued its Manhattanville Neighborhood Conditions Study. In the study, Earth Tech noted certain variables including current land uses, structural conditions, health and safety issues, utilization rates, environmental contamination, building code violations and crime statistics. Earth Tech determined that since 1961, there was a dearth of new construction in the area, finding a "long-standing lack of investor interest in the neighborhood." Earth Tech also enumerated the extensive building code violations in the area and the chronic problems that the buildings had with water infiltration.

Earth Tech also found that many of the buildings in the Project site had deteriorated façades and that several of the buildings had been sealed by the New York City Fire Department because of unsafe conditions. It also discovered widespread vermin on the streets and graffiti on the walls of the buildings and other structures. With respect to the four parcels owned by petitioner TIA, Earth Tech determined that these parcels, taken together, had more than three times the average number of building violations as the parcels acquired by Columbia over the previous several years.*fn7 In sum, Earth Tech concluded that the neighborhood conditions created "a blighted and discouraging impact on the surrounding community."

With the "blight studies" of both AKRF and Earth Tech in hand and with the knowledge that the City Council had approved the Project site for rezoning, on July 17, 2008, ESDC adopted a General Project Plan ("GPP") that would enable Columbia to move forward with its plan to build an urban campus in West Harlem. Pursuant to EDPL 201 and 202, ESDC solicited public comment on the GPP, holding a duly noticed hearing on September 2 and 4, 2008. This hearing, which lasted over 13 hours, was attended by 98 members of the community, including petitioners and their counsel. The purpose of the hearing was to provide those interested with the opportunity to comment on the GPP and the public purpose of the Project. At the hearing, ESDC distributed copies of its adopted GPP as well as copies of the FEIS, and the AKRF and Earth Tech neighborhood conditions reports. These documents, made available to the public by ESDC in July 2008, along with the record of the two-day hearing, remained open for public inspection until October 30, 2008, the close of the comment period.

Petitioners, with access to all 8,000 or so documents that comprised the administrative record in this case (and turned over pursuant to FOIL requests), responded to the GPP adopted by ESDC. Indeed, petitioners submitted two legal memoranda and thousands of pages of materials in opposition to the Project during the comment period. ESDC, in turn, prepared a comprehensive 75-page document entitled "Response to Comments," which thoroughly addressed the concerns raised by petitioners and others.

Taking into consideration the questions raised by the petitioners during the hearing and their substantial written submissions that followed, on December 18, 2008, ESDC adopted a modified GPP and authorized the issuance of its findings and determination. ESDC sponsored the Project both as a "land use improvement project" pursuant to the New York State Urban Development Corporation Act ("UDC Act") (McKinney's Uncons Laws of NY ยง 6253 [6] ...


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