the magazine of the columbia daily spectator
May 1 2013
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April 27 2013
Alternatives to Butler
April 19 2013
Red Bull and relaxation
April 17 2013
Back to the kitchen: A short journey through sexist pop culture
April 12 2013
Bikinis and big booties, y’all
April 8 2013
Azealia Banks Did What?
April 5 2013
More stories from Columbia’s military veterans
April 3 2013
Sing, O Muse, of some sappy story
April 1 2013
Missed the Cliterary Open Mic? Check out the highlights here
March 29 2013
Sex & Low Beach
For a look at what life in Manhattanville has been like for two longtime residents, watch this video by Amanda Cormier.
Is Columbia’s dream of expansion over? That’s the question everyone has been asking in the wake of Thursday’s ruling by the Appellate Division of the New York State Supreme Court that the Empire State Development Corporation cannot use eminent domain to seize private property in Manhattanville for market rate compensation. The decision, which shocked many who have been following the case, threatens to disrupt Columbia’s $6.28 billion plan to build a new campus in the neighborhood. While the University owns 91 percent of the land on which it currently plans to build the new campus, it has been unable to purchase the six properties—four locations of Tuck-it-Away Self-Storage and two gas stations—that comprise the remaining 9 percent of the proposed building area. The underground space that would reach seven stories below the campus is also at stake, since the below-grade area is owned by the city and legally can only be obtained by Columbia through eminent domain, according to the December 2008 General Project Plan.
Columbia must now look to the Court of Appeals—the highest court in the state—with the hope that the court will uphold the use of eminent domain in Manhattanville. If not, the future of the project is uncertain. In 2004, University President Lee Bollinger said that if the University “cannot really have the opportunity to develop the entire site, then we won’t do it at all. It’s really that important.”
This week, The Eye sat down with Tuck-it Away owner Nick Sprayregen and Law School professor Michael Heller to discuss the significance of Thursday’s ruling.
Represented by former New York Civil Liberties Union Executive Director Norman Siegel, Sprayregen has been the most visible figure in the ongoing legal battle against Columbia’s expansion.
So how are you feeling right now?
I am feeling very relieved that the majority of the court ruled in our favor, because what that means is that it buttresses the arguments that we have been making in the press for these last few years that there has been numerous illegal and unconstitutional actions by the state and Columbia. So I applaud the judges that ruled in our favor in making this decision because although our allegations have been very clear to Norman Siegel and me, we were always concerned about how they would play out in the courts, basically because New York courts have traditionally allowed virtually all eminent domain cases to proceed forward. The legal definition is they always provided a high level of deference to the decision-making processes. And that was largely our stumbling block, but fortunately and courageously this court realized that because of how egregious the actions have been on the part of the state and the various players here, that they could not allow this condemnation to continue, and they had to step in and put a stop to it.
Can you describe the public response to the court ruling?
I’ve probably received, since Thursday, hundreds and hundreds of e-mails from people that I haven’t been in contact with for years and years, and perhaps a hundred e-mails from people who don’t know me. And the overwhelming feeling from these people has basically been a big “thank you” that finally someone is doing something.
They’re saying thank you to you, thank you to the court for finally making a difference here. It was repeated instances of David versus Goliath, so it’s been very satisfying that they were able to get these e-mails to me. And I have attempted these last few days to respond to everyone. I’m still in the process of doing that, but I think it’s important that everyone who’s taken the time to write to me, for me to respond.
Do you feel comfortable in that role of David?
[Chuckles.] I wasn’t comfortable at the beginning, but I’ve grown accustomed and comfortable to it now because I understand, especially now that the decision has been rendered, how this is so much more than just a matter of my family or even the people of West Harlem and Columbia, but how this case has been and hopefully will continue to take on a far larger context of importance to people from across the state as well as across the country—in terms of it being a test case or it being the opportunity to roll back the eminent-domain abuse that people know about and for it to really stand out as a beacon of how a court can get it right.
You have said Columbia believes its mission is to “tame” Manhattanville and likened Bollinger to a “religious figure.” What gave you that impression?
I was struck by his speech when he first came on board in 2002, by how insulting it was to those of us who lived here, to those of us who worked here, to those of use who owned property here, that he would speak about his intentions from a perspective as if it was Manifest Destiny, that it was a religious right to take over the entire area. There wasn’t any nuance. There wasn’t any ability to compromise from the very start. It’s like Saddam Hussein drawing a line in the sand, where they drew the boundaries of this irregular shaped campus, but never explained why it had to be just like that. The reality is if the decision is upheld and they’re not able to build over everything, and they build a large percentage of that, the campus will be fine. It’s disingenuous for Mr. Bollinger all this time to be saying, “We need everything.” There’s no reason for that. The fact is, the campus will still be built. And it will do everything that they want to it do, albeit perhaps now with not quite as much square footage.
Back to the lawsuit, what’s next?
We’re going to have to start preparing for the appeal that the state says it will take. The appeal will be very quick—probably by March or April it will all be done. There will be some very quick legal documents that go back and forth in January and February, the Court of Appeals will set a hearing date for probably some time in March or April, and they will make a decision probably within a week thereafter. I think it’s important that we don’t let our guard down and rest on our laurels because we still have work to do. It’s important to do what we’ve apparently done here, which is to explain appropriately to the next court why they need to take a very acute look at the actions of the state and Columbia and hopefully rule like the appellate division did that what was going on was improper and unethical and illegal.
How would you describe your relationship with this community?
I think it’s very, very positive. Within an hour or two, some of the first people I told about this were members of the community, and throughout this week I’ve gotten lots of e-mails of appreciation and thanks and what a wonderful thing it is. The real unfortunate thing, however, is that even if we prevail, the fact remains that the mere threat of eminent domain has largely been completely effective in terms of meeting Columbia’s goal, which is to take over the entire area. So unfortunately there doesn’t seem to be any mechanism to roll back what has already been done.
Has the legal fight changed that relationship?
I think it’s gotten stronger since this fight has started. I would say that prior to this struggle I probably did not have enough of a connection to the community. But one positive that has come about from this is getting to know people who live here, people who work here, other property owners much more than I had prior to this. The fact is, I spend an awful lot of my time here. This is my main office, this is where I probably am 80 percent of my time when I’m working, so this is all very important, and I take the role that I played in terms of basically being the leader of this legal fight very seriously. So that’s why I look at this as much more than just Nick versus the state and Nick versus Columbia. It’s not just that we won, but the decision shows how corrupt and wrong the process was.
Is there anything you don’t like about this neighborhood?
I don’t think anyone’s ever asked me that. I think that there should be more development. I think there should be more activity. I think that what has gone on these last bunch of years with Columbia taking over properties and draining them of all life has been very detrimental to the community, and I think that all you have to do is take a look at how this community has been moving forward despite all that to see how much more it could have been, by virtue of, say, the Fairway supermarket, the Dinosaur [Bar-B-Q] restaurant, some of the other ones, to see that there’s tremendous potential here. So I wouldn’t say I have any dislikes, but I would just say that there needs to be more activity. And I largely blame Columbia for that.
Are you feeling confident?
I’ve always been cautiously optimistic that we would prevail. I am elated that the majority has agreed with what we’ve been saying and has pulled the cover over this elusive atmosphere between Columbia and the state and has denounced it in the strongest manner. I know we still have a struggle ahead of us, and I can only hope that there are enough members in the Court of Appeals that will take the time, like the judges did in this court, to really review the record, really review the legal documents and our arguments. If they do, I think that we will prevail. If instead they merely defer to the decisions by the ESDC, then I think that unfortunately they will do what lots of courts across the whole country have been doing these past years, of merely deferring to condemnations without really looking appropriately and accurately enough at what the facts are.
Lawrence A. Wien Professor of Real Estate Law and author of “The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives,” Heller is an expert in property law and one of the foremost scholars of eminent domain issues.
A lot of people have framed the recent case as a struggle between David and Goliath. Is this victory of “the little guy” surprising from a legal standpoint?
The important thing to remember is that this is an intermediate decision, which means that this is just one step in a much longer process. And for him [Sprayregen] to ultimately win the case, he has to win at the next level of the New York courts. And he may win, but that would be surprising to me because the law and the history of this area of law have tended to go very much in the other direction. Intermediate trials courts do all sorts of things, but they often are overturned when it gets to the highest court.
How does Manhattanville fit within the general trend of major developments?
Under current American law there are two ways to acquire property. You either buy it from someone who is willing to sell it to you at a price you both agree on or you condemn it—you seize it for some public use and pay just compensation at a fair market value. But those are the only two approaches. So if Columbia can’t work out a deal with the six lots that aren’t part of the Columbia parcel that they want, people have a right to hold onto their property, except if the government takes it for public use, which is the proposition. So right now there are no other options. There are proposals floating around in the academic literature to create mechanisms that would create more options. Under current law there are only two options—voluntary assembly or eminent domain for public use and just compensation.
The point is that this is a very general problem in the American economy, which is that more and more today, the really valuable forms of economic development—job creation, job growth, cultural creation—require assembly of large parcels of land. It used to be the case that you’d buy a piece of land, subdivide it, build houses, and that would be the path to creating economic growth. Today, more and more, the path for jobs and growth is that you put pieces together and you create the kinds of economic development that require large parcels. Historically we’ve had very good tools for breaking that up into small pieces and subdividing land, and historically we’ve had poor tools for putting them back together. The only tools that exist historically have been that you cut out a deal, or if it’s sufficiently publicly spirited, the government steps in and takes it from you and gives it to you for this larger project.
These aren’t very good solutions because often you can’t work out a deal, which is the case with Manhattanville, and often with eminent domain people perceive it as being unfair, capricious, or inefficient. So the two solutions we have—voluntary and seizure—neither of those are very good. There are other countries that have better solutions. It is a general problem in an economy where more and more value comes from assembly, that the legal tools we have are all related to fragmentation.
What options would Columbia have if it doesn’t ultimately prevail here? What do developers traditionally do when they aren’t able to get land through eminent domain?
It is often the case that projects are amended or modified to account for holdouts, a holdout being someone who won’t sell as a part of a larger assembly. There are many examples in New York of a building that builds around and above, or sort of circles the building that’s the holdout. That’s a fairly common problem in a world where you don’t have good tools for assembly. If you can’t use eminent domain and all you have is voluntary sales, and someone won’t sell for whatever reason, you have to change the project. It depends on the location of the holdout in respect to the larger parcel. If Columbia controls most of the parcels, they’ll have to rethink the engineering or design to see what the project would look like without the parcel they wouldn’t be able to control.
How will the recent Atlantic Yards decision affect the appeal?
The Atlantic Yards decision was by this higher court. It came out just recently and was essentially the same issue, and it went the other way, in a 6-1 vote. What that suggests to me—the intermediate decision going the other way, although it has very similar facts and very similar legal issues—is that it doesn’t have the deepest legal grounding. It seems to run against New York law, which is the Atlantic Yards decision, and federal law, which is the Kilo case of a few years ago.
What are the odds the Supreme Court would rule on this case?
You can never know the odds of the outcome of a particular case. If you look at the Atlantic Yards decision, it suggests that the highest New York court reads New York law consistent with federal law in this area, which would tend toward allowing use of eminent domain in this very ordinary example of it. But that said, you never know if they’ll want to change their understanding of the law. All eminent-domain cases are very fact-specific. They depend so much on the context of the particular user, the particular holdouts, and the process that the city went through to authorize eminent domain. Because the case is so fact-specific, it is easy to find differences between cases that otherwise seem similar. But it’s also easy for courts to say these pieces are the same. It really depends on the direction that the court’s going in this area of law.
One part that I haven’t seen written up yet in the intermediate ruling that just came down is that it was a decision that was five judges. Two of them struck down eminent domain on substantive grounds—that the city’s eminent domain procedure wasn’t a public use as they understood. Two of the judges said that there was. One of the judges who agreed with the outcome—that is, to send the case back and not authorize eminent domain—disagreed on the reason. That third judge said the reason they sent it back was for a procedural request, rather than for a substantive question.
It wasn’t that the eminent domain wasn’t for public use, but a procedural point: that the process of closing the record and handing over documents wasn’t done correctly. That’s an alternative ground for deciding the case, which is much harder to predict the outcome of how the next court will handle that. The decision had three different opinions—a plurality opinion with two judges, a dissent also with two judges, and a concurrence with one judge, who was agreeing with the outcome but not with the reasoning. So what does the intermediate appellate case stand for? It’s not clear that it stands for the proposition that this was a bad use of eminent domain, because there weren’t three judges who said that, there were two judges who said that. Also, it isn’t that this is a good use of eminent domain because there were two judges that said that. But there were three judges that said the procedure that was followed wasn’t exactly right—it had to do with the Freedom of Information Act requests and compliance with that. That issue is one that the highest court hasn’t really dealt with. It’s possible the case can be upheld on that ground instead of on the substantive grounds. If that were the case, the case would then go back to fix the procedural mistakes, and you would make more and more rounds.
How does an institution like Columbia—which has these vast resources—make such critical procedural mistakes?
I’m not saying that there were procedural mistakes. I think that’s one of the issues in the case—is were there procedural mistakes that were relevant and material? The process takes years and is extremely complicated, lots of hearings, and there’s potential challenges to every little tiny thing that goes on along the way. Potentially, there are a million different things that you can raise. The judges in this case picked out one and said it was important. That may or may not be a reasonable position. There is only one other factor, which is who is concerned about that. It’s hard to know how that will survive also at the next level. Litigation is complicated, and there’s always the possibility that someone will say at some point that something procedurally was done incorrectly. That may or may not be credible to a judge.
Do you think it would have been easier for a public university—whose mission might be more closely associated with the notion of public use—to move into Manhattanville?
That’s an interesting question. There’s some discussion in the opinion about state law as to what constitutes a civic project, but I don’t know the details of how that’s been interpreted in the past. My general read of Kilo and other public-use cases is that the courts in this country have historically given very broad and appropriate deference to legislative decisions that are used as a public use, especially because if land is taken there is just compensation. So against that backdrop of the very high level of deference to a legislative determination of use as a public use, the determination of use by a school as a public use normally would be given a lot of deference. Whether the school is public or private, I’m not sure would be an issue, given the backdrop of deference historically in this country.
What is the definition of “public use”?
Under American law the decision of whether a use is a public use, the decision is afforded enormous and appropriate deference by the courts. The language is often whether there is any conceivable public use—it doesn’t depend so much on the content of the specifics of the building, as it does on the determination that the use of eminent domain will lead to some public use. And that public use might be a new shopping center. It might a new stadium. It might be some other form of economic development that leads to job creation. In this context it leads to research and more educational benefit. What the legislature decides is public use historically has been given a lot of deference by the courts. What’s surprising about this decision is how little deference it gives.
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