In The Matter of Parminder KAUR v. N.Y. State URBAN Dev. Corp.

• Decision Date: 24 June 2010
• Citation: 933 N.E.2d 721,15 N.Y.3d 235
• Parties: In the Matter of Parminder KAUR et al., Respondents, v. NEW YORK STATE URBAN DEVELOPMENT CORPORATION, Doing Business as Empire State Development Corporation, Appellant. In the Matter of Tuck-It-Away, Inc., et al., Respondents, v. New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.
• Court: New York Court of Appeals Court of Appeals

15 N.Y.3d 235

933 N.E.2d 721

In the Matter of Parminder KAUR et al., Respondents,

v.NEW YORK STATE URBAN DEVELOPMENT CORPORATION, Doing Business as Empire State Development Corporation, Appellant.

In the Matter of Tuck-It-Away, Inc., et al., Respondents,

v.New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.

Court of Appeals of New York.

June 24, 2010.

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Carter Ledyard & Milburn LLP, New York City (John R. Casolaro, Joseph M. Ryan, Susan B. Kalib and Theodore Y. McDonough of counsel), Sive, Paget & Riesel, P.C. (Mark A. Chertok and Dan Chorost of counsel), and Bryan Cave LLP (Philip E. Karmel of counsel), for appellant.

Norman Siegel, New York City, Philip Van Buren, McLaughlin & Stern, LLP (Steven J. Hyman and Aimee Saginaw of counsel), and Smith & Nesoff, PLLC (David L. Smith of counsel), for respondents.

Institute for Justice (Dana Berliner, of the Virginia bar, admitted pro hac vice, Robert J. McNamara, of the Virginia bar, admitted pro hac vice, Scott Bullock, of the Virginia bar, admitted pro hac vice, and Darpana M. Sheth of counsel) for Institute for Justice, amicus curiae.

Jane E. Booth, General Counsel, Columbia University, New York City, Wilmer Cutler Pickering Hale and Dorr LLP (Paul A. Engelmayer of counsel), Wilmer Cutler Pickering Hale and Dorr LLP (Seth P. Waxman, of the District of Columbia bar, admitted pro hac vice, Paul R.Q. Wolfson, of the District of Columbia bar, admitted pro hac vice, Rachel Z. Stutz, of the District of Columbia bar, admitted pro hac vice, Micah S. Myers, of the District of

Columbia bar, admitted pro hac vice, and Sue-Yun Ahn of counsel) for Columbia University, amicus curiae.

Feerick Lynch MacCartney PLLC, South Nyack (J. David MacCartney, Jr., of counsel), and Goldstein, Rikon & Rikon, EC, New York City, for East Harlem Alliance of Responsible Merchants, amicus curiae.

Michael A. Cardozo, Corporation Counsel, New York City (Leonard Koerner, Paul T. Rephen and Rochelle H. Cohen of counsel), for City of New York, amicus curiae.

Denise Outram, New York City, for Bill Perkins, amicus curiae.

Ben Totushek, amicus curiae pro se.

OPINION OF THE COURT

CIPARICK, J.

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 N.Y. Const., art. I, § 7 [a]; EDPL 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 N.Y.3d 511, 893 N.Y.S.2d 472, 921 N.E.2d 164 (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 18, 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. ¹

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. ²

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. ³ 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 day-to-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. ⁴ 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. ⁵ 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. ⁶ 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...