# Petition for Writ of Certiorari — West 41st Street Realty LLC v. New York State Urban Development Corporation, Dba Empire State Development Corporation

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1191

## Text

a | Supreme Court i

NO@- 910 DEC 11 2008
IN CAP tCE OF trie CLERK

Supreme Court of the Mnited States

OCTOBER TERM, 2002

WEST 41ST STREET REALTY LLC, EMM
REALTY CORP., and TIMES SQUARE GARAGE, LTD.,

Petitioners,
V.

NEW YORK STATE URBAN DEVELOPMENT CORPORATION
d/b/a EMPIRE STATE DEVELOPMENT CORPORATION,
42ND ST. DEVELOPMENT PROJECT, INC., 632 EIGHTH ~
AVENUE ASSOCIATES, LLC, ROMACK REALTY we
CORP., and THREE O REALTY LLC,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK

—

PETITION FOR A WRIT OF CERTIORARI

GUY MILLER STRUVE

Counsel of Record
LORILEE A. VAUGHAN
JEREMY KUDON
DAVIS POLK-& WARDWELL

450 Lexington Avenue

New York, New York 10017
(212) 450-4192

Counsel for Petitioners

Wy

Questions Presented

1. May the respondents, consistently with the Due Process
and Takings Clauses of the United States Constitution, use the
eradication of “blight”-as the purported public purpose for
condemning the petitioners’ property and giving it to another
private party to develop, when the petitioners wish to develop
their own property, and any residual “blight” is the result of the
respondents’ own actions in preventing the petitioners from
developing their property?

2. Do the respondents’ actions in preventing the develop-
ment of the petitioners’ property for more than two decades,
followed by their attempt to use the undeveloped condition of
the property as the basis for turning it over to another private
party to develop, violate the petitioners’ rights under the Due
Process and Takings Clauses of the United States Constitution?

{

li

Statement Pursuant to Supreme Court Rule 29.6

Petitioners West 41st Street Realty LLC, EMM Realty Corp.,
and Times Square Garage, Ltd. are privately-owned entities.
They have no parent corporations, and there is no publicly held
company that owns 10% or more of their stock.

iii
TABLE OF CONTENTS
PAGE
ON i
Statement Pursuant to Supreme Court Rule 29.6 .... li 4
gt. SRR a Ree neem - ill
TABLE OF AUTHORITIES ...................... Vv
CN ei CL eee ie Pevets coy, l
ee ee ee * 2
Constitutional Provisions Involved...........:... 2
WI gs eek ce eee cl. 3
A. The Times Square Redevelopment Project .... . 3
B. Respondents’ Refusal to Permit the Owners to
Develop Site 8 South .................... 6
C. Respondents’ Decision to Condemn Site 8 South
for the Benefit of the New York Times........ 8
tee Dedsions Below ...................... 12
REASONS FOR GRANTING THE WRIT ........ 13

POINT I — The Taking Is Unconstitutional Because It Is
Being Carried Out for the Private Purpose of
Substituting One Private Developer for Another,
Not for the Purported Public Purpose of Eliminat-
RG ets ee oe 13

POINT II — The Taking Is Unconstitutional Because It Is
Based Upon Respondents’ Unconstitutional
Decades-Long Prevention of the Development of
he a ll ie ec 16

EA a a a 20

APPENDIX A — Order of the Court of Appeals of the
State of New York, dated September 12, 2002 . . la

APPENDIX B — Decision and Order of the Supreme
Court of the State of New York, Appellate Divi-
sion, First Department, dated June 20, 2002 .... 3a

APPENDIX C — Pertinent Excepts From the Original
Petition Filed in the Supreme Court of the State of
New York, Appellate Division, First Department... 12a

TABLE OF AUTHORITIES

; Cases

99 Cents Only Stores, Inc. v. Lancaster Redevelopment
Agency, No. CV 00-07572, 2001 WL 811056 (C.D.
ee | Be | ar eee ey eee es Ce oe

250 West 41st St. Realty Corp. v. New York State Ur-
ban Dev. Corp., 277 A.D.2d 47, 715 N.Y.S.2d 407
(1st Dep’t 2000), /eave to appeal denied, 96 N.Y.2d
705, 746 N.E.2d 187, 723 N.Y.S.2d 132 (2001) ..

250 West 41st Street Realty Corp., et al. v. New York
State Urban Development Corporation, et al., Index
NO. i2aaere? CR B6098)) 5s oc ccs

Berman v. Parker, 348 U.S. 26 (1954) ............

Chicago, St. P., M. & O. Ry. v. Holmberg, 282 U.S. 162
AO. ck neni te es oe

In re Tuthill, 163 N.Y. 133, 57 N.E. 303 (1900) .....

Jackson v. New York State Urban Dev. Corp., 67
N.Y.2d 400, 494 N.E.2d 429, 503 N.Y.S.2d 298
(WOR css Ae eee

Jensen v. City of New York, 42 N.Y.2d 1079, 369
N.E.2d 1179, 399 N.Y.S.2d 645 (1977) .........

People v. Schmidt, 216 N.Y. 324, 110 NE. 945

CEPR ni Sew to hk 04 tees ake ee,
Prestonia Area Neighborhood Ass'n v. Abramson, 797
ee PU EE 5 5 bv se ecw eee bbs

Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889) . .
Rindge Co. v. County of Los Angeles, 262 U.S. 700
"| Gis Data RRS lis ESL eran eras

15

18-19

PAGE
Rosenthal & Rosenthal, Inc. v. New York State
Urban Dev. Corp., 771 F.2d 44 (2d Cir. 1985), cert.
denied, 475 U.S. 1018 (1986) ................ 4
Southwestern Illinois Development Auth. v. National
City Environmental, L.L.C., 199 Ill. 2d 225, 768
N.E.2d 1, cert. denied, 123 S. Ct. 88 (2002) ..... 15
St. Morris Assocs. v. McMorran, 35 A.D.2d 997, 318
N.¥.3.20 TSU CaS TC Pe oo ETS 17
Thompson v. Consolidated Gas Utils. Corp., 300 U.S.
Fo CER OD canes. aie dp recs Scan Ae eee 13, 15-16
Tolksdorf v. Griffith, 464 Mich. 1, 626 N.W.2d 163
COUPEE 5 akc ch:v des vaes «ee cerk eee 15
Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d ~
FOS CRG BOE v6 bbe 0 ake kee 17-18
Constitutional Provisions,
Statutes and Rules
7.0: CRE BE Be oh cick u's de eSiethemedies 2, 13, 16
U.S. Ce GD cs «oa os a 0 te ce 2, 16
SE, nk Os 0 Gate eb eee eee 2
FE UBB Ps ie 5s Ra dh cok es ae 2
SE EBL... BO hited crisis. KS Shiv she cae ees 2
I CT BE BORE 6.608 8 eS ee ee 2
Supreme Court Rule 14.1(g)(1) ... 2... 0... ee. 12
Supreme Court Rule 29.4(c) ...............00005 2
N.Y. Eminent Domain Procedure Law § 207 ....... 12

pe

vii

Other Authorities

Charles V. Bagli, Companies Get Second Helping of
Tax Breaks, The New York Times, Oct. 17, 1997, p.
Pe I Ee ch ei nics saat bis nes 5

IN THE

Supreme Court of the United States
OCTOBER TERM, 2002

WEST 41ST STREET REALTY LLC, EMM
REALTY CORP., and TIMES SQUARE GARAGE, LTD.,

Petitioners,
v.

NEW YORK STATE URBAN DEVELOPMENT
CORPORATION d/b/a EMPIRE STATE DEVELOPMENT
CORPORATION, 42ND ST. DEVELOPMENT PROJECT,

INC., 632 EIGHTH AVENUE ASSOCIATES, LLC,
ROMACK REALTY CORP., and THREE O REALTY LLC,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI

Opinions Below

The order of the Court of Appeals of the State of New York,
dated September 12, 2002, dismissing the petitioners’ appeal
from the decision and order of the Supreme Court of the State
of New York, Appellate Division, First Department, is not
officially reported, and is reproduced in Appendix A (1a-2a).

2

The decision and order of the Supreme Court of the State of
New York, Appellate Division, First Department, dated June
20, 2002, is reported at 298 A.D.2d 1, 744 N.Y.S.2d 121, and
is reproduced in Appendix B (3a-11a).

Jurisdiction

The order of the Court of Appeals of the State of New York
sought to be reviewed was entered on September 12, 2002.
This petition is timely under 28 U.S.C. § 2101(c) and Supreme
Court Rule 13.1, because it is being filed within 90 days of the
entry of the order sought to be reviewed. This Court has
jurisdiction to review the order of the New York State Court of
Appeals pursuant to 28 U.S.C. § 1257(a). Because 28 U.S.C.
§ 2403(b) may apply, the Attorney General of the State of New
York is being served with a copy of this petition pursuant to
Supreme Court Rule 29.4(c).

Constitutional Provisions Involved

The Fifth Amendment to the United States Constitution reads
in pertinent part as follows:

“No person shail . . . be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use, without just
compensation.”

Section 1 of the Fourteenth Amendment to the United States
Constitution reads in pertinent part as follows:

“ .. [N]or shall any State deprive any person of life,
liberty, or property, without due process of law... .”

Statement of the Case

A. The Times Square Redevelopment Project

The Times Square Redevelopment Project is a long-running
project of The City of New York (the “City”) and the respon-
dent New York State Urban Development Corporation d/b/a
Empire State Development Corporation (“UDC”) to redevelop
the Times Square area of Manhattan (R. 71).’

The Times Square Redevelopment Project was initiated by a
Memorandum of Understanding dated June 27, 1980 between
the UDC and the City (R. 86-89). The Memorandum of
Understanding stated that the Times Square area, loosely
defined as the area “in the vicinity of 42nd Street and 7th and
8th Avenues,” was “marked by street crime, substandard and
insanitary conditions, undesirable uses and physical and social
blight,” warranting “public action to cause the replanning,
clearance, reconstruction, redevelopment and rehabilitation of
the Project Area” (R. 86).

The UDC and the City divided the Project area into twelve
numbered “sites” (R. 94). Site 8 South, which is the subject of
this case, comprises the property across the street from the Port
Authority Bus Terminal, bordered by 41st Street on the north,
40th Street on the south, and Eighth Avenue on the west, and
extending east of Eighth Avenue approximately one-half block
(R. 71; see R. 136).

On or about October 4, 1984, the UDC made its initial
determination and findings approving the Project and authoriz-
ing the UDC to acquire, by condemnation if necessary, any real
property within the Project area (R. 90-143). The central focus
of the Project, as described in the 1984 determination and

! “R.” citations are to the printed Record in the Supreme Court of the
State of New York, Appellate Division, First Department.

4

findings, was the construction of new office buildings on
Broadway and Seventh Avenue abutting Times Square, and the
reconstruction of the theaters located on the north and south
sides of the midblock of 42nd Street between Broadway and
Eighth Avenue (R. 94-96). With respect to Site 8 (consisting of
Site 8 South and Site 8 North, a smaller tract located on the east
side of Eighth Avenue between 41st and 42nd Streets), the 1984
determination and findings envisioned the construction of a
merchandise mart linked to the Port Authority Bus Terminal by
a pedestrian bridge across Eighth Avenue (R. 95, 99, 136).

The UDC’s 1984 determination and findings were upheld by
the courts. See Jackson v. New York State Urban Dev. Corp.,
67 N.Y.2d 400, 494 N.E.2d 429, 503 N.Y.S.2d 298 (1986). See
also Rosenthal & Rosenthal, Inc. v. New York State Urban Dev.
Corp., 771 F.2d 44, 45-46 (2d Cir. 1985), cert. denied, 475 U.S.
1018 (1986). In upholding the 1984 determination and find-
ings, the courts approved the UDC’s finding that the Times
Square Redevelopment Project as a whole served a public
purpose, although they did not address the issue of whether or
not there was a public purpose for the merchandise mart
proposed for Site 8. See Jackson v. New York State Urban Dev.
Corp., supra, 67 N.Y.2d at 424-25, 494 N.E.2d at 440-41, 503
N.Y.S.2d at 309-10. ;

On or about April 18, 1990, the UDC took title by condem-
nation to nine of the 13 acres within the Project area, including
four office building sites, eight theaters, and three other mid-
block parcels (R. 72, 144). The UDC did not, however, take
title to any portion of Site 8 (R. 72). Indeed, the merchandise
mart which the 1984 determination and findings proposed for
Site 8 was never built.

On or about January 27, 1994, the UDC issued a new
determination and findings confirming and updating its 1984
determination and findings (R. 144-162). The 1994 determina-

5

tion and findings no longer proposed to proceed with the
construction of a merchandise mart on Site 8. The 1994
determination and findings did not make a definitive finding
with respect to the ultimate use of Site 8 South. Indeed, they
did not even make a finding that Site 8 South would necessarily
be taken as part of the Times Square Redevelopment Project at
all. Instead, they listed a number of possible alternatives for
Site 8 South, including:

(1) A “wholesale mart/office building” with bridges
over Eighth Avenue and 41st Street (R. 146, 159); or

(2) Two or more “residential buildings” aggregating
approximately 1.0 million square feet and housing about
1,700 to 2,000 residents (R. 159); or

(3) Letting the Times Square Redevelopment Project
expire in 2015 without taking and developing Site 8 South
at all (R. 159, 160).

While the respondents were thus keeping the fate of Site 8
South in suspense, positive changes in the New York real estate
market in general, and in the Times Square arez in particular,
made the “blight” that the respondents had previously found to
exist in the Times Square area in 1984 a thing of the past. As
stated by The New York Times, “[b]lighted is not a word that
anyone would use to describe Times Square today... .”
Charles V. Bagli, Companies Get Second Helping of Tax
Breaks, The New York Times, Oct. 17, 1997, p. Al, col. 5, p.
B2, col. 1. These developments have removed any possible
question as to the willingness of developers to develop Site 8
South without any assistance from government (see, e.g., R.
182-185, 273, 274, 277-278, 299-300).’

2 The attractiveness of Site 8 South for development is confirmed by
the fact that Site 8 North, just across the street from Site 8 South, has
recently been purchased by a Milstein family entity for almost three times

6

The respondents implicitly acknowledged the significance of
these positive changes by admitting publicly in 1994 that it
might not be necessary for them to take Site 8 South at all (R.
159, 160). Nevertheless, as described below, the respondents
refused to permit the petitioners and other landowners in Site 8
South to develop their property, despite repeated attempts on
their part to do so.

B. Respondents’ Refusal to Permit the Owners to
Develop Site 8 South |

From the inception of the Times Square Redevelopment
Project in 1980, the pendency of the Project, and the UDC’s
announced intention te take Site 8 South by condemnation,
have prevented petitioners and the other landowners in Site 8
South from developing their properties (R. 72). In the face of
the looming prospect of condemnation, it is impossible to
arrange the financing and the long-term tenant commitments
necessary for a major office building development (R. 272,
277). This interference with petitioners’ ability to develop their
properties continued unabated after 1994, despite the UDC’s
public admission in 1994 that it might in the end never seek to
acquire Site 8 South at all (R. 72-73).

In an effort to regain the ability to develop their properties,
250 West 41st Street Corp., a former owner of the lot later
owned by petitioner West 41st Street Realty LLC, and peti-
tioner Times Square Garage, Ltd. commenced an action on
statutory grounds against the UDC and others in the Supreme
Court, New York County (R. 73). 250 West 41st Street Realty
Corp., et al. v. New York State Urban Development Corpora-
tion, et al., Index No. 112828/97 (R. 163-181). The UDC and
the other defendants, far from agreeing to permit the landown-

the price per square foot that the Times has agreed to pay for Site 8 South
(R. 298-299, 318, 413-414, 767).

7

ers of Site 8 South to develop their properties, vigorously
defended the action (R. 73). The action eventually resulted in
a determination that the UDC retained the statutory right to
condemn Site 8 South. 250 West 41st St. Realty Corp. v. New
York State Urban Dev. Corp., 277 A.D.2d 47, 715 N.Y.S.2d
407 (ist Dep’t 2000), leave to appeal denied, 96 N.Y.2d 705,
746 N.E.2d 187, 723 N.Y.S.2d 132 (2001).

In early 1999 Gary Barnett, the Managing Member of
petitioner West 41st Street Realty LLC, on behalf of petitioners
and other owners of the majority of the square footage included
in Site 8 South, contacted UDC and expressed interest in
developing the Site on terms which would include the payment
of fair market value for the Site (R. 74). Mr. Barnett confirmed
this offer in a letter dated March 5, 1999 (R. 182-185), in which
he described the capabilities of the developer of which he is
President, Intell Management and Investment Company:

“Intell Management and Investment Company is a
national organization which has owned, managed and
developed nearly 8 million square feet of office, retail
and residential projects located throughout the United
States. We are also presently developing the Planet
Hollywood Hotel in Times Square, a 50 story, 500
room hotel and retail project on Broadway and 46th
Street. We are building the Planet Hollywood project
without any tax incentives from the City or State.”

(R. 185.)

By a letter dated March 17, 1999, 42DP rejected this offer
(R. 186). This letter stated that “the State and-the City’s current
thinking is to engage in a competitive process to select the
developer” (id.).

8

C. Respondents’ Decision to Condemn Site 8 South
for the Benefit of the New York Times

Contrary to its previously statec intention of engaging in a
competitive process to select a developer for Site 8 South, the
UDC in October 1999 commenced unilateral negotiations with
the New York Times (the “Times”) regarding the possibility of
relocating the headquarters of the Times from West 43rd Street
to Site 8 South (R. 74). After its negotiations with the New
York Times became known, the UDC refused to permit other
interested developers to participate in those negotiations or to
submit alternative proposals (R. 75).

In June 2000, the UDC and 42DP entered into a Memoran-
dum of Understanding with the Times and its chosen developer,
Forest City Ratner Companies, pursuant to which the UDC
would acquire Site 8 South by exercising its power of eminent
domain and (through 42DP) would lease the Site to the Times
and Ratner, which would construct an office building on the
Site having an announced square footage of approximately
1,370,000 square feet (R. 75).

On September 4, 2001, the UDC and 42DP issued a notice of
a hearing with respect to the proposed acquisition and develop-
ment of Site 8 South (R. 187-194). In the notice, the UDC and
42DP stated in a single conclusory sentence that the proposed
condemnation would serve a public use, which the notice stated
was “to continue and reinforce the revitalization of the area, to
promote economic and social benefits to the City of New York,
and to restore a blighted, deteriorated, substandard, insanitary
and underutilized site to full productive use” (R. 193). The
notice failed to disclose that any remaining “blight” in Site 8
South would already have been removed by the development of
the Site if the respondents had simply allowed the owners of
Site 8 South to develop their properties (R. 75-78).

9

On September 24, 2001, the UDC and 42DP held a public
hearing on the proposed condemnation of Site 8 South (R. 195-
316). Each of the petitioners appeared at the public hearing in
opposition to the proposed condemnation (R. 76). Among other
things, the petitioners drew the attention of the UDC and 42DP
to the lengthy and unconstitutional suspension of the petition-
ers’ right to develop their property, and to the absence of any
factual basis for a finding of public use (id.).

For example, Gary Bamett, the Managing Member of
petitioner West 41st Street Realty LLC and the President of
Intell Management and Investment Company, stated at the
hearing: |

“In terms of the process, for nearly twenty years
the UDC has kept the land in Site 8 South on hold.
No developer has been able to develop and no prop-
erty owner has been able to develop their property
because of the cloud that they’ve kept on it.

“No compensation has been paid to any of the
property owners so far.

“And, in fact, UDC has said they could keep it
another ten years and perhaps not even take it at the
end of the day.

“Any law that permits this kind of conduct on the
part of a government agency is unconstitutional and
we believe that the UDC should not be able to rely on
an unconstitutional law to take Intell’s property now.

“In terms of the public purpose of these proceed-
ings and of the condemnation, we certainly feel very
strongly — Intell has plans to develop the property,
and this property would already have been developed
without the UDC. It’s a canard to think that the only |
way this property would get developed is if UDC

takes it.” (R. 272-273.)

Samuel Brach, the President of petitioner Times Square
Garage Ltd., spoke to the same effect:

“. . . I approached the czar through UDC, Mr.
Gargano. I presented him a plan. I arranged to have
a developer, presented him a plan and asked him
what he would likely okay the plan to develop.

“He told me he would let me know.

“And that happened about three years ago. -Never
happened.

“Because I’m not New York Times. .. .

“T ask the Board to reject this because it is not fair,
it’s not right, it’s unconstitutional, because after all
we bought it before and we should have the right to
choose a developer to develop the property.” (R.
274-275.)

Similarly, Robert C. Lapin, the President of petitioner EMM
Realty Corp., stated:

“Since 1984, my property has been in limbo. On
one hand, I could never develop it because UDC
could have condemned it at any time. But on the
other hand, the UDC refused to formally condemn it
and pay me for the property.

“For seventeen years then I have been without
compensation for the many opportunities I have lost
to develop my land.

“If the plan goes forward, the UDC will be re-
warded for tying up Site 8 South for nearly twenty
years without paying anyone for all of the opportuni-
ties lost.

1]

“Any law that allows property to be frozen for this
long is unfair and, I believe, unconstitutional. The
State should not permit this plan to go forward.” (R.
298.)

“Just walk around this area and you will find that
the blight, unsanitary and underutilized area no
longer is a factor to consider under the label of public
use.

“In ali regards, this is a gigantic giveaway of the
public’s funds and private property to The New York
Times and Forest City Ratner.

“If both of these entities want this property, they
should negotiate in the democratic way with the
owners.” (R. 299-300.)

On or about November 30, 2001, more than two months after
the hearing was concluded, the UDC issued the determination
and findings which are under review herein (R. 317-326).

In its determination and findings, the UDC did not contradict
in any way the facts stated by the petitioners at the public
hearing (R. 78). In particular, the UDC did not deny that for
more than two decades it has made it impossible for petitioners
and the other landowners in Site 8 South to develop their
properties (see id.). Nor did the UDC deny that any residual
“blight” in Site 8 South would have been eradicated by the
development of the property if the UDC had simply permitted
such development to proceed (see id.).

In the determination and findings, the UDC did not retract
the admission in the September 4, 2001 notice of public hearing
that “significant strides have been made in eliminating the
blighted conditions in the Times Square area” (R. 193; see R.
319). However, the UDC reiterated the conclusory finding in
the September 4, 2001 public notice that the proposed condem-

12

nation of Site 8 South was necessary to remove “blight” in the
Site (R. 319).

D. The Decisions Below

Pursuant to Section 207 of the New York State Eminent
Domain Procedure Law (“EDPL”), the petitioners sought
review of the UDC’s determination and findings by filing an
original petition for review in the Supreme Court of the State of
New York, Appellate Division, First Department (R. 65-85).
The petition set forth the constitutional claims which are
presented herein, and expressly relied upon the Fifth and
Fourteenth Amendments to the United States Constitution, as
well as upon the corresponding provisions of the New York
State Constitution (12a-13a).*

By an order dated February 19, 2002, the Appellate Division
stayed the UDC’s determination and findings pending the
hearing and determination of the petition.

In a decision and order dated June 20, 2002, the Appellate
Division confirmed the UDC’s determination and findings (3a-
lla). The Appellate Division acknowledged that the “[p]eti-
tioners argue that the proposed taking should be barred because
the benefit inures to a private party, viz. the New York Times”
(6a). The court stated that “our review on this point is limited
to ascertain whether the project is rationally related to a
conceivable public purpose” (9a), and upheld the proposed
condemnation under this highly deferential standard of review
as a means of eliminating “blight” (10a).

The Appellate Division also acknowledged that the petition-
ers had argued that the proposed taking was “in violation of due

* Pursuant to Supreme Court Rule 14.1(g)(1), the First and Second
Claims of petitioners’ original petition for review in the Appellate Division
are reproduced in Appendix C (12a-13a).

13

process protections of the state and federal constitutions on the
ground that the UDC itself created any ‘blight’ which justifies
condemnation since the UDC made it impossible for the owners
to reap the value of their land during the last twenty years” (6a).
Ignoring the uncontradicted evidence before it (see pp. 6-7, 9,
10 supra), the court stated that the record was “devoid” of
evidence that the UDC had prevented the owners from develop-
ing their property (10a-1 1a).

The petitioners appealed as of right on constitutional grounds
to the New York State Court of Appeals. On September 12,
2002, the Court of Appeals dismissed the appeal “upon the
ground that no substantial constitutional question is directly
involved” (2a).

REASONS FOR GRANTING THE WRIT
POINT I

The Taking Is Unconstitutional Because It Is Being
Carried Out for the Private Purpose of Substituting One
Private Developer for Another, Not for the Purported
Public Purpose of Eliminating “Blight”

It is a fundamental principle of federal constitutional law that
“one person’s property may not be taken for the benefit of
another private person without a justifying public purpose, even
though just compensation be paid.” Thompson v. Consolidated
Gas Utils. Corp., 300 U.S. 55, 80 ( 1937) (Brandeis, J.) (cita-
tions omitted). See also, e.g., Chicago, St. P, M. & O. Ry. v.
Holmberg, 282 U.S. 162, 167 ( 1930) (Stone, /.); U.S. Const.
Amdt. 5 (“[NJor shall private property be taken for public use,
without just compensation.”). The question of whether the

“ On August 19, 2002, the taking was consummated. This does not
moot the present proceeding, however, because the taking can and will be
annulled if this Court should hold it to be unconstitutional.

14

requisite public use exists is one which the courts — and not the
condemning agency — must ultimately decide. See, e.g., Rindge
Co. v. County of Los Angeles, 262 U.S. 700, 705 (1923).

Here the purported public use is the elimination of “blight”
through the development of the property. While this Court has
held that the elimination of blight through urban redevelopment
may constitute a public purpose which justifies a taking, see
Berman v. Parker, 348 U.S. 26, 32-36 (1954), the critical
distinguishing fact in the present case is that the owners
themselves wish to develop their own property, but have been

prevented from doing so by the respondents.

Where this is true, the elimination of “blight” per se can no
longer ccustitute the public purpose required to justify the
taking under the Constitution. Since the property will be
developed under either scenario, thereby eliminating any
remaining “blight,” it is not enough merely to say that the
elimination of “blight” is in the public interest. This is particu-
larly true where, as here, the uncontradicted record evidence is
that there is a “thriving real estate market” in the Project area
(R. 406), and that any remaining “blight” would already have
been eliminated by the owners themselves if the respondents
had only permitted them to develop their own property (see pp.
6-7, 9, 10 supra). In this connection, the issue is not whether
there was “blight” more than 20 years ago when the Times
Square Project was first begun; the issue is whether there is
“blight” that prevents private development of the property
today.

The real public purpose issue in this case is not the elimina-
tion of “blight.” Rather, the real public purpose issue in this
case is whether or not it is a constitutionally sufficient public
purpose for the state to take property from a private owner who
wishes to develop it in order to give it to another private party
who also wishes to develop it.

15

There is a clear conflict among the lower courts on this issue.
In this case, the courts below have answered this question in the
affirmative. Other recent decisions have answered the same
question in the negative. See, e.g., 99 Cents Only Stores, Inc.
v. Lancaster Redevelopment Agency, No. CV 00-07572, 2001
WL 811056, at *4-*5 (C.D. Cal. 2001) (striking down the
proposed taking of one retailer’s property to satisfy the private
expansion demands of another retailer), appeal docketed, No.
0156338 (9th Cir. Aug. 10, 2001); Southwestern Illinois
Development Auth. v. National City Environmental, L.L.C., 199
Ill. 2d 225, 235-42, 768 N.E.2d 1, 7-11 (condemnation of
private property to be conveyed to a private corporation to
expand its parking lot was not for a primarily public use), cert.
denied, 123 S. Ct. 88 (2002); Prestonia Area Neighborhood
Ass'n v. Abramson, 797 S.W.2d 708, 711-12 (Ky. 1990) (taking
of property to benefit another private party is invalid); Tolksdorf
v. Griffith, 464 Mich. 1, 11, 626 N.W.2d 163, 169 (2001)
(taking of property for a private road was not for a public
purpose).

The importance of this question is difficult to overstate. In
any case where the owner of property proposes to develop it,
the argument can be made that by that very fact the owner has
admitted that the property is “blighted,” at least in the sense that
it is not yet being used for its highest and best use. If this fact
alone is enough to authorize the state to step in and take the
property for the benefit of another private developer, then the
result will be that the state will be authorized to designate its
own preferred developer for any property whose owner has
proposed to develop it. Such a sweeping assertion of the power
to take private property from one person in order to give it to
another cannot be reconciled with the command of the Consti-
tution that “one person’s property may not be taken for the
benefit of another private person without a justifying public
purpose, even though just compensation be paid.” Thompson

> 16

v. Consolidated Gas Utils. Corp., supra, 300 U.S. at 80.

This Court has never decided the question whether a claim of
“blight” is sufficient to entitle a state to take private property
from its owner who wishes to develop it and to give the
property to another private person to develop instead. No such
question was presented in Berman v. Parker, supra, and no
such question was presented in any other case decided by this
Court. This Court should grant certiorari in order to resolve
this important question. j

Any breach in the constitutional wall of prohibition against
the taking of private property for private purposes creates the
danger that politically influential entities will be able to enlist
the cooperation of the state to take the property of others for
their own private ends. Th*s danger is well illustrated by the
present case, in which one of the world’s wealthiest and most
influential newspapers has persuaded the respondents to
expropriate the property of the petitioners for its new world
headquarters. This Court should reaffirm that this is not a
constitutionally permitted use of the condemnation power.

POINT If

The Proposed Taking Is Unconstitutional Because It Is
Based Upon Respondents’ Unconstitutional Decades-Long
Prevention of the Development of Site $ South.

The Due Process Clause, as well as the Takings Clause, of
the United States Constitution applies to all proposed condem-
nation proceedings. See, e.g., In re Tuthill, 163 N.Y. 133, 143-
44,57 N_E. 303, 306-07 (1900) (Gray, J.).

It is a violation of due process for a state to prevent the
owners of private property from developing their property for
an indefinite period. See, e.g., Jensen v. City of New York, 42
N.Y.2d 1079, 1080-81, 369 N.E.2d 1179, 1179-80, 399
N.Y.S.2d 645, 646-47 (1977) (depriving a property owner of

5
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8 yaa RC AT MON OEY LONGO RIS ENE NER LRAS LAOOE Se ee ae

17

the use of her property for an indefinite period constitutes a
deprivation of property without due process of law); St. Morris
Assocs. v. McMorran, 35 A.D.2d 997, 998, 318 N.Y.S.2d 121,
123 (2d Dep’t 1970) (“The rights of a property owner to the
lawful use of his property may not be indefinitely deferred upon
the ground that the property might, at some future time, be
required for public use. [Citations omitted.]’).

In the present case, the respondents have prevented the
petitioners from developing Site 8 South for more than two
decades (see pp. 6-7, 9, 10 supra). The respondents’ threat of
condemnation alone was sufficient to prevent the development
of the property, because it made it impossible to secure the
financing and tenant commitments necessary for a major office
building development (see p. 6 supra). But the respondents did
not rely solely on the overhanging threat of condemnation to
prevent the development of Site 8 South; they also took active
measures to make sure that the Site could not be developed.
Among other things, the respondents litigated state-law
statutory issues all the way to the New York Court of Appeals
in order to maintain their control over the Site (see pp. 6-7
supra), and rebuffed a formal offer by the landowners of Site 8
South to develop the Site at no cost to the State or City (see p.
7 supra). The respondents did all this despite the fact that they
had no specific plans for the development of Site 8 South, and
despite the fact that they had admitted publicly in 1994 that they
might never decide to take Site 8 South at all (see pp. 5-7
supra).

In light of the foregoing facts - which are undisputed in the
record — it cannot be seriously questioned that the respondents’
decades-long prevention of the development of Site 8 South
was and is a violation of the due process of law which is
safeguarded by the United States Constitution. See, e.g.,
Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d 993, 996-
97 (1st Cir. 1983) (reviewing authorities, and holding that a 14-

18

year cloud of condemnation “exceeds every available indication
of what the duration of a reasonable and constitutional freeze
might be” (footnote omitted)).

The Appellate Division implicitly recognized that the
indefinite prevention of development violates due process of
law, but it sought to avoid the application of this principle by
saying that the record was “devoid of evidence” that the
petitioners were prevented from developing their property (10a-
lla). But the unrebutted and uncontradicted evidence in the
record was that the threat of condemnation made it impossible
for the owners to secure the financing and the long-term tenant
commitments necessary for a major development of this kind
(R. 183, 272, 277).

Thus the record compels the conclusion that the petitioners
have been unconstitutionally prevented by the respondents from
developing their property. This, in turn, further confirms that
the proposed condemnation of Site 8 South is unconstitutional,
because the respondents’ purported justification for the pro-
posed condemnation — the alleged persistence of “blight” on the
Site — is a direct result of the respondents’ own unconstitutional
prevention of the development of the Site. Therefore, to permit
the respondents to use this pretext to condemn Site 8 South at ~
this time would be to permit them to profit from a situation
which has been created by their own unconstitutional acts.

To permit this would be to violate a fundamental principle of
justice. As Judge (later Justice) Cardozo wrote in People v.
Schmidt, 216 N.Y. 324, 341, 110 N.E. 945, 950 (1915):

“The principle is fundamental that no man shall be
permitted to profit by his own wrong. It enters, by
implication, into all contracts and all laws. [Citation
omitted]... .”

See also, e.g., Riggs v. Palmer, 115 N.Y. 506, 511-12, 22 N.E.

188, 190 (1889).

Thus, even if the respondents would otherwise be constitu-
tionally entitled to condemn Site 8 South for the benefit of the
New York Times under the pretext of eliminating “blight,” the
condemnation would violate the owners’ constitutional rights
because any remaining “blight” on the Site is the direct result of
the respondents’ unconstitutional course of action in preventing
the petitioners from developing their property for a period of
more than two decades.

20

CONCLUSION

For the reasons set forth above, the Court should grant a writ
of certiorari to review the order of the Court of Appeals of the
State of New York, dated September 12, 2002, dismissing the
petitioners’ appeal from the decision and order of the Supreme
Court of the State of New York, Appellate Division, First
Department, dated June 20, 2002.

Dated: New York, New York
December 11, 2002

Respectfully submitted,

GUY MILLER STRUVE

Counsel of Record
LORILEE A. VAUGHAN
JEREMY KUDON
DAVIS POLK & WARDWELL

450 Lexington Avenue

New York, New York 10017
(212) 450-4192

Counsel for Petitioners

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0876%3A1. Public record. Not legal advice.