Amicus Curiae Brief — Tuck-It-Away, Inc. v. New York State Urban Development Corp.

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FILéeb

| No. 10-402

jn The | OFFICE OF Fh

Supreme Court of the United States

— —— @ —

TUCK-IT-AWAY, INC., et al.,

Petitioner:

y

NEW YORK STATE URBAN DEVELOPMENT

CORPORATION, d/b/a EMPIRE STATE

DEVELOPMENT CORPORATION,

Respondent

+

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of New York

——-¢@

BRIEF OF AMICUS CURIAE NEW YORK

STATE SENATOR BILL PERKINS IN

SUPPORT OF PETITIONERS

.

DENISE OUTRAM*

Harlem State Office Building,

Suite 912

163 West 125th St

New York, NY 10027

212-222-7315

doutram@nysenate.gov

AMY LAVINE

ALBANY LAW SCHOO!

80 New Scotland Ave

Albany, NY 12208

518-472-5849

alavine@albanylaw.edu

*Counsel of Record

Counsel for Amicus Curiae

COCKLI LAW BRIE! PRINTING CO (BOD) 22 O94

OR CALL COLLECT (402) 542-2851

a

TABLE OF CONTENTS

Pape

INTEREST OF THE AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF REASONS TO GRANT TH Pie

ME udu sn cdncecucetuthascekoneees |

REASONS TO GRANT Titik PklTITION

I]

THE COURT OF APPEALS IGNORED

THE MINIMUM FIFTH AMENDMENT

SAFEGUARDS THIS COURT ARTICU

LATED IN KELO AND ABDICATED ITS

RESPONSIBILITY OF JUDICIAL Rie

VIEW .............

THE BURDENS OF BLIGHIT AND ECO

NOMIC DEVELOPMENT CONDEMNA

TIONS HAVE AND WILL CONTINUE

TO FALL DISPROPORTIONATELY UP

ON RACIAL AND ETHNIC MINORITIES

AND "THE ECONOMICALLY DISAD

VANTAGED.......... einai

A. URBAN REDEVELOPMENT CONDEM

NATIONS HAVE HISTORICALLY BEEN

USED TO TARGET LOW-INCOME

AND RACIALLY DIVERSE NEIGII

BORHOODS

—“~

TABLE OF CONTENTS ~- Continued

Page

B. AS EXEMPLIFIED BY THIS CASE,

BLIGHT REMOVAL AND ECONOMIC

DEVELOPMENT CONDEMNATIONS

CONTINUE TO HAVE DISPROPOR-

TIONATE IMPACTS ON MINORI-

TIES AND THE ECONOMICALLY

DPE VII ERED ose ccescvesncscenscenesonsers 12

Ill. THE COURT OF APPEALS’ HOLDING

THAT ESDC DID NOT VIOLATE PETI-

TIONERS’ DUE PROCESS BY WILL-

FULLY OBSTRUCTING THEIR FOIL

REQUESTS WAS INCORRECT AND

DEMONSTRATES THE NEED FOR THIS

COURT TO ESTABLISH MINIMUM

STANDARDS FOR PROCEDURAL DUE

PROCESS IN THE CONDEMNATION

PINE so icixtvevansachicioceataticistiericecneeeiions 23

Sieh PENT On ENE os ss, cane va cceecaradaaniaes ave speutvesewcioms serene 24

11]

TABLE OF AUTHORITIES

Page

CASES

Berman v. Parker, 348 U.S. 26 (1954) ......... 8,9, 10, 12

Cincinnati v. Vester, 281 U.S. 439 (1930).......0000 ee. 6

Fink v. Lefkowitz, 47 N.Y 2d 567 (1979) ....................23

Karesh v. City Council, 247 S.E.2d 342 (S.C.

MS once sess avicvandacsescrunzvarsass toaacencbers ieee ori estoa ee 13

Kelo v. New London, 545 U.S. 469 (2005).......... passim

Levin v. Township of Bridgewater, 57 N.J. 506

22g & BRRBR RO peetey takapyetie tesa pe pens enn Gront saan Guru Sama 13

Marbury v. Madison, 5 U.S. 137 (1803).......................5

Matter of Goldstein v. Urban Development Cor-

POP GECOM, BS DA: 0. DRE CAPO) oo yas cocssscessucécnvenscstes 19

Matter of Kaur v. N.Y.S. Urban Dev. Corp., 72

A.D.3d 1 (App. Div. 1st Dep’t 2009)..............0....... 4,5

Matter of Kaur v. N.Y.S. Urban Dev. Corp., 15

es ee ee A EE dan cnck ca canes bins cbdsadurenednveseenuleees 4,5,6

Matter of Uptown Holdings, LLC v. City of New

York, 2010 N.Y. Slip Op. 07227 (App. Div. Ist

Ey SUN ois eke vsn'ck sch ocveek anal e tenia os cane asiea tunceateassasnens 6

Matter of West Harlem Bus. Group v. ESDC, 13

ae ee RR og co cpna vince 5h sks ceshadanvaionta teasvaenuay ies 23

NLRB v. Robbins Tire & Rubber Co., 437 U.S.

RN IN i hee ae ani veg coe cai uy nave cnaduee tables essee cuneate: 23

Poletown Neighborhood Council v. City of

Detroit, 304 N.W.2d 455 (Mich. 1981)... ee. 13

lV

TABLE OF AUTHORITIES — Continued

Page

United States v. Carolene Products Co., 304

U.S. 144 (1GS8) «02... <cencesdeccesecrsceyeuss ania uet oleae 7

Yonkers Community Development Agency v.

Morris, 37 N.Y¥.20 478 (4976)......4....588 ee 13

STATUTES

Civil Rights Act of 1964, Pub. L. No. 88-352, 78

SSGat. S47 (LOGE) cscs ccsccscscoivseceucs cocecceeeeee 11

Civil Rights Act of 1964, Pub. L. No. 88-352, 80

Stat. 1261 (1964) ....6.6csicecscncdesesseeee eee 11

Fair Housing Act, Pub. L. No. 90-284, tit. VIII,

BS Stat. TS CLD) oo ciccceccnscacenvaceuseeeseaeeteeeeeeaann 11

Housing Act of 1949, 63 Stat. 413...... as Ceaderassenedeseaenaaa 8

Housing Act of 1954, 68 Stat. 590....................cecsssseseee 8

NY. B.D. Be. FBO ioicessscussevcencosacceusancueenneeniniaaanaan 23

N.Y. Pub. OF. $9 64-80 j...cc5.ccccscccsscausuneen ee 23

COURT DOCUMENTS

Kaur Petition to the Court of Appeals....................... 18

Record on Appeal to the Court of Appeals ........... 17,18

TABLE OF AUTHORITIES — Continued

Page

Brief of Amici Curiae Nat’l Ass’n for the

Advancement of Colored People, AARP, His-

panic Alliance of Atlantic County, Inc., Citi-

zens in Action, Cramer Hill Resident Ass’n,

Inc., and the Southern Christian leadership

Conf. in Support of Petitioners, 2004 WL

Sn... csncecsesecseeseosarcecssoecnen 16, 20, 22

SECONDARY SOURCES

Amy Lavine, Urban Renewal and the Story of

Berman v. Parker, 42 Urs. LAw. 423 (2010)....... 8, 10

Amy Lavine and Norman Oder, Urban Rede-

velopment Policy, Judicial Deference to Unac-

countable Agencies, and Reality in Brooklyn's

Atlantic Yards Project, 42 Urs. Law. 287

cc siisgcassyensssscscescsscnsecavevcnnsusnsceanescesecs 19

Charles Toutant, Alleging Race-Based Con-

demnation, N.J.L.J., Aug. 2, 2004 ............c eee 14

COMMUNITY BOARD 9 MANHATTAN 197-A PLAN:

HAMILTON HEIGHTS, MANHATTANVILLE, MORNING-

mmneseeT SS ZO (2007) ..............ccccccccccccccccccscocccccoes 21

Daphne Eviatar, The Manhattanville Project,

THE NEw YORK TIMES MAGAZINE, May 21,

Tenis scneiuwaceesavessceséesescacicoesavavesecees 17,18

David A. Dana, Exclusionary Eminent Domain,

meee aed. SCON. REV. 7 (2009)..................ccccesesseseess 13

David Firestone, Black Families Resist Missis-

sippt Land Push, N.Y. TIMES, Sep. 10, 2001 .......... 14

v1

TABLE OF AUTHORITIES — Continued

Page

Dick M. CARPENTER II, PH.D. & JOHN K. Ross,

VICTIMIZING THE VULNERABLE: THE DEMO-

GRAPHICS OF EMINENT DOMAIN at 6 (Institute

Ci I os noe a cao ese ca cdvansece cane etn eds a 14

Gideon Kanner, “Unequal Justice Under Law”:

The Invidiously Disparate Treatment of

American Property Owners in Takings Cases,

40 LOW. Gis Ua; BONS FO Cf vscic cesses hoarse 19

Herbert J. Gans, The Failure of Urban Re-

newal: A Critique and Some Proposals, in

URBAN RENEWAL (Bellush, ed.)....................:.eceeeeee 11

HERBERT J. GANS, THE URBAN VILLAGERS:

GROUP AND CLASS IN THE LIFE OF ITALIAN-

PBATEIC AES Te Gr BP ois voces vasnccnckcdndcagusescseecens 20

Jarrett Murphy, History Lesson: Three decades

after the drama of ’68, will Harlem make

room for Columbia?, THE VILLAGE VOICE,

PN Be oo nes casinos catasnncs rachis oe 21

Jody Arogeti, Anita Bhushan, Jill M. Irvin &

Jessica Kattula, Eminent Domain, 23 GA. ST.

Ms kus I Eis os hv cccens cca ca ecnxceapnenr eae 19

John A. Powell and Marguerite L. Spencer,

Giving Them the Old “One-Two”: Gentrifica-

tion and the K.O. of Impoverished Urban

Dwellers of Color, 46 How. L.J. 433 (2003)...... 16, 20

TABLE OF AUTHORITIES — Continued

Page

Keith H. Hirokawa and Patricia Salkin, Can

Urban University Expansion and Sustain-

able Development Co-Exist? A Case Study in

Progress on Columbia University, 37 FORD-

PUADE SPR. Baad are CBD ccacsccisierscveseiness un dsbeekaeaiece 17

Kevin Douglas Kuswa, Suburbification, Segre-

gation, and the Consolidation of the Highway

Machine, 3 J.L. Soc’y 31 (2002)........... eee rae ee 9g

KENNETH JACKSON, CRABGRASS FRONTIER (Ox-

WOE RNR PW BE Foo c io occk cca du nod vacacenadnccuccacenveses ll

Michele Alexandre, “Love Don’t Live Here Any-

more”: Economic Incentives for a More Equt-

table Model of Urban Redevelopment, 35 B.C.

gy Oey ae a - ) ne 19

MINDY FULLILOVE, RooTr SHOCK: HOW 'TEARING

Up Ciry NEIGHBORHOODS HURTS AMERICA, AND

WHAT WE CAN Do AsBouT IT (One World/

IO SE ga psu vnyneihccscatavaienavevasaeeviovni 22

Miriam Axel-Lute, Wili Columbia Take Man-

hattanville?, SHELTERFORCE, Mar. 22, 2008........ es

New York City Dep't of City Planning,

Manhattanville Final Environmental Impact

BIE 0 IE Bi caren avenexvassocedscssvadeixeuscessuanieea 14, 15

Paul Boudreaux, Eminent Domain, Property

Rights, and the Solution of Representation

Reinforcement, 83 DENV. U.L. REv. 1 (2005)....13, 19

ROBERT CARO, THE POWER BROKER (1974)..............0005 11

Vill

TABLE OF AUTHORITIES — Continued

ScoTtr A. GREER, URBAN RENEWAL AND AMERICAN

CITIES: THE DILEMMA OF DEMOCRATIC INTER-

oe kG. : Ree EOS Dicer Pace yrs RO TCe aS ia ean

Sheila R. Foster and Brian Glick, Integrative

Lawyering: Navigating the Political Economy

of Urban Redevelopment, 95 CALIF. L. REv.

TUE EEF siciaiscnee isda vininiassnncudsi paniaeenectaydenateeeis

Stephen Clowney, J/nvisible Businessman:

Undermining Black Enterprise with Land

Use Rules, 2009 U. ILL. L. REv. 1061 (2009) .....

Timothy Williams, Jn West Harlem Land Dis-

pute, It’s Columbia us. Residents, THE NEw

TOMK TIMES, NOV. BO, BG oon ncn ccccccdcvescescccccacecsss

U.S. Environmental Protection Agency, Envi-

ronmental Justice Website ....................cccceseccees

Wendell E. Pritchett, The “Public Menace” of

Blight: Urban Renewal and the Private Uses

of Eminent Domain, 21 YALE L. & POL’Y REv.

BE sacs cased ay eos taschdviancubentivivetc ts ieoomes ees

10, @

INTEREST OF THE AMICUS CURIAE'

The amicus represents the 30th Senatorial

District of New York, which encompasses. the

Manhattanville site of Columbia University’s pro-

posed expansion project. As the representative of

residents and businesses who would be adversely

affected by the project, amicus has a very strong

interest in ensuring that development within the

district proceeds equitably and fairly, especially for

the district’s minority and economically disadvan-

taged residents. These groups, although marginalized

in the project approval process, would be dispropor-

tionately impacted by the expansion project.

— °

STATEMENT OF THE CASE

Amicus adopts the statement of the case present-

ed in the petition.

1

The parties were notified ten days prior to the due date of

this brief of the intention to file and consent was granted. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation of submission of this brief. No person other

than amicus curiae, its members, or its counsel made a mone-

tary contribution to its preparation or submission.

2

SUMMARY OF REASONS

TO GRANT THE PETITION

In this case, Respondent Empire State Devel-

opment Corporation (ESDC) determined that Peti-

tioners’ well-maintained but not fully built-out

properties were blighted in order to facilitate their

transfer to Columbia University, a private and politi-

cally favored institution. The New York Court of

Appeals, under the guise of deference to ESDC’s

administrative decision, abdicated its responsibility

to provide meaningful review of Petitioners’ pretext

claims. This was not simply error, but a direct result

of lower court confusion over the scope and applica-

bility of this Court’s decision in Kelo v. New London,

545 U.S. 469 (2005). The need for clarification of

Kelo’s takings jurisprudence on pretext is especially

important given the nature of urban redevelopment

in the United States, which targets the most mar-

ginal and least influential communities. Far too often,

its negative impacts have fallen disproportionately on

racial and ethnic minorities and the economically

disadvantaged. The Court of Appeals also rejected

Petitioners’ claim that their rights to procedural due

process were violated by ESDC’s willful obstruction of

Petitioners’ attempts to obtain public documents

through the New York State Freedom of Information

Law. This result runs counter to the spirit and intent

of freedom of information laws, and demonstrates the

need for this Court to establish minimum standards

of due process in the context of eminent domain

proceedings.

REASONS TO GRANT THE PETITION

I. THE COURT OF APPEALS IGNORED THE

MINIMUM FIFTH AMENDMENT SAFE-

GUARDS THIS COURT ARTICULATED

IN KELO AND ABDICATED ITS RESPON-

SIBILITY OF JUDICIAL REVIEW

As argued in Petitioners’ brief, the Court of

Appeals ignored this Court’s statement in Kelo that

the Fifth Amendment prohibits a governmental entity

from “takling] property under the mere pretext of a

public purpose, when its actual purpose was to be-

stow a private benefit.” Kelo, 545 U.S. at 478. Specifi-

cally, the court below ignored the factors discussed by

Justice Kennedy and the Kelo majority as relevant to

identifying impermissible favoritism toward specific

private parties. Kelo, 545 U.S. at 450-51, 483-84;

Kelo, 545 U.S. at 491-93 (Kennedy, J., concurring).

The Court of Appeals’ failure to even mention Kelo

demonstrates its disregard for this Court’s precedent.

Unlike the Court of Appeals, and in line with

Kelo, the plurality decision of the First Department

Appellate Division identified evidence of pretext and

reviewed the record to determine the merit of Peti-

tioners’ claims. Relying on Kelo, the court identified a

number of relevant factors, including:

1. The city’s awareness of its depressed

}

economic condition... .

2. The formulation of a comprehensive de-

velopment plan meant to address a seri-

ous citywide depression.

3. The substantial commitment of public

funds to the project before most of the

private beneficiaries were known

4. The city’s review of a variety of devel

opment plans.

5. The city’s choice of a private developer

from a group of applicants rather than

picking out a particular transferee be-

forehand.

6. The identities of most of the private ben

eficiaries being unknown at the time the

city formulated its plan.

~]

The city’s compliance with elaborate

procedural requirements that facilitate

the review of the record and inquiry into

the city’s purposes.

Matter of Kaur v. N.Y.S. Urban Dev. Corp.,

72 A.D.3d 1, 8-9 (App. Div. Ist Dep’t 2009)

(citing Kelo, 545 U.S. at 491-93 (Kennedy, J.,

concurring), rev'd, 15 N.Y.3d 235 (2010)).

Despite this Court’s guidance in Kelo and the

plurality decision of the appellate division below, the

Court of Appeals discussed only one aspect of the

case as relevant to the question of pretext: namely,

the conflict of interest created by ESDC using the

developer’s consultant to prepare one of the project’s

blight studies. Matter of Kaur v. N.Y.S. Urban Dev.

Corp., 15 N.Y.38d 234, 255 (2010). While this was

certainly an important consideration relevant to

Petitioners’ claims, the court did not take into account

Petitioners’ other evidence of pretext. The court, did

not mention, for example, that the project site had

not been deemed blighted or included in an urban

renewal area prior to Columbia’s proposal. Matter of

Kaur v. N.Y.S. Urban Dev. Corp., 72 A.D.3d at 9. It

did not acknowledge that Columbia — the developer -

was the sole originator of the project and that no

outside developers were solicited for proposals. /d. at

10. Nor did the court consider that Columbia’s gen-

eral project plan disregarded the long-standing

community-based planning efforts of Community

Board 9. Jd. Additionally, the court failed to see the

significance of Columbia “underwriting” (or “buying”)

the entire project planning process. See id. at 9-10. In

all of these respects, the case at bar presents a much

more likely scenario of pretext than Kelo, yet the

same factors that rendered the Kelo condemnations

constitutional under the Fifth Amendment were

treated as mere surplusage by the Court of Appeals.

By refusing to consider Petitioners’ evidence that

the project is intended primarily to benefit Columbia,

the court abdicated its responsibility to engage in

judicial review and protect Petitioners’ constitutional

rights. See Marbury v. Madison, 5 U.S. 137, 177

(1803) (“It is emphatically the province and duty of

the judicial department to say what the law is.”). As

6

an appellate judge stated in a recent case, the Court

of Appeals’ decision in Kaur “made plain that there is

no longer any judicial oversight of eminent domain

proceedings.” Matter of Uptown Holdings, LLC v. City

of New York, 2010 N.Y. Slip Op. 07227 (App. Div. Ist

Dep’t 2010) (Catterson, J. concurring). While Kelo’s

definition of “public use” is indeed broad, the Fifth

Amendment must not be read so broadly as to elim)

nate the judiciary’s role to define the boundaries of

the law. See Cincinnati v. Vester, 281 U.S. 439, 446

(1930) (“the question what is a public use re

mains a judicial one which this Court must decide in

performing its duty of enforcing the provisions of the

Federal Constitution.”). As Justice Kennedy ex-

plained in his Kelo concurrence, “|a| court confronted

with a plausible accusation of impermissible favor

itism to private parties should treat the objection as a

serious one and review the record to see if it has

merit|.]” Kelo, 545 U.S. at 491 (Kennedy, J., concur

ring). Because the decision below reflects a_ basic

disregard of Kelo and the minimum protections of the

Fifth Amendment, this Court should accept certiorari

to explain how Kelo’s discussion of pretext is to be

interpreted by the lower courts. If the decision 1s

allowed to stand, it will prohibit all but the most

toothless standard of judicial review in future con

demnation cases. This result must be avoided

Il. THE BURDENS OF BLIGHT AND ECO-

NOMIC DEVELOPMENT CONDEMNATIONS

HAVE AND WILL CONTINUE TO FALL

DISPROPORTIONATELY UPON RACIAL

AND ETHNIC MINORITIES AND THE

ECONOMICALLY DISADVANTAGED

There can be little doubt that blight’ removal

and economic development condemnations dispropor

tionately impact already marginalized groups, includ

ing tenants, the elderly, persons of low-income, and

racial and ethnic minorities. Condemnees who belong

to “discrete and insular minorities,” as well as other

disadvantayed proups, are not only marginalized in

the political processes surrounding redevelopment

projects, they are also confronted with especially se

vere impacts from displacement. See Kelo, 545 U.S. at

521 (Thomas, J., dissenting) (citing United States

Carolene Products Co., 304 U.S. 144, 152, n.4 (1938)).

Although this Court has recognized that blight re

moval and economic development takings generally

serve public purposes, the prevalence of eminent

domain abuse in the redevelopment setting and the

fact that these takings also cause disproportionate

harm to minority and low-income communities pro

vides a compelling reason for this Court to grant

review. The lower courts, as illustrated by this case,

need guidance regarding pretext challenges, and the

toothless judicial review required by the decision

below will encourage redevelopment apencies to

appropriate property for private purposes under the

guise of economic development. The consequences,

unfortunately, will be predictable: the benefits will

8

accrue to the wealthy and politically-connected, and

the burdens will fall on those least able to bear them.

A. URBAN REDEVELOPMENT CONDEM-

NATIONS HAVE HISTORICALLY BEEN

USED TO TARGET LOW-INCOME AND

RACIALLY DIVERSE NEIGHBORHOODS

Local urban renewal programs proliferated in

the 1950s and 1960s following the appropriation of

federal funding for slum clearance’ and this Court’s

broad approval of these projects in Berman v. Parker,

348 U.S. 26 (1954). While urban renewal programs

did alleviate truly squalid and economically de-

pressing conditions in many instances, they were

often motivated as much by the interests of business

elites and local governments in increasing central

city tax revenues and luring wealthy residents back

to urban areas.© They were also used to perpetuate

racial segregation and limit the mobility of Afri-

can Americans and other minorities. As the legal

* Housing Act of 1949, 63 Stat. 413; Housing Act of 1954, 68

Stat. 590. See generally Amy Lavine, Urban Renewal and the

Story of Berman v. Parker, 42 Urs. LAW. 423 (2010) (discussing

the social and legal history of national urban renewal policies).

* See, e.g., Wendell E. Pritchett, The “Public Menace” of

Blight: Urban Renewal and the Private Uses of Eminent Do-

main, 21 YALE L. & PoL’y REv. 1 (2003) (discussing how “blight”

was abused to benefit business and commercial interests);

Lavine, supra n.2 (providing a historical account of the condem-

nation at issue in Berman v. Parker).

9

scholar and urban historian Wendell Pritchett has

explained:

Blight was a facially neutral term infused

with racial and ethnic prejudice. While it

purportedly assessed the state of urban

infrastructure, blight was often used to de-

scribe the negative impact of certain resi-

dents on city neighborhoods. This “scientific”

method of understanding urban decline was

used to justify the removal] of blacks and

other minorities from certain parts of the

city. By selecting racially changing neighbor-

hoods as blighted areas and designating

them for redevelopment, the urban renewal

program enabled institutional and political

elites to relocate minority populations and

entrench racial segregation.*

The neighborhood that was at issue in Berman v.

Parker, Southwest Washington, D.C., suffered just

this fate. Although the project area did suffer from

truly blighted conditions, see Berman, 348 U.S. at 30,

the redevelopment also destroyed one of the few then-

integrated parts of the city and forced thousands of

predominantly African American residents out of

* Pritchett, supra n.3, at 6 (2003); see also Kevin Douglas

Kuswa, Suburbification, Segregation, and the Consolidation of

the Highway Machine, 3 J.L. Soc’y 31, 53 (2002) (describing “a

governing apparatus operating through housing and the high-

way machine [that] implemented policies to segregate and

maintain the isolation of poor, minority, and otherwise outcast

populations.”).

10

their homes.’ Shortly after the decision, affordability

requirements for housing in the redevelopment area

were removed from the plan, even though they were

one of its most important justifications.” The advice of

public housing officials was ignored and vast swaths

of cleared land ended up lying vacant while housing

options for low and moderate income residents dwin-

dled.’ Relocation assistance was often inadequate, a

problem that was compounded by the fact that con-

demnation awards were routinely undervalued.* A

tour of Southwest today does not convey these injus-

tices, but the fact that it has matured into a function-

ing residential area does not diminish the harm that

was inflicted in the process.” Simply stated, the ends

do not always justify the means.

Berman’s extremely deferential rational basis

standard of review allowed urban renewal projects to

go forward across the country with an astonishing

lack of attention to the welfare of the people that the

programs were supposed to benefit. For example,

although urban renewal agencies were technically

required by federal law to ensure that adequate

housing would be available for displaced residents,

relocation assistance was often “ruthless” in its

* Lavine, supra n.2, at 452.

* Lavine, supra n.2, ai 467-69.

* Td.

° Id.

* Id. at 474.

11

inadequacy.’ And in many cities, the racial impacts of

urban renewal projects were so egregious that they

became known as “Negro removal.” The scale of

municipal urban renewal programs, by itself, was

often astonishing. In New York City alone, a con-

servative estimate is that at least 170,000 people

were forcibly displaced during the 1950s and 1960s.”

Even if federal housing and slum clearance

policies were based on benevolent intentions,” by the

mid-1960s a consensus had formed that urban re-

newal was a social and governmental failure. Even-

tually, Congress recognized the institutional failures

of the urban renewal program and enacted important

enanges to curb discriminatory practices.'* The deeply

'’ Herbert J. Gans, The Failure of Urban Renewal: A

Critique and Some Proposals, in URBAN RENEWAL 467-68

(Bellush, ed.) (noting that between 1949 and 1964, only .05% of

federal urban renewal funding was spent on relocation).

" The term was coined during a 1963 interview of the

writer and civil rights activist James Baldwin. A video of this

interview is available on the PBS website, http://www.pbs.org/

wegbh/amex/mlk/sfeature/sf_video_pop_04b_qt.html. The tran-

scnpt is available at http//www.pbs.org/wgbh/amex/mlk/sfeature/

sf_video_pop_04b_tr_qry.html.

'* ROBERT CARO, THE POWER BROKER 965-67.

‘Many federal housing policies grew out of New Deal

programs, and by some accounts they were intended more to

stimulate the economy than to aid poor persons directly. See,

e.g., KENNETH JACKSON, CRABGRASS FRONTIER, at chapter 11

(Oxford Univ. Press 1987).

“ The Civil Rights Act of 1964 provided a cause of action to

challenge discrimination in public housing and federally funded

programs. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat.

(Continued on following page)

12

troubling aftermath of Berman, however, stands as a

reason to counsel prudence and caution in granting

redevelopment agencies such broad powers of emi-

nent domain. The instant case presents this Court

with the opportunity to give lower courts guidance

regarding private and pretextual takings, and this

Court should do so to ensure that Kelo’s legacy does

not become as stained as Berman’s.

B. AS EXEMPLIFIED BY THIS CASE,

BLIGHT REMOVAL AND ECONOMIC

DEVELOPMENT CONDEMNATIONS

CONTINUE TO HAVE DISPROPOR-

TIONATE IMPACTS ON MINORITIES

AND THE ECONOMICALLY DISAD-

VANTAGED

Congress discontinued funding for urban renewal

in the 1970s, leading local redevelopment agencies to

rely more heavily on private capital for redevelop-

ment projects.” The growing influence of private

241, tit. Ill (Desegregation of Public Facilities); id. tit. VI

(nondiscrimination in federally assisted programs). In 1966,

Congress passed the Widnall Amendment to the Housing Act,

which required that a “substantial number” of residential units

in redevelopment areas had to be affordable. 80 Stat. 1281

(1966). Finally, the Fair Housing Act was enacted in 1968 to

eliminate redlining and discrimination in both public and

private housing accommodations. Fair Housing Act, Pub. L. No.

90-284, tit. VIII, 82 Stat. 73 (1968).

'S See Sheila R. Foster and Brian Glick, Integrative Lawyer-

ing: Navigating the Political Economy of Urban Redevelopment,

95 CALIF. L. REv. 1999, 2019-2021 (2007).

13

developers and employers fostered competition ameng

local governments to retain and attract businesses,

leading to the increased use of development subsidies,

including eminent domain. Eventually, many juris-

dict_ons, including New York, came to see the use of

eminent domain to foster industrial and commercial

development as a public use in itself, with or without

the presence of blight. See, e.g., Levin v. Township

of Bridgewater, 57 N.J. 506 (1971) (upholding the

condemnation for shopping mall); Karesh v. City

Council, 247 S.E.2d 342 (S.C. 1978) (upholding con-

demnation for convention center); Poletown Neigh-

borhood Council v. City of Detroit, 304 N.W.2d 455

(Mich. 1981) (upholding condemnation for General

Motors plant); Yonkers Community Development

Agency v. Morris, 37 N.Y.2d 478 (1975) (upholding

condemnation for Otis Elevator Company plant). Kelo

reached the same result, holding that economic

development, standing alone, is a public use.

Whether redevelopment takings are based on

economic development or blight removal, however,

“(t]here is ample evidence that localities across the

nation are using eminent domain to discourage poor

residents and to encourage the affluent, either

through attractive (and high-priced) housing stock or

retail facilities that both pay high taxes and attract

an affluent clientele.” According to a 2007 study,

’° Paul Boudreaux, Eminent Domain, Property Rights, and

the Solution of Representation Reinforcement, 83 DENV. U.L.

REv. 1, 20 (2005); see also David A. Dana, Exclusionary Eminent

(Continued on following page)

14

“Le]Jminent domain project areas include a signifi-

cantly greater percentage of minority residents (58%)

compared to their surrounding communities (45%).

Median incomes in project areas are significantly less

($18,935.71) than the surrounding communities

($23,113.46), and a significantly greater percentage of

those in project areas (25%) live at or below poverty

levels compared to surrounding cities (16%).” Similar

disparities were found regarding education levels.”

Redeveloping Manhattanville as an exclusive

Columbi2 campus would follow these patterns. Al-

though only a relatively small number of residents

would be directly displaced by the project — about

390, according to the environmental impact state-

ment (EIS) — between 3,000 and 5,000 residents

living near the project site will be indirectly

Domain, 17 S.Cr. Econ. REv. 7, 40-47 (2009) (discussing

“exclusionary eminent domain”); Charles Toutant, Alleging

Race-Based Condemnation, N.J.L.J., Aug. 2, 2004 (discussing

litigation alleging that cities and towns target minority areas in

an attempt to force them from the community in favor of those

the local government considers more desirable); David Fire-

stone, Black Families Resist Mississippi Land Push, N.Y. TIMES,

Sep. 10, 2001.

'’ Dick M. CARPENTER II, PH.D. & JOHN K. Ross, VICTIMIZING

THE VULNERABLE: THE DEMOGRAPHICS OF EMINENT DOMAIN 6

(Institute for Justice 2007), available at http://www.ij.org/

images/pdf_folder/other_pubs/Victimizing_the_Vulnerable.pdf.

'* New York City Dep’t of City Planning, Manhattanville

Final Environmental Impact Statement 4-2 (2007), available at

http://www.nyc.gow/html/dep/pdf/env_review/manhattanville/04. pdf

(hereinafter EIS].

15

displaced.'” Displacement, moreover, will dispropor-

tionately affect low income and minority households.

According to the EIS, 43.2% of the households in the

primary study area have annual incomes of less than

$20,000, compared with 25.4% for Manhattan and

29% for New York City as a whole. (The percentage of

residents with annual incomes over $125,000, on the

other hand, was only 4%, compared to 17.7% for

Manhattan and 8.6% for the city.)” Regarding race

and ethnicity, the EIS estimated that the primary

study area was composed of 29.4% African Americans

and 52.3% Latinos, compared with 15.3% and 27.2%,

respectively, for Manhattan, and 24.5% and 27.2% for

New York City as a whole.” When juxtaposed with

the members of Columbia’s elite Ivy League commu-

nity, questions of class and race simply cannot be

avoided. This is especially true in Harlem, one of the

country’s most important centers of African American

culture.

The causes of these socioeconomic impacts are in-

herent to the process of urban redevelopment and the

decision below will encourage this type of inequitable

development throughout New York State and in other

" Although opponents have cited 5,000 as the number of

Harlem residents threatened by indirect displacement, the

environmental impact statement places that number at 3,293.

Id. at 4-89. Accurate predictions of displacement effects are

difficult to make.

* Id. at 4-16.

*! Id. at 4-14.

16

states that adopt New York’s policy of complete ju-

dicial deference. Economically disadvantaged and

minority neighborhoods, even in the absence of inten-

tional discrimination, are disproportionately affected

by blight and redevelopment takings because they are

more politically palatable targets than higher-income

neighborhoods.” Condemnations are likely to face

fewer challenges from tenants .nd residents with

limited resources and little access to legal counsel,

and the cost of acquiring land in low-income neigh-

borhoods makes them economically attractive areas

for developers and investors. See Kelo, 545 U.S. at

521-22 (Thomas, J., dissenting).

The inherently inequitable nature of redevel-

opment projects offends basic principles of Environ-

mental Justice, which seeks to ensure “the fair

treatment and meaningful involvement of all people

regardless of race, color, national origin, or income

with respect to the development, implementation,

and enforcement of environmental laws, regulations,

“ See John A. Powell and Marguerite L. Spencer, Giving

Them the Old “One-Two”: Gentrification and the K.O. of Impouv-

erished Urban Dwellers of Color, 46 How. L.J. 433, 440-41 (2003)

(discussing the “new frontier” ideology that draws redevelop-

ment and gentrification toward low-income, working-class, and

racially diverse communities); Kelo v. New London, Brief of

Amici Curiae Nat’! Ass’n for the Advancement of Colored People,

AARP, Hispanic Alliance of Atlantic County, Inc., Citizens in

Action, Cramer Hill Resident Ass’n, Inc., and the Southern

Christian Leadership Conf. in Support of Petitioners, 2004 WL

2811057 [hereinafter NAACP Amicus Brief].

17

and policies.” The top-down, Columbia-driven deci-

sion making process in this case exemplifies practices

that were not designed to involve the West Harlem

community in a meaningful manner.” The project will

also produce inequitable distributions of both envi-

ronmental goods and environmental burdens, another

basic element of environmental injustice. The Harlem

Piers Park, for example, which was built only after

years of insistence from the community, will be effec-

tively cut off from the rest of Harlem by Columbia’s

campus.” And while Columbia contends that the

campus will be open to the public and will create

U.S. Environmental Protection Agency, Environmental

Justice, Basic Information, http://www.epa.gov/compliance/e)j/

basics/index.html.

* See Keith H. Hirokawa and Patricia Salkin, Can Urban

University Expansion and Sustainable Development Co-Exist?: A

Case Study in Progress on Columbia University, 37 FORDHAM

Urs. L.J. 637, 675-80 (2010); Miriam Axel-Lute, Will Columbia

Take Manhattanville?, SHELTERFORCE, Mar. 22, 2008, available

at http://www.shelterforce.org/article/print/213/ (“The fight over

Manhattanville is a quintessential, if extreme, example of how

difficult it is for communities to be heard when powerful institu-

tional neighbors propose development or redevelopment.”).

* A City Planning Department official acknowledged that

“the open green space ... could be perceived as an interruption

of access to the river and as an enclave for Columbia.” Record on

Appeal to the Court of Appeals, R-19 at 628. See also Daphne

Eviatar, The Manhattanville Project, THE NEw YorK TIMES

MAGAZINE, May 21, 2006, available at http://www.nytimes.com/

2006/05/2 1/magazine/21lwwln.essay.html (“Many residents are

disturbed by the placement of the campus between a park being

built at the West Harlem Pier and the community that fought

for years to have that park created.”).

23

18

publicly accessible open space rather than obscuring

it, it will nevertheless be privately-owned open space

patrolled by a private security staff and controlled by

Columbia’s rules and policies.” Moreover, the project

will actually result in a net decrease in per capita

open space due to the additional population it will

bring to the area,” and pollution from the project’s

construction will burden the existing residents and

workers in nearby neighborhoods, rather than those

who would eventually benefit from the redevelop-

ment.

In addition to typifying the basic unfairness of

the redevelopment process, this case also illustrates

the inherent susceptibility of redevelopment projects

to abuse and rent seeking. Public choice theory sug-

gests that economic development agencies will be

prone to capture by private interests,” and the result

* Kaur Petition to the Court of Appeals at 20 (explaining

that the campus would only be open to the public until 8:00 PM

between November and April, unlike city parks, most of which

are open until 11:00 PM); Eviatar, supra n.25 (“It’s a quad.

That’s not a piazza. That’s not open space for a community.”)

(quoting Rev. Earl Kooperkamp).

*” Kaur Petition to the Court of Appeals at 16; Record on

Appeal to the Court of Appeals, R. 2 at 6-35 to 6-37.

* Public choice theory rejects the assumption that demo

cratic governments represent the people and strive to serve a

body of common public interests. Instead, “the ‘public choice’

school, argues that there is no such thing as the ‘public interest,’

only initiatives that help one private interest or the other. Laws

adopted ostensibly to help the public are in reality the masked

use of government to help one group at the expense of others[.]”

(Continued on following page)

19

is that “[t}]he beneficiaries are likely to be those

citizens with disproportionate influence and power in

the political process, including large corporations and

development firms.” Kelo, 545 U.S. at 505 (O’Connor,

J., dissenting). Moreover, many redevelopment agen-

cies, ESDC included, are run by unelected boards

that insulate them from public opinion and allow

private interests to more easily influence the eminent

domain process to their own advantage.” The ex

tremely low threshold for finding blight in New York,

see Matter of Goldstein v. Urban Development Corpo

ration, 13 N.Y.3d 511, 527 (2009), gives even more

advantage to politically connected developers. Unfor-

tunately, the combination creates a perverse incentive

for developers to seek blight determinations for

economically desirable areas, rather than areas truly

suffering from substandard conditions or market

problems necessitating government intervention.

Blight removal and economic development tak

ings also impose especially harmful burdens on the

Boudreaux, supra n.16, at 18; see a’so Michele Alexandre, “Love

Don't Live Here Anymore”: Economic Incentives for a More

Equitable Model of Urban Redevelopment, 35 B.C. ENvTL. AFF. L

REv. 1, 14 (2008).

“ See Amy Lavine and Norman Oder, Urban Redevelopment

Policy, Judicial Deference to Unaccountable Agencies, and

Reality in Brooklyn’s Atlantic Yards Project, 42 Urs. Law. 287,

306-308 (2010); Gideon Kanner, “Unequal Justice Under Law”

The Invidiously Disparate Treatment of American Property

Owners in Takings Cases, 40 Loy. L.A. L. REV. 1065, 1082-83

(2007); Jody Arogeti, Anita Bhushan, Jill M. Irvin & Jessica

Kattula, Eminent Domain, 23 GA. Sr. U.L. Rev. 157, 182 (2006)

20

people they displace. Residents often have limited

resources to cope with displacement, and they are

typically priced-out from returning after the comple

tion of redevelopment. Instead, low-income house.

holds are typically forced to move to other low-income

areas, thereby perpetuating problems related to

:

concentrated poverty and increasing disparity in the

distribution of social resources such as schools and

transit.” Redevelopment projects also tend, perverse

ly, to decrease overall affordable housing stocks such

that rehousing options are often more expensive.”

The businesses located in urban renewal areas,

which are often small and locally-owned, face similar

relocation problems. In highly urbanized areas, cer

tain types of “disfavored” businesses, such as beauty

shops, auto repairs, and second-hand stores, may face

particular difficulties in securing properly-zoned and

affordable relocation sites. These businesses, however,

offer important commercial services to neighboring

and they often provide increased opportunities

Areas

’

See Powell and Spencer, supra n.22, at 441-42, 454-57, see

also NAACP Amicus Brief, supra n.22, at *12

See, e.2., HERBERT J. GANS, Titk URBAN VILLAGERS: GROUP

AND CLASS IN THE LIFE OF ITALIAN-AMERICANS 380 (2d ed. 1982)

(indicating that 86% of the displaced residents in one redevel

opment were paying higher rents at their new residences, with

median rents almost doubling); Scott A. GkkER, URBAN RENEWAL

AND AMERICAN CITIES: THE DILEMMA OF DEMOCRATIC INTERVEN

MiON 3 (1965) (citing multiple studies and concluding that “la]ll

ten indicate substantial increases in housing costs”)

2)

for minority and low-income entrepreneurs.” In this

case, industrial displacement will impact business

owners and employees alike. As the local Community

Board’s plan explained, “[gliven the combined factors

of race, ethnicity, unemployment, limited educational

attainment and concentration of such persons within

specific areas of [Community District 9], 1 is im

portant to note that industrial employment is an

important cconomic sector to strengthen in order to

elevate the socioeconomic well being of these resi

dents and the city as a whole.”” Columbia's project

may produce permanent jobs, but many of the aca

demic and institutional positions will be unavailable

Lo existing neighborhood residents and employees. ”

Moreover, contrary to the connotation of “just

compensation,” these economic harms are typically

undervalued in the condemnation process. “The fact

See Stephen Clowney, /noisible Businessman l/nder

mining Black Enterprise with Land Use Rules, 2009 U. IL Lb

Rev. 1061, 1077-78

COMMUNITY BOAKD 9 MANHATTAN 197-A PLAN. HAMILTON

HeiGuis, MANHATIANVILLE, MORNINGSIDE HricGurs 29 (2007),

available at http://prattcenter. net/sites/default/fles/users/imaypes/

CB9M_Final 24-Sep-07. pdf

* See Timothy Williams, /n West Harlem Land Dispute, It’s

Columbia vs. Residents, THk Nrw York TIMES, Nov. 20, 2006,

http://www.nytimes.com/2006/11/20/nyregion/20columbia html?

pagewanted=all (quoting Jordi Reyes-Montblane); Jarrett

Murphy, History Lesson: Three decades after the drama of 68,

will Harlem make room for Columbia‘, 'Vitt VILLAGE Voick, May 16,

2006, http://www. villapevoice.com/2006-05- 16/news/history-lesson/ |

(quoting Nellie Bailey)

9 9

that particular property is identified and designated

for ‘economic development,’ ... almost certainly

means that the market is currently undervaluing

that property or that the property has some ‘trapped’

value that the market is not currently recognizing.””

Nor are condemnees entitled to any increased com-

pensation based on the value of the property to the

developer. As a result, their losses become a windfall

for the taking’s private beneficiaries.”

In addition to these economic impacts, displace-

ment carries with it subjective harms as well. The

elderly, for example, are particularly susceptible to

psychological stress from being dislocated from their

homes. Ethnic neighborhoods that have established

social support networks also suffer particular harm

from blight removal and economic development

takings. In addition to destroying community support

mechanisms, the destruction of these neighborhoods

often impedes “those groups’ ability to exercise what

little political power they may have established as a

community.”

* NAACP Amicus Brief, supra n.22, at *12.

wat a

KP,

’ Id.; MINDY FULLILOVE, Root SHOCK: How TEARING UP City

NEIGHBORHOODS HURTS AMERICA, AND WHAT WE CAN Do ApoutT IT

(One World/Ballantine 2004).

23

lil, THE COURT OCF APPEALS’ HOLDING

THAT ESDC DID NOT VIOLATE PETi-

TIONERS’ DUE PROCESS BY WILLFULLY

OBSTRUCTING THEIR FOIL REQUESTS

WAS INCORRECT AND DEMONSTRATES

THE NEED FOR THIS COURT TO ES-

TABLISH MINIMUM STANDARDS FOR

PROCEDURAL DUE PROCESS IN THE

“ONDEMNATION PROCESS

New York is unique among the states in denying

condemnees a trial on the issue of public use. N-Y.

E.D.P.L. § 208. Despite this already diluted proce-

dural framework, however, ESDC resisted complying

with Petitioners’ Freedom of Information Law (FOIL)

requests until after it had closed the administrz tive

record. See N.Y. Pub. Off. §§ 84-90. The agency’s

obstructionist behavior, see Matter of West Harlem

Bus. Group v. ESDC, 13 N.Y.3d 882 (2009), provides

additional grounds to suspect pretext in this case,

as does the Petillo email, which was finally produced

by ESDC more than a year after the record was

closed. See Petition at 35-36. More fundamentally, the

agency's willful obfuscation offends the basic princi-

ples underlying freedom of information laws, which

are intended to ensure a minimum amount of trans-

parency in government operations. See Fink v.

Lefkowitz, 47 N.Y.2d 567, 571 (1979) (quoting NLRB

v. Robbins Tire & Rubber Co., 437 U.S. 214, 242

(1978)). Allowing ESDC to impede the FOIL process,

especially when Petitioners were precluded from

bringing their claims to trial, is unjust and will only

encourage redevelopment agencies to resist FOIL

24

requests to hide evidence of pretext and favoritism.

The most minimal standards of procedural due pro-

cess must proscribe this type of behavior, for a system

that permits government agencies to willfully hide

evidence of their unconstitutional motives denies

condemnees any meaningful opportunity to challenge

the taking of their property. This Court has not

previously had the opportunity to define the mini-

mum procedural due process requirements in the

condemnation context, and should accept certiorari to

clarify the issue.

CONCLUSION

This Court, in Kelo, recognized that pretextual

motivations could render an economic development

taking unconstitutional, but it declined to provide ad-

ditional guidance on the issue until confronted with

such a case. Amicus respectfully submits that this is

such a case, and urges the Court to grant review to

clarify the minimum requirements of the Fifth Amend-

ment and ensure that Petitioners receive adequate

judicial review. The easily manipulated character

of urban redevelopment projects and the dispropor-

tionately negative racial and socioeconomic impacts

inherent to the process, as exemplified in this case,

make it even more imperative that this Court accept

certiorari. This case also demonstrates the need to

establish minimum standards of procedural due

process owed to condemnees, and this Court should

also grant the petition to resolve this important

question. For all of the foregoing reasons, amicus

respectfuily asks this honorable Court to grant the

petition.

Respectfully submitted,

DENISE OUTRAM*

Harlem State Office Building,

Suite 912

163 West 125th St.

New York, NY 10027

212-222-7315

doutram@nysenate.gov

AMY LAVINE

ALBANY LAW SCHOOL

80 New Scotland Ave.

Albany, NY 12208

518-472-5849

alavine@albanylaw.edu

*Cournsel of Record

Counsel for Amicus Curiae