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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2515%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1108

## Text

a, (D — ipreime ( vr US
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2515%3A4. Public record. Not legal advice.