Posts tagged with "the courts":

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Last Columbia Hold Out Hung Out to Dry by Top Court

Nick Sprayregen, the last remaining holdout in the way of Columbia University's Manhattanville expansion project, has just had his fortunes reversed—quite literally, as now it appears the school has a good chance of taking Sprayregen's land through eminent domain to make way for its new 17-acre campus. Last December, Sprayregen won an unexpected court decision, which was overturned today in a unanimous decision by the Court of Appeals, New York's highest court. The Observer astutely points out that even justice Robert Smith, the lone dissenter in the major Atlantic Yards case, sided with the majority this time out. At issue was whether the Empire State Development Corporation has the right to take private land and convey it to Columbia, which the lower appellate court found it did not, as in the judges view there was no clear public purpose. In today's reversal, the justices found that the agency made a clear and compelling case for the project, and it was not the place of the judiciary to overule them:
ESDC considered a wide range of factors including the physical, economic, engineering and environmental conditions at the Project site. Its decision was not based on any one of these factors, but on the Project site conditions as a whole. Accordingly, since there is record support — "extensively documented photographically and otherwise on a lot-by-lot basis" (id. at 526) — for ESDC's determination that the Project site was blighted, the Appellate Division plurality erred when it substituted its view for that of the legislatively designated agency.
Sprayregen has vowed to appeal to the Supreme Court, whose ruling five years ago on the notorious Kelo case largely set the stage for such private-to-private-for-public-transfers as this. It remains anyone's guess how they might hold this time around. (Or even if they will.) Meanwhile, construction on the southern part of campus continues apace.
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Head Crane Inspector Headed to Prison

James Delayo, once the head of the Department of Building's crane inspectors until he was arrested two years ago for accepting bribes on the job, was sentenced to two to six years in prison today for his $10,000 take. According to the Times, Delayo apologized to the city, as well as his fellow crane inspectors, who "don’t deserve the bad publicity I brought them." The judge called the crime "an extraordinary betrayal of public trust," especially in light of the spate of crane accidents, some lethal, that preceded the city investigation that led to Delayo's arrest. Though as Curbed points out, Delayo was not actually the biggest crook at the department.
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In Riverhouse Lawsuit, Not Easy Being Green

Despite its slow gestation, Battery Park City is widely considered a resounding success today, particularly in the areas of sustainable design, which was required of many of the complex's latter day projects. Standing out among even these green stalwarts is the recently completed Riverhouse, designed by Polshek Partnership and shooting for LEED Gold, though the project now provides a bit of a cautionary tale for ambitious developers. According to the Journal, two tenants recently sued the projects' developers for $1.5 million for breach of contract and fraud because the building was deemed not as green as it had been billed. Among the issues:
[The suit] says the owners' engineers "found a deviation of 49%" over the LEED standards "in the cumulative size of holes and cracks allowing infiltration of cold air." The complaint also alleges that air temperature for heating the apartment was too low, which the owners say is a sign that the building isn't maximizing energy efficiency.
The paper goes on to suggest that the suit may simply be a means to get out of the now exorbitant $4.2 million three-bedroom apartment. The more important lesson, though, may be on the strengths and weaknesses of sustainability in general and LEED in particular. After all, Riverhouse had once been aiming for the crown of first Platinum-rated residence in the city, yet now it has settled for Gold, a sign of the difficulty in meeting such standards. And yet the findings by the plaintiff's engineers that the project is not even performing at that high level are both surprising and not -- for rarely, if ever, are these buildings tested after the fact. (Then again, who needs to test a building's efficacy when you've got Operation Green to make your case?)
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The Difference a Year Makes

For better and worse, a Sacramento Superior Court judge ruled yesterday that the California legislature had not violated the state constitution in seizing some $2 billion from hundreds of local redevelopment authorities across the state, money that will continue to be used to cover educational shortfalls within the state's sagging budget. This is good news in that it does not further imperil already tenuous state finances that have pretty much been trimmed well into the marrow. At the same time, as we detailed last year, this is an unprecedented taking of local funds—covered through special property taxes having nothing to do with the Legislature—that could also imperil the state's economy by limiting the work the redevelopment authorities can do, work that often times goes to architects. The group representing the 397 authorities has already decided to appeal the ruling and is requesting a stay on the taking of the money pending that appeal. In a statement, John Shirey, executive director of the group, the California Redevelopment Association, argued this gives the Legislature undue power:
We strongly disagree with Judge Connelly’s ruling which effectively says the Legislature has unlimited discretion to redirect local redevelopment funds to any purpose it wishes. Under that logic any state program could be called redevelopment. The Legislature needs to deal with its budget problems by making hard decisions using its own limited resources—not by taking away local government funds.
Meanwhile, a Schwarzenegger spokesperson tells the Times that being overruled on the case would have compounded the state's budget problems. As for the association's continued legal challenges, it's a battle the group has won before, and quite possibly could do again. It's worth noting, though, that the judge who supported the association's efforts last year was the same one who denied them this go round. Whatever the outcome, its impacts will likely be felt for years to come.
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Willets Wonderings

It appears the city's plan to trifurcate development out at Willets Point has been a smashing success, as the Economic Development Corporation announced on Friday that 29 developers from across the country have expressed interest in the first phase of the project, an 18-acre swath of land on the western section of the 62-acre Iron Triangle that contains the densest mix of uses. “The quantity and quality of these responses are strong indicators that the development community has confidence in the successful redevelopment of Willets Point despite current economic conditions,” Seth Pinsky, president of EDC, said in a release. An RFP is expected sometime in 2010 for a selection of those 29 respondents. After that, the next hurdle is finishing land acquisition, which stands at 75 percent of the phase one area controlled by the city. If need be, the city has not ruled out acquiring what's left through eminent domain, a specter that has cast a long shadow over the area's redevelopment, though one that could be sunsetting. Following a court ruling that the state could not seize land in the Manhattanville section of Harlem so that Columbia could build a new campus there, Atlantic Yards opponents are hustling to have their ultimately unsuccessful case reheard, a last-ditch effort to impede the sale of Forest City Ratner's bonds. Whether or not they succeed, all this eminent domain tumult—combined with the recent collapse of plans for the Mother of Them All in New London, Connecticut—could nudge New York over the edge, taking it off the list of a handful of states that have yet to enact eminent domain reform since the Kelo decision four years ago. State Senator Bill Perkins certainly thinks so, calling for the governor to live up to his previous promises of a moratorium on eminent domain in the state. How could this all pay out in Flushing, Queens? David Lombino, a spokesperson for EDC, emphasized the agency's strong track record on reaching deals with business owners in the area, despite the continued intransigence of some. "The response from the private sector is encouraging," he said. Should it come down to eminent domain, but eminent domain is no longer there? EDC, while proffering hypothetical projects, does not respond to hypothetical questions.
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The Return of Cousin St. Vinny

Back in March, Protect the Village Historic District sued the Landmarks Preservation Commission over its granting of a hardship to St. Vincent's Hospital, so that it might demolish Albert C. Ledner's National Maritime Union Headquarters, now known as the O'Toole building, and replace it with a new hospital tower designed by Pei Cobb and Freed. The focus of PVHD's suit is that the hospital did not explore suitable alternatives, nor did the commission require them, but now, the state Supreme Court appears to be questioning the very nature of the hardship finding—that retaining the O'Toole buildings prevented the hospital from carrying out its charitable mission—or at least that is the finding of a brief filed today by the Municipal Art Society and half-a-dozen preservation groups that directly challenges the LPC on the matter. Filed on behalf of neither the petitioners nor the defendants but at the behest of the court, which is trying to better understand the mechanics of the hardship finding, the MAS' attorneys argue that the LPC erred in finding that a hardship was created by the O'Toole building when in fact it was the neighboring buildings that created the problems for the hospital. The LPC then falsely created a campus that included both the historic buildings east of Seventh Avenue and the Ledner building west of it, and with this campus, extended the hardship from the buildings responsible for it to the one that was not. MAS and company—Historic Districts Council, Greenwich Village Society, the National Trust, the Preservation League, Brooklyn Heights Association, and Friends of the UESHD—argue that in part because the Ledner building remains quite usable, and is not directly infringing on the functioning of the neighboring hospital, it can not be held accountable. And this does not even get into the issues of whether sufficient off-site alternatives were explored and the fact that St. Vincent's knowingly bought a landmark it could not alter, which are at the heart of the original suit. MAS does note that the standards for determining hardship are complex, and it should also be pointed out that, while ostensibly neutral, all seven amici have lobbied on behalf of preserving the Ledner buildings and indeed hold quite a vested interest in the LPC's defeat. Simply consider the conclusion of the brief [PDF], which states, in part, that the commission "has created a dangerous precedent that may have a devastating effect on the preservation of landmark buildings and historic districts throughout New York City." This is personal. We're still waiting to hear back from some real estate attorneys as to the exact role this brief might play in the case, whether or not it will actually sway the judges, but as soon as we know, you'll know.
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Another Atlantic Yards Suit

As we reported back in June, the activists fighting the Atlantic Yards project did not expect any of the various government agencies with oversight of the project to oppose it when they had the opportunity this summer—the MTA revised its sale of the yards, the ESDC approved a modified General Project Plan. What the critics were more excited about was the possibility of additional lawsuits, which, while generally unsuccessful, have helped stall the project nonetheless and paint it in an increasingly negative light. Today, a day before a major showdown over eminent domain in the state's highest court, Develop Don't Destroy filed a new lawsuit, this one challenging the MTA's sale, and it has an important distinction from the others. When we saw the filing, the first thing that struck us was the petitioners. In the past, only Develop Don't Destroy or local residents and businesses had been signed on to the suits. Now, a number of local politicians and a major transit advocacy group have signed on to this latest case. Maybe that's immaterial in the eyes of the courts, a case is a case, petitioners are petitioners, but it certainly underscores the growing opposition to the project. This is not to say prior petitions were invalid, but they did have the patina of NIMBYism. Now, this is much less the case. Again, we're not sure this matters, legally speaking, but given that Yards watchdog Norman Oder points it out in his typically no-stone-unturned analysis of the new suit, it obviously bears mentioning. As for the suit itself, Oder agrees with us that, like its predecessors, even if it doesn't technically succeed, it could still make progress on the Yards all the more difficult:
Even a successful lawsuit might not formally stop the project, but it could throw a wrench into Forest City Ratner's plan to have the state sell tax-exempt bonds and for arena construction to begin this year. As Neil deMause observes on his Field of Schemes blog: "The real question now is whether another lawsuit will make it too expensive for Ratner to get bond insurance so he can start selling arena bonds this month as planned."
The MTA has so far declined to comment. UPDATE: Dan Goldstein of DDDB wrote us last night to point out that the Straphangers, as well as the Sierra Club, had been involved in one of the two prior suits, though no politicians. Also, we forgot to mention that this is probably only the first of what could be many more suits now that the MTA and ESDC have officially taken action. In fact, our June story emphasized the latter more than the former, which suggests that one is on the way, though Goldstein made no mention of it. And he's not the only one filing suit. Last week, as the Park Slope Courier reported, neighborhood groups have filed a suit against the state and Ratner for not doing a thorough enough traffic study. The groups are not trying to stop the project, however, but simply get Ratner to make changes to address the problems.
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Redeveloping Round 2

Yesterday, the California Redevelopment Association celebrated another victory, as the state decided against pursuing its appeal of an April decision in Sacramento Superior Court that kept the Legislature from seizing $350 million from the association's 397 member agencies. That money was meant to cover a shortfall in the 2008-2009 state budget, but at the cost of the agencies operations. As we reported early last month, however, the state has done it again this year, attempting to tae $2.1 billion from the various redevelopment agencies, which work on economic development projects, affordable house, and, as Cecilia Estolano explained last week, brownfield remediation. Association president John Shirey hopes yesterday's victory is a sign of continued success. "One down, one to go," he said in a release. But according to the Contra-Costa Times, the state remains undaunted, believing it has crafted this years bill in a way that avoids the constitutional pitfalls of the previous effort.
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You Windermere Some, You Lose Some

The Observer is reporting that Windermere, an individual landmark dating from the late 19th Century located on West 57th Street, was recently purchased for $13 million, or an astounding $181-per-square-foot. The sumptuous red brick apartment building had fallen into disrepair some years ago after its Japanese owner apparently lost interest in it, leading to a lawsuit we covered last year. Last Thursday, the commission announced [PDF] a landmark victory in its civil suit, which netted a record $1.1 million payment to the city, $2.6 million for seven displaced tenants of the former SRO, and an agreement from the new owner of the building to restore it to its former glory. (The suits had to be settled before the sale could go through.) So it looks like a win-win for everyone: An affordable gem for some enterprising developers, a windfall for the city, and a victory, most importantly, for those poor tenants.
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My Cousin St. Vinny

The Observer points us to a lawsuit filed today in State Supreme Court aimed at stopping the demolition of Albert C. Ledner's National Maritime Union HQ in Greenwhich Village, now known as the O'Toole Building. If you read the paper with any regularity, you should know full well the story of St. Vincent's Hospital's attempts to replace the one-of-a-kind "overbite building" with a 300-foot tall Pei Cobb Freed-designed hospital tower. Well, the lawsuit may be just in time, as the Landmarks Preservation Commission is due to vote today on whether or not it approves the outsized plans for the new hospital building. As we most recently reported, a majority of commissioners are leaning towards approval, meaning the suit may be the last chance to save Ledner's building. The petition, which can be found here, was filed by the Protect the Village Historic District and a coalition of preservation groups and neighbors. It effectively calls into question the commission's torturous 6-4 October vote, which condemned the building in question, on the grounds that the hospital, and its development partner Rudin, were not wholly forthcoming. The petitioners claim the developers mis-attributed their "constitutional hardship"--St. Vincent's argues that it cannot carry out its charitable duties in its current facilities and that it cannot find a suitable replacement site beyond the O'Toole building--and that this hardship was falsely accepted by the commission. Perhaps more importantly, they challenge the fact that the property was knowingly purchased as a landmark by St. Vincent's:
In addition, petitioners contend that because St. Vincent’s acquired O’Toole Building AFTER the restrictions imposed by the Landmarks Law were already in place, the Hospital could not have had “reasonable investment-backed expectations” of the sort that would justify a constitutional exception to the otherwise proper and lawful restrictions on an owner’s use of its property that are codified in the Landmarks Law.
This has been a major issue for preservationist throughout the two-year fight because they fear it sets a dangerous precedent wherein any charity could purchase a landmark, claim it does not suit its needs, and then demolish it. The hope is that with the subpeona power of the courts, the petitioners can bring to light many of the concerns that were never fully aired in public at the commission, such as the financial position of the hospital and any closed-door discussions and analysis performed by the developers with regards to alternative site. Still, one prominent land-use attorney who often goes before the commission doubted the suit's success. The attorney, declined to comment because, on the one hand, a number of associates lived in the neighborhood and were upset by the proposal, while on the other, the firm had and might yet deal with similar claims. Generally speaking, however, the attorney said the commission is always very cautious on such matters. "The hardship is rigorous, it's difficult" the attorney said. "It's difficult to meet the standard, and the commission is sure to dot all its 'i's. Usually, it's difficult to overturn these administrative decisions." Indeed, at the October vote, every single commissioner read from prepared remarks, something almost never seen, especially from the entire commission. An LPC representative even explained that prepared statements were used to be sure everything was on record and legitimate. The rep then added, "You know, in case there's a law suit." Well, the commission's gotten it's wish, so to speak. (The city has declined to comment until it receives the petition, which a spokesperson said it had not.) Whether this turns into another Atlantic Yards, or even another Grand Central, which is what got us here in the first place, remains to be seen. Then again, if they vote down the hospital tomorrow, maybe it won't even matter. But if not, we can only hope Joe Pesci is on the petitioner's side, 'cause he sure puts up a good fight.
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How Unappealing

The folks over at Develop Don't Destroy Brooklyn have been paper-cutting Forest City Ratner for years now, with lawsuit after lawsuit, but they may almost be out of legal options. Today, the Appellate Division of the state Supreme Court ruled unanimously that the ESDC had not erred in its environmental review filing for Atlantic Yards. The case wound up at the appellate court after it was declined by a lower court, but that hasn't stopped Dan Goldstein and company from already pushing the issue to the next level:
Hopefully, the Court of Appeals will provide a standard to avoid the ludicrous outcome that, despite the significant questions about the improper motives of the ESDC and the inappropriate influence of the developer, the court's hands are tied and constrained to uphold the approval of such a disastrous project.
Dad always said not to follow him into the lawyering business because there was too much politics at the bench, but we can't help but think that it's too much confusion. In this case, the justices said that while they sort of agreed with the plaintiff, precedent held that the ESDC could basically do what it wants. From the ruling:
While we do not agree with petitioners’ legal arguments, we understand those arguments to be made largely as proxies for very legitimate concerns as to the effect of a project of such scale upon the face and social fabric of the area in which it is to be put.  Those concerns, however, have relatively little to do with the project’s legality and nearly everything to do with its socio-economic and aesthetic desirability, matters upon which we may not pass.  To the extent that the fate of this multi-billion dollar project remains, in an increasingly forbidding economy, a matter of social and political volition, the controlling judgments as to its merits are the province of the policy-making branches of government, not the courts.
And so now onward to destiny. And more billable hours. Which may well be the point. With the collapse of the economy, Forest City Ratner is running out of time to find financing for the project before certain contracts expire. And so, in losing and thereby dragging things out after half-a-dozen legal challenges, DDDB can actually claim a win. Still, Ratner seemed happy about his prospects in a release, one of very few since the project began to sour amid the economic crisis:
Once again the courts have decided in favor of Atlantic Yards. This project has been reviewed as thoroughly as any in the city and not it is time to put these cases behind us and get to work.
But there is also another case currently at the appellate division, which had its first hearing two days ago, and where the justices seemed to favor the plaintiffs. Could this be the end? The burning question thus remains: The return of Frank or a world of brownstone?