Ruling Gives Tenants Standing
To Contest Condemnations, But
Fails To Address Issues, Says Lawyer
By Sarah Ryley
Brooklyn Daily Eagle
MANHATTAN — Last week’s ruling on an Atlantic Yards-related case would be a victory for tenants everywhere “if it were correct,” said the plaintiffs’ attorney, George Locker. But he said the judge failed to grapple with the central issue of the case, the Empire State Development Corporation’s [ESDC] broad use of authority, often in circumvention of local laws and procedures.
The action sought a declaration that the ESDC could not use eminent domain to construct private roads (in this case, a private parking garage for the Atlantic Yards arena/high-rise project) under the state Constitution and the state Highways Law. The plaintiffs also argued that the ESDC has no jurisdiction over the non-renewal of the 13 plaintiffs’ leases, and no authority to cancel rent-stabilized leases; Locker said only the state Division of Housing and Community Renewal has that jurisdiction and authority.
State Supreme Court Justice Walter Tolub ruled the action “was brought both in the wrong church and the wrong pew,” making reference to Brooklyn’s early reputation as the “City of Churches.”
In a footnote, the judge cited an 1844 issue of the Brooklyn Daily Eagle as the origin of that nickname.
“The issues presented should have been brought in the Appellate Division, and more particularly, the Appellate Division Second Department,” not a First Department trial court, he said.
Tolub found that the state statute gives the appellate division exclusive jurisdiction over cases challenging a condemnation (in this case, the anticipated condemnation of buildings in the Atlantic Yards footprint) even if the plaintiffs are not property owners but tenants.
“Plaintiffs have a lawful interest as tenants in the property being condemned under their leases. Lessees have challenged findings and determination through Eminent Domain Property Law [EDPL] §207 proceedings,” the judge wrote, citing case law.
ESDC spokesman A.J. Carter said the agency is pleased with the judge’s ruling.
“It’s the greatest decision in the history of the Eminent Domain Procedure Law to explicitly say that rental tenants have standing to contest condemnation. If only Judge Tolub was right,” said plaintiffs’ attorney Locker. He said he plans to appeal the judge’s decision, but added that, “If all of the courts uphold Judge Tolub, while it will be a defeat for my clients, it will be a great victory for tenants everywhere.”
But little in the judge’s seven-page decision actually addressed the plaintiffs’ original claims, that the ESDC does not have the authority to disregard other laws and procedures governing the use of eminent domain.
ESDC Has Wide-Ranging Powers
Locker called the agency’s notoriously omnipotent method of carrying out projects “not only an affront to planning, it’s an affront to democracy.”
The state Urban Development Corporation Act, which governs the ESDC, was crafted in 1968 to expedite large, state-subsidized projects aimed at expediting urban renewal by sidestepping local regulations and legislative process.
The agency’s powers include the ability to seize property using eminent domain, to grant tax abatements and other financing with public money, and to override local land use approval laws.
The residential development of Roosevelt Island, revitalization of Times Square, Jacob K. Javits Convention Center and Battery Park City are among the agency’s past projects. Besides the Atlantic Yards arena and high-rise project, the Brooklyn Bridge Park and the revitalization of Lower Manhattan are among the agency’s current projects.
© Brooklyn Daily Eagle 2007
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