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This story, in slightly different form, originally appeared in the New York Law Journal.

NEW YORK CITY-Columbia University’s planned 17-acre expansion into the Manhattanville area of Harlem hit a huge roadblock Thursday when the Appellate Division, First Department, upset a state ruling that would have allowed the condemnation of land for the school to develop the $6.3-billion project.

The exercise of eminent domain power by the New York State Urban Development Corp. to benefit a “private elite education institution” violates the US and New York state constitutions, and the “first principles of the social contract,” Justice James M. Catterson wrote for the 3-2 majority in Kaur v. New York State Urban Development Corp. Justice Catterson found that the state agency had adopted a process that “predetermined the constitutional outcome” and was “bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record.”

The majority also found that the manner in which Urban Development Corp. applied its condemnation powers to enable Columbia’s expansion and conducted its statutorily mandated review violated the challengers’ due process rights. The development corporation had approved the condemnation of the remaining 9% of the 17-acre area which is either owned by New York City or has not yet been acquired by Columbia.

Columbia’s plans for the expansion include the construction of a new laboratory facility and an academic building that will house its graduate business school and studio arts programs.

In dissent, Justice Peter Tom said he would have upheld the development corporation’s determination because the Columbia project provides needed educational facilities. In so doing, he concluded, the project meets the “public purpose” requirement of the Urban Development Corporation Act.

The challengers were a gas station and a storage facility that had refused to sell to Columbia. Norman Siegel, who represented the storage facility, Tuck-It-Away, called the court’s ruling “a major victory” because “it provides a road map for communities that want to challenge the government’s use of eminent domain.”

The development corporation, which is also known as the Empire State Development Corp., will appeal the decision. Warner Johnston, its VP for public affairs, says in a statement that the corporation believes the decision to be wrong and inconsistent with established law, as consistently articulated by the state Court of Appeals, most recently with respect to the Brooklyn Atlantic Yards project.

The Court of Appeals in November upheld the exercise of the state’s condemnation powers for the Atlantic Yards project, which includes plans for a new arena for the New Jersey Nets. The challengers in Kaur brought an Article 78 proceeding to overturn the condemnation determination directly to the First Department as required by law.

In ruling for the challengers, Justice Catterson noted that “the instant case is clear evidence of [the] reality” that many commentators have described as “some three to four million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban renewal since World War II.”

In finding an abuse of the eminent domain power under both the state and federal constitutions, Justice Catterson ruled that Columbia’s relationship with the development corporation was far too close. The record discloses, Justice Catterson wrote, that every document for the development corporation’s plan “was drafted by the preselected private beneficiary’s [Columbia's] attorneys and consultants and architects.”The blight study, which was intended to serve as the basis for the state agency’s determination, was prepared by “Columbia’s consultant…[who] was nominally retained by the [state development corporation].’”

The development corporation’s handling of condemnations sought by Columbia also reflect an unconstitutional application of its powers under the Urban Development Corporation Act, Justice Catterson wrote. The development corporation, and other agencies involved, had taken an “ad hoc and selective enforcement” to the implementation of the law, Justice Catterson wrote. As an example, he cited, the “greatly divergent criteria used to define blight.”

The consultant employed by both Columbia and the development corporation, Allee, King, Rosen and Fleming, had used a 50% vacancy rate as a marker of blight in its review of the Atlantic Yards project in Brooklyn but only 25% in its review of the Columbia project, he found. Justice Catterson also found a violation of the challengers’ due process right to be heard at a required public hearing. The challengers’ right was violated, Justice Catterson concluded, because the development corporation had closed the administrative record of the hearing despite an outstanding First Department order that documents be turned over under the state Freedom of Information Law.

On the subject of Atlantic Yards, lead counsel Matthew Brickerhoff of the group Develop Don’t Destroy Brooklyn issued a statement following Thursday’s Columbia decision saying that, “The timing of the ruling is certainly propitious. In the next few days, we will file a motion asking the Court of Appeals to reconsider its ruling in our case, based on this new indictment of the agency’s standard operating procedure. We know that the Court of Appeals will now review the Columbia University ruling, and we are optimistic that the abuse of power detailed in Justice Catterson’s powerful opinion, combined with the agency’s similar conduct in the Atlantic Yards case will cause a few of the judges who already expressed skepticism to reconsider their decision.”

Daniel Wise can be reached at [email protected].

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