Kaur v. New York State Urban Development Corp. , 892 N.Y.S.2d 8 ( 2009 )

Tom, J. (dissenting).

At issue on this appeal is the acquisition of approximately 17 acres in the Manhattanville area of West Harlem by Columbia University for the development of its campus. In addition to up to 16 new buildings, a multi-level below-grade facility and the adaptive reuse of an existing building, the project would create approximately two acres of publicly accessible open space, a market along 12th Avenue and widened tree-lined sidewalks. The General Project Plan adopted by Empire State Development Corporation (ESDC), as modified, states that the project, inter alia, will maintain the City and State of New York as a leading center of higher education and academic research by providing state-of-the-art facilities and provide the community with employment opportunities and civic amenities.

Petitioners own property subject to condemnation located within the project site, which extends from West 125th Street to West 133rd Street and from Broadway and Old Broadway to 12th Avenue. They brought this proceeding to challenge ESDC’s determination that the project qualifies not only as a land use improvement project but also, discretely, as a civic project pursuant to the New York State Urban Development Corporation Act ([UDCA] L 1968, ch 174, § 1, as amended) (McKinney’s Uncons Laws of NY § 6253 [6] [c], [d] [UDCA § 3 (6) (c), (d)]).

I do not accept petitioners’ contention that the project neither qualifies as a civic project nor serves a public purpose and, thus, that ESDC exceeded its statutory authority in designating the project a civic project pursuant to Unconsolidated Laws § 6260 (d) (UDCA § 10 [d]). Under the UDCA, such designation is conditioned upon findings that “there exists in the area in which the project is to be located, a need for the educational, cultural, recreational, community, municipal, public service or other civic facility to be included in the project” (Uncons Laws § 6260 [d] [1]) and that “the project shall consist of a building or buildings or other facilities which are suitable for educational, cultural, recreational, community, municipal, public service or other civic purposes” (Uncons Laws § 6260 [d] [2]). A private institution of higher learning serves a public purpose (see University of S. Cal. v Robbins, 1 Cal App 2d 523, 37 P2d 163 [1934], cert denied 295 US 738 [1935]). In any event, ESDC’s finding that the project will serve a public purpose by providing, among other things, needed educational facilities in the area in which it is to be located is neither irrational nor baseless.

Property is subject to acquisition in connection with a land use improvement project upon ESDC’s finding, inter alia, that “the area in which the project is to be located is a substandard or insanitary area, or is in danger of becoming a substandard or insanitary area” (Uncons Laws § 6260 [c] [1]). “Substandard or insanitary area,” by definition, is “interchangeable with a slum, blighted, deteriorated or deteriorating area, or an area which has a blighting influence on the surrounding area” (Uncons Laws § 6253 [12]). Various conditions constituting blight are set forth in the UDCA’s statement of legislative findings and purposes (Uncons Laws § 6252 [UDCA § 2]). Contrary to petitioners’ contention, the term “substandard or insanitary area” is not unconstitutionally vague. Though abstract, these words have been interpreted and applied without constitutional difficulty (see Berman v Parker, 348 US 26 [1954]; see also Yonkers Community Dev. Agency v Morris, 37 NY2d 478, 483 [1975], appeal dismissed 423 US 1010 [1975]).

I further reject petitioners’ argument that ESDC’s finding of blight was insufficient as a matter of law and fact and that it was arrived at corruptly and in bad faith (see Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 425 [1986]; Kaskel v Impellitteri, 306 NY 73, 79 [1953], cert denied 347 US 934 [1954]). Two blight studies documented substandard and insanitary conditions by photographic evidence and other indicia. Petitioners present merely “a difference of opinion” with the conclusions to be drawn from this evidence, in which event the courts are bound to defer to the agency (Matter of Develop Don’t Destroy [Brooklyn] v Urban Dev. Corp., 59 AD3d 312, 324 [2009]). As the Court of Appeals recently stated:

“It is quite possible to differ with ESDC’s findings that the blocks in question are affected by numerous conditions indicative of blight, but any such difference would not, on this record, in which the bases for the agency findings have been extensively documented photographically and otherwise on a lot-by-lot basis, amount to more than another reasonable view of the matter; such a difference could not, consonant with what we have recognized to be the structural limitations upon our review of what is essentially a legislative prerogative, furnish a ground to afford petitioners relief’ (Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511, 526 [2009]).

Likewise, petitioners have not made a “clear showing” of bad faith (Matter of Faith Temple Church v Town of Brighton, 17 AD3d 1072, 1073 [2005]). While ESDC retained AKRF, Inc. to perform a blight study knowing that AKRF was performing consulting work for Columbia in relation to the project, any conflict of interest or bias was eliminated by ESDC’s retention of Earth Tech, Inc., an independent consultant with no ties to Columbia, to review and audit the AKRF study. Nor is there clear evidence that ESDC and Columbia colluded to manipulate the blight findings. Although they worked together in the planning process, the UDCA requires that a land use improvement project “ afford [ ] maximum opportunity for participation by private enterprise” (Uncons Laws § 6260 [c] [3] [UDCA § 10 (c) (3)]). That Columbia will benefit from the project as well as the public is not a legally sufficient reason to invalidate ESDC’s determinations (see Matter of Waldo’s, Inc. v Village of Johnson City, 74 NY2d 718, 721 [1989], affg 141 AD2d 194 [1988]).

Because petitioners were given notice of the public hearing and the opportunity to be heard and to submit documents, I reject petitioners’ contention that they were denied due process or a reasonable opportunity to be heard under EDPL 203 (see Matter of Waldo’s, Inc., 141 AD2d at 199; First Broadcasting Corp. v City of Syracuse, 78 AD2d 490, 495 [1981], appeal dismissed 53 NY2d 939 [1981]). Nor were petitioners’ due process rights violated when ESDC denied some of their FOIL requests and closed the record prior to the resolution of the FOIL litigation (see generally Lawrence v Baxter, 2004 WL 1941347, *3, 2004 US Dist LEXIS 18022, *8-10 [WD NY 2004], affd 139 Fed Appx 365 [2d Cir 2005]). Contrary to petitioners’ assertion, the EDPL procedures for challenging the agency’s determinations satisfy the requirements of due process (see Brody v Village of Port Chester, 434 F3d 121, 132-133 [2d Cir 2005]). As to the FOIL requests, I note that petitioners received over 8,000 pages of documents from ESDC.

With respect to the closing of the record, petitioners fail to explain why they failed to bring a motion to vacate the automatic stay (CPLR 5519 [a]) imposed upon respondent’s appeal from our order directing that additional documents be turned over by it (54 AD3d 154 [2008], lv granted sub nom. Matter of West Harlem Bus. Group v Empire State Dev. Corp., 12 NY3d 708 [2009]). A CPLR 5519 (c) application would have afforded the Court with the opportunity to assess whether petitioners could demonstrate the likelihood of success on the merits of their position that the withheld documents fall outside the deliberative materials exemption applicable to disclosure under the Freedom of Information Law (see Matter of Xerox Corp. v Town of Webster, 65 NY2d 131 [1985]) and that such documents were material to ESDC’s determination and, thus, essential to affording petitioners procedural due process. A year has now elapsed since the record of the administrative proceeding was closed, and even at this late juncture, petitioners have not made any showing as to the materiality of documents directed to be produced under this Court’s order; nor have petitioners set forth what the documents assertedly being withheld in contravention of our order might be expected to reveal. Furthermore, even if such materials are ultimately found by the Court of Appeals to be subject to disclosure under FOIL, there is simply no order concerning a stay of proceedings that is brought up for review (CPLR 5501 [a] [1]). Petitioners’ intimation that the administrative determination should have been delayed while the FOIL litigation was completed is without factual or procedural foundation.

The record establishes that ESDC took the requisite hard look at the relevant areas of environmental concern, including the impact of the project’s below-grade facility, particularly with respect to flooding issues (see Matter of Jackson, 67 NY2d at 417).

Accordingly, the determination of respondent New York State Urban Development Corporation should be confirmed.

Nardelli, J., concurs with Catterson, J.; Richter, J., concurs in a separate opinion; Tom, J.P., and Renwick, J., dissent in a separate opinion by Tom, J.P.

Petitions brought in this Court pursuant to Eminent Domain Procedure Law § 207, challenging the determination of respondent New York State Urban Development Corporation, doing business as Empire State Development Corporation, dated December 18, 2008, granted, and the determination annulled.