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For two hours on December 14, Baer heard arguments from a gaggle of lawyers trying to persuade him either to extend or lift the October injunction he placed on three projects planned by the state's Empire State Development Corporation (ESDC). The plaintiffs, whose properties are slated to be razed, argued that the way New York implements eminent domain is rigged against them and denies due process. Attorneys on the other side said the state's practice, in use since 1978, is well-tested and constitutional. It will likely be a month before Baer rules.
Only one of the projects, East River Plaza, is in New York City. The megadevelopment would build a mall anchored by a Home Depot and Costco in East Harlem on the site of the abandoned Washburn Wire factory, spanning 116th to 119th streets along the FDR drive. The City Council approved the plan in November 1999, convinced that the promise of jobs and tax revenue justified turning over the properties of up to a dozen local businesses to a private developer, the Blumenfeld Group. The project has been stymied partly because of lawsuits brought by custom woodworkers William and Bill Minnich, whose East 117th Street shop is slated to become a parking lot. William Minnich's father founded the business in 1927.
"The whole point of our lawsuit is that there is not a meaningful forum in which issues can be raised," plaintiffs' attorney Dana Berliner of the Washington, D.C.-based Institute for Justice, told Baer. "We're asking for a declaration that the process is not constitutional."
Under New York's eminent domain procedure, members of the public, including possible condemnees, are allowed to speak at a state-sponsored hearing for a few minutes. They may not ask questions or present evidence. The state then has 90 days to decide if it will approve condemnation. If it does, condemnees have only one chance to challenge the decision by filing a lawsuit in the state's appellate court within 30 days. The state need not inform them of that right.
In court, ESDC attorney John Casolaro defended the process: "The public hearing is to inform the public so it will feel more a part of the project. . . . You might want it" to be more than that, "but the legislature didn't grant that and didn't need to. It granted something better," he said, referring to a condemnee's opportunity to quickly get an appellate hearing.
The Minnich's appellate-term case was tossed out in June because it was filed too late. In October, they filed in federal court. "This is our last-ditch attempt," says Bill Minnich, William's nephew and a co-owner of the shop, which produces furniture, including pieces that are in the Museum of Modern Art. "You get your three minutes at the hearing and that's it. For the little schmo, while they're stealing his property, he doesn't even know he's out of the game."
Other snags have foiled East River Plaza. In May, developer David Blumenfeld told a community board that the departure of two inside backers, ESDC's Randy Daniels and deputy mayor Randy Levine, jeopardized a $30 million subsidy for a parking garage. Neither ESDC nor Blumenfeld returned Voice calls.
M. Robert Goldstein, an attorney who helped draft New York's eminent domain process law nearly 25 years ago and who has represented clients on both ends of the bulldozer, says it's time to reconsider how the law is implemented. "You cannot run government without eminent domain, but you must not confuse the right with the possibility for abuse," he says. The use of eminent domain has evolved from explicitly public projects like hospitals and schools to current schemes like East River Plaza. "The result," says Goldstein, "is that anything goes."
Goldstein attended Baer's hearing and afterward chatted about the law while admiring the courtroom view. In the distance rose the UN building, another project built through eminent domain. Ironically, Valentine Minnich's cabinetmaking shop on First Avenue and 48th Street was condemned to make way for it in 1953.