Judge Madden’s interim ruling on Willets Point is already old news.  However, given our interest in NYC’s land grab projects, aka “redevelopment projects”, we wanted to at least touch on the topic and direct our readers to several great articles previously published on this matter.

First of all, we’re not shy about our stance on NYC land grab projects, which typically involve  “taking from small, middle-class owned businesses and giving to the wealthy folks with city hall connections”, a process that Gideon Kanner describes and rightfully labels  “reverse Robin Hood” in his recent article on Willets Point.  The Willets Point Project is no exception to this rule.  The NYC EDC is planning on redeveloping the 61 acre site which is the last underdeveloped area nestled between Citi Field and downtown Flushing.

The Bait and Switch tactic used in this project relates to the construction, or lack thereof, of new ramps on the neighboring Van Wick Expressway as outlined in the environmental impact statement (EIS).  In order to deal with heightened traffic resulting from the development of Willets Point, the project proposal considered the ramps an essential part of the project.  The EIS assumed the ramps would be built, and the City stated during oral arguments that if the ramps are not approved then they would not proceed with the plan as conceived.  Furthermore, the City stated during the original Article 78 proceeding that it would not go forward with its exercise of eminent domain power until approval for the ramps had been obtained.

Lo-and-behold, the City abandoned its proposal to build the highway ramps after it was revealed that the City’s ramp study submitted to the Federal Highway Administration, contained assumptions directly contradicting the assumptions of the EIS submitted to the City Council for the redevelopment.  Rick Hills of PrawfBlogs highlights the oddities of this contradiction by noting that consulting firm AKRF is responsible for compiling both reports.  The City has now decided to carry out the project in stages (although the EIS analyzes the project as a single project), and to exercise its eminent domain power to proceed with a portion of the project, without approval of the ramps.

Thankfully, Judge Madden recognized the severity of this contradiction in her opinion and stated “I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment.”  She further states “I conclude that I have the inherent power to entertain petitioners’ concerns regarding the City’s new staged approach to the development of Willets Point and to consider the adequacy of technical Memorandum, and that it is in the interests of Justice to do so”.  The order calls for further proceedings and to await the ruling of the Appellate Division in the right-to-take eminent domain proceeding, whose outcome may resolve the issues addressed in this case.

The $62M project, planned in three stages, will involve numerous changes to the traffic pattern in the Utica area and will involve the major reconstruction and partial realignment of the North-South Arterial through West Utica.   This project also includes but is not limited to replacing the 51 year old bridge over Columbia Street, creating a new pedestrian bridge across Route 12, construction of additional parking between Court and Lafayette Streets, and constructing a new ramp off Oriskany St. providing access to Varick Street.   Stephen Zywiak, DOT regional design engineer stated “This is the central arterial that we have in the region and the condition is such that we need to get a timely replacement”.

This project has been in the planning phase for years and will affect approximately 85 families and businesses.  The final NYS DOT public hearing for the project was held on September 27^th, 2011 at the state office building at 207 Genesee St.  The final alternative has been selected, property appraisals are underway and the first phase of the project will begin in late 2012.  The state can begin acquiring properties once they obtain final design approval from the Federal Highway Administration, which is expected to occur by the end of 2011.

*Design concepts are included below

Because this is a public use project, the state highway department has eminent domain authority to acquire property if negotiations can not be reached.   Property owners should familiarize themselves with their rights under New York eminent domain law prior to accepting an offer from the state.  We have several pages on our website devoted to this topic, including a flow chart which details the New York eminent domain process and information related to attorney fee and cost recovery.  There are 2 important eminent domain statutes that you should be aware of:

1. When presented with an offer by the State, you can either sign the final settlement papers or the offer for advanced payment.  By signing the final settlement papers, you are accepting the state’s offer and waiving your right to pursue additional just compensation under New York eminent domain law.  If you would like to pursue a claim for additional just compensation, you must sign the offer for advanced payment.  Once this offer is signed, you will receive payment from the state for the amount offered (provided there are no liens or judgments attached to your property and no past due taxes) and allow you to initiate a claim for additional just compensation.   If you sign the offer for advanced payment, you must within three years after service of notice of acquisition or vesting, (whichever is later) file a claim for additional damages with the clerk of court having jurisdiction over the matter. (NY EM DOM PROC § 503).  Learn more about New York eminent domain.
2. NY EM DOM PROC § 701 allows for the recovery of attorneys fees and costs in a just compensation case if the final award is substantially greater than the condemning authority’s offer of payment.  Learn more about New York attorney fee recovery.

Resources:

Preferred Alternative (Sept 2011)

ROW information from the Environmental Assessment (July 2011)

NYS DOT project website

Observer-Dispatch news article

I had the opportunity to meet with about 10 property owners who are affected by the Willets Point Redevelopment Project in Flushing, and I also had the pleasure of meeting Robert LoScalzo, who is creating a documentary on the project.  We all had dinner at Tony’s Pizzeria in Flushing and discussed the project, their current right to take challenge and New York eminent domain law.

For those of you not familiar with the area, I’ll spend a few minutes describing it and explaining the purpose of the project.  Years ago, downtown Flushing was considered a deteriorating area with no real redevelopment incentive.  However, based upon its prime location, downtown Flushing realized significant redevelopment spurred by private dollars.  Currently, the area is thriving with businesses and valuable properties.  This area is significant because it exemplifies how redevelopment can occur on its own in prime locations, without the aid of a redevelopment authority.  Property in a good location is usually (but not always) subject to private redevelopment.

Across the highway (Van Wyck Expressway) from downtown Flushing is Citi Field, and in between the ball park and downtown Flushing is Willets Point.  Currently, redevelopment is pushing outward from downtown Flushing towards Willets Point, making Willets Point the only underdeveloped area between downtown Flushing and Citi Field.   Although the New York City Economic Development Corp. (NYC EDC) is spearheading a major redevelopment project in Willets Point, I think the area would have attracted private redevelopment over time.    I think the marketplace would have realized the potential of Willets Point given its prime location and redeveloped this area on its own, without the aid of NYC EDC.

The redevelopment that has and is occurring in the area will ultimately influence just compensation for these property owners should Judge Madden allow the redevelopment project to proceed and condemnation of these properties occur.

Learn more about the Willets Point Project.

In a recent blog post about this project, we provided detailed information regarding the 2nd Avenue Subway Project along with links and documents.  Numerous property owners have requested more concise, basic information about the project, so we’re providing those details below.

While it’s difficult for us to get information on individual parcels from the MTA staff, we have been informed that letters have been sent to affected property owners.  If you think you are affected by the project, but have not received a letter, you should call MTA yourself to request this information.  Also, keep in mind that engineering work is still underway, so property impacts could change.

Phases of the project

• First Phase is 105^th St/2^nd Ave to 63^rd St/3^rd Ave
• Second Phase is 125^th St from 96^th St
• Third Phase is 63^rd St to Houston (Intro to T train)
• Fourth Phase is Houston St to Hanover Square

- Phase I is funded and currently under construction.  There are 2 tunnels, 3 stations in phase 1.  The stations are located at 96^th St, 86^th St and 72^nd St.

- They are planning on Digging 8.5 Miles of new tunnel from 125^th St in Harlem S to Hanover Square.  Exact location has yet to be determined.

- Phases 2, 3 and 4 are currently not funded

- Preliminary information suggests a new station location at 125^th St.

An additional two-track connection is planned between the line towards Lower Manhattan (around 62nd Street) and the IND 63rd Street Line towards Queens; current plans don’t call for it to be used by regular service. Provisions are also being made for an extension north under Second Avenue past 125th Street to the Bronx, and an extension south to Brooklyn.

Eminent domain can be used to acquire property if negotiations can not be reached.  Property owners may qualify for attorney fee recovery in their pursuit of just compensation under New York Eminent Domain Law if the final award is substantially greater than the condemning authority’s offer.  Read more about New York Eminent Domain Law and Hiring an eminent domain attorney in New York.

The Second Avenue Subway will be New York City’s first major expansion of the subway system in over 50 years.  When fully completed, the line will stretch 8.5 miles along the length of Manhattan’s East Side, from 125th Street in Harlem to Hanover Square in Lower Manhattan.  In addition, a track connection to the existing 63rd Street and Broadway Lines will allow a second subway line to provide direct service from East Harlem and the Upper East Side to West Midtown via the Broadway express tracks.

Courtesy of the Metropolitan Transportation Authority

Under the current plan, the project will be built in four phases.

Phase 1 will include tunnels from 105th Street and Second Avenue to 63rd Street and Third Avenue, with new stations along Second Avenue at 96th, 86th and 72nd Streets and new entrances to the existing Lexington Av/63 Street Station at 63rd Street and Third Avenue.

Final Design for Phase One started in April 2006. The first construction contract was awarded in March 2007.

Phase 2: Construction will occur from 125th Street to 105th Street, including the utilization of an existing subway tunnel section from 110th – 120th Streets; subway service will be provided from 125th Street to West Midtown Manhattan and Brooklyn via a further extension of the Q train (Broadway Line).

Phase 3: Construction will occur from 72nd Street to Houston Street; subway service will continue to be provided by the Q train from 125th Street to West Midtown Manhattan and Brooklyn via the Broadway Line, as well as a new T train from 125th Street to Houston Street and 2nd Ave.

Phase 4: Construction will occur from Houston Street to Hanover Square; subway service will continue to be provided by the Q train from 125th Street to West Midtown Manhattan and Brooklyn via the Broadway Line, and via a southward extension of the T train to the Hanover Square station in Lower Manhattan.

Property Acquisition

Although the proposed Second Avenue Subway has been designed to follow the public right-of-way of city streets, the Metropolitan Transportation Authority (MTA) has identified numerous parcels or portion of parcels of land that will need to be acquired for the project.

Although many of the acquisitions will be on a temporary basis, there is need to acquire over 65 whole buildings, portions of buildings or vacant land for the construction of above ground ventilation structures, station entrances, emergency exits, ancillary facilities, ect.

Where acquisition of the entire building is proposed, it was found that the integrity of the structure is not sound enough to endure construction under or near the building.  The list of affected properties is contained within this document:

Property Acquisition for 2nd Ave Subway

New York Eminent Domain and Attorney Fee Recovery

Because this project serves a public purpose, the MTA will have the authority to use eminent domain to acquire property if a sale can not be reached amicably.  Property owners who are undergoing eminent domain in New York have rights that can not be taken from them if they assert them.

For example, NY EM DOM PROC § 701 states that in instances where the final award is substantially greater than the condemning authority’s offer of payment, the court may, upon application and in its discretion, award the property owner an additional amount for costs and attorney’s fees. The expenses must be incurred to achieve just and adequate compensation.

This means that in some cases, a property owner can hire a New York eminent domain attorney to assist them with obtaining just compensation without having to pay attorneys fees.  Also, under this same statute, the costs that the property owner incurs will be reimbursed as well.

If you are a property owner affected by eminent domain, the first thing you should do is learn about your rights and the process.  Learn more about Eminent Domain in New York.

On October 27th, 2010, New Jersey Governor Chris Christie announced the cancellation of the Access to the Regions Core Tunnel (ARC Tunnel) Project because of financial complications.

In a statement from the Governor’s office, Christie stated that the $10.9 to $13.7 billion to construct the tunnel would prove too costly for the economic climate in New Jersey and would be fiscally irresponsible.

US Secretary of Transportation Ray LaHood attempted to work with Christie by providing an additional $378 million in federal funding.  Even with this additional funding, Christie said his decision to cancel the project was unchanged.

Hundreds of property owners whose land was to be taken for the tunnel project are left in the middle of condemnation proceedings against them with no idea what happens next.  Thirty owners of commercial property have already lost their property as a result of this project.

Article from the Daily Targum

Article from the Hudson Reporter

The NJ Transit Executive Director James Weinstein recently announced that the state was temporarily ceasing all new work and putting a halt on additional bidding and property acquisition for the project over the next 30 days while the state re-evalutes the project budget.   This was in response to discussions with federal transportation officials who project cost overruns in the amount of $1 billion.

State officials also claimed that the Federal Transit Administration has not finalized the closing agreements for funding the project because it wants to see a plan to fix the nearly bankrupt New Jersey Transit Fund prior to releasing the funds.

The current budget for the project is $8.7 billion paid for in part by the federal government and the Port Authority of New York and New Jersey, who are each contributing $3 billion, and the state of New Jersey, who is contributing $2.7 billion.

Although all new work is suspended, existing work including a track underpass in North  Bergen and construction of the tunnel under the Palisades will continue.

As many of you already know, there is a filing deadline of September 1st for property owners on the Atlantic Yards Project who wish to pursue an additional damages claim.

New York Eminent Domain Law states that a property owner has 2 years to file a claim for additional damages if a property owner signs the offer for advanced payment.  However, a court order was issued requiring claimants for the Atlantic Yards project to file their claim by September 1st, 2010.

If you signed the offer for advanced payment, or if you have yet to receive an offer and wish to pursue an additional damages claim, we advise you act quickly.

Please address your questions to Dan Biersdorf at 866.339.7242.

Pursuant to §201-204 of the New York Eminent Domain Procedure Law, a public hearing was held on July 7th, 2010 at the Pennsylvania Hotel in midtown Manhattan to consider the proposed acquisition by condemnation of certain properties and property interests in Manhattan.

The purpose of the meeting was to inform the public of the project, review the public use and benefit of the project, discuss the proposed location of the project, and to analyze the impact the project might have on the environment and residents.

Tom Wright, Executive Director of the Regional Plan Commission, testified on behalf of the project, and in support of the use of eminent domain by stating “RPA is sensitive to the fact that certain New York and New Jersey residents and business owners are being forced to sell their properties, but we also believe there is not a more clear-cut instance of a project with tremendous public benefits that will improve the region for decades to come.  ARC is a project of regional significance, in which the use of eminent domain is entirely appropriate.”

Read the entire testimony here:

EDProcedureLawhearing

Planning and development for the Kosciuszko Bridge Project has continued steadily since we last updated our blog over a year ago.

Since the signing of the Record of Decision in early 2009, property acquisition has begun, and the NY DOT has been working on the initial phases of the Final Design for preferred alternative BR-5, which will lay the groundwork for developing and completing the detailed design of the new bridge structure.   The NY DOT is considering four options for the main bridge span (images courtesy of NY DOT are following): Box girder, Deck Arch, Through Arch, Cable Stayed.  A public meeting was held in February 2010, and video representations of each bridge design option were showed in order to seek public input.

Bridge Span Design Options-courtesy of the NY DOT

Not surprisingly, property acquisitions are proceeding slowly.  Our firm has met with several property owners and also viewed their affected properties.  From these site visits, in addition to several other conversations with property owners, it is evident that the DOT will have a difficult time determining the true value of some of the properties in the area.  Much of the property is zoned industrial and occupied by businesses with large machinery; additionally, billboards will be removed which are currently a source of revenue for owners.  These issues oftentimes complicate the appraisal process and can lead to incorrect valuations and insufficient offers.

We have received confirmation of one property owner settling with the DOT, and many other owners have informed us that they received an appraisal but not an offer.

Property acquisition should continue thru 2013 and construction is scheduled to begin in 2014.  View the NY DOT’s Kosciuszko Bridge Project website for more info.  Learn more about the New York eminent domain process.