Amicus Curiae on Behalf of Students Opposing the Expansion

8/9/2019 Amicus Curiae on Behalf of Students Opposing the Expansion

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Table Of Contents

PageTable of Contents………………………………………………………….2

Table of Authorities……………………………………………………….3

Interest of Amicus Curiae…………………………………………………6

Summary Of Argument……………………………………………………9

Background………………………………………………………………..11

Argument part 1……………………………………………………………16

Argument part 2……………………………………………………………27

Conclusion………………………………………………………………….31



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Table Of Authorities

Cases Page(s)

Jackson v. New York State Urban Development Corp.,

67 N.Y. 2d 400, 437(1986)………………………………............11,12

Kelo v. City of New London,545 U.S. 469 (2005)………………………………………8, 25, 26, 30

Matter of Kaur v. New York State Urban Development Corp.,..................8, 9

Statutes

Urban Development Corporation Act (“UDC Act”) § 10 (d)……...10, 13, 27

Urban Development Corporation Act (“UDC Act”) § 10 (d) (1)............13, 27

Other Authorities

Jane Jacobs. The Death and Life of Great American Cities (Modern Library(hardcover) ed.). New York: Random House. February 1993 [1961]………6

Timothy Williams. Hearing On Columbia Plan Elicits Emotional Speecheshttp://www.nytimes.com/2008/09/05/nyregion/05harlem.html?ref=educationThe New York Times, Sept. 4, 2008………………………………………..6

Jennifer Lee. A Week Into the Columbia Hunger Strike.The New Cork Times City Room.http://cityroom.blogs.nytimes.com/2007/11/13/a-week-into-the-columbia-hunger-strike/…………………………………………..................................7

Verified Petition, Tuck-it-Away-Inc vs. New York State UrbanDevelopment Corporation, Supreme Court of the State of New York,Appellate Division, First Deparment, 21 January2009…………………………………………...................................12, 14, 25

"US Census Bureau Statistics 2000." American FactFinder . U.S. CensusBureau. Web. 23 Apr. 2010. <http://factfinder.census.gov>………………13



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"Fees and Expenses." Columbia College. Web. 23 Apr. 2010.<http://www.college.columbia.edu/bulletin/feesandexpenses.php>……….13

New York Bar Association. The Role of Community Benefit Agreements in NYC Land Use Process. March 8, 2010.www.nyplanning.org/TheRoleofCommunityBenefitAgreementsinNYCLandUseProcess.pdf……………………………………………………..............29

September 23, 2004 Resolution, Community Board 9 Manhattan.http://www.columbia.edu/cu/cssn/expansion/infosheets/zoning%20and%20urbanspace.doc………………………………………………………............16

Jimmy Vielkind and Erin Durkin. CU Paving Way for Eminent Domain Use Columbia Daily Spectator 15 April 2005…………………………………..18

Oriana Magnera. Not Blighted Yet Columbia Daily Spectator , 1 February2007………………………………………………………………………...19

New York City: City Planning Commission IN THE MATTER OF an

Application Submitted by Columbia University Pursuant to Section 201 of

the New York City Charter, for an Amendment of the Zoning Resolution of the City of New York, concerning Article X, Chapter 4 (Special

Manhattanville Mixed Use District), Establishing a Special District in Borough of Manhattan, Community District 9, and Modifying Related Regulations. Rep. no. N 070496 ZRM., November 26, 2007.Print…………………………………………………………………….20, 21

Tom Elliot. Columbia´s Astroturf: Faking Grassroots Support for Expansion

Plan. New York Post , 19 September 2007…………………………………20

Scott Stringer. Recommendation on ULTJRP Application Nos.: C 070495

ZNIN'I and N 070496 ZRN'I Special Manhattanville Mixed-Used District byColumbia University in the City of New York . Rep. New York City2: Officeof the President, Borough of Manhattan, September 26, 2007. Print………21

Armin Rosen. From the Editors: Lost in Manhattanville. The Current 11

Apr. 2010. Print…………………………………………………………….23

"Admission Statistics | Columbia University Office of UndergraduateAdmissions." Office of Undergraduate Admissions at Columbia University,2010. Web. 23 Apr. 2010.http://www.studentaffairs.columbia.edu/admissions/applications/stats.php.28



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Maggie Astor and Becky Morais. “Community Board 9 opposes Columbia´scommunity benefits agreement¨ Columbia Daily Spectator 4 May 2009....29

Matthew Schuerman. Resignations Over the Columbia Harlem ExpansionThe New York Observer November 29, 2007.http://www.observer.com/2007/will-columbia-three-get-any-respect...........................................................................................................29



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Interest of the Amicus Curiae

The Student Coalition on Expansion and Gentrification (SCEG) at Columbia

University formed in fall of 2003 in response to student concern about the

University’s recently announced expansion into West Harlem. Since 2003,

SCEG has been present as observers and participants at every stage of the

expansion project, from the early discussion of land use and zoning plans

and Uniform Land Use Review Procedure hearings to Empire State

Development Corporation public forums about the use of eminent domain

and finally to the West Harlem Local Development Corporation and

Community Board 9’s votes on the Community Benefits Agreement. The

students strongly believe that communities in West Harlem have a right to

affordable housing, living wage jobs, environmental safeguards and a

prominent voice in any development plan for their neighborhood, and

students have continually worked with community organizations to pressure

the University and local government to recognize these rights.1

As students at Columbia University, we recognize our unique position in

relationship to both the university and the community at large, and

simultaneously, the necessity of our action in support of a just conclusion.

1 For more, see scegblog.wordpress.com



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Ultimately, any request that Columbia makes of city and state agencies is

effectively done in our name and on our behalf. It disturbs us that the

university has acted with flagrant disregard for student opinion on the

question before this court.

Urban theorist Jane Jacobs writes, "Cities have the capability of providing

something for everybody, only because, and only when, they are created by

everybody."2 Yet, the justification for the proposed expansion plan and the

necessity of eminent domain centers on the goals of Columbia as an elite

educational institution, as President Lee Bollinger made clear in his

statement that. “The reason why a great university needs more space is

knowledge,” he said. “As knowledge grows, a university needs more people,

more classrooms, more laboratories.” 3 Although the university is not a party

to this case itself, it is clearly the sole beneficiary of the irregularities in the

condemnation process pointed out by the Petitioners-Respondents and the

majority verdict of the New York Supreme Court Appellate Division, and its

institutional conduct should have supreme relevance in any ruling on said

process. In our comments, it is this conduct that the students seek to focus

on, as it is something with which they have become intimately familiar.

2 Jacobs, Jane. The Death and Life of Great American Cities (Modern Library (hardcover) ed.). New York: RandomHouse. February 1993 [1961]3 Williams, Timothy. Hearing On Columbia Plan Elicits Emotional Speeches

http://www.nytimes.com/2008/09/05/nyregion/05harlem.html?ref=educationThe New York Times, Sept. 4, 2008



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The opposition of Columbia students to the use of eminent domain has been

consistent and steadfast. In addition to hosting informational sessions and

public events to inform students about the issues involved, students have

organized a variety of rallies working in coalition with neighborhood groups

that attracted significant media coverage, and spoken on-the-record at ESDC

hearings in opposition to the University´s case. As we saw that the process

was moving forward, unchecked and without any notable changes, we

participated in a ten-day hunger strike aimed at changing the policy aims of

Columbia administrators, but found that the university was unwilling to

listen to the arguments of its own constituents, much less the Harlem

community.4

As such, and based on our long experience as observers and participants in

the review process for the approval of eminent domain, we have concluded

that the Respondent-Appellant in this case, the Empire State Development

Corporation (ESDC), has acted unconstitutionally in making their

determination in favor of Columbia University, and strongly support both

the claims of the Petitioners-Respondents and the determinations of Justice

4 Jennifer Lee. A Week Into the Columbia Hunger Strike.

The New Cork Times City Room. http://cityroom.blogs.nytimes.com/2007/11/13/a-week-into-the-columbia-hunger-strike/



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Catterson´s majority opinion at the New York Appellate Division, First

Department.5

SCEG submits this memorandum in the hope that its experience, research,

and in-depth perspective concerning the conduct of Columbia University in

coordination with the Empire State development and other government

agencies will be of edifying value to this Court in considering the issues at

hand in this appeal.

Summary Of Argument

1. Respondent-Appellant asks the court to uphold the finding that the Project

constitutes a public use, benefit or purpose on the basis of economic

improvement alone, on the grounds of the U.S. Supreme Court taking clause

exposition in Kelo v. City of New London. 545 U.S. 469, 125 S.Ct. 2655, 162

L.Ed.2d 439 (2005). For a number of reasons which we shall sum up here

under the heading of bad faith, the New York State Supreme Court,

Appellate Division, First Department found correctly that the Project did not

meet Justice Kennedy’s explicitly stated standards in Kelo of a “carefully

considered development plan” (7; 17), demonstrating that the Project was

not “adopted to benefit a particular class of identifiable individuals” (7). As

students active in both our university and the West Harlem community

5 Matter of Kaur v. New York State Urban Dev. Corp. New York State Supreme Court, Appellate Division, FirstDepartment. 3 Dec. 2009, pg. 6.



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throughout the final 5 years of the planning and ULURP process, our unique

perspective on the University’s conduct bolsters the Appellate Court’s

findings. These experiences and their bearing on the questions raised by this

appeal are outlined in the first section.

2. Respondent-Appellant in the matter of Kaur v. New York State Urban

Development Corporation6 additionally argued that The Project constituted

a Civic Project because of its “education related uses,” to which the

Petitioners-Respondents responded that a private university does not

constitute a public use according to Uncons. Laws § 6253(6)(d) (UDCA

3(6)(d)). As students, we are first hand witnesses as to why that distinction

should be made particularly sacrosanct in regards to Columbia University.

We are also in a unique position to accurately describe the nature of any

additional benefits that Respondent-Appellant argues should contribute to

the weight of their argument that the Project constitutes a Civil Project,

including the Community Benefits Agreement, which the Appellate

Division, first department correctly finds are “are pretextual, unrelated to the

use of the Project or are de minimis in value.”7

Our knowledge and

experience of the educational aspect of our institution, as well as any other

tangential benefits of the plan, are laid out in section 2 in regards to their

bearing on the substantive question for the court of whether the Project

6 Id. page 147 Id., page 6



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constitutes a “Civic Project” pursuant to the Urban Development

Corporation Act § 10 (d).8

Background

As stated in the Appellate Division majority opinion, this case involves the

acquisition, by condemnation or voluntary transfer, of approximately 17

acres in the Manhattanville area of West Harlem for the development of a

new campus for Columbia University, a not for profit corporation

(hereinafter referred to as "The Project"). The Project, referred to as the

Columbia University Educational Mixed Used Development Land Use

Improvement and Civic Project, would consist of a total of approximately

6.8 million gross square feet in up to 16 new buildings, a multi-level below-

grade support space, and the adaptive re-use of an existing building. In

addition, the Project would purportedly create approximately two acres of

publicly accessible open space, a market along Twelfth Avenue, and

widened, tree-lined sidewalks.

While Columbia University owns approximately 91% of the properties

necessary for the construction of the Project, it is seeking exercise of the

state’s condemnatory power for the Petitioners-Respondents’ properties and

8 Courts have the jurisdiction to decide on the evidence the validity of civic projects. Jackson v. New York StateUrban Development Corp., 67 N.Y. 2d 400, 437(1986)



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businesses, which are those of the two remaining commercial property

owners in the area. The University has frequently painted the Petitioners-

Respondents as “holdouts” looking to profit unduly off of its project, given

that the University has had success at acquiring other properties through

negotiated settlements. However, it is well known that other business

owners, wary of the high costs of an extended legal conflict and conscious of

the political favouritism the University’s request was likely to find in the s’

review processes, were negotiating under the constant threat of their

properties’ forceful seizure by state authorities. As such, it is fair to say that

the implicit invocation of state condemnation coupled with the visible

collusion between the University and the state has led not only to the

ESDC’s ruling regarding the properties in question by this suit, but also

pressured negotiated sales between a variety of business owners that sold to

the University after it began its phase of land acquisition in 2002. Thus, the

case does not deal merely with resistance of an impassioned few, but with

the evaluation of a process that led to the transfer of property from small,

community-oriented family businesses to a powerful institutional actor on a

large scale.

This process relied on a series of specious propositions. The first such

proposition was ESDC’s determination, reached through a study of

neighbourhood conditions by the consulting firm AKRF, which was



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employed simultaneously by both ESDC and the University, that the Project

area was blighted. This proposition has been amply criticized on both

substantive and conflict-of-interest, or bad- faith, grounds by the Petitioners-

Respondents, whose arguments were accepted and reflected in the Appellate

Division decision. We find particularly convincing the argument made by

the Petitioners-Respondents No Blight study that the greatest deterioration in

building standards and vacancy rates in the Manhattanville area occurred in

properties acquired by the University. 9

The second proposition, which the Appellate Division ruled to be wholly

unsupported by the record and precedent10, was that the project has a public

use, benefit or purpose, a necessary precondition for the exercise of eminent

domain. It is upon this proposition that we, as students and prime

beneficiaries of the uses and purposes of both the existing campus and the

prospective Project, can comment in the most substantial detail.

While the research and academic activities resulting from the expansion of

an elite university may very well be beneficial to some, the extremely high

cost of access to these facilities as well as the history of confrontation with

the populations of the surrounding communities are likely to make these

benefits unavailable to both neighborhood residents and the general public.

9 Verified Petition, Tuck-it-Away-Inc vs. New York State Urban Development Corporation, Supreme Court of theState of New York, Appellate Division, First Department, 21 January 2009., paragraphs 112-11810 supra note 5



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A graduate research campus constructed in a neighborhood where, according

to 2000 US Census Bureau Statistics, only 13.2% of the population has a

bachelor´s degree and 33.9% of individuals are below the poverty line11, can

hardly be construed as a “public educational use”, any more than

Columbia’s gated Morningside Heights campus which primarily serves an

affluent, transient student population. The fact that this institution has a

yearly undergraduate tuition of $39,296 for the 2009-2010 academic year 12,

not inclusive of mandatory fees or room and board, should make it clear that

the public immediately around the Project, those living in within community

board 9, for example, or even New York city as a whole, are not the prime

beneficiaries of the University´s services. The Petitioners-Respondents

document that the key term “Civic Project”, which as a classificatory

category permits the exercise of eminent domain, was added only in

September 2006 in a revised draft of the General Project Plan as

condemnation proceedings drew closer.13

While the takings clause of the Urban Development Corporation Act allows

for the condemnation of property for educational purposes to serve the

general public, as the Petitioners-Respondents state, in the UDCA “there is

no legal precedent recognizing private institutions of higher education as a

11 "US Census Bureau Statistics 2000." American FactFinder . U.S. Census Bureau. Web. 23 Apr. 2010.<http://factfinder.census.gov>.12 "Fees and Expenses." Columbia College. Web. 23 Apr. 2010.<http://www.college.columbia.edu/bulletin/feesandexpenses.php>.13 Supra note 5, p. 6



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civic facility, or an entity carrying out a community, municipal, public

service, or other civic purpose. The term “civic” implies use and

participation of the public, and has heretofore required at least use by

invitees from the public. A private university, with selective admission,

charging high tuition, and offering its graduates valuable credentials for their

private advantage, cannot qualify as a civic facility or a provider of a private

purpose.”14

As it is incumbent upon this Court to decide the matter of civic use based on

a substantive record,15 it is important to examine whether or not the

University has fulfilled a “public educational use” through its existing

institutional conduct and relationship to the public, which we understand to

mean primarily the communities directly surrounding the University campus

which are most directly affected by its institutional presence, and

secondarily residents of the New York City metropolitan area. It is our

conviction that the University has neither fulfilled a “public educational use”

or “civic use” with its current educational facilities, and as such, no basis

exists for a determination that future facilities will do fulfil such a role.

Furthermore, we contend that the high level of student and community

opposition to the Project are relevant factors to be considered in this

14 Verified Petition, Tuck-it-Away-Inc vs. New York State Urban Development Corporation, Supreme Court of theState of New York, Appellate Division, First Department, 21 January 2009., paragraph 225.15 See Jackson v. New Cork State Urban Development Corp., 67 N.Y. 2d 400, 437 (1985)



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determination, as well as the University’s and the state’s conduct in the face

of such opposition. As the Petitioners-Respondents have demonstrated and

as the Appellate Division´s ruling states, the ESDC and the University have

been extremely unresponsive to such criticism, and have colluded to prevent

relevant Project-related information from reaching the general public,

despite maintaining a public discourse of transparency and respect for

community democracy. This form of behaviour is both inconsistent with the

principles of democratic government to which this State adheres, and would

not have been necessary were the Project truly reflective of a “public use,

benefit, or purpose”.

ARGUMENT

1. COLUMBIA UNIVERSITY HAS CONSISTENTLY ACTED

AGAINST PUBLIC OPINION AND WITHHELD PROJECT

INFORMATION RELEVANT TO ESDC PROCEEDINGS FROM

THE GENERAL PUBLIC

Columbia University has presented the Project as an expansion plan which

has enjoyed transparency and participation in the planning process,

incorporating both community members and university affiliates.

Unfortunately, in the experience of Columbia students, nothing could be



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further from the case. We believe this history to be relevant in the

consideration of this case, as the pattern of institutional behavior that we

have witnessed during our relationship with the University has been amply

documented with relation to the ESDC by both the Petitioners-Respondents

and the NYSC Appellate Division’s decision.

Throughout our history as a student organization, we have encountered a

complete lack of disclosure about expansion-related details from the

Columbia University administration, as well as a lack of meaningful avenues

for either student or community engagement. The University has been

particularly intransigent towards any suggestion that the use of eminent

domain may be inappropriate for the Project.

Furthermore, the University has experienced consistent resistance to the

exercise of eminent domain from a variety of community actors since the

commencement of the project, as expressed in both the official record of the

city’s Uniform Land Use Review Procedure (ULURP) hearings, the public

hearings held by the ESDC, and a variety of forums within the University

itself.

In January 2004, Columbia University formed several “advisory” groups,

one of these consisting of student representatives and the other consisting of



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representatives of the West Harlem community, in line with its rhetoric

towards representation of diverse interests. The student advisory group met a

total of two times during the academic semester, and no input was solicited.

The community advisory group was dissolved in June 2004, as it submitted

a report recommending the adoption of the Community Board 9’s 197-a

development plan as a framework for development, which expressly

proscribed the use of eminent domain in the expansion area. In a September

2004 resolution, Community Board 9 voted to condemn the use of eminent

domain in the development, by a unanimous vote of 29-0. The Board stated

that “Resolved, That Community Board No. 9 Manhattan declares its

opposition to the use of condemnation through "blight" studies or any other

method, as a vehicle

toward eminent domain; and be it further Resolved, That Community Board

No. 9 formally requests that no government agency present an offer of

eminent domain, whether for or not-for profit, to any persons seeking

development in the Board 9 Manhattan District.”16

In April 2005, through a Freedom of Information Law request, the

newspaper of record for Columbia University, the Columbia Daily

Spectator , was able to obtain key correspondence between the University

and the state, which showed that the University had paid the state hundreds

16 September 23, 2004 Resolution, Community Board 9 Manhattan.http://www.columbia.edu/cu/cssn/expansion/infosheets/zoning%20and%20urbanspace.doc



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of thousands of dollars to cover the costs for the blight studies that would be

required for the condemnation of property in the Project area.17 These

letters, between Howard Jacobson, Columbia’s Deputy Legal Counsel and

Charles Gagnano, chairman and CEO of the ESDC, testified to a $300,000

payment that had been tendered without the apprisal of the Community

Board, political representatives, students, or the public at large. Prior to this

point, the University had not disclosed to the public that it was pursuing the

exercise of eminent domain with the ESDC.

In 2006, despite the lack of availability of public information of the blight

studies then being conducted first by Urbantran and subsequently AKRF,

students stage a series of protests questioning the impartiality of the blight

process highlighted by the Petitioners-Respondents and the NYSC Appellate

decision. The University refused to respond substantively, claiming that this

it was the ESDC’s legal prerogative to make determinations of blight,

despite the fact that it shared its consultant, AKRF, was performing the

study in question.

In January 2007, the Columbia Daily Spectator obtains a draft of the General

Project Plan (GPP) for the Project. Although the blight study is not yet

complete, the paper reports that the document anticipates that the area will

17Vielkind, Jimmy and Durkin, Erin. “CU Paving Way for Eminent Domain Use” Columbia Daily Spectator 15April 2005



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be declared blighted and provides for the use of eminent domain to acquire

property.18

Despite repeated student requests for the University to abide by

the explicitly stated views of Community Board 9, the University refuses to

consider policy changes.

In June 2007, the Department of City Planning certifies the Draft

Environmental Impact Statement (DEIS) for the project, which begins the

ULURP procedure necessary for the rezoning of the Project zone. On

August 20th, 2007, Community Board 9 holds its required hearing as part of

the ULURP process, in which opposition to the project, and to eminent

domain is particularly expressed. CB9 votes against the plan by a vote of 32-

2, with one abstention. The first of the ten points of objection which

conditioned the Board’s negative vote was a pledge to oppose the rezoning

proposal unless the University “withdraw[s] the proposal for eminent

domain, cease[s] to use the threat of eminent domain to intimidate owners to

sell, and abandon[s] the process of imposing gag orders on those that have

entered into agreements to sell.”19 CB9 advisors later report that although

Columbia representatives were present at these hearings, the University

never held any subsequent meetings with CB9 members to discuss

modification of any of the ten points of objection, much less the issue of

18 Magnera, Oriana. “Not Blighted Yet” Columbia Daily Spectator, 1 February 2007.19 IN THE MATTER OF an Application Submitted by Columbia University Pursuant to Section 201 of the New York

City Charter, for an Amendment of the Zoning Resolution of the City of New York, concerning Article X, Chapter 4

(Special Manhattanville Mixed Use District), Establishing a Special District in Borough of Manhattan, Community

District 9, and Modifying Related Regulations. Rep. no. N 070496 ZRM. New York City: City PlanningCommission, November 26, 2007. Print.



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eminent domain, despite the statements of University officials that they

remained in constant contact.

As was reported in the media,20

these hearing were marred by an incident in

which the University funded a group affiliated with the Addicts

Rehabiliation Center (ARC) organized by Rev. Reginald Williams, which

bussed in recovering drug addicts to support the plan at a ULURP hearing

for pay. These individuals were passing out flyers to hearing attendees

criticizing community activists in the name of the “Coalition for the Future

of Manhattanville”, a group funded largely by through Bill Lynch

Associates, a public-relations consulting firm hired by the University.

On September 26th

, 2007, Borough President Scott Stringer issues his

conditional approval of the Project plan. One of the points upon which the

Borough President conditions his approval of the plan is “the applicant’s

commitment with regards to avoiding eminent domain”, noting that “every

effort should be used to avoid the use of eminent domain” and that although

“it remains a possibility for a few remaining non-residential property owners

20 Elliot, Tom. “Columbia´s Astroturf: Faking Grassroots Support for Expansion Plan” New York Post, 19September 2007



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who have not sold to Columbia, negotiation with these remaining property

owners is by far the most appropriate resolution of the situation.”21

On October 3rd

, 2007, the New York City Planning Commission (NYCPC)

holds its hearing on the rezoning plan. According to the NYCPC’s report, 60

speakers either “oppose” or “conditionally oppose” the plan, while only 22

speakers speak in support. Student representatives were among those who

opposed the plan. In rejecting the Community Board 9’s alternative planning

framework, the NYCPC notes that “the revised 197-a plan…would not

provide an adequate opportunity to facilitate Columbia’s long-term growth

while integrating it into the urban fabric of Manhattanville. This opportunity

is provided by the University’s plan…”22

This line of argument conflates

Columbia’s institutional interest with the public interest, which

unsurprisingly is best met with the University’s plan. This rhetoric is similar

to that used by the ESDC in its documents.

In November 2007, frustrated over their inability to persuade the University

to consider any of the objections raised by Community Board 9 during the

ULURP process or revise its position on eminent domain, students stage a

21 Stringer, Scott. Recommendation on ULTJRP Application Nos.: C 070495 ZNIN'I and N 070496 ZRN'I Special

Manhattanville Mixed-Used District by Columbia Universitv in the City of New York . Rep. New York City2: Officeof the President, Borough of Manhattan, September 26, 2007. Print.22 IN THE MATTER OF an Application Submitted by Columbia University Pursuant to Section 201 of the New York

City Charter, for an Amendment of the Zoning Resolution of the City of New York, concerning Article X, Chapter 4

(Special Manhattanville Mixed Use District), Establishing a Special District in Borough of Manhattan, Community

District 9, and Modifying Related Regulations. Rep. no. N 070496 ZRM. New York City: City PlanningCommission, November 26, 2007. Print. pg. 51.



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ten-day hunger strike on Columbia’s campus. While the strikes leads to a

series of meetings with Executive Vice President of Government and

Community Affairs Maxine Griffith, the University administration does not

divulge any more information.

In July and August 2007, in response to Freedom of Information Law

(FOIL) petitions filed by the Petitioners-Respondents, the New York County

Supreme Court orders the release of documents that had previously been

withheld by the ESDC testifying to their relationship with the AKRF

consulting firm, a ruling which is affirmed by the Appellate Division on July

15th, 2008. On September 2nd and 4th, 2008, the ESDC held two hearings in

connection with the proposed Project and acquisition of property within the

Project site. In addition to the Petitioners-Respondents, student

representatives spoke forcefully against the use of eminent domain in the

project. Despite this opposition, the ESDC releases its Determination of

Findings on December 22nd

, 2008, which allows for the University’s

acquisition of Petitioners-Respondents’ property.

In 2009, students affiliated with SCEG, after learning that the University was

considering applying for federal stimulus funds for projects relating to the campus

expansion, demanded their right to be informed of any such applications, given the



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still controversial nature of the Project and the University’s prior pledges not to

take taxpayer funds for the development. After a series of meetings, the University

failed to inform the group about applications until after their approval.

It is relevant to note that within the Columbia student body, there has at no

point existed a student group supportive of the exercise of eminent domain

in a Project of which the student body, much more directly than the general

public, is said to be the main beneficiary. To the contrary, SCEG has

organized continuously over the last 7 years against this potentiality, while

articles and editorials critical of eminent domain use have appeared in the

Columbia Daily Spectator , the Columbia Current , and Columbia Ad-Hoc

Magazine, among other publications.23

As such, it appears curious that a project that has been presented by the state

as having a “public use, benefit or purpose” is unable to garner significant

support in either the communities that would supposedly benefit

(represented by community actors such as Community Board 9) or among its

own constituency, the student body.

The yawning chasm between the University’s rhetoric regarding community

engagement and the reality of its action is not a matter that can be litigated.

23 Rosen, Armin. "From the Editors: Lost in Manhattanville." The Current 11 Apr. 2010. Print



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However, as the determination of what is or is not a “public use, benefit, or

purpose” is an inherently subjective determination, the University's behavior

becomes relevant in this decision. The history of obfuscation of both the

University and the Appellant-Respondent, as well as the clearly stated

opposition to eminent domain use at every stage of the Project’s

development should, in addition to the petitioners’ arguments, be considered

in the evaluation of the Project.

It bears repeating the Petitioners-Respondents’ argument once again, that in

regards to the UDCA “there is no legal precedent recognizing private institutions

of higher education as a civic facility, or an entity carrying out a community,

municipal, public service, or other civic purpose. The term “civic” implies use and

participation of the public, and has heretofore required at least use by invitees from

the public. A private university, with selective admission, charging high tuition,

and offering its graduates valuable credentials for their private advantage, cannot

qualify as a civic facility or a provider of a private purpose.”24

There is no reason

that the Respondent-Appellant and the University should be permitted to override

legal precedent in this case, particularly if this history of procedural irregularities

and disregard for democratic principles is considered.

24 Verified Petition, Tuck-it-Away-Inc vs. New York State Urban Development Corporation, Supreme Court of theState of New York, Appellate Division, First Department, 21 January 2009.



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As Justice Kennedy states in his concurring opinion in Kelo v. New London (2005),

which permitted the condemnation of property, “This taking occurred in the

context of a comprehensive development plan meant to address a serious city-wide

depression, and the projected economic benefits of the project cannot be

characterized as de mini-mus. The identity of most of the private beneficiaries were

unknown at the time the city formulated its plans. The city complied with elaborate

procedural requirements that facilitate review of the record and inquiry into the

city’s purposes. In sum, while there may be categories of cases in which the

transfers are so suspicious, or the procedures employed so prone to abuse, or the

purported benefits are so trivial or implausible, that courts should presume an

impermissible private purpose, no such circumstances are present in this case.”25

The clearly demonstrable favoritism shown to one private party, the opaque nature

of both the city rezoning and the state condemnation process, the withholding of

relevant information from interested parties, and the lack of responsiveness to

public opinion all point to this as an example of a suspicious transfer for which the

Court should presume an impermissible private purpose.

As such, this Project clearly fails the high procedural standards for transparency set

by the Kelo decision. The University and the Respondent-Appellant should not be

25 Kelo v. City of New London. 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). , Kennedy concurringopinion pg. 4



26

rewarded for their consistent disregard for the explicitly stated interests of the

communities surrounding the Project area and for its own students.

2. COLUMBIA UNIVERSITY´S CURRENT AND PAST

EDUCATIONAL USES DO NOT CONSTITUTE A PUBLIC OR

CIVIC EDUCATIONAL USE AND THERE IS NO BASIS TO

CONSIDER THAT FUTURE USES WILL DO SO

In determining whether or not the Project would qualify as a civic project with

educational benefits to the public, a reasonable standard of review would suggest

that it would have to be accessible to the general public interested in these services

or at the very least a significant portion thereof. Mere affiliation with a private

University engaged in educational activities not targeted towards the general public

would not, in and of itself, qualify the Project as an educational use with a civic

character.

An analysis of § 10 (d) of the Urban Development Corporation Act strongly

supports the Petitioners-Respondents´ arguments that the Project does not

meet these standards. §10 (d)(1) reads that authority for the state agency to

undertake a civic project which would allow for the exercise of eminent

domain is predicated upon “That there exists in the area in which the project

is to be located, a need for the educational, cultural, recreational,



27

community, municipal, public service or other civic facility to be included in

the project.”26 The ESDC has not proven that there is a compelling public

need for the area in which the project is to be located for the construction of

a graduate research facility of an elite private university, nor has it proven

that the educational portion of its programs would benefit the residents of

the area in question.

Approximately 78% of the Columbia University undergraduate student

population comes from outside of New York State (2007-2008 statistics).

27

Far from having its academic programs open to the general public, 90% of

applicants to the University´s undergraduate program are rejected.28

While

private universities are entitled to set their own admissions standards based

on the strength of their academic offerings, an institution that rejects the vast

majority of applicants and relies overwhelmingly on out-of-state, transient

students cannot be considered a public use for the communities surrounding

it.

Although the University is acknowledged to be one of the foremost educational

institutions of the world, its presence in a community with educational attainment

significantly below median U.S. levels has not substantively increased this level

26 174 U.D.C.A § 10.d.1 (1968)27 http://www.citytowninfo.com/school-profiles/columbia-university-in-the-city-of-new-york 28 "Admission Statistics | Columbia University Office of Undergraduate Admissions." Office of UndergraduateAdmissions at Columbia University, 2010. Web. 23 Apr. 2010.<http://www.studentaffairs.columbia.edu/admissions/applications/stats.php>.



28

relative to other communities of similar socioeconomic composition. Furthermore,

there has been well-documented friction between the community and the

University, largely over prior development strategies that led to large-scale

residential displacement. Most famously in 1968, when the University sought to

construct a student gym in a public section of Morningside Park, large-scale

community and student protest forced it to abandon its institutional priorities when

they proved incompatible with the needs of surrounding neighborhoods.

Programs which are directly targeted towards these communities are not conceived

as the prime purpose of either the University´s educational offerings or the

proposed Project, but rather as “community benefits” extraneous to the principal

research purposes of the Project.

These “community benefits” were largely negotiated as elements of a

Community Benefits Agreement (CBA) the University signed with the West

Harlem Local Development Corporation (WHLDC) on May 18th,

2009, long

after the ESDC had reached its central decisions. Instead of a CBA, an MOU

was used to cajole the New York City Planning Commission to vote in favor

of Columbia’s Plan. Far from being the central purpose of the project, they

compose no more than 3% of the overall project cost. Furthermore, the

process of negotiating this CBA was contentious around the very issue of

eminent domain and was marred by the resignation of a significant portion



29

of the WHLDC’s executive committee due to disagreements regarding this

issue.29 Community Board 9, the representative body which initially created

the WHLDC, voted unanimously against the final agreement.30

Furthermore, the New York Bar Association has recently argued in a

compelling report that Community Benefits Agreements should have no role

in land-use decisions such as the Uniform Land Use Review Process

(ULURP), much less state condemnation proceedings.31 This report

recommends that “the City announce that it will not consider CBAs in

making its determinations in the land use process, will give no “credit” to

developers for benefits they have provided through CBAs, and will play no

role in encouraging, monitoring or enforcing the agreements”, further noting

that “in municipalities that become dependent on the benefits conveyed by

CBAs, both the local government and community groups may lose sight of

larger, long-term land use objectives and “sell” development approval too

cheaply, leaving the community insufficiently protected from the harms that

urban developments may impose.”32

We concur strongly with the opinion

of the report in this case, and find it especially troubling that the CBA

benefits, while not part of the development as such and were exacted on a

quid pro quo basis in exchange for desired land-use zoning changes, are

29 http://www.observer.com/2007/will-columbia-three-get-any-respect30 Astor, Maggie and Morais, Becky. “Community Board 9 opposes Columbia´s community benefits agreement¨Columbia Daily Spectator 4 May 2009.31 New York Bar Association. The Role of Community Benedit Agreements in NYC Land Use Process. March 8,2010. www.nyplanning.org/TheRoleofCommunityBenefitAgreementsinNYCLandUseProcess.pdf 32 The Role of Community Benefits Agreements in New York City’s Land Use Process. New York City: New York City Bar Association, 8 March 2010.



30

being presented by the University and the Respondent-Appellant with no

legal precedent as proof of the project’s “civic” or “public” nature.

CONCLUSION

On a personal level, we as students view our University’s choice to deliberately

misrepresent itself and its history in order to get the desired outcome in state

processes for the Project in question as a degradation of our own educational

process. We were overjoyed at the Appellate Division’s decision, which re-

validated our faith in governmental institutions, which had been severely

challenged by the degree of collusion we witnessed during the City and State

review processes. We call on the Court to accept the Petitioners-Respondents’

argument, founded in the provisions of the UDCA and the standards set by the

Kelo decision, and invalidate the ESDC’s Determination of Findings.

For the foregoing reasons, we respectfully call upon the Court of Appeals to affirm

the decision of the New York Supreme Court, Appellate Division, First

Department in regards to this case.



Documents

Amicus Curiae on Behalf of Students Opposing the Expansion