New York Waterway has been trying to bypass Hoboken’s planning and zoning boards in an effort to build (what many have been describing as a controversial) ferry maintenance and refueling facility.  Their efforts have come to a stop, at least for now, thanks to Hudson County Superior Court Judge Jeffrey Jablonski.
 
Judge Jablonski dismissed the ferry company’s lawsuit which requested that the court order not interfere with marine operations at the Union Dry Dock site.  The site is the longtime home to the Union Dry Dock and Repair Co. which New York Waterway purchased in 2017 for $11.5 million.
 
The Mayor of Hoboken, Ravi Bhalla, is happy about the court decision. He said in a statement, "It affirms that no one is above the law, and the rules apply equally to everyone including New York Waterway.” The mayor has plans for the site which includes acquiring the property of Frank Sinatra Drive as a public, open space, saying the ruling "puts us one step closer to making this a reality.”
 
This is pretty big news, at least for the locals. The dismissal of NY Waterway’s complaint is the latest in a series of nasty fights.  Prior to the current disagreement, Hoboken police had stopped operations for minor work being done at the site saying that it was the object of a lawsuit by the city.
 
NY Waterways attorney Anthony Bocchi argued that local permits are not needed for the offshore work and that the company has state and federal permits to replace piles that the industrial site and bring in two barges, build ramps and gangways. 
 
Close your eyes and pretend you are watching a movie. Heck, forget all of that, this drama is real… Bocchi called the officers’ actions gestapo-like, drawing an emphatic response from Lt. John Petrosino, president of the Hoboken Police Superior Officers Association.
 
“It’s abhorrent that New York Waterway’s high-paid attorney would equate the Hoboken Police Department as the ‘Gestapo,’" Petrosino said in a statement. “We demand an immediate and unequivocal apology from New York Waterway.”
 
Bhalla and the city are doing all they can to prevent permits and building.  Apparently, Bhalla once said the site would become a ferry facility “over my dead body.” Bocchi said that an electrical permit has not been approved by the city in 17 months and that Bhalla himself posted a stop work order at the location on one occasion.
 
Let’s see how this turns out since NY Waterway conceded that it will need local permits for onshore portions of the project.  As of now, phase one only requires parking and structures similar to what is already there.
 
Christopher Miller, a Hoboken attorney, noted in court that the city has a right to review NY Waterway’s proposed use for the location.  He also said that planning and zoning board review of the project “would not be a process for stopping the industrial project.” He also said, “An order by the judge allowing the company to bypass local approvals would be premature and that only after permits are sought could the court say if the city had acted arbitrarily, capriciously or unfairly.”
 
In the end, Judge Jablonski ruled that it was premature to say filing for permits would be futile for NY Waterway. He also found that the project’s offshore and onshore portions are “inextricably intertwined” and that NY Waterway’s federal and state permits both require the company to acquire any local permits needed.
 
NY Waterway CEO, Arthur Imperatore Sr., said “The court has spoken,” said after Monday morning’s hearing. “We will comply.”
 
But we know it’s…To Be Continued!

We are thinking back to all of the blog posts that we have shared over the past few years, and most likely, this one is one of the more serious.  We first read about it in The New York Times.
 
Last week the Supreme Court ruled that Plaintiffs may sue directly in federal court to seek just compensation as soon as state and local governments take their property through eminent domain.  This recent ruling overturned a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), which required property owners to first sue in State Court when their property was acquired by a State or local government via eminent domain, before being allowed to sue in federal court.
 
The court’s more conservative justices in the major with a vote of 5 to 4.  What is so notable about the decision is about the court’s attitude toward precedent.
 
Writing for the majority, Chief Justice John G. Roberts Jr. said overruling the Williamson County decision was justified because it “was not just wrong. “Its reasoning was exceptionally ill founded,” he wrote. He added that the decision had “come in for repeated criticism over the years from justices of this court and many respected commentators.”
 
The most recent case was brought by Rose Marie Knick, who owns 90 acres of land in rural Pennsylvania near Scranton that includes a small family cemetery.  All cemeteries are required to be open to the public during daylight hours, according to the local township ordinance that was passed in 2012.  Ms. Knick sued in federal court, saying the ordinance violated the Fifth Amendment’s takings clause, which says private property may not be taken for public use without just compensation.
 
In the earlier Williamson County case, the Supreme Court held that lawsuits claiming violation of the federal 5th Amendment takings clause had to first be brought in State Court. Each State has its own constitution, and its own takings clause. The Williamson County Court further held that there was no violation of the takings clause until the state or local government failed to pay just compensation after state-court litigation.
 
Chief Justice Roberts disagreed.  Specifically, Justice Roberts wrote that:
 
Contrary to Williamson County, a property owner has a claim for a violation of the takings clause as soon as a government takes his property for public use without paying for it. A later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place.  The violation is the only reason compensation was owed in the first place. A bank robber might give the loot back, but he still robbed the bank.”
 
 
In her dissent, Justice Elena Kagan said that the analysis was worrisome, “today’s opinion smashes a hundred-plus years of legal rulings to smithereens.”  She noted that the court had also overruled another major decision last month.
 
Quoting from Justice Stephen G. Breyer’s dissent in that case, “He wrote of the dangers of reversing legal course ‘only because five members of a later court’ decide that an earlier ruling was incorrect,” Justice Kagan wrote. “He concluded: ‘Today’s decision can only cause one to wonder which cases the court will overrule next.”
 
Justice Kagan also wrote that Chief Justice Roberts misunderstood the takings clause, which she said was not violated until the government failed to pay following proceedings about how much was owed.  “Today’s decision thus overthrows the court’s long-settled view of the takings clause,” she wrote. “The majority declares, as against a mountain of precedent, that a government taking private property for public purposes must pay compensation at that moment or in advance.”
 
The decision in the case, Knick v. Township of Scott, No. 17-647, she wrote, “will subvert important principles of judicial federalism.”
 
“Today’s decision sends a flood of complex state-law issues to federal courts,” Justice Kagan wrote. “It makes federal courts a principal player in local and state land-use disputes. It betrays judicial federalism.”
 
But Justice Kagan reserved her harshest criticism for the majority’s attitude toward to power of precedent. “It is hard to overstate the value, in a country like ours, of stability in the law,” she wrote.
 

A 19th century building is in the throes of an urgent campaign by community activists in an effort to save it from demolition.  There is extensive proof that 227 Duffield Street in Brooklyn was used as a safe haven for fugitive slaves during the abolitionist movement and several groups are attempting to have the building designated as a landmark.
 
The building has been on developers’ radars for a while and in June 2019 the City’s Department of Buildings approved an application to demolish the small lot.
 
“This should be a national landmark,” said Michael Higgins, an organizer at Families United for Racial and Economic Equality, one of the organizations lobbying the city to landmark the building. “Why can’t we figure out a way to save it?”
 
Families United for Racial and Economic Equality is being joined by Circle for Justice Innovations in the effort with a petition urging the city Landmarks Preservation Commission to designate 227 Duffield as a landmark. The wave of support has continued to grow with an additional 20 local elected officials, including Brooklyn Borough President Eric Adams.  He signed a letter to the LPC in support of giving the building landmark status. "With a lack of African American historical sites in Brooklyn, we cannot stop at the installation of statues recognizing historical figures," the letter read. "We must also work to preserve the physical movements of our ancestors."
 
According to Gothamist, a spokesperson for the LPC said they had "received a request to evaluate 227 Duffield Street as a potential landmark and it is currently under review.” Samuel Hanasab, a small developer, and the current owner of the building did not respond to questions.
 
Slavery in New York was abolished in 1827, but it was still illegal to harbor an escaped slave from the south.  The building’s late owner, Joy Chatel, always insisted that the property had been a stop along the city’s Underground Railroad.  It was made up of a loose network of homes, businesses and churches that assisted black fugitives making their way north to upstate New York and New England and Canada.
 
Kelly Anderson, a Brooklyn-based filmmaker, who made the film “My Brooklyn” documented some of the efforts to save the home along with a neighboring one at 233 Duffield Street from eminent domain, which the city was seeking as part of a plan to build a public park on the site.  When the film was made in 2006, it included images of what the owners said had been part of an underground tunnel between 227 and 233 Duffield.
 
A report by a planning and environmental firm done at the request of the city disputed that the site was used as part of the Underground Railroad, but was criticized by experts.
It is often difficult to provide if an area was used by the Underground Railroad.  Simeon Bankoff, the executive director of the Historic Districts Council, said that it is because of its clandestine nature. Those who participated in harboring escaped slaves put themselves at a high level of risk. Bankoff says that there is proof that the house was owned by two abolitionists, Thomas and Harriet Truesdell.  This fact is very much in favor of understanding if the site was indeed used as an Underground Railroad stop.  In addition, in 2007 the city abandoned its eminent domain request and renamed the street Abolitionist Place.
 
If the site is named a landmark by Landmarks Preservation Commission, it would not be the first time the City has intervened to protect buildings associated with the Underground Railroad.
In 2009, following a contested renovation of a mid-19th-century row house at 339 West 29th Street deemed to be the only surviving documented Underground Railroad stop in Manhattan, the City landmarked both the property and the neighboring ones as part of the Lamartine Place Historic District. This property, according to Bankoff, had historic records of its association with the Underground Railroad.
 
The area near 227 Duffield has seen robust development recently including two hotels, one on the same block and another across the street.  Recently residential buildings have been demolished and several businesses have left making way for further development.
 
It will be interesting to see what happens, and if Kelly Anderson will have enough material for a sequel to her film.