One community's zoning victory

From the NY Post:

A state appeals panel has yanked the permit to build an Upper West Side nursing home, a controversial project with the mayor’s support.

Neighbors of the 20-story Jewish Home Lifecare project at 125 W. 97th St. had sued to block construction, arguing the area is already too densely populated.

In 2016, the mayor’s ­Office of Sustainability greenlit the project, even though a state environmental review had expressed concern about noise and hazardous material related to planned construction.

But on Tuesday the Appellate Division put the kibosh on the plan, saying it violated zoning regulations about open space.

Appeals court grants homeowners a water tax credit

From the Daily News:

New York’s top court gave its legal blessing Tuesday to Mayor de Blasio’s plan to give homeowners a $183 credit on their water and sewer bills.

In a 5-2 decision, the Court of Appeals overturned two lower court rulings and declared the Water Board can give the credit to a select group of customers.

“It is clear from the governing statutes that water and sewer rates may be determined in accordance with public policy goals and not only economic goals,” Judge Eugene Fahey wrote for the majority.

“The court’s decision clears the way for the Water Board to provide welcome financial relief for more than 664,000 New York homeowners,” de Blasio said.

Skelos conviction tossed

From the Daily News:

A federal appeals panel threw out the corruption convictions of former New York Senate majority leader Dean Skelos and his son, court documents revealed Tuesday.

Acting U.S. Attorney Joon Kim wasted no time in announcing that his office plans to retry the two men following the widely-expected ruling in the defendants’ favor.

Skelos and his son Adam successfully appealed their December 2015 convictions, arguing that prosecutors' arguments conflicted with a recent U.S. Supreme Court interpretation of public corruption law.

The pair were convicted of bribery, extortion and conspiracy.

City, Wilpons suffer devastating court defeat

From the Village Voice:

After eight years, two lawsuits, countless delays, & three city reversals, the plan for a mall at Willets Point has finally been defeated. And much like the Mets these days, it lost badly.

In a 5-1 decision, the Appeals Court upheld a lower court ruling that held the owners of the Mets could not build a mall on city-owned parkland. The land in question, the former site of Shea Stadium, which was demolished in 2008, is currently the Mets parking lot. A 1961 law allowed that parkland to be used for stadium purposes, a cut-out that a mall would not have satisfied, the court found.

“There is no dispute that the Willets West development is proposed to be constructed entirely on city parkland,” the judges wrote, continuing that the “public trust doctrine,” which dictates the uses for public lands “is ancient and firmly established in our precedent.” Nowhere in the Mets owners arguments, was a mall found to be in line with the public trust doctrine, the court found.

The Mets owners were arguing that by using the mall to fund the remediation of Willets Point (a parcel of land on the other side of their current stadium), and eventually the construction of both affordable housing and a school, the mall was fulfilling the public trust doctrine. The court found that too to be unconvincing, and also didn’t believe the Mets owners were actually going to build the housing or schools.

But wait...these tweeders may not yet be finished! From NY1:

Although the ruling does block the developer from moving forward, the legislature can still step in and intervene.

The legislature would have to vote to use the land for Willets West for non-park purposes. It would also have to find a replacement property to designate as parkland.

Judges skeptical of mall on parkland

From the Daily News:

The state's highest court tossed a curveball to the city and a Queens developer hoping to build a $1 billion mall near Citi Field.

At least four judges on the six-judge panel of the Court of Appeals appeared skeptical of arguments by the city, state and developer, Queens Development Group, that the mall could be built on a parking lot designated as parkland.

“The primary purpose of this activity is a private purpose: to lease space and set up a shopping mall so people will spend money in the context of going to a sports event,” Justice Eugene Fahey said Tuesday. “Aren’t we required . . . that this particular development be approved by the Legislature?”

The oral arguments, which took place in a special session in White Plains, revolved around the 1961 law allowing the construction of Shea Stadium in Flushing Meadows Park. The mall and movie theater, dubbed Willets West, would be built on the 30-acre site where the stadium once stood.

Assistant Solicitor General Anisha Dasgupta argued for the state that the proposed mall does have a public benefit because it will include public spaces and free attractions that go beyond a standard retail center. She noted a rooftop garden would be open to kids.

City attorney Michael Pastor echoed that argument.

“This is a public attraction. . . It’s a large public space. There’s public programming there,” he said.

But those public benefits didn’t override the project’s overall purpose, which seemed to conflict with the law’s original intent to allow a ballpark in the park, Fahey said.

“We can clearly see the economic viability of the project,” he said. "(The law) was aiming to provide a home for the Mets . . . now how far can you go askew of that?”

Appeals court rules that mall on FMCP parkland violates law

(QUEENS, NY) Today, State Senator Tony Avella, along with the City Club of New York, Queens Civic Congress, members of Willets Point United Inc., and nearby residents/business owners opposed to the “Willets West” mega-mall proposal, announced that the Appellate Division of the First Department issued a historic decision in their favor which will keep parkland public.

The lawsuit filed by State Senator Tony Avella, City Club of New York, Queens Civic Congress, members of Willets Point United Inc., and nearby residents/business owners against the “Willets West” mega-mall proposal, challenged the give-away of 47 acres of Queens parkland worth an estimated $ 1 Billion to build the "Willets West" mega-mall adjacent to CitiField.

The suit sought a declaratory judgment to invalidate approvals already granted to the project, as well as a permanent injunction to prevent the construction of a megamall on City parkland without the proper State legislative authorization or proper zoning. The Supreme Court of New York had ruled against Senator Avella and Petitioners, and the group appealed last August.

Today, Senator Avella, along with appellants, declared that the appellate court had announced its ruling in favor of Petitioners. In a unanimous decision, the appellate court granted injunctive relief and declared that the development can go no further without state legislative approval.

“Today’s decision sends a message loud and clear – our parks are not for sale. The fact of the matter is, this land was intended to be parkland, not the development of a shopping mall. In a city where public land is in short supply, simply handing parkland over is a betrayal of the public trust. The court has affirmed what we have been fighting for all along, and I am thrilled to see this decision come down on the side of justice,” said Senator Tony Avella.

“I am very pleased that the Appellate Division, in blocking the development of a shopping mall on parkland next to Citifield, has upheld the ancient common law doctrine that requires any government agency to obtain the approval of the State Legislature before disposing of parkland. This extra layer of protection for parkland has evolved in recognition of the fact that parkland is a scarce and precious resource. It makes it a little bit more difficult for our government to give such land away. It makes sure that we think twice before doing so, no matter how worthy or expedient the proposed project may be,” said John Low-Beer, Attorney for the Petitioners.

“We’d like to thank Senator Avella for being part of this important suit. This decision confirms first that our parks are for our people, and second that city government must comply with the law, just like the rest of us. There are many people who have contributed enormously to this effort. The City Club of New York is delighted to have been instrumental in launching this case, together with Senator Avella, Save Flushing Meadows Corona Park, Queens Civic Congress, Willets Point United, and many other civic organizations and local residents, and in particular, the wonderful group of Plaintiffs” said Michael Gruen of the City Club of New York.

“Since 2007, we have battled the City at all times over its plans for Willets Point, which expanded in 2012 against the community’s wishes to include the gigantic proposed ‘Willets West’ mall on public parkland,” “Today the Appellate Division agrees with what we’ve said all along: The City and developers failed to follow lawful procedure and now as a result their whole project cannot proceed. If Queens residents knew as much as we do about the horrendous traffic gridlock and other negative impacts of this Willets West/Willets Point Phase One project, they would be celebrating this court victory together with us. Today’s court decision absolutely vindicates all of our efforts and strengthens our resolve to continue challenging and opposing bad development propositions for our area. We’re especially thankful to Senator Avella, who has always done right by his constituents, City Club of New York which spearheaded the lawsuit, and stellar attorney John Low-Beer,” said Gerald Antonacci, leader of Willets Point United.

"We are very pleased with the decision case. It is disgraceful that these developers are attempting to seize 48 acres of public parkland and the Mayor and City Council supported it,” said Geoffrey Croft, President of NYC Park Advocates, Plaintiff.

“The Queens Civic Congress is thrilled that justice has finally been served and Flushing Meadows Corona park will remain available for use by the people of Queens. QCC, as a party to this action is deeply indebted to Senator TonyAvella, our fellow parks advocates and especially to the City Club and its attorneys for their diligent hard work in making this happen,” said Richard Hellenbrecht, Vice President of Queens Civic Congress.

“The entire premise of this parkland having to be developed in order for the rest of the Willets Point development to be completed was proven wrong in this decision. This shows that the taking of public land cannot be used for private gain,” Paul Graziano, Plaintiff and Urban Planner.

City Council adds fine for leaving scenes of accidents

From AMNY:

Drivers who flee the scene of an accident will now have to contend with new fines up to $10,000 from New York City on top of any criminal charges under a bill the City Council passed [Monday].

The bill would add the first local civil penalties for drivers in hit-and-run cases. The most serious violators would get hit with a fine between $5,000 and $10,000 if someone dies.

No conviction during a prosecution for leaving the scene of a crime is required for a judge on a city panel that hears fines on quality-of-life laws, called the Environmental Control Board, to hand down the new penalties, though they can be appealed after they are paid.

Parkland alienation case: Judge rules in favor of City

From Willets Point United:

Justice Manuel Mendez, NYS Supreme Court, NY District, has issued his decision to dismiss the lawsuit brought by plaintiffs Sen. Tony Avella, City Club of New York, Queens Civic Congress and others, challenging the plan of Queens Development Group LLC to construct a 1.4 million square foot mega-mall on 40+ acres of Queens parkland.

Justice Mendez concludes that the 1961 authorization to construct Shea Stadium also allows construction of the mega-mall on parkland.

Below is the official statement of John Low-Beer, attorney for plaintiffs, concerning the decision of Justice Manuel Mendez to dismiss the case:

"Plaintiffs believe that the decision misunderstands the common law doctrine that prohibits any nonpark use of parkland without the specific and explicit approval of the State Legislature. The State Legislature, when it passed the 1961 law permitting the construction of Shea Stadium, did not intend to allow construction of a shopping mall. That law did not allow the construction of anything except a stadium and related facilities on the site. Plaintiffs will appeal, and believe that this decision will be reversed on appeal."

From Crains:

The next step in the process is for the de Blasio administration to transfer all of the city-owned properties to the control of the joint venture, which then plans to begin cleaning contaminated soil on the site before eventually constructing the mall and part of the residential component to the east of the home of the New York Mets. However, the development group said the timeline is being kept fluid since the court’s ruling was likely not the final chapter in the legal dispute.

Appeals court upholds stop-and-frisk ruling

From the Village Voice:

The endless volley between Mayor Bloomberg and appeals courts is over: Friday morning a federal appellate court denied the city's motion to vacate U.S. District Judge Shira Scheindlin's ruling that stop-and-frisk is unconstitutional. The ruling detonates Bloomberg's last hope of overturning the ruling before Bill de Blasio takes office January 1.

The Second Circuit Court of Appeals, the same three-judge panel that removed Scheindlin from the stop-and-frisk over partiality concerns, dropkicked the city's motions with a five-page opinion Friday morning.

Scheindlin ruled in August that stop-and-frisk was unconstitutional and imposed a serious of reforms on the NYPD aimed at curtailing the practice. But on October 31, the Second Circuit deemed that Scheindlin had acted partially, a decision based in part on the interviews she granted with the media in the weeks following the ruling.

On November 9, the city renewed its efforts to get out from under Scheindlin's ruling by filing a motion to vacate her decision. Today the Second Circuit said no.

5 Pointz likely doomed after latest court decision

From LIC Post:

The 5 Pointz artists were dealt a severe blow today when a Federal Court Judge ruled against them, virtually condemning the building to the wrecking ball.

Judge Frederic Block denied the artists a preliminary injunction, which would have stopped G&M Realty from demolishing the building while a lengthy legal fight took place. A temporary restraining order, which was issued twice in October dealing with the same case, was lifted.

The last throw of the dice for the artists is to appeal Block’s decision to the Second Circuit. However, Block did not hand down his full written decision today, which would be the basis of the appeal. That is likely to come within the week.

The artists would need to get an Appeals Court Judge to grant them a stay—which would stop demolition until the case was fully litigated.

While the artists can continue with their lawsuit without a stay or a preliminary injunction, the building is likely to come crashing down while the matter is being decided in court. The artists would get monetary damages if they prevailed—but the building would be gone.

Stop-and-frisk is back in business

From the Daily News:

In a shocking blow to critics of racial profiling and a win for Mayor Bloomberg and the NYPD, a federal appeals court has halted the stop-and-frisk reforms ordered by a judge who ruled that aspects of the controversial policing policy were unconstitutional.

Mayoral front-runner Bill de Blasio, whose strident opposition to stop-and-frisk helped him win the Democratic nomination, blasted the turn of events.

"I'm extremely disappointed in today's decision," de Blasio said. "We shouldn't have to wait for reforms that both keep our communities safe and obey the Constitution. We have to end the overuse of stop-and-frisk, and any delay means a continued and unnecessary rift between our police and the people they protect."

The bombshell decree handed down Thursday by a three-judge panel delays the reforms, as requested by the city, until the appeals process is complete.

The 2nd Circuit U.S. Court of Appeals panel also unexpectedly yanked Manhattan Federal Court Judge Shira Scheindlin off the case, slamming statements she made in court and to the media as impartial and improper.

It was Scheindlin who in August ruled against the city and mandated the stop-and-frisk reforms, including an independent monitor for the NYPD.

The city almost immediately appealed the ruling and later requested a stay.

Tommy Huang appeals Mia Drive BSA decision

Well folks, here we go.

It's not Tommy's fault that someone at the Queens Topographic Bureau "mistakenly" stated that his Mia Drive property was a through lot when it really wasn't. Therefore, BSA should allow him to build.

Rumor has it that Queens Borough President Helen Marshall will support his appeal, although CB11 is not expected to when it votes later this month.

Mia Drive Variance Application
Mia Drive site plan

Here are previous stories about the property:

BSA helps Huang

Board decides Huang created his own hardship

Huang stalls out in Bayside

Bayside's had enough of Huang

More people ask for review of property tax bills

From the NY Post:

New Yorkers are hitting the roof because of ballooning property-tax bills.

A near-record 52,123 city taxpayers are appealing their home assessments this year — close to a 4 percent jump from the 50,249 who questioned their bills last year, The Post has learned. Of that total, 8,249 received reductions.

The highest number of appeals the city Tax Commission has ever seen was 52,130 in 1998.

Tax officials attribute the jump to the frustrating combination of growing bills and plummeting profits in home sales.

Another reason is the difficulty in selling homes.

Because the city values condos and co-ops as rentals, not single-family homes, annual assessments are often higher than what homeowners think they should be. Assessments directly determine how much homeowners pay in taxes.

Another complication is that the city staggers tax-bill increases over a period of years, so a levy can go up while a home value decreases.

The commission is currently reviewing the appeals.

Joe Bruno to be retried

From the NY Post:

The federal government intends to re-try former State Senate Majority Leader Joseph Bruno on government corruption charges after the U.S. Court of Appeals for the Second Circuit ruled today that it can.

The appeals court earlier today overturned Bruno's conviction on charges he deprived taxpayers of "honest services."

But the court found the federal government presented sufficient evidence in its initial prosecution to retry the upstate Republican on the two charges on which he had originally been convicted and a third that resulted in a hung jury.

Bruno, 82, who led the Senate from 1995 to 2008, had been charged with eight counts.

U.S. Attorney Richard Hartunian and Special-Agent-in-Charge Clifford C. Holly of the Albany Division of the Federal Bureau of Investigation announced their offices "will work expeditiously to present a superseding indictment."

When an A isn't really an A

From AM-NY:

Restaurateurs that take the extra step of contesting their health violations usually come out as winners.

Nearly three-quarters of eatery owners that fought their poor grade have ended up having sanitary infractions tossed, and many have had their C’s and B’s turn into A’s, according to an amNewYork analysis of city health department statistics.

The data, which run from July 2010, when the city began linking sanitary violations to letter grades, through Sept. 13, 2011, show that:

— Of the 12,503 hearings held for restaurants with B and C grades, 41 percent of restaurants were able to get enough violation points knocked off to raise their grade by at least one letter.

— A total of 261 of eateries with an original C grade improved to an A.

— Only two restaurants had their number of violations increased.

Bloomberg after welfare recipient's Lotto winnings

From Eyewitness News:

There is an update on a story Eyewitness News brought you more than a year ago about a former welfare recipient who won the lottery, only to have half his winnings taken away by the state.

Not only did he recently gain a major court victory in his battle to get back his prize money, his case could result in millions of dollars being returned to others.

Last time we heard from Walter Carver, he was taking on Mayor Michael Bloomberg and the city's team of attorneys.

He is suing the city for taking half of his $10,000 in lottery winnings to reimburse the state for money he received years ago while on welfare. Under New York law, the state is entitled to half the winnings of any welfare recipient. That, plus taxes left Carver with a little more than $1,000 the day he went to claim his prize.

Carver says the state and city have no right to his lottery winnings, since during the three years he was on welfare, he worked 36 hours a week for his checks, washing floors on the Staten Island ferries. He sued, arguing that taking his winnings is a a violation of the Fair Labor act.

The U.S. District court ruled he had no case and moved to dismiss it. That's when the former sergeant in the Vietnam war and his attorney fired back by filing an appeal.

A few weeks ago, Carver and his attorney found out they won the appeal. The U.S. Circuit Court ruled that the lower court's dismissal was in error.

Eyewitness News has learned that since 2002, the state has intercepted $33 million in lottery winnings from welfare recipients, many of them having worked for their checks just like Carver. It is for them, he says, that he continues his David and Goliath battle against the city and state.

Brown's chickens may be coming home to roost

From the NY Times:

Richard A. Brown, the Queens district attorney, is attempting to prevent a justice in State Supreme Court from issuing a ruling that may accuse his office of an ethics violation — and possibly open the door to appeals and motions in many criminal cases.

Lawyers for Mr. Brown filed a petition this month asking a state appellate court to prevent the judge, Justice Joel L. Blumenfeld, from issuing an opinion on whether the office violated a disciplinary rule by making a misrepresentation to get a defendant to talk. Prosecutors fear that Justice Blumenfeld’s decision could not only smear the district attorney, but also provide an uncontested judicial opinion that defense lawyers will use against them in other cases.

“Judge Blumenfeld,” Donna Aldea, an assistant district attorney, wrote in her petition to the appellate court, “has already repeatedly exceeded his authority and jurisdiction, and is about to do so twice more, potentially causing irreparable harm to the reputation of the district attorney’s office and individual prosecutors involved in this case.”

The case is a remarkable example of legal finger-pointing, with Justice Blumenfeld and the prosecutors alternately taking stabs at each other’s ethics, and a former judge taking a critical shot at an academic. It also presents perhaps the most fierce challenge to the Queens district attorney’s Central Booking Interview Program, which has come under scrutiny from defense lawyers and judges in the past.

The program, which was created three years ago, has processed more than 5,000 cases, prosecutors said.

The issue in the current case rose after the lawyer for a defendant named Elisaul Perez filed a motion seeking to throw out a statement his client gave to prosecutors before he was arraigned on charges of robbery and possession of stolen property. Before interviewing Mr. Perez, prosecutors read to him from a standard script it reads to all defendants. After the prosecution completed the script, it read Mr. Perez his Miranda warnings, which he waived and proceeded to give a statement.

But the script includes a line informing the defendant that if there is something he would like the office to investigate he “must tell us now so that we can look into it.” And Justice Blumenfeld questioned whether that statement constituted a false representation to induce the defendant to talk, which could be a violation of the rules of professional conduct for lawyers.

Justice Blumenfeld called on Ellen C. Yaroshefsky, a professor at Cardozo Law School, to produce a report on the prosecution’s conduct. Professor Yaroshefsky issued a report saying that prosecutors had committed four ethics violations.

Seminerio wants out

From the NY Post:

Corrupt ex-politician Anthony Seminerio wants to be sprung from the slammer while he appeals his six-year stretch for influence peddling.

In court papers filed yesterday, his lawyer said the former Democratic assemblyman from Queens -- who's locked up at the same North Carolina prison complex as Ponzi monster Bernard Madoff -- "poses neither a flight risk nor a threat to the community."

The Manhattan federal-court filing also describes the corpulent crook as "an elderly man with significant health problems" who "always appeared in court when required to do so."

Seminerio, who pleaded guilty to pocketing bribes through a sham consulting firm, plans to base his appeal on a recent Supreme Court ruling that overturned former Enron CEO Jeffrey Skilling's conviction for "honest services" fraud.

Graphic from the Village Voice.

Appeals court reverses protest ruling

From the Village Voice:

[Norm] Siegel saw taking the protest to the Mayor's doorstep as a milestone. As he told the Voice, "Groups have gotten permission to protest on the south side of 79th Street, across the street from the Mayor's house, but never directly in front of it."

The feeling did not last long. Earlier today, mere hours before the group planned to picket the Mayor, an appeals court overturned their right to do so, relegating Siegel and company back to the south side of the street.

"The Mayor uses his home for official business, but he's decided the public sidewalk outside of it is his private property," said Siegel. In his eight years as Mayor, no group has won the right to picket directly in front of Bloomberg's townhouse.

Looking on the bright side, Siegel wryly noted, "we made incremental progress." Instead of being fully confined to the south sidewalk, they moved slightly more north and were "allowed to protest in the gutter."

The protest was a demonstration against Chancellor Joel Klein's and Mayor Bloomberg's proposal to close large public high schools they deem to be failing. They plan to re-open smaller schools in their place. But advocates charge that the answer is not to replace the large schools with privately run charter schools, or with boutique public schools, but to adequately support the troubled schools.