Monday, July 24, 2006

Daily News champions eminent domain, misreads ATURA

The Daily News editorial page seems committed to leading the charge on the Atlantic Yards project. Two editorials, plus a column by Errol Louis, have already been the subject of e-newsletters sent by developer Forest City Ratner within the last ten weeks.

Today's editorial, headlined Eminent sense in Brooklyn domain, likely will be no different. It states:
The United States Supreme Court has ruled that public agencies can invoke eminent domain to purchase land from holdouts and make it available to private developers, provided the project in question follows a preexisting governmental planning process and the public good is served. Atlantic Yards meets both criteria.
In 1968, most of the area was so blighted that city planners officially declared it an urban renewal zone, restating that designation as recently as 2004. The thousands of jobs and the subsidized housing the project would create represent a clear benefit to the public.


As Lumi Rolley pointed out first on NoLandGrab, key blocks in the footprint were never part of the Atlantic Terminal Urban Renewal Area (ATURA), in solid blue, and many of the properties subject to eminent domain are on those blocks, including properties needed for the arena. (ATURA is in red, including the grayish red, while the project would occupy the blocks in blue and blue stripes.)

Negotiating?

The editorial concludes:
Eminent domain is the power that brought us Lincoln Center, the new Times Square and affordable-housing meccas like Melrose Commons in the Bronx, which had long been a moonscape of burned and vacant buildings. Atlantic Yards foes might make better use of their time by negotiating to, say, scale down the project or change the traffic patterns. They should not be holding Brooklyn's future hostage with a frivolous lawsuit.

The reference to negotiating recalls Louis's column that suggested that politicians should try to negotiate jobs at the project, even though they can't. There's no negotiating to be done regarding the scale of the project; objections and criticism can be voiced, but there's no forum to evaluate them. As Kent Barwick wrote in a letter published in the Times today:
The fact is that state-regulated projects developed in association with the Empire State Development Corporation provide for no serious opportunities for citizens to become engaged in planning for their neighborhoods.

FCR on ATURA

On WNYC's Brian Lehrer Show last week, Forest City Ratner executive Jim Stuckey said:
This area has been considered blighted since 1968 when the first Atlantic Terminal Urban Renewal Plan was adopted. About 60, 65 percent of the area fell within that urban renewal area and was considered to be a blighted area. Those findings when the Downtown Brooklyn plan was approved two years ago were reaffirmed. These are not new.

But 60 to 65 percent does not a whole site make.

Supreme Court said

Was ATURA a "preexisting governmental planning process"? Only if looked at loosely. Justice Anthony Kennedy's concurrence in last year's Kelo vs. New London case raises some questions:
A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose. Here, the trial court conducted a careful and extensive inquiry into “whether, in fact, the development plan is of primary benefit to . . . the developer [i.e., Corcoran Jennison], and private businesses which may eventually locate in the plan area [e.g., Pfizer], and in that regard, only of incidental benefit to the city.” The trial court considered testimony from government officials and corporate officers; documentary evidence of communications between these parties; respondents’ awareness of New London’s depressed economic condition and evidence corroborating the validity of this concern; the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known; evidence that respondents reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand... (Emphasis added)

In Brooklyn, the beneficiary would be Forest City Ratner, and there was just one development plan.

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