“Eminent domain is the government taking your property for a public purpose,” declares Develop Don't Destroy Brooklyn (DDDB) attorney Jeff Baker in the film. “Say you want to build a highway, and your house is in the way. Say you want to build a park, and your house is in the way. You need to create low-income rental housing, which is the traditional urban renewal housing that we had in the 60s and the 50s that everybody’s familiar with. You could do that. The difference here is where you are taking private property, and your public purpose may be a little bit of affordable housing, but it’s also primarily, and significantly, more private housing, private market-rate housing, or private economic development. That is what is less appropriate.”
Film director Isabel Hill cuts from some of the talking heads to a shot of Patti and Schellie Hagan, sisters at the heart of the Prospect Heights Action Coalition, painting an anti-eminent domain sign on a wall in Prospect Heights. Schellie Hagan steadies the ladder; Patti Hagan, who’s over 60, perches not on the ladder’s top rung but on its apex. A strong wind could tumble her to the ground. She’s either fearless, reckless, or unusually even-keeled--or some combination of the three.
Then we hear Kent Barwick of the Municipal Art Society, which as part of BrooklynSpeaks has treaded a careful line about eminent domain, criticizing it but not considering it a reason to oppose the project.
In the film, however, Barwick offers a quote that the DDDB hard-liners could embrace: “It’s my property, you can’t take it away. If you take it away for a defense plant or a hospital, that’s one thing, but taking it away from me and giving it to some developer down the street who’s going to make more money off the property than I was able to make, that doesn’t sit well with people.”
The Kelo case
DDDB's Baker offers the rationale for the suit challenging eminent domain, based on the language of the Supreme Court’s 2005 Kelo decision: “What makes it legally flawed and politically flawed was that there never was organic planning by the state or the MTA for the Vanderbilt Yards to say how do we change these process… Finally, after it was well along with the process, endorsed by the governor and the mayor, the MTA put out an RFP for Vanderbilt Yards."
Planner Ron Shiffman, who's on the DDDB advisory board, adds that, “To take property owned by the developer and take it by eminent domain to resell it to the private developer so that he can avoid the rent protections, is an outrage, and this is what they’re doing. They are planning to take some of the properties where Ratner cannot evict the families, or cannot negotiate a settlement, they very well use eminent domain to take that property from Ratner so that he doesn’t have to live up to his obligations under rent control or rent stabilization laws of the state. That no only jeopardizes the families living there, it jeopardizes every other family living in some form of rent protection in the city and the state of New York.”
These "friendly condemnations" are the subject of a lawsuit filed by 13 rent-stabilized tenants.
The ostensible aim of the eminent domain proceeding is to remove blight, a highly contested issue. Shiffman adds, “The real blighting influence is the property owned by MTA. When you look at the blight report, however, consultants who were brought in basically said that, because there were so many different property owners, that it was difficult to assemble and therefore hard for any large-scale development project to be undertaken here. That’s not a definition of blight. If that’s a definition of blight, then the block you live on, the block I live on, the block many families in Brooklyn live on, could all be considered blight because they’re in multiple ownership.”
More arguments coming
The arguments against eminent domain are forceful, but will they stand up in court? The contested issues in the eminent domain case--questions of public purposes, blight, and deference to the decision of a legislatively-created agency--are currently the subject of some clashing legal memoranda. On January 19, they'll be argued publicly in federal court.