Thursday, May 17, 2007

At eminent domain discussion, principled planning (vs. Atlantic Yards) and elusive blight

When and how should the power of eminent domain be used? How can equitable use of eminent domain be assured? Those were the topics at a panel discussion last Thursday at the Brooklyn Public Library’s central library, and Atlantic Yards did not come off well in comparison to more "thoughtful" exercises of eminent domain. (Scroll to the end for the money quote.)

Judd Schechtman, an urban planner and environmental attorney, started off by describing eminent domain law. Schechtman formerly worked on land use issues for the Brooklyn Borough President’s Office but made clear he was speaking only for himself.

Schechtman offered a planner’s perspective, citing Robert Burchell, a professor at the Center for Urban Policy Research, Rutgers University as observing that eminent domain remains an important tool, because “declining cities cannot wait for rock bottom before public intervention.”

Examples of such cities: Newark, Camden, Baltimore, and New Haven. (Isn’t Brooklyn a bit more prosperous?)

Schechtman pointed out that “Atlantic Yards is a project of regional significance,” which raises questions of “how can we achieve consensus-based planning” to reach regional objectives. (The Regional Plan Association, in its Atlantic Yards testimony, brought up the difficulty of balancing such issues.)

Doing better

Schecthman cited the American Planning Association, which is “pro-eminent domain in a way,” which advises that public participation must begin early in the process and that eminent domain should be used as a tool of last resort.

“The city’s 2030 plan has a tagline: we can-we must-do better. And I think the same should be said about eminent domain,” observed Schechtman, who’s active in a new organization promoting smart growth.

“It’s not something we want to exclude from the toolbox of methods that we have in order to enhance economic development and grow the city. But the current use is not, we would say, as judicious [as it should be]. Only when absolutely necessary and with adequate public input.” He didn't mention Atlantic Yards in that summation, but, arguably, the implication was there.

Some criticism

Tom Angotti, Professor in the Hunter College Department of Urban Affairs and Planning, called New York City “possibly one of the national centers of eminent domain abuse,” citing Atlantic Yards as “the premier example” but also the city’s efforts to redevelop Willets Point in Queens.

Angotti acknowledged that, “in principle, of course, eminent domain should be one of the tools that government has. But to do what?” He recalled fighting federal redevelopment in Boston in the 1970s, when it hit some racially, ethnically, and economically integrated neighborhoods. “It was not used to correct blight. It was actually an enabler of blight.”

“So, when I hear Professor Burchell say we need this tool for economic development, we can’t move ahead without it—is it really economic development, or are you just assembling land for a private developer?” he asked.

What’s blight?

“I have people come to me all the time. They say, ‘You’re an urban planner. What’s the definition of blight? What do you have to do to say an area’s blighted? There is no science, there is no standards. It’s whatever the agency decides is blighted,” Angotti said.

“I remember watching the Boston Redevelopment Authority folks go out and do blight studies. They never got out of the car,” he said. “It’s very subjective and it’s open for abuse.”

Angotti pointed to some real and some chimerical problems with the Atlantic Yards blight designation. He criticized the Empire State Development Corporation for arguing that buildings that don’t use 60% of their zoning rights are blighted but also suggested that the state had designated “recently renovated apartment buildings” as blighted. (Actually, they weren't designated blighted, but were designated as part of footprint the state has determined blighted.)

However, he noted that even federal urban renewal efforts depended on a plan, something absent in the Atlantic Yards context. By contrast, with Willets Point, “at least we have a prior announcement” he said. However, he emphasized that the project came out of the city’s economic development arm, not the planning department. “It’s basically the city saying to private developers, ‘Tell us what to do with this area.’”

Angotti added that eminent domain trades preservation for new construction. If you say you’ll only use it as a last resort, “you’ve already sent a signal to the property owner,” to sell to speculators. However, he argued, “It is not in the public purpose to satisfy the business interests of large developers.”

City perspective

Lisa Bova-Hiatt, deputy chief in charge of condemnation in the Tax and Bankruptcy Litigation Division of the New York City Law Department, called herself a proponent of the “thoughtful use of eminent domain,” adding that “I’d like to believe that the city of New York uses eminent domain thoughtfully.”

She pointed out that “in a dense city, the assembly of parcels suitable for redevelopment, for whatever purpose, is frequently impossible without the use of eminent domain.”

Before the Supreme Court’s controversial 2005 Kelo v. New London decision, which narrowly revalidated eminent domain for economic development, “my agency acquired property routinely,” Bova-Hiatt said. “We really flew under the radar screen.”

While Justice Sandra Day O’Connor warned “the specter of condemnation hangs over every property,” Bova-Hiatt pointed out, “nothing really changed.”

ED examples

Bova-Hiatt didn't address Atlantic Yards, which is a state rather than city program; nor did she respond to Angotti's criticisms of Willets Point, a city effort. Most people who practice in the field believe eminent domain should be used sparingly, thoughtfully, and only as a tool of last resort, she said, citing examples in the state’s history, including the Erie Canal and a tunnel bringing water to the city.

“You can’t get more of a traditional public use, but we’ve had to acquire entire towns… so even a traditional use of eminent domain can be no less offensive than the acquisition of property as part of an urban renewal area.”

Subjective blight

In New York State, eminent domain for economic development is not allowed unless there’s special legislation, as for the original World Trade Center site. Otherwise, the justification must be blight.

“As my colleague said, blight is a very difficult and subjective term of art. Indeed, when Michael Cardozo, who’s the corporation counsel, was testifying in front of the [state] Senate last year on eminent domain, one of the Senators said, ‘Mr. Cardozo, how can you tell whether a barn is blighted?’ And he said, ‘I was born and raised in Manhattan; I couldn’t tell you.’ And blight is really something that is specific to a locale. What might not be considered blighted to me might be considered blighted to somebody else.”

Bova-Hiatt noted that the Supreme Court has, since the 1954 Berman v. Parker case, allowed that, in the context of an urban renewal plan, a non-blighted property could be taken as part of a large-scale development.

“I think that’s unpalatable to people, and I completely can appreciate that…. But Berman v. Parker paved the way for that type of economic revitalization.” She noted that, in the 1984 case Hawaii Housing Authority v. Midkiff, the Supreme Court agreed that a transfer between private entities would not, in itself, negate a public purpose.

“I believe that, furthering a city plan for development, whether it’s in Willets Point or in Melrose Commons,” she said, “if you transfer a property to a private developer to effectuate a city’s plan or a municipality’s plan for redevelopment, is actually prudent. You have a situation in which a municipality’s plan is being effectuated, and it’s not being effectuated with taxpayer dollars, it’s effectuated with outside private money.”

(The question of taxpayer vs. private money remains at issue regarding Atlantic Yards.)

Bova-Hiatt pointed out that, in the past, speculators had bought vacant city property at auction and held it, waiting for someone else to invest in the neighborhood. “And unfortunately, when private money does not facilitate that growth, the only entity that can come in and say, ‘We’re making an investment in this neighborhood… is the municipality,” she said.

The Melrose Commons example

She gave an example that Mayor Mike Bloomberg has previously cited, regarding Melrose Commons in the Bronx: “When we think about thoughtful planning, I think the Melrose Commons plan is actually one of the best examples of the city proposing a plan, the neighborhood saying, ‘Y’know, we really don’t like your plan for redevelopment’ And this is the open and transparent process, the ULURP [Uniform Land Use Review Procedure] process that, I believe, when it’s actually utilized, can work."

"So what happened in Melrose Commons is that the city presented its plan for the revitalization of the area, and the tenants and occupants and residents of the neighborhood said no, we don’t like your plan. There’s who people want to stay. There’s people who have invested both their time and their energy and money, y’know, blood and sweat into this neighborhood and we want to stay. So the neighborhood created an organization called Nos Quedamos, which, I’m told, means ‘We Stay,’ and they worked in conjunction with the Department of Housing Preservation and Development to thoughtfully plan for the redevelopment of the area. "

“People who wanted to stay were able to stay and [HPD] gave people money and grants to rehabilitate their property…, and people that wanted to—their properties were acquired by eminent domain. What’s happened there is not this affluent neighborhood. It’s a fabulous—I’ve taken tours there—affordable neighborhood. The development has taken a lot longer, because there weren’t just large tracts of land to just hand to a developer to build. And, indeed, some of the neighborhood organizations, like Nos Quedamos itself, became designated developers.”

Public use

Kelo said states can legislate what’s public use in their own municipalities, Bova-Hiatt said, “and New York State has adopted a very broad definition of what constitutes a public use. And in fact, the definition, through case law, is anything that benefits the general health safety and welfare of the municipality… And I think you can pretty much fit anything into that definition.”

Looking ahead

Bova-Hiatt pointed to pending legislation in Albany, noting that most is geared toward paying a premium to those whose properties are condemned.

She warned that, in the backlash to Kelo, legislation might pass but not solved the problem. “In Texas, you can no longer acquire property by eminent domain for affordable housing,” she said. “However, you can acquire property for the building of a new Dallas Cowboys stadium.”

(In Brooklyn, apparently, those notions are joined.)

She suggested that changes to state law be “thoughtful,” noting that, when the city acquires property by eminent domain, it must go through the many-layered ULURP. “I’d like to think that the process that we have, at least with respect to acquisitions by the city of New York, is already thoughtful, and to the extent that it can be made more thoughtful, great.”

The city, she said, is sometimes the underdog, when owners won’t sell: “Oftentimes I feel we’re being blackmailed into paying, y’know, 30 times fair market value.”

And what about AY?

When the Q&A began, the obvious question for Bova-Hiatt was this: “Do you think that the thoughtful planning that the city has practiced in Melrose Commons, etc., has been applied to the Atlantic Yards case?”

Her response: “Well, the city of New York is not the condemning authority with Atlantic Yards. And because it’s pending litigation, I don’t want to offer my opinion, because that might not necessarily be the opinion of the city of New York. But, from what I’ve heard, there was a difference between what happened in Melrose Commons and what happened in Atlantic Yards.”

Given the previous discussion, she wasn’t exactly going out on a limb.

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