Friday, December 07, 2007

Regarding Willets Point, city process essentially repudiates AY sequence

While coverage of recent City Council hearing on the Willets Point redevelopment seemed to focus on the issue of union jobs (as in this Daily News article), the city seems mindful of the legacy of the Supreme Court's 2005 Kelo v. New London decision--and is operating far differently than it did regarding Atlantic Yards, announced on 12/10/03.

(Another example of Dan Doctoroff's mixed legacy?)

From Wednesday's issue of the Crain's Insider:
The Bloomberg administration is taking the unusual step of putting its Willets Point redevelopment plan through the public review process before picking a developer. It's a nod to the Supreme Court's landmark Kelo decision. In an an eminent domain condemnation, the city would be more likely to survive a legal challenge if a predetermined private developer did not stand to benefit.

But City Council members are uneasy about that, as the article indicates, because they don't know yet what a developer would build. Does the city need to have developers in place before a rezoning? No.

For megaprojects, then, must a developer be in place before the land use review process is completed? If it involves eminent domain, perhaps.

Kelo's legacy and AY

The Kelo decision upheld eminent domain because New London “carefully formulated a development plan.” Justice Anthony Kennedy’s non-binding concurrence gave specific guidelines, including “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,” that were not followed in the Atlantic Yards sequence.

However, defending the dismissal of the Atlantic Yards eminent domain case in federal appellate court in October, Empire State Development Corporation (ESDC) attorney Preeta Bansal denied that the sequence was important, arguing that, as long as the project results in some public use, “that’s the end of the inquiry.” And the city has endorsed the ESDC argument.

Fair warning

A 5/17/06 New York Times article about Willets Point, headlined A Redevelopment Scuffle in Queens, suggested that even the issuance of a request for proposals was suspect:
The administration's strategy is being attacked from several directions, even by those who say eminent domain is sometimes necessary for urban redevelopment.

One such critic is Brad Lander, executive director of the Pratt Institute Center for Community and Environmental Development, who said the city should have led "a public process, informed by data" before asking developers to submit detailed proposals.

"This seems to me to fly in the face of one of the few things that Kelo says you have to do," he said, referring to the majority decision in the Supreme Court eminent domain case, Kelo vs. New London. "You have to have a planning process to determine if there's a public good to the thing you're doing."

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