Sunday, January 13, 2008

Rereading the AY court decision: could "Shoot the Freak" also be a "civic project"?

Let's take another look at one of the central challenges to the Atlantic Yards environmental review dismissed Friday by state Supreme Court Justice Joan Madden, the issue of whether Atlantic Yards would, in fact be a "civic project," defined as a "project or that portion of a multi-purpose project designed and intended for the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes.”

The petitioners--26 neighborhood and community groups--argued that a for-profit sports arena wasn't a civic project. The defendants--the Empire State Development Corporation (ESDC), developer Forest City Ratner, the Metropolitan Transportation Authority, and the Public Authorities Control Board-- said the arena will "provide a venue for other entertainment and cultural events."

Madden concluded that going to a basketball game is "recreational" under the Urban Development Corporation Act (UDCA). But that conclusion strains logic, since almost anything could be "recreational" under her analysis.

Community events not the issue

The "civic project" discussion begins on p. 26 of her decision. First, she dismissed the notion that opening the arena for some ten community events a year qualifies it as a "civic project." She wrote:
In determining the "civic project" issue, the court will focus on the question as presented by petitioners, i.e., whether an arena primarily intended for use by a professional basketball team and operated by a private, profit-making entity, qualifies as a "civic project" within the meaning of the UDCA. As to the civic benefits alleged by the ESDC and quoted above, the commitment as to those uses for ten events a year is de minimus when compared with the primary use of the arena by the Nets, and thus, does not impact on the determination of this issue.

How to interpret statutes

Madden then began a roundabout trip to the dictionary:
In any case of statutory interpretation, the starting point must be the language itself which is the clearest indicator of legislative intent, and if the language is unambiguous, the court must give effect to its plain meaning... When, as here, the term does not have a controlling statutory definition, courts "construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as 'useful guideposts' in determining the meaning of a word or phrase." [citation omitted]

Well, the language may be the starting point, but it is not necessarily controlling. There are numerous techniques and theories of statutory interpretation; consider the use of legislative history, among multiple examples in the book Legislation and Statutory Interpretation.

Did the state legislators who in 1968, on the day of Martin Luther King, Jr.'s funeral, passed the Urban Development Corporation Act "to rebuild slums," as the New York Times put it, intend to support such an arena?

Doubtful, though then again, they probably didn't intend to have the extraordinary powers of eminent domain and zoning overrides to be delegated to a business development authority, which the Urban Development Corporation became, when it later took began to operate as the ESDC. And no one's challenged that switch.

Defining recreational

Madden continued:
The court must determine the meaning of the word "recreational" as used in the UDCA's definition of "civic project," which includes a project "designed and intended for providing facilities for... recreational... purposes."... Although the UDCA does not define "recreational," it cannot be reasonably disputed that this is a word of "ordinary import" which must be construed in accordance with its usual and commonly understood meaning.
[citation omitted] Turning to the dictionary for guidance, the word "recreational" is the adjectival form of "recreation," which the American Heritage College Dictionary defines as "refreshment of one's body or mind through activity that amuses or stimulates; play. [citation omitted] Webster's New World Dictionary of the American Language defines "recreation" as "1. refreshment in body or mind, as after work, by some form of play, amusement, or relaxation 2. any form of play, amusement, or relaxation used for this purpose, as games, sports, hobbies, etc."

Applying this definition, the sports arena portion of the Project, which is primarily intended to serve as the home of the Nets basketball franchise, is a facility designed and intended for recreational purposes, as when sports fans attend a professional basketball game, like any other sporting event, they are engaged in a form of amusement, and the fact they enjoy the amusement as spectators does not alter their recreational character. [citation omitted] Thus, as a venue for professional sports events, the arena qualifies as a facility designed and intended for "recreational purposes," and as such constitutes a "civic project" as defined under the UDCA.
(Emphasis added)

Passive recreation and amusement today

While it might be reasonable to think that "recreational" meant opportunities for active recreation, let's take Madden at her word and consider what other forms of amusement today might qualify as "recreational" and thus be eligible, at least theoretically, to serve as "civic projects."

How about Freddy's Bar & Backroom, slated to be demolished for Atlantic Yards? Or, perhaps Privilege New York, home of the lap dance? Or, finally, a venue where spectatorship, participation, and mob psychology meld, a downscale Brooklyn classic beloved even by patrician Department of City Planning Chair Amanda Burden: Coney Island's Shoot the Freak.

(Photo from Bridge and Tunnel Club.)

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