Tuesday, February 05, 2008

Daily News's "Abuse of process" editorial an abuse of facts

An editorial in today's Daily News about Atlantic Yards, headlined Abuse of process, deserves a close look because of the numerous errors.

(It was quickly distributed as part of Forest City Ratner's "Atlantic Yards News.")

Blight inflation

It begins:
Opponents of the Atlantic Yards project - developer Bruce Ratner's $4 billion plan to build housing and a pro basketball arena on 22 blighted acres in Brooklyn - have had their days in court. And they have lost over and over again.

While the extent of blight is a matter of extreme debate, especially the state's assertion that a building not developed past 60% of its development rights is blighted, no one disagrees that the state did not designate all 22 acres as blighted. The Second Circuit Court of Appeals opinion noted that "unblighted parcels" may be added "as part of an overall plan to improve a blighted area.”

Of course that "overall plan" came from Forest City Ratner. Note how the Daily News seems to have forgotten the "Jobs, Housing, and Hoops" rationale.

"Wacko attempt"

The editorial continues:
On Friday, a federal appeals court summarily tossed a wacko attempt to block the state from using eminent domain to buy a handful of privately owned properties on the site. The opponents argued that Ratner had co-opted or corrupted every official who likes the idea of building 2,250 units of affordable housing there, along with a ton of market-rate housing and a home for the Nets.

Wacko? Well, U.S. Magistrate Judge Robert M. Levy a year ago wrote that the case raised "serious and difficult questions regarding the exercise of eminent domain under emerging Supreme Court jurisprudence."

The state would not be using eminent domain simply to buy a "handful of privately owned property" but also to acquire buildings owned by Forest City Ratner itself in "friendly condemnations" that would bypass a more onerous process of removing tenants with rent-stabilized leases.

Given that the state’s projections "ignore a whole lot of public costs,” as the plaintiffs' attorney said in court, it's pretty hard to figure out the public benefit, and thus find clues to whether Ratner would benefit.

As for the argument of co-option and corruption, as the court summarized it, the plaintiffs "contend that a 'substantial' motivation of the various state and local government officials who approved or acquiesced in the approval of the Project has been to benefit Bruce Ratner."

I'm not sure that they have to (or could) prove it, but favoritism may arise simply out of failure to do due diligence, as I wrote.

Supreme Court Justice Anthony Kennedy, whose nonbinding concurrence in the Kelo v. New London decision inspired some of the legal challenge, wrote that 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.”

The Second Circuit Court's decision ignored Kennedy’s observation that Kelo was OK because “the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known” and “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.” Both of those conditions are absent in the Atlantic Yards case.

Who's generous?

The editorial continues:
Such is the nonsense that the opposition, Develop Don't Destroy Brooklyn, has peddled for four years. As Ratner reached generous settlements with scores who lived or owned property in the development zone, the group charged that he had ensnared Mayor Bloomberg and Govs. Pataki and Spitzer into fabulously and unjustifiably enriching him.

While some (but hardly all) settlements may have been relatively generous for the market, they are dwarfed by the vast increase in development rights--and thus profits--that Forest City Ratner would get via the state override of zoning. (An expert in New York magazine estimated a billion-dollar profit.)

Misreading EIS review

The editorial continues:
The federal judges rejected the claim out of hand, just as a Manhattan Supreme Court justice two weeks ago threw out a suit by the group alleging state officials did a faulty environmental review in order to, you guessed it, make Ratner wealthy.

No, the charges of faulty environmental review don't claim a motive. They claim that, among other things, the state ignored extensive public comments refuting the blight study. And that the crime study component of the blight study was bogus--an issue on which the judge punted.

Nine month delay?

The editorial continues:
Now, the opponents are getting set to appeal again - and appear determined to wait the maximum of nine months before filing papers. This is the height of cynicism. The group is dragging its feet for one reason: to try to delay Atlantic Yards to death.

Except a lawyer for the petitioners says it would take three or four months, not nine months.

About that $12 million

The editorial concludes:
Every month costs Ratner $12 million, and financing has become increasingly difficult in the subprime mortgage credit crunch. The developer has asked the Appellate Division to force Develop Don't Destroy to make its case on an expedited basis.

That must happen. The opponents are engaged in an abuse of process that threatens great public harm. The court should order them to proceed forthwith so the matter can be decided on the merits once and for all.

That $12 million a month figure comes from Forest City Ratner's lawyer, who unaccountably doubles the $6 million a month figure provided by an FCR executive. And that $6 million figure is completely untenable as well, as I wrote.

Abuse of process

Are the petitioners' efforts to have their legal claims heard more of an abuse of process than the state's claim that there would be no redevelopment without Atlantic Yards or the state's willingness to claim blight at the edge of the Vanderbilt Yard (now magically removed) without pointing to who might be responsible?

1 comment:

  1. I don't understand why the Daily News is pro-eminent domain. Large segments of the left and right were unhappy with the Supreme Court's Kelo decision - even some of the justices who were in majority didn't like the decision but felt constrained by the law.

    Did the News not get the memo?

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