If, as the saying goes, "the enemy of my enemy is my friend," then "the friend of my enemy is my enemy," which makes the Atlantic Yards eminent domain case--now on appeal to the U.S. Supreme Court--rather tainted, in the eyes of many who emphasize the importance of eminent domain to urban redevelopment.
Why? Not just because of the partial challenge to the Supreme Court's controversial 2005 Kelo v. New London eminent domain decision, but also the tangential involvement of and support from the libertarian Institute for Justice (IJ), which has a broader property rights agenda nationally that could hamstring local governments.
That was a major message from a November 9 conference at Princeton University titled Land and Power: The Impact of Eminent Domain in Urban Communities, hosted by Princeton's Policy Research Institute for the Region (PRIOR) and the Penn Institute for Urban Research. The audience included lawyers, planners, government officials, advocates, and analysts, with the panels generally tilted toward supporters of eminent domain who believe that smaller-scale reforms, rather than fundamental challenges, are needed. (Webcasts available.)
The irony, however, is that property owners/leaseholders in Goldstein v. Pataki, the Atlantic Yards case, seek not to overturn Kelo, which libertarian opponents of eminent domain slammed, but to hold the Supreme Court to what may be a difficult-to-enforce doctrine, that eminent domain should proceed only after carefully formulated plans and when there are no questions that the transfer is a pretext to assist a private party.
A further irony is that, unlike with eminent domain cases brought by the media-savvy IJ, the Atlantic Yards case has been framed less as creating specific sympathetic victims--the old lady who would lose her home--than as a victimization of the surrounding community.
And, given the community resistance to such victimization, there's been enough local support to fund legal challenges, so the plaintiffs in Brooklyn did not have to enlist the IJ, which scouts for headline-making cases.
Reacting to Kelo
The plaintiffs in Kelo gained broader support than in other eminent domain challenges; the property owners’ appeal to the Supreme Court, though organized by the IJ and backed by other conservative or libertarian groups, also drew support from the NAACP, the AARP, and others hardly associated with the right wing.
Develop Don’t Destroy Brooklyn (DDDB), along with the West Harlem Business Group (property owners facing eminent domain because of Columbia University’s expansion plan), filed a friend of the court brief on behalf of the plaintiffs, urging the judges to follow states (notably Michigan's Hathcock case) that have adopted more restrictive rules than the court’s national doctrine.
In Kelo, the Supreme Court 5-4 reaffirmed that the use of eminent domain for economic development was a legitimate public purpose. While hardly a departure from precedent that established that public use--the constitutional justification for eminent domain--can mean public purpose, it nonetheless galvanized public opinion, given the widespread if exaggerated concern that the case indicated, as Justice Sandra Day O’Connor wrote in her dissent: The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.
At the conference, the bottom line came from Patricia Salkin, a professor at Albany Law School and Chair of the New York State Bar Association's Task Force on Eminent Domain, which later issued a report advising technical rather than major changes in state law, as well as a state commission to advise on further changes. “I think we need legislation to address the abuse, not whether the tool should exist,” she said.
(Salkin also tracks land use issues in her Law of the Land blog.)
Restraining abuse
Salkin’s paper, titled The Kelo Effect in New York, New Jersey and Pennsylvania: Assessing the Impact of Kelo in the Tri-State Region, offers a nuanced defense of eminent domain, while acknowledging the need for reform. She noted that, while Kelo was based on existing precedent, it involved the loss of a person's house, quite different from previous cases involving a department store (Berman v. Parker) or land oligopoly (Hawaii Housing Authority v. Midkiff), and thus easier for the public. to identify with.
She wrote:
Eminent domain is one important tool that, when necessary and appropriate, can be used to further redevelopment goals. Instances of abuse should not be tolerated. Understanding the problems that may aggravate abuse—such as lack of public involvement, conflicts of interest, both perceived and actual (implicating state and local ethics law…or the lack thereof), state and local procurement laws, campaign finance issues, municipal financial climates in which local governments are pressured to increase tax revenues, and procedural mechanisms that may be difficult for condemnees to navigate—is essential.... Courts and legislators faced with economic development takings need to be aware of these related issues, and policymakers and lawmakers should not be so hasty to condemn a legitimate tool outright rather than focusing on opportunities to eliminate abuse.
As she wrote, anecdotally, the real impact of Kelo in the tri-state area has been increased media attention, a more informed constituency, and "perhaps more cautious government officials."
Salkin doesn’t think that litigation, as in the Atlantic Yards challenge, is the proper solution to address such abuses, but she didn’t give any alternative suggestion—absent future reforms—for Atlantic Yards opponents.
A solution in Brooklyn?
Later, after I asked, she told me that, though she hadn't read all of the pleadings in Goldstein v. Pataki, she thought that "many of the abuses that have been alleged and in some cases documented in the eminent domain process [in general] are things that relate to irregularities or ethical lapses on the part the actions of public officials" and that an appropriate response would be to look at "strengthening state and local procurement laws and ethics laws."
In her paper, though less so her presentation, she gave some credence to Justice Anthony Kennedy’s nonbinding concurring opinion in Kelo, in which he laid out indicia—such as the absence of competing bids—that eminent domain might be aimed primarily at private gain and thus would be illegitimate.
Comparing a New Jersey case to the Brooklyn case, she wrote that the former shows that the court took heed of Kennedy and reviewed the record regarding favoritism: The result is certainly more satisfying than the district court's response to the takings case brought in relation to Atlantic Yards, where the court rather summarily dismissed the plaintiffs' claims as not plausibly establishing that the purposes of the plan could have been pretextual.
Another panelist at the conference offered a glimmer of hope to the Atlantic Yards plaintiffs, suggesting that Kennedy’s concurrence should be taken seriously, and might lead the Supreme Court to revisit eminent domain, should a case emerge that the four conservative eminent domain opponents think might lead Kennedy to join them as the swing vote.
The eminent domain frame
Conference presenters displayed a sense of embattlement, that the good liberal tools of eminent domain for urban redevelopment have been cast as evil by the IJ, which has its own agenda to go beyond eminent domain and stop “regulatory takings,” regulations--from zoning to wetlands permits--that can limit landlowners' discretion to make use of their land.
“Our buildings were no match for their people,” lamented Jennifer Bradley of Community Rights Counsel, which helps communities defend against eminent domain challenges, contrasting the more abstract benefits of eminent domain with the specific victims who make good copy. (She wrote a 12/18/05 American Prospect article headlined Property Wrongs.)
Salkin suggested that many eminent domain challenges are brought by holdouts who don’t represent the community at large, but are supported in a media campaign led by the IJ.
The AY exception
Though the Atlantic Yards eminent domain case was not discussed in this context, the frame is different. There are a few stereotypically sympathetic plaintiffs, long-term low-income renters, but lead plaintiff Daniel Goldstein—as columnist Errol Louis is eager to remind us—moved into his condo in the footprint just months before the project was announced and serves as spokesman for DDDB.
(Goldstein had lived in the adjacent Park Slope neighborhood for seven years and many DDDB backers are much longer-term residents of neighborhoods surrounding the footprint.)
Instead, the buildings, not the people, have become the issue. Salkin writes in her paper that the eminent domain lawsuit is “spearheaded by local holdouts,” but the 17 buildings of Atlantic Yards—the extremely dense 22-acre project--have exercised many in nearby neighborhoods who back DDDB.
Thus, given community opposition to the project's scale and the process behind it, DDDB has been able to raise money for legal services and use volunteer lawyers rather than rely on an ideologically-driven law firm like the Institute for Justice.
Amicus briefs
Salkin identifies with the camp defending existing eminent domain doctrine. In Kelo case, she signed onto two amicus briefs, one filed by the American Planning Association and the other filed by 13 law professors in response to a brief filed by 13 more conservative law professors. Both of those amicus briefs urged the Supreme Court not to require heightened scrutiny of eminent domain cases.
At the Princeton conference, summarizing her paper, Salkin pointed out that most eminent domain cases are not justified, as in Kelo, simply by economic development. Instead, “blight is the big issue.” Indeed, one of the main justifications of the Atlantic Yards condemnation is the removal of blight, which is backed by a blight study--though plaintiffs argue that blight was not raised as a justification for years after the project was announced and New York offers condemnees little leverage to challenge such determinations. (Other justifications include affordble housing, improved mass transit, and a "publicly-owned" sports arena--which would be leased for $1 a year.)
The AY focus
Salkin devoted the last few minutes of her presentation to Atlantic Yards, which also gets several pages in the paper. She said that Bruce Ratner put together a plan to “redevelop the Atlantic Yards,” thus making the common error of conflating the 22-acre project with the 8.5-acre railyards.
She suggested the developer deserved some credit for not going straight to the hammer: “The interesting thing… they did go out and try to purchase, without asking the city to exercise eminent domain.” Yes, but eminent domain was always in their back poc
ket as a plan/threat, and; Goldstein said it was threatened even as offers were made.
And Salkin acknowledged familiarity with the developer's rough-and-tumble tactics. She pointed to the 6/16/04 New York Post article about buyouts that require sellers to speak positively of the developer. “It was like a gag order," she said, dropping her voice. "I frankly don’t agree with it.”
(How many more examples of tactics, like Forest City Ratner's many brochures, might it take to point out how much more this is a developer-driven political campaign compared to a governmental attempt to overcome blight, given, for example, the ESDC's failure to address upkeep of the MTA's Vanderbilt Yard?)
She said Atlantic Yards was the first major project with a Community Benefits Agreement (CBA) and “it all sounds great… except the opposition says those groups have been bought.” Actually, it's more than the opposition; other supporters of CBAs have raised questions about the Atlantic Yards CBA.
Public vs. private benefits
Though Atlantic Yards would bring major public benefits, according to the ESDC, whose conclusions were endorsed by U.S. District Judge Nicholas Garaufis (and later by the Second Circuit Court of Appeals), Salkin noted that plaintiffs claim there would be too much private benefit.
“My personal answer is that government is not in the business of being a redeveloper,” she said. “Government's got to provide the opportunity for the private sector to come in and do the redevelopment projects. Why is the private sector going to do anything if they can't make money? It's the same argument we have with builders about affordable housing. Yes, we need affordable housing, but affordable housing doesn't mean the developer has to underwrite the cost of the project. otherwise, they're not going to make a living either, and let's face it, this is America.”
That quote, with its echo of then-Forest City Ratner executive Jim Stuckey’s July 2006 observation on the Brian Lehrer Show, "It is, after all, America," skates over some controversy. Is the issue simply profit, or, as Kennedy’s concurrence warns, allegations that the game is rigged?
She cited “allegations of bid-rigging,” a reference to the fact that city and state officials announced their support for Atlantic Yards and signed a Memorandum of Understanding some 18 months before the MTA's Vanderbilt Yard, 8.5 acres of the 22-acre site, was put out for bid. “We need to look at procurement,” she said, presaging her later comments of ethics laws. However, that would not offer much relief to the current Atlantic Yards plaintiffs.
She also acknowledged that the city of New York has a more inclusive process than the state, which reviewed Atlantic Yards: “States and localities must do a better job of engaging the public from the public from the start of the project.” In other words, the process should improve going forward. That still leaves critics of the Atlantic Yards process with little recourse.
More criticism in the paper
In her paper, Salkin was a bit more critical:
It is obvious that the defendants rely on strong legal precedent in making their argument that once a public use is established, the private benefits that may also accrue to certain parties are irrelevant. At the same time, however, the plaintiffs make a compelling case that this position may not the best one, and that the private benefits in a case as this may outweigh the stated public uses of the project. The plaintiffs have also raised contentions that, while the eminent domain procedures of New York may have been followed in this case, other irregularities in the process (i.e. those problems related to bidding and the lack of local review) show that increased judicial scrutiny of the public process may be warranted.
...Perhaps more generally than the need for increased public participation in the planning process, the Atlantic Yards development illustrates the need for governmental planning entities to make efforts to demonstrate to the public that they have the community’s needs, and not private interests, in mind, especially in large-scale projects.
Eye of the beholder
Salkin, like judges in the case, relied on secondhand sources, so her statement that opponents claim “the area may be coming back on its own” while not inaccurate, doesn't encompass the new luxury construction nearby or the statement from Forest City Enterprises’ Chuck Ratner that the AY site is “a great piece of real estate.”
(Photo by Tracy Collins; the building, at the northwest corner of Carlton Avenue and Dean Street, is across the street from the AY footprint at the northeast corner.)
Of course it’s coming back; the question is whether there was another way to accomplish a large-scale development. Remember, the ESDC solemnly (and improbably) declared: The project site is not anticipated to experience substantial change in the future without the proposed project by 2016 due to the existence of the open rail yard and the low-density industrial zoning regulations.
Salkin in her presentation and paper also fudged a bit on why the project was allowed to bypass the city’s Uniform Land Use Review Procedure, writing that “the bulk of the project is being built on land owned by the Metropolitan Transportation Authority” and stating that the state “owns a majority of the land.” Actually, the figure is less than 40 percent.
In "The Burrow"
She closed her presentation by playing a sample from John Pinamonti’s video of “The Burrow," noting offhandedly that “you can find anything on YouTube now.”
To some Brooklyn ears, the tune might seem a mix of fight-song and elegy. However, at the conference, with attendees primed to consider the AY eminent domain challenge somewhat quixotic and misguided, the audience reaction seemed more like “isn’t that cute.”
Will the Supreme Court revisit Kelo?
Jamison Colburn, Associate Professor of Law, Western New England College, said he felt conflicted about eminent domain. “I don’t think I’m for the condemnation at the judgment of local officials willy-nilly,” he said. “I want them to have a plan. We all want them to have a plan. But just because you require them to have a plan doesn't necessarily mean they have a good plan. Because these things are extremely hard to predict. Considering what's going to be a good redevelopment for an area as opposed to a major opportunity cost or a major governmental boondoggle, that's extremely difficult."
Discussing the apparent liberal-conservative split on the Supreme Court, he suggested that the five members of the slim majority in Kelo “were willing to defer to the political judgment of the community’s leaders.” He called it “judicial federalism," indicating that the justices didn't want federal courts to sit in review while states are adjusting local laws.
“Kennedy’s concurrence... is something people should take seriously,” Colburn said. If the four conservative justices “think they can get [Kennedy’s] vote [because] the economic plans were harebrained plans or even seriously mistaken," he said, "I think they'll take that case."
That’s certainly a contention in the Atlantic Yards case, as plaintiffs contend that the projected economic benefits might be nil. Then again, Colburn said he’s not sure if any of the cases Salkin discussed would qualify; when he spoke at the conference, the Second Circuit Court of Appeals had not ruled on Goldstein and the Supreme Court appeal was obviously not filed. We'll see the results next week.
A libertarian view
Libertarian legal scholar Ilya Somin, an opponent of the Kelo decision who did not appear at the conference, thinks the Atlantic Yards case was correctly decided at the appeals court level. He wrote that, under Kelo, they had very little choice... Kelo mandates very broad judicial deference to the government in determining whether a condemnation is a genuine "public use" under the Fifth Amendment. Any potential benefit to the general public is sufficient, even if it is greatly outweighed by the project's cost.
Nevertheless, he suggested the case reveals some of the serious shortcomings of Kelo and related precedents, given that the court acknowledged that, while the developer was the impetus for the project, that's not enough to prove that the taking was a "pretextual" one under Kelo. At the very least, however, such a pattern of events should trigger heightened judicial scrutiny of the government's true purposes in undertaking the condemnation.
Somin's essay does not mention the Franco case from the District of Columbia Court of Appeals, a major case which the plaintiffs say conflicts with Goldstein.
Changes in New Jersey
If AY were in New Jersey, the eminent domain case would be very different. Salkin in her paper notes that New Jersey courts have revisited their interpretation of “blight,” which she deems “likely part of the Kelo-effect.” In 2006 and 2007, New Jersey Public Advocate Ron Chen issued two reports critical of eminent domain as its used in the state, and recommended several reforms.
Salkin summarized them:
revising the statutory criteria for designated areas in need of redevelopment in order to ensure that they are actually blighted, focusing on the impacts that redevelopment has on minority and lower income populations, facilitating public involvement and transparency in the redevelopment process and increasing compensation to tenants and property owners. The report also... suggested that the factual inquiries involved in blight determinations should be more thorough, that property owners should have increased opportunities to appeal blight designations, and that redevelopment plans should be more comprehensive in scope. The 2007 report... detailed various case studies and identified specific problems of abuse, including “bogus” determinations of blight, due process deprivations, insufficient compensation and the prevalence of conflicts of interest.
Chen considers eminent domain an important tool “in the successful redevelopment of truly blighted areas,” but notes that it should be wielded carefully.
In his speech at the conference, Chen suggested that eminent domain issues may be well suited to federalism, as different states are more urbanized and thus have different needs for redevelopment. Indeed, legislative and judicial reforms have proceeded in some 42 states, as noted in the AY appeal briefs; New York is an outlier.
Only 20% non-blighted?
Chen has endorsed one reform bill, passed by the Assembly in 2006, A-3257, which has yet to be passed by the state Senate. Among other things, it would limit the amount of non-blighted property that could be included in a generally blighted area to twenty percent of the land mass.
Twenty percent? If such a law were in force in New York, it might seriously threaten the Atlantic Yards project. Yes, the Vanderbilt Yard and Site 5 are part of the longstanding Atlantic Terminal Urban Renewal Area (ATURA), which is by statutory definition blighted, despite their enormous market value, but the buildings on Pacific and Dean streets that are part of the AY footprint are not part of ATURA.
(I had previously written that the ESDC had determined that 79% of the parcels in the Atlantic Yards footprint, including ATURA and selected parcels outside it, were blighted. However, it's likely they comprise more than 80% of the land mass. Then again, the blight designation for several of the parcels has been fiercely contested.)
How much latitude, asked New York State Supreme Court Justice Joan Madden last May, does a redevelopment agency have to add non-blighted lots to a blighted area? It’s not unlimited, responded ESDC attorney Philip Karmel, defending against the environmental lawsuit; “it’s a question of reason.” New Jersey may set that at 20%.
Beyond that, New Jersey allows much greater opportunity to challenge the designation of blight. Salkin also pointed to the April 2007 Gallenthin case in New Jersey, in which the Supreme Court said land can’t be condemned just because it’s “not fully productive.” Gallenthin, according to Salkin, has “sparked a trend of increased judicial scrutiny.”
Indeed, in the subsequent case in which eminent domain for the Mulberry Street project in Newark (adjacent to the Prudential Center arena) was overturned, the plaintiffs' expert was allowed to challenge the government's finding in a lower court proceeding. Such a process is not available in New York State.
Moving forward in NJ
Robert Goldsmith, a lawyer in New Jersey who frequently represents municipalities, opened his presentation by mentioning how, “if the Nets want to come to Newark, [home of the just-opened Prudential Center,] I’m sure they’d be welcome.”
“This is a capitalist society,” he said. “[Eminent domain] really can be win-win.” And he pointed out that O'Connor's Motel-6-to-Ritz example wouldn’t fly under Gallenthin, given that there must be other factors convincing a court.
The main issue, he said, is “diverse ownership in urban areas” that hamper the assemblage of large sites for major projects. Indeed, regarding Atlantic Yards, that’s a much stronger argument than simply blight, and one the ESDC brought up in the pending Supreme Court appeal. To complete a large project, a developer needs all the land. However, that brings up the questions of how much non-blighted property is needed for assemblage and how exactly the footprint is selected.
Goldsmith cited the July decision in which the Mulberry Street plan was invalidated. “Surface parking lots in the heart of urban Newark,” he said with exasperation.
(Photo by Jonathan Barkey; the arena is in the background, to the left.)
Public Advocate Chen said, regarding Mulberry Street, “the city of Newark, wisely in my view, chose not to appeal.” He acknowledged that there's an urgent need to develop the area. “Whether there’s another way to designate those parking lots on Mulberry Street as blighted,” Chen noted, it wasn’t for him to say. “I do not do drive-by blight designations.”
Drilling down
Salkin was asked why she preferred greater transparency rather than substantive changes like more tightly defining blight. She said blight is hard to describe in law, given that it's "in the eye of the beholder" and that proposals to define it get too detailed. When opponents say they don’t trust the government or the developer, she said, "those are government ethics issues, not redevelopment issues.... They're not abuses of eminent domain... They just happen to be in the context of a condemnation proceeding.” (Perhaps, but Kennedy suggests that an abuse of process might violate the law.)
I asked whether the sequence cited in the Atlantic Yards appeal—that the developer drew the map and drove the process—made a difference. "I think that it doesn't matter, as long as it's open and transparent," Salkin said, "and if it's a good idea... and government does their own independent study after the developer comes forward with the idea." So far the courts have agreed--though critics in Brooklyn have challenged the legitimacy of the study. In fact, said New Jersey attorney Goldsmith, some smaller municipalities lack the planning staff to do such work and statutes in New Jersey permit developers to approach municipalities.
In the Connecticut Supreme Court’s Kelo decision, a dissenting judge questioned whether the promised benefits were guaranteed. “My view is that there are no guarantees,” Salkin said. “That’s why it has to be a publicly vetted process. For anybody who's a land use planner in the room, we come up with plans but we tell people, the plans are a living document.... Things can change.... You have to cosntantly stay on top and be vigilant about the plans and about the process as it moves through. I just don't think you can guarantee...You come forward with a good idea... if everybody buys into it, that's a validation that it sounds like something worth trying. Everything is a risk in economic development. So I think it would be very hard to force government to have to guarantee that a redevelopment project is absolutely going to be successful."
The lingering question regarding Atlantic Yards is exactly how "publicly vetted" the process was. Now that we know, from the State Funding Agreement, the state has given the developer 6+ years to build the arena and 12+ years to build Phase 1, with no deadline for Phase 2, that suggests a rather loose expectation of public benefits.
The anti-government agenda
Defenders of eminent domain point out that the right wing has used Kelo to advance an anti-government agenda. Bradley of Community Rights Counsel cited right-wing activist Grover Norquist, who called Kelo “manna from heaven” for the property rights movement.
(More from Bradley's 12/18/05 American Prospect article headlined Property Wrongs: Kelo held that local governments looking for redevelopment sites that might require condemnation could look throughout a municipality, rather than restricting their search to blighted areas most likely to be inhabited by poor and minority residents. In affirming that middle-class residents, not just the poor, should share the often intensely felt costs of urban improvement, the case was actually rather progressive.)
Bradley noted that condemnations like that in Kelo “are vanishingly rare—most condemnations for large-scale development rely on a blight finding.” Eminent domain defenders should cite successful projects—such as Baltimore’s Inner Harbor and “family-friendly Times Square”—achieved via eminent domain to combat the heartfelt personal stories of those fighting condemnation.
While lawyers and judges may have thought Kelo was an easy case to decide, given its reliance on precedent, “they couldn’t compete with newspaper headlines,” she said
A more skeptical take
At the conference, Peter Salins, a conservative sympathetic to property rights advocates, but trained as an architect and urban planner, suggested “public sector overrulings of the real estate market” may not serve the public interest.
“The unquestioned subtext is that planners and public officials know what they’re doing,” he said. “What if the planners don’t know what they’re doing?” (Former University of Pennsylvania President Judith Rodin made a similar point when writing about Penn's redevelopment efforts.)
“I will acknowledge that the unregulated market can produce bad outcomes,” Salins said, acknowledging that “property rights folks may not be occupying the moral high ground.” However, he said, “But there’s a great deal of evidence… that public interest has been harmed as much as advanced.”
The baby and the bathwater
Kate Rube, Policy Director for Smart Growth America, echoed the day’s theme, stating, “I don’t think we should be throwing the baby out with the bathwater.”
She suggested there were some silver linings in the aftermath of Kelo: it has forced those in the "planning, environmental, smart growth community" to explain why eminent domain is important, and to address legitimate flaws in the process.
“To be on the perceived opposite side of Kelo makes you seem not that in touch with the public,” she said. “One thing my group is talking about is principles-- not just property rights but also responsibilities.” Redevelopment projects must be “serving the public interest.”
Salins suggested some independent review was necessary to proceed with eminent domain. “You’ve got to get economists involved to validate these things,” he said. “I’d like to have planners external to the community… to vet these proposals.”
Imagine if the Empire State Development Corporation’s economic analysis of Atlantic Yards, which considered benefits but not costs, had been subject to rigorous outside scrutiny.
Bradley acknowledged that “many projections are based more on hope than facts.” While she said she supported additional safeguards, “even if [that addition] slows the process down,” she suggested that the environmental review process in New York State, which considers such issues as gentrification and community character, are already assessing some important questions.
Kelo and the press
A final panel addressed how Kelo was framed in the press. Penn Professor of Real Estate and Planning Lynne Sagalyn noted that past landmark cases like Berman and Midkiff got very little coverage. (She is author of Times Square Roulette, a study of Times Square redevelopment, with an interesting chapter on the press that I relied on in the final sections of my report on the New York Times and Atlantic Yards.)
Sagalyn said the complex issue “successfully lent itself to simplification,” leading to myths, mistakes, misrepresentation, and a “tremendous amount of inflammatory language.”
She said a New York Times reporter has publicly acknowledged how good IJ was at presenting the issues in its press kit. Given that the press has a lot of competing issues, Sagalyn observed, “it is not hard to sway them with a good press kit.”
In coverage of Kelo, she said, “the collective benefits side of the equation was totally absent from the debate.” Rather, she said, the case was summarized in headlines mainly as the “scope of government power expanded” and “homeowners are vulnerable.” Inflammatory language in news coverage, such as “seize,” “wrest,” and “grab,” she said, “denies the legitimacy of statutory procedures and administrative process for eminent domain.”
The question, of course, is whether such procedures have been followed in a legitimate manner; the web site NoLandGrab uses those terms in a response to perceived absence of such legitimacy regarding Atlantic Yards.
Blight = "shot to hell"
Missing in the coverage, Sagalyn said, were the frames of blight--“when the fabric of a community is shot to hell”--and the need for government to intervene to achieve land assembly.
In the Atlantic Yards case, the fabric of the community certainly is hardly "shot to hell," but, yes, land assembly is a challenge. Were the project perceived as more legitimate, it's likely at least some of the plaintiffs in the eminent domain wouldn't have challenged it.
Politics or policy?
To invigorate the debate, Sagalyn suggested, planners and urban advocates must gain substantive information on the costs and benefits of eminent domain, and offer the message that it’s time for revision and reform.
Lobbyist and advocate Jason Jordan, formerly of the American Planning Association (APA), said the issue, instead, was politics. The right-wing used Kelo, with its frame of victim and oppressor, to replace “the prime battlefield, which was regulatory takings”--the movement's ultimate goal. He called Kelo “the gay marriage of land use,” a way to divide people on political lines.
“We looked at Kelo, wrongly in hindsight, as a fairly straightforward decision,” he said, acknowledging some internal dissent on how aggressive APA should be. First, there was a lingering hangover from urban renewal, where planners were often considered the bad guys. Ultimately, he said, planners and local officials are the wrong messengers regading eminent domain: “we need to find our own narrative.”
Presumably, that includes civic projects embraced by many. Mayor Mike Bloomberg generally cites not just Times Square but also Melrose Commons in the Bronx; note that a representative from his Law Department in May 2007 also cited Melrose Commons, but acknowledged that Atlantic Yards, at least from her secondhand knowledge, proceeded differently.
“We need good data, but we need good stories,” Jordan said. While planners must support fairness and reform, they should argue, to win over the many “dissatisfied and distrustful,” that the planning process is a more democratic way to address concerns than the courts.
That may be so, but what if the planning process, as with Atlantic Yards, raised more questions than it answered.
Lingering issues
Sagalyn pointed out that the press covers urban development as real estate rather than public policy, a point she made in Times Square Roulette and which has too often been the case with Atlantic Yards, which in the beginning was covered more as a sports story. (See, for example, some of these New York Times stories, which were in the Sports section.)
Penn planning professor John Landis cited political scientist James Q. Wilson, who observed that it’s hard to enact policies where costs are intense and local and benefits diffuse.
While proponents see Atlantic Yards as an example of what Wilson called "entrepreneurial politics," with concentrated costs and broad benefits, critics would contend that Atlantic Yards is instead an example of "client politics," with concentrated benefits to Forest City Ratner and much smaller benefits to the public at large.
Other ways possible
Sagalyn noted that eminent domain, in fact, is not the only approach to land accumulation for large projects. In Asia and elsewhere, there's the practice of “land readjustment,” in which the original owners get same value in a new project area. “There are other methods to provide for due process and just compensation,” she said.
The issue of "land readjustment" came up last month at a panel in New York; the Regional Plan Association's Robert Yaro suggested it as a potential solution, though the ESDC's Avi Schick was skeptical.
Why? Not just because of the partial challenge to the Supreme Court's controversial 2005 Kelo v. New London eminent domain decision, but also the tangential involvement of and support from the libertarian Institute for Justice (IJ), which has a broader property rights agenda nationally that could hamstring local governments.
That was a major message from a November 9 conference at Princeton University titled Land and Power: The Impact of Eminent Domain in Urban Communities, hosted by Princeton's Policy Research Institute for the Region (PRIOR) and the Penn Institute for Urban Research. The audience included lawyers, planners, government officials, advocates, and analysts, with the panels generally tilted toward supporters of eminent domain who believe that smaller-scale reforms, rather than fundamental challenges, are needed. (Webcasts available.)The irony, however, is that property owners/leaseholders in Goldstein v. Pataki, the Atlantic Yards case, seek not to overturn Kelo, which libertarian opponents of eminent domain slammed, but to hold the Supreme Court to what may be a difficult-to-enforce doctrine, that eminent domain should proceed only after carefully formulated plans and when there are no questions that the transfer is a pretext to assist a private party.
A further irony is that, unlike with eminent domain cases brought by the media-savvy IJ, the Atlantic Yards case has been framed less as creating specific sympathetic victims--the old lady who would lose her home--than as a victimization of the surrounding community.
And, given the community resistance to such victimization, there's been enough local support to fund legal challenges, so the plaintiffs in Brooklyn did not have to enlist the IJ, which scouts for headline-making cases.
Reacting to Kelo
The plaintiffs in Kelo gained broader support than in other eminent domain challenges; the property owners’ appeal to the Supreme Court, though organized by the IJ and backed by other conservative or libertarian groups, also drew support from the NAACP, the AARP, and others hardly associated with the right wing.
Develop Don’t Destroy Brooklyn (DDDB), along with the West Harlem Business Group (property owners facing eminent domain because of Columbia University’s expansion plan), filed a friend of the court brief on behalf of the plaintiffs, urging the judges to follow states (notably Michigan's Hathcock case) that have adopted more restrictive rules than the court’s national doctrine.
In Kelo, the Supreme Court 5-4 reaffirmed that the use of eminent domain for economic development was a legitimate public purpose. While hardly a departure from precedent that established that public use--the constitutional justification for eminent domain--can mean public purpose, it nonetheless galvanized public opinion, given the widespread if exaggerated concern that the case indicated, as Justice Sandra Day O’Connor wrote in her dissent: The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.
At the conference, the bottom line came from Patricia Salkin, a professor at Albany Law School and Chair of the New York State Bar Association's Task Force on Eminent Domain, which later issued a report advising technical rather than major changes in state law, as well as a state commission to advise on further changes. “I think we need legislation to address the abuse, not whether the tool should exist,” she said.(Salkin also tracks land use issues in her Law of the Land blog.)
Restraining abuse
Salkin’s paper, titled The Kelo Effect in New York, New Jersey and Pennsylvania: Assessing the Impact of Kelo in the Tri-State Region, offers a nuanced defense of eminent domain, while acknowledging the need for reform. She noted that, while Kelo was based on existing precedent, it involved the loss of a person's house, quite different from previous cases involving a department store (Berman v. Parker) or land oligopoly (Hawaii Housing Authority v. Midkiff), and thus easier for the public. to identify with.
She wrote:
Eminent domain is one important tool that, when necessary and appropriate, can be used to further redevelopment goals. Instances of abuse should not be tolerated. Understanding the problems that may aggravate abuse—such as lack of public involvement, conflicts of interest, both perceived and actual (implicating state and local ethics law…or the lack thereof), state and local procurement laws, campaign finance issues, municipal financial climates in which local governments are pressured to increase tax revenues, and procedural mechanisms that may be difficult for condemnees to navigate—is essential.... Courts and legislators faced with economic development takings need to be aware of these related issues, and policymakers and lawmakers should not be so hasty to condemn a legitimate tool outright rather than focusing on opportunities to eliminate abuse.
As she wrote, anecdotally, the real impact of Kelo in the tri-state area has been increased media attention, a more informed constituency, and "perhaps more cautious government officials."
Salkin doesn’t think that litigation, as in the Atlantic Yards challenge, is the proper solution to address such abuses, but she didn’t give any alternative suggestion—absent future reforms—for Atlantic Yards opponents.
A solution in Brooklyn?
Later, after I asked, she told me that, though she hadn't read all of the pleadings in Goldstein v. Pataki, she thought that "many of the abuses that have been alleged and in some cases documented in the eminent domain process [in general] are things that relate to irregularities or ethical lapses on the part the actions of public officials" and that an appropriate response would be to look at "strengthening state and local procurement laws and ethics laws."
In her paper, though less so her presentation, she gave some credence to Justice Anthony Kennedy’s nonbinding concurring opinion in Kelo, in which he laid out indicia—such as the absence of competing bids—that eminent domain might be aimed primarily at private gain and thus would be illegitimate.
Comparing a New Jersey case to the Brooklyn case, she wrote that the former shows that the court took heed of Kennedy and reviewed the record regarding favoritism: The result is certainly more satisfying than the district court's response to the takings case brought in relation to Atlantic Yards, where the court rather summarily dismissed the plaintiffs' claims as not plausibly establishing that the purposes of the plan could have been pretextual.
Another panelist at the conference offered a glimmer of hope to the Atlantic Yards plaintiffs, suggesting that Kennedy’s concurrence should be taken seriously, and might lead the Supreme Court to revisit eminent domain, should a case emerge that the four conservative eminent domain opponents think might lead Kennedy to join them as the swing vote.
The eminent domain frame
Conference presenters displayed a sense of embattlement, that the good liberal tools of eminent domain for urban redevelopment have been cast as evil by the IJ, which has its own agenda to go beyond eminent domain and stop “regulatory takings,” regulations--from zoning to wetlands permits--that can limit landlowners' discretion to make use of their land.
“Our buildings were no match for their people,” lamented Jennifer Bradley of Community Rights Counsel, which helps communities defend against eminent domain challenges, contrasting the more abstract benefits of eminent domain with the specific victims who make good copy. (She wrote a 12/18/05 American Prospect article headlined Property Wrongs.)
Salkin suggested that many eminent domain challenges are brought by holdouts who don’t represent the community at large, but are supported in a media campaign led by the IJ.
The AY exception
Though the Atlantic Yards eminent domain case was not discussed in this context, the frame is different. There are a few stereotypically sympathetic plaintiffs, long-term low-income renters, but lead plaintiff Daniel Goldstein—as columnist Errol Louis is eager to remind us—moved into his condo in the footprint just months before the project was announced and serves as spokesman for DDDB.
(Goldstein had lived in the adjacent Park Slope neighborhood for seven years and many DDDB backers are much longer-term residents of neighborhoods surrounding the footprint.)
Instead, the buildings, not the people, have become the issue. Salkin writes in her paper that the eminent domain lawsuit is “spearheaded by local holdouts,” but the 17 buildings of Atlantic Yards—the extremely dense 22-acre project--have exercised many in nearby neighborhoods who back DDDB.
Thus, given community opposition to the project's scale and the process behind it, DDDB has been able to raise money for legal services and use volunteer lawyers rather than rely on an ideologically-driven law firm like the Institute for Justice.
Amicus briefs
Salkin identifies with the camp defending existing eminent domain doctrine. In Kelo case, she signed onto two amicus briefs, one filed by the American Planning Association and the other filed by 13 law professors in response to a brief filed by 13 more conservative law professors. Both of those amicus briefs urged the Supreme Court not to require heightened scrutiny of eminent domain cases.
At the Princeton conference, summarizing her paper, Salkin pointed out that most eminent domain cases are not justified, as in Kelo, simply by economic development. Instead, “blight is the big issue.” Indeed, one of the main justifications of the Atlantic Yards condemnation is the removal of blight, which is backed by a blight study--though plaintiffs argue that blight was not raised as a justification for years after the project was announced and New York offers condemnees little leverage to challenge such determinations. (Other justifications include affordble housing, improved mass transit, and a "publicly-owned" sports arena--which would be leased for $1 a year.)
The AY focus
Salkin devoted the last few minutes of her presentation to Atlantic Yards, which also gets several pages in the paper. She said that Bruce Ratner put together a plan to “redevelop the Atlantic Yards,” thus making the common error of conflating the 22-acre project with the 8.5-acre railyards.
She suggested the developer deserved some credit for not going straight to the hammer: “The interesting thing… they did go out and try to purchase, without asking the city to exercise eminent domain.” Yes, but eminent domain was always in their back poc
ket as a plan/threat, and; Goldstein said it was threatened even as offers were made.And Salkin acknowledged familiarity with the developer's rough-and-tumble tactics. She pointed to the 6/16/04 New York Post article about buyouts that require sellers to speak positively of the developer. “It was like a gag order," she said, dropping her voice. "I frankly don’t agree with it.”
(How many more examples of tactics, like Forest City Ratner's many brochures, might it take to point out how much more this is a developer-driven political campaign compared to a governmental attempt to overcome blight, given, for example, the ESDC's failure to address upkeep of the MTA's Vanderbilt Yard?)
She said Atlantic Yards was the first major project with a Community Benefits Agreement (CBA) and “it all sounds great… except the opposition says those groups have been bought.” Actually, it's more than the opposition; other supporters of CBAs have raised questions about the Atlantic Yards CBA.
Public vs. private benefits
Though Atlantic Yards would bring major public benefits, according to the ESDC, whose conclusions were endorsed by U.S. District Judge Nicholas Garaufis (and later by the Second Circuit Court of Appeals), Salkin noted that plaintiffs claim there would be too much private benefit.
“My personal answer is that government is not in the business of being a redeveloper,” she said. “Government's got to provide the opportunity for the private sector to come in and do the redevelopment projects. Why is the private sector going to do anything if they can't make money? It's the same argument we have with builders about affordable housing. Yes, we need affordable housing, but affordable housing doesn't mean the developer has to underwrite the cost of the project. otherwise, they're not going to make a living either, and let's face it, this is America.”
That quote, with its echo of then-Forest City Ratner executive Jim Stuckey’s July 2006 observation on the Brian Lehrer Show, "It is, after all, America," skates over some controversy. Is the issue simply profit, or, as Kennedy’s concurrence warns, allegations that the game is rigged?
She cited “allegations of bid-rigging,” a reference to the fact that city and state officials announced their support for Atlantic Yards and signed a Memorandum of Understanding some 18 months before the MTA's Vanderbilt Yard, 8.5 acres of the 22-acre site, was put out for bid. “We need to look at procurement,” she said, presaging her later comments of ethics laws. However, that would not offer much relief to the current Atlantic Yards plaintiffs.
She also acknowledged that the city of New York has a more inclusive process than the state, which reviewed Atlantic Yards: “States and localities must do a better job of engaging the public from the public from the start of the project.” In other words, the process should improve going forward. That still leaves critics of the Atlantic Yards process with little recourse.
More criticism in the paper
In her paper, Salkin was a bit more critical:
It is obvious that the defendants rely on strong legal precedent in making their argument that once a public use is established, the private benefits that may also accrue to certain parties are irrelevant. At the same time, however, the plaintiffs make a compelling case that this position may not the best one, and that the private benefits in a case as this may outweigh the stated public uses of the project. The plaintiffs have also raised contentions that, while the eminent domain procedures of New York may have been followed in this case, other irregularities in the process (i.e. those problems related to bidding and the lack of local review) show that increased judicial scrutiny of the public process may be warranted.
...Perhaps more generally than the need for increased public participation in the planning process, the Atlantic Yards development illustrates the need for governmental planning entities to make efforts to demonstrate to the public that they have the community’s needs, and not private interests, in mind, especially in large-scale projects.
Eye of the beholder
Salkin, like judges in the case, relied on secondhand sources, so her statement that opponents claim “the area may be coming back on its own” while not inaccurate, doesn't encompass the new luxury construction nearby or the statement from Forest City Enterprises’ Chuck Ratner that the AY site is “a great piece of real estate.”(Photo by Tracy Collins; the building, at the northwest corner of Carlton Avenue and Dean Street, is across the street from the AY footprint at the northeast corner.)
Of course it’s coming back; the question is whether there was another way to accomplish a large-scale development. Remember, the ESDC solemnly (and improbably) declared: The project site is not anticipated to experience substantial change in the future without the proposed project by 2016 due to the existence of the open rail yard and the low-density industrial zoning regulations.
Salkin in her presentation and paper also fudged a bit on why the project was allowed to bypass the city’s Uniform Land Use Review Procedure, writing that “the bulk of the project is being built on land owned by the Metropolitan Transportation Authority” and stating that the state “owns a majority of the land.” Actually, the figure is less than 40 percent.
In "The Burrow"
She closed her presentation by playing a sample from John Pinamonti’s video of “The Burrow," noting offhandedly that “you can find anything on YouTube now.” To some Brooklyn ears, the tune might seem a mix of fight-song and elegy. However, at the conference, with attendees primed to consider the AY eminent domain challenge somewhat quixotic and misguided, the audience reaction seemed more like “isn’t that cute.”
Will the Supreme Court revisit Kelo?
Jamison Colburn, Associate Professor of Law, Western New England College, said he felt conflicted about eminent domain. “I don’t think I’m for the condemnation at the judgment of local officials willy-nilly,” he said. “I want them to have a plan. We all want them to have a plan. But just because you require them to have a plan doesn't necessarily mean they have a good plan. Because these things are extremely hard to predict. Considering what's going to be a good redevelopment for an area as opposed to a major opportunity cost or a major governmental boondoggle, that's extremely difficult."
Discussing the apparent liberal-conservative split on the Supreme Court, he suggested that the five members of the slim majority in Kelo “were willing to defer to the political judgment of the community’s leaders.” He called it “judicial federalism," indicating that the justices didn't want federal courts to sit in review while states are adjusting local laws.
“Kennedy’s concurrence... is something people should take seriously,” Colburn said. If the four conservative justices “think they can get [Kennedy’s] vote [because] the economic plans were harebrained plans or even seriously mistaken," he said, "I think they'll take that case."
That’s certainly a contention in the Atlantic Yards case, as plaintiffs contend that the projected economic benefits might be nil. Then again, Colburn said he’s not sure if any of the cases Salkin discussed would qualify; when he spoke at the conference, the Second Circuit Court of Appeals had not ruled on Goldstein and the Supreme Court appeal was obviously not filed. We'll see the results next week.
A libertarian view
Libertarian legal scholar Ilya Somin, an opponent of the Kelo decision who did not appear at the conference, thinks the Atlantic Yards case was correctly decided at the appeals court level. He wrote that, under Kelo, they had very little choice... Kelo mandates very broad judicial deference to the government in determining whether a condemnation is a genuine "public use" under the Fifth Amendment. Any potential benefit to the general public is sufficient, even if it is greatly outweighed by the project's cost.
Nevertheless, he suggested the case reveals some of the serious shortcomings of Kelo and related precedents, given that the court acknowledged that, while the developer was the impetus for the project, that's not enough to prove that the taking was a "pretextual" one under Kelo. At the very least, however, such a pattern of events should trigger heightened judicial scrutiny of the government's true purposes in undertaking the condemnation.
Somin's essay does not mention the Franco case from the District of Columbia Court of Appeals, a major case which the plaintiffs say conflicts with Goldstein.
Changes in New Jersey
If AY were in New Jersey, the eminent domain case would be very different. Salkin in her paper notes that New Jersey courts have revisited their interpretation of “blight,” which she deems “likely part of the Kelo-effect.” In 2006 and 2007, New Jersey Public Advocate Ron Chen issued two reports critical of eminent domain as its used in the state, and recommended several reforms.
Salkin summarized them:
revising the statutory criteria for designated areas in need of redevelopment in order to ensure that they are actually blighted, focusing on the impacts that redevelopment has on minority and lower income populations, facilitating public involvement and transparency in the redevelopment process and increasing compensation to tenants and property owners. The report also... suggested that the factual inquiries involved in blight determinations should be more thorough, that property owners should have increased opportunities to appeal blight designations, and that redevelopment plans should be more comprehensive in scope. The 2007 report... detailed various case studies and identified specific problems of abuse, including “bogus” determinations of blight, due process deprivations, insufficient compensation and the prevalence of conflicts of interest.
Chen considers eminent domain an important tool “in the successful redevelopment of truly blighted areas,” but notes that it should be wielded carefully.
In his speech at the conference, Chen suggested that eminent domain issues may be well suited to federalism, as different states are more urbanized and thus have different needs for redevelopment. Indeed, legislative and judicial reforms have proceeded in some 42 states, as noted in the AY appeal briefs; New York is an outlier.
Only 20% non-blighted?
Chen has endorsed one reform bill, passed by the Assembly in 2006, A-3257, which has yet to be passed by the state Senate. Among other things, it would limit the amount of non-blighted property that could be included in a generally blighted area to twenty percent of the land mass.
Twenty percent? If such a law were in force in New York, it might seriously threaten the Atlantic Yards project. Yes, the Vanderbilt Yard and Site 5 are part of the longstanding Atlantic Terminal Urban Renewal Area (ATURA), which is by statutory definition blighted, despite their enormous market value, but the buildings on Pacific and Dean streets that are part of the AY footprint are not part of ATURA.
(I had previously written that the ESDC had determined that 79% of the parcels in the Atlantic Yards footprint, including ATURA and selected parcels outside it, were blighted. However, it's likely they comprise more than 80% of the land mass. Then again, the blight designation for several of the parcels has been fiercely contested.)
How much latitude, asked New York State Supreme Court Justice Joan Madden last May, does a redevelopment agency have to add non-blighted lots to a blighted area? It’s not unlimited, responded ESDC attorney Philip Karmel, defending against the environmental lawsuit; “it’s a question of reason.” New Jersey may set that at 20%.
Beyond that, New Jersey allows much greater opportunity to challenge the designation of blight. Salkin also pointed to the April 2007 Gallenthin case in New Jersey, in which the Supreme Court said land can’t be condemned just because it’s “not fully productive.” Gallenthin, according to Salkin, has “sparked a trend of increased judicial scrutiny.”
Indeed, in the subsequent case in which eminent domain for the Mulberry Street project in Newark (adjacent to the Prudential Center arena) was overturned, the plaintiffs' expert was allowed to challenge the government's finding in a lower court proceeding. Such a process is not available in New York State.
Moving forward in NJ
Robert Goldsmith, a lawyer in New Jersey who frequently represents municipalities, opened his presentation by mentioning how, “if the Nets want to come to Newark, [home of the just-opened Prudential Center,] I’m sure they’d be welcome.”
“This is a capitalist society,” he said. “[Eminent domain] really can be win-win.” And he pointed out that O'Connor's Motel-6-to-Ritz example wouldn’t fly under Gallenthin, given that there must be other factors convincing a court.
The main issue, he said, is “diverse ownership in urban areas” that hamper the assemblage of large sites for major projects. Indeed, regarding Atlantic Yards, that’s a much stronger argument than simply blight, and one the ESDC brought up in the pending Supreme Court appeal. To complete a large project, a developer needs all the land. However, that brings up the questions of how much non-blighted property is needed for assemblage and how exactly the footprint is selected.
Goldsmith cited the July decision in which the Mulberry Street plan was invalidated. “Surface parking lots in the heart of urban Newark,” he said with exasperation.(Photo by Jonathan Barkey; the arena is in the background, to the left.)
Public Advocate Chen said, regarding Mulberry Street, “the city of Newark, wisely in my view, chose not to appeal.” He acknowledged that there's an urgent need to develop the area. “Whether there’s another way to designate those parking lots on Mulberry Street as blighted,” Chen noted, it wasn’t for him to say. “I do not do drive-by blight designations.”
Drilling down
Salkin was asked why she preferred greater transparency rather than substantive changes like more tightly defining blight. She said blight is hard to describe in law, given that it's "in the eye of the beholder" and that proposals to define it get too detailed. When opponents say they don’t trust the government or the developer, she said, "those are government ethics issues, not redevelopment issues.... They're not abuses of eminent domain... They just happen to be in the context of a condemnation proceeding.” (Perhaps, but Kennedy suggests that an abuse of process might violate the law.)
I asked whether the sequence cited in the Atlantic Yards appeal—that the developer drew the map and drove the process—made a difference. "I think that it doesn't matter, as long as it's open and transparent," Salkin said, "and if it's a good idea... and government does their own independent study after the developer comes forward with the idea." So far the courts have agreed--though critics in Brooklyn have challenged the legitimacy of the study. In fact, said New Jersey attorney Goldsmith, some smaller municipalities lack the planning staff to do such work and statutes in New Jersey permit developers to approach municipalities.
In the Connecticut Supreme Court’s Kelo decision, a dissenting judge questioned whether the promised benefits were guaranteed. “My view is that there are no guarantees,” Salkin said. “That’s why it has to be a publicly vetted process. For anybody who's a land use planner in the room, we come up with plans but we tell people, the plans are a living document.... Things can change.... You have to cosntantly stay on top and be vigilant about the plans and about the process as it moves through. I just don't think you can guarantee...You come forward with a good idea... if everybody buys into it, that's a validation that it sounds like something worth trying. Everything is a risk in economic development. So I think it would be very hard to force government to have to guarantee that a redevelopment project is absolutely going to be successful."
The lingering question regarding Atlantic Yards is exactly how "publicly vetted" the process was. Now that we know, from the State Funding Agreement, the state has given the developer 6+ years to build the arena and 12+ years to build Phase 1, with no deadline for Phase 2, that suggests a rather loose expectation of public benefits.
The anti-government agenda
Defenders of eminent domain point out that the right wing has used Kelo to advance an anti-government agenda. Bradley of Community Rights Counsel cited right-wing activist Grover Norquist, who called Kelo “manna from heaven” for the property rights movement.
(More from Bradley's 12/18/05 American Prospect article headlined Property Wrongs: Kelo held that local governments looking for redevelopment sites that might require condemnation could look throughout a municipality, rather than restricting their search to blighted areas most likely to be inhabited by poor and minority residents. In affirming that middle-class residents, not just the poor, should share the often intensely felt costs of urban improvement, the case was actually rather progressive.)
Bradley noted that condemnations like that in Kelo “are vanishingly rare—most condemnations for large-scale development rely on a blight finding.” Eminent domain defenders should cite successful projects—such as Baltimore’s Inner Harbor and “family-friendly Times Square”—achieved via eminent domain to combat the heartfelt personal stories of those fighting condemnation.
While lawyers and judges may have thought Kelo was an easy case to decide, given its reliance on precedent, “they couldn’t compete with newspaper headlines,” she said
A more skeptical take
At the conference, Peter Salins, a conservative sympathetic to property rights advocates, but trained as an architect and urban planner, suggested “public sector overrulings of the real estate market” may not serve the public interest.
“The unquestioned subtext is that planners and public officials know what they’re doing,” he said. “What if the planners don’t know what they’re doing?” (Former University of Pennsylvania President Judith Rodin made a similar point when writing about Penn's redevelopment efforts.)
“I will acknowledge that the unregulated market can produce bad outcomes,” Salins said, acknowledging that “property rights folks may not be occupying the moral high ground.” However, he said, “But there’s a great deal of evidence… that public interest has been harmed as much as advanced.”
The baby and the bathwater
Kate Rube, Policy Director for Smart Growth America, echoed the day’s theme, stating, “I don’t think we should be throwing the baby out with the bathwater.”
She suggested there were some silver linings in the aftermath of Kelo: it has forced those in the "planning, environmental, smart growth community" to explain why eminent domain is important, and to address legitimate flaws in the process.
“To be on the perceived opposite side of Kelo makes you seem not that in touch with the public,” she said. “One thing my group is talking about is principles-- not just property rights but also responsibilities.” Redevelopment projects must be “serving the public interest.”
Salins suggested some independent review was necessary to proceed with eminent domain. “You’ve got to get economists involved to validate these things,” he said. “I’d like to have planners external to the community… to vet these proposals.”
Imagine if the Empire State Development Corporation’s economic analysis of Atlantic Yards, which considered benefits but not costs, had been subject to rigorous outside scrutiny.
Bradley acknowledged that “many projections are based more on hope than facts.” While she said she supported additional safeguards, “even if [that addition] slows the process down,” she suggested that the environmental review process in New York State, which considers such issues as gentrification and community character, are already assessing some important questions.
Kelo and the press
A final panel addressed how Kelo was framed in the press. Penn Professor of Real Estate and Planning Lynne Sagalyn noted that past landmark cases like Berman and Midkiff got very little coverage. (She is author of Times Square Roulette, a study of Times Square redevelopment, with an interesting chapter on the press that I relied on in the final sections of my report on the New York Times and Atlantic Yards.)
Sagalyn said the complex issue “successfully lent itself to simplification,” leading to myths, mistakes, misrepresentation, and a “tremendous amount of inflammatory language.”
She said a New York Times reporter has publicly acknowledged how good IJ was at presenting the issues in its press kit. Given that the press has a lot of competing issues, Sagalyn observed, “it is not hard to sway them with a good press kit.”
In coverage of Kelo, she said, “the collective benefits side of the equation was totally absent from the debate.” Rather, she said, the case was summarized in headlines mainly as the “scope of government power expanded” and “homeowners are vulnerable.” Inflammatory language in news coverage, such as “seize,” “wrest,” and “grab,” she said, “denies the legitimacy of statutory procedures and administrative process for eminent domain.”
The question, of course, is whether such procedures have been followed in a legitimate manner; the web site NoLandGrab uses those terms in a response to perceived absence of such legitimacy regarding Atlantic Yards.
Blight = "shot to hell"
Missing in the coverage, Sagalyn said, were the frames of blight--“when the fabric of a community is shot to hell”--and the need for government to intervene to achieve land assembly.
In the Atlantic Yards case, the fabric of the community certainly is hardly "shot to hell," but, yes, land assembly is a challenge. Were the project perceived as more legitimate, it's likely at least some of the plaintiffs in the eminent domain wouldn't have challenged it.
Politics or policy?
To invigorate the debate, Sagalyn suggested, planners and urban advocates must gain substantive information on the costs and benefits of eminent domain, and offer the message that it’s time for revision and reform.
Lobbyist and advocate Jason Jordan, formerly of the American Planning Association (APA), said the issue, instead, was politics. The right-wing used Kelo, with its frame of victim and oppressor, to replace “the prime battlefield, which was regulatory takings”--the movement's ultimate goal. He called Kelo “the gay marriage of land use,” a way to divide people on political lines.
“We looked at Kelo, wrongly in hindsight, as a fairly straightforward decision,” he said, acknowledging some internal dissent on how aggressive APA should be. First, there was a lingering hangover from urban renewal, where planners were often considered the bad guys. Ultimately, he said, planners and local officials are the wrong messengers regading eminent domain: “we need to find our own narrative.”
Presumably, that includes civic projects embraced by many. Mayor Mike Bloomberg generally cites not just Times Square but also Melrose Commons in the Bronx; note that a representative from his Law Department in May 2007 also cited Melrose Commons, but acknowledged that Atlantic Yards, at least from her secondhand knowledge, proceeded differently.
“We need good data, but we need good stories,” Jordan said. While planners must support fairness and reform, they should argue, to win over the many “dissatisfied and distrustful,” that the planning process is a more democratic way to address concerns than the courts.
That may be so, but what if the planning process, as with Atlantic Yards, raised more questions than it answered.
Lingering issues
Sagalyn pointed out that the press covers urban development as real estate rather than public policy, a point she made in Times Square Roulette and which has too often been the case with Atlantic Yards, which in the beginning was covered more as a sports story. (See, for example, some of these New York Times stories, which were in the Sports section.)
Penn planning professor John Landis cited political scientist James Q. Wilson, who observed that it’s hard to enact policies where costs are intense and local and benefits diffuse.
While proponents see Atlantic Yards as an example of what Wilson called "entrepreneurial politics," with concentrated costs and broad benefits, critics would contend that Atlantic Yards is instead an example of "client politics," with concentrated benefits to Forest City Ratner and much smaller benefits to the public at large.
Other ways possible
Sagalyn noted that eminent domain, in fact, is not the only approach to land accumulation for large projects. In Asia and elsewhere, there's the practice of “land readjustment,” in which the original owners get same value in a new project area. “There are other methods to provide for due process and just compensation,” she said.
The issue of "land readjustment" came up last month at a panel in New York; the Regional Plan Association's Robert Yaro suggested it as a potential solution, though the ESDC's Avi Schick was skeptical.
"Victimization of the surrounding community"...what a lovely way of saying "NIMBY".
ReplyDeleteBobbo, aka Net Income on NetsDaily, is named Bob Windrem. He had barely visited Brooklyn when he typed that.
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