Friday, November 27, 2009

Atlantic Yards site "blighted"? Some "reasonable difference of opinion"

Libertarian law professor Ilya Somin calls the Atlantic Yards eminent domain decision "the first major state supreme court defeat for property rights on a public use issue since" the controversial 5-4 Supreme Court decision (2005) in Kelo v. New London, in which state courts and legislatures were invited to draw on local conditions to narrow the use of eminent domain.

Somin wasn't surprised, given New York's history of court deference to agencies such as the Empire State Development Corporation (ESDC), the successful defendant in this case. He writes:
To get around this problem, the Court held that “blight” alleviation is not limited to “‘slums’ as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose” (pp. 15–16, quoting a 1975 decision).

Obviously, virtually any area occasionally suffers from “economic underdevelopment” or “stagnation” and therefore could potentially be condemned under this rationale. Moreover, even under this expansive definition of blight, the decision states that courts can only strike down a condemnation if “there is no room for reasonable difference of opinion as to whether an area is blighted.” With respect to any neighborhood, there is nearly always “room for reasonable difference of opinion” as to whether the area is “underdeveloped” relative to some possible alternative uses of the land in question. Defining blight this broadly and then deferring to the government’s determination of whether such “blight” actually exists effectively reads the public use restriction out of the state constitution.
That's essentially what Judge Robert Smith said in his dissent, as well.

Taking a look

After all, "reasonable" is a pretty broad term. Lead plaintiff and Develop Don't Destroy Brooklyn spokesman Daniel Goldstein, a press conference Tuesday, invited Gov. David Paterson to visit the "blighted" neighborhood of Prospect Heights.

Is the AY site "an extremely derelict stretch," as a Forest City Ratner attorney Jeffrey Braun claimed in court 2/7/07?

Well, courts (almost always) don't perform fact-finding, because they're not equipped to do so, but former Assemblyman Roger Green, an Atlantic Yards supporter, could've walked them around and reminded them that he said in 2005 that, "For the record, that neighborhood is not blighted."

Reasonable difference of opinion

Consultant AKRF, which conducted the Atlantic Yards Blight Study, always finds blight on behalf of its corporate and governmental clients. And, without an opportunity to challenge such a study in court with a dueling expert witness--as is possible in other states--the courts have to defer to the agency determination.

(Challenging the use of eminent domain for Columbia University's expansion, attorney Norman Siegel tried an innovative tactic, submitting his client's own expert "No Blight" Study.)

Well, here's a reasonable difference of opinion.

“I think eliminating blight such as was done in Times Square by the City of New York was commendable because there the blight really amounted to the danger of crime where people simply didn’t want to go to Times Square,” testified Philip Weinberg at an 11/4/05 New York State Assembly public hearing on eminent domain, a highly instructive session that received a virtual media blackout.

Weinberg practiced for 20 years in the New York State Attorney General's Office and was Assistant Attorney General in Charge of the Environmental Protection Bureau.

“That’s very different from going into the middle of Brooklyn and using eminent domain to build a sports stadium and some high rise buildings which will mostly be market rate housing and the rest," he testified. "To me it’s easy to differentiate. There’s always a problem in the middle, sure. But it’s easy to differentiate between those two situations.”

Building castles on air

Keep in mind that one issue raised during the eminent domain litigation--and still pending in the case challenging the AY environmental review, for which an appeal to the Court of Appeals has been requested--is the state's claim that a building fulfilling less than 60% of allowable development rights is "underutilized."

"We now hear they don’t like using 60%” of FAR as a criteria for underutilization, ESDC attorney Philip Karmel said at a 5/3/07 hearing in the latter case “You have to have a cutoff somewhere.”

That would theoretically condemn large swaths of Brownstone Brooklyn as blighted, since they’re not built out to 60% of their development rights, as I've written.

The ESDC memorandum of law called the agency’s consideration of underutilization, along with other factors, “a permissible exercise of discretion.”

But how draw the line? Interestingly, an ESDC footnote buttressing that argument cites a 1985 case, G&A Books, Inc. v. Stern, which states, “The FEIS treats the severe underuse of the land in the Project Area’s 13 acres as further evidence of blight.”

It's hard to argue that the buildings on the Atlantic Yards site exhibit "severe underuse." According to a law dictionary, “severe” means “of an extreme degree.” A building that occupies 53% of its allowable Floor Area Ratio would not seem to represent “severe underuse.”

The issue of underutilization, though raised in court papers and legal arguments in the eminent domain case, was not addressed in any of the opinions issued this week.

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