Skip to main content

The final collapse of redevelopment plans in New London leads to new scrutiny of eminent domain for Atlantic Yards

The Kelo vs. New London case is experiencing some serious blowback, now that the entire rationale for eminent domain there has unraveled.

While the commentary does not directly address Atlantic Yards--where the justification for eminent domain is the removal of blight, not the pursuit of economic development--the experience in New London may nudge judges (like, say, the New York Court of Appeals in the AY eminent domain case) and legislatures toward greater scrutiny and skepticism of eminent domain.

The court decision

Remember, the Supreme Court, in its controversial 5-4 2005 decision, upheld the city of New London's plan for eminent domain because, as the majority opinion concluded:
The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue.
Moreover, Justice Anthony Kennedy, in his nonbinding concurrence (seized on by plaintiffs in the unsuccessful Atlantic Yards federal eminent domain case), observed:
This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus.
(Emphases added)

The problem: Pfizer will close its global research and development headquarters in New London, ending any lingering hopes that anything would happen with the long-dormant plan.

The response

Both conservative (such as the Wall Street Journal) and liberal opponents of eminent domain are piling on. In the New York Daily News, columnist Juan Gonzalez writes, in a column headlined Eminent-domain outrage in Conn. shows why Ratner's Yards plan stirs anger:
It is not just New London, of course, where local governments have rushed to use eminent domain in recent years to bulldoze neighborhoods for the benefit of the rich and powerful.

Here in this town, the Bloomberg administration keeps trying to seize properties in downtown Brooklyn to make way for the giant Forest City Ratner Atlantic Yards Project. In Willets Point, Queens, it wants to condemn scores of small businesses for another grandiose commercial development project.

But local residents and owners, like Dan Goldstein of Develop Don't Destroy Brooklyn, and Jake Bono of Willets Point United, refuse to give in.

Kelo and her neighbors in Trumbull may have lost their homes, they say, but the fight they started continues.
Note that the column barely mentions Atlantic Yards, so the headline could be seen as a way to localize the story.

A debate in the Times

On the New York Times web site, a quartet of commentators argue about whether this is A Turning Point for Eminent Domain?

Law professor Paul Finkelman suggests that the Supreme Court "simply affirmed what has been going since the early colonists allowed for the first grist mills and lumber mills to be built." That's not true, because the Supreme Court affirmed the 20th century conception that "public use" means "public purpose."

Veteran New Haven journalist Paul Bass contends that "urban liberals make mistakes, big mistakes when they stand against the little guy through the misuse of eminent domain." (Bass, a longtime friend of mine, is politically progressive, but more than that he's a journalist who follows the story.)

Institute for Justice attorney Dana Berliner, whose organization brought the Kelo case, notes that the developer "did a study showing there was no market for the biotech office buildings the city claimed would replace the homes."

Stevens, however, wrote:
Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from our precedent.... A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.
In the Times, law professor Matthew Festa responds:
The legal rationale of Kelo remains intact, but perhaps courts will be less easily persuaded by the comprehensiveness of a proposed redevelopment plan when hearing challenges to eminent domain.
The implications for AY

A couple of commentators on the Times web site also point to Atlantic Yards as an abuse of eminent domain.

However, the state Court of Appeals could bypass the Kelo debate by relying on the state's loose definition of blight. Then again, should the court uphold the use of eminent domain, the Atlantic Yards case may stand as a turning point in courts' use of blight.

But the court also could take a more careful look at the "comprehensiveness of a proposed redevelopment plan." The record before the court assumes a ten-year buildout of the project and pie-in-the-sky tax revenues.

Meanwhile, back in the real world, developer Bruce Ratner tells Crain's, “Can you tell me when we are going to need a new office tower?”

The state's economic projections for Atlantic Yards have already been proven bogus. The question is whether the court will notice.

Comments

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website Matzav.com explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…

Atlanta's Atlantic Yards moves ahead

First mentioned in April, the Atlantic Yards project in Atlanta is moving ahead--and has the potential to nudge Atlantic Yards in Brooklyn further down in Google searches.

According to a 5/30/17 press release, Hines and Invesco Real Estate Announce T3 West Midtown and Atlantic Yards:
Hines, the international real estate firm, and Invesco Real Estate, a global real estate investment manager, today announced a joint venture on behalf of one of Invesco Real Estate’s institutional clients to develop two progressive office projects in Atlanta totalling 700,000 square feet. T3 West Midtown will be a 200,000-square-foot heavy timber office development and Atlantic Yards will consist of 500,000 square feet of progressive office space in two buildings. Both projects are located on sites within Atlantic Station in the flourishing Midtown submarket.
Hines will work with Hartshorne Plunkard Architecture (HPA) as the design architect for both T3 West Midtown and Atlantic Yards. DLR Group will be t…

Forest City acknowledges unspecified delays in Pacific Park, cites $300 million "impairment" in project value; what about affordable housing pledge?

Updated Monday Nov. 7 am: Note follow-up coverage of stock price drop and investor conference call and pending questions.

Pacific Park Brooklyn is seriously delayed, Forest City Realty Trust said yesterday in a news release, which further acknowledged that the project has caused a $300 million impairment, or write-down of the asset, as the expected revenues no longer exceed the carrying cost.

The Cleveland-based developer, parent of Brooklyn-based Forest City Ratner, which is a 30% investor in Pacific Park along with 70% partner/overseer Greenland USA, blamed the "significant impairment" on an oversupply of market-rate apartments, the uncertain fate of the 421-a tax break, and a continued increase in construction costs.

While the delay essentially confirms the obvious, given that two major buildings have not launched despite plans to do so, it raises significant questions about the future of the project, including:
if market-rate construction is delayed, will the affordable h…

Revising official figures, new report reveals Nets averaged just 11,622 home fans last season, Islanders drew 11,200 (and have option to leave in 2018)

The Brooklyn Nets drew an average of only 11,622 fans per home game in their most recent (and lousy) season, more than 23% below the announced official attendance figure, and little more than 65% of the Barclays Center's capacity.

The New York Islanders also drew some 19.4% below announced attendance, or 11,200 fans per home game.

The surprising numbers were disclosed in a consultant's report attached to the Preliminary Official Statement for the refinancing of some $462 million in tax-exempt bonds for the Barclays Center (plus another $20 million in taxable bonds). The refinancing should lower costs to Mikhail Prokhorov, owner of the arena operating company, by and average of $3.4 million a year through 2044 in paying off arena construction.

According to official figures, the Brooklyn Nets attendance averaged 17,187 in the debut season, 2012-13, 17,251 in 2013-14, 17,037 in 2014-15, and 15,125 in the most recent season, 2015-16. For hoops, the arena holds 17,732.

But official…

"There is no alternative": DM Glen on de Blasio's affordable housing strategy

As I've written, Mayor Bill de Blasio sure knows how to steer and spin coverage of his affordable housing initiatives.

Indeed, his latest announcement, claiming significant progress, came with a pre-press release op-ed in the New York Daily News and then a friendly photo-op press conference with an understandably grateful--and very lucky--winner of an affordable housing lottery.

To me, though, the most significant quote came from Deputy Mayor Alicia Glen, who, as the Wall Street Journal reported:
said public housing had been “starved” of federal support for years now, leaving the city with fewer ways of creating affordable housing. “Are we relying too heavily on the private sector?” she said. “There is no alternative.” Though Glen was using what she surely sees as a common-sense phrase, it recalls the slogan of a politician with whom I doubt de Blasio identifies: former British Prime Minister Margaret Thatcher, a Conservative who believed in free markets.

It suggests the limits to …