Skip to main content

Public Use, Robert Moses, and the Atlantic Yards blight fight

Christopher Dunn, associate legal director of the New York Civil Liberties Union, wrote a column in the 10/26/09 New York Law Journal on the Atlantic Yards eminent domain case, headlined Public Use, Robert Moses and the Fight Over Atlantic Yards.

It was apparently written, though not published, before the 10/14/09 oral argument in the Atlantic Yards eminent domain case.

Dunn allows for the possibility that the Court of Appeals might narrow eminent domain law, though the court had long agreed that "public use" could mean "public purpose."

After attending the oral argument, I wouldn't rule it out either, but not necessarily for the reasons Dunn cites. Rather, as I describe further below, the issue might be the state's broad use of the term "blight."

Looking at the law

Dunn's column walks through a string of old cases cited in the plaintiffs' brief, then notes that more recent cases, known as Muller and Yonkers, favor the state:
Given the Court of Appeals rulings in cases like Yonkers and Muller, the legal challenge to the Atlantic Yards project faces formidable obstacles. Nonetheless, the Court chose to take the case when it could have simply let stand the Appellate Division's ruling rejecting the challenge. Moreover, as dramatically illustrated by its May 2009 ruling invalidating warrantless police use of GPS devices to track suspects, the Court of Appeals seems newly open to construing state constitutional guarantees more broadly than their federal counterparts.
Given the court's tough questioning of plaintiffs' lawyer Matthew Brinckerhoff about that line of cases, I think it's unlikely they'll overturn the lower court's decision on those grounds.

The Moses legacy

Dunn concludes with some context:
Looming over these legal considerations is the legacy of Robert Moses. Though hailed as a heroic figure during his time, public opinion has dramatically shifted about the mass relocations and neighborhood destruction caused by his public projects--made possible by the aggressive use of eminent domain. For instance, it is inconceivable to think that a proposal to build an elevated 20-late highway through the middle of SoHo and the Lower East Side, with the demolition of over 400 residential and commercial buildings, would be considered now. Yet, had it not been for Jane Jacobs and her advocacy, Moses' Lower Manhattan Expressway almost certainly would have been built in the late 1960s.

Jacobs died in 2006, one year after the Supreme Court decided the Kelo case, in which she had filed an amicus curiae brief. Though the Court in Kelo effectively eliminated the federal Constitution as a barrier to the use of eminent domain to block property seizures for private economic development, we soon will see if the New York Court of Appeals is prepared to take a different path.
Well, yes--and no.

While the state's pursuit of eminent domain for the Atlantic Yards project certainly could be seen as heavyhanded, the scale is not the same as during Moses's era.

Several dozen buildings, not hundreds, were in the Atlantic Yards footprint and most, but hardly all, were purchased by developer Forest City Ratner, albeit with public money and the threat of eminent domain.

The blight issue

While the plaintiffs made multiple arguments, including the state's alleged failure to perform a cost-benefit analysis and the use of subsidies for a project in a blighted area banned market-rate housing, the single strongest issue--if the court is looking to update eminent domain law in light of current conditions--may be blight.

I'll reprise my coverage from the oral argument.

Judge Robert Smith pointed to photographs in the Empire State Development Corporation's (ESDC) Blight Study of Pacific Street. "You glance at it and see a ruined sidewalk over here and a perfectly normal building over there. That was the boundary of the urban renewal area. What I'm really asking is: Have you gerrymandered this area to fit what the developer wanted to build on rather than take an area of real blight?”

“No, your honor," ESDC lawyer Philip Karmel responded. "The Blight Study establishes that the project site is blighted and ESDC had a rational basis for its determination of substandard and--”

Smith interjected, asking hypothetically if it was OK for a developer to ask the government to condemn a whole site even if half of it isn't blighted.

Karmel, whose brief points out that the ESDC considers most of the non-ATURA blocks blighted as well, said the 1953 case known as Kaskel v. Impelliteri--not unlike the Supreme Court's Berman v. Parker--established that blight is looked at in terms of the area as a whole. (The brief notes that it’s not up to the courts to second-guess the condemnor’s map.)

He continued by contrasting this case with one called Denihan Enterprises, in which two-thirds of a city block was to be condemned for 17 public parking spaces. "So the court said there seemed to be an inadequate nexus between the stated public purpose and what the project would in fact achieve," he said. "That's the kind of case where pretext is something that needs to be analyzed--"

Smith interrupted, pointing to a charge in the petitioners’ brief that the state did not raise the issue of blight until some two years after the project was announced in December 2003.

"That's not correct, your honor," Karmel said. He paused, slightly derailed, and began talking about the Blight Study.

"Wasn't this originally seen as a community development project" Smith asked, but blight was later needed as a justification for condemnation.

"Absolutely not," insisted Karmel. "There is nothing whatsoever in the record."

Smith acknowledged there was no direct evidence, but asked, "At the time this was announced, when people were holding press conferences, where does the word 'blight' appear?"

Karmel soldiered on, despite having no evidence from 2003. One of the two Memoranda of Understanding signed in 2005, he said, refers to the Atlantic Terminal Urban Renewal Area. "It was long known that this was an area that had previously been targeted for urban renewal."

(Plaintiffs' attorney Brinckerhoff later said that this explanation had not been in the ESDC's briefs.)

Karmel paused, trying to steer the argument, and said, "I would like to go back to this issue of pretext."

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…

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…

So, Forest City has some property subject to the future Gowanus rezoning

Writing yesterday, MAP: Who Owns All the Property Along the Gowanus Canal, DNAinfo's Leslie Albrecht lays out the positioning of various real estate players along the Gowanus Canal, a Superfund site:
As the city considers whether to rezone Gowanus and, perhaps, morph the gritty low-rise industrial area into a hot new neighborhood of residential towers (albeit at a fraction of the height of Manhattan's supertall buildings), DNAinfo reviewed property records along the canal to find out who stands to benefit most from the changes.
Investors have poured at least $440 million into buying land on the polluted waterway and more than a third of the properties have changed hands in the past decade, according to an examination of records for the nearly 130 properties along the 1.8-mile canal. While the single largest landowner is developer Property Markets Group, other landowners include Kushner Companies, Alloy Development, Two Trees, and Forest City New York.

Forest City's plans unc…

At 550 Vanderbilt, big chunk of apartments pitched to Chinese buyers as "international units"

One key to sales at the 550 Vanderbilt condo is the connection to China, thanks to Shanghai-based developer Greenland Holdings.

It's the parent of Greenland USA, which as part of Greenland Forest City Partners owns 70% of Pacific Park (except 461 Dean and the arena).

And sales in China may help explain how the developer was able to claim early momentum.
"Since 550 Vanderbilt launched pre-sales in June [2015], more than 80 residences have gone into contract, representing over 30% of the building’s 278 total residences," the developer said in a 9/25/15 press release announcing the opening of a sales gallery in Brooklyn. "The strong response from the marketplace indicates the high level of demand for well-designed new luxury homes in Brooklyn..."

Maybe. Or maybe it just meant a decent initial pipeline to Chinese buyers.

As lawyer Jay Neveloff, who represents Forest City, told the Real Deal in 2015, a project involving a Chinese firm "creates a huge market for…