Saturday, January 02, 2010

Syndicated columnist George Will calls for Court of Appeals to reconsider Atlantic Yards eminent domain case

Syndicated columnist George Will, a conservative who played a key role in bringing the controversial Kelo v. New London eminent domain case to national attention, has weighed in on Atlantic Yards, but his timing is different: he wrote about Kelo in September 2004, before the U.S. Supreme Court had even decided to take the case.

By contrast, the challenge to eminent domain for Atlantic Yards has been dismissed in both federal court and state court, except for a longshot effort to reopen the latter case in light of a seemingly contradictory lower court ruling on eminent domain regarding the Columbia University expansion.

The Will column

The first sighting of the Will column, headlined A blight grows in Brooklyn, comes from the Merced Sun-Star, but his column is syndicated in more than 450 newspapers, so it should appear tomorrow in the Washington Post and elsewhere.

[Here's the Washington Post version, headlined Avaricious developers and governments twist the meaning of 'blight'; there are numerous comments.]

He likens the Revolutionary War's Battle of Brooklyn to today's "battle of Prospect Heights," is being fought. Americans' liberty is again under assault, but this time by overbearing American governments.

He writes:
The fight involves an especially egregious example of today's eminent domain racket. The issue is a form of government theft that the Supreme Court encouraged with its worst decision of the last decade -- one that probably will be radically revised in this one.

The Atlantic Yards site, where 10 subway lines and one railway line converge, is the center of the bustling Prospect Heights neighborhood of mostly small businesses and middle-class residences. Its energy and gentrification are reasons why 22 acres of this area -- the World Trade Center site is only 16 acres -- are coveted by Bruce Ratner, a politically connected developer collaborating with the avaricious city and state governments.
Actually, the site is in the northwest segment of Prospect Heights, near the bustling neighborhoods of Fort Greene, Park Slope, and Boerum Hill.

The blight dodge

Will writes:
To seize the acres for Ratner's use, government must claim that the area -- which is desirable because it is vibrant -- is "blighted." The cognitive dissonance would embarrass Ratner and his collaborating politicians, had their cupidity not extinguished their sense of the absurd.

The condo of Daniel Goldstein, his wife and year-old daughter, which cost Goldstein $590,000 in 2003, is on part of the land where Ratner's $4.9 billion project would be built -- with the assistance of more than $1 billion in corporate welfare from the state and city governments, which are drowning in red ink. The Goldsteins' building would not seem blighted to anyone not paid to see blight for the convenience of the payers. Which is of constitutional significance.
Indeed, the area is desirable--Forest City Enterprises CEO Chuck Ratner famously called it a "great piece of real estate." However, the Goldsteins' building was not deemed blighted; rather, judges are reluctant to interfere with the decision by condemnors to include non-blighted properties.

More importantly, the renovated building (Block 1127, Lot 27) is counter-evidence to the charge that the adjacent railyard, part of the blighted Atlantic Terminal Urban Renewal Area (ATURA), had a blighting effect on adjacent blocks, as Develop Don't Destroy Brooklyn's response (article, PDF) to the Empire State Development Corporation's Blight Study pointed out.

The impact of Kelo

Will points to the need for blight to be found so the state could deliver the properties Bruce Ratner sought. And while the decision was upheld by the Court of Appeals, an intermediate court found "mere sophistry" in the Columbia case, with a Blight Study written by the same firm used in Brooklyn.

Will concludes:
The Atlantic Yards nonsense was compounded when Ratner, to bolster his balance sheet after the real estate collapse, sold the Nets to a Russian billionaire, who stands to benefit from Ratner's government-subsidized seizure of other people's property. Those people can only hope that New York's highest court will grant their appeal for reconsideration on the grounds that Ratner's argument is about as good as the Nets are. Through Friday, their record was 3-29.
That's a longshot, but the issues are important. Can "underutilization" really be used as a "blight characteristic," given that applies to enormous sections of the city?

Perhaps the Court of Appeals will take a closer look. And we'll see what comes out of public hearings and new legislation promised by state Senator Bill Perkins.

Will's background on eminent domain

Will has long been sympathetic to is a member of the board of the MacArthur Foundation, which provides some funding for the Institute for Justice (IJ), the libertarian law firm that led the Kelo fight and has lobbied nationally for changes in eminent domain laws. (The MacArthur Foundation tells me that information on the Washington Post web site regarding Will's board membership is incorrect. Will is a member of the board of the Bradley Foundation, which supports the IJ.)

He wrote in August 2009 about how the subject of a book on eminent domain, Bulldozed, has sued both the writer as well as an endorser, suggesting that the charge "ignores long-established criteria of defamation law."

The Kelo column

According to Jeff Benedict's account of the Kelo case, Little Pink House, after the IJ filed its appeal with the Supreme Court, it sent a copy to Will, who had previously championed the organization's cases.

Benedict writes:
His column caused a major stir and touched off a slew of stories on national television and radio programs. There were so many requests to talk to the Fort Trumbull homeowners that the institute's John Kramer had to pick and choose which ones the plaintiffs would meet.
Will's September 2004 column, headlined Despotism in New London, began:
The question is: Does the Constitution empower governments to seize a person's most precious property -- a home, a business -- and give it to more wealthy interests so that the government can reap, in taxes, ancillary benefits of that wealth? Connecticut's court says yes, which turns the Fifth Amendment from a protection of the individual against overbearing government into a license for government to coerce indi- viduals on behalf of society's strongest interests. Henceforth, what home or business will be safe from grasping governments pursuing their own convenience?
Will acknowledged that the Supreme Court had expanded the notion of "public use" to mean "public purpose," notably in a case clearing slum conditions in Washington, DC. He wrote:
But the Fort Trumbull neighborhood -- what remains of it; many residents have been bullied into moving -- is middle class. That is the "problem": Residents are not rich enough to pay the sort of taxes that can be extracted from the wealthy interests to which New London's government wants to give other people's property.
What's blight?

While the case in New London ostensibly involved economic development, not the removal of blight, the deployment in New York of blight criteria like underutilization essentially merges the two.

And the lingering question remains: can "blight characteristics" add up to blight, especially when the state fails to do a market study of rents and sales around the Atlantic Yards site?

Or does blight mean, in the words of urban planner Lynne Sagalyn, “when the fabric of a community is shot to hell.”

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