Thursday, April 22, 2010

Goldstein statement cites pressure from judge, explains rationale for settlement; can his functions be replaced and can DDDB continue its activism?

While the news, according to the Daily News's tabloid non-analysis, is that Develop Don't Destroy Brooklyn (DDDB) spokesman Daniel Goldstein "scored" $3 million--actually, much less after attorney's fees, as I explained--the bigger questions are both answered and left open in a long statement Goldstein released late last night.

Goldstein noted that he hadn't expected a settlement nor thought of the press implications but "I should have known better because clearly Forest City Ratner saw it as a big press event and sent out a press release immediately."

The full statement is below, but let me focus on three things:
  • what drove the settlement
  • the impact on pending court cases
  • the impact on the Atlantic Yards fight
The bottom line: a bargain for FCR?

The bottom line, as I see it, is that, while Goldstein may have made an understandable and defensible decision, Forest City Ratner will have gotten a bargain if it has not only removed a physical and vocal obstacle but left DDDB and the Atlantic Yards opposition severely hamstrung.

While Goldstein indicates that the AY fight is far from over, it remains unclear what will become of DDDB, or how Goldstein will participate in it and/or support it.

As a volunteer and later a modestly compensated consultant, Goldstein served not only as spokesman but webmaster, graphics artist, fundraiser, and all-around spearhead for DDDB, fighting against an institutional, political, and judicial system severely tilted in favor of developers and the state. (The New York Times mistakenly suggested the fight is mostly about overdevelopment.)

There may be much less to do and Goldstein may well have been prepared to step back no matter what. However, if the organization does serve to channel anti-project activism, Goldstein must be replaced, at least in part. That remains in question.

The power of the state

After condemnation was approved on March 1, Goldstein noted, he no longer owned his apartment but became a tenant of the State:
At that time, with that action on Ratner's behalf, there was nothing I could any longer personally do with my home that would stop or impact the project. Staying in my home until the sheriff came to evict my wife, child and I would have accomplished nothing at all for the fight but would have severely harmed us.
Well, there may have been little he could do, and it may not have been worth the trade-off, but Goldstein's withdrawal from a pending lawsuit--albeit a longshot--makes it even less likely that the Development Agreement, which was kept under wraps by the Empire State Development Corporation (ESDC), will get judicial scrutiny.

The judge in the driver's seat

Yesterday, after a couple of hours of on-and-off court arguments concerning less Goldstein's case but that relating to condemnee Henry Weinstein and his properties at Pacific Street and Carlton Avenue, Supreme Court Justice Abraham Gerges, who specializes in condemnations, held several rounds of private negotiations.

For nearly three hours of those talks mediated by Gerges, Goldstein wrote, he "refused to accept any kind of gag order."

Goldstein wrote:
On April 9th ESDC filed papers requesting that the court evict me on May 17th. Wednesday morning my attorney argued that the court should not grant that eviction. After the argument, Judge Gerges made it crystal clear that he wanted resolution between me and ESDC/Ratner—that day—as to when I'd leave my home.

So instead of being evicted in about 27 days and then being forced to go to court to hope to get close to fair market value for my home (as opposed to the extremely lowball "just compensation" offered to me by New York State, which was nowhere near fair market value), I agreed to leave in about 17 days. That agreement to leave ten days sooner avoids further litigation over "just compensation," which would have cost me more time and money while accomplishing nothing for the fight against the project.
Was more time possible?

Goldstein's statement--"I was left with no good choice by the ESDC or Judge Gerges"--implies that Gerges accepted the ESDC's May 17 deadline as an outside date.

I wasn't in the negotiating room, but Goldstein's attorney, Michael Rikon (disclosure), filed papers arguing strenuously that the May 17 date was premature and that the application was unconvincing:
The application by condemnor marks a new low in eminent domain practice. It is violative of the statutory rights granted by the Eminent Domain Procedure Law and is based on pure vindictiveness and bad faith conduct. Further, it is not premised on accurate factual basis.

...The attempt to serve a Notice to Vacate one day after the service of a Notice of Acquisition is a new low for any condemning authority in the State of New York.
Not only that, Rikon argued that Forest City Ratner's claim that it needed Goldstein's family out of his building to conduct asbestos testing was belied by the developer's longstanding control of the building. And an affidavit from Goldstein argued that there were numerous other buildings Forest City Ratner has yet to demolish.

In other words, Goldstein and Rikon were prepared to argue for much more time.

Note that, according to the Times, an anonymous "executive who was briefed on the negotiations but was not authorized to discuss it publicly" said that Goldstein initially sought $5 million in the negotiations, and Goldstein denied that.

Court cases

Goldstein wrote:
I did agree to give up my title as "DDDB spokesman", but that's just a title. And I did agree to remove my name from one outstanding lawsuit which remains in court despite that. Otherwise I can do and say whatever else I want, and my agreement explicitly states that I have maintained my First Amendment rights.
As I wrote yesterday, the lawsuit is not insignificant and the departure of several plaintiffs, including Goldstein, make it even more of a long shot.

Impact on the AY fight

Goldstein wrote that he intends to keep criticizing the project "whenever the need arises":
As a co-founder of DDDB I will continue that work to the best of my ability and as time allows. I've not been silenced, and I am not leaving DDDB as it transitions into a new phase of fighting Atlantic Yards, exposing its corruption and false promises, and advocating for changing the State's abusive eminent domain laws and the way development is done in New York. And should Atlantic Yards falter, and the land return to its contested state, DDDB will be prepared to jump in.

We have fought every lie, exaggeration, fudge, false promise, abuse, and misinformation campaign tooth and nail. The project that Ratner wanted to build will never be built. And we know that his promises, many already broken, will continue to be broken—especially his promise to build 2,250 units of affordable housing in ten years. It is shameful, and it is shameful that so many politicians remained silent, and still do to this day.

And we, as a community, as DDDB and so many other community groups, will continue to expose the project's problems and abuses.
How exactly that will happen remains unclear. Will DDDB volunteers step up? Will the organization raise new funds?

That's why I asked whether Goldstein planned to donate any of his settlement to the organization. He didn't answer; maybe he hasn't decided, or is waiting to see what becomes of DDDB.

While it's not uncommon practice, it's questionable public policy for an eminent domain settlement--"just compensation"--to encompass side deals like a gag order or agreements to desist from or reduce activism. (Goldstein has been a longtime critic of the gag order imposed on his neighbors when they reached settlements in 2004.)

And, while Goldstein has the right to make a decision that's best for his family, his decision also impacts a larger struggle. By agreeing to step down from his role as DDDB spokesman, Goldstein leaves a void.

Can he, through personal effort or financial donations, help ensure that the void is filled?

The legacy of DDDB

Goldstein wrote:
Through the relationships and alliances amongst community groups and individuals I am certain that it will be impossible for developers and their government cronies to ram this kind of project down another community's throat ever again in New York City.

They didn't ram it down ours.

While we didn't stop the groundbreaking, our voice of protest was heard loud and clear for years before that day, and on that day.
That's true. The lingering question is how much it will continue.

Goldstein's statement
From DDDB's co-founder, Daniel Goldstein:

As has been widely reported (see the invaluable NoLandGrab for full coverage), I reached a financial settlement with the Empire State Development Corporation (ESDC), tool of Atlantic Yards developer Forest City Ratner, to move out of my home—which the ESDC took ownership of on March 1st—by May 7th.

I did not know, when Wednesday started, that a settlement was in store. It was nothing that I expected to happen. I only knew that I had to defend myself against eviction by New York State.

My day started at 9:30 in State Supreme Court where my attorney (not DDDB's) argued against ESDC's effort to get Judge Abraham Gerges to evict my family from our home on May 17th. I did not expect that this argument would then lead to a settlement, so I did not have a press release prepared when an agreement was reached around 3pm. I did not even think of the press implications because I was thinking about my personal situation and my family, not the press. I should have known better because clearly Forest City Ratner saw it as a big press event and sent out a press release immediately. This has led to some misreporting. I post this statement to clarify what has actually occurred. There is a lot to say, so I hope you'll forgive the length, and my apologies for not getting this statement out sooner.

Contrary to press reports I have not given up my First Amendment rights or my involvement with Develop Don't Destroy Brooklyn. (Ratner, though he tried to hide it, did require this of nearly all those who sold their homes to him years ago, and they agreed to it.) Ratner and ESDC tried very hard to force me to agree to give up those rights and the work I do with the organization I helped found. It wasn't enough, I guess, for Ratner to decimate my neighborhood, take my home, and kick me out, they also felt they had to cut out my tongue. For nearly 3 hours of talks mediated by Judge Gerges I refused to accept any kind of gag order. I would not have taken any amount of money to do that, and I did not.

I did agree to give up my title as "DDDB spokesman", but that's just a title. And I did agree to remove my name from one outstanding lawsuit which remains in court despite that. Otherwise I can do and say whatever else I want, and my agreement explicitly states that I have maintained my First Amendment rights. So they have not succeeded in silencing me and I am free to criticize and speak about the project, the developer and the ESDC as much as I want. I intend to do that whenever the need arises.

For seven years my wife Shabnam Merchant (who I met as a fellow activist against Atlantic Yards) and I have worked and fought day after day—giving up an income for many of those years—in an effort to help bring community-based, democratic development to Central Brooklyn. This meant, obviously, opposing Ratner's corrupt, developer-driven, undemocratic project.

As a co-founder of DDDB I will continue that work to the best of my ability and as time allows. I've not been silenced, and I am not leaving DDDB as it transitions into a new phase of fighting Atlantic Yards, exposing its corruption and false promises, and advocating for changing the State's abusive eminent domain laws and the way development is done in New York. And should Atlantic Yards falter, and the land return to its contested state, DDDB will be prepared to jump in.

Impact on the Fight Against Atlantic Yards

On March 1st, after years of litigation, ESDC took title ownership of my home. From that day on, I no longer owned my apartment but instead became a tenant of the State.

At that time, with that action on Ratner's behalf, there was nothing I could any longer personally do with my home that would stop or impact the project. Staying in my home until the sheriff came to evict my wife, child and I would have accomplished nothing at all for the fight but would have severely harmed us.

After March 1st, it was inevitable that we would be forced out; it was just a matter of when.

On April 9th ESDC filed papers requesting that the court evict me on May 17th. Wednesday morning my attorney argued that the court should not grant that eviction. After the argument, Judge Gerges made it crystal clear that he wanted resolution between me and ESDC/Ratner—that day—as to when I'd leave my home.

So instead of being evicted in about 27 days and then being forced to go to court to hope to get close to fair market value for my home (as opposed to the extremely lowball "just compensation" offered to me by New York State, which was nowhere near fair market value), I agreed to leave in about 17 days. That agreement to leave ten days sooner avoids further litigation over "just compensation," which would have cost me more time and money while accomplishing nothing for the fight against the project.

I did not sell my home today. I had no home to sell as the state took my home on March 1st. Contrary to what Ratner and ESDC might want people to believe, eminent domain was used on me and many others. My home was seized by the government to give to a private developer.

What I did do was agree to leave my home rather quickly in return for a payment. What I did do was what I needed to do as a responsible husband and father to make sure that my family could make an orderly transition to a new home in Brooklyn. I was left with no good choice by the ESDC or Judge Gerges.

I have always promised that once the legal options to save my home and the homes and businesses of my neighbors were extinguished, I would have to turn my attention to what was best for my family, after years of neglecting our interests. That is what I did on Wednesday.

DDDB

Speaking as the "former" spokesman of DDDB I have this to say.

The fight we have waged as a community has been heroic and crucially important to literally millions around the City and the country. We have all exposed the project and the process as fatally corrupt. We have convinced nearly all good people of good will that the project is a sham and a poster child for the wrong way to develop cities. We shined a bright light on the way eminent domain is abused in New York State to the point where there is now a legislative effort led by Senator Perkins to reform the state's laws.

We have fought every lie, exaggeration, fudge, false promise, abuse, and misinformation campaign tooth and nail. The project that Ratner wanted to build will never be built. And we know that his promises, many already broken, will continue to be broken—especially his promise to build 2,250 units of affordable housing in ten years. It is shameful, and it is shameful that so many politicians remained silent, and still do to this day.

And we, as a community, as DDDB and so many other community groups, will continue to expose the project's problems and abuses.

Through the relationships and alliances amongst community groups and individuals I am certain that it will be impossible for developers and their government cronies to ram this kind of project down another community's throat ever again in New York City.

They didn't ram it down ours.

While we didn't stop the groundbreaking, our voice of protest was heard loud and clear for years before that day, and on that day. On Ratner's day of celebration, the overwhelming media coverage (besides Beyonce and Jay-Z of course) was of the protest of that travesty.

A legacy of this fight will be that we have proven that all that we have found wrong with it has been shown to be legal in the view of the courts and most legislators. The abusive laws, which favor the most powerful and entrenched interests, must be changed.

Finally, please remember that DDDB, this community and the fight against Atlantic Yards was never about a single person or a single apartment—or even about a single borough. It has been, and still is, about one of the biggest failures of government and democracy in this City's history, and its impact on the lives of hundreds of thousands of people in the great borough of Brooklyn. Our fight has—and this is one of the victories—given hope, inspiration and encouragement to innumerable people that a community united can fight principled fights worth fighting, regardless of the outcome. These are fights that have to be fought if we are to find a way to become a working democracy, which treats individuals and communities fairly, rather than disenfranchising and disempowering them.

See you at the next meeting (once I find a new Brooklyn home). And please be in touch with DDDB.

With my great respect for all the civic minded people who have engaged in the resistance to Atlantic Yards, to any degree at all, throughout the years. You are heroes and YOU have the power.

Daniel Goldstein
Co-founder of Develop Don't Destroy Brooklyn

PS. It will be interesting to see what Congressman Pascrell accomplishes with his effort to get a Treasury Department investigation into Mikhail Prokorov's business deallings in Zimbabwe.


2 comments:

  1. I salute Dan Goldstein and honor the enormous personal sacrifice that he and his family made to lead a public fight against corruption in government, the perversion of urban planning, the misuse of public monies, the cowardice of our leaders, the judge's rubber stamps, the lazy, shallow and biased press, the pathetic and compromised signatories to a phony community benefits agreement, and the unprincipled unions. In this day and age of dysfunctional government, it was an inspiration to see Daniel engage Ratner et. al. with such intelligence, grace, and humor and to watch a regular guy in a t-shirt and beanie make Ratner and his cronies sweat. This colossal battle will echo for decades, and when the next neighborhood group organizes to fight City Hall, it will be Dan Goldstein whom they will model themselves after. I think that we owe Dan the key to the City. Mayor Bloomingdales, are you listening?

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  2. I think that it's unfair to assume that the Judge would have given Mr. Goldstein longer than May 17th to move. As he was offered a large enough sum to make a move it seems that the Judge wouldn't look kindly on the idea that Mr. Goldstein was "unreasonably" standing in the way of the inevitable.

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