Skip to main content

From n+1, "Berman's Children": how a key Supreme Court case furthered both the eminent domain that enabled Atlantic Yards and the landmarking that shaped the neighborhoods nearby

In the latest issue of n+1, attorney Andrew Jacobs offers an intriguing take on Atlantic Yards, titled "Berman’s Children" (subscribers only), explaining how the legal doctrine that enabled the state power of eminent domain--and the not-so-transparent agency overseeing the project--also brought us the Prospect Heights Historic District, and, of course, the earlier historic districts in the radius of the development site, thus creating enduring tensions from an expansion of state power.

"Efforts to designate the Prospect Heights Historic District began in 2006 and came to fruition in the summer of 2009," Jacobs writes. "The Yards, in some sense, created the District."

Jacobs finds a thread of connection in Suleiman Osman's The Invention of Brownstone Brooklyn, who explains how postwar, post-industrial New York faced both "urban modernism and antimodern, romantic urbanism."

The former, including eminent domain, relied on experts "without electoral accountability to build the modern city." The latter, at least at the beginning, was outside the system:
As Osman writes, “The historic landscape was born in the wake of the modern projects. One could not exist without the other.”
Osman’s book is full of sentences like these, connecting the phenomena of early gentrification with a common sense of paradox. The brownstoners’ aversion to suburbia “mixed an anticorporatist critique of ‘tickytacky’ tract homes . . . with a veiled disdain for their provincial denizens.”... To Osman, our ambivalence about how Brooklyn and places like it have changed in the last sixty years is not a failure of nerve. Rather, it is a reflection of the shape-shifting motivations and actions that wrought that change. Today, Prospect Heights’ struggle against Atlantic Yards is a sort of sequel to Brooklyn Heights’ against Cadman Plaza.
Yes, but I'd add that the struggle has been much more than Prospect Heights. Organizations from equally storied neighborhoods like Park Slope and Fort Greene, notably including longstanding residents, also have struggled against Atlantic Yards. And the failure of the public sector to deliver benefits like jobs and subsidized housing has left room for private companies to proclaim public goals.

Two threads of preservationists

Jacobs notes that the initial preservationists were not looking at Brooklyn Heights:
[Preservationist Albert] Bard and his cohort at the city’s Municipal Art Society (MAS) were inspired not by the brownstoners’ organic urbanism, but by the integrated grandiosity of the City Beautiful movement, first given physical expression in The White City at the Chicago World’s Fair in 1893.
...The main reason nothing happened in the immediate aftermath of the act’s passage was that at the time, preservation didn’t have much of a constituency beyond the old folks at the MAS. Soon, though, the society began working with residents of Greenwich Village and, especially, Brooklyn Heights.
The Landmarks Law, relies on the 1954 Supreme Court case Berman v. Parker, best known for upholding eminent domain. So landmarking is a not insignificant legacy, but it's not the main one:
...Berman’s more fecund legacy lies in its extreme deference toward what constitutes a “public use” (i.e., a public purpose) in the context of eminent domain. As private entities assumed greater roles in urban renewal projects, and as the purposes of these projects crept from “slum removal” to the more nebulous “economic development”... courts cited Berman and its progeny...
Moving on to Kelo

The Supreme Court's controversial 5-4 Kelo v. New London decision in 2005 galvanized attention, outrage, and hope. Jacobs notes that, in Justice Anthony Kennedy's "concurrence — which is 'persuasive' but not binding on lower courts," the Justice tried to distinguish between "pretextual takings from those made in good faith":
In particular, a taking might show its bona fides if it were part of a “comprehensive development plan”; if “the identities of most of the private beneficiaries were unknown” at the time the plan was formulated; and if a procedure were in place to “facilitate review of the record and inquiry into the city’s purposes.”
Indeed, this is what plaintiffs in the Atlantic Yards case seized on, but it would not be easy to get courts to take it seriously. And, as Jacobs points out, Kennedy didn't quite have it right; as described by the New London Day, given beneficiaryPfizer's early involvement.

The AY legacy

Jacobs then gets to the Atlantic Yards eminent domain case (which he credits to Daniel Goldstein, cofounder of Develop Don’t Destroy Brooklyn and the owner of a now-condemned property on the Atlantic Yards site, as plaintiff, rather than added co-plaintiffs).

The federal court dismissed the case:
On pretextual takings, the court interpreted Goldstein’s argument as demanding “a full judicial inquiry into the subjective motivation of every official who supported” suspect projects like Atlantic Yards.... The court left the door open for future, Kennedy-inspired pretextual takings claims, but only where “the circumstances of the approval process so greatly undermine the basic legitimacy of the outcome reached that a closer objective scrutiny of the justification being offered is required.” That wasn’t the case here, so the court instead told the story of Berman & company, reminding us that the eminent domain power need only be “rationally related to a conceivable public purpose.” Atlantic Yards will have a public arena and (by 2035 or so) some affordable housing. Isn’t it conceivable that the state meant to benefit the public with it?
Actually, the arena is public only in name, a financing tool to engineer tax-exempt financing. Some subsidized housing should come within a year or two, but the full complement may not come for 25 years.

Jacobs, though he does cite Battle for Brooklyn, does not discuss the state eminent domain case, where other issues were raised, notably the claim that the developer drew the outline of the site, yet were ignored by the Court of Appeals majority in 2009.

The aftermath and legacy

While many states have passed reforms regarding eminent domain. "The state of New York is exceptional in its political acceptance of Kelo," Jacobs writes.

I'd suggest that the influence of New York City Mayor Mike Bloomberg and Assembly Speaker Sheldon Silver are key factors.

Jacobs concludes:
In scene after scene of the recently released Battle for Brooklyn, which documents Daniel Goldstein’s fight against Atlantic Yards, the effective opacity of today’s public-private development apparatus is on display, obscuring even the negotiation of so-called Community Benefits Agreements. In this environment, historic districting can be only a prophylactic, guarding against any more change than what’s already coming. In the end, this is how Berman’s children have grown to get along: The Yards chases the District to its room, and the District locks the door behind it.
It wasn't just Goldstein's fight, which is a not-surprising misreading of the filmmakers' decision to focus somewhat narrowly. But Jacobs does grasp an essential fact of the film (my review).

Tonight, at an invitation-only meeting organized by the Empire State Development Corporation regarding security, sanitation, and parking, there will be some transparency, and some opacity.

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…