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Incoming Assemblyman Jeffries supports AY delay, compromise

Hakeem Jeffries, the newly-elected Assemblyman in the 57th Assembly District, which includes the site for the proposed Atlantic Yards project, has long spoken carefully about the project, offering support for affordable housing, concern about eminent domain (at least for a basketball arena), and a belief that the project would be too big.

Last night, speaking before a meeting of the Fort Greene Association, Jeffries maintained such a cautiously supportive stance. He called for the project to be delayed until the administration of incoming Governor Eliot Spitzer, and said he supported several changes in the project. Such changes, including the idea of a government subsidiary dedicated to overseeing the project, sound much like those proposed by BrooklynSpeaks, the coalition of critics that have staked out a relatively moderate stance that separates them from the Develop Don’t Destroy Brooklyn (DDDB) coalition.

(Given the requirement announced yesterday to revise the Atlantic Yards Final Environmental Impact Statement, a delay into the Spitzer administration has become more probable.)

He was first asked about development pressures that were changing neighborhoods. “Generally, I think we have to guard against what several of my colleagues and I have referred to as the Manhattanization of Brooklyn. We want to allow Brooklyn to develop organically, and we welcome economic development. I think that there are some positives to it,” he said. He noted that he’d grown up in Crown Heights and now lives with his family in Prospect Heights, and had gone to Cub Scouts at the Lafayette Avenue Presbyterian Church, where some 150 people had gathered. “The beauty and the character and the history of these neighborhoods is very familiar to me… and we have to work hard to preserve it.”

“The battle is going to be a block by block battle,” he said, citing the tendency of developers “taking advantage of economic conditions and building projects that are out of scale with the block or the surrounding neighborhoods. I know the Council person [Letitia James] and the state Senator [Velmanette Montgomery] in particular have been active in that fight, and I will be joining them in that fight.”

421-a reform

It was pointed out that reform of the longstanding 421-a tax exemption has been proposed by a mayoral task force, which did not recommend that the “exclusion zone”—which provides the tax break only in exchange for affordable housing—be extended to the booming neighborhoods in Jeffries’ district. Jeffries said he was “dismayed” that Fort Greene, Clinton Hill, Prospect Heights, Crown Heights, and Bedford-Stuyvesant were excluded. “I can only imagine that that was evidence of the influence of the real estate lobby and the developers,” he said, adding that the state legislature will have final say on the contours of the law, which sunsets in December 2007.

He said that “the state has too much influence over what takes place in our neighborhoods in New York City. As a result, you have situations where some of these authorities, and the Public Authorities Control Board, which has ultimate signoff on these projects, hold the fate of many things that take place in our neighborhoods in their hands.”

PACB reform

He noted that Spitzer has pledged reform of public authorities and said that, prior to the summer, he had considered the Metropolitan Transportation Authority the most authority most in need of reform. “And then this summer we dealt with the Empire State Development Corporation.” (Several in the crowd chuckled at his apparent reference to the release of the Atlantic Yards Draft Environmental Impact Statement and the poorly-managed August 23 public hearing.) “And I couldn’t think of a more dysfunctional agency,” he said, citing the need for more scrutiny of such agencies.

AY delay

He was asked if he’d recommend that Assembly Speaker Sheldon Silver, who as one of three voting members on the Public Authorities Control Board (PACB) could kill the project, to vote no.

“Assemblyman [Jim] Brennan, Assemblywoman [Joan] Millman and I have been working closely to devise a strategy in order to address this issue. How we’ll be dealing with it as it relates to the Speaker remains to be seen," Jeffries responded. "I’ve publicly said that I think that the vote should be delayed before the Public Authorities Control Board for any number of reasons, including the absence of transparency coming from the ESDC, as well as the developer, on some of the finances. In fact, I’ve said that to the Speaker himself, in terms of not having enough information to responsibly critique this project in a way that allows us to move forward constructively, however that does take place.”

“We’re fighting upstream here,” he added, “because the Governor and the Majority Leader and the Speaker have publicly said they support this project. That said, one reason why Millman and Brennan and I have decided to work collectively is… that the Speaker tries to respond to pressure from members of the Brooklyn delegation.”

Beyond asking for a postponement, would Jeffries ask Silver to reject the project?

“To be honest, I think it’s unrealistic right now,” Jeffries responded. “The Speaker has gone on record indicating that he supported this project. I think what we can hope for right now is to tell him that there’s simply not enough information that has been presented to the project and there are too many issues, there’s too many uncertainties, the project is too big and needs to be scaled down, we don’t have transparent financial information.”

AY plan changes

He added that the affordable housing should include ownership units, not just rentals, and that such units be built onsite. (Forest City Ratner has promised some for-sale units, onsite or offsite, but that’s not part of the plan presented by the ESDC.)

He also said a larger percentage of affordable units should be in the first phase of the project. (The state promises 30 percent of the dwelling units in the first phase would be affordable; Jeffries said the number should be at least 50 percent.) “For those reasons, I think we’re not in a position right now to move forward with approval of the project.”

“Whatever is built there has to deal with the affordable housing crisis,” he said later, facing questions from three reporters. “What has been proposed does take meaningful steps in that direction, but I’d like to see an improvement” in ownership and the percentage in phase one. As for the scale, he said “the project needs to be reduced significantly…. Until we see the financials, it becomes difficult to meaningfully critique the project in a way that deals with the neighborhood concerns about the impact on the public infrastructure, but also addresses the reality that no one’s going to build there unless there’s some profit.”

He said he hoped Silver could provide more time “to evaluate the project, adjust the project, and allow these concerns to be addressed. The other thing we’re going to push for is the creation of a subsidiary corporation, like in Battery Park and Brooklyn Bridge… to enforce promises the developer has made but not giving him a blank check.”

Eminent domain delay

What about the pending eminent domain lawsuit filed by DDDB? “I believe, and we’ll see what the courts do in terms of injunctive relief, but I believe that the project shouldn’t move forward until the eminent domain issue is resolved.”

Will Spitzer help? “I think that Governor-elect Spitzer is likely to be more responsive to the community’s concerns,” Jeffries said, contrasting him with Pataki.

And if Spitzer doesn’t help? Jeffries said he didn’t want to evaluate a hypothetical question. But even a scaled-down version of the project raises the "Manhattanization" issue.

A moderate obstructionist?

Then Jeffries faced some questions from another direction, via Steve Witt of the Courier-Life chain. Pointing out the failure of the West Side Stadium and Moynihan Station, Witt suggested that the city has gained a reputation of a place “where you can’t get any development done.” Is Jeffries worried that developer Bruce Ratner would fail to bring the Nets to Brooklyn?

“I think the fact that there’s significant government subsidies involved in this project suggests to me that Bruce Ratner would be OK, in terms of his financial condition,” Jeffries responded. He said we should be sensitive about “creating a climate where developers would not seek to build at all, but I think we’re far from that.”

Witt again asked if Jeffries thought Ratner would walk. Jeffries said that developers can use such a threat as a tactic, but “given the attractive package that’s been put forth—I didn’t encourage anyone to go out and buy a sports team that may or may not be creating a financial hardship, but I think that Forest City Ratner is going to be OK.” (The Nets have been losing money.)

“The message that came out of the election,” Jeffries continued, “is that there should be development, it should be a responsible, and we should all try to find a common ground.” (That can be debated.)

Hoops in Brooklyn

Witt pressed on: “You don’t care about seeing a basketball team in Brooklyn?”

“I’m a Knicks fan,” Jeffries said, deflecting the question, “but I do like [the Nets’] Jason Kidd and Vince Carter.”

“Would you like to see a basketball team in Brooklyn?” Witt repeated.

Jeffries responded, “I’m far more interested in the affordable housing than the Nets.”


  1. Here is an article I have sent to NoLandGrab. It is a revision of my entry in the discussion of Kelo v. New London in Wikipedia.

    My book, THE EMINENT DOMAIN REVOLT, has just been published (New York: Algora Publishing). The book discusses the Atlantic Yards Federal lawsuit.


    Post-Kelo, a wide variety of eminent domain uses was stopped; some were stopped at the planning stage, some were stopped at a point at which property had already been destroyed. In every case, however, the question of damages--of making the property owners whole--arose. In Norwood, Ohio, a neighborhood was virtually destroyed before the Ohio Supreme Court found the use unconstitutional Norwood v. Horney. Only a few houses remained, and one of the owners was not happy that the proposal was simply to give her back the keys. "It should be given back to us in the condition it was when we were forced to leave," she said. "The Ohio Supreme Court said to give us our home back, not an unlivable pile of junk." Cincinnati Enquirer, October 21, 2006.

    What is a "home?" This raises the question of what relief should be requested by winning plaintiffs. In almost all cases, the property is still desired by developers and government still wanted to turn it over to them. In the famous Riviera Beach matter--a $2.5 billion development in Florida--the Mayor hasn't given up on the project, even though Florida passed an eminent domain reform which seems to make that impossible. The problem is that if government purpose had not been found in these eminent domain uses (which is the Atlantic Yards allegation in the Federal lawsuit), it is up to the plaintiffs to come up with a government purpose and then to enforce it by way of relief.

    Kelo itself provided no clue as to what to do in case an eminent domain action was turned aside. Earlier cases, however, provided a way to proceed. Even when West Coast Hotel v. Parrish (1937)set up the scrutiny regime, it allowed a minimum wage law, not because such a law was rationally related to a legitimate government purpose, but rather, because the wage imposed maintained the worker. Euclid v. Ambler, a 1926 case, allowed zoning for single-family residences only, because it maintained housing. In short, the Court said what government purpose, in fact, is: it is the maintenance of important facts.

    And what are important facts? These cases said that important facts were facts which sustained the community. The notion of community plays a large role in determining what laws the Supreme Court upholds. And how was sustenance of the community achieved? By coordinating facts according to the purpose government alleged, as a sham or pretext, in its initial claim of government purpose when seeking to use eminent domain.

    In short, it is up to Atlantic Yards plaintiffs to hold government to its word. It must force government to do what it said it wanted to do in using eminent domain, WITHOUT using eminent domain. That will be the meaning of victory for the Atlantic Yards plaintiffs. This provides a guide for asking the court for relief. For example, a permanent injunction could order the government entity to send copies of all documents to plaintiffs which related to plans to "redevelop" the affected area in the future. "Blight" descriptions by government could now be turned against government, providing the basis of remedial action in order to put plaintiffs, such as those in Norwood, back in the position they occupied before the eminent domain attempt.

    These remedies will take plaintiffs far into long-range solutions, and will greatly limit government discretion. A model, perhaps, is to be found in the relief requested by plaintiffs in the Abbott v. Burke New Jersey cases (see Abbott Districts section of Wikipedia; see also In these cases, now stretching over thirty years, the Supreme Court had changed its view of minimum scrutiny with respect to the education right in the New Jersey Constitution. Instead, it found an individually enforceable right to education. This has meant that there is continuing supervision of government policy--often mandating what government must do--in order to enforce the education right. In short, New Jersey government must now MAINTAIN public education in New Jersey, and plaintiffs in those cases have a BIG say--and government has a SMALL say--in how that is done. In the future, this should be the case in the Atlantic Yards neighborhood as well.

    It only requires a brief glimpse into the planning behind eminent domain uses to see where plaintiffs will have to intervene once they win. Government consider zoning law changes, do economic studies, revise tax laws, alter building codes, sets up government entities, and issues bonds in connection with eminent domain. Suddenly victorious Atlantic Yards plaintiffs will have control over all these things and be required to fulfill the goals government set when it sought to use eminent domain. In case some Atlantic Yards plaintiffs went into this suit simply desiring an outcome in which they would be left alone--it ain't gonna happen. And that's a GOOD thing. They will find themselves confronting the prospect of policy development and constant oversight and monitoring of government. In short, they will have the control over their lives which government once had.


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