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If NJ's proposed eminent domain reform passed in NY, it might stymie AY

If a project like Atlantic Yards had been proposed in New Jersey, there's a good bet a top statewide official would be criticizing it.

New York State has no Public Advocate (though the city has one, and we know what she thinks about eminent domain and AY), but New Jersey has a statewide position. Public Advocate Ron Chen has been fighting hard against eminent domain abuse, issuing reports, press releases, and filing amicus briefs in court cases.

The latest report (right), which got a lot of press yesterday, argues for the State Legislature to change the state’s redevelopment law to achieve a balance between protecting people’s rights and ensuring that sound redevelopment projects move ahead.

Because Chen’s findings and recommendations are based on state law and the state constitution, they’re not applicable to New York. Still, it's worth reading the report via an Atlantic Yards lens. If enacted here, the reforms might stymie the designation by the Empire State Development Corporation’s that the Atlantic Yards site is blighted.

Chen’s take

The Public Advocate outlines a troubling scenario, arguing, “When the government misuses the power of eminent domain, people can lose their homes without real evidence that their neighborhood is blighted, without adequate notice or hearings and without fair compensation.”

The report, based on judges’ findings of facts or assessments by attorneys in the Public Advocate's department, focuses on four types of abuse, including “stealth takings” and inadequate compensation and relocation assistance. However, the most relevant to Atlantic Yards watchers concerns “bogus blight” designations.

The report notes how the definition has expanded:
The traditional definition of blight involves deteriorating conditions that are detrimental to the health, safety or welfare of a community. In spite of that constitutional limitation, the legislature has amended the Local Redevelopment and Housing Law over the years to broaden how it defines blight.

The legislature has added criteria such as “faulty arrangement or design,” “lack of proper utilization,” and “not fully productive.” The legislature also eliminated the word “blighted” and substituted the more obscure and seemingly benign term, “area in need of redevelopment.” Whatever the label, however, the consequence remains the same: once a town designates an area “in need of redevelopment,” it can condemn the properties located within that area.

...The current law’s vague and broad definition of “area in need of redevelopment” could apply to virtually any property in New Jersey that the government feels it could better utilize or make more productive: any building could have another floor added; any house could be razed to make way for luxury condominiums; and any business could be replaced with a bigger business that generates more tax revenue.

Among the examples:
--a city inspector in Long Branch who never went inside the homes of those determined to have blighted exteriors. (Similarly, the firm conducting the Atlantic Yards blight study for the Empire State Development Corporation, AKRF, did not go inside a substantial number of properties.)

--a case in Paulsboro, where officials determined open space blighted because it was “not fully productive” and suffered from a “lack of proper utilization.” (The Gloucester Times calls this a murky example.)

--a case in Lodi, where the town wants to replace a trailer court neighborhood with a new development, though the town’s expert couldn’t point to any unsanitary conditions.

--a case in Perth Amboy, where a factory building was judged blighted not via an interior inspection or an examination of occupancy rates, but because of an “underutilized” parking lot.

Blight reform

The pending A-3257 would remove vague terms such as “not fully productive” or “lack of proper utilization” but retains more objective and specific criteria, such as vacancy, environmental contamination, dilapidation, and overcrowding. (Regarding Atlantic Yards, more specific criteria were used, though their validity is in dispute, as noted below.)

Moreover, the bill would permit a blight declaration only upon a finding that such conditions were directly detrimental to the safety, health, or welfare of the community.

The bill also would mandate that hearings on blight be conducted under oath, with property owners allowed to ask questions, present evidence and bring their own witnesses.

(Regarding Atlantic Yards, while owners and occupants of properties designated blighted by the ESDC were allowed to present evidence, they were not allowed to ask questions or bring witnesses. It would have been interesting, for example, to see the ESDC challenged on its evasive answer when asked whether any government agency was responsible for keeping up the periter of the MTA's Vanderbilt Yard, or to see Develop Don't Destroy Brooklyn's blight response get a public hearing.)

It also would place the burden on the town seeking condemnation to prove its case by a preponderance of the evidence. Now the burden is on the property owners to prove that their home or business is not blighted. Some state Senators, however, say that changing the burden of proof would paralyze redevelopment efforts, according to the Newark Star-Ledger.

Like others who support eminent domain in principle, Chen argues that “adequate notice, a fair blight proceeding, considerable public input, fair compensation and the use of eminent domain only as a last resort” make a necessary package, and that many already follow that.

The StarLedger, which includes some impoverished municipalities in its coverage area, yesterday endorsed the bill and Chen's take, arguing:
We recognize that some of the proposed changes may slow development, but they may also have the salutary of effect of making the process less litigious. That's because the looseness of the law now almost guarantees court fights. A cleanly defined law would make the process a lot smoother.

Objective evidence

The bill offers some definitions:
“Detrimental to the safety, health, or welfare of the community” means objective evidence of detriment, including, but not limited to, substantial building or health code violations, excessive police activity, a lack of structural integrity, or a continuing exterior appearance that degrades the surrounding properties. For commercial properties, the objective evidence of detriment also may include a lack of proper utilization of the land or structures that leads to stagnant or not fully productive condition of the land.

Note that, in the Atlantic Yards blight designation, residential structures are designated blighted because they don’t use 60% of their allowable development rights. That was questioned in court last month by a state judge. As for "excessive police activity," well, the Atlantic Yards crime study is dubious.

Limited reach for nonblighted area

The New Jersey bill also says that, while an area in need of redevelopment may include nonblighted parcels, the latter would be limited to 20 percent of the land mass of the designated area.

According to the Executive Summary of the ESDC's Blight Study, 51 of the 73 parcels on the project site (70 percent) exhibit one or more blight characteristics, including: buildings or lots that exhibit signs of significant physical deterioration, buildings that are at least 50 percent vacant, lots that are built to 60 percent or less of their allowable Floor Area Ratio (FAR) under current zoning; and vacant lots. These 51 lots comprise approximately 86 percent of the land area on the project site.

In terms of land area, that would leave 14 percent not blighted, easily fitting under the 20 percent threshold. Of course, that’s only if the ESDC's criteria are considered legitimate and if it's acknowledged the single largest “blighted” property was a working railyard, part of a property that Forest City Enterprises CEO Chuck Ratner called “a great piece of real estate.”

Alternate strategy

In New Jersey, the bill offers another interesting proposal. Before the designation of blight, the planning board should review whether another “strategy of rehabilitation, preservation, or neighborhood improvement” might be more appropriate means to address the conditions.

Had such a rule been applied to the properties at issue in Brooklyn, a rezoning or at least a request for proposals for the Vanderbilt Yard likely would have preceded the embrace by the city and state of one developer's project.

History of blight

In a brief filed in February, Public Advocate Chen laid out some of the history, citing scholars from the 1930s, such as Mabel Walker's 1938 book Urban Blight and Slums, which emphasize that a blighted area is deteriorating.

New Jersey law, he writes, instead “permits a boundless pursuit of land that, in someone’s view, can be made more productive. There is no parcel of land in New Jersey that would be safe from such pursuit.”

The ESDC’s blight study cites a New York state law which states that a land use improvement project, must be located in “a substandard or insanitary area, or is in danger of becoming a substandard or insanitary area and tends to impair or arrest the sound growth and development of the municipality.”

That implies deterioration, as well.

No change?

In the Atlantic Yards Draft Environmental Impact Statement issued last July, the ESDC stated:
The project site is not anticipated to experience substantial change in the future without the proposed project by 2016 due to the existence of the open rail yard and the low-density industrial zoning regulations.

The Park Slope Civic Council and Park Slope Neighbors challenged that:
There is no reason to assume that New York City would not or could not rezone these parcels to encourage such redevelopment.

The ESDC responded, conclusorily bridging the gap between 2006 and 2016:
While the City, if it desired, could rezone the project site, it has not.