Because sports spectatorship is a form of amusement, which is one definition of "recreational," she wrote, the arena qualifies as a facility designed and intended for "recreational purposes," and as such constitutes a "civic project" as defined under the UDCA.
Her ruling came in a dismissal of the state lawsuit challenging the project's environmental review.
An interesting contrast comes in a 2006 paper by two noted supporters of eminent domain and the U.S. Supreme Court's controversial 2005 Kelo vs. New London decision. They raise questions about just how public sports facilities are.
Kelo's Unanswered Questions: The Policy Debate Over the Use of Eminent Domain for Economic Development was written by Robert G. Dreher and John D. Echeverria of the Georgetown Environmental Law & Policy Institute of the Georgetown University Law Center.
Privileging sports facilities?
The relevant comments come in a caution about privileging eminent domain for specific uses, such as sports facilities:
One popular approach to reform already adopted in some states involves prohibiting various specific uses of eminent domain or, what amounts to the same thing, prescribing the allowed uses of eminent domain. This approach seeks to draw clear lines establishing when eminent domain can and cannot be used. The difficulty with this approach is that it turns out to be very difficult to make reasonable generalizations about when the use of eminent domain is appropriate. Apparently because professional sports teams tend to be popular, some enacted and pending legislation provides wide latitude for the use of eminent domain to develop sports stadiums. But, as a matter of principle, it is difficult to understand how one can distinguish between stadiums and other privately-owned public entertainment venues, such as movie theaters and theme parks. Moreover, it is hard to see why sporting arenas, which are accessible only by admission-paying customers, are considered more “public” than shopping centers, which may in a sense serve a lesser civic function, but at least are accessible to all without charge.
In other words, following this logic, a movie theater could qualify as a civic project. And, perhaps, Shoot the Freak.
However, the Atlantic Yards arena wouldn't be privately-owned, thanks to a loophole. As noted by the federal appellate court upholding the dismissal of the federal eminent domain lawsuit, the facility would be
a "publicly owned (albeit generously leased) stadium." That lease would be $1, as noted in the General Project Plan (GPP), excerpted at right.
According to the GPP, that leaseholding Local Development Corporation will issue tax-exempt bonds to pay the cost of building the arena, and a Forest City Ratner affiliate will repay the bonds as payments in lieu of real estate taxes "not to exceed the amount that full real estate taxes would be if the land and improvements were not exempt from such taxes as a result of ESDC's ownership thereof."
In their paper, Dreher and Echeverria offer other warnings about singling out certain uses:
The prohibitory strategy raises a number of other serious problems. First, it strikes at the heart of efforts to rely on public-private partnerships to promote mixed-use development; bills adopting this approach typically prohibit the use of eminent domain for certain types of uses included in mixed-use developments, jeopardizing the entire mixed-use approach to development. In addition, this approach only helps property owners threatened with redevelopment that includes proscribed uses; owners affected by other government-sponsored development activities, such as highways, utility lines or, depending on the legislation, sports stadiums, or whose property has been designated as “blighted,” receive no protection whatsoever. Finally, Professor Thomas Merrill has observed that property owners will have difficulty obtaining legal representation to protect their rights under such prohibitory approaches, since the relief they will be seeking is an injunction preventing the taking of their property rather than enhanced compensation which could attract lawyers to serve on a contingent-fee basis.