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Another look at the "Outlaw Operation" video about the ESDC and the July 29 public hearing

It's not a very subtle polemic, but it's worth another look on the last day in which public comments can be filed on the 2009 Modified General Project Plan for Atlantic Yards.

The 23:41 video from Freddy's Brooklyn Roundhouse, titled ESDC-OUTLAW OPERATION: Eminent Domain in Developer Driven Development portrays the Atlantic Yards opposition on the first day of the public hearing held on July 29 and July 30.

The only people pictured are project opponents and some say things that don't add up. The narration, as well, pushes the envelope. But isn't the process rather one-sided and won't the Empire State Development Corporation (ESDC) board rubber-stamp the project when it meets September 17?

And the press coverage, notably in the New York Times (which didn't cover the hearing outside the blog The Local), portrayed the issue as the developer's struggle, without raising questions of public accountability.

The two most important figures in the video are veteran attorney Norman Siegel, who provides valuable perspective on the difficulty in fighting eminent domain, and writer Michael Rogers, who offers some crucial perspective.

"There's no reality in today's hearings," Rogers says at one point. "We've been promised fantasy after fantasy: ice skating rinks, public green roofs, vast showplaces of Frank Gehry glass, big checks for the MTA, thousands of moderate housing units, a state of the art railyard. They've all been fantasies. Maybe that worked five years ago, when people believed in fantasies, like the Dow at 14,000, or Lehman Brothers, or housing prices that would appreciate forever. But that's not the world we live in today."

The official description of the video:
The story of a governmental organization bending over backwards to serve one of New York State's real estate barons, Bruce Ratner. Ratner is a former New York City official who was college roommates with former Governer George Pataki.

Actually, they were in law school together, and while there has been some reference to them as roommates then, I think "law school friend" is more precise.

The description continues:
Under Pataki, the Empire State Development Corporation (ESDC) was directed to take 22 acres in Brooklyn for Ratner's Forest City Ratner Corporation. In its 5 year effort (to date) to take people's private homes and give them to another private citizen, the ESDC has played every trick in the book, including supporting race baiting to soften the neighborhood.

Well, it's Forest City Ratner Companies and the pursuit of eminent domain, in the eyes of the ESDC is officially to eliminate blight, construct housing, and lead to transportation improvements, not "give them to another private citizen." As to whether the ESDC has supported race-baiting, that's a stretch; the ESDC has tolerated race-baiting at public hearings and, in its indirect support of the developer, might be said to have some connection to race-baiting by surrogates of the developer. But that's not direct support.

The description continues:
In July, 2009 the ESDC stooped to a new low by having a required public hearing on a revised project plan it was not going to release until after the hearing. Will this "outlaw organization," as it was called by one state senator, succeed in further degrading New York's Eminent Domain laws so that any well-connected billionaire can point to any neighborhood and tell the ESDC to take it for him? This landmark case may well decide the future of public corporations, the limits of Eminent Domain, and the end of huge government subsidies for wealthy corporations when times are tough on the taxpayers.

With Kevin Powell, NY City Councilperson Letitia James, NY Senator Velmanette Montgomery. Assemblyperson Jim Brennan, homeowner Daniel Goldstein, mayoral candidate and performance artist Rev. Billy, former NYCLU chief Norman Seigel, and many others.

It's possible that the AY conflict may clarify the limits of eminent domain, though it's less likely it would end government subsidies.

Starting off

It's not like the producers are alone making harsh claims. "This project represents the total subversion of the purpose of the economic development authorities in this state," asserts state Senator Velmanette Montgomery. She charges the ESDC as "acting as an outlaw operation, and it must not continue."

That narrator describes the ESDC as "perhaps the state's most corrupted public authority," which kind of obscures the issue. The ESDC is not corrupt in the sense staffers are accused of taking bribes.

Rather, the concept of the ESDC is inherently flawed--corrupted, some say--because the authority must simultaneously shepherd projects and evaluate them and because developers with an inside track can gain the benefit of its powers, including eminent domain and and override of local zoning.

"The ESDC is a private corporation that has governmental powers, with its board members appointed by the governor of New York, but on whose behalf?" the narrator says.

Not quite, it's an economic development agency set up by the legislature.

The camera points to three people and the narrator notes that they're paid by the ESDC: from the left, they're Senior Counsel Steve Matlin, Counsel Joe Petillo, and VP of Planning Rachel Shatz.

Affordable housing

Some of the information about affordable housing is misleading. Powell says, "If you're making less than $100,000 a year... this is not affordable housing."

Well, not quite. Most of the subsidized housing would be for families earning less than $100,000 a year, but as I've written, about half the affordable housing units would be "real housing for the real Brooklyn," in the formulation of the Daily News.

CM James

Council Member Letitia James gets a chance to expound, reading a statement: "It's time to put the proposed Atlantic Yards project out of its misery. Tell me why we are still considering the public financing of an arena for a private company? Why are we throwing out low-income residents and small businesses to the street, so that a private company can benefit? Mr. Mayor, Mr. Bloomberg, who do you serve? Mr. Mayor, Mr. Bloomberg, Governor Paterson, who do you serve? Whose side are you on? Where are your priorities? Where is the transparency? Where is the accountability? Where is the oversight? Why have we allowed this private company to hijack our government, particularly when this company and/or ESDC has not released documentation on this revised plan to the public for review? Why has ESDC not conducted a Supplemental Environmental Impact Statement on this revised plan?"

We then see public housing resident and FUREE activist Beverly Corbin, who points out that the public housing system faces a deficit, but developers like FCR get tax breaks. The money doesn't come from the same pots, but it does indicate priorities.

Dark comedy

The camera goes back to Rogers: "If I was writing a dark comedy about the abuse of public authority and public money, it would be hard to set a scene better than this one, which is a public hearing about a project whose details are secret and will not be revealed until after the ESDC approves it."

In the background, the red-jacketed Kathryn Wylde, executive director of the AY-supporting Partnership for New York City, casually reads a document.

Daniel Goldstein of Develop Don't Destroy Brooklyn offers a critique: "Without a site plan, rendering, cost-benefit analysis, without financing, without a construction timeline, today we have a public hearing on a phantom project."

Eminent domain

Siegel contends that the Supreme Court's 2005 Kelo v. New London decision does not support the use of eminent domain in projects like Atlantic Yards. He cites the "plurality" opinion--actually a non-binding concurrence--by Justice Anthony Kennedy, who approved the project only because the process was "not developer-driven. This project is classic developer-driven. The federal court should've focused in on that, and hopefully our Court of Appeals will."

Siegel was referencing the fact that such an argument failed in federal court; it will be a stretch for the state Court of Appeals to do so. Also, despite Kennedy's opinion, much evidence later emerged that the Kelo case was developer-driven.

Questionable process

Assemblyman Jim Brennan, who's generally no fire-breather, dismisses the process: "The ESDC is not going to pay any attention to opponents of this project. They're going to rubber-stamp this project. But the people here are going to continue fighting... until finally the state government comes to the table and presents a rational alternative."

Goldstein asks why the hearing's being held when nobody knows what the project even looks like: "Because Bruce Ratner has a December 31 deadline to issue his tax-exempt arena bonds... So Bruce Ratner's interest is being met today, while the public interest is being mocked. it's a sham process for a sham project."

Siegel follows up: "It is in fact no process. When Dan talks about it being a sham, he's understating it. What will happen inside is not a single member of the board of the ESDC will be sitting here in order to make any decision. There will be no decision-makers from the city, the state, the federal government. There will be someone who is a technocrat who will listen to the comments, will not engage. I will bet a good old Brooklyn chocolate egg cream that no questions will come to any speaker."

(Indeed, that wasn't part of the process.)

Siegel points out that, only in New York State, those challenging eminent domain can no longer go to a trial court but can only go directly to an appellate court, with no opportunity to have testimony and only 15 minutes for each side to argue.

Activist and 33rd District City Council candidate Ken Diamondstone says "we want development at Atlantic Yards, but we don't want a rip-off by Mr. Ratner and ESDC."

(Actually, there's no such thing as Atlantic Yards; it's a project, not a place.)

Other testimony

Among others testifying is the somewhat disjointed Pat Senior, who, after suggesting that the developer should participate in "workfare" if he's getting "welfare," then describes the plan as ethnic cleansing, and says she was evicted from her home "by Bruce Ratner from Queens." (In 2006, she blamed someone else.)

The race issue

The narrator returns to the charges of race-baiting, stating that "the Developer has paid and loaned money to only black-based organizations, who have in turn supported Ratner's plan." (They aren't exclusively black by charter, the membership is mostly black.)

Unidentified in the film but well-known to attendees as Tal Barzilai, a Nets fan (wearing a Nets t-shirt) from Pleasantville, NY, testifies more precisely that the Community Benefits Agreement did not allow for any people who opposed the project.

James warns that the project will not be a benefit, calling AY "a racist attempt to divide the community and convince people, and people of color, that this is their savior."

Powell says he's not brainwashed as some have charged, saying he's seen examples of displacement in Brooklyn. He then offers another stretch, saying he knows what the developer does: "If you look at what Forest Ratner's been doing in the Midwest, building casinos in places like Detroit, Michigan," offering lousy jobs.

Actually, parent Forest City Enterprises has not built casinos in Detroit but has tried to build a casino in Pittsburgh.

He said that city development issues were all linked and pointed to the battle in Coney Island--though James, for example, voted with the City Council's redevelopment plan.

Closing words

Siegel offers a money quote: "The thing I say to all of you... It's good to be smart, it's good to be right, but the most important single ingredient that I have discovered is stamina: you gotta outlast the bastards."

James declares, "I stand with those whose resolve has just grown stronger... the end of Atlantic Yards is clear... the days are numbered."

That, of course, may be wishful thinking.

The final words go to DDDB's Goldstein: "The project approved in '06 no longer exists. Therefore a Supplementary Environmental Impact Statement is needed. As you can see, we're here to comment on a project with no rendering, no site plan, no nothing. It's ludicrous, it's a farce, it’s a sham process for a sham project."

And the next steps include approval by the ESDC board and, perhaps, another lawsuit.