Desperate? Even before state files legal response, Daily News editorial attacks eminent domain case, ignores issues of blight and relative benefit

Either Forest City Ratner and/or the Empire State Development Corporation (ESDC) are extremely anxious about the pending appeal in the Atlantic Yards eminent domain case, or the New York Daily News just gets anxious on its own.

How else to explain a Daily News editorial today attacking the arguments recently filed in the Court of Appeals by the nine plaintiffs. The case will be heard October 14 and the defendant ESDC has yet to file response papers.

Surely a more cogent and comprehensive editorial could be written after the ESDC files its brief and, most likely, the city of New York and other parties concerned about not curtailing the use of eminent domain file their amici curiae ("friends of the court") briefs.

Most notably, the error-riddled editorial frontally attacks the argument that eminent domain in New York State should be limited to true public use--not "public purpose," as federal Supreme Court doctrine has evolved.

But it does not address the less sweeping argument that condemnors must make an effort to assess to relative benefit to the public and to the project proponent. After all, as the plaintiffs' brief explains, the promised public benefits are radically diminished.

Also, the editorial simply claims that the AY footprint consists of 22 blighted acres, while disregarding arguments in the appeal that a good chunk of the footprint is not blighted, and that the state evaded its responsibility, as stated in the contract for the consultant conducting the Blight Study, to analyze sales and rental trends in the area.

"Rule for Ratner"

The editorial, headlined Rule for Ratner: Court of Appeals must not rewrite eminent-domain rules on Atlantic Yards, begins with multiple lies and errors:
After losing 25 state and federal court cases against the Atlantic Yards development in Brooklyn, opponents of the project have launched their most insidious and potentially destructive legal battle to date.

First, the ruling, while it certainly would benefit developer Forest City Ratner, would be "for" the ESDC, not Ratner, and eminent domain is supposed to benefit the public. But perhaps the Daily News is inadvertently acknowledging that the project, in the end, does more to benefit the developer than the public.

There have not been 25 court cases; there have only been about half a dozen, if you lump the cases filed and/or funded by opponents Develop Don't Destroy Brooklyn with those filed by other tenants/owners in the project footprint.

There may have been 25 decisions, but the developer and allies are not 25-0, as fabulist Nets CEO Brett Yormark recently stated. After all, the Court of Appeals accepted the appeal in the state eminent domain case and, in a case less directly involving Forest City Ratner, property owner Henry Weinstein has prevailed so far in his effort to prove that his tenant, Shaya Boymelgreen, inappropriately assigned a lease to FCR.

Long=fallow land?

The editorial continues:
So desperate are they to block construction of an arena and 6,400 housing units on long-fallow land, they've asked the Court of Appeals to radically reinterpret the state Constitution.
The court must reject the petition - must resist the temptation to establish, in an act of sweeping judicial activism, dramatically different standards for the use of emiment domain.

Yes, they misspelled "eminent domain." (I sometimes make typos, but I don't exactly claim to have an infrastructure of copy editors.)

The plaintiffs can't be desperate to block "6,400 housing units on long-fallow land." First, the likelihood that the announced total would be built is low and the likelihood that they would be built in the announced decade is almost nil. After all, the ESDC has announced the possibility of a "delayed buildout," which would involve the construction of an arena and just one tower.

Also, the railyard has long been used and most of the fallow land on adjacent blocks became fallow only since Forest City Ratner's project was announced in 2003 or factories closed in the mid- to late-1990s. Several industrial buildings were converted to housing, three within the AY footprint. The Daily News is simply ignoring reality.

Would the requirement that property taken for "public use" only, rather than, as it has evolved, "public purpose," be a radical reinterpretation of the state Constitution? Actually, no. 

It would be a strict interpretation of the state Constitution but, arguably, a striking departure from the way eminent domain law has evolved nationally, given the 2005 Supreme Court decision in Kelo v. New London, which itself was based on decades-old decisions in cases involving slum clearance in Washington, DC, and land oligopoly in Hawaii.

Blight, and the role of the courts

The editorial continues:
It should respect the findings of the federal courts, which have ruled New York's use of eminent domain to foster much-needed housing is well within the bounds of the U.S. Constitution.
If changes are needed in the law, the court should, in all modesty, recognize that the Legislature is the venue for making them.
This is all common sense. What's the worry, then? That this seven-member panel - newly headed by Chief Judge Jonathan Lippman - hinted in a February ruling that it's itching to meddle with eminent domain.

Notice how the Daily News, almost certainly influenced by Forest City Ratner's framing, suggests that the use of eminent domain for the Atlantic Yards project is about building housing. The primary purpose, among several, was to remove blight.

But the likely persistence of empty lots and interim surface parking, as well as the failure to deck over the Vanderbilt Yard in a timely way, portend the extension of blight, not its eradication.

And, should only one tower be built in a timely fashion, the amount of new housing, including subsidized apartments, would hardly make up for the numbers of people displaced from the footprint and environs.

Daily News worries

The editorial continues:
Plus, the court has shown a worrisome willingness to establish state constitutional standards that go far beyond the doctrines of the U.S. Supreme Court.
That's what happened when Lippman wrongheadedly led the court into barring police in New York from using GPS technology to track suspects without a warrant - though federal authorities are free to employ the technology in surveillance. In doing so, the court denied the NYPD an important aid in fighting crime and terror.
To repeat that mistake would be a gross disservice.
Developer Bruce Ratner's ambitious plan calls for plowing $4 billion into the neglected Prospect Heights neighborhood. Twenty-two blighted acres near Atlantic and Flatbush Aves. would be transformed with thousands of apartments - including 2,250 criticially needed affordable units - commercial buildings, a school, a health clinic and a new home for the Nets. The city would be the better for it.

Again, in their zeal, the Daily News editorialists misspelled a word, in this case "critically." More importantly, Ratner wouldn't plow "$4 billion into the neglected Prospect Heights neighborhood."

The total cost of the project would now be $4.9 billion. Ratner wouldn't plow most of the money himself; the arena and the affordable housing depend on tax-exempt bonds. And the neighborhood isn't neglected.

As for whether the affordable units are critically needed, well, maybe some. A good chunk would be at or above market rates. And neither Ratner nor the state have explained how the cost per unit compares to other affordable housing project.

There would be one commercial building. It is on hold, likely for a very long time, given the low demand. The school would be built by the city and respond to the demands of new residents. And the health clinic again would significantly serve the new demand.

Naysayers

The editorial concludes:
Ratner has bought 85% of the land, but eminent domain may be needed for the few holdouts - who, by law, would receive fair value.
Not-in-my-back-yard naysayers have dogged the project with suit after suit claiming the state is illegally giving away the store in subsidizing the project. Each frivolous claim has been tossed out of court. Now the Court of Appeals is their last hope. The only way they can win, as they state in court papers, is for the judges to ban eminent domain for this type of development - and others like it.
Having taken the case, the court needs to act expeditiously, because Ratner is fighting to keep the project alive in a weak economy. Lippman must not allow the court to be drafted into a war of attrition by never-say-die opponents.
He and his colleagues must decide the case quickly. And they must make it, for the opponents, loss No. 26.

Ratner owns or controls 85% of the land, only if you count public streets not yet conveyed. And he bought the land a) under the threat of eminent domain and b) with $100 million in public assistance. 

As for "fair value," so far residential owners--but not rent-stabilized renters--have received well more than they paid, but that was with city assistance and, crucially, does not approach the increase in value for Ratner, given that the state will override zoning, allowing him to build much bigger than currently allowed.

"Fighting to keep the project alive" is a euphemism for "seeks additional subsidy." The reason the Daily News wants a quick decision is that FCR wants arena bonds issued before the end of the year, in order to gain more than $100 million in subsidy from federal taxpayers. 

Given the Court of Appeals's past record, it's likely that the decision will emerge in six to eight weeks, meaning by Thanksgiving or shortly afterward. And should the opponents--actually the plaintiffs--lose, it would not be loss No. 26.

Whatever the outcome, the loss of credibility for the Daily News continues.