Skip to main content

Atlantic Yards site "blighted"? Some "reasonable difference of opinion"

Libertarian law professor Ilya Somin calls the Atlantic Yards eminent domain decision "the first major state supreme court defeat for property rights on a public use issue since" the controversial 5-4 Supreme Court decision (2005) in Kelo v. New London, in which state courts and legislatures were invited to draw on local conditions to narrow the use of eminent domain.

Somin wasn't surprised, given New York's history of court deference to agencies such as the Empire State Development Corporation (ESDC), the successful defendant in this case. He writes:
To get around this problem, the Court held that “blight” alleviation is not limited to “‘slums’ as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose” (pp. 15–16, quoting a 1975 decision).

Obviously, virtually any area occasionally suffers from “economic underdevelopment” or “stagnation” and therefore could potentially be condemned under this rationale. Moreover, even under this expansive definition of blight, the decision states that courts can only strike down a condemnation if “there is no room for reasonable difference of opinion as to whether an area is blighted.” With respect to any neighborhood, there is nearly always “room for reasonable difference of opinion” as to whether the area is “underdeveloped” relative to some possible alternative uses of the land in question. Defining blight this broadly and then deferring to the government’s determination of whether such “blight” actually exists effectively reads the public use restriction out of the state constitution.
That's essentially what Judge Robert Smith said in his dissent, as well.

Taking a look

After all, "reasonable" is a pretty broad term. Lead plaintiff and Develop Don't Destroy Brooklyn spokesman Daniel Goldstein, a press conference Tuesday, invited Gov. David Paterson to visit the "blighted" neighborhood of Prospect Heights.

Is the AY site "an extremely derelict stretch," as a Forest City Ratner attorney Jeffrey Braun claimed in court 2/7/07?

Well, courts (almost always) don't perform fact-finding, because they're not equipped to do so, but former Assemblyman Roger Green, an Atlantic Yards supporter, could've walked them around and reminded them that he said in 2005 that, "For the record, that neighborhood is not blighted."

Reasonable difference of opinion

Consultant AKRF, which conducted the Atlantic Yards Blight Study, always finds blight on behalf of its corporate and governmental clients. And, without an opportunity to challenge such a study in court with a dueling expert witness--as is possible in other states--the courts have to defer to the agency determination.

(Challenging the use of eminent domain for Columbia University's expansion, attorney Norman Siegel tried an innovative tactic, submitting his client's own expert "No Blight" Study.)

Well, here's a reasonable difference of opinion.

“I think eliminating blight such as was done in Times Square by the City of New York was commendable because there the blight really amounted to the danger of crime where people simply didn’t want to go to Times Square,” testified Philip Weinberg at an 11/4/05 New York State Assembly public hearing on eminent domain, a highly instructive session that received a virtual media blackout.

Weinberg practiced for 20 years in the New York State Attorney General's Office and was Assistant Attorney General in Charge of the Environmental Protection Bureau.

“That’s very different from going into the middle of Brooklyn and using eminent domain to build a sports stadium and some high rise buildings which will mostly be market rate housing and the rest," he testified. "To me it’s easy to differentiate. There’s always a problem in the middle, sure. But it’s easy to differentiate between those two situations.”

Building castles on air

Keep in mind that one issue raised during the eminent domain litigation--and still pending in the case challenging the AY environmental review, for which an appeal to the Court of Appeals has been requested--is the state's claim that a building fulfilling less than 60% of allowable development rights is "underutilized."

"We now hear they don’t like using 60%” of FAR as a criteria for underutilization, ESDC attorney Philip Karmel said at a 5/3/07 hearing in the latter case “You have to have a cutoff somewhere.”

That would theoretically condemn large swaths of Brownstone Brooklyn as blighted, since they’re not built out to 60% of their development rights, as I've written.

The ESDC memorandum of law called the agency’s consideration of underutilization, along with other factors, “a permissible exercise of discretion.”

But how draw the line? Interestingly, an ESDC footnote buttressing that argument cites a 1985 case, G&A Books, Inc. v. Stern, which states, “The FEIS treats the severe underuse of the land in the Project Area’s 13 acres as further evidence of blight.”

It's hard to argue that the buildings on the Atlantic Yards site exhibit "severe underuse." According to a law dictionary, “severe” means “of an extreme degree.” A building that occupies 53% of its allowable Floor Area Ratio would not seem to represent “severe underuse.”

The issue of underutilization, though raised in court papers and legal arguments in the eminent domain case, was not addressed in any of the opinions issued this week.

Comments

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

No, security guards can't ban photos. Questions remain about visibility of ID/sticker system.

The bi-monthly Atlantic Yards/Pacific Park Community Update meeting June 14, held at 55 Hanson Place, addressed multiple issues, including delays in the project, a new detente with project neighbors,concerns about traffic congestion, upcoming sewer work and demolitions, and an explanation of how high winds caused debris to fly off the under-construction 38 Sixth Avenue building. I'll have more coverage.
Security issues came up several times at the meeting.
Wayne Bailey, a resident who regularly takes photos and videos (that I often use) of construction/operations issues that impact residents, asked representatives of Tishman Construction if the security guard at the sites they're building works for them.
After Tishman Senior VP Eric Reid said yes, Bailey asked why a guard told him not to shoot video of the site, even though he was on a public street.

"I will address it with principals for that security firm," Reid said.
Forest City Ratner executive Ashley Cotton, the …

Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website Matzav.com explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…

Atlantic Yards/Pacific Park graphic: what's built/what might be coming (post-dated pinned post)

Click on graphic to enlarge. This is post-dated to stay at the top of the blog. It will be updated as announced configurations change and buildings launch. The August 2014 tentative configurations proposed by developer Greenland Forest City Partners will change, and the project is already well behind that tentative timetable.


Atlanta's Atlantic Yards moves ahead

First mentioned in April, the Atlantic Yards project in Atlanta is moving ahead--and has the potential to nudge Atlantic Yards in Brooklyn further down in Google searches.

According to a 5/30/17 press release, Hines and Invesco Real Estate Announce T3 West Midtown and Atlantic Yards:
Hines, the international real estate firm, and Invesco Real Estate, a global real estate investment manager, today announced a joint venture on behalf of one of Invesco Real Estate’s institutional clients to develop two progressive office projects in Atlanta totalling 700,000 square feet. T3 West Midtown will be a 200,000-square-foot heavy timber office development and Atlantic Yards will consist of 500,000 square feet of progressive office space in two buildings. Both projects are located on sites within Atlantic Station in the flourishing Midtown submarket.
Hines will work with Hartshorne Plunkard Architecture (HPA) as the design architect for both T3 West Midtown and Atlantic Yards. DLR Group will be t…

Not quite the pattern: Greenland selling development sites, not completed condos

Real Estate Weekly, reporting on trends in Chinese investment in New York City, on 11/18/15 quoted Jim Costello, a senior vice president at research firm Real Capital Analytics:
“They’re typically building high-end condos, build it and sell it. Capital return is in a few years. That’s something that is ingrained in the companies that have been coming here because that’s how they’ve grown in the last 35 years. It’s always been a development game for them. So they’re just repeating their business model here,” he said. When I read that last November, I didn't think it necessarily applied to Atlantic Yards/Pacific Park, now 70% owned (outside of the Barclays Center and B2 modular apartment tower), by the Greenland Group, owned significantly by the Shanghai government.
A majority of the buildings will be rentals, some 100% market, some 100% affordable, and several--the last several built--are supposed to be 50% market/50% subsidized. (See tentative timetable below.)

Selling development …