Skip to main content

Do the judges on the Court of Appeals read the papers and think about Kelo? If so, they have to consider their legacy

With a decision from the New York State Court of Appeals in the Atlantic Yards eminent domain case anticipated anytime within the next week or three--the next possible date is Thursday--you have to wonder: Do the judges read the papers?

Do they know the aftermath of the Kelo vs. New London case, where not only nothing was built but the company behind the plan, Pfizer, is leaving town?

The answer has to be yes to both.

(DDDB says they should also consider the Michigan Supreme Court's reversal on eminent domain.)

The court's legacy

And if they have any concern about their legacy, they should take a long pause before proceeding--as many legal observers were predicting--to simply reaffirm the state's power to pursue eminent domain.

After all, the legacy of a victory for the state could well be a basketball arena and a building or two--and a lot of vacant land serving as parking lots or "interim open space." In other words, a project ostensibly aimed to remove blight would perpetuate it.

And the airy promises of new tax revenues are simply bogus.

The link to Kelo

Thus Goldstein, et al. vs. New York State Urban Development Corporation d/b/a/ Empire State Development Corporation (or ESDC) would stand as New York State's version of Kelo, a case that generated a significant backlash.

After all, ESDC lawyer Philip Karmel acknowledged in court that state Constitutional law allows the government to condemn "a perfectly nice house" in an area it wants to improve--the situation that prompted Supreme Court Justice Sandra Day O'Connor's fiery dissent in Kelo.

And, as Noticing New York's Michael D.D. White explains, an effort in 1967 to expand the state Constitution to allow eminent domain to encompass economic development failed. But what if "blight removal" is the same thing?

(Blight was not raised as a justification for the project for more thana year and a half after its announcement.)

Differences with Kelo?

Remember, as plaintiffs' attorney Matthew Brinckerhoff said during oral argument on October 14, Goldstein looks a lot like Kelo.

Atlantic Yards is supposedly about blight removal (and other things), but, as Brinckerhoff stated, "if you look at the blight justification, it's the other side of the economic development coin. What they're saying is that there's a below-grade open railyard that is unsightly, that there are properties that are underutilized, that's the fundamental basis for the blight determination… and at the end of the blight study, it's all about whether we should revitalize this particular area, which is another way of saying, should we take these properties for economic development purposes, which was the central question in Kelo…. And if this court were to rule that economic development was not a sufficient basis for taking someone's home or property, at minimum, it would require a remand to the ESDC to make a determination whether or not there's a public use…"

And in upholding the ESDC, the Court of Appeals would be endorsing the state's very liberal definition of blight.

When courts step in

In the majority Kelo opinion, Justice John Paul Stevens noted that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

Some 43 states have passed post-Kelo reforms, according to libertarian legal scholar Ilya Somin, who doubts their efficacy. (He referred only to legislation; several states have narrowed eminent domain through the courts, as well, though there's obviously some overlap).

Courts generally defer to elected legislative bodies. But the ESDC is not anything of the sort. And if local representatives don't have a voice, then a project becomes less legitimate.

And the New York State Legislature has failed to act. Nor has Governor David Paterson even appointed a special commission to examine eminent domain, as a State Bar Association task force recommended.

The Court of Appeals can find reasons to rule for the plaintiffs as well as the defendants. It could even avoid addressing the heart of the eminent domain issue and rule instead on whether the case was filed in a timely manner or whether state subsidies in this case could be used to support a project that would be mostly market-rate housing.


We should see a decision soon, but the longer the court waits, the more nervous Atlantic Yards proponents must get. They face not one but three deadlines on December 31, as John Brennan points out in the Record.

The first deadline is to get tax-exempt bonds for the arena. Could the deadline could be extended? I couldn't pin it down, but I'd never count Forest City Ratner out when it comes to governmental lobbying.

Another deadline concerns the Barclays Center naming rights deal, though presumably that could be extended--or renegotiated--as well.

Probably the firmest deadline involves a short-term move, as Brennan writes:
The deadline for the Nets to inform the New Jersey Sports and Exposition Authority whether it intends to leave Izod Center for Newark’s Prudential Center for the 2010-11 season. That decision is likely to be influenced by whether ground is symbolically broken in Brooklyn for an arena to be completed as soon as mid-2012.


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 …

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

This graphic, posted in November 2017, is post-dated to stay at the top of the blog. It will be updated as announced configurations change and buildings launch. Note the unbuilt B1 and the proposed shift in bulk to the unbuilt Site 5.

The August 2014 tentative configurations proposed by developer Greenland Forest City Partners will change. The project is already well behind that tentative timetable.

How many people are expected?

Atlantic Yards/Pacific Park has a projected 6,430 apartments housing 2.1 persons per unit (as per Chapter 4 of the 2006 Final Environmental Impact Statement), which would mean 13,503 new residents, with 1,890 among them in low-income affordable rentals, and 2,835 in moderate- and middle-income affordable rentals.

That leaves 8,778 people in market-rate rentals and condos, though let's call it 8,358 after subtracting 420 who may live in 200 promised below-market condos. So that's 5,145 in below-market units, though many of them won't be so cheap.


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 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…

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…

Atlantic Yards/Pacific Park in 2017: no new towers, unfilled affordable units, Islanders prepare to leave, project timetable fuzzy

My 2018 preview.

It was another wait-and-see year for Atlantic Yards/Pacific Park, with one big twist--the beginning of a slow goodbye for the New York Islanders--but continued delays for towers, a lost (mostly) 421-a subsidy for condos, and new skepticism about unfilled not-so-affordable housing units.

So ongoing questions linger regarding the project's pace, affordability, and even future ownership.

In my 2017 preview, I predicted--not exactly going out on a limb--that two and likely three more towers would open, though it would be unclear how fast they'd lease up and sell.

Indeed, we've learned that the middle-income below-market units at 461 Dean (which opened in 2016) and 535 Carlton have leased very slowly, while it's too soon to assess progress for commensurate units at 38 Sixth. (At 535 Carlton and 38 Sixth, middle-income units make up half the "100% affordable" buildings.) Meanwhile, many apartments are up for rent at the 550 Vanderbilt condo buildin…