Skip to main content

Public Use, Robert Moses, and the Atlantic Yards blight fight

Christopher Dunn, associate legal director of the New York Civil Liberties Union, wrote a column in the 10/26/09 New York Law Journal on the Atlantic Yards eminent domain case, headlined Public Use, Robert Moses and the Fight Over Atlantic Yards.

It was apparently written, though not published, before the 10/14/09 oral argument in the Atlantic Yards eminent domain case.

Dunn allows for the possibility that the Court of Appeals might narrow eminent domain law, though the court had long agreed that "public use" could mean "public purpose."

After attending the oral argument, I wouldn't rule it out either, but not necessarily for the reasons Dunn cites. Rather, as I describe further below, the issue might be the state's broad use of the term "blight."

Looking at the law

Dunn's column walks through a string of old cases cited in the plaintiffs' brief, then notes that more recent cases, known as Muller and Yonkers, favor the state:
Given the Court of Appeals rulings in cases like Yonkers and Muller, the legal challenge to the Atlantic Yards project faces formidable obstacles. Nonetheless, the Court chose to take the case when it could have simply let stand the Appellate Division's ruling rejecting the challenge. Moreover, as dramatically illustrated by its May 2009 ruling invalidating warrantless police use of GPS devices to track suspects, the Court of Appeals seems newly open to construing state constitutional guarantees more broadly than their federal counterparts.
Given the court's tough questioning of plaintiffs' lawyer Matthew Brinckerhoff about that line of cases, I think it's unlikely they'll overturn the lower court's decision on those grounds.

The Moses legacy

Dunn concludes with some context:
Looming over these legal considerations is the legacy of Robert Moses. Though hailed as a heroic figure during his time, public opinion has dramatically shifted about the mass relocations and neighborhood destruction caused by his public projects--made possible by the aggressive use of eminent domain. For instance, it is inconceivable to think that a proposal to build an elevated 20-late highway through the middle of SoHo and the Lower East Side, with the demolition of over 400 residential and commercial buildings, would be considered now. Yet, had it not been for Jane Jacobs and her advocacy, Moses' Lower Manhattan Expressway almost certainly would have been built in the late 1960s.

Jacobs died in 2006, one year after the Supreme Court decided the Kelo case, in which she had filed an amicus curiae brief. Though the Court in Kelo effectively eliminated the federal Constitution as a barrier to the use of eminent domain to block property seizures for private economic development, we soon will see if the New York Court of Appeals is prepared to take a different path.
Well, yes--and no.

While the state's pursuit of eminent domain for the Atlantic Yards project certainly could be seen as heavyhanded, the scale is not the same as during Moses's era.

Several dozen buildings, not hundreds, were in the Atlantic Yards footprint and most, but hardly all, were purchased by developer Forest City Ratner, albeit with public money and the threat of eminent domain.

The blight issue

While the plaintiffs made multiple arguments, including the state's alleged failure to perform a cost-benefit analysis and the use of subsidies for a project in a blighted area banned market-rate housing, the single strongest issue--if the court is looking to update eminent domain law in light of current conditions--may be blight.

I'll reprise my coverage from the oral argument.

Judge Robert Smith pointed to photographs in the Empire State Development Corporation's (ESDC) Blight Study of Pacific Street. "You glance at it and see a ruined sidewalk over here and a perfectly normal building over there. That was the boundary of the urban renewal area. What I'm really asking is: Have you gerrymandered this area to fit what the developer wanted to build on rather than take an area of real blight?”

“No, your honor," ESDC lawyer Philip Karmel responded. "The Blight Study establishes that the project site is blighted and ESDC had a rational basis for its determination of substandard and--”

Smith interjected, asking hypothetically if it was OK for a developer to ask the government to condemn a whole site even if half of it isn't blighted.

Karmel, whose brief points out that the ESDC considers most of the non-ATURA blocks blighted as well, said the 1953 case known as Kaskel v. Impelliteri--not unlike the Supreme Court's Berman v. Parker--established that blight is looked at in terms of the area as a whole. (The brief notes that it’s not up to the courts to second-guess the condemnor’s map.)

He continued by contrasting this case with one called Denihan Enterprises, in which two-thirds of a city block was to be condemned for 17 public parking spaces. "So the court said there seemed to be an inadequate nexus between the stated public purpose and what the project would in fact achieve," he said. "That's the kind of case where pretext is something that needs to be analyzed--"

Smith interrupted, pointing to a charge in the petitioners’ brief that the state did not raise the issue of blight until some two years after the project was announced in December 2003.

"That's not correct, your honor," Karmel said. He paused, slightly derailed, and began talking about the Blight Study.

"Wasn't this originally seen as a community development project" Smith asked, but blight was later needed as a justification for condemnation.

"Absolutely not," insisted Karmel. "There is nothing whatsoever in the record."

Smith acknowledged there was no direct evidence, but asked, "At the time this was announced, when people were holding press conferences, where does the word 'blight' appear?"

Karmel soldiered on, despite having no evidence from 2003. One of the two Memoranda of Understanding signed in 2005, he said, refers to the Atlantic Terminal Urban Renewal Area. "It was long known that this was an area that had previously been targeted for urban renewal."

(Plaintiffs' attorney Brinckerhoff later said that this explanation had not been in the ESDC's briefs.)

Karmel paused, trying to steer the argument, and said, "I would like to go back to this issue of pretext."

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…

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…

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 …

Forest City acknowledges unspecified delays in Pacific Park, cites $300 million "impairment" in project value; what about affordable housing pledge?

Updated Monday Nov. 7 am: Note follow-up coverage of stock price drop and investor conference call and pending questions.

Pacific Park Brooklyn is seriously delayed, Forest City Realty Trust said yesterday in a news release, which further acknowledged that the project has caused a $300 million impairment, or write-down of the asset, as the expected revenues no longer exceed the carrying cost.

The Cleveland-based developer, parent of Brooklyn-based Forest City Ratner, which is a 30% investor in Pacific Park along with 70% partner/overseer Greenland USA, blamed the "significant impairment" on an oversupply of market-rate apartments, the uncertain fate of the 421-a tax break, and a continued increase in construction costs.

While the delay essentially confirms the obvious, given that two major buildings have not launched despite plans to do so, it raises significant questions about the future of the project, including:
if market-rate construction is delayed, will the affordable h…

"There is no alternative": DM Glen on de Blasio's affordable housing strategy

As I've written, Mayor Bill de Blasio sure knows how to steer and spin coverage of his affordable housing initiatives.

Indeed, his latest announcement, claiming significant progress, came with a pre-press release op-ed in the New York Daily News and then a friendly photo-op press conference with an understandably grateful--and very lucky--winner of an affordable housing lottery.

To me, though, the most significant quote came from Deputy Mayor Alicia Glen, who, as the Wall Street Journal reported:
said public housing had been “starved” of federal support for years now, leaving the city with fewer ways of creating affordable housing. “Are we relying too heavily on the private sector?” she said. “There is no alternative.” Though Glen was using what she surely sees as a common-sense phrase, it recalls the slogan of a politician with whom I doubt de Blasio identifies: former British Prime Minister Margaret Thatcher, a Conservative who believed in free markets.

It suggests the limits to …