Battle of Brooklyn film prompts discussion of fighting eminent domain, New York's unfair laws, and "strange bedfellows" in the struggle
Among the issues:
--why Daniel Goldstein, a protagonist in the film and the spokesman for Develop Don’t Destroy Brooklyn (DDDB), chose to stay in his apartment rather than take a seemingly generous buyout (short answer: principle)
--why it’s tough to win eminent domain challenges in New York state and how it might change (short answer: structural bias in favor of condemnors, but a spotlight on bad practices has emerged)
--how people on the left feel about alliances with the libertarians of the Institute for Justice (IJ), leader of the national fight against eminent domain (short answer: fine, and maybe liberals who support eminent domain should think again)
From left: Christina Walsh, IJ organizer; filmmaker Michael Galinsky; Bob McNamara, IJ attorney; Norman Siegel, attorney challenging eminent domain; psychiatrist Mindy Fullilove; and film protagonist Daniel Goldstein.
(Photo by Adrian Kinloch, part of a set).
While filmmakers Galinsky and Suki Hawley are aiming at a 90-minute film, surely the complexity and length of the fight—six-plus years and counting—would be served even better by a longer film, even a mini-series. The half-hour screened last night was almost exclusively concerned with the first half-year or so of the emerging story. (Fun fact: Atlantic Yards was announced exactly six years previously: 12/10/03.)
The power of film
I was following the story from a distance, but I’ve since seen enough of the clips so that it wasn’t a complete surprise. (Trailer below.)
Still, there’s an undeniable power to watching the initial press conference, in which city and state officials gather with Bruce Ratner, Frank Gehry, and investor Jay-Z to promote the project, with Borough President Marty Markowitz—jowlier than now—expressing his heartfelt thanks and Ratner pledging he’ll bring the Nets to Brooklyn “if it’s the last thing I do.”
(Yes, there were hisses from the crowd at Ratner and Markowitz.)
There’s FCR spokesman Bruce Bender unctuously explaining the benefits of the project and declaring that, if all goes well, we’ll see an arena in a couple of years. And there’s Markowitz at the 2004 State of the Borough address wearing a Nets jersey and shooting a basket.
And there are already hints of the class and race tensions evident in the story, with then-Assemblyman Roger Green at one point seeming to express concern about the project while declaring that a Community Benefits Agreement is the solution—and Darnell Canada, a founder of BUILD (Brooklyn United for Innovative Local Development) flatly declaring that he’ll support the project if it helps his community.
(The issue there is jobs; affordable housing and ACORN have not even emerged in the first half-hour.)
City Council Member Letitia James gets some screen time expressing her implacable opposition to the project, but the leaders of the opposition are Goldstein and Patti Hagan (left; photo by Tracy Collins), the latter of the Prospect Heights Action Coalition, who—and perhaps we’ll see more about this in the film—was removed from the DDDB steering committee after internal tensions.
Hagan and Goldstein
Hagan, explained filmmaker Galinsky (right, photo by Kinloch), was his entrée into the film; he’d seen posters she put up warning about the Atlantic Yards plan. He called her and said he’d start filming in half an hour; hence the scene of Hagan doggedly trudging through snowy sidewalks, laden with bags.
Hagan lives near but not in the Atlantic Yards footprint; she suggested to Galinsky that one of the condo owners (as opposed to business owners or renters) seemed likely to resist Ratner’s buyout offer. “She said, ‘There’s this one guy, Dan Goldstein, I think you should meet him… he’s a fighter.’” And Galinsky and Goldstein were already friendly.
The Daniel Goldstein of 2004 is still something of a neophyte activist, clean-shaven (as opposed to goateed) and somewhat unsteady during a public speech at a rally. At one point, he says to the camera, “I think I like this.” So he clearly embraced the fight as a challenge.
Near the end of the first half-hour, Goldstein expresses hope his neighbors will resist the buyout. But then comes the big offers and the Daily News headline “Bonanza.”
There’s so much more. For example, missing from the first third was Jim Stuckey, FCR’s initial point man on AY, but presumably he’ll emerge in the sections on public meetings in late 2004 and 2005.
The discussion: why to watch
Moderator Christina Walsh of the Institute for Justice said, “All of us at IJ are really excited about this film…How masterfully it depicts the horror and outrage of eminent domain abuse.” She noted that, unlike all but a handful of states, New York had yet to reform eminent domain laws.
Goldstein commented, “It’s a little bit—it’s a lot embarrassing when people suggest that this massive fight is about me or my efforts.” He noted that it involves “literally hundreds, or thousands of people”
That’s true if you count supporters and donors, but the AY opposition wouldn’t be the same without a full-time activist with press, graphic design, and webmastering skills—and who could serve as an eminent domain plaintiff.
Galinsky said the frame of the film was a matter of storytelling, to balance a personal story and the breadth of the conflict.
Attorney Norman Siegel (right), who originally represented DDDB and just won a surprising victory in the first round of the fight challenging eminent domain for the Columbia University expansion, suggested that the film is “a story not only everyone in New York should be seeing but everyone in the country should be seeing.”
(Photo by Adrian Kinloch)
He thanked Goldstein for fighting “a principled, very courageous and at times very difficult fight” and saluted Hagan for “ talking to every single person in the neighborhood.”
Root Shock and beyond
Columbia psychiatrist Fullilove, author of Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It, talked about the damage eminent domain has done to communities she’s studied, such as the Hill District of Pittsburgh, and stressed the importance of strong communities to peoples’ lives and health.
(I’d suggest that Atlantic Yards is not exactly a parallel, given the relative size of the groups of people displaced, but rather involves a larger question of urban planning and the decision to privately upzone a piece of land without consulting the community.)
New York in context
McNamara, the IJ staff attorney, called New York State “the worst abuser of eminent domain in the United States and believe me, that is a difficult race.” He noted that even a bill aiming to create a study commission on eminent domain failed. “It is abundantly clear that something needs to be done… New York’s system is fundamentally broken.”
He said that too often it’s the case of “politically powerful developers and political appointees, teaming up… promising to build castles in the sky,” and cited the aftermath of the Supreme Court’s 2005 5-4 Kelo vs. New London case, where eminent domain was upheld but nothing was built.
(Photo by Adrian Kinloch)
He said the hardest part of his job was not dealing with adversaries like government lawyers or unsympathetic judges: “It’s trying to find people who are willing to stand up and say ‘stop.’”
Walsh asked Goldstein why he fought.
Goldstein cited a few turning points, and made a curious slip.
“When Patti took me to talk with Norman Oder,” he said, meaning Norman Siegel, as Hagan, in the audience quickly corrected him. (I was sitting two rows away in his line of vision but I was not involved in closely following Atlantic Yards until the summer of 2005.)
“That was February '04, I was determined that I was going to see this fight forward. I felt that if I wasn’t going to fight this fight that fell into my lap,” he said, there was no other fight he could wage.
He said it was a little strange to be talking about it, because the fight is ongoing and, while everyone in his building is gone, others in the footprint are still fighting.
He also noted, “It was the first home I purchased, I spent quite a long time looking for it.”
(All videography by Jonathan Barkey.)
Dealing with the government
Walsh pointed to footage of Goldstein and Siegel testifying before a City Council hearing; all morning Forest City Ratner had the microphone and, after recess for lunch, only three Council Members were left.
Goldstein (right, with Fullilove in photo by Tracy Collins) said there have been “a few standout politicians,” citing James and state Senator Velmanette Montgomery, but said he didn’t have much faith in government.
“I think I had a lot more faith before we started,” Galinsky observed.
Galinsky said one issue in the film, not so clear in the first third, is “how we process media… how things are mediated for us. …It’s really about learning to pay attention.”
Siegel on Columbia
Walsh asked Siegel to discuss the Columbia case.
While savoring the victory, Siegel said, “We still have a huge challenge.” He said he’d read at least 50 years of state court decisions, “regarding the enormous deference they give to agencies like ESDC. Over and over, the courts don’t get involved, they don’t intervene… what is remarkable about last week, the record we put together, the court decided to say something, not only about the substantive issue, but also the procedural issue of eminent domain.”
He said that, as far as he knows, New York is the only state where challenges to eminent domain begin not in the trial court, where testimony under oath and cross-examination is possible, but in the appellate court, where only the written record is considered.
“In the mid-70s, our state legislature changed that process [to the current one], because they thought it was delaying development,” he said.
“When I’m in the courtroom, I’m a mouthpiece, that’s what lawyers are,” he said. “The legal part has to be connected to the community part. When I’m in the courtroom, my passion, my discipline, my anger, is because I’ve been at all those community meetings… you hear the voices of real people, and how they’re hurting because of eminent domain…Unlike Michael, I still believe the system can work. You need that coalition, the real people, together with the lawyers, the business people, the organizers, to even have a chance of winning on these fights.”
Columbia vs. AY cases
That statement might have prompted a whiff of regret from some in the Atlantic Yards fight concerning their decision to part ways with Siegel and hire a different law firm to pursue the eminent domain litigation. It also pointed to one of several factual differences between the Columbia and Atlantic Yards cases (though the fundamental question of arbitrary application of blight standards remains the same).
Because Columbia’s expansion threatens displacement of low-income residents, a significant group of local activists back the lawsuits, which are brought by a couple of local businesses and funded by one, Nick Sprayregen of Tuck-It-Away.
The Atlantic Yards fight is more complex; the state environmental review both points to displacement as well as new affordable housing and, while much of the affordable housing would be delayed and unaffordable to members of the advocacy group behind it, ACORN, the latter group is contractually committed to supporting AY, and delivers.
"We still have a huge challenge in the Court of Appeals… and Supreme Court, to give them a chance to undo what they did," Siegel said.
Reforms in New York
Walsh asked McNamara what reforms New York needs.
"New York’s system of eminent domain is deliberately designed to make it impossible" to fight back, McNamara said.
"In New York, when the government decides it might possibly someday take your land, it’s your job to sue them, and within 30 days of making that announcement," he said, noting that, until IJ got involved in a case known as Brody, the state didn't have to tell people directly but instead just publish a small legal notice.
"It ultimately boils down to this," he said. "The ESDC shouldn't be allowed to take away Daniel’s home because someone says his neighborhood is blighted. No one has to swear, no one has to testify under oath. No one has to answer a single one of his questions about why the neighborhood is blighted. The system is broken procedurally.It’s also broken substantively, in terms of [the definition of blight]."
He cited the use of a single piece of graffiti, the presence of weeds, and the concept of underutilization. "The proper word for what these properties are is not blighted. The proper word is coveted."
"It’s the legislature's job," he said, to reform the system. "And it is the court's job to step up into the void and do what judges are supposed to… to take a serious look at what’s going on in the overall context and actually exercise independent judgment."
While he said that "talking about eminent domain in New York seems like a downer," David actually won the fight against Goliath.
One audience member suggested that it was interesting to see the libertarian IJ sitting next to Siegel, noted leader of the New York Civil Liberties Union.
"I’m very comfortable agreeing with Norm Siegel," the IJ's McNamara declared.
Goldstein described a visit earlier in the day from conservative columnist George Will, an opponent of eminent domain, who's presumably writing about the eminent domain cases in New York. "I think… it’s nice to be unified, across the political spectrum, on an issue… I have enjoyed talking with everyone, from left to right, because I think the people agree on this issue, and it’s unusual."
Siegel was more blunt. "Let me cause some controversy," he said. "Liberals, generally, are not good on eminent domain. Liberals see government as an affirmative force to improve mankind. Liberals… do not respect property rights as they respect economic rights and social rights."
"Conservatives, as stereotypical statement, are distrustful of government, wind up being generally good on this issue, especially if they’re libertarian conservatives," he said. "It’s not unusual to see strange bedfellows, if you realize the common ground is distrust of government power."
Fullilove (right, photo by Kinloch) said "it’s one of those things that lead to surprising moments," noting that she'd been at a property rights conference with Hagan and her sister Schellie Hagan. "There were some moments when it was a little scary… am I going to be lynched?" But she said "it’s good to have coalitions with surprising people… that we have common ground."
Taking the buyout?
One audience member, who declared he was "a good libertarian," questioned why Goldstein didn't take a buyout when "everyone in your building sold out except you… it’s obvious they offered well above market value… I think it’s a weak point in your argument."
Goldstein, who didn't specify that he was in fact offered a significant financial gain, said the deal wasn't fair because it was "made under threat of eminent domain." Meanwhile, he said, "The last offer I was made is from the state of New York… it’s extremely lowball, forget just compensation, it’s not fair market. It’s well below what I paid for it."
And, as Siegel said in the film, Goldstein said, "it’s not about money." His neighbors were opposed to the project but couldn't deal with the fight: "I don’t blame them one bit."
Siegel said it's "not a fair question," saying that Goldstein, the plaintiffs in the Columbia case, and some businesses in Willets Point facing eminent domain have difficult struggles to stand up and fight. "We shouldn’t in any way question their motives," he said.
Goldstein added that "those buyouts came with a contract that gave up their free speech rights." Moreover, Ratner's generous offer, it turns out, came from $100 million in taxpayer money. "Now, when they compensate us, they lowball it, because it would be Ratner’s money," he said.