From n+1, "Berman's Children": how a key Supreme Court case furthered both the eminent domain that enabled Atlantic Yards and the landmarking that shaped the neighborhoods nearby

In the latest issue of n+1, attorney Andrew Jacobs offers an intriguing take on Atlantic Yards, titled "Berman’s Children" (subscribers only), explaining how the legal doctrine that enabled the state power of eminent domain--and the not-so-transparent agency overseeing the project--also brought us the Prospect Heights Historic District, and, of course, the earlier historic districts in the radius of the development site, thus creating enduring tensions from an expansion of state power.

"Efforts to designate the Prospect Heights Historic District began in 2006 and came to fruition in the summer of 2009," Jacobs writes. "The Yards, in some sense, created the District."

Jacobs finds a thread of connection in Suleiman Osman's The Invention of Brownstone Brooklyn, who explains how postwar, post-industrial New York faced both "urban modernism and antimodern, romantic urbanism."

The former, including eminent domain, relied on experts "without electoral accountability to build the modern city." The latter, at least at the beginning, was outside the system:

As Osman writes, “The historic landscape was born in the wake of the modern projects. One could not exist without the other.”
Osman’s book is full of sentences like these, connecting the phenomena of early gentrification with a common sense of paradox. The brownstoners’ aversion to suburbia “mixed an anticorporatist critique of ‘tickytacky’ tract homes . . . with a veiled disdain for their provincial denizens.”... To Osman, our ambivalence about how Brooklyn and places like it have changed in the last sixty years is not a failure of nerve. Rather, it is a reflection of the shape-shifting motivations and actions that wrought that change. Today, Prospect Heights’ struggle against Atlantic Yards is a sort of sequel to Brooklyn Heights’ against Cadman Plaza.

Yes, but I'd add that the struggle has been much more than Prospect Heights. Organizations from equally storied neighborhoods like Park Slope and Fort Greene, notably including longstanding residents, also have struggled against Atlantic Yards. And the failure of the public sector to deliver benefits like jobs and subsidized housing has left room for private companies to proclaim public goals.

Two threads of preservationists

Jacobs notes that the initial preservationists were not looking at Brooklyn Heights:

[Preservationist Albert] Bard and his cohort at the city’s Municipal Art Society (MAS) were inspired not by the brownstoners’ organic urbanism, but by the integrated grandiosity of the City Beautiful movement, first given physical expression in The White City at the Chicago World’s Fair in 1893.
...The main reason nothing happened in the immediate aftermath of the act’s passage was that at the time, preservation didn’t have much of a constituency beyond the old folks at the MAS. Soon, though, the society began working with residents of Greenwich Village and, especially, Brooklyn Heights.

The Landmarks Law, relies on the 1954 Supreme Court case Berman v. Parker, best known for upholding eminent domain. So landmarking is a not insignificant legacy, but it's not the main one:

...Berman’s more fecund legacy lies in its extreme deference toward what constitutes a “public use” (i.e., a public purpose) in the context of eminent domain. As private entities assumed greater roles in urban renewal projects, and as the purposes of these projects crept from “slum removal” to the more nebulous “economic development”... courts cited Berman and its progeny...

Moving on to Kelo

The Supreme Court's controversial 5-4 Kelo v. New London decision in 2005 galvanized attention, outrage, and hope. Jacobs notes that, in Justice Anthony Kennedy's "concurrence — which is 'persuasive' but not binding on lower courts," the Justice tried to distinguish between "pretextual takings from those made in good faith":

In particular, a taking might show its bona fides if it were part of a “comprehensive development plan”; if “the identities of most of the private beneficiaries were unknown” at the time the plan was formulated; and if a procedure were in place to “facilitate review of the record and inquiry into the city’s purposes.”

Indeed, this is what plaintiffs in the Atlantic Yards case seized on, but it would not be easy to get courts to take it seriously. And, as Jacobs points out, Kennedy didn't quite have it right; as described by the New London Day, given beneficiaryPfizer's early involvement.

The AY legacy

Jacobs then gets to the Atlantic Yards eminent domain case (which he credits to Daniel Goldstein, cofounder of Develop Don’t Destroy Brooklyn and the owner of a now-condemned property on the Atlantic Yards site, as plaintiff, rather than added co-plaintiffs).

The federal court dismissed the case:

On pretextual takings, the court interpreted Goldstein’s argument as demanding “a full judicial inquiry into the subjective motivation of every official who supported” suspect projects like Atlantic Yards.... The court left the door open for future, Kennedy-inspired pretextual takings claims, but only where “the circumstances of the approval process so greatly undermine the basic legitimacy of the outcome reached that a closer objective scrutiny of the justification being offered is required.” That wasn’t the case here, so the court instead told the story of Berman & company, reminding us that the eminent domain power need only be “rationally related to a conceivable public purpose.” Atlantic Yards will have a public arena and (by 2035 or so) some affordable housing. Isn’t it conceivable that the state meant to benefit the public with it?

Actually, the arena is public only in name, a financing tool to engineer tax-exempt financing. Some subsidized housing should come within a year or two, but the full complement may not come for 25 years.

Jacobs, though he does cite Battle for Brooklyn, does not discuss the state eminent domain case, where other issues were raised, notably the claim that the developer drew the outline of the site, yet were ignored by the Court of Appeals majority in 2009.

The aftermath and legacy

While many states have passed reforms regarding eminent domain. "The state of New York is exceptional in its political acceptance of Kelo," Jacobs writes.

I'd suggest that the influence of New York City Mayor Mike Bloomberg and Assembly Speaker Sheldon Silver are key factors.

Jacobs concludes:

In scene after scene of the recently released Battle for Brooklyn, which documents Daniel Goldstein’s fight against Atlantic Yards, the effective opacity of today’s public-private development apparatus is on display, obscuring even the negotiation of so-called Community Benefits Agreements. In this environment, historic districting can be only a prophylactic, guarding against any more change than what’s already coming. In the end, this is how Berman’s children have grown to get along: The Yards chases the District to its room, and the District locks the door behind it.

It wasn't just Goldstein's fight, which is a not-surprising misreading of the filmmakers' decision to focus somewhat narrowly. But Jacobs does grasp an essential fact of the film (my review).

Tonight, at an invitation-only meeting organized by the Empire State Development Corporation regarding security, sanitation, and parking, there will be some transparency, and some opacity.