What a law review article gets right, and wrong, about the objections to Atlantic Yards and the perils of anticipating faster change than actual

Vanderbilt Law School Professor Christopher Serkin, a former Brooklyn Law School professor, in February 2021 published The Wicked Problem of Zoning in the Vanderbilt Law Review.

Serkins sugggests that the speed of perceived development change, more than the change itself, is what drives opposition, and uses Atlantic Yards as an example. 

I think he makes some good points, but also misses some key elements of the Atlantic Yards story, notably that the project Brooklyn neighbors have grown to live with is hardly what was planned, promised, or pending.

Here's the abstract:

This essay is part of the Vanderbilt Law Review Symposium, Wicked Problems. In real-world zoning disputes, existing residents often oppose change. Development proponents respond with accusations of “opportunity hoarding.” Zoning is the battleground, and both sides act as if it reflects a zero-sum binary choice: more development or less, neighborhood transformation or preservation. But zoning fights usually implicate a much broader set of concerns because local governments use zoning for many different reasons, from planning to municipal finance, preservation, exclusion, and others. This Essay identifies the many different goals that zoning can serve and argues that zoning disputes are seldom as simple as pro-growth or anti-growth; they are wicked problems where the very goals are contested. The Essay argues that zoning disputes are easier to resolve by focusing more explicitly on the pace of neighborhood change. Slow, deliberate, incremental change interferes less with people’s expectations than does rapid, dramatic change—even if the end result is the same. Zoning, when properly implemented and designed, should give communities time to absorb changes gradually. But zoning should facilitate change and not lock in the status quo. In other words, using zoning to moderate the pace of community change can act as a lubricant to some development by lowering the stakes for community opposition and protecting incumbent expectations. People should not expect zoning to prevent change, but people can reasonably expect that changes will happen at an appropriate pace.

(emphases added)

The Atlantic Yards reference

Serkin writes:

People are often wrong about what will bother them in the future and do not accurately predict how quickly they will adjust to change. Faced with some large new development next door, neighbors often react with hostility, imagining that they will wake up every morning mortified by the changes to the neighborhood. They imagine some new eyesore blocking the horizon and changing the character of the community; one day, they live in their bucolic neighborhood surrounded by people they know, and the next day they do not. That would, indeed, be jarring and dislocating. But they are likely to be wrong.

One extreme example is the fight over Atlantic Yards in Brooklyn, New York, an expansive uncovered rail yard in the heart of downtown Brooklyn. In order to spur revitalization in the area, New York City partnered with a developer, Bruce Ratner, to develop the entire area, including the construction of the Barclay’s Center to house the Brooklyn (then New Jersey) Nets basketball team, massive new residential towers, hundreds of thousands of square feet of commercial office space, and other elements. The envisioned changes to the neighborhood were dramatic. And it engendered commensurate opposition. Legal and political battles broke out, challenging the use of eminent domain, the bidding process, and the new vision for the area. A local theater company produced a musical detailing the community outrage. Local protests spread throughout the city and even the country. “Develop Don’t Destroy Brooklyn” T-shirts popped up everywhere, hipster status symbols objecting to the scale of the development and the gentrification it was sure to bring.

That's not a fully accurate summary. Crucially, it's not an "uncovered rail yard," because simply developing over the rail yard would not have required displacement or eminent domain; rather, the rail yard occupied some 8.5 acres of a 22-acre site. 

And only a fraction of the railyard--the at-grade parcel that occupies about half of the arena footprint--has been used, while the rest awaits an expensive deck.

The location is Prospect Heights, in the area of Atlantic Terminal, rather than the "heart of Downtown Brooklyn," though arguably the arena block extends Downtown Brooklyn.

Crucially, the city did not partner with the developer, since that would've triggered the city's Uniform Land Use Review Procedure, including a vote by the City Council. (That said, the city was supportive, and delivered $205 million in direct subsidies.) Rather, the choice to use Empire State Development, a gubernatorially controlled state authority, bypassed local voices.

The issues went beyond scale and gentrification to include the city and state's willingness to defer to the developer, and the absence of democratic input.

But yes, the envisioned changes were dramatic. 

Indeed, part of the (over?)reaction to Atlantic Yards, upon its unveiling in December 2003 and then especially when it made front-page New York Times news in July 2005, is that it was unwisely presented as a fait accompli, a project depicted in full, rather than as something that would appear at best in a decade and, as it turned out, over many decades, now with 2035 as a more likely completion date.

The aftermath

Serkin writes:

Retelling that story is not important here. What is important is what happened afterwards. Many of the opponents’ pessimistic predictions in fact came to pass. Promises to include affordable and inclusionary housing turned ephemeral. Gentrification dramatically changed the mix of nearby commercial uses. Property values increased. And yet, ten years later, the development has become just part of the city’s background. Neighbors may still get annoyed on hockey night, but many nearby residents—including some of the most ardent opponents—now no longer notice the changes the development brought. Certainly, some communities were displaced, and other harms are simply invisible. But the hysteria has largely disappeared, and some have even embraced the space. Given enough time, neighbors’ expectations adapted to the new urban landscape.

Well, yes and no. Retelling the story is not unimportant, because the details matter.

Yes, the impact of the Barclays Center arena is less than feared, in part because the arena was downsized, New Jersey fans of the Nets lost allegiance and decided not to drive, and four towers were not built simultaneously around it.

Moreover--news flash--the project's not close to finished. Even with significant Downtown Brooklyn development, a fully built out Atlantic Yards/Pacific Park, which awaits six towers over the MTA's Vanderbilt Yard and one or (more likely) two at Site 5, will be a giant entity, with unclear impacts and effects.

Yes, neighbors' expectations have adapted. Given the rezoning of Downtown Brooklyn and the push for larger buildings nearby, such as the so-called M-CROWN zone east of Vanderbilt Avenue, there is greater acceptance of more density, as well as an evolving population.

The question remains, however, whether 6,430 apartments in 22 acres, with the limited open space serving mainly to serve the new residents, will--even with those new expectations--work as an urban entity. Planner Ron Shiffman, for example, thinks not, and last year recommended a revamp.

The importance of adaptability

Writes Serkin:

This adaptability to change is backed by psychological literature. A number of studies of consumer behavior have demonstrated that humans do not do a very good job predicting future happiness and unhappiness. People expect that some new purchase will bring them joy, and while it may momentarily, such emotions tend to be much more fleeting than people expect. The same is true of harms. Studies of hedonic adaption suggest that people adjust to new realities—including even catastrophic injuries—more quickly than they might predict. 

This does not mean that people’s preferences or objections should simply be ignored. Housing advocates can point to examples like Atlantic Yards and argue that people will adapt to change, so their hostility should be ignored in the planning process. That argument goes too far, however, because the harm is real even if impermanent. Community transitions impose costs, and regulating the pace of change can minimize those costs.

What's also missing is the dashed hopes of people who sought jobs and housing.

Regulating the pace of change

As a solution, Serkin points to "zoning tools that regulate the pace of change," including "concurrency, or adequate public facilities ordinances."

He writes:

Nevertheless, concurrency (and the related adequate public facilities doctrines) is one of the few land use regimes that focuses explicitly on the pace of change, not simply on the amount of change. As a result, concurrency can be easily repurposed to ensure that growth does not outpace community expectations for stability instead of merely infrastructure capacity. Local governments should engage in planning not just around the amount of development to permit but also the timing of that development in order to navigate the thin path between encouraging development and protecting stability.

That's reasonable.

Surely, had open space and/or a school and/or other public facilities been provided earlier in the life cycle of Atlantic Yards/Pacific Park, that would've served more people. As would the city choosing to enforce existing laws against illegal parking and idling in the streets around the arena.

Those things would not necessarily have won people over, given the envisioned density, if the project is indeed built in full as approved. But they would have dampened some of the bitterness.