Thursday, November 17, 2005


Dispiriting debates: false premises (on eminent domain) and half-loaves (regarding the CBA)

On November 16, two forums featuring supporters and opponents of the Atlantic Yards plan showed the dispiriting divide that has emerged regarding this project. It's difficult to have a debate, the forums suggested, when there are such fundamental differences, in one case over the facts of the project, in another over the appropriate posture toward a powerful developer.

On eminent domain and more

(NOTE: Errol Louis sent me a followup note about my blog post: Rather than parse your highly misleading account of the recent forum at Brooklyn Law School, I am sending you a link to the taped event, so that readers can make up their own minds about was or wasn't said: mms://

A lunchtime forum at Brooklyn Law School featured Daily News editorial board member Errol Louis (a BLS graduate) and Develop Don't Destroy Brooklyn spokesperson Daniel Goldstein. The subject was eminent domain, the Supreme Court's Kelo decision, and its effects on Brooklyn. (Note that the Daily News already published a snide, error-filled editorial criticizing those who voiced concerns at the mandated hearing on environmental impact.)

Louis cited crime and poverty statistics for the general area around the site, saying "it has changed all too slowly and all too little," which disregards some of the gentrification in process. (That's not to say that gentrification solves social problems, simply to point out that Prospect Heights has been booming.) He cited Justice Sandra Day O'Connor's dissent in Kelo, suggesting that the conditions in Prospect Heights were analogous to the two cases she cited as legitimate examples of eminent domain, in which blight and oligopoly were removed.

However, the area of Prospect Heights in and around the Atlantic Yards plan is not so recognizable in O'Connor's opinion:
We are guided by two precedents about the taking of real property by eminent domain. In Berman, we upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair...In Midkiff, we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees. At that time, the State and Federal Governments owned nearly 49% of the State’s land, and another 47% was in the hands of only 72 private landowners...

The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm... Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use.

The level of blight, in its colloquial sense at least, is quite irregular in Prospect Heights--witness the expensive renovations of formerly dormant industrial structures. There has never been an oligopolist--until Forest City Ratner began buying up the neighborhood. And, perhaps most importantly, no legislative body has deliberated regarding the appropriate use of eminent domain, even if the mayor and governor have signed a memorandum of understanding regarding the project.

Worse, Louis kept talking about how the railyard owned by the Metropolitan Transportation Authority has been undeveloped for 50 years. That's true, but not an issue for eminent domain--such development would simply require an RFP and a bidding process, which is what took place earlier this year, however skewed to Ratner. Then Louis claimed "an estimate of 15,000 permanent jobs" at Atlantic Yards.

Goldstein, given a chance to respond, pointed out that the railyard was not subject to eminent domain, and it could and should be developed--and that the area could be developed even faster thanks to rezoning. He added that there might be 15,000 construction jobs--meaning 1,500 a year for ten years--and far fewer than 15,000 permanent jobs--an original promise of 10,000, now perhaps space for 2,300 office jobs, of which 700 might be new. Goldstein also suggested that the process--the avoidance of the city's land use rules, which require public hearings--was the biggest problems.

So where did Louis get his figures regarding jobs? He sent listeners to the Brooklyn Chamber of Commerce site, saying that "most of the 30,000 jobs come from Atlantic Yards." Actually, the Chamber's May 2004 Brooklyn Labor Market Review cites (p. 8) "over 30,000 jobs being generated by significant economic development projects such as store openings, which include Target, Ikea and Fairway" and "the proposed Downtown Brooklyn Plan, which involves creating over 18,000 jobs in industries such as Finance & Insurance, Banking, Information, Legal Services and Retail over the next five to ten years." And what of those 18,000 jobs? On p. 43, it states of Atlantic Yards: "It is estimated that the development will create approximately 10,000 permanent jobs at the arena and the office towers." And, as noted, that 10,000 figure has been discredited.

Goldstein also pointed out that, in the Kelo case, the city of New London did a thorough report that the neighborhood needed redevelopment, and put out the property for bid: "Justice [Anthony] Kennedy said that, when there was no legislative planning process and a favored developer, that would be a violation [of the Constitution]."

Indeed, Kennedy's concurrence suggests Atlantic Yards critics may have a legal case against the project:
There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause....

This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.

Another dispiriting failure to establish shared premises: Louis said the majority of the land in the Atlantic Yards plan is state-owned, a defense for bypassing city land use review rules. Goldstein responded that, no, "it's eight of 22 acres" (actually 8.5).

Louis called the Community Benefits Agreement "an extraordinary CBA," citing provisions for hiring minority and women workers and subcontractors, and provisions holding the developer liable if the targets aren't met. (There's ample testimony that this CBA is not legitimate.) "For the developer to have the lead here, after the city and state sat around, to me it's not all that troubling," Louis said.

Goldstein responded, "The developer should not decide the future when there are public dollars and public land involved." He noted that there's no legislative body involved, except the state Public Authorities Control Board, which would decide on state subsidies.

On the Community Benefits Agreement

A forum at the Fordham Law School featured a larger panel, with Goldstein of DDDB and Eric McClure of Park Slope Neighbors representing Atlantic Yards critics, and Charlene Nimmons of Public Housing Communities and Darnell Canada of Rebuild representing Atlantic Yards supporters. While at the earlier forum, there was a racial divide but not a class divide (Louis is black, Goldstein white, but Louis is a lawyer), here there were both divides: Nimmons and Canada are black and spoke the language of grassroots empowerment, while Goldstein and McClure are white emphasized the lack of a fair process.

The issues of race and class are far more complex--there are notable black elected officials opposing the project, such as City Councilwoman Letitia James and State Senator Velmanette Montgomery--but, as law professor Brian Glick put it, the community groups supporting the plan are from more outlying areas, largely working class and communities of color, while those opposing it are from closer to the project footprint and more middle-class and white.

Nimmons, who pointed out that some public housing residents live right across the street from the project footprint, cited "the importance of looking for opportunities" and how "we're now on the inside looking out." Her group is a signatory to the Community Benefits Agreement. Canada, who is not a signatory but whose group (assisting former prisoners) is a beneficiary of the CBA, said he supported the project because it would bring jobs to an economically depressed area (he cited "71-72% unemployment," a statistic that may have come from James Caldwell's numbers regarding public housing). "I support the project because this is a new way to help communities grow," he said.

Left unsaid were how many jobs would actually be created--as well as how much it would cost to create each job. The project, billed as "Jobs, Housing, and Hoops" is mostly luxury housing. Yes, jobs are created by housing construction, but they don't necessarily justify a $1.1 billion (estimate by Forest City Ratner's Jim Stuckey; see my report) public investment over 30 years.

McClure said Park Slope Neighbors supports development--the railyard is a "scar"--and suggested that affordable housing be mandated through zoning rather than relying on incentives. "We're support transparency and openness, which are more or less absent in this project." Goldstein said DDDB also supports jobs and "truly affordable housing. Where we differ is how it's done."

"it's a false debate: Ratner or nothing," Goldstein observed. He noted that the CBA regarding the Staples Center in Los Angeles involved 25 organizations, groups that were opposed to the project or troubled by the project, unlike the Atlantic Yards CBA, where the groups involved supported it from the beginning. He suggested that, in this situation, the city and MTA should have met with the community and put out an RFP for development. "Here, the developer proposed it and framed it."

Canada, who made a distinction between two kinds of people--John F. Kennedy and racist Birmingham police chief Bull Connor--said he looked upon developer Bruce Ratner "as a JFK." He acknowledged, "It's not the best CBA we could have, but it's the first. It's one we can work with." Earlier, Nimmons had said, "We're in support with some concerns."

McClure commented on how the threat of eminent domain is forcing out homeowners and suggested that the premise that eminent domain could increase tax yields could lead any residential property to be replaced by a higher-yielding McDonalds or big box store.

Nimmons observed, "When you know condemnation is prevalent, you don't take residency in such property." She also criticized public officials who support the Downtown Brooklyn Plan, which includes eminent domain, for opposing Atlantic Yards. (The former, however, emerged from a city process.)

Was this forum an example of a tactical shift, as Lumi Rolley observes on NoLandGrab, in which project supporters say they have concerns about the CBA or didn't initially support it? Possibly. But the two most prominent supporters of the CBA would have trouble distancing themselves from developer Forest City Ratner. ACORN is contractually obligated "to take reasonable steps to publicly support the project." And BUILD has received money from the developer even while denying it.

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