Monday, December 12, 2005


Gotham Gazette debate on eminent domain: the defense ignores the role of the state at Atlantic Yards

Today's issue of Gotham Gazette includes a package of articles on eminent domain. While the article in defense of eminent domain makes some valid points, it remains irrelevant to the controversy over Atlantic Yards. You can't fully blame author Jerilyn Perine, former Commissioner of New York City Department of Housing, Preservation, and Development, because her remarks were adapted from a speech, rather than written to address all the issues facing New York City today.

Her article, Eminent Domain is a Tool, Not a Conspiracy, suggests that eminent domain goes through the city's land use process:
Eminent domain is a tool. Whose hands that tool is in determines whether or not is used for what people may see as “good” or “bad.” The political process is defined by public participation or unfortunately, the lack thereof. Whether government makes the right decision or wrong decision is not a function of the tools that are wielded, but of the process.
When it comes to the issue of eminent domain, I think we are seeing a pendulum swing.
In New York City, we have a uniform land use procedure, known as ULURP, because there was the backlash against the unfettered powers wielded by Robert Moses in building roads, bridges, and other projects. The ULURP process was the people’s way of saying to their government, “Wait a minute, you cannot just make these decisions and slash through our communities.” As good and decent as roads may be, you have to ask people what they think. And there has to be a process where people get to say what they think. So our land use procedure was born.
My fear is that now that we have integrated a way for the voices of the local communities to be heard in the process – which is very good and desirable thing – that many of these voices have become advocates for community museums.

Regarding Atlantic Yards, however, ULURP is bypassed, since the project is proceeding under the state's land use process. The voices of the local communities are not truly being integrated. And the leading voice, as stated repeatedly, favors development, not stasis.

The main article criticizing eminent domain, Eminent Domain Benefits Developers, Not the Public, by Susan Fainstein, a professor and acting director of the urban planning department at Columbia University, also is adapted from a speech. Fainstein argues:
We do not ever hear that it is a public purpose to take the land of the wealthy to benefit low-income people. We never hear that eminent domain is used to take a Hyatt and build mixed income housing. The general stance is always take away land from poor people and give it to someone who is much better off.
There are alternatives to eminent domain. Private developers who want to build large projects can buy the existing tenants out. And if there are holdouts – as was the case with the one building, that refused to sell out for the Rockefeller Center development - it is possible to build around an existing location.

This may be true for part of the Atlantic Yards plan, but not necessarily for the buildings in the first proposed segment, where the arena would be built.

Fainstein argues:
I also believe that when you take a huge swath of property and try to build it all at once we generally end up with a less interesting, less textured, and less vital environment that may not produce as much in terms of economic development as a more mixed plan.
In the case of Atlantic Yards plan with the Frank Gehry buildings and the arena, developers plan on taking over not just residences, but a lot of small businesses as well. There is a tendency of people who run economic development corporations to see anything that is not big business that is not a multi-national corporation, as unworthy. Small businesses are often the birthplaces of larger businesses that drive the economy. We must always look at who benefits and who loses in cases of eminent domain.
I would be less concerned about the use of eminent domain if I thought that it was really for a public purpose, rather than for the benefit of developers. We are in an era of public/private partnerships and what typically happens is a developer comes to the government and says, “We like that property. We think we could make good use of it. Why don’t you condemn it for us.” Then the government goes through with a charade of a public process and does it.
Also the argument that these decisions should be left up to elected officials or legislative bodies is problematic. When we voted for Michael Bloomberg in the last election, we didn’t get to vote on whether we should develop Willets Point or the West Side of Manhattan, we just had to choose between two candidates.

Note that Atlantic Yards has not even been heard by a legislative body--seemingly a standard for eminent domain cases, according to the Supreme Court.

Fainstein continues:
Eminent domain can always be used for a high school or an actual public facility, but it should not be used for economic development that benefits a developer, corporation, or shopping mall operator. We use the public sector, and then rationalize it by saying the development will produce jobs and taxes.
Many of these projects also get tax abatements. So it is not even clear that they create much in taxes. And it is difficult to say whether new jobs are created as a direct result of physical development or whether it is just a movement of jobs from one place to another.

This is certainly an issue with Forest City Ratner developments; the New York City Economic Development Corporation has estimated that only 30 percent of the office jobs at Atlantic Yards would be new.

Also as part of the package, Daniel Goldstein of Develop Don't Destroy Brooklyn offers Life in the Atlantic Yards Footprint, which points out that the project avoids ULURP and argues:
Ratner already owns two mall complexes and a retail property directly adjacent to the proposed Atlantic Yards site, but has been unwilling to utilize some of his own property along with the rail yards; instead he has chosen to take other people’s property. All of the stated goals of the project could be achieved without any use of eminent domain, which is why the proposal’s opponents see the project as a land grab, abetted by government.

His article also points out that the state Empire State Development Corporation says the project would remove blighted conditions, but that state Assemblyman Roger Green, a supporter of the project, has forcefully declared the neighborhood not blighted. Now there may be a difference between the legal and colloquial meanings of the term, but that should make for some interesting arguments.

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