Oral Arguments On the Atlantic Yards Eminent Domain Case Before the Court of Appeals: ESDC Knows Blight and Economic Development are Pretextual

(Develop Don't Destroy Brooklyn supporters outside the courthouse this afternoon in Albany. Photo, by Tracy Collins, featured at No Land Grab via flickr Atlantic Yards Photo Pool.)

Off to Albany

We went to the oral argument before the Court of Appeals on the Atlantic Yards eminent domain lawsuit last Wednesday. You can read a report of our comments made outside Freddy’s Bar & Backroom, before we got on the bus to Albany. We said:

that Atlantic Yards should be broken up into multiple projects to create more jobs more quickly.

and

that New York’s eminent domain abuse standards are too lax.

(See: Brooklynites Bus to Albany to Fight Ratner, 14 October 2009, by Meredith Kennedy.)

The Morning after the Mayoral Debate

Our trip to Albany Wednesday morning, the day after the mayoral debate. Fred Siegel was saying in his column in the Post that morning that Atlantic Yards should have been a feature of the debate (a copy of the Post was on the bus).

Breaking Up Is Good To Do

Little did we know when we said “that Atlantic Yards should be broken up into multiple projects to create more jobs more quickly” that Bill Thompson would be making the same point about Bloomberg’s megadevelopments at a Crain’s breakfast the very next morning. Here is the New York Observer Story about Thompson’s remarks at that breakfast: Thompson on Mega-Development: Look to Battery Park City, by Eliot Brown, October 15, 2009. There is also video available. You probably also will want to read our thoughts on why (in addition to creating more present-day jobs more quickly) breaking up the megadevelopment project into multiple parcel will bring in higher developer bids for the MTA for its property. (See: Monday, October 19, 2009, Thompson’s Advocated Multiple Parcels (a la Battery Park City) vs. Single-Developer Mega-monopolies Should Boost Developers’ Bids.)

Illegitimate Origin in the Bed of Albany Politics

If you want an entertaining account of what it probably would have felt like for most people to be attending the afternoon Court of Appeals arguments (plus view some pictures if you click through), see Eliot Brown’s account in the Observer: Atlantic Yards at New York's High Court. Mr. Brown has one of the best lines in all the coverage offered:

A bit of background: The Atlantic Yards project is no stranger to Albany.

Which is to say that when you give an account of the project’s origins you have to explain that it was born, not so strangely, illegitimately, in the bed of politics.

Best Coverage

If you want to read what is actually far and away the best coverage of the hearing, go straight to the thorough, careful and balanced account by (of course) Atlantic Yards Report: At eminent domain oral argument, judges skeptical of both sides; court spends more time on process, low-rent housing issue than AY as sweetheart deal (Thursday, October 15, 2009). It includes some excellent embedded video, including video of Matt Brinkerhoff, the counsel for the plaintiffs explaining how he thought the arguments were received.

A Lot More Coverage and a Lack

There is a huge amount of coverage of the case available. We are fascinated that it was covered by Tokyo television while essentially being skipped over by the print edition of the Times. The Times used to cover eminent domain issues (one might even say somewhat critically). Did that coverage stop when it acquired its new headquarters through eminent domain or when it became business partners with Forest City Ratner, the company now abusing eminent domain for Atlantic Yards? Silly question! Those two events were actually one in the same, Forest City Ratner developed and co-owned the Times headquarters with the Times. (The Times has since sold out its interest.)

The Big Picture

Most of the coverage of the hearing, other than Atlantic Yards Report’s, is not that elucidating because it is confusing and tends to lose its bearing. The court’s reaction to the case is hard to gauge. As we have commented before, there is a lot of hypertechnical stuff floating around in these court environments. We think that however important it is to pay attention to technicalities when dealing with the law, it’s everybody’s job to keep their eye on the big picture. The big picture as we’ve said is that:

Eminent domain is being used pretextually and at sad cost, with no actual benefits to the public, causing blight not addressing it, for the purpose of benefitting Forest City Ratner with a self-prescribed monopoly that eliminates free market competition.

See: Tuesday, October 13, 2009, Not Accepting Pretexts To Lose Sight of What Justice Requires (AYR’s Post About the Court of Appeals Wednesday Hearing on Eminent Domain Case)

ESDC Helps Us See the Big Picture!

Read Atlantic Yards Report if you want to sort out the hypertechnicalities for yourself. If you don’t want to spend the time perhaps we can give you a quick takeaway of what the Wednesday court arguments were about. In fact, we think that one way we can do it is with ESDC’s assistance. ESDC, (the State Urban Development Corporation doing business as the “Empire State Development Corporation”) is the defendant state agency that the mega-project’s opponents are suing. ESDC knows what the big picture is and that can help us to understand what it is all about too. We shall proceed in that vein.

ESDC obviously knows what the big picture is and that’s why:

1.) immediately after the oral arguments they issued a PR statement that states simply and falsely that the project delivers “benefit”:

“We expect that the Court of Appeals will recognize the many substantial public benefits of the Atlantic Yards project, and that the court will affirm . . .”

2.) ESDC wants only as small a picture as possible to be seen. Therefore, not surprisingly, ESDC’s case is being supported by the friend of the court brief from New York City (is partner in crime) that says the NYC’s Independent Budget Office’s report calculating that the Nets arena will be a $220 million net loss for the public should not be ignored, even though that report is the only government documentation that exists of cost vs. benefit for the mega-project.

3.) ESDC brought up the question of its pretextual actions as the first question on the merits it wanted to address in its oral argument.

4.) ESDC is fighting to be legally able to use eminent domain without considering the benefits delivered to Forest City Ratner vs. harm and absence of benefit befalling the public, without the “comparison of public and private benefits” that it didn’t perform.

5.) ESDC placed an exceedingly high priority in its argument (its very first priority beginning even BEFORE defending its pretextual conduct) on convincing the court NOT to consider the case based on the merits.

Will ESDC please make up its mind: Is this case about looking at the project benefits or not? The points above should be pretty convincing about what is going on in this case. The stated reasons for using eminent domain are pretextual. There is no question that the mega-project’s “public benefits” both in terms of “economic development” and “blight removal” are indeed “incidental” [or negative]’” AND “pretextual in comparison with benefits to particular, favored private entities.”

Gerrymandering in Albany? Really Now!

Just consider the extended exchange between Judge Smith and ESDC’s counsel (Mr. Philip Karmel) during which Mr. Oder of Atlantic Yards Reports writes he was having to `stifle’ his “spit-take,” the bottom line question of which was Smith’s “Have you gerrymandered this area to fit what the developer wanted to build on rather than take an area of real blight?”* Karmel told Smith during the exchange that property desired by a developer that couldn’t be described as “blighted,” AND which (two years after the developer’s plan was hatched) could only objectively be described as having “indica of” or “one or more blight characteristics”of blight could be condemned whenever the developer included it in a larger site even though half of the larger site wasn’t actually blighted. Later on Karmel went further to say that, irrespective of any such pretextual blight, such a developer could get any “perfectly nice” “clean” piece of property with which there was “nothing particularly wrong” if a government agency (acting politically?) were to say (pretextually) that the developer wanting to take it could make that property “more vibrant” or perhaps “more dynamic.” (Or turn it into parking lots for 25 years?)

(* We should note that Smith’s “Have you gerrymandered this area to fit what the developer wanted to build on rather than take an area of real blight?” question was appropriately covered in nearly every one of the many accounts of the hearing. If you want to see what “gerrymandered” looks like written out in Japanese cuneiform characters watch the video mentioned above.)

How Lax Can NYS Go?

During the hearing, some of the judges indicated via their questioning that they didn’t know where the restriction was or should be on taking property for “public use” if economic development was the stated (pretextual) goal. If this is the lack of restriction that would be possible in New York State when a developer initiates and without restriction draws lines around property on which he wants to get a monopoly via eminent domain, then New York protections against abuse will surely be far more lax than envisioned even by the Kelo court’s opinion.

We hope that helps you with the big picture. (We thank ESDC for their help in making our case.)