Award of No-Bid Mega-Monopoly Means Forest City Ratner Hopes To Claim an Awful Lot of Housing Subsidy, ALSO Without Bid

(Above, a housing subsidy schedule for the Atlantic Yards mega-monopoly from which a greater total for subsidy figures can be calculated. Click to enlarge.)

Forest City Ratner is looking to glom onto an awful lot of housing subsidy with respect to its proposed Atlantic Yards megadevelopment. If you’re interested in knowing how much, this article attempts to close in on that figure. It’s in the neighborhood of about at least half a billion dollars, probably a fair amount more and the transaction has been set up so Forest City Ratner can blackmail the public for that money.

Atlantic Yards Report FOILs Atlantic Yards Arena Bond Sale Closing Documents

Thanks to the assiduous Freedom of Information Act work and analysis of Norman Oder, who is posting Atlantic Yards Closing documents on his Atlantic Yards Report, we are getting a much more detailed picture about how beneficial the mega-project deal is intended to be for Forest City Ratner. With each new unveiling of documents and the accompanying analysis we see more evidence confirming that the dominant purpose of the mega-scheme being effected by public officials is to serve the developer’s interest. See AYR’s January 26, 2010 (Tuesday) roundup article with it compilation of links, A round-up of news generated by the master closing documents (also covered by Develop Don’ Destroy Brooklyn: The Master Closing Documents, Revealed, 1.26.10), which links we are duplicating below (all seven articles were posted Monday, January 25, 2010):

• New documents hint at potential affordable housing dodge: "all-affordable buildings" with no low-income units, but subsidized units at market rates

• Is new subway entrance to arena block worth $50 million (as MTA claimed)? New mortgage doc says $28 million covers entrance plus Carlton Avenue Bridge

• Did the city give Forest City Ratner $31 million more for arena land? Despite previous reports, the answer is yes (Updated)

• Gotta get paid: BALDC bond issue fee dwarfed by payments to bond counsel and underwriting counsel

• Finally, in landlord-tenant agreement, an official grant of arena naming rights; was there one in January 2007?

• Agreement says Forest City Ratner must reinforce subway supports on its own dime, but does anyone know how much it would cost?

• More details on the arena block, thanks to a new schematic, with building envelopes

See also (more recently):

• Wednesday, January 27, 2010, Despite promise of ten-year AY buildout, ESDC deadlines allow 12 years for Phase 1, 15 years to start platform, 25 years for full project

HDC’s $144 Million Second Mortgage Subsidy For Not Much Affordability of Units In Return

The first of those articles listed above is the one from which we obtained the “Combination Housing Subsidies”schedule appearing in the image at the beginning of this post. That schedule provides a better window than we have had before on the amount of housing subsidy Forest City Ratner will be angling to obtain by virtue of the control that government agencies are giving Ratner (without any true or effective bid) over a vast mega-monopoly of prime Brooklyn real estate. (Monday, January 25, 2010, New documents hint at potential affordable housing dodge: "all-affordable buildings" with no low-income units, but subsidized units at market rates.)

The “Combination Housing Subsidies”schedule sets forth a number of possible occupancy “scenarios” for the project but only one of those scenarios, “Scenario #1,” matches (with some discrepancies) the proposed occupancy of the mega-project that people have actually been talking and which was theoretically negotiated to the community’s benefit by ACORN. We say “theoretically” because the occupancy consists essentially of:

• Affordable low-income units that are required by the tax code and would have to be in the project anyway.
• An income band (right above the income bands that the federal tax code will require) where families with incomes from $38,407.00 or 50% of AMI to $46,087 or 60% of AMI would specifically be ineligible to get affordable units in the mega-project, and
• Units above that specified income band that would be essentially what you could expect the market, unassisted by subsidy, to provide in the area.

See our own graphic above (click to enlarge) showing that occupancy. For more analysis on this (including the fact that neither Forest City Ratner’s Executive VP Mary Anne Gilmartin nor ACORN’s Bertha Lewis, currently the CEO, were willing to explain why an occupancy schedule so favorable to the developer was negotiated) see: Wednesday, July 29, 2009, First Day of ESDC Hearings on New Sight-Unseen Version of Atlantic Yards: Some Noticing New York’s Testimony and Questions Asked, Thursday, July 23, 2009, The Hit and Miss of Last Night’s Public “Information” Meeting on Atlantic Yards, Friday, April 10, 2009, As AMI climbs, a significant slice of Atlantic Yards "affordable housing" seems to track market, Thursday, April 2, 2009, Jane Jacobs Atlantic Yards Report Card #14: Project Creates Population Diversity? NO

(Below the official schedule of income and rents released in July 2006 by Forest City Ratner showing adjustments for family size and not explicitly showing the missing income band denied affordable housing. It uses earlier, lower, out-of-date income figures and rents. Click to enlarge.)
To read more about how ACORN essentially shilled for FCR by negotiating no real public benefit, see: July 24, 2008, Falling Acorn! How Far from the Tree? and Saturday, June 28, 2008, Selling out the Community for Beans (A Giant Wrong).)

How much is this so-called “affordable” occupancy that is so favorable to the developer going to cost public agencies in terms of the housing subsidies Ratner intends to garner by providing it?

Calculating $144 Million

The “Combination Housing Subsidies”schedule sets forth an example that lets us know about how much some of that subsidy from coming from the new York City Housing Development Corporation will be if you just do a little calculating. For a building of 400 units it will be $12,800,000. Since Forest City Ratner is actually supposed to build 4,500 non-condominium units receiving that subsidy the total cost of this particular subsidy would come to $144 million. That’s if Ratner fulfills its theoretical obligation to build these units. The “Combination Housing Subsidies”schedule contains at the top a mathematical example of how the subsidy would be calculated although the example contains an obvious typographical error that needs to be corrected with respect to the math:

For example, if the first tower built on the Arena Block contains 400 residential units under Scenario #1: where 50% of the units (200 units) would have rents set at market rate, 10% (40 units) at 150% AMI, 10% (40 units) at 120% AMI, 10% at 80% AMI (40 units), 17% at 48% AMI (68 units) and 3% at 38% AMI (12 units), and the associated subsidy would be $12,864,000 [sic, actually $12,800,000] in HDC/HPD 2nd mortgage subsidy ($65,000 x 40 at 120% AMI, $85 x 120 units at or below 80% AMI).

Adding the $144 Million to the Total of Previously Calculated Subsidies

That, of course, is neither the total amount of the subsidy proposed to be going to Atlantic Yards nor the entire amount when it comes to just the housing subsidies. We have previously calculated the total subsides for at Atlantic Yards at between $2 to $3 billion, providing a schedule of known subsides in April of 2008 that added up $2,157,260,000 with additional unknown figures being identified but not added in. (See: Your 'Net' Loss: $2B in Taxes to Ratner, By Rich Calder, April 14, 2008.) At the time we had done some calculations of what this HDC second mortgage subsidy (which we expected) would be but we did not add in a figure for it because we were not reasonably sure what it would actually be. (We had conservatively calculated it at $110 million so we were not terribly far off from the $144 million figure it is now turning out to be.)

Arena Subsidy Calculation Needs To Be Updated

The overall schedule for all the subsidies that Atlantic Yards is proposed to be receiving needs to be updated though the $2 to $3 billion overall estimate is still basically correct. In particular, some subsidy costs respecting the arena need to be revised downward because tax exempt bonds have been issued in a lower amount than we used in our last set of calculations, while other arena subsidy amounts need to be revised upwards. The city has slipped more money to the developer, ESDC is advancing monies ahead of schedule, the MTA is getting a less desirable rail yard and it is a rail yard that may cost the MTA more in the long run because it won’t be flexible enough to meet the MTA’s real future needs, an additional $400 million in tax-exempt bonds was secretly authorized which may be used to bail out or to give the developer some extra gifts in the future. The MTA has also essentially given away for free to Ratner the right to name its subway stops in the area of the project.

Housing Subsidies When taken Alone

Let us then tally up just some housing subsidies including this new $144 million figure.

$261.25 million: We can still estimate that the cost of the tax-exempt bonds for the housing will be $261.25 million. That is the combined cost to the city ($11.47), state ($20.96) and federal ($228.82) taxpayers (NYC residents are all three) of the tax exemption of the bonds. (Unlike the calculations with respect to the arena bonds where local real property taxes are diverted to pay the bonds we do not need to include the cost of such a diversion in the total cost of the bonds to the public.)

$18 million: Next we still include an estimated $18 million for Low Income Housing Tax Credit credits, based on conservative estimated basis of $320,000 per low income unit and LIHTC of $20,000 each for 900 units.

$39.37 million: Mortgage Recording Tax Exemption- Mortgage recording tax is 2.8% in NYC- At least the residential rental portion will be exempt from the tax.

$150 million: “Atlantic Yards Carve-Out”—the provision that gave Forest City Ratner a special bonus in the revision of the 421-a tax law.

That then totals $638.67 million. It does not yet include the millions that might need to be included for sales tax exemption on the residential units. It does not include the millions the MTA has given Ratner by selling its rail yards to Ratner for substantially less than their value. It does not include the millions the state and the city are giving Ratner for infrastructure costs. Very importantly it does not include the almost inconceivably huge giveaways to Ratner by virtue of a.) allowing Ratner to acquire much of the land for the project by paying much less than its value through the abuse of eminent domain and then, b.) making Ratner the special beneficiary of a tremendous upzoning at the expense of his neighbors.

The above figure also does not include any calculations with respect to a vague and complexly conditioned “commitment to build 600 . . for-sale units on or offsite is in the final development agreement.” The building of those units is predicated upon the receipt of an unspecified amount of subsidy. The amount of that subsidy would surely exceed another $15 million or perhaps even twice that. (If there were more such for-sale units, “1000" is mentioned as an upper limit, adjust those numbers proportionately.)

Is It Possible the Housing Subsidies Would Be Less?

It is possible (though perhaps not probable) that there could be circumstances where less housing subsidy would be delivered to the mega-project than Ratner is likely envisioning. As Atlantic Yards Report’s Norman Oder points out, these involve alternate scenarios (which can be seen in the “Combination Housing Subsidies” schedule) with the provision of less “affordable” housing than ACORN and other project proponents have been telling the public to expect. Atlantic Yards Report says:

It offers several more scenarios regarding affordable housing in the Atlantic Yards project, promising affordable units with no low-income units far less affordability to the constituents of ACORN, the advocacy organization that supplied the most foot soldiers at public hearings in favor of the project.

It opens up the possibility of subsidized buildings that are "100% affordable," with the majority of units aimed at households earning 165% of Area Median Income, or AMI.

http://atlanticyardsreport.blogspot.com/2010/01/new-documents-hint-at-potential.html

Further, respecting the estimated $18 million in Low Income Housing Tax Credits, there appears to be another typo in the “Combination Housing Subsidies”schedule: It contains two statements apparently at odds with each other respecting whether Low Income Housing tax credits will be available to the project:

Scenarios 1, 5 & 6 assume that HDC will provide recycled private activity tax exempt bonds.

(Meaning Low Income Housing Tax Credits will not be available.)

and

Scenarios 1, 5 & 6 assume that HDC will provide new private activity bond cap to generate as-of-right 4% Federal Low Income Housing Tax Credits on qualifying units.

(Meaning Low Income Housing Tax Credits will be available.)

Diversion of Scarce Subsidies to Ratner

Here is what makes subsidies like the $144 million of newly calculable HDC 2nd mortgage subsidy, the $261.25 million in benefit from scarce tax-exempt bonds, and the Low Income Housing Tax credit sums going to Ratner especially important: Clearly Ratner is proposed to get more than a half billion dollars in scarce subsidies that could be going to other developers and better (actually worthwhile) projects. (In terms of scarcity, all or most of the $144 million HDC is providing is coming from a limited source: Monies that come from Battery Park City luxury, market rate units that were permitted to be built in lieu of the moderate rate housing that was originally supposed to be built there.)

The transaction has been set up to enable Forest City Ratner to blackmail the public to send those subsidies to Atlantic Yards at the expense of worthier projects. This is reflective of the way that the Atlantic Yards transaction has always been structured to give the developer an upper hand and the tactics are similar to the kind of negotiating Ratner has engaged in before with respect to its Beekman Tower project.

Beekman Blackmail

Ratner twice threatened to cease construction of its Beekman Tower project. The first time was in the summer of 2008. As reported then, Forest City Ratner threatened “to halt construction of the new school on Beekman St. unless they receive a 20-year tax break from the city.” Ratner was able to blackmail the community board to get its approval because the community was at that point already dependant on plans for the school. Not a nice form of payback since it should probably be considered that placing the school in the project was a benefit to Forest City Ratner in the first place. (See: Monday, September 8, 2008, Endorsements for Paul Newell for 64th Assembly District Seat.)

The second time Ratner made threats respecting a halt construction of the Beekman Tower it was the spring of 2009 and Ratner was threatening to build the building to half its originally planned height. Publicly the halt was to negotiate a better deal from the construction companies putting up the building. Because of a change in the economic climate Ratner was able rewrite the deal more to its benefit. Though it was never acknowledged, it is also possible that Ratner was having problems getting the credit in the credit markets it needed to be able to issue the final tranche of bonds to complete the project.

The tower was being financed by bonds issued by the New York City Housing Development Corporation (the same city-controlled public authority being asked to give Ratner the bonds and $144 million second mortgage subsidy). Although a spokesman for HDC told Norman Oder that it wasn’t a big deal if the building was only half completed, the truth is that HDC would then have gotten far fewer affordable units and far less bang for buck the in return for its financing and state tax exempt volume cap. (See: Friday, March 20, 2009, If FCR's Beekman Tower faces 50% cut, what does that say about Atlantic Yards promises (and designs)?)

Ideally HDC should have been in a position where its documents would have given it the right to object to the downsizing. There might have also been reason for HDC to object to an after-the-fact squeeze of the contractor since that kind of thing can lead to problems. There were, in fact, recent severe problems at the site during a January windstorm. (See: Tuesday, January 26, 2010, Forest City Ratner’s Two Buildings In Brooklyn Heights Need to be Condemned!)

Ratner Allowed to Blackmail For Housing Subsidy By Delaying Provision of Housing

If you look at 8.8 (g) on the page 24 of the Atlantic Yards Development Agreement (See below which is taken from: Wednesday, January 27, 2010, Despite promise of ten-year AY buildout, ESDC deadlines allow 12 years for Phase 1, 15 years to start platform, 25 years for full project)
you will note that while Ratner is not excused from building housing by a failure to get housing subsidies, the failure to get subsidies does entitle Ratner to delay in providing the housing.
Atlantic Yards Development Agreement Section 8

Specifically, Ratner is entitled to eight years of such delay in providing the housing just with respect to Phase I of the project. Here is the language (emphasis supplied):

G) Notwithstanding AYDC's and Interim Developer's obligations to Substantially Complete (or cause to be Substantially Completed) the Phase I Improvements by the Outside Phase I Substantial Completion Date, so long as the Affordable Housing Application Requirements have been satisfied in each case, any Affordable Housing Subsidy Unavailability with respect to a proposed residential building shall result in a one-year extension of the Outside Phase I Substantial Completion Date solely with respect to the gross square feet proposed for Affordable Housing Units in such building in the application for financing such Affordable Housing Units, up to an aggregate of eight (8) one-year extensions of such Outside Phase I Substantial Completion Date; provided, however the aggregate gross square feet eligible for such extension for Affordable Subsidy Unavailability shall in no event exceed 450,000 gross square feet in any year.

Ratner’s Ability to Pay An “Option Renewal Fee” In Order To Not Complete Within Originally Specified Decades

While Forest City Ratner is theoretically entitled to a total of eight years delay in the delivery of housing with respect to the first phase of the project, this is only the delay that Ratner is entitled to without paying for the delay. As observed by Norman Oder in the above Atlantic Yards Report article, Ratner has not only been given a very long time* to complete the mega-project without any penalty, twenty-five years in all, in addition the amounts that Ratner then has to pay for failure to complete within this specified are negligible.

(Here is the AYR summary of the specified schedule:
• six years to build the arena
• three or four years to start construction of the first tower
• five or six years to start construction of the second tower
• ten years to start construction of the third tower
• 12 years to build Phase 1 (which can be much smaller than officially promised)
• 15 years to start construction of the platform over the railyard
• 25 years to finish the project (which can be much smaller than officially promised)

ESDC in its documents has styled the amounts that Ratner has to pay for failure to meet the very generous schedule above as “penalties” which serves as window dressing to the notion that ESDC is controlling the developer, forcing Ratner to meet a schedule, but given the very small amounts Ratner has to pay when not hewing to the schedule, the amounts could better be described as payments for an “extension of Ratner’s option on the property” (very small option amounts at that). Perhaps they should merely be thought of as “expression of interest” payments. As Atlantic Yards Report puts it:

The damages Forest City Ratner faces in most cases--less than $10 million for an arena that's up to three years late, $5 million for each of three buildings if they're late--don't represent a lot of money, especially given that the developer just got a cash flow boost of $31 million to buy land.

That’s $5 million for a single building, for example the third tower on the arena block that would paid 18 years from now (the 10 years in the schedule above plus the 8 year housing subsidy extension), a “penalty” that will procure for Ratner an unspecified period of additional years. At most it would come to $80 million for all sixteen towers. Obviously, the present value of the amounts paid will be lower when paid so far in the future. We invite any of our readers to identify any time they know of when a smaller percentage has been charged for such a long-term extension of an option to develop land. Lastly, since Forest City Ratner could still threaten not to build the housing unless the “penalty”/”option renewal fee” was waived (or subsidy increased to pay for it) those amounts may never be paid at all.

Blackmailing Rather Than Bidding For More Than a Half Billion in Housing Subsidy

It is sometimes bemoaned by those who actually want sports arenas built in their cities (we think they are disastrous economic boondoggles) that the owners of sports teams make localities bid against each other for the “privilege” of having such facilities located in their cities. Conversely, normally when housing projects are proposed, their developers have to show that they would be more beneficial than alternative deals by other developers in order to claim subsidy, in essence a form of bid process. That’s the way it should be. (If ownership of Atlantic Yards were broken up it would be still be possible.) Here, however, ESDC has structured a deal where that process will be reversed. Forest City Ratner wants to lay claim to more than a half billion in housing subsidy that could (and actually should) be going to other developers. But Forest City Ratner won’t have to deliver a better project to get that subsidy. They can actually deliver a far worse, much more expensive one. Forest City Ratner won’t have to think in terms of “bidding” to get their project funded with subsidy. Because they have been given a multi-decade mega-monopoly they can blackmail the public for those subsidies. And partly because so much density has been piled on top of this site that will come with a mega-tab for the public to pay.

First Monday in October: An Open Letter to Sonia Sotomayor about Noticing an Eminent Reality

The Supreme Court began its work in September this year, but the court traditionally commences the first Monday in October. The new Supreme Court justice Sonia Sotomayor was officially seated Tuesday, September 8, 2009 and the court met immediately thereafter on Wednesday to discuss the political campaign spending regulation and free-speech case concerning “Hillary: The Movie.” (It looks like the court is restless about making some new law in this area.)

This Monday being the first Monday in October there is speculation about how much Justice Sotomayor will influence decisions coming before the court.

We thought this was an appropriate time to speak about one particular area to which the court needs to address itself. Accordingly, we write Justice Sotomayor, the court’s newest justice, this open letter concerning the need to halt the abuse of eminent domain. We know whereof we speak because New York is quite likely the worst of all the states in the union when it comes to eminent domain abuse.

* * * *

Our Open Letter to Justice Sonia Sotomayor

Dear Justice Sotomayor,

You and I have some things in common: Now that you sit on the Supreme Court, I hope that you will remember some of what we both learned from our common experiences to bring about a justice that is grounded in reality rather than denying it. Yes, I am advocating that you should let your past personal experience affect your judicial decision-making. That may sound like I am asking you to fly head-on into what was a hot button issue during your confirmation hearings but for the sake of bringing justice to a significant issue, eminent domain abuse, I want to urge you, as a judge, to remember and let your past experiences inform your future judgement.

I do not expect or urge that you break with precedent. Not at all. I am expecting that you would, as you expressed at your confirmation hearings, faithfully adhere and be fully bound by stare decisis. Indeed, despite frequent criticisms that the Supreme Court’s decision in Kelo was flawed, the guidance in this latest pronouncement on eminent domain prescribes lots of dandy principles that we think should be properly followed to steer clear of developer-initiated, developer-driven transactions that abuse eminent domain. Among them are not picking a particular developer-transferee before a development plan exists and not concocting development plans that are “of primary benefit to ... the developer,” or “only of incidental benefit to the city.” (See: Saturday, July 19, 2008, Reality Denied!)

Given all the dandy prescriptive principles that abound in Kelo, all that remains to animate the protection of the good intentions underlying those principles is to acknowledge basic truths about real life and politics in state development agencies.

The Kelo decision was decided 5-4. When your nomination was confirmed you replaced Justice David Souter, one of the justices in the majority who voted in the Kelo decision to give the government a dangerously tricky degree of latitude to take property from one private owner and give it to another for public development. The court’s ruling in Kelo, decided without a majority opinion, was reflected in a plurality opinion of four justices (in which Justice Souter joined) and far, far more important, the skeptical, cautionary concurring opinion of Justice Kennedy.

Let’s talk about what we both know about real life, and politics in state development agencies.

Common Background

You and I are both lawyers. Beyond this we both served the State of New York Mortgage Agency: You were a board member and I ran the legal department. In our respective positions we both endeavored to guide that public agency’s development policy and keep the agency on course. Our terms did not overlap: Your tenure ended in 1992: My term formally began when I assumed responsibilities for SONYMA’s Legal Department in the summer of 1993. Though our SONYMA service was not concurrent, we both served under the same chairman, we worked on the same projects and programs; we were supported by substantially the same agency staff.

Steering to Stay On Course

One cannot do a competent job in trying to keep a development agency on course unless one recognizes the very real potentiality for its going off course, departing from good policy and practice and even from the letter of the law. There are many ways for an agency to go off course and possibly violate a statute. One way is through simple inadvertence, something I think you have witnessed firsthand.

Departures From the Law

Statutes can, of course, be complex and technical and sometimes difficult to interpret. I have had the personal experience of writing legislation that was enacted, thinking I knew what it meant and then discussing it with people who wanted to interpret it differently from what was actually intended when it was drafted. This usually comes up when people are interested in interpreting an agency to have greater powers than conferred upon it by the legislature in actual law and legislation.

I have also been in situations where the law is known and easy to interpret but there is a strong pull of temptation to ignore what it says. Temptation presents itself when you know or believe that no one will challenge an agency if it steps outside the legal boundaries of the law. Generally an agency such as SONYMA does good things: SONYMA’s mission is primarily to produce affordable housing. If an Agency goes beyond legal limitations to accomplish additional good things that generally comport with the spirit of its mission it is unlikely that someone will rise up to challenge it for overstepping of a legal boundary, or that anyone would have the desire to notice. A more insidious temptation presents itself, however, when the temptation is not to do more good but to do what is politically desired. No matter how politicians may spin things, what is politically desired is not always what is good.

Politically Pulled

The pull of the political could be for something the public at large knows about and wants. Just as easily it could be for something relatively obscure. If an applicable law hasn’t been written (or revised and rewritten) to permit the acts in question it is possible those acts may lack broad-based support. That doesn’t mean that the temptation to go beyond the law for political reasons vanishes. What strengthens the temptation to go beyond the law is that irrespective of what the law actually says it has gotten to be extremely difficult to challenge public agencies. The courts often find that citizens do not have the “standing ” (a legal concept) that entitles them to legally challenge an agency. Further, the courts give a special (we would say questionable) degree of deference to public agencies’ interpretations (or misinterpretations) of their own statutes.

I have just been speaking above, in the most legal sense- in terms of statutes and case law-, but what I am saying has wider application. While most of what we have just been saying applies to keeping agencies on course to operate within the actual law, the same concepts also apply to keeping an agency on course in following what is good policy. When it comes to policy, public agencies can, for the wrong reasons, veer very far off and this is important to remember before weakening fundamental rights in deference to what is pronounce to be “good policy.”

Fundamental rights need to be protected by a fair process of fact-finding and impartial review. Neither of these exist in New York when public agencies pursue eminent domain. Increasingly, eminent domain is being abused in New York for private benefit rather than the public good.

Heart Svelt: Valuing Judicial Impartiality Over Empathy

The Senate hearing on your confirmation dealt extensively with whether your life experience should be allowed to color your judgment as a judge. To an extent, there were disavowals on your part of the potential value of life experiences. You were pressed during the hearings about your past statements regarding the extent that your past personal experiences would be relevant to the wisdom that could be expected from you on the bench. Senator Jeff Sessions of Alabama reportedly said that:

allowing background to affect a judge’s decision “goes against the American ideal and oath that a judge takes to be fair to every party.”

(See: Republicans Press Judge About Bias, by Peter Baker and Neil A. Lewis, July 14, 2009. More from this New York Times article follows below.)

You qualified and otherwise retreated from your quoted statements about how a “wise Latina woman” might reach better conclusions than white males without the same experiences. You made statements about putting feelings aside. For instance, you said:

“It was bad because it left an impression that I believe that life experiences command a result in a case,” . . “But that’s clearly not what I do as a judge.”

. . “Life experiences have to influence you. We’re not robots who listen to evidence and don’t have feelings. We have to recognize those feelings, and put them aside. That’s what my speech was saying.”

You also reportedly repudiated a statement by President Obama (made as a senator in 2005, before he voted against confirming Mr. Roberts to the court), that “what is in the judge’s heart” is critical in the toughest cases. You said:

“Judges can’t rely on what’s in their heart,” she said. “They don’t determine the law. Congress makes the laws.”

“Empathy,” sometimes considered its own virtue, had few defenders in the course of your confirmation hearings. The New York Times in its editorial recommending your confirmation said: “We wish she had spoken out forthrightly in favor of empathy, a quality President Obama has said he is looking for in his judicial nominees.” (See: The Sotomayor Nomination, July 20, 2009.)

“Empathy” lacked defenders at the hearing because it was being trumped by the value of “judicial impartiality” which took a preeminent place in the discussions. The New York Times did one of their intriguing word frequency charts for the opening statements of the Senate Judiciary Committee and the topic of impartiality predominated far over anything else, especially for Republicans but also for Democrats. (See image of chart below. Click to enlarge.)
Boiling Experience Down to “Just the Facts, Ma’am” (With Empathy Set Aside)

You explained that feelings and personal views must be subordinated to the impartiality of the law. (See: Transcript: Sotomayor Confirmation Hearings, Day 2, Published: July 14, 2009) You said:

As I've indicated, my record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. . . I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.

But there is a distinction. While feelings and personal prejudices are to be put aside, that is not the case with facts. When Senator Sessions asked you whether it is could be “appropriate for a judge ever to say that they will choose to see some facts and not others” you responded:

It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that. And in the wider context, what I believe I was -- the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others.

But in the end, you're absolutely right, that's why we have appellate judges that are more than one judge, because each of us, from our life experiences, will more easily see different perspectives argued by parties. But judges do consider all of the arguments of litigants. I have.

* * * *

I don't stand by the understanding of that statement, that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging -- they help you to understand and listen -- but that the law requires a result. And it will command you to the facts that are relevant to the disposition of the case. (Emphasis added)

Facts Don’t Escape Judicial Notice

In other words, whatever check is to be put on feelings and sympathy in order to achieve aspired- to impartiality, life experience still helps us to perceive facts, and neither facts nor the help of life experience in perceiving them should be set aside. This is consistent with the rule that some facts are allowed to be validated in our judicial system by “judicial notice,” which means that the facts need not be “proved” by litigants if the truth of them is sufficiently well known or notorious by common experience (including the judge’s) so that they cannot be refuted.

The judiciary may not yet have taken official “judicial notice” that there is corruption and politics in government but the recognition that government agencies engage in pretense rather than performing as promised or advertised is almost as commonly known (perhaps more so) as things which are readily subject to judicial notice by the courts, things like the rising and setting times of the sun.- -

Judicial Impartiality - With a Certain Added Appeal

- - Actually, the judicial system has, in effect, taken judicial notice that human systems are imperfect and that impartiality is hard to achieve: Your remarks above make specific reference to the importance of the fact that the judicial system has “appellate judges.” The reason “why we have appellate judges” is not merely because their additional“ life experiences” contribute additional perspective. Extra layers of review are a check and balance on the system designed to encourage care and impartiality.

Impartial Judicial Appointments vs. Political Development Agency Appointments

We are speaking here of the judicial system where your own confirmation hearings and the tradition of adhering to precedent demonstrate that impartiality is highly valued and reinforced. We normally think of our rights and the protections we have under the Constitution as being entrusted to the judicial system.

The world of development agencies in which we both participated is notably different. New York development agencies, particularly the uppermost levels, are traditionally staffed in large part in the most important positions by political appointees. The very top positions are, in fact, always political employees.*

(* For the astute this likely raises the question whether I was a political appointee. Although I ran the legal department at SONYMA and the other affiliated state finance agencies for more than a decade, I was not a political appointee and because I did not want to be misconstrued as being in a politically held postion I did not agree to permanently ascend to the level of Counsel. Accordingly, I ran the legal department alternately as acting counsel during the multiple interregnums between politically appointed counsels or in the number two capacity position of first deputy.)

Adjudication of Rights by Political Agencies?

New York is a state where issues of whether eminent domain should be used are adjudicated (to the extent they are at all), by politically-run agencies and not in the more impartial environment the courts could, and in fact should, provide. The process is mostly internal. There is no impartial arena for fair fact-finding. This ought to be surprising if you think about it: Remember, what is being adjudicated is a fundamental right protected by the Constitution’s Bill of Rights. The core theory of that right is to provide protection against excesses of the government. But the government is being given the right to totally control the process so as to negate any protections. The situation is actually worse, because in New York the public agencies have privatized and sold eminent domain so that it is now used for developer-initiated ,developer-driven projects. In so doing, the agencies have set it up so that it is the private developers who now ascend to this remarkable immunity from review when they violate the intent of Fifth Amendment’s protections to seize the property of their neighbors.

Tenacious Politcality

The acknowledged flat-out politcality of our New York agencies was especially in evidence recently as both the New York State governor and the mayor of New York fought against public authority reform, not wanting that politcality in any way diluted. When the governor and the mayor ran for their political offices they campaigned for public authority reform. Finally confronted with a long labored over bill to enact such reform they have opposed it. (See: Wednesday, August 19, 2009, Brodsky, Perkins fire back at objections to public authority reform raised by Paterson aide; are authorities really checked by elected officials?) The governor and the mayor are arguing that public authority board members do not, and should not, have a fiduciary duty to hew to and serve the public purpose of their agencies rather than simply taking direction from the politicians who appoint them. They also argue that when board members do wrong and breach the fiduciary duty which the board members owe to the public they should not be accountable to anyone except the politicians they are serving. It hardly makes sense: The breach of fiduciary duty we are concerned about is, after all, the bending of the purpose of public agencies to the political will of those who appointed them.

Unappealingly Political

Not only are New York citizens’ Bill of Rights protections adjudicated in the political environment of these agencies rather than what is intended to be the more impartial environment of the courts as ought to be expected, but the right to meaningfully appeal the bias of these agencies is virtually nil.

During your confirmation hearings, you mentioned the importance of the ability to appeal in ensuring fair results, but in New York the right to contest a political agency’s eminent domain policy determinations and fact-finding is highly circumscribed. Is this the way to treat the protections against abuse that are stated in the U.S. Constitution as part of the Bill of Rights and in comparable provisions of the New York State Constitution? Remember that the developers who are buying the right to use eminent domain from the state make massive political contributions to the politicians who run the political agencies.

Contesting the Notion of Popularity as a “Right” Thing

The Bill of Rights is meant to afford protections to individuals against the majority. The rights of individuals can never be protected if all it takes to snuff out those rights is deference to a political decision issuing from someone elected by the majority. With certain rights this ought to be even more self-evident than with others, eminent domain principally among them. What could protection against eminent domain abuse possibly consist of if it isn’t the ability of the individual to be protected against government, since governments generally take office via elections involving populous majorities. By definition, the individual right will always be snuffed if the political trumps principle. Ownership rights could be routinely and regularly reassigned by publicly held popularity contests.

Favoring Missed-Popularity

Frequently though, eminent domain is not driven by popularity contests but by unpopular political favoritism. The Atlantic Yards megadevelopment in Brooklyn is an infamous example of eminent domain abuse and it is exceedingly unpopular with the community.

When political favoritism drives projects we wind up with developer-driven projects, the kind of projects that according to much of the key guidance in the Supreme Court’s Kelo case should be unlawful. Justice Kennedy in his concurring opinion permitting the taking in Kelo expressed the rule that for such taking to be permitted there shouldn’t be discernable evidence of “impermissible favoritism.”

Politicians Multiple Constituencies: Voters vs. the Monied

There is political analysis that observes that politicians have more than one constituency. Politicians not only have their “voting constituencies” resident in the districts from which they must be elected; politicians also have their “dollar constituencies” and sometime only a fraction of those dollars are coming from within their districts. (See:Dollar Politics: Who Has Access To Max Baucus? by Andrea Seabrook and Peter Overby, All Things Considered, July 22, 2009) If we recognize that dollar constituencies can be a driving force in politics and we see situations where that is happening, how hard should we have to look for the discernable evidence of “impermissible favoritism” that disqualifies the legitimacy of a taking? Atlantic Yards in New York is a very strange situation indeed, where New York agencies are propping up a financially feeble Cleveland-based developer whose future, by their own reports, now rests on doing only two projects, Atlantic Yards and one other. In order to survive, the developer has invested heavily in the local political landscape.

The Stevens Plurality Opinion in Kelo

Some people think that "The majority decision in Kelo v City of New London written by Justice Stevens was wrong, wrong in its holding and wrong on its facts."

Justice Stevens did not actually write a “majority decision.” He wrote a plurality opinion. The most important opinion in Kelo is Justice Kennedy's, which was essential to the holding.* The Stevens’ opinion, distressingly superficial, is relatively weak on the law and weak on guidance but it still contains guidance which is inconsistent with the support New York State politicians give for projects like Atlantic Yards.

The Kennedy Opinion in Kelo

The pivotal Kennedy opinion in Kelo is much stronger on the law* but it was weak on the facts. In essence, Justice Kennedy, despite superior legal reasoning, was snookered because the facts upon which the court decided things, the facts he assumed, were not the actual facts in real life. This is a mistake all the Supreme Court justices can avoid in the future. Unfortunately, deciding cases on facts that do not represent real life has opened a door where, more and more prevalently, New York agencies believe that they can have the latitude to take property as Justice Kennedy allowed in the particular instance of Kelo if they can state the facts of their case as other than they are in real life. In other words, if they can tell a good pretextual story.

(* Civil rights attorney Norman Siegel was right on the law when, in the September 8, 2009 Public Advocate debate preceding the primary for Public Advocate, he said the Kennedy decision sets forth the current limitations on takings. For those struggling to understand why the Kennedy opinion is pivotal, consider this: Four justices signed onto Justice Stevens’ plurality opinion, not enough to uphold the taking. Exactly the same number, four, were prepared, without arguing the facts under discussion, to overturn and disallow the way eminent domain was used. The taking was upheld only because Kennedy voted in accordance with the reasoning of his separate opinion to uphold rather than overturn it. Kennedy voted to uphold it only because, based on his understanding of the facts, the precepts he expressed were not being violated. It can be argued that Kennedy’s precepts are not binding precedent because the exact facts relating to his precepts were not determined to be present in the case. But that dismissal of his guidance is weak since his precepts hewed so close to the actual facts of the case as opposed to being “dicta” (obiter dictum) that related to something highly hypothetical. )

Kelo Not Necessarily Emboldening

Not everyone in the development community was instantly emboldened by Kelo. Consider this 2005 advice to real estate professionals from two Chicago real estate lawyers in the Chicago office of Seyfarth Shaw LLP. law firm as they promise a brave new world where they can take advantage of broader use of eminent domain:

The challenge to real estate professionals will be conforming to the Supreme Court’’s test in Kelo, which requires that a development/condemnation plan be comprehensive, carefully considered, and not tailored to favor any one group over another.

(See: Eminent Domain: a Legal Look at the Ruling, The recent Supreme Court ruling has far-reaching implications for commercial real estate. By Jay Gitles and Scott Buser, August 2005.)

The concept above of a “comprehensive, carefully considered” development/condemnation plan is from Justice Stevens’ opinion which calls for a “carefully formulated” “ economic development plan.” We don’t have these in New York, where in ad hoc fashion the development plans for a project like Atlantic Yards are in continual flux with the only thing not changing is the opportunity to give more benefit and a monopoly to one particular politically- connected developer.

The idea expressed above that the eminent domain project shouldn't be “tailored to favor any one group over another” is from the more thoughtful Kennedy opinion. Kennedy says flatly at the outset that “transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.” Kennedy expresses the precept that “Benefitting” the developer should not be "the primary motivation or effect of this development plan" and that the benefits to the city should not be “only incidental to the benefits that will be confined on private parties.” He won’t allow “impermissible favoritism” (unless perhaps the political agencies lie well enough about it?).

Kennedy’s opinion indicates that it would importantly be a key concern if “the development plan is of primary benefit to ... the developer” or “only of incidental benefit to the city.” Rather than permit the development to originate with the private parties that will benefit, his opinion specifically looks to find, not only that the development didn’t so originate, but that substantial government funds were committed “before most of the private beneficiaries were known,” with “evidence that respondents [the government] reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand.”

Kennedy also suggests that certain takings may require a “more stringent standard of review” for a subcategory of takings where “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.” (Emphasis supplied.) In his conclusion he refers to “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.”

New York political officials have certainly gotten to that stage where the eminent domain procedures are “prone to abuse,” the transfers “so suspicious” and the “purported benefits are so trivial or implausible” that the “that courts should presume an impermissible private purpose.” The New York political officials just don’t know that they have crossed the line because they think they will be able lie well enough to disguise how they are handling the impermissible favoritism of developer-initiated, developer-driven, developer-designed megadevelopments.

Making Up the Facts

Notably, the advice of the Chicago lawyers about Kelo’s brave new world of eminent domain opportunities quoted above is restrained, so restraining that it would not permit the current practices in New York. Note, also, that the advising lawyers did not, in the 2005 article, advise real estate professionals that they could simply make up and decide to tell a fact-compliant story. But real estate professionals are smart, and astute real estate connivers can quickly deduce that making up facts might be a viable tactic from the advice the lawyers provided next in their article:

In providing guidance, it is helpful to review the plan and process approved in Kelo.

Connivers in the real estate industry almost certainly got extra encouragement for the making up of stories when word started getting around that in the case of Kelo “the official story wasn’t exactly true.” Whatever the debatable flaws of the Kelo decision are, the most calamitous of its flaws is the way door it opens to the telling of false stories that misrepresent government motivations.

Anyone the least bit familiar with a mega-project such as Atlantic Yards knows that it is developer-initiated and developer-driven and that the political public authorities and agencies, (the Empire State Development Corporation, the Metropolitan Transportation Authority and the City of New York) that have hosted the developer and his ambitions relinquishing their authority to him have all compliantly molded themselves to all the developer’s impulses. That among, other things, accounts for the very strange and inappropriate design of the project and for its use of eminent domain.

What happens when a developer is allowed to dictate what a project should be and to define what its benefit to the public should be considered to be?

Loopy Problems: Why It Doesn’t Make Sense To Let an Industry Self-Certify What Is In the Public Good
Why doesn’t it make sense to turn over initiation, design and the basic concepts of “desirable” project elements to a developer? Because, when it comes to making a profit, the private sector, if left entirely to its own devices, will self-certify as beneficial to the public virtually anything that garners them a high profit margin. Case in point (to make a point): sugary breakfast cereal. Analysts of the American food industry have pointed out that our supermarket shelves are disproportionately crowded with highly processed unhealthy food because there are high profit margins associated with each additional processing step. The New York Times recently reported that under a “new food-labeling campaign called Smart Choices, backed by most of the nation’s largest food manufacturers” Froot Loops cereal now has a prominently displayed label saying that it is a “smart” nutritional choice. 41 percent of the Froot Loops cereal, measured by weight, is sugar. (See: For Your Health, Froot Loops, September 4, 2009.)

The Times article quotes Walter C. Willett, chairman of the nutrition department of the Harvard School of Public Health to make the obvious point that “These are horrible choices,” representing “a blatant failure of this system” that he says “makes it, I’m afraid, not credible.” Michael Jacobson, executive director of the Center for Science in the Public Interest, an advocacy group, who quit the industry’s self-certification panel explained that “the panel was dominated by members of the food industry, which skewed its decisions.”

Add Vitamins to Poison And You Get. . . The NYC Development Analogy
Taking the analogy one step further we should note the industry was willing to self-certify Froot Loops as a good nutritional choice no matter how bad they actually are simply because vitamins were dumped into the processed mix. Quoting Mr. Jacobson explaining how bogus the basis for these panel decisions could be:

“The criteria allow foods to carry the Smart Choices seal if they contain added nutrients, which he [Mr. Jacobson] said could mask shortcomings in the food.

* *

“You could start out with some sawdust, add calcium or Vitamin A and meet the criteria,” Mr. Jacobson said.

“Affordable housing” is to New York City development and eminent domain abuse what the tossed-in vitamins are to Froot Loops. Say the magic words “affordable housing” and a pernicious to the public project like Atlantic Yards gets a pass, even if the only way that “affordable housing” would ever wind up in that mega-project is for the public itself to pay for it at a far higher cost per unit than other developments, diverting subsidy away from those more cost-efficient affordable housing ventures (that could provide a much greater number of units) that better projects and better developers can provide.
(“Smart Choice” Development? Some blessed it as such because the magic words “affordable housing” were mentioned even if that housing might not be built. Rendering by the Municipal Art Society showing the teardown of the neighborhood the Ratner project plan involves. At this point, even some of the replacement buildings shown above next to the arena probably won't come in the near future either. -Original Aerial Photograph by Jonathan Barkey.)

Escaping the Lasso of the Loop

The situation is worse though. Froot Loops are being provided through the private enterprise system where there is at least a reasonable amount of competition. In theory, this is an example of where private enterprise is working and the public is getting more or less what it wants. If you are a consumer, you don’t have to buy Froot Loops or shop in the candied cereal aisle. Not so with an eminent domain project like Atlantic Yards. Atlantic Yards and its use of eminent domain is first and foremost about monopoly. It’s about precluding competition and the options of others. The Atlantic Yards site is adjacent to other property of Forest City Ratner, thereby giving the developer unchallenged control over 30 acres of some of Brooklyn’s most valuable real estate. (In fact, jumping over to the nearby subway stops just up the line you find that Forest City Ratner’s monopolistic ownership of Brooklyn real estate continues.)

Atlantic Yards was birthed through the preclusion of allowing other developers to bid against Forest City Ratner for the site. Without that first step it never could have proceeded. The abuse of eminent domain was just a next step that was similarly about removing competition to complete the FCR monopoly. And, unlike Froot Loops, the public cannot walk away.

Ada Louise Huxtable is one of those who has described architecture as “the art we must live with.”

If you want to experience painting or sculpture it’s an option. But there is absolutely nothing optional about your experience of architecture. . . . We see an awful lot of bad buildings and I guess my life has been devoted, or a good part of it, to trying to say, `We have entitlements; we deserve better than this’

(See: Wednesday, December 10, 2008, Times Coverage of Landmarks Preservation Commission: The Pieces Needing to Fall Into Place.)

Megadevelopment mega-monopolies created through the abuse of eminent domain is an example of inescapable architecture writ large. It is not just one building whose architecture you can’t escape but swaths of buildings. And it is not just the architecture you can’t escape; it is also the commandeering of the subways, streets and avenues (in the case of Atlantic Yards those streets and avenues are literally vanishing into developer ownership), it is all the skewed planning, marketing, landlord and retail decisions made to enrich the developer at the public expense.

With Froot Loops you can avoid the abuse in the pursuit of profit by walking away from the candied cereal aisle. But with Atlantic Yards you can’t nourish yourself by instead patronizing a competitor who is more attentive to the public good: Those competitors get eliminated when a mega-monopoly developer gets to wield the weapon of eminent domain.

It must Be Presumed That Developer-Initiated, Developer-Driven, No-bid Mega-monopolies Are So Suspicious. . . .

Justice Kennedy’s opinion is clear enough. The guidance is there and there should be no problem in adhering to precedent to do the right thing. Developer-initiated, developer-driven, no-bid mega-monopolies should be so suspicious that the courts “should presume an impermissible private purpose.” Especially when, as in Atlantic Yards (as no one should be surprised), the purported “implausible” public benefits are so “trivial” as to actually be negative, representing substantial identified “net losses.” (The public agencies are incapable of producing anything resembling true and legitimate cost benefit analyses.) It should be especially suspicious when the eminent domain process, conducted by biased political agencies, is so prone to abuse that it is entirely devoid of fair fact-finding forums and involves no opportunity for impartial review.

Knocking the Less Advantaged Off the Up-Escalator in Improving Neighborhoods

One last point should be made about this kind developer-initiated, developer-driven use of eminent domain to stifle competition. Justice Thomas in his dissenting Kelo opinion observed that:

. . . extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.

Justice Thomas is right about this but he did not foresee the full extent of the injustice that would flow from developer-initiated, developer-driven takings such at Atlantic Yards or Columbia University’s expansion into West Harlem. When developers push for developer-initiated, developer-driven takings of private property they are attracted to neighborhoods that are not poor neighborhoods, per se, but to neighborhoods that are already on their way up economically, neighborhoods that are gentrifying or “unslumming,” as Jane Jacobs would say. Consequently, this kind of opportunistic condemnation winds up knocking the existing community off the up escalator so that opportunities belonging to them are seized by those doing the condemnation. The community’s opportunities can be more readily seized by the opportunistic developer when, as Justice Thomas predicts, the victims in these communities have unequal political power.

Ideological Commonality

Some have predicted that there will be little change with your arrival on the court, summarizing that you are merely a “moderate liberal replacing a moderate liberal on the court.” But we are not talking in this case about issues or principles that should divide conservatives and liberals. This is where ideologies should find common ground. All it takes is applying the Kennedy precepts to the reality of what is happening and Kennedy’s precepts should be attractive to anyone at any either end of the political spectrum. Yes, when the Supreme Court decided Kelo there was a division, which in retrospect actually seems a strange one, with conservative justices voting against an unfettered latitude on the part of government to take private property for private use and liberal justices voting the other way. Nevertheless, polls showed that most Americans disagreed with this unfettered latitude, some polls showing that the number who disagreed exceeded 90%. Such near unanimity is only possible when the ideological common ground is substantial.

Skepticism vs. Pretextual Tales

The precepts of the Kennedy opinion, handy and dandy as they are, can be meaningful only if the reality of what is happening is recognized. If political public agencies are allowed to tell pretextual tales with impunity there will be no justice and no protection of fundamental constitutional rights. If eminent domain determinations are entirely in the hands of biased political agencies and receive no impartial review as is happening in New York, the process will be deeply prone to ever-escalating abuses.

Recognizing reality takes a practical skepticism about the extent to which public agencies can be depended upon always to stay on course when politics and monied interests would pull them elsewhere. Further, without the check and balance of a review by an impartial and robust judiciary, those political agencies will, as we now see in New York, likely veer substantially.

Justice Sotomayor, having shared common agency background, I believe that you, from your own experience, therefore also share the practical skepticism about public agencies that I recommend to anyone interested in ensuring justice. Our agency, SONYMA, faced far lesser temptations than some of the other state agencies. We did not have the same opportunity for massive mischief as those agencies that wield (and now sell) the power of eminent domain. We were in an environment that was less political and did proportionateley more good than other agencies, but I am sure that you, like me, learned enough about human beings and their frailty to believe in the essential need for strong checks and balances to protect fundamental constitutional rights.

You have an opportunity. When the time comes all you need to do is recognize the reality of what is happening in our home state of New York.

City Is Rezoning So Coney Island’s Lower-Income Residents Will Have Place to Buy Back-to-School Shoes, Clothing and Stationery? Right. Sure Thing!

(Purnima Kapur, the Director of City Planning's Brooklyn Office)

Here is a mystery revealed: One of the main reasons the Bloomberg administration is rezoning Coney Island and eliminating a huge amount of amusement park area is so Coney’s lower-income residents will get something the city says those residents most desperately need: places to shop for back-to-school shoes, clothing, books and stationery. Do you believe that? Sure! Don’t believe the city even said such a thing? Read on.

Prior NYU Symposium Coverage: How Believable That the City Shrinks Available Acres to Create an Amusement District?

But first, in our last post we wrote about the Bloomberg administration’s avowal that the “primary” “objective” in eliminating a substantial amount of the amusement area at Coney Island through its proposed rezoning is “to create a new and enhanced . . . year-round vibrant open and accessible amusement district.” These quotes are from Purnima Kapur, the Director of City Planning's Brooklyn Office, speaking Wednesday, April 29, 2009 at “Which Way Coney Island? A Symposium on Its Future,” at New York University’s Arthur L. Carter Journalism Institute.

The idea that the city is eliminating amusement acreage in order to “create” an “amusement district” ought to be sufficiently counterintuitive on its face to invoke extreme suspicion, but in our initial coverage of Ms. Kapur’s symposium remarks we found additional reasons why the idea that the city is truly committed to saving Coney’s amusements Strikes us as unbelievable. Elimination of amusement acreage has always been harmful to Coney’s amusement industry before. Empirically, the city’s plan to “save” the amusement area has had exactly the opposite effect in the five years it has been pursued. Meanwhile, city “parkland” is not used for amusements as once promised but for parking lots (and the city is even proposing to de-map it.) Lastly, the city seems indifferent to preserving historic Coney Island icons. (See: Tuesday, May 12, 2009, The City to the Public: “We’ve Got Your Coney Island: If You Want It Back, Better Do Exactly As We Say. . ”)

A Main City Goal: Shopping for the Under-Employed?

Now let’s look at the believability of a second of the city administration’s averred objectives in eliminating amusement park acreage: Providing (needed) shopping for poor people. (The city says that such shopping does not now exist in Coney Island.)

At the symposium, Amanda M. Burden, the Chair of the New York City Planning Commission and Director of the Department of City Planning, set the theme by describing the Coney neighborhood as a low-income one having severe unemployment problems. Ms. Burden (emphasis supplied):

. . .Coney Island, if you don’t already know, as you’ll hear tonight, is a neighborhood of about 50,000 people most of whom live in public housing and have twice the unemployment rate as any place in the city.

Ms. Burden handed things off to Ms. Kapur, her deputy, to pick up where she left off speaking in terms of wanting to address the community’s needs, a speaking specifically about the residents’ shopping. Ms. Kapur said (emphasis supplied):

. . . . a neighborhood of 50,000 people many of whom live in poverty, many of whom live in public housing or in subsidized housing and have higher rates of unemployment and poverty compared to the rest of the city.

. . . we want to create opportunities for people who live here and continue to still live here, in terms of providing jobs but also in terms of bringing to them services that they’ve lacked. As Amanda said, what we heard, the refrain is, come September when school opens, people don’t have a place to take their children to buy a pair of shoes: They have to go out of Coney Island to do something as basic as that. Book stores, stationery, grocery stores, clothing stores: The neighborhood really lacks services and amenities that many of us as New Yorkers take for granted.

Do these remarks seem somewhat persuasive? They were directed to an audience at the NYU Journalism School, essentially members of the city intelligentsia. From what is being said, the situation of the poor at Coney certainly appears dire: They can’t even buy back-to-school shoes or stationery for their children. These remarks by Ms. Kapur and Ms. Burden seem designed to convince us that their Department of City Planning has done its homework, investigating life in the community at an intimate level of detail that would assure us that they truly care about the community. That, of course, assumes that these remarks are to be believed. Don’t assume!

Checking the (Shopped-For?) Facts

One of the first rules of journalism is check your facts. If you don’t, you are writing fiction.

It turns out that Ms. Kapur, Ms. Burden, and the folks at City Planning don’t care enough about the community to find out what the facts of shopping life in the community actually are. Either that, or they don’t care enough to tell the truth.

There’s no place to buy back-to-school shoes in Coney? Then why does the April 2009 edition of the local Astella Action News newsletter feature an article (page 16) on Sneaker Town Sport Gear, at 1504 Mermaid Avenue? (See image. Click to enlarge.)

Here is a clip from that article:

And, aside from being well-stocked with sporting goods and clothing, the store offers a multitude of services. With their state-of-the-art equipment, they customize team, school, camp uniforms, and T-shirts, with silk screening, embroidery, and heat-pressed-on designs.

Astella Development Corporation which publishes that local newsletter has a website with a “Coney Island Merchant Directory.” The directory is fairly useful though it could use some updating both in terms of deletions and new additions. Still it provides a reasonable overview of the Coney merchants.

No Coney Island shoe stores? The site lists three of them though one of them apparently recently closed. We’ll see if it is replaced by another. The two remaining stores both carry children’s shows but Sneaker Town is likely to offer the best choice. No Coney Island clothing stores? The site lists seven, including: Forever Young Kids Wear, 3T Family Wear, K & K Sports and two jeans stores.

No Coney Island grocery stores? The site has a listing for four supermarkets and then, separately and without duplication, the site lists twenty-seven delis, grocery stores, and supermarkets and mini-markets. The site also has a listing for a meat market, Major Prime Meat Market, better known as Jimmy’s (Jimmy Prince) meat market. Recently closed, it is time to remove this listing but Jimmy, over 80 years old, was apparently a fixture in Coney with one of its oldest stores, opened in 1932. We understand that Jimmy, who was with the store since 1949, was an activist to save Coney and is now working with the Coney Island History Project and that we may be seeing a documentary* about him. The question has to be asked: Would Jimmy’s have closed without the land speculation the city’s strategies in the neighborhood have been encouraging? (The business had been passed on to Jimmy by the previous owner.)

(* Click on “Jimmy Prince Speaks About His 50 Years in Coney Island” to hear Jimmy express a few of his opinions about the negatives of proposed Coney Island development, including: “Why should so few deprive so many of the joys and pleasures that Coney Island has brought” and describing Coney as a “diamond” that just has to be “put in the right setting.”)

Back-to-school stationery? In a lot of neighborhoods we know, people get school supplies at a place like Rite Aid. The Astella Merchant Directory lists a Rite Aid together amongst ten other pharmacies. There are also three variety stores listed and eight “bargain stores,” of which three are apparently versions of the 99-cent stores where we sometimes get stationery items. Of course, if you live in a less dense neighborhood like Brooklyn Heights or Park Slope, even though these neighborhoods might be more upscale, you probably have to leave the neighborhood to go to a store like a Staples, a better place to buy in bulk, but Staples and their competitors also deliver and take orders on line. (Competition from such on-line delivery vendors may be reducing the presence of local neighborhood stores everywhere.)

It is true there is only one bookstore, but almost everywhere local bookstores are being replaced by big centrally located stores and the on-line discount shopping available through Amazon and Barnes and Noble.

Refraining from Overstatement?

We don’t mean to overstate our own case by describing Coney Island as a shopping nirvana. It isn’t, and given the low incomes and need for employment in the area you wouldn’t expect it to be. But the city is willing to overstate its case, describing it as an area that lacks the “basics” that other “New Yorkers take for granted.” The city’s willingness to overstate makes us think that the city is probably just as willing to overstate what it really intends to do for the impoverished residents of the local community. Is the city really proposing to sacrifice waterfront amusement area to provide back-to-school shopping opportunities for lower-income people or actually to put in luxury housing in the neighborhood?

(* Standards as to what some of us take for granted or may expect can differ. Ms. Burden is reported to have decided that Harlem’s 125th Street needed to be rezoned because she and a friend couldn’t find a good restaurant in the neighborhood after a Roberta Flack concert.)

A Sincere City Interest in Producing More Coney Affordable Housing?

This brings us to another point. Is the city really intent upon building affordable housing in Coney? Isn’t it really the waterfront luxury housing that is the point? Frankly, it is not necessarily a bad thing that the city is focusing on building housing other than affordable housing in order to even out the housing mix in Coney Island. As both Ms. Burden and Ms. Kapur pointed out, Coney’s problems stem partly from the fact that such a high proportion of its population is in “public housing” or “subsidized housing” with high “unemployment and poverty” with “twice the unemployment rate as any place in the city.” If the city identifies this as the problem, they doubtless don’t want to add to it and there is sense in their not wanting to. But then the rhetoric about adding new affordable housing is intended to be deceptive to the community. The real goal is the higher-income units, the same way that the real shopping opportunities that the city likely wants to create are for higher-income people.

We wonder whether, in the end, new low income units will ever be created at Coney Island at all. There is a possibility that developers could just get credit for fixing up or maintaining existing affordable units in the neighborhood, not producing new ones. Who knows what will ultimately happen, what the city will finally be committed to, after it has won the right to eliminate amusement acreage.

What About This Affordable Housing Program Not Yet Being Used in Coney?

In terms of providing new affordable in the area, we previously suggested the following:

The New York City Housing Partnership programs may be building exactly the right kind of housing for this purpose. The housing involves at least one residential unit that is owner-occupied. There can be associated rental units which the owner rents out. The program can also build multi-family housing consisting of owner-occupied condominium or co-op units. The program is perfect for scatter-site infill building wherever there are vacant lots or where owners of smaller structures are willing to sell. Use of the program would probably also contribute to safety in the neighborhood, something else local residents are expressing an interest in.

(See: Monday, November 17, 2008, The Coney Island Crowd: Plans Unveiled Tonight.)

Coney Island’s Astella Development Corporation administers sales of homes under the above described program in the Coney vicinity. If you go to their website you will see listings for the following: Schaffer Cluster Homes, NH Emmanuel Homes, Malta Homes and Pacific-Dean Homes. Unfortunately, none of these projects involves homes being offered in Coney Island proper, though they are marketing to Coney Island residents. This kind of affordable housing program could represent a step up for current community residents (freeing up their existing units) while keeping them in the community. When such units outside the community area are marketed to Coney residents those residents stepping up are syphoned out of the community.

If the city would direct these kinds of program resources to produce units in Coney Island, suitable new affordable Coney Island housing could be created for which waterfront amusement area would NOT have to sacrificed. That housing could be produced without waiting and it could already have been produced without the destructive attack on the waterfront acres. This is the sincere effort we think city ought to be pursuing. Not sacrificing amusement area waterfront would also mean not sacrificing associated jobs.

If It’s Not About Amusement, Shopping or Housing - Could it Be “JOBS?”

Recapping: The city suspiciously says it wants to eliminate amusement area acreage (to create an amusement area). We have asked whether the city is really sincere in saying it wants to create shopping for lower-income people, and whether it truly wants to create more low-income housing. The last thing the city says it wants to create- - something that is always dangled before the poor when “economic development” is touted- - is “jobs.” Does the city really want to create jobs? The history of the destruction of Coney’s amusement area has been a history of the destruction of jobs. The amusement area once provided all sorts of jobs. Now, severely contracted, it provides far fewer.

(Alberto Vourvoulias-Bush)

The night of the symposium another member of the panel, Alberto Vourvoulias-Bush, the Executive Editor of El Diario/La Prensa, spoke of the illusion of jobs that are offered in connection with development schemes like Coney Island pointing out how construction jobs are not only temporary, they tend to be given to people outside of the communities they are dangled before. The important jobs to a community are the permanent jobs that stay in the community. Yet the permanent jobs associated with the amusement will inevitably be fewer with a shrunken amusement area. In the past, amusement areas that provided jobs were torn down and replaced by housing for people who need jobs. It didn’t work. What is the future to be?

A Plan That Capitalizes on Coney’s Real Asset?

Are these approaches of doubtful city-sincerity and doubtful efficacy what Coney Island or New York City really needs? We keep coming back to the core issue: How, in shrinking the amusement area, can the city be capitalizing on Coney’s true strengths? To quote Ms. Burden’s own description of Coney, “It is one of the most, if not THE most unique and beloved beachfront destinations in the entire world . . . “totally unique because it’s an urban amusement park. It holds a place in the hearts of people across the world” and “Most, New Yorkers, Many New Yorkers think of Coney Island just as the amusements.” Or to quote Ms. Kapur: She says the most “obvious” and best “known” aspect of Coney “IS the amusement district.” Why, if the “amusement district” is already the most obvious and best known characteristic of Coney Island does that “amusement district” then need to be “created” and why should those same Coney Island amusement district acres be dispensed with to do so? We think the city has yet to come up with good and sincere reasons for what it is proposing.

Still Possible to Send Written Testimony to City Planning Commission

The City Planning Commission is still taking written testimony on its proposed Coney Island plan; testimony should be submitted soon. (Monday, May 18, 2009 is the deadline if it relates to the Draft Environmental Impact Statement, though other testimony can be submitted later.) See their hearing procedure notice for instructions.

The City Planning Commission needs to be told that there are certain minimum alterations that need to be made to their plan for the Coney Island we know and love to survive. For a list of the minimum revisions that should be made to the city’s proposed plan, reflecting what is recommended by the amusement community and its ally, the Municipal Art Society, see: Monday, April 20, 2009, All Eyes Are On. . . . Coney Island.

We suggest you write and demand a better plan for Coney Island, one that would be sincere and effective.