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)

Tomorrow, Wednesday, the state’s highest court, the Court of Appeals in Albany, is hearing the case challenging eminent domain (Goldstein, et al. vs. New York State Urban Development Corporation d/b/a/ Empire State Development Corporation, or ESDC). Yesterday, Atlantic Yards Report had an excellent (necessarily long) summary of the issues the court will be hearing and considering. (See: Monday, October 12, 2009, The eminent domain battle Wednesday: an easy call for the Court of Appeals or a fresh look at blight, "public purpose," and relative benefits?) This Noticing New York post will serve as a reprise, for this site, of the comment we posted on the Atlantic Yards Report article.

The Hypertechnical and Keeping Justice In Sight

The Atlantic Yards Report is thorough, careful and intricate. One realizes when one reads the Atlantic Yards Report post the very hypertechnical level on which much of the legal discussion is occurring. As a lawyer we appreciate the importance of the technical but there is a danger that legal and government folk might just think that hypertechnical mazes could provide cover for losing sight of the big picture in order to deliver a result that would be peculiarly wrong and unjust.

Big Picture, Big Pretexts

It is worthwhile for everyone to be vigilant about not losing track of the big picture things that are going on in this case.

One of the biggest, with which the AYR post deals in a fair amount is the “pretextual” purpose for the eminent domain. The way in which public benefit which is actually “incidental,” entirely nonexistent, or negative, is also dealt with in the AYR post: The Independent Budget Office’s calculation that the arena will be $220 million net loss to the public and the lack of any cost-benefit analysis by the Atlantic Yards-promoting agencies.

The AYR post has a section on pretext that highlights two especially choice paragraphs from friend of the court briefs submitted in the case:
Questions of pretext

The IJ [Institute of Justice] brief states:
The court below gave remarkably short shrift to the contention that the project at issue in this case is simply a pretext for conferring benefits on private developer Forest City Ratner, apparently holding that a taking cannot be pretextual as long as there is any purported public benefit associated with the taking…. This rule--that the only pretextual takings are those with literally no conceivable public benefit--seems at odds with the very notion of pretextual takings: there is always, in every pretext case, an asserted public purpose, which serves as a pretext for the would-be condemnor's true, illegitimate purpose. The lower court's rule is grossly out of step with the practice of other state courts (and even federal courts).

...It is especially important to look at questions of pretext where, as here, the purported public use dovetails with the preexisting commitments and plans of private parties.

The brief on behalf of the FAC, PACC, and PHNDC [that’s Fifth Avenue Committee (FAC), the Pratt Area Community Council (PACC), and the Prospect Heights Neighborhood Development Council (PHNDC)] argues similarly:
Here, the ESDC did not make a blight finding until at least two years after the AYRP was announced, and that determination is based on such compelling public health and safety issues as "graffiti," "weeds," and "underutilization." It is disingenuous for Respondent to now allege that blight clearance was its primary purpose all along. The arena for a private professional sports team owned by the developer was conceived of years prior to the completion of the blight study upon which the taking now relies. The record strongly indicates that blight removal (whatever that means)--not "slum clearance"--is nothing more than a convenient pretext for the otherwise invalid condemnation.
Picking Pretextual Poisons

One of the hypertechnical pretextual confusions the government agencies and Forest City Ratner are purposely fomenting involves whether Atlantic Yards is to be considered as an economic development project or alternately a blight removal project. In truth, it is absolutely neither, but the government would have it pretextually be whatever they can get away with.

If the mega-project is an economic development project (which government officials are probably most instinctively prone to promote it as- and often do in the press), it makes no sense that no cost-benefit analysis has been done to demonstrate its justification. If it is instead a blight removal project then it hardly makes sense for the public to be spending billions to remove “weeds” from a gentrifying neighborhood, virtually the same weeds you can find anywhere, including the borough’s best neighborhoods like Brooklyn Heights and Park Slope. If the pretextual goal is to remove blight that still implies that there should be a “weighing” in a sort of cost-benefit fashion that more blight will be removed than created. Not so! There has been no such weighing and instead it is the reverse. Ratner’s plan creates “more” blight (actual real blight) than the ostensible blight it pretextually removes.

Couldn’t Be Anything But Pretext!

The Empire State Development Corporation’s brief (as quoted in the AYR post) says: “In any event, on the record presented here, it cannot be said that the project's public benefits are `incidental or pretextual in comparison with benefits to particular, favored private entities.’”

Quite the contrary: It can, in fact, ONLY be said 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.’”

Actual Purpose Monopoly Banishing Competition

The actual purpose of the use of eminent domain at the Atlantic Yards site, as signed onto by the public agencies involved, is to confer the benefits of a monopoly upon Forest City Ratner, eliminating all its economic competition. The plan quashes Ratner’s competition immediately while lacking any urgency or stringency about how, during the upcoming decades, Forest City Ratner will replace the economic activity being banished from the landscape by the public agencies.

The Forest City Ratner/New York-style abuse of eminent domain is not something that should be considered as something permitted under Kelo. It violates fundamental due process putting the taking process, entirely within the purview of politically biased agencies while insulating them from the checks and balances of fair challenge. The creation of the FCR monopoly and the quashing of competition that originates with Forest City Ratner moves ahead via the protective indulgence of a no-bid process and is self-servingly designed at every step of the way to benefit Ratner; even to the extent that it is Ratner who gets to pick, proclaim and self-certify the public benefits of the project. (See: Tuesday, October 6, 2009, First Monday in October: An Open Letter to Sonia Sotomayor about Noticing an Eminent Reality.)

How Lax Can Your Get?

In big picture terms there is a serious question here as to whether New York’s highest court will deliver state eminent domain abuse standards far more lax than ever envisioned in Kelo. Will New York’s standards be so low that in New York eminent domain’s paramount purpose can be pretextual ruses that create private monopolies benefitting a single developer running the show? (See: Friday, October 9, 2009, Will New York’s Highest Court Deliver State Eminent Domain Abuse Standards More Lax than Kelo? Can ED’s Paramount Purpose Be Private Monopolies?)

So that’s the big picture: 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. It would be tragic if New York’s highest court allowed itself to get lost in hypetechnicality, losing sight of the big picture and promoting the peculiar injustice of permitting such pretext to persist without practical check or balance.

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