Tuesday, December 1, 2009

Unfair Substitution of Fiction For Fact in the Atlantic Yards Dialogue

A prevailing hallmark of the promotion for Forest City Ratner’s proposed Atlantic Yards Brooklyn real estate mega-monopoly is the extremely unfair way that fiction has been routinely substituted for and intermingled with what are theoretically the actual facts. Not only have the fictions enlisted to support this abusive eminent domain taking been patently false factwise; they have for the most part not even been believable.

Things That Are Not True About Atlantic Yards

One supreme work of fiction in the mix has been the AKRF “blight” study. With high-end condominiums recently developed and built within and immediately outside of the megadevelopment’s footprint it is clear that there was no blight. Another unfortunate way that the intrusion of fiction has been amplified is that for the Court of Appeals decision its official “record” of non-facts was closed as of late 2006 by which choice the court ignored all sorts of conspicuous subsequent events that contradicted the fictions on the record.

Here is a list of other significant fictions that Forest City Ratner and the state officials servicing that firm have unfairly intruded into the public discussion. The list is not exhaustive. To make it so would be a difficult challenge.
● That the Ratner mega-monopoly is a public project

● That public officials working on the megadevelopment are looking out for the public interest

● That project will provide public benefit. (The truth: The basketball arena, the only identified portion of the mega-project about which anything is yet known will be at least $220 million net loss to the public and the rest of the project can readily be projected to be a net loss as well, since the mega-monopoly status conferred upon the developer decimates the public’s ability to subsequently negotiate for public benefit. Newly released information that state agencies were covertly planning the issuance of an additional $400 million in tax-exempt bonds means that the calculated net losses to the public could be driven even more deeply into the red if that now disavowed plan is reactivated.)

● That the megadevelopment is NOT driven primarily with an intent to benefit the developer (at the public’s expense).

● That the project will provide a significant amount affordable housing and is well designed to do so

● That the mega-project design involving the shutting down of streets and avenues in order to gift them over to the developer is a good design

● That it won’t almost certainly be decades (perhaps 3 to 4) before the mega-development replaces the swath of neighborhood it is tearing down. (The truth: There are likely to be vast parking lots for decades.)

● That there is reasonable assurance about what the developer will ultimately build or is committed to actually provide

● That politicians like Bloomberg who have promised not to give the mega-project more subsidy won’t surreptitiously keep slipping the project more subsidy nonetheless

● That Forest City Ratner has ownership and control of much more land than it actually has such as such the property it tried to take through collusive action from Henry Weinstein

● That there is crime in the area of the site anywhere other than in developer’s own shopping malls

● That there are no other developers who could develop portions of the site interested in competing with Forest City Ratner

● That Atlantic Yards is somehow different from comparable situations like that the one in New London, Connecticut, where after years of litigation and a perhaps more than a hundred million dollars to bulldoze a taxpaying neighborhood (all blessed as part of the “well considered plan” that was the subject of the U.S. Supreme Court’s infamous Kelo eminent domain opinion), Pfizer, the private entity that was the central reason for the destructive takings is abandoning the cleared site

● That it wasn’t clear that the public in modern-day terms and with a modern understanding of the issues wanted the state constitutional protection against eminent domain abuse to remain intact

● That there can’t be any constitutional protection afforded against eminent domain abuse in New York State because when interpreting such fundamental Bill-of-Rights protections the judiciary must defer to the legislative and executive branches which, according to the New York Times recent editorial assessment, is up for sale on a “pay to play” basis with few or “no limits.” According to the Times:
. . . big money rules in Albany. Big business, big unions, and any wealthy individual or interest group can buy access, block reforms, and sometimes even write their own laws.
(See: Editorial: It’s All About the Money, published: November 29, 2009)

In other words, these Bill-of-Rights protections for the individuals aren’t even getting erased from the state constitution (and the federal constitution) by courtesy of a majority vote of the community (which would be unobtainable); they can be bought and paid for, plain and simple, by anyone with access and a big campaign check.
Are any of the above-listed fictions believable? Not if you are paying attention to New York politics or have even an ounce of skepticism in your body. Are any of the above actually true? No, none these promulgated fictions are the least bit true.

How Unfair? Bruce Says “Supersize Me!”?

How unfair is it to mix facts with fictions when engaging in the public debate? Consider this story we’d like to tell about an exchange between an New York State official and a lawyer that conveys how entirely unfettered eminent domain abuse will now be in New York.. . . . . It is amazing what can come out, at a meeting open to the public, when state officials and those they hobnob with carelessly chat, thinking they will not be overheard or stand too close to an open microphone or a running recording device.

As you may know, last week we were at the offices of the Empire State Development Corporation for the meeting of the BALDC subsidiary agency the ESDC controls. BALDC is being used as a tool by ESDC to issue tax-exempt bonds for ESDC’s financing of the Atlantic Yards basketball arena. Last Tuesday the BALDC board of directors met to authorize issuance of tax-exempt arena basketball bonds. (See: Wednesday, November 25, 2009, Picturing What Could Have Been Said If Public Officials Accepted Public Comment at the Atlantic Yards Bond Approval Meeting.) The same day the Court of Appeals, the state’s highest court, released its opinion that eminent domain can be abused to create the Ratner mega-project. Naturally, the decision was something to talk about.

To start, some necessary background: First, let us remind you that we have pointed out how the purpose of Atlantic Yards is to give developer/subsidy-collector Forest City Ratner an unprecedented monopoly on a swath of Brooklyn real estate that eliminates the otherwise burgeoning competition in their own back yard. Next, you need to know this: In the reception area of its One MetroTech Center headquarters Forest City Ratner displays a full wall-sized live camera projection of the Atlantic Yards site. It has been pursuing a bidless acquisition of the site since at least June of 2003. From time to time the angle from which the site is viewed in the reception area changes, but whatever the shift in angle the displayed land that Ratner covets is the same.

Hard as it is to believe, it is absolutely true that Ratner displays the property in his office reception area. Of course, the land displayed isn’t owned by the Ratner organization, but it nevertheless is displayed in their reception area, the way other real estate firms would display their actually conquered assets. If you doubt us ask: Those who go up to visit Ratner know this. (We could cynically observe that Ratner ought to also mount on the wall as trophies a few counted-upon politicians, Mayor Bloomberg and Governor Paterson included. He can brazenly expect to get his land only if he considers them in his pocket. It will probably serve, however, simply to mount as wall plaques the myriad news stories of how readily Bloomberg and Paterson have capitulated in the facilitation of extra giveaways for the mega-project.)

The above background now provided, here for your discerning evaluation is this account of an exchange after last Tuesday’s court ruling. (FYI: People on the inside of these transactions can be inclined to regard the behavior of others on the inside with a certain amused casualness.) Here’s the exchange:
So he says to [Bruce] Ratner, “I guess with today’s Court of Appeals decision you finally get all that land* you’ve been projecting on your reception area’s wall.” Ratner doesn’t miss a beat: “Actually, with this Court of Appeals decision I’m going to have to get a bigger wall!”
(* This is technically incorrect. The Court of Appeals decision applied only to the half of the land needed for the arena that Ratner is seeking to acquire via eminent domain. Another half of the land needed for the arena is coming from the MTA and there is an entirely separate lawsuit brought by legislators and community groups to block any transfer of it to Ratner since he never bid for it and the land was never appraised as required under the provisions of the Public Authorities Accountability Act that were specifically intended to prevent such favored transactions. Further, other aspects of the eminent domain litigation are still in court, while another suit is being brought to reinstate claims based on the new, now substantially changed facts respecting Ratner’s attempted taking of the property.)

What’s Truly Most Unfair?

Is it believable that Ratner made this statement about needing to “get a bigger wall”? Yes, it is absolutely believable. This is the same man who (in what was apparently intended to be a puffy PR interview piece with Crain’s during the pendency of the Court of Appeals decision) said that the public didn’t have a right to know what the project he might build might consist of: “Why should people get to see plans?" he said. "This isn't a public project.” (See: Tuesday, November 17, 2009, Be Careful What (Change of Law) You Ask For; You Might NOT Get It: Atlantic Yards and 1967's Rejected NYS Constitutional Amendment.)

It is therefore absolutely believable that Ratner said he needed to “get a bigger wall” but is it really true that he said it? We can only guess. We haven’t bothered to contact the Ratner office to inquire. (We’ll leave it to others to confirm what statements Mr. Ratner might actually have made about his wall after the ruling, or those he will admit to.) We suspect that it would be rather awkward for Ratner to talk about his wall-of-desire in such conversations. Ratner is also likely to have trouble denying that he has actually made remarks like those in the exchange related. But whether or not Ratner actually said he needed to “get a bigger wall” the fact of the matter is that with last week’s Court of Appeals decision Mr. Ratner probably is speculating on the further enlargement of his holdings through eminent domain. And even if he didn’t actually say that he needs to “get a bigger wall” we wonder which is really more unfair; for people to start believing that he said it when he didn’t or that his company has been involved in interjecting into the public debate the far more multitudinous falsehoods that it regularly provides?

Is it actually true that Ratner said he needed to “get a bigger wall”? Perhaps we can helpfully analogize to the words cleverly used by lawyers defending the findings of “blight” on Ratner’s behalf to describe the non-existent blight of properties they wanted to seize. They said that properties "were found to have indicia of blight" because they had (here’s the indirect language they used) “one or more blight characteristics.” (See: Thursday, October 15, 2009, 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.) Applying this formulation to Ratner’s saying that he needed to “get a bigger wall”: It has the characteristics of truth or what can be referred to as “one or more truth characteristics.”