Tuesday, November 13, 2012

Reflecting Pictorially, And Otherwise, On The Un-Truth And Consequence Of BP Markowitz’s Assertion Arena Is In Business District, Not Brownstone Neighborhood

Noticing New York photo looking, like the the Times photo below, down Park Slope's Fifth Avenue toward arena
Though the Mark Jacobson article that appeared in New York Magazine to accompany the opening of the Ratner/Prokhorov “Barclays” arena was somewhat meandering and incoherent it did have paragraphs worthy of attention, the result of interviews he was granted.  (Haunts: What does the Brooklyn of the new Barclays Center have to do with the Brooklyns that came before it? A native son walks among the ghosts, Sep 23, 2012)

One of those paragraphs was where Brooklyn Borough President Marty Markowitz propounded the idea that the arena has not been plunked down and shoehorned into a residential brownstone neighborhood, that it was instead in a “business district”:
 “All this talk about ‘the neighborhood,’ ” Markowitz postured. “These people moved into brownstones on Dean Street because it was cheap. They thought they found paradise because they got out of Manhattan. What they’d really moved to was a business district, a place that had always been a business district, except they didn’t know with that hole in the ground at Atlantic Yards. But a business district is for business, and now, thank God, it is doing business. If these people wanted to move to a bedroom community, they should have gone to Mill Basin. Marine Park. Bay Ridge. Those are bedroom communities. Brooklyn has many wonderful bedroom communities! But the intersection of Flatbush and Atlantic Avenue is not one of them.”
Is it true that the arena, sited on a new superblock combining what was previously three smaller individual blocks, was put into a “business district,” not into a neighborhood of residential brownstones?  I went out and traveled the outer circumference of the arena taking pictures,* set forth here, to reflect on this proposition.  Looking at these picture, the answer, I think, is mostly not true.  This article is partly to invite you to form your own judgments.  (Click on any photo to enlarge.)
Picture in the Times looking down Park Slope's Fifth Avenue at arena
(* In one respect I was inspired by the picture that accompanied the September 21, 2012, New York Times Liz Robbins article: In Brooklyn, Bracing for Hurricane Barclays. That picture (see above) was of a vista I so often see, sighting down the length of Fifth Avenue, that keeps reminding me that although Atlantic Yards is so often described as being in Prospect Heights or adjacent to Fort Greene the arena itself is smack dab at the end of the neighborhood of Park Slope, which I think most quintessentially represents that neighborhood. Park Slope was named one of "10 Great Neighborhoods in America" by the American Planning Association in 2007.  At the time Markowitz said he wasn’t surprised by the choice, that “Park Slope has it all . . great shopping and eateries, the creative arts ... and a long tradition of progressive politics and activism.”  In 2010, statistics geek and New York Times number cruncher Nate Silver, last week getting accolades for his accuracy in predicting the results of the presidential election (and Senate races), ranked Park Slope as New York’s most livable neighborhood, citing its well-rounded perfection.  Boerum Hill, Prospect Heights and Fort Greene, from which various pictures in this article were taken, ranked high on Silver’s New York Magazine list at 4, 9 and 18 respectively.)
Looking down Park Slope's Fifth Avenue again

It Matters . . . Like Maybe "1000 Percent"?

Does it matter if the borough president’s assertion that the arena was put into a “business district,” not into a brownstone neighborhood, is false?   Well, as with most things that people say publicly and emphatically when they know what they are saying is false, it probably does matter.  The more emphatically something false is publicly said, the more it probably matters.  In this, borough president Markowitz’s statement about what kind of neighborhood the arena was shoehorned into has much in common with his strenuous efforts to sell the Atlantic Yards mega-project to Chinese investors, saying “Brooklyn is 1000 percent, 1000 percent behind Atlantic Yards” when he certainly knew and believed that as he stated later in a subsequent interview:
It will certainly be written, in the days to come, as among the most contentious developments in America's history--there's no question. . . It's not just New York history, it would be in the nation.
The Forest City Ratner Atlantic Yards mega-monopoly is of course the larger envisioned land grab of which the arena, spearheading it, though itself gargantuan, is a just fractional part.
Dean Street looking east, the around-the-corner arena visible
Brooklyn Borough President Says He Knows Better

Dean Street looking east, just before arena intersection
Markowitz certainly knows what kind of neighborhood the arena was actually put into.  As borough president it's part of his presumed job and you don’t get elected without knowing the basic territory of the borough.  A few days ago, on November 4, 2012, Markowitz came to an event at the First Unitarian Universalist Congregation I was attending and proudly advised the assembly this about himself:
I know Brooklyn as good as anyone, better than most. 
Why does it matter that the arena was squeezed tightly in amongst a neighborhood of residential brownstones?  Is it because of the multiple inconveniences and negative side-effects residential neighbors are now experiencing that they would not have experienced but for the arena?  The throbbing bass music emanating from the arena that can be heard pounding its way into neighboring apartments?   The disconcertingly abrupt corporatizing takeover and transformation of the neighborhood once famous for the local flavor of its businesses?  What about the shutting down of the residential streets behind the arena to accommodate crowds of tweens roiling with such Beatlemaniac enthusiasm to glimpse Justin Bieber that their screams can be heard through the closed double-paned windows of the surrounding residences?  (See the picture from Atlantic Yards Report below.)
From Atlantic Yards Report
All of this is important, but more important than anything else is what Markowitz was addressing in his statement, the exact reason he felt it important to reconstruct the truth into something that was rather its opposite.
Flatbush Avenue looking north, Park Slope on left, Prospect Heights on right, arena in background
Justice And The Managing of Expectations

Looking north on Flatbush again from farther away
What Markowitz was playing with was the issue of expectations.  Expectations in human relations have a lot to do with what’s considered moral and what’s not.  They also have a lot to do with what the law founds legal rights upon, including the law of land use and the control society establishes over uses to which land is put.  I studied land use and land use control law in both urban planning school and law school.  The issue of expectations came up particularly when I was studying out of a text, “Land Use Controls: Cases and Materials” by NYU professor John D. Johnston Jr. and my own professor, George W. Johnson, teaching the course at Brooklyn Law School.  During the course of the year we were also reading essays about the economic underpinnings of these concepts of justice and the consonance with the way these evolving rules of justice produce benefits for society.
Looking north on Prospect Heighs' 6th Avenue, arena just around corner on left
When it comes to land use law, don’t move next to an airport and expect that the airplanes are not going to fly thunderously overhead.  Conversely, if you suddenly put an airport in the middle of a residential neighborhood expect that the neighbors will do some rightful complaining.  Similarly, if you locate yourself beside an existing train line, maybe beside the depot, be thinking in terms of owning a diner to serve the train travelers. But if a railway company runs a new train line through a residential neighborhood and is belching smoke, making noise and sending cinders into the sky that are causing local fires and igniting local homes, figure that you’ll be sued and will probably have to shell out for some damages, notwithstanding that the government may have assisted you with eminent domain and subsidies to help you locate the new technological advance of your rail line advantageously where you wanted it.

Closer to arena on 6th Avenue, arena now visible
This being America, a new nation with vast open expanses to be claimed (and the fact that we tend to forget about the original native Americans or their rights) the law tends to pay lot of deference to those who (among the newly arriving European Americans) got to a location first.  If, in early America, you located a glue factory (that most famous example of nuisance proscribed regularly by so many restrictive covenants regulating land use in old deeds) out in the middle of what people thought of as nowhere you’d probably be okay, no bother, but don’t go and locate the same activity close by a town where people are already living.

More Condemnation (When There Has Been So Much Already!)

Looking west on Dean Street where arena replaced residential buildings and others were knocked down by Ratner, leaving vacant property to forestall reasons for community resistance
Now, what about those railroads that, though noxious in previously unforseen ways, the government still thought should be located nearby already existing homes so trains could get into the center city: Do the neighboring home owners whose homes have lost value have a remedy?  If the noxiousness they have to live with is sufficiently bad they probably have a remedy in “inverse condemnation.”  Those who have a rudimentary familiarity with the Atlantic Yards saga will be acquainted with what “condemnation” means in the context of eminent domain and also how eminent domain was abused for the Atlantic Yards mega-monopoly, essentially privatizing its purpose as well as who was in the driver's seat when it came to the government using its power to take local real estate away from other private owners to give it to the Ratner firm and thereby squelch local competition.
Looking west on Dean Street from farther away
“Inverse condemnation” is the name of the kind of lawsuit people can bring when the government effectively deprives property owners of the expected value of their land without first formally condemning their property or compensating them for it.  In effect they say to the government: “Though you didn’t legally seize or take my property rights, you have now done so as a practical matter so the legalities of appropriate compensation should follow.”  Railroads, although they are technically private entities, can be sued in “inverse condemnation” because the regulating involvement of government has essentially blended them into government for this purpose.  The railroads can also be sued via a lawsuit brought for nuisance although if the activity the government is specifically permitted is unavoidably a nuisance the remedy granted would be to collect financial compensation damages only, not an injunction to cease the activity.

The arena and its owners are much analogous to the railway companies of the days of yore.

The Seamless Web of Expectations

Looking west on now partially demapped Pacific Street toward where Daniel Goldstein's building used to stand.  Newswalk, with its expensive new residential condos, stands in foreground
The law often concerns itself with the goal of protecting expectations.  It is not just a matter of making such protections part of the bundle of rights that are the package we think of as property ownership.  The law enforces contracts because the law believes that people's expectations when entering contracts should be protected and society will benefit as a result.  The law of torts, that set of laws that makes you liable to others for careless and bad acts, is full of expectations regarding how human beings in social congress with other human beings are entitled to expect those other human beings to act.  It is doubtful that there is any area of the law, criminal or otherwise, where the protection of expectations about the behavior of our fellow citizens doesn’t play a critical role.  It is for reasons like that this that the law is often referred to as being a “seamless web.”

Zoning Out On The Issue of Expectation Management

An impossible shot to take this time of year: Looking west on Atlantic Avenue - When lush tree leaves fall you will see arena and residential Atlantic Commons
In the area of land use control it is not always a question of who came first that permits or proscribes what uses will be permitted where.  In the modern United States our set of expectations regarding what can and can't be done with land gets reshaped through zoning.  Zoning amounts to a surrendering of rights of owners to use property as fully as they otherwise might expect to be able.  That would be a diminishment of the value of the land for which the owners are not paid except that the concept is that if everyone surrenders, having their rights restricted, everyone in the end benefits because society as a whole benefits.  That underpinning concept is not, however, so arguably applicable in the case of Atlantic Yards where Forest City Ratner designed all the restrictions that apply to the Atlantic Yards project, thereby making it, in essence, preferentially subject to no restrictions at all, while neighboring property owners are subject to a normal and conventional set of real restrictions.

A Sleeping Falsehood

Again lush leaves around Atlantic Commons obscure arena
Markowitz in his New York Magazine article quote does acknowledge that there are residential brownstones on Dean Street within the area near the arena he was talking about. For the sake of blaming those who chose to live in the residential buildings of the neighborhood of being the victims of their own illegitimate expectations Markowitz sets up something of a false dichotomy: If a neighborhood can’t be called a “bedroom community” then it must be a “business district.”  But most residential neighborhoods in New York are something more in-between.  Brooklyn Heights, Greenwich Village, Williamsburg, Astoria are all residential neighborhoods but all have streets and intersections bustling with ground floor commercial activity, a lot of which. . . restaurants, clothing stores, opticians, and phone stores that seem to be the modern purveyors of electronics. . . are entirely consonant with the residential use being made of most of the neighborhood space.  That’s something important to remember when you look at the minority of pictures in this article where you see commercial space.
Atlantic Commons on Cumberland Street just to the north- New townhouses from the 90's built by Ratner, subscribing to the Brownstone Brooklyn model
What To Not Expect When You’re Expecting?

Looking from Cumberland Street, the Atlantic Commons complex of homes with the arena looming over them in the back
Mark Jacobson in his New York Magazine article precedes Markowitz’s quote with his own take on things (attempting uber-cleverness he dubs it a "Big City kōan") suggesting that it's irrelevant that people might have been accustomed to having expectations about property in the past because in modern day New York City one is not entitled to any expectations about one’s neighborhood’s future:
Maybe Scarlett O’Hara’s dad thought he was in control of Tara’s perimeter, but down here on the street we know better. We know that vacant lot next door that has been letting in the breeze and sun for twenty years could be sold tomorrow, turning your view into a sheer wall.
That’s not true.  Certainly one can often find oneself surprised by development in New York and expectations that turn out not to be true but the arena could be placed where it was only because of what nobody should ever have expected: Government officials chose to supersede zoning and those officials also chose to abuse eminent domain in unforeseeable ways.
Atlantic Commons townhouse built by Ratner with subsidies and sold to an owner who likely didn't suspect there'd one day be that arena there in the background
Thinking Outside The Box of Historical Wisdom To Push The Envelope

Looking south on S. Portland Avenue- Residential buildings on both sides of the street- Arena not visible in background, but Ratner mall across the street from it is
One thing you get a feeling for studying the law of land use control is that it took generations to develop the laws that control land use, including what people think are the best zoning approaches and ways to administer the zoning laws.  That includes concentrated efforts to think out (explaining the thought process along the way) procedures for how zoning in an area is best changed and how exceptions should be granted.  All of that was worked out in the context of adversary parties contesting ideas in the courts of law or political constituencies competing to have their ideas recognized and given weight.

Townhouse on S. Portland that looks out at arena
The arena and the larger Atlantic Yards mega-monopoly were conceptualized by an entirely different process: Past wisdom and precedent were disregarded and it instead became a one-sided process of unelected state employees at an obscure but powerful public authority, the Empire State Development Corporation (the actual name of which is the Urban Development Corporation), figuring out how far they could push the legally permissible envelope to benefit the developer over all those who were not partaking in this process, which was basically everyone else.  In doing so they used powers that agencies had been granted for purposes never intended or foreseen.

Arena visible on left
Because these obscure unelected officials were endowed with the authority of government the courts that normally oversee these processes (and are instructed to in New York in the case of eminent domain) concluded (I think incorrectly) that they had to defer to whatever the developer and these officials did with little or no examination.

The brand-new Atlantic Terrace rental building built by the Fifth Avenue Committee with subsidies, while Ratner fought to ensure he had a mega-monopoly on the neighboring 30+ acres
Perhaps these obscure government officials credited themselves with the ability to know better than the accumulated wisdom of preceding generations, prior established jurisprudence and zoning code insight that would have prevented the arena from being located where they wanted to put it.  Alternatively, they may have thought that they could supervisorily oversee the arrival of the arena in a fashion that wold supersede any and all negativities residential neighbors would experience.  If they thought that, push now coming to shove has proved that they haven’t, in fact, managed to figure it all out yet.

Finger To The Wind Predicts a Residential Neighborhood. . . Successfully!

Another view of Atlantic Terrance on Atlantic Avenue (Atlantic Commons in near foreground)
When people locate in New York they do take into account that the neighborhoods they pick to live in are likely to change.  There is always the possibility that one might be wrong but the typical New Yorker probably prides him or herself on being pretty good in sensing where a neighborhood is likely headed and like card players they place bets on whether they want to stay or they leave for another neighborhood they pick what they suspect could be a luckier hand.

View south on Fort Greene Place, arena in background just beyond Ratner's two malls linked by skywalk.  An office tower is atop mall on the right
For those who relatively recently moved next to what just became the arena superblock, they knew they were moving next to completely and newly renovated residential buildings.  The photos in this article don’t show those newly renovated residential buildings torn down to make way for the arena.  They can be viewed here: Tuesday, October 16, 2012, “Barclays”? Atlantic Yards?: On Lopate, NY Mag Architectural Critic Justin Davidson Disses Brooklyn Neighborhoods With Manhattancentric Illiteracy.

Looking south on Flatbush Avenue, Ratner mall and the arena on left
Those renovated buildings represented an already emerging trend that looked almost certain to continue and probably would have.  And even if the Ward Bakery Building, an old bread factory, was where it was because was part of a manufacturing district, the expectation was that it too was likely to be renovated for residential use.  Again, the probabilities are reasonably high that that would have happened.  If not, the beautiful old building would have been adaptively reused in some other way quite compatible with the surrounding residential neighborhood and historic district.

Again, looking south on Flatbush
For those who put their moistened fingertips into the air to determine which way the neighborhood was headed the best possible clue about where their neighborhood was headed can be provided in retrospect: Except for the arena,  Forest City plans to build nothing but residential buildings on all the land it seized from all the other local private owners by eminent domain and on the land it was given by the MTA for a below-market price in its no-bid political deal.  So, if people moved to this neighborhood as Mr. Markowitz describes, thinking it was assured of trending to a residential neighborhood, they were, except for the arena, pretty much dead on on the money.

Ironically, some of those making this otherwise correct guess about the future residential character of the surrounding area may have been homeowners purchasing new, recently built (in the 90's) brownstone-style townhouses in the Atlantic Commons development directly from Forest City Ratner.  The Ratner firm received heavy public subsidies to build that complex of homes, which is another story worthy of revisiting. 

Expectations of the Great   

Looking west on Atlantic toward arena; sometimes the oculus, visible here, is quite bright even from this distance
There is another way that Mark Jacobson's notion in his New York Magazine that New Yorkers can’t have expectations about the future of the neighborhoods is false: There are many New Yorkers who can expect with virtual certainty that the state will never override local zoning, or use eminent domain or demap streets and avenues to put an arena across the street from them.  That includes Mayor Bloomberg in his townhouse just off Central Park, the residents of upper Park Avenue on Manhattan’s East Side, the neighborhood of Brooklyn Heights, and the list goes on and on.  Despite Mr. Markowtiz’s cheerleading for Forest City Ratner and the arena and his declarations that it was a victory for Brooklyn, the arena was only placed where it was because most of the Brooklyn populace is relegated to second class when it comes to political power.
Again looking west on Atlantic Avenue, new residential building with arena in background
Cheer The Arena Anyway?

Again, view west on Atlantic Avenue
New York is full of mixed uses. There are those like the famous urban theorist Jane Jacobs who would even argue that compatible mixed use environments constitute an ideal to be striven for.  Is it therefore really so bad that the arena, an unusual, if extreme, example of mixed use arrived in this neighborhood, upsetting expectations and turning things upside down with its corporatizing top-down environment style transformations?
The Markowitz view of things: view at 4th Avenue approaching the intersection of Flatbush and Atlantic, which with Ratner mall and temporary one-story PC Richards placeholder built by Ratner, is a business intersection.  Residential buildings on Atlantic are behind where the viewer is standing in this picture  
You could try to make the argument that it isn’t so bad, but the fact that the borough president wants instead to argue against the preponderance of apparent fact that the arena wasn’t squeezed into a residential neighborhood environment is a clear indication that there he is uncomfortable with people really understanding and appreciating the actual result.

Photos other than this panoramic collage, working counterclockwise around the arena site, have been looking, through the connections of neighborhood streets, toward the arena.  This, looking away from the arena (where there isn’t a connector street) shows how the arena’s main public space is oriented to Ratner’s mall across the street, forming what may be spoken of as a business district. The malls turn their back on surrounding neighborhood.
Markowitz is, in the end, an inexcusably inveterate cheerleader for Forest City Ratner and the arena anytime, anywhere and at all costs: When the other day he appeared before the Unitarian Congregation to proclaim that he knew “Brooklyn as good as anyone, better than most”  he also went out of his way to invite the congregation to cheer for the Nets. . .

. .   Was it presumptuous for him to do so?  The congregation, to which I belong, has not yet formally joined the many Brooklyn churches who with their clergy have joined together to decry the many injustices of the arena and its creation.  Surely though, Mr. Markowitz must sense the truth, that even absent any formal declaration by the congregation in joining these other churches (something the congregation may yet do), there is a strong sense on the part of many of its congregants respecting the injustices behind the creation of the arena and Atlantic Yards.

Again looking west on Atlantic Avenue along the block that precedes Markowitz's idealized commercial intersection two images above
The violation of expectations that Mr. Markowtiz is intent on obscuring is probably one of the least of the major injustices involved in bringing about Atlantic Yards.  Mr. Markowitz's invitation to cheer for the arena and the Nets was therefore necessarily provocative of enormous discomfort.

I, for one, when invited by Mr. Markowotz to cheer, could think there was only one appropriate response: I hissed.

The pictures in this article are only the pictures of the parts of the neighborhood surrounding the arena itself.  As I said, you can decide for yourself how much they mostly reflect a fair amount of residential character.  Also again, to see the residential character of what was removed to make way for the arena, what people in the neighborhood previously lived next to, go to Noticing New York’s earlier article: “Barclays”? Atlantic Yards? On Lopate, NY Mag Architectural Critic Justin Davidson Disses Brooklyn Neighborhoods With Manhattancentric Illiteracy.

.  .  That still leaves the issue of the character of the neighborhood that surrounds the nearby superblock of parking that was newly created to support the arena.  What kind of properties surround and are being subjected to having the superblock of parking as a new neighbor?  Suffice it to say it is more property of a residential character, much of it again part of brownstone Brooklyn, but my pictures demonstrating that will have to await a soon forthcoming follow-up Noticing New York article.
Again, same block looking west on Atlantic
The other side of the street
Same Atlantic Avenue block
Local flower shop on same block
Looking west on Pacific Street at residential buildings that might consider that they are blighted only because of the way the Ratner PC Richards building turns its cinder block back on them.  Lit-up arena terminates the street it closed.  
Looking west on Pacific Street at arena again- Despite camouflage of trees it's very close
Pacific Street, a composited view of both sides of the street, again looking west at the arena

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