Opinion: Standing Up to Eminent Theft

Daniel Goldstein Dec 11, 2009

Six years ago, developer millionaire Bruce Ratner, with the support of Mayor Bloomberg, Gov. Pataki, Sen. Schumer and Brooklyn Borough President Markowitz, unveiled his Atlantic Yards megaproject for Prospect Heights, Brooklyn. It included 16 skyscrapers and a basketball arena to house the now-lousy New Jersey Nets, which Ratner had purchased to facilitate his 22-acre land grab — which was reliant on the government’s abuse of eminent domain laws for his enrichment.Flash forward to December 2009. Atlantic Yards is nothing but a rendering of the arena — a plan without the subsidized “affordable” housing that has been promised for years. There has been no construction. And a once up-and-coming slice of the neighborhood sits half demolished and largely vacant.So what happened?The developer, Forest City Ratner, and its government enablers have been slowed by a massive opposition movement led by Develop Don’t Destroy Brooklyn (DDDB). Ratner’s speculative plans have been foiled by the brutal economic recession. But Atlantic Yards, although also wounded, is limping along.At this point, Forest City Ratner would gain control of 22 acres of prime Brooklyn real estate, on which to construct a money-losing, taxpayer-subsidized arena, and maybe a skyscraper or two filled with primarily luxury condos. The rest of the site (some 16 acres) would sit vacant and blighted. It’s ironic. The purported fundamental public benefit of the project, according to the Nov. 24 State Court of Appeal ruling, was the removal of blight.Instead, Atlantic Yards threatens to create blight where it did not exist.The Empire State Development Corporation (ESDC) must commence a number of legal procedures to take title to the properties and revoke leases. The plaintiffs and DDDB will litigate these procedures every step of the way to thwart the theft of homes and businesses.Only nine days after the Atlantic Yards decision, the Manhattan Appellate Division ruled in favor of plaintiffs in West Harlem in their challenge to Columbia University’s eminent domain abuse. This case also involves the ESDC as the condemning authority.While a great victory for New Yorkers and the fight against eminent domain abuse, that court’s ruling contradicts the higher court’s ruling. So, the Atlantic Yards plaintiffs will ask the Court of Appeals to reconsider their case when they hear the Columbia appeal.Currently, there are three outstanding lawsuits in State Supreme Court. Two were filed by DDDB, and the other by the community coalition, BrooklynSpeaks. DDDB charges the MTA with violating state statutes when it agreed to sell Ratner the eight-acre Vanderbilt Yards (40 percent of the project site).In the other case, DDDB and 21 community groups challenge various project approvals made by the ESDC in September, including one that makes the entire affordable housing part of the project contingent on subsidies (meaning the housing is not guaranteed). DDDB also charges that the Empire State Development Corporation must embark upon a supplemental environmental review because the project has been radically altered from its original environmental impact statement.That’s the legal picture. Politically there is an effort to get Gov. Paterson to follow through on a promise he made on Dec. 1 to convene an “objective” review of the project. What he should be reviewing is the labyrinthine financing structure for the project, which is a great risk to New York and its future credit rating. Should there be a default on the tax-exempt arena bond, New York State will be on the hook.With a state debt of $57 billion, this is a risk Paterson should not take.The governor’s promise to undertake the long-needed review of the project (no elected official has ever reviewed the project as their votes were not required for its approval) will be meaningless unless he acts to halt the project, pending his review. He has this power, because as governor, ESDC leadership serves at his pleasure.Only four years ago, Paterson had a stronger stand against the misuse of eminent domain.In July 2005, in the wake of the U.S. Supreme Court’s notorious Kelo v. City of New London eminent domain decision, Paterson, then a state senator (D-Harlem), advocated for a state-wide moratorium on eminent domain.Gov. Paterson hasn’t renewed this call since. Now is a defining moment since it is clear the courts have rendered confused opinions on the issue.The Court of Appeals’ Atlantic Yards ruling gave the state the right to take the plaintiff’s properties. However, it did not demand it. Gov. Paterson must not let the ESDC exercise eminent domain. If he does, his legacy will be a Brooklyn version of the travesty that took place when eminent domain laws failed to serve the public and protect property owners in New London, Conn.Daniel Goldstein is the co-founder and spokesperson of Develop Don’t Destroy Brooklyn ( more information read Steven Wishnia’s article, “Atlantic Yards Takes the Court” in this issue of The Indypendent.

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