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July 25, 2006

"ATURA, ATURA, ATURA" indicates FCR's nervousness over Kelo decision

All of this talk about a 38-year-old plan, called the Atlantic Terminal Urban Renewal Area (ATURA), is an indication that Forest City Ratner (FCR) and the Empire State Development Corporation (ESDC) are sweating bullets over last year's Kelo ruling by the Supreme Court of the United States.

Yesterday's Daily News editorial made the point that:

"In 1968, most of the area was so blighted that city planners officially declared it an urban renewal zone, restating that designation as recently as 2004."

Today's NY Times "blight" article reported:

"The (blight) study also dwells in some detail on the eight-acre railyards that make up about one-third of the site, and which also fall within an urban renewal zone the city established along Atlantic Avenue in the late 1960’s."

Last week Brian Lehrer interviewed Jim Stuckey, Forest City Ratner Atlantic Yards Development Group President, who offered:

"This area has been considered blighted since 1968 when the first Atlantic Terminal Urban Renewal Plan was adopted. About 60, 65 percent of the area fell within that urban renewal area and was considered to be a blighted area. Those findings when the Downtown Brooklyn plan was approved two years ago were reaffirmed."

ATURA, ATURA, ATURA: Why all this talk about ATURA?
The case that some of Atlantic Yards falls within the ATURA boundaries and the project fulfills the 30+-year-old urban renewal plan's goal to eliminate blight, is a desperate attempt to meet a rational-basis review for use of eminent domain as defined in Justice Kennedy's concurring opinion in last year's Kelo case, cited yesterday by Norman Oder in Atlantic Yards Report.

Kennedy wrote:

A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose.

In reference to the City of New London, Kennedy concluded that certain criteria were met — criteria that would not apply in case of Atlantic Yards (see bold):

Here, the trial court conducted a careful and extensive inquiry into “whether, in fact, the development plan is of primary benefit to . . . the developer [i.e., Corcoran Jennison], and private businesses which may eventually locate in the plan area [e.g., Pfizer], and in that regard, only of incidental benefit to the city.” The trial court considered testimony from government officials and corporate officers; documentary evidence of communications between these parties; respondents’ awareness of New London’s depressed economic condition and evidence corroborating the validity of this concern; the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known; evidence that respondents 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 added:

...a court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits.

Justice Kennedy agreed with the majority, that the New London private-property condemnations satisfied the definition of "public benefit," but acknowledged that there are cases of abuse that must be struck down by the courts. It stands to reason that Atlantic Yards would be one of those cases, that is, if FCR and the ESDC can't justify using eminent domain as part of an existing urban renewal plan — enter ATURA.

Embracing ATURA, but not before we OVERRIDE ATURA

On February 18, 2005 (four months before the Kelo decision was handed down), a Memorandum of Understanding (MOU) between the City and State and FCR was executed, clearly stating [page 3, sec. 5(ii)] that the ESDC would seek "to exercize... its power to override local zoning and other local regulation where appropriate" (that includes ATURA).

In the Final Scope of Analysis released on March 31, 2006, the intent to supercede ATURA zoning was reiterated on page 10, where the document describes actions that must be taken to amass the different properties into one development site. The Final Scope declares that it will be necessary to: "Override by ESDC of the ATURA Plan as it relates to Site 5 and Site 6A." The rest of the railyard isn't part of this action because under ATURA, the railyard has no zoning.

OOPS! We have a problem


In order to override local zoning as mandated by ATURA, the ESDC must override the 30+-year-old urban renewal plan, because the Ratner proposal plans for much more density than ATURA would allow.

The eminent domain takings (most of which aren't even in the ATURA plan's boundaries anyway) will pass the "blight" test because NY State's definition of blight basically covers the entire City of New York. However, to pass the standard set by Justice Kennedy's concurring opinion in the Kelo case as the case winds its way through the court of appeals, FCR and the ESDC must now embrace ATURA and claim Atlantic Yards meets ATURA's blight-clearance goals.

Our intuition tells us that Ratner and the ESDC are running scared, and the best strategy their legal eagles could divine to justify this unprecedented land grab is this weak and desperate grasp at legal straws.

Posted by lumi at July 25, 2006 9:21 AM