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June 11, 2008


By Mary Campbell Gallagher
(Exclusive to NoLandGrab)

This Thursday, June 12, the justices of the U.S. Supreme Court will meet to decide whether to hear arguments in an eminent domain case reflecting every property owner's worst nightmares. Five years ago residents in the Prospect Heights section of Brooklyn learned that politicians were skipping the city's zoning and approval procedures so the state could use eminent domain to seize their homes and businesses, bulldoze 14-plus residential acres, sell the 8.3 acres of railyards at Atlantic and Flatbush Avenues to developer Bruce Ratner, and fast-track an 18,000-seat arena for Ratner's professional basketball team, plus starchitect Frank Gehry's titanium-wrapped towers. Ratner would market the whole no-bid development under the name Atlantic Yards.

In response, eleven outraged Brooklynites brought a federal lawsuit asserting the startling claim that at Atlantic Yards politicians are using eminent domain for a land grab to enrich a private developer at their expense, and not, as the government claims, to create a "public benefit." Plaintiffs in Goldstein v. Pataki argue that Ratner will lease the basketball arena at $1 a year but his annual profit will be in the millions, so the arena is no public benefit. Plaintiff Daniel Goldstein tells me his apartment will be in center court. Plaintiffs argue that the government's belated revulsion at "blight" in their gentrifying neighborhood is transparently fake. They point to the U.S. Supreme Court's saying in 2005 in Kelo v. New London that the U.S. Constitution does not permit the pretext of public purposes to qualify a project for eminent domain when the real purpose is private benefits. The federal Second Circuit Court of Appeals, they argue, wrongly refused to give them access to documents proving New York officials' illegal intentions.

Startling as their claim is, the Brooklyn plaintiffs have not argued strongly enough. To halt Atlantic Yards, the U.S. Supreme Court need not eyeball a single government email, because New York politicos' public actions loudly betray their unlawful intent. If I pull a chair out from under a woman who is about to sit down, the law says my intent was for her to hit the floor: no verbal evidence is necessary. Similarly, if skipping normal legal procedures pops the cork on limitless profits for Bruce Ratner, the government's intent must be private benefits.

Look at what the politicos did. In the sham bidding for rights to the 8.3-acre Metropolitan Transit Authority railyards, another developer submitted a higher bid, yet Ratner won. Bad enough. What's worse is that since Atlantic Yards is a no-bid job, there was no competition at all for the 14.5 acres of Prospect Heights where the Empire State Development Corporation wants to exercise eminent domain. If Ratner reaps excess profits there, it is a government-intended private benefit. Ditto for short-cuts for selecting a project, selecting a developer, setting the price and, especially, changing the zoning.

New York City's established zoning rules prohibit building skyscrapers at Atlantic and Flatbush Avenues. They prohibit inserting the gigantic bulk of a sports arena into any residential neighborhood. The City Charter's Uniform Land Use Review Procedure (ULURP) compels local community boards and the City Planning Commission to hold hearings on major zoning changes, culminating in a City Council hearing and vote.

Mayor Bloomberg, however, bypassed ULURP and handed decision-making on Atlantic Yards to a secretive state agency, the Empire State Development Corporation (ESDC), which can order eminent domain and which overrides local zoning.

By that one stroke, handing the project to the ESDC, the Mayor removed all limits on the size and density and, therefore, profitability of Atlantic Yards. He plunged its financials into darkness, eliminated a possible Council veto, and assured Ratner use of the state's power of eminent domain. Let's call it by its right name: a private benefit for Bruce Ratner.

The Second Circuit said courts must defer to the legislature. The ESDC, however, is no legislature. It is accountable only to the governor.

Large-scale development proposals like Atlantic Yards always cause controversy. Some New Yorkers loved Ratner's promise to replace a lowrise neighborhood with Manhattan-style skyscrapers, offices, condos, and some units of subsidized housing. Others said it would destroy the character of Brooklyn. But loudest of all was the cry that the nationwide epidemic of eminent domain enriches private interests and threatens everyone's home.

No fair-minded person claims that setting limits on eminent domain should be easy. The Brooklyn plaintiffs merely ask the Supreme Court to clarify the constitutional rules, saying lower courts are confused. The High Court unleashed a national furor in 2005 by holding in Kelo that even "economic development" justifies eminent domain if it bears a "rational relationship to a conceivable public use." With Atlantic Yards, the Second Circuit used a "public benefits" justification for applying the same rule. Yet Kelo also said that the mere pretext of public benefits cannot suffice, when the real purpose is private benefits. In the conflict with the Second Circuit that qualifies Goldstein for possible Supreme Court review, the District of Columbia Court of Appeals in July 2007 declined to permit the government to use eminent domain just to benefit a private developer, in Franco v. National Capital Revitalization Corporation.

To uncover government officials' unlawful intent to confer a private benefit, to make the Brooklynites' homes and businesses safe, to safeguard us all from government abuse of eminent domain, the Supreme Court need only instruct the Second Circuit to look at New York politicos' actions. Their actions shout cronyism, and the U.S. Constitution says No.

Mary Campbell Gallagher is business owner, a graduate of Harvard Law School, and a frequent writer on urban legal issues. She has published reviews, essays, and op-eds in publications including *The Nation, The Weekly Standard, Newsday, and Metro New York. Her Manhattan-based business, BarWrite®, offers large-group classes to candidates for the bar examination.*

Posted by lumi at June 11, 2008 5:05 AM