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November 27, 2009

A Net gain for Brooklyn: High court did right by the city in Atlantic Yards lawsuit

NY Daily News, Editorial

Here's a surprise — a Daily News editorial full of untruths and half-truths in the wake of a pro-Atlantic Yards court decision.

The state's highest court has given a crucial go-ahead to plans to build a pro basketball arena and a major housing development at one of Brooklyn's great crossroads. Good for the judges. Good for New York.

There is much to like in the Court of Appeals decision regarding the Atlantic Yards project, starting with new hopes that the Nets will have a home in the city for the 2011 season and that thousands of apartments will rise on land that has been fallow for more than four decades.

By a 6-to-1 vote, the court dealt a small band of opponents a 26th straight defeat in their legal war of attrition against a project that grew only more critical as a jobs producer with the economic downturn. Hats off to developer Bruce Ratner for persevering through six years worth of regulatory approvals and lawsuits.

"Small band of opponents?" Hardly. Opposition to the Atlantic Yards project runs wide and deep. Small band of plaintiffs would be more accurate, since most of the hundreds of footprint occupants had been scared off long ago by the threat of eminent domain, bought off with taxpayer-subsidized payments that were actually below market value when the state zoning override is factored in.

It is to New York's shame that moving even the worthiest projects off the drawing boards is so difficult in a town that prides itself on getting big things done. All you need are some chanting pickets and a stack of summonses.

A worthy project wouldn't have drawn protests or lawsuits. What's worthy about building a heavily subsidized and unneeded arena while sucking scarce housing funding away from more cost-effective projects, and diverting hundreds and hundreds of millions of dollars in city and state funds from more important uses?

On the upside, the court rendered expeditious judgment, positioning Ratner to meet a year-end deadline for financing the start of construction and - even more important - established a wise standard for the use of eminent domain in New York State.


Lawyers for a handful of property owners - among the few who have not sold to Ratner at handsome prices - had asked the court for nothing less than a radical reinterpretation of the state Constitution. Many feared the panel would take an aggressively activist approach in keeping with a recent tendency to flex its judicial muscle.

Actually, the property owners were asking the court to rein in the radical expansion, over several decades, in the interpretation of what's fair game for eminent domain, from "public use" to "public benefit" to whatever the hell developers and politicians want.

Didn't happen. The panel declined to repudiate the U.S. Supreme Court's controversial Kelo decision, upholding the taking of a Connecticut home to make way for a now-abandoned commercial development.

Instead, the majority threaded a fine needle. It affirmed that New York may take property by eminent domain only for public use - except when an area has been deemed to be blighted. The court also established that it would not second-guess a blight finding that was reasonable.

"A fine needle" through which Bruce Ratner could drive a truck. Blight is apparently whatever the Empire State Development Corporation wants it to be. The court's decision makes just about any property in New York State vulnerable to condemnation.

The Atlantic Yards zone, at the intersection of Atlantic and Flatbush Aves., fit the blight definition well beyond reason.

With the small exception of a slice occupied by the complaining property owners, the tract has been a designated urban renewal area since 1968 and has stood vacant for all that time. Much of it is occupied by a below-grade cut for the Long Island Rail Road.

Bullshit. Only the railyard portion of the site, which constitutes little more than a third of the footprint, was part of the Atlantic Terminal Urban Renewal Area. While it may not be attractive, it's a working railyard, crucial to the metropolitan area's public transit system. And if it is shoddy looking, it's only because the state itself failed to maintain it properly. The "slice" occupied by living, breathing, productive taxpaying citizens is actually the majority of the site. And if by "vacant" the Daily News means occupied by a critical piece of public infrastructure and homes and businesses undergoing organic redevelopment, then they're absolutely right. If that's not what they mean, they're lying.

Now, if New York is lucky, Ratner will get to work on the arena, perhaps to be home court for Lebron James (we can dream), followed by 6,000 residential units - a third of them affordable - and 8 acres of open space. The public interest has been served.

It'll take a lot more than luck for any of that to happen. And the fact is, the public interest has been screwed.


NoLandGrab: Once again, we have to ask — if the Atlantic Yards project is so great, why not just tell the truth about it?

Posted by eric at November 27, 2009 1:06 PM