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November 24, 2009
EMINENT DOMAINIA: The Big Apple Bites! P.M. Edition
NY Observer, Prospect Heights Not Dickensian, Still a Slum
The Court of Appeals is not so impressed with Prospect Heights.
Okay, so it's not as bad as a Dickens' Bleak House, the state's highest court admits, but in a majority opinion issued this morning, six of the judges agreed with the state that the neighborhood is blighted, and that Bruce Ratner should be allowed to take whatever land he needs to build the shinier, happier Atlantic Yards development.
Blight's changed, says the court. The petitioners, led by Daniel Goldstein of Develop Don't Destroy Brooklyn, "are doubtless correct that the conditions...do not begin to approach in severity the dire circumstances of urban slum dwelling described by the Muller court in 1936," wrote Chief Judge Jonathan Lippman, but he added, it doesn't have to look like the Great Depression to be blight. Nor does it have to look like any of that pre-Depression blight you might have read about. "Of course, none of the buildings are as noisome or dilapidated as those described in Dickens' novels or Thomas Burke's Limehouse stories of the London slums of other days," the court wrote back in the 1950s--in a quote cited by the court.
...Meanwhile, on Craig's List, Prospect Height remains "a wonderful sought after area."
Daily Intel, High Court Gives the Go-ahead to Atlantic Yards Seizures
Obviously, some complex constitutional and legal issues were the main concern here, but we wonder whether the court took into consideration that maybe nobody wants to watch the dismal 0–13 Nets play basketball, anyway.
The Local [Fort Greene/Clinton Hill], Top Court Upholds Eminent Domain for Atlantic Yards
In its 48-page opinion, the court held that the suit by Daniel Goldstein of Develop Don’t Destroy Brooklyn and other property owners should be dismissed because it was filed too late — more than 30 days after the Empire State Development Corporation’s “determination and findings” in favor of the developer, Forest City Ratner.
The court took a jaundiced view of the barrage of lawsuits — at least eight since January 2006 — filed against the project: “What has happened in this case is precisely the result that the Legislature sought to prevent when it enacted the Eminent Domain Procedure Law,” Chief Judge Jonathan Lippman wrote — “the sidelining of a public project on account of prolonged litigation.”
Reason Hit & Run, “The majority is much too deferential to the self-serving determination by Empire State Development Corporation”
Not only does this disastrous 6-1 decision put every property holder in the state at risk, it represents the court’s utter failure to serve as an independent tribunal of justice. Rather than judging the facts and, if necessary, voiding an illegal state action, the court punted, arguing that determining whether or not the properties in question were actually blighted—as New York dubiously asserts—is not “primarily a judicial exercise.”
...It's a sad day for the New York judiciary when six of the state's seven highest judges can't be bothered to do their basic constitutional duty.
Brownstoner, BREAKING: Goldstein et al Lose Eminent Domain Lawsuit
The ruling means that Ratner may proceed with the sale of tax-exempt bonds to finance the sports arena that is scheduled to be the first stage of the gigantic development. The construction of both affordable and market-rate housing is supposed to begin with months of the arena, but as The New York Times points out this morning, "with so many new apartments sitting vacant, analysts say it could be many years before demand will justify building so many units in one neighborhood."
NBC New York, The Nets Actually Pick Up a Win (In Court)
The Nets may have lost all 13 games they've played so far this season, but they picked up the only kind of court victory they actually care about on Tuesday. The New York State Court of Appeals ruled that the the state can use eminent domain to force tenants out of buildings slated to be used as part of the Atlantic Yards project designed to build the team an arena in downtown Brooklyn.
...But those individual battles won't necessarily decide the entire war. The Nets still need to issue tax-exempt bonds before the end of the year to actually get started with construction, and the project's adversaries are still using a four-corner offense, to use basketball parlance, to delay things past that point.
Land Use Prof Blog, Atlantic Yards Wins
Not a great shocker in the result, considering NY's state court precedent on eminent domain, and the fact that New York is one of the only states without any sort of post-Kelo law (purporting) to restrict economic development takings (again, see Ilya Somin's critique of post-Kelo reform attempts). However, this is another high-profile eminent domain case in the books to annoy takings opponents. It may have an effect on public opinion and the feasibility of future large-scale redevelopment projects that require delegation of the government's eminent domain power for private land assembly. Will it add to the impact of the Pfizer pullout in establishing, as the NY Times suggested, a turning point for eminent domain? New London, like Poletown, was a project that may have been doomed from the start. Atlantic Yards is a similar pie-in-the-sky comprehensive redevelopment project, but perhaps it has a better economic foundation, with participation of a major-league sports franchise and its location in the hip borough of Brooklyn. If it fails, it will surely add to the arguments against economic development takings. If it succeeds, it will probably just egg developers on.
If it does proceed, for the sake of Brooklyn I hope that Atlantic Yards will turn out better than New London.
The Volokh Conspiracy, New York Court of Appeals Upholds Atlantic Yards Condemnations
[T]he decision states that courts can only strike down a condemnation if “there is no room for reasonable difference of opinion as to whether an area is blighted.” With respect to any neighborhood, there is nearly always “room for reasonable difference of opinion” as to whether the area is “underdeveloped” relative to some possible alternative uses of the land in question. Defining blight this broadly and then deferring to the government’s determination of whether such “blight” actually exists effectively reads the public use restriction out of the state constitution. I highly doubt that New York state constitutional amendment allowing condemnation of “substandard and insanitary areas” (Article XVIII, Section 1 here) would have passed had it been understood to mean that virtually any area could be declared blighted and condemned.
...
The case is also significant because it is the first major state supreme court defeat for property rights on a public use issue since Kelo. Over the last 10 years, the tide had been going the other way, with more and more state high courts applying restrictive definitions of “public use” and forbidding economic development takings of the kind upheld in Kelo, including important decisions in Ohio, Oklahoma, and Michigan, among others.
NetsDaily, Court of Appeals Permits Condemnation for Barclays Center
In a 6-1 decision, the New York Court of Appeals has turned down critics’ arguments that the state’s Empire State Development Corp. violated New York’s constitution in pursuing eminent domain to acquire land for Atlantic Yards, including Barclays Center. The ruling means the ESDC will now be free to begin condemnation proceedings against landowners. There is no appeal to the US Supreme Court.
NBC New York, Latest Legal Obstacle at Atlantic Yards Project Cleared
"They have won round one, and we still have round two to go," Brinckerhoff said. "I think everybody believes that they need to do a number of things by the end of the year, and where exactly this fits into that process I'm not sure. But the fact that they haven't yet taken the properties can't be helping them."
Dome Pondering, Taking Care of The Real People That Build These Stadiums
I understand the power of sport and business. I definitely do.
However, sports are just an avenue of entertainment and enjoyment. A mere means of theatrics, thrill, and emotion that remove us from the on-going struggle of everyday life. Sports, however, are in no way an essential part of life.
Even as an admitted fanatic of the New York Yankees and New York Knicks, I understand that as rich in history as the two franchises and their two home facilities in Yankee Stadium and Madison Square Garden are (or have been), they are not as important as the important things in life. They are not as important as life.
With that understanding, is why I cannot understand the constant movement for the Atlantic Yards project here in Brooklyn, NY.
...With all of the perks and benfits now reduced to just a basketball and event arena, is this project even worth it?
Orange Juice, Major Court Ruling Property rights decision...Atlantic Yards
What a sad property rights update two days before Thanksgiving.
We just celebrated Veterans Day to honor those patriotic Americans, some of whom made the ultimate sacrifice for freedom abroad while we are losing it right in our own back yards.
Government agencies using their “police powers” of eminent domain to take our homes and businesses when we have no desire to sell.
The AM Law Litigation Daily, New York High Court Dismisses Eminent Domain Challenge to Atlantic Yards Complex
Is there a more contentious development project in the United States than the proposed $4.9 billion Atlantic Yards housing-stadium-office mexa-plex near downtown Brooklyn?
Posted by eric at November 24, 2009 6:11 PM