Brooklyn's Eminent Domain: DDDB v. ESDC

The opponents and proponents of the massive Atlantic Yards project in Brooklyn assembled on Thursday, May 3, 2007, before New York State Supreme Court Justice Joan A. Madden. Lawyers for both sides argued before a packed court room for more than 3 hours.

Norman Oder's comprehensive blog post covering the oral arguments can be found at the Atlantic Yards Report: ESDC grilled over blight, "civic project" in EIS lawsuit hearing, but judge's latitute may be limited.

The definition of blight was among the interesting issues argued. Another argument focused on whether the proposed arena can be considered a "civic project" under New York state law. As to the latter issue, we are of the opinion that the proposed new arena for the NETS is window dressing for a massive real estate project backed by developer Bruce Ratner of Forest City Ratner (FCR).  A telling point made by attorney Jeffrey Baker, representing Develop Don't Destroy Brooklyn and 25 neighborhood and civic groups, is that the alleged blight was determined after developer Ratner decided what the footprint for the project should be. In other words, Ratner went shopping for other people's property and the Empire State Development Corp. (ESDC) obliged him: they did the blight study after the project was announced.The predetermination of the project footprint by FCR prevented the ESCD from considering alternative locations, such as Coney Island, for the new arena.

Ratner's predetermination of the site and his desire to tie it to a mixed-use development was the theme for this opera, and ESDC and the MTA provided the full orchestration. Why couldn't this project be limited to the rail yards? Is it necessary to acquire and build on all the surrounding properties to achieve the "civic purpose" to bring professional sports to Brooklyn? We've seen the answer over and over in redevelopment projects in New Jersey: "There's gold in them there redevelopments." This project has more to do with real estate development than with the arena. Arena projects, per se, are losers (see the Field of Schemes site.) They do not generate enough dollars to justify the cost of the land and construction. The sales pitch is always more jobs and business coming to the area. The jobs issue is minimal at best: 300-400, mostly part-time and low-paying jobs. On the whole, sports subsidies do not benefit the community. Research shows that stadium and other sports subsidies benefit team owners, like Bruce Ratner,  and professional athletes.

Baker argued that the legislature never intended a privately-owned sports facility as a "civic project," which is defined as “a project or that portion of a multi-purpose project designed and intended for the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes.”

As for the the blight determination, Baker asserted, “There is no mention that the purpose of this project was to avoid and eliminate blight.” Oder reports that the blight determination was included in ESDC’s scoping document of September 2005.

The challenge to the blight designation centered on the blocks designated for the project outside the Atlantic Terminal Urban Renewal Area which were never determined to be blighted, Oder reports:

Baker put new posters on the easels, pointing to the apparent contradictions in the state’s blight study, which counted multiple indicia of blight, including unsanitary/unsafe conditions, vacancy status, empty lots, and the failure to use 60% or more of the allowable development potential.

He pointed to two buildings on Pacific Street, above. “I would ask your honor,” he addressed Madden. “Which is blighted? You can't tell.” ....

Baker called the state’s criterion of underutilization “a fairly unique concept,” because it lacked any analysis of how the property is being used. The lot at the northwest corner of Dean Street and Flatbush Avenue, he said, is considered “dramatically underutilized,” but now is occupied by “a highly successful gas station.” There’s nothing in the law, he said, “that says all buildings must be built to the maximum size possible.” The ESDC’s method, he argued, “is, per se, arbitrary and capricious.”

A summary of the issues in the DDDB v. ESDC case can be found on the Develop Don't Destroy Brooklyn site. If the suit succeeds, the ESDC will be forced to revise its Environmental Impact Statement (EIS), delaying the project. Justice Madden is expected to issue her ruling in four to six weeks.