Atlantic Yards

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The Atlantic Yards is a development project designed by Forest City Ratner for a 22 acre area in Downtown Brooklyn, adjacent to the neighborhoods of Prospect Heights, Park Slope and Fort Greene in Brooklyn, New York City. The bulk of the project will be built over a train yard that is utilized by the New York City Subway and the Long Island Rail Road.

About one third of the Atlantic Yards site is comprised of the LIRR's Vanderbilt Railyards (as seen in September 2006). The majority of the properties are homes, small businesses and public streets. Click here for Atlantic Yards Photo Simulations.

The Brooklyn developer Forest City Ratner design includes a business and residential complex as well as a Brooklyn Nets Arena (Ratner purchased the NBA team with the intention of bringing the first major league professional sports team to Brooklyn since the departure of the Brooklyn Dodgers in 1957). The arena represents about 10% of the Ratner proposal, with the balance being split between residential, office and retail development. The largest portion of the proposal is mixed-income residential housing. Of the 6,430 units, 1,930 will be market-rate condominiums. The remaining 4,500 will be rental units, half of which will be set aside for middle and low income families.

The 8.4 acre portion owned by the Metropolitan Transportation Authority is officially called the Vanderbilt Yards. The rest of the area known as the Atlantic Yards is a mixture of public streets, private homes and small businesses. Forest City Ratner has bought much of the private property, but does not own the public streets and is still in the process of receiving permission from the State. This will be contingent upon approval from the Public Authorities Control Board, which killed the West Side Stadium that had been proposed in Manhattan.

Spearheaded by Mayor Michael Bloomberg, the project has received the approval of the Empire State Development Corporation.^[1] Additionally, the shadows the project will impose on Fort Greene, the light polution from the advertising that will cover the arena, the costs for terrorist insurance (the Atlantic subway station has already been an attempted terrorist target, and the Ratner proposal calls for the highest population density in North America), the incompatibility of the density and design with the existing neighborhoods, and the negative effects of increased traffic congestion on asthma rates and the Brooklyn economy. The Ratner proposal would create the highest density census tract in the United States, and it would possibly represent the highest population density in North America or Europe.

Popular liberal blog Left Behinds compared Gehry's Miss Williamsburg design to "some giant grey Transformer clomping its foot down on Park Slope. And imagine when in a few years all those pristine white beams get coated in soot from the neverending traffic jams that are projected as a direct result of this development (have you ever tried to drive through Flatbush or Atlantic during rush hour or on a weekend?). It'll be a Transformer's giant grey dirty foot. ... A well-designed development would be built on actually unused land (such as the Yards themselves) not on top of people's homes nearby. It would take into account the neighborhood character of Brooklyn as well as the technical limitations of traffic and sewage."[1]

On February 14, 2006, New York State Supreme Court Justice Carol Edmead ruled in favor of the dismissal of attorney David Paget as the Empire State Development Corporation’s (ESDC) outside counsel. Paget, who has been advising the ESDC in its environmental review of the Altantic Yards project, had previously also worked for FCR companies until October 2005. Justice Edmead concluded that the appointment of Paget to the ESDC represented a conflict of interest, calling it "a severe, crippling appearance of impropriety." Furthermore, Justice Edmead gave the ESDC 45 days to find a new attorney to meet the standard of "objective public interest." [2] On May 30, 2006, the Appellate Division, First Department, reversed Justice Edmead's the decision. "The motion court misapprehended material facts and misapplied the applicable law in granting the petition to the extent of disqualifying Paget and his law firm from representing ESDC," Justice Milton Williams wrote for a unanimous panel.

[edit] Environmental impact

An issue concerning wastewater management was brought up during a preliminary environmental impact assessment of the project, catching the attention of Carroll Gardens residents. According to the March 4, 2006 edition of The Brooklyn Paper, the sewage created from the development will flow into antiquated city-run sewer and waste treatment systems — which overload when it rains. The result, is that allegedly 27 billion gallons of untreated wastewater will drain into waterways around the city each year, including 13 spigots on the Gowanus Canal. [3]

[edit] Lawsuit by community groups: Litigating "government purpose" as an issue of fact, using Justice Kennedy's Kelo criteria

In late October 2006 community groups filed a lawsuit in federal court against Bloomberg, Governor George Pataki, Bruce Ratner of Forest City Ratner and to stop the project. The plaintiffs are charging that the project would not serve public use, as required by legal tradition. The suit is being led by Matthew Brinkerhoff ^[2]The suit is 'Goldstein v. Pataki.'[4]

The lawsuit was prompted by an open letter to the Village Voice, which appeared on the www.nolandgrab.org website. This letter stated that Justice Kennedy's Kelo concurring opinion could be used to attack eminent domain as a violation of minimum scrutiny, which says that government policy (including an eminent domain use), must be rationally related to a legitimate government purpose.

Here is the letter which led to the Atlantic Yards lawsuit. T

Eminent domain can be used if there is

1. a rational
2. relation
3. to a legitimate government purpose.

That is, eminent domain need only pass this “minimum scrutiny” test. In the past, “government purpose” was construed so broadly by the Court that people felt they could never use it as a defense against eminent domain. In the 1984 Hawaii Housing Authority v. Midkiff case, the Court said that the purpose need be “conceivable.” This led people to conclude that there did not, in fact, have to be a government purpose, that if government did not even have a purpose, the Court would step in and supply a government purpose.

However, the Court then realized that if there is in fact no government purpose, there is in fact no government, and the famous case of Marbury v. Madison established that under the Constitution people have a right to government. Not wanting to overrule Marbury and destroy the Constitution, the Court rethought the idea.

The Court then indicated that, in fact, there had to be a government purpose. It began in two 1996 cases. In U.S. v. Virginia the Court said that government purpose “must be genuine, not hypothesized or invented post hoc in response to litigation.” In Romer v. Evans, the Court expanded on this idea, saying that the government purpose must be “an independent and legitimate legislative end....”

Your article indicated that in the otherwise unfavorable Kelo case, there might be wording favorable to Atlantic Yards residents. There is. It is in Justice Kennedy’s concurring opinion. Here’s how to determine if there is in fact government purpose. It is a list of evidence those opposed to Atlantic Yards will now obtain by deposition and document subpoenas:

“A court confronted with a plausible accusation of impermissible favoritism to private parties should [conduct]….‘a careful and extensive inquiry into ‘whether, in fact, the development plan [chronology]

[1.] is of primary benefit to . . . the developer…, and private businesses which may eventually locate in the plan area…,

[2.] and in that regard, only of incidental benefit to the city…[.]’”

Kennedy is also interested in facts of the chronology which show, with respect to government,

“[3.] awareness of…depressed economic condition and evidence corroborating the validity of this concern…,

[4.] the substantial commitment of public funds…before most of the private beneficiaries were known…,

[5.] evidence that [government] reviewed a variety of development plans…[,]

[6.] [government] chose a private developer from a group of applicants rather than picking out a particular transferee beforehand and…

[7.] other private beneficiaries of the project [were]…unknown [to government] because the…space proposed to be built [had] not yet been rented….”

In the Kelo case, the New London newspaper The Day discovered that none of these conditions had been met and, several months AFTER the Kelo decision, published an account which showed that Pfizer—the drug company which wanted the land—had approached New London and THEN New London announced it wanted to “redevelop” the area. In short, New London had simply abrogated government purpose and substituted Pfizer’s purpose.

What difference does that make? Justice Kennedy is concerned about government entities substituting private purpose for government purpose. That is why he wants litigators to go back and find out such things as, who contacted who first, what facts went into the decision-making process, and so on. Substituting private purpose for government purpose is so common now that it even has a name in political science: “capture theory,” in which private actors simply do whatever is necessary to prompt government officials to adopt their purpose. But just because it is common, doesn’t mean that it is Constitutional. When it substitutes private for government purpose, it violates minimum scrutiny and cannot be allowed.

I don’t think it will take a genius to find out that private purpose has been substituted for government purpose in the Atlantic Yards case. There is already so much evidence of it in the press that it seems impossible that a judge would not grant an injunction—even at this relatively early stage—against the project on the basis that it violates minimum scrutiny because there is no government purpose, only private purpose.

However, when attorneys defending the Atlantic Yards residents go into court to make that motion, they better come prepared to show that they have done their homework: they better take the depositions and subpoena the documents implied by Justice Kennedy’s remarks. Attorneys have become so lazy under the former lazy definition of government purpose, that they don’t do their work. The Atlantic Yards residents should bring heavy pressure on their attorneys to do the work Justice Kennedy demands.

Cordially yours,
John Ryskamp
Berkeley, CA.