Jane Jacobs on Atlantic Yards: “What a shame” (really)

Alex Marshall's review of The Battle for Gotham: New York in the Shadow of Robert Moses and Jane Jacobs, by Roberta Brandes Gratz, reminded me to go back to my notes for several posts I had planned.

There's a lot to mine from the book, but first, consider Gratz's mini-scoop regarding Jacobs and Atlantic Yards. After delineating the story of AY--a throwback to Robert Moses-style development--Gratz takes aim at those who claim the legacy of Jacobs just because they create a project with "mixed use."

Change and "catalysmic" money

Jacobs, she writes, was not against "change," but supported a mix of old and new:

And, of course, a true reading of Jacobs’s books versus a pseudounderstanding would indicate her disapproval of everything about Atlantic Yards but also her expectation for continued change and growth, just not [Bruce] Ratner’s idea of change and growth, any more than a Moses plan. A basic Jacobs precept is complexity: no complexity is possible in a monolithic development of this scale by one developer and designed by one architect.

Another basic Jacobs precept is opposition to "cataclysmic” money and development. Surely, this project qualifies as cataclysmic change. The proposal is so inimical to the character of the district and, in fact, the whole borough of Brooklyn that it is off any chart of Jacobs’s’ principles.

Trying to show how Atlantic Yards contradicts every Jacobs principle can be tiresome. And, in fact, she was too unpredictable for such an exercise. Furthermore, Jacobs was never about how to develop or design as much as how to think about development, how to observe and understand what works, how to respect what exists, how to scrutinize plans skeptically, how to nurture innovation, new growth, and resilience. That says it all.

As it happens, I had a brief conversation with Jane about Atlantic Yards in one of my last visits with her before her death. The development had only recently been proposed [Jacobs died 4/25/06], and she agreed that it was right out of the pages of old, discarded development models derivative of Moses. There was not much to discuss. She shook her head and said, “What a shame.”

(Emphases in original)

There is more to say, however. If Jacobs was never about how to develop but how to think about it, how should we think about it?

There are some lessons in the book, and some lingering questions, both of which I'll address in an upcoming post.

Times continues tough scrutiny of stadium deals in... New Jersey

Almost a year ago, on 10/11/09, the New New York Times Sports section offered a toughminded story headlined In East Rutherford, N.J., New Football Stadium, but at Whose Cost?

Only in the last paragraph did the article mention payments in lieu of taxes (PILOTs) used by the Mets and Yankees to pay off their stadiums, a highly questionable deal. The similar financing scheme for the Atlantic Yards arena was ignored.

Today the Times follows up with As Stadiums Vanish, Their Debt Lives On, which explains:

The old Giants Stadium, demolished to make way for New Meadowlands Stadium, still carries about $110 million in debt, or nearly $13 for every New Jersey resident, even though it is now a parking lot.

...New Jerseyans are hardly alone in paying for stadiums that no longer exist. Residents of Seattle’s King County owe more than $80 million for the Kingdome, which was razed in 2000. The story has been similar in Indianapolis and Philadelphia. In Houston, Kansas City, Mo., Memphis and Pittsburgh, residents are paying for stadiums and arenas that were abandoned by the teams they were built for.

The Atlantic Yards angle

The article doesn't mention Atlantic Yards, or the new baseball stadiums. However, even if they don't have taxpayers on the hook for bonds, they have significant infrastructure and land subsidies--about $300 million in direct subsidies for the arena--and highly questionable bond financing schemes, in which PILOTs are used to pay off the debt, relying significantly on federal tax breaks.

Indeed, the combination of subsidies and tax breaks, including $194 million in federal tax breaks on tax-exempt bonds, added up to what the New York City Independent Budget Office (IBO) calculated (using somewhat higher estimates for the total bond deal) as $726 million in savings on the arena for developer Forest City Ratner.

And that's without assuming--as did Assemblyman Richard Brodsky, in the case of the new Yankee Stadium--that the use of PILOTs to pay for a sports facility constitutes a full subsidy in itself.

To the city and state, the schemes are defensible--after all, the land is mostly, or completely tax-exempt, so the PILOTs are a win-win. But there's a hook. (There always is.) As the IBO said, explained, the tax-exempt status of the land was supposed to drive up the cost of the arena site:

This estimate of the cost to the city of the arena’s property tax exemption is considerably larger than we estimated in 2005. The MTA portion of the land is currently tax-exempt because the land is publicly owned. IBO’s latest estimates assume that if FCRC or any alternative developer operating solely with as-of-right benefits purchased the rail yard from the MTA, the exemption would expire. In our 2005 report we had assumed that the exemption would continue through a leasing arrangement—even if the arena site were transferred to another developer—because that would maximize the proceeds for the MTA. It is clear that the MTA’s ability to maximize its return from property sales has been constrained. Moreover, the latest modified project plan stipulates that FCRC must pay the equivalent of full property tax to the city for all but the arena portion of the project.

(Emphasis added)

The Times: only now are politicians looking

Today's article states:

How municipalities acquire so much debt on buildings that have been torn down or are underused illustrates the excesses of publicly financed stadiums and the almost mystical sway professional sports teams have over politicians, voters and fans.

Rather than confront teams, they have often buckled when owners — usually threatening to move — have demanded that the public pay for new suites, parking or arenas and stadiums.

With state and local budgets stretched by the recession, politicians are only now starting to look askance at privately held teams trying to tap the public till.

In New York, some, like Brodsky, have been looking for a while, even though he displayed a curious agnosticism toward Atlantic Yards.

And, unmentioned in the article, the state in the case of the Brooklyn arena simply gave away naming rights, another subsidy (worth more than $200 million) that even the IBO didn't calculate.

"Hope that something pure can last": "The Wilderness Downtown," on-the-fly web videos, and Atlantic Yards nostalgia

The Arcade Fire and Google have teamed up to create "The Wilderness Downtown," a platform for custom web videos based on the song "We Used to Wait." The goal: provide a nifty new angle on nostalgia for your childhood home.

But it works, just as powerfully, for any place, especially any lost place, like addresses in the Atlantic Yards footprint.

Plug in an address (assuming it's in Google's Street View) and see street scenes incorporated into multiple browsers. (Use Google Chrome and close other browsers.) You can write a letter to your younger self, as per the lyrics:

But by the time we met
By the time we met the times had already changed

So I never wrote a letter
I never took my true heart I never wrote it down
So when the lights cut out
I was left standing in the wilderness downtown

Looking back at the Atlantic Yards footprint

At Prospect Heights activist Peter Krashes's suggestion, I plugged in the address for the Ward Bread Bakery. It's pretty eerie.

Ditto for Krashes's suggestion of Daniel Goldstein's building. (The images move quickly, but I did get a quick screenshot of the corner at Fifth and Flatbush avenues, one image from the on-the-fly video.)


And I decided to take a look back at Freddy's Bar & Backroom on Dean Street, which, on the video, is weirdly intact, rather than demolished.


The screenshot below gives a hint of the mushrooming trees that fill the screen at the end of the video.


A prescient line

One lyric seems prescient and pregnant:

Now our lives are changing fast
Hope that something pure can last

The beginning of a trend?

Wired reports:

If music videos were invented for the web, rather than for television, they might look something like this. The project uses the web browser itself as an artistic medium, showing off the HTML5’s potential for interaction and multi-paned viewing rather than just using the browser as a frame for a plain, television-style video.

The whole thing works on a number of levels — in part due to the song’s lyrics, which are a paean to the analog days of writing letters and waiting for them to be delivered, speculating about what might happen if the electronic wonderland we’ve created for ourselves should disappear some day.

Blogger Josh Stearns observes:

At it’s most basic, what the “The Wilderness Downtown” does is point out a new way of telling stories online. It is beautiful, immersive, and engaging. It calls us to participate, to follow up, to stay engaged. It challenges us, inspires us, awes us. All of these are qualities we need in the news.

Some browser cautions

Wired warns:

A word of caution: Several browser windows open and close during the video, so resist the urge, if only for a few minutes, to alt-tab over to your e-mail or any other browser window. We ran this “Chrome HTML Document” successfully using both FireFox and (of course) Google’s Chrome browser, but Microsoft’s Internet Explorer failed to run it — a failure Google pins on Microsoft’s insufficient support for HTML5.

From "Intractable Democracy": Tom Angotti on "No More Affordable Housing Scams"

In Intractable Democracy: Fifty Years of Community-Based Planning, a new collection of articles and interviews by and with people associated with the Pratt Institute City and Regional Planning Program, there's an interview with former Chair Tom Angotti, now a professor in the Hunter College Department of Urban Affairs and Planning.

Angotti, who writes pungently in Gotham Gazette about planning issues, including Atlantic Yards, and served as a consultant for the Council of Brooklyn Neighborhoods, tells his interviewer:

I've co-organized a conference that's coming up in a week called "No More Affordable Housing Scams." It comes out of a lot of dissatisfaction that what we fought for--and Pratt was really instrumental in this too--was inclusionary zoning, but that's not what we got. What we got was a very poor stepchild; it's not mandatory, and it's not truly affordable, because it uses the area-wide AMI--area median income--instead of using the median income for local neighborhoods. So it's been the Trojan horse that brings luxury housing to communities like Harlem's 125th Street, the Lower East Side and so forth, and people are looking for an alternative, looking for a way out of these "scams."

The issue of AMI also applies, of course, to the subsidized housing destined for the Atlantic Yards site. As officially planned, only about half of the 2250 units would go to families at 80% of AMI, the upper bound for the category the Daily News defined as "the real Brooklyn."

And it could be far more skewed for the first tower, which, under five of the six scenarios contemplated, would have 60% to 80% of the units at 165% of AMI.

I didn't go to the conference Angotti mentioned, but the announcement is below.

No More Affordable Housing Scams Poster

New York Times Public Editor seeks to maintain "sacred cloak of impartiality." Isn't it a bit late?

In his second column, Arthur Brisbane, the new New York Times Public Editor, is already wading into deep waters.

His column yesterday, In an Age of Voices, Moving Beyond the Facts, expresses alarm about news articles that contain "opinion" or "interpretive journalism":

When I asked Matt Bai about his Aug. 12 “Political Times” column on Representative Paul Ryan — the one Mr. Johnson criticized — he said: “I guess my column is part of a broader effort to take some chances in the paper and explore different formats for a new era. I think that represents a great and exciting trend for the paper; none of us can afford to think in old rubrics for new generations of readers.”

Bai’s editor, Richard Stevenson, the deputy Washington bureau chief, elaborated on how The Times is navigating the new norms. “We are still exploring how much of a voice you can have ... what kinds of conclusions you can draw when it comes to politics,” he said.

A news-page column like “Political Times” carries the “freedom to reach a reported conclusion,” he said. Not to “throw opinion around,” but to “express in a restrained and fact-bound way a conclusion about something.”

The "reported conclusion"

I think the notion of a "reported conclusion" is legitimate. Why? Because the Times, and the "objective" press, is full of implicitly reported conclusion.

Consider, for example, the egregious example of the Times quoting, without qualms, the claim last September by a New York City Economic Development Corporation spokesman that Atlantic Yards was "a site that is now an open railyard without any public benefit."

What made that claim even more egregious was that, well before the deadline for print, I posted a comment on the CityRoom blog demolishing that claim. I ran this all by Brisbane's predecessor, Clark Hoyt, who, predictably enough, ignored it.

The question might be: how to get to better reported conclusions?

The confusion

Brisbane makes the legitimate point that the Times is confusing its readers by suggesting fine distinction between rubrics such as “Man in the News,” “Reporter’s Notebook,” “News Analysis,” and “News-Page Column.”

He concludes:

These narrow distinctions reflect the struggle to remain impartial while publishing more and more interpretive material. How to resolve this tension?

One path is to do a much better job of labeling the work — and please don’t bother with the fine distinctions. Call it commentary or call it opinion, but call it something that people can understand.

That, or abandon the sacred cloak of impartiality.

I vote for the former but concede that the latter may offer better traction in the opinion-gorged landscape of the future.

So Brisbane wants the Times to maintain the "sacred cloak of impartiality." If so, then he'd better focus not only on explicit efforts to inject opinion--or conclusions--but also implicit ones.

Giving Gillmor short shrift

Brisbane gives one critic short shrift:

Dan Gillmor, director of the Knight Center for Digital Media Entrepreneurship at Arizona State University, the whole effort to demonstrate impartiality is wrong-headed to begin with... He sees no conflict between “having a worldview and doing great journalism,” and points to British papers like The Guardian and The Daily Telegraph as examples.

But Gillmor, in 1/20/05 blog post on The End of Objectivity, points to much more than the British press. He cites the importance of thoroughness, accuracy, fairness, and transparency.

The practice described by Gillmor that I've taken to heart is this:

Another way to be transparent is in the way we present a story. We should link to source material as much as possible, bolstering what we tell people with close-to-the-ground facts and data. (Maybe this is part of accuracy or thoroughness, but it seems to fit here, too.)

And an online format allows for that.

Readers react

Most readers, some of whom froth that the Times, as a liberal newspaper, is infecting its political coverage with liberal cant, agree with Brisbane.

Some of the more thoughtful ones, to my mind, disagree, pointing to the bigger picture. Three excerpts are below.

Bruce:

IT SEEMS to me that news coverage in the past few decades has been neutered by the need to keep up the appearance of being neutral. the fear of being called biased has cowed, in this case, the nyt reporters into being stenographers instead of reporters.

Suzanne Lainson:

I think there is inherent bias in everything we do. We all bring some sort of perspective to what we write. We decide who to interview, how to organize the information, how much space to give the story, where to feature it, and so on. Therefore, I would much rather have those biases very visible, and then, in order to get a broader picture of the story, I may seek out a variety of viewpoints. At the same time, there is a place for information, so that readers know how a particular story may impact their lives. There may be disagreements about a reporter's conclusions, but it is still helpful to be told why a particular story is important.

JH:

I recommend (a) Rosenstiel's dictum that impartiality should be regarded as a method, not as an outcome, and (b) the late Paul Foot's observation that "facts are the gold standard of comment." And, by the way, is there a difference between "comment", which, at least inferentially, is fact-based, and "opinion", which can be completely fact-free, or even fact-averse? Perhaps a greater threat than the type of articles discussed here is the threat from the subliminal use by news reporters of prejudicial language, juxtaposition, and selectivity to shepherd the unwary reader towards a pre-ordained view of the significance or meaning of events that coincides neatly with the undeclared and probably unexamined prejudices/world view of the writer. This s a much older and more intractable problem than the heading of the section in a paper where particular article appears.

B J E:

To me, even the most "objective" of news stories has a slant to them, either by omission or inclusion, so a jump to an opinion news piece is the next step. The real need then is to have the writer use reasonable facts to explain their conclusions, otherwise the article is purely an opinion piece and just a "he said, she said" piece.

Rosenstiel on fairness

The commenter referred to Tom Rosenstiel, director of the Pew Research Center’s Project for Excellence in Journalism. He co-authored a 2001 book (updated 2007)with Bill Kovach, The Elements of Journalism: What Newspeople Should Know and the Public Should Expect.

From a review by Dane Claussen in Newspaper Research Journal:

In their "Journalism of Verification" chapter, where they do discuss "fairness" and "balance," they argue that impartiality is not necessary for the news media. Later, Kovach and Rosenstiel conclude that journalists should be independent, not neutral. They embrace a lost meaning of objectivity that refers to the reporting method, not results. In fact, they wisely point out,

"Balance, for instance, can lead to distortion. If an overwhelming percentage of scientists, as an example, believe that global warming is a scientific fact, or that some medical treatment is clearly the safest, it is a disservice to citizens and truthfulness to create the impression that the scientific debate is equally split. Unfortunately, all too often journalistic balance is misconstrued to have this kind of almost mathematical meaning, as if a good story is one that has an equal number of quotes from two sides. As journalists know, often there are more than two sides to a story. And sometimes balancing them equally is not a true reflection of reality."

In race for State Committee in the 52nd: Jo Anne Simon (finally) takes gloves off; also, Lopez candidate gains as Owens, Strauss vie for reform votes

A year after it really mattered, Jo Anne Simon has directly gone after the candidate endorsed by Brooklyn Democratic Party boss Vito Lopez.

This time it's for re-election to her unpaid position as State Committeewoman, or Female District Leader (Democratic) for the 52nd Assembly District (represented by Joan Millman). The vote will be during the primary election on September 14.

Like a couple of other races, it is essentially (as the Brooklyn Paper described) a referendum on Lopez, the political powerhouse, who, among other things, ensured that a new law toughening subsidies for affordable housing would not apply to Atlantic Yards. (The developer's argument was that the project was planned under the assumption 421-a subsidies would be available.)

And unlike the race for Male District Leader, in which the presence of two reformers should help the Lopez candidate, this one's one-on-one.

Jo Anne Simon Committee

What do district leaders do? Help pick the party's chairman, help pick judges--a real opportunity for patronage--hire poll workers, and help get candidates on the ballot.

Keeping the gloves on

Last year, while Simon and fellow reform candidates in the 33rd Council District (three from Brownstone Brooklyn) engaged in endless debates, Lopez aide Steve Levin worked hard, built his base in the Williamsburg part of the district, and, though gaining little more than a third of the vote, won by a good margin.

Simon didn't directly go after Levin, and without an instant runoff voting (IRV) system that allows voters to rank their preferences, the fact that most voters essentially opposed Lopez and Levin wasn't meaningful.

Taking the gloves off

Now Simon's going directly after Hope Reichbach, described in the mailer above, as having "no record of reform and too-close ties to Party insiders." Reichbach works for Levin.

Along with her running mate, Stephen Williamson, Reichbach has a good number of endorsements, including Borough President Marty Markowitz and Wyckoff Gardens tenant leader Charlene Nimmons, head of an Atlantic Yards Community Benefits Agreement signatory, Public Housing Communities.

Reichbach's issues page offers a saccharine description of the importance of political engagement; there's no mention of Lopez. (She told the Daily News that "I recruited myself.")

The Male District Leader race

Reichbach's running mate, Williamson, also worked on Levin's campaign. He was set to challenge incumbent Alan Fleishman, a Lopez foe.

But Fleishman has since withdrawn, which has set up an interesting situation. Simon's mailer says that Jesse Strauss has "taken Fleishman's place on the ballot," which isn't quite true.

Strauss, a CB2 member and a member of the executive committee of the Independent Neighborhood Democrats (IND), has been endorsed, as has Simon, by Joan Millman and the IND.

Chris Owens, who ran unsuccessfully for Congress in 2006 and has a long history of activism challenging Atlantic Yards (among other things), got endorsements from the Central Brooklyn Independent Democrats (of which he was once president) and the Lambda Independent Democrats.

In such obscure races on a primary day with no major race to bring voters to the polls--the biggest statewide contest is the Attorney General primary--the candidates understandably want most to get voters out in the first place.

But without IRV, Strauss and Owens should be doing their best to remind reform-minded voters not merely that they are reformers, but that only one of them has the best chance to beat the candidate favored by Lopez and Markowitz.

(By the way, the race for Female District Leader in the 57th Assembly District is getting rather tabloid, at least according to The Local.)
Simon 2

"Stealing the common from the goose": Henry Stern's compelling case against 15 Penn Plaza (and the glaring Atlantic Yards blind spot)

Henry Stern, the former Parks Commissioner and founder of the watchdog group New York Civic, has written a compelling column, Gargantuan Tower Approved Two Blocks From King Kong, regarding the city's approval of 15 Penn Plaza, Vornado's fat skyscraper near Penn Station. (It's also on HuffPost, as The Great Giveaway.)

His point, relying on Community Board arguments, is that the issue is not accepting "change" or blocking a view from the Empire State Building, but whether a connected developer gets a set of variances to build 56% bigger than officially allowed.

(I referenced this point as well when I wrote about the issue on August 24, but could have emphasized it more.)

And his rhetoric is firm:

We believe that what happened in this case is a textbook example of unsound public policy, favoritism to a particular extremely well-connected developer, and lack of regard for the future of the commercial neighborhood around Penn and Moynihan Stations. To grant a massive upgrade to a property owner with no tenant, no financing and no immediate plans to build is premature and irresponsible.

...It is a top-down decision, clearly made at City Hall and not by the Planning Commission, which should have been embarrassed at the tricks they had to turn.

The blind spot

Sounds like... another top-down decision, the approval of Atlantic Yards, that had even less process, because the state, not the city, is in charge.

Remember, while Forest City Ratner very much wanted to build an arena, given the New Jersey Nets' losses at the Izod Center, the main tower, Building 1 (aka Miss Brooklyn), has no financing or tenant, the affordable housing depends on scarce subsidies, and the officially-stated plan to build the 16 towers in a decade is chimerical.

And remember, Forest City Ratner promised not to block the clock of the Williamsburgh Bank tower, but then it did, even after Miss Brooklyn was made a foot shorter than its neighbor, at the ostensible behest of the City Planning Commission, which should have been embarrassed at the tricks they had to turn.

But Stern is Bruce Ratner's old mentor, and Ratner has contributed to New York Civic. So Stern's critical scrutiny has reliably bypassed Atlantic Yards.

The public interest and campaign contributions

Stern asks, regarding 15 Penn Plaza:

Which, if any, of these guardians of the public interest will speak out on this issue, on either side? We will listen and report to you.

Well, it looks like Crain's New York Business was first off the block, reporting that City Council Speaker Christine Quinn, who had proudly claimed that a new law “successfully shifted power away from special interests” by limiting contributions to $400 from those with business before the city, actually got $19,900 from Vornado, of which nearly $15,000 is in a campaign account Quinn is expected to use in her 2013 run for mayor.

How'd the loophole work? Crain's reports:

A company or individual that owns a limited liability company that does business with the city is not bound by the “doing business” limits. In the real estate industry, limited liability corporations are commonly created to protect the decision-makers behind a project.

The variance issue

Stern writes:

The Times quote in support of the proposed tower came from Mitchell L. Moss, a policy adviser to Mayor Bloomberg: "People don't come to New York to visit caves. They want the views, the height, the experience of tall buildings. Skyscrapers allow us to make the best use of a limited amount of land."

The opposition quote was a snippet from my testimony at the public hearing on the matter, in which I called the proposed 15 Penn Plaza: "An assault on the Empire State Building and the New York City skyline."

The subject deserves more attention than that fragment of a sentence.

Yet the skyline of New York City is ever-changing... In this case, however, the proposed tower was far outside the zoning codes, and required five separate changes in the law to give the developer the height and bulk of the building that he wanted to erect. That is why the Community Board and the City Council were involved under the city's Uniform Land Use Review Procedure (sometimes affectionately called ULURP).

With Atlantic Yards, the process evaded ULURP, because the Empire State Development Corporation overrides city zoning. The three affected Community Boards all expressed opposition or significant concern.

What the CB said

Stern writes:

Board 5, however, is generally sympathetic to development and reflects the moderate views of its upscale community.

The Board held two public hearings and voted to oppose the project, 36 to 1, which is, for a community board, an overwhelming margin. They did not act at the behest of rival developers or NIMBY (not in my back yard) devotees. Board Five stated its objections on June 11 in a letter to Amanda Burden, chair of the City Planning Commission. Read their letter:

"The Board does not oppose this project per se....

"First, in exchange for a 20% transit bonus, the applicant's proposal includes the restoration and reopening of the Gimbel's Passageway plus various other access and egress improvements, all of which we applaud. But as we note in our resolution, some of these improvements are either self-serving or mandated, and thus not sufficient for the 474,000 square feet received in exchange.

"Second, Community Board Five is deeply troubled by this application's request for midblock up-zoning (from a C6-4.5 to a C6-6) adding another 266,000 square feet to an application that lacks many confirmed details, including building size, height, tenancy, construction timetable or financing plans...

Of course, Atlantic Yards is equally speculative, and it likely will be many years beyond the ten announced before a full development scenario moves forward.

The failure of analysis

Stern quotes Vikki Barbero, the chair of Board 5:

"The ULURP process has ended and the Council has made its final determination. We remain distressed and dismayed, however, by the level of discussion and debate both in the media and at the Council.

"The issue before the Council was not principally about women and minority employment, as important as this issue continues to be in all job areas...voted on. The issue before the Council was not about a battle between two major real estate developers, as many press reports made it out.

"The issue before the Council was not about the need to foster jobs during this bad economic climate, for even the developer admits they won't be building for years to come. Yet, a number of our political leaders used that bogus argument as an excuse to support the project.

"And the issue before the Council was certainly not about sticking it to the Empire State Building because it failed to light up for Mother Teresa.

"The issue before the City and the Council was, in fact, about far more than just one project on one block of midtown Manhattan. It was about giving strategic and prudent oversight to a section of our city - the area around Penn Station - that is about to undergo significant change.

...A city as dense as ours, with so many competing interests, needs to thoughtfully and inclusively plan for its future and not let one wealthy and powerful developer override that process."

Can't argue with that.

Stern's comments

Stern endorses Barbero:

On this one, the CPC was clearly in the tank, abandoning its customary guardianship and attention to size, taste and design in its eagerness to approve the tower.

We believe that what happened in this case is a textbook example of unsound public policy, favoritism to a particular extremely well-connected developer, and lack of regard for the future of the commercial neighborhood around Penn and Moynihan Stations. To grant a massive upgrade to a property owner with no tenant, no financing and no immediate plans to build is premature and irresponsible. These valuable new rights will be for sale along with the property if the developer is unable or unwilling to build on the site.

Much attention has been paid to the Aqueduct racino and the unwholesome process used by the State of New York to select a developer. In this case, there is only one corporate developer. It is the value of the property, however, that is being changed by law to suit his particular demands. No one less well connected than the Vornado Realty Trust (owner of numerous major properties, including Bloomberg Tower) could play the system with such success and gain an unprecedented blank check for possible future development.

This is a case of the city making an extraordinary gift, probably worth hundreds of millions of dollars, to one of its richest and most influential developers. It is a top-down decision, clearly made at City Hall and not by the Planning Commission, which should have been embarrassed at the tricks they had to turn.

The point we make today was best expressed in 1764 in an insightful quatrain, which we have occasionally quoted when we believe it is relevant:

"The law doth punish man or woman
That steals the goose from off the common,
But lets the greater felon loose
That steals the common from the goose."

The public interest

And then he asks for "guardians of the public interest" to speak out.

The fact of the matter is that there are too few such guardians, and some of them are timid or compromised. Too much of the city's press, for example, is controlled by or overly influenced by the real estate industry.

The fact of the matter is that, yes, much has been said about the Aqueduct racino. Except that it looks like a more credible process than the one that gave us Atlantic Yards. Remember this chart from March, 2010:

"Judicial Deference to Unaccountable Agencies, and Reality in the Flatbush Avenue Lane Closure"--or, what's missing in the ESDC response to NY1

I have to admit, when I punched up the title of the law review article cited yesterday, "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project," I wondered if readers would think it over the top.

After all, the Empire State Development Corporation (ESDC) is, on paper, at least somewhat accountable. And they do answer my questions--not in a very forthcoming way, but they answer.

But they're not accountable.

Consider how, as I've written, the ESDC and Forest City Ratner (FCR) announced in July that the Flatbush Avenue lane closure would be resolved by "early 2012," but three weeks later, FCR said it would be "summer 2012."

The ESDC couldn't explain why.

The NY1 story

Yesterday, NY1 offered a report, Barclays Center Construction Forces Pedestrians Onto the Street:

The original notice said all lanes would be restored by early 2012. Project-watchers were surprised when Forest City Ratner pushed it back to that summer, when the arena is to be finished.

"In the larger scheme, I think it's important as a symbol of the Atlantic Yards project, which is, who's really accountable for the project?" says "Atlantic Yards Report" blogger Norman Oder.

The Empire State Development Corporation, which is accountable for the project, told NY1 its "dedicated in-house team, now under the leadership of a new project manager... has successfully navigated the project... into the first steps of major construction."

Ratner's goal is to get all lanes open as soon, perhaps, as a few months before the arena opens. [This line is verbatim from audio.]

In other words, "beat" the new deadline.

Except there's no explanation for why the deadline was extended. NY1 stated in its article that the ESDC was accountable, but the ESDC quote doesn't answer the question. It's piffle. (Maybe that's why the voiceover stated "that's supposed to be the Empire State Development Corporation.")

Which is why I told the reporter--which didn't make it into the piece--that Atlantic Yards looks more and more like a "private-public project," as stated in the law review article, not a "public-private" one.

Law review article: "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project"

Atlantic Yards has survived all court challenges, but some of the wins have been ugly, leaving significant doubts about the capacity of the legal system to oversee such projects. So let the revisionism begin. (Cf. a line from the New York Times on Atlantic Yards.)

In the same issue of The Urban Lawyer that contains a revisionist article on the seminal Berman v. Parker eminent domain case, the author of that article, Amy Lavine, a staff attorney at Albany Law School's Government Law Center, and I collaborate on an article titled "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project."

The article is embedded at bottom. Lavine did the first draft, and offered me credit because she relied so much on my work. I collaborated significantly on revisions. (Note Lavine's disclosure--unknown to me until this article--that she "provided limited research for Develop Don’t Destroy Brooklyn’s state eminent domain and MTA lawsuits.")

(The quarterly journal is published by the American Bar Association Section of State and Local Government Law, and edited by professors and students at the University of Missouri-Kansas City School of Law.)

Below I offer some choice excerpts.

A public-private project?

We liken this project to a private-public development, rather than a public-private development, because it was devised by a private developer, it has significant private components and special private benefits, and because the public partner’s role has been more of an enabler than a policy-maker or supervisor.

NIMBY concerns?

Many of the concerns about Atlantic Yards might be classified as NIMBYist (not in my backyard), but many of the concerns are also well-founded, and project supporters’ attempts to paint critics as reactionary and frivolous are overstated and plainly incorrect. The planning process, or lack thereof, raises serious concerns about transparency and public accountability in the planning process, and the lawsuits have sought vindication of important constitutional and statutory rights.

Deferential judges

The courts have repeatedly used the principle of legislative deference to pass on the difficult issues—such as whether an arena is really a public good, whether private developers should be able to dictate that public good, the meaning of “blight,” and when a project changes so much as to require reapproval.

Inadequate process

Some of the most objectionable aspects of Atlantic Yards involve the development approval process, which failed to provide anything more than token opportunities for public competition, meaningful public involvement, or even review by local elected officials. While FCR and ESDC may not have violated any procedural laws or regulations, their actions were inconsistent with recommended best practices in the planning and redevelopment field. They also created the appearance of a backroom, sweetheart deal, although this perception has not been validated by courts.

Questionable bidding

Andrew Alper, then-president of the New York City Economic Development Corporation (NYC EDC), refused to acknowledge that there was anything amiss about the bidding process, explaining at a city council hearing that “we were not out soliciting a professional sports franchise for Downtown Brooklyn. . . . they came to us, we did not come to them. And it is not really up to us then to go out and try to find a better deal.” While the bidding process may have been lawful, it was certainly not above reproach. Urban planning professor Tom Angotti echoed Justice Kennedy’s concurring opinion in Kelo v. New London, calling the process “backwards.” As he explained, “[n]ormally, government does a plan for the area, then looks at the potential environmental impacts of the plan, decides what to do, and then either does it or puts it out to private developers to bid on. In Atlantic Yards. . . it is just the reverse.”

The Empire State Development Corporation's power

ESDC was given the authority to insulate itself from political and community opposition so that local concerns would not interfere with projects of statewide significance, either by delaying them with red tape or by prohibiting them altogether. Although neither the court of appeals nor the legislature has made any attempt to limit those instances in which ESDC can use its override authority, we believe, based on statutory guidance and general planning policies, that Atlantic Yards is not the type of project that should implicate such extensive powers. ESDC’s enabling legislation itself limits its ability to override local laws to cases where “compliance is not feasible or practicable,” and given ESDC’s compliance with ULURP for other large redevelopment projects, it is unclear why it would have been unfeasible or impracticable for Atlantic Yards.

Need to revamp ESDC role

Finally, limiting ESDC’s ability to override local zoning and planning laws is warranted because best practices in urban planning have changed dramatically since 1968, when ESDC was created. The importance of local comprehensive planning has been increasingly recognized and support for community-based planning (like that facilitated by ULURP) has grown in tandem with the smart growth, environmental justice, and sustainability movements. These planning considerations are not the sort of bureaucratic red tape intended to be avoided by ESDC’s creators.

The problem with SEQRA

SEQRA was intended to provide a “vital fulcrum from which the public can participate in . . . decisions inflicting environmental impacts on local communities.” Unfortunately, the statute is something of a paper tiger. It is an expensive and lengthy process, and it can be manipulated to exclude meaningful public participation and serious reviews of negative project impacts. This occurs all too frequently, as “officials often treat public participation as if it obstructs or provides only marginal benefits to the decision process, rather than embracing it as an essential element of decisionmaking.” SEQRA reviews can be particularly inadequate for projects like Atlantic Yards that are governed by negotiated bilateral contracts, rather than by fixed zoning and planning laws. In these cases, extensive negotiations between the public partner and the developer occur long before members of the public have the opportunity to offer comment. With decisions already made, public participation may become mostly ceremonial in nature.

The problem with environmental consultant AKRF

Aside from the cozy relationship between AKRF and FCR—which, it has been suggested, carries “an implicit warranty that travels with the work”—ESDC officials have acknowledged that AKRF, its “perennial environmental consultant,” always produces studies that are in accord with the agency’s plans. ESDC’s defense—that AKRF merely provides factual data, leaving the board to make the final decision—is weak. An EIS may be factual, but the manner in which data are (or are not) collected and reported can have a decisive impact on ultimate conclusions. And a supposedly independent consultant could easily be biased by a desire to maintain its go-to status for lucrative state contracts.

The problem with the Community Benefits Agreement

Although the Atlantic Yards CBA does promise some important community benefits, the unregulated CBA negotiation process cannot replace thorough, transparent, and accountable government planning, nor should it be portrayed as an adequate alternative. In the case of Atlantic Yards, the CBA was used to help legitimize the departure from ULURP and to simulate a measure of community involvement. As a result, decisions concerning development amenities were made secretly, and by a select group of project proponents, while critics were shut out of the process.

The problem with assessing public costs

The potential for Atlantic Yards to generate economic development benefits cannot be fully assessed without taking into account contributions from the public fisc. Unfortunately, subsidies are often indirect, hidden, or structured in such a way as to be unintelligible to the average taxpayer. And while subsidies can be obscured, project benefits are easily communicated: “jobs, housing, hoops.” In 2003 and 2004, Atlantic Yards was characterized by FCR and Mayor Bloomberg as primarily privately funded, although full disclosure might have added that much of the private funding would be dependent on the availability of public financing.

The standards for an eminent domain case

Both the district and circuit courts were hostile to the plaintiffs’ pretext claim, refusing to accord the litigants a chance to seek discovery. This result was due to the application of the Twombly/Iqbal heightened pleading standard and to the courts’ uncertainty as to how Kelo’s pretext language should be understood. According to the Second Circuit, the pretext analysis did not demand “a full judicial inquiry into the subjective motivation of every official who supported the Project,” as this would have entailed “an exercise as fraught with conceptual and practical difficulties as with state-sovereignty and separation-of powers concerns.”

But by cutting motivation out of the pretext analysis, the court ignored the heart of the complaint. While a pretext test based solely on motivation would be problematic, the court’s characterization of such motivational analysis as having “dubious jurisdictional pedigree” was incorrect. Numerous state courts have invalidated takings with conceded public purposes because of apparently unlawful or hidden motives.

The problem with deference

The Second Circuit also took a curious approach to the plaintiffs’ argument that ESDC did not deserve the same level of deference accorded to true legislative entities. While the court stated that “the primary mechanism for enforcing the public-use requirement has been the accountability of political officials to the electorate,” it did not acknowledge the fact that no elected offi cials had ever approved Atlantic Yards. Had the court disposed of the fiction that ESDC is accountable to the electorate, it might have put more weight into the plaintiffs’ pretext arguments—largely mirroring the factors set out in Justice Kennedy’s concurring Kelo opinion—based on the developer-driven nature of the project plans, the fishy sequence of the bidding process, the lack of procedural checks, and the incidental-versus-predominant value of the project’s asserted public benefits.

Pretext in state court

As in the federal court litigation, the second department and the court of appeals basically ignored the petitioners’ pretext arguments, giving no consideration to the actual motivations of ESDC. More significantly, given the low probability that the petitioners would have been able to prove bad faith intent on ESDC’s part, the court of appeals also failed to discuss the petitioners’ argument that the New York constitution requires the public use of a condemnation to be predominant, or more
than incidental. New York case law actually contains fairly significant support for the existence of such a balancing requirement. In addition to the 1951 case Denihan Enterprises, Inc. v. O’Dwyer, which invalidated a taking using this reasoning, numerous cases over the years have made use of the predominant/incidental dichotomy. Such a balancing test would be subject to the same high level of deference accorded to ESDC in other contexts, especially given the subjective nature of many public and private benefits. Nevertheless, ESDC failed to require FCR to submit any sort of profit projection, and it also failed to conduct a market study reviewing real estate trends in the project footprint, even though one had been specified in the contract for the blight study. These sorts of calculations, while not necessarily outcome-determinative, would seem to be basic components necessary to any weighing of public and private benefits for a project like Atlantic Yards. Although the petitioners could have better presented this argument by focusing less on the strict public use interpretation in their briefs—indeed, the comparison of public and private benefits only briefly came up during oral arguments —their overemphasis on a losing argument did not excuse the court from addressing the predominant/incidental argument.

The case challenging the environmental review

Justice [Joan] Madden’s analysis of whether an arena qualifies as a “civic project”—defined by the statute as a “project . . . providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes”—was questionable, even accepting the low standard of review. The statute contains separate definitions for commercial-type projects, and her explanation that being a spectator at a sports facility is essentially equivalent to participating in the sports activities themselves was not satisfying. She stood on firmer ground in determining that the project was a “land use improvement project,” as the classification is similar to a blight determination.

The case challenging the MTA's revision of the Vanderbilt Yard deal

Somewhat dubiously, [Justice Michael] Stallman concluded that the 2009 deal was more valuable to the MTA than the 2005 terms—he did not mention the generous 6.5% interest rate on what was essentially an $80 million loan or discuss the fact that the “value engineered” replacement railyard was much smaller than the one originally promised by FCR—but his ultimate determination that the petitioners failed to prove that the MTA acted arbitrarily or capriciously was more sound. The rational basis standard of review, after all, gives the MTA vast leeway to make decisions based on its assessment of what is in the best interests of the public. Although Stallman discussed the fact that property disposed of in furtherance of an economic development project need not be sold for fair market value under
the PAAA, he did not comment on the MTA’s debatable contention that it could not have bargained for a better deal, or waited for the market to adjust, because FCR had it over a barrel due to the recession.

The case challenging the revised Modified General Project Plan

The MGPP suit was dismissed on March 10, 2010, the day before the arena groundbreaking. State Supreme Court Justice Marcy Friedman, despite criticizing ESDC’s “deplorable lack of transparency,” rejected the petitioners’ UDC Act and unlawful delegation claims, and deferred to ESDC’s decision to reapprove the MGPP in 2009 without first completing a supplemental EIS.Friedman’s analysis was not especially nuanced, however. While she conceded that “ESDC’s continuing use of the 10 year build-out was supported. . . only minimally,” she determined that it was rational for ESDC to rely on the future existence of a ten-year provision in the development agreement despite the fact that the MGPP contained only an “agreement to agree” to this condition. Such contracts are enforceable only if they leave no material terms for later negotiation, and we submit that the development agreement’s provisions regarding extensions and penalties are material terms affecting FCR’s promise to comply with the ten-year timeline.

The bottom line

Like Judge [James] Catterson’s concurring opinion in the EIS case, Friedman’s
statement emphasizes just how anemic judicial review of Atlantic Yards has been. The rational basis test is admittedly a low bar, but opinions like these suggest that it is no bar at all.

Note that Friedman in June--after the deadline for this article--allowed a reargument on that case, and a decision is pending.

And read on to the end of the article for multiple suggested areas for reform.
Urban Lawyer article on Atlantic Yards, by Amy Lavine and Norman Oder