Atlantic Yards ‘is not blighted,’ says Green Assemblyman speaks against eminent domain

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Speaking before fellow state legislators at a hearing on eminent domain last Friday, assemblyman Roger Green challenged the legality of exercising eminent domain in his Prospect Heights district, where up to 11 acres could be condemned to accomodate Forest City Ratner’s Atlantic Yards project.

“For the record, that neighborhood is not blighted, said Green. “I repeat, for the record, that neighborhood is not blighted.”

“Under the definition of blight, as related to poverty or environmental degradation, this definition is not related to Prospect Heights,” Green told The Brooklyn Papers afterwards.

Opponents said the statement by Green — who has been a vocal supporter of Forest City Ratner’s proposed 21-acre mega-development — was a blow to Ratner’s case for eminent domain.

“He shot down their argument,” said Patti Hagen, a Prospect Heights homeowner and a leader of the opposition, who attended the hearing.

Councilwoman Letitia James, in whose district the Atlantic Yards lies, said Green’s words, bolstered by state legislation, could affect plans for the housing and office development that would also include a professional basketball arena.

“The admission of [Green] that the area is not blighted is wonderful,” said James. “If we can expedite the legislative process and a bill is passed in January or February, then it can affect the project.”

Speaking to The Papers by phone, Green reitierated his position, while also stating there was some blight in the area.

“I wanted to get it on the record that it is pretty clear that there are two areas that are being proposed,” Green said.

“One is the rail yards, which is blight, and then the other part, which is made up of residential and commercial properties. That other part is not blight.”

Throughout the hearing, speakers and members of the audience discussed the importance of rigorous local oversight of eminent domain and the need to clarify the ambiguities of the term “blight.”

Within a legal context of eminent domain, “blight” describes an area composed of deteriorating or obsolete structures.

If an area is determined to be blighted the state is empowered to remove the offending structures, a muscle whose flex was broadened earlier this year when the U.S. Supreme Court judged in favor of the use of eminent domain by the city of New London, Conn., for the private development of a Pfizer office park.

While in the Kelo v City of New London case, the city argued that the Pfizer project would bring economic development, Forest City’s request that the state use its power hinges on a notion that Prospect Heights is “blight.”

“I think the state will make its decision, unlike ‘Kelo,’ based on whether or not they believe this is a blighted area,” Forest City Executive Director Jim Stuckey said in a Nov. 3 segment of “Newshour with Jim Lehrer,” echoing statements he made almost a year earlier at a public meeting at New York City College of Technology, Downtown.

The state assembly convened the hearing, at 250 Broadway near City Hall, in effort to determine if legislation could be enacted to regulate New York’s use of eminent domain.

Over six-hours of testimony was given by constitutional law experts; Atlantic Yards opponent Daniel Goldstein of Develop Don’t Destroy Brooklyn; the city’s corporation counsel, Michael Cardozo; and Scott Bullock, the attorney for New London property owner Susette Kelo.

Assembly members have already proposed several bills which, if passed into law, would limit the use of the state’s power of eminent domain.

Legislation sponsored by Westchester Democratic Assemblyman Richard Brodsky would mandate that local governments approve any exercise of eminent domain in their jurisdiction. Under current rules, the Atlantic Yards project would largely avoid srutiny by the city government.

In a separate bill sponsored by Green and Brodsky, payment of 150 percent of the fair market value of a property would be mandated in eminent domain seizures done for economic development.

Forest City is now believed to control most of the land within the project footprint, leaving 53 buildings under the threat of eminent domain.

Of the properties that remain, 35 house rental units, seven condos or co-ops, and 14 commercial spaces, according to Forest City spokeswoman Lupe Todd.

In his testimony, Goldstein estimated 800 residents and 35 businesses would be displaced under Forest City’s plan.

He referred to Prospect Heights as “one of the most desirable locations to live in Brooklyn,” in a written transcript of his testimony.
In an e-mail following the Nov. 4 hearing, Todd described the neighborhood within the project’s footprint as “comprised of empty lots, gas stations, auto repair shops, underutilized or vacant industrial and manufacturing buildings and some residential buildings.”
Eminent domain cases are frequently underpinned by the argument that development will clean up old eyesores.

“In general, the New York courts have been fairly casual in their oversight of “blight” determinations by local authorities,” said Thomas W, Merrill, a Columbia University Law Professor who has argued the legitimacy of using eminent domain for a public arena.

“Forest City Ratner argued that the property now being used for the New York Times building [near 42nd Street on Manhatan’s Westside] was blighted even though there were existing buildings and businesses there,” said David Reiss, a Brooklyn Law School professor who writes about eminent domain. “The case for the Atlantic rail yards area appears even stronger because there is even less economic activity at that location.”

Under the State Environmental Quality Review Act (SEQRA) that guides state development projects such as Forest City’s, the eminent domain process is scheduled to begin in April, leaving a narrow window for legislative action.

“l want to put in stricter definition of blight and some language that will allow for enhanced reciprocity. Clearly I am going to fight to have my bill,” he said, adding that the process was likely to be lengthy and checkered with time-consuming political skirmishes.

Green said, “At this time I don’t think [state legislation] will have direct impact on the Nets Arena project. I think any projects that are proposed after the Nets project will be viewed different,”

“If legislation moves forward, it could be a race against time,” said Goldstein.

Updated 4:00 pm, November 10, 2010
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