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Judge: What is ‘Yards’ benefit?

The Brooklyn Paper
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A State Supreme Court justice opened a long-awaited legal challenge against Bruce Ratner’s Atlantic Yards mega-development on Thursday by grilling state lawyers over whether the project has a substantial enough “public benefit” to justify condemning privately owned buildings and turning then over to the developer

“Can you tell me how a professional sports [facility] is a public use?” Justice Joan Madden asked Philip Karmel, a lawyer for the Empire State Development Corporation, at the three-hour-long hearing.

Madden said a professional sports arena “is primarily a profit-making [venture] for the owner of the team.”

The question of “public benefit” arose during discussion of whether the state was justified in declaring the 22-acre Atlantic Yards footprint as “blight” that should be seized through eminent domain for a “civic project.”

Demonstrating a public benefit is necessary before the state can condemn land. In the past, public benefit was construed mostly to mean hospitals, public schools, highways, police stationhouses or other infrastructure. But the Supreme Court’s 2005 Kelo decision broadened the definition of public benefit (read the decision at http://www.law.cornell.edu/supct/html/04-108.ZO.html)

A coalition of 26 community groups are suing to require the state to redo its environmental review of Atlantic Yards on the grounds that a flawed review led to a “sham” approval process during the last days of the Pataki administration.

Thursday’s hearing was the first of what is expected to be a drawn-out legal battle.

Madden’s line of inquiry appeared to come as a surprise to Karmel and the half-dozen other state lawyers in attendance.

“We believe that going to a ballgame is a recreational activity, and having a ball team is a civic event,” Karmel said.

He also said the proposed arena for the Brooklyn-bound Nets “brings pride to a community” — adding that pro-Yards comments by Borough President Markowitz back him up.

Arguments made by both the opponents of Atlantic Yards and its state sponsors were familiar, and at times, vague and rambling.

Karmel told the judge that the $4-billion, residential, arena, retail and office project would bring “thousands of jobs” and new economic activity and tax revenue.

The lawyer for the plaintiffs, Jeff Baker, argued that the ESDC had failed to fully document the project’s massive environmental impacts, or properly study alternatives to the project — which is required as part of the state’s environmental review process.

“They lied,” he said, referring to ESDC insistences that planners had studied alternative sites, including a proposed area in Coney Island, before settling on the Prospect Heights site.

Karmel said Baker’s point was irrelevant.

“What we looked at was an area of Downtown Brooklyn surrounding the largest transit hub in the entire borough and when we looked at the built form around it, it was severely underused,” he said.

“We concluded as a matter of policy that [the building site] was appropriate for intensive development.”

Atlantic Yards is certainly that. The project would create millions of square feet of office, commercial and retail space, 6,000 units of housing, a hotel and a 19,000-seat basketball arena at the intersection of Atlantic and Flatbush avenues, one of the busiest crossroads in the borough.

The project is not in Downtown Brooklyn, but in Prospect Heights, a residential neighborhood.

Updated 4:34 pm, May 4, 2007
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