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What’s the (Public) Use of Atlantic Yards?

by Sandy Ikeda
Sun, 6 Apr 2008

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Brooklyn residents near the proposed $4 billion Atlantic Yards project are petitioning the United States Supreme Court to stop the government from using eminent domain to evict them from their homes. You can read the Sun article here and a related editorial.

In addition to protecting the individual petitioners, such a challenge would give the Court a chance to modify or, even better, to reverse its disastrous decision in Kelo v. the City of New London, which broadened the takings clause of the Constitution to permit government to forcibly transfer private property to private developers if it promotes economic development.
(According to the Sun article, "the project never received the approval of either the City Council or state legislature." The developer in this case, Forest City Ratner, approached state authorities rather than NYC government for approval. I've been told that developers prefer the state route because the process is much less cumbersome.)

While the Court's argument that economic development from private investment constitutes a "public use" is shaky to begin with, it's even less tenable in the case of Atlantic Yards as it now stands. As I blogged recently, owing to ballooning costs and a tight lending market, in the foreseeable future it's unlikely that FCR will be putting up more than a sports arena and a few other buildings on the site. Indeed, whether the Frank Gehry-designed complex will ever be more than a shell of the original concept is today an open question.

One of the centerpieces of the project "Miss Brooklyn," a 511-foot glass skyscraper that would serve as a gateway to the complex, is in jeopardy (although Mr. Gehry himself sounds pretty optimistic about it at the moment ), as well as most of the 16 remaining office and residential towers. Also, 2,250 below-market housing units that Mr. Ratner promised have been dropped completely. How much does the promised economic development have to shrink before it falls below the Kelo threshold?

Private development of the rail yards at Flatbush and Atlantic Avenues would be a good thing. Letting a private-public partnership run roughshod over the property rights of local residents on feeble constitutional grounds is not.

(Again, check out "Atlantic Yards Report" for the latest goings on there.)

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