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This Land is My Land, Your Land is My Land...By Roger Meiners Daniel Goldstein, Yesenia Gonzalez, Huda Mufleh-Oeah, Freddy’s Bar, and other property owners in Brooklyn joined together to take on the New York establishment. Plaintiffs sued the governor, the mayor, the state and city agencies, and private developers who had agreed that the plaintiffs must be forced to sell in favor of a multibillion dollar project featuring an arena for an NBA team.1 Guess who won. Atlantic Yards is a publicly subsidized project that includes public land, some “heavily blighted” private property, and some “land with less blight.” When finished, the Frank Gehry-designed area will don apartment and office buildings with odd (architecturally innovative) exteriors and the Barclays Center for the Brooklyn Nets.2 To piece the land together, the developer and government created a coalition to overcome the squawking of those being booted out. Everyone got a piece of the action. Promises include: 15,000 union construction jobs; 45 percent of those jobs will be held by women and minorities; and, in an agreement with the Association of Community Organizations for Reform Now (ACORN), over half of the housing units will be rent controlled or sold at below-market rates to low-income buyers. Dispensing such goodies is the price of doing business in places like New York. The largess is borne, to the tune of $1 billion, by the taxpayers and, in part, by the property owners forced out at a price less than they were willing to accept. As the court noted, judges may not intervene on behalf of the property owners “simply on the basis of our sympathies.” A politically well-wired developer, the Ratner Group, pieced together support for the project. Plaintiffs argued that this was a taking in violation of the Fifth Amendment. But the city and state prevailed as their actions did not violate the state’s Eminent Domain Procedure Law or the Constitution. On appeal, plaintiffs argued that while reducing “the blight” could have public benefits, the major beneficiary was the developer, Ratner (the former NYC Commissioner of Consumer Affairs). The court noted that redevelopment of a “blighted area” is a “classic example of a taking for public use.” The fact that a private developer runs the show does not matter. “Once we discern a valid public use to which the project is rationally related, it ‘makes no difference that the property will be transferred to private developers, for the power of eminent domain is merely the means to the end.’” The court explained that this case follows precedent, including the much discussed Kelo case.3 Atlantic Yards is a large project, but the story is common. Some ordinary citizens get the bum’s rush to the benefit of developers, politicians, and assorted “public interest” groups that get a cut of the action.4 The Kelo decision shocked many people when they saw ordinary folks being booted out of their homes so a developer could get control of property otherwise difficult to consolidate.5 Due to the backlash, many states passed anti-takings legislation. However, some states allow an exception to use eminent domain to seize property for private development if there is “blight.” As the court in the Atlantic Yards case noted, this is “merely the means to the end.” Notes:
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Recycling What's wrong with our federal lands? National TV Broadcasting and the rise of the regulatory state Not a walk in the park |
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Roger Meiners is a professor of economics and law at the University of Texas at Arlington and a PERC senior fellow. His research emphasizes common law and higher education. He can be reached at roger.meiners@gmail.com.
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