Tuesday, May 31, 2011

Reconsidering Jane Jacobs: writers suggest that planners have become disempowered; shouldn't fealty to developers be part of the equation?

The new book, Reconsidering Jane Jacobs (APA Planners Press), edited by Max Page and Timothy Mennel, serves as a bit of a bookend to Block by Block: Jane Jacobs and the Future of New York, the 2007 book (Princeton Architectural Press) also co-edited by Mennel, and some of the essays--criticizing Jacobs or the impact of her followers--have already provoked spirited discussion.

Page's introduction sets out the challenge:
Is there any other urbanist whose ideas more people profess to understand who is less understood? And is there another urbanist whose influence is so widely felt even where her name is not well known? We suggest in this volume that the answer is again “no”: Many who profess to understand Jacobs’s ideas don’t, and many more who profess not to know of her work have in fact been deeply influenced by it. Like Freud’s, her ideas are everywhere, named or unnamed.

...Jane Jacobs has had lasting power for many reasons, but one of them certainly is that she offers something for everyone. As Francis Morrone has noted, Jane Jacobs has drawn the praise of new urbanists and preservationists, free-market capitalists, and advocates of government regulation. She is a right-wing libertarian, and she is a left-wing antiwar protester. She cherishes the small-business owner and rails against bureaucrats who limit innovation, and she is also the symbol of one of the things conservatives in the 2008 presidential election scoffed at: “the community activist.”
Fifty years after the publication of Jacobs's classic The Death and Life of Great American Cities, (1961), the editors sought writers who would "wrestle with her blind spots, her contradictory political impulses," observe "the unintended uses to which her writing has been put."

The AY angle

There's no explicit mention of Atlantic Yards in the new collection, but, as I suggest below, there are arguments that connect to it.

Notably, I don't disagree with the argument that planners today wield too little clout, but I'd argue that the issue is not simply righting the balance with an empowered (and potentially NIMBY-ist, or underinformed) public.

Rather, in a developer-driven planning process, as shown in New York City with Atlantic Yards, government planners should reflect the public interest.

On Jacobs's motivations

In one essay in the book, "The Unknown Jane Jacobs: Geography, Propagandist, City Planning Idealist," Peter Laurence observes that Jacobs, who had been writing positively about urban renewal for the magazine Architectural Forum, had begun to feel uneasy about it, and personally guilty:
In other words, Jacobs’s motivations were deeper and more personal than previous biographies have acknowledged, and so were her experiences and her ambitions for a better understanding of cities and their design and planning. Moreover, her opportunity to make a contribution did not come about because she was an amateur, as the prevailing stereotype holds, but because, by early 1958, she was already recognized as one of the most knowledgeable writers in the country on redevelopment and the city. Although her ideas about cities were fundamentally transformed in the late 1950s, her writings and thinking about the city spanned 20 years, and it was this body of experience that led to her opportunity to be part of a historic grant initiative funded by the Rockefeller Foundation, which helped establish the new field of urban design and produced such seminal works as Kevin Lynch’s Image of the City (1960).
Similarly, contributor Samuel Zipp, author of Manhattan Projects: The Rise and Fall of Urban Renewal in Cold War New York (Oxford University Press, 2010), said at a panel March 31 at the Museum of the City of New York that, in the history of urban renewal, Jacobs must be seen as catalyzing and invigorating a movement against modernism that already existed, not as launching such a movement.

On New Urbanism and Greenwich Village

In another essay in the collection, "Time, Scale, and Control: How New Urbanism Mis(Uses) Jane Jacobs," Jill L. Grant cautions against planners today who generalize from Jacobs's mileu to create walkable semi-urban communities. (Of course Jacobs famously omitted illustrations, encouraging readers to look for themselves.)

Grant writes:
Generalizing from conditions in Greenwich Village in the 1950s to the prerequisites for good urban design, as Jacobs did, warrants careful dissection. Jacobs witnessed a particular moment in American culture: the end of one era and transition to another. In the 1950s any responsible adult could reprimand an errant child and assume responsibility for disciplining rowdies on the street. In those days America appreciated its power and sense of cultural superiority; European immigrants celebrated their cultural heritage as they immersed themselves in the melting pot. Jacobs described a period when TV was such a novelty that owners brought sets out onto the street on summer evenings to share with their neighbors. The New York of the 1950s represented a time before air-conditioning drove people inside behind closed windows and before widespread ownership of cars gave working-class people the means to commute to homes in the suburbs. The vitality, social control, and intense interaction of Jacobs’s home district of Hudson Street reflected the social, economic, and cultural conditions of that particular era. While conceding that the physical form likely played a role in the urban qualities Jacobs saw in the 1950s, I’m not convinced that form merited the supremacy Jacobs gave it. The short blocks and dense mix of uses of Greenwich Village accommodated the intense street theater that Jacobs described, but it did not produce that interplay. The social and economic conditions of the 1950s, and the complex history of the people and businesses thriving in New York at that time, certainly unfolded within that form; however, as Gans argues, similar working-class dynamics generated lively suburban communities in that era. Social and economic conditions are as much—if not more—a product of time and human history as they are artifacts of spatial configurations.
Indeed, the rise of the cell phone and personal computer (personal digital device, etc.) also cuts down on geographic commonality.

On the other hand, cyberspace, notably in the form of neighborhood blogs, has enabled new connections.

Did Jacobs really generalize from Greenwich Village? Architecture critic Paul Goldberger, commenting in 2006, called that a misreading:
Jane Jacobs is the great prophet of the Village and the way of making cities that it symbolizes, but she did not believe that every place needed to be like a little Greenwich Village. That is the great misreading of her, the mistaken view that her way of seeing the world was so narrow that she wanted to turn everything into the Village. Actually, what she believed is that every place has an essence, a particular quality that we can figure out by looking at it – and that cities are living things, not inert objects.
What's community?

Co-editor Mennel, senior editor and acquisitions manager for Planners Press, in "Jane Jacobs, Andy Warhol, and the Kind of Problem a Community Is" (also published in Places), observes that, not only was Jacobs a product of her time, her time contained some very different models.

Mennel writes:
As has been noted often, Jacobs’s work is characterized by belief in a certain kind of community—one with clearly defined roles, a mix of classes, and a constancy of activity in the streets and of people watching that activity. This kind of “warm” community is depicted as lively and engaged, with positive social benefits arising from the free association of people who have different functions and beliefs but who all exist within a circumscribed social environment called the neighborhood.

...It does not diminish the value of the kind of social environment Jacobs favored to point out first that it posits a healthy neighborhood as a kind of panopticon, with a decided lack of privacy and anonymity. More important, however, is that this conception of neighborhood seems to write out significant portions of actual urban experience. Where, in these idealized neighborhoods, do sad and angry men hover in bars and get into fights? Where are the lonely, the unhappy, and the unwell? And where are those who reject social conformity, who choose to be defined not by their jobs but by something else, such as personality or infirmity? Where are all the people on the margins—criminals, artists, or a combination thereof? Where are the dropouts, the beatniks, the inept, the clueless, and the lost? Jane Jacobs dreamed a society, but it was a society of a certain kind of conservative cast, based on function and ultimately order. It was a society of productive, social, mutually supporting individuals. It was a society comprised in large measure of well-adjusted libertarians who all had places in the dominant economic framework and who would unite to pursue common self-interest—specifically, the preservation and continuation of their shared social environment, their neighborhood. It was a society without an internal life beyond Jacobs’s own delight in it.
Andy Warhol, however, created a counter-culture environment, while "Jacobs failed to see the value of impersonality in the city." Mennel suggests:
The greater irony here is that Jacobs made her greatest impact on planning by weaning planners off the idea that they held some special key to understanding humans, their behavior, and their environments. And yet it is easy to feel as if she ultimately exchanged one ideal for another, neglecting social and economic complexity in favor of a sentimental picture of urban community.
Mennel thinks the real flaw in Jacobs's work--and those who interpret it--is not the effort to recreate a small-town atmosphere in a big-city community, but "her hope for a natural instinct toward cooperation and socially sustaining behavior."

One commenter in Places, Nick Kaufmann, responded:
Jacobs was championing diversity, not togetherness in cities.

She was not promoting the benefits of being a member of a tight-knit urban community to all, but rather explaining the benefits that those communities give to YOU, the anonymous resident, misfit, artistic iconoclast or passerby. Whether it's safety, eyes on the street (they don't have to be yours!), local flavor, people to sit on committees so you don't have to, not to mention the economic benefits that tight-knit ethnic or class-based communities bestow on the city as a whole with their niche industries.

This kind of urban rootedness, your "warm community", actually creates very fertile soil for "cold" communities like Warhol's, precisely because it ALLOWS him and his cohorts to be disengaged from the "issues mentalities and prejudices" (read 'the concerns of everyday life').
Mennel responded:
I do think, though, that there's a difference between celebrating diversity--which Jacobs plainly did--and accepting the possibility that some of the elements that make up that diversity may not value that particular conception of diversity. I don't question that Jacobs valued artists; she treats them, however, like an aesthetic amenity--they're welcome and valuable because they add texture and flavor to her kind of city life. That's not the same thing as recognizing a genuinely different worldview
At that March 31 MCNY panel, David Freeland, author of Automats, Taxi Dances, Vaudeville: Excavating Manhattan's Lost Places of Leisure (New York University Press, 2009), invoked Jacobs as a response to "this deepening anxiety, the feeling that this precious city of ours is slipping out of our hands."

And while he didn't respond directly to Mennel, Freeland suggested that the arts, which depends on the life of the street, are Jacobsian.

At the panel, moderator Page observed that today's New York is very different from the city in Jacobs's day, which was "much more middle class." Sure, there was abject poverty and discrimination, but now there's "a much starker differentiation" between rich and poor.

Shared purpose

Mennel notes that, for cooperation, a shared sense of purpose is needed, but such "shared purposes tend to arise only among communities of like-minded individuals." In other words, look to religious groups, or fellow homeowners in a block association.

It's dismaying, however, that there seems to be no model for new communities to form, such as Brooklyn Cohousing, which last year ran aground in the real estate market.

The impact on planning

In the book's capstone essay (excerpted in Places), Thomas J. Campanella takes on "Jane Jacobs and the Death and Life of American Planning," suggesting that, for the profession (this is a book published by the American Planning Association), Jacobs had some deleterious impacts.

He writes (all italics in original):
This brings us to the first of the three legacies of the Jacobsian turn: It diminished the disciplinary identity of the planning profession. While the expanded range of planning scholarship and practice in the post–urban renewal era diversified the field, that diversification came at the expense of an established area of expertise—strong, centralized physical planning—that gave the profession visibility and identity both within academia and among sibling “place” professions such as architecture and landscape architecture... Like a well-meaning surgeon who botches an operation, planners were (correctly) blamed for the excesses of urban renewal and many other problems then facing American cities. But the planning baby was thrown out with the urban-renewal bathwater. And once the traditional focus of physical planning was lost, the profession was effectively without a keel.... By forgoing its traditional focus and expanding too quickly, planning became a jack-of-all-trades, master of none. And so it remains.
He questions the frequent lip service toward community input:
The second legacy of the Jacobsian revolution is closely related to the first: Privileging the grassroots over plannerly authority and expertise meant a loss of professional agency. In rejecting the muscular interventionism of the Burnham-Moses sort, planners in the 1960s identified instead with the victims of urban renewal and highway schemes. New mechanisms were devised to empower ordinary citizens and the grassroots to shape and guide the planning process. This was an extraordinary act of altruism on our part, and I can think of no other profession that has done anything quite like it... Granted, powering up the grassroots was necessary in the 1970s to stop expressway and renewal schemes that had truly run amok. But it was power that could not easily be switched off. Tools and processes introduced to ensure popular participation ended up reducing the planner’s role to that of umpire or schoolyard monitor. Instead of setting the terms of debate or charting a course of action, planners now seemed wholly content to be facilitators—“mere absorbers of public opinion,” as Alex Krieger put it, “waiting for consensus to build.”
I'm not sure that's true across the board--consider that New York City's Uniform Land Use Review Procedure (ULURP) allows for advisory opinions from local Community Boards, and the Empire State Development Corporation's process, as with Atlantic Yards, offers form without substance.

The role of community

Campanella's right that we shouldn't idealize community voices:
The fatal flaw of such populism is that no single group of local citizens—mainstream or marginalized, affluent or impoverished—can be trusted to have the best interests of society or the environment in mind when they evaluate a planning proposal. The literature on grassroots planning tends to assume a citizenry of Gandhian humanists. In fact, most people are not motivated by altruism or yearning for a better world but by self-interest, pure and simple. Preservation and enhancement of that self-interest—which usually orbits about the axes of rising crime rates and falling property values—are the real drivers of community activism. This is why it is a fool’s errand to rely upon citizens to guide the planning process.

Forget for a moment that most folks lack the knowledge and expertise to make intelligent decisions about the future of our cities. Most people are too busy, too apathetic, or too focused on their jobs or kids to be moved to action over planning issues unless those issues are at their doorstep. And once an issue is at the doorstep, fear sets in and reason and rationality fly out the window. So the very citizens least able to make objective decisions about planning action are the ones who end up dominating the planning process, often wielding near-veto power over proposals.
He does allow that "activism of the NIMBY sort" and "citizen self-interest" can do good.

He points to the bigger picture:
All planning may be local, but the sum of the local is national and eventually global. If we put parochial local interests ahead of broader societal needs, it will be impossible to build the infrastructure essential to the economic viability of the United States in the long haul—the commuter and high-speed rail lines; the dense, walkable, public-transit-focused communities; the solar and wind farms and geothermal plants; perhaps even the nuclear power stations.
I wouldn't disagree, but, at least in New York, the legacy of Jacobs is more invocation by developers than community planning. In other words, Campanella seems to be downplaying the willingness of government, and government-based planners, to cede planning to the private sector.

The politics of planning

As Coco J. Harris wrote in response to the Places piece:
This otherwise insightful piece skips the politics of planning. Who funds practice of those "core competencies related to placemaking, infrastructure and the physical environment?" Who pays planners to plan?

Publicly-funded planning in the post-Reagan era was largely subjugated to the construction industry and corporate development interests who dominate local government. To place responsibility for the profession's decline on "self-inflicted loss of agency and authority" ignores this context.
Another, Greg, commented:
I earned a masters degree in planning from one of the more prominent programs, and I'm still not sure what planning is. In New York City, few people I worked with went on to work for the DCP - most went to the EDC, DOT, for BIDs, and various other things, none of which really require a background in "planning" specifically. And the DCP seems to exist primary to capitulate to whatever the powerful real estate lobby wants.
Indeed, the Department of City Planning did more to ease than challenge the Atlantic Yards plan with its comments.

A response to Campanella

At the March 31 MCNY panel, Mary Rowe, Urban Fellow, Municipal Art Society, scoffed at some of Campanella's conclusions. "What is it about the planning profession that makes them so vulnerable?" she asked rhetorically "Methinks he does protest too much."

"I think Jane Jacobs was basically saying, it's not about credentials, it's not about control, it's about observation, practicality," she said. According to her remarks:
The debates, however necessary in a process of moving forward, distract from the ambitious rigor of her writing, where she not only reports her own observations, but challenges readers to participate with her. Jacobs was not predictable in her views while she was alive – her inquiries were so diverse and varied, it was a fool’s errand to presume her opinion on much. What one could be surer of was the degree to which her analysis was based on keen observation and diligence in pursuing the larger patterns of connections.... In her introduction to the New Modern Library edition of Death and Life, Jacobs suggested her field of inquiry was one of ‘urban ecology’: how a city’s built form, economics and ethics interact, and together feed a city’s vitality and thriving.
Indeed, one of the legacies of Jacobs, as Goldberger has suggested, is "a model for skepticism."

The need for grand plans

Campanella suggests:
The third legacy of the Jacobsian turn is perhaps most troubling of all: the seeming paucity among American planners today of the speculative courage and vision that once distinguished this profession.

Planning students today need a more robust suite of skills and expertise than we are currently providing—and than may even be possible in the framework of the two-year graduate curriculum. Planners today need not a close-up lens or a wide-angle lens but a wide-angle zoom lens. They need to be able to see the big picture as well as the parts close up; and even if they are not trained to design the parts themselves, they need to know how all those parts fit together.
After all, there are some huge tasks ahead:
Planning in America has its work cut out for it as never before: It must take the lead in changing our patterns of settlement on the land, building the necessary infrastructure to end our catastrophic addiction to cheap oil, and working toward a more sustainable urban future. We need to literally come together in space, retrofit suburbia and create dense walkable communities, and build “a country of cities.” We need to restore the vast railroads that scored this country a century ago and commit far more federal funding toward rebuilding our bridges and tunnels, our water and sewer infrastructure, our electrical grids. We have coasted for decades on infrastructure built generations ago. That infrastructure served admirably, but it is aging and beginning to fail. How well we respond to these signal challenges will determine whether we are indeed a relevant and important profession or a truly minor one.

The whole matter of planning, infrastructure, and the fate of nations has come into high relief in recent years with the rise of China. Le Corbusier famously observed that to send a young architect to Rome was to ruin him for life. American planners who travel to China risk coming back equally ruined, for they learn that their Chinese cousins have effectively charted the most spectacular period of urban growth and transformation in world history. They are then beset with an affliction far worse than the “Robert Moses envy” suffered, usually in silence, by an earlier generation of American planners. Here now is a nation that makes even Moses look small. Name any category of infrastructure and China has likely built more of it in the last 30 years, and bigger and faster, than any other nation on Earth—probably than all other nations combined. Long the poor man of Asia, China is now beating us at a game we once mastered—the game of building, and building big; the game of getting things done.
That includes "new cities built from scratch" and "the most extensive national high-speed rail network on the planet." Should trains in the United States reach Chinese speed, travel between Boston and New York, or New York and Washington, would take just over an hour:
And where the United States has earmarked all of $8 billion for high-speed rail, China has allocated $300 billion for phase one alone.
He blames a right-wing reliance on "private enterprise and personal liberty at all costs" and a left-wing "welfare-state culture that has created a generation of Americans expecting handouts like spoiled children."

And, I'd add, leaders unwilling to challenge an essentially suburban culture.

With China, a few caveats

Campanella, like others extolling China, acknowledges some trade-offs:
Of course, there are immense equity and justice and environmental issues with the way cities are built and rebuilt in China; we all know that. People are shunted around like so many scared sheep, evicted with only a few weeks’ notice. Those who protest are silenced quickly, often violently. I am not advocating the sort of ruthless authoritarian approach to urban growth and renewal that China favors. But just as China needs more of the American-style gavel of justice, equity, and democratic process, we in the United States need more of that very effective Chinese sledgehammer. And this will require something that makes many people nervous: ridding the development process of some of the many trammels and fetters that came in the wake of the Jacobsian grassroots revolution. For example, community consent is usually an asset to smart planning, but it must be regulated to prevent populist opposition to projects that promise clear benefits to a majority of citizens beyond the local scene.
His example: the "Cape Wind" project in Cape Cod, MA, where well-off residents opposed a wind farm.

Fair enough, but don't we also need procedures to regulate sweetheart deals?

Another invocation of China

In "A Chinese Perspective," planner Nathan Cherry follows up:
Although using community activism to stop ill-advised planning projects from moving forward is a legitimate goal, we must also recognize the time and places in which we live. At the time of writing, polls indicate that only 21 percent of Americans trust the government to do the right thing. This was not always the case, and it certainly is not the case currently in China. Because they have seen significant improvement in their quality of life in the past few generations, the Chinese mostly trust government in matters not related to freedom of speech.
I think he's somewhat Pollyannish--there's no small resistance, and repression, in China--but it's clear that the balance is far different there.

He notes that projects he's worked on in China have sped ahead:
Needless to say, such unanimity and speed are practically unheard of today anywhere in North America. In China, these can be attributed equally to the people’s acceptance of change in pursuit of a better quality of life, significant individual compensation, and, yes, a bit of government-imposed fear as well.
He concludes:
Outsiders often point to the lack of public dialogue in China as a lack of human rights. While there is truth to this, it is also true that many Chinese retain a sincere optimism and trust in their public systems as stewards of the future, which Westerners rarely have anymore. The community activism that was so effective in stopping Robert Moses’s more extreme plans was more a reflection of revealing his reckless ambition than it was a proper appreciation of the ability of planning to effect change for the greater good. Planning considerations such as environmental stewardship, job creation, social equity, adequate infrastructure, and high-quality public services are still significant challenges of our era. The soaring accomplishments of the planning profession (such as the Plan of Chicago, Boston’s Emerald Necklace, the Beijing Olympics, and Malmö, Sweden) show that big thinking is often essential to bring about fundamental change for the better in our modern cities. If she came to China with me and saw these projects I described, in all their complexity, I am sure Jane Jacobs would understand that the good in large-scale planning is not necessarily outweighed by the bad. And, if she is credited with spurring the movement that led to greater citizen participation in development and planning decisions, is it legitimate for us to wonder if we have, in the process, unintentionally yet fundamentally weakened our ability to do grandly ambitious projects in North America?
I don't disagree. But if the public sector is going to lead, it has to not let developers drive projects, either.

The lessons of empiricism

Another Places commenter, John Kaliski, responded to Campanella:
For me, one of the great lesson of Jane Jacobs was to insist upon ground up empirical planning processes and procedures as a means of realizing urban experiences, functions, and aesthetics. While NIMBYISM, as Campanella points out, is one manifestation of this, it can not be blamed on Jacobs who was hardly a NIMBY in theory or practice. At the same time, North America is now replete with interesting urbanisms that never would have emerged if Jane Jacobs had not written what she wrote.
The Gratz critique

In a mixed review of the collection published 4/25/11 on Planetizen, Planners and the Jane Jacobs Conundrum, urbanist and author Roberta Brandes Gratz takes on the defensiveness implied in some pieces:
Too many planners think that Death and Life was about planning, about them. Although Jacobs opened that book with "This is an attack on current city planning and rebuilding," that seminal work is really about understanding how cities work, the importance of observing the city on the ground, and recognizing how everything is connected, always changing, always organic and much too fluid to be readily reflected in a Plan.
Her main criticism is of Campanella, and she uses an anecdote Campanella himself offers, how a group of citizens, most with no professional training, came up with a good idea for a train station in their town.

Her essay prompted a response from Campanella, who first notes--as has been evident in New York since 2007--that people also read Robert Moses selectively, as both destroyer of neighborhoods and builder of crucial infrastructure. He adds:
I used the story to demonstrate a point: that planners have so lost their knack for visionary leadership that it took a group of ordinary citizens to initiate the steps leading to an official town plan. Perhaps I should have emphasized that such outcomes are rare, or mentioned the vocal "not in my backyard" opposition to the same project that came from another corner of the grassroots (at one meeting someone shouted "they want to turn Mayberry into Manhattan"—"they" being the pro-station citizens, not some tin-horn Robert Moses in the county office building). And as I tried to point out elsewhere in the chapter, for every citizen-led action that yields a Hillsborough Station, there are a dozen of the reactionary NIMBY sort. Roberta makes no mention of the other examples I cited in the piece—the cancelled infill projects, the homeless homeless shelter, the affordable housing complex that so enraged its otherwise progressive neighbors you'd think Habitat for Humanity had proposed a release of plague-infested rats.
He concludes:
We need to chart our way out of the quicksand of fossil-fuel dependency; rethink our unsustainable settlement patterns; develop alternative sources of energy; rebuild our transportation infrastructure, and create the rail systems and bikeway networks essential to a greener and more healthful future. These are matters of urgent national economic survival, and will require sustained government action on the scale of a New Deal or Marshall Plan. Can citizens initiate good plans—yes, of course; and they should. I helped lead just such an effort in Hillsborough—as a citizen first and planning educator second. Should we wait around for this to happen? We don’t have the luxury. There is a time and place for meetings at the community center, for flipcharts and Post-It trees with bright ideas for the local park. This is not it. We need the vision and leadership of the planning profession now more than ever; and if that means deepening the "reputation for arrogance" that Roberta accuses planners of (we must hang out with very different crowds!) then so be it. Securing the future is well worth a few bruised egos.
Securing that future is worth a debate. But the role of developers can't be discounted.

Another take

Also see Stephen Wickens' column in the 5/6/11 Toronto Globe and Mail, headlined Jane Jacobs: Honoured in the breach, which offers some criticism, such as:
Canadian-raised architect and author Witold Rybczynski, who wrote about Ms. Jacobs in last year's Makeshift Metropolis, complains that she had gaping holes in her historical knowledge, overestimated planners' influence and underestimated suburbia's lure: “Not everyone wants 24-hour street life and, unlike Greenwich Village, most working-class districts are depressing. It's no surprise people would want to get away from that.”

Still, he calls The Death and Life “the dominant book about planning of the second half of the 20th century, perhaps of the entire century.”

Wickens points to Jacobs's "buried thesis" in Death and Life:
But page 150, my mention of which set off Ms. Jacobs's cough, lists four conditions for any part of a city to generate “exuberant diversity”: that districts have a mix of primary uses; that most blocks be short; that buildings be of various ages; and that the area have sufficient density. It was indispensable that these areas accommodate various levels of income and commercial rents.

But simply to list the factors without the examples and complicated dynamics found in the book is almost to miss the point.

“If you've read to the last chapter,” she told me, “you know cities – their parks, transportation planning, development policy, density ratios … are, like the life sciences, problems of organized complexity. It's no good wishing it were any other way.”

Monday, May 30, 2011

Goldman Sachs buys Google ads to promote its role in getting Louisville arena built; what about Brooklyn?

Attached to a 5/7/11 Boston Globe review of sportswriter Robert Lipsyte's new memoir was the advertisement at right, in which financial behemoth Goldman Sachs promotes its role in the new arena in Louisville, KY.

Presumably such Google ads are being bought wholesale, attached to other sports coverage.

"See how the construction of a new arena helps businesses downtown," states Goldman, pointing to a web page and film, with the summary:
Now, new businesses are opening, new jobs have been created and downtown Louisville is more vibrant than ever, with new restaurants and services available to local residents and visitors.
What about Brooklyn?

Will Goldman, which arranged the bond financing for the Atlantic Yards arena (aka Barclays Center), promote its role in the new facility? Likely.

But the promotion will have to be more subtle. New businesses? Sports bars, sure, but local residents surely have enough restaurants and services.

New jobs? Surely not nearly as many as promised during the heady days of "Jobs, Housing, and Hoops."

New housing? Not Goldman's problem.

Louisville overview

The web site for the Louisville project points further to this summary:
The University of Louisville men’s and women’s basketball programs are among the most prominent in the nation, but to attract NCAA tournament games and other high-profile events, the university needed a new facility.

In 2006, the Kentucky Governor’s office established the Louisville Arena Authority (LAA) to study options for a new home for the men’s and women’s teams. The state, the city and the university ultimately sought a downtown venue, providing an opportunity for economic growth in the city through tourism, nightlife and shopping. Due to its significant expertise securing financing for major capital projects and sports facilities in particular — especially in cases where financing was complex — Goldman Sachs was selected to manage the financing for the facility.

The $349 million facility, with funding structured by Goldman Sachs and LAA, created thousands of construction jobs, as well as permanent employment and economic development in downtown Louisville.

Complexity of Funding
To service the bonds needed for construction, Goldman Sachs and LAA built a plan around three revenue sources. The Commonwealth of Kentucky committed incremental tax revenues; the City of Louisville committed to regular

payments; and additional funds were projected to come from ticket sales, concessions, advertising and other revenue streams generated by the arena.

Typically, financing a college sports facility of this size is fully supported by revenues from a university or municipality. In this case, the financing structure was dependent on several different revenue sources, each with its own characteristics regarding timing, amount and how the money could be spent. In addition to up-front public funds, the financing also relied on future funding provided by projected arena revenues and increased tax revenues resulting from the revitalization of the downtown area.

Goldman Sachs helped LAA develop this unique financing structure and helped ensure that LAA would be able to meet its obligations, even under extreme stress. Such efforts were critical to providing investors with comfort that the project would be completed on-time and on-budget and that the ongoing arena revenue would meet initial forecasts. Ultimately, Goldman Sachs’ work with LAA helped raise the money needed to begin construction in time to open the arena for the 2010-2011 basketball season.

Local Workers, Local Impact
An important aspect of the arena project was to ensure that minorities, women and local workers from Kentucky and southern Indiana were involved in its construction. The participation goals were reached or exceeded in all cases.

LAA engaged this diverse workforce by partnering with local stakeholders to establish the Construction Pipeline Project, a program designed to train local workers in construction and related trades, thus opening the door to new careers for local residents for this and future construction projects.

The 22,000-seat arena, known as the KFC Yum! Center, opened on October 10, 2010. It now hosts collegiate sporting events, concerts and family-friendly shows, creating a year-round rotation of downtown entertainment. By enhancing tourism, the arena has brought new hotel and restaurant business to an underutilized area of downtown.

Louisville’s Arena Created Jobs and Revitalized Downtown
  • Over 3,500 workers drawn largely from the Louisville metropolitan area helped build the arena.
  • The arena has created close to 1,000 new jobs in operations, security, venue services, food service and administration.
  • The local economy benefited from an estimated $100 million of subsequent investment associated with new development projects, such as sports bars, restaurants, modern loft-style apartments and other new businesses.
Goldman Sachs’ Commitment to Louisville
  • With the combined, diverse contributions of the university, city and state, financing for Louisville’s arena was particularly complex. Ultimately, this project represents one of the largest financings for a college sports facility to date.
  • The total bond offering was $349 million. In a challenging market environment, Goldman Sachs’ expertise was critical to achieving the 30-year financing terms.

Sunday, May 29, 2011

On Lopate, critic Witold Rybczynski said Atlantic Yards shows "how the developers, in a sense, are taking the lead in being planners"

I missed this several months back, but author (Makeshift Metropolis: Ideas About Cities) and Slate architecture critic Witold Rybczynski, in an interview December 9 with WNYC's Leonard Lopate, offered some not atypical criticism about Atlantic Yards.

(Here's some previous coverage of Rybczynski.)

The Atlantic Yards discussion comes up at 12:36.

LL: Then there’s that whole matter of the Atlantic Yards project in Downtown Brooklyn. What are your thoughts on that?

(Not quite Downtown Brooklyn.)

WR: I thought the Atlantic Yards was an example of how the developers, in a sense, are taking the lead in being planners. I thought there were two problems there. One was the density seemed awfully high. And putting it in the hands of one architect, in this case Frank Gehry, I don’t think is a good idea. I have great respect for him as an architect, but I don’t think one architect shouldn’t design blocks and blocks of a city. Again, it’s going back to that piecemeal idea.

(Now that Gehry's gone, there likely will be several architects, as Gehry initially requested, though it's not like multiple parcels would be bid. And Gehry was part of the sales job.

LL: The Municipal Art Society was opposed to it because it kind of cut Brooklyn down the middle, and they felt that better planning allows for streets going through and for more of a mixing of neighborhoods. Another issue with Atlantic Yards was the building of a sports arena. Earlier we had a big debate about whether to build a Jets stadium on the West Side. And this is something that has become controversial all over the country. Do those stadiums wind up helping the community or costing the community an awful lot?

WR: When they’re planned, they’re often described as economic sort of engines. The evidence I’ve read is that they don’t, in fact, contribute economically to a city. They’re part of a city because it’s part of the culture of a city to have sports. But I think their proponents tend to exaggerate the economic spinoffs that come from them. And especially when they are subsidized by public funds, they really don’t make a lot of sense.

(Which is why maybe someone should have thought about giving away naming rights.)

Some Forest City praise

The book, by the way, contains a flattering portrayal of The Yards in Washington, a project of Forest City Washington, which appears to be in many ways different from Atlantic Yards:
The Yards demonstrates much of what has been learned about city building in the last three decades. The first lesson is that it is a mistake to ignore centuries of urban history. Old, well-tried planning solutions are often the best: streets with sidewalks, street trees, individual buildings, a close mixture of different uses such as apartments above shops, and office buildings next to condominiums.

...In most cases, it is best simply to add another layer to the many layers of the past.

The third lesson, derived from Jane Jacobs, is that urban amenities such as streets and parks work best when they are intensively used--one of the keys to urban vitality is density.
Density, and benefits

Of course, as Rybczynski pointed out, there's density, and then there's AY density.

Actually, the density of Atlantic Yards likely will be less than planned, since the project can be smaller.

But did the city and state do a cost-benefit analysis of a smaller, slower project? No.

Saturday, May 28, 2011

As his finishes his film Brooklyn Boheme, filmmaker and writer Nelson George will leave Fort Greene; one spur is the opening of the arena

Update 8/27/11: George says he is not, in fact, leaving.

A 4/28/11 Wall Street Journal profile of writer and filmmaker Nelson George, Artist Films a Farewell to His Home: Nelson George Looks Back to a Time When Fort Greene Spilled Over With Talent, describes George's work on a documentary on black creative folk titled Brooklyn Boheme:
Within a few years, Mr. George found himself surrounded by cutting-edge African-American artists and performers. He soon became an editor at Billboard magazine and a columnist for the Village Voice. In the years since, he has published 15 books and a number of screenplays, and directed several films. He cited Fort Greene's proximity to Manhattan as well as its superior architecture and, in the 1980s, affordable prices—the result of a once-affluent, culturally rich area having fallen on hard times in the 1970s—for the rapid evolution of the community. "[Author] Carl Hancock Rux moved into a duplex apartment for $350 and his landlord asked him if he could recommend the other vacant units to his friends," Mr. George said. "You could buy a house for a hundred thousand."
Escaping the arena

Now George is leaving the neighborhood:
His own impending move is motivated primarily by the opening of the Barclay's Center, which will house the soon-to-be Brooklyn Nets of the NBA. Citing the population density and traffic that it will bring, he said, "the DNA of the area will change profoundly; it will be the end of this era of the neighborhood."
But it's not just the arena. George has previously expressed his concerns about gentrification, writing in the Times in April 2009:
I’ve been gentrified, and while I’m not as mad as hell, I’m not entirely comfortable as an artsy, graying black man of 51 when I walk the streets of the neighborhood where I’ve lived half my life.

...And the neighborhood became the centerpiece of this black alternative vision precisely because it was a place where many whites were afraid to go.
Asked, at a panel that month, about the future of Fort Greene a decade hence, “I’m not certain,” George responded. “If they build a sports arena, and they build those other things, I think it will change the nature of the neighborhood. You can’t build a sports arena and not have fast food restaurants, not have souvenir shops, not have strip clubs.”

So far, the changes seem focused on Flatbush Avenue and Pacific Street, but the arena is still more than a year away.

George is no new critic of the arena; he's a member of the Develop Don't Destroy Brooklyn Advisory Board, which made a splash when inaugurated in 2006 but which is essentially dormant.

Friday, May 27, 2011

Residents near AY construction site still air complaints about rats; ESDC says rodent burrows found and filled, but that's just within the site

Residents on blocks bordering the Atlantic Yards site are becoming frustrated by the increased presence of rats--not an uncommon feature of city life, but one they believe is created or at least exacerbated by nearby construction.

Larry Schwartz, a resident of Dean Street between Sixth and Carlton avenues sent a letter yesterday to Council Member Letitia James, who had brought up rodent complaints at the Atlantic Yards District Cabinet meeting May 19 only to be reminded that Forest City Ratner is responsible only for on-site abatement and that making the developer responsible off-site would lead to a slippery slope of blame.

Rats infesting the garbage

Schwartz wrote:
Yesterday as I came home around 8 pm, I observed at least 6 or 7 rats all scurrying in and out of a garbage bag in front of my building that had been placed there for pickup today. All these rats scurried into the garage that is next door to our building. This garage has become infested with rats. Obviously, there is nothing we can do about placing garbage on the sidewalk for pickup. Either the city or Forest City Ratner has to deal with this problem. There are many kids in the neighborhood, and it is a very disturbing health issue.

I have attached 3 photos I took. While only one rat is clearly shown in the photos, please trust me that that whole bag was literally filled with them. This is an urgent matter, and I hope you can help facilitate a solution quickly.
James's comment

"The source of this problem is clearly related to the Atlantic Yards Project," commented James, who, it should be noted, would be pressed to prove that.

"FCR should therefore be held accountable for rodent abatement in and around the footprint, today. Failure to address this problem is just another example of their disregard for the quality of life issues residents of Prospect Heights are dealing with as a result of this ill conceived and financially challenged project."

ESDC response

Schwartz also sent letters to the Empire State Development Corporation (ESDC) and the Atlantic Yards Community Liaison Office.

I queried the ESDC myself. Spokeswoman Elizabeth Mitchell responded, "Site contractors had a rodent control specialist perform a site inspection last week. Several rodent burrows were discovered and plugged with grout. In addition, additional bait traps were deployed. ESD’s environmental monitor HDR will continue to ensure that periodic inspections are conducted thoroughly and properly."

That suggests that rodents were leaving the site to enter the neighborhood. But Forest City Ratner and ESDC monitors are responsible only for securing the site.

Thursday, May 26, 2011

At MetroTech, NYU-Poly takes some unused office space off Forest City Ratner's hands; move pitched as "owning the square"

When I first wrote about New York University's astonishing absorption of the Brooklyn-based engineering school Polytechnic University, I thought it merely an intriguing (and severely under-examined) real estate story involving a principal of the MetroTech complex developed by Forest City Ratner and Polytechnic.

Now there's a more explicit connection. As the Brooklyn Daily Eagle reported, in an article headlined NYU-Poly Expands at MetroTech Center: Will Allow School to ‘Own the Square’ and Enhance 24/7 Downtown Community:
METROTECH — Going for a more dynamic, vibrant feel to its campus in Downtown Brooklyn, NYU-Poly, more formally known as the Polytechnic Institute of New York University, has signed a lease with Forest City Ratner for academic space in two Ratner-owned buildings at MetroTech.

First reported in the Wall Street Journal Tuesday morning, the lease for 120,000 square feet of space on the ninth and 10th floors of 2 MetroTech and the sixth floor of 15 MetroTech was confirmed by the Eagle late Tuesday afternoon. With work expected to begin on the leased spaces this summer, the university will be sharing more specifics about the moves and build-outs over the next few months, according to NYU-Poly President Jerry Hultin, who noted that it will be a process of phased-in moves.

“MetroTech Center has a great central commons area,” he said. “Expanding into buildings that flank the commons allows NYU-Poly to own the square, and imparts a more dynamic, vibrant feel to our campus.”
What's really behind it

Poly already occupies buildings around the commons--buildings with ground-level space flanking the open area--so I don't see how adding upper floors in office buildings makes the campus more dynamic.

Rather, it solves a problem for Forest City Ratner: getting office tenants into its properties. Remember, In the past year, as Crain's NY Business reported, NYSE Euronext moved out of roughly 387,000 square feet at 2 MetroTech Center.

We don't know if Poly is paying the rates expected from office tenants, but it's unlikely.

Update: Real estate broker Chris Havens tells the Brooklyn Paper that
NYU likely took advantage of a “fantastic deal” and that Metrotech space is “going cheap.”

“The biggest hole in Brooklyn is Metrotech — there’s lots of space there for lease,” Havens said. “It’s finally starting to go now. Education is the future of Downtown Brooklyn.”

The Commercial Observer added that the "20-year lease will include renovations on floors nine and 10 at 2 MetroTech and the sixth floor at 15 MetroTech, all of which is scheduled to begin this summer."

Forest City Enterprises gets one-third off loan due Cleveland; will subsidary FCR pursue similar discounts regarding Atlantic Yards?

Is a discount on a Forest City Enterprises loan from the city of Cleveland a harbinger of further requests to adjust Forest City Ratner's public obligations regarding Atlantic Yards?

Well, we can't be sure, but the Forest City modus operandi, it's clear, is to play hardball, taking advantage of what public agencies allow.

(FCR doesn't have any loans to pay back, but it is supposed to create new public infrastructure, and already renegotiated a discount on the development rights to the Vanderbilt Yard and got permission to build a replacement yard smaller than promised.)

The discount in Cleveland

From the Cleveland Plain Dealer's blog, a post headlined Forest City paying $10.3 million to close out $15 million in city loans:
Forest City Enterprises will pay Cleveland $10.3 million of $15.4 million owed on three development loans, and the city will call it even.

About half the money will replenish a "rainy day" fund that is to run out this year, and $3.9 million will go to economic development. The City Council has set aside $1.4 million for neighborhood projects, with each of the 19 members receiving $75,000.

The deal, initiated by the city, involves loans made to the real estate and development company with federal Urban Development Action Grant money in the late 1980s and early 1990s. Forest City used the low- and no-interest loans to develop The Avenue at Tower City Center.

Forest City had faced balloon payments totaling about $15.4 million due in 2016 or 2020, depending on the loan.

Ken Silliman, Mayor Frank Jackson's chief of staff, said the deal ensures the city will collect two-thirds of a debt that would be hard to recover if Forest City defaulted. He and Economic Development Director Tracey Nichols said it also makes money available for economic development at a time when private financing remains tight.
(Emphasis added)

Making the deal

Why should Forest City default? They can afford to pay back the loan. They just don't want to.

The question is why Cleveland let them get away with it. Yes, as the newspaper reports, it has made similar agreements with other borrowers. Now, the city will try to do the same with other borrowers; it began with Forest City because it had the largest loans.

Paltry payoff

The payoff seems paltry:
In 2008, council members each received $100,000 for neighborhood projects. Council President Martin J. Sweeney said the council sought the same amount this time but reached a compromise with an administration that didn't want to surrender any of the money.

"We carved out a small portion to make sure it touches every part of the city of Cleveland," he said.

Wednesday, May 25, 2011

In NY, a "condemnor can condemn a Kasha Knish": more criticisms of eminent domain in New York and suggested reforms

The latest issue of the Albany Government Law Review, published by Albany Law School, concerns Eminent Domain: Public Use, Just Compensation, & "The Social Compact", with several articles that touch on the Atlantic Yards eminent domain case.

And, as scholars indicated in a recent conference at Fordham Law School, few think that decision was wise, or that the legal regime in New York inspires confidence.

Probably the quote of the issue comes from attorney Michael Rikon, who represents condemnees (including Atlantic Yards opponent Daniel Goldstein) and suggests:
It is an aphorism in criminal law that a good prosecutor could get a grand jury to “indict a ham sandwich.” With regards to condemnations in New York, it can fairly be said that in New York, a condemnor can condemn a Kasha Knish.
Commentators in the issue propose numerous reforms to right the balance in New York--reforms that likely would be opposed by supporters of the status quo.

One commentator suggests that decisions to condemn made by elected officials should be given deference, but that decisions made by appointees and others not directly accountable should face a higher burden. That would impact projects like Atlantic Yards.

The judicial reaction

In THE JUDICIAL REACTION TO KELO, libertarian legal scholar Ilya Somin of George Mason University points out that, while scholars have analyzed the legislative reaction to the Supreme Court's controversial 2005 Kelo v. New London decision--reforms in 43 states, but most of them weak--there's been little such analysis of the federal and state judicial reaction.

He observes:
With a few important exceptions, I conclude that state courts have not reacted to Kelo by adopting similarly permissive approaches to public use issues. To the contrary, three state supreme courts have explicitly repudiated Kelo as a guide to their state constitutions. Other recent state supreme court decisions have imposed constraints on takings that go beyond Kelo even if they have not completely rejected the Kelo approach.

By contrast, federal and state courts have been all over the map in their efforts to apply Kelo’s restrictions on "pretextual" takings. There is no consensus in sight on this crucial issue. It may be that none will develop unless and until the Supreme Court decides another case in this field.
The New York exceptions

The exceptions, however, are the New York Court of Appeals' recent decision in the Atlantic Yards and Columbia cases, Goldstein v. New York State Urban Development Corp. and Kaur v. New York State Urban Development Corp. Somin writes:
Both decisions upheld the constitutional validity of extremely broad definitions of blight, and also endorsed Kelo’s highly deferential approach to public use issues. More problematically, both also upheld blight condemnations despite considerable evidence of political corruption in the blight designation process.
I don't know if you could call it political corruption, but surely there's evidence of favoritism, and sloppy, indefensible standards.

Why did courts tighten the law?

Somin, who notes that court decisions "have often been influenced by public opinion and the political climate," wonders if the public backlash to Kelo impacted the courts.

Maybe, but he suggests a preexisting trend around the country towards stronger judicial scrutiny of public use issues, such as in Michigan, where a unanimous state Supreme Court, in a case known as Hathcock, reversed the justification for the infamous Poletown decision, which allowed private-to-private transfers for economic development. (New York is an exception.)

That's important, he suggests, since, in 2009, only 42% of those polled recalled that the Supreme Court had upheld the constitutionality of private-to-private transfer for economic development.

Taking pretext seriously, except with AY

The Kelo decision, as well as the concurrence, suggested plaintiffs might argue successfully to stop a sweetheart deal, but that the New London case before them did not qualify, because, among other things, the beneficiary was not known at the time of the taking.

Somin again points to the Atlantic Yards case, writing:
Overall, most courts applying Kelo have left open at least some nontrivial possibility that a taking could be invalidated as pretextual. The major exceptions to this pattern are two decisions by the United States Court of Appeals for the Second Circuit, and the New York Court of Appeals blight decisions already discussed above.
His summary:
In two of its decisions, the Second Circuit has taken an extremely deferential approach to pretext issues, falling just short of defining the pretext cause of action out of existence. In Goldstein v. Pataki, the Second Circuit considered a challenge to the same Atlantic Yards takings that were later upheld in state court by the New York Court of Appeals. Despite the considerable evidence that the taking was intended to benefit developer Bruce Ratner, who had initiated the project and lobbied for its adoption by the government, the Second Circuit refused to consider either evidence of improper motive or evidence concerning the distribution of benefits from the condemnation. So long as a taking is "rationally related to a classic public use," the court ruled that it is impermissible to "give close scrutiny to the mechanics of a taking . . . as a means to gauge the purity of the motives of various government officials who approved it."
In both the Atlantic Yards and Columbia case, Somin contends, the court ignored "strong evidence" of all four pretext factors mentioned in Kelo:
Both featured considerable evidence of improper intent, a distribution of benefits strongly favoring the new private owner of the condemned area, a private beneficiary whose identity was known in advance, and a planning process that was often perfunctory and biased in favor of a preconceived decision in favor of condemnation.
So why did the court take a pass?

Somin suggests that, at least in the Atlantic Yards case, "the majority probably ignored Kelo’s pretext standard and the lower court cases interpreting it—because the property owners' federal constitutional claims had already been rejected in federal court" in the previous case.

More glaringly, the Court of Appeals ignored the pretext issue in the Columbia case even though it had been part of the appellate division ruling it was reversing.

The difficulty of establishing pretext

Like some other commentators, Somin recognizes that it may not be easy to determine pretext:
In practice, public officials can usually persuade themselves that any taking that advances their political interests and helps an influential constituent that benefits from a taking also advances the public interest.

Finally, relying on a detailed planning process to prevent pretextual takings ignores the possibility that politically influential private interests can "capture" the planning process and bend it to its own purposes. A more extensive planning process is not necessarily less prone to favoritism than one that is less elaborate.
So even "a relatively robust effort to enforce Kelo’s pretext doctrine" by courts may reap only modest results.

Need for reform in New York

In THE TROUBLE WITH EMINENT DOMAIN IN NEW YORK, three lawyers who represented plaintiffs in the Columbia case, Norman Siegel, Steven Hyman, and Philip van Buren, offer a broad argument for reform:
Between vague statutory terms and the limited review provided by the Eminent Domain Procedure Law (EDPL), New York law, as currently written and interpreted, enables the execution of policy not authorized by law, and encourages the fabrication of pretextual purposes to evade public accountability.
The trouble starts with the underlying law and condemning agency:
In New York State, the use of eminent domain for the purpose of creating or retaining jobs and taxes has for a long time been an element of municipal and state policy. The Urban Development Corporation Law (UDCL) cites the creation of jobs and increasing tax revenues as a public purpose, and it created the New York State Urban Development Corporation, now doing business as the Empire State Development Corporation (ESDC).

The UDCL is rooted in the concerns of 1968 (when it was enacted): depressed urban centers and dying rust belt industries. Though the UDCL explicitly states that job creation and increasing tax revenue are public purposes, and uses the term “development” in the title of the public benefit corporation it creates, the development it envisages appears not to be affirmative economic development in the abstract, as would be represented by any successful business activity helping lift the broader New York gross domestic product. The statute’s statement of legislative findings and purposes gives equal space and weight to addressing “substandard or insanitary” areas, and to the essentially remedial programs to redevelop such areas. The findings requirements limited projects to “substandard or insanitary,” “blighted” areas, or to meeting a housing or civic need.
And, for the last 30 years, the private sector has been looked to as the vehicle for solving urban problems:
Policy makers wanting to exercise government power towards this end have found the use of eminent domain a convenient option. Leveraging private investment, in the right circumstances, can generate jobs and keep tax revenues up, with the price being paid by a relatively small and usually marginal part of the electorate that suffers displacement. Using eminent domain to foster economic growth is easier to accomplish politically than raising taxes.
The result?

The ESDC does not look to where there's "the greatest blight, or the most persistent unemployment," but rather gentrifying areas.

The trouble with "malleable" blight

State law defines blight as “substandard or insanitary.” In the case challenging the Atlantic Yards environmental review (Develop Don’t Destroy (Brooklyn) v. New York State Urban Development Corp.), the authors note, the Appellate Division declared blight to be a “highly malleable and elastic concept” that is “more facilitative than limiting”:
The idea of a “highly malleable and elastic” limitation on governmental authority is troublesome. It offends the constitutional value that a statute must have sufficient specificity to give adequate notice to citizens. In the criminal context, vagrancy and loitering statutes have been held void for vagueness, but also in the civil context.
"Blight,” they note, first was applied to slums, then to areas of vacancy and abandonment--a "contagion" that can spread.

But no such impact is required today:
The causal links of any proposed blight syndrome are not required to be identified and this makes it possible to distort the significance of supposed indicators of blight. This also creates a false narrative of an area driven more by the desire to find the area blighted than by comprehensive evidence of actual economic factions and relationships. Interested parties with unclean hands, such as a developer controlling substantial portions of the area sought to be condemned, can be rewarded for strategic behavior in vacating or running down property.
Safeguards recommended

The authors suggest several safeguards that would add time and process, and surely be opposed by the Bloomberg administration, among others, since they would have slowed or stopped projects conceived and presented in the way Atlantic Yards was:
First, the procedural safeguards outlined by Justice Kennedy in his concurrence in Kelo should be added to the EDPL and/or authorizing statutes such as the UDCL. Designation of areas proposed to be taken by eminent domain, the public purposes for such a taking, and a basic development plan should be required to be administratively determined and legislatively approved prior to the identification of any project sponsors or other private beneficiaries. Multiple plans and project sponsors should be considered by a transparent and competitive RFP process, and the bases for determination as to which best achieves previously determined public purposes at the least public cost should be required to be articulated.
Blight, they say, needs a definition:
Second, statutory language should be added to the UDCL and other authorizing statutes to give adequate certainty to the definition of blight. A showing of actual impairment of development or other harm to neighboring property areas or the public fisc should be required.
Ubiquitous consultant AKRF, which worked simultaneously for Columbia and the state (and consecutively for Forest City Ratner and the state), would not be allowed to find blight:
Third, the process of measuring and determining blight should be undertaken by disinterested third parties. Agencies should be prohibited from retaining consultants linked to, or paid by, developers.
As with some other critics, the authors think the arbitrary argument that a building does not fulfill 60 percent of development rights shouldn't stick:
Fourth, “underutilization” of land should be discontinued as a criterion of blight. Without causing any demonstrable harm in itself, an owner’s option to develop property less than the maximum allowed by zoning serves, at best, as an indicator of market demand.
Finally, an actual trial is needed:
And fifth, the EDPL should be amended to provide for proper trial-level proceedings—instead of giving exclusive jurisdiction to the appellate division—as currently provided. Upon a showing of likely favoritism, pretext, or bad faith, in any eminent domain taking for transfer to a private party, courts should be empowered to consider evidence beyond the administrative record, including discovery and cross examination of witnesses.
The need for abatement

Steven J. Eagle of George Mason University suggests that condemnation is a broad penalty for even severe blight, as private and public nuisance suits, and requirements for abatement, could either abate the blight or lead to foreclosure and a result with more public participation.

(That, however, does not allow for the formulation of large parcels out of "irregular," smaller lots--another justification for blight and eminent domain.)

Can pretext work?
Eagle questions the argument for pretext:
Justice Kennedy’s concurring opinion attempted to supply some content to this null set by adding that “transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.” Yet, it is not evident that, apart from possible criminal law liability for bribery, perjury, and the like, “intent” should matter at all. An honest public official agreeing to a condemnation for retransfer plan does not provide much help for his or her community if the city’s return is mediocre, even if the private counterpart’s return is worse. Likewise, the official has enhanced the city’s welfare if it receives a handsome return, even if the counterpart’s return is better.

...Justice Kennedy’s list of factors militating in favor of a finding of pretextual taking seem more like prophylactic rules against arbitrary or discriminatory conduct than explanations of why there is a lack of public benefit. Temptations to misfeasance or malfeasance by public officials might have the incidental detriment of making revitalization less efficacious. But that rationale sounds in substantive due process review within the Takings Clause, a concept the Court rejected, as Justice Stevens noted elsewhere in Kelo, and in Lingle v. Chevron U.S.A., Inc.
Kelo vs. AY
Eagle finds the Supreme Court majority opinion in Kelo more defensible than the New York Court of Appeals majority in Goldstein:
One important difference, however, is that Justice Stevens’ Kelo opinion was built largely on federalism and comity, matters not germane to a state court interpreting the state constitution. Given the imperfection of any neighborhood, and the multitude of effects intrinsic in any large condemnation, the possibility that any government assertion could be “irrational and baseless” [the line drawn by the Court of Appeals majority] is hypothetical, indeed.
Eagle suggests that the Atlantic Yards and Columbia cases "leave many important issues unresolved," notably courts' unwillingness to conduct "meaningful judicial review:
In Kaur, the Appellate Division did not independently ascertain the existence of evidentiary facts, but instead evaluated, and found wanting, the conclusions that the ESDC drew from those facts. When the Court of Appeals held that the Appellate Division was bound by the agency’s findings of blight and determined that the condemnation of petitioners’ property qualified as a ‘land use improvement project’ so long as they were not irrational or baseless, it in effect treated the agency as a part of the judicial system.
It's difficult, Eagle acknowledges to find facts to support allegations of pretext, a process that "involves intensive discovery" and is made more difficult by the Supreme Court's raising the bar, in a case called Bell Atlantic Corp. v. Twombly.

Kelo and blight

Eagle tackles the suggestion that Kelo didn't even apply to the two New York cases, because they were about blight, not economic development, as in New London. (That said, the line can be murky, as Nicole Gelinas has argued, pointing out that underutilization means lack of economic development.) He writes:
One proffered explanation of the New York Court of Appeals’ failure to mention Kelo in its Kaur decision is its possible unarticulated view that Kaur involved blight, and that the protections against pretextuality did not apply in blight cases. The U.S. Court of Appeals for the Second Circuit upheld the district court’s dismissal of the residents’ complaint that the Atlantic Yards project violated the Public Use Clause in Goldstein v. Pataki. The court held that the project was “justified in reference to several classic public uses,” including the provision of open space, additional affordable housing, and “construction of a publicly owned (albeit generously leased) stadium,” in the “long- blighted” area.
The court added that Kelo was not about blight, leading Eagle to comment:
The Second Circuit opinion points to the difficulty—and perhaps the futility—of trying to separate the strands of causation and result in a complex revitalization project. On one hand, as suggested by the court, “blight” might be an objective causal factor obviating “intent” in bringing about mixed public and private benefit. On the other hand, “blight” often has been an after-the-fact label justifying condemnation for (more upscale) private revitalization.
He adds that the two New York cases, especially Atlantic Yards, suggest both public and private benefit, "such that it is almost impossible to argue that no public benefit exists." That means that courts relying on simply the presence of public benefit will rule in favor of the condemnor.

(In a separate paper presented at the Fordham symposium, two academics suggested that the issue is not the presence of a public benefit, but the balance between public and private benefit.)

An unfair process in NY

In MOVING THE CAT INTO THE HAT: THE PURSUIT OF FAIRNESS IN CONDEMNATION, OR, WHATEVER HAPPENED TO CREATING A “PARTNERSHIP OF PLANNING?”, attorney Michael Rikon reminds us that the New York State Commission on Eminent Domain once proposed a much more balanced process:
It is notable that in its 1973 report, the Commission strongly “recommended that during the planning phase of a public project, a procedure (public hearings) should be established to afford citizens the opportunity of participation in the planning decision.” The “condemnor’s decision concerning the necessity and location of a proposed public project should reflect both consideration of the project’s detrimental and beneficial effects on a locality and should also include a specific statement of the basis of the condemnor’s decision.” This first draft of New York’s Eminent Domain Procedure Law (EDPL) also contained the recommendation “that the condemnor’s decision should be reviewable by an impartial administrative agency which would have the power to approve, conditionally approve, or disapprove the condemnor’s decision.” This remarkable provision was quickly removed from subsequent drafts of the proposed law and never adopted. Indeed, the Commission eliminated the entire subject of the necessity of the taking from the scope of judicial review and stated that “[u]nder present case law, the question of necessity of the taking of a parcel, is a legislative question and is not subject to judicial review.”
The Commission, at least in its rhetoric, said there should be a “partnership of planning,” but that hasn't happened, Rikon points out.

Case in point: the ESDC does not require to have its directors present at its public hearings on eminent domain, and in most hearings those running the hearings don't respond to anything said. (I'd add that written responses have been made in the Atlantic Yards case.)

Don't blame Kelo

Rikon argues that the Kelo decision had no impact on jurisprudence in New York, as the UDC has long been able to "condemn a Kasha Knish."

Rikon endorses the dissent from Judge Robert Smith in the Atlantic Yards case, stating:
The deference to determinations made by the condemnor that property is needed indicates the judiciary’s abandonment of its function. If it can be said that the exercise of authority under the EDPL is an essentially legislative function, then a court should avoid violence to the fundamental separation of powers doctrine, which represents the constitutional check on powers in our form of government. The fact is that the courts have, by making determinations to take private property “legislative,” abdicated the responsibility of safeguarding property owners’ constitutional rights.

Indeed, the decisions made to condemn are not legislative determinations. They are not made by legislatures, or sometimes even by elected officials who are responsible to those that elect them. Rather, the determination of what property to take and who to give it to is made by a handful of appointees who are responsible to no one. The decision making process to condemn private property is not made by a deliberate assembly. Thus, a finding that a property condemnation furthers a public use or purpose will be affirmed unless it is “without foundation” in the hearing record.
Rikon points out that a task force of the New York State Bar Association on eminent domain issued a final report in July 2007, offering eight recommendations, but nothing happened in the State Legislature.

Commission needed

As with others, Rikon suggests "the need to define and perhaps limit the definition of public purpose and permissible acquisitions, and how New York defines “blight.” Thus, he recommends a
Temporary Commission to study and propose a new Eminent Domain Procedure Law for New York. In addition to the above, the Temporary Commission should study whether the power of eminent domain should be limited to true public use and should there be restrictions on takings which would enable developers to take private property for large scale developments.
A contrarian voice

In EVALUATING ECONOMIC DEVELOPMENT TAKINGS: LEGAL VALIDITY VERSUS ECONOMIC VIABILITY, David Schultz argues that "the problem with many eminent domain projects is not so much the use of eminent domain, but instead, the economic viability of the development project to be undertaken with the user of this authority."

He makes a reasonable case that the backlash to Kelo was overheated--as does Lynne Sagalyn in this paper--but does not address whether the cases in New York do constitute eminent domain abuse, as a rather broad number of commentators believe.

Schultz writes:
The reaction to the Kelo decision and the labeling of it as eminent domain abuse did not come out of nowhere. It was the culmination of a lobbying and public relations process on two fronts. First, it was part of a political effort to reinvigorate property rights that were rooted in a neo-liberal effort to limit government intervention in the economy. Second, it was a reaction to decisions such as Poletown Neighborhood Council v. City of Detroit and Hawaii Housing Authority v. Midkiff, which critics contended had vastly and incorrectly expanded the public use justification for eminent domain at the expense of property rights. Thus, especially beginning with William Rehnquist becoming Chief Justice in 1986, there was hope for a revival of property rights. This hope was never fully realized and critics of eminent domain were often disappointed.
Criticizing the IJ

He takes aim at an April 2003 report by the Institute for Justice and Castle Coalition entitled Public Power, Private Gain: A Five-Year, State-By-State Report Examining the Abuse of Eminent Domain:
It asserted that from January 1, 1998 until December 31, 2002, there were at least 10,282 examples of eminent domain abuse across forty-one states in the United States. This report, released as Kelo was working its way through the Connecticut courts en route to the United States Supreme Court, was critical in terms of laying the ground work for asserting that eminent domain abuse existed. But the media never did critically examine the report and its assertions. How does the report stack up when examined? Not well.
He criticizes assumptions in the report, such as threatened but not enacted condemnations, or counting each property targeted, rather than each project. He cites research by Robert Dreher and John Echeverria, Kelo's Unanswered Questions, who say the alleged 10,000-plus abuses works out to one potential abuse per state, per year.

(Here's IJ's reponse, Dreher and Echeverria: Disinformation & Errors on Eminent Domain. which contends, "To lump everyone together is simply the authors’ way of belittling the hard-working people that deal with eminent domain abuse every day. And frankly,
it doesn’t matter if only one person was being abused—it is still abuse." But don't the numbers matter?)

Schultz also thinks that "courts have demonstrated a capacity to protect against eminent domain abuses," which may be true in a good number of states outside New York.

Unwise projects

He then demolishes "several assumptions regarding efforts by governments to induce economic development often times in conjunction with eminent domain," criticizing the following:
  • tax breaks to encourage economic relocation
  • enterprise zones
  • the public use of tax dollars for a sports stadium
  • convention-entertainment center/tourism strategies
What about sports? Schultz observes:
If one accepts this logic of sports being necessary to make a city first class, can we say that New York City became second class when the Giants and Dodgers fled for California in the 1950s, or that Los Angeles became second class when it lost the Angels to Anaheim or the Rams to Saint Louis? The answer is obviously no.
New York's redevelopment experiments

In FROM SLUM CLEARANCE TO ECONOMIC DEVELOPMENT: A RETROSPECTIVE OF REDEVELOPMENT POLICIES IN NEW YORK STATE, Albany Law School researcher Amy Lavine (and co-author with me of an article on Atlantic Yards legal cases), suggests a closer look at the state's experimental early redevelopment laws:
Redevelopment projects in New York increasingly focused on the revenue-generating possibilities of project sites, rather than the severity of dwelling conditions faced by residents. “These kinds of projects,” New York City historian Samuel Zipp wrote, “confirmed that the primary objective of redevelopment had become keeping white and middle-class residents, shoppers, and . . . audiences in town, thereby offsetting suburbanization, propping up central business districts, and easing the fiscal troubles of cities. This was the ultimate endgame for the ethic of city rebuilding.” Increasingly broad blight determinations were also made possible by the growing importance of administrative discretion, which the courts were reluctant to question. As [Charles] Abrams explained, this contributed to an “unrestricted exercise of public power on behalf of private interests . . . [that] transformed social reforms into tools of oppression.”
She addresses the ESDC's precursor, the Urban Development Corporation:
The UDC’s enabling legislation, which was passed in 1968 just after Martin Luther King’s assassination, gave the authority a suite of impressive features, including “the power to override local zoning laws and building codes, the freedom from various restrictions that would prevent rapid development, and a particularly flexible and independent financing mechanism.” These vast powers were unprecedented and raised serious concerns about home rule and accountability. Moreover, it was questionable whether the UDC would actually be able to become self-sufficient...

As the UDC matured, it became known as the Empire State Development Corporation (ESDC), and the scope of its “truly amazing powers” also become more apparent. As Abrams would have predicted, these powers often proved especially helpful to the authority’s private partners. The Times Square redevelopment, for example, was facilitated by ESDC’s use of eminent domain and its override of New York City’s land use approval process. More recently, the Brooklyn Atlantic Yards project similarly benefited from eminent domain and an override of New York City’s zoning and planning laws. In the case of Atlantic Yards, moreover, ESDC demonstrated its ability to work cooperatively with a favored developer to all but ensure project approval and escape public scrutiny.
Who's in charge?

Lavine suggests oversight is insufficient:
While appointed boards may be responsive to political pressure and private interests, they are largely unaccountable to the voters. Additionally, because of the questionable conclusion of the Court of Appeals that public authorities’ debt is separate from the state’s, it is not clear whether ESDC is even subject to taxpayers challenges. ESDC and IDAs have also taken up complex and non-transparent financing methods intended to circumvent the minimal limitations imposed on them by state law. The legislature has made some progress in creating accounting and operating requirements for public authorities, but it has yet to enact legislation imposing stricter limitations on eminent domain and other discretionary powers.
In New York, plaintiffs had no chance

In THE RISE OF ROBERT MOSES AND THE FALL OF NEW YORK CONSTITUTIONAL PROTECTIONS AGAINST EMINENT DOMAIN, Christopher Dunn of the New York Civil Liberties Union, like Rikon, suggests that the die was cast against plaintiffs well before the Columbia and Atlantic Yards cases:
the constitutional protections largely expired starting in the 1930s, a development that coincided with Robert Moses’s four-decade campaign of bulldozing around New York State, through New York City, and over anyone who stood in his way.
In a case known as Muller, the court concluded that slum clearance qualified as a public use, even if the ultimate use was private, thus contradicting previous rulings:
Indeed, the court essentially held that what controlled was not the ultimate use of the property, but instead, the reason for it being taken
Even less scrutiny

Two additional cases cemented the notion that "public use" meant "public purpose," and that increased commercial activity could suffice:
According to the court, the public use inquiry ended if the government could establish that the property was underdeveloped: “Where, then, land is found to be substandard, its taking for urban renewal is for a public purpose.” Thus, under such circumstances, there was no need to balance the public benefit against the private benefit: “It would not then be necessary, as a precondition to the taking, to determine that the public benefit in assuring the retention of Otis as an increased source of employment opportunity in Yonkers was sufficient to outweigh the benefit that may be conferred on Otis.”

Thus, by the time the Moses era came to an end, the Court of Appeals had effectively foreclosed eminent domain challenges grounded in the constitution’s public use provision. The two recent decisions in the Atlantic Yards and Columbia University cases simply adhere to the hands-off approach adopted by the court thirty-five years ago.
That may be true, but the Court of Appeals, in the two recent decisions, also had to affirmatively ignore the efforts to invoke Kelo and its indicia of sweetheart deals.

Dunn does not blame Moses for dictating eminent domain law, but says
his reign and the corresponding transformation of the New York Court of Appeals’s view of constitutional restraints on eminent domain both reflected a broader societal acceptance of massive public works projects and a corresponding decline in the perceived sanctity of the private ownership of property that stood in the way of those projects.
New York's unique procedures

In STACKING THE DECK: NEW YORK’S UNIQUE APPROACH TO EMINENT DOMAIN, Robert McNamara of the Institute for Justice continues themes in the issue, writing:
New York’s abuses make it unique. “Eminent domain” means something different in New York—both procedurally and substantively—from what it means anywhere else. New Yorkers stand alone in the country in being wholly unable to protect their property using ordinary judicial procedures—things as basic as being able to question witnesses under oath—that everyone else simply takes for granted. New Yorkers stand alone in the country in facing a judiciary that flatly refuses to take seriously the arguments of those hardy few who manage to get into court in the first place. Furthermore, New Yorkers stand nearly alone in facing a legislature that has failed to even attempt to reform the state’s eminent domain procedures in the wake of the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London.
As has been pointed out, evidence is not presented under oath, nor is there any opportunity to conduct discovery. McNamara writes:
There is perhaps no better illustration of the utter backwardness of New York’s procedures than this: If a government official wants to take away a citizen’s personal property, that citizen is entitled to an adversarial hearing where the official’s right to take the property is put to the test. But if that same official merely wants to take away the building where a citizen keeps her personal property, the need for an adversarial hearing (according to New York officials) magically evaporates. This cannot be justice. Simply put, the idea that individuals in New York can be deprived—irrevocably—of their real property without an opportunity to test the government’s evidence—to ask even the most basic questions about the purpose of the taking, or just engage in a “give and take” with the officials who would assert the power of eminent domain—is foreign to the American system of law and incompatible with the most basic notions of fairness. New York’s eminent-domain procedures cannot be squared with the basic norms of due process as described by the Supreme Court, nor can they be squared with the procedures used in any other state. They are, in a word, indefensible.
Proposed reforms

As with some other contributors, McNamara suggests several reforms:
• Property owners should be allowed to contest the government’s right to take their property at the time of taking.... Because it could be months or years before the government uses its power to condemn the property—if indeed it ever does so—which forces property owners to choose between spending tens of thousands of dollars in legal fees fighting a speculative risk and hoping against hope that the condemnation notice never comes. [Consider that eminent domain has been approved for Atlantic Yards properties yet to be taken.]
• Failing that, New York should prolong the time property owners have to challenge the government’s right to take their property....
• New Yorkers should also be entitled to defend themselves using ordinary litigation procedures, including discovery and the right to question the government’s witnesses under oath...
• Giving New Yorkers access to the ordinary tools of litigation is best accomplished by moving the review of condemnation decisions to the trial court in the first instance. ...
• Failing trial-court review, the state should at minimum allow property owners to build a record in front of a neutral finder of fact...
• Procedural reforms, of course, will only go so far. New York must change the substance of its laws. The best reform is also the simplest: New York should prohibit the use of eminent domain for private development.
• Failing that, New York should at least correct the errors introduced by the State Court of Appeals’ 2009 and 2010 decisions and clarify that the existence of blight is a judicial question.... Judges are at least as capable of evaluating the existence of “blight” as are condemning authorities, and restoring the traditional role of the judiciary in supervising blight designations would do much to curb the worst abuses in the state.
•At minimum, the state must make clear that pretextual takings are prohibited.... But the state’s Court of Appeals has refused to seriously engage with claims of pretext, bringing the protection of property rights in New York below even the minimal floor outlined by the Kelo majority.
When to defer

In THE EDPL REVISITED, attorney M. Robert Goldstein, a partner in the law firm with Rikon, allows for the other side: that condemndation is an important tool, and it can be blocked by a loud, not necessarily right, minority.

He offers an intriguing, and worthy, measure toward progress:
That solution is to divide the decision to condemn into two categories: one where the decision to condemn is made by elected officials, and the second as to the balance. When the decision is made by elected officials, the usual rules would apply. Recourse, while rarely possible in the courts, at least in theory, is available at the ballot box.
When made by public corporations, authorities, utilities, railroads and the like, where the decision makers are appointed, in private corporations and/or anonymous, different rules would apply. In such cases, I propose a burden would be placed on the proponents to prove public use. The burden of challenging such a finding would be less than that in challenging findings by elected officials, but more than just a weighing of the evidence. There still could be a presumption of regularity. To overcome it would require clear and convincing evidence.
Authorities like the ESDC were created to shield legislators from accountability, Goldstein writes, but now "there must be a rebalancing."

So, under his schema, projects like Atlantic Yards would have faced a much higher burden in court.