Develop Don’t Destroy Brooklyn (DDDB), a group opposed to the taxpayer-financed development project Atlantic Yards, filed a motion with the New York Court of Appeals alleging that the environmental impact statement authored by the Empire State Development Corporation was illegally biased and predetermined in a manner that favors the property developer.
Specifically, according to DDDB, the latest brief filed in the case that challenges the environmental review asks the Court of Appeals to hear its case and address the following:
“1. Whether ESDC’s purposeful denial and mischaracterization of the uncontroverted economic conditions and trends in the project area, and its knowing misrepresentations of crime data in the project area, to support its ‘blight’ determination, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its determination that the area is ‘substandard and insanitary’ for purposes of designating the project a ‘land use improvement project’ under the Urban Development Corporation Act (UDCA).
2. Whether ESDC’s purposeful denial and mischaracterization of the uncontroverted economic conditions and development trends in the project area, in order to justify its rejection of project alternatives, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its rejection of project alternatives under State Environmental Quality Review Act (SEQRA).
3. Whether ESDC was required to consider the economic conditions and development trends in the project area in order to exercise its authority to designate and undertake the project as a ‘land use improvement project’ under the UDCA.
4. Whether a sports arena leased for one dollar per year to a private, for-profit entity to be operated as a professional sports facility, with trivial civic benefits, may nevertheless be designated a ‘civic project’ under the UDCA.
5. Whether the standard of review of an agency action under CPLR Article 78 is the same as the standard of review in a taxpayer action under section 51 of the General Municipal Law.”
The proposed Atlantic Yards project is financed in part by $1.6 billion+ in government subsidies. Forest City Ratner, the developer, is attempting to seize many of the affected parcels through eminent domain in order to construct high rise commercial and residential towers, along with a 20,000-seat arena. As noted by Daniel B. Kelly in the forthcoming Supreme Court Economic Review 2009 (ungated working paper available at SSRN), illegal pretextual takings–use of eminent domain when a deal between government and preferred private developer has already been reached–are far more common when development agencies author environmental impact statements and undertake “blight” determination studies. These analyses typically ignore current local economic trends and attempt to paint the economic landscape in the bleakest terms possible in order to convince the appropriate bureaucrats that a state-run, public-private “economic rehabilitation” plan is neccessary.
But, largely due to the poorly-reasoned majority opinion in Kelo v. New London, property owners now often face a Sisyphean task when they are forced to confront an unholy alliance between government bureaucrats and rent-seeking private developers.