Wednesday, May 31, 2006

ED in the Yards

We have been commenting extensively about the complexities of the entire eminent domain question. Much of the debate over last summer's SC Kelo decision centered around the court's expansive definition of what constitutes a "public use."

Those who disagreed with Kelo generally felt that public use should be more narrowly construed to mean things like schools, roads or bridges. In general, the higher court left this decision in the hands of local political authorities and many critics felt this created a dangerous situation because local politics is often dominated by real estate interests.

Our position has always been less absolutist than that of the severest critics of Kelo. Our position has been that great care needs to be exercised when property is taken and the greatest degree of transparency must be present when development entails the use of ED.

Which brings us to the Atlantic Yards controversy. Does the exercise of the eminent domain option so that FCRC can take other peoples' property to build an arena and 7,000 units of housing constitute public use?

In today's NY Times the paper reports that opponents of the plan have suffered another legal setback in their efforts to derail the project. Undaunted one of the unsuccessful lawyers tells the Times that "We believe in the moral correctness of our case, and are confident that this decision will inspire the public's vigilance and scrutiny to grow even stronger..." Where does morality really lie here, if it lies here at all?

While it is quite true that the Alliance's Richard Lipsky is retained by FCRC to help build support for the project in the sports communities of Brooklyn it is also true that the debate over public use needs to be evaluated on its own merits. Does providing affordable housing for thousands of Brooklyn residents constitute as much a public use as any road?

Will putting thousands of New Yorkers to work be a defendable public benefit? How about creating a not-for-profit alliance to promote youth sports in the borough? One can see just how nuanced this whole public use clause can become.

In fact in this month's libertarian Reason magazine Justice Alex Kozinski, considered to be somewhat of a libertarian himself, underscores this very point when he tells his interviewer, "So if the city thinks there should be a private business instead of a private house, it has to make that decision. If you want to decide on your own, you can go live in a forest."

Kozinski goes on to point out that even the so-called public roads are built for the convenience of millions of private vehicles: "What matters is that it makes it easier for other people to get from point A to point B using their private vehicles for private purposes.You could say 'but its my house and my private purpose is more important than your private purpose.' But we live in a society."

So it all comes down to politics. We elect our mayors and our councilpersons and we need to hold them accountable. If we're unable to do so-whether at the BTM or AY-than we need to do a better job of organizing and educating. And if FCRC does the kind of grass roots outreach that galvanizes large swaths of Brooklynites, well, that's poltics in the big city. The Alliance has suffered some devastating defeats and we try to never let today's defeat spoil tomorrow's victory. Be better organized, do better media outreach, get a stronger coalition in place. Most of all, learn from your mistakes so you don't repeat them.