Did Atlantic Yards Ruling Pass the Buck on ‘Blight’?


Tuesday’s Atlantic Yards decision, in which New York’s highest court upheld the right of the state to seize private property on behalf of a mega-developer, will doubtlessly impact the lives of thousands of Brooklyn residents and be discussed for years to come.

But the court backed off from a central question: Whether the site in downtown Brooklyn is truly “blighted.”

In many ways, the entire case boils down to that loosely-defined word.

The decision clears a major hurdle for developer Bruce Ratner to go through with his plans to build a stadium for the New Jersey Nets and a 16-high-rise complex. The court upheld the right of the Empire State Development Corporation to use eminent domain to condemn businesses and homes within the 22-acre site on behalf of Ratner’s company, Forest City Ratner.

In order to make the case that the project would have a legitimate public use — a necessary criterion for granting eminent domain — Ratner and ESDC had to convince the court that the area was blighted. (The local residents who brought the lawsuit argued that, while much of the area is underutilized, their section of it is actually a very pleasant place to live.)

Blight studies have been disputed in other New York eminent domain cases — like the lawsuit brought over Columbia University’s contentious Manhattanville expansion project — on the grounds that they have been financed by developers with a stake in their results.

Since the Atlantic Yards case hinged on the blight question, one would expect the Court of Appeals to have debated the questions of whether the area was actually in decay. But the majority decision, at least, brushed it off.

Chief Judge Jonathan Lippman said in Tuesday’s decision, “It is quite possible to differ with ESDC’s findings that the blocks in question are affected by numerous conditions indicative of blight… It may be that the bar has now been set too low — that what will now pass as ‘blight’ as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses.”

Then Lippman passed the buck to the politicians:

“But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.”

The lone dissenter in the case, Judge Smith, took on the blight issue directly, and claimed his colleagues were sidestepping the issue.

Smith wrote that the courts have been in the business of deciding what constitutes blight since the term first cropped up in a Depression-era eminent domain case, in which the city’s Housing Authority sought to take over slum dwellings from a private property owner after the owner had refused to accept payment for them, arguing that the slums were a “menace to the community.”

In that case, the term was defined as “substandard and unsanitary.” In recent decades, it has evolved to mean anything from irregularity of plots to incidence of crime, the drain the area makes on municipal services, traffic congestion, and pollution.

“Courts are required to be more than rubber stamps in the determination of the existence of substandard conditions,” Smith wrote.

Smith pointed out that when Ratner announced the project in 2003, his argument for eminent domain was that it would bring economic development and prosperity to the area. It wasn’t until two years later — when the recession seemed to diminish this claim — that Ratner and ESDC started using the word blight with respect to the site.