Streetsblog New York City

Supreme Court nominee Sonia Sotomayor is dominating the conversation in Washington as analysts begin  to dig into her past rulings. And while she has yet to weigh in on abortion, the judge has spoken loud and clear on an issue of interest to livable streets advocates: eminent domain.

As a judge on the Second Circuit Court of Appeals, Sotomayor ruled against property owners in Didden v. Village of Port Chester, a case that centered on plans for a CVS drug store in Westchester County.

Lawyer and blogger Ilya Somin, who urged the Supreme Court to consider the Didden case, has a thorough -- if undeniably subjective -- summary of the case here. In an unsigned judgment, Sotomayor's court ultimately allowed the Westchester developer to condemn the land belonging to plaintiff Didden and build a competing pharmacy, despite the questionable public-use benefit that would result from the taking.

During her confirmation hearing, Sotomayor is likely to get pointed questions on Didden from conservatives who were dismayed when the nation's highest court ruled in favor of eminent domain rights in 2005's Kelo v. New London. But should urbanites, and livable streets advocates in particular, also be concerned by the nominee's stance on takings of private property?

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The American Prospect reports on a bi-partisan panel at the University of Minnesota last week where some dyed-in-the-wool Republicans declared their affinity for urbanism and opposition to sprawl:

Policies in favor of dense development shouldn't be viewed on a left-right spectrum and certainly needn't be filtered through culture-war rhetoric, the panelists said. In fact, one doesn't have to be concerned about climate change at all in order to support such policies; values of fiscal conservatism and localism, both key to Republican ideology, can be better realized through population-dense development than through sprawl.

Tom Darden, a developer of urban and close-in suburban properties, said Wednesday, "I'm a Republican and have been my whole life. I consider myself a very conservative person. But it never made sense to me why we would tax ordinary people in order to subsidize this form of development, sprawl." Darden told the story of a road-paving project approved by North Carolina when he served on the state's transportation board. A dirt road that handled just five trips per day was paved at taxpayer expense, with money that could have gone toward mass transit benefiting millions of people.

"Those were driveways, in my view, not roads," Darden said.

Now that U.S. taxpayers will probably have to bail out the Highway Trust Fund to the tune of $8 billion, how much longer can the free-spending road-building industry masquerade as an enabler of personal freedom?

Personal sidenote: Stories like this remind me of my high school calculus teacher, Mr. Hall, who was conservative through and through, and didn't shy away from sharing his views in class. When he was a kid, his family's farm ceased to be viable when it got split down the middle to make way for I-91. Much of his distaste for government seemed to spring from this fact. Not that eminent domain doesn't have its uses, but here was a guy whose conservatism was rooted in opposition to highway building.

An Interview With Kent Barwick, President of the Municipal Art Society

With the Pataki Adminstration scrambling to beat the buzzer and win approval for Forest City Enterprise's "Atlantic Yards" mega-project before the inauguration of Governor-Elect Eliot Spitzer, journalist Ezra Goldstein talks to Municipal Art Society President Kent Barwick about the problems that arise when communities are locked out of the development process in their own neighborhoods.

Municipal Art Society President Kent Barwick has been attacked for not condemning Forest City Enterprises plan to drop 17 high rises and a 19,000-seat basketball arena in the middle of Prospect Heights, Brooklyn. He has also been criticized for being too concerned about process when, say his critics, the basic concepts behind the immense Atlantic Yards project are fatally flawed. To Barwick, however, process is paramount, and Atlantic Yards is the poster child for what goes wrong when process is ignored.

Barwick says that the people of Brooklyn and their elected representatives have been shut out of planning for Atlantic Yards and all major decisions have been made behind closed doors. The result is a poorly designed project that has polarized the community and that squanders both opportunity and public trust.

The project can be saved, he says, but only if people are given the chance not just to speak but to be heard. That would happen if the state recognizes that, properly, its client at Atlantic Yards is the citizens and government of New York City, not a private developer.

That is no radical notion, argues Barwick. It is law and policy embedded in regulations and the city charter, thanks in large part to agreements he and the MAS helped hammer out two decades ago after a prolonged battle with the Koch administration over the proposed sale to a private developer of publicly owned land on Columbus Circle.

The city, says Barwick, is obligated to solicit ideas from the public, develop a master plan, put out an RFP (a request for proposals) and then consider bids from several developers before it can give up a significant piece of land. More public hearings follow before construction is allowed to begin. It may be a cumbersome and imperfect process, Barwick admits, but in project after project, the end result has been far superior to the initial concept.

At Atlantic Yards, a private company developed plans for the 22-acre site before Brooklyn's communities had a chance to say a word, and long before a token RFP was issued. The community boards, guaranteed participation in neighborhood planning in the 1975 and 1989 revisions to the city charter, were completely shut out of the process, as were Brooklyn's democratically elected City Council members. The developer never publicly asked the advice of the highly capable (and taxpayer funded) staff at the Department of City Planning which had just completed a major rezoning of Downtown Brooklyn adjacent to the project's footprint.

The first time Brooklyn residents heard that Forest City Ratner Companies intended to build 16 skyscrapers and an arena in the middle of their borough, it was presented largely as a fait accompli. That was allowed to happen because the city had ceded responsibility for the site to the Empire State Development Corporation (ESDC), and the ESDC, bluntly, operates above the law. The ESDC has the power to override New York City law and policy, and that is precisely what it has done.

The ESDC was established in the 1960s as the Urban Development Corporation (UDC) with the best of intentions, says Barwick. Its primary function was to get economically mixed housing built outside poor neighborhoods, and "Governor Rockefeller recognized that you couldn't integrate society if you didn't have a way to break through local zoning laws. The UDC act gave the state the mechanism when necessary to break local zoning codes to achieve a higher purpose."

But, Barwick says, "that has evolved now into a situation where virtually all major projects in the state use the UDC act, because it is virtually impervious to challenge. UDC projects don't have to conform to local zoning, or pay any attention to historic preservation, and they give the state the power of eminent domain."

UDC projects also "bypass virtually every opportunity there is for citizens to voice their opinion."

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