Ten years ago, a New York real estate developer named Bruce Ratner fell in love with a building site at the corner of Atlantic and Flatbush Avenues in Brooklyn. It was 22 acres, big by New York standards, and within walking distance of four of the most charming, recently gentrified neighborhoods in Brooklyn — Park Slope, Boerum Hill, Clinton Hill, and Fort Greene. A third of the site was above a railway yard, where the commuter trains from Long Island empty into Brooklyn, and that corner also happened to be where the 2, 3, 4, 5, D, N, R, B, Q, A, and C subway lines all magically converge. From Atlantic Yards — as it came to be known — almost all of midtown and downtown Manhattan, not to mention a huge swath of Long Island, was no more than a 20-minute train ride away. Ratner had found one of the choicest pieces of undeveloped real estate in the Northeast.
But there was a problem. Only the portion of the site above the rail yard was vacant. The rest was occupied by an assortment of tenements, warehouses, and brownstones. To buy out each of those landlords and evict every one of their tenants would take years and millions of dollars, if it were possible at all. Ratner needed New York State to use its powers of “eminent domain” to condemn the existing buildings for him. But how could he do that? The most generous reading of what is possible under eminent domain came from the Supreme Court’s ruling in the Kelo v. New London case. There the court held that it was permissible to seize private property in the name of economic development. But Kelo involved a chronically depressed city clearing out a few houses so that Pfizer could expand a research and development facility. Brooklyn wasn’t New London. And Ratner wasn’t Pfizer: All he wanted was to build luxury apartment buildings. In any case, the Court’s opinion in Kelo was treacherous ground. Think about it: What the Court said was that the government can take your property from you and give it to someone else simply if it believes that someone else will make better use of it. The backlash to Kelo was such that many state legislatures passed laws making their condemnation procedures tougher, not easier. Ratner wanted no part of that controversy. He wanted an airtight condemnation, and for that it was far safer to rely on the traditional definition of eminent domain, which said that the state could only seize private property for a “public use.” And what does that mean? The best definition is from a famous opinion written by former Justice Sandra Day O’Connor:
Our cases have generally identified three categories of takings that comply with the public use requirement. … Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership — such as for a road, a hospital, or a military base. See, e.g., Old Dominion Land Co. v. United States, 269 U. S. 55 (1925); Rindge Co. v. County of Los Angeles, 262 U. S. 700 (1923). Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use — such as with a railroad, a public utility, or a stadium.
A stadium. The italics are mine — or rather, they are Ratner’s. At a certain point, as he gazed longingly at the corner of Atlantic and Flatbush, a light bulb went off inside his head. And he bought the New Jersey Nets.
Earlier this year, NBA commissioner David Stern was interviewed by Bloomberg News. Stern was expounding on his favorite theme — that the business of basketball was in economic peril and that the players needed to take a pay cut — when he was asked about the New Jersey Nets. Ratner had just sold the franchise to a wealthy Russian businessman after arranging to move the team to Brooklyn. “Is it a contradiction to say that the current model does not work,” Stern was asked, “and yet franchises are being bought for huge sums by billionaires like Mikhail Prokhorov?”
“Stop there,” Stern replied. “… the previous ownership lost several hundred million dollars on that transaction.”
This is the argument that Stern has made again and again since the labor negotiations began. On Halloween, he and the owners will dress up like Oliver Twist and parade up and down Park Avenue, caps in hand, while their limousines idle discreetly on a side street. And at this point, even players seem like they believe him. If and when the lockout ends, they will almost certainly agree to take a smaller share of league revenues.