Berman’s Children

Michael Galinski and Suki Hawley (directors). Battle for Brooklyn. 2011.

Suleiman Osman. The Invention of Brownstone Brooklyn. Oxford. 2011.

John P. Stevens, et al. Kelo v. New London. Supreme Court of the United States. 2005.

Earl Warren, et al. Berman v. Parker. Supreme Court of the United States. 1954.

Brooklyn’s Prospect Heights Historic District comprises over 850 buildings, mostly Neo-Grec, Romanesque, and Renaissance Revival rowhouses from the mid- to late 19th century. The District occupies the bulk of a parallelogram formed by Eastern Parkway and Atlantic, Flatbush, and Washington Avenues. Of the 102 historic districts in New York City’s five boroughs, only four are larger than the one in Prospects Heights.

At the northern edge of the District sits the construction site of Atlantic Yards. Infamously, the twenty-two acres of land were in part purchased by Forest City Ratner (FCR) and in part handed over by the state of New York through the exercise of eminent domain. Announced in 2003, Atlantic Yards was initially to contain a Frank Gehry–designed complex of residential towers and an arena for the Brooklyn (née New Jersey) Nets. Since then, largely economic troubles have led to a cost-conscious redesign—Gehry’s out, prefab’s in—and a de facto extension of the completion schedule from ten to twenty-five years.

Efforts to designate the Prospect Heights Historic District began in 2006 and came to fruition in the summer of 2009. The Yards, in some sense, created the District.

In The Invention of Brownstone Brooklyn, Suleiman Osman describes two mirrored ideologies that took hold in postwar New York as the city found its postindustrial identity: urban modernism and antimodern, romantic urbanism.

Urban modernism was the ideology of City Hall. With midtown Manhattan’s rising business district serving as a model, city government (aided by federal funding and private institutional partners) sought to transform the largely obsolescent, decaying, yet stubbornly rooted cityscape into one that was fluid, dynamic, and detached from nature’s vagaries. This new built environment, effected under the banner of “urban renewal,” would unify the city and connect it to the larger infrastructural and economic systems that were fast developing outside its borders. This meant Robert Moses’s highways, parkways, and thruways, but also better public transit, better communications technology, larger buildings, super-neighborhoods, and straighter streets.

Creating an integrated system required scientific expertise and the ability to exert political power over the city as a whole. As a result, urban modernism naturally assumed the political form of a centralized bureaucracy. In the immediate postwar years, the city delegated its planning powers, including the power of eminent domain, to newly formed agencies run by small boards of “experts.” These entities, often explicitly formed as corporations, worked with the private sector and without electoral accountability to build the modern city. The system would be planned efficiently and rationally, rather than through the democratic process, with its often irrational results.

The romantic urbanism of the city’s young, largely white professional class developed as a direct counterpoint to this dominant modernism. They were brought to the city by the same economic transformations that supposedly necessitated integration; they sometimes worked for the same institutions that helped execute it. Yet many of them sought a sense of place, a human scale, and community in their increasingly placeless, giant, and alienating cityscape. Moving to (or, in their parlance, “discovering” and “settling”) neighborhoods like what are now Greenwich Village and Brooklyn Heights, the group (they would come to be known as “brownstoners”) embraced a selective narrative of the neighborhoods that conformed to their emerging urban-pastoral ideal.

As they set about renovating their rowhouses and fighting off government re-development, the brownstoners also developed a political identity that emphasized decentralization and private choice. They opposed bureaucracy and favored participatory democracy, forming neighborhood political reform groups and sometimes attempting to organize in the surrounding poor and nonwhite areas. And in celebrating the “sanctity of home, small shops, bootstrap renovation, and freedom from city intervention,” the movement implicitly endorsed urban renewal not through massive top-down public projects but through individual enterprise, idealizing a city that was “organic, the messy sum of a million private decisions.”

In his account of the prolonged battle over Brooklyn’s Cadman Plaza, Osman shows the concretely causal relationship between these two urban-political movements. When Robert Moses’s Slum Clearance Committee first formally proposed Cadman Plaza in 1959, it was to include a high-rise luxury apartment tower, an underground parking complex, and a shopping center, and it was set to occupy a large chunk of land at the northern edge of Brooklyn Heights. The plan led directly to the organization of the Community Conservation and Improvement Council (CCIC, pronounced kick), a group of young Heights professionals—lawyers, architects, journalists—devoted to stopping the project. CCIC produced extensive architectural surveys to fight the city’s “slum” characterization, proposed boundaries for a historic district, and helped create a literature of romantic urbanism to recruit their peers.

Their work was effective. In the ensuing six years, the Cadman proposal underwent a series of modifications: the shopping center was scrapped, luxury efficiencies were replaced with more affordable family co-ops, and displaced residents received significant relocation assistance. In one sense, the resistance was a triumph of conservation. But the work of CCIC and like-minded residents was also an act of self-definition that might not have occurred but for Cadman Plaza’s threat. By the time ground broke on an altered Cadman in 1964, the brownstoners’ neighborhood existed in a way it hadn’t before. Soon it would even have legal borders. As Osman writes, “The historic landscape was born in the wake of the modern projects. One could not exist without the other.”

Osman’s book is full of sentences like these, connecting the phenomena of early gentrification with a common sense of paradox. The brownstoners’ aversion to suburbia “mixed an anticorporatist critique of ‘ticky-tacky’ tract homes . . . with a veiled disdain for their provincial denizens.” In promoting sweat-equity rehabilitation over public planning, “the ostensibly liberal new middle class unintentionally [became] bedfellows with an emerging New Right critique of government intervention.” The so-called literature of gentrification—or at least the often shallow embrace of it—“paradoxically mixed real estate boosterism with a genuine advocacy for the poor.” To Osman, our ambivalence about how Brooklyn and places like it have changed in the last sixty years is not a failure of nerve. Rather, it is a reflection of the shape-shifting motivations and actions that wrought that change.

Today, Prospect Heights’ struggle against Atlantic Yards is a sort of sequel to Brooklyn Heights’ against Cadman Plaza. Echoing CCIC in 1958, the Prospect Heights Neighborhood Development Council formed in the spring of 2004, a few months after FCR’s unveiling of the Yards project, to assess the needs “of the Prospect Heights community in terms of housing, economic development, [and] physical environment.” It immediately commissioned a “Neighborhood Survey” from the Pratt Institute (which found widespread opposition to the Yards), and it soon began to lay the foundation for historic district designation. This last strategy, the powerful legal tool of historic districting, unites the early brownstoners and their contemporary descendants. But it does so by way of another paradox. Politically, opposition to the Yards provoked the creation of the District; legally, they’re products of the same case.

When the fight against Cadman Plaza began in the late ’50s, there was no such thing as a historic district in New York City: there was only the Bard Act. Passed with little fanfare in 1956, the state provision gave cities the power to put “conditions or regulations” on the “use or appearance” of property that had “special historical or aesthetic interest or value.” That is, it enabled cities to regulate on the basis of beauty. But as mere enabling legislation, it did not force cities to do so, and the new power lay dormant in the state’s code until April 1965, when Mayor Robert Wagner signed New York City’s Landmarks Law into existence.

The Landmarks Law gives the city’s eleven-member Landmarks Preservation Commission two powers. One is the power of designation. To “protect” places in the city it considers aesthetically or historically “special,” it can determine that a particular building or structure is a landmark, or that a particular area is a historic district. Before it makes a designation, the commission must have a public hearing on the proposal, and afterward, the new landmark or district must be approved by the city council, which usually raises no objection.

Second, and more remarkably, the commission has the power to actually “protect” what it has designated. Before the owner of a landmark or a building in a historic district may “alter, reconstruct, or demolish” nearly any part of that building, she must first ask for and receive permission from the commission. Though some changes to a building (such as repainting a door the same color, caulking a window, or removing graffiti) do not require a permit, most changes do. In determining whether to issue a permit in a historic district, the commission must consider factors like “harmony with the external appearances of other, neighboring” buildings, and “aesthetic, historical, and architectural values.” Violations of any part of the Landmarks Law can be met with a variety of criminal and civil penalties.

Popular accounts of the Landmarks Law (to the extent they exist) usually point to the 1963 destruction of Penn Station and the subsequent backlash as its origin. But as the preservation historian Anthony Wood showed in his 2007 book, Preserving New York, the law’s history is more complex, intertwining two distinct generations of preservationists.

The Bard Act’s namesake was Albert S. Bard, a lawyer and preservation activist who was well connected in city government and the philanthropic scene. He was also an old man, already 89 by the Act’s passage in 1956. Bard and his cohort at the city’s Municipal Art Society (MAS) were inspired not by the brownstoners’ organic urbanism, but by the integrated grandiosity of the City Beautiful movement, first given physical expression in The White City at the Chicago World’s Fair in 1893. Spurred by the vision of a clean, ordered, and, of course, “beautiful” city, Bard and the MAS had been trying intermittently since the 1910s to get New York to allow itself to regulate private property on purely aesthetic grounds. Billboards, for example, were an early thorn in Mr. Bard’s side. (Would the city have no say about the giant Boyshform Brassiere billboard facing the New York Public Library?) To Bard, the 1956 law with his name on it was a victory forty years in the making.

The main reason nothing happened in the immediate aftermath of the act’s passage was that at the time, preservation didn’t have much of a constituency beyond the old folks at the MAS. Soon, though, the society began working with residents of Greenwich Village and, especially, Brooklyn Heights. In the Village, resident activists had been fighting Robert Moses’s bulldozers since the 1930s and had been in contact with Albert Bard since the late 1940s. However, in large part because they needed faster-acting defenses against grave and imminent threats like the highway through Washington Square Park, implementing the Bard Act through city legislation never attracted their undivided attention.

Not so in Brooklyn Heights. Although the brownstoners barely took notice of the Bard Act when it passed in 1956, by 1958 the newly formed CCIC was searching for ways to protect their neighborhood from both Cadman and future developments. They reached out to the National Trust for Historic Preservation, which sent them a packet that included the text of the Bard Act and studies that had mentioned Brooklyn Heights as a candidate for legal preservation. Surprised and elated, they contacted the MAS, which quickly formed a committee devoted to Brooklyn Heights. Soon after, at a cocktail party hosted at the majestic 1857 brownstone at 2 Pierrepont Place by aging Brooklyn Heights heiress Mrs. Darwin R. James III, and attended by Albert Bard himself, the young professional leaders of CCIC and the older ones at MAS laid plans for legislation that would protect the neighborhood and ones like it. Bard had found a powerful constituency, and Brooklyn Heights had found a weapon.

The six-year path from there to the Landmarks Law was not direct. There was a failed attempt to incorporate historic preservation directly into a sweeping zoning reform law, and briefly, Brooklyn Heights splintered from the broader coalition to pursue “stand-alone” legislation for their neighborhood. But helped along by the public controversies surrounding the destruction of the Brokaw Mansions on the Upper East Side, the near destruction of Carnegie Hall, and then, yes, Penn Station in 1963, the Landmarks Law was signed into law in 1965. Soon thereafter, Brooklyn Heights became the first historic district in New York City.

The Landmarks Law is an exercise of the city’s power to regulate based on beauty. It’s made legitimate by a state act giving cities that power. But whether states have this power to give in the first place only became clear with the 1954 Supreme Court case Berman v. Parker.

The case involved the Fifth Amendment’s Takings Clause, which states that private property shall not “be taken for public use, without just compensation.” The Takings Clause is seen both as affirming the ability of government to seize private property—i.e., eminent domain power, which some courts have called “a fundamental and necessary attribute of sovereignty”—and as placing two restrictions on its exercise. The first is explicit: if the government seizes property, it must provide “just compensation.” It has to pay. The second is implicit: the government may exercise eminent domain only if it puts the seized property to “public use.” But what counts as a “public use”? In Berman, the Supreme Court codified an expansive definition of the term.

In 1945, Congress, acting in essence as the state legislature for DC, passed the District of Columbia Redevelopment Act, an attempt to rid the city of “blight” by way of a comprehensive land-use plan. Once the exact plan was drawn up, the newly created DC Redevelopment Land Agency would be able to use eminent domain to acquire property in target areas and transfer the property to private parties, who would then develop it in accordance with the plan. Because the plan was comprehensive rather than piecemeal, some of the property that was to be condemned was not itself blighted or discernibly harmful to the surrounding community. Two such parcels were Max Morris’s department store and Goldie Schneider’s hardware store, both on a commercial strip of mostly Jewish storefronts frequented by the neighborhood’s mostly black residents. Morris and Schneider challenged the law as unconstitutional under both the Takings Clause and the Fifth Amendment’s Due Process Clause.

The Supreme Court rejected the challenge. First, the Court considered the ends that Congress—in its capacity as DC’s hometown legislature, not as the strictly limited federal government—sought in passing the Redevelopment Act. It imagined these ends as broadly as it could, assuming the law was meant not simply to ensure public health and safety, but to create a city that would no longer “suffocate the spirit” and would contain no “ugly sore.” The Court then affirmed these aims with an all-encompassing vision of the “police power,” i.e., the right of the states to regulate for the general welfare. “Neither abstractly nor historically capable of complete definition,” the police power allowed states “to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” The states’ determination of proper ends would only rarely be subject to judicial review, because as regards the amorphous police power, “when the legislature has spoken, the public interest has been declared in terms well nigh conclusive.”

The Court then turned to the choice of eminent domain as the means to make DC “beautiful as well as healthy.” Rather than interpreting the all-important phrase “public use” head-on, it did so obliquely. “Once the object is within the authority of [the legislature],” the Court reasoned, “the right to realize it through the exercise of eminent domain is clear.” In other words, if the state’s goal is legitimate—and given the deference to state-chosen ends the Court had just mandated, it almost always is—then the state can condemn property to achieve it. With respect to the Fifth Amendment’s Takings Clause, then, a “public use” is simply a public purpose, where almost every purpose is presumed public. It didn’t matter to the Court that once condemned, the properties were transferred directly to other private parties, because “the public end may be as well or better served through an agency of private enterprise . . . or so the [legislature] might conclude.”

So Berman yoked a broad and judicially unsupervised police power to a relaxed judicial stance toward exercises of eminent domain. As a result, the case has a two-pronged legacy. On one hand, after Berman, states could more confidently pass laws that regulated property for reasons that fit only into a broader-than-usual notion of public welfare. In particular, states that had been flirting with the notion of aesthetic zoning now had a judicial stamp of approval. Across the country, courts cited Berman in rejecting challenges to zoning ordinances that referred to things like “exterior architectural appeal,” and the case helped support historic district laws in New Orleans, Santa Fe, and the “Rose of New England,” Norwich, Connecticut.

In New York, it was no coincidence that the Bard Act passed in 1956, two years after Berman. Though drafts of what would become the Bard Act existed before the decision, it wasn’t until November 1954—a month after Berman came down—that a draft was circulated among the state legislators. Meanwhile, Albert Bard spoke eagerly of Berman at meetings of the Municipal Art Society and wrote a booster article about the case entitled “Esthetics and the Police Power” for American City. Six decades on, the New York Preservation Archive Project’s web encyclopedia gushes that the decision “affirmed that cities have a right to be beautiful.” When the Supreme Court upheld the Landmark Law itself against a separate constitutional attack in 1978, it reaffirmed Berman with the passing assertion that protecting landmarks was “a legitimate public purpose.”

On the other hand, Berman’s more fecund legacy lies in its extreme deference toward what constitutes a “public use” (i.e., a public purpose) in the context of eminent domain. As private entities assumed greater roles in urban renewal projects, and as the purposes of these projects crept from “slum removal” to the more nebulous “economic development”—from Sixteenth Street in downtown Denver to the “Fremont Street Experience” in Las Vegas to a convention center in Shreveport, Louisiana—courts cited Berman and its progeny to reject challenges to the condemnation of homes and businesses.

The most notorious member of the post-Berman eminent domain clan is the 2005 Supreme Court case Kelo v. New London. In 1997, the City of New London, Connecticut, used eminent domain to acquire properties adjacent to a promised but as yet nonexistent corporate research facility. The properties got in the way of the city’s plan to build a ninety-acre office-retail-residential complex—linked, of course, by a “riverwalk”—to capitalize on the new facility. The stated purpose of the plan was economic development. Just as in Berman, the properties at issue were functional and in use at the time of condemnation: Susette Kelo, one of nine similarly situated plaintiffs in the case, owned and occupied a pink house she’d renovated in the development area. (Brooke Shields, incidentally, is set to play Ms. Kelo in a Lifetime TV movie called Little Pink House.) And just as in Berman, the project was to be carried out largely by private developers. Before a long quote from the case near the end of the opinion, the Kelo majority (consisting of the court’s liberal members, plus swing voter Anthony Kennedy) echoed Berman’s overriding deference: “we decline to second-guess the City’s considered judgments about the efficacy of its development plan, [and] we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project.” There goes the neighborhood.

Kelo did, however, lend some credence to a limitation on eminent domain that had been percolating in the lower courts for years. Perhaps as a token of compromise with the four dissenters, the Court in a single sentence wrote that for a city “to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit,” would be unconstitutional (emphasis mine). Although the idea of a “pretextual taking” is simple enough, the Court gave zero guidance on the trickier question of how to apply it in court: how and when a claim of pretext may be asserted, what evidence would be sufficient to prove it, and who bears the various burdens of proof. In his concurrence—which is “persuasive” but not binding on lower courts—Justice Kennedy attempted to color the picture in a bit, gesturing toward a handful of factors that could be used to distinguish pretextual takings from those made in good faith. In particular, a taking might show its bona fides if it were part of a “comprehensive development plan”; if “the identities of most of the private beneficiaries were unknown” at the time the plan was formulated; and if a procedure were in place to “facilitate review of the record and inquiry into the city’s purposes.” These, at least, were the factors that led Kennedy to believe no additional scrutiny was required in Kelo itself. But the difficulties that actually applying these criteria would pose for a court would soon become clear—and as it happened, subsequent investigations by the New London Day have suggested that Kennedy’s assumptions in Kelo were misplaced.

A recent application of Berman and Kelo brings the duality of Berman’s legacy into relief. In 2006, Daniel Goldstein, cofounder of Develop Don’t Destroy Brooklyn and the owner of a now-condemned property on the Atlantic Yards site, brought suit in federal (and, subsequently, state) court challenging the Yards project as violating the Public Use requirement of the Fifth Amendment. Specifically, his federal suit attempted to take advantage of Kelo’s language regarding pretextual takings. Goldstein’s brief focused on the role of FCR head Bruce Ratner, alleging “not merely [the state’s] favoritism of a particular developer,” but wholesale control by that developer of all aspects of state authority. This was a private taking, Goldstein argued, and it was barely concealed.

The US Court of Appeals for the Second Circuit dismissed the complaint, rejecting Goldstein’s invocation of Kelo and endorsing the broad outlines of Berman. On pretextual takings, the court interpreted Goldstein’s argument as demanding “a full judicial inquiry into the subjective motivation of every official who supported” suspect projects like Atlantic Yards. Noting that this “would add an unprecedented level of intrusion into the process,” the court concluded that it “must reject the notion that, in a single sentence, the Kelo majority sought sub silentio to overrule Berman, Midkiff [a direct descendant of Berman], and over a century of precedent.” The court left the door open for future, Kennedy-inspired pretextual takings claims, but only where “the circumstances of the approval process so greatly undermine the basic legitimacy of the outcome reached that a closer objective scrutiny of the justification being offered is required.” That wasn’t the case here, so the court instead told the story of Berman & company, reminding us that the eminent domain power need only be “rationally related to a conceivable public purpose.” Atlantic Yards will have a public arena and (by 2035 or so) some affordable housing. Isn’t it conceivable that the state meant to benefit the public with it?

Clearly, if not for the Berman line, Atlantic Yards would have been more vulnerable to a legal attack. At the same time, if not for Berman, there wouldn’t have been a strong basis to establish historic districts like the one in Prospect Heights. In this way, the same case paved the way for both the first brownstoners’ legal tool and the large-scale, corporate-led redevelopment that their descendants have united against.

The state of New York is exceptional in its political acceptance of Kelo. Despite the case’s relative conformity with existing precedent, it sparked a remarkable nationwide backlash, with polls taken in its aftermath showing upward of 90 percent of the public in disagreement with its holding. By 2009, forty-three states had enacted some sort of legislation restricting the use of eminent domain within their borders, most often by categorically rejecting “economic development” as a justification for condemnation. Some of these reforms have curtailed the use of eminent domain, while others have been ineffective, leaving too many loopholes—especially regarding the breadth of permissible “blight” removal—to change state behavior. But New York, despite efforts led by Harlem’s State Senator Bill Perkins, has passed no new legislation at all.

Meanwhile, in Prospect Heights, the historic district has been a humble success. When asked about the effects of the designation, Prospect Heights Neighborhood Development Council board member Gib Veconi pointed to various changes not made. A brownstone on St. Marks Avenue has its original ground floor, rather than a gaping garage. The brownstones of the thriving commercial strip on Vanderbilt Avenue have been spared the fate of No. 354, on the corner of Dean Street, with its ziggurat-like extension built before designation. The districting hasn’t directly affected the development accelerating just beyond it, but then again, it wasn’t meant to. In scene after scene of the recently released Battle for Brooklyn, which documents Daniel Goldstein’s fight against Atlantic Yards, the effective opacity of today’s public-private development apparatus is on display, obscuring even the negotiation of so-called Community Benefits Agreements. In this environment, historic districting can be only a prophylactic, guarding against any more change than what’s already coming. In the end, this is how Berman’s children have grown to get along: The Yards chases the District to its room, and the District locks the door behind it.

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