The Eminent Domain One-Percenter

MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies
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MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies

BY ROBERT THOMAS – We’re not all that down with the “occupy movement.” It seems too unfocused, too anti-competition, too anti-success for us to get on board with the idea that equality of result is what the American dream and our system are based on.

But things like this profile of MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies in this month’s Westchester magazine, make us want to go down to Zuccotti Park and set up a tent.


An “innovative and tenacious builder” who has “left her mark” on the New York skyline, “she’s helping to shape Atlantic Yards, a complex of residential and commercial buildings that will also be the new home of the New Jersey Nets.”

The profile details how she got her start, interning and then working for the New York City Economic Development Corporation for seven years before sliding over to Forest City, where her first grand project was the New York Times building, which like Atlantic Yards needed the government’s power of eminent domain to make it happen. Are you starting to see the pattern?

“In my business, you need to be comfortable with chaos, with staring at the Rubik’s cube and figuring out how all the pieces should come together.” Of course, in New York City almost no development takes place on a blank slate, especially things when someone is trying to “leave their mark,” so much of the Cube-twisting effort is put into acquiring the eminent domain “piece” to compel property owners to give up their their homes and businesses by government force when the free market cannot. Learn how the game is played while at the “public” agency, then move to the other side (and we use the term “other side” loosely) and work the system by capturing the government’s power of eminent domain.

The New York courts, after all, won’t stop you. See Rosenthal & Rosenthal, Inc. v. New York State Urban Dev. Corp., 771 F.2d 44 (2d Cir. 1985) (“However, the condemnation of appellants’ building to make way for the redevelopment [for the New York Times] of the blighted area is a classic example of a taking for a public use or purpose within the law of eminent domain. It makes no difference that the property will be transferred to private developers, for the power of eminent domain is merely the means to the end.”).

The profile also deals with the Atlantic Yards controversy, which to the courts looked no different than Times Square, and ended up much the same way for the property owners, and the profile gives equal time to the project’s opponents:

Then why all the fuss? Atlantic Yards has been the subject of several lawsuits and numerous protests. A journalist, Norman Oder, maintains a blog,, that chronicles Forest City Ratner’s every move on the project. Another blog run by the anti-Yards group Develop Don’t Destroy Brooklyn ( is highly critical. There’s even a movie, Battle for Brooklyn, about locals taking a stand. “The issue for many of these people is the way that some of the land was assembled through eminent domain,” Gilmartin says. “Some other people think it will make the area’s population too dense. And others don’t want a stadium in their backyard. I won’t speak in detail for the opposition.”

The opposition can speak for itself. “Forest City’s successes are inextricably related to the acquisition of public subsidies,” Norman Oder says. “Their successes are also related to major spending on lobbying, and substantial political and charitable contributions, as well as hardball tactics.” Oder also points out how initial grand promises for the Yard have been scaled back (architect Frank Gehry is no longer involved) and how many of the promised union construction jobs didn’t pan out. He cries foul on slick money-saving moves he feels Ratner made, such as convincing authorities to condemn certain land parcels in stages rather than at once.

Gilmartin admits she won’t be buying a ticket to Battle for Brooklyn anytime soon. “It’s always a little dicey to do what I do so close to home,” she says.

While the opponents and property owners may cry foul, the law currently allows those with influence and experience to work the system that way, and at least for the time being, neither the New York Court of Appeals nor the U.S. Supreme Court gives a hoot. If those folks down in the park and occupying the other public spaces across the country want to start getting real, this seems as good a place as any.



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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.


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