In wake of PA Supreme Court ruling, URA moves forward with Federal-North development

Front page story in February 2007 By The Northside Chronicle Managing Editor Dan Richey

After more than ten years of frustration, negotiation, trepidation and agitation, it appears that the other shoe may have finally dropped for the Garden Theater.

On December 27, 2006, the Pennsylvania State Supreme Court ruled that the Urban Redevelopment Authority’s effort to acquire the building through eminent domain was not a violation of the First Amendment rights of the New Garden Realty Corp.

New Garden Realty, through the course of an extraordinarly long and costly legal battle, sought to deny the claim of eminent domain on the grounds that, because the Garden is the only adult theater remaining in the city of Pittsburgh, the URA’s acquisition of the building would constitute the complete removal of the pornographic theater industry from the city, and that such action would be in violation of the First Amendment. Garden ownership’s legal counsel also argued that a  onetime proposal to reappropriate the theater into a mainstream, non-adult theater suggested the URA’s efforts were specifically designed to push out the Garden’s film content of choice. In the end, the State Supreme Court did not agree.

December 27 began the countdown of a 90-day period during which Garden management may appeal their case to the United States Supreme Court. Should the group decide to file an appeal, the Court will have one year to decide whether or not to hear the case. In light of a 2005 U.S. Supreme Court ruling in the eminent domain case of Kelo v. City of New London, CT, an appeal might be unlikely to succeed.

In the case of Kelo v. City of New London, the court weighed the use of eminent domain – the power of a state to acquire property without the owner’s consent – as a means to transfer property from one private owner to another for the sake of economic development. The court ruled that the taking by eminent domain from one privatae owner for the purpose of economic development does not violate the  “takings” clause of the Fifth Amendment. Instead, the court fund that the economic benefits and jobs that such action created qualified the action as legitimate “public use”. It is likely that, in any possible Supreme Court appeal by the Garden’s ownership, the 2005 rulling would hold as a precedent bolstering the URA’s position – if the court decided to hear the case at all.

Capitalizing on the momentum of the State Supreme Court ruling, the URA and local leaders announced on January 11 that the URA is now accepting proposals from developers interested in the seven properties immediately surrounding the theater. Proposals are due to the URA by March 2.

The Garden was on parcel in a group of 47 that the URA began trying to acquire more that 10 years ago. Until recently, local leaders believed development of the Federal-North corridor would have to wait for a resolution to the theater’s case.

“The Garden Theater course case had been going on for a long time, and we were going to lose those buildings as a result,  said Rebecca Davidson-Wagner, community development specialist for the Central Northside Neighborhood Council. “We over the last three years in the neighborhood have said, ;We just can’t be held in a stranglehold waiting to do something because of the Garden.”

“It is realy testament to the change of leadership in the City and new vision Northside,” Davidson-Wagner added.

Central Northside Neighborhood Council President Claudia Keyes said, “The philosophy before was that we can’t do anything until this case is solved, but now we’re saying, ‘Let’s develop regardless.’”

With the change in approach, the CNNC began working with various officials, including the Mayor’s office, State Senator Jim Ferlo and City Councilwoman Tonya Payne, to formulate a new approach to the problem. Ferlo and Payne also sit on the URA’s board of directors.

“I’ve only lived in the neighborhood for five years and I was impressed very early on with the Central Northside Neighborhood Council’s commitment to its representation of the neighborhood,” Keyes said.

While there was some concern that developers might not be interested in properties in the Federal-North corridor with the Garden’s fate still unclear, URA Executive Director Jerome Dettore shares CNNC’s senses of urgency and optimism.

“The project had been in the works for so many years, we had to move forward,” he said, “I know the community leaders had talked to some developers, and we have received phone calls, so I think the interest is definitely there.”

According to Dettore, the call for development could expedite the resolution of the theater’s legal status.“We thought that developing around the Garden may end up discouraging attendance at the theater, and help redevelopment efforts move along,” Dettore said.

Don Kortland, legal counsel for the URA in the Garden Theater case, explained that demand for the space could speed the redevelopment of the area.

“It was really a question of the political will to say, ‘Let’s see what the marketplace can bring to us even though we don’t have all the pieces in place yet,” Kortland said. “It was consistently believed that the kind of development sought along North Avenue really required resolution of the Garden Theater issue.”

“However, Mayor Ravenstahl wants to give the marketplace the opportunity to answer that question, and I do think there is a market there, along with a renewed interest in the Northside,” he added.

Kortland said that he has opened up a “very cordial” dialog with the Garden’s ownership in attempts to negotiate a smoother, quicker end to the case than any further appeal would entail.

“It’s hard to predict what the conversation’s cycle will be,” he said, “but it’s been productive.”

There are still issues to be settled, he added, and including whether Garden ownership will appeal to the U.S. Supreme Court.

“The case has been on the right to eminent domain, and even if that’s resolved in our favor, we still have to discuss what fair is and agree on compensation for the building,” Kortland said, explaining that the case has not yet reached a final resolution.

When asked to comment on what a possible timetable would be for negotiations, Kortland said, “They could call me this afternoon and it would be settled in a matter of weeks, but this has taken a long time and it could go on.”

“The residents of the Northside have been incredibly patient for a very long time,” he said.