After a conference call Monday, the defendants, including the Empire State Development Corporation (ESDC), were given until January 19 to respond to the new claim as well as the plaintiffs' memorandum of law fighting a motion to dismiss the case. The plaintiffs will file a reply by January 26, and the defendants will have until February 1 to respond. Oral arguments will be held on February 7 at 2:00 p.m., according to the schedule shared by the plaintiffs.
In their legal motions filed last month, the ESDC argued that the case belongs not in federal court but in state court, which is primarily equipped to respond to eminent domain challenges.
The plaintiffs, in their amended claim filed last Friday, argue that the ESDC's Determination and Findings, issued 12/8/06 pursuant to the state's Eminent Domain Procedure Law (EDPL), violate the U.S. Constitution.
They also argue that the ESDC violated the EDPL because the agency did not make the Determination and Findings "within 90 days of the stated close of the public hearing" on 8/23/06.
Section 204(a) of EDPL seems clear, stating:
The condemnor, within ninety days after the conclusion of the public hearings held pursuant to this article, shall make its determination and findings concerning the proposed public project and shall publish a brief synopsis of such determination and findings in at least two successive issues of an official newspaper...
Hearing vs. forum
This sets up a potential twist. While the ESDC held one public hearing, it also scheduled two follow-up "community forums" on 9/12/06 and 9/18/06, where oral testimony was given on the record. There was no obvious difference between the two types of events.
Had those forums counted as public hearings, then the plaintiffs would not have been able to make the new claim about the 90-day violation. However, the ESDC resisted classifying those forums as public hearings because, apparently, that would have extended the comment period.
Wrote DDDB attorney Jeff Baker in a 12/8/06 letter to the ESDC:
DDDB and others noted that ESDC has violated Sec. 16 of the UDC Act by failing to hold the comment period open until October 18th, 30 days after the last public hearing on September 18th. The FEIS [Final Environmental Impact Statement] while knowledging the legal obligation of Sec. 16, continues the absurd contention that the public hearing was on August 23rd and the September 18th event was a “community forum”. The fact remains that the “community forums” were completely indistinguishable from the public hearing. ESDC cannot try and hide behind a change in name to avoid its legal obligation.
AY approval snagged?
It may be that, if the state wants to comply with the Eminent Domain Procedure Law, it must reclassify the "community forums" as public hearings to fit the 12/8/06 findings into the 90-day window. But that, presumably, would require the ESDC to extend the comment period on the Draft EIS and reissue the Final EIS.
And that would require the ESDC--the revamped state agency run by new Governor Eliot Spitzer (who is an Atlantic Yards supporter)--to vote again to approve the project. Or is there another way to close the loophole?