Saturday, March 31, 2007

Eminent domain case gets serious consideration in court (but the press mostly passes)

Apparently most of the press missed another doozy of an oral argument yesterday in federal court regarding the Atlantic Yards eminent domain case. U.S. District Judge Nicholas Garaufis considered some defense arguments skeptically, as he devoted more than three hours (including break) to the hearing.

Also, though there were no additional briefs on the issue, Garaufis spent a significant amount of time hearing arguments about the substance of the case, as he considered the defense motion that the case should be dismissed because of a failure to state a valid claim. He also expressed some skepticism about the political process that led to project approval--though that may not have significant bearing on the plaintiffs' charges.

(I'm out of town, and my secondhand and thus highly incomplete account is based on messages from or conversations with four courtroom observers, all project opponents. I hope to have a more thorough account when the hearing transcript becomes available. Observers identified reporters present from the weekly Brooklyn Paper and Brooklyn Downtown Star and the New York Law Journal. They said a New York Post reporter stopped in, but there's no article in today's paper, nor in any other daily.)

It was significant, as I wrote Thursday, that Garaufis would hold a hearing rather than simply rely on briefs from the parties challenging the report and recommendations made by U.S. Magistrate Judge Robert M. Levy and also significant that Garaufis devoted as much time as he did--a point he himself made in court.

Ripeness & state court

While the defendants--the Empire State Development Corporation (ESDC), the city, and developer Forest City Ratner--had challenged Levy's recommendation that the case is ripe for review, Garaufis did not seem sympathetic. The plaintiffs--13 property owners and renters organized by Develop Don't Destroy Brooklyn--had pointed out that demolitions for the project have already begun, and Garaufis also cited those ongoing demolitions.

At one point during this phase, as ESDC lawyer Preeta Bansal argued that the case should be consolidated with a separate case in state court, Garaufis became angry, interrupting her for lecturing him about doctrine he already knew. This isn't a law school class, he told her.

Garaufis also did not entertain the ESDC's argument based on a case known as Younger, which states that federal courts should not interfere with ongoing state proceedings. Levy had said the defense's argument for dismissal wasn't sound.

About Burford

A good portion of the hearing concerned the plaintiffs' challenge to Levy's recommendation that the case be dismissed and sent to state court based on a case known as Burford, which requires federal courts to stand clear when they might disrupt “state efforts to establish a coherent policy with respect to a matter of substantial public concern."

Garaufis seemed willing to at least consider the plaintiffs' contention that, if the case remains in federal court, it would not ride roughshod over the eminent domain process in New York State. The defense has argued that, should the Atlantic Yards plaintiffs succeed, future plaintiffs would all go to federal court, which is more friendly to eminent domain challenges, and thus delay projects that relied in part on eminent domain.

Settlement and discovery

Garaufis seemed interested in easing the case to some kind of resolution. He raised the possibility of settlement, asking plaintiffs' attorney Matthew Brinckerhoff if there was any way an accommodation could be reached short of adjudication. Brinckerhoff said no, that it was an issue of constitutional rights.

The judge also raised the possibility of permitting discovery--the request for background documents--key leverage for plaintiffs in federal court but not permitted when eminent domain is reviewed in New York state court. (The review in the latter is limited to the established record.) Garaufis mused about permitting some kind of limited discovery and having the case moved to state court.

On the merits

As at the first hearing 2/7/07, a good portion of the discussion involved the merits of the case.--the plaintiffs' charge that Atlantic Yards arose from a sweetheart deal and the benefits are pretextual.

Brinckerhoff contended that the project arose from a deal between Mayor Mike Bloomberg and developer Bruce Ratner. ESDC attorney Douglas Kraus pointed out that there had been charges of favoritism in previous cases, such as the Times Square redevelopment, and they were irrelevant.

Brinckerhoff, who noted that there were 26 respondents to a Times Square RFP, again contended that the sequence violates the guidelines suggested in the Supreme Court's 2005 Kelo v. New London decision, where the city had identified the properties at issue before a developer had stepped forward. The ESDC says Kelo doesn't apply, because it was about economic development, not blight removal and other public purposes, as with Atlantic Yards. And Kraus again reminded the court, the act establishing the ESDC aims to maximize the participation of the private sector.

Kraus also pointed out that case law states that it's not up to the courts to second-guess the boundary of a project site that includes eminent domain. The plaintiffs, however, contend that the boundary was drawn by the developer, and that violates Kelo. The case law Kraus cited is pre-Kelo. Whether Kelo is controlling, however, is unclear.

Kraus also pointed to the open space, jobs, and housing arising from the project. The ESDC has said it's not the job of a judge to draw the line as to what public benefits are sufficient once the the approving agency has found such benefits. The plaintiffs say that a closer look suggests the benefits are much smaller than claimed.

Three men in a room

ESDC lawyer Bansal pointed out that Atlantic Yards had been approved by the government, including elected officials. (Actually the project in December was approved by the unelected board of the ESDC; two weeks later, it was approved by the three-member Public Authorities Control Board, or PACB.) Garaufis responded to Bansal by holding up three fingers, noting that three people made the decision.

Whether that influences the judge's ruling, however, remains unknown. Garaufis did not indicate when he might issue an opinion or whether he might hold additional hearings.

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