Skip to main content

Supreme Court denies AY eminent domain appeal; state case would be more of a long shot

The Supreme Court's decision, announced today, to reject the Atlantic Yards eminent domain case, Goldstein v. Pataki, is certainly a setback for project opponents, though the case was always a long shot.

Remember that the decision does not mean that the cases below were decided correctly, just that the appeal didnt present enough issues of law--conflicts in the interpretation of the 6/23/05 Kelo v. New London decision--to merit review.

Develop Don't Destroy Brooklyn indicates that it will organize a case to be filed in state court. That is surely more of a long shot than the federal case, but even that case might delay key elements of project--the acquisition of property via emiment domain and the opportunity to issue bonds for construction--by several months. Then again, some of the 11 plaintiffs in the federal case may feel increasing pressure to settle.

From the DDDB press release:
Our claims remain sound. New York State law, and the state constitution, prohibit the government from taking private homes and businesses simply because a powerful developer demands it. Yet, that is what has happened. Recent events have revealed that the public, and the Public Authorities Control Board were sold a bill of goods by Ratner and the Empire State Development Corporation. We now know that Ratner’s project will cost the public much more than it will ever receive," said lead attorney Matthew Brinckerhoff of Emery Celli Brinckerhoff & Abady LLP. "Now we will turn to the state courts to vindicate our rights."

Forest City Ratner statement

“We believe, and the courts have repeatedly agreed, that Atlantic Yards provides significant public benefits, including thousands of affordable homes and much needed jobs for Brooklyn," said Bruce Ratner of Forest City Ratner in a statement. "We are gratified that the Supreme Court has decided to put an end to this lawsuit. The opponents have now lost 20 court decisions relating to Atlantic Yards, and we are now one step closer to making these benefits a reality for the borough and the city.”

(NoLandGrab's scorecard is a little different. Note that the Supreme Court did not agree that AY "provides significant public benefits," as Forest City Ratner and Brooklyn Borough President Marty Markowitz assert.)

Some commentary from the Times

From the Times's CityRoom blog:
Lawyers for the mayor and other governmental defendants in the case argued that the project “serves multiple undisputed purposes,” including the transformation of blighted neighborhoods in Brooklyn. But in fact the area has already been rapidly gentrifying. Moreover, the faltering economy could slow down the construction of the project, doing what opponents of the project have so far failed to achieve in court.
(Emphasis added)

In other words, Atlantic Yards is a little different from some other blight cases, where "the fabric of a community is shot to hell," in the words of Penn planning professor Lynne Sagalyn.

More pressures

Beyond the efforts by plaintiffs, an appeal in the state case challenging the environmental review is pending for oral argument in September. Another state case filed on behalf of footprint tenants by attorney George Locker was heard this morning. So it's hardly certain that arena construction, as promised by developer Bruce Ratner, would begin later this year.

Additionally, in the past weeks, another potential stumbling block has emerged: the availability of tax-exempt bonds for the arena. Should the Internal Revenue Service not grandfather in the Atlantic Yards arena under regulations its own chief counsel admits are a loophole, that would raise the cost of borrowing.

Reading the tea leaves

Note that Supreme Court Justice Samuel Alito, one of the most conservative of justices, would have granted the petition, which is an unusual public statement--but none of the other three conservative justices joined him. Does that mean that he alone thinks the case was wrongly decided? No. Does that mean that he alone thinks the conflict with other cases was significant? More likely.

Then again, it could mean that Alito--who replaced Justice Sandra Day O'Connor, who wrote the Kelo dissent--wanted his shot at an eminent domain decision. On the SCOTUS blog, Lyle Denniston suggested that Alito is a new ally for those who seek to protect property rights. True, but he had replaced an ally, so that's probably a wash.

Comments

  1. So is this judgement the "final nail" so to speak?

    ReplyDelete
  2. I am thinking of the exchange that ends “Harry Potter and the Order the Phoenix” now playing on Brooklyn’s HBO.

    Harry Potter: I've been thinking about something Dumbledore said to me.
    Hermione Granger: What's that?
    Harry Potter: That even though we've got a fight ahead of us, we've got one thing that Voldemort doesn't have.
    Ron Weasley: Yeah?
    Harry Potter: Something worth fighting for.

    We may have a fight ahead of us but we have a thriving vibrant Brooklyn that we love and people who treat each other honestly and with respect.

    Ratner has only money to pursue and as he will only get it by taking it from those to whom it truly belongs and those who can use it better he will never have the composited fractions of a soul with which he will be able to enjoy it.

    ReplyDelete

Post a Comment

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

Forest City acknowledges unspecified delays in Pacific Park, cites $300 million "impairment" in project value; what about affordable housing pledge?

Updated Monday Nov. 7 am: Note follow-up coverage of stock price drop and investor conference call and pending questions.

Pacific Park Brooklyn is seriously delayed, Forest City Realty Trust said yesterday in a news release, which further acknowledged that the project has caused a $300 million impairment, or write-down of the asset, as the expected revenues no longer exceed the carrying cost.

The Cleveland-based developer, parent of Brooklyn-based Forest City Ratner, which is a 30% investor in Pacific Park along with 70% partner/overseer Greenland USA, blamed the "significant impairment" on an oversupply of market-rate apartments, the uncertain fate of the 421-a tax break, and a continued increase in construction costs.

While the delay essentially confirms the obvious, given that two major buildings have not launched despite plans to do so, it raises significant questions about the future of the project, including:
if market-rate construction is delayed, will the affordable h…

Revising official figures, new report reveals Nets averaged just 11,622 home fans last season, Islanders drew 11,200 (and have option to leave in 2018)

The Brooklyn Nets drew an average of only 11,622 fans per home game in their most recent (and lousy) season, more than 23% below the announced official attendance figure, and little more than 65% of the Barclays Center's capacity.

The New York Islanders also drew some 19.4% below announced attendance, or 11,200 fans per home game.

The surprising numbers were disclosed in a consultant's report attached to the Preliminary Official Statement for the refinancing of some $462 million in tax-exempt bonds for the Barclays Center (plus another $20 million in taxable bonds). The refinancing should lower costs to Mikhail Prokhorov, owner of the arena operating company, by and average of $3.4 million a year through 2044 in paying off arena construction.

According to official figures, the Brooklyn Nets attendance averaged 17,187 in the debut season, 2012-13, 17,251 in 2013-14, 17,037 in 2014-15, and 15,125 in the most recent season, 2015-16. For hoops, the arena holds 17,732.

But official…

So, Forest City has some property subject to the future Gowanus rezoning

Writing yesterday, MAP: Who Owns All the Property Along the Gowanus Canal, DNAinfo's Leslie Albrecht lays out the positioning of various real estate players along the Gowanus Canal, a Superfund site:
As the city considers whether to rezone Gowanus and, perhaps, morph the gritty low-rise industrial area into a hot new neighborhood of residential towers (albeit at a fraction of the height of Manhattan's supertall buildings), DNAinfo reviewed property records along the canal to find out who stands to benefit most from the changes.
Investors have poured at least $440 million into buying land on the polluted waterway and more than a third of the properties have changed hands in the past decade, according to an examination of records for the nearly 130 properties along the 1.8-mile canal. While the single largest landowner is developer Property Markets Group, other landowners include Kushner Companies, Alloy Development, Two Trees, and Forest City New York.

Forest City's plans unc…

At 550 Vanderbilt, big chunk of apartments pitched to Chinese buyers as "international units"

One key to sales at the 550 Vanderbilt condo is the connection to China, thanks to Shanghai-based developer Greenland Holdings.

It's the parent of Greenland USA, which as part of Greenland Forest City Partners owns 70% of Pacific Park (except 461 Dean and the arena).

And sales in China may help explain how the developer was able to claim early momentum.
"Since 550 Vanderbilt launched pre-sales in June [2015], more than 80 residences have gone into contract, representing over 30% of the building’s 278 total residences," the developer said in a 9/25/15 press release announcing the opening of a sales gallery in Brooklyn. "The strong response from the marketplace indicates the high level of demand for well-designed new luxury homes in Brooklyn..."

Maybe. Or maybe it just meant a decent initial pipeline to Chinese buyers.

As lawyer Jay Neveloff, who represents Forest City, told the Real Deal in 2015, a project involving a Chinese firm "creates a huge market for…