Monday, June 23, 2008

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.

2 comments:

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

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  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