Tuesday, November 24, 2009

FAQ on the Court of Appeals decision in the Atlantic Yards case

Why did the Court of Appeals accept the Atlantic Yards eminent domain case, Goldstein vs. ESDC, after it was decided unanimously at the lower court level, the Appellate Division?

Well, the Court of Appeals was divided. It seems that Judge Robert Smith, who wrote the dissent, wanted to argue that courts should have more of a role in overseeing the exercise of eminent domain. Two judges, Susan Read and Eugene Pigott, didn't think the petitioners even belonged in court, so they concurred with the result but did not address the merits, which they said were decided in federal court.

Should limitations "upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context" be "a matter for the Legislature, not the courts," as stated in Judge Jonathan Lippman's majority opinion?

Generally speaking, yes. Legislative bodies can deliberate on the boundaries of a law in a way that courts cannot. However, in many other states courts have refined, and redefined eminent domain law. More state legislatures have done so. Given the failure of the New York Legislature to do so, in the wake of the Supreme Court's controversial 2005 Kelo v. New London decision, the Court of Appeals would not have shocked anybody by intervening.

What happened to the petitioners' argument that the state didn't perform an (allegedly) required comparison of public and private benefits?

Nothing. Both the majority and the dissent ignored it.

What about the "gerrymandered" (Smith's words in oral argument) site map, which supports the contention that it's a developer-driven project?

It was ignored.

What happened to the petitioners' argument that blight was a pretext because it wasn't mentioned as a justification for the project more than a year after it was announced?

Smith took it seriously. The majority ignored it.

What happened to the petitioners' argument that state funds for such a project could only go to low-income housing? Wasn't Lippman interested in that, noting that the project would be mainly luxury housing?

Well, he was interested in it during oral argument, but he dismissed it roundly in the opinion.

What are "relatively mild conditions of urban blight"?

From the majority opinion:
The land use improvement plan at issue is not directed at the wholesale eradication of slums, but rather at alleviating relatively mild conditions of urban blight principally attributable to a large and, of course, uninhabited subgrade rail cut.
This raises the question: can't such blight be alleviated in other ways, such as rezoning the land and putting it out for bid?

Did the court say anything about the state's claim that a piece of property not fulfilling at least 60% of its zoning capacity is blighted?

No.

Are the blocks where the petitioners live and own property "a normal and pleasant residential community," as stated by Smith?

Only in part. Dean Street between Fifth and Sixth avenues is--well, was--a pleasant enough residential block, while Pacific Street between Fifth and Sixth was a mixture of industrial buildings (some of them dormant) and housing. The part of Dean Street just east of Sixth Avenue was a pleasant set of row houses, while the counterpart on Pacific Street is industrial space. Most buildings on the southeastern block of the AY footprint are industrial, not residential. But then-Assemblyman Roger Green, an AY supporter, did say that the neighborhood wasn't blighted.

Can the new lawsuit promised by DDDB, charging that the ESDC relied on an outmoded Determination and Findings--given, for example, the recent New York City Independent Budget Office analysis that the arena would be a money-loser for the city or the decrease in the value of the replacement railyard--stop the project?

The lawyers say it can.

Can they really interfere with the process of condemnation? Aren't challenges to that process narrowly limited to procedural defects?

Usually they are. In this case, the lawyers say that the failure to rely on the current record could be fatal. But, like so much of the Atlantic Yards litigation, this case would try to break new legal ground and thus be a longshot.

When was the record completed that the ESDC relied on?

Late 2006.

Wasn't there supposed to be an office tower, one that would supply a good chunk of expected new revenues?

Yes.

What's up with that tower?

“Can you tell me when we are going to need a new office tower?” Bruce Ratner told Crain's earlier this month.

Can cases cited by the ESDC really be read, as Smith stated, "to support an interpretation of 'public use' that would permit the transfer by eminent domain of almost anyone's property to a private entity if a state agency thinks the area would benefit from 'redevelopment'?

Well, the ESDC lawyer admitted in court as much.

Doesn't that sound a lot like Justice Sandra Day O'Connor's dissent in Kelo, that all property is vulnerable?

Yes.

What is "characterized by blighted conditions"?

The careful language used by the consultants for the Blight Study, cited by Smith, who added:
They did not find, and it does not appear they could find, that the area where petitioners live is a blighted area or slum of the kind that prompted 20th century courts to relax the public use limitation on the eminent domain power.

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