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Motion to dismiss condemnation raises procedural issues and larger argument that no findings were made for significantly changed (and delayed) project

The condemnation hearing today in state Supreme Court could result in the Empire State Development Corporation (ESDC) taking title to property it needs in the Atlantic Yards footprint.

But attorneys for the property owners and leaseholders, in a case organized and funded by Develop Don't Destroy Brooklyn, are pressing both narrow and broad issues in their motion to dismiss the case. Most notably, they argue that the project has changed so much that the 2006 Determination & Findings (D&F) no longer stands.

It's an unusual challenge, breaking new ground, and thus hard to assess. Judges usually grant condemnation petitions. And judges usually hesitate to substitute their judgments for agencies like the ESDC

But AY has always been complicated, and the motion to dismiss (reproduced at bottom) makes some serious claims.

So, unless Justice Abraham Gerges decides that none of it is relevant, it could be a long hearing and/or a reason to allow much more time for further argument or an opportunity to consider dueling legal arguments.

The larger issue

The potential condemnees argue that the petition should be dismissed because the 2006 D&F is no longer valid, because the 2006 Modified General Project Plan (MGPP) was superseded by a 2009 Modified General Project Plan, "thus vitiating the 2006 D&F."

Another issue: that 2006 D&F and MGPP provided for the acquisition of all properties simultaneously, but now the 2009 MGPP provides for the acquisition of properties in two stages.

Another issue: "the factual underpinnings of the determination of public use, benefit and purpose set forth in the 2006 D&F have materially changed."

Also, they argue that condemnation, according to the 2009 MGPP, should not occur until there are guarantees that Forest City Ratner would promptly build the arena, but the bond document states that an additional $324.8 million is required to complete the arena, with no assurances that it would arrive.

The respondents, citing AYR, also ask to investigate "the revelations just this week that firmly establish that Petitioner has consistently misrepresented the timing of the Project."

The motion to dismiss states:
Given this development, and Petitioner’s steadfast resistance to allowing a court to consider the many changes to the Project over the course of more than three years – changes that have utterly eviscerated any legitimate claim that the Project will serve anything other than Ratner’s singular desire to increase his and his shareholder’s wealth – while turning a large swath of Brooklyn into a wasteland for decades, if not longer, this Court should grant Respondent’s leave to conduct discovery, pursuant to CPLR 408.
Narrower issues

The narrow issues involve procedural issues, such as the contention that the eminent domain case has not fully been resolved.

Though the Court of Appeals ruled in December against the eminent domain plaintiffs (who are technically the respondents in the condemnation case), they have filed a motion to reargue it and/or hold it abeyance in light of the appeal in the Columbia University eminent domain case, and that motion has not seen a ruling, which, at the earliest, could come February 9.

They have also asked for a stay because of pending cases challenging the 2009 Modified General Project Plan, which won't be resolved until the end of February, at least.

Another issue: the eminent domain petition does not state “the public use, benefit or purpose for which the property is required,” as required.

Another issue: the 2006 D&F attached to the Petition is incomplete, because the state "intentionally omitted the list of properties contained in the 2006 D&F in order to conceal the fact that the 2006 D&F was premised upon a single acquisition, which was recently changed to a staged acquisition." (This, of course, links to the larger issue.)

Another issue: the petition "does not contain true and complete copies of the proposed acquisition maps."

Another issue: the petition in different places is contradictory, saying that condemnees would have 120 days or 90 days to file a written claim for damages.

Atlantic Yards Motion to Dismiss Condemnation

Atlantic Yards Condemnation Answer


  1. ESDC's lawyers are used to scurrying up to the judge with a vesting order and getting what they want. That is the way it usually works. But not here. When ESDC's eyeballs stop rolling in their heads, it will dawn on them that a long, tough, maybe impossible legal road lies ahead to gain title to the site. Given the blatant lies and deception, the judge will never grant ESDC title unless ESDC starts over and conducts a lawful process. That will be difficult for ESDC, because it is hopelessly corrupt and dimwitted, relying entirely on favors from the judicial system. One good piece of news for FCRC: Brett Yormark may not have to learn Russian after all!


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