Video: lawyer fighting condemnation for Atlantic Yards talks about case heard January 29 before Justice Gerges
(Video courtesy of Michael Galinsky, who's working on the Battle of Brooklyn documentary.)
Expectations from hearing
Had he had expected Justice Abraham Gerges to transfer title, as had been sought by the Empire State Development Corporation (ESDC) or had he expected the judge to put the condemnation on hold, as he did.
"I did not expect him to issue an order today; I would've been very surprised," responded Brinckerhoff, noting the flurry of legal arguments that had been submitted in just the past few days. "He has to at least consider in some way, shape, or form all the arguments we submitted.
The Leichter case
I pointed out that ESDC lawyer Charles Webb had told the judge that a case known as Leichter, regarding change in the plans for Times Square, controls the issue and that Brinckerhoff's clients had no case.
"He's really wrong about that," Brinckerhoff responded. "That's in the EDPL [Eminent Domain Procedure Law] 207 context. All that case says--it recognizes there can be some changes [in a plan]... If they had done their findings in December 2006 and three months later there were some changes, that alone wouldn't require them to start all over again."
"The question ultimately that that case doesn't address and no case addresses," he said, "is at what point do the changes become so significant that they have to result in an amended finding? As I said in court today, I think that we really can all agree that there is a point. What nobody knows is what that point is. Obviously I feel very strongly we've gone well past it over the course of the last four or five months, particularly in the past week."
(The latter was a reference to revelations, in the master closing documents, of extended deadlines and lenient demages for delays.)
What about the additional case against the ESDC that was revealed in court, having been filed ten days earlier?
"That case is an Article 78 proceeding, filed on behalf of all the same entities and parties as I was representing today," Brinckerhoff said. "Basically, it's a defensive proceeding. We knew the ESDC was going to say today what it said... that 'you're in the wrong place.' As you heard today, we're happy to be in any place, and we're trying to be in every place."
"We feel some place should listen to us and actually rule on these arguments," he said. "If this court were to rule we're in the wrong place... we still have another place to go."
What would happen if Gerges agreed to a transfer of title and Brinckerhoff's clients or project opponents win a case?
"This is like a proceduralist nightmare," Brinckerhoff said. "We would defnitely be in a court, seeking to have title transferred back."
He said that if his clients win the most recent case, or if Develop Don't Destroy Brooklyn (DDDB) and other community groups win their case challenging the ESDC's approval of the 2009 Modified General Project Plan (pending before Justice Marcy Friedman), they will request--in some court--that the title be transferred back.
Candace Carponter, DDDB legal chair, pointed out the importance of addressing pending issues before title transfers, because that would lead to removing people from homes and businesses--well, not for at least three months--further demolition and then construction. So it could become meaningless.
"It could be a completely pyrrhic victory," Brinckerhoff added, saying that's why Gerges should decide, "because he's the one who's the trigger for the actual transfer of title."
Carponter said that, it's not unusual, "in the general scheme of litigation," for a judge to give time to get other issues decided before a ruling.
Brinckerhoff is only representing five or six people/businesses (in multiple entities), none of them residential renters. A couple of previously occupied buildings, according to a map shown in court, are now empty; one may have had renters who were plaintiffs in the eminent domain case. (I'll check.)
"The people I'm representing now are all the people who had a fee property interest that are therefore appropriate respondents in this case," Brinckerhoff said. "Residential tenants would not be."