Wednesday, February 24, 2010

Efforts to use Columbia decision to reopen Atlantic Yards eminent domain, EIS cases rejected by Court of Appeals

They were both long-shot efforts, but attempts by Develop Don't Destroy Brooklyn (DDDB) and plaintiffs organized by DDDB to reopen two key Atlantic Yards cases have been rejected by the state Court of Appeals.

Thus the eminent domain case--but not the pending challenge to the actual condemnation--is over, as is the case challenging the environmental review.

This narrows the remaining court cases related to the project to three, though two are essentially versions of the same case.

Columbia parallel?

In both unsuccessful efforts, the appellants invoked a similar case in which the Appellate Division blocked the Empire State Development Corporation's use of eminent domain for the Columbia University expansion, citing, among other things, the use of "underutilization" to determine blight.

The decisions by the Court of Appeals imply that they will either overturn the lower court's decision in the Columbia case or they will overturn it on other grounds, such as the court's finding of the ESDC's bad faith in its blight finding.

Eminent domain

The plaintiffs in the eminent domain case had tried to reopen the case, citing the pending appeal in the Columbia case. It was rejected without comment on February 18.

EIS case

The plaintiffs in the case challenging the environmental impact statement (EIS) had filed a motion to renew their previous motion for leave to appeal the Appellate Division's decision rejecting an appeal of a state Supreme Court judge's decision.

Again, the Columbia case, known as Kaur, was cited. The motion stated:
The crux of Appellants’ argument can be found in a comparison of Justice [James] Catterson’s opinions in the two cases. In Develop Don’t Destroy, Justice Catterson wrote a scathing concurrence, more properly characterized as a dissent, but nevertheless concurred finding that there was sufficient evidence to defer to ESDC. However in Kaur, Justice Catterson, writing for the majority, on virtually identical facts found there was insufficient basis to support ESDC’s determination and that it was not entitled to such deference. There is no significant difference between the facts or the underlying theories in the two cases to warrant disparate results on either the law or the facts.
It was rejected without comment on February 16.

What's left?

Still pending is an unusual challenge to the condemnation effort, claiming that the Empire State Development Corporation (ESDC) should issue a new Determination and Findings under the New York State Eminent Domain Procedure Law.

Justice Abraham Gerges put the condemnation on hold on January 29, but his decision is expected shortly.

A parallel lawsuit making the same claims has not yet been heard in court.

Also pending is a case challenging the ESDC's 2009 approval of the Modified General Project Plan. Justice Marcy Friedman, who heard oral arguments last month, is expected to rule within a month or two.

In case you're wondering

Why is this news late? Because Develop Don't Destroy Brooklyn, understandably, chose not to announce it, and the Empire State Development Corporation and Forest City Ratner, less understandably, also chose not to announce it. And I took a while to notice it.

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