Wednesday, September 22, 2010

Gerges dismisses final eminent domain challenge: "alleged additional changes... even if factually true... do not change the public purpose"

So much for charges that the Atlantic Yards Development Agreement--which allows for 25 years, rather than ten, to build the project-- "was intentionally withheld in bad faith."

So much for attorney Matthew Brinckerhoff's assertion that "we now know [the ten-year project timetable] is complete, utter fantasy."

So much for Brinckerhoff's charge that the Empire State Development Corporation (ESDC) timed release of information to avoid judicial scrutiny.

In a decision that was hardly unexpected, Brooklyn Supreme Court Justice Abraham Gerges on September 20 dismissed a lawsuit--Article 78 Petition to Compel the ESDC to Issue New Determinations and Findings, with three remaining plaintiffs--arguing that the project had changed so much and the public benefits so attenuated that new eminent domain findings should be made.

(This was the final case challenging eminent domain. Supreme Court Justice Marcy Friedman is still considering a reargument of a case challenging the project timeline.)

Development Agreement not important

Gerges had already rejected most of the arguments in March, in a decision in a case challenging the ESDC's condemnation process.

But the Development Agreement had not been part of that case. No matter. His key paragraph in the new decision:
For the same reasons, the court further finds that the alleged additional changes to the Project that petitioners rely upon in this action, even if factually true, similarly do not change the public purpose to be served by the Project, i.e., to eliminate blight and the blighting influence of the below-grade rail yard and to construct a civil [sic] project. In this regard, it is noted that although the alleged changes to the Project are now discussed in more detail, based upon the assertion that more details have been revealed, the basic premise of the arguments have already been considered and rejected by the court in the Condemnation Decision and adopted herein.
(Emphasis added)

This raises a question: could even more extreme changes, "if factually true," change the public purpose? In other words, if the developer had 100 years to eliminate blight, with no effective penalties, would the public purpose be attenuated?

Going over the same ground

Gerges wrote:
As urged by ESDC, the court finds, however, that the arguments raised by petitioners in support of their demand for relief herein are virtually identical to the claims raised in their answer in opposition to the petition in the Condemnation Proceeding.... the same foundational facts serve as a predicate for both proceedings...
One family (known for legal purposes as The Gelin Group), in a home slated for the second phase of condemnation, was not in the earlier case, but that doesn't change anything:
The court recognizes, however, that Gelin was not named as a condemnee in the Condemnation Proceeding. Accordingly, since Gelin did not have a full and fair opportunity to litigate the issues, the Condemnation Decision is not binding on it. Nonetheless, the court finds that since all the issues raised in this action were fully addressed, analyzed and rejected in the Condemnation Decision, the court adheres to and adopts the findings more fully discussed in the Condemnation Decision.
He denied a request for new hearings:
Accordingly, this court now finds, as it did in the Condemnation Decision, that the public purposes to be served by the Project have not changed since the 2006 D&F were issued, so that no additional hearings are required...

The court further finds, as it did in the Condemnation Decision, that petitioners cannot successfully challenge the Project by arguing that the funding agreement with the MTA has changed...
There need not be assurances that the project be completed as proposed:
Finally, in the Condemnation Decision, this court rejected claimants' assertion that the petition must be denied on the ground that ESDC did not receive sufficient assurances that the Project would be completed, finding that a condemnor need not assure the likelihood of success of a proposed plan if the condemnor rationally believed that the taking would promote its objective... and that if property was acquired in good faith, there appears to be little limitation on the condemnor's right to put the property to an alternate use upon the discontinuation of the original planned public purpose
Gerges decision in case challenging D&F

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