On the one hand, the plaintiffs (property owner Daniel Goldstein and nine others, owners and tenants, threatened with eminent domain) will be pressed to argue that the Atlantic Yards project would provide too little public use to meet the legal standard.
On the other, the defendants (Empire State Development Corporation, developer Forest City Ratner, and city and state officials including Governor George Pataki) must stretch to contend that the project was in fact considered by a legislative body, as evolving eminent domain law seems to require.
The parties were there to address two issues: a motion by the defendants to dismiss the case, and a request by the plaintiffs for discovery, the legal process under which a party to a case is compelled to provide relevant documents. But in essence they were discussing the whole case, which may break some new legal ground. (Here's the complaint.)
Was it greased?
Plaintiffs’ attorney Matthew Brinckerhoff (right) explained to U.S. District Judge Nicholas Garaufis that the case was brought primarily under the public use clause of the Fifth Amendment, turning on the question of the motive of government officials in approving the case.
“We pleaded a whole host of facts, most of which are circumstantial,” he said, noting that that was not unusual in such cases. He said that, shortly after Forest City Ratner CEO Bruce Ratner and his company conceived of the project, they “very quickly obtained” the consent of city officials to bypass the city’s Uniform Land Use Review Procedure (ULURP) and get the state to override city zoning for an oversized project.
Brinckerhoff also pointed to reports that, shortly after the December 2003 project announcement, the Metropolitan Transportation Authority (MTA) had agreed to convey development rights to FCR. The MTA, he said, wound up issuing a Request for Proposals (RFP) in 2005, giving respondents about 40 days. One other developer, Extell, did offer three times more cash ($150 million) than did FCR, but the MTA board, controlled by appointees of Gov. George Pataki, “decided to select” FCR.
A Kelo violation?
To Brinckerhoff, the fact pattern points to questions raised in the U.S. Supreme Court’s 2005 Kelo v. New London decision on eminent domain. “Why did the five members in the majority feel comfortable that this taking was not intended to convey a private benefit?” he asked rhetorically.
Because there were safeguards, he said, and such safeguards cited in Kelo are absent in the Brooklyn case: a legislative process that began before the beneficiary was known; extensive review by a legislative body; and a bidding process to select a developer that came later rather than sooner.
“Here of course the developer has driven the process,” he said. “So there’s very strong circumstantial evidence that this taking is what the Supreme Court found not to exist in Kelo.” He acknowledged that claims always could be made that a project would increase the tax base and create jobs. Even though a project could benefit the public, he said, the “purpose” and “intent” must be discerned.
Garaufis (right) asked why the plaintiffs were in a hurry. Brinckerhoff said that the ESDC soon would confirm findings under the state Eminent Domain Procedure Law and that the plaintiffs must obtain new evidence via discovery to make their claims. If there’s going to be discovery, he added, “I would imagine” that the defendants would want it to proceed quickly so the case could be expeditiously resolved.
“You don’t feel outnumbered?” the judge asked, acknowledging the reality of the courtroom: four lawyers backing the plaintiffs sat at one table, and about ten representing the defendants sat at another.
Brinckerhoff responded that he didn't mind.
Limits on the court?
Douglas Kraus (right), representing the ESDC, started off by saying that Brinckerhoff had not addressed the 12/5/05 Brody v. Village of Port Chester decision by the U.S. Court of Appeals for the Second Circuit. His point: the court has little discretion to evaluate the legitimacy of the Atlantic Yards project.
He quoted Brody, which states, in part, “While a legislature may juggle many policy considerations in deciding whether to condemn private property, judicial review of the final legislative decision to exercise the power of eminent domain focuses exclusively on whether or not the taking is for a public use…. The combination of those factors – the narrow scope of issues and the broad deference to the legislature – suggests that the role of the courts in enforcing the constitutional limitations on eminent domain is one of patrolling the borders. That which falls within the boundaries of acceptability is not subject to review.”
Thus, Kraus continued, “the wisdom or advisability of a public project” is not subject to the court. The review process “began several months ago with a public hearing,” he said, citing the extensive record created by the ESDC.
A legislative agency?
Kraus then made a crucial linguistic switch from "legislative" to "administrative." He said, “If there’s a public use and you find that in the legislative record—the administrative record—that’s the end of the inquiry. The motive is irrelevant. Either there’s a public use or there isn’t.”
The judge demurred. “I’m not sure Brody is factually congruent” with the case at hand.
Kraus added that the defendants have a different view of Kelo, which, he noted, expanded the role of government and did not address blight, which is the crux of the ESDC's plan to exercise eminent domain. “We read that case as broadening the standard," he said.
Kraus pointed out that the plantiffs were basing their argument on a concurring opinion in Kelo by Justice Anthony Kennedy, who said he’d look askance at eminent domain if the process produced a favored developer.
“He didn’t muster a majority for his point of view,” Kraus noted.
“Neither did they,” the judge responded, referring to the other four justices who voted to uphold the use of eminent domain, and needed Kennedy's vote.
Kraus and other lawyers for the defendants also argued that the case belonged first in state court rather than federal court.
A second lawsuit
Jeffrey Braun (right), representing Forest City Ratner, said that “opponents and a lot of blogs” had indicated that another lawsuit was in the works, “by people who don’t live in the footprint,” challenging the adequacy of the state’s environmental review.
“Based on traffic?” asked the judge.
“Have you ever been to that corner?” the judge continued, referring to the convergence of Atlantic, Flatbush, and Fourth avenues in Brooklyn.
“Another disclosure: I’ve been to that corner,” Garaufis said dryly, to chuckles from the audience.
AY public use
Braun asserted that the project would have “significant public uses,” citing a sports arena, 2000-plus units of affordable housing, eight acres of open space, and “extensive mass transit improvements,” including redevelopment of the Vanderbilt Yard. He said there was “enough evidence to demolish the idea there’s not a public use.”
In essence, he said, the plaintiffs charge that public officials “pursued the public process for the principal purpose of benefiting a private developer. If that’s not what they’re saying, they’re asking the court to weigh public benefits versus private benefits…. I don’t think that’s something the court is entitled to do.”
Brinckerhoff responded: “Mr. Kraus referred repeatedly to the legislature... Another fundamental point—the ESDC is not the legislature. It’s one thing to defer to an elected body. It’s another to give deference to a public body that answers to the governor.”
The parties then hashed out some procedural issues. “We’d like the opportunity to brief the discovery issue," Kraus told the judge. "There’s no such thing as modest or small discovery,” he said, suggesting that the plantiffs would want to pore through all ESDC documents and depose numerous board members.
The defendants must file a motion to dismiss the case by December 15. The plantiffs will have to respond by January 5, 2007. The defense will have a week to reply, and oral argument, if necessary, would be held approximately a week later.
The arguments regarding the scope for discovery will proceed even more quickly—with a submission by plaintiffs next week.
Garaufis at the start advised the parties that “I’m currently married to someone who at one time worked for Forest City Ratner.” His current wife, to whom he was not married at the time, worked for FCR “for a number of years, until 1994” and now works for York College.
He noted that Magistrate Judge Robert M. Levy will handle the preliminary activity in the case, providing a report and recommendations, so that if lawyers have any concern about his impartiality they can raise it at a later date.
Levy disclosed that he worked with Brinckerhoff’s partner Richard Emery at the New York Civil Liberties Union “maybe ten, 20 years ago” and that they encountered each other socially once or twice a year.
Garaufis added wryly that, when he was counsel to the Queens Borough President, he participated in a case opposing Emery, who won a landmark 1989 case at the U.S. Supreme Court abolishing the Board of Estimate. “He’s a fine lawyer,” Garaufis added.