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Eminent domain attorney: look to federal court

Eminent domain attorney Michael Rikon, speaking on the Brian Lehrer Show last Thursday, offered both cautionary and encouraging words to those hoping to challenge the Atlantic Yards project in court.

On the one hand, Rikon said that eminent domain law offered a lot of leeway to government agencies making determinations of blight. "Our courts will allow the taking for anything that has the slightest incidental public benefit," said Rikon, who represents parties threatened with condemnation. "In this case, they allege the area is blighted and the project will clear the blight up. Blight is a standard that is in the eyes of the beholder. I’ve seen blighting studies that were totally absurd. If it wasn’t blighted, it will soon be blighted by the cloud of condemnation."

Chimed in Brooklyn Papers editor Gersh Kuntzman, "It’s funny to think of a area that’s blighted where brownstones neighboring this supposedly blighted area sell for $1.5 million."

Rikon again said that blight represented a difficult legal challenge. "When you try to attack that in court, judges will say, well, that’s a legislative determination which we won’t get involved in…. It’s a real problem," he said. "The most fruitful grounds for reversing a determination is on the environmental issue. That is the failure to comply with Article 8 of New York’s environmental conservation law.

Federal court option

Rikon added support for the eminent domain cases filed in federal court: "That, as well as the federal ligitation—federal judges are not that narrow in their review of these projects. And across the country, various federal judges have stopped projects which they thought were unfair and improper..."

Rikon said he didn't anticipate successful results in state court. (The main eminent domain challenge has been filed in federal court, while several renters have filed a case in state court.)

"The challenges I've made, which had really good merit as far as I'm concerned, have never been successful," Rikon said. "It's extremely difficult to stop a condemnation proceeding in New York State. In federal court, there's a much better chance. I think the judges who hear those cases are more open to the arguments being made by opponents of the project."