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Eminent domain case is dismissed unanimously; appeal in this and EIS case remain as last legal hurdles

The Atlantic Yards eminent domain case was always a long shot in state court (even more so than in federal court), and today a state appellate court dismissed Goldstein et al. v. Empire State Development Corporation (ESDC) in an unanimous opinion.

In New York State, an appellate court, rather than a trial court, hears eminent domain cases, and no testimony or cross-examination is allowed.

The straightforward language of the 16-page decision, which gave no quarter to the petitioners' claims, contrasted with the appellate decision in the case challenging the Atlantic Yards environmental impact statement (EIS), which took pains to express some skepticism about the project and featured a concurrence that sounded like a dissent.

Appeal issue

Eminent domain law in New York State gives unusual deference to the government condemnor. A major issue raised in legal briefs and the February oral argument is whether the defendant ESDC conducted a study to measure the relative benefit to developer Forest City Ratner.

In legal papers, the ESDC claimed it had done so, though it cited a document that didn't perform such a measure. In court, the ESDC lawyer said it wasn't necessary, and the court agreed.

Plaintiffs’ attorney Matthew Brinckerhoff said today, “The court’s logic is faulty. The private benefit to Ratner was never compared with the alleged public benefit because no one knew or cared to ask Ratner whether he would make billions, tens of billions or hundreds of billions. The ESDC has conceded that it had no idea how much money will be made by Ratner when it agreed to seize my clients’ homes and businesses on his behalf." (Here's the statement from Develop Don't Destroy Brooklyn.)

Arena vs. appeal

Forest City Ratner and the ESDC have said the project--or, at least, the arena--will proceed once legal cases are cleared, and the latest decision is a significant step toward the exercise of eminent domain. (I'll add their comments when they emerge.)

(Update: Brooklyn Borough President Marty Markowitz said, "The unanimous ruling by the State Appellate Division once again affirms the numerous public benefits of the Atlantic Yards project—during these difficult economic times and into Brooklyn’s bright future—including the creation of affordable housing, solid union jobs, and permanent employment opportunities to meet the demands of new residents and visitors to the future Barclays Center. Today’s decision marks a significant step forward in the dream of bringing professional sports and a world-class facility back to our borough, and Brooklyn’s shovels are, and have been, ready. So, let’s pick them up and get to work!”)

Newark Mayor Cory Booker, however, thinks that the project is doomed, and even if all cases are cleared, financing a new arena may not be easy.

The nine petitioners, organized and funded by Develop Don't Destroy Brooklyn, will appeal to the state's highest court, the Court of Appeals, and say that they have the right to appeal without asking permission.

Update: Brinckerhoff said that the state Constitution and the Civil Practice Law and Rules allow the right to appeal when a case raises a constitutional question. That's been interpreted to mean a "substantial contitutional question." He said "we have multiple substantial constitutional questions, which gives us the right to appeal." However, he acknowledged, if the Court of Appeals disagrees, it could reject the appeal and require the petitioners to ask the Appellate Division to file a motion for leave, which would be discretionary. "I have a high degree of optimism [that the Court of Appeals would hear it], but I can't guarantee it," he said.

Such an initial request for leave to appeal is still pending in the case challenging the EIS. It could take several months--likely until the fall, given the courts' summer recess--for final appeals to be denied, and it would take much longer should the appeals be accepted. If the latter, there could be two more years of delay.

Declarative decision

In its decision, the court stated:
We reject the petitioner's claim that the Public Use clause of the New York Constitution must be read literally to allow the taking of private property only where that property is to be held open for common use by all members of the public. We find that, on the record in this case, the condemnation does not violate the Public Use clause of the New York Constitution because it cannot be said that the public benefits which the Atlantic Yards project is expected to yield are incidental or pretextual in comparison to the benefit that will be bestowed upon the project's private developer. Accordingly, we confirm the determination to acquire the petitioners' properties by condemnations.

The court on blight

The court didn't agree with any criticism of the Blight Study:
This study, replete with empirical data, amply supports ESDC's finding that the project site is underdeveloped and characterized by unsanitary and substandard conditions, and thus provides an adequate foundation for its conclusion that the land is substandard.

Incidental benefit

The court concluded that there was no need to measure the private benefit:
Furthermore, in light of the evidence in the record that much of the land to be acquired is substandard, and that the taking is rationally related to the purpose of remedying these substandard conditions, any incidental profit that may inure to Forest City from the remediation of the blighted project site does not "undercut the public purpose of the condemnation of the substandard land"... It has long been recognized as a matter of State constitutional law that where the public good is expected to be enhanced by a project, "it does not matter that private interests might be benefited"…. In any event, on the record presented here, it cannot be said that the project's public benefits are "incidental or pretextual in comparison with benefits to particular, favored private entities"

State constitutional clause

The petitioners tried to argue that the state constitution limited use of such funds, but the court said no:
They assert that the provision of State funds for the construction of housing, without a concomitant restriction of occupancy of the new housing units to persons of low income, is unconstitutional. ESDC responds that the term "project," as used in section 6, encompasses only low-rent housing projects receiving State aid, and that the low-income housing restriction contained in the constitutional text is thus inapplicable to Atlantic Yards. Although the term "project" is not defined by section 6, ESDC's contention that it applies only to low-income housing projects is supported by an examination of the structure of the relevant constitutional article and its stated objectives.

Issues of due process

The petitioners argued that they weren't given due process, but the court said no:
We further find that the petitioners' due process claim is without merit. ESDC substantially complied with the procedural requirements of EDPL article 2 by conducting a public hearing, at which those in attendance were given "a reasonable opportunity to present an oral or written statement and to submit other documents concerning the proposed public project"… Although not every interested person who attended the hearing had an opportunity to speak because of the large turnout, ESDC accepted written comments for more than one month after the close of the hearing, and additionally conducted two community forums to allow area residents to express their views.
(Emphasis added by the court)


  1. As gideon kanner (law professor & eminent domain expert) said, "new york is a sewer when it comes to the abuse of the power of eminent domain for favored private interest."

    And as i've said before, the supreme court of the united states (see 5-4 ruling in 'kelo vs city of new london') is a sewer when it comes to abusing the written word of our nation's founding fathers.

    "For public use" means "for public use", NOT for private use. It's that simple.

    If the founders had meant "for public purpose" they would have said "for public purpose". It's that simple.

    Yet apparently, it's not that simple for the politicians in black robes who insist on rewriting the constitution every chance they get.

  2. As we all know, there's a constitutional process for changing the constitution called "amendments".

    Apparently, that process is far too cumbersome and problematic for the politicians in black robes, as well as for the politicians who appoint them.

    The u.s. is rapidly turning into a glorified banana republic, with no end in sight.


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