Skip to main content

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.


Post a Comment

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…

Atlanta's Atlantic Yards moves ahead

First mentioned in April, the Atlantic Yards project in Atlanta is moving ahead--and has the potential to nudge Atlantic Yards in Brooklyn further down in Google searches.

According to a 5/30/17 press release, Hines and Invesco Real Estate Announce T3 West Midtown and Atlantic Yards:
Hines, the international real estate firm, and Invesco Real Estate, a global real estate investment manager, today announced a joint venture on behalf of one of Invesco Real Estate’s institutional clients to develop two progressive office projects in Atlanta totalling 700,000 square feet. T3 West Midtown will be a 200,000-square-foot heavy timber office development and Atlantic Yards will consist of 500,000 square feet of progressive office space in two buildings. Both projects are located on sites within Atlantic Station in the flourishing Midtown submarket.
Hines will work with Hartshorne Plunkard Architecture (HPA) as the design architect for both T3 West Midtown and Atlantic Yards. DLR Group will be t…

Forest City acknowledges unspecified delays in Pacific Park, cites $300 million "impairment" in project value; what about affordable housing pledge?

Updated Monday Nov. 7 am: Note follow-up coverage of stock price drop and investor conference call and pending questions.

Pacific Park Brooklyn is seriously delayed, Forest City Realty Trust said yesterday in a news release, which further acknowledged that the project has caused a $300 million impairment, or write-down of the asset, as the expected revenues no longer exceed the carrying cost.

The Cleveland-based developer, parent of Brooklyn-based Forest City Ratner, which is a 30% investor in Pacific Park along with 70% partner/overseer Greenland USA, blamed the "significant impairment" on an oversupply of market-rate apartments, the uncertain fate of the 421-a tax break, and a continued increase in construction costs.

While the delay essentially confirms the obvious, given that two major buildings have not launched despite plans to do so, it raises significant questions about the future of the project, including:
if market-rate construction is delayed, will the affordable h…

Not quite the pattern: Greenland selling development sites, not completed condos

Real Estate Weekly, reporting on trends in Chinese investment in New York City, on 11/18/15 quoted Jim Costello, a senior vice president at research firm Real Capital Analytics:
“They’re typically building high-end condos, build it and sell it. Capital return is in a few years. That’s something that is ingrained in the companies that have been coming here because that’s how they’ve grown in the last 35 years. It’s always been a development game for them. So they’re just repeating their business model here,” he said. When I read that last November, I didn't think it necessarily applied to Atlantic Yards/Pacific Park, now 70% owned (outside of the Barclays Center and B2 modular apartment tower), by the Greenland Group, owned significantly by the Shanghai government.
A majority of the buildings will be rentals, some 100% market, some 100% affordable, and several--the last several built--are supposed to be 50% market/50% subsidized. (See tentative timetable below.)

Selling development …

For Atlantic Yards Quality of Life meeting Sept. 19, another bare-bones agenda (green wall?)

A message from Empire State Development (ESD) reminds us that the next Atlantic Yards/Pacific Park Quality of Life Meeting--which aims to update community members on construction and other issues--will be held:
Tuesday, September 19, 2017 @ 6 pm
Shirley Chisholm State Office Building
55 Hanson Place
1st Floor Conference Room
Brooklyn, NY 11217 The typically bare-bones, agenda, below, tells us nothing about the content of the presentation. One thing to look for is any hint of plans to start a new building on the southeast block of the project by the end of the year.

If not, ESD is supposed to re-evaluate a longstanding request from project neighbors to move back a giant wall encroaching on part of Dean Street between Carlton and Vanderbilt avenues. It's said to enclose construction activity, but, in recent months, has significantly served to protect worker parking.

Also, by the way, if you search for Atlantic Yards on Google or the ESD website, it leads to this page for the Atlantic Ya…