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Do the judges on the Court of Appeals read the papers and think about Kelo? If so, they have to consider their legacy

With a decision from the New York State Court of Appeals in the Atlantic Yards eminent domain case anticipated anytime within the next week or three--the next possible date is Thursday--you have to wonder: Do the judges read the papers?

Do they know the aftermath of the Kelo vs. New London case, where not only nothing was built but the company behind the plan, Pfizer, is leaving town?

The answer has to be yes to both.

(DDDB says they should also consider the Michigan Supreme Court's reversal on eminent domain.)

The court's legacy

And if they have any concern about their legacy, they should take a long pause before proceeding--as many legal observers were predicting--to simply reaffirm the state's power to pursue eminent domain.

After all, the legacy of a victory for the state could well be a basketball arena and a building or two--and a lot of vacant land serving as parking lots or "interim open space." In other words, a project ostensibly aimed to remove blight would perpetuate it.

And the airy promises of new tax revenues are simply bogus.

The link to Kelo

Thus Goldstein, et al. vs. New York State Urban Development Corporation d/b/a/ Empire State Development Corporation (or ESDC) would stand as New York State's version of Kelo, a case that generated a significant backlash.

After all, ESDC lawyer Philip Karmel acknowledged in court that state Constitutional law allows the government to condemn "a perfectly nice house" in an area it wants to improve--the situation that prompted Supreme Court Justice Sandra Day O'Connor's fiery dissent in Kelo.

And, as Noticing New York's Michael D.D. White explains, an effort in 1967 to expand the state Constitution to allow eminent domain to encompass economic development failed. But what if "blight removal" is the same thing?

(Blight was not raised as a justification for the project for more thana year and a half after its announcement.)

Differences with Kelo?

Remember, as plaintiffs' attorney Matthew Brinckerhoff said during oral argument on October 14, Goldstein looks a lot like Kelo.

Atlantic Yards is supposedly about blight removal (and other things), but, as Brinckerhoff stated, "if you look at the blight justification, it's the other side of the economic development coin. What they're saying is that there's a below-grade open railyard that is unsightly, that there are properties that are underutilized, that's the fundamental basis for the blight determination… and at the end of the blight study, it's all about whether we should revitalize this particular area, which is another way of saying, should we take these properties for economic development purposes, which was the central question in Kelo…. And if this court were to rule that economic development was not a sufficient basis for taking someone's home or property, at minimum, it would require a remand to the ESDC to make a determination whether or not there's a public use…"

And in upholding the ESDC, the Court of Appeals would be endorsing the state's very liberal definition of blight.

When courts step in

In the majority Kelo opinion, Justice John Paul Stevens noted that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

Some 43 states have passed post-Kelo reforms, according to libertarian legal scholar Ilya Somin, who doubts their efficacy. (He referred only to legislation; several states have narrowed eminent domain through the courts, as well, though there's obviously some overlap).

Courts generally defer to elected legislative bodies. But the ESDC is not anything of the sort. And if local representatives don't have a voice, then a project becomes less legitimate.

And the New York State Legislature has failed to act. Nor has Governor David Paterson even appointed a special commission to examine eminent domain, as a State Bar Association task force recommended.

The Court of Appeals can find reasons to rule for the plaintiffs as well as the defendants. It could even avoid addressing the heart of the eminent domain issue and rule instead on whether the case was filed in a timely manner or whether state subsidies in this case could be used to support a project that would be mostly market-rate housing.


We should see a decision soon, but the longer the court waits, the more nervous Atlantic Yards proponents must get. They face not one but three deadlines on December 31, as John Brennan points out in the Record.

The first deadline is to get tax-exempt bonds for the arena. Could the deadline could be extended? I couldn't pin it down, but I'd never count Forest City Ratner out when it comes to governmental lobbying.

Another deadline concerns the Barclays Center naming rights deal, though presumably that could be extended--or renegotiated--as well.

Probably the firmest deadline involves a short-term move, as Brennan writes:
The deadline for the Nets to inform the New Jersey Sports and Exposition Authority whether it intends to leave Izod Center for Newark’s Prudential Center for the 2010-11 season. That decision is likely to be influenced by whether ground is symbolically broken in Brooklyn for an arena to be completed as soon as mid-2012.