Wednesday, April 2, 2008

Atlantic Yards May Prompt Supreme Court To Revisit Eminent Domain

From: "Ruth Eisenberg"
To: "Jordi Reyes-Montblanc"
Subject: Fw: EM Dom NY Sun Today
Date: Wed, 2 Apr 2008 08:34:43 -0400

Atlantic Yards May Prompt Supreme Court To Revisit Eminent Domain

The proposed Atlantic Yards development near downtown Brooklyn could prompt the U.S. Supreme Court to reconsider when government may use eminent domain to seize private property.

About a dozen holdout residents within the project’s planned boundaries are petitioning the high court to forbid their eviction. If the residents win, the development, which entails 16 towers of residential and office space and a basketball arena, would be halted. One resident, Daniel Goldstein, said his two-bedroom apartment is near center court of the proposed arena.

If four justices agree to hear the appeal, it would be the court’s first to test the power of government to seize property through eminent domain since a landmark decision in 2005 in the case of Kelo v. the City of New London. In that decision, which produced a groundswell of public opposition across the country, the court ruled 5–4 that the government can seize property and transfer it to a private developer to foster economic development.

“If they had the stomach for it, they could accept this case to overrule Kelo,” the lead attorney for the residents, Matthew Brinkerhoff, said of the justices.

Mr. Brinkerhoff’s petition to the Supreme Court focuses on a more modest aim than convincing the court to scrap its opinion in Kelo just three years after issuing it. The residents are asking the court to give them a chance to prove their allegation that the primary motivation behind the Atlantic Yards project isn’t a desire to benefit the public. Instead, the plaintiffs claim the project is mainly a conspiracy to benefit the interests of the project’s developer, Bruce Ratner, and his company, Forest City Ratner.

That argument could find a receptive audience in Justice Kennedy, whose concurring opinion permitting the seizure of property in the Kelo case explicitly said that courts must not let eminent domain be used “to favor a particular private party, with only incidental or pretextual public benefits.”

The message of Justice Kennedy’s concurrence, in the words of one lawyer on the losing side of the Kelo case, Dana Berliner, is: “I’m ruling against you this time — maybe next time I won’t.”

In the petition, the Brooklyn plaintiffs try to convince Justice Kennedy that the Atlantic Yards project is exactly the sort of eminent domain he warned against in that concurring opinion. The plaintiffs focus on the fact that the proposal for the Atlantic Yards project was initiated by Mr. Ratner and that the sale of public land for the project circumvented the usual bidding process.

The petition also stresses that the project never received the approval of either the City Council or state Legislature. It has formally received the approval of Governor Pataki, the state Senate majority leader, Joseph Bruno, and the Assembly speaker, Sheldon Silver, and it has received the support of Mayor Bloomberg.

The two federal courts in New York to consider the lawsuit have peremptorily dismissed the claims of the residents, noting that the project comes with a myriad of public benefits, including “affordable” housing. A panel of three judges on the 2nd U.S. Circuit Court of Appeals wrote in February that the allegation that the project was approved primarily for Mr. Ratner’s benefit was based “on mere suspicion.”

The 2nd Circuit said allowing the case to go forward “would add an unprecedented level of intrusion into the process.”

The question the Supreme Court would address is what opportunity courts should provide property owners to prove that their land is being seized to further a private interest. Should courts dismiss the suits out of hand, or allow property owners to take depositions of public officials and private developers and examine their e-mail messages, as the Brooklyn plaintiffs are seeking?

In a statement, Loren Riegelhaupt, a spokesman for Mr. Ratner’s company, Forest City Ratner, declined to comment beyond saying that the company believes the lower courts decided “correctly.”

A spokesman for the state’s Empire State Development Corp., Warner Johnston, said he expects the petition to be rejected.

There are 13 plaintiffs, who include three home owners, as well as renters and several holders of commercial property.

The case is Goldstein et al v Pataki et al.

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