Tuesday, June 30, 2009

Appeals Court agrees to hear Atlantic Yards case

For Immediate Release: June 30, 2009

Atlantic Yards Eminent Domain Case To Be Heard By New York’s High Court

Property Owners and Tenants Will Argue Their Case Against the Empire State Development Corporation In October

BROOKLYN, NY— The New York State Court of Appeals, the highest court in the state, has announced that it will hear the Atlantic Yards eminent domain case—Goldstein et al. v. N.Y. State Urban Development Corporation—in October. The owners of homes and properties targeted for seizure have argued that the use of eminent domain for the Atlantic Yards proposal violates New York State Constitution.

The appellants’ briefs are due on July 31 and the case will be argued in front of the High Court in October on a date to be scheduled. (The Court convenes for six days in mid-October.)

"We are gratified that the State’s High Court will hear this important case about whether our State’s Constitution protects the homes of its citizens from the wrecking ball of greed wielded by influential developers and the public officials who do their bidding," said Matthew Brinckerhoff, the lawyer representing the appellants. "This case provides an opportunity for the New York Court of Appeals to continue its proud tradition of interpreting this State’s Constitution in a manner that affords more protection to individual rights and liberties. We look forward to the argument in October."

The properties in question are required for developer Forest City Ratner to construct its proposed Barclays Center Arena and 16 skyscrapers.

Nine property owners and tenants, whose homes and businesses in the proposed Atlantic Yards footprint have been slated for government seizure for the megaproject proposed by developer Forest City Ratner, filed the original case. Develop Don’t Destroy Brooklyn (DDDB) organized the case, which is funded by thousands of donations from individual community members across Brooklyn and New York City.The original case was filed in August 2008 in the Appellate Division, as required by New York State eminent domain law. The Appellate Division ruled on May 15th.

Bruce Ratner told the Daily News, after that court ruling, "We're very, very happy. This is really the last hurdle that we have and now we can do what our company does best and build an arena and houses." The developer claimed he would break ground and issue the bond for his arena this fall. He has an end-of-year IRS deadline to float the bond for the arena.

It is great news that New York's High Court will review the Atlantic Yards project’s use of eminent domain. It is a certain sign that the Court understands the seriousness of the issues my constituents have been dealing with for the past six years," said City Council Member Letitia James who represents the 35th District where the project is proposed and has been a stalwart opponent of its abuse of eminent domain.

"My co-plaintiffs and I are very excited that the Court will hear our case. It is a great day for New Yorkers concerned about abuses of power," said lead appellant and DDDB spokesman Daniel Goldstein. "We will vigorously continue to defend our rights. But New York State and Mr. Ratner have a choice: they could avoid our legal challenge by finally taking eminent domain off the table, and working to implement affordable housing over the rail yards based on the community’s development plan offered to the MTA last week—the UNITY Plan."

The appellants have asked the Court to decide:

1. Whether the public use requirement of the NY Constitution imposes a more stringent standard for takings than does the Fifth Amendment—a question expressly preserved by the Court of Appeals in Aspen Creek Estates, Ltd. v. Brookhaven (2009), and never before considered by any court in New York;

2. Whether the public use requirement of the NY Constitution "is satisfied when a condemning authority determines that he public benefit to be gained by forcibly appropriating citizens' homes and businesses is 'not incidental or pretextual in comparison with benefits to particular, favored private entities,"' without ever examining the nature and magnitude of the private benefit and thus failing to create any record that would allow a reviewing court to make such a determination—a question never before considered by any court in this State (and ignored by the Appellate Division in this action)";

3. Whether, according to Article XVIII, Section 6 of the Constitution, subsidized "blight clearance" projects must be restricted to "persons of low income."

According to the 2008 annual report for the Court of Appeals about half of all civil appeals last year were affirmed, and the other half were either reversed (about 40%) or modified (about 10%).

All past case files and the Court’s letter can be downloaded at: