Willets West case dismissed; attorney issues official statement

Justice Manuel Mendez, NYS Supreme Court, NY District, has issued his decision to dismiss the lawsuit brought by plaintiffs Sen. Tony Avella, City Club of New York, Queens Civic Congress and others, challenging the plan of Queens Development Group LLC to construct a 1.4 million square foot mega-mall on 40+ acres of Queens parkland.

Justice Manuel Mendez, who has

decided that the Willets West mega-mall

can be built on 40+ acres of Queens

parkland. Photo by Rafael Fernández.

Source: http://www.impactony.com/

tag/nueva-york-2/page/2/#sthash.IgES8I9s.

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Justice Mendez concludes that the 1961 authorization to construct Shea Stadium also allows construction of the mega-mall on parkland.

Below is the official statement of John Low-Beer, attorney for plaintiffs, concerning the decision of Justice Manuel Mendez to dismiss the case:

"Plaintiffs believe that the decision misunderstands the common law doctrine that prohibits any nonpark use of parkland without the specific and explicit approval of the State Legislature.  The State Legislature, when it passed the 1961 law permitting the construction of Shea Stadium, did not intend to allow construction of a shopping mall.  That law did not allow the construction of anything except a stadium and related facilities on the site.  Plaintiffs will appeal, and believe that this decision will be reversed on appeal."

Initial Willets West Court Decision

WPU's August 17th, 2011 court appearance

From the Queens Examiner:

Michael Gerrard, an attorney with the law firm Arnold & Porter, which is representing Willets Point United, argued that the city deliberately misled the court when it claimed it could not go forward without the ramps, and instead began eminent domain proceedings and began moving forward on phase one without the approval.

“It should not be without consequence when the city makes a promise to the court and it violates that promise,” Gerrard told Madden.

Gerrard also argued that the city could complete phase one, and then not be able to finish the rest of the project because it never obtains approval for the ramps, a scenario which was never taken into consideration in the initial environmental impact statement.

“If phase one of the project goes forward now, and the ramps are not approved, who knows what the impacts will be,” he said. “The technical memorandum said what happens at the end of phase one, but it does not say what will happen after that.

“It doesn't say what will become of the rest of the project in the years that follow the completion of phase one,” Gerrard added. “That was nowhere analyzed.”

WPU Ramps Up Court Challenge

WPU goes in to court today to re-open the group's legal challenge to the Willets Point development. The case for re-opening devolves-as we have pointed out-from the city's complete disregard of everything it has ever said it would do, and is now ignoring all of the protocols that it claimed were essential to mitigate the project's environmental impact.

This is a classic case-almost a textbook case-of bad faith. The great Queens gadfly, the estimable Ben Haber, has laid this out in succinct clarity in a recent letter to the Flushing Times:

"An integral part of Mayor Michael Bloomberg’s misguided Willets Point project is the use of ramps to and from the Van Wyck Expressway to handle the expected huge increase in vehicular traffic the project will cause. This is so that even without the project the Van Wyck Expressway and Grand Central Parkway are often clogged.

The traffic issue has not as yet been resolved nor approved by the federal and state Departments of Transportation. Previously, Bloomberg officials have gone on the record saying that no attempt to acquire Willets Point property through eminent domain will be made until the Van Wyck ramps have been approved.

In the devious manner in which the Bloomberg administration has proceeded, notwithstanding that the ramp issue is still open, the city is now beginning the eminent domain process that will destroy many small businesses and their employees and families (“Willets backers plan to reopen suit against city,” Flushing Times, March 3-9.)"

WPU's attorney Mike Gerrard transposes the Haber argument into its proper legal framework-making the case for the need, indeed the required need, for court re-opening: "Respondents acknowledged the centrality of the proposed Van Wyck Expressway ramps to their plans in their opposition to the Article 78 proceeding, asserting that the ramps were an “integral” and “key” part of the Development Plan. FGEIS, Response 10 at 29-9 (Gerrard Aff., Ex. 1 to Ex. A); McKnight Aff. at ¶ 64 (Gerrard Aff., Ex. C). Respondents represented to this Court that if the FWHA did not approve the proposed ramps, the Development Plan could not proceed as currently contemplated and further environmental review would be required."

Haber captures the dishonesty:"In an obvious attempt to hide from their previous agreement not to proceed without the ramp issue resolved, the city Economic Development Corp. now claims that the ramp issue is irrelevant at this time because the current eminent domain thrust dealing with “the first phase of the project does not require building the ramps.” This is a dishonest ploy on the part of the EDC consistent with the manner in which it has been operating."

Gerrard explains just how deep the dishonesty has gone, and why the court must take this critical second look: "On August 16, 2010, this Court dismissed Petitioners’ Article 78 Petition in its entirety, relying in significant part on Respondents’ commitment to obtain necessary approvals for the proposed ramps in rejecting Petitioners’ arguments.

Significantly, the FGEIS assumes that the ramps will be approved and states that they are ‘an integral part’ of the plan to alleviate the already degraded traffic. FGEIS, Response 10, at 29-9. At oral argument, counsel for respondents stated that if the ramps are not approved, the respondents cannot ‘proceed with the plan as conceived and approved.’ Transcript at 33. For the purposes of this review, this court assumes that if the ramps are not approved, additional review under SEQRA will be required."

What EDC is desperately trying to do is avoid rigorous environmental review-especially since its traffic submissions to the SDOT have been either fraudulent or deficient. In an easy to see through sleight of hand, the agency has issued a Technical Memo that it claims demonstrates that the ramps are simply not needed for the first part of the development.

But, as Gerrard points out: "After this Court dismissed the Article 78 Petition, the City reversed itself in Technical Memorandum 004, stating that it would proceed with condemnation proceedings despite not having approval from the FHWA for the ramps. Technical Memorandum 004 at 5 (Gerrard Aff., Ex. H); Statement of Thomas McKnight, 3/2/2011 EDPL Hearing (“The completion of the new connections to the Van Wyck Expressway is not necessary for the initial development phase, and thus may be deferred until after the completion of Phase 1.”). However, the City has not undertaken the further environmental review necessary to evaluate the environmental impacts from proceeding without approval of the ramps." (emphasis added)

EDC and the city has reneged on its promises and is proceeding with a segmented plan that violates the SEQR law: "Similarly, in this case, the City is proposing to proceed in a manner contrary to its prior representations. The Van Wyck ramp approvals -- a key feature of the Development Plan’s measures to mitigate local traffic impacts -- have already taken longer than anticipated, and there is no indication that they will be obtained at a point that would permit the City to maintain its current schedule. The City has admitted that failure to procure ramp approval will require splitting the project into phases. Its decision to ignore the potential impacts of a further delay or denial of ramp approval and to start condemnation proceedings without preparing an SEIS or providing a reasoned elaboration of its decision is arbitrary and capricious."

Frustrated and stymied by the measures that WPU has taken to protect their businesses, EDC has decided to try to muscle this ill-fated development forward, and jam state and federal regulators in the process. Ben Haber's conclusion is also our own: "The game is clear. Once we get the first phase, it will argue it cannot stop now, so just forget about the ramp issue. Hopefully, a court will see the charade for what it is, let right be done and hold the EDC to the letter of the law."

EAST HARLEM ALLIANCE OF RESPONSIBLE MERCHANTS LAWSUIT DISMISSED BY COURT

http://www.nycourts.gov/reporter/3dseries/2010/2010_07227.htm

The NYS Supreme Court, Appellate Division, First Department, unanimously affirmed the dismissal of all claims made by EHARM in their fight against the East Harlem M/E/C LLC. East 125th Street project; despite the misuse of municipal might, power, and procedure to take private, productive commercial property and hand it over to a secretly selected development group, beset by trouble.

Justice Catterson issued a separate statement warning that: “In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer.

Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp., 13 NY3d 511, 893 N.Y.S.2d 472, 921 N.E.2d 164 (2009) and Matter of Kaur v. New York State Urban Dev. Corp., 15 NY3d 235, —- N.E.2d —— (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.”

We are responsible owners,” said Fancy Dry Cleaner’s Damon Bae, one of the property owners who filed the Petition and a spokesman for the group. “We maintained our land and grew our businesses over the past decades, but we are also being victimized by the City. The City neglects its own property, and then cries ‘blight’ so it can take our property and give it to some politically connected developer.”

“What all this points to is that a rich guy can pay his way to hire the government to seize private land so that he can make more money”, said Bae. “Say for example that you had a single-family house in a large parcel of land that was passed down from generation to generation in what all of a sudden became the next up and coming neighborhood. A large developer with deep pockets can now come in, make significant payments to a few very well connected individuals, hire the government to call
your house “underutilized” (since after all, you are only one family occupying a large parcel of land only for yourself, while a large condo building can be built that can house 100 families) and have your house condemned. And there is absolutely nothing you can do about it.

Scary, but this is what is going on today in America, the land of opportunity.*

Columbia U. ruling's impact on Willets Point

From the NY Times:

New York’s highest court handed Columbia University a major victory on Thursday for its $6.3 billion plan to build a satellite campus in Harlem, ruling that the state could seize private property for the project.

Nicholas Sprayregen owns four Tuck-it-Away Self Storage buildings in the area including this one at Broadway in between 131 St. and 132 St. The storage facility at left is on the land that is being taken over by Columbia University.

In a unanimous decision, the Court of Appeals overturned a lower court ruling that prohibited the state from using eminent domain to take property in the 17-acre expansion zone west of Broadway, known as Manhattanville, without the owners’ consent. The ruling held that the courts must give deference to the state’s determination that the area was “blighted” and that condemnation on behalf of a university served a public purpose, two ways that the project could qualify for eminent domain under state law.

Norman Siegel, who represented the losing owners, said he was “extremely disappointed” in the decision and would appeal to the Supreme Court. Although state law allows eminent domain to be used for educational purposes, he argued that it did not explicitly permit a private institution to benefit from it.

“The decision sets a terrible precedent regarding the use of eminent domain,” he said.

Still, the decision was not unexpected, said Michael Rikon, a lawyer who specializes in condemnation law and real estate litigation.

“It is virtually impossible to stop a condemnation in New York because of the courts’ deference to agencies’ determination,” Mr. Rikon said. “Even though the courts say they won’t be a rubber stamp, that’s in essence what they’ve become.”

The ruling does not bode well for property owners in Willets Point, Queens, a neglected neighborhood near Citi Field, who oppose the city’s effort to take their land for a redevelopment plan, Mr. Rikon said.

Those owners, who are considering a lawsuit against condemnation, contend that the area is blighted only because the city has refused to pave the streets properly and install sewers. But their current lawsuit challenging the city’s plan on environmental grounds is unaffected by the ruling.

“It’s time for the State of New York to do something about this,” Mr. Rikon said. “They should create a commission on eminent domain to revise the law.”

New York’s High Court Slams Door On Property Owners in the Empire State

If you own a piece of property in New York State, you won’t like today’s ruling by the state’s high court.

The New York Court of Appeals—that state’s highest court—today overturned a lower court’s ruling that had blocked the New York State Urban Development Corporation from using eminent domain to take property away from a group of small-business owners in upper Manhattan and turn it over to Columbia University for private development. Today’s decision comes on the heels of the court’s decision last year in Goldstein v. Urban Development Corporation, which allowed homes and businesses in Brooklyn to be turned over to wealthy developer Bruce Ratner to build luxury condominiums and a basketball arena.

“Once again, New York’s courts have completely ignored the abuse of power by government bureaucrats and politically connected developers,” said Dana Berliner, a senior attorney at the Institute for Justice. IJ litigates nationwide against eminent domain abuse and filed a brief with the Court in favor of Harlem property owners. “The sad truth is that, in New York, the government not only can hand your property over to private developers for no better reason than that it likes them more than it likes you, but it does so on an alarmingly regular basis.” Last year, IJ catalogued the staggering rate at which properties are taken for private use in the Empire State in a report, Building Empires, Destroying Homes, available at www.ij.org/BuildingEmpires.

According to another report by the Institute for Justice on eminent domain abuse in New York, titled Empire State Eminent Domain: Robin Hood in Reverse, eminent domain abuse disproportionately targets those who are less well-off and less educated, as well as ethnic and racial minorities—populations least able to fight back and thus most in need of protection from abuse. In New York, more than elsewhere in the country, this means taking from the poor to give to the rich. A copy of that report is available at: http://www.ij.org/3045.

A lower court had previously refused to allow the condemnations to go forward, noting that the state agency’s assertion that it was taking the properties to eliminate “blight” was clearly nothing but a pretext for using government power to further Columbia’s pre-existing expansion plans. In today’s ruling, Kaur v. New York State Urban Development Corporation, Judge Carmen Ciparick wrote that the lower court should not have looked so closely at the agency’s blight findings, which should be “entitled to deference by the judiciary.”

“In other words, the court is saying that judges shouldn’t judge,” said IJ President and General Counsel Chip Mellor.

Associate Judge Robert S. Smith concurred in the result, noting that he was bound by the court’s earlier decision in the Goldstein case. “The finding of ‘blight’ in this case seems to me strained and pretextual,” Judge Smith wrote, “but it is no more so than the comparable finding in Goldstein.”

“No one taking a fair look at the state’s finding of ‘blight’—which is based on a report that was commissioned years after Columbia decided it wanted these properties—could think it is anything but a pretext for handing over these properties to another private owner,” explained Robert McNamara, an Institute for Justice staff attorney. “This isn’t judicial ‘deference.’ It’s judicial blindness.”

The New York opinion comes only one day after the fifth anniversary of the U.S. Supreme Court’s ruling in Kelo v. City of New London. That opinion—which allowed the government to condemn homes in the name of “economic development”—spurred a national backlash, leading to legislative changes and court decisions providing property owners with greater protection in 43 states. Political and judicial leaders in New York, however, have refused to reform their eminent domain laws, which are among the worst in the nation. More information on the post-Kelo backlash is available at: www.ij.org/KeloAt5.

“New York remains one of only seven states that has failed to provide any legislative reform of eminent domain, and it is the only state whose highest court has allowed private property to be taken for private use since the Kelo decision,” explained Christina Walsh, IJ’s director of activism and coalitions. “Every state high court to hear an eminent domain case since Kelo has applied greater judicial scrutiny—every state, that is, except New York. The New York Court of Appeals is the only state high court that gives complete and abject deference to the actions of condemning agencies, no matter how suspicious.”

“Today’s decision confirms what we already knew: Judicial review of eminent domain in New York is fundamentally broken,” concluded McNamara. “Unless the Legislature takes meaningful steps to protect property rights, New York property owners will find themselves out in the cold—in some cases all too literally.”

Fox News Video: Land Grab Blocked

From FoxNews:

Property owner wins eminent domain case against Columbia University.

Why the Columbia decision should be upheld

From Reason:

New York’s Court of Appeals will hear oral arguments in Kaur v. Urban Development Corporation. At issue is the state’s controversial use of eminent domain on behalf of Columbia University, which wants free rein to build a sweeping new 17-acre research campus in the West Harlem neighborhood of Manhattanville. To that end, Columbia joined forces with the Empire State Development Corporation (ESDC), the powerful yet little-known state agency authorized to bypass zoning laws and seize private property via eminent domain. In July 2008 the ESDC declared Manhattanville to be “blighted,” the state of severe economic disrepair required to trigger an eminent domain taking under state law.

But Columbia’s schemes came to a halt last December when a state appellate court struck down the ESDC’s actions. Writing for a majority of the Supreme Court Appellate Division, First Department, Justice James Catterson denounced the ESDC for being “biased in Columbia’s favor” and condemned the agency’s blight determination as “mere sophistry.” It’s now up to the Court of Appeals to decide whether Justice Catterson got it right.

He did. As lead attorney and former New York Civil Liberties Union executive director Norman Siegel has been able to prove thanks to reams of documents retrieved via the state’s Freedom of Information Law, Columbia and the ESDC actively colluded in order to produce the very conditions of blight that would then allow the ESDC to seize property on the university’s behalf. This documentary record, which Siegel carefully details in the legal brief he submitted to the Court of Appeals, offers a convincing and damning portrait of government malfeasance on behalf of an elite private institution.

In sum, a powerful state agency secretly colluded with a powerful private university in order to trample constitutional rights, violate the letter and spirit of the law, and force law-abiding tenants out of their homes and businesses in order to manufacture self-serving blight conditions that disfigured an otherwise livable and commercially viable neighborhood. If there was ever a case where New York’s highest court should intervene against eminent domain abuse, this is it.

"A land grab by the elite"

From the NY Post:

Next Tuesday, New York's highest court will hear the state's appeal of the decision last December preventing the use of eminent domain in order to forcibly take my family's property and give it to Columbia University, an elite private institution.

Columbia covets my property so it can add it to the rest of 17 acres in the Manhattanville area of West Harlem where it has decided to build a brand new campus.

A lot rides on how the court decides the case. In a little noticed section of the decision, Judge James Catterson ruled against the state's use of eminent domain on the grounds that Columbia's expansion is not a "civic project." The judge agreed with us that a private university doesn't constitute facilities for a "civic project."

A designation that a development is a "civic project" allows the state to "take" people's homes and businesses and add their land to certain specific types of projects. In the past, the courts have routinely held that "civic projects" should include significant public use of the facilities. Examples include a public park, a convention center, even a professional sports arena -- and, of course, a public school.

Never, however, has a court allowed eminent domain to be used purely for the benefit of a private school, college or university. And New York statutes nowhere make any specific reference to allowing this use of state power exclusively for an expansion of a private school.

As the judge noted, "Columbia is virtually the sole beneficiary of the project. This alone is reason to invalidate the condemnation especially where, as here, the public benefit is incrementally incidental to the private benefits of the project."

In short, as a matter of New York law, there is simply no precedent for designating a private university's project a "civic project."

If the Court of Appeals overturns this ruling, it could very well open the floodgates, for the first time ever, of excessive and aggressive expansions by any wealthy, well-connected private school. You could find yourself losing your home or business, wholly against your will, merely because the private school next door wants to build a larger gym or a new cafeteria. This is wrong.

Nick Sprayregen is the president of Tuck- It-Away Self Storage.

WPU will be sending representatives to the rallies and press conferences planned for June 1st in Albany.

Denied FOIL request overturned by court

From the NY Observer:

The New York Court of Appeals on Tuesday unanimously ruled that the state's economic development agency, which administers eminent domain, must turn a set of records over that Mr. Sprayregen had requested through the Freedom of Information Law. The agency, the Empire State Development Corporation, had provided numerous documents but withheld a set related to a 2004 agreement between the agency and Columbia. Mr. Sprayregen appealed the agency's denial of his FOIL request, and was denied again. He then sued in state Supreme Court and won, though ESDC did not provide all the documents, preferring to appeal. He won again at the appellate level; ESDC appealed again; and now the agency has exhausted its appeals.

The ruling of the court Tuesday found that the agency was overly broad in denying Mr. Sprayregen's FOIL request, and then changed its reasoning for not providing the documents, with the court saying and its "initial determination was superficial, at best."

WPU has been FOILing documents, too, and has also been denied for no valid reason. A decision with respect to our requests will likely end up being decided by a court as well since EDC is being secretive and uncooperative with the public information they possess.

Columbia decision news roundup

Columbia University failed to work out a deal with Nicholas Sprayregen, above, who owned four Tuck-it-Away Self Storage buildings in the area. [NY Times]

Court puts brakes on Columbia's, NY's West Harlem property grab [NY Post]

Court deals blow to Columbia U. expansion plan [Crains]

Court Deals a Blow to Columbia’s Expansion Plans [NY Times]

State Court Rules Eminent Domain Use for Columbia West Harlem Campus Unconstitutional [Updated] [NY Observer]

Court Decision Puts Halt On Columbia Expansion [NY1]

No eminent domain for Columbia University expansion: court [Daily News]

Appeals court rules for property owners and against Columbia University

From the NY Observer:

In an unexpected major decision, a New York appellate court has overturned the use of eminent domain to create a new West Harlem campus for Columbia University, ruling the action unconstitutional.

The cases were brought by the defiant owner of a set of storage warehouses in West Harlem, Nick Sprayregen, and the owners of two gas stations in the footprint for the 17-acre campus, called Manahttanville. Mr. Sprayregen sued to block the land takings in January, after the use of eminent domain was approved by the state's development agency, the Empire State Development Corporation.

Columbia had said it needed eminent domain to establish a full, contiguous campus, and then build a large, interconnected underground facility throughout the area. Thus all the property owners needed to be removed from the mostly industrial district.

Warner Johnston, an ESDC spokesman, said the state intends to appeal the action.

The ruling has also caught the eye of a set of business owners at Willets Point in Queens, where the city seems likely to use eminent domain.

"We look forward to the same kind of vindication if the city coerces eminent domain on Willets Point," business owner Jake Bono said in a statement.

Constrained Court Rules Against Property Owners and Tenants in Atlantic Yards Eminent Domain Case

Despite Ruling, Fight Against Ratner's Brooklyn Project Is Far From Over

BROOKLYN, NY — New York's high court ruled today against property owners and tenants who had challenged the state's use of eminent domain to seize their homes and businesses for the enrichment of developer Bruce Ratner and his Atlantic Yards project in Prospect Heights, Brooklyn.

In the 6-1 decision the Court of Appeals ruled that the state agency's determination to take the plaintiffs property had a rational basis under state law.

"The fight against the Atlantic Yards project is far from over. The community has four outstanding lawsuits against the project and, meanwhile, the arena bond financing clock ticks louder and louder for Ratner. While this is a terrible day for taxpaying homeowners in New York, this is not the end of our fight to keep the government from stealing our homes and businesses,” said Develop Don't Destroy spokesman and lead plaintiff Daniel Goldstein. "Governor Paterson and Mayor Bloomberg now need to decide if they want their legacy to be the next New London—a dust bowl in the heart of Brooklyn caused by the abuse of eminent domain, because that will be the outcome if they allow the property seizures and final clearance for Ratner's unfeasible project."

"We are disappointed, but undeterred. We lost this round, but the legal fight is not over. My clients will continue to resist Ratner's efforts to steal their homes and businesses in the New York courts. We will vigorously defend the cases that the State will now file seeking to seize my clients' properties, and will continue to pursue all other available legal remedies," said lead attorney Matthew Brinckerhoff of Emery, Celli, Brinckerhoff & Abady. "Because the Court of Appeals made it clear that it considered itself 'bound' by the self-serving record created by the Empire State Development Corporation prior to its December 2006 public use finding, and thus refused to consider the events leading up to the ESDC's adoption of a modified general project plan two months ago, we now intend to commence a new lawsuit seeking to compel the ESDC to issue new or amended public use findings. It would be perverse and unfair if my clients homes and businesses were confiscated based on circumstances that no longer exist."

"While we are deeply disappointed in the Court's decision, our fight against the government's abuses on Ratner's behalf continues, and we expect to defeat Atlantic Yards through political and legal means", said Develop Don't Destroy legal director Candace Carponter. "It now falls to Governor Paterson to guarantee, through a binding legal contract, which the State would be required to enforce, that all the developer's promises about the project—including all of the ‘affordable' housing and the ten year construction timeline—are fulfilled. If the Governor is unable to do that, he is duty-bound to abandon this ill-fated project, and start over so the rail yards can be developed properly and realistically."

In 2005, in the wake of the Supreme Court's widely despised Kelo decision that expanded the reach of eminent domain, then-Senator David Paterson called for a state-wide blanket moratorium on the use of eminent domain.

"Governor Paterson needs to ask himself what happened to Senator Paterson's position on eminent domain. And then he needs to act on his principles," Carponter concluded.

Taking our fight to the courts

Willets Point United has been busy filing court documents and making appearances.

Our attorney, Mike Rikon, filed an Amicus Brief in the Goldstein v. Pataki case which is being heard October 15th in front of the NY State Court of Appeals. The Empire State Development Corporation tried to block the brief, but it was admitted by the court (see below).



Also on August 21st, WPU's attorney, Michael Gerrard, challenged the city's environmental impact statement in front of NYS Supreme Court Justice Joan Madden and we are awaiting her decision. Here is our brief in that case.

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:
http://www.dddb.net/eminentdomain