Atlantic Yards Eminent Domain Case Heads to New York High Court Tomorrow

The Following Summary is from the Public Information Office of the New York Court of Appeals:

To be argued Wednesday, October 14, 2009

No. 178 Matter of Goldstein v New York State Urban Development Corporation

This proceeding challenges the use of eminent domain by the Empire State Development Corporation (ESDC) to take property on the site of the proposed Atlantic Yards project in downtown Brooklyn for development by the Forest City Ratner Companies. The centerpiece of the 22-acre project is construction of an arena for the New Jersey Nets basketball team, owned by Forest City Ratner principal Bruce Ratner. Plans for subsequent stages of the project include construction of 16 towers for office and retail space, more than 5,000 housing units, and community facilities offering health and child care; and creation of eight acres of open space for public use. The New York State Urban Development Corporation, doing business as the ESDC, approved the use of its power of condemnation in December 2006, after determining the project would serve the public purposes of eliminating blight and providing recreational and community facilities, mass transit and infrastructure improvements, affordable housing, job creation, and increased tax revenue.

Petitioners, who live or own businesses on the Atlantic Yards site, initially challenged the taking of their properties in federal court, contending that the primary benefits of the project would accrue to Ratner and that the public purposes cited by ESDC were pretexts for a private taking. The federal action was dismissed for failure to state a viable claim that the condemnations violated the Fifth Amendment (see Goldstein v Pataki, 488 F Supp2d 254 [EDNY 2007], affd 516 F3d 50 [2d Cir 2008]).

 Petitioners then commenced this action in August 2008 contending, among other things, that the New York Constitution sets a more restrictive standard for condemnation and that the taking of their properties would violate its Public Use clause (article I, § 7), which states that “private property shall not be taken for public use without just compensation.”

 The Appellate Division, Second Department upheld ESDC’s determination to condemn private property for Atlantic Yards, rejecting the claim that the Public Use clause must be read literally to allow condemnation only where the property “is to be held open for use by all members of the public.” It said New York courts “recognized quite early on that some takings, which would benefit private enterprises such as railroad companies, would also inure to the benefit of the public and thus constitute ‘public use.'” It said “the literal interpretation of the concept of public use which the petitioners urge us to apply was abandoned long before the United States Supreme Court concluded [in Kelo v City of New London (545 US 469 [2005])] that the use of eminent domain to carry out an economic development plan does not violate the Fifth Amendment to the United States Constitution..”

Petitioners argue, in part, that a narrow interpretation of “public use” is “compelled by the plain meaning of the term, the intent of the New York citizens who first enacted the provision in 1821, and by a raft of decisions from this Court during the 19th and early 20th centuries — a time considerably closer to its enactment than more  modern cases that have been infected by the U.S. Supreme Court’s aggressive attempts to render meaningless the comparable provision in the Fifth Amendment.” They also argue the ESDC failed “to weigh the public benefit that will be realized by the seizure against the benefit that will accrue to the recipient of [the] property,” as required under Aspen Creek Estates, Ltd. v Town of Brookhaven (12 NY3d 735).

 See, http://www.nycourts.gov/courts/appeals/summaries/CasesumOct09Wk1.pdf