After an unsuccessful effort to get the U.S. Supreme Court to hear their federal appeal, on August 1, 2008, the Plaintiffs – nine property owners and tenants with homes and businesses New York State intends to condemn for the Forest City Ratner Atlantic Yards project – have filed a petition with the Appellate Division in New York seeking to prevent the condemnation. The petition alleges five claims against the New York Empire State Development Corporation: that the condemnation violates the public use clause in the New York State Constitution (the Second Circuit already held that it did not violate a similar provision in the federal constitution) asserting that the State’s claims of public benefit are a pretext to justify a private taking; that their due process rights under the State Constitution have been violated (here they allege that the public process was a sham and that this was a “back room deal” with former Governor Pataki, Mayor Bloomberg and Bruce Ratner); the Equal Protection clause of the State Constitution was violated (because they were singled out for unequal, adverse treatment, and because Ratner was selected to receive irrational largess); the State Constitutional requirement that the housing part of the project as be restricted to persons of low income with a preference for persons who live or shall have lived in the area has not been met; and that the condemnation violates the “public use, benefit or purpose” requirement contained in the State Eminent Domain Procedure Law.
The most interesting aspect of the petition is the allegation that the condemnation may violate Article 18, sec. 6 of the State Constitution regarding the low-income and current resident requirement. Specifically this Article provides:
No loan, or subsidy shall be made by the state to aid any project
unless such project is in conformity with a plan or undertaking for the
clearance, replanning and reconstruction or rehabilitation of a
sub-standard and unsanitary area or areas and for recreational and other
facilities incidental or appurtenant thereto. The legislature may provide
additional conditions to the making of such loans or subsidies consistent
with the purposes of this article. The occupancy of any such project shall
be restricted to persons of low income as defined by law and preference
shall be given to persons who live or shall have lived in such area or
Whether the occupancy requirement could be fulfilled as part of the negotiated community benefits agreement is another interesting issue that could arise.
The Plaintiffs expect that oral arguments will take place in January 2009.
The petition can be accessed at:
For an article about the petition see:
For a discussion of CBAs, including the Atlantic Yards CBA, see: