Opponents of Atlantic Yards knew from the beginning that getting their eminent domain case to the Supreme Court was going to take a lot of motions and counter-motions, appearances and appeals. This morning, they struggled to get even the first toehold for their case by arguing in federal appeals court that they should get the chance to subpoena documents and take testimony from government decision-makers.
The inside information could be a treasure trove in helping the opponents establish their case, which is basically that the project is being undertaken to benefit a private developer, Forest City Ratner, rather than the public good. Asked after the hearing whether he thought that the discovery process would reveal any “nefarious” information, the plaintiff’s lawyer, Matthew Brinckerhoff, told reporters, “It well may be. That’s what I was alluding to.”
Mr. Brinckerhoff, who represents tenants and property owners who would be displaced by the project, was not so bold in the courtroom, however. Mr. Brinckerhoff’s softer argument–that any real estate development requiring the taking of private property should stem from a government-led process rather than a privately initiated one—did not seem to impress the three-judge panel.
“If there are public benefits to be had, then what difference does it make that there is an individual who has a private, self-interested motive so long as it is determined there are public uses?," Judge Robert A. Katzmann asked.
Mr. Brinckerhoff cited press reports that stated that Forest City’s chief executive, Bruce Ratner, and former Governor George Pataki were law school classmates, that Mr. Ratner gave heavily to the governor’s campaign, and that they are close friends, although he admitted he hadn’t confirmed those assertions. (The state campaign contribution online database, which tracks back to 1999, shows no contributions at the state level by Mr. Ratner.)
When asked by one judge what he would hope to find in the discovery process to strengthen his case, Mr. Brinckerhoff did not answer the question, instead saying that the court system had “a 200-year-old history of policing eminent domain cases” and that, so far, there was no public record established as to how the decision to use the state’s power to take private property for Atlantic Yards came about.
In other words, this case is still in its very early stages. In fact, it isn’t really a case yet because the state, city and Forest City won at the federal district court level in June to dismiss the case. In that decision, Judge Nicholas Garaufis determined that the project’s sole purpose was not to confer a benefit to the developer, Forest City Ratner, but rather to add affordable housing, eliminate blight and generate tax revenues. This morning, the lawyer for Empire State Development Corporation, Preeta Bansal, essentially admitted that the developer was the driving force in the state's decision to invoke eminent domain, but didn’t seem to think that made a difference.
“Even if the project was considered solely for the purpose of benefiting a private individual, if the court concluded … that there was rational relationship between the project and a public purpose, that would solve the constitutionality issue,” she said.
The appeals panel said it would issue a decision soon.