Landowners Bring Atlantic Yards Eminent Domain Battle to State Court [UPDATED]

Eliot Brown — Mon, 04 Aug 2008 13:54:23 -0400

Six weeks after the U.S. Supreme Court declined to hear their federal lawsuit, landowners fighting the use of eminent domain for the Atlantic Yards project in Brooklyn have filed another suit, this time in state court.

Opposition group Develop Don't Destroy Brooklyn put out a release today announcing the lawsuit, filed Friday, which claims the development was approved to benefit a private developer (Bruce Ratner) as opposed to benefit the public (which would justify the use of eminent domain), among other charges.

"Far from emerging from a legitimate democratic process where the public interest is identified and articulated," the suit says, "the Project is the product of a developer's dream-and a conscious effort to bypass City procedures mandating meaningful local review, planning, democratic oversight and community input."

If anything else, the lawsuits thus far seem to have delayed the start of the more than $4 billion planned project, which calls for a new basketball arena for the Nets, and over 6,000 apartments. Now, more than a year and a half since the Atlantic Yards project received state approval, a host of clouds circle over developer Forest City Ratner, which once anticipated building the entire first phase (which includes the arena, an office tower and at least 1,000 units of housing) by 2010. The once-lush climate for financing has turned to an arid desert, tax-free housing bonds are in short supply given soaring demand, and the financing mechanism by which the company was to get tax-free bonds for the arena is under fire by the I.R.S., threatening to drive up costs by more than $100 million.

But if the landowners had an uphill climb challenging eminent domain in federal court, the ascent in New York state court is generally regarded as a particularly daunting one, given the relatively generous treatment to the state by New York's eminent domain law.

We're waiting on a statement from Forest City, but if history is any guide, the company will point out (correctly) that the courts have tossed all the lawsuits challenging the project to date.

Release below.

[Update 2:30 p.m. Forest City statement added below]

Nine Property Owners and Tenants File Atlantic Yards Eminent Domain Challenge in New York State Court

Petitioners Seek to Prevent New York State's

Seizure of Their Homes and Businesses by Eminent Domain

BROOKLYN, NY Late Friday nine property owners and tenantswith homes and businesses New York State wants to seize for developer Forest City Ratner's Atlantic Yards projectfiled a petition with the Appellate Division of New York State Supreme Court seeking an order rejecting the Empire State Development Corporation's (ESDC) findings and determination to seize their homes and businesses by eminent domain.

The court argument will likely be in January 2009.

"New York Courts have a proud history of interpreting the New York Constitution as providing greater protections for individual rights than the federal constitution. This case presents an opportunity to continue that tradition by declaring that the New York Constitution prohibits the government from seizing private homes simply to turn them over to a developer who covets them for a massive luxury condominium project," said lead attorney Matthew Brinckerhoff of Emery Celli Brinckerhoff & Abady LLP. "We are confident that the court will see this for what it is: government officials bending to the will of Bruce Ratner, allowing him to wield the power of eminent domain for his personal financial benefit."

Facing the seizure of their homes and businesses, the petitioners have alleged five claims against the ESDC the condemning authority utilized by Forest City Ratner to take the petitioners' properties and give them to Forest City Ratner. The five claims are that the ESDC's determination to forcibly seize the properties should be rejected because:

1. It violates the public use clause contained in the Bill of Rights of the New York Constitution.
ESDC's claims of public benefit are a pretext to justify a private taking.

2. It violates the due process clause contained in the Bill of Rights of the New York Constitution.

The public process was a sham. The outcome was predetermined in a back room deal between Ratner, Pataki and Bloomberg.

3. It violates the equal protection clause contained in the Bill of Rights of the New York Constitution.
By singling out the petitioners, for unequal, adverse, treatment, and selecting Ratner as the recipient of irrational largess, the ESDC violated the petitioners' right to equal protection under the law.

4. It violates the low-income and current resident requirements of the New York Constitution.
The New York State Constitution provides that no loan or subsidy shall be made to aid any project unless the project contains a plan for the remediation of blight and 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 areas."
The Atlantic Yards project is not "restricted to persons of low income" and no preference has been given to "persons who live or shall have lived in such area."

5. It violates the "public use, benefit or purpose" requirement contained in New York's Eminent Domain Procedure Law (EDPL).

ESDC's determination that petitioners' homes and businesses will serve a "public use, benefit or purpose" has no basis in fact or law.

The petition to the Court for the case, Goldstein et al. v. Empire State Development Corporation, can be downloaded at: www.dddb.net/eminentdomain

FOREST CITY RATNER STATEMENT ON MOST RECENT EMINENT DOMAIN LAW SUIT FILED BY OPPONENTS OF ATLANTIC YARDS

PROJECT IN BROOKLYN

August 4, 2008 - Brooklyn, NY - Bruce Bender, the executive vice president for government and community affairs at Forest City Ratner Companies, the developer of the Atlantic Yards project in Brooklyn, issued the following statement today in response to inquiries regarding the most recent lawsuit brought by opponents of the project:

“The courts have repeatedly upheld the public benefits of the Atlantic Yards project,” Mr. Bender said, explaining that the project will create thousands of needed jobs and affordable homes. “As expected, opponents have filed another law suit opposing the State’s right to use eminent domain. We’re fully confident that the courts will once again agree that this project is in the public’s interest.”

Earlier this summer, the United States Supreme Court declined to review a decision by the United States Court of Appeals for the Second Circuit, which unanimously affirmed the District Court's decision in a case brought by opponents of the Atlantic Yards project. The District Court had previously decided against the plaintiffs in the case citing the numerous public benefits generated by the project.

Observer » Landowners Bring Atlantic Yards Eminent Domain Battle to State Court [UPDATED]

Landowners Bring Atlantic Yards Eminent Domain Battle to State Court [UPDATED]