On Wednesday, Albany will host the start of a closing chapter in the saga of Atlantic Yards, the mammoth $4.9 billion housing, office and sports arena development proposed to rise near downtown Brooklyn.
Six years since the project was first publicly announced, opponents of the plan are slated to argue their case against eminent domain before the state’s highest court, the last main pending lawsuit that has the potential to kill the project (other suits are expected, though the likelihood of success is generally viewed as low). The suit, which challenges the use of eminent domain to build the project, completes the tour of project opponents who have brought their views to all branches of government, and thus far, have been spurned by all three (three governors have supported the project, as have the legislative leaders and the appellate division in the New York court system).
Few expect the opponents of the project—the appellants here are a group of property and business owners—to be successful at the Court of Appeals, as the argument is something of a reach. New York is considered one of the most lenient states when it comes to use of eminent domain, and a report released last week by a group highly skeptical of eminent domain, the Institute for Justice, found “New York is perhaps the worst state in the nation when it comes to eminent domain abuse.”
There are briefs aplenty for anyone interested in the legal arguments of the case, with the landowners appealing the unanimous lower court decision that found the use of eminent domain was justified given the clear public benefits of the project.
There were amicus briefs submitted by business owners facing eminent domain at Willets Point, the Institute for Justice and a collection of Brooklyn neighborhood and housing groups, all of which urged the court to find in favor of the landowners. The basic argument: the court has the ability to declare that eminent domain is not justified in this case, as have courts in many other states.
From the Willets Point business owners’ brief:
This court has the opportunity, at a minimum, to restore the right of a reviewing court to determine whether in any particular case there has been abuse in the exercise of the power of eminent domain. It also has the ability to correct the eminent domain abuse which has been the hallmark of New York State.
The Bloomberg administration, which is using eminent domain for many of its economic development projects, weighed in on the side of the state, contending that takings are indeed allowed by law:
Because the public purposes of the Atlantic Yards project are so clear, Appellants resort to attacking the last 70 years of eminent domain jurisprudence and argue that the Public Use Clause of the State Constitution does not mean “public purpose,” and that under the State Constitution property may not be condemned unless it can be used by each member of the public. Under Appellants’ interpretation, many public projects utilizing the City’s eminent domain power would be invalid, including Metrotech and Times Square.