Magistrate: Throw Out Atlantic Yards Lawsuit

Calling it a state and a local matter the federal government should abstain from, a federal magistrate recommended on Friday throwing out the eminent-domain case brought by tenants and property owners opposed to the Atlantic Yards project. The plaintiffs, including those who live in the footprint of the 22-acre project in central Brooklyn, want to stop the state from using eminent domain to seize property.

The U.S. Court for the Eastern District of New York still makes the final decision on the federal lawsuit, but the magistrate’s recommendation can’t help matters for the plaintiffs. The defendants include developer Forest City Ratner, Mayor Bloomberg and former Governor George Pataki.

The full recommendation from Magistrate Robert M. Levy after the jump.

– Tom Acitelli

Plaintiffs, REPORT AND
06 CV 5827 (NGG) (RML)
LEVY, United States Magistrate Judge:
All defendants move to dismiss the complaint, pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. On November 21, 2006, the Honorable
Nicholas G. Garaufis, United States District Judge, referred the motions to me for Report and
Recommendation. Briefing was completed on February 1, 2007, and this court heard oral
argument on February 7, 2007. For the reasons stated below, I respectfully recommend that
defendants’ motions be granted.
A. The Plaintiffs and Their Claims
Plaintiffs Daniel Goldstein, Jerry Campbell (as the putative administrator of the
estate of Oliver St. Clair Stewart and in his individual capacity), The Gelin Group, LLC,
Chadderton’s Bar and Grill Inc. d/b/a/ Freddy’s Bar and Backroom, Maria Gonzalez, Jackie
Gonzalez, Yesenia Gonzalez, Huda Mufleh-Odeh, Jan Akhtar, David Sheets, Joseph Pastore,
Peter Williams, Peter Williams Enterprises, Inc., Henry Weinstein, 535 Carleton Ave. Realty
Corp., 535 Carlton Ave. Realty Corp., and Pacific Carlton Development Corp. (collectively,
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 1 of 42
1 Plaintiffs amended their complaint on January 5, 2007 to, inter alia, add some of the
named plaintiffs listed above and eliminate a claim against former Governor Pataki in his official
capacity. (See Amended Complaint, dated Jan. 5, 2007.)
2 The arena is slated to be home to the New Jersey Nets National Basketball Association
Team. (See Declaration of Douglas M. Kraus, Esq., dated Dec. 15, 2006, Ex. E.)
3 Plaintiffs Daniel Goldstein, Jerry Campbell, the Estate of Oliver St. Clair Stewart, The
Gelin Group LLC, Peter Williams, Peter Williams Enterprises, Inc., 535 Carleton Ave. Realty
Corp., 535 Carlton Ave. Realty Corp., Henry Weinstein, and Pacific Carlton Development Corp.
own and control real property. (Am. Compl. ¶¶ 6-8.) Plaintiff Chadderton’s Bar and Grill Inc.
d/b/a Freddy’s Bar and Backroom has a lease for operation of a commercial enterprise. (Id. ¶ 9.)
Plaintiffs Maria Gonzalez, Jackie Gonzalez, Yesenia Gonzalez, Huda Mufleh-Odeh, Jan Akhtar,
David Sheets, and Joseph Pastore are residential tenants. (Id. ¶¶ 14 – 20.)
4 Section 1983 imposes liability on persons – including, by judicial construction,
municipalities and other state agencies – who, acting under color of state law, deprive others of
rights secured by the Constitution and federal laws. 42 U.S.C. § 1983 (2000).
“plaintiffs”) commenced this action on October 26, 20061 seeking to enjoin the exercise of
eminent domain to seize their properties in connection with a project known as the Atlantic
Yards Arena and Redevelopment Project (the “Atlantic Yards Project” or the “Project”). As
currently proposed, the Project is a mixed-use redevelopment project that would cover
approximately twenty-two acres of land in and around the Metropolitan Transportation
Authority’s Vanderbilt Yards in Brooklyn, New York. (See Amended Complaint, dated Jan. 5,
2007 (“Am. Compl.”), at 2 n.1.) It includes a sports arena with seating capacity for
approximately 20,500,2 sixteen high-rise apartment and office towers containing approximately
eight million square feet of residential, office and commercial space, and a 180-room hotel. (Id.)
Plaintiffs own or rent property within the footprint of the Project. (See id. ¶¶ 6-
21.)3 They challenge the use of eminent domain under 42 U.S.C. § 1983,4 asserting claims under
the Fifth Amendment’s Takings Clause (as incorporated by the Fourteenth Amendment), which
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 2 of 42
5 Similarly, Article 1, § 7(a) of the New York State constitution provides that “[p]rivate
property shall not be taken for public use without just compensation.” However, the Amended
Complaint contains no claim under the state constitution.
6 For their Equal Protection claim, plaintiffs allege that “[b]y selecting plaintiffs’
properties to be taken for the purpose of conferring a benefit, here the plaintiffs’ property, to [the
private developer], defendants have targeted plaintiffs for adverse treatment for no rational
purpose.” (Am. Compl. ¶ 151.) As plaintiffs’ counsel conceded at oral argument, this claim
“will rise or fall with the public use claim.” (Transcript of Oral Argument, dated Feb. 7, 2007
(“Tr.”), at 51.)
7 Plaintiffs allege that defendants have deprived them of their property interests without
due process of law by, inter alia, “(1) circumventing local and community review and local
zoning regulations; (2) failing to provide sufficient time to meaningfully respond between the
release of the Draft Environmental Impact Statement and the hearing on August 23, 2006; (3)
failing to provide a hearing that allowed plaintiffs to meaningfully state their objections; and (4)
at all times providing an empty, meaningless [] process, with a pre-determined outcome. . . .”
(Am. Compl. ¶ 164.)
8 This claim is only asserted against the Empire State Development Corp. The Amended
Complaint also asserted a claim under EDPL § 204(A) (see Am. Compl. ¶ 178 (alleging that the
Determination and Findings are null and void because they were not made within 90 days of the
close of the public hearing), but plaintiffs have since withdrawn that claim. (See Plaintiffs’
Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Supplemental EDPL Claims, dated Jan.
26, 2007, at 14 n.5.)
prohibits the taking of private property “for public use, without just compensation,”5 and the
Fourteenth Amendment’s Equal Protection6 and Procedural Due Process7 Clauses. (See id. ¶¶
131-170.) They also assert a supplemental state law claim under New York Eminent Domain
Procedure Law (“EDPL”) § 207. (Id. ¶¶ 171-180.)8 Plaintiffs contend that the Project, which
they describe as “the single largest multi-use real estate development in the history of the City of
New York,” constitutes “a betrayal of public trust in service of the interests of a private
developer,” namely defendant Bruce C. Ratner (“Ratner”) and the companies he owns or
controls. (Id. ¶ 2.) They accuse City and State officials of acting in concert with Ratner for the
purpose of conferring a private benefit on the developer, who allegedly conceived of and
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 3 of 42
initiated the Project. (Id.) They further maintain that “public input and review has been a sham”
and that the defendants’ findings of blight in the area are pretextual, as are their claims that the
Project will result in a net economic benefit to the City and State, create significant affordable
housing, and create thousands of new jobs. (Id. ¶¶ 4, 89-120.) Plaintiffs have stated that they
intend to move for a preliminary injunction.
B. The Defendants and Their Motions
The defendants fall into four groups. They are: (1) the New York State Urban
Development Corporation d/b/a the Empire State Development Corporation (the “ESDC”), a
state public benefit corporation created pursuant to the New York State Urban Development
Corporation Act of 1968 (the “UDC Act”) and imbued by the New York legislature with eminent
domain power (see N.Y. UNCONSOL. LAWS § 6263); and the ESDC’s Chairman and Chief
Executive Officer, Charles A. Gargano, sued in both his official and individual capacities; (2)
former Governor George E. Pataki, sued in his individual capacity; (3) the City of New York; the
New York City Economic Development Corporation; Mayor Michael Bloomberg; Deputy
Mayor Daniel L. Doctoroff; Andrew Alper, former President of the New York City Economic
Development Corporation; and Joshua Sirefman, Acting President of the New York City
Economic Development Corporation, all sued in both their official and individual capacities
(collectively, the “City defendants”); and (4) Bruce C. Ratner, James P. Stuckey, Forest City
Enterprises, Inc., Forest City Ratner Company, Ratner Group, Inc., BR FCRC, LLC, BR Land,
LLC, FCR Land, LLC, Brooklyn Arena, LLC, and Atlantic Yards Development Company, LLC
(collectively, the “Forest City Ratner defendants”).
All defendants move to dismiss the complaint on the grounds that it is not ripe
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 4 of 42
and that it fails to state a claim upon which relief can be granted. They also urge this court to
abstain from exercising federal jurisdiction under Younger v. Harris, 401 U.S. 37 (1971), or
Burford v. Sun Oil Co., 319 U.S. 315 (1943).
In addition to arguing that the complaint fails to state a claim under the public use
clause, the Forest City Ratner defendants contend that plaintiffs’ assertions of favoritism and of a
“sham” review process “amount to a claim that defendants have acted corruptly and perpetrated
a fraud on the public,” which purportedly fails to comport with the heightened pleading
requirement of Fed. R. Civ. P. 9(b). (See Forest City Ratner Defendants’ Memorandum of Law
in Support of Their Motion to Dismiss the Complaint, dated Dec. 15, 2006, at 19 n.14, 23-24.)
They also challenge plaintiffs’ equal protection and due process claims as insufficient. (Id. at
Governor Pataki moves separately to dismiss the claims against him in his
individual capacity on the grounds that plaintiffs do not allege his personal involvement in the
alleged constitutional deprivation and because he is entitled to qualified immunity. (See
Memorandum of Law of Defendant George E. Pataki in Support of His Motion to Dismiss the
Complaint, dated Dec. 15, 2006 (“Pataki Mem.”), at 10-13; Reply Memorandum of Law of
Governor George E. Pataki in Support of His Motion to Dismiss the Amended Complaint, dated
Jan. 19, 2007 (“Pataki Reply Mem.”).) The Governor also argues that the claims against him in
his individual capacity are moot, as he completed his term of office on December 31, 2006, prior
to the taking of plaintiffs’ properties. (Pataki Mem. at 13-14; Pataki Reply Mem. at 4-6.)
Last, the City defendants move separately to dismiss the claims against them in
both their individual and official capacities. (See Memorandum of Law in Support of City
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 5 of 42
Defendants’ Motion to Dismiss the Complaint, dated Dec. 15, 2006.) They argue that the
Amended Complaint does not support the imposition of liability against them in their individual
capacities because it does not allege specific facts showing each defendant’s personal
involvement in the condemnations. (Id. at 3-5.) They also contend that they are entitled to
qualified immunity under section 1983 because it was objectively reasonable for them to believe
that their conduct did not violate the law. (Id. at 6-7.) Finally, they maintain that the Amended
Complaint does not state a cause of action against them in their official capacities because it does
not allege that either the City or the EDC is the “moving force” behind the challenged
condemnation proceedings. (Id. at 7-8.) Although plaintiffs allege that all of the defendants
conspired with each other to deprive them of their constitutional rights, the City defendants
argue that the allegations concerning their role in the purported conspiracy should be dismissed
as “conclusory” and “nonspecific.” (Id. at 8.)
C. The Eminent Domain Procedure Law
For purposes of context, a description of New York’s EDPL, which provides a
detailed and comprehensive statutory scheme for the taking of property, is in order. Until the
state legislature enacted the EDPL in 1977, eminent domain powers were exercised through a
patchwork of more than 150 disparate state and local provisions. Jackson v. N.Y. State Urban
Dev. Corp., 494 N.E.2d 429, 436 (N.Y. 1986). Briefly, Article 2 of the EDPL sets forth the
procedures that most condemnors must follow prior to acquiring property. Specifically, it
requires condemnors to hold a non-judicial public hearing to review the public use of the
proposed project and its impact on the environment. See EDPL § 201 (McKinney 2003 & Supp.
2006). Further, the EDPL requires that condemnors give notice of the hearing by publication
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 6 of 42
and, since January 2005, requires that affected property owners be given individualized notice,
either by personal service or certified mail. See id. § 202. Within ninety days of the conclusion
of public hearings, the condemnor is required to publish its Determination and Findings, see id. §
204(A), which triggers an exclusive thirty-day period in which such Determination and Findings
may be appealed in the Appellate Division. See id. § 207. The Determination and Findings
must specify “(1) the public use, benefit or purpose to be served by the proposed public project;
(2) the approximate location for the proposed public project and the reasons for selection of that
location; (3) the general effect of the proposed project on the environment and residents of the
locality.” Id. § 204(B). Recent amendments to the EDPL also require that individuals whose
properties are being condemned be given individualized notice of both the publication of the
Determination and Findings and the thirty-day time limit on judicial challenges thereto. See id.
§ 204(C).
Section 207(B) of the EDPL states that, once a condemnee challenges the
Determination and Findings in the Appellate Division, the “jurisdiction of the appellate division
of the supreme court shall be exclusive and its judgment and order shall be final subject to
review by the court of appeals. . . .” The scope of review in the Appellate Division is narrow. It
is “limited to whether: (1) the proceeding was in conformity with the federal and state
constitutions, (2) the proposed acquisition is within the condemnor’s statutory jurisdiction or
authority, (3) the condemnor’s determination and findings were made in accordance with
procedures set forth in this article and with article eight of the environmental conservation law,
and (4) a public use, benefit or purpose will be served by the proposed acquisition.” Id.
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 7 of 42
9 In certain circumstances, not relevant here, a condemnor may be exempt from
compliance with the requirements of Article 2. See EDPL § 206.
§ 207(C).9 “‘The principal purpose of EDPL article 2 is to insure that [a condemnor] does not
acquire property without having made a reasoned determination that the condemnation will serve
a valid public purpose.'” Waldo’s Inc. v. Vill. of Johnson City, 534 N.Y.S.2d 723, 725 (3d
Dep’t 1988) (quoting Jackson, 494 N.E.2d 429), aff’d, 543 N.E.2d 74 (N.Y. 1989); accord
Woodfield Equities, LLC v. Inc. Vill. of Patchogue, 813 N.Y.S.2d 184 (2d Dep’t 2006).
Upon filing a petition pursuant to EDPL § 207, the petitioner must serve a
demand on the condemnor to file with the court a written transcript of the public hearing and a
copy of its Determination and Findings. See EDPL § 207(A). The proceeding is then heard “on
the record,” with no discovery or evidentiary hearing. Id. See also Kaufmann’s Carousel, Inc. v.
City of Syracuse Indus. Dev. Agency, 750 N.Y.S.2d 212, 222 (4th Dep’t 2002) (newspaper
article appended to the EDPL petition challenging the condemnor’s Determination and Findings
was outside the record and therefore could not be considered by the Appellate Division), leave to
appeal denied, 787 N.E.2d 1165 (N.Y. 2003); Waldo’s, Inc., 534 N.Y.S.2d at 725 (stating that
EDPL § 207 “does not provide for . . . adversarial proceedings.”); Vill. Auto Body Works, Inc. v.
Inc. Vill. of Westbury, 454 N.Y.S.2d 741, 743 (2d Dep’t 1982) (EDPL § 207 “contemplates a
summary review procedure. This court is to review the record and either reject or confirm the
findings of the condemning authority.”).
Article 3 of the EDPL then controls the making of compensation offers for
property that is subject to condemnation. The preamble to Article 3 states that the public policy
of New York favors negotiated settlements. EDPL § 301. However, “the condemnor fulfills[ ]
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 8 of 42
the requirements of EDPL § 303 by making an offer to respondent property owners that ‘it
believes to represent just compensation for the real property to be acquired.’ There is no
requirement that petitioner ‘plead or prove, as a prerequisite to the acquisition of property by
eminent domain, that it negotiated in good faith with the [property] owner[s].'” Nat’l Fuel Gas
Supply Corp. v. Town of Concord, 752 N.Y.S.2d 187, 189 (4th Dep’t 2002) (quoting Oswego
Hydro Partners L.P. v. Phoenix Hydro Corp., 559 N.Y.S.2d 841, 841 (4th Dep’t 1990)); see also
Matter of County of Tompkins, 654 N.Y.S.2d 849, 851 (3d Dep’t 1997).
Under Article 4 of the EDPL, the condemnor may commence a proceeding to
acquire title to the property up to three years after the later of: (1) publication of the
Determination and Findings, or (2) entry of the final order or judgment on judicial review under
§ 207. (See EDPL § 401.) This is known as a “vesting proceeding,” and the condemnor’s
petition must set forth (a) a statement of compliance with EDPL Article 2 (or with an exemption
pursuant to EDPL 206); (b) a copy of the acquisition map; (c) a description of the property; (d)
the public use; and (e) “a request that the court direct entry of an order authorizing the filing of
the acquisition map . . . and that upon such filing, title shall vest in the condemnor.” Id. §
402(B)(3). A condemnee opposing the taking may not wait until the condemnor initiates a
vesting proceeding to raise its claims, but rather must seek review directly in the Appellate
Division pursuant to EDPL § 207. See City of New Rochelle v. O. Mueller, Inc., 594 N.Y.S.2d
301, 302 (2d Dep’t 1993); Matter of Farmington Access Rd., 549 N.Y.S.2d 236, 237 (4th Dep’t
1989). In other words, if no prospective condemnee brings a claim in the Appellate Division
pursuant to EDPL § 207, then the Article 4 proceeding is the first point of judicial review. Once
the Article 4 proceeding is complete, just compensation may be adjudicated in the Court of
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 9 of 42
10 Both Memoranda of Understanding were dated February 18, 2005 and were signed by
FCRC, the ESDC, the City of New York, and the New York City Economic Development
Corporation. (See Krauss Decl., Exs. A, B.)
Claims pursuant to Article 5.
In Brody v. Vill. of Port Chester, 434 F.3d 121, 133 (2d Cir. 2005), the Second
Circuit held that the EDPL’s post-determination review procedure for challenging public use
satisfies due process. Although EDPL § 207 provides for a post-determination hearing that is
“summary in nature, restricting both the issues that can be raised and the evidence the court will
consider,” the Second Circuit concluded that “[d]ue process does not require New York to
furnish a procedure to challenge public use beyond that which it already provides.” Id.
Plaintiffs have not brought a facial challenge to the EDPL. Nor do they allege
that the ESDC has failed to comply with the EDPL’s requirements.
D. The Current Posture
The Project was first announced in December 2003 (Am. Compl. ¶ 68), and
Memoranda of Understanding concerning the Project were signed in early 2005. (Id. ¶¶ 670-72;
Declaration of Douglas M. Kraus, Esq., dated Dec. 15, 2006 (“Kraus Decl.”), Exs. A, B.)10 In
May 2005, the Metropolitan Transit Authority (the “MTA”) issued a request for proposals for
the purchase of the development rights attributable to the Vanderbilt Yards site, an 8.5-acre rail
yard and bus depot within the Project’s footprint. (Am. Compl. ¶ 75.) Two companies,
including the Forest City Ratner Companies (“FCRC”), submitted formal bids (id. ¶¶ 77-78), and
on July 27, 2005, the MTA’s Board of Directors selected FCRC as the winning bidder. (Id. ¶
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 10 of 42
11 The other bidder was Extell Development Company. (Am. Compl. ¶ 78.)
12 According to plaintiffs, FCRC paid for the blight study. (Am. Compl. ¶ 100.) The
blight study concluded, inter alia, that the proposed Project site “has suffered from physical
deterioration and relative economic inactivity for at least four decades.” It described the site as
“[d]ominated by an approximately 9-acre open rail yard and otherwise generally characterized
by dilapidated, vacant, and underutilized properties[.]” (Krauss Aff., Ex. D at B-1.) Plaintiffs
contest this finding, arguing that it is a “classic post-hoc justification” and that the increase in
vacant lots in the area between December 2003 and October 2006 is “squarely attributable to
defendants[‘] own conduct.” (Am. Compl. ¶¶ 98, 106.)
13 Under the UDC Act, the ESDC may only condemn property for a land use
development project if it determines “[t]hat the area in which the project is to be located is a
substandard or insanitary area, or is in danger of becoming a substandard or insanitary area and
tends to impair or arrest the sound growth and development of the municipality.” N.Y.
UNCONSOL. LAWS § 6260(c)(1).
79.)11 On September 14, 2005, the MTA and FCRC formally announced the terms of an
agreement. (Id. ¶ 80.) A “Blight Study” was performed by AKRF, Inc. and completed in July
2006. (See Declaration of Jeffrey L. Braun, Esq., dated Dec. 15, 2006 (“Braun Decl.”), Ex. C.)12
On July 18, 2006, ESDC issued a formal declaration that the Project qualified as a land use
development and civic project under the UDC Act. (Am. Compl. ¶ 47; Kraus Decl., Ex. E.)13 A
Draft Environmental Impact Statement, prepared by AKRF, Inc. and Philip Habib & Associates
pursuant to the State Environmental Quality Review Act, was also released on July 18, 2006.
(Braun Decl., Ex. B.)
On August 23, 2006, ESDC held a duly-noticed public hearing concerning the
Project, in accordance with EDPL §§ 202 and 203. (Am. Compl. ¶ 84.) In addition, ESDC
conducted community forums on September 12 and 18, 2006 and accepted written comments
until September 29, 2006. (Id. ¶¶ 85-86; Memorandum of Law of ESDC Defendants in Support
of Their Motion to Dismiss the Complaint, dated Dec. 15, 2006 (“ESDC Mem.”), at 8; Forest
City Ratner Defendants’ Memorandum of Law in Support of Their Motion to Dismiss the
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 11 of 42
14 The plaintiffs in that action, entitled Anderson v. New York State Urban Development
Corporation, are all rent-stabilized tenants in two buildings owned by FCRC. Their petition
seeks, inter alia, a judgment rejecting the ESDC’s Determination and Findings, pursuant to
EDPL § 207 “with respect to the acquisition of 624 Pacific Street and 473 Dean Street,
Brooklyn, New York, in furtherance of the Atlantic Yards Arena and Redevelopment Project.”
(See Declaration of Douglas M. Kraus, Esq., dated Jan. 19, 2007, Ex. A.)
15 The parties disagree as to whether the 30-day period for appeal under EDPL § 207(B)
is subject to tolling under 28 U.S.C. § 1367(d). That issue is not presently before the court.
Complaint, dated Dec. 15, 2006 (“FCRC Mem.”) at 4 n.3.) A Final Environmental Impact
Statement was certified as complete on November 27, 2006. See (last checked Feb. 6, 2007). Pursuant to EDPL
§ 204(A), ESDC published its Determination and Findings on December 8, 2006. In its
Determination and Findings, ESDC confirmed that it intends to exercise its eminent domain
power to acquire private properties within the Project site. (Kraus Decl., Ex. E; ESDC Mem. at
7-8.) On December 20, 2006, the Public Authorities Control Board, which has the power and
duty to “receive applications for approval of the financing and construction of any project
proposed by [certain specified] state public benefit corporations” (N.Y. PUB. AUTH. L., Art. 1-A,
§§ 50,51), approved the Project.
On January 11, 2007, a separate group of plaintiffs filed a petition in the New
York Appellate Division, Second Department, pursuant to EDPL § 207(B).14 The exclusive 30-
day period in which the ESDC’s Determination and Findings may be appealed in the Appellate
Division has now passed.15 ESDC has yet to file an Article 4 proceeding seeking transfer of title
to plaintiffs’ properties.
A. Standard for Motion to Dismiss under Rule 12(b)(1)
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 12 of 42
Defendants move to dismiss plaintiffs’ complaint for lack of subject matter
jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited jurisdiction
and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 552 (2005) (federal courts are “courts of limited jurisdiction” whose powers
are confined to statutorily and constitutionally granted authority); Gen. Motors Corp. v. EPA,
363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a court of limited jurisdiction, we begin,
and end, with an examination of our jurisdiction.”). Because subject matter jurisdiction is an
Article III requirement, “no action of the parties can confer subject-matter jurisdiction upon a
federal court.'” Hoeft v. MVL Grp., Inc., 343 F.3d 57, 66 (2d Cir. 2003) (quoting Ins. Corp. of
Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)).
On a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of
establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992); Gilman v. BHC Sec., 104 F.3d 1418, 1421 (2d Cir. 1997). However, the
court may dismiss a complaint for lack of subject matter jurisdiction only if “‘it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.'” Commodity Futures Trading Comm’n v. Int’l Foreign Currency, Inc., 334 F. Supp.
2d 305, 309 (E.D.N.Y. 2004) (quoting Fortress Bible Church v. Feiner, No. 03-4235, 2004 WL
1179307, at *1 (S.D.N.Y. Mar. 29, 2004)). Because subject matter jurisdiction focuses on the
court’s power to hear the claim, the court must give the plaintiff’s factual allegations closer
scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)
motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir.
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 13 of 42
2003), cert. denied, 540 U.S. 1149 (2004); Grand Lodge of Fraternal Order of Police v. Ashcroft,
185 F. Supp. 2d 9, 13 (D.D.C. 2001). Moreover, the court is not limited to the allegations in the
complaint; instead, to determine whether it has jurisdiction over the claim, the court may
consider materials outside the pleadings. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986).
B. Ripeness
Defendants urge this court to dismiss the complaint for lack of subject matter
jurisdiction on the ground that it is not ripe for judicial review. They argue that plaintiffs’ claims
will not be ripe for review until condemnation proceedings are commenced pursuant to EDPL
Article 4. It is axiomatic that federal courts may adjudicate only those “real and substantial
controvers[ies] admitting of specific relief . . . as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts.” Lewis v. Continental Bank Corp., 494 U.S.
472, 477 (1990). Thus, ripeness is a constitutional prerequisite to the exercise of federal
jurisdiction. See Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d Cir. 1998).
“The ripeness doctrine’s basic rationale is to prevent the courts through avoidance
of premature adjudication from entangling themselves in abstract disagreements.” Woodfield
Equities, LLC v. Inc. Vill. of Patchogue, 357 F. Supp. 2d 622, 632 (E.D.N.Y.) (internal quotation
marks and citation omitted), aff’d, 156 Fed. Appx. 389 (2d Cir. 2005). The ripeness doctrine
asks “whether the case has been brought at a point so early that it is not yet clear whether a real
dispute to be resolved exists between the parties.” 15 JAMES WM. MOORE ET AL., MOORE’S
FED. PRAC. § 101.70[2] (3d ed. 1997). Because ripeness is jurisdictional and stems from the
Article III requirement that federal courts hear only cases or controversies, the court is obliged to
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 14 of 42
16 As defendants correctly note, the Second Circuit has held that a federal court may
decide to abstain without addressing Article III limitations on jurisdiction. See Spargo v. N.Y.
State Comm’n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003) (explaining that, although
federal courts may not exercise hypothetical jurisdiction to dismiss claims on the merits, they
have flexibility “‘to choose among threshold grounds’ for disposing of a case without reaching
the merits.”) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)). In the
interest of making a thorough Report and Recommendation on defendants’ motions, I will
address the issue of ripeness.
consider the ripeness question before reaching the merits of plaintiffs’ claims. See Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18 (1993) (explaining that “[the] ripeness doctrine
is drawn both from Article III limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.”); Vandor v. Militello, 301 F.3d 37, 38 (2d Cir. 2002) (“We are
obliged to consider the ripeness question before reaching the merits of [the plaintiff’s] claims
because ripeness is jurisdictional.”); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 84 (1998) (instructing federal courts to resolve questions of Article III jurisdiction before
reaching the merits of a plaintiff’s claim).16 Moreover, because ripeness is a jurisdictional
inquiry, the court “must presume that [it] cannot entertain [plaintiffs’] claims ‘unless the contrary
appears affirmatively from the record.'” Murphy v. New Milford Zoning Comm’n, 402 F.3d
342, 347 (2d Cir. 2005) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)).
To measure ripeness, the court must look to: (1) whether the controversy is fit for
judicial adjudication; and (2) the hardship to the parties of withholding court consideration.
Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). In essence, this approach balances the need
for decision against the risks of decision: “[t]he need to decide is a function of the probability
and importance of the anticipated injury,” whereas “[t]he risks of decision are measured by the
difficulty and sensitivity of the issues presented, and by the need for further factual development
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 15 of 42
to aid decision.” Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, 13A FEDERAL
PRACTICE AND PROCEDURE § 3532.1 (2006). With respect to the first prong, the central inquiry
is whether the court would benefit from deferring initial review until the claims it is called on to
consider “have arisen in a more concrete and final form.” Murphy, 402 F.3d at 347. If a claim
rests upon contingent future events that may not occur as anticipated, or may not occur at all, it is
not ripe for adjudication. Auerbach v. Bd. of Educ., 136 F.3d 104, 108-09 (2d Cir. 1998); see
also In re Drexel Burnham Lambert Grp., Inc., 995 F.2d 1138, 1146 (2d Cir. 1993) (stating that
adjudication is inappropriate where there is “no certainty” that the complained-of action will
occur). On the other hand, the “hardship to the parties” prong “injects prudential considerations
into the mix,” requiring the court to “gauge the risk and severity of injury to a party that will
result if the exercise of jurisdiction is declined.” Murphy, 402 F.3d at 347.
In Williamson County Regional Planning Commission v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194-95 (1985), the Supreme Court established a two-pronged test
for analyzing ripeness of claims under the Fifth Amendment’s Takings Clause. Williamson
County involved a landowner’s claim in federal district court for money damages suffered when
the planning commission allegedly took the landowner’s property in the course of applying local
land use regulations. Id. at 175. The Sixth Circuit upheld a jury award of money damages to the
landowner (Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 729 F.2d 402, 409
(6th Cir. 1984)), but the Supreme Court found the landowner’s claim unripe on two grounds.
First, the Court held that a takings claim “is not ripe until the government entity charged with
implementing the regulations has reached a final decision regarding the application of the
regulations to the property at issue.” Williamson County, 473 U.S. at 186. A “final decision” is
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 16 of 42
17 For example, if the federal government committed the alleged taking, the plaintiff
would not have to proceed in state court. See, e.g., Hodel v. Irving, 481 U.S. 704, 711 (1987).
In addition, a facial attack on an ordinance need not comply with the finality rule. See Suitum v.
Tahoe Reg’l Planning Agency, 520 U.S. 725, 736, 736 n.10 (1997) (“[F]acial challenges to
a “definitive position on the issue that inflicts an actual, concrete injury.” Id. at 193. In
Williamson County, the Court found that the plaintiff developer had not yet obtained a final
decision because it had failed to seek “variances that would have allowed it to develop the
property according to its proposed plan.” Id. at 188.
Second, the Court held that a takings claim is not ripe until the landowner has
availed itself of the state’s procedures for obtaining just compensation. Id. at 195. The Court
noted that the state of Tennessee authorized landowners to bring “inverse condemnation” actions
to obtain just compensation for alleged takings effected by restrictive zoning laws or
development restrictions. Id. at 196. It held that the landowner “cannot claim a violation of the
Just Compensation Clause until it has used the procedure and been denied just compensation.”
Id. at 195. “The second prong of the Williamson test applies to physical as well as regulatory
takings,” where the plaintiff alleges a violation of the just compensation clause. RKO Delaware,
Inc. v. City of N.Y., No. CV002592, 2001 WL 1329060, at *4 (E.D.N.Y. Aug. 30, 2001). See
also Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 92 (1st Cir. 2003) (applying
the exhaustion exceptions of Williamson County to physical takings); Villager Pond, Inc. v.
Town of Darien, 56 F.3d 375, 380 (2d Cir. 1995) (“‘Even in physical taking cases, compensation
must first be sought from the state if adequate procedures are available.'”) (quoting Sinaloa Lake
Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1402 (9th Cir.1 989)). Thus, Williamson
County stands for the general proposition that, subject to limited exceptions,17 a landowner
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 17 of 42
regulation are generally ripe the moment the challenged regulation or ordinance is passed, but
face an uphill battle, since it is difficult to demonstrate that mere enactment of a piece of
legislation deprived [the owner] of economically viable use of [his] property.”) (internal citations
and quotations omitted)).
18 The Second Circuit has noted that “[t]he ripeness requirement of Williamson, although
announced in a takings context, has been extended to equal protection and due process claims
asserted in the context of land use challenges.” Dougherty v. Town of N. Hempstead Bd. of
Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). See also Murphy, 402 F.3d at 349 (observing
that Williamson County’s ripeness requirement has been extended to equal protection and due
process challenges to zoning decisions); Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84,
96-97 (2d Cir. 1992) (applying ripeness requirement to substantive due process claims); Kittay v.
Giuliani,112 F. Supp. 2d 342, 349 & n.5 (S.D.N.Y. 2000) (“the ripeness inquiry is the same for
each of plaintiff’s as-applied takings, due process, equal protection and First Amendment
claims.”), aff’d, 252 F.3d 645 (2d Cir. 2001). Inasmuch as plaintiff’s takings, due process and
equal protection claims arise out of the same factual events, the court will apply the same
ripeness inquiry to all of plaintiffs’ claims. See Dougherty, 282 F.3d at 88-89, 92 n. 7; Goldfine
v. Kelly, 80 F. Supp. 2d 153, 158-59 (S.D.N.Y. 2000); Kittay, 112 F. Supp. 2d at 349 & n. 5.
19 Of course, once a litigant’s federal claims related to the merits of the taking are
determined in state court, res judicata and collateral estoppel may operate to bar that litigant
from bringing his or her claims in federal court. The Supreme Court recently explained in San
Remo that permitting federal review of state court awards of just compensation for takings
would deny full faith and credit to state court rulings in federal courts. See San Remo, 545 U.S.
at 338 (stating that “Congress has not expressed any intent to exempt from the full faith and
credit statute federal takings claims” and applying the “normal assumption that the weighty
cannot prevail on a just compensation claim in federal court until it has failed in its effort to
obtain relief through the state courts.18
The Supreme Court recently reaffirmed this holding in San Remo Hotel, L.P. v.
City & County of San Francisco, 125 S. Ct. 2491 (2005). In that case, the Court explained that a
regulatory takings claim “is not ripe until the government entity charged with implementing the
regulations has reached a final decision regarding the application of the regulations to the
property at issue,” and it confirmed the requirement that a landowner challenging a regulatory
taking proceed – at least initially – in state court. Id. at 2507.19
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 18 of 42
interests in finality and comity trump the interest in giving losing litigants access to an additional
appellate tribunal”). Indeed, San Remo has been described as “in many ways the most
significant” Supreme Court takings case from 2005, “because its combination of ripeness and
preclusion doctrines appears to bar the door to federal court for virtually all federal takings
claims” and because the Court in that case “emphatically rejected the notion that takings
plaintiffs have a right to federal adjudication” Stewart E. Sterk, The Demise of Federal Takings
Litigation, 48 WM. & MARY L. REV. 251, 253 (Oct. 2006). See also J. David Breemer, You Can
Check Out But You Can Never Leave: The Story of San Remo Hotel – The Supreme Court
Relegates Federal Takings Claims to State Courts Under a Rule Intended to Ripen the Claims for
Federal Review, 33 B.C. ENVTL. AFF. L. REV. 247, 250 (2006) (criticizing the Supreme Court’s
decision in San Remo as banishing takings claims to state courts).
Both Williamson County and San Remo arose in the regulatory takings context,
where the plaintiffs were seeking just compensation for an alleged taking, and neither involved a
challenge to a condemnation under the Fifth Amendment’s public use clause. Because just
compensation is not an issue in this case, the parties agree that Williamson County’s framework
is inapplicable here. (See ESDC Mem. at 13; Plaintiffs’ Memorandum of Law in Opposition to
Defendants’ Motion to Dismiss, dated Jan. 5, 2007, at 16.)
It is true, as plaintiffs argue, that no Supreme Court precedent directly forecloses
the possibility of securing federal jurisdiction by seeking declaratory or injunctive relief under
the public use clause, and courts in other circuits have declined to require public use plaintiffs to
seek just compensation in state court. See Theodorou v. Measel, 53 Fed. Appx. 640, 643 (3d
Cir. 2002) (holding that because “[s]tate takings of private property for private use are not
permitted . . . with or without just compensation,” a property owner “need not seek compensation
for an alleged physical taking for private use through a state procedure in order to ripen [his or
her] claim.”); Montgomery v. Carter County, 226 F.3d 758, 770-71 (6th Cir. 2000) (takings case
held ripe where property owner’s driveway had been classified as a public road; state eminent
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 19 of 42
20 It bears noting that the courts are not unanimous on this point. The Seventh Circuit,
for example, “has consistently maintained a strict requirement that Takings Clause litigants must
first take their claim to state court even when plaintiffs . . . are alleging a taking for private
purpose.” Daniels v. Area Plan Comm’n, 306 F.3d 445, 453 (7th Cir. 2002)
(citing Forseth v. Vill. of Sussex, 199 F.3d 363, 370 (7th Cir. 2000); Covington Court Ltd. v.
Vill. of Oak Brook, 77 F.3d 177, 179 (7th Cir. 1996); and Gamble v. Eau Claire County, 5 F.3d
285, 288 (7th Cir.1993)) (finding that the plaintiffs’ claim satisfied the futility exception to
Williamson County’s ripeness requirement, and therefore declining to resolve the tension
between the Seventh Circuit’s and other circuits’ readings of Williamson County).
domain proceedings “would not supply the appropriate remedy” because plaintiff was not
seeking just compensation); Armendariz v. Penman, 75 F.3d 1311, 1320-21 and n.5 (9th Cir.
1996) (en banc) (“Because a ‘private taking’ cannot be constitutional even if compensated, a
plaintiff alleging such a taking would not need to seek compensation in state proceedings before
filing a federal takings claim under the rule of Williamson County”); Samaad v. City of Dallas,
940 F.2d 925, 936-37 (5th Cir. 1991) (holding that “a taking for a private purpose is
unconstitutional even if the government provides just compensation,” but concluding that noise
from automobile racing at nearby fairground did not constitute a taking).
However, the instant case is factually distinguishable in that, at this moment in
time, there has been no taking of plaintiffs’ property. In each of these cases, in which a public
use claim was deemed ripe, the alleged taking had already occurred. Thus, even assuming
plaintiffs are not required to seek just compensation in state court in order to ripen their claims,20
the question remains as to when a public use claim relating to a planned condemnation is ripe for
The parties have cited no case in this circuit, and the court’s independent research
uncovered none, explaining precisely when a public use claim is ripe for adjudication. However,
Port Chester Yacht Club, Inc. v. Iasillo, 614 F. Supp. 318 (S.D.N.Y. 1985), is instructive. In that
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 20 of 42
case the court explained that, in order to support a claim of an unconstitutional taking in
violation of the Fourteenth Amendment and § 1983, a plaintiff must establish three elements:
“(1) a property interest, (2) that has been taken under the color of state law, (3) without due
process or just compensation.” Id. at 321 (citing Parratt v. Taylor, 451 U.S. 572, 535-37 (1981);
Kohlasch v. N.Y. State Thruway Auth., 460 F. Supp. 956, 960 (S.D.N.Y. 1978)). The plaintiffs
in Port Chester challenged an urban redevelopment plan, which was slated to involve the use of
eminent domain, on the ground that the planned taking was for private use. The court noted that
the plaintiffs were not required to “wait until they are physically evicted before they can claim
that they have been deprived of their property without due process of law,” but stated that to
establish a constitutional violation, a condemnee challenging a taking must show evidence of
“‘physical entry by the condemnor [or], a physical ouster of the owner [or], a legal interference
with the physical use, possession or enjoyment of the property or a legal interference with the
owner’s power of disposition of the property.'” Id. at 321 n.5 (quoting City of Buffalo v. J.W.
Clement Co., 269 N.E.2d 895, 903 (N.Y. 1971)). Plainly stated, “[t]he simple approval of a
redevelopment plan can not be considered a deprivation of [a prospective condemnee’s]
constitutional rights” because “[o]nly when an individual has been deprived of property without
due process of law has he been injured in a constitutional sense.” Id. at 321. The court therefore
dismissed the plaintiff’s § 1983 claim, directing it to “take advantage of the adequate state
procedures” available to it. Id. at 322. Although, as plaintiffs emphasize, the language of Port
Chester Yacht Club focuses almost entirely on the plaintiff’s due process claim, it is clear from
the opinion that the plaintiff in that case was also seeking injunctive relief under the Fifth
Amendment’s Public Use Clause, and that the court dismissed that claim on ripeness grounds for
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 21 of 42
failure to pursue available state remedies. Id. at 319, 321.
Other decisions demonstrate that federal courts are reticent to adjudicate public
use claims until the taking is final. See, e.g., Wendy’s Int’l, Inc. v. City of Birmingham, 868
F.2d 433, 436 (11th Cir. 1989) (public use claims held unripe because the likelihood that the
plaintiffs’ property would be confiscated had “not yet matured into a credible certainty;” since
the redevelopment plan at issue obligated the developer to attempt to reach negotiated
settlements with property owners, the threat of condemnation “simply [wa]s too attenuated to stir
up an actual controversy.”); Frempong-Atuahene v. Redevelopment Auth. of City of
Philadelphia, No. 98-0285, 1999 WL 167726, at *3 (E.D. Pa. Mar. 25, 1999) (because plaintiff’s
public use claims could be vindicated by a favorable outcome in a pending state court action,
plaintiff’s federal claims were not ripe for federal review), aff’d mem., 211 F.3d 1261 (3d Cir.
2000); Hemperly v. Crumpton, 708 F. Supp. 1247, 1250 (M.D. Ala. 1988) (public use claim held
not ripe for disposition where state condemnation proceedings had not yet been initiated);
Eddystone Equipment and Rental Corp. v. Redevelopment Authority of Delaware County, Civ.
A. No. 87-8246, 1988 WL 52082, *2 (E.D. Pa. May 17, 1988) (citing Williamson County for the
proposition that § 1983 claim challenging taking on public use grounds “would not be ‘ripe’
before the state court rendered final approval of the condemnation.”), aff’d mem., 862 F.2d 307
(3d Cir. 1988). See also Hancich v. Gopoian, 815 F.2d 883, 884 (2d Cir. 1987) (issue of whether
decrease in mobile home’s resale value due to eviction from lot would constitute a taking of
plaintiff’s property without due process held premature where no eviction order had yet been
entered in state court); Woodfield Equities, L.L.C., 357 F. Supp. 2d at 632 (holding that
Village’s decision to condemn the property at issue was not “a final action” because the
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 22 of 42
21 The court in Rosenthal & Rosenthal gave short shrift to the defendants’ abstention
argument, stating simply that it saw “no need to abstain in deference to possible state
proceedings filed after the commencement of this action.” 605 F. Supp. at 615.
condemnation still be had to be approved by the Appellate Division under EDPL § 207). These
holdings are consistent with general ripeness jurisprudence. As explained above, when the
events alleged in a plaintiff’s cause of action have not yet occurred or are not certain to occur, a
federal court is precluded from exercising subject matter jurisdiction because a real case or
controversy does not exist for purposes of Article III. See Auerbach, 136 F.3d at 108.
In opposition, plaintiffs cite Rosenthal & Rosenthal Inc. v. N.Y. State Urban Dev.
Corp., 605 F. Supp. 612 (S.D.N.Y. 1985), aff’d, 771 F.2d 44 (2d Cir. 1985) (per curiam), and
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984), in which the courts dismissed public use
claims on the merits, with little or no discussion of the ripeness issue. In Rosenthal & Rosenthal,
the court found – with scant analysis – that the plaintiffs’ suit to enjoin condemnation of their
properties was ripe for review because the redevelopment project at issue had been approved by
the Board of Estimate, the ESDC had published its Determination and Findings, and the
condemnation was “imminent,” notwithstanding potential delays due to the pendency of state
proceedings challenging the project, which had been filed after commencement of the federal
action. Id. at 614-15. Explaining that “[t]he federal courts remain available for challenges to
truly private or truly irrational takings,”21 the court proceeded to dismiss the case for failure to
state a cause of action, holding that the plaintiffs could not demonstrate that no public purpose
existed for the project. Id. at 619.
In Midkiff, the plaintiffs challenged the constitutionality of the Hawaii Land
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 23 of 42
22 The Ninth Circuit reversed, holding that the Hawaii Land Reform Act violated the
public use clause (see 702 F.2d at 798), and the Supreme Court reversed that decision,
concluding that the statute did not violate the Fifth Amendment’s public use requirement. See
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984). Again, neither court addressed the issue
of ripeness.
Reform Act, which allowed the State to use the power of eminent domain to condemn certain
residential land and then sell it to the residential lessees. See Midkiff v. Tom, 483 F. Supp. 62
(D. Haw. 1979). The plaintiffs brought suit under the Fifth Amendment’s public use clause, and
the district court framed the issue as “limited in scope to the question of whether the plaintiffs
were denied substantive due process.” Id. at 65. Explaining that the court’s only inquiry was to
determine whether the statute furthered “the health, safety, morals, or general welfare of the
people of Hawaii,” and whether “the means chosen to accomplish that object are rational and not
in bad faith,” the court found the law constitutional on its face as “within reach of the police
power.” Id. at 67. At the time Midkiff was filed in federal district court, no condemnation
actions had yet been filed in the state courts. See Midkiff v. Tom, 702 F.2d 788, 789 n.1 (9th
Cir. 1983). Nonetheless, no party raised the issue of ripeness and the court did not consider that
These cases, as well as the others cited in plaintiffs’ brief, confirm the principle
that the pertinent question for ripeness purposes is whether the challenged condemnation is final,
imminent, or inevitable. In Midkiff, although condemnation proceedings had not been
commenced, the state had made the statutorily required finding that the acquisition of the lands
in question would further the statute’s public purposes and had ordered the landowners to submit
to compulsory arbitration with their lessees for the purpose of determining the prices at which
the properties would be sold. Id. at 234. Thus, under Hawaii’s law, it was inevitable that the
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 24 of 42
23 In 99 Cents Only Stores, the municipality later denied any intention to reinitiate
condemnation proceedings and in fact took significant affirmative and irreversible steps toward
landowners eventually would be forced to surrender their property. Likewise, the court in
Rosenthal & Rosenthal characterized the condemnations at issue in that case as “imminent.” 605
F. Supp. at 615. See also Berman v. Parker, 348 U.S. 26, 28-30 (1954) (upholding
constitutionality of the District of Columbia Redevelopment Act of 1945, which was authorized
by Congress to eliminate blight, prior to the commencement of condemnation proceedings
without addressing ripeness issue); Aaron v. Target Corp., 269 F. Supp. 2d 1162, 1176 (E.D.
Mo. 2003) (granting temporary restraining order enjoining state condemnation proceedings and
holding that public use claim was ripe for review because the pending state court action
represented “a manifest and palpable threat that the Properties will be taken in violation of the
Public Use Clause of the Fifth and Fourteenth Amendments.”), rev’d on Younger abstention
grounds, 357 F.3d 768 (8th Cir. 2004); Cottonwood Christian Ctr. v. Cypress Redevelopment
Agency, 218 F. Supp. 2d 1203, 1215-16 (C.D. Ca. 2002) (granting church’s motion for
preliminary injunction against city’s condemnation proceedings, where injunction was
authorized under the Religious Land Use and Institutionalized Persons Act and plaintiff had
already been denied a conditional use permit for church facility construction); 99 Cents Only
Stores v. Lancaster Dev. Agency, 237 F. Supp. 2d 1123, 1127 (C.D. Ca. 2001) (granting
preliminary injunction to enjoin a threatened taking under a city ordinance authorizing
condemnation, even though no condemnation proceeding had begun, where there was a
“reasonable likelihood” that the municipality would initiate condemnation proceedings in the
future), appeal dismissed on mootness grounds, 60 Fed. Appx. 123 (9th Cir. 2003).23
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 25 of 42
the implementation of an alternate plan. 60 Fed. Appx. at 125. The Ninth Circuit therefore
dismissed the appeal as moot. Id. It is impossible to know whether the district court’s injunction
was the motivating factor behind the municipality’s decision to abandon its initial plan, or
whether the condemnation would never have taken place in any event.
As all of the above cases reveal, however, the notion of “finality” or “imminence”
in this context is amorphous, open to interpretation, and at any rate highly fact-specific. Indeed,
two cases decided the same year by different judges on the same court – Rosenthal & Rosenthal
and Port Chester Yacht Club – reached seemingly contradictory conclusions in similar factual
scenarios. This court’s research uncovered no opinion from any jurisdiction citing to both of
these cases. Moreover, as the court stressed in Didden v. Village of Port Chester, 304 F. Supp.
2d 548, 569 (S.D.N.Y. 2004), local eminent domain procedures differ materially among
jurisdictions; as a result, cases from other jurisdictions have limited precedential value.
It is against this backdrop of conflicting and frequently opaque authority that this
court must determine whether the condemnations at issue in this case are sufficiently final or
imminent to satisfy Article III’s ripeness requirement. However, a separate line of cases, briefly
mentioned by plaintiffs and discussed at oral argument, enters into the equation. In Didden, 304
F. Supp. 2d 548, the plaintiff landowners sought injunctive relief staying a condemnation
proceeding that the Village of Port Chester had commenced in 2003 in connection with a largescale
redevelopment project. The court found the plaintiffs’ § 1983 claims barred by the
applicable three-year statute of limitations. It explained that federal law dictates when a federal
cause of action accrues and that “a cause of action under 42 U.S.C. § 1983 accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the action.” Id. at 558.
The court determined that the plaintiffs “had reason to know of the basis of their injury as soon
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 26 of 42
as the [Port Chester Board of Trustees] announced its public purpose finding [in July 1999]” and
the Village authorized a land disposition agreement with the developer covering the use of
eminent domain and finding a legitimate public purpose for condemnation as a means of
acquiring property for the project. Id. The court rejected the plaintiffs’ argument that they did
not suffer an injury until four years later, when the developer allegedly attempted to exact a cash
payment from them on threat of condemnation. Id. at 559. Instead, it found the plaintiffs’
claims time-barred on the ground that they “were able to, and did in fact, contemplate Port
Chester’s actions in 1999.” Didden v. Vill. of Port Chester, 322 F. Supp. 2d 385, 389 (S.D.N.Y.
2004) (dismissing amended complaint on same grounds), aff’d, 173 Fed. Appx. 931, 2006 WL
898093 (2d Cir. 2006), cert. denied, __ S. Ct. ___, 2007 WL 91474 (Jan. 16, 2007). It stands to
reason that if the plaintiffs’ claims accrued, for statute of limitations purposes, at the time of the
government entity’s public purpose finding, then their claims must have been ripe at that point.
Indeed, although ripeness was not an issue in Didden, courts often use the terms
“ripeness” and “accrual” interchangeably. See, e.g., W.J.F. Realty Corp. v. Town of
Southampton, 351 F. Supp. 2d 18, 23 (E.D.N.Y. 2004) (explaining, in a regulatory takings case,
that “[a] claim under section 1983 is not ripe – and a cause of action under section 1983 does not
accrue – until” the state denies just compensation.); Williams v. Dow Chem. Co., No. 01 Civ.
4307, 2004 WL 1348932, at *7 (S.D.N.Y. June 16, 2004) (“Fully ripened claims having accrued
more than three years prior to the institution of this suit, the section 349 and 350 claims [under
the New York General Business Law] are barred by the statute of limitations.”); Argonaut
P’ship, L.P. v. Bankers Trustee Co., No. 96 CIV. 1970, 96 CIV. 2222, 1997 WL 45521, at *5
(S.D.N.Y. Feb. 4, 1997) (“This action meets the first prong of the ripeness inquiry [under Abbott
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 27 of 42
24 The ESDC defendants offer a few examples of development projects that stalled or
were abandoned after the condemning authority issued its Determination and Findings. (See
Memorandum of Law of ESDC Defendants in Support of Their Motion to Dismiss the Amended
Complaint, dated Jan. 19, 2007, at 14-15.) However, they do not suggest that there is any danger
of the Atlantic Yards Project meeting a similar fate.
Labs. and its progeny]: it is now fit for review because plaintiffs’ claim has accrued and its
viability does not depend upon the occurrence of any contingent event.”). This makes sense, as
both inquiries center around the timing and significance of the plaintiff’s injury. See Pearl v.
City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (explaining that a claim accrues for statute
of limitations purposes “when the plaintiff knows or has reason to know of the injury which is
the basis of [her] action.”) (internal quotation marks omitted); Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002) (“The purpose of the ripeness
requirement is to ensure that a dispute has generated injury significant enough to satisfy the case
or controversy requirement of Article III of the U.S. Constitution.”).
Assessing this case on its unique facts, as the court must, I find plaintiffs’ injuries
sufficiently concrete to be considered ripe for judicial review. To be sure, the ESDC cannot
acquire ownership of plaintiffs’ properties until it has commenced an Article 4 proceeding in
state court, and any number of things – foreseeable or not – could happen to derail the Project in
the meantime.24 However, under Didden, plaintiffs’ claims accrued when the ESDC issued its
final Determination and Findings of public use, benefit or purpose pursuant to EDPL §
204(B)(1). Although the Determination and Findings effects no immediate change in plaintiffs’
ability to use their properties, defendants do not point to any further legal or administrative
impediments to the condemnations at issue in this case.
The EDPL § 207 proceeding currently pending in state court cannot eliminate or
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 28 of 42
25 Only one of the named plaintiffs in the instant case, Joseph Pastore – a rent-controlled
tenant who lives at 473 Dean Street – resides in one of the buildings at issue in the state case.
(See Am. Compl. ¶ 20.)
26 The petition does allege that the ESDC’s exercise of eminent domain to facilitate the
construction of “private roads” is unconstitutional (see Declaration of Douglas M. Kraus, Esq.,
dated Jan. 19, 2007, Ex. A ¶ 11), but it does not invoke the Fifth Amendment’s public use clause
explicitly. Since the preceding paragraph refers to the New York Constitution (specifically, Art.
1 § 7(c), regarding private roads and the right to a “jury of freeholders”), the petition does not
appear to assert any claims under the federal constitution.
lessen all of plaintiffs’ injuries in this case, as the petitioners in the state case are noncondemnees
and have narrowly tailored their petition to seek only rejection of the Determination
and Findings “with respect to the acquisition of 624 Pacific Street and 473 Dean Street
Brooklyn”25 and relocation into equivalent housing. On its face, the state petition does not
challenge the condemnations on public use grounds. (See Declaration of Douglas M. Kraus,
Esq., dated Jan. 19, 2007, Ex. A ¶ 3 (stating, “Petitioners believe that as non-condemnees, they
lack standing in this proceeding to challenge the condemnation itself.”)26
Little need be said about the second prong of the Abbott Labs test, i.e., the
potential hardship to plaintiffs. Clearly, the proposed condemnations, and the consequent
dispossession of plaintiffs from their homes and businesses, pose a significant threat of harm.
In short, there is a real dispute between the parties. I therefore respectfully
recommend that defendants’ motions to dismiss this case for lack of ripeness be denied.
C. Abstention
In the alternative, defendants urge this court to abstain from exercising
jurisdiction in this case, either under Younger v. Harris, 401 U.S. 37, 45 (1971), or Burford v.
Sun Oil Co., 319 U.S. 315 (1943). Younger established the principle that federal courts should
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 29 of 42
not enjoin or interfere with ongoing state proceedings. Burford, on the other hand, requires a
federal court to dismiss a case involving an area of traditional state power when the exercise of
federal jurisdiction would have a disruptive effect on “state efforts to establish a coherent policy
with respect to a matter of substantial public concern.” Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 814 (1976).
Underlying both abstention doctrines is a concern for comity and federalism
expressed in “the belief that the National Government will fare best if the States and their
institutions are left free to perform their separate functions in their separate ways.” Younger,
401 U.S. at 44. See also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996) (explaining
that a court’s decision to abstain “must reflect ‘principles of federalism and comity.'”) (quoting
Growe v. Emison, 507 U.S. 25, 32 (1993)); Spargo v. N.Y. State Comm’n on Judicial Conduct,
351 F.3d 65, 74-75 (2d Cir. 2003) (noting that Younger abstention is a prudential limitation on
the court’s exercise of jurisdiction “grounded in equitable considerations of comity” and “serves
the vital purpose of ‘reaffirm[ing] the competence of the state courts,’ and acknowledging the
dignity of states as co-equal sovereigns in our federal system.”) (citing Diamond “D” Constr.
Corp. v. McGowan, 282 F.3d 191, 197 (2d Cir. 2002)), cert. denied, 541 U.S. 1085; Youell v.
Exxon Corp., 48 F.3d 105, 108 (2d Cir.) (Burford and Younger “extricate the federal courts from
situations where the assertion of jurisdiction would intrude into the state courts’ proper
domain.”), vacated on other grounds, 516 U.S. 801 (1995). However, because “federal courts
have a ‘virtually unflagging’ obligation to exercise the jurisdiction given them” (Colorado River,
424 U.S. at 817), abstention “is the narrow exception, not the rule.” Cecos Int’l, Inc. v. Jorling,
895 F.2d 66, 70 (2d Cir. 1990) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 30 of 42
460 U.S. 1, 14 (1983)). See also County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188
(1959) (“the doctrine of abstention . . . is an extraordinary and narrow exception to the duty of a
District Court to adjudicate a controversy properly before it. Abdication of the obligation to
decide cases can be justified under this doctrine only in the exceptional circumstances where the
order to the parties to repair to the state court would clearly serve an important countervailing
I am not persuaded that the Younger doctrine applies here. In Middlesex County
Ethics Commission v. Garden State Bar Association, 457 U.S. 423, 432 (1982), the Supreme
Court established a three-part test for Younger abstention in non-criminal state proceedings: (1)
whether the state proceedings constitute ongoing state judicial proceedings; (2) whether the state
proceedings implicate important state interests; and (3) whether state procedures are available
that allow the plaintiffs to raise their federal claims in state court. If all three factors are
satisfied, the district court should abstain from exercising federal jurisdiction unless the state
proceeding was commenced in bad faith, was filed for the purpose of harassing the plaintiffs, or
if other unusual circumstances warrant the court’s intervention. See id. at 435. For Younger
abstention, the key question is whether “there is an ongoing state proceeding involving an
important state interest that provides the federal plaintiff with an adequate opportunity for
judicial review of its federal . . . claims.” Temple of Lost Sheep Inc. v. Abrams, 930 F.2d 178,
182 (2d Cir. 1991). Moreover, it is imperative that the ongoing state proceedings be “‘judicial in
nature.'” New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350,
361 (1989) (“NOPSI”) (quoting Middlesex County, 457 U.S. at 433-34). See also Marisol A. by
Forbes v. Giuliani, 929 F. Supp. 662, 688 (S.D.N.Y. 1996) (“[t]he existence of an ongoing state
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 31 of 42
27 In addition, even if the present action is deemed to toll the limitations period for filing
a § 207 claim in state court, it is well-settled that “whether the federal plaintiff has an
‘opportunity’ to have the issue addressed in state court for Younger purposes does not turn on
whether the plaintiff could file a new complaint in state court that alleged [his or] her federal
claims.” Habich v. City of Dearborn, 331 F.3d 524, 531 (6th Cir. 2003).
28 Defendants assert that the five stages of the EDPL constitute a single, unitary
proceeding, the focus of which is to determine, through judicial means, whether the condemnor’s
decision should be validated as being in accordance with the law, and what compensation should
court proceeding is crucial to this inquiry.”).
In the instant case, there is no pending state court proceeding in which plaintiffs
will have the opportunity to present the federal claims raised in the instant complaint. Plaintiffs
did not commence a § 207 proceeding in the Appellate Division and their time to do so has
expired.27 Although the ESDC has stated its intention to commence an Article 4 proceeding to
condemn the properties at the appropriate time, that future action does not justify a refusal to
assume jurisdiction under Younger. See Cecos Int’l, Inc., 895 F.2d at 72 (“A federal court need
not stay its jurisdictional hand when there is no state action pending at the time the federal suit is
filed, even if there is a substantial likelihood that a state proceeding will be instituted in the
future to vindicate the state’s interests.”).
There is one ongoing state court proceeding contesting the ESDC’s Determination
and Findings with respect to two specific properties, but that proceeding will not necessarily
address or resolve the claims plaintiffs assert in this matter, as the petitioners in the state case do
not challenge the condemnations. (See Declaration of Douglas M. Kraus, Esq., dated Jan. 19,
2007, Ex. A.) In short, this court’s consideration of plaintiffs’ claims would not interfere
directly with any pending state court proceedings.28 Accordingly, the action currently pending in
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 32 of 42
be paid if a taking occurs. (ESDC Mem. at 23 (citing Didden, 304 F. Supp. 2d at 564).) They
therefore argue that every stage of the EDPL is judicial in nature. Defendants’ argument is
misplaced. The EDPL is a single legislative scheme with sequential proceedings, some of which
are judicial and some of which are not. As described above, the first judicial proceeding takes
place if and when a prospective condemnee files a claim in the Appellate Division under EDPL §
207. Defendants have cited no case, and the court knows of none, that has extended Younger
abstention doctrine to non-judicial proceedings such as a public hearing of the nature prescribed
in EDPL § 201.
Didden is distinguishable because, at the time of the court’s decision in that case,
the state condemnation proceeding was at the Article 4 stage. Didden, 304 F. Supp. 2d at 565.
There can be no doubt that an Article 4 proceeding is “judicial in nature” and that, had the
district court not abstained, it would have interfered directly with “ongoing state judicial
proceedings” in which the plaintiffs could, at an earlier stage, have raised their federal claims. In
the instant case, by contrast, there is no state proceeding pending that can clearly be considered
“judicial in nature” and in which plaintiffs will have the opportunity to assert their federal
Defendants also cite Spargo, 351 F.3d 65, for the proposition that administrative
proceedings that have “fact-finding” as their “primary mission” are as deserving of comity as
pending state judicial proceedings. Spargo involved a First Amendment challenge to three New
York rules of judicial conduct, where the plaintiff – an elected New York State judge – sought to
enjoin pending disciplinary proceedings commenced by the New York State Commission on
Judicial Conduct. The Second Circuit held that the district court should have abstained under
Younger, because the disciplinary proceedings afforded adequate opportunity for the plaintiff to
raise his constitutional claims before a “competent state tribunal.” Id. at 73, 77 (citing
Middlesex County Ethics Comm’n, 457 U.S. at 437). The Article 2 proceedings in this case are
not analogous, as there is no proceeding currently pending before a court or tribunal in which the
plaintiffs may have their federal claims addressed.
state court cannot trigger abstention under Younger.
However, I do find Burford abstention appropriate in this case. Under Burford:
Where timely and adequate state-court review is available, a
federal court sitting in equity must decline to interfere with the
proceedings or orders of state administrative agencies: (1) when
there are ‘difficult questions of state law bearing on policy
problems of substantial public import whose importance
transcends the result in the case then at bar’; or (2) where the
exercise of federal review of the question in a case and in similar
cases would be disruptive of state efforts to establish a coherent
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 33 of 42
policy with respect to a matter of substantial public concern.
NOPSI, 491 U.S. at 361 (quoting Colorado River, 424 U.S. at 814) (emphasis added). Burford
abstention “enables federal courts to refrain from becoming involved with state policymaking
and enforcement procedures in complex areas which are primarily the state’s concern.” Soc’y
for Good Will to Retarded Children v. Cuomo, 652 F. Supp. 515, 523 (E.D.N.Y. 1987). See also
Surowitz v. N.Y. City Employees’ Ret. Sys. 376 F. Supp. 369, 376 (S.D.N.Y. 1974) (Burford
abstention “permits a federal court, in the exercise of its discretion, to relinquish jurisdiction
where necessary to avoid needless conflict with the administration by a state of its own affairs.”).
A decision to abstain under Burford must be “based on a careful consideration of
the federal interests in retaining jurisdiction over the dispute” and ultimately represents a
determination “that the State’s interests are paramount and that [the] dispute would best be
adjudicated in a state forum.” Burford, 319 U.S. at 327. As the Supreme Court explained in
Quackenbush, 517 U.S. at 727-28, there is no “formulaic test for determining when dismissal
under Burford is appropriate.” Rather, the court must consider “the federal interests in retaining
jurisdiction over the dispute” as well as “the competing concern for the ‘independence of state
action.'” Id. (quoting Burford, 319 U.S. at 334). “This equitable decision balances the strong
federal interest in having certain classes of cases, and certain federal rights, adjudicated in
federal court, against the State’s interests in maintaining uniformity in the treatment of an
essentially local problem.” Id. (internal quotes and citations omitted). See also NOPSI, 491
U.S. at 363 (question under Burford is whether adjudication in federal court would “unduly
intrude into the processes of state government or undermine the State’s ability to maintain
desired uniformity”). Where the state’s interest in carrying out its domestic policy predominates,
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 34 of 42
and proceedings in federal court “are likely to add nothing to, or even detract from, the state’s
well organized system of regulation and review,” the district court may abstain “without finding,
in addition, a state issue or unclarity in the pertinent state law.” Arnav Indus., Inc. v. Dreskin,
551 F. Supp. 461, 463-64 (S.D.N.Y. 1982) (citing BT Inv. Managers, Inc. v. Lewis, 559 F.2d
950, 955 (5th Cir. 1977), aff’d in part and vacated in part on other grounds, 447 U.S. 27 (1980)).
In determining whether to invoke Burford abstention, the Second Circuit has
outlined a number of factors to be considered, including “[1] the degree of specificity of the state
regulatory scheme, [2] the necessity of discretionary interpretation of state statutes, and [3]
whether the subject matter of the litigation is traditionally one of state concern.” Planned
Parenthood of Dutchess-Ulster, Inc. v. Steinhaus, 60 F.3d 122, 127 (2d Cir. 1995) (citing
Bethphage Lutheran Serv., Inc. v. Weicker, 965 F.2d 1239, 1243 (2d Cir. 1992)). These three
factors “should inform the deliberation of a court,” but all three need not be satisfied. Feiwus v.
Genpar, Inc., 43 F. Supp. 2d 289, 295 (E.D.N.Y. 1999). Rather, “[u]nder Burford and its
progeny, a finding that the case at bar implicates the first and either of the second or third
factors” weighs in favor of “finding that the state[‘s] interest in adjudicating the case in its own
forum outweighs the federal interest in retaining jurisdiction.” Id. (emphasis added).
Here, the first and third factors weigh in favor of abstention. First, New York’s
EDPL sets forth a highly specific and comprehensive mechanism for condemnees to challenge
any aspect of a condemnation in a state-created system of administrative and judicial review.
The statute itself recites that its purpose is “to provide the exclusive procedure by which property
shall be acquired by exercise of the power of eminent domain in New York state.” EDPL § 101.
See also Jackson, 494 N.E.2d at 436 (explaining that the EDPL “was enacted in 1977 to supplant
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 35 of 42
a mosaic of more than 150 scattered provisions with a uniform procedure.”). This court must
respect the state’s concern for rationalizing and centralizing its eminent domain laws. See Rucci
v. Cranberry Twp., Pa., 130 Fed. Appx. 572, 577, 2005 WL 1111764, at *5 (3d Cir. 2005)
(explaining that eminent domain is a “distinctly state-law matter,” as evidenced by
Pennsylvania’s “extensive Eminent Domain Code” which “supplies a complete and exclusive
procedure and law to govern all condemnations of property for public purposes and the
assessment of damages therefor. . . .”) (internal quotes and citation omitted); Coles v. City of
Philadelphia, 145 F. Supp.2d 646, 652 (E.D. Pa. 2001) (abstaining under Burford where state
statute declared that it was intended “to provide a complete and exclusive procedure and law to
govern all condemnations of property for public purposes.”), aff’d, 38 Fed. Appx. 829 (3d Cir.
Second, it is indisputable that eminent domain is traditionally a matter of local
concern and that the state has a vital interest in establishing a coherent policy with respect to it.
See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 26, 29 (1959) (explaining
that “‘[t]he fundamental fact is that eminent domain is a prerogative of the state, which on the
one hand, may be exercised in any way that the state thinks fit, and, on the other, may not be
exercised except by an authority which the state confers'” and holding that federal courts should
abstain from deciding eminent domain cases due to the need to maintain “harmonious
federal-state relations in [] matter[s] close to the political interests of a State.”) (quoting
Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 257 (Holmes, J.,
dissenting)). See also United States v. Certain Lands in City of Louisville, Jefferson County,
Ky., 78 F.2d 684, 687 (6th Cir. 1935) (“[T]here is nothing in the Fourteenth Amendment to
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 36 of 42
prevent a state from exercising the power of eminent domain to carry into effect a public policy
which, in the light of the needs and exigencies of the state, may be regarded as promotive of the
public interest.”). Indeed, courts have consistently viewed the exercise of eminent domain
power as an issue in which the state has an overriding interest. See Emeryville Redevelopment
Agency v. Clear Channel Outdoor, No. C 06-01279, 2006 WL 1390561, at *4-5 (N.D. Cal. May
22, 2006) (abstaining from condemnation case in order to avoid “needlessly interfer[ing]” with
the state’s regulatory scheme; case required the court “to balance the state’s policy for protecting
the environment with the state’s interest in addressing the housing needs of its growing
population,” and “[c]omity requires that the federal courts allow the state courts to make such
policy determinations.”); Mateo v. Phillips, 361 F. Supp. 2d 328, 330 (S.D.N.Y. 2005)
(dismissing case on Younger abstention grounds and noting that “all eminent domain
proceedings . . . implicate important state interests.”); Frempong-Atuahene, 1999 WL 167726, at
*4 (stating, in condemnation case, that the “essentially local character of this dispute and the
availability of constitutional remedies in state court argue strongly against federal intervention”);
Dickie v. City of Tomah, 782 F. Supp. 370, 374 (N.D. Ill. 1991) (describing eminent domain as
“a matter of uniquely local concern.”); Broadway 41st St. Realty Corp. v. N.Y. State Urban Dev.
Corp., 733 F. Supp. 735, 742 (S.D.N.Y. 1990) (explaining, as part of Younger abstention
inquiry, that “[d]ue to the sensitive nature of the state’s power to condemn the land of its
citizens, eminent domain has remained a local political issue.”); Dash v. Frech, No. 88-C-5001,
1989 WL 75422, at *3 (N.D. Ill. June 20, 1989) (holding that the court was “compelled by the
principles of comity and federalism to abstain from interfering with the eminent domain
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 37 of 42
29 Plaintiffs’ reliance on Minnich v. Gargano, No. 00 Civ. 7481, 2001 WL 46989
(S.D.N.Y. Jan. 18, 2001) is misplaced. In Minnich, the plaintiffs alleged that sections of the
EDPL were unconstitutional under the Fourteenth Amendment’s due process clause.
Specifically, they argued that the EDPL (which has since been amended) was unconstitutional
for failure to require personal notice of the public hearing, the Determination and Findings, and
the property owner’s right to appeal, and for failure to provide an adversarial hearing or a proper
forum for the property owner to be heard. Id. at *6. Acknowledging that “the eminent domain
power is traditionally an area of state concern,” the district court declined to abstain under
Burford, holding that “the issues of due process involved here are overriding issues of federal
constitutional concern.” Id. at *5. The instant case is distinguishable in that it presents no direct
facial challenge to any provision of the EDPL. See Dittmer v. County of Suffolk, 146 F.3d 113,
117 (2d Cir. 1998) (Burford abstention not warranted in a facial challenge to the constitutionality
of a state statute, which is the type of controversy “federal courts are particularly suited to
At any rate, the Second Circuit vacated the preliminary injunction granted in
Minnich, holding that plaintiff Brody did not suffer any actual or threatened injury and thus
lacked standing to bring his claims. Brody v. Vill. of Port Chester, 261 F.3d 288, 290 (2d Cir.
2001). Accordingly, the Second Circuit had no reason to review the Burford abstention
30 At oral argument, plaintiffs’ counsel all but conceded this point. (See Tr. at 37 (“The
third factor is, you know, certainly a factor that militates towards the defendant[s’] argument.”))
proceedings which are uniquely a matter of local concern.”)29
The Supreme Court echoed this view in Kelo v. City of New London, 545 U.S.
469, 125 S. Ct. 2655 (2005), in which it stressed the “strong theme of federalism” in the Court’s
takings jurisprudence, “emphasizing the ‘great respect’ that we owe to state legislatures and state
courts in discerning local public needs.” Id., 125 S. Ct. at 2664 (citing Hairston v. Danville &
Western R.R. Co., 208 U.S. 598, 606-07 (1908)). See also San Remo, 125 S. Ct. at 2507 (noting
that “state courts undoubtedly have more experience than federal courts do in resolving the
complex factual, technical, and legal questions related to zoning and land-use regulations.”)30
Plaintiffs have good reasons for preferring federal court over state court, not the
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 38 of 42
31 As one court has explained, “under the EDPL, the [condemning authority] holds
nearly all the cards, with any aggrieved party having little right to participate in the initial
determination and limited right to judicial review thereafter.” Buffalo S. R.R. Inc. v. Vill. of
Croton-on-Hudson, 434 F. Supp. 2d 241, 254 (S.D.N.Y. 2006) (citing Brody, 434 F.3d at
32 As a matter of public policy, the availability of discovery could reasonably be
expected to promote a full and robust public debate and enhance the likelihood of rational
decision-making. However, the constitutionality of the EDPL is not in question in this litigation,
and it is not the place of the federal courts to determine public policy in areas of state and local
concern such as eminent domain.
least of which is the lack of access to discovery in state court proceedings under the EDPL.31 As
defendants point out, allowing plaintiffs to do an end-run around the EDPL and instead litigate
their claims in federal court would provide incentive for forum shopping and thereby undermine
New York’s legislative scheme governing the exercise of eminent domain power. No
prospective condemnee, given the choice, would opt for narrow, on-the-record (yet
constitutionally adequate) review in the Appellate Division if all of the benefits of federal review
were freely available.32
The fact that plaintiffs have chosen not to commence an EDPL § 207 proceeding
in the Appellate Division is of no moment, since “the lack of a pending state court action creates
no preclusion of [Burford] abstention.” Coles v. Street, 38 Fed. Appx. 829, 831 (3d Cir. 2002)
(citing Eddystone Equip. and Rental Corp., 1988 WL 52082, at *1). See also Stoe v. Flaherty,
436 F.3d 209, 213 (3d Cir. 2006) (“the existence of an ongoing state proceeding is not inherent
in the nature of abstention. Burford, Pullman, and Thibodaux abstention, as well as other forms
of abstention, apply without regard to the existence of an ongoing proceeding.”) To the contrary,
Burford abstention “is appropriate [where] state review is available.” Coles, 38 Fed. Appx. at
831 (emphasis added). Plaintiffs do not deny that state court review was available to them. In
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 39 of 42
33 As defendants point out, EDPL § 207 states that the “jurisdiction of the appellate
fact, plaintiffs confidently assert that state court review will remain available to them, under the
tolling provision of 28 U.S.C. § 1367(d), if this court dismisses their claims. Nor do plaintiffs
argue that the state courts are incompetent to decide their federal constitutional claims.
In Didden, 304 F. Supp. 2d 548, the court held that the plaintiffs had waived their
right to challenge the public purpose of the redevelopment project at issue by failing to bring
their claims in state court within the exclusive thirty-day limit set forth in EDPL § 207. The
court stated:
Even if Plaintiffs could have made a showing of non-public use, it
is too late for them to do so now. Port Chester issued its public
purpose findings in July 1999. Under the EDPL, Plaintiffs and
others were allowed thirty days to challenge the public purpose
finding in state court. . . . Plaintiffs failed to do so. Plaintiffs do
not (and cannot) allege that they failed to receive notice of Port
Chester’s declaration of public purpose. To allow Plaintiffs to
challenge the public purpose of the Redevelopment Project now
would contradict the express provisions of the EDPL, and
undermine New York’s constitutional unitary scheme for the
condemnation of property.
Id. at 560 (emphasis added). Didden is correct on this point; as the Second Circuit has
explained, “‘[a] claimant cannot be permitted to let the time for seeking a state remedy pass
without doing anything to obtain it and then proceed in federal court on the basis that no state
remedies are open.'” Vandor, Inc, 301 F.3d at 39 (quoting Gamble v. Eau Claire Co., 5 F. 3d
285, 286 (7th Cir. 1993)).
Plaintiffs attempt to circumvent this problem by bringing a supplemental state law
claim under EDPL § 207.33 That effort is unavailing. It is true that plaintiffs’ EDPL claim forms
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 40 of 42
division of the supreme court shall be exclusive.” This would seem to strip the federal courts of
jurisdiction over the state law claim. See Town of Haverstraw v. Barreras, 361 F. Supp. 2d 317,
319 (S.D.N.Y. 2005) (“challenges to condemnations under [Article 4 of the] EDPL are within
the exclusive jurisdiction of New York state courts.”) (citing EDPL §§ 207(B), 501(B); Sun Co.
v. City of Syracuse Indus. Dev. Agency, 602 N.Y.S.2d 456, 457 (4th Dep’t 1993)). However, as
plaintiffs correctly assert and defendants acknowledge, state law cannot dictate whether or when
a federal court may assert jurisdiction over a supplemental state law claim. (See Plaintiffs’
Opposition to Defendants’ Motion to Dismiss Supplemental EDPL Claims, dated Jan. 26, 2007,
at 2 (citing cases); see also Memorandum of Law of ESDC Defendants in Support of Their
Motion to Dismiss the Amended Complaint, dated Jan. 19, 2007, at 10 n.6 (recognizing that
“‘there would be substantial doubt as to the constitutionality of a state law purporting to preclude
. . . pendent jurisdiction over a state-created claim.'” (quoting TBK Partners v. Western Union
Corp., 675 F.2d 456, 460 n.3 (2d Cir. 1982)). Moreover, as plaintiffs argue, this provision is
more properly interpreted as making clear that claims under EDPL § 207 must be brought in the
Appellate Division as opposed to New York Supreme Court or another state court.
part of the same case or controversy as plaintiffs’ claim under the Fifth Amendment’s public use
clause. See 28 U.S.C. § 1367 (stating that “in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States Constitution.”) However, in
light of my recommendation that this court dismiss plaintiffs’ federal claims on Burford
abstention grounds, their supplemental state law claim may be dismissed under 28 U.S.C. §
1367(c)(3), which permits district courts to decline to exercise supplemental jurisdiction over a
claim if it has “dismissed all claims over which it has original jurisdiction.” Put another way,
plaintiffs cannot avoid the consequences of Burford abstention by bootstrapping a § 207 claim
onto their federal claims.
In short, this action presents important public policy concerns and is essentially
local in nature. Because the state’s interest in adjudicating this case in its own forum outweighs
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 41 of 42
the federal interest in retaining jurisdiction, I respectfully recommend that this court abstain
under Burford and dismiss plaintiffs’ amended complaint without prejudice.
Plaintiffs’ Amended Complaint raises serious and difficult questions regarding the
exercise of eminent domain under emerging Supreme Court jurisprudence, many of which were
explored in some detail at oral argument. However, in light of my recommendation that this
court abstain, it would be inappropriate to address plaintiffs’ claims on the merits.
For the foregoing reasons, I respectfully recommend that this action be dismissed
on Burford abstention grounds without prejudice. Any objections to this Report and
Recommendation must be filed with the Clerk of Court, with courtesy copies to Judge Garaufis
and to my chambers, within ten (10) business days. Failure to file objections within the specified
time waives the right to appeal the district court’s order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72, 6(a), 6(e).
Dated: Brooklyn, New York
February 23, 2007
Respectfully submitted,
United States Magistrate Judge
Case 1:06-cv-05827-NGG-RML Document 83 Filed 02/23/2007 Page 42 of 42

Magistrate: Throw Out Atlantic Yards Lawsuit