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Slicing and Dicing the Daily News Editorial on the Atlantic Yards Eminent Domain Case
The Court can't rule for Ratner, the respondent on the case is the Empire
State Development Corporation. But, the misguided, blindingly biased editorialist
sticks his foot in it as he argues that a court victory for the ESDC would be
a court victory for Ratner rather than the public, which is precisely the overarching
point made by the legal briefs.
And now a paragraph by paragraph dissection of the Daily News' putrid
Saturday editorial on the eminent domain brief filed by the Appellants in Goldstein
et al. v. Urban Development Corporation d/b/a Empire State Development Corporation
(our remarks in bold, the editorial in italics):
for Ratner: Court of Appeals must not rewrite eminent-domain rules on Atlantic
After losing 25 state and federal court cases against the Atlantic Yards development
in Brooklyn, opponents of the project have launched their most insidious and potentially
destructive legal battle to date.
There have been five cases overall brought against the Atlantic Yards
project or aspects of it. That would make a 25-0 score impossible.
So desperate are they to block construction of an arena and 6,400 housing
units on long-fallow land, they've asked the Court of Appeals to radically reinterpret
the state Constitution.
It's the editorialist who sounds desperate. If the land were actually
“fallow” there wouldn’t be any eminent domain case. Those who filed the suit are
asking the Court to allow them to keep their homes and businesses from being seized
by New York State. Nothing more, and nothing less than that. And, actually, they've
asked the Court simply to interpret the State Constitution, amongst other questions
offered to the Court.
The court must reject the petition - must resist the temptation to establish,
in an act of sweeping judicial activism, dramatically different standards for
the use of emiment [sic] domain.
Dramatically different standards than what? They are being asked to interpret
New York State's Constitution, which they've never been asked to do regarding
eminent domain. That is what the Court is supposed to do; it is hardly "activism."
It should respect the findings of the federal courts, which have ruled New
York's use of eminent domain to foster much-needed housing is well within the
bounds of the U.S. Constitution.
Actually the Supreme Court said, in its 2005 Kelo ruling that it is up
to the States to determine how they will handle eminent domain; specifically the
Court wrote: "We emphasize that nothing in our opinion precludes any State from
placing further restrictions on its exercise of the takings power. Indeed, many
States already impose "public use" requirements that are stricter than the federal
baseline. Some of these requirements have been established as a matter of state
If changes are needed in the law, the court should, in all modesty, recognize
that the Legislature is the venue for making them.
Ah yes, only our dysfunctional and compromised legislature should weigh
in on eminent domain. Actually, the brief filed explains how a change is not needed
to follow the State's Constitution, and the clause allowing eminent domain for
a "public use" can only be changed by a Constitutional Convention.
This is all common sense. What's the worry, then? That this seven-member panel
- newly headed by Chief Judge Jonathan Lippman - hinted in a February ruling that
it's itching to meddle with eminent domain.
Sorry, but common sense went out the window with this editorial's headline.
It is not common sense to say that the NY State Court of Appeals should treat
a serious Constitutional question as a frivolous question as the editorialist
suggests. And New York State, perhaps the leading abuser of eminent domain, needs
a high court ruling on its use or misuse.
Plus, the court has shown a worrisome willingness to establish state constitutional
standards that go far beyond the doctrines of the U.S. Supreme Court.
As it is their right and duty to interpret their state's Constitution.
That's what happened when Lippman wrongheadedly led the court into barring
police in New York from using GPS technology to track suspects without a warrant
- though federal authorities are free to employ the technology in surveillance.
In doing so, the court denied the NYPD an important aid in fighting crime and
To repeat that mistake would be a gross disservice.
Sounds like the Daily News is suggesting that Atlantic Yards
would be an important aid in fighting crime and terror, or that the ESDC should
be able to use GPS technology without a warrant. Or, uhm...what are they
Developer Bruce Ratner's ambitious plan calls for plowing $4 billion into
the neglected Prospect Heights neighborhood. Twenty-two blighted acres near Atlantic
and Flatbush Aves. would be transformed with thousands of apartments - including
2,250 criticially [sic] needed affordable units - commercial buildings, a school,
a health clinic and a new home for the Nets. The city would be the better for
Wrong. It's a $4.9 billion project (though how anybody would know what
it costs without even knowing what it looks like is quite a quandary). Ratner
would pay a very small percentage of that number. The arena would be a money loser.
No cost-benefit analysis of the project has been done. There is no guarantee that
any of the so-called "affordable" units would be built or any of the market units,
for that matter. Most of the "affordable" units would be out of reach of most
Brooklynites. The State's own study said that more households would face the risk
of secondary displacement than the number of "affordable" units proposed for construction.
Prospect Heights is not neglected, unless neglected means we don't have a billionaire's
playpen, a.k.a Barclays Center Arena, or that we just don't have enough luxury
condos. Whether or not the site is "blighted" under New York State's anything-goes
definition is still under dispute in court. But any honest broker that knows the
site knows that it wasn't blighted when Ratner started eyeing it. Heck, Bruce's
cousin, and Forest City Enterprises CEO, back in Cleveland called it a "great
piece of real estate." The commercial tower is on hold and may never happen,
the school is only if the city decides it wants a school (which it hasn't done
yet), the health clinic—if ever built—would be needed to serve the influx of 16,000
new residents into the Ratner enclave. It is true that there would be a new home
for the Nets, but how does a money-losing home for a lousy basketball team serve
Brooklynites, New Yorkers or the general public? It doesn't, though it does serve
Forest City Ratner.
Ratner has bought 85% of the land, but eminent domain may be needed for the
few holdouts - who, by law, would receive fair value.
Wrong. Ratner only owns or controls less than 40% of the land. Eminent
domain, actually, would be used for the entire site. And the so-called "hold outs"
would not receive "fair value" as the law only requires "just compensation"—whatever
the heck that is—in such a situation.
Not-in-my-back-yard naysayers have dogged the project with suit after suit
claiming the state is illegally giving away the store in subsidizing the project.
Each frivolous claim has been tossed out of court. Now the Court of Appeals is
their last hope. The only way they can win, as they state in court papers, is
for the judges to ban eminent domain for this type of development - and others
First off, how can a homeowner challenging the taking of his/her own property
by the government be called a NIMBY? They can't, as the thing is not "in
their backyard" but rather on top of them. The real NIMBYs are folks such
as Mike Bloomberg, Bruce Ratner and Daily News publisher Mort Zuckerman
who would never put up with a development plan such as Atlantic Yards in their
cozy Upper East Side enclave. And they certainly wouldn't willingly give up their
estates in New York and elsewhere, to enrich some other guy. And as per the above,
there have been 5 suits, over six years, that is hardly "suit after suit." Not
one of the suits has claimed that the "state is illegally giving away the store
in subsidizing the project" (though this suit argues that when the State subsidizes
such a project all of the housing constructed must be low income housing).
Not one of the suits has been deemed frivolous by any court, and none of the defendants
have tried to argue in court that the suits are frivolous. And none of the suits
have been "tossed out of court." The editorialist gets one thing right, a development
that violates the State's Constitution regarding eminent domain and "slum clearance"
projects cannot go forward.
Having taken the case, the court needs to act expeditiously, because Ratner
is fighting to keep the project alive in a weak economy. Lippman must not allow
the court to be drafted into a war of attrition by never-say-die opponents.
True, the court has to act expeditiously. But not because it should be
concerned about Ratner's survival, rather because the law requires it to act expeditiously.
Presumably Judge Lippman and the other six Court of Appeal judges will rule on
the arguments made in the case, nothing more or less.
He and his colleagues must decide the case quickly. And they must make it,
for the opponents, loss No. 26.
Not sure why the Court would take pointers from an editorialist who can't
seem to spell eminent domain correctly (see above), or understand a legal argument
or the Court's role. And it is impossible to make it loss "No 26," as
it is only the 5th case brought by project opponents. And, finally, the case is
brought by individuals trying to protect their rights, their homes, their businesses,
which is something the editorialist completely ignores in his factually incorrect,
underinformed, and unhinged rant.