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Release: March 30, 2009
Develop Don’t Destroy Brooklyn et al.
Seeking Appeal of Adverse Ruling in
Court of Appeals on Atlantic Yards EIS Lawsuit
NEW YORK, NY—Develop Don’t Destroy Brooklyn, and 25
community group co-petitioners, filed a motion today to the Appellate
Division (First Department) seeking the right to appeal in the state’s
top court—the Court of Appeals—an adverse ruling on their case challenging
the Empire State Development Corporation’s (ESDC’s) Environmental Impact
Statement and Blight Study for Forest City Ratner’s Atlantic Yards development
On February 26 the
appellate court ruled against the petitioners.
A key issue in the case is the state’s designation of the developer’s handpicked development site as "blighted." The court ruled that the state’s "blight" designation had a "rational basis."
However, Justice Catterson—one of the four judges on the panel—wrote a
opinion which raises substantial questions about that basis, suggesting
there was no rational basis, but rather a decision to facilitate Forest
City Ratner in its effort to control 22 valuable acres in the heart of
“Because I believe that the New York Urban Development Corporation Act…is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are ‘underutilized,’ I write separately. I recognize that long-standing and substantial precedent requires a high level of deference to the Empire State Development Corporation's finding of blight. Reluctantly, therefore I am compelled to accept the majority's conclusion that there is sufficient evidence of "blight" in the record under this standard of review. However, I reject the majority's core reasoning, that a perfunctory ‘blight study’ performed years after the conception of a vast development project should serve as the rational basis for a determination that a neighborhood is indeed blighted.
…ESDC's contention that as 'a matter of law,' ESDC could only look at conditions contemporaneous with the study, which was conducted years after the [project’s] announcement, is ludicrous on several levels."
The motion filed today asks the Appellate Division to allow petitioners to appeal to the Court of Appeals. The petitioners’ motion papers focus on the rationality of the ESDC’s determination that the project site was blighted, and that the ESDC improperly designated the Barclays Center Arena as a “civic project” under the Urban Development Corporation Act.
The petitioners believe that that Appellate Division misapplied the relevant legal standard in reviewing ESDC’s blight designation. The Court relied on older cases that were reviewing blight determinations in taxpayer lawsuits. Those cases are very limited and allow a person to challenge government spending that is clearly unauthorized. Taxpayers cannot challenge decisions that they believe are simply unwise and must show clear illegality, so the burden of proof on the challenger is very high. In contrast, the case against Atlantic Yards is an Article 78 challenge where petitioners must only show that ESDC’s decision was arbitrary and capricious. That too is a high standard but not as high as the taxpayer lawsuit.
“As Justice Catterson properly noted, ESDC’s failure to consider the context of existing economic development trends in Prospect Heights should make the blight determination per se irrational,” said lead attorney Jeffrey Baker.
Specifically the petitioners would like the Court of Appeals to address and clarify these issues:
The motion can be downloaded at:
- That the Appellate court has clouded the “arbitrary and capricious” standard of review of ESDC’s determinations with the more deferential standard of a taxpayer action and,
- Incorrectly conflated constitutional requirements applicable to condemnation issues with the specific statutory requirements of the Urban Development Corporation Act and the State Environmental Quality Review Act.
All relevant case files can be found at:
For clarity's sake, this is not the state eminent domain lawsuit spearheaded
by Develop Don't Destroy Brooklyn and brought by nine property owners and
tenants in the Atlantic Yards project site.
DEVELOP DON'T DESTROY BROOKLYN leads a broad-based community
fighting for development that will unite our communities instead of dividing
and destroying them
DDDB is 501c3 non-profit corporation supported by over 4,000 individual
donors from the community.