The state’s highest court has ruled against a group of landowners and tenants inside the Atlantic Yards footprint, a major victory for developer Bruce Ratner and state officials who had been sued on the grounds that they had abused their power of eminent domain.
The Court of Appeals ruling, written by Chief Judge Jonathan Lippman and joined by five colleagues, affirmed that the state’s use of its condemnation power to clear land on behalf of a private developer is “in conformity with certain provisions of our State Constitution.”
One judge, Robert Smith, offered the lone dissenting vote.
“The majority is much too deferential to the self-serving determination by [the] Empire State Development Corporation that petitioners live in a ‘blighted’ area, and are accordingly subject to having their homes seized and turned over to a private developer,” he wrote. “I do not think the record supports ESDC’s determination.”
The ruling mirrors some of the questioning from the October oral arguments in Albany, where the majority went after plaintiffs’ lawyer Matt Brinckerhoff, and Smith challenged the legitimacy of the ESDC’s use of eminent domain.
Brinckerhoff was so consumed by answering the judges’ questions that he never even got to present the most crucial portion of his argument, namely that a clause in the state Constitution forbids eminent domain on a project unless “the occupancy of any such project [is] restricted to persons of low income.”
But the majority definitely read — and rejected — that very legal argument.
“Even if this gloss on this state’s takings laws and jurisprudence were correct — and it is not — it is indisputable that the removal of urban blight is a proper, and, indeed, constitutionally sanctioned, predicate for the exercise of the power of eminent domain,” the ruling stated.
The decision clears a major hurdle for Ratner, who can now move forward with the sale of tax-free bonds to finance his $4-billion arena, residential and office project. Ratner needs to get shovels in the ground by the end of December to qualify for the tax break, and there are several pending cases remaining.
When that happens, no one will be happier than Borough President Markowitz, who hailed the Court for “reinforc[ing] … the numerous public benefits of the Atlantic Yards project … including the creation of affordable housing, solid union jobs and permanent employment opportunities for Brooklynites who need work.”
Minutes later, opponents of the project rallied at Freddy’s Bar on Dean Street — a Prohibition-era tavern that will be torn down to make way for Ratner’s arena.
“The power of eminent domain is extraordinary and should only be authorized in limited circumstances where, unlike in this case, there is a clear and robust public benefit,” said Assemblyman Hakeem Jeffries (D–Fort Greene) in statement read by an aide. “The use of eminent domain to benefit a private developer to build a basketball arena for a team owned by a foreign billionaire [a reference to Ratner investor, the Russian billionaire Mikhail Prokhorov] is an abuse of this extraordinary power.”
The court majority disagreed that the use of eminent domain is actually extraordinary at all. In fact, it rejected the notion that the urban blight to be remedied by a project even needs to be all that severe.
“We have never required that a finding of blight … be based upon conditions replicating … in the midst of the Great Depression,” the majority ruling stated. “To the contrary … the reach of the terms ‘substandard and insanitary’ … were applied in the early 1950s to the Columbus Circle area upon which the New York Coliseum was proposed to be built [and] none of the buildings are as noisome or dilapidated as those described in Dickens’s novels.”