A neighborhood group that supports developer Bruce Ratner’s efforts
to build a basketball arena, housing and office buildings in Prospect
Heights has filed a “friend of the court” brief defending the
use of eminent domain to condemn private property in a case being heard
by the U.S. Supreme Court this week.
The neighborhood group’s 30-page amicus brief positioned it on the
side of the City of New London, Conn., in a lawsuit where the state had
ruled in favor of demolition of private homes to make way for a new Pfizer
corporate complex in an area besieged by high unemployment rates.
Similar to the Connecticut development, Ratner’s plan relies on the
state’s condemnation of 11 acres of private residential and commercial
property. BUILD has been negotiating with Ratner over hiring agreements.
Both Mayor Michael Bloomberg and Gov. George Pataki support the Ratner
plan and the city and state have filed briefs in support of New London’s
position affirming the right of eminent domain.
“The Fifth Amendment … does not disable state and local government
from taking property for economic development purposes when just compensation
is paid,” the text of the BUILD brief asserts, also arguing that
“promoting economic activity for the benefit of its inhabitants is
a legitimate object — and a fundamental responsibility — of
state and local government.”
The precedent set by the high court in Kelo v. City of New London, for
which oral arguments will be heard this Tuesday, Feb. 22, could impact
Ratner’s Atlantic Yards plan, according to legal experts.
In early December, Develop-Don’t Destroy Brooklyn, an activist group
formed to protest Ratner’s plan to build a 19,000-seat arena for
the New Jersey Nets at Atlantic and Flatbush avenues as well as 17 office
and residential high-rises, announced their filing of an amicus brief
in support of the petitioners in the high-profile New London case.
Joining 99 other organizations and individuals filing briefs in Kelo vs.
New London, the group stands with the likes of the American Association
for Retired People (AARP), National Association for the Advancement of
Colored People (NAACP), and urban planning expert Jane Jacobs, who famously
took on New York’s master planner, Robert Moses, in the 1960s in
support of maintaining neighborhoods over high-rise projects.
“Because the plaintiffs in this case had a very broad range of briefs
supporting them that brought a lot of context before the court, it was
important that the court see the broad range who feel differently,”
said Richard T. Goldberg, the Manhattan attorney who prepared the argument
for BUILD and their co-signers, the Rev. Herbert Daughtry, of Boerum Hill,
and the New York City and Vicinity Carpenters Labor-Management Cooperation
Trust Fund.
Both Daughtry and BUILD are currently in negotiations for labor and benefits
concessions from the Atlantic Yards project.
“It’s often thought it helps to get the broader context especially
if one side has done a lot of marshaling of amicus briefs on their side,”
Goldberg said.
Attorney Norman Siegel, the former president of the New York Civil Liberties
Union, who represents Develop-Don’t Destroy Brooklyn in their battle
against Ratner, said the briefs were a testament to the New London case’s
“fundamental constitutional importance.”
“I’m not surprised that there’s that many Friends Of the
Court briefs,” he said. “Eminent domain has run amok in this
country.”
Siegel added that briefs sometimes bring to light issues not raised during
oral arguments. “It could be outcome-determinate for a swing judge,
or the court itself,” he said.
Marie Louis, a vice president of the volunteer-driven BUILD, said her
group spearheaded the brief because it represented part of their mission
in job-development advocacy.
“We all collaborated on it,” Louis said. “In our opening
we talk about how economic development is what we’re about —
we see that as a very important public use, and it answers public challenges
like excessive unemployment rates and excessive poverty rates.”
Goldberg said he doesn’t believe the [Supreme Court] judges should
be deciding local laws.
“These are hard issues — political and social and economic issues
— but they’re not hard constitutional issues,” he said.
“As a matter of law these are really not matters for judges to decide.
A lot of the legal argument is geared towards making that point.”
Siegel, naturally, believes otherwise.
“Interpreting the Fifth Amendment of the Constitution of the United
States is a critical function of the judicial powers in our system and
interpreting what the Fifth Amendment means is quintessential to judicial
authority,” he said.
Arguing that even a private development could fall under the definition
of “public use,” the City of New London’s attorney in the
case, Daniel Kirsch, said at a forum in December, that Connecticut was
doing “regulatory takings” in the Kelo case.
“As long as what you’re doing is relatively related in some
way for public use then it counts,” Kirsch said.
