Opponents of Bruce Ratner’s Atlantic Yards mega-project vowed to take their fight all the way to the U.S. Supreme Court after a federal appeals court ruled unanimously in favor of the developer on Feb. 1. Experts say, however, that this latest defeat is most likely the end of the road for the lawsuit.
“The odds are extremely slim that the Supreme Court will hear the case,” said Michael Rikon, an eminent domain expert who represented plaintiffs who fought the use of eminent domain when Ratner built the Metrotech office complex in Downtown a generation ago. “That’s it.”
Steven Anderson, director of the anti–eminent domain Institute for Justice’s Castle Coalition, agreed.
“The Court gets something like 8,000 petitions a year and accepts maybe 1 percent of them,” said Anderson.
In the case in question, the plaintiffs, including Develop Don’t Destroy Brooklyn’s Daniel Goldstein and Freddy’s Bar, argue that the state’s economic development arm broke the law when it condemned privately owned properties and turned them over to Ratner.
Eminent domain — the seizure of private land for public benefit — has traditionally been used to build public projects like highways or government buildings. However, the High Court’s landmark 2005 Kelo decision expanded the notion of “public benefit” to include the effects of economic development on a “blighted” community.
Opponents of the 16-skyscraper-and-arena Atlantic Yards project, slated for Prospect Heights, argue that a publicly financed basketball arena that will largely benefit a private developer was not the kind of “public benefit” required under eminent domain law.
They also argue that the area around the Vanderbilt rail yards where Ratner plans to build his Xanadu is not blighted at all.
Last week, the appeals panel declined to weigh in on either argument.
“Federal judges may not intervene in such matters simply on the basis of our sympathies,” the court wrote. “Just as eminent domain has its costs, it has its benefits.”
Matthew Brinckerhoff, who represented the plaintiffs, said he was “certainly disappointed” by the ruling.
“We believe the decision is wrong,” he added, vowing to will bring the case to the Supreme Court “to re-examine the use of eminent domain.”
Brinckerhoff added that he would re-file the case in state court because the federal courts have consistently declined to take up the substantive issue in the case, preferring to rule on jurisdictional grounds.
But New York state courts are notoriously unsympathetic to challenges to eminent domain law. And, while 42 states have passed legislation since 2005 designed to counteract the Kelo decision, New York State is not one of them.
Ratner praised the decision, his second major court win in as many months.
“Atlantic Yards will bring thousands of affordable homes and needed jobs to Brooklyn,” he said in a statement. “We believe, and the courts have repeatedly agreed, that these are real benefits that will have a significantly positive impact on the borough and the city.”
The Empire State Development Corporation, the state’s economic development arm, also praised the court.
“We are excited about construction moving forward on this important, transformative development project,” said Warner Johnston, an ESDC spokesman.
In another decision, a state judge ruled last month that the ESDC’s environmental review of the mega-project was legally sufficient. That decision is also being appealed.
