BUILD brief defends use of eminent domain to high court

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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.

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