Moment of Truth: Court to determine if Ratner gets land

The Brooklyn Paper
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The climactic legal battle against the Atlantic Yards mega-project began in a Manhattan courtroom on Tuesday, where lawyers argued over one of the oldest issues in American jurisprudence: When can the government seize a person’s home and give it to someone else to tear down and redevelop?

At times, the legal debate in the federal courthouse appeared on the verge of merely rearguing the entire history of Atlantic Yards, Bruce Ratner’s $4-billion arena, hotel, housing, office space and retail development over and around the Long Island Rail Road yard in Prospect Heights.

But the lawyers soon focused on the main argument in the case, Goldstein v. Pataki: does the supposed “public benefit” of Atlantic Yards give the Empire State Development Corporation the authority to seize 13 privately owned properties and turn them over to Ratner?

Arguing “no” was plaintiff’s lawyer, Matthew Brinckerhoff, who told the three-judge panel that the government can take private property — and even hand it over to a private, profit-making developer — but only when the government, not the developer, is initiating the project.

“The taking here was motivated by a desire to benefit a specific developer … the only person who was ever considered for this property,” Brinckerhoff said. “The private developer decided which properties he needed and the private developer went to the government [to get them].”

The case had been dismissed back in June, when District Judge Nicholas Garaufis said that the project’s supposed public benefits — affordable housing, a basketball arena, and seven acres of new open space — would allow the government to seize privately owned property and hand them over to Ratner.

But the plaintiffs appealed on the grounds that the Supreme Court’s landmark 2005 Kelo decision — which expanded the notion of eminent domain to allow private property to be turned over to a private developer — required the government to come up with the redevelopment plan before choosing a developer and condemning property.

Judge Robert Katzmann asked Brinckerhoff why it mattered that the project benefits Ratner when it will also have a public benefit — affordable housing, a basketball arena and seven acres of new open space.

“But in this case, the motive was to benefit a private individual,” he responded. “Why [was] this decision was made without considering any other developer or any other plan or any other properties?”

Judge Edward Korman jumped in and suggested that the government had merely decided that Ratner was “best suited to carry out” the project. “Does that taint [the process]?” he asked.

Brinckerhoff said it did: “The decision to take the property was made after the developer was chosen. … Normally, you would assume the governmental would want to maximize the public benefit by finding a developer who could do the project for the lowest cost. … In this case, the process was predetermi­ned.”

Though it appeared that the justices were aggressive in their questioning, they saved plenty of buckshot for ESDC lawyer Preeta Bansal.

In her opening remarks, Bansal said that “this matter begins and ends … with the multiple public benefits of Atlantic Yards. … This project will alleviate blight in 63 percent of the site. In and of itself, that is enough to end the case. This is a valid public project.”

When she mentioned the Frank Gehry-designed basketball arena at the core of the project, Katzmann questioned whether the arena would be “publicly owned.”

“It will be publicly owned and leased to the private entity,” Bansal said, drawing laughter from the mostly anti-Atlantic Yards gallery, chuckles inspired by the fact that Ratner will pay $1 rent on the 99-year lease.

When challenged by both Katzmann and Korman, Bansal said that even if the process had been fixed for Ratner, the condemnations would still be legal.

“Even if there [was] some ‘smoking gun’ memo [where] a public official said, ‘We want to do this for Bruce Ratner, that would make not an iota of difference,” she said. “It would not negate that this would remediate blight and make a stadium and affordable housing.”

She added that privately generated projects are not bad.

“The fact that this developer came to the city and proposed this project is of no constitutional bearing,” she said.

During his rebuttal time, Brinckerhoff said Bansal was flat-out wrong.

“Kelo expressly forbids precisely that scenario,” he said. “It says that the taking of one person’s property for a pre-identified entity violates” the Constitution.

He also dismissed the notion that the basketball arena has a “public benefit” sufficient to justify eminent domain.

The notion that a stadium is a public use is just wrong. … A stadium is a private, money-making enterprise that’s no different from a hotel. [The public has] access to the hotel, but we don’t own it. They’ve already sold the naming rights [to the arena]!”

And Brinckerhoff was able to get in the last word about the motivation of his 13 clients, who all own or live in property slated to be torn down to make room for Atlantic Yards.

“This is the most awesome power a government has and my clients have a right to know that their homes are being taken for a legitimate reason,” he said, getting emotional for the first time. “But on this record, they can’t possibly conclude that.”

Just before both sides could make their arguments, Korman admitted that he had a potential bias in the case, telling the hushed courtroom that he had received a promotional flyer from Forest City Ratner “in the early days” of the project and that he had checked a box indicating his support for the project.

Korman said he checked the “yes” box “without any thought to the legal issues,” but offered to recuse himself if either side wished. Neither side objected.

Updated 4:33 pm, July 9, 2018
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Reasonable discourse

Anonymous says:
"Judge Edward Korman jumped in and suggested that the government had merely decided that Ratner was %u201Cbest suited to carry out%u201D the project. %u201CDoes that taint [the process]?%u201D he asked."


Oct. 11, 2007, 9:06 pm
Daniel says:
You're absolutely on target here. If Ratner loses this appeal, AY for all intents and purposes is dead and buried. This is one that is really going to be watched very closely.
Oct. 26, 2007, 9:43 pm
al pankin from downtown says:
the thirteen plaintifs should start packing, they are holding up the clearing out of a vast lage pocket of blight that is fifty years overdue.anyone who says this is an attractive,safe area is nuts. it's time for renewal.
Jan. 18, 2008, 8:30 am

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