Yards ‘domain’ case has some eminence

Legal experts agree on one thing about the latest lawsuit to block the Atlantic Yards project — the plaintiffs have put together a crafty argument to combat the project.

Law professors are intrigued by the argument, filed on Aug. 1 in state court by soon-to-be-displaced residents, that the state’s use of its eminent domain power to clear land for Bruce Ratner’s mega-project violates a little-known and never-tested provision of the state Constitution that prohibits public subsidies from underwriting any urban renewal project whose occupancy is not restricted “to persons of low income.”

Ratner’s development is slated to receive hundreds of millions of dollars in direct public subsidies and tax breaks despite the fact that it includes thousands of units of market-rate housing.

The plaintiffs claim that the luxury housing would violate Article 18, Section 6 of the state Constitution.

“It’s a very good, well-written complaint. They’ve got a hook,” said James Gardner, a law professor at the State University of New York at Buffalo.

The latest suit to halt the $4-billion, 16-skyscraper project comes after three federal courts — including the highest court in the land — declined to rule on the plaintiff’s principal argument, namely that state officials agreed to condemn land for Ratner in a “sham” process that touted the project’s supposed public benefits as a “pretext.”

The suit also alleges Atlantic Yards breaks several provisions of the state Bill of Rights and the state’s eminent domain code, but these arguments are likely to be determined by precedent, unlike the untested low-income residency requirement.

“That’s the only interesting hook that they have. Everything else in there has been already decided in other courts,” said Patricia Salkin, an associate dean at Albany Law School. And those decisions, most notably the landmark Supreme Court Kelo ruling, have given the government broad powers to use eminent domain for “public use.”

The case may blaze new ground by invoking an arcane section of the Constitution, but scholars and lawyers would be shocked if the New York State Supreme Court upheld the plaintiffs’ low-income housing argument rather than deferring to previous rulings in similar lawsuits.

“Public funds have frequently been used for various forms of urban renewal that were not so restricted,” said Christopher Serkin, an associate law professor at Brooklyn Law School.

Yards opponents have another glimmer of hope, experts said, namely that the state court is presiding during an ongoing backlash against the 2005 Kelo verdict.

“The New York court is one of the most activist in the country,” Gardner told The Brooklyn Paper.