State Court Challenge to Atlantic Yards

An earlier post here reported the 2nd Circuit Court of Appeals’ ruling affirming the dismissal of the complaint which challenged the Atlantic Yards development project in downtown Brooklyn on the grounds that it violated the Public Use Clause of the Fifth Amendment. On June 23, the US Supreme Court refused to hear the case. Justice Alito was the only member of the Court who would have granted certiorari of the ruling’s affects on local property rights. According to an article in The Brooklyn Paper, local opposition to the Atlantic Yards project has now turned to the state courts focusing on the condemnation proceedings.

On August 1, 2008, those opponents filed a petition with the Appellate Division in New York seeking to prevent the condemnation of their property by the New York Empire State Development Corporation (ESDC). The Appellate Division has exclusive jurisdiction over the Eminent Domain Procedure Law. The nine property owners and tenants whose homes and businesses face condemnation to make way for the $4 billion project that includes the Barclays Center arena for the NBA’s Nets and 16 mixed-use buildings specify five claims in the petition:

1. the condemnation violates the public use clause in the New York State Constitution (the Second Circuit already held that it did not violate a similar provision in the federal constitution) asserting that the State’s claims of public benefit are a pretext to justify a private taking
2. the plaintiffs’ due process rights under the State Constitution were violated (here they allege that the public process was a sham and that this was a “back room deal” with former Governor Pataki, Mayor Bloomberg and Bruce Ratner, the developer of the Atlantic Yards project)
3. the Equal Protection clause of the State Constitution was violated (because they were singled out for unequal, adverse treatment, and because Ratner was selected to receive favorable treatment)
4. the State Constitutional requirement that the housing part of the project be restricted to persons of low income with a preference for persons who live or shall have lived in the area has not been met and
5. the condemnation violates the “public use, benefit or purpose” requirement contained in the State Eminent Domain Procedure Law

The main claim is that the condemnation is for luxury housing and violates Article 18, § 6 of the State Constitution regarding the low-income and current resident requirement. Article 18, § 6 states:

No loan, or subsidy shall be made by the state to aid any project unless such project is in conformity with a plan or undertaking for the clearance, replanning and reconstruction or rehabilitation of a sub-standard and unsanitary area or areas and for recreational and other facilities incidental or appurtenant thereto. The legislature may provide additional conditions to the making of such loans or subsidies consistent with the purposes of this article. The occupancy of any such project shall be restricted to persons of low income as defined by law and preference shall be given to persons who live or shall have lived in such area or areas.

Oral arguments are expected to take place in January 2009.