Eminent Domain's Third Rail: Attorney Conflicts

Jeffrey Finkle, President and CEO of the International Economic Development Council, was quoted in the New York Times this week characterizing the political defense of eminent domain as the "third rail right now...You step on it, you die." Developers can't imagine a world without eminent domain. Use of eminent domain for private development is almost always controversial where blight is involved.

Develop Don't Destroy Brooklyn (DDDB) and fifteen property owners and community groups fired the first legal salvo at Forest City Ratner's plan to build a new city within the city at Flatbush and Atlantic in Brooklyn, N.Y. The litigation filed last week focused on Ratner's efforts to begin demolition on six buildings he has acquired and allowed to deteriorate. Of course, his demolition is characterized as benefiting the public health, safety and welfare.

But are the buildings an imminent threat? Norman Oder's post at TimesRatnerReport yesterday quotes Jay Butler, the professional engineer brought on board by the litigating community groups to review the buildings. Although Butler wasn't allowed inside, he stated: "I cannot conclude that the buildings pose an imminent threat to public safety. Any defects....appear to be consistent with conditions found at countless other buildings in New York City."

The more serious issue in the lawsuit points to an insider deal with blatant conflicts among attorney David Paget who has represented FCR (the developer) and also represents Empire State Development Corporation (ESDC), the lead environmental agency for the SEQRA review of project with respect to Ratner's efforts to demolish the six buildings in the project area.

Charles Gargano, chairman of the ESDC, downplayed the complaint and was quoted in the Daily News as saying, "I don't know whether we are using the same lawyer. I don't know of any conflict."

New York Observer's The Real Estate obtained a document through a FOI request showing FCR actually recommended Paget's lawfirm to the ESDC in a letter dated Feb 18, 2004. This is more than the appearance of conflict, this is actual conflict and taints the entire process. This puts the fox in charge of the chicken coop.

Attorney conflicts continue to appear in redevelopment projects. See Eminent Domain Conflicts of Interest blog on Bloomfield and Long Branch, N.J. The attorney conflict is important, and the public must have complete faith in the process, especially where a project of this size is being undertaken with the myriad impacts that it will have on downtown Brooklyn.

In paragraph 78 of the complaint the petitioners allege that "the public has the right to expect that ESDC in the exercise of its extraordinary authority will act in an honest and objective manner and in the public interest without the perception of bias or a conflict of interest."

A full hearing on the plaintiff's application for a restraining order is scheduled for February 14, 2006 before the Hon. Carol Edmead, justice of the Supreme Court of the State of New York, County of New York.

Read the entire text of the complaint.Download Develop Don't Destroy Brooklyn et al v. Empire State Development Corporation and Forest City Ratner Companies.

To follow the story of the Atlantic Yards project, see NoLandGrab.