NY Court of Appeals to Hear Brooklyn Eminent Domain Case

Goldstein v. New York State Urban Development Corporation will be argued tomorrow, October 14, 2009, at 2:00 p.m. in Albany, New York. This controverisal eminent domain case challenges the Atlantic Yards project in Brooklyn. The New York State Court of Appeals will webcast the arguments live.

Daniel Goldstein is the lead plaintiff as well as the catalyst and co-founder of Develop Don’t Destroy Brooklyn, the group that has been fighting developer Bruce Ratner’s efforts to condemn their neighborhood for an arena (the  proposed home for the New Jersey Nets), 16 towers with 5000 residential units, and retail and office uses.

Earlier efforts by the property owners in the Federal Court were dismissed. See Goldstein v. Pataki, 488 F. Supp. 2nd 254 (EDNY 2007). Aff’d 516 F 3d 50 (3nd Cir. 2008). At the heart of the petitioners’ state court action is the provision of the New York Constitution Article I, Paragraph 7, which states that “private property shall not be taken for public use without just compensation.”

The petitioners challenge the concept of “public use” and its interpretation in New York case law. Lower courts, in this case and other New York cases, have opted for a broad interpretation of “public use.” This is beyond the definition urged by the plaintiffs, who want the court to adopt a more restrictive definition of “public use,” one that is consistent with its plain meaning and the intent of the New York Constitution, adopted in 1821. Their argument runs contrary to many state court decisions supporting a broad interpretation of “public use”. This is an uphill battle, but the fact that the Court of Appeals is hearing the case gives rise to the hope that the court may want to weigh in on this issue on the side of the property owners.

The petitioners also urge the court to weigh the relative public vs. private benefits that would occur as a result of the project as called for in Aspen Creek v. Town of Brookhaven, 12 NY 3d 738. The City of New York has filed an amicus brief supporting the use of eminent domain to foster economic development. The Virginia based Institute for Justice has filed an amicus brief on behalf of the plaintiffs. The Insitute recently published Building Empires, Destroying Homes: Eminent Domain Abuse in New York. (Click on the link to download the PDF.)

In an article published today in Reason Magazine, Goldstein wrote: "We're simply asking for the state's constitutional Public Use Clause to be applied, which, despite the cries of the vested interests, will not stymie development in New York City. If it is not applied, then today our homes can be seized in an abusive manner, but tomorrow it will be your home just because some politically connected, backroom-dealing rich guy can get his cronies to determine that his enrichment is somehow for the public's use."

Other relevant publications on this topic:
Atlantic Yards Report by Norman Oder: The eminent domain battle Wednesday: an easy call for the Court of Appeals or a fresh look at blight, "public purpose," and relative benefits?

The Volokh Conspiracy by Ilya Somin: New York's Highest Court to Hear Important Eminent Domain Case

Law of the Land by Patty Salkin: Atlantic Yards Eminent Domain Case Heads to NY High Court Tomorrow.

Previous posts on this blog:
Proponents of Atlantic Yards win Appellate round 

Brooklyn's Eminent Domain: Henry & Daniel v. Goliath 

Brooklyn's Eminent Domain: DDDB v. ESDC