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December 15, 2006
Atlantic Yards moves forward
Date with George, Joe and Shelly awaits
The Brooklyn Papers
Gersh Kuntzman's wrap-up of the week's events includes the Empire State Development Corporation vote to approve the Atlantic Yards Environmental Impact Statement, the pending final approval of the Public Authorities Control Board and the eminent domain lawsuits:
Yards opponents have called on the PACB to delay its vote until after Eliot Spitzer takes over as governor so that he can put his stamp on a project that would begin construction during his administration — and would cause significant impacts on traffic, transit and other infrastructure that the new governor would have to deal with in years to come.
Others are calling for the PACB to delay the vote until a federal judge rules on an existing lawsuit over the state’s use of its power to condemn privately owned buildings in the 22-acre Atlantic Yards footprint and hand them over to Ratner.
The developer owns almost 90 percent of the land on which he hopes to build his complex, but needs the state to condemn additional buildings.
Nearly a dozen landowners in the footprint filed suit in October, arguing that the state’s use of eminent domain would violate the law because Ratner was selected as the developer of the state-owned Vanderbilt rail yards in a sham public-approval process rather than on the merits of his proposal.
Many legal experts said the suit is a longshot.
NoLandGrab: We need to address the federal eminent domain lawsuit because The Brooklyn Papers doesn't quite get it right. The crux of the legal argument is that "Ratner was selected as the developer" of the entire project (including the railyards) "in a sham public-approval process rather than" part of a city-planning process.
It is better explained in a recent article in New York Law Journal:
In a concurring opinion, however, Justice Anthony M. Kennedy noted that while a taking was consistent with the Public Use Clause of the U.S. Constitution, it must be "rationally related" to a public purpose.
"The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause," Justice Kennedy wrote.
...
"[The recent Supreme Court eminent domain ruling, Kelo v. New London,] left open the possibility that a pure one-to-one transfer, or a condemnation that was made not according to the proper planning procedures, would not pass constitutional muster," Ms. Berliner said. "What the plaintiffs in this case have done is take the Kelo decision and challenge this condemnation under the possible constitutional violations left under Kelo. They are not asking the court to reverse Kelo."
It has nothing to do with "the merits" of Ratner's proposal; instead, the suit argues that Ratner's proposal and the use of eminent domain were developer-driven and assured by his political influence, as opposed to being one plan selected as part of a city planning process.
Posted by lumi at December 15, 2006 7:15 AM