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February 8, 2007
Judge Poses Tough Questions to Atlantic Yards Backers
The NY Sun
By Joseph Goldstein
The article in The Sun examines some of Judge Levy's questioning of attorneys, where he seemed to be examining if there were a role for the courts to protect the public interest when governments overstep their authority according to the Constitution:
The central issue during yesterday’s hearing was whether Judge Levy would be overstepping his role if he began to weigh the public benefits that the project would deliver against the private benefits that would accrue to Forest City Ratner. The defendants are asking Judge Levy to immediately dismiss the lawsuit on the grounds that the public benefits of the development are obvious.
A lawyer for Forest City Ratner, Jeffrey Braun, told Judge Levy that his role as a reviewer of the plan should be extremely limited. All the judge needed to do before recommending the dismissal of the lawsuit was to confirm that the proposed public uses were legitimate, Mr. Braun, said.
“What I’m hearing is that so long as a defendant can articulate a public use,” Judge Levy asked, eminent domain is “per se constitutional?”
“Your honor, I would say yes,” Mr. Braun said, adding that “the role of the court really disappears” beyond conducting that initial review.
This answer did not seem to satisfy Judge Levy. Soon thereafter, he put forward a hypothetical: What if developers wanted to seize 22 acres of private property and build luxury housing on 21 acres of it and place a school on the remaining acre?
Under Mr. Braun’s argument, Judge Levy noted, “Any condemnation would pass the test so long as a school was put in, regardless of the detriments.”
...
While defenders of the proposed plan were touting the public benefits, Judge Levy noted that the plaintiffs were more interested in pointing out the private gain that Forest City Ratner anticipated.“What if we have both?” Judge Levy asked. “Let’s say there is an undeniable public use and let’s say at the same time there is an undeniable private benefit.”
In that case, a lawyer for the plaintiffs, Matthew Brinckerhoff, said he would urge Judge Levy to decide what is the primary goal of the project.
“The standard would be what was the motivating factor in taking somebody’s property,” Mr. Brinckerhoff said. If it is for private gain, then eminent domain “has to be stopped, it is unconstitutional.”
Judge Levy is expected to issue a recommendation on whether to dismiss the case to the presiding judge overseeing the case, Nicholas Garaufis.
Posted by lumi at February 8, 2007 6:54 AM