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March 28, 2007

Relief at the ballot box? Housing expert says ESDC justification seems hollow

Atlantic Yards Report

The next hearing in the Federal eminent domain case is this Friday. In advance, Norman Oder considers the defense's position against claims of backroom dealing:

Is voting the rascals out sufficient redress for those who want courts to examine what they believe to be eminent domain abuse, as a lawyer representing the Empire State Development Corporation (ESDC) has suggested?

Not at all, says David A. Smith, an affordable housing expert in Boston who supports the targeted use of eminent domain and has been watching Atlantic Yards from afar.

That issue came up during the 2/7/07 oral argument in the Atlantic Yards eminent domain hearing, when U.S. Magistrate Judge Robert M. Levy posed a hypothetical question to Douglas Kraus, representing the defendant Empire State Development Corporation (ESDC).

Levy wondered that if a constitutional violation would occur in a case involving eminent domain that led to a clear public use--a result that historically justifies condemnations--but also benefited an insider, the governor's brother-in-law.

Kraus:

"That might be an issue for the prosecutor; it also might be an issue for the electorate, right. [Plaintiffs' attorney] Mr. [Matthew] Brinckerhoff told us they're all politicians and they're all elected. If his clients or if other members of the community think this was really a terrible project, they can express themselves in the next election when they vote for their City Council representatives, their State Senators, their State Assembly members, their Congresspersons, and their federal Senators."

Smith, who has supported use of eminent domain for economic development but thinks it must be done with safeguards, was perturbed by Kraus's formulation.

He told me, "In my view, Mr. Kraus's flip comment ["terrible project"] tacitly concedes he has no legal case for his client. For if the project is terrible, and the sole remedy is electoral relief, then there is no check in law to a development agency run amok, and no limit on the powers agencies claiming eminent domain (for removal of blight, economic development, or otherwise) can wield."

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Posted by lumi at March 28, 2007 6:31 AM