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August 15, 2007

In eminent domain case appeal, plaintiffs say AY sequence violates Kelo case

Atlantic Yards Report

In case you haven't had a chance to read the brief filed in the 2nd Circuit Court of Appeals for the Federal eminent domain case, Norman Oder posted his "Cliff Notes" today:

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U.S. District Judge Nicholas Garaufis was emphatic in his June 6 dismissal of the Atlantic Yards eminent domain case. But the case is hardly dead, and the plaintiffs have fought back with a blistering appellate brief that, while it doesn’t fully refute Garaufis’s analysis, argues that he ignored a host of other factors, notably the sequence endorsed by the U.S. Supreme Court in the controversial 2005 Kelo v. New London decision.

Garaufis said, essentially, that, the plaintiffs—originally 13 tenants and property owners in the Atlantic Yards footprint—erred in alleging that the benefits were a pretext. (A 14th plaintiff was added as Garaufis combined a second case.)

"Because Plaintiffs concede that the Project will create large quantities of housing and office space, as well as a sports arena, in an area that is mostly blighted, Plaintiffs’ allegations, if proven, would not permit a reasonable juror to conclude that the 'sole purpose' of the Project is to confer a private benefit,” Garaufis wrote. “Neither would those allegations permit a reasonable juror to conclude that the purposes offered in support of the Project are 'mere pretexts' for an actual purpose to confer a private benefit on FCRC.”

I thought Garaufis’s analysis was flawed regarding three of four counts, since he missed nuances and details in the plaintiffs’ argument. But the appellate brief, a prelude to an exchange of at least two more legal briefs before an October 9 oral argument, has bigger fish to fry.

The brief focuses on what the plaintiffs argue is the appropriate sequencing for the exercise of eminent domain, as affirmed in Kelo. In other words, even though the case has led to a backlash in some state legislatures and has emerged as a presidential campaign issue, the plaintiffs are arguing not that Kelo should be overruled, but merely should be adhered to.

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Posted by lumi at August 15, 2007 7:39 AM