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September 13, 2007

ESDC, FCR fire back in fierce eminent domain defense

Atlantic Yards Report

The defendants' briefs for the appeal of the federal eminent domain lawsuit, Goldstein v. Pataki, was on Norman Oder's summer reading list. His analysis of the defenses' arguments is on our aprés-summer reading list:

Plaintiffs in the eminent domain lawsuit challenging Atlantic Yards have already received a major setback in the case, after a federal court judge dismissed it for failure to state a claim, and as the appeal proceeds, a fierce set of response briefs from the defense ups the ante considerably.

The plaintiffs (a mix of 15 homeowners, commercial property owners, and residential and business tenants) and the defense (government agencies and officials) see controlling issues quite differently. The defense, drawing on U.S. District Judge Nicholas Garaufis’s emphatic opinion, declare that the inquiry should end because the government—the ESDC—found that the project would achieve a public purpose, including affordable housing, an arena, and open space.

While that reflects longstanding Supreme Court doctrine, the plaintiffs look at it from another angle, arguing in their appeals brief that the court’s 2005 Kelo v. New London decision and Justice Anthony Kennedy’s concurrence require a more transparent sequence, which must be followed for condemnation to be legitimate. And in response, the defense says that Kelo doesn’t apply to this case and, even if it did, the sequence was legitimate.

The plaintiffs’ framework to some degree pushes the envelope—the ESDC points to the paradox that most commentators believed that Kelo “confirmed—and possibly even loosened—the already extremely deferential judicial review of the public purposes of proposed takings.” But the plaintiffs think it gives them more leverage.

(The case will be heard October 9, and the plaintiffs get one more chance to respond in court papers.)

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Posted by lumi at September 13, 2007 11:26 AM