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October 10, 2007

Lawyer: Arena not a public use

AP, via amNY
By Larry Neumeister

We're taking excerpts out of order here to illustrate two of the main legal arguments.


Seeking to revive their lawsuit, Brooklyn residents whose homes will be lost to make way for a new arena for the NBA's Nets urged an appeals court Tuesday to let them find out if the developer of the $4 billion Atlantic Yards project got a sweetheart deal.

Matthew D. Brinckerhoff, a lawyer for the families, told a three-judge panel of the 2nd U.S. Circuit Court of Appeals that it should return the case to a federal judge in Brooklyn so they can research whether the land is being taken unfairly. ... He said the appeals court should let the case proceed so he can obtain e-mails and other correspondence between public officials and Ratner to see if the deal was purposefully made to avoid looking at other options or allowing other bidders on the project.

Meanwhile, the defense claims that motivation isn't at issue:

The project would still be constitutional even if the families discovered that an e-mail from a public official said: "I want to do this for my friend Mr. Ratner," [attorney for the defense Preeta Bansal] said. And it would be still be legal to take the land and clear out the families even if "there might be an illicit motive lurking underneath."

Brinckerhoff said former Gov. George Pataki had been a longtime friend of Ratner since they attended school together and Ratner had contributed to his political campaigns. He said Ratner also had ties to Mayor Michael Bloomberg.

"The motives of public officials are not at issue in public use analysis," Bansal said.


Brinckerhoff said the deal will let the Nets' principal owner, Bruce Ratner, kick longtime property owners out of their homes so he can build what essentially is a private business on public land.

"The notion that a stadium is public use is just wrong," he said. "A stadium is a private, money making enterprise no different than a hotel."


Preeta Bansal, a lawyer for the Empire State Development Corporation, a state agency using its eminent domain powers to condemn and seize buildings on the site, told the 2nd Circuit that the arena will be publicly owned and leased to Ratner.

"This is a valid quintessential public purpose," she said.

Bansal said the arena could be used by schools and would result in major transportation improvements and public space, including bicycle paths.

[This article also ran in the online edition of USA Today.]

NoLandGrab: This debate precisely illustrates why most Americans think that eminent domain has run amok. If ANY "public use" is a LEGITIMATE "public use" and the motivation of the politicians who approve the project is NOT RELEVANT, then eminent domain has become the US government's most expansive power.

Seriously, if the public purpose is to clear blight, build a bike path and give local schools a place to play ball, then allow the neighborhood to continue to redevelop, just as it was before the project was announced and much like the surrounding blocks not under threat of eminent domain, put in a bike path and build a real community facility where schools wouldn't be charged $100K a pop for the privelege.

If meager public benefits are pretextual and a project can be approved by three men in a room for the benefit of a politically powerful developer, then anything goes, the courts have failed to safeguard citizens' rights and the US Constitution is broken in this respect.

Posted by lumi at October 10, 2007 8:55 AM