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April 2, 2008
AY eminent domain appeal asks the Supreme Court to clarify Kelo decision
Atlantic Yards Report
Norman Oder provides a thorough analysis of the Supreme Court petition filed yesterday by plaintiffs fighting condemnations intended to clear the way for Bruce Ratner's Atlantic Yards.
According to two previous federal court decisions, the Atlantic Yards eminent domain case was dismissed because of evidence that the project would--or was believed to--bring a plethora of public benefits, thus trumping any questions about legitimacy of the approval process.
According to the just-filed appeal in the case, known as Goldstein v. Pataki, the Supreme Court should take a look because its controversial 2005 Kelo v. New London decision leaves open the possibility of challenging an eminent domain decision if the taking occurs as a “pretext” to benefit a private party.
The tension between those two postures raises an interesting challenge, given that an appellate court cursorily dismissed the pretext issue in a decision February 1. The court stated that other cases in which courts had considered pretext differed from Atlantic Yards, because the latter would contain some undeniable public benefits while the others did not.
But the appeal stresses another angle, not the quantity of public benefits--which is in dispute--but that of legitimacy. The appeal notes that courts evaluating Atlantic Yards relied on Supreme Court precedent like Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), which defer to legislative decisions, while a 2007 case decided by the District of Columbia Court of Appeals, Franco v. National Capital Revitalization Corporation, declares that Kelo allows inquiry into the question of pretext.
Posted by eric at April 2, 2008 12:04 PM