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February 24, 2009

In a swift half-hour, eminent domain argument touches on balance of public and private benefit--but not much more

Atlantic Yards Report

Norman Oder covered yesterday's eminent domain hearing:

Does the state constitution, as the plaintiffs contend, require a stricter evaluation of public use--the bedrock of condemnation--than does the federal constitution? The judges in the ornate Brooklyn Heights courtroom of the Appellate Division, Second Department, seemed willing to consider the argument, but also injected skepticism.

The plaintiffs gained ground on one potentially important point. While the defendant Empire State Development Corporation (ESDC) had in legal papers claimed (without foundation) that a document quantified the private benefit to developer Forest City Ratner, that document went unmentioned.

Indeed, an ESDC lawyer conceded no such analysis comparing private and public benefit was performed, but quickly argued that no such analysis was required. Indeed, case law suggests that even if there's substantial benefit to a private entity, the condemnation should be confirmed if public purpose is dominant--and an ESDC lawyer claimed there's "overwhelming public benefit."

Still, one judge called the absence of such an analysis a "critical point."
The judges yesterday seemed unsympathetic to the plaintiffs' argument, previously untested in court, that a section of the state constitution approved at the 1938 Constitutional Convention requires projects developed with state subsidies or loans to be restricted to low-income people.

Click here to read the rest of Oder's report, which includes a brief explanation of why yesterday's hearing was so brief and play-by-play review with color commentary.

Posted by lumi at February 24, 2009 5:35 AM