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June 15, 2009
EMINENT DOMAINIA: The Big Apple Bites!
New York Law Journal, Coalition Tries for Last Time To Halt Atlantic Yards Project
A community group in Brooklyn has filed what may be its last, best chance to block the construction of the massive Atlantic Yards project. Develop Don't Destroy Brooklyn, which was formed in 2004 to oppose Forest City Ratner's 16-tower plan for downtown Brooklyn, submitted on Friday its notice of appeal for the Appellate Division, Second Department's rejection last month of the coalition's eminent domain claims. The group claimed the appellate court's unanimous decision in Goldstein v. New York State Urban Development Corp. , 2008-7064 (NYLJ, May 18), presents three "substantial constitutional questions," including whether the public use requirement of the state Constitution "imposes a more stringent standard for takings than does the Fifth Amendment." Last year, 152 notices of appeal were filed in New York, according to a Court of Appeals spokesman. Of those, 70 were subjected to preliminary inquiries and of those 70, all but 10 were dismissed. The average length of time from a notice of appeal until oral arguments was seven months.
NorthJersey.com, Eminent domain ruling on Nets' Brooklyn site appealed
The appeal is based on three constitutional issues:
- Whether New York State’s eminent domain laws are more stringent than federal laws.
- Whether it is legal for state agencies to approve condemnation of land without ever reviewing the magnitude of the private benefit for a project developer, in this case Nets owner Bruce Ratner.
- Whether the project plan is not sufficiently designed to aid local lower-income residents.
The New York Times, Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings
The Supreme Court nominee was a member of the U.S. Second Circuit panel that heard Didden v. Village of Port Chester — and ruled against the property owner in a case reviled by proponents of property rights.
The brief decision in Didden made two points. First, it said Mr. Didden had filed his suit too late. The village had announced the redevelopment plan in 1999, and Mr. Didden did not sue until 2004. His claim, the court said, was therefore barred by a three-year statute of limitations.
That was a curious ruling, Professor Epstein said, because it required Mr. Didden to sue over his claim of extortion before it happened.
The court also rejected Mr. Didden’s claim that Port Chester should not be allowed to take his property so that another company could build a different drug store. The takings clause of the Fifth Amendment — “nor shall private property be taken for public use without just compensation” — should not apply, he had argued, to such transfers.
Judge Roberts, at his confirmation hearings in 2005, seemed sympathetic to that kind of argument. The takings clause is uncontroversial when it is used to take property for public purposes like roads and schools. But it is a “basic proposition,” Judge Roberts added, that “government can’t take property from A and give it to B.”
Posted by eric at June 15, 2009 9:52 PM