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December 4, 2009
Can decision in Columbia eminent domain case reopen AY case? DDDB is trying, but there are both similarities and contrasts (and also precedent)
Atlantic Yards Report
Based on the surprising 3-2 Appellate Division decision yesterday blocking the the Empire State Development Corporation's use of eminent domain for the Columbia University expansion, Develop Don't Destroy Brooklyn, organizer and funder of the Atlantic Yards eminent domain case, hopes that it can succeed in the rare step of reopening the latter.
It's not easy. First, the Court of Appeals has to agree to such a rare step.
Then the plaintiffs have to win. And that wouldn't be easy, either, because the decision in the Columbia case was in significant tension with the Court of Appeals' decision just last week in the Atlantic Yards eminent domain case.
And even if the Columbia decision is not overturned, it is possible--depending on which frame the court uses--to make a distinction between the Columbia case and the Atlantic Yards case. Then again, there are some fundamental similarities.
Fundamental flaw
The fundamental flaw in Justice James Catterson's opinion yesterday is that he completely ignored the Court of Appeals decision in the Atlantic Yards case, an opinion cited in Justice Peter Tom's Columbia dissent as compelling the Court of Appeals to defer to the ESDC's designation of blight.
...Reopening the case
Brinckerhoff told me that, in most circumstances, a motion for reconsideration is futile. He said he was "cautiously hopeful" that the Court of Appeals, recognizing that the two rulings appear inconsistent, would accept the motion.
Then it could, at minimum, hold the case in abeyance until the appeal in the Columbia case is decided. That appeal could be heard in March, with a decision coming within six weeks after that.
..."If I was involved in the bond sale, I would be looking at this decision and it would concern me, in a way that is very unexpected," Brinckerhoff said. The case is going to go to the Court of Appeals, he noted, "and judges ruled one way that seems rather inconsistent, in an opinion that doesn't cite [the AY case]."
Posted by eric at December 4, 2009 10:54 AM