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February 9, 2010

Would the Court of Appeals permit reargument of the Atlantic Yards case, given the Columbia appeal? It's a long shot, and we should know soon

Atlantic Yards Report

The unusual, long shot effort to get the state Court of Appeals to reopen the Atlantic Yards eminent domain case it dismissed in November could see a result as early as today, when the Court of Appeals resumes issuing decisions. Or it could linger for weeks or months.

Should the court agree to reargument of the appeal, or to simply hold it in abeyance until the not dissimilar Columbia University case is resolved, that could stay the pending decision by state Supreme Court Justice Abraham Gerges on an unusual challenge to the actual condemnation.

But if the court dismisses the motion, that would remove one of the few potential roadblocks--all long shots--to transfer of title should Gerges rule in favor of the Empire State Development Corporation (ESDC).

Forest City Ratner is proceeding--mostly--as if none of these cases poses a threat; it has signed contracts for arena construction and has continued utility work and demolition, but has not announced an official groundbreaking.

The Columbia opening

Let's recap. The AY case, known as Goldstein v. ESDC, was dismissed 6-1 in late November, with the majority opinion stating that it was the role of the Legislature, not the courts, to narrow the definition of blight and the dissenting judge saying the court was much too deferential to the ESDC.

Nine days later, a lower court, the Appellate Division, blocked the ESDC's use of eminent domain in the Columbia University expansion, in a case known as Kaur v. ESDC. While the ruling was 3-2, the two-judge plurality opinion slammed the ESDC for its use of consultant AKRF, its reliance on underutilization as an indicia of blight, and its indulgence toward a private developer.

While the fact pattern in the Columbia case is different from the AY case, the issues of underutilization and deference to the agency are similar. Then again, Judge James Catterson's plurality opinion ignored any reference to the judge-decided AY case, a glaring omission leaving open the option for a complete reversal.

But the Court of Appeals had already ruled against the ESDC in another Columbia case--regarding the agency's unwillingness to hand over documents requested via the Freedom fo Information Law--and may be disposed to looking carefully at its actions.

Courts, as institutions, are generally reluctant to admit that they just made mistakes, so the petitioners in the AY case have an uphill climb.

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Posted by eric at February 9, 2010 10:59 AM