« Judge Approves Seizure of Homes for Ratner | Main | Atlantic and Flatbush time lapse »
March 2, 2010
In decision by Gerges allowing condemnation, unwillingness to evaluate significance of changes in AY benefits
Atlantic Yards Report
Norman Oder reviews Supreme Court Justice Abraham Gerges's decision and explains why NY State and developer Forest City Ratner can continue to move the goal posts for the Atlantic Yards timeline and public benefits, as long as no one in the judiciary seems to be able to stop them.
It may be that no court agrees to evaluate whether the changes in the benefits to the Atlantic Yards project are significant.
That's the import of Supreme Court Justice Abraham Gerges' decision upholding condemnation for the Atlantic Yards project. Gerges claimed that the claims should have been filed by October--an analysis that attorney Matthew Brinckerhoff, representing those resisting condemnation, said was wrong, as described below.
And Gerges's decision portends a similar outcome in a parallel case still pending, aiming to compel the Empire State Development Corporation (ESDC) to issue new Determinations and Findings (D&F) as a precursor to the use of eminent domain.
...
What about the revised MTA deal that allows for a far longer time to acquire the site? The ESDC noted that a challenge to the deal had already been rejected in December.Gerges wrote:
Moreover, petitioner asserts that the MTA business arrangement has no relevance to the validity of the 2006 D&F because those findings relate to the public purposes of the Project, which have not changed. They also note FCRC's obligations to ESDC are dictated not by a transaction with the MTA, but by the 2009 MGPP and the implementing agreements between FCRC and ESDC. The essential terms of the Development Agreement obligated FCRC to construct the Project as described in the 2009 MGPP and to use commercially reasonable efforts to do so by 2019.
Gerges wrote that challenges to condemnation on grounds of bad faith and/or lack of public purposes should be raised--as they had been--in a challenging to the finding of eminent domain, rather than the condemnation action.
Also, he agreed that the case known as Leichter, involving changes to the Times Square plan, disallowed challenges to a revised AY plan.
Gerges wrote:
It has already been determined that the petition adequately sets forth the public uses for which the subject property is needed. The court also finds, as argued by petitioner, that the public purpose to be served by the Project was not changed by the 2009 MGPP. Moreover, to the extent that the Project has changed, the above discussed holdings in Leichter and Toh Realty clearly establish that petitioner is not obligated to begin a de novo review proceeding... In this regard, it must also be noted that the numerous judicial challenges to the Project resulted in extensive delay, as was the case in Leichter. More significantly, it cannot be disputed that the economic conditions in which the Project was proposed in 2002 have changed drastically in that the world-wide economy is now in one of the worst downturns in history.
Posted by lumi at March 2, 2010 5:51 AM