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September 22, 2010

Gerges dismisses final eminent domain challenge: "alleged additional changes... even if factually true... do not change the public purpose"

Atlantic Yards Report

This case, on the other hand, was the small, final hope for stopping Atlantic Yards through an eminent domain challenge.

So much for charges that the Atlantic Yards Development Agreement--which allows for 25 years, rather than ten, to build the project-- "was intentionally withheld in bad faith."

So much for attorney Matthew Brinckerhoff's assertion that "we now know [the ten-year project timetable] is complete, utter fantasy."

So much for Brinckerhoff's charge that the Empire State Development Corporation (ESDC) timed release of information to avoid judicial scrutiny.

In a decision that was hardly unexpected, Brooklyn Supreme Court Justice Abraham Gerges on September 20 dismissed a lawsuit--Article 78 Petition to Compel the ESDC to Issue New Determinations and Findings, with three remaining plaintiffs--arguing that the project had changed so much and the public benefits so attenuated that new eminent domain findings should be made.

(This was the final case challenging eminent domain. Supreme Court Justice Marcy Friedman is still considering a reargument of a case challenging the project timeline.)

Development Agreement not important

Gerges had already rejected most of the arguments in March, in a decision in a case challenging the ESDC's condemnation process.

But the Development Agreement had not been part of that case. No matter. His key paragraph in the new decision:

For the same reasons, the court further finds that the alleged additional changes to the Project that petitioners rely upon in this action, even if factually true, similarly do not change the public purpose to be served by the Project, i.e., to eliminate blight and the blighting influence of the below-grade rail yard and to construct a civil [sic] project. In this regard, it is noted that although the alleged changes to the Project are now discussed in more detail, based upon the assertion that more details have been revealed, the basic premise of the arguments have already been considered and rejected by the court in the Condemnation Decision and adopted herein.

(Emphasis added)

This raises a question: could even more extreme changes, "if factually true," change the public purpose? In other words, if the developer had 100 years to eliminate blight, with no effective penalties, would the public purpose be attenuated?

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NoLandGrab: Justice isn't just blind in New York State — it's deaf and dumb, too.

Posted by eric at September 22, 2010 11:00 AM