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Saturday, February 02, 2008
 
Second Circuit Rejects Eminent Domain Challenge in Brooklyn Redevelopment

It was half a century ago when the fate of the Brooklyn Dodgers rested on building a proposed new stadium on Atlantic and Flatbush Avenues, a fading transportation hub in the central area of the borough. Dodgers' owner Walter O'Malley wanted the city to seize some of the land for the stadium (which he would build with private money), but Robert Moses, the legendary master builder, balked, claiming that the government could not justify seizing land for the purpose of a private baseball stadium. Of course, the rest is history.

After years of second-class status under the more glamorous Manhattan, Brooklyn has come back to its own, establishing (or re-establishing) a unique identity. With a successful rebuilding of once "lost" neighborhoods, an influx of new residents and the resulting increased property values, Brooklyn has become chi-chi once again. In sports, it has a thriving minor league team playing in Coney Island and will soon become home to its first major league professional team, the NBA Nets, since the Dodger bid adieu.

That dream came closer to reality when the U.S. Court of Appeals for the Second Circuit upheld the right of the state to seize private land as part of a massive redevelopment program, thereby rejecting the plaintiffs' claims it violated the "Public Use" clause of the Fifth Amendment. In an opinion consistent with established precedent, Judge Robert Katzmann, in Goldstein v. Pataki, affirmed a lower court ruling that the redevelopment program was not simply a "pretext" for the Nets owner to build his stadium and office and apartment buidings around it.

Bruce Ratner makes his living as a real estate developer who also happens to own the Nets. His goal was to move the team from its present location in East Rutherford, NJ to Brooklyn and has crafted together a plan to finance a new stadium (to be known as the Barclays' Center). Working in conjunction with the State, the project, known as The Atlantic Yards Arena and Redevelopment Project is a publicly subsidized development project set to cover twenty-two acres in and around the Metropolitan Transit Authority's (MTA) Vanderbilt Yards, an area which covers Atlantic and Flatbush Avenues. It would include, in addition to the new arena, "a public open space, the creation of affordable housing units and the redevelopment of an area in downtown Brooklyn afflicted for decades with substantial blight."

Although most of the land is owned by the MTA, a state entity, some of the adjacent land is privately owned and was the subject of this appeal. The main contention was that Ratner was the sole beneficiary of this development. In affirming the trial court, the Judge Katzmann's opinion was consistent in allowing the state considerable discretion in determining what is a "taking for public use" under the Fifth Amendment. The court stated: "Over the last century reflecting the direction of Supreme Court case law, federal courts have had a much greater role in addressing what type of governmental action constitutes a taking and what level of compensation is just, leaving to legislatures to determine, in all but the most extreme cases, whether a taking fulfills the public-use requirement." Citing past Supreme Court and circuit court cases, the opinion concluded: [O]nce we discern a valid public use to which the project is rationally related, it "makes no difference that the property will be transferred to private developers, for the power of eminent domain is merely the means to the end."

In so concluding, the court rejected the argument that the project's public benefits are serving as a "pretext" for "enriching" Ratner and distinguished this set of fact from those of the recent Supreme Court ruling in Kelo v. City of New London, 545 U.S. 469 (2005). In a single sentence, the majority opinion in Kelo stated that a city could not take property under the "mere pretext" of a public purpose when its actual purpose was to bestow a private benefit. This court found no such pretext here.

The court's ruling is a proper and reasonable one, giving the government proper deference and determining that this dispute is more political than judicial. However, it is ironic that the Nets wil get the facility that Walter O'Malley wanted.





5 Comments:

Corrections:

Sports LAW blog wrote: "Although most of the land is owned by the MTA, a state entity, some of the adjacent land is privately owned and was the subject of this appeal."

This is incorrect. the proposed project site is 22 acres. The rail yard, Vanderbilt Yards, is 8.5 acres. That means the land owned by the MTA (publicly owned land sold for a song to Ratner) is 38.6% of the site. That is is not, obviously, "most of the land." The rest of the land Ratner wants to build his behemoth is publicly owned city streets that he would get for $1 and yes, private homes and business - about 70 private parcels to be precise.


Sports LAW blog wrote: "However, it is ironic that the Nets wil get the facility that Walter O'Malley wanted. "

This is incorrect. It is not the same site. http://www.nolandgrab.org/archives/2007/12/the_urban_le gen.html


Question:
Sports LAW blog wrote: "The court's ruling is a proper and reasonable one, giving the government proper deference and determining that this dispute is more political than judicial."

Has Sports LAW blog read the briefs? If you had, you'd understand why it is not a proper or reasonable ruling. It is the legislature that is supposed to be given deference. Not "government." In the case of Ratner's abuse of eminent domain, the NY legislature played no role. And thus no deference can or should be paid to the legislative decision to take properties as the legislature never made any such decision.

If you think the Nets are ever coming to Brooklyn we've got a bridge to sell you.

Anonymous Anonymous -- 2/03/2008 9:06 AM  


Just a quick response to anonymous's critique:

1. The land for the Nets Arena may not be in the exact location, but certainly it is in the area.

2. Public Authorities have used eminent domain (rightly or wrongly) for decades to seize land for public purposes. From the Port Authority's seizure of land for the World Trade Center (obviously not done by the legislature) to the creation of beaches, roads, bridges and even Lincoln Center, the courts have not stopped the seizure of private lands for that purpose. So with that in mind, this ruling is not inconsistent and is within the prevailing standards. Here's a question: do you think that the U.S. Supreme Court would overrule this decision?

Blogger Mark Conrad -- 2/04/2008 12:15 AM  


Would the SJC overrule this decision? Hopefully, yes! With the decision in Kelo, the line has been crossed. It won't be long before we can never be assured that what's ours is ours since government will have the "right" to take it from us if they see fit -- that bar is getting lower and lower by the way. The Constitution was designed to protect citizens FROM the government not to give the government more and more rights over the citizens.

Anonymous CLLR -- 2/04/2008 10:00 AM  


Adding to CLLR's comment

The Court crossed the line with Kelo! to many of us this is clear, while others wuld agree with the decision.

But I'm not counting on a quick fix here.

Stevens wrote the majority opinion; he was joined by Justices Kennedy, Souter,Ginsburg and Breyer.

The Dissent in Kelo consisted of Sandra Day O'Connor, joined by Chief Justice William Rehnquist, Scalia,and Thomas.

What has changed since Kelo?

We have the addition of CJ Roberts, and Justice Alito. I believe both would have been in the dissent if on the bench during Kelo. But they replaced O'connor and Rhenquist, both Kelo dissenters....

Kennedy was the swing vote in Kelo, and unless he has changed his mind, (and we can only hope!) Kelo will stand as is(rightly or wrongly).

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