November 24th, 2009 — By — In News & Events

NY Court of Appeals rules in favor of Atlantic Yards eminent domain

In a decision released today, New York’s highest court upholds 6-1 the use of eminent domain by the New York State urban Development Corporation d/b/a Empire State Development Corporation (“ESDC”) for the multi-use Atlantic Yards project in Brooklyn.

The majority opinion authored by Chief Judge Jonathan Lippman suggests that it is not the role of the Judiciary to interfere with legislative agencies. Judge Lippman writes: “The [NY] Constitution accords government broad power to take and clear substandard and insanitary areas for redevelopment. In so doing, it commensurately deprives the Judiciary of grounds to interfere with the exercise.” (Opinion, p. 18).

Although Lippman suggests that the ESDC may have overreached with the designation of blight for portions of the Atlantic Yards footprint, the opinion is clear that this is a matter for the Legislature to tackle. “It may be that the bar has now been set too low — that what will now pass as “blight,” as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.” (Opinion, p. 17).

In his dissenting opinion Judge Robert Smith writes: “The good news from today’s decision is that our Court has not followed the lead of the United States Supreme Court in rendering the ‘public use’ restriction on the Eminent Domain Clause virtually meaningless. The bad news is that the majority is much too deferential to the self-serving determination by Empire State Development Corporation (ESDC) that petitioners live in a ‘blighted’ area, and are accordingly subject to having their homes seized and turned over to a private developer.” (Dissent, p. 1).

Despite today’s opinion in favor of the ESDC, Atlantic Yards continues on an uphill legal battle with three other lawsuits pending.

For additional commentary visit Norman Oder’s Atlantic Yards Report.

See also Charles Bagli’s article in today’s NY Times Atlantic Yards Project in Brooklyn Clears Legal Hurdle.

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