The original suit was dismissed in June 2007, as GlobeSt.com reported, and the dismissal was later affirmed by the Appellate Division in Oct. 2007. Two weeks ago, opponents suffered another defeat when the New York State Supreme Court ruled against them in a case involving environmental review procedures, as GlobeSt.com reported.

Bruce Ratner, CEO and chairman of Forest City, says in a prepared statement that "today's decision is more than another victory for Atlantic Yards; it is a victory for public good and the importance of investing in diverse communities throughout the City. Atlantic Yards will bring thousands of affordable homes and needed jobs to Brooklyn. We believe, and the courts have repeatedly agreed, that these are real benefits that will have a significantly positive impact on the borough and the City."

The appeals court said that few powers of government have as immediate and intrusive an impact on the lives of citizens as the power of eminent domain. "For affected property owners, monetary compensation may understandably seem an imperfect substitute for the hardships of dislocation and the loss of a home or business," the court said. "But federal judges may not intervene in such matters simply on the basis of our sympathies. Just as eminent domain has its costs, it has its benefits, and in all but the most extreme cases, Supreme Court precedent requires us to leave questions of how to balance the two to the elected representatives of government, notwithstanding the hardships felt by those whose property is slated for condemnation."

The court continued that in their view, "the plaintiffs-appellants effectively acknowledge, albeit reluctantly, that the well-publicized, multibillion dollar development project they challenge would result in a new stadium for the New Jersey Nets, 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. They contend, however, that the project's public benefits are serving as a 'pretext' that masks its actual raison d'être: enriching the private individual who proposed it and stands to profit most from its completion. Following Supreme Court precedent, we conclude that the plaintiffs have not mounted a viable Fifth Amendment challenge. The judgment of the district court is affirmed."

Construction work on Atlantic Yards began in February 2007. According to Forest City, the Barclays Center is expected to open sometime in 2010. To date, roughly 50% of the structures on the site have been demolished or are in the process. Twenty-five structures have been knocked down and an additional eight buildings, including the former Ward Bread Building, are being destroyed or are slated to be in the short term. There are 11 vacant lots and 28 other remaining buildings. More than $40 million worth of contracts have already been awarded to contractors for work on the site thus far.

The plaintiffs' attorney, Matthew Brinckerhoff, says that the decision is disappointing, and notes that "we intend to ask the US Supreme Court to hear our case, and will continue to pursue every avenue available to prevent the unlawful seizure of my clients' homes for Bruce Ratner's enrichment." He continues that the court's decision "affirmed that the government is free to take private homes and businesses and give them to influential citizens as long as one can imagine a conceivable benefit to the public, no matter how small or unlikely it may be. Indeed, it does not matter if all evidence points to a secret back room deal. All corrupt politicians need do to insulate themselves from judicial scrutiny is claim a benefit to the public. This is wrong. It should trouble all citizens who, unlike Bruce Ratner, lack the power and money to co-opt the governments' power of eminent domain for their private use. We believe that the United States Supreme Court will welcome the opportunity to clarify this area in light of its widely criticized Kelo decision."

The court has reviewed such claims and said that the plaintiffs "have failed to allege any specific examples of illegality in the elaborate process by which the project was approved, any specific illustration of improper dealings between Mr. Ratner and the pertinent government officials, or any specific defect in the project that would be so egregious as to render it, on any fair reading of precedent, 'palpably without reasonable foundation.' "

Legal director Candace Carponter of community coalition Develop Don't Destroy Brooklyn, who opposes the development, says "our support of the fight of citizens to live safely in their homes, and operate safely in their business, will continue. We maintain that the government's motivation in using eminent domain for Atlantic Yards is not to benefit the public, but rather, to benefit a single, very rich and powerful developer. The seizure of our neighbors' homes and businesses is at the very foundation of the Atlantic Yards project. It is a foundation that must not stand. Now is the time for our elected leaders, who have frequently expressed grave concern about the abuse of eminent domain, to publicly stand in defense of everyday Brooklynites and New Yorkers."

Instant Insights /

Eminent Domain Decision Favors Atlantic Yards

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