Nets Owner Picks Up another Victory in Quest for Brooklyn Arena

Jun 19, 2009

A New York state court has undercut an argument made by Brooklyn landowners and tenants, who argued that Nets owner Bruce Ratner’s use of eminent domain to clear space for a new arena violated the New York Constitution, which imposes a more restrictive standard for the taking of private property than that imposed by the United States Constitution.
In the wake of that ruling, attorney Matthew Brinckerhoff, who represents plaintiff Develop Don’t Destroy Brooklyn, promised an appeal to the state’s highest court, “so that court can determine that the New York Constitution’s Public Use Clause provides greater protection to its citizens than the federal Constitution.”
In examining the merits of the plaintiffs’ argument, the court wrote that “the petitioners contend that the Atlantic Yards project violates the Public Use clause of NY Constitution, article I, § 7, for two main reasons.
“First, the petitioners assert that NY Constitution, article I, § 7(a), which provides that ‘private property shall not be taken for public use without just compensation,’ must be read restrictively to allow the state to exercise its eminent domain power only where the condemned property is to be held open for use by all members of the public.
“The petitioners maintain that a literal interpretation of the phrase ‘public use’ is consistent with the intent of the framers of the New York Constitution, and that cases from the late 19th and early 20th centuries decided closer in time to the adoption of the New York Constitution in 1821 are necessarily more authoritative than modern case law. The petitioners assert that recent case law evaluating the constitutionality of condemnation determinations has become ‘infected’ by federal jurisprudence, which more expansively interprets the Public Use clause of the United States Constitution to permit takings that promote a ‘public purpose,’ such as economic development (Kelo v City of New London, 545 US 469, 480).”
The court was unmoved by the argument, noting that “even if the authority cited by the petitioners could be construed as limiting the exercise of the power of eminent domain to takings of land that would be open to use by the public, the Court of Appeals rejected this narrow interpretation more than 70 years ago in its 1936 decision in Matter of New York City Hous. Auth. v Muller (270 NY 333).”
The court emphasized that “as Muller aptly illustrates, the literal interpretation of the concept of public use, which the petitioners urge us to apply was abandoned long before the United States Supreme Court concluded, in its 2005 decision in Kelo v City of New London (545 US 469), that the use of eminent domain to carry out an economic development plan does not violate the Fifth Amendment to the United States Constitution.
“Further undercutting the petitioners’ position is the fact that the more expansive formulation of ‘public use’ recognized by the courts for many years was codified in 1977 when the EDPL was enacted to create a uniform procedure for the exercise of the power of eminent domain. In this regard, EDPL 207 expressly authorizes this Court, in reviewing a condemnation determination, to consider whether ‘a public use, benefit or purpose will be served by the proposed acquisition’ (EDPL 207[C][4]). Thus, the petitioners’ contention that the Public Use clause of the New York Constitution permits property to be acquired only where it will be held open for use by the public is wholly at odds with the very statutory authority which permits this Court to review ESDC’s determination. Accordingly, we reject the petitioners’ argument that the New York Constitution allows the taking of private property only for use by the public.”
The court next turned to the petitioners’ second argument that “even if the term ‘public use’ may be properly construed to include public benefit or purpose, the proposed condemnation of their properties is unlawful because it will not serve a public use even under this expanded definition. In support of this argument, the petitioners stress that their own properties are not blighted. The petitioners also argue that the public will not actually benefit from the takings since the promised benefits, including new jobs and affordable housing, may never be achieved.
“What qualifies as a public purpose or public use is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility or advantage (Matter of 49 WB, LLC v Village of Haverstraw, 44 AD3d at 235). … We find that the petitioners failed to sustain their burden of showing that the challenged determination is not rationally related to a legitimate public purpose.”
Daniel Goldstein, et al v. New York State Urban Development Corporation, d/b/a Empire State Development Corporation; S.Ct.N.Y., App. Div., 2d Jud. Dept.; 2008-07064; 5/12/09
The case is available on the Internet at
Attorneys of Record: (for petitioners) Emery Celli Brinckerhoff & Abady LLP, New York, N.Y. (Matthew D. Brinckerhoff of counsel) and John C. Gray, Jr., Brooklyn, N.Y. (Jennifer Levy of counsel). (for respondent) Berger & Webb, LLP, New York, N.Y. (Charles S. Webb III and Kenneth J. Applebaum of counsel) and Bryan Cave LLP, New York, N.Y. (Philip E. Karmel of counsel).


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