Empire State Development Corp.'s use of eminent domain for the Atlantic Yards project. The New York State Court of Appeals will hear the appeal sometime in October--a time-frame that could jeopardize the tax-exempt status of a sale of bonds to finance construction on the Brooklyn mega-project's basketball arena.

According to the preliminary statement filed in late June by Daniel Goldstein, founder of the group Develop Don't Destroy Brooklyn, and his co-appellants, the appeal will ask the court to consider whether the public use requirement of the New York State Constitution imposes "a more stringent standard for takings than does the Fifth Amendment." It will also ask the court to determine whether the public use requirement of the state constitution "is satisfied when a condemning authority"--that is, the ESDC--"determines that the public benefit to be gained by forcibly appropriating citizens' homes and businesses is 'not incidental or pre-textual in comparison with benefits to particular, favored private entities" without examining the nature and magnitude of the benefits that would accrue to the private entity.

In this case, the private entity is Forest City Ratner Cos. The developer in June got breaks from the boards of ESDC and the Metropolitan Transportation Authority in the form of a modified general project plan and a stretched-out payment schedule for a parcel of MTA land FCRC needs to develop the project.

In a release, Goldstein says he and his fellow landowners "will vigorously continue to defend our rights." He adds, however, that the state and ESDC "have a choice: they could avoid our legal challenge by finally taking eminent domain off the table, and working to implement affordable housing over the rail yards based on the community's development plan offered to the MTA last week--the UNITY Plan."