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Atlantic Yards: Court of Appeals Hears Case

ALBANY-The state's highest court yesterday confronted the issue of whether eminent domain should have been used to advance a massive private development in Brooklyn.

By Joel Stashenko | Updated on October 15, 2009

(This story appeared in a slightly different form originally in the New York Law Journal.)ALBANY-The state’s highest court yesterday confronted the issue of whether eminent domain should have been used to advance a massive private development in Brooklyn. Philip E. Karmel, arguing for the Empire State Development Corp. on behalf of developer Bruce C. Ratner’s Atlantic Yards project, told the Court of Appeals that the development would replace 22 acres of largely “substandard and unsanitary” land.

“It’s extremely well-established, from many, many decades that that is an adequate constitutional basis for use of eminent domain,” Mr. Karmel told the judges in Matter of Goldstein v. New York State Urban Development Corp., 178.

Matthew D. Brinckerhoff countered for project opponents that the nearly $4 billion Atlantic Yards, whose centerpiece would be a new arena for the NBA’s New Jersey Nets, does not fit the Public Use Clause of Article I, §7 of the state Constitution. The clause, which first appeared in the Constitution in 1821, prohibits taking private property for public use without just compensation. Mr. Brinckerhoff argued that Empire State Development failed to show how the project meets the definition of “public use” that has developed in state courts since.

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