By Ryan Thompson
Brooklyn Daily Eagle

DOWNTOWN BROOKLYN — The state’s highest court has chosen a date to consider the constitutionality of Atlantic Yards. Oral arguments are set for Oct. 14 at 2 p.m.

Regardless of what the New York Court of Appeals decides, the multibillion dollar project will likely be delayed until at least winter, based on this schedule.

After oral arguments on Oct 14, a decision from the court is expected to be issued in November or December, meaning that resolution of the eminent domain issues and transferring of title likely won’t happen until sometime next year, assuming that the court finds the use of eminent domain to be constitutional.

Developer Bruce Ratner, facing financial deadlines, had vowed to break ground on the Barclays Center basketball arena in the fall. That now appears impossible, according to the court’s scheduling of the case.

The Court of Appeals, which is comprised of seven judges, including Brooklyn-born Theodore T. Jones, confirmed to the Eagle that once the case is argued in Albany , the court will issue its decision six to eight weeks later. Based on the six-to-eight-week timeframe for issuing decisions, the Court of Appeals will likely issue its decision on Atlantic Yards sometime between Nov. 25 and Dec 9. Thanksgiving this year is Nov. 26.

Therefore, even if the appeal ultimately fails, Ratner probably still won’t get title to the land until next year. Considering the holiday season and schedules, it may not be until 2010 when the transferring of title proceedings take place in Brooklyn Supreme Court, which proceedings Atlantic Yards opponents will also challenge.

The appellants in the current case include property-owner Daniel Goldstein, the spokesman for Develop Don’t Destroy Brooklyn (DDDB), which organization is primarily responsible for the years of delays that have plagued the Atlantic Yards project in Downtown Brooklyn.

Through constant litigation and lawsuits, DDDB and its supporters have successfully stopped Ratner from building the multibillion dollar project according to schedule, which would have meant the New Jersey Nets moving to Brooklyn several years ago. Some now wonder if the myriad of lawsuits will prevent Atlantic Yards from being built altogether.

Opponents of Atlantic Yards, despite losing every major court case and lawsuit, vow to sue for as long as possible. Their intention presumably is to stop the state from taking several parcels of land via eminent domain, thereby preventing Forest City Ratner from building the 22-acre planned development, which includes over a dozen skyscrapers and a basketball arena at Flatbush and Atlantic avenues.

Last year in May, the New York Court of Appeals denied leave to appeal for another eminent domain challenge filed in state court by property-owners. And one month later, the U.S. Supreme Court refused the eminent domain lawsuit filed in federal court.

Other property owners, including Goldstein, filed this latest eminent domain lawsuit in Brooklyn last August. It was argued in February and denied by the Appellate Division, Second Department in May. A Notice of Appeal was filed last month with the Court of Appeals in Albany, and the Court of Appeals sent out a letter two weeks ago informing the litigants that it has agreed to hear oral arguments.

There does not appear to be any possibility of having an expedited schedule for oral arguments, as the court seems inclined to provide both the appellants and appellees ample time to prepare. The court established the following schedule for submission of legal briefs:

—Appellants’ brief due July 31 (Not meeting this deadline will cause the appeal to be dismissed.)

—Respondents’ brief due Sept. 10

—Appellants’ Reply brief, if any, due Sept. 25

Also in this letter, the Court of Appeals told Brinckerhoff and the other attorneys — appellant co-counsel Jennifer Levy, of South Brooklyn Legal Services, and appellee attorney Philip E. Karmel, of Bryan Cave LLP — that both sides should be prepared to argue why or why not the Court of Appeals has jurisdiction over the case.

Jurisdiction exercised by the Court of Appeals would be appropriate if significant state constitutional questions are legitimately raised by the appellants’ challenges to the state’s use of eminent domain.

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