By Ryan Thompson
Brooklyn Daily Eagle

DOWNTOWN BROOKLYN — On the same day that a legal brief was filed with the New York Court of Appeals in preparation for upcoming oral arguments over eminent domain, opponents of Atlantic Yards filed another brief with the same court but in a separate case.

Tuesday, Develop Don’t Destroy Brooklyn (DDDB) announced that it filed a memorandum of law with the Court of Appeals seeking leave to appeal an Appellate Division-First Department judgment that upheld the Manhattan Supreme Court’s dismissal of DDDB v. Urban Development Corp.

The case — filed on Friday by DDDB itself, instead of property owners or renters who live on the proposed site — directly seeks to stop Atlantic Yards based on alleged faults with the environmental impact statement and review.

“Earlier this year, the Appellate Division ruled that the state’s ‘blight’ designation had a ‘rational basis,’� DDDB wrote in Tuesday’s press release. “However, Justice [James M.] Catterson — one of the four judges on the panel — wrote a concurring opinion which raises substantial questions about that basis, strongly suggesting there was no rational basis, but rather a decision to facilitate Forest City Ratner in its effort to control 22 valuable acres in the heart of Brooklyn.�

“As Justice Catterson properly noted, [the state’s Empire State Development Corporation]’s failure to consider the context of existing economic development trends in Prospect Heights should make the blight determination per se irrational,� DDDB attorney Jeffrey Baker said. “The ESDC’s blight determination was clearly pre-determined, and therefore biased, arbitrary and capricious and should be overturned.�

If the Court of Appeals grants petitioners’ Motion for Leave to Appeal, then it will schedule oral arguments sometime at the end of this year or perhaps next year. Oral arguments over the eminent domain case are scheduled for Oct. 14 at 2 p.m. A decision is then expected within six to eight weeks after argument.

Several months ago, Atlantic Yards opponents successfully convinced the Court of Appeals, the state’s highest court, to hear the case that challenges the state’s use of eminent domain. The state’s ESDC intends to take various parcels of land in Prospect Heights so as to allow developer Bruce Ratner to build Atlantic Yards and the Barclays Center basketball arena.

On Friday, just hours before a strict court-imposed deadline, the petitioners filed their appellant brief in support of their challenges to eminent domain.

The 89-page brief, in part, argues that the 2005 U.S. Supreme Court decision in Kelo v. City of New London was wrongly decided. The 5-to-4 split decision by the court was highly criticized by some as interpreting the Constitution’s Taking Clause too liberally and giving too much power to the government to take private property.

“Kelo was wrongly decided,� DDDB attorney Matthew Brinckerhoff said. “This case provides an opportunity for the New York Court of Appeals to reject Kelo and continue its proud tradition of interpreting this state’s constitution in a manner that affords more protection to individual rights and liberties. We look forward to the argument in October.�

Regardless of what the New York Court of Appeals decides, the Atlantic Yards project will likely be delayed until at least winter, based on the court’s schedule. Therefore, resolution of the eminent domain issues and transferring of title may not 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. If he doesn’t meet the various Dec. 31 deadlines, some say the entire project could be abandoned.

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.

Opponents of Atlantic Yards, despite losing every major court case and lawsuit, vow to sue for as long as they deem necessary. DDDB lawyers previously told the Eagle that they have several more potential lawsuits that they will consider filing before the state moves to take title to the land.

Specifically, according to DDDB, the latest brief filed in the case that challenges the environmental review asks the Court of Appeals to hear its case and address the following:

“1. Whether ESDC’s purposeful denial and mischaracterization of the uncontroverted economic conditions and trends in the project area, and its knowing misrepresentations of crime data in the project area, to support its ‘blight’ determination, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its determination that the area is ‘substandard and insanitary’ for purposes of designating the project a ‘land use improvement project’ under the Urban Development Corporation Act (UDCA).

2. Whether ESDC’s purposeful denial and mischaracterization of the uncontroverted economic conditions and development trends in the project area, in order to justify its rejection of project alternatives, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its rejection of project alternatives under State Environmental Quality Review Act (SEQRA).

3. Whether ESDC was required to consider the economic conditions and development trends in the project area in order to exercise its authority to designate and undertake the project as a ‘land use improvement project’ under the UDCA.

4. Whether a sports arena leased for one dollar per year to a private, for-profit entity to be operated as a professional sports facility, with trivial civic benefits, may nevertheless be designated a ‘civic project’ under the UDCA.

5. Whether the standard of review of an agency action under CPLR Article 78 is the same as the standard of review in a taxpayer action under section 51 of the General Municipal Law.�

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