By Ryan Thompson
Brooklyn Daily Eagle

DOWNTOWN BROOKLYN — If Bruce Ratner had been writing the script, the New Jersey Nets would currently be in their third season of basketball in Brooklyn. And next year, Ratner’s team would acquire arguably the best player in the sport, LeBron James, as Nets part-owner Jay-Z throws a hip-hop concert to welcome the star to the borough of Kings.

If Ratner was writing the script, he would be watching playoff basketball right now, smiling down from his multimillion dollar luxury suite inside the Barclays Center, surrounded by 18,000 fans and several skyscrapers at Atlantic Yards.

For Ratner, the problem is that he is not the only one developing the storyline, as opponents to Atlantic Yards have long had a pen in their hands, as well. And these opponents, intent on writing their own version of the future for Atlantic Yards and Downtown Brooklyn, seem to have an endless inkwell. In fact, these opponents are drafting more legal papers at this very moment. And more lawsuits shall be served.

While opponents to Atlantic Yards continue to lose in court, they continue to sue in court. They’ve lost nearly every major case, and so far, no court nor judge has issued a ruling that would stop or significantly hinder the construction of Atlantic Yards nor the state’s taking of the land via eminent domain.

But losing takes time. And so, through their losses, the losers have been winning. They’ve been losing (a.k.a. winning) for several years now. The project has been delayed for many months, and the Brooklyn Nets’ inaugural season gets pushed back season by season.

Now, Ratner says that the Nets will be playing ball at the triangular intersection of Flatbush and Atlantic avenues, inside his 150-foot-high planned arena, in time for the 2011-12 season. Ground will be broken around September or October of this year, according to Ratner’s development company, Forest City Ratner.

“We are ready to get started,� Ratner writes.

Of course he is. But the problem still exists; he is not the only one writing the story.

Appealing Eminent Domain

The eminent domain challenges are nearing the end — especially after a Friday court decision in Brooklyn.

Some of the opposition to Atlantic Yards consists of residents facing eviction from their homes when the state seeks to take/buy their land through eminent domain. Lawsuits were filed in both federal and state courts challenging this use of eminent domain, which can only be utilized “for public use� and must provide the residents whose land is taken with “just compensation.�

Daniel Goldstein, a resident and the spokesman for the lead opposition group, Develop Don’t Destroy Brooklyn (DDDB), and Freddy’s Bar, located on Dean Street at Sixth Avenue, both face eviction from their properties, which sit in the footprint of the proposed basketball arena. The Barclays Center is the centerpiece for the 22-acre, multibillion dollar project.

On Friday, the final eminent domain challenge was denied by the state Appellate Division, Second Department, which sits on Monroe Place in Brooklyn Heights. The four-judge panel unanimously agreed that the taking of the land did not violate the state constitution.

“We’re thrilled with today’s decision,� Ratner said on Friday. “The world has changed significantly since we announced this project in December 2003. But one thing has never changed — Forest City’s commitment to bringing the Nets to Brooklyn and building an arena and residential community that will make the people of Brooklyn and the entire city proud.�

Goldstein, the lead plaintiff in the case, Goldstein et al. v. Empire State Development Corporation, says the case will now go to the Court of Appeals in Albany, the state’s highest court. DDDB lead attorney Matthew Brinckerhoff agrees, believing that the constitutional issues are significant enough so that the Court of Appeals must accept the appeal.

According to Brinckerhoff, the constitutional questions are: (1) does the state constitution provide greater protections to its citizens than does the U.S. Constitution, so that the use of eminent domain for Atlantic Yards does not sufficiently satisfy the public use clause; (2) if, without monetary figures showing how much Ratner himself is benefiting from the project, it is therefore impossible to weigh the public good versus the private benefit, as required by the court; and (3) how to interpret a unique 1938 amendment to the state constitution that says that when taking property, if state funds are being contributed to the project, then only low-income housing can be built.

If the Court of Appeals, which is comprised of seven judges, including Brooklyn-born Theodore T. Jones, rejects the appeal because they don’t think the constitutional questions are significant enough, Goldstein and his co-petitioners have two more bites at the proverbial apple, so to speak.

The petitioners can make a Motion for Leave to Appeal to the Appellate Division, so that they can appeal to the Court of Appeals. If that is denied, the petitioners can make the same motion to the Court of Appeals itself.

If all three of these attempts to appeal are denied, then this final eminent domain case is over. If the appeal gets to the Court of Appeals, where it will likely stay for some time, and the Court of Appeals then rejects the appeal, then the case is over just the same.

The other two eminent domain challenges filed by land owners, Goldstein et al v. Pataki et al. and Anderson et al. v. Urban Development Corp., were already dismissed and denied by federal and state courts, and the U.S. Supreme Court and New York Court of Appeals refused to hear the cases. Thus, the eminent domain challenges are nearing the ultimate end. If they all fail, the state then has to get title to the land.

Taking Title

After all the challenges to eminent domain have been exhausted, the state will then file an Article 4 proceeding in Brooklyn Supreme Court to get title to land. DDDB will oppose this.

DDDB will claim that they can’t rightly take the land at Atlantic Yards, because Ratner doesn’t have the necessary bonds and financing in place to make the project a reality.

“We will oppose [that proceeding] because the pieces aren’t in place,� said DDDB Legal Director Candace Carponter. This will lead to perhaps more litigation and cause Ratner further delays. There will also need to be a determination made by the court as to what “just compensation� is and how much the residents who are being displaced will be paid for their land and buildings.

Once title has been obtained, Ratner will likely continue with demolition and begin constructing Atlantic Yards and the basketball arena.

Environmental Challenges

But before title is transferred, DDDB will challenge the environmental review and approval of the project, based on the fact that the initial review and approval are insufficient since the original planned project has been modified so substantially over the years.

DDDB has already filed a similar lawsuit, claiming the original environmental review and approval should be annulled because it was defective. That lawsuit was dismissed by the Manhattan Supreme Court in January 2008. The appeal was denied three months ago, and similar to the eminent domain appeal, the petitioners will make a Motion for Leave to Appeal to the Appellate Division, so that they can appeal to the Court of Appeals. If that is denied, the petitioners can make the same motion to the Court of Appeals itself.

Once that initial environmental lawsuit is exhausted, DDDB will likely already have the second environmental lawsuit in the courts, which challenges the approval on the grounds that the project has changed over the years.

A Half Dozen More Lawsuits

In addition to a lawsuit filed in Manhattan Supreme Court that claims that the project’s timeframe violates state laws, DDDB has a bank of potential lawsuits to come.

Carponter said that if the eminent domain appeals fail, then there are numerous other causes of action for DDDB to pursue.

“Can we bring other challenges? Absolutely,� Carponter said on Monday. “And we will.�

Carponter cited some examples of possible upcoming lawsuits that would seek to stop Atlantic Yards. Carponter said that they could file a taxpayer lawsuit in federal court claiming the IRS made an illegitimate exception specifically for Ratner’s development; or perhaps a lawsuit that challenges the financing of the project.

“I could probably give you a half a dozen right now,� Carponter said.

She acknowledged that the lawsuits would not have the effect of stopping construction of Atlantic Yards unless a stay or an injunction ordering such was issued as part of the new lawsuits. Seeking such injunctive relief would be one of the primary goals.

“Any lawsuit we file, we’d file before they get the land,� Carponter said. “At some point, if we don’t get a stay, they will start construction.�

That means that before title is transferred, DDDB will start suing again. The reason why these lawsuits weren’t originally filed years ago was likely a time-management strategy, so as to cause as much delay as possible. If that was DDDB’s strategy, it seems to be working, as even Ratner admits that the main reason for the construction delays is the pending lawsuits.

“It just depends on who’s got more stamina,� Carponter said, making it clear that DDDB and Atlantic Yards opponents will not stop suing. She added, with a bit of a chuckle, that DDDB didn’t file all of the lawsuits originally because they “didn’t want to seem over-litigious.�

Brooklyn Nets a Reality?

Carponter believes that — with the combination of the lawsuits, political pressure on the state and Gov. David Paterson, and the current economic recession — Atlantic Yards will never be built. Perhaps the Nets are destined to stay in New Jersey for eternity. Perhaps Newark will find itself on the professional sports map.

But Ratner maintains otherwise. “This significant victory keeps Atlantic Yards moving forward,� he writes in regard to Friday’s appellate decision.

His spokesman, Joe DePlasco, says that they are prepared for more lawsuits to come and are confident that litigation will not interfere or delay this year’s groundbreaking.

“I’m sure they’re going to sue. They’re in the business of suing,� DePlasco said, citing Forest City Ratner’s near-perfect record in court. “It’s a waste of time to do hypotheticals. We’re not concerned that additional lawsuits will cause delay.�

Yet, hypothetically speaking, is it possible that Atlantic Yards will face a second-round of multiyear delays?

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