By Samuel Newhouse
Brooklyn Daily Eagle

EAGLE STREET – Attorneys on both sides of the fight over the controversial Atlantic Yards development, which could bring the New Jersey Nets to Brooklyn, held impassioned oral arguments Wednesday in the state’s highest court.

The seven judges of the New York Court of Appeals in Albany hotly questioned attorneys over whether the state could lawfully use eminent domain to seize property and lease it to developer Bruce Ratner.

The court is expected to return a decision by Thanksgiving.

The petitioners in the lawsuit, which are comprised of property owners and businesses, claim that constructing the proposed 22-acre, $4.9 billion project would not constitute public use and that eminent domain is therefore not permitted by the New York state constitution.

Chief Judge Jonathan Lippman cut off Matthew Brinckheroff, lead attorney for plaintiffs and Develop Don’t Destroy Brooklyn (DDDB), 10 words after he began his opening statement.

“Isn’t public use pretty broad? Hasn’t what it means expanded? It’s not where it was 50, 60 years ago, is it?� Judge Lippman asked.

Brinckheroff argued that the type of “economic development� to be offered by Atlantic Yards is not synonymous with the “public use� required by the state constitution for property that is seized through eminent domain – which he described for example as a bridge, a highway, a utility line or a cultural institution.

Counsel for New York’s Empire State Development Corp (ESDC), which intends to take title to the land and lease it to Ratner’s Forest City Ratner Corporation for a nominal fee, argued that the “use� is the economic benefit of office towers, housing units and the basketball arena being brought to an area of “blight.�

As to the blight issue, some of the judges seemed to draw a distinction between the part of the site occupied by old rail yards and the three blocks south of Pacific Street, where the homes and businesses of the nine plaintiffs in this lawsuit are located.

“Have you gerrymandered this area to fit what the developers wanted to build on, rather than an area of real blight?� Judge Robert Smith asked counsel for ESDC. The attorney said that was not true.

Smith observed that in a photograph in evidence, the north side of Pacific Street had more visible characteristics of blight – such as weeds growing out of the sidewalks, while the south side looked normal.

“Wasn’t it a community renewal project until a lawyer said unless it’s a blight, you can’t get the land condemned?� Judge Smith asked.

Petitioners also argued that a section of the state constitution, which they say has never been legally interpreted, forbids state funding from going to the project unless it includes low-income housing.

EDSC’s brief called petitioners’ interpretation of this constitutional section “absurd and unprecedented.�

“In a substandard or insanitary area … according to petitioners, the only type of project in such an area that may receive state aid is low-rent housing,� EDSC counsel wrote.

During arguments, EDSC counsel denied the validity of this section, and argued that even if it was valid, the state was not subsidizing construction of the market-rate housing included in the planned project.

“Money is fungible,� said Judge Smith, suggesting that if petitioners were correct, state subsidies for the arena may have indirectly supported the construction of market-rate housing, against that section of law.

According to Brinckerhoff, there are three main constitutional questions that the court must examine. They 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 the 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 includes Brooklyn-born Theodore T. Jones, rejects the appeal, then the eminent domain challenges will have reached their ultimate conclusion.

The other two previous 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 this final case fails, the state then has to get title to the land, which Brooklyn Supreme Court proceeding will also be challenged by opponents of Atlantic Yards.

“One thing I hope they recognize … is that this is not what the founding fathers intended,� said Candace Carponter, head of the DDDB legal team. “Eminent domain has gone too far.�

Ryan Thompson of the Brooklyn Daily Eagle contributed to this article.

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