Real Estate & Property Law

Amicus Brief In NY Court Of Appeals In Goldstein/Atlantic Yards Case: NY's Public Use Clause Prohibits Judicial Rubber Stamp Of Takings

By Robert Thomas (inversecondemnation.com)

Willets Point United has filed an amicus brief supporting their fellow New York City property owners in the public use case now pending in the New York Court of Appeals regarding the Atlantic Yards "redevelopment" project in Brooklyn, Goldstein v. New York State Urban Dev. Corp. As we noted here, Willets Point is under the takings gun itself, and has our Owners' Counsel colleague Mike Rikon helping them (he also filed the amicus brief).

The brief argues that the Court of Appeals should not follow the Kelo rule of total deference to economic development takings: "The majority decision in Kelo v City of New London written by Justice Stevens was wrong, wrong in its holding and wrong on its facts." Br. at 7. The New York Constitution's public use clause prohibits economic development takings, and the brief walks through some of the more storied cases from that jurisdiction, including the infamous Courtesy Sandwich Shop, Inc. v. Port of New York and New Jersey Auth., 12 N.Y.2d 379 (1963) (taking for the World Trade Center site) and Yonkers Community Dev. Agency v. Morris, 37 N.Y.2d 478 (1975) (expanding "blight" to include just about anything the condemnor says is blight). See Br. at 11-14. The brief argues:

An independent judiciary should not be limited to a rubber stamp of approval. It is incorrect that the First Department would find that it was bound by a determination that luxury condominiums were "blighted." By precluding its review, a court does violence to the fundamental separation of powers doctrine which represents the constitutional check on power in our form of government.

Furthermore, the decisions made to condemn are not legislative determinations. The determinations are not made by any elected officials, but by a hand full of appointees who are responsible to no one. It is simply incredible that these decisions have been held unreviewable. The decision making process to condemn private property is not made by a representative deliberate assembly.

Br. at 15-16. The merits brief of the Brooklyn property owners is posted here.

The NY Times' report on the Atlantic Yards appeal is posted here, and a recent op-ed on the case is linked from this post.

Full post as published by inversecondemnation on September 02, 2009 (boomark / email).