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Kelo v. Pataki. Not.
October 28, 2006: New York, New York. It's a wonderful town. Unless your piece of it gets targeted for eminent domain.

Forest City Ratner, New York's largest development firm, hopes to bulldoze and rebuild a sizable chunk of the Prospect Heights neighborhood in Brooklyn. The area Ratner covets is a low built, mixed income neighborhood just across the river from Manhattan. Ratner wants to replace the nabe with Atlantic Yards, an 8.8 million square foot combo of a sports arena and 16 residential towers. The arena would service the New Jersey Nets, a team owned by Bruce Ratner. The towers would contain luxury condos and subsidized "affordable" units. Many of these units would go to people with solid middle class incomes, in the top strata of eligibility. All in all, developing Atlantic Yards will require at least 1.1 billion dollars in public assistance. Proponents paint the massive taxpayer contribution as an investment, to be returned via projected tax revenues.

Should Atlantic Yards come to fruition, a fluid small society of commercial and residential property owners, tenants, businesses and employees, would be replaced by a behemoth complex pumped by public money and government might, yet owned by one private, politically connected, corporate entity.

When Atlantic Yards was announced in 2003, it was made clear that property within its perimeters would ultimately be acquired via eminent domain, under the aegis of New York State's powerful and quasi-public Empire State Development Corporation. The "public use" justification required by the U.S. Constitution would be the projected trickle down effect of increased tax revenues, construction jobs, and "affordable" housing. Over the past few years Forest Ratner has been buying out property owners. Some went willingly. Others bowed to what they feared was inevitable. But a hard core didn't move or mourn. Instead they organized a surprisingly effective resistance.

The resistors' latest gambit is a federal law suit (Goldstein v. Pataki) filed on October 26th in the Eastern District, charging that the use of eminent domain on behalf of Forest City Ratner and Atlantic Yards is unconstitutional. Among those named as defendants are Governor George Pataki, Bruce Ratner, Forest City Ratner in its various permutations, Empire State Development Corporation Chairman Charles Gargano, and New York Mayor Michael Bloomberg.

No one can say Brooklynites lack brass.

Ten people, representing a spectrum of neighborhood resistors, make up the plaintiffs. Daniel Goldstein, lead plaintiff and one of the property owners, is a founder of the group Develop Don't Destroy Brooklyn (DDDB). Other plaintiffs include low income tenants fighting displacement. Plus Freddy's Bar & Backroom. The neighborhood's unofficial war room. With added bennies of good food and drink.

A number of attorneys represent the plaintiffs. Lead counsel is Matthew D. Brinckerhoff of Emery, Celli, Brinckerhoff & Abady, a firm specializing in constitutional litigation. The firm won a past case against New York City in the U.S. Supreme Court, forcing the city to change its form of government. Co-counsel is DDDB attorney Jeffrey S. Baker, plus a number of DDDB volunteer attorneys. Tenants are being represented by attorney Jennifer Levy of South Brooklyn Legal Services.

Goldstein v. Pataki (PDF file) will not be retrying Kelo v. City of New London. Instead, the plaintiffs will argue that the "public use" criteria for legal application of eminent domain, as defined by the U.S. Supreme Court in the Kelo decision, are not being met by Governor Pataki, Forest Ratner, the Empire State Development Corporation, et al. Hence their Atlantic Yards land grab is unconstitutional and illegal.

You gotta love the idea that an evil call like Kelo might have a hole (or possibly several) through which an anti eminent domain victory could pass. The irony and implications of the situation, the heft of the defendants, and the David v. Goliath chutzpa of the plaintiffs, makes this an eminent domain battle to watch.

Carola Von Hoffmannstahl-Solomonoff

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Copyright (c) 2006 by Carola Von Hoffmannstahl-Solomonoff. This material may be freely distributed subject to the terms and conditions set forth in the Open Publication License. This license relieves the author of any liability or implication of warranty, grants others permission to use the Content in whole or in part, and insures that the original author will be properly credited when Content is used. It also grants others permission to modify and redistribute the Content if they clearly mark what changes have been made, when they were made, and who made them. Finally, the license insures that if someone else bases a work on this Content, that the resultant work will be made available under the Open Publication License as well.


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