Atlantic Yards foes watch as eminent domain case reaches Supreme Court: The Brooklyn (NY) Papers, 2/25/05

By Jess Wisloski

The U.S. Supreme Court struggled on Tuesday to balance the rights of property owners against the goals of town officials who want to sweep away old neighborhoods and turn the land over to private developers.

Riverfront residents who are suing the town of New London, Conn., say their working-class neighborhood is slated for destruction under the governmental authority of eminent domain, primarily to build an office complex that will benefit a pharmaceutical company that built its research and development headquarters nearby.

The outcome of the case could significantly affect Brooklyn homeowners who live in buildings within the footprint of developer Bruce Ratner’s proposed arena to house his New Jersey Nets basketball team in Prospect Heights.

That plan, known as Atlantic Yards, also relies on the state’s power of eminent domain, to condemn nearly 11 acres of private property for Ratner’s six-square-block development, which also includes 17 commercial and residential high-rises on property emanating from the intersection of Atlantic and Flatbush avenues.

Several representatives from the Prospect Heights neighborhood traveled to Washington, D.C., Tuesday to hear the arguments in the New London case.

Sitting in the courtroom were Councilwoman Letitia James, who represents Prospect Heights, Fort Greene and Clinton Hill; civil rights lawyer Norman Siegel, who has been retained to represent Prospect Heights residents in a potential lawsuit against the Ratner plan; and a legal volunteer for the anti-arena group Develop — Don’t Destroy Brooklyn, which maintains that the proposed 19,000-seat arena, as well as the up to 5,800 units of housing planned by Ratner are a far cry from the legitimate public use for which eminent domain is typically called into play.

An attorney representing the City of New London, Wesley Horton, told the high court justices on Tuesday that the revitalization project will create new jobs and trigger much-needed economic growth. He argued that increased tax revenue is enough of a legal basis for the city to invoke eminent domain and compel the residents to sell their homes.

If a city wanted to seize property in order to turn a “Motel 6 into a Ritz-Carlton, that would be OK?” asked Justice Sandra Day O’Connor.

“Yes, your honor, it would be,” Horton replied.

James said she had high hopes for the outcome of the Connecticut case, based on the questions raised by the justices.

“[O’Connor] really hit the nail right on the head, when she described how one revenue-generating entity can replace another,” said the councilwoman. “It’s a complete expansion of the public use clause laid out in our Constitution.”

The justices expressed sympathy for the longtime residents of the Fort Trumbull section of New London. At the same time, they questioned whether the court has the authority to stop the town’s plans.

The outcome could have significant implications nationwide.

In recent years, there have been more than 10,000 instances of private property being threatened with condemnation or actually condemned by government for private use, according to the Institute for Justice. The group represents the New London residents who filed the case.

Scott Bullock, representing the neighborhood residents, argued that government cannot take private property from one owner and provide it to another just because the new commercial project will boost the city’s finances. The city plans to give the developers a 99-year lease for a dollar a year.

“More than tax revenue was at stake,” Justice Ruth Bader Ginsburg replied. “The town had gone down and down” economically.

O’Connor questioned whether the homeowners were asking the court to “second-guess” the governmental power of eminent domain.

The legal arguments concern the Fifth Amendment prohibition against taking private property for public use without just compensation.

The City of New London says it is willing to pay a fair price.

“You are paying for it, but you are taking it from somebody who doesn’t want to sell,” Justice Antonin Scalia told Horton.

Several justices focused on the residents’ argument that the court should impose standards for governments to meet when they want to sweep away neighborhoods for economic revitalization.

“A lot of times governments have no clue what they’re going to do with the property,” Dana Berliner, co-counsel for the residents, said after the court arguments ended.

New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. The revitalization project is a few miles downriver from the U.S. Navy’s submarine base in Groton.

Likewise, Prospect Heights, with a population of roughly 29,000, at one time featured many factories on the site where the arena and housing complex is proposed.

With many of those same buildings now vacant or demolished, Forest City Ratner promises their new residential, office and retail complex to bring in 10,000 new jobs during the construction phases and activity to help stimulate what they have called a “blighted” area, a third of which is occupied by Metropolitan Transportation Authority rail yards over which the developer would like to build.

The MTA would be paid a fee for use of the air rights over the yards.

The starting point for Tuesday’s arguments was a Supreme Court ruling five decades ago that allowed governments to take private property for urban renewal.

The neighborhood’s lawyer, Bullock, seized on that case, contending there is a difference between the urban blight of 1954 and the current circumstance of an economically depressed town.

Justice Anthony Kennedy questioned Bullock’s position, saying that economically depressed areas can quickly become blighted areas.

Ginsburg also wondered whether the urban renewal case offers much hope for the neighborhood. She pointed out that the issue in that case involved a department store that was not contributing at all to the blight in the area.

The court nonetheless cleared the way for local government to take the department store’s property for the renewal project.

But Councilwoman James said she was most encouraged by the line of question coming from Justice Scalia.

“Justice [Antonin] Scalia really laid into them,” she said, when questioning the respondent on public use.

Scalia asked Horton, “So if B pays more than A, that’s acceptable?” in the case of giving one privately owned property to another private owner, to which Horton replied, “Yes.”

“They fired tough questions both at the plaintiff as well as the respondent,” said James. “Based on the questions asked, I was encouraged. The justices, as well as the respondents, are concerned about the status of eminent domain.”

New London attorney Daniel Krisch said he was secure in the city’s argument.

“It went very, very well,” he said. “The court, as they always do, asked a lot of incisive questions but the court recognized — at least the questions suggested that they recognized — that they couldn’t endorse the homeowners’ position without overruling 100 years of their own precedent, and that’s not something they’re going to do.” But Bullock, the homeowners’ lawyer, said, “Almost all of the justices seemed troubled by what was going on, and how cities seem to be pushing the envelope of eminent domain.

“That was one sentiment of the court that we found to be encouraging.”

Chief Justice William Rehnquist, who is battling thyroid cancer, did not attend the arguments and will be absent for the next two weeks. He has not attended arguments since October. Justice John Paul Stevens was out of town and missed the day’s arguments.

Daniel Goldstein, a spokesman for Develop - Don’t Destroy Brooklyn and a homeowner living within the footprint of the Prospect Heights arena — by legal terms, the only “holdout” in his Pacific Street condominium who has not sold or agreed to sell his apartment to Ratner — said it was hard to tell which way the court would go.

“They’re even more difficult to read at both sides because two of the justices weren’t there,” Goldstein said, “but it seems like they’re going to look at the issue of economic development very closely.

“They may not say economic development is not a public use, but they will write a decision that will put more of an onus on cities and developers to prove that their proposed development is economic development.”

“We’re excited to hear what they’ll say come June,” he added.

Siegel, the former head of the New York Civil Liberties Union, said that whatever happens, he’s sure clearer language of the constitutional clause demanding “public use” for eminent domain will be written.

Said Siegel, “I’m cautiously optimistic that the property owners in the New London case will prevail, and if they prevail the property owners in Prospect Heights potentially can prevail.”

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