Yards May Prompt Supreme Court To Revisit Eminent Domain
NY Sun. Joseph Goldstein.
The proposed Atlantic Yards development near downtown Brooklyn could prompt
the U.S. Supreme Court to reconsider when government may use eminent domain
to seize private property.
About a dozen holdout residents within the project's planned boundaries
are petitioning the high court to forbid their eviction. If the residents
win, the development, which entails 16 towers of residential and office space
and a basketball arena, would be halted.
If four justices agree to hear the appeal, it would be the court's first
to test the power of government to seize property through eminent domain since
a landmark decision in 2005 in the case of Kelo v. the City of New London.
In that decision, which produced a groundswell of public opposition across
the country, the court ruled 5-4 that the government can seize property and
transfer it to a private developer to foster economic development.
[Lead Attorney} Mr. Brin[c]kerhoff's petition to the Supreme Court focuses
on a more modest aim than convincing the court to scrap its opinion in Kelo
just three years after issuing it. The residents are asking the court to give
them a chance to prove their allegation that the primary motivation behind
the Atlantic Yards project isn't a desire to benefit the public. Instead,
the plaintiffs claim the project is mainly a conspiracy to benefit the interests
of the project's developer, Bruce
Ratner, and his company, Forest
That argument could find a receptive audience in Justice Kennedy, whose
concurring opinion permitting the seizure of property in the Kelo case explicitly
said that courts must not let eminent domain be used “"to favor
a particular private party, with only incidental or pretextual public benefits."
The message of Justice Kennedy's concurrence, in the words of one lawyer
on the losing side of the Kelo case, Dana Berliner, is: “"I'm
ruling against you this time--maybe next time I won't."
In the petition, the Brooklyn plaintiffs try to convince Justice Kennedy
that the Atlantic Yards project is exactly the sort of eminent domain he warned
against in that concurring opinion. The plaintiffs focus on the fact that
the proposal for the Atlantic Yards project was initiated by Mr. Ratner and
that the sale of public land for the project circumvented the usual bidding