In eminent domain appeal, plaintiffs say illegitimate sequence means case deserves discovery

The plaintiffs challenging the use of eminent domain for Atlantic Yards have a high-stakes argument Tuesday before the U.S. Court of Appeals for the Second Circuit, hoping for a second chance to move the case to trial.

U.S. District Judge Nicholas Garaufis already dismissed their case for a failure to state a claim, ruling that presence of some measure of public benefits—mass transit improvements, the removal of blight, subsidized housing, a sports facility, open space—trumped any allegation that the project might primarily confer a private benefit on developer Forest City Ratner.

There's a difference, the plaintiffs argue in a final reply brief, and it has to do with process. Precedential cases, which drew on more egregious fact patterns—severe blight in Washington, DC (Berman), and a land oligopoly in Hawaii (Midkiff)—lead courts to defer to legislative determinations, as the Supreme Court in 2005 did in its narrow Kelo v. New London decision, upholding the use of eminent domain for economic development.

The brief says the courts must "resolve the obvious tension between and among" the three cases, which call for courts to defer to "a legislative determination that a taking serves a public purpose" but, as reaffirmed in Kelo, must look carefully at "plausible allegations that ostensibly ‘public' purposes are pretextual and that the real purpose of a taking is to benefit a private developer."

The plaintiffs--13 homeowners, business owners, residential and commercial tenants--suggest that, in this case, no deference is warranted, because "all of the indicia of legitimate public decisionmaking are absent, and most or all of the indicia of illegitimate private decisionmaking are present."

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