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BROOKLYN     Press Release Main Page

For Immediate Release: April 1, 2008

Goldstein et al v. Pataki et al

11 Property Owners and Tenants Ask the
Supreme Court of the United States to
Hear Their Atlantic Yards Eminent Domain Case

Plaintiffs Ask Court to Consider Key Constitutional Issues
Seeking to Allow Their Eminent Domain Case to Proceed

BROOKLYN, NY— Eleven property owners and tenants have filed a petition asking the Supreme Court of the United States to hear their eminent domain appeal, which was dismissed on February 1 by the Second Circuit Court. The petition provides the Court with an important opportunity to address the appropriate constitutional limits on the government's power to seize private homes for the benefit of powerful real estate developers like Bruce Ratner.

In 2003 developer Forest City Ratner's (FCR) CEO Bruce Ratner targeted the plaintiffs' homes and businesses (and many others) for acquisition and then convinced then Governor Pataki and Mayor Bloomberg to agree to seize the properties and transfer them to Ratner so he could build his proposed 16-skyscraper-and-arena complex known as Atlantic Yards in Prospect Heights, Brooklyn. Given the mammoth scale and footprint of the project, Atlantic Yards is dependent on the use of eminent domain; it cannot be built unless Ratner succeeds in wresting the properties from the plaintiffs.

The plaintiffs filed their original complaint in October 2006. Their suit, Goldstein et al v. Pataki et al, named former Governor Pataki, Mayor Bloomberg, the Empire State Development Corporation, Bruce Ratner and others as defendants. The plaintiffs argued that the use of eminent domain for the Atlantic Yards project violates the United States Constitution because the taking of their property is not primarily for the public's benefit. While Ratner claims that the project is justified as a public benefit, in fact Ratner is the only one who stands to gain ­ and handsomely so ­ from the seizure of plaintiffs' homes and businesses.

In 2005 the US Supreme Court issued an extremely controversial 5-4 decision in the eminent domain case Kelo v. The City of New London. Goldstein v. Pataki is the first case submitted to the Court since the Kelo decision, which utilizes the majority's reasoning in Kelo and seeks clarity on that reasoning. In Kelo, the Court stated that though eminent domain is allowed for "economic development," the Public Use Clause of the Fifth Amendment prohibits the taking of property:

"…under the mere pretext of a public purpose, when [the] actual purpose [is] to bestow a private benefit."

That is precisely what occurred when the former Governor and the Mayor decided to take the plaintiffs' properties and give them Ratner at his behest
. The plaintiffs, utilizing the majority's decision in Kelo, are asking the Supreme Court to hear their case and allow them to pursue their claims by obtaining documents and sworn testimony from Ratner and the government officials he co-opted. The plaintiffs believe that the evidence will show that their homes and businesses are being sacrificed for Ratner's benefit, not the public's.

"The seizure of my clients' properties is based on a pretextual public purpose which is actually for a strictly prohibited private benefit. Unless the Supreme Court intervenes, the government will continue to have carte blanche to take private homes and businesses and give them to influential citizens as long as one can imagine a conceivable benefit to the public, no matter how small or unlikely it may be" said lead attorney Matthew Brinckerhoff of Emery Celli Brinckerhoff & Abady LLP. "This is wrong. It should trouble all citizens who, unlike Bruce Ratner, lack the power and money to coopt the government's power of eminent domain for their private use and benefit. We believe that the United States Supreme Court will welcome the opportunity to clarify this area in light of its widely criticized Kelo decision."

The petition presents three questions to the Supreme Court:

1. Is the Court's statement in Kelo, that the Public Use Clause prohibits the taking of "property under the mere pretext of a public purpose, when [the] actual purpose [is] to bestow a private benefit," a rule of general application or is it limited to takings justified solely on economic development grounds?

2. Does the substantial deference afforded to a legislative public use determination under the Court's 1984 Midkiff eminent domain decision apply to a non-legislative condemnation decision?

3. What are the elements of a Public Use Clause claim, and how should such a claim be evaluated on a motion to dismiss, given the tension between Kelo's assurance that "purpose" and "pretext" matter and Midkiff's statement that courts should defer to a legislative taking that appears "rationally related to a conceivable public purpose"?

Brinckerhoff concluded, "We are asking the Supreme Court to take our case because with Ratner's Atlantic Yards scheme all of the traditional indications of a legitimate decision to take properties by eminent domain have been absent. Because of this, our pretext claims must finally be allowed to proceed to trial."

The petition arguess that the characteristics of a legitimate decision to take properties by eminent domain, which were present in the Supreme Court's three eminent domain rulings against property owners (Berman, Midkiff, and Kelo), have been wholly absent in the decision to take the plaintiffs' property in the case now presented to the Court.

Among other things, the signs that strongly indicate that plaintiffs' homes and businesses are being illegitimately and unconstitutionally sacrificed in order to enrich Ratner are:

1) A legislative body played no role in determining public purpose;

2) The properties slated for condemnation were selected by the private beneficiary at the outset, rather than as part of a comprehensive government-initiated plan;

3) No alternative development sites were ever considered, (i.e., sites that would not require condemnation at all, or sites that would burden others, who the private beneficiary/developer spared when he drew an oddly shaped, non-contiguous takings map);

4) The sole beneficiary of the land transfer was known before the decision to condemn;

5) No competitive process for selecting the private beneficiary was employed;

6) Only a single plan (the developer/beneficiary's plan) was ever considered;

7) The public benefit justification was identified after the decision to condemn;

8) The normal processes for approving massive zoning variances and assessing public benefit, (normally reviewed by the New York City Council) were bypassed entirely.

A decision on the plaintiffs' petition is expected from the Supreme Court of the United States in June.

The Supreme Court Petition, and all lower court briefs and decisions in Goldstein et al v. Pataki et al can be found at:

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