NY court to hear challenge to planned arena land

ALBANY, N.Y. (AP) -- New York's top court will soon decide if the state has the power to seize private property to build the Atlantic Yards development in Brooklyn, which includes a planned new arena for the New Jersey Nets.

The Court of Appeals will hear arguments Wednesday about whether the planned project constitutes legal public use of government authority to condemn property and force its sale for redevelopment.

Some small businesses and homeowners are challenging the Empire State Development Corp.'s move to force them out, saying it's wrong simply to enrich developers.

New York's constitution says: "Private property shall not be taken for public use without just compensation.'' The question is whether the Atlantic Yards project is a legitimate public use.

In its brief in the case, New York City said the project's primary goal is to alleviate substandard conditions, and the improvements will include the sports arena, affordable housing, public space and enhanced transportation. City lawyers said the area has been identified for decades as "in need of remediation and revitalization.''

Developer Bruce Ratner's proposed $4.9 billion, 22-acre project near downtown Brooklyn includes office towers, apartments and a new arena for the Nets. Ratner recently told The Associated Press he expected to prevail in court and sell almost $600 million in tax-exempt bonds by a Dec. 31 deadline.

Federal courts and lower state courts have rejected the Brooklyn challenge. In a related decision four years ago, the U.S. Supreme Court ruled 5-4 that a Connecticut project didn't violate a similar provision of the U.S. Constitution on taking property for public use.

The Institute for Justice, a libertarian group that supports the current property owners, said 43 states have changed their laws since the Supreme Court ruling and established tighter limits on when their governments can seize land. "New York is seriously behind the times,'' said Dana Berliner, an institute lawyer.

The Connecticut project, where people were removed from their homes, is now just a grassy site, and that redevelopment project was never completed, Berliner said. The group also issued a report calling New York "a hotbed of abuse,'' with 2,226 properties statewide either condemned or threatened with condemnation through eminent domain in the past decade to allow for private development.

"The broader issue is using government power to take property from some private owners to transfer it other private owners so they can make a profit off it,'' Berliner said.

Historically property was taken through eminent domain for public uses such as railroads, highways and utility lines. In 1938, New York's constitution was changed to authorize its use to address "substandard and insanitary conditions'' and raze slums, said Philip Karmel, a lawyer who represents the Empire State Development Corp.

The Court of Appeals' long-standing interpretation of the state constitution in numerous cases permits taking property to eliminate blight and construct civic facilities, Karmel wrote in court papers. The Empire State Development Corp, a state agency, made those determinations in approving Atlantic Yards, and there's no reason to stop the project and overturn the court's precedents, he said.

When the project was announced in 2003, it was a mixed-use area of residential and commercial property, a rail yard, about 400 residents and a few vacant lots, said Daniel Goldstein, who still occupies a seventh-floor condominium in an otherwise empty building. Now about 60 people remain in the area, he said, while many landlords and owners have sold while threatened with being forced out. He chose instead to fight government actions he considers both wrong and illegal.

"It's traditionally known as developer's blight,'' Goldstein said of his neighborhood. "It wasn't blighted before, and it's been half-demolished.''

Attorney Matthew Brinckerhoff, representing Goldstein and eight other homeowners and businesses, said eminent domain should be used only where targeted property will be "held open for use by all members of the public.''