Residents and businesses who oppose the $4.2 billion Atlantic Yards project in Brooklyn yesterday filed a federal lawsuit alleging that the project would rely on an unconstitutional use of eminent domain to seize their property.
The complaint, which was assigned to Eastern District Judge Nicholas G. Garaufis and Magistrate Judge Robert M. Levy, seeks to attack the state’s power of eminent domain via channels that the plaintiffs’ attorney says were left open in a controversial U.S. Supreme Court ruling decided last year by a 5-4 vote, Kelo v. City of New London, 545 U.S. 469.
In Kelo, the majority of the Court held that local governments could use the power of eminent domain to take property for a private development deemed in the public interest.
In a concurring opinion, however, Justice Anthony M. Kennedy noted that while a taking was consistent with the Public Use Clause of the U.S. Constitution, it must be “rationally related” to a public purpose.
“The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause,” Justice Kennedy wrote.
The Brooklyn suit, Goldstein v. Pataki, led by the group Develop Don’t Destroy Brooklyn and the firm of Emery Celli Brinckerhoff & Abady, alleges that the project does not meet the public use requirement because it was conceived by a developer, Bruce Ratner of Forest City Ratner Companies, not by officials with the public interest in mind. It further alleges that the project did not involve a competitive bidding process or a means of gathering public opinion before it was conceived.
“What matters is the purpose, or the intent, of government officials in making this decision,” Mr. Brinckerhoff said in an interview. “And they made this decision before knowing almost everything.”
Mr. Brinckerhoff’s clients are 10 residents of the area, including a condo owner, rent-stabilized tenants, and a bar, Freddy’s Bar and Backroom. The lead plaintiff, Daniel Goldstein, is the spokesman for Develop Don’t Destroy Brooklyn.
Joe DePlasco, a spokesman for the developer, said in a statement that the lawsuit was “a sad attempt” to delay the project.
Mayor Michael R. Bloomberg also criticized the suit while speaking to reporters at ribbon-cutting ceremony for a community health center on Staten Island.
“There are people that want to stop this project in Brooklyn for, I would argue, either misguided, myopic, or selfish reasons,” the mayor said, adding that he assumed the suit had “no real merit.”
Dana Berliner, a senior attorney at the Institute for Justice, a non-profit libertarian group that opposes eminent domain, said the suit offers numerous issues for a district court to consider.
Ms. Berliner was co-counsel on the Kelo case for the plaintiffs, who opposed a development plan created by the city of New London, Conn.
In Kelo, she said, the city had followed a specific process, and did not have a developer when it conceived of the project.
“ Kelo left open the possibility that a pure one-to-one transfer, or a condemnation that was made not according to the proper planning procedures, would not pass constitutional muster,” Ms. Berliner said. “What the plaintiffs in this case have done is take the Kelo decision and challenge this condemnation under the possible constitutional violations left under Kelo. They are not asking the court to reverse Kelo.”
As it stands now, the Atlantic Yards project would span 8 million square feet along Atlantic Avenue between Flatbush and Vanderbilt Avenues. Forest City Ratner plans to build an arena, designed by the architect Frank Gehry, for the New Jersey Nets basketball team, as well as a hotel, condos, business and retail space, and rental residences. Among the 16 planned towers, one would stand 650-feet tall.
Jeffrey L. Braun, a partner at Kramer Levin Naftalis & Frankel, represents the developer.
-Tom Perrotta can be reached at email@example.com