It’s Oscar Time for their New York Lordships


          Since we write a stone’s throw from Tinseltown, we tend to award Oscars for outstanding performance, and the New York judiciary has just turned in a breathtaking bravura performance that calls for such recognition. The Oscar for writing an opinion approving a litigation outcome while holding the judicial noses, goes to  the New York Appellate Division, First Department, for its virtuoso performance in Develop Don’t Destroy Brooklyn v. Urban Development Corp., 874 N.Y.S.2d 414. It’s the state court counterpart of Goldstein v. Pataki, a lawsuit challenging the use of eminent doimain for the Brooklyn Atlantic Yards redevelopment project. Since it’s hard to do justice to their Lordships’ handiwork, here it is, in their own words.

      “In the many years since Kaskel, agency blight findings have been found deficient in this State only where they were utterly unsupported, and there has been no case in which the condition of an area has been deemed sufficiently at odds with an agency blight finding to raise a factual issue as to whether the agency exceeded its authority in making the finding. This is not because the limits of the blight concept have been untested. Indeed, if ever a claim of blight challenged one’s common-sense understanding of the term in a case in which the city urged that the Coliseum site at Columbus Circle (now the location of the Time Warner Building) — undoubtedly, even at the time of litigation, one of the most valuable pieces of real estate in the City, bordering on the very exclusive southwestern corner of Central Park – was blighted and thus appropriate for designation as an urban renewal site. This Court, however, citing Kaskel, and accepting the city’s contention that the site was outmoded, underbuilt and insufficiently utilized, found the proposed designation proper notwithstanding the site’s obvious, indisputable potential for private development. The point to be made is that ‘blight’ has proved over time to be a highly malleable and elastic concept capable of enormously diverse application. This is not in the main attributable to the ingenuity of consultants eager to please the developers who pay their bills, but because the concept, when the field of its likely use, is more facilitative than limiting.”  874 N.Y.S.2d at 424, emphasis added, citations omitted.

          So there you have it folks: the concept of blight is so “malleable” that, try as they may, their Lordships have never met a blight finding they didn’t like. New York, it turns out, has achieved such a state of civic perfection that none of its saintly politicians have ever abused the power of eminent domain in the redevelopment context, nor have they ever sought to use it in such a way as to raise so much as an issue of fact. Wow!

         Special honorable mention goes to Justice Catterson, for his concurring opinion. The wonder of it is how Justice Catterson could say what he said and still rule in favor of the condemnor. Here goes:

“I reject the majority’s core reasoning, that a perfunctory “blight study” performed years after the conception of a vast development project should serve as the rational basis for a determination that a neighborhood is indeed blighted.”

*    *    *

“In my view, the petitioners are correct in asserting that the blight study failed to comport with the majority of the specific criteria set out in AKRF’s contract. Furthermore, ESDC’s contention that ‘as a matter of law,’ ESDC could only look at conditions contemporaneous with the study, which was conducted years after the announcement, is ludicrous on several levels.”

        No comment appears necessary, except perhaps to tell New Yorkers who may be reading this blog, that next time some politician — black-robed or otherwise — starts pontificfating about “judicial independence,” remind him of this opinion in which the judges recognized that there was no basis for their decision, but they rendered one in favor of the condemnor anyway in a sort of a the-devil-made-us-do-it performance.

Update: We are informed by an eagle-eyed reader in New York, that we got our cases mixed up. The above case (Develop Don’t Destroy Brooklyn) is not the state-court counterpart of Goldstein v. Pataki, but rather litigation concerning the adequacy of the environmental impact report preceding the construction of the Atlantic Yards project.

Another case, Goldstein v. N.Y. State Urban Dev. Corp., just decided by the New York Appellate Division, Second Department, is the state-court counterpart of Goldstein v. Pataki. The only citation we have now is (2009 NY Slip Op 03903), but it should be available on Lexis and Westlaw any time now. It too ruled against the project challengers. 

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