More Worthless Government Eminent Domain Plans — This Time from Brooklyn

The misbegotten Atlantic Yards redevelopment project in Brooklyn is in the news again. That’s the redevelopment project that gave us that towering effort in judicial disregard of the courts’ traditional duty to review government acts for unconstitutionality, known as Goldstein v. Pataki on the federal side and Goldstein v. Empire State Development Corp. on the state side — both concluding that, gee golly, the courts are just plumb unable to review eminent domain takings for redevelopment with any degree of judicial independence, and must just rubber-stamp whatever the condemnors want to do.

By a decision filed on July 13, 2011, dealing with the environmental review aspects of that project, New York Supreme Court Justice Marcy Friedman took a dim view of the condemnor’s use of a 10-year build-out time for project planning purposes, when in fact the condemnor concedes that it will take some 25 years (or more) to build out Phase II of it. Accordingly, the court held — not that the project, having been approved on the basis of untrue projections, is improper (don’t be silly) — but that additional environmental studies will have to be performed (which will undoubtedly take more years). So if we may lapse into New York patois: This, you call a remedy?

The plaintiff, Develop Don’t Destroy Brooklyn, understandably rejoices over this development, but it seems to us that all it is likely to produce is more delay and more pointless consumption of private and judicial resources. In other words, to quote that famous line from an old New Yorker cartoon, we say it’s spinach and we say the hell with it. What the this field of law desperately needs is some judicial intellectual integrity, courage and common sens, such as displayed by New York Appellate Division  Justice Catterson in his exemplary opinion in the Kaur case. Alas, Justice Catterson seems to be one of a kind, more’s the pity. But we can hope.

The DDDB press release may be found by clicking here — it contains a link to Justice Friedman’s July 13th opinion. Have at it folks.

Oh, yes. In New York, as viewers of Law and Order know, “Supreme Court” is not an appellate court, but a trial court — the lowest court of general jurisdiction. What everybody else calls “Supreme Court” is known in New York (and in Maryland) as the Court of Appeals. Go figure. But this seemingly terminological point implicates a bigger problem. The city (ESDC) can appeal Justice Friedman’s decision, and if it does, who knows what the New York appellate courts will decide? After all, those are the folks who never see an eminent domain action they don’t like.

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