A while back we blogged about the remarkable decision of the New York Appellate Division in Develop Don’t Destroy Brooklyn v. Urban Development Corp., 874 N.Y.S 414, (DDDB), rejecting an environmental challenge to the Brooklyn Atlantic Yards project. See our blog of May 13, 2009, It’s Oscar Time for their New York Lordships, click here: https://gideonstrumpet.info/?p=230
Now the pertinent segment of the blogosphere is buzzing with the news that the New York Court of Appeals (that state’s highest court) has granted review in a related case, challenging the right to take for the Atlantic Yards Project directly. That’s the Goldstein case. We don’t have much to add to that development and will leave further comment on it to the New York mavens.
But we can’t shake the hunch that one reason the New York high court decided to hear the Goldstein case is the stinging criticism of New York’s eminent domain law, delivered by the Appellate Division (New York’s intermediate appellate court) in the above-cited DDDB case, which we quote in our earlier post. Just think about it: though in the DDDB case the Appellate Division did not interdict the Atlantic Yards project on environmental grounds, the court pointedly noted that there has never been a case in New York in which the courts acknowledged that project opponents have raised so much as an issue of fact as to whether the government’s findings of blight were sufficient. Not even when Robert Moses was running amok in New York City, taking some of the best, most expensive real estate bordering on Central Park, as supposedly “blighted,” with the courts rubber-stamping his excesses. New York courts have much to be ashamed of on that score, and the New York Court of Appeals will now have an opportunity to impose some minimal standards of good faith on the New York eminent domain process. We shall see.
As our favorite New Yorker, Yogi Berra, once put it, predicting things is very difficult, especially about the future, so we resist the temptation of trying to do that. But we must note that here is an opportunity for the New York Court of Appeals to rectify some of New York’s judicial intellectual and moral misdeeds in this field, and to join the high courts in Illinois, Michigan, Ohio, Oklahoma, Arizona, South Carolina and even at times New Jersey, that at long last have finally sort of intellectually upchucked on this subject, especially after the wretched Kelo decision, and have been increasingly saying “Enough already!” to the redevelopers and their phony interpretation of the Public Use clause of the Constitution.
Update. See Charles V. Bagli, State’s Top Court Will Hear Appeal Against Atlantic Yards, N.Y. Times, June 30, 2009.