Court: NY can seize property for new NJ Nets arena

By MICHAEL VIRTANEN,

ALBANY, N.Y. (AP) New York's top court ruled Tuesday that the state can use eminent domain to force homeowners and businesses to sell their properties for a massive development in Brooklyn that includes a new arena for the New Jersey Nets.

In a 6-1 ruling Tuesday, the Court of Appeals said the Empire State Development Corp.'s finding that the area was blighted was enough to justify taking the land.

A group of tenants and owners claim the seizure is unconstitutional. They argue that developer Bruce Ratner's proposed $4.9 billion, 22-acre Atlantic Yards project mainly enriches private interests, while the state constitution requires public use for taking land.

"The constitution accords government broad power to take and clear substandard and insanitary areas for redevelopment," Chief Judge Jonathan Lippman wrote for the majority. "In so doing, it commensurately deprives the judiciary of grounds to interfere with the exercise."

Ratner's proposed development includes office towers, apartments and a new arena for the NBA's Nets. A key element in his plan is selling majority team ownership to Russian entrepreneur Mikhail Prokhorov.

In a prepared statement, Ratner said construction will continue, with the intent that the Nets will play ball there in the 2011-2012 season.

"Once again the courts have made it clear that this project represents a significant public benefit for the people of Brooklyn and the entire city," Ratner said. "Our commitment to the entire project is as strong today as when we started six years ago."

The attorney for homeowners and tenants who declined to sell after the project was announced in 2003 said the fight isn't over. Matthew Brinckerhoff said his clients will oppose the ESDC when the urban development agency goes to court in Brooklyn in the second step of the process to take the properties.

"They have won round one, and we still have round two to go," Brinckerhoff said. "I think everybody believes that they need to do a number of things by the end of the year, and where exactly this fits into that process I'm not sure. But the fact that they haven't yet taken the properties can't be helping them."

Empire State Development Vice President Warner Johnston said the agency is committed to seeing the project completed.

"We can now move forward with development which will accomplish its goals of eliminating blight, and bringing transportation improvements, an arena, open space, affordable housing and thousands of jobs," he said Tuesday.

Lippman noted that the law empowering the government in the 1930s to partner with private entities to deal with the emerging problem of slums was intended also to create replacement low-cost housing. This plan instead is aimed at "alleviating relatively mild conditions of urban blight," mainly a railyard, and there were only 146 people living within the project boundaries when the final environmental study was done, he wrote.

In a dissent, Judge Robert Smith said the court majority was "much too deferential to the self-serving determination by the ESDC that petitioners live in a 'blighted' area, and are accordingly subject to having their homes seized and turned over to a private developer."

The record does not support the state agency's finding, Smith said. While the blight is documented at northern end of the project site, the southern part "appears ... to be a normal and pleasant residential community," he said.

Updated November 24, 2009