Agenda - Planning Commission - 08/06/2009

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;i I! .;1 11 !\ u l 1 I j I i I j l 1 I 1 i I I . 1 ! j I I 1 i I J I , i I' i I I .. Zoning Bulletin' June 25, 20091 Volume 31 No. 12 In furtherance of Atlantic Yards, Forest City sought the partner- ship of the New York State Urban Development Corporation, d/b/a Empire State Development Corporation ("ESDC"). ESDC was a pub- lic benefit corporation created. by the state to promote the growth and development of state municipalities. Among other things, the ESDC was tasked with undertaking public and private improvement .programs to "reinvigorate blighted and economically distressed ar- eas." To accomplish its mission, ESDC was legally authorized to ac- quire property through the exercise of eminent domain. ESDC agreed to jointly pursue the Athntic Yards project. Ulti- mately, ESDC determined that, in order to facilitate Atlantic Yards, it should exercise its power of condemnation (i.e., power to take by eminent domain) and take the property of residents and businesses in the Project Site. The owners of the properties that were to be taken by eminent domain (collectively, the "Residents") brought a legal action chal- lenging ESDC's condemnation decision; They argued that the pro- posed taking of their properties was unlawful because it viOlated the Public Use Clause of the New York Constitution (article I, ~ 7). That clause provided that "private property shall not be taken for public use without just compensation." The Residents maintained that the phrase "public use" in the clause had to be read literally. They con- tended that under such a reading, private property could be taken by eminent domain only where the property was to be held open for common use by all members of the public. Here, they argued, since Atlantic Yards was to include private uses-such as a professional sports team'~ arena, office space, and residences-it was not a "pub- lic use." As such, they claimed, the taking of their property violated the Public Use Clause. DECISION: Determination to acqUIre the Residents' property by condemnation confirmed. The New York Supreme Court, Appellate Division, held that ES- DC's proposed condemnation of the Residents' property for the At~ lantic Yards project did not violate the Public Use Clause of the New York Constitution. In so holding, the court rejected the Residents" argument for a lit- eral interpretation of the term "public use" in the Public Use Clause. The court said that "public uses" were not limited to only those uses that all the public had "a right to share [and] to freely enter upon ...." Rather, "public use" was broadly defined as encompassing vir- tuallyany project that could "confer upon the public a benefit, util- @ 2009 Thomson Reuters 3 153