‘Eminent’ suit on Yards called a longshot

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A lawsuit against Atlantic Yards developer Bruce Ratner and the state and city officials who allegedly conspired with him has little chance of success, said legal experts — including the lawyer who sued Ratner over his Metrotech project two decades ago.

“Knowing the history of these cases, I don’t see how [it] will get to first base,” said Robert Goldstein, a lawyer who specializes in eminent domain cases who has counseled the Empire State Development Corporation as well as tenants who lost property to Metrotech.

The federal eminent domain lawsuit filed last week by 10 residents and one business owner within the Atlantic Yards footprint outlines a sequence of alleged cronyism that led to the MTA’s decision to sell its Long Island Rail Road yards to Ratner for $100 million less than its appraised value.

That decision was made after Deputy Mayor Daniel Doctoroff sent a memo declaring the city would back only the Ratner plan, the lawsuit said.

But even that “smoking gun” won’t be enough to show that city and state agencies subverted the public-review process, which is the legal requirement for halting the use of eminent domain, legal observers said.

“The plaintiffs need [to show] a set of unwholesome facts that have not currently been revealed,” said David Reiss, a law professor at Brooklyn Law School.

Another expert said that Atlantic Yards may indeed have been “replete with special, political deals.

But the issue before the court, said Roger Pilon, vice president of legal affairs for the anti-eminent-domain Cato Institute, “is whether you can prove there was anything illegal.”

The long-expected eminent domain lawsuit — officially known as Goldstein v. Pataki, taking the name of its lead plaintiff, Daniel Goldstein of Develop Don’t Destroy Brooklyn — seeks to challenge the government’s right to seize property for private development by seizing on a line of attack left open by last year’s Supreme Court decision in the controversial Kelo case.

In that watershed 5-4 ruling, the high court upheld the right of governments to seize property for new private development as long as the project served a public purpose and had been “carefully considered” — two legal requirements that Ratner’s “Jobs, Housing and Hoops” scheme doesn’t meet, the complaint charges.

“Kelo reinforced the requirement that any eminent domain must come after a clear development process,” said Dana Berliner, a co-counsel on the Kelo case.

“If they can show that the process was ignored, then they have a real shot at defeating the project.”

Like at Metrotech, Ratner, a former city bureaucrat, has been buying people out. This time, he will only face 10 residential households and one small business in the courts.

In the fight for public opinion, Mayor Bloomberg last week slammed the plaintiffs as “misguided, myopic and selfish.” During his weekly radio show on Friday, Bloomberg directed his criticism directly at DDDB spokesman Goldstein, the first person to call in with a question.

“You can’t just let any one person stop all development, and that’s when eminent domain comes in,” the mayor told the condemned critic.

In its own statement, Forest City Ratner also cast the lawsuit in a negative light, calling it, “a sad attempt to delay a project that is supported by over 60 percent of Brooklyn.” The statement apparently was referring to an unscientific poll done by Crain’s New York Business.

Meet the plaintiffs

The 10 Prospect Heights residents who have sued state and city officials, plus developer Bruce Ratner, over Atlantic Yards share little except the knowledge that their homes could be seized and demolished to make room for the $4.2-billion megadevelopment. Here, in their own words, is why a few of them chose to challenge the state’s eminent domain order.

Freddy’s Bar

The popular Prohibition-era pub on Dean Street is slated to be razed to make way for a 400-foot condo tower.

“This battle here is already kind of lost, but it’s important that we force the issue of how governments and developers treat communities. These cases are happening all over the country. We could move, but every structure has a history and a presence. There is a presence to Freddy’s. We could go somewhere else, but we would have to start completely over. It takes 10 years for a bar to establish itself. Why should we have to do that?” (Freddy’s General Manager, Donald O’Finn, spoke for the bar.)

Daniel Goldstein

The Develop Don’t Destroy Brooklyn spokesman owns a condo at 636 Pacific St., which was renovated just before Atlantic Yards was unveiled.

“I had only lived in my apartment for about three months before I heard about the project. I was shocked, and then angry. Pretty immediately, it became political. Most of the time, it’s just a home that I enjoy — I have a kitchen table, a bed, an office, great views south to the Verrazano, a lot of plants — until I walk outside and see the emptied out block and the rail yards. Then the project is hard to put aside.”

Ioana Farbu

Owns a home at 491 Dean St.

“It’s the first house I ever owned. My first in Brooklyn. My first in America. I moved here from Romania, where they do things like this because the government is corrupt. I didn’t expect this in America. I love my home, my garden, the flowers in my window, the fact that I am in Brooklyn. I should be able to say I’m not moving.”

Updated 4:00 pm, November 10, 2010
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