NAS Interview: Eminent Domain Legal Expert William Ward
by Mark Ginocchio
Oct 16, 2009 Brooklyn, Interviews
While it’s still far from a slam dunk that team owner Bruce Ratner will eventually be able to move the Nets to a new arena in Brooklyn, one legal expert who has more than three decades of experience working on eminent domain cases, believes it’s doubtful that Atlantic Yards opponents did enough in Wednesday’s oral arguments in Albany to prevent Ratner from getting the property he needs for development.
William Ward, who runs the legal blog, New Jersey Eminent Domain Blog, said the justices at the Wednesday hearing before the New York State Court of Appeals asked fair and tough questions to both sides in the case. But working against the petitioners is legal precedent that will likely result in another instance of forward progress for the Atlantic Yards development.
“In this case, the petitioners have a very tough road ahead of them if they’re going to prevent this project from going forward,” said Ward, who has prior experience as a deputy attorney general in New Jersey, litigating cases for the Department of Transportation, and as secretary and general counsel for the New Jersey Sports and Exposition Authority.
During the arguments on Wednesdays, petitioners argued that the scope of “public use” in acquiring land through eminent domain for projects like the Atlantic Yards site, needed to be paired back and limited. However, legal precedent has demonstrated that “public use” has been broadened over time, not narrowed.
Ward said he was unaware of any cases where the scope of “public use” had been narrowed to what the petitioners were requesting in Wednesday’s hearing.
Another roadblock for the petitioners was the timing of their complaint. Essentially, according to New York State’s Eminent Domain Procedure Law, petitioners had to file their complaint within a 30-day limitation contained in the statue. Instead, they unsuccessfully pursued their cased in federal court and relied on a six-month grace period to support their application that the action was timely filed. If the Appeals Court wants to avoid a controversial decision, they could potentially throw the case out without ruling due to this technicality, Ward said.
One aspect of the case that could work in the petitioners’ favor was the idea of how the proposed development area was considered “blighted” by the Empire State Development Corporation. While all sides conceded that the Atlantic Rail Yards are indeed blighted, the justices questioned whether or not the ESDC condemned other properties as blight in an effort to push the whole development forward.
In this, the worst case scenario for Ratner is the court orders the ESDC to do further study on the blighted properties, which would lead to further delays for a groundbreaking. However, even with this possibility, “it remains a long shot” for the petitioners, Ward said.
While there are still other lawsuits floating around that could impede progress on the Nets move to Brooklyn, Ward believed if the Appeals Court finds in the developer’s favor, the petitioners won’t be able to challenge the ruling. Instead, the next round of legal haggling will likely focus on such things as the value of the land and relocation costs for those who have been condemned.
October 16th, 2009 at 9:12 AM
Ward has his facts wrong.
October 16th, 2009 at 3:32 PM
Just read my book, The Eminent Domain Revolt, and you will see what these clown opponents did wrong. I have been opposing DDDB’s legal strategy from the get-go. They are BOUND to lose. First of all, they sign off on the concept of “development,” even though Justice Stevens said in Kelo that there is no logical distinction between development as a reason for eminent domain, as opposed to any other reason for eminent domain.
But these idiot DDDB lawyers went right ahead and said the case was about “development.” Is DDDB really working for Ratner? They’ve lost EVERY case.
What the Court is looking for is for DDDB to understand that in the lead “minimum scrutiny” case–West Coast Hotel v. Parrish (and whatever its parallel New York case is)–the Court grounds policy discretion on “maintenance.”
In fact, “maintenance” is EXPLICITLY used even in U.S. v. Carolene Products, which–in its footnote 4–supposedly draws a distinction between “political” and “social” facts which government uses as a justification for keeping such facts as housing (a fact at issue in Atlantic Yards) at minimum scrutiny and keeping its control over the fact of housing.
Indeed, “maintenance” is used even in Berman v. Parker, in which the justification for kicking people out of housing was…housing people!!
The Court is sloppy, DDDB is sloppy, and in this sloppiness, DDDB will LOSE LOSE LOSE.
If opponents of eminent domain want to win, they are going to have to force the Court to be much more disciplined and address and clarify its own holdings.
The question for the court (and this should have been in Federal, not state court), should have been:
Is Atlantic Yards maintenance for purposes of the Due Process Clause of the Fifth Amendment?
Of course, this would have required the incompetent DDDB lawyers to understand this:
Maintenance, according to Supreme Court, is the interrelation of important facts.
That, in turn, would have required that DDDB’s stupid stupid stupid lawyers understand that, according to West Virginia v. Barnette, an important fact is
1. a fact of human experience
2. which history has demonstrated
3. is not affected by attempts to affect it.
Because exercises of religion passed that test, they got strict scrutiny and removal from the political system.
But I’m not sure DDDB WANTS housing removed from the political system, so maybe that’s why they don’t argue that housing is an important fact, and therefore Atlantic Yards must maintain housing and since it proposes involuntarily depriving people of housing, it does not maintain important facts and therefore is unconstitutional.
You see? You REALLY have to understand the law to fight these devils. Does it look to you like DDDB’s stupid stupid stupid lawyers ever actually read the law?
Of course not. Until a lawyer is willing to insist that the court clarify what, in FACT (not in LAW), is maintenance, eminent domain actions will be difficult to defeat.
But DDDB’s stupid stupid stupid lawyers are too stupid, too ignorant and too corrupt to do this.
So they have lost EVERY case. EVERY case. Hi Daniel Goldstein, how often have I written to you saying this, and how often have you said that you trust your lawyers? Are you working for Ratner, Daniel?
October 17th, 2009 at 1:19 AM
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