Update Thursday: The case has now been docketed as 07-1247.

Arguing that the Supreme Court has brought confusion in the wake of its controversial 2005 ruling on the use of government power to seize private property for new economic projects, challengers of a major development in the downtown area of New York City’s Brooklyn borough are filing a new appeal to the Supreme Court.  The case, Goldstein, et al., v. Pataki, et al., has not yet been assigned a docket number. The petition and accompanying exhibits can be downloaded at this site.

The Brooklyn project, named the Atlantic Yards Arena and Redevelopment Project, would use public subsidies to aid in creation of a new basketball arena for the pro team, the New Jersey Nets, plus 16 high-rise apartment towers and several office buildings. The developer is Bruce Ratner, the owner of the Nets franchise, who has been pursuing the project for nearly five years.  The Second Circuit Court upheld the dismissal of a lawsuit on Feb. 1, refusing to allow the challengers to pursue wide-ranging inquiries into the privately arranged deals that they say cleared the way for the project..

The challengers — owners of homes and businesses that would be taken to make room for a major part of the development — contend that the civic gains claimed for it are mere pretexts to cover for the transfer of property from one private owner to another — a transfer that their strongly worded petition suggests grew out of favors extended to Ratner by key public officials with whom he has had close ties — including former New York Gov. George Pataki and New York City Mayor Michael Bloomberg.

Their appeal, if granted by the Court, would pose a major test of the scope of the Court’s 5-4 decision in Kelo v. City of New London, the 2005 ruling that has been met with widespread protests and has spurred a campaign across the country to curb the use of “eminent domain” powers to aid private profit-making projects.

The appeal contends that there is tension between the Court’s suggestion in Kelo that the motives and intent behind new projects could be probed to see if the public use justifications were mere pretexts, and the holding of earlier precedents that courts should seldom second-guess the use of “eminent domain” powers.  “In the years since Kelo was decided,” the appeal asserts, “no court has managed to resolve this tension.  Instead, lacking guidance from this Court, they arbitrarily choose one approach or the other.”

Broadly challenging the Second Circuit ruling, the petition claiims it made two errors: first, it immunized from inquiry the seizure of private homes and businesses for the benefit of “a single powerful real estate developer” merely because of thinly supported, after-the-fact claims of civic benefits, and, second, it applied a highly deferential review standard created for legislative authorizations of “takings” to cover all eminent domain decisions, legislative or not.

The developer and New York officials will have 30 days to respond once the new petition is formally on the docket (unless extensions of response time are granted).  If the other side acts promptly, the Court conceivably could act on the case before the current Term ends.

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