# Opposition Brief — Goldstein v. Pataki (No. 07-1247)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

G2 | FILED

oT
| MAY 16 2008
No. 07-1247 OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

DANIEL GOLDSTEN, et al.,
Petitioners,

VV,

GEORGE E. PATAKI, et al.,
Respondents.

On Petition for Writ of Certiorari
To The United States Court Of Appeals
For The Second Circuit

BRIEF IN OPPOSITION FOR
THE ESDC AND MUNICIPAL RESPONDENTS

DOUGLAS M. KRAUS

*PREETA D. BANSAL
Counsel of Record

SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

Four Times Square

New York, NY 10036

(212) 735-3000

MICHAEL A. CARDOZO

JANE L. GORDON

OFFICE OF CORPORATION COUNSEL
OF THE CITY OF NEW YORK

100 Church Street

New York, NY 10007

(212) 788-1043

Counsel for Respondents the City of
New York, Michael Bloomberg,
Daniel Doctoroff, Andrew M. Alper,
Joshua Sirefman, and New York City
Economic Development Corp.

Counsel for Respondents New York
State Urban Development Corp.
d/b/a Empire State Development
Corp. and Charles A. Gargano

QUESTION PRESENTED

Did the courts below properly conclude that the complaint
failed to state a claim under the Public Use Clause of the
Fifth Amendment where:

the proposed urban redevelopment project
involving eminent domain undisputedly will
revitalize a large swath uf land in central Brooklyn,
more than half of which has been designated
blighted and earmarked for redevelopment for
more than 40 years and is dominated by open,
dilapidated and environmentally hazardous
railyards, and

the project admittedly will include, among other
public purposes, construction of'a new major

sports arena, affordable housing, public open
space, and significant public mass transportation
improvements?

ii

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

STATEMENT

I.

I].

THERE IS NO CONFLICT AMONG THE
LOWER COURTS WARRANTING THIS
COURT’S ATTENTION

A.

The Second Circuit’s “Pretext” Analysis is
Consistent with the Very Few Lower Court
Decisions that Have Addressed Pretext

Claims in Public Use Clause Cases. ............::ec000ee 16

There is No Legal Conflict or Confusion
that Agencies Such as ESDC with
Legislatively Delegated Eminent Domain
Powers are Entitled to the Same Deference
as Legislatures in Their Public Use
Determinations

THE DECISION BELOW IS FULLY IN
ACCORD WITH THIS COURT’S
LONGSTANDING PRECEDENTS

A.

B.

The Project Serves Multiple Undisputed
Public Purposes

There is No Warrant for Examining the

Subjective Thoughts of Public Officials to
Determine Whether Admittedly Valid Public
PUG WPORRUEE «cscs ccccccccessseresseossessecserens 25

iil

C. The Lower Courts’ Determination that the
Complaint’s Allegations of Improper Motive
Cannot Survive Dismissal Does Not Merit
PR go cdnvcivicsecissvatccssanscocaccoecverses 27

III. THIS COURT’S REVIEW IS
UNWARRANTED BECAUSE ISSUES
CONCERNING THE BOUNDS OF EMINENT
DOMAIN POWER ARE ACTIVELY
PERCOLATING IN STATE LEGISLATURES
AND COURTS

. THIS CASE IS NOT A GOOD VEHICLE TO
CONSIDER THE QUESTION PRESENTED
BECAUSE OF ISSUES CONCERNING THE
NEED FOR BURFORD ABSTENTION

CONCLUSION

iv

TABLE OF AUTHORITIES

Cases Page(s)

49 WB, LLC v. Village of Haverstraw, 839
N.Y.S.2d 127 (N.Y. App. Div. 2007) 16, 18, 26, 29

Armendariz v. Penman, 75 F.3d 1311 (9th Cir.
1996) (en banc)

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955

Berman v. Parker, 348 U.S. 26 (1954)

Board of County Commissioners v. Lowery, 136
P.3d 639 (Okla. 2006)

Broadway 41st Street Realty Corp. v. New York
State Urban Development Corp., 733 F. Supp.
735 (S.D.N.Y. 1990)

Brody v. Village of Port Chester, 434 F.3d 121 (2d
Cir. 2005)

Burford v. Sun Oil Co., 319 U.S. 315 (1943)

CBS Outdoor Inc. v. New Jersey Transit Corp.,
Civil Action No. 06-2428 (HAA), 2007 WL
2509633 (D.N.J. Aug. 30, 2007)

City of Norwood v. Horney, 853 N.E.2d 1115
(Ohio 2006)

Daniels v. Area Plan Commission, 306 F.3d 445
(7th Cir. 2002)

Vv

Develop Don't Destroy Brcoklyn v. Empire State
Development Corp., 816 N.Y.S.2d 424 (N.Y.
App. Div. 2006), appeal denied, 862 N.E.2d
790 (N.Y. 2007) |

Develop Don't Destroy (Brooklyn) v. Urban
Development Corp., No. 104597/2007, 2008
N.Y. Misc. LEXIS 551 (N.Y. Sup. Ct. Jan. 11,
8, 9, 21, 23

Didden v. Village of Port Chester, 322 F. Supp. 2d
385 (S.D.N.Y. 2004), aff'd, 173 Fed. Appx.
931 (2d Cir. 2006), cert. denied, 127 S. Ct.
1127 (2007)

Edwards v. Aguillard, 482 U.S. 578 (1987)

Franco y. National Capital Revitalization Corp.,
930 A.2d 160 (D.C. 2007) 16, 17, 18, 26

Gallenthin Realty Development, Inc. v. Borough of
Paulsboro, 924 A.2d 447 (N.J. 2007)

Harrison Redevelopment Agency v. DeRose, 942
A.2d 59 (N.J. Super. Ct. App. Div. 2008)

Hawaii Housing Authority v. Midkiff, 467 U.S.
229 (1984) 13, 20, 22

Kelo v. City of New London, 545 U.S. 469 (2005) ....... passim

Louisiana Power & Light Co. v City of Thibodaux,
360 U.S. 25 (1959)

MHC Financial Ltd. Partnership v. City of San
Rafael, No. C 00-3785 VRW, 2006 WL
3507937 (N-.D. Cal. Dec. 5, 2006)

National R.R. Passenger Corp. v. Boston & Maine
Corp., 503 U.S. 407 (1992)

Pennell v, City of San Jose, 485 U.S. 1 (1988)

Port Chester Yacht Club, Inc. v. Iasillo, 614 F.
Supp. 318 (S.D.N.Y. 1985)

Rhode Island Economic Development Corp. v.
Parking Co., L.P., 892 A.2d 87 (R.1. 2006)

Rindge Co. v. L.A. County, 262 U.S. 700 (1923)

Rosenthal & Rosenthal Inc. v. New York State
Urban Development Corp., 605 F. Supp. 612
(S.D.N.Y.), aff'd, 771 F.2d 44 (2d Cir. 1985)

Rosenthal & Rosenthal Inc. v. New York State
Urban Development Corp., 771 F.2d 44 (2d
Cir. 1985)

Schneider v. District of Columbia, 117 F. Supp.
705 (D.D.C.), aff'd as modified sub nom.
Berman y. Parker, 348 U.S. 26 (1954)

Shoemaker v. United States, 147 U.S. 282 (1893)

Southeast Land Development Associates, L.P: v.
District of Columbia, No. Civ.A. 05-
1413RWR, 2005 WL 3211458 (D.D.C. Nov.
1, 2005)

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.
Ct. 2499 (2007)

Vii

United States v. Gettysburg Electric Railway Co.,
160 U.S. 668 (1896)

Waldo's, Inc. v. Village of Johnson City, No. 89-
CV-897, 1989 WL 153727 (N.D.N.Y. Dec.
15, 1989)

Western Seafood Co. v. United States, 202 Fed.
Appx. 670 (Sth Cir. 2006)

Statutes and Rules

42 U.S.C. § 1983

N.Y. Em. Dom. Proc. LAw §§ 101-709
(McKinney 2002 & Supp. 2008)

N.Y. Em. Doom. Proc. LAw § 201 (McKinney

N.Y. EM. DOM. Proc. Law § 202 (McKinney
Supp. 2008)

N.Y. EM. Dom. Proc. LAw § 203 (McKinney

N.Y. Em. Dom. Proc. LAw § 204(A) (McKinney
Supp. 2008)

N.Y. Em. Doo. Proc. LAw § 204(B)(1)
(McKinney Supp. 2008)

N.Y. EM. DOM. Proc. Law § 207 (McKinney

N.Y. EM. Dom. Proc. LAw § 207(A) (McKinney

N.Y. EM. Do. PROC. Law § 207(B) (McKinney

N.Y. EM. Dom. Proc. LAw § 401(A)(3)
(McKinney 2002)

N.Y. EM. Dom. Proc. LAW § 402(B)(4)
(McKinney 2002)

N.Y. Em. Dom. Proc. LAw § 402(B)(5)
(McKinney 2002)

N.Y. Em. Dom. Proc. Law § 502(B) (McKinney

N.Y. ENVTL. CONSERV. LAW §§ 8-0101 to 8-0117
(McKinney 2005 & Supp. 2008)

N.Y. UNCONSOL. LAws §§ 6251-92 (McKinney
2000 & Supp. 2008)

N.Y. UNCONSOL. LAws § 6252 (McKinney Supp.

ix

N.Y. UNCONSOL. LAWS § 6266(3) (McKinney

Other Authorities

CASTLE COALITION, 50 STATE REPORT CARD:
TRACKING EMINENT DOMAIN REFORM
LEGISLATION SINCE KELO (2007),
http://www.castiecoalition.org/pdf/
publications/report_card/50 State Report.pdf
(last visited May 15, 2008)

NATIONAL CONFERENCE OF STATE
LEGISLATURES, EMINENT DOMAIN,
http://www.ncsl.org/programs/natres/
EMINDOMAIN.htm) (last visited May 15,

Petition for Writ of Certiorari, Kelo v. City of New
London, 545 U.S. 469 (2005) (No. 04-108),
available at 2004 WL 1659558

This case involves the use of eminent domain in support
of the proposed Atlantic Yards Arena and Redevelopment
Project in central Brooklyn (the “Project’”’). The allegations
in Petitioners’ complaint do not refute, and both courts
below unequivocally found, that the Project will remove
blight that has plagued more than half the footprint of the
Project for at least four decades.

The Project will also accomplish multiple other, well-
established public purposes: construction of a $120 million
platform over the Vanderbilt Yards—trail tracks which
currently are below street level and create an enormous open
trench that isolates the Project area from the surrounding
communities; a new sports arena designed by renowned
architect Frank Gehry containing a 10,000-square-foot public
atrium and pedestrian passageway to the subways; office
buildings; 6,680 housing units (2,250 of which will be
below-market rate); significant mass transit improvements,
including a new state-of-the-art railyard for the New York
State Metropolitan Transportation Authority and its Long
Island Rail Road as well as extensive public subway
improvements; and eight acres of publicly accessible open
space. The arena will be the home of the National
Basketball Association franchise now known as the New
Jersey Nets, finally fulfilling the goal of returning a major-
league professional sports team to Brooklyn for the first time
since the Brooklyn Dodgers left in 1957. The Project will
also result in extensive environmental remediation of the
Project site,

2

Although they do not dispute most of the Project’s public
purposes, Petitioners make the “far-reaching” (App. 10a)!
claim that condemning their properties to facilitate the
Project would violate the Public Use Clause of the Fifth
Amendment because the public officials who approved the
Project were in fact motivated by the sole or primary purpose
of enriching the Project’s private developer, and thus the
Project’s undisputed public purposes are merely
“pretextual.” Petitioners base this pretext claim upon
nothing but conclusory allegations that a host of “corrupt and
coopted” (App. 9a) state and city officials (including
Respondents Mayor Bloomberg and former Governor
Pataki), none of whom had any evident or alleged motive to
abdicate their roles of significant public trust to curry favor
with the developer or the other private Respondents,
conspired to support the Project for private rather than public
benefit.

The courts below each properly concluded that
Petitioners’ claim could not survive a motion to dismiss
because, even if a pretext claim was theoretically cognizable
in the face of multiple, concededly quintessential public
uses, the speculative and conclusory allegations in
Petitioners’ complaint could not support a claim of pretext.

References to the Appendix to the Petition for Certiorari are
“App.” herein. References to the Joint Appendix in the court
of appeals are “JA”. The Joint Appendix consisted of the
Petitioners’ complaint and all documents referenced therein.
See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.
Ct. 2499, 2509 (2007) (courts faced with a Rule 12(b)(6)
motion “must consider the complaint in its entirety, as well as

. documents incorporated into the complaint by reference”).

3

STATEMENT

1. ESDC and the Eminent Domain Process in New York

Respondent New York State Urban Development
Corporation d/b/a Empire State Development Corporation
(“ESDC”) is a public benefit corporation created by the New
York State Legislature in 1968. ESDC’s primary statutory
role is to foster development, urban stabilization and
revitalization of distressed areas by eliminating blight and
constructing viable commercial, industrial and residential
projects that create employment, increase state and local tax
revenue and otherwise contribute to the public welfare and
civic good.” |

One of ESDC’s most important revitalization tools is its
power of eminent domain. The assembly of diversely owned
parcels necessary for large-scale projects, particularly in
densely populated urban areas that are layered r-ith public
infrastructure and competing private interests, is often
impossible without condemnation. The original World

Respondents can be grouped into four sets: (1) former
Governor George E. Pataki; (2) the “ESDC Respondents,”
consisting of ESDC and its former chief executive, Charles A.
Gargano; (3) the “Municipal Respondents,” consisting of the
City of New York, Mayor Michael Bloomberg, former Deputy
Mayor Daniel L. Doctoroff, the New York City Economic
Development Corporation and two of its former presidents,
Andrew M. Alper and Joshua Sirefman; and (4) the “Forest
City Ratner (or “Private” or “FCRC”) Respondents, consisting
of Bruce C. Ratner; James P.. Stuckey; Forest City Enterprises,
Inc.; Forest City Ratner Companies; Ratner Group, Inc.;
FCRC, LLC; Brooklyn Arena, LLC; Atlantic Yard
Development Co. LLC; BR Land, LLC; and FCR Land, LLC.
This brief in opposition is submitted on behalf of the ESDC
and Municipal Respondents.

4

Trade Center, the revitalization of Times Square, and
Lincoln Center for the Performing Arts all are examples of
the crucial role of eminent domain in accomplishing critical
public policy objectives within major cities such as New
York.

In the legislation creating ESDC, the Urban
Development Corporation Act of 1968 (the “UDC Act”),
N.Y. UNCONSOL. LAWS §§ 6251-6292 (McKinney 2000 &
Supp. 2008), New York’s legislature delegated to ESDC the
sovereign power of eminent domain to achieve its objectives.
ESDC is directed to “encourag[¢] maximum participation by
the private sector of the economy,” N.Y. UNCONSOL. LAWS
§ 6252 (McKinney Supp. 2008), “in part by promoting large-
scale real estate projects that create and retain jobs and/or
reinvigorate distressed areas.” Develop Don’t Destroy
Brooklyn v. Empire State Dev. Corp., 816 N.Y.S.2d 424, 427
(N.Y. App. Div. 2006), appeal denied, 862 N.E.2d 790 (N.Y.
2007). ESDC may use eminent domain to acquire property
“necessary or convenient” to carrying out its mission, N.Y.
UNCONSOL. LAws § 6263 (McKinney 2000), and has power
to override compliance with local laws (including zoning
laws) after consultation with local officials, id. § 6266(3).

To exercise its power of eminent domain, ESDC must
comply with New York’s Eminent Domain Procedure Law
(“EDPL”), adopted in 1977 to govern and lend uniformity to
eminent domain proceedings in New York. See N.Y. Em.
Dom. Proc. LAW §§ 101-709 (McKinney 2002 & Supp.
2008). The EDPL establishes comprehensive procedures for
extensive up-front public review and input followed by
expedited judicial review.

A prospective condemnor first must notice and convene a
public hearing concerning the “proposed public project.”
N.Y. Em. Dom. Proc. LAw § 201 (McKinney 2002); see also
N.Y. Em. Dom. Proc. LAw §§ 202-203 (McKinney 2002 &

5

Supp. 2008). A record of the hearing is maintained, and
those in attendance have a right to be heard and to have their
views entered into the record in writing or orally. N.Y. EM.
Dom. Proc. LAW § 203 (McKinney 2002). Next, the
condemnor must make and publish “its determination and
findings” specifying, among other things, “the public use,
benefit or purpose to be served by the: proposed public
project.” N.Y. EM. DOM. Proc. LAW § 204(A), (B)(1)
(McKinney Supp. 2008). The deadline for such publication
is 90 days from the close of the public hearing. Jd. § 204(A).

Any “aggrieved” person then has 30 days to challenge
the determination and findings in a petition before the
Appellate Division of the State Supreme Court, which has
“exclusive” jurisdiction. N.Y. EM. Dom. Proc. LAw
§§ 207(A), (B), 208 (McKinney 2002). The EDPL directs
that the Appellate Division “shall either confirm or reject the
condemnor’s determination and findings” after considering
whether:

(1) the proceeding was in conformity with the
federal and state constitutions,

(2) the proposed acquisition is within the
condemnor’s statutory jurisdiction or authority,

(3) the condemnor’s determination and findings
were made in accordance with procedures set forth
in this article and with article eight of the
environmental conservation law, and

(4) a public use, benefit or purpose will be served
by the proposed acquisition.

Id. § 207(C). The EDPL’s pre- and post-determination
procedures have been upheld as furnishing due process. See
Brody v. Vill. of Port Chester, 434 F.3d 121, 134-36 (2d Cir.
2005).

6

Under Article 4 of the EDPL, the last stage of the process
before condemnation is the proceeding to acquire title to the
properties designated for taking. The prospective
condemnor has three years to initiate such a proceeding after
a “final order or judgment” has been rendered in the EDPL §
207 proceeding (if one has been filed). See N.Y. EM. Dom.
Proc. LAW § 401(A)(3) (McKinney 2002). Once notified of
the Article 4 proceeding, condemnees-to-be may appear and
answer. Id. § 402(B)(4). If the court determines that the
procedural requirements of the EDPL have been complied
with, it grants the petition. /d. § 402(B)(5). The. “acquisition
of the property” becomes “complete” when the condemnor
files the court’s order with the acquisition map with the
county clerk or register. Jd. The condemnor has 30 days to
serve a notice of acquisition upon each condemnee, see id. §
502(B), who then may file a claim for just compensation.
See id. § 503(B).

ESDC’s exercise of eminent domain is a discretionary
action subject to the State Environmental Quality Review
Act (““SEQRA”), N.Y. ENVTL. CONSERV. LAW §§ 8-0101 to
8-0117 (McKinney 2005 & Supp. 2008), which requires
state agencies to study and attempt to mitigate the adverse
environmental effects of actions they approve.

2. The Atlantic Yards Project

ESDC is the sponsor and lead agency for the Atlantic
Yards Project, which was first announced in December 2003.
(App. 189a 4 68.) Petitioners allege (App. 184a-185a fj 51-
53), and Respondents must assume for purposes of this
appeal, that Respondent Forest City Ratner Companies
(“FCRC”) initiated the Project.

a. The Project Site

The Project’s site encompasses 22 acres of land: that “has
suffered from physical deterioration and relative economic
imactivity for at least four decades. Dominated by an
approximately 9-acre open rail yard and otherwise generally
characterized by dilapidated, vacant, and underutilized
properties, the site creates a clear visual and physical barrier
between the neighborhoods north and south of Atlantic
Avenue” near downtown Brooklyn. (JA222 (blight study).)

While surrounding neighborhoods have experienced a
revitalization that began in the late 1970s, the Project site has
not—largely because of the remaining below-grade open-air
rail yards that divide the area. (JA161-162; 228-229; 237;
1044.) At the heart of this area lie portions of the “Atlantic
Terminal Urban Renewal Area” or “ATURA,” which was
created in 1968 and earmarked for comprehensive
redevelopment pursuant to an urban renewal plan. (JA215-
216.) As Petitioners concede, the City first designated
ATURA as blighted in 1968. (App. 186a J 55, 58.) The
renewal plan for ATURA has been repeatedly amended over
the years, but all prior plans to remediate this blighted site
have proven fruitless. As late as April 2064, the City
reconfirmed, for the tenth consecutive time, the ATURA’s
blight designation and extended the accompanying renewal
plan for another 40 years. (App. '86a-187a J 57; JA215.)

Petitioners have never disputed that the ATURA is
blighted, and that it has been so designated and earmarked
for comprehensive redevelopment for forty years. While
they grudgingly allege that “(njearly half’ the Project site
falls within the ATURA (App. 186a4 55), the record shows
that number to be approximately 63%. (JA215.) The district
court accepted the 63% figure (App. 35a), and Petitioners
conceded it at oral argument before the court of appeals.
Petitioners have defined as the “Takings Area” the entire

8

non-ATURA section of the Project site (App. 186a § 55),
which consists of numerous parcels that were owned by 76
different parties prior to 2003. Currently, only 27 separate
tax lots in the Takings Area remain wholly or partially under
the control of parties other than the Project sponsor, the City,
or the Metropolitan Transportation Authority.

The blight study ESDC commissioned in early 2006,
before making the findings necessary to proceed under the
UDC Act, confirmed that the blight extended beyond the
ATURA into the Takings Area. (JA213-593.) Specifically,
the study concluded that one or more blight characteristics
were present on most lots within the Takings Area. (JA310-
482.) Buildings on five of those lots—ones that FCRC had
acquired through private purchase—had so deteriorated that
they posed a threat to public safety and had to be demolished
immediately. (JA502-543.)> See Develop Don't Destroy
Brooklyn, 816 N.Y.S.2d at 428-29. More generally, the
blight study showed that “the non-rail yard portion of the
project site is characterized by unsanitary and substandard
conditions” including vacant and underutilized buildings,
vacant lots, and structures “suffering from serious physical
deterioration.” (JA216.)*

These buildings’ major structural deterioration was not, as
Petitioners conclusorily assert (App. 187a 4 60), caused by the
Project itself. The blight study documents severe and long-
standing damage to roofs, floors, and walls, as well as water
and rot damage to the timber floorings and floor joists.
(JA502-543.) These buildings were, when the study was
conducted, “permanently exposed to the elements.” (JA502,
510, 515, 519, 522, 530.)

* The Petition contains numerous factual assertions that were
shown to be false by the record or by the state court in

Develop Don't Destroy (Brooklyn) v. Urban Development
(cont'd)

9

b. Approval of the Project

The extensive review, public input, and approval procedure
under multiple state laws is discussed exhaustively in
Develop Don't Destroy (Brooklyn) v. Urban Development
Corp., No. 104597/2007, 2008 N.Y. Misc. LEXIS 551 (N.Y.
Sup. Ct. Jan. 11, 2008), see id. at *5-15, and is summarized
briefly herein.

In February 2005, ESDC, along with the City of New
York and the New York City Economic Development
Corporation, joined FCRC in signing two memoranda of
understanding concerning the Project (JA1005-1016, 1028-
1034), by which it was agreed, among other things, that
ESDC would be the “lead agency” under SEQRA for
purposes of examining the proposed project’s environmental
impacts, and that, subject to the approval of ESDC’s Board
of Directors and other conditions, ESDC would exercise its
power under New York state law to override New York City
zoning. (App. 189a | 70.) Neither memorandum was an

(cont'd from previous page)

Corp., No. 104597/2007, 2008 N.Y. Misc. LEXIS 551 (N.Y.
Sup. Ct. Jan. 11, 2008), or that were not properly preserved for
consideration by this Court. These include assertions that: (1)
property was excluded from condemnation because of a “deal”
between FCRC and another developer (Petition at 6 n. 2); (2) a
rival developer bid more than FCRC did for the right to build

over the Vanderbilt Yards facility (id. at 8); (3) the request for
proposals to which FCRC and the rival bidder responded was
inferior to a subsequent request made by the MTA in
connection with a site in Manhattan (id. at 9 n. 4); and (4) the
Project’s creation of 2,250 units of affordable housing will be
offset by the displacement of “2,929 at-risk households” (id. at
12-13). Respondents reserve the right to present a more
comprehensive rebuttal of these and other erroneous factual
assertions by Petitioners should the Petition be granted.

10

approval, binding agreement or final determination
concerning the Project.

On September 16, 2005, ESDC announced that the
Project might have a “significant effect” on the environment
and would therefore necessitate preparation of an
environmental impact statement. (JA1036.) On August 23,
2006, in accordance with the directives of EDPL Article 2,
ESDC held a duly noticed public hearing on the Project.
Additional community forums not mandated by the EDPL
were held on September 12 and 18, 2006. (See JA1206.)
After reviewing comments and testimony received at the
public hearing and community forums, as well as the written
comments submitted and the Final Environmental Impact
Statement, ESDC made its Final Determination and Findings
under the EDPL. (See JA1204-1227.)

In its Determination and Findings, ESDC announced its
decision to exercise eminent domain to support the Atlantic
Yards Project. Chief among the public purposes it found the
Project would serve was the elimination of blighted
conditions within the Project site—both in the ATURA and
in the Takings Area. (JA1204, 1207.) Other public benefits
and uses identified included:

e “a publicly owned state-of-the-art arena to
accommodate the return of a major-league sports
franchise to Brooklyn [and] a valuable athletic
facility for the City’s colleges and local academic
institutions”;

e “2,250 affordable housing units and between
3,075 and 4,180 market-rate housing units”;

e “8 acres of publicly accessible open space that
links together the surrounding neighborhoods”;

11
improved public transit facilities;

“environmental remediation of the Project Site”;
and

a host of “economic benefits,” including the
creation “4,538 new jobs in the City” and the
generation of billions of new tax dollars for the
City and State.

(JA1208-09.)

On December 21, 2006, the New York State Public
Authorities Control Board (PACB)}—whose three voting
members are designees of the Governor, the Speaker of the
State Assembly, and the Majority Leader of the State
Senate—issued its resolution approving the State’s financial
contribution to the Project. (JA1310-18.) The City of New
York and the Metropolitan Transportation Authority (a State
agency) have also consented to the Project. The Project has
the support of a host of elected state and local officials,
including Senator Charles Schumer and Congressman Ed
Towns, then-Governor George Pataki, Mayor Michael
Bloomberg, Brooklyn Borough President Marty Markowitz,
City Comptroller William C. Thompson, Public Advocate
Betsy Gotbaum, and numerous State and City legislators,
local leaders, affordable housing advocates and union
officials. (JA605-623.)

3. This Action

In October 2006, short-circuiting the EDPL’s judicial
review process, the Petitioners filed a federal complaint in
which they asserted, pursuant to 42 U.S.C. § 1983, that
ESDC and the other public Respondents were threatening to
violate their constitutional rights under the Public Use
Clause of the Fifth Amendment and the Equal Protection and

12

Due Process Clauses of the Fourteenth “ nendment. (App.
204a-212a.) Their theory was—and remains—that a host of
public officials, including ESDC employees, Mayor
Bloomberg, and then-Governor Pataki, engaged in a
wholesale abdication of governmental responsibility by
banding together to support the Atlantic Yards Project for the
sole purpose of conferring a benefit on the Project’s
corporate sponsor, FCRC, and its CEO, Bruce Ratner. A
few days after they filed their complaint, a reporter asked
Petitioners’ counsel how suit could have been filed “before
eminent domain has been used by the state.”. (JA1228.)
Counsel responded: “{W]e need to get discovery, where we
get to question people under oath and get documents that
will support what we already know... .” (JA1228-29
(emphasis added).)

Kicking off their complaint with bald accusations of
“misuse of government[] power” and “betrayal of public
trust,” Petitioners asserted that all of the public Respondents
acted at all relevant times “in service of the interests of a
private developer,” and, oblivious to their public
responsibilities, “obediently [fell] into“line’ with FCRC’s
plans for the Project. (App. 17la-172a) The “facts”
identified to support this conspiracy theory consisted, in
essence, of complaints about the process and sequence by
which the Project was first proposed and developed (App.
184a-194a)—a process and sequence that comported fully
with the procedures enacted by the legislature directing
ESDC to cooperate with—indeed, “encouragi[e] maximum
participation by’—private entities. N.Y. UNCONSOL. LAws
§ 6252 (McKinney Supp. 2008). Not a single paragraph in
the entire complaint alleged any fact demonstrating that the
public Respondents had or could have had any reason to
abdicate their professional and public responsibilities in
order to collude for the sole purpose of enriching the private
developer.

13

Petitioners immediately sought permission to seek
expedited, far-flung discovery of written communications
and deposition testimony to reveal the subjective “motives”
of public officials in supporting or facilitating the Project.
That motion for expedited discovery was stayed in relevant
part.

Respondents thereafter moved to dismiss the complaint
for failure to state a claim, as well as on grounds of ripeness
and abstention. The district court referred the motion
initialiy to a magistrate judge. -

4. The Decisions Below

Magistrate Judge Levy issued a+ Report and
Recommendation recommending dismissal (App. 116a-
168a) on grounds that abstention under Burford v. Sun Oil
Co., 319 U.S. 315 (1943), was warranted in light of the
State’s comprehensive statutory scheme for judicial review
of public use determinations. Accordingly, he did not reach
the question whether plaintiffs had stated a federal
constitutional claim upon which relief could be granted.

The district court dismissed with prejudice the federal
claims in their entirety. (App. 3la-115a.). Although it
rejected Judge Levy’s recommendation that abstention. was
warranted, it concluded that plaintiffs had failed to state a
claim for relief under the Public Use Clause.

After analyzing the three controlling Supreme Court
cases—Berman v. Parker, 348 U.S. 26 (1954), Hawaii
Housing Authority v. Midkiff, 467 U.S. 229 (1984), and Kelo
v. City of New London, 545 U.S. 469 (2005)—the district
court articulated its view of the pertinent inquiry under that
Clause: “[A] taking fails the public use requirement if and
only if the uses offered to justify it are ‘palpably without
reasonable foundation,’ such as if (1) the ‘sole purpose’ of

14

the taking is to transfer property to a private party, or (2) the
asserted purpose of the taking is a ‘mere pretext’ for an
actual purpose to bestow a private benefit.” (App. 103a
(citations omitted).) Under neither test, the district court
held, could Petitioners’ challenge survive dismissal.

The district court concluded that Petitioners’ bare
accusation that “(t]he public does not benefit from the taking
of Plaintiffs’ properties” was unsupported by their own
allegations, which challenged only the extent—but not the
existence—of the Project’s numerous public purposes.
(App. 104a.) Because Petitioners plainly had not alleged that
the Project would serve no public purpose, the district court
found that their claim necessarily failed under the well-worn
principles established by Berman and Midkiff. The court,
however, construed Kelo as permitting Petitioners to state a
claim if they could allege facts that the asserted public
purposes for the Project were “mere pretexts” for an “actual
purpose” to “bestow a private benefit.” (App. 107a (quoting
Kelo, 545 U.S. at 478).) Applying that test, the district court
concluded that Petitioners’ allegations again fell short of the
mark. Petitioners had failed to “allege any facts suggesting
that any Defendant had any reason to bestow a benefit on
any private party. Therefore, even if plaintiffs could prove
every allegation in the Amended Complaint, a reasonable
juror would not be able to conclude that the public purposes
offered in support of the Project [were] ‘mere pretexts’
within the meaning of Kelo.” (App. 109a.)

The court of appeals affirmed. Recognizing that “the
primary mechanism for enforcing the public-use requirement
has been the accountability of political officials to the
electorate, not the scrutiny of the federal courts” (App. 13a),
the court rejected the “argument that the ESDC is
undeserving of such deference because it is merely a state
agency deputized by the legislature.” (App. 20a.) The court
noted that this Court “has expressly extended deference in

15

such matters to both ‘Congress and its authorized agencies.’”
(Jd. (quoting Berman, 348 U.S. at 33).) It further took
judicial notice of the fact that the PACB (a body that
included designees of the Speaker of the State Assembly, the
Majority Leader of the State Senate, and then-Governor
Pataki) had approved the State’s financial contribution to the
Project. (App. 20a n.7.)

The court of appeals held that the complaint’s allegations
foreclosed “any blanket suggestion that the Project can be
expected to result in no benefits to the public.” (App. 16a.)
For example, “the complaint does not allege, nor could it,
that either the Renewal Area or the Takings Area are devoid
of blight.” (App. 17a.) In fact, the court found that the
Petitioners had “effectively acknowledged the Project’s
rational relationship to numerous well-established public
uses” (App. 24a)}—“among them the redress of blight, the
creation of affordable housing, the creation of public open
space, and various mass-transit improvements.” (App. 17a.)

Finally, the court of appeals disagreed with Petitioners
that these public purposes “should nonetheless be rejected as
‘pretextual,’ not because they are false, but because they are
not the al reason for the Project’s approval.” (App. 17a.)
The cov.. concluded that the kind of pretext claim advanced
by Petitioners was of “especially dubious jurisprudential
pedigree” (App. 24a) because it would require, contrary to
this Court’s holdings in Berman and Midkiff, analysis of the
“purity of the motives” of government officials (App. 25a)
through “full judicial inquiry into the subjective motivation
of every official who supported the Project, an exercise...
fraught with conceptual and practical difficulties” (App.
26a.)

While “preserving the possibility that a fact pattern may
one day arise” where “a closer objective scrutiny of the
justification being offered is required” (App. 27a (emphasis

a3
¥

16

in original)), the court rejected that this is such a case. In
this case, “{a]lthough the claim is far-reaching, the specific
allegations underlying it are less so.” (App. 10a.)
Petitioners “have failed to allege any specific examples of
illegality in the elaborate process by which the Project was
approved, any specific illustration of improper dealings
between Mr. Ratner and the pertinent government officials,
or any specific defect in the Project that would be so
egregious.” (App. 30a.)

REASONS FOR DENYING THE PETITION

I. THERE IS NO CONFLICT AMONG THE
LOWER COURTS WARRANTING THIS
COURT’S ATTENTION

A. The Second Circuit’s “Pretext” Analysis is
Consistent with the Very Few Lower Court
Decisions that Have Addressed Pretext
‘Claims in Public Use Clause Cases.

Attempting to create a conflict among the courts where
none exists, Petitioners cite only three other cases since Kelo
in which pretext claims arguably have been litigated: an
unpublished decision from the Northern District of
California, MHC Financial Ltd. Partnership v. City of San
Rafael, No. C 00-3785 VRW, 2006 WL 3507937 (N.D. Cal.
Dec. 5, 2006), a New York State intermediate appellate court
decision, 49 WB, LLC v. Village of Haverstraw, 839
N.Y.S.2d 127 (N.Y. App. Div. 2007), and a decision of the
District of Columbia Court of Appeals, Franco v. National
Capital Revitalization Corp., 930 A.2d 160 (D.C. 2007).

That sparse and undeveloped case law in itself strongly
militates against this Court’s review. Moreover, the decision
below does not conflict with those cases, and is fully in
accord with the few other decisions that have addressed
pretext claims in the aftermath of Kelo.

17

In Franco, the District of Columbia Court of Appeals
reversed the trial court’s striking of a Public Use Clause
defense to a condemnation, but did so under very different
circumstances. There, the draft bill authorizing the
condemnation “did not explain why the properties were
‘necessary’ or to what ‘public use’ they would be devoted.”
Franco, 930 A.2d at 163. Nine months later, after public
hearings, the District of Columbia Council passed the bill
approving the condemnation, but the passed version included
a set of findings that were not in the version that had been
reported on by the committee. These inserted findings,
which no further public hearings had been held to address,
asserted in conclusory fashion that the properties were part
of a complex that was “‘a blighting factor’” in the nearby
communities. Jd. There was no cited study that supported
this legislative “finding,” and no opportunity for the public
to contest the finding.

Mr. Franco, the owner of the condemned property,
sought to block the condemnation by asserting that the
asserted public purpose was pretextual. Concluding that Mr.
Franco had properly pled a pretext defense on the merits, the
Court of Appeals stated that while “the permanent legislation
recites that NCRC [the condemning agency] had ‘advised the
Council that the Skyland Shopping Center is blighted,’ . .
according to Mr. Franco, NCRC admitted that it had made
no such finding.” Jd. at 171.

In fact, Franco is in accord with the decision below. The
court in Franco, like the Second Circuit below, stated that in
those rare cases where a pretext claim or defense might be
pled, litigation of such a claim is limited to review of the
objective record underlying a public use determination.
Franco admonished that the word “pretextual” in Kelo “is
used to characterize the public benefits that will flow from
the taking, not the thought processes of legislators or other
governmental officials.” Franco, 930 A.2d at 173 (citing

18

Kelo, 545 U.S. at 490 (Kennedy, J., concurring)). Thus, “if
the record discloses . . . that the taking will serve ‘an
overriding public purpose’ and that the proposed
development ‘will provide substantial benefits to the public,’
the courts must defer to the judgment of the legislature.”
Franco, 930 A.2d at 174. Reviewing Kelo, Franco also
expressly rejected the constitutional significance of Mr.
Franco’s allegations that the taking failed the public use
requirement because “the identities of the benefiting private
parties were known before the taking was authorized by the
legislature and that there is no comprehensive plan for
redeveloping the area.” Franco, 930 A.2d at 175.

The two additional cases cited by Petitioners are
inapposite and not in conflict with the decision below. In
MHC Financing Ltd. Partnership v. City of San Rafael, No.
C 00-3785 VRW, 2006 WL 3507937 (N.D. Cal. Dec. 5,
2006), a rent control ordinance applicable to mobile home
parks was challenged as violative of the Public Use Clause.
Citing Kelo, the district court denied the city’s motion for
summary judgment on plaintiff's private takings claim, see
MHC Financing, 2006 WL 3507937, at *14, because there
was no evidence that the ordinance was part of a “carefully
considered development plan,’” or that the ordinance did
more than confer “a private benefit on the incumbent
tenants.” id. In making the latter determination, the court
stated that a court should “‘review the record’” to see if a
‘plausible accusation of impermissible favoritism to private
parties’” has merit. Jd. (emphasis added) (quoting Kelo, 545
U.S. at 491 (Kennedy, J., concurring)). But the case had
nothing to do with the transfer of real estate or other tangible
property from one owner to another, and thus the court’s
discussion of Kelo was purely a matter of analogy.

Similarly, in 49 WB, LLC v. Village of Haverstraw, 839
N.Y.S.2d 127 (N.Y. App. Div. 2007), an on-the-face review
of the allegations concerning public use and the underlying

19

record exposed the pretextual nature of the asserted public
purposes. The owner of the property proposed to devote it to
substantially the same uses (including affordable housing) as
the village proposed, and the village’s determination and
findings in support of condemnation “fail[ed] to articulate
how or in what manner the condemnation . . . fosters any
benefit to the public which would not be obtained absent the
condemnation.” /d. at 139; see generally id. at 139-42.

Here, by contrast, the Petitioners’ allegations on their
face concede multiple undisputed public purposes served by
the Project. It-is only the subjective motivation of officials
that Petitioners seek to challenge as impure and pretextual.
Other lower courts have refused to recognize a pretext claim
in the face of much less support for valid public purposes
than presented here. See, e.g., Western Seafood Co. v.
United States, 202 Fed. Appx. 670, 675 (Sth Cir. 2006)
(rejecting pretext argument although the beneficiaries of the
transfer of property were “identified prior to or at the earliest
stages of the City’s planning process”); CBS Outdoor Inc. v.
New Jersey Transit Corp., Civil Action No. 06-2428 (HAA),
2007 WL 2509633, at *14-15 (D.N.J. Aug. 30, 2007)
(rejecting “bald legal allegations” that the purported
purposes of a project were dubious, or that there was
favoritism or bias, as insufficient to state a pretext claim).

B. There is No Legal Conflict or Confusion
that Agencies Such as ESDC with
Legislatively Delegated Eminent Domain
Powers are Entitled to the Same Deference
as Legislatures in Their Public Use
Determinations.

The court of appeals correctly rejected the argument that
ESDC’s determination to condemn is undeserving of
deference merely because ESDC is a state agency with
legislatively delegated erninent domain powers (rather than

20

the legislature itself). There is no lower court conflict on this
point.

This Court has expressly extended deference to both
“Congress and its authorized agencies.” Berman, 348 U.S.
at 33 (emphasis added) (upholding condemnation by the
District of Columbia Redevelopment Land Agency, a public
benefit corporation created by Congress and granted the
power of eminent domain for “the redevelopment of blighted
territory”). Jd. at 29; see also Schneider v. District of
Columbia, 117 F. Supp. 705, 710-11 (D.D.C. 1953)
(summarizing the District of Columbia Redevelopment Act),
aff'd as modified on other grounds, sub nom. Berman vy.
Parker, 348 U.S. 26 (1954).

The cases cited by Petitioners do not evidence a lower
court conflict regarding the degree of deference to be
afforded to a condemning agency as opposed to a legislature.
In Daniels v. Area Plan Commission, 306 F.3d 445 (7th Cir.
2002), the reason the court did not extend deference to the
condemnor’s determination was not because of its status as a
local planning commission with delegated eminent domain
powers, but because the commission had premised its public
use determination on a ground (economic development) that
fell outside the Indiana legislature’s delegation of authority
to it. See id. at 462-63.

In fact, consistent with the decision below, the Daniels
court acknowledged that a local agency acting within its
delegated powers of eminent domain should be afforded the
same deference due to a legislature: “[T]o the extent that the
decisions of the . . . Commission fall under specific Indiana
legislative determinations of public use, they should not be
disturbed unless the decision is ‘palpably without reasonable
foundation.”” Jd, at 460 (quoting Midkiff, 467 U.S. at 241).

Similarly, in Armendariz v. Penman, 75 F.3d 1311 (9th
Cir. 1996) (en banc), the Ninth Circuit addressed not the

21

deference owed to a public agency’s condemnation
determination pursuant to its legislatively delegated
authority, but “an uncompensated taking through a raw
misuse of government power.” Jd. at 1321 (emphasis
added). At issue there was an alleged “scheme by [city
Officials] to evict tenants, deprive the plaintiffs of rental
income... , prevent owners from learning what repairs were
necessary to come into compliance, and invent new
violations.” Jd. “The alleged purpose of this scheme was to
deprive the plaintiffs of their property, either by forced sale,
driving down the market value of the properties so a
shopping-center developer could buy them at a lower price,
or by causing the plaintiffs to lose their properties by
foreclosure.” Jd. The court not surprisingly stated as dictum
that “the usual extreme deference that courts owe to
legislative determinations of public use” was not appropriate
to such de facto confiscatory enforcement activity by
individual city officials acting without legislative delegation
of eminent domain powers. Id.; see also id. at 1313-15
(detailing alleged scheme).

The limited holdings of Daniels and Armendariz are fully
consistent with the decision below. There is no claim that
ESDC acted outside, or in excess of, the power granted to it
by the legislature under the UDC Act. In fact, ESDC’s
authority to proceed with the Project under state law
(including the UDC Act and SEQRA) was specifically
upheld in a comprehensive and lengthy decision by the New
York State Supreme Court, New York County. See Develop
Don't Destroy (Brooklyn) v. Urban Dev. Corp., No.
104597/2007, 2008 N.Y. Misc. LEXIS 551, at *1, *6-14,
*30-77 (N.Y. Sup. Ct. Jan. 11, 2008); see also id. at *1, *7-
14, *20-30 (upholding Project approvals by the Metropolitan
Transportation Authority and the PACB).

22

THE DECISION BELOW IS FULLY IN
ACCORD WITH THIS COURT’S
LONGSTANDING PRECEDENTS

The decisions below are a straightforward application of
this Court’s long-standing precedents concerning the
deferential level of judicial review accorded to public use
determinations—precedents that were reaffirmed in 2005
and embraced by eight Justices in Kelo v. City of New
London, 545 U.S. 469 (2005).

This Court iong has construed the “public use” limitation
to trigger only the most deferential judicial scrutiny. A
taking serves a “public use” when “the exercise of the
eminent domain power is rationally related to a conceivable
public purpose.” Hawaii Hous. Auth. v. Midkiff, 467 U.S.
229, 241 (1984). Because “[t]he role of the judiciary in
determining whether that power is being exercised for a
public purpose is an extremely narrow one,” Berman vy.
Parker, 348 U.S. 26, 32 (1954), a court should not
“substitute its judgment for a legislature’s judgment as to
what constitutes a public use ‘unless the use be palpably
without reasonable foundation.” Midkiff, 467 U.S. at 241
(emphasis added) (quoting United States v. Gettysburg Elec.
Ry. Co., 160 U.S. 668, 680 (1896)).

Applying these bedrock principles, the proposed taking of
Petitioners’ properties plainly passes constitutional muster.

A. The Project Serves Multiple Undisputed
Public Purposes.

Petitioners do not and cannot deny that remediation of
longstanding blight is a quintessential public purpose. See,
e.g., Berman, 348 U.S. at 33-35; Rosenthal & Rosenthal Inc.
v. New York State Urbax Dev. Corp., 771 F.2d 44, 46 (2d
Cir. 1985) (removal of blight “is a classic example of a
taking for a public use”). They admit, moreover, that the

23

majority of the Project site is in fact blighted (App. 186a-
187a Ff 55, 57; App. 198a 4] 104-05), and the courts below
recognized as much in reviewing the complaint (App. 18a,
104a-105a). See also Develop Don't Destroy (Brooklyn),
2008 N.Y. Misc. LEXIS 551 at *58; (“{PJetitioners concede
that the majority of the Project area is blighted, as they are
not challenging the blight designation under ATURA’as.to
63 percent of the site, which has stood for nearly 40 years.”’).

And other purposes that will be served undeniably are
public ones: a new sports arena—home to: a major-league
professional sports team in Brooklyn for the first time since
the move (heartbreaking for many residents) of the Brooklyn
Dodgers in 1957—will be built on the Project site; mass
transit will be improved by the building of, among other
things, a new railyard to service the massive public
transportation hub at Atlantic Yards and a new subway
entrance; new public open space will be created; and below-
market-rate affordable housing will be constructed. Cf, e.g.,
Kelo, 545 U.S. at 497-98 (O’Connor, J., dissenting)
(identifying as clear “public uses” “a railroad” and “a
stadium”); Nat’l R.R. Passenger Corp. v. Boston & Maine
Corp., 503 U.S. 407, 422-23 (1992) (taking to facilitate
intercity rail service furthered a public use); Pennell v. City
of San Jose, 485 U.S. 1, 11-12 (1988) (efforts to relieve
housing market pressures were within State’s police powers);
Shoemaker v. United States, 147 U.S. 282, 297 (1893)
(noting numerous decisions holding that “land taken in a city
for public parks and squares, by authority of law.. . . is taken
for a public use”); Southeast Land Dev. Assocs., L.P. v.
District of Columbia, No. Civ.A. 05-1413RWR, 2005 WL
3211458, at *5 (D.D.C. Nov. 1, 2005) (taking to build
baseball stadium did not violate the Public Use Clause).

Thus, as the district court concluded, plaintiffs’ bare
accusation that “(t]he public does not benefit from the taking
of Plaintiffs’ properties” was unsupported by their own

24

allegations. (App. 104a.) In truth, “although Plaintiffs
allege that the net gain in tax revenues wil! be lower than
defendants have predicted, they do not allege that there will
be no net gain.” (/d.) Likewise, “although Plaintiffs allege
that Defendants’ claims about job creation are overstated,
they do not suggest that the Project will fail to create jobs.”
(id.) And “Plaintiffs do not allege that the Project will fail to
achieve a significant net increase in housing units in the area,
and it is clear that it is intended to do so.” (App. 105a)
Finally, “Plaintiffs also do not allege that the Project’s non-
quantifiable public benefits”—like the return ofa major-
league sports team to Brooklyn—“are false.” (App. 106a.)

While Petitioners do challenge some of the asserted
public purposes (creation of affordable housing and jobs) on
grounds that the full targeted gains will not be realized,
assertions about the inadequate extent rather than the
nonexistence of certain public benefits, even if true, do not

state a claim under the Public Use Clause. It has been settled
for over half a century that “the legislature, not the judiciary,
is the main guardian of the public needs to be served” by an
exercise of eminent domain and the appropriate scope of the
project. Berman, 348 U.S. at 32. Accordingly, even in those
cases—unlike this one—where the sole justification for the
taking at issue is economic development, a federal court
should not “second-guess [a condemnor’s] considered
judgments about the efficacy of its development plan,” or try
to evaluate for itself whether the public purpose asserted will
actually be realized. Kelo, 545 U.S. at 488-89. Nor should it
“second-guess [a condemnor’s} determinations as to what
lands it needs to acquire in order to effectuate the project.”
Id.; see also Berman, 348 U.S. at 35-36 (“It is not for the
courts to oversee the choice of the boundary line nor to sit in
review on the size of a particular project area. Once the
question of the public purpose has been decided, [these
decisions rest] in the discretion of the legislative branch.”).

25

There is No Warrant for Examining the
Subjective Thoughts of Public Officials to
Determine Whether Admittedly Valid
Public Purposes are “Pretextual’’.

While the court of appeals held open the possibility that
allegations in a particular case (not present here, it found)
may allow for some objective inquiry concerning the validity
of cited traditional public purposes, it properly held that the
subjective thought processes of public officials should not be
probed in order to determine whether admittedly valid
multiple public purposes are “pretextual.” Petitioners’
argument to the contrary misreads Kelo.

Petitioners and amicus curiae curiously argue that Kelo
expanded rather than constricted the degree of constitutional
scrutiny under the Public Use Clause. They contend that a
Public Use challenge can now proceed by merely alleging a
principal motive or intent to benefit a private party—even if
the public purposes of the project at issue are plain and
admitted (and not limited to economic development). Given
that Kelo itself reaffirmed the deferential standard of judicial
scrutiny of Berman and Midkiff, the court below properly
rejected that broad proposition.

Indeed, the Court granted certiorari in Kelo “to determine
whether a city’s decision to take property for the purpose of
economic development satisfies the ‘public use’ requirement
of the Fifth Amendment.” Kelo, 545 U.S. at 477 (emphasis
added); see also Petition for Writ of Certiorari at i, Kelo v.
City of New London, 545 U.S. 469 (2005) (No. 04-108),
available at 2004 WL 1659558. Acknowledging the
narrowness of the question presented, the Kelo Court
emphasized a key factual distinction from Berman: “Those
who govern the City [of New London] were not confronted
with the need to remove blight in” the area designated for
redevelopment. Kelo, 545 U.S. at 483. It also noted

26

plaintiffs’ argument that “using eminent domain for
economic development impermissibly blurs the boundary
between public and private takings.” Jd. at 485.
Nonetheless, the Court explained, under the broad deferential
standards enunciated in Berman and Midkiff, the City’s
determinations that the takings would foster economic
development and therefore served the public interest were
entitled to respect, and foreclosed any challenge under the
Public Use Clause. See id. at 480-82, 484-86.

Amicus curiae counsels against a rule of law that would
limit the ability of plaintiffs to develop a factual record to
support suppositions of illicit motive. But as the Second
Circuit correctly observed, even if a pretext claim can
survive review of the complaint and documents referenced
therein on a motion to dismiss, litigation of such a. claim
must be limited to an objective factual record, because “a full
judicial inquiry into the subjective motivation of every
official who supported the Project [is] an exercise . . . fraught
with conceptual and practical difficulties.” (App. 26a; see
also id. at 27a (quoting Edwards v. Aguillard, 482 U.S. 578,
636-37 (1987) (Scalia; J., dissenting)).) Where that objective
record demonstrates that a proposed condemnation will
further numerous, substantial and undisputed public
purposes, even proof of impure subjective motives on the
part of public officials approving the condemnation could
not negate the public purposes served by the project. A
contrary rule of law would allow harmful fishing expeditions
into the subjective motivations of public officials.

That kind of subjective—rather than objective, on-the-
record—scrutiny is precisely what has been rejected by
every lower court to consider the possibility of a pretext
claim in the wake of Kelo. See supra pp. __ (discussing
Franco v. Nat'l Capital Revitalization Corp., 49 WB, LLC v.
Vill. of Haverstraw, and MHC Fin. Ltd. P'ship v. City of San
Rafael; see also Brody v. Vill. of Port Chester, 434 F.3d 121,

27

136 (2d Cir. 2005) (no judicial “examination of the thought
processes of those exercising the legislative prerogative” is
warranted under the Public Use Clause). |

Cc. The Lower Courts’ Determination that the
Complaint’s Allegations of Improper
Motive Cannot Survive Dismissal Does Not
Merit Review by this Court.

Even if the subjective motives of public officials could
be relevant to a Public Use Clause inquiry, both courts below
determined that this particular complaint did not allege facts
sufficient to challenge such motives. (App. 30a, 108a-109a.)
As the district court found, Petitioners’ conclusory
allegations concerning former Governor Pataki’s, Mayor
Bloomberg’s and other public officials’ purportedly illicit
desires and intents in this case did not amount to alleged
facts or “‘a plausible accusation of impermissible favoritism
to private parties.” (App. 108a (quoting Kelo, 545 US. at
491 (Kennedy, J., concurring)).) The complaint did not
allege, for example, any special relationship between any of
the public Respondents and Bruce Ratner,-or how or why the
former would have had any reason to abdicate their
significant professional and public responsibilities in order to
benefit the latter. Accordingly, the court of appeals
concluded that “[aJlthough [Petitioners’ pretext] claim is far-
reaching, the specific allegations underlying it are less so.”
(App. at 10a.)

That case-specific determination does not merit review
by this Court, and thus this case is not a proper vehicle to

28

consider the question presented concerning the viability of a
properly pled claim of pretext.

WI. THIS COURT’S REVIEW IS UNWARRANTED
BECAUSE ISSUES CONCERNING THE .
BOUNDS OF EMINENT DOMAIN POWER
ARE ACTIVELY PERCOLATING IN STATE
LEGISLATURES AND CQURTS

Insofar as Petitioners and umicus seek review by this
Court of the appropriate bounds of eminent domain power in
the wake of Kelo, such review is unwarranted because these
issues are being vigorously debated and resolved in the
political and judicial branches of state and _ local
governments, where they are best resolved. CKelo itself
emphasized that while the decision set forth the broadest
extent of the eminent domain power, “nothing in [it]
precludes any State from placing further restrictions on its

exercise of [that] power.” Kelo, 545 U.S. at 489.

Indeed, through statute, citizen initiative and
constitutional amendment, or a combination of those
instruments, 42 states have changed their eminent domain
laws since Kelo was decided. See CASTLE COALITION,
50 STATE REPORT CARD: TRACKING EMINENT DOMAIN
REFORM LEGISLATION SINCE KELO 1 (2007),
http://www.castlecoalition.org/pdf/ publications/report_card/
50_State_Report.pdf (last visited May 15, 2008); see also
NATIONAL CONFERENCE OF STATE LEGISLATURES,
EMINENT DOMAIN, _http://www.ncsl.org/programs/natres/

> Amicus curiae suggests that this case is a vehicle for the Court

to clarify the scope of Bell Atlantic Corp. v. Twombly, 127 S.
Ct. 1955 (2007). But as the court of appeals made clear, its
decision was not predicated upon the outer bounds of
Twombly or determination of pleading standards. (App. 12a.)

29

EMINDOMAIN.htm (last visited May 15, 2008); see also,
e.g., Harrison Redevelopment Agency v. DeRose, 942 A.2d
59, 89 CN.J. Super. Ct. App. Div. 2008) (“Since Kelo was
decided, greater judicial and legislative scrutiny of
redevelopment-based takings has occurred” in various
States.).

Of the eight States that have not responded to Kelo with
enacted legislation, referenda, or amendments, three have
seen changes to their eminent domain laws through court
decisions. See, e.g., Bd. of County Comm'rs v. Lowery, 136
P.3d 639, 647-52 (Okla. 2006); see also Gallenthin Realty
Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447, 460 (N.J.
2007) (interpreting the State’s statutory definition of blight
narrowly); R.I. Econ. Dev. Corp. v. Parking Co., L.P., 892
A.2d 87 (R.I. 2006); see generally City of Norwood v.
Horney, 853 N.E.2d 1115, 1141 (Ohio 2006) (holding that
“economic development” is not a “public use” under the

State’s Constitution and noting that it need not follow Kelo
in interpreting its own constitution).

Although New York State has not yet enacted legislation
since Kelo, at least 17 bills have been introduced in the state
legislature. See 49 WB, LLC, 839 N.Y.S.2d at 130, n.1. And
New York’s state courts have scrutinized the public uses
served by proposed takings. See generally, e.g., id.

This locus for activity, initiative and diversity at the state
level is as it should be. As Kelo recognized, this Court’s
“earliest [public use] cases in particular embodied a strong
theme of federalism, emphasizing the ‘great respect’ that we
owe to state legislatures and state courts in discerning local
public needs.” 545 U.S. at 482 (citation omitted); see also
Rindge Co. v. L.A. County, 262 U.S. 700, 705-706 (1923)
(what constitutes public use “is influenced by local
conditions; and this Court . . . [should] regard with great

30

respect the judgments of state courts upon what should be
deemed public uses in any state.”’).

The variety of changes across the country reflects the
robust nature of the debate. Intervention by the Court at this
time would risk curtailing the vibrant discussion of policy
choices occurring at the state level.

[V. THIS CASE IS NOT A GOOD VEHICLE TO
CONSIDER THE QUESTION PRESENTED
BECAUSE OF ISSUES CONCERNING THE
NEED FOR BURFORD ABSTENTION.

The question presented by Fetitioners concerning the
scope of a “pretext” claim under the Public Use Clause may
not ultimately be reached in this case. Accordingly, this case
is not a good vehicle for consideration of the question.

Petitioners’ action was brought in federal court in
derogation of a comprehensive state statutory scheme that
provided for expedited judicial review of public use
determinations in state court. See N.Y. EM. DOM. PRoc.
LAW § 207 (McKinney 2002). Bypassing this state review
mechanism, Petitioners instead filed this action in federal
court. Respondents argued before the district court that the
court should abstain from deciding the matter. Magistrate
Judge Levy accepted that argument, although the district
court ultimately dismissed the complaint on the merits rather *
than on abstention grounds.

Magistrate Judge Levy concluded that Burford abstention
is called for because the federal interest in retaining
jurisdiction is outweighed by the State’s competing concern
to have particular kinds of cases adjudicated in a state.forum.
(App. 157a-158a.) Here, Judge Levy reasoned, “New
York’s EDPL sets forth a highly specific and comprehensive
mechanism for condemnees to challenge any aspect of a
condemnation in a state-created system of administrative and

31

judicial review” (App. 159a), and “it is indisputable that
eminent domain is traditionally a matter of local concern and
that the state has a vital interest in establishing a coherent
policy with respect to it” (App. 160a). Finally, Judge Levy
observed, “allowing plaintiffs to do an end-run around the
EDPL and instead litigate their claims in federal court would
provide incentive for forum shopping and thereby undermine
New York’s legislative scheme governing the exercise of
eminent domain power.” (App. 163a.)

Petitioners’ invocation of. the Public Use Clause as a
basis for asking the federal courts to review a public use
determination before state procedures have run their course
is extraordinary. The Supreme Court and lower federal
courts consistently have held that the exercise of eminent
domain, as well as public use determinations in support
thereof, are matters of quintessentially local concern. See,
e.g., La. Power & Light Co. v City of Thibodaux, 360 U.S. 25, 28-
29 (1959). Challenges to such determinations—even federal
constitutional challenges—therefore ordinarily belong in
state court, subject to ultimate review in this Court. Federal
district court scrutiny in the first instance is severely limited
and, when exercised, highly deferential. Indeed, in the thirty
years since the EDPL was enacted in 1977 and until this
case, federal district courts sitting in New. York have, in
decisions published in the Federal Supplement or available
through online sources, considered just five suits challenging
a condemnor’s proposed exercise of eminent domain
pursuant to New York law under the Public Use Clause of
the Fifth Amendment. Of those five cases, not one
proceeded to trial. One was dismissed for lack of ripeness
(Port Chester Yacht Club, Inc. v. lasillo, 614 F. Supp. 318,
323 (S.D.N.Y. 1985)); two were disposed of on, inter alia,
abstention grounds (Didden v. Village of Port Chester, 322
F. Supp. 2d 385, 388 (S.D.N.Y. 2004) aff'd, 173 Fed. Appx.
931 (2d Cir. 2006), cert. denied, 127 S. Ct. 1127 (2007);
Broadway 41st Street Realty Corp. v. New York State Urban

32

Development Corp., 733 F. Supp. 735, 744 (S.D.NLY.
1990)); one was dismissed on the basis of res judicata
(Waldo’s, Inc. v. Village of Johnson City, No. 89-CV-897,
1989 WL 153727, at *5 (N.D.N.Y. Dec. 15, 1989)); and one
was dismissed for failure to state a claim before: discovery
commenced (Rosenthal & Rosenthal, Inc. v. New York State
Urban Development Corp., 605 F. Supp. 612, 619
(S.D.N.Y), aff'd, 771 F.2d 44 (2d Cir. 1985)). By contrast,
during that same thirty-year period, the Appellate Division of
the New York Supreme Court has, in reported decisions
alone, adjudicated well over 100 proceedings brought
pursuant to EDPL § 207—with many of those proceedings
involving the consolidated petitions of multiple allegedly
aggrieved parties.

Federal district court review of local public use
determinations is the exception, not the rule. Allowing

plaintiffs to pursue challenges to public use determinations
in federal court in the first instance undermines the state
statutory scheme. Issues concerning the need for Burford
abstention may therefore prevent this Court from reaching
the merits of Petitioners’ public use claim, counseling
against grant of the Petition.

33

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

MICHAEL A. CARDOZO

JANE L. GORDON

OFFICE OF CORPORATION COUNSEL
OF THE CITY OF NEW YORK

100 Church Street

New York, NY 10007

(212) 788-1043

Counsel for Respondents the City
of New York, Michael Bloomberg,
Daniel Doctoroff, Andrew M. Alper,
Joshua Sirefman, and New York
City Economic Development Corp.

Dated: May 16, 2008

DOUGLAS M. KRAUS

*PREETA D. BANSAL
Counsel of Record

SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

Four Times Square

New York, NY 10036

(212) 735-3000

Counsel for Respondents New
York State Urban Development
Corp. d/b/a Empire State
Development Corp. and
Charles A. Gargano

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1318%3A2. Public record. Not legal advice.