Monday, June 15, 2009

Plaintiffs in eminent domain case file Notice of Appeal; the Court of Appeals is not required to accept it

The nine plaintiffs in the state eminent domain case have filed their Notice of Appeal to the Court of Appeals on Constitutional Grounds.

The Notice of Appeal states that "this appeal is taken as of right... because the judgment directly involves the construction of the New York Constitution and presents multiple substantial constitutional questions."

That's not necessarily so; plaintiffs' attorney Matthew Brinckerhoff said last month, after the case was dismissed, that the right to appeal, in practice, requires a "substantial constitutional question." He said he was highly optimistic the case would be heard, but he couldn't guarantee it.

Grounds for appeal

The constitutional questions include:

1) whether the public use requirement in the state Constitution "imposes a more stringent standard for takings" than does the federal Constitution, a question not yet considered by any state court

2) whether the state Constitution's public use requirement can be satisfied when the condemning authority does not examine whether the public benefit "is not incidental or pretextual in comparison with benefits to particular, favored private entities" (a phrase from a separate 2009 case)

3) whether the project violates a clause of the state Constitution which requires that subsidies for reconstruction of blighted areas must be restricted to "persons of low income"

The strongest argument, I suspect, is the second one. While the court stated there was no need to measure the private benefit, the defendant Empire State Development Corporation, in court papers, asserted that it had measured that benefit, but later backed off--an issue ignored in the decision.

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