The interesting part was the stupid way they tried to justify eminent domain with a questionable and self-serving definition of urban blight. The judges were upset the firm hired by Columbia decided things like unpainted brick walls or visible wiring at the bodega made the area blighted, therefore worthy of the bulldozers.

The problem with Atlantic Yards is twofold, as I discovered when I was writing my study of the anti-eminent domain movement, The Eminent Domain Revolt:

1. Even Justice Stevens said that there is no logical way to distinguish "development" from other reasons to use eminent domain. However, the DDDB idiots agreed that "development" was an issue, thereby agreeing to Ratner's terms of debate. Huge mistake--and DDDB has lost EVERY case.

Among other things, if you accept this "distinction," it allows government to claim ANYTHING as the government purpose, even retrospectively. It takes you AWAY from arguing that, at the time the decision, there was no public purpose.

2. DDDB did not argue, as the Columbia folks did, that theirs was a case of Stiglitzian "capture," in which private purpose is simply substituted for government. I remind readers of the "minimum scrutiny" standard to which these takings are subject. The taking must be

rationally related to a legitimate government purpose.

That is, there must in FACT be a government purpose. Obviously, according to the judges, the government simply turned its powers over to Columbia. DDDB has never argued that. Another HUGE mistake.

Above all, remember what is going on with eminent domain. When you are arguing against eminent domain, you arguing to raise the level of scrutiny for the facts in the taking. This means that you are arguing to maintain important facts (important facts, according to the Barnette case, is a fact of human experience which is not affected by attempts to affect it). Marbury v. Madison decided that government is an important fact.

Thus, an attempt on government is subject to strict scrutiny. Obviously, government failed in its attempt to abrogate itself.

But I doubt when the winners saw things this clearly. Proof? There are OTHER important facts in the Columbia taking: housing, maintenance (in the form of income-producing business). These the Court has already found to be important, although it has deformed its own decisions by leaving them at minimum scrutiny instead of raising them to strict scrutiny. Even West Coast Hotel v. Parrish and Carolene Products--which are said to establish that there are political and social facts and that social facts such as housing enjoy only minimum scrutiny--said that "maintenance" is the basis of Constitutionality, and found in West Coast that "income" was an important fact.

However, the anti-Columbia folks did not dream of arguing that there is an individually enforceable right to income to housing. Why? Because the Bar was spooked by several poorly argued cases which said that facts such as housing enjoy only minimum scrutiny (Lindsey v. Normet, DeShaney v. Winnebago, Dandridge v. Williams, Rodriguez v. San Antonio). It has also both manufactured and sworn allegiance to the notion that there are political and social facts.

That is not a correct analysis. The question is not, are the facts political (speech, government)? The question is, are the facts important?

But if your lawyer is too dumb to argue them, you are stuck with his or her lousy analysis.

And that is what happened in Atlantic Yards. Its lawyers fulfill Einstein's definition of insanity: doing the same thing over and over and thinking there will be a different result. They have used the same argument (there is too little "development" in the proposed project) over and over and over again, and lost every time.

We're moving OUT of the scrutiny regime--which says that the Constitution is a rational relation to a legitimate government purpose--the maintenance regime--which says that the Constitution is the maintenance of important facts.

The anti-Columbia folks argued that government is an important fact and that it was not maintained by the taking. And they won.

But they did NOT argue that housing or income are important facts. That was a mistake which could cost them in the end.

How? By the highest court decided that government itself cannot stand in the way of development. That is, the court could simply overturn precedent, stating that government is NOT an important fact. It is subject to "development" (and the anti-Columbia folks also accepted the bogus "development" notion) and is therefore NOT abrogated if the plan involves "development," even if there is Stiglitzian "capture."

In short, our police state is going hog wild. Did I just give Columbia its winning argument on appeal?

Another "twofold problem".

The problem with Atlantic Yards is twofold, as I discovered when I was writing my study of the anti-eminent domain movement, The Eminent Domain Revolt:

1. Even Justice Stevens said that there is no logical way to distinguish "development" from other reasons to use eminent domain. However, the DDDB idiots agreed that "development" was an issue, thereby agreeing to Ratner's terms of debate. Huge mistake--and DDDB has lost EVERY case.

Among other things, if you accept this "distinction," it allows government to claim ANYTHING as the government purpose, even retrospectively. It takes you AWAY from arguing that, at the time the decision, there was no public purpose.

2. DDDB did not argue, as the Columbia folks did, that theirs was a case of Stiglitzian "capture," in which private purpose is simply substituted for government. I remind readers of the "minimum scrutiny" standard to which these takings are subject. The taking must be

rationally related to a legitimate government purpose.

That is, there must in FACT be a government purpose. Obviously, according to the judges, the government simply turned its powers over to Columbia. DDDB has never argued that. Another HUGE mistake.

Above all, remember what is going on with eminent domain. When you are arguing against eminent domain, you arguing to raise the level of scrutiny for the facts in the taking. This means that you are arguing to maintain important facts (important facts, according to the Barnette case, is a fact of human experience which is not affected by attempts to affect it). Marbury v. Madison decided that government is an important fact.

Thus, an attempt on government is subject to strict scrutiny. Obviously, government failed in its attempt to abrogate itself.

But I doubt when the winners saw things this clearly. Proof? There are OTHER important facts in the Columbia taking: housing, maintenance (in the form of income-producing business). These the Court has already found to be important, although it has deformed its own decisions by leaving them at minimum scrutiny instead of raising them to strict scrutiny. Even West Coast Hotel v. Parrish and Carolene Products--which are said to establish that there are political and social facts and that social facts such as housing enjoy only minimum scrutiny--said that "maintenance" is the basis of Constitutionality, and found in West Coast that "income" was an important fact.

However, the anti-Columbia folks did not dream of arguing that there is an individually enforceable right to income to housing. Why? Because the Bar was spooked by several poorly argued cases which said that facts such as housing enjoy only minimum scrutiny (Lindsey v. Normet, DeShaney v. Winnebago, Dandridge v. Williams, Rodriguez v. San Antonio). It has also both manufactured and sworn allegiance to the notion that there are political and social facts.

That is not a correct analysis. The question is not, are the facts political (speech, government)? The question is, are the facts important?

But if your lawyer is too dumb to argue them, you are stuck with his or her lousy analysis.

And that is what happened in Atlantic Yards. Its lawyers fulfill Einstein's definition of insanity: doing the same thing over and over and thinking there will be a different result. They have used the same argument (there is too little "development" in the proposed project) over and over and over again, and lost every time.

We're moving OUT of the scrutiny regime--which says that the Constitution is a rational relation to a legitimate government purpose--the maintenance regime--which says that the Constitution is the maintenance of important facts.

The anti-Columbia folks argued that government is an important fact and that it was not maintained by the taking. And they won.

But they did NOT argue that housing or income are important facts. That was a mistake which could cost them in the end.

How? By the highest court decided that government itself cannot stand in the way of development. That is, the court could simply overturn precedent, stating that government is NOT an important fact. It is subject to "development" (and the anti-Columbia folks also accepted the bogus "development" notion) and is therefore NOT abrogated if the plan involves "development," even if there is Stiglitzian "capture."

In short, our police state is going hog wild. Did I just give Columbia its winning argument on appeal?

Uh, perhaps you should read what Gothamist links to on DDDB.net, Natty B, and you'll understand exactly what they plan to do.

And Develop Don't Destroy Brooklyn says this decision 'breathes new life' into the case against eminent domain being used to seize Brooklyn property for the Atlantic Yards project.

uhhh, no it doesn't.

The Atlantic Yards action was decided by the Court of Appeals (the highest appellate court in the state of NY); whereas this decision was determined by the 1st Appellate division (intermediate appellate court).

A follow up question would've been nice.

you'll notice that only blogs would use a site like dddb.net as a reference. no reputable news organization, not even the post, would look to anyone like them for anything.

great photo. guessing it's taken from my childhood home, 560 Riverside Drive.