The plaintiffs challenged the condemnation as a private taking in violation of the Fifth Amendment and alleged that the “public uses” the state agencies advanced for the project were pretexts to benefit Bruce Ratner whose company first proposed it and who serves as the Project’s primary developer. The “pretext” argument was based on the Supreme Court’s decision in Kelo v. City of New London decided in 2005. The Court of Appeals rejected the “pretext” claim stating:
In the two years since the Kelo decision, many states have introduced eminent domain reform legislation in response to overwhelming public disapproval of the ruling. The effectiveness of those legislative efforts is questioned in a well researched article entitled The Limits of Backlash: Assessing the Political Response to Kelo by Ilya Somin. The article suggests that widespread political ignorance may contribute to the ineffectiveness of most eminent domain reforms. The plaintiffs challenging the Atlantic Yards development project are far from politically ignorant. Unless the Supreme Court takes their case and overrules Kelo, their struggle against eminent domain in this case seems over.
“We do not read Kelo’s reference to “pretext” as demanding, as the appellants would apparently have it, a full judicial inquiry into the subjective motivation of every official who supported the Project, an exercise as fraught with conceptual and practical difficulties as with state-sovereignty and separation-of-power concerns. Beyond being conclusory, the claim that the “decision to take Plaintiffs’ properties serves only one purpose” defies both logic and experience.
“At the end of the day, we are left with the distinct impression that the lawsuit is animated by concerns about the wisdom of the Atlantic Yards Project and its effect on the community. While we can well understand why the affected property owners would take this opportunity to air their complaints, such matters of policy are the province of the elected branches, not this Court.”