Tuesday, October 31, 2006

FOIL follies III: Ratner's mysterious tower at City Tech

This is the third of four articles about Freedom of Information Law (FOIL) requests. The first concerned the Department of City Planning and the second concerned Assemblyman Jim Brennan's request to the Empire State Development Corporation, both regarding Atlantic Yards.

It slipped under the radar, the plan for a huge mixed-use facility on the New York City College of Technology campus (aka City Tech), in Downtown Brooklyn. The City University of New York (CUNY) decided nearly a year ago to enter into an agreement with the New York State Dormitory Authority (DASNY) and Forest City Ratner Companies.

The site of the building, at Jay and Tillary Streets, is part of MetroTech; the state owns the building site. FCR's portion would contain condos and rental apartments, with 20 percent of the latter affordable (thanks to city subsidies); there would be space for perhaps 400 rentals and 225 condos. City Tech would get classrooms, labs and faculty offices for degree programs in the sciences, healthcare and advertising design/graphic arts. If built at 1 million square feet--which isn't clear--the building would be nearly as big as Miss Brooklyn.

Though FCR was selected in November 2005, according to minutes from the CUNY trustees meeting, attention didn't surface until a 9/21/06 article in the New York Sun.

Unanswered questions

It's still a mystery. As the Brooklyn Papers pointed out last month, though two bidders competed for the rights, state officials would not release information about either bid, nor what Forest City Ratner agreed to pay for the right to develop the tower on the site of the Klitgord Center, where the Atlantic Yards hearings were held.

The Dormitory Authority--at least in fulfilling the letter of the law--has been the most responsive of the five agencies with which I filed FOIL requests. The agency promptly acknowledged my initial request, then promptly told me it had located a document, and delivered it upon receipt of a $9 check for copying costs.

What did I get? The Request for Proposals (RFP), which was issued 10/4/04, with proposals due by 11/22/04. I followed up, and was told that "the Dormitory Authority was informed by CUNY that based upon the RFP, Forest City Ratner Companies would be the developer. However, the Dormitory Authority was not involved in the procurement or RFP process nor was it involved in the evaulation of any such RFP responses."

I followed up with CUNY. City Tech spokeswoman Michele Forsten told me, "The negotiations are ongoing and are not public. If and when a development agreement is reached, it must come before the CUNY Board of Trustees for approval; that is a public process so there will be more information about the project available at that time. We expect this to happen in January, but there are no guarantees."

She added that a memorandum of understanding (cited in the minutes of the CUNY board) is currently in place. Still, there's a discrepancy between the size of the project, reported at 1 million square feet in press accounts, and the square footage mentioned in the memorandum, which adds up only to 862,000 square feet, not including parking.

I asked Forsten, who said that, because "there is no development agreeement and the design is a work in progress, there is nothing else we can say about the new building on the Klitgord site at this time."

Why FCR?

But why was FCR awarded the project? What made its bid attractive? I filed a FOIL request with CUNY last week.

The response was rapid, but again evasive. I'll get answers, it said, only after the "final agreement." While the final agreement may detail the contours of the project, Forest City Ratner has already been selected as the developer, based on the RFP. What exactly is the rationale for not explaining that?

RFP details

City Tech sought 477,000 gross square feet of new program space at the Klitgord Center site and an adjacent New York City Department of Education TV studio site. Given the recent rezoning of Downtown Brooklyn and the transferability of development rights from nearby building, there was an opportunity for a major development.

The development project, according to the RFP, includes:
--398,400 zoning square feet (zsf) from the Klitgord Center site
--388,920 zsf from CUNY's Main Complex

--(416,100) zsf subtracted for CUNY use (this assumes that some space would be below grade)

plus, potentially:
--238,600 zsf from the DOE TV studio site
--408,570 zsf from the city's Westinghouse High School site

That leaves potentially 1,018,390 zsf for private development--and a public-private project that could be, in total, 1.5 million square feet. However, those numbers don't conform to the numbers in subsequent press accounts and in the project memorandum.

Financial assumptions

The RFP suggests that the developer would have to provide the kind of detailed financial information that Develop Don't Destroy Brooklyn and Assemblyman Jim Brennan have sought regarding Atlantic Yards.

The RFP states:
4.3 Project Pro-Formas
The Technical Proposal shall include comprehensive financial data and pro-forma analysis for the Project, including a statement of assumptions supprot the calculations being made. Please state all appropriate costs in 2004 dollars, and state inflation and escalation assumptions
4.3.1 Provide the overall Project capital budget, including a breakdown of site acquisiton, development rights acquisition, construction, and soft costs
4.3.2 Detail the core and shell costs and fit-out costs for the different City Tech programmatic uses.
4.3.4 Provide a financing plan, including equity investment, construction loan and permanent financing. Highlight any grants or government incentives you plan on seeking.


The state budget, the RFP notes, allocated $86 million for expansion of City Tech. Respondents were asked to state how they might plan to use City Tech or CUNY funds. It also notes that, according to the State Finance Law and the Education Law, if the contract exceeds $15,000--which this obviously would--it must be approved by the State Comptroller and filed in his office.

Saving the state money

From the state's point of view, there's a significant logic to a public-private partnership: savings in money and time. According to the minutes of November 2005 meeting, Vice Chancellor Emma E. Macari said:
At the New York City College of Technology, the time line is that it would take us seventy-five months to do this project under regular capital projects if we are lucky, and it will take us according to the developers forty-nine months, so it is almost two years less and probably over $150 million less to build this space for New York City College of Technology. This is a wonderful opportunity to do projects and we are hoping that we can do more.

If so, there's no reason not to be transparent about it, is there?

A curious building

Footnote: the map shows the City Tech facilities downtown and also indicates an offsite annex at 636 Pacific Street in Prospect Heights, outlined in red. According to City Tech's Forsten, "636 Pacific Street was warehouse storage space that City Tech had years ago and no longer has."

Indeed, the building is no longer a warehouse. It was converted to condos and is part of the eminent domain lawsuit filed last week, given that Daniel Goldstein of Develop Don't Destroy Brooklyn lives there and is a plaintiff.

The official plans

According to the minutes:
This project is currently planned to be developed as a mixed-use condominium building composed of three condominium units, as follows: (i) academic facilities, including, classrooms, laboratories, offices, a physical education facility and an auditorium containing approximately 262,000 gross square feet for NYCCT, (ii) a residential rental component to be owned by Forest City Ratner comprised of 80/20 multifamily rental housing containing approximately 375,000 gsf, (iii) a residential condominium component to be marketed for sale by Forest City Ratner containing approximately 225,000 gsf, and (iv) underground and/or adjacent off-site parking containing spaces for not less than forty percent (40%) of the units comprising the Residential Rental Unit and Residential Condominium Unit, which parking may be included in either the Residential Rental Unit, or the Residential Condominium.

Specifically, the agreements included (i) a conveyance of an interest in the Project Site to Developer and/or FC Owner during the construction period, which conveyance may be structured either as (x) a ground lease (the “Ground Lease”) of the Project Site to FC Owner during the development period or (y) a fee conveyance of the Project Site to FC Owner with an obligation running with the land to construct and convey the Academic Unit to CUNY upon its completion and, in either case, including (1) the conveyance to FC Owner of up to 566,827 zoning square feet of floor area development rights appurtenant to both the Project Site and the New York City College of Technology Main Campus, for use in the portions of the Building other than the Academic Unit, (2) payment of the Development Rights Purchase Price from FC Owner to CUNY (and/or DASNY on behalf of CUNY), (3) payment of the Academic Unit Purchase Price from CUNY (and/or DASNY, on behalf of CUNY) to FC Owner during the construction period; (ii) a development agreement providing for, among other things, the respective responsibilities of Developer, CUNY and DASNY with respect to the design, financing and construction of the Project, including the Academic Unit Work, and (iii) a Declaration of Condominium, Condominium By-Laws and related Unit purchase and sale agreements creating the Units and governing condominium operations, and providing for the conveyance of the Academic Unit with its appurtenant common interest to DASNY for the benefit of CUNY upon completion of construction, and the Residential Condominium Units with their appurtenant common interests to or at the direction of Developer and/or FC Owner.

Monday, October 30, 2006

Op-ed in Metro: The Unreality of Atlantic Yards

I have an op-ed in the free daily tabloid Metro NY today, headlined The Unreality of Atlantic Yards:
Before we can debate a major project like Atlantic Yards, we must get the facts straight. Regarding some key aspects of the development — its size and the cost or benefit to the public — too many people are in the dark.

Atlantic Yards, slated to include a basketball arena and 16 mostly residential towers, would be the largest project in Brooklyn’s history and likely the country’s densest residential community. There’s an argument for high-rise construction near Brooklyn’s biggest transit hub, but overdevelopment could produce ruinous traffic and overcrowded schools. Developer Forest City Ratner moved tactically; after announcing Atlantic Yards in December 2003, FCR last year increased the project’s size by 14 percent. This year the developer twice announced small reductions, bringing the project back to square one — an 8 million-square-foot project that would require the Empire State Development Corporation, a state authority, to override city zoning. Still, gubernatorial shoo-in Eliot Spitzer, on whose watch the project would be constructed, opined that the latest cut was sufficient. Spitzer’s interpretation undoubtedly stems from media reports that announced a recent 8 percent reduction without acknowledging the project’s original size. The Municipal Art Society and other critics say that Atlantic Yards should be truncated by a third, or a half. Even the latter might strain Brooklyn’s infrastructure and overwhelm adjacent neighborhoods.

A larger failure regards the ESDC’s claim that Atlantic Yards would bring $1.4 billion in new taxes to the city and state. For three months, the agency refused to produce its analysis, even denying Freedom of Information Law requests. However, after activists, journalists and Brooklyn Assemblyman Jim Brennan pressed the agency, the ESDC provided a seven-page memo. It wasn’t convincing. For example, while it calculated about $500 million in subsidies and tax exemptions, the agency omitted hundreds of millions more in public spending for such things as public utility relocation, schools, affordable housing and police and fire service. The ESDC says it never calculates such public costs in its models. Still, the city’s Independent Budget Office included most of those costs in its own analysis of Atlantic Yards. So did a report commissioned by the developer.

A poll released by Crain’s New York Business last month compounded the confusion. Those polled were told that “the project will provide” 2,250 affordable apartments, but weren’t informed that it would cost hundreds of millions of dollars. Naturally, few questioned this “benefit,” even though such subsidies might be better deployed elsewhere. Based on the answer to such poorly worded questions, some 60 percent of respondents said they supported Atlantic Yards. Indeed, after a lawsuit against the use of eminent domain for Atlantic Yards was filed last week, Mayor Mike Bloomberg defended the project, claiming that Atlantic Yards was “overwhelmingly favored” by Brooklynites and city residents.

We don’t know the Atlantic Yards bottom line. We don’t have a fair sense of public opinion. We do know the project hasn’t been fundamentally reduced in size. And we know that too many public officials are either underinformed or play fast and loose with the facts.

Three Men in a Room: our dysfunctional state government--and how to change it

The Public Authorities Control Board (PACB), which requires unanimity from its three controlling members—Governor George Pataki, Assembly Speaker Sheldon Silver, and Senate Majority Leader Joseph Bruno—is just a symptom of the dysfunctionality of our state government, a dysfunctionality that New York City Mayor Mike Bloomberg chose to highlight recently in his condemnation of the PACB's rejection of the Moynihan Station plan.

But the phrase “three men in a room” describes much more than the PACB, as former State Senator Seymour Lachman describes in his timely book of analysis and advocacy, Three Men in a Room: The Inside Story of Power and Betrayal in an American Statehouse, coauthored by Robert Polner. Indeed, the entire legislative and governmental process is distorted by an absence of democracy. (Lachman, who calls Albany “one of the country’s most secretive and misruled statehouses,” will be a guest on WNYC radio's Brian Lehrer Show today at 10 a.m.)

Few of our elected representatives come off well. Is it no surprise that several of the officials who back the Atlantic Yards plan are among those who benefit from and support the systematic dysfunction? Or that Brooklyn Assemblyman Jim Brennan, who has tried unsuccessfully to foster transparency in the state’s budget process (and found himself on the outs with legislative leaders), has been out in front in seeking more financial details about Atlantic Yards?

The push for reform has come less from politicians than from a handful of good-government groups and the press. Given that the New York Times has editorially chastised the Legislature for a lack of transparency and for a perpetually late budget, it becomes all the more glaring that the Times has failed to fill a vacuum and editorially scrutinize the Atlantic Yards project.

Finally fed up

Lachman, a former University Dean of the City University of New York, spent nine years in the State Senate, representing southern Brooklyn (and later, part of Staten Island, after a hostile redistricting), retiring at the end of 2004 for an academic position, concluding that he "couldn’t possibly make an important difference—despite occasional successes—by working from within the system.”

The three men “hold virtually all the cards” as they determine the details of the budget, hire most of the staff, dispense committee chairmanships and membership assignments, assign offices, and “run all the services that legislators rely on, form publications to payroll.” And the leader of each house can stop a bill from moving, while legislators typically have no time to read bills they’re asked to pass—and need not be present for voting. Only five other legislatures in the country accept absentee voting, and only one is like New York’s version, in which senators can sign in and allow their party leader to vote for them.

New York’s legislators pass the smallest percentage of bills introduced in the country, which means that most bills are offered as symbol rather than substance. The legislative committees rarely hold hearings on proposed legislation; Lachman points out that, unlike with Congressional committees, those in New York State don’t have the power to move the bills to a vote of the larger legislative body. During the legislative session, the work week generally extends three days, which means that, despite full-time pay, most legislators moonlight “as attorneys, real estate brokers, or insurance executives.”

Kept in line

How do leaders keep people in line and maintain incumbency? “Member items,” basically a discretionary fund that can be used for worthy civic purposes and also to build political capital. In the Republican-controlled Senate, a minority Democrat might get $100,000 to $200,000 to distribute to local community groups and local services, Republicans sometimes get ten times more. (In the Democrat-controlled Assembly, the flip side obtains.) Those grants, which may serve civic purposes but are never evaluated, help incumbents stay in office—and when Lachman announced plans to retire, his slush fund dried up.

Lachman recounts how Bruno tried to recruit him to the Republican Party or to vote with the party by offering $2 million to $3 million in additional member items. He said no. His district was carved up, and was designed to stretch over to Staten Island.

Lachman reports how Brooklyn Senator Carl Kruger, a Democrat, campaigned for Republican Martin Golden in return for new district boundaries that protected his seat. Golden, an Irish-American Republican, beat Vincent Gentile, an Italian-American Democrat. Gentile couldn’t even get support from the Federation of Italian American Organizations, which had backed him in the past, because Bruno had pushed $2 million to Golden to offer the federation. (Golden and Kruger both support the Atlantic Yards project.)

In Albany, gerrymandering works on behalf of each party--that which controls each respective legislative body. Thus, “bipartisan,” Lachman writes, “means in effect that each party lets the other one do as it wishes I the chamber it dominates.” He calls for the obvious: an independent, nonpartisan commission to oversee redistricting. Gubernatorial frontrunner Eliot Spitzer has made the issue a priority.

Lost money for NYC

Lachman was particularly disillusioned when, in 1999, Silver, Bruno, and Senator Martin Connor (then the Senate minority leader) agreed to do away with the commuter tax, which was a small burden on suburbanites but raised $350 million to $500 million for city services and amenities that also benefited those suburbanites. The reason: to help a Democratic Senate candidate in suburban Rockland County, who ultimately lost.

Why did Connor (an Atlantic Yards supporter, representing a district partly in Brooklyn) and his successor, David Paterson, vote for the repeal? It was what the leadership wanted. Those, like Lachman, who didn’t fall in line found their perks taken away, while those who had been reluctant but came to agree got some new benefits from the legislative leaders, who control discretionary money.

Think about it. Obviously the commuter tax was spread around the city budget, but if the city had, say, another $500 million for affordable housing, politicians might not embrace projects like Atlantic Yards just because they include some affordable housing.

Shameful politicians

Lachman details falls from grace of several politicians, including Senator Guy Vellella of the Bronx/Westchester, Assemblywoman Gloria Davis of the Bronx, and an assemblyman, curiously unnamed, who resigned after a legislative ethics commission issued a report—unreleased—about his misuse of travel funds. He resigned, only to run again successfully, thanks in part to a redistricting that excluded the home of his most serious challenger.

That, of course, is Assemblyman Roger Green, an Atlantic Yards supporter who ran unsuccessfully for Congress this year. The former challenger, Hakeem Jeffries, recently won the primary election for the seat.

Public authorities

Gov. Nelson Rockefeller, who served from 1959-73, created the Metropolitan Transportation Authority, the Urban Development Corporation (now the Empire State Development Corporation, or ESDC), and “an extraordinary number of public authorities (many unaccountable to the Legislature and therefore hugely expensive).”

The genesis of the problem dates more than 75 years, when the state pioneered the use of authorities to pay for infrastructure—roads, bridges, transit—without officially burdening taxpayers. The public authority could issue tax-free bonds to pay for the projects, but the public must ultimately pay the debt. Few state agencies are monitored or audited.

State Comptroller Alan Hevesi, who has called public authorities “an immense shadow government,” has done some investigation in recent years, but now he’s politically crippled by his own scandal, using state employees as drivers for his wife.

In 1975, the Urban Development Corporation nearly collapsed, due to a soft real estate market. Had the authority been financed out of general obligation debt, there could have been a public debate about its projects, Lachman writes; because it was an authority, there was no such choice. It was made a subsidiary of another authority, the ESDC.

Gubernatorial control

While the chairpersons and boards of public authorities are more responsive to the governor than in the era of Robert Moses, the longer a governor serves, the more the governor controls them, because he controls the appointments. Lachman offers an observation that likely applies to the ESDC and its posture toward the Atlantic Yards project:
At that point, there is a risk that an authority’s decisions will no longer be based on rational, dispassionate, nonpolitical assessments of the public’s interests, but on the political calculations of the person who appointed a majority of its board.

West Side Stadium

Lachman cites Mayor Mike Bloomberg’s plan for the West Side Stadium—a project announced at $1.4 billion, which escalated to $2.2 billion. (Sound familiar? The Atlantic Yards project has gone from $2.5 billion to $4.2 billion.) Despite significant citizen concern about issues like traffic congestion and skepticism about purported benefits (sound familiar?), the mayor and Pataki remained determined.

Lachman writes:
Their confidence in their ability to prevail was based, in large measure, on their belief that they could bypass both the city and state legislatures and finance the measure through the state’s public authorities. Of course this meant there would be no public referendum. Such confidence represents a remarkable demonstration of the extent to which the state’s public authorities, originally designed to act as nonpoliticized tools of the public’s interests, have become unilateral tools of politicians.

What happened with the West Side Stadium? The Jets offered $210 million for a site with development rights estimated at $923 million. Cablevision offered $400 million. TransGas offered $700 million, with some conditions. The MTA accepted the Jets offer, saying that the overall value of the bid—including an accelerated construction schedule and a pledge to use minority- and women-owned businesses as subcontractors—was higher than Cablevision’s offer. (Sound familiar?)

But the PACB, which had to sign off on state funding, said no, with both Bruno and Silver abstaining; the latter looked askance on a project that would compete with his Lower Manhattan district.

Lobbyists and contributions

New York has more registered lobbyists per legislator—18 to 1—than any state in the country. In 2005, one “minor” reform passed by the Legislature requires that lobbying of state agencies be made public instead of being kept secret—which seems like a no brainer.

Lachman cites as an example the development of Brooklyn Bridge Park. In 2005, the Legislature agreed to add 360 Furman Street on the Brooklyn waterfront to the park. Why? The development team included a former aide to Pataki and a major campaign donor. The Pataki-controlled ESDC had no objection.

While state law ostensibly caps corporate donations to state and local elections at $5000 a year, many companies have subsidiaries give money--an issue that's cropped up in the current race for Attorney General. Moreover, because there’s no central databank for local contributions around the state, many companies circumvent this by giving locally and often.

Reform moves

In 2004, the Brennan Center for Justice at New York University called the legislature the country’s worst, significantly citing the absence of a real committee system to develop bills and to oversee administrative agencies. It led in 2005 to what Lachman describes as “modest” and “even regressive” reforms. More recently, Spitzer has called for a general accounting office to monitor the budget process.

Here are some of Lachman’s recommended reforms
--sweeping campaign finance reform
--term limits for legislators
--no more special budget allocations from “three men in a room”
--transparency for “member items,” which are supposed to serve community needs rather than the agenda of legislative leaders
--nonpartisan redistricting
--a permanent nonpartisan ethics commission
--a limit of at most a dozen public authorities, with the functions of the rest incorporated into the state budget, plus a nonpartisan commission to oversee the authorities
--equal resources for legislators, regardless of party
--an independent budget office.

How to get there? Spitzer has mentioned some of these things, but, to read Lachman, it can’t be done from the inside. He advocates a constitutional convention, basically to blow up the government. Westchester Assemblyman Richard Brodsky, who has conducted some aggressive reviews of public authorities, has called a constitutional convention “a risk worth taking” but also suggested a set of constitutional amendments sent to the voters.

Brennan Center redux

The Brennan Center recently issued a report card:
Two years after its landmark report on the New York State Legislature, the Brennan Center for Justice at NYU School of Law has concluded that the legislative process is “still broken” and remains in need of reform. In a new report, Unfinished Business: New York State Legislative Reform 2006 Update, the Brennan Center concludes that rank and file members of the state legislature, as well as the general public, are left out of the legislative process leaving all New Yorkers underserved.

Among the problems:
--Few standing committee hearings devoted to a specific piece of major legislation;
--No detailed committee reports attached to major bills;
--Next to impossible for bills to reach the chamber floor for a vote without the approval of leadership;
--Neither house voted down a single bill on the floor;
--Little floor debate on major legislation; and
--Very few conference committees to resolve differences between bills passed by the Assembly and the Senate.

Unfinished Business makes four recommendations that are critical to reforming the legislative process:
--Strengthen the committee process by creating mechanisms for rank-and-file members to force hearings and votes on bills;
--End leadership control over bills getting the floor by creating a mechanism for rank-and-file members to force floor votes;
--Institutionalize conference committees; and
--Codify fair, objective criteria for allotting resources and staff to members and committees.


Lachman says much of the same, and more.

Sunday, October 29, 2006

Walking tour of proposed Atlantic Yards footprint next Saturday

I have a small walking tour business, New York Like a Native, and have been giving tours of Brooklyn neighborhoods since 2000. For the past years, the Atlantic Yards plan has intersected briefly with a couple of tours.

Given how much time I spend thinking the Atlantic Yards project, I decided to offer a tour about it. The best way to understand the controversy--including issues of scale, design, and blight--is to take a look around the proposed site and the surrounding neighborhood. (Here are some contrasting views of the site and the proposals.)

Saturday, November 4, 1:30 p.m. $15/person. (Rain date: Sunday November 12 at 1:30 p.m.)

The tour will last 2-2.5 hours. We'll meet outside Brooklyn's tallest building (for now), the Williamsburgh Savings Bank, Hanson Place at Flatbush Avenue, near the Atlantic Terminal transit hub. More info here.

Saturday, October 28, 2006

Bloomberg on eminent domain: majority rules!

Mayor Mike Bloomberg is clearly a savvy businessman and, many believe, a good public official. But he's never claimed to be a constitutional lawyer, and it shows. During his weekly appearance yesterday on the WABC AM call-in show hosted by John Gambling, Bloomberg offered a grab-bag defense of eminent domain that failed to engage the issue and suggested that, if most people want a project, condemnation for it is defensible.

The first caller from the public was Daniel Goldstein, spokesman for Develop Don't Destroy Brooklyn and a plaintiff in the eminent domain suit filed Thursday. He referenced Bloomberg's recent criticism of the Public Authorities Control Board (PACB), the state body controlled by three members (Governor George Pataki, Assembly Speaker Sheldon Silver, and Senate Majority Leader Joe Bruno) that had just rejected the Moynihan Station plan.

DG: Last week on this show you called three men in a room in Albany undemocratic and unconstitutional, perhaps. And that same three men in a room will decide the fate of Atlantic Yards. And, as you know, yesterday, I and others filed an eminent domain lawsuit to protect our constitutional rights and you called us plaintiffs misguided, myopic, and selfish for trying to protect those rights. I’d like to ask you why you would call us that.

MB: Number one, Daniel, the courts, I guess, will decide whether or not the suit that you filed has any merit. That’s our system and, if the courts say you have merit, then you have recourse, and if the courts say you don’t, they’ll dismiss it. Our belief is that it is a frivolous lawsuit and there is no merit to it. But you’ll have your day in court and that’s exactly what democracy should give you.

Frivolous, meaning "not serious"? He could disagree with the lawsuit and defend the city's position without calling it frivolous.

Three men in a room

Bloomberg continued:
In terms of the three men in a room, I’m a believer in letting all of the members of the legislature vote. You do have to have some leadership, you can’t have everybody with their own bills, that’s just not the way democracy works--it’s too big, it’s not a republic, we have a democracy.

He basically reiterated his position, suggesting that the PACB is unconstitutional, but he didn't apply it to the Atlantic Yards case.

Eminent domain

Bloomberg continued, addressing eminent domain:
Eminent domain is one of those things that, it does take away some people’s rights, but there is a balance between individual rights and the rights of society. So, we for example, have laws that prohibit you from speeding, but we do it because it makes everybody safer. We have laws that let the—that force you sometimes to go to war, clearly infringing on your civil rights, if there’s ever a case—we’re sending you to fight and perhaps die, but we all agree we have to do that. We limit our freedom of speech, and there’s no greater defender of the First Amendment than me, but it is inappropriate, and it should be prohibited, from allowing somebody to stand up in a theater and, as a joke, scream fire, because people can get killed in the stampede on the way out.

Rather than discuss the draft or free speech, it would have been more apt for him to discuss the doctrine of eminent domain, which was originally designated for "public use," but which has since evolved to be for a "public purpose." Is the Atlantic Yards project a public purpose? And does the planning for the project meet the guidelines established in the Supreme Court's 2005 Kelo decision, or was Forest City Ratner a favored developer?

Bloomberg continued:
In the case of eminent domain, it is--we have to keep changing our cities, and build the infrastructure and have the jobs and the housing, and you can’t just let one person stop all of that. I’m not in favor of, when most people are against something, doing it. But, for example, the Nets development, which is what you’re talking about, Daniel, out in Brooklyn, overwhelmingly favored by people in Brooklyn and throughout the city, and I think that’s an appropriate thing for use of government powers. A handful of people, I’m sorry for them, but they will get fairly compensated, but you can’t just let any one person stop all development, and that’s when eminent domain comes in.


The value of "the jobs and the housing" is contested in the lawsuit. Does 60 percent in favor--based on a deeply deceptive Crain's poll--qualify as "overwhelmingly"? Even if a legitimate poll established "overwhelming" support for the project, would it pass muster if it didn't meet the guidelines set in Kelo? And, yes, eminent domain is supposed to deal with the "holdout" problem, but in this case are the "handful of people" trying to "stop all development" or are they trying to stop one development they believe that proceeds through undemocratic means?

Goldstein was silent, not allowed to ask a follow-up question or to interject. Apparently when the mayor speaks, his questioner is cut off.

City Planning, April 2005: "Public input on the Brooklyn stadium has not started yet"

As late as April 22, 2005, nearly a year and a half after the Atlantic Yards project was announced, a city official acknowledged that there had been no public input. The issue came up during the American Planning Association New York Metro Chapter’s 2005 Annual Conference.

According to the proceedings, Richard Barth, Executive Director, New York City Department of Planning was on a panel titled "New York Area Mega-Projects: Prospects & Priorities." He was asked:
Many of the mega-projects, such as the Brooklyn arena and the Greenpoint-Williamsburg rezoning do not appropriately consider scale, neighborhood appropriateness, integration to surrounding communities, and other quality of life issues. Why?

His response, at least regarding Atlantic Yards: Public input on the Brooklyn stadium has not started yet.

This is a summary, not a transcript. And it's not clear that public input is the same as public planning--a requirement for the use of eminent domain, according to the Kelo decision.

And, yes, the public process, such as it is, managed by the Empire State Development Corporation, to gather public comments on the project's environmental impact had not begun. But it is interesting that the many meetings that developer Forest City Ratner has touted did not qualify, in the mind of a city official, as "public input."

Friday, October 27, 2006

Some credulousness, some skepticism: two AY stories in the Times

9/5/06, p. A1, Developer Said to Cut Size of Brooklyn Project (lead story!): Facing mounting criticism of its $4.2 billion Atlantic Yards project, the developer Forest City Ratner plans to reduce the size of the complex by 6 to 8 percent, eliminating hundreds of apartments from the largest development proposal in the city, according to government officials and executives working with the developer.

10/27/06, p. B4: Suit Against Atlantic Yards Challenges Eminent Domain: In a widely anticipated legal maneuver, opponents of the Atlantic Yards project filed suit in federal court yesterday, challenging the state’s authority to use its eminent-domain powers to acquire property and make way for the $4.2 billion development near Downtown Brooklyn.

I think it's legitimate to describe the lawsuit as a "widely anticipated legal maneuver." It would also have been equally legitimate to have described the scaleback floated last month as a tactic or a maneuver.

The fifth paragraph of the 9/5/06 article stated: But both supporters and critics have expected Forest City to reduce the size and density of Atlantic Yards, which has been the focus of a series of raucous, standing-room-only public hearings, most recently on Aug. 24.

But that wasn't in the lead, or the headline. And nowhere in the front-page article was the point made that the scaleback would reduce the size of the project back to the square footage originally announced.

The next eminent domain donnybrook? AY controversy goes to court

For years, Develop Don’t Destroy Brooklyn (DDDB) has complained that the process behind the Atlantic Yards project was a sham. Yesterday, the community coalition put some legal muscle behind it. Ten plaintiffs—three property owners, one commercial tenant, and six residential tenants—filed suit in federal court, calling the planned use of eminent domain unconstitutional.
(Photo of attorney Matthew Brinckerhoff by Jonathan Barkey)

In doing so, they asked that the Empire State Development Corporation (ESDC) and Public Authorities Control Board (PACB) halt any action to approve the project. (Developer Forest City Ratner (FCR) has predicted approval next month.)

Named as defendants are FCR and associated entities, the ESDC, the New York City Economic Development Corporation (NYCEDC), as well as Gov. George Pataki, ESDC Chairman Charles Gargano, Mayor Mike Bloomberg, Deputy Mayor Dan Doctoroff, NYCEDC officials Andrew Alper and Joshua Sirefman, and FCR’s Bruce Ratner and Jim Stuckey. All of the plaintiffs are in blocks below the MTA’s Vanderbilt Yard, including two from this block of five houses on Dean Street just east of Sixth Avenue.

At a press conference yesterday afternoon outside City Hall, plaintiffs’ lead attorney Brinckerhoff called the planned project a violation of the 2005 Supreme Court decision in the Kelo v. New London case: “This lawsuit presents a textbook example of what the Fifth Amendment expressly prohibits: the taking of one citizen’s property in order to benefit a powerful and influential private citizen,”

(His firm, Emery, Celli, Brinckerhoff & Abady (ECBA), has won some significant victories challenging government action, gaining New York City to pay $4.8 million to Housing Works, after the city terminated the group’s funding in response to its criticism of the city, and obtaining $50 million settlement from the city in a class action suit representing more 60,000 people arrested for minor violations who were strip-searched. It has also helped preserve the historic High Line on the West Side, which had faced demolition.)

Kelo permitted the use of eminent domain, but it indicates that there must be a planning process—which differs from the process in Brooklyn, according to the complaint. (The opinion stated: "The City has carefully formulated an economic development plan..." Justice Anthony Kennedy's concurrence emphasized "that respondents reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand.") Brinckerhoff acknowledged that the Kelo decision did erode some rights, but emphasized that “the Supreme Court has always said you cannot take private property for a private benefit.” Jurisprudence has evolved to allow a broadly-defined "public purpose," however.

Added plaintiff and DDDB spokesman Daniel Goldstein, “When Bruce Ratner went to Governor Pataki and asked if he could take our homes and businesses, and the governor said ‘sure,’ what he did was create the lawsuit you see today.”
(Photo of Goldstein by Jonathan Barkey)

Why sue now, even before the ESDC has voted? Brinckerhoff responded, “The plantiffs have an absolute right to have claims heard in federal court. If we wait, that would be jeopardized.” While he said that the plaintiffs have enough evidence to go to trial, he predicted that, during the discovery phase, “We will find documents that support our theory that this decision was made years ago.” By filing in federal court rather than state court, the plaintiffs also seek redress in a forum that is more insulated from the local political winds.

(The judge assigned is Nicholas Garaufis, who was appointed by President Bill Clinton in 2000 after serving as the Chief Counsel of the Federal Aviation Administration in Washington, D.C. and before that counsel to Queens Borough President Claire Shulman.)

Goldstein said the issue was of national importance and, indeed, DDDB offered a statement of support from the Institute of Justice (IJ), the libertarian law firm that has led the fight against eminent domain abuse. IJ attorney Dana Berliner, co-counsel for the plaintiffs in the Kelo case, pointed out that the city of New London did not have a developer in mind when it came up with the project; she told the New York Law Journal: "Kelo left open the possibility that a pure one-to-one transfer, or a condemnation that was made not according to the proper planning procedures, would not pass constitutional muster.”

Charges & responses

Specifically, the lawsuit claims that the condemnations of plaintiffs properties violates the Takings Clause of the Fifth Amendment to the U.S. Constitution and the Equal Protection Clause of the Fourteenth Amendment. It asks not just for a stop in in the condemnations--including Freddy's Bar & Backroom at Dean Street and Sixth Avenue--but also compensatory damages from all defendants and punitive damages from all except the City of New York, as well as attorneys fees.

Forest City Ratner spokesman Joe DePlasco said, “This is simply a sad attempt to delay a project that is supported by over 60% of Brooklyn." Mayor Bloomberg said, "There are people that want to stop this project in Brooklyn for, I would argue, either misguided, myopic, or selfish reasons," and said the suit had "no real merit." The ESDC did not have an immediate comment.

Process & pretext

Further arguing that the project had been greased, the lawsuit details “The Sham Bid Process for the Railyards,” citing an RFP “profoundly biased” in favor of FCR, “The Patina of Public Participation,” pointing out how most people who wanted to speak at the Aug. 23 public hearing were rebuffed.
(Project outline from ESDC)

The suit charges:
Defendants have attempted to justify the taking of private property for the benefit of a private party on four main grounds: (1) the Project will result in a net economic benefit to the City and State; (2) the taking is necessary to eliminate urban blight; (3) that the Project will create significant affordable housing; and (4) the Project will create thousands of new jobs. These alleged “public benefits” are either wildly exaggerated or simply false.

The suit incorporates several of the arguments made in the ongoing political battle: that the costs of the project are not disclosed or accounted for; that the elimination of blight was never raised as a justification when the project was unveiled in 2003; that only 550 affordable units are slated for Phase I of the project; and that the claimed 15,000 construction jobs are job-years, and that most of the promised 2500 office jobs would be retained rather than new.

Whether that raises constitutional muster is another question. After reading the complaint, David Reiss, who teaches property law at Brooklyn Law School, observed that the plaintiffs face a significant challenge. Despite the criticisms of the determination of blight, courts have left much leeway for government agencies to declare blight. The strongest case for plaintiffs, he suggested, may be the accusation of a sham bid process for the railyards, “if they’re able to demonstrate it.”

As for the claim that the eminent domain action violates plaintiffs’ equal protection of the law, he told me that “courts have typically been very reluctant to find that a government action was not rational. It’s a low standard.”

ATURA & the “Takings Area

The suit claims that eminent domain is unnecessary, since major development could be achieved without taking privately-owned land. “Defendants’ decision to take plaintiffs’ properties serves only one purpose: to allow Ratner to build a Project of unprecedented size and thus to reap a profit that defendants, tellingly, have thus far refused to disclose,” the suit states.

The lawsuit makes a distinction between parts of the project within ATURA, the Atlantic Terminal Urban Renewal Area, designated in 1968, and the privately-owned land in the “Takings Area,” which is not part of ATURA. (In the map at right, anything in red (including a grayish red, but not the gray alone) is within ATURA. The blue-and-red striped areas between Atlantic Avenue and Pacific Street are within both ATURA and the Atlantic Yards footprint. The blocks in solid blue, which include the plaintiffs' properties and homes on Pacific and Dean streets, are within the Atlantic Yards footprint but not ATURA.)

The lawsuit notes that ATURA has never been expanded to include the Takings Area, nor has the area been designated as blighted or designated for redevelopment. Rather, “the Takings Area rests smack in the middle of some of the most valuable real estate in Brooklyn.” Thus, the suit says, any stagnation in the area is “the result of the Project itself.”

While ATURA could easily be redeveloped without the Takings Area, as the suit alleges, it would be much harder to do so and find space for a basketball arena. And that’s what was offered to the city--and the city wanted it. As former NYCEDC president Alper said at a 5/4/04 meeting of the City Council Economic Development Committee:
This particular project came to us. We were not out soliciting, we were developing a Downtown Brooklyn Plan, but we were not out soliciting a professional sports franchise for Downtown Brooklyn. The developer came to us with what we thought was actually a very clever plan. It is not only bringing a sports team back to Brooklyn, but to do it in a way that provided dramatic economic development catalyst in terms of housing, retail, commercial jobs, construction jobs, permanent jobs. So, they came to us, we did not come to them. And it is not really up to us then to go out and find to try to a better deal.

On the Brian Lehrer Show last July, FCR’s Stuckey said:
This area has been considered blighted since 1968 when the first Atlantic Terminal Urban Renewal Plan was adopted. About 60, 65% of the area fell within that urban renewal area and was considered to be a blighted area. Those findings when the Downtown Brooklyn plan was approved two years ago were reaffirmed.

Plaintiffs

One plaintiff is the company that runs Freddy’s. Manager Donald O’Finn, a video artist whose works show at the bar, said that “we believe the project is not rationally related to a legitimate public purpose.” He described the bar’s many honors and accolades: “Freddy’s is far more than a business; it’s a beloved institution.”
(O'Finn photo by Jonathan Barkey.)

Another plaintiff, David Sheets, has lived for nine-years in a rent-stabilized SRO building on Dean Street. While he didn’t speak at the formal part of the press conference, Sheets—a paralegal of modest means but firm convictions—said afterward, "We read about this in the paper. No one ever had any contact with us [before the project announcement]."

As for joining the lawsuit, he said, “I can’t not. I have to see myself in the mirror every morning. We are being forced out of our homes, either insidiously or directly, to make room for a basketball franchise that does not have legal approval to operate in the state of New York...for a project that has not even been designed." Moreover, he said, no one has signed off on the finances, pointing to Assemblyman Jim Brennan's struggle to gain documents about the development's profit projections.”

Sheets and five other rental plaintiffs, representing households with a total of 24 people, are represented by South Brooklyn Legal Services (SBLS). “There’s no guarantee that they’d get what they have now,” said SBLS attorney Jane Landry-Reyes. “Moreover, they don’t want to move from their homes.” (One of those plaintiffs is Maria Gonzalez, pictured at right, who has lived in her Pacific Street building for 33 years. Photo by Dan Sagarin.)

While Forest City said that renters had been offered space in the project at comparable rent and interim rental assistance, attorneys from SBLS said the contracts lasted only three years—not enough time to fully protect them. Moreover, said the lawsuit, the use of “friendly condemnations”--the ESDC will condemn buldings that FCR owns--allows the developer to override state laws that require landlords who are demolishing buildings with rent-regulated tenants to “obtain approval from the State Division of Housing and Community Renewal and must either offer replacement housing at the same rent, a stipend to cover the anticipated difference in rents for a six year period, or some combination of those two options.” (A state lawsuit from other tenants is anticipated, as well.)

Politics and strategy

City Council Member Letitia James challenged the legitimacy of the project, counting out justifications for the project and repeating, “It was a lie then, and it’s a lie now.” She added, “We could do it right. This project could be subject to community review.”
(Photo by Jonathan Barkey)

James pointed out that apartments have been selling for $1 million in the neighborhoods. “But anyone definition, that’s not blight. The neighborhood is not blighted.” Also present were State Senator Velmanette Montgomery; Chris Owens, unsuccessful candidate for the 11th Congressional District (and representing his father, retiring Rep. Major Owens); and Bill Batson, Community Board 8 Atlantic Yards committee co-chair and unsuccessful candidate for the 57th Assembly District.

How much money has DDDB raised? Goldstein deflected the question, saying that the group had raised more than $100,000 in its recent walkathon, and that the national attention from the lawsuit will draw more support. “We have pledge commitments of tens of thousands [of dollars],” said DDDB volunteer attorney Adam Perlmutter.

FCR's full response

Forest City Ratner spokesman Joe DePlasco said in a statement, "For over three years we have tried everything in our power to negotiate fair and beneficial transactions for everyone living in the footprint. We have been able to do so with a vast majority of residents and business owners. However, a handful of people have either refused to speak with us or, for whatever reason, we have been unable to reach an agreement with others. It is disappointing they have decided to take this action, but it is not unexpected. The opposition has said repeatedly that its plan is to file as many lawsuits as possible in order to try and delay a project that will provide over 2,200 units of affordable housing, create over 15,000 jobs and generate over $1.4 billion in new net tax revenue for the city and the state. This is simply a sad attempt to delay a project that is supported by over 60% of Brooklyn."

In other words, constitutional law by plebiscite?

It's unclear how closely the court can or will look at the contested issues of jobs, housing, and tax revenue. The lawsuit, however, may point other organizations and media outlets to look at those issues more closely.

Thursday, October 26, 2006

Eminent domain lawsuit coming today; another suit also in the works

Develop Don't Destroy Brooklyn (DDDB) will announce its expected eminent domain lawsuit, involving property owners and tenants, at a 1 pm press conference today at City Hall.

How much will the suit rely on the contested Kelo decision?

A second suit

Not part of this lawsuit, but expected to be part of another, are 15 rent-stabilized tenants in two buildings in the proposed project footprint, represented by attorney George Locker. He told me, "I will be raising exclusively state claims, in a separate plenary lawsuit in New York State Supreme Court after issuance of the Final Environmental Impact Statement." That could be in November.

Locker added, "I fully support the DDDB litigation and believe that they will prevail on their Federal claims, which will be applicable to my clients, as my claims will be applicable to theirs." Locker believes that the state and developer are using eminent domain to circumvent state law, which otherwise would require a series of hearings before demolishing buildings containing rent-regulated tenants.

New location & condo numbers, old photos & claims from FCR

There's not too much new in the Atlantic Yards Project Briefing handed out by Forest City Ratner representatives to some Prospect Heights residents at a meeting Monday night--the developer's confident schedule of a November approval was probably the most dramatic.

Still, the document remains intriguing, especially since the developer persists in claiming $6.1 billion in tax revenues for the project--a highly dubious figure--and showing pictures of demolished buildings under "Existing Conditions." (We get the backlot building at 463 Dean Street and the Underberg Building (twice), though they were torn down in May. At least the developer has found a current photo of 636 Pacific Street, which had previously be portrayed pre-renovation. The photo below is from Forgotten NY, not FCR.)

And, curiously enough, the project location is described as "close proximity to Downtown Brooklyn," which differs from the longstanding description of "A Vision for Downtown Brooklyn."

The New York Times in April published a megacorrection to clarify that the project would be near Downtown Brooklyn rather than in it. The importance of the distinction is that Downtown Brooklyn has been rezoned for higher-density development but Prospect Heights has not been rezoned; the Empire State Development Corporation must override city zoning.

Condos, affordable housing, & jobs

There are some specifics: FCR now plans 6430 units, including 1930 condos. In June 2005, the developer announced 2800 condos, cut that number to 2360 in March, and cut it again. (Here's the housing sequence.) Given that each cut means a loss of several hundred million dollars in revenue--assuming that the condos could be marketed for, say, an average of $1 million each--that suggests that the developer has built a lot of slack into its budget projection, which this summer was estimated by a New York magazine source as leading to a $1 billion profit.

There's a lot in the briefing about the affordable housing crisis, and the developer's plan for 2250 affordable units, including the number of units available for five income "bands." What's not said is that the average rent for the "affordable" units would be $1542.

The briefing also states that "approximately 50% of all affordable apartments will be 2- and 3-bedroom units." That's not true. Though half of the space assigned to affordable apartments would be for two- and three-bedroom units, given their size, there would be fewer of them than one-bedroom units and studios.

Forest City Ratner continues to claim 15,000 construction jobs, which actually would be an average of 1500 jobs a year over ten years.

Wednesday, October 25, 2006

ESDC says FCR's timetable isn't accurate; still, Nov. 2 may be Final EIS deadline

Despite Forest City Ratner's dissemination of a timeline that predicts two board meeetings of the Empire State Development Corporation (ESDC) to approve the Atlantic Yards project, the ESDC says that's not accurate.

Spokeswoman Jessica Copen contacted me to say, "We haven't scheduled any special meetings for November. We're working towards finalizing the Final Environmental Impact Statement as soon as possible, within the statutory timeframe."

State law, however, does suggest that the Final Environmental Impact Statement (EIS) may be finished soon. It states:
(5) Except as provided in subparagraph (i) of this paragraph, the lead agency must prepare or cause to be prepared and must file a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever occurs later.

The Atlantic Yards public hearing was August 23. The second of the two Atlantic Yards community forums was September 18. The 45-day window after the hearing ended October 7. The 45-day window after the second forum ends November 2. Alternatively, if the "hearing" is considered the end of the September 29 comment period, then the 45-day window would end November 13.

However, state law does allow for delays. It states:
The last date for preparation and filing of the final EIS may be extended:
(a) if it is determined that additional time is necessary to prepare the statement adequately; or
(b) if problems with the proposed action requiring material reconsideration or modification have been identified.

FOIL follies II: Brennan's request for business plan rejected

This is the second of four articles on Freedom of Information Law (FOIL) requests. The first concerned the Department of City Planning.

Yes, the Empire State Development Corporation finally released a memo attempting to back up its prediction that the Atlantic Yards Project would generate $1.4 billion in new city and state taxes.

But that wasn’t what Brooklyn Assemblyman Jim Brennan really asked for. Indeed, his FOIL request for the project’s “business plan”—the crucial estimate of overall costs and revenues—was rebuffed by the ESDC. Now he’s appealing that rejection.

Brennan had previously sponsored an unsuccessful bill to decrease the size of the project by 34% while adding affordable housing subsidies. “The purpose of my request is to enable the public to evaluate the relationship between the size of the project and the arena and the affordable housing,” he told me, noting that project proponents have justified the scale of the project because of the affordable housing.

Brennan would like to see a larger amount of affordable housing be guaranteed in the first phase of the project—currently, plans are for 550 of 2250 promised units--and a contractual commitment among the city, state, and developer Forest City Ratner.

Public disclosure

“So that is a critical public question: how much money do they think they’re going to make on their market-rate housing, and how much money do they think the arena is going to make,” he said. “How much money does the affordable housing need and where are they going to get it? Without that information, the public is shortchanged.”

(Examining the plan before a recent 8 percent reduction in square footage, New York Magazine estimated Ratner's profits at $1 billion.)

“The most significant thing that the ESDC is going to do, aside from eminent domain, is the zoning override, and the override affects several hundred thousand people,” Brennan said. “If it turns out that they only need half as much square feet of space in order to assure that the arena doesn’t go bust, or if the affordable housing doesn’t need money from market aspects of the project, then that is information that the public should have.”

Develop Don’t Destroy Brooklyn (DDDB) had in September 2005 requested such a document of the Metropolitan Transportation Authority (MTA), noting that the agency, in its Request For Proposals for the Vanderbilt Yard required that pro forma cash-flow statements, with documentation of fiscal assumptions for a 20-year period, be included as part of the bid. However, the MTA did not comply.

ESDC's rationale

Not all agency documents are subject to disclosure. Brennan said that the agency stated that, according to the law, it may deny access to records or portions thereof that "are inter-agency or intra-agency materials which are not... statistical or factual tabulations or data."

In other words, if they are statistical or factual dabulations or data, they should be disclosed. The ESDC's rationale, Brennan said, must be that the business plan is not a statistical or factual tabulation. He believes that it is.

The speedy FEIS? Ratner anticipates AY approval in a matter of weeks

Consultants at AKRF working on the Atlantic Yards Final Environmental Impact Statement (EIS) must be working overtime. Though the comment period on the Draft EIS ended on September 29, with lengthy submissions on the final day, developer Forest City Ratner (FCR) anticipates that the Final EIS will be certified by the Empire State Development Corporation (ESDC) during the first week in November.

Then, according to the timeline handed out to Prospect Heights residents by FCR officials at a community meeting Monday, ten days later the ESDC will hold a special meeting to approve the EIS and eminent domain findings, and to approve the General Project Plan (GPP).

[Update: the ESDC says the timetable's not accurate.]

Note the certainty expressed that the agency will approve the project, and that the Public Authorities Control Board (PACB) is expected to approve it. Do the findings in the FEIS make any difference?

Who's in charge here?

The ESDC hasn't told us this timeline. There's no mention of such meetings on the agency web site, on the Borough President's web site, or on the mayor's web site. Nor has the developer announced it on AtlanticYards.com.

I know about this only because some project opponents who live near the church where the meeting was held got wind of the gathering and decided to attend--and forwarded me this graphic.

What's required, what's not

Note that the Final EIS is a disclosure document, not a mitigation document. It must disclose the environmental impacts of the project, and potential mitigations, but the ESDC board--as it undoubtedly will do--can simply decide that the benefits of the project outweigh any potential costs.

Also note that this is where Forest City Ratner and the state can make additional tweaks to the project. Might the GPP include another small reduction in the project size? Might the developer respond to criticism of the project plan by making the publicly accessible (but privately managed) open space somewhat more like public parks? Or revamping the transportation management plan?

Tuesday, October 24, 2006

FOIL follies I: City Planning's response a month overdue

This is the first of four articles on Freedom of Information Law (FOIL) requests.

On July 26, I filed FOIL requests for Atlantic Yards-related documents with three city agencies and the Empire State Development Corporation (ESDC). The New York City Housing Development Corporation was the first to provide documents. The ESDC, after first ignoring my request, finally acknowledged it, then denied it, had it questioned, then reversed itself.

The Department of City Planning (DCP) has been dragging its feet. Though my request arrived the next day, and state law says that my request should've been acknowledged within five business days, the agency's response was issued on August 15, some 13 business days later.

The agency promised it would respond to my request within 30 business days. That would've been Sept. 27--four weeks ago. Earlier this month, I followed up with the department but received no response.

DCP involvement deserves scrutiny. After all, it was DCP that "recommended" an 8% reduction in the project's size last month--a cut that had already been floated in the press, and the developer quickly accepted. After all, it would return the project back to square one in terms of square footage.

"A lot of this was precooked," an executive who works with Developer Forest City Ratner told the Times. If so, wouldn't it be worth finding out more about the ingredients?

The affordability solution: build bigger?

Harvard economist (and fellow at the right-wing Manhattan Institute) Edward Glaeser has a piece in the New York Sun today about how to create more affordable apartments. His solution: more construction and less regulation.

Glaeser writes:
There are a host of regulatory barriers to construction. The brawl in Brooklyn over shortening the Atlantic Yards tower shows how effective community groups can be in limiting height and the supply of homes. As these community groups have grown since the 1970s, the heights of new residential buildings in Manhattan have plummeted.

First, the main tower--Frank Gehry's 620-foot "Miss Brooklyn"--has not been shortened, though even Borough President Marty Markowitz, a project supporter, wants it reduced. Second, it's 16 towers, not just one. Third, and most importantly, the main reason community groups are arguing about height and density is because this project is not subject to city zoning, as it's proceeding under the auspices of the Empire State Development Corporation.

The Hudson Yards process

Here are the paragraphs from the Hudson Yards press release mentioned by the commenter below:
Under the agreement, the Hudson Yards Development Corporation (HYDC), a City-created local development corporation, will work with a variety of stakeholders – including community groups and the public – to prepare within six months a statement of planning and design guidelines for the Western Rail Yards, located between 11th and 12th Avenues and between 30th and 33rd Streets. The guidelines will include specifics on key elements of development such as permissible uses and densities. Guidelines already exist for the Eastern Rail Yards, located between 10th and 11th Avenues and between 30th and 33rd Streets, as a result of the Hudson Yards rezoning approved by the City Council in January of 2005.

The MTA will prepare and issue a request-for-proposals (RFP) reflecting these guidelines within two months after their completion. The MTA will complete the evaluation of responses within three months after the release of the RFP, for either or both of the Eastern Rail Yards and the Western Rail Yards. A selection committee, the majority of which will be representatives of the MTA and which will include two representatives chosen by the City, will then select winning responses within 45 days. Any disposition (sale or lease) will be subject to the approval of the MTA Board. In addition, the MTA has agreed that the development on the Western Rail Yards envisioned by the City-MTA agreement will be subject to the City’s Uniform Land Use Review Procedure (ULURP) including appropriate environmental review.

Tish James, DDDB welcome Bloomberg's PACB comments

Yesterday I wrote about how Mayor Mike Bloomberg's comments criticizing the Public Authorities Control Board (PACB) as undemocratic raised the question about whether he'd criticize the process regarding approval of the Atlantic Yards project.

After all, the PACB would have to approve the project after it passes the board of the Empire State Development Corporation (ESDC), itself another agency insulated from the democratic process.

Yesterday City Council Member Letitia James, who represents Prospect Heights and environs, including the area slated for the Atlantic Yards project, issued a statement:
I agree fully that the Public Authorities Control Board (PACB) is not a good
example of representative democracy. "Three men in a room" should not have control over development in our city- not at Moynihan Station and not at Atlantic Yards.

The mayor suggested someone might want to "look at" the constitutionality of the PACB. There are many in this community, including myself, who have been doing just that. Of the numerous lawsuits that will be filed in relation to Atlantic Yards, one may very well deal with this undemocratic process, and the near total lack of citizen input.


DDDB's comments

Develop Don't Destroy Brooklyn (DDDB) issued a statement, as well.

DDDB said:
Mayor Bloomberg is absolutely correct: three-men-in-a-room control over Ratner’s ‘Atlantic Yards,’ and other enormous development projects in New York City, is clearly undemocratic and, as he suggests, may be unconstitutional. We’ve been saying that for the past three years,” said Develop Don’t Destroy Brooklyn (DDDB) spokesman Daniel Goldstein. “We sure hope that the Mayor is not suggesting that he accepts and abets this undemocratic process when it suits his goals, and rejects it when it doesn’t. That would be Machiavellian. Indeed we will be ‘looking at that,’ as the Mayor urges, over the coming months.”

In 2005 Mayor Bloomberg signed over the city’s chartered right to oversight and review of Forest City Ratner’s 8.8 million square foot “Atlantic Yards” development proposal. This decision by the Mayor gave complete control of the largest mixed-use development proposal in the history of New York City to the unaccountable and unelected ESDC and the “undemocratic” (his words) PACB. The agreed to state override took control of the project out of the hands of three community boards, the Brooklyn Borough President, City Planning Commission and the entire City Council. None of those bodies have any official role in the project, and the override of the City’s Uniform Land Use Review Procedure (ULURP) bypasses the City Council’s vote on such projects. Instead, the ESDC and the PACB are the only entities that have any official role in determining the fate of the “Atlantic Yards” proposal.

Monday, October 23, 2006

Mayor blasts “three men in a room” as undemocratic; does that apply to AY?

After the Atlantic Yards project receives an (almost inevitable) approval from the board of the Empire State Development Corporation, it still must receive a unanimous vote from the Public Authorities Control Board (PACB)—which is controlled by Gov. George Pataki, Assembly Speaker Sheldon Silver, and Senate Majority Leader Joseph Bruno.

Silver killed the West Side Stadium, he’s being pressured to modify or kill the Atlantic Yards plan, and just this week stymied the city’s plan to renovate the Farley Post Office into Moynihan Station.

That ticked off Mayor Mike Bloomberg, who said Friday on his weekly WABC-AM radio appearance:
Why is there a structure at the state level where three individuals basically have a veto over everything? This PC, PSA, whatever the board is that approves it. And I'm not sure why that's constitutional. Maybe somebody wants to look at that. I don’t happen to think that it’s good democracy to give the governor, the speaker of the assembly, and the majority leader in the senate—no matter who they are, whether they agree with me or not—that’s not representative democracy, that’s not letting everybody have a say, because in fact, it isn’t everybody.

Host John Gambling suggested that a two out of three vote might be an improvement. Bloomberg responded:
I suppose that would be better… You can argue the governor is elected by the whole state, but then the majority leader and the speaker are representing really only their own districts, and that’s not what I think we should have.

But if the PACB passes the Atlantic Yards plan, would Bloomberg appreciate it if project critics question the process? And if he's so concerned about process, how can he countenance any project that is supervised by a state authority and bypasses the City Council, which means local elected officials don’t get a voice?

Maybe someone will ask Bloomberg when he reappears on Gambling’s show next Friday.

Three men in a room

Silver's spokeswoman Eileen Larrabee told the Daily News, in an article Saturday headlined Mike rips tiny, obscure panel, "The speaker gets input from all of his colleagues... He was acting in the interest of his conference.”

Well, Silver does listen to fellow Assemblymembers, but that doesn’t make it democratic.

Indeed, a new book by former State Senator Seymour Lachman, Three Men in a Room: The Inside Story of Power and Betrayal in an American Statehouse, points out how the trio operates undemocratically. According to the publisher’s description:
Three Men in a Room is an insider’s exposé of how one of the country’s largest and most powerful governments—with the fourth-largest budget, behind only the federal government’s, California’s, and Texas’s—has become a model of inefficient and undemocratic governance. Seymour Lachman ran the New York City Board of Education, taught political science, and was then elected to New York’s legislature. What he found when he arrived in the halls of the state senate was a Potemkin village of government where legislators vote on bills they haven’t read during legislative sessions they haven’t attended.

Bloomberg on the press

Host Gambling was talking to Bloomberg about the possibility of getting the City Charter passed to enable nonpartisan elections, and also the recent charges against labor leader and Assemblyman Brian McLaughlin. “So we’re sort of stuck with what we have?” Gambling asked.

Bloomberg: Well, we are unless we say “We’re not going to take it anymore,” and maybe somebody else will take on the mantra of nonpartisan elections. Maybe the press will do a better job of investigating. Well, when you read about these elected officials that abuse the public trust and break the law--a lot of this stuff if you really had been a good investigative reporter you might have come up with yourself. You don’t see that kind of journalism as much as I think you should.

Bloomberg on development

Talk turned to the new plan to build 5000 units of subsidized middle-income housing on 24 acres at the Queens West site—formerly planned for the Olympics. Bloomberg observed:
As [Deputy Mayor] Dan [Doctoroff] pointed out yesterday, with the exception of the [West Side] Stadium, which I always thought was a horrendous loss for the city… with the exception of that, almost every single project that was part of the Olympic bid we’ve gotten going. This was one of the last big ones.

Add to that Atlantic Yards and the Brooklyn arena.

Bloomberg on campaign contributions

Rich candidates, the mayor said, often lose:
The real advantage goes to incumbents, it doesn’t go to rich people… Incumbents find it much easier to raise money, because everybody says ‘They’re likely to win, therefore I’m going to buy some influence.’ Most people, when they give money, at least the larger donors, probably do think they’re getting influence. It’s not an accident that when you go and look at who gives money to a campaign, it’s people who are doing business that comes before that legislative body. It’s called “pay to pay” and I’ve always thought it was an outrage.

Instead of the Times's railyard photo, consider some alternatives

I wrote yesterday how the photograph (right) the Times used to illustrate its Atlantic Yards City section cover story failed to depict the proposed site. What could the Times have done differently?

Well, the newspaper could've taken a cue from the 5/26/05 presentation by Forest City Ratner to the City Council, which at least outlined the then-21-acre site. The two slides with text below are taken from that presentation. (Since then, another acre has been added at the west end, crossing Flatbush Avenue.) Forest City Ratner's descriptions are, of course, contestable, but at least their graphic shows the outline of the site, including the public streets that would be demapped.

The Times photo was apparently taken looking west from the Newswalk, the tallest building in the wedge cut out of the footprint, between 6th and Carlton avenues and Pacific and Dean Streets.

The building is minuscule compared to the proposed project. Check the Newswalk building at left-center near the top in the graphic (right). The rendering was produced by the Environmental Simulation Center for the Council of Brooklyn Neighborhoods (and subsequently adapted to emphasize Newswalk).

The simulation center produced massing models, from four different perspectives, of not just the Atlantic Yards plan but three alternatives. At the bottom, below the two Forest City Ratner slides, is another rendering by the simulation center. Note that a few buildings have since been cut in height.

Sunday, October 22, 2006

NIMBY or YIMBY: behind the Times's curious framework (and photo)

Today's New York Times City Section tries to offer voices from the "neighborhood" regarding the Atlantic Yards plan, a sort of gentle distillation of some of the issues raised--and a few not quite raised--during the public comment period that ended Sept. 29. The article is headlined On the Block, but more crucially, the deck in the print edition states: Not in my backyard, yes in my backyard: Neighbors speak out on the Ratner plan.

But it depends on how you define "neighbors"--and backyards. Of the nine people interviewed, those supportive or hopeful are three people from Crown Heights--a single neighborhood to the east--plus a real estate investor (a junior version of Bruce Ratner?) who may or may not live in Brooklyn. Those opposed or concerned are four people from Fort Greene and one from Park Slope, with no representation from the immediate neighborhood: Prospect Heights. (Fort Greene and Park Slope are indeed nearby.)

The project would be located in the western tip of the neighborhood--plus one piece of land (Site 5) across Flatbush Avenue in Park Slope. (Graphic is from the Times's 12/18/05 Real Estate section article on Prospect Heights.) Crown Heights is to the east of Prospect Heights, past Washington Avenue, and Boerum Hill just a block to the southwest. Park Slope is to the south. Clinton Hill is just to the east of Fort Greene.

Worse, the photo and caption continue a parade of misleading media portrayals. The caption states: STREET-CORNER VIEW: Nine neighbors, from a merchant to a mother to a Nets fan, all see Brooklyn's Atlantic Yards plan through lenses colored by their own lives. (Accompanying the front-page photo are headshots of people who get larger portraits on the jump page, along with their quotes.)

The photo provides a misleading perspective on the proposed footprint. The photo focuses on the western segment of the Vanderbilt Yard, which itself would be about 38 percent of the 22-acre project. Atlantic Avenue and the residences and malls north of it are visible in the photo, while there’s no indication that the buildings on Pacific Street, in the left of the photo, would be demolished for the project. And there's no indication that any buildings further to the south, on Dean Street, would be demolished as well, nor what streets would be demapped for the project.

The photo perpetuates the myth that the project would be built over an "open railyard." And the Times has still failed to show any renderings of the proposal in neighborhood context. Given that this photo was likely taken from the top of the Newswalk condos (maybe 130 feet up), and people are concerned about shadows, shouldn't the Times have shown the scale of buildings 400, 500, and 620 feet tall?

Scrupulous balance?

The intro to the piece attempts scrupulous balance:
The plan is colossal — 16 high-rise buildings and an 18,000-seat basketball arena on 22 acres near the borough’s busy downtown — and fans and opponents have matched its magnitude with their own statistics. The developer, Forest City Ratner, which is also the development partner of The New York Times Company for its new headquarters in Midtown, says that the $4.2 billion project will bring 4,000 permanent jobs, billions of dollars in tax revenue and more than 6,000 units of housing. Opponents counter that the plan will corral $2 billion in public money and tax breaks, crowd 15,000 new residents into the area and clog local streets with thousands more cars.

Why can't the Times try to sort out the fiscal claims? Would there really be "billions" in tax revenue, or $2 billion in public costs? At some point this can't simply be a "he said, she said" debate.

As for crowding, why can't the Times simply acknowledge that this likely would be the densest residential community in the country--or compare it to other large projects in the city? Why is it the "opponents" who have to establish basic facts?

As for the clogging of local streets, isn't that what the state acknowledged in the Draft Environmental Impact Statement? And isn't that what local community boards--highly concerned analysts more than opponents--have predicted? (The Times hasn't reported actions by the community boards, who also have questioned the process behind the project.)

Those quoted

The intro continues:
Ever since the idea was floated in 2003, the sides have also framed their appeals broadly, citing big-picture concerns about urban policy and socioeconomic justice.

Less noticed amid the large numbers and loud clamor is the sound of the street: the skepticism and dread, or hope and excitement, of people who live and work near Atlantic Yards.

But that sound is there, on the neighborhood’s sidewalks and stoops, in its stores and coffee shops, in its kitchens and parlors. There is the Nets fan dreaming of walking to home games. The mother worried about steering her stroller across an even busier Flatbush Avenue. The teacher hoping that one apartment in the tall towers has her name on it. And the gardener fretting over the shade thrown by those same towers.


This is a false dichotomy, the big picture vs. the sound of the street. Many who have experience on the street, at public events and private discussions, have found themselves learning about the big picture. Indeed, many of those quoted by the Times are pointing to elements of that big picture.

In essence, it's jobs, housing, and hoops (plus profit) vs. shadows, traffic, displacement, and neighborhood character--often what was argued during the DEIS public hearing and community meetings.

Nine neighbors

The intro continues:
Nine neighbors all see Brooklyn's Atlantic Yards plan through lenses colored by their own lives.

If they're neighbors, the geographic distribution, as noted, is a bit curious.

Kelly Burwell, the basketball fan, is from Crown Heights and wants to be able to walk to an arena.

Audrey Doyle, the homemaker, is from Fort Greene and is concerned about gentrification and racial balance.

Christopher Morris, the investor, has purchased property “near the stadium” with the expectation that values will rise. (The Times doesn't say, but he's apparently part of the Clarett Group, which is building a luxury residential tower in Fort Greene and plans to demolish a Civil War-era mansion in Clinton Hill for a new development. The Landmarks Commission is taking a look.)

Mildred Davis, the retiree
is concerned about being pushed out of the neighborhood and her Mitchell-Lama building in Fort Greene.

Ludlow Beckett, the merchant, has a store in Fort Greene and concerned about people being able to drive to his store.

Jon Crow, the gardener, is from Park Slope and is concerned about the effect of shadows on his community garden.

Mildred Coleman, the apartment seeker, is from Crown Heights and said, "I’ve heard they’re supposed to build this complex that gives you a laundry room, places to exercise, places to shop."

Sarah Caylor, the mother, lives in Fort Greene and is concerned about shadows and traffic.

Brian Saunders, the business hopeful, is from Crown Heights and hopes for assistance in opening a small business in the footprint.

A closer look

So there are four people from/in Fort Greene, three from Crown Heights, one from Park Slope, and one whose location is unclear. Those closer are all worried about the project, but those from Crown Heights, which is farther away, see opportunity.

It's curious that there are three people from Crown Heights, none from Prospect Heights, and only one from Park Slope, which is much closer. Missing are anyone from Boerum Hill, which is also closer than Crown Heights, and Clinton Hill, which is as close. A broader geographic distribution probably would have changed the racial distribution: seven black, two white.

And, most of all, missing are the voices of the majority of potential new residents: wealthy people paying for market-rate housing.