Thursday, November 30, 2006

Security study for Atlantic Yards? Sure, but it's Ratner's

A panel discussion last night sponsored by the Municipal Art Society, Security at What Cost? Balancing Security and Public Space, seemed like a good place to ask the Atlantic Yards security question.

A panel of design and engineering experts from the public and private sector had just discussed a variety of issues relating to security perimeters, security barriers, and the importance of maintaining a public streetscape. Post-9/11 New York was a giant "laboratory for security, said Bob Ducibella, principal at security consultants Ducibella Venter & Santore, but the city's been doing well.

Indeed, posited Ray Gastil, director of the Manhattan Office, New York City Department of City Planning, "I've never seen the city stronger, in terms of street life."

Then again, as Ducibella put it, "glass and explosives go well together." His firm has worked on numerous major projects, including the World Trade Center transportation hub and the Bank of America tower at Bryant Park.

A glass skyscraper and an arena

So, in the Q&A, I mentioned that the Atlantic Yards Final Environmental Impact Statement had just come out, with nothing about security and terrorism. People are were concerned about a glass skyscraper and an arena in Forest City Ratner's project, but the Empire State Development Corporation says such a review isn't required under the law, though the city police department has examined the project.

What should people expect from the government in doing a security review and sharing some of that with the public?

There was a pause. Moderator Andrew Manshel looked over at Ducibella and asked if he'd been involved in any EIS reviews.

"I have an unfortunate conflict of interest," Ducibella responded. "Our firm is involved and has been for about a year and a half trying to work with the developer to create an environment" that, among other things, is responsive to police department concerns, he said. "I understand your position and would love to comment, but I'm sorry."

Manshel asked him about such reviews in general. "Most of the projects that are of substances--and that project is of substance--when the original security considerations are developed, they are no longer part of just looking at what kind of electronic security components might be built in, or how many security officers there might be," Ducibella replied.

"There are issues of perimeter boundaries--you've witnessed street closures--issues about lighting levels at night that create local pollution, in some cases screening trucks on streets, which has a real significant effect on local traffic, so it's difficult for a project of significance now to not have security studies done and recommendations developed in advance that don't somehow inform the EIS process."

City Planning demurs

Manshel turned to the city's Gastil. Does City Planning have a position on the issue? "Atlantic Yards is a state project," Gastil pointed out, saying that he wasn't prepared to provide a policy statement on the issue of security reviews. (Atlantic Yards would be the Brooklyn office's bailiwick, anyway.) Still, he said it was a "a good question" and he was willing to take it back to his colleagues.

Bottom line

But the bottom line, so far, is this: because the State Environmental Quality Review Act (SEQRA) was passed in 1978, and revised in 1987 and 1996, it doesn't reflect a post-9/11 consciousness about security issues, and thus those concerns need not be disclosed in the EIS process.

And if environmental reviews these days are informed by security studies, as Ducibella's general comment suggested, it's hardly clear in the Atlantic Yards review.

City agencies tasked with security and developers who buy insurance surely take security into account. So it's clear that some people have been studying security issues regarding the Atlantic Yards proposal. Given the significant community concerns, it seems that, at the very least, SEQRA needs an update.

High crime in footprint? FEIS ignores the criticism

The Empire State Development Corporation (ESDC) in the Response to Comments section of the Atlantic Yards Final Environmental Impact Statement (FEIS), aims to offer "a summary of these relevant comments and a response to each." (Emphasis added)

Many responses might be seen as incomplete, but at least they're responses. When it comes to dubious charges of high crime in the Atlantic Yards footprint, charges raised in the ESDC's Blight Study but severely criticized (by me, at first), the ESDC has ignored the issue.

Criticisms sent to ESDC

Develop Don't Destroy Brooklyn in this file (p. 7) from its Blight Response, quoted my criticism and added to it. Community Board 2 told the ESDC:
The crime statistics in the DEIS are misrepresented and cannot be used honestly as evidence of blight.

Indeed, as I pointed out, in two of the three sectors studied that each included parts of the footprint, the crime rate was lower last year than in the larger police precincts to which they belong. That's hardly a sign of high crime.

But there's no response to these criticisms in either Part 1 or Part 2 of the Response to Comments chapter.

Generalities on blight

The agency did respond to criticisms that the area wasn't blighted by citing its Blight Study.

[The numbers designate those who commented.]

Comment 20-8: The DEIS makes an absurd claim that without Atlantic Yards, without eminent domain, no development could benefit New York State and that phony blight conditions would remain. (58, 107)

Response 20-8: The blight study accurately identifies blight on the project site, and eminent domain is an appropriate tool to address this blight.

Comment G-31: The designation of Prospect Heights, an up-and-coming neighborhood with new co-ops and condos, as blighted is bogus. (58, 69, 107, 119, 122, 160, 172, 197, 235, 239, 241, 256, 265, 274, 281, 325, 337, 338, 339)

How is the surrounding neighborhood blighted when residences are selling for upward of $1 million? (10, 31, 421, 160, 411, 445)

With housing values going up every day and out of reach of the common person, how is the area blighted? (144, 172, 204, 228, 229, 268, 385)

The area is already developing in an independent way through small businesses and individuals. This area is far from blighted. (144, 214)

The community has already transformed a blighted area into a vibrant mixed use community. (31, 107, 191, 235, 397, 438)


Response G-31: The DEIS states that the proposed project site is characterized by blighted conditions, including dilapidated and structurally unsound buildings, debris-filled vacant lots, and underutilized properties. The DEIS does not state that the neighborhoods or blocks surrounding the project site are blighted. In addition, ESDC has prepared a Blight Study, which is appended to the General Project Plan.

But there's no defense of the crime rate analysis within the Blight Study.

Michael Ratner offers contributions (Lopez, etc.), office for meeting

As I reported in September, Greenwich Village resident Michael Ratner, eminent constitutional lawyer and brother of Forest City Ratner (FCR) CEO Bruce Ratner, has given campaign contributions to several candidates from Brooklyn and beyond apparently favored by the developer. So has his wife, Karen Ranucci.

But I missed a few. After my article appeared, Ratner gave further contributions to Brooklyn candidates who might have an impact on the Atlantic Yards plan.

Maximum gifts to Lopez

On 9/8/06, Ratner and Ranucci each gave $3100 (the contribution limit) to the campaign of Brooklyn Democratic Chair Vito Lopez, who has a lock on his Assembly seat. Lopez had no primary and token opposition in the general election.

But Lopez can have influence with Assembly Speaker Sheldon Silver, and Forest City Ratner certainly wants Silver to greenlight Atlantic Yards when it reaches the Public Authorities Control Board (PACB), where Silver has one of three votes. (Ratner and Ranucci had previously contributed the maximum to Silver, as well.)

Lopez, interestingly, was not on the list of public officials supporting AY announced at the 8/23/06 press event. Still, he has ties to several project supporters.

Gifts to Parker and Camara

Ranucci, on 8/29/06, gave $3500 to the campaign of State Senator Kevin Parker, an Atlantic Yards supporter.

Ratner gave $1000 on 9/11/06 to Karim Camara, another supporter, who beat Jesse Hamilton to retain his Assembly seat. (Ratner's wife Karen Ranucci gave $2500.)

A contribution to Adams

On 10/9/06, Ratner gave $1500 to the State Senate campaign of Eric Adams, who had already crushed Anthony Alexis in the primary and faced token opposition in the general election.

Adams in May declared himself opposed to the Atlantic Yards project, according to a 5/13/06 report on NoLandGrab from Democracy for NYC's Brooklyn Candidate Forum:
I cannot support that project as it stands. [reasons: terrorism, asthma, sewer, traffic, evacuation] I would never be supportive of any project that deals with eminent domain. Until we answer all of those questions, it's difficult to move ahead with any project of that magnitude.


At one point, he apparently stepped back from that. According to an 8/14/06 article on the Gotham Gazette web site:
Eric Adams, the co-founder of 100 Blacks in Law Enforcement Who Care, has not taken a position on the Atlantic Yards plan. He says he wants to look at the issues of environment, affordable housing and labor before reaching a decision.

Still, in a 9/1/06 message to NoLandGrab, Adams reiterated his previous opposition, though he left open the option to modify his views:
I am opposed to the project as it is currently proposed. Some of my concerns regarding the Atlantic Yards include the size of the project, infrastructure needs (schools, sewage, etc.), terrorist threats, and traffic plans. I will base my actions as a Senator on sound information from the recently released Environmental Impact Statement, public hearings, and canvassing the neighborhoods within the 20th Senatorial District.

Michael Ratner's office

As I’d been told, Michael Ratner does indeed have an office at FCR’s headquarters in Downtown Brooklyn.

He’s obviously not there very often, since he’s got another job. So city and FCR officials can hold meetings in his office, as shown by a 4/18/06 memo (right) I acquired a Freedom of Information Law request from the Department of City Planning.
(Click to enlarge)

A Ratner-related contribution to Roger Green

Assemblyman Roger Green's underfunded and unsuccessful run for the 10th Congressional District nomination, as noted, seemed at the end aimed more at fellow challenger Charles Barron, an Atlantic Yards opponent, than incumbent Edolphus Town, a fellow Atlantic Yards supporter.

Green was deeply involved in the Atlantic Yards Community Benefits Agreement and has spoken enthusiastically for the project. So maybe it's not surprising that campaign disclosure forms show additional ties to developer Forest City Ratner. Green got $2000 on 7/27/06 from FCR executive Gary Lieberman, who also owns a piece of the Nets.

Wednesday, November 29, 2006

Reduce the project? ESDC says density works for Times Square

How big should Atlantic Yards be? Numerous individuals, organizations, and elected officials told the Empire State Development Corporation (ESDC), in response to the Draft Environmental Impact Statement (EIS), that the project should be reduced drastically.

And three Assemblymembers just asked Assembly Speaker Sheldon Silver to delay and modify the project, in part because of "extreme density."

In the Final EIS, however, the ESDC gave very little quarter--and suggested that, because areas like Times Square and Penn Station support high density development, so should the area around Atlantic Terminal.

The difference, however, is that most of the high-density development touted is commercial, not residential, and neither of those areas are as close to rowhouse residential districts like the Atlantic Yards site.
(Photo + simulation of Dean Street view by Jonathan Barkey)

Note that it's not unlikely that developer Forest City Ratner is ready for another reduction in the plan. After all, the project went from about 8 million square feet to 9.132 million square feet, then, after two much-ballyhooed cuts, back to... 8 million square feet.

The criticism

[Note that the numbers are associated with the individuals or organizations that commented, according to Chapter 24 of the Final EIS. Also note that FAR means "Floor Area Ratio."]

Comment 1-3: ESDC should reduce the project by at least three million square feet or 34 percent, while at the same time preserving the affordable housing aspect of the project. (1, 24)

The project should be scaled back by 50 percent. (116, 227, 550, 578)

The project should be scaled back by 40 percent. (303, 393)

The arena should not be built and the rest should be reduced by 40 percent. (238, 258, 385)

The project should be reduced radically. The design looks terrible and where is the open space? Cut this project in half. Better to have no development than to subsidize this horrible project. (69, 108, 169, 177, 230, 237, 259, 387, 438, 519)

The project should be scaled down and open space increased. (222, 230)

The master plan at its current scale proposes a “social experiment” in density of housing that potentially could blight the area of Prospect Heights. No one has ever mushroomed a population in the space and time proposed by the Atlantic Yards development in the United States. How irresponsible to play with people’s communities and lives so cavalierly? (216)

Even with the 8 percent reduction in project size announced in September, the residential density would be without precedent in NYC and its impact within the project’s confines, as well as on the surrounding neighborhood must be examined. (232)

The proposed number of apartments and building heights should be cut by 50 percent. (242)

The scale of the project needs to be reduced. (31, 68, 82, 108, 139, 141, 150, 157, 186, 189, 209, 216, 234, 257, 284, 285, 290, 299, 300, 308, 313, 334, 375, 382, 391, 398, 410, 417, 436, 438, 439, 464, 465, 471, 477, 490, 497, 510, 516, 564, 574)

The project should be scaled back to perhaps 10-20 percent of the proposed units. (146)

The density of the residential area should be no greater than Battery Park City at full build out which is 152 apartments per acre - this plan is 311. (37)
The scale of the development should be decreased, relate to, and not overwhelm, its neighbors. (48, 57, 260, 344, 355, 369, 427, 460, 499, 504, 507, 521, 530, 561, 563, 575, 576)

The Project Plan should be scaled down to the reality of the infrastructure services available. (535)

What is the appropriate size for a development here? An FAR of 6 was the intent of the ambitious, progressive, optimistic, and relatively public process of upzoning Brooklyn. Building under 5 million square feet would be doing the right thing for Brooklyn. (489)


ESDC response

Response 1-3: Since issuance of the DEIS, the project has been modified in response to recommendations by the City Planning Commission (CPC). The proposed project has been reduced by approximately 427,000 gross square feet (gsf) (430 units) in the residential mixed-use variation and by approximately 458,000 gsf (465 units) in the commercial mixed-use variation. The number of affordable units has not been reduced. In addition, the amount of commercial office space has been reduced by approximately 270,000 gsf in the residential mixed-use variation and approximately 223,000 gsf in the commercial mixed-use variation.

[The modification merely would return the project back to square one in terms of size, and most of the reductions were on the table in January, offered as an option by developer Forest City Ratner and architect Frank Gehry.]

The amount of publicly accessible open space has been increased to 8 acres. The FEIS has been revised to include these modifications to the proposed project. The arena is the vital civic component of the land use improvement and civic project as defined by the UDC Act and would offer the opportunity to bring a much-desired major-league sports team back to Brooklyn.

The proposed project would follow urban design goals and principles as outlined in the Design Guidelines, developed in consultation with the New York City Department of City Planning (DCP).


[The Design Guidelines came out of Gehry's office.]

The Design Guidelines provide an overall framework for creating a cohesive development with a variety of scales, programmatic uses, and architectural elements. The location of the project site, with a new connection to Brooklyn’s largest transit hub, makes it suitable for high-density development. This transit-oriented development is a distinctly beneficial aspect of the proposed project. As discussed in Chapter 3, “Land Use, Zoning, and Public Policy,” the density and FAR of the proposed project would be consistent with, but generally less than, the densities and FARs employed throughout the city for areas surrounding concentrations of mass transit, including the 10-12 FAR district directly north of the project site on Atlantic Avenue.

Parallel examples?

According to Chapter 3:

The New York City Zoning Resolution reflects the City’s policy of encouraging high density development in areas with significant mass transit access. In Manhattan, the zoning around Grand Central Terminal, which is served by five subway lines and substantial commuter rail service, allows for base FARs of between 12 and 15, up to 18 FAR through improvements to the mass transit network, and up to 21.6 through other mechanisms. The Times Square area, which is served by 12 subway lines and the Port Authority Bus Terminal, permit FARs of between 10 and 15, with transit-related bonuses allowing for densities of up to 18. One of the general goals of the Special Hudson Yards District is “to facilitate and guide the development of an environmentally beneficial, transit-oriented business and residence district by coordinating high density development with expanded mass transit facilities, extended and improved subway lines, improved pedestrian access to mass transit facilities, improved pedestrian circulation and avoidance of conflicts with vehicular traffic.” The areas adjacent to Penn Station, which is served by six subway lines and LIRR and New Jersey Transit commuter rail services and located within the Special Hudson Yards District, permit densities up to 19.5 FAR. Maximum FARs range from 10 to 21.6 (with bonus) in lower Manhattan areas adjacent to the Fulton Street Transit Center (10 subway lines and PATH trains).

This policy of transit-oriented zoning density is not limited to Manhattan. The goals of the Long Island City Mixed Use District include the development of moderate- to high-density commercial uses within a compact transit-oriented area and promoting the opportunity for people to work in the vicinity of their residences. This special district permits maximum FARs between 10 and 15. Even in southeast Queens, the City’s current rezoning proposal in Downtown Jamaica proposes FARs of up to 10 for the areas adjacent to the Jamaica Station (three subway lines, all but one of the LIRR commuter rail lines pass through this point).


Most of those examples, however, concern commercial rather than residential projects, and Atlantic Yards would not be part of a city rezoning; rather, the ESDC would override city zoning.

MSG employee warns of rowdy fans, noise; ESDC says crowd noise "not... major"

An interesting, if anonymous, nugget of commentary emerged from the multitudinous comments filed in response to the Atlantic Yards Draft Environmental Impact Statement (EIS) and included in the Final EIS. A ten-year employee of Madison Square Garden warned urgently about noise, rowdy patrons, garbage, and gridlock. (Click to enlarge)

The writer, who said he could not give his name, because, "like contracts that are signed with Bruce Ratner, there are speech restrictions included in the contracts with MSG." (The latter is unconfirmed, but there is a record of Ratner gag orders.)

He warned that, after events with younger crowds, drunk patrons crowd the street and carelessly strew garbage. They also treat the streats like they own them, he said, and are quite loud:
In the end, on any number of occasions, it's just one big party in the streets...
The proposed Nets Arena is surrounded by dense residential neighborhoods. What can the residents expect before and after events? There needs to be a study that addresses and answers that question.


Final EIS sanguine

The Final Environmental Impact Statement (EIS) from the Empire State Development Corporation is sanguine about the issue, responding:
The sidewalks adjacent to the arena block would be wide enough to accommodate the anticipated large volumes of patrons expected for arena events; and publicly accessible amenities, such as the Urban Room with its below-grade connection to the subway, and public plazas along Atlantic and Flatbush Avenues, would be situated around the outside of the arena creating a friendly and interactive pedestrian experience. Thus, although the character of the streets and sidewalks would change through sizable intensification of pedestrian activity, pedestrian congestion would not occur. Pedestrian volume on Dean Street would increase notably, especially prior to and immediately following arena events, as a large portion of the arena parking would be located along Dean Street between Carlton and Vanderbilt Avenues. There would be no planned activities or sidewalk vending associated with the arena use on Dean Street. In general, any crowd noise surrounding the arena would be expected to be masked by noise from vehicles on adjacent streets and would not be a major noise source.
(Emphasis added)

To the NY Times Public Editor: examine the 8% AY cutback

[Update: I got a late-morning response from Public Editor Byron Calame that reminded me that he deals with complaints only after readers are dissatisfied with responses from the editors who handled the story. I responded that I had already informed the editors of the overlooked information.]

Dear Mr. Calame:

The Times has failed to report on new information that essentially demolishes the premise of the lead story published September 5.


On that day, the lead story—the most important piece of news in the world for a day—was headlined “Developer Is Said To Plan Cutback In Yards Project.” The deck said: “A Response To Criticism.”

The article, which suggested that developer Forest City Ratner would cut the proposed Atlantic Yards project by six to eight percent, was irresponsible in its execution and thus in its placement.

The article omitted a salient piece of information: the reduction contemplated would bring the project’s size, in square footage, back to the amount announced in December 2003. In other words, the developer increased the size of the project only to reduce it and to appear to be making concessions.

Had that context been included, editors and reporters might have thought twice about the news value of the article. And they might have been reluctant to suggest that the move was a “response to criticism.” An appropriately analytical deck might have read: “Response or Tactic?” [Update: I originally suggested "Criticism or Tactic?"]

Day-after context

Indeed, coverage in other media the next day demolished the premise, offering context for the cutback. The Times reported that the cutback might be considered a tactic, quoting planner Ron Shiffman, who said, “With practically every large development project, people ask for far more than they need.”

Other publications, such as Metro, pointed out that the cutback would only bring the project back to square one.

City Planning's "recommendations"

The story continued. On September 25, the City Planning Commission “recommended” that rumored eight percent scaleback; the next day, the dailies, including the Times, failed to explain that the reduction would restore the project to square one. The Times headlined its story "City Planners Recommend 8% Reduction in Atlantic Yards."

Only in coverage September 28, after the developer “accepted” the recommendation did the Times offer the crucial context: “Moreover, the new reduction only brings the project back to the original size proposed in 2003.”

"Precooked"

The Times's September 26 coverage of the City Planning Commission suggested some of the tactics:
As one executive who works with Forest City put it, “A lot of this was precooked.” Critics and supporters had long anticipated that Forest City would make cuts in the project in order to make it more politically palatable.

But were those actual cuts? The fact that they would restore the project only to its original size was one red flag.

Damning evidence

Now there's another. A document I obtained via a Freedom of Information Law request from the Department of City Planning shows that most of the proposed cuts had been on the table since January, in an option (20B) presented by the developer and architect Frank Gehry.

Now that we know the developer had already prepared for such cuts, the front-page story on September 5 could not have been describing a “response to criticism.” Nor did city planners, as the September 26 headline suggests, actually "recommend" much that the developer was not prepared to accept.

This new information deserves follow-up coverage. (The New York Observer and two Brooklyn weeklies have cited it.) The Times has failed, however, to offer it. As former Public Editor Daniel Okrent wrote (All the News That's Fit to Print? Or Just Our News? 2/1/04):
If the goal of newspapering is to inform the readers and create a historical record, shouldn't the editors be telling us about everything they think is important, no matter where they find it?

Enshrining myth

In the Final Environmental Impact Statement (FEIS) issued November 15 and reissued November 27, the Empire State Development Corporation told (p. 42) citizens who complained that the project was too big that “the project has been modified in response to recommendations by the City Planning Commission."

It’s the job of the press, including the Times, to tell the public that those recommendations were in large part preordained by Forest City Ratner rather than developed by the City Planning Commission in response to criticism.

And if the Times doesn’t do its job, you should do yours.

I don’t attribute the Times’s miscues to the parent company’s business relationship with Forest City Ratner. However, as I’ve argued, the Times has a special obligation to be exacting in its coverage of its business partner. It has not done so.

HPD foils FOIL (after four months), won't reveal affordable housing subsidies

How much would the city offer in subsidies for the affordable housing in the Atlantic Yards plan?

It's a reasonable question, because the project would not simply "provide 2,250 low-, moderate-, and middle-income rental apartments," as stated in a Crain's poll that's been trumpeted as depicting support for Atlantic Yards, but taxpayers would pay for that housing.

By knowing the city subsidies, we might be able to compare the affordable housing planned for Atlantic Yards with affordable housing elsewhere. After all, that's what Deputy Mayor Dan Doctoroff did when he said the Queens West project was a better deal than trying to maintain Stuyvesant Town.

Also, the city subsidies are part of a package of subsidies and public costs, yet unknown, that three Assemblymembers cited as necessary to evaluate the project.

FOIL filed

After trying unsuccessfully to get answers via the press office of the city's Department of Housing Preservation & Development (HPD), on July 26, I filed a Freedom of Information Law (FOIL) request, seeking documents regarding the Atlantic Yards project, particularly those regarding the funding and provision of affordable housing.

State law requires that agencies respond within five business days, either offering the records requested or stating "the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied."

HPD responded within three weeks, saying that I should receive a determination regarding my request within 30 business days. It took much longer, and perhaps HPD wouldn't have responded until I followed up earlier this month. I was told I should expect a final response later this month.

Denied

I got the response in the mail Monday: denied. The reasons: "interference with contracts" and "inter- or intra-agency material." (State law explains the former as information "if disclosed would impair present or imminent contract awards...")

The law provides for an appeal process, and I will file an appeal. Surely the agency must provide at least some information that details the extent of city subsidies for affordable housing.

But consider: had HPD followed the letter of the law in the first place, the denial would have arrived by late August. I would've filed an appeal, and it likely would've been resolved by now.

Why can't government agencies follow the law?

Tuesday, November 28, 2006

Brennan, Millman, Robinson ask Silver to delay, modify AY project

Three Assemblymembers representing districts near the proposed Atlantic Yards project have asked Assembly Speaker Sheldon Silver for “substantial modifications to the Project and a delay in approval until those modifications are achieved." Silver is one of three controlling votes on the Public Authorities Control Board (PACB), which should get the project later this month, after approval by the Empire State Development Corporation (ESDC).

Assemblyman Jim Brennan and Assemblymembers Joan Millman and Annette Robinson sent the three-page letter on November 22 to Silver, a fellow Democrat. The speaker, who has expressed support for Atlantic Yards, has said he would consider the opinions of representatives in Brooklyn.

He also has begun a public feud with ESDC Charles Gargano, who just yesterday moved Atlantic Yards toward a December 8 approval. He also may want to let incoming Gov. Eliot Spitzer, also a Democrat who supports the project, reevaluate the plan, when Spitzer replaces Gov. George Pataki as one of the "three men in a room" on the PACB.

The Assemblymembers' concerns include the project’s “extreme density,” the override of land use laws, the opacity of project finances, and the lack of an effective transportation plan. Also, echoing criticism raised by some housing groups and the BrooklynSpeaks coalition, they call for broadening the affordable housing to those earning less than $21,000 a year. They suggested a revival of an Assembly bill that would trade additional subsidy for a project downsizing.

What leverage do the trio have? Beyond Silver's pledge to at least listen, it's unclear. They did not raise the issue of the pending eminent domain case, which could stall or entangle the project. Then again, they call for compromise rather than a rejection of the project, which suggests they’re keeping some distance from Develop Don’t Destroy Brooklyn (DDDB), which organized the lawsuit and has directly aimed at the legitimacy of the process.

Jeffries on board?

Hakeem Jeffries, the incoming Assemblyman representing the project location in Prospect Heights, did not sign the letter, though he has expressed some of the same general policy ideas and said he’d been working with Millman and Brennan.

Jeffries has also said he opposes eminent domain for an arena and said the project should not be approved until the eminent domain lawsuit is resolved. He could not be reached yesterday evening for comment.

Extreme density

“The current plan is on a scale that would double the legally-zoned density of this area and create an island of population at this Brooklyn hub eight times as dense as that of Manhattan,” the trio wrote. “The EIS acknowledges an additional 20,000 vehicle trips a day and the inadequacy of current subway or bus facilities to absorb additional riders.”

They criticized the role of the Empire State Development Corporation in overriding city zoning and bypassing the city’s Uniform Land Use Review Procedure, “which gives the local community an important voice in major land use decisions.”

Without a significant downsizing, the project “will have intolerable adverse impacts on infrastructure, entailing long-term public costs that we believe have not been adequately examined,” they wrote, saying that a “genuine auto use and mass transit mitigation plan” was needed.

Financial disclosure

The scale, they observed, seems driven by a need for a reasonable return on investment. However, they charged, “there has been, to date, no public disclosure of the project’s finances, including detailed cost analysis, anticipated public subsidies, and expected financial return.” (Brennan has so far been stymied in attempts to get disclosure.)

After such a disclosure, “an evaluation of the relationship between the developer’s return on investment and compliance” with zoning should be conducted.

Affordable housing

The trio criticized plans to include 550 affordable units (of 2250) in the first phase of the project, saying that the amount should be doubled.

They also criticized relocation contracts offered to tenants who haven’t yet left the footprint as offering only three years of rental assistance—the amount beyond their current rent—saying they would expire before those tenants could move into the project.

Actually, according to the ESDC (see p. 8), Forest City Ratner has agreed to offer such assistance indefinitely, but it would end if the project is abandoned—a risk the rent-stabilized tenants may not be advised to take.

State assistance redux

The trio referenced an Assembly bill they sponsored in the past session, which aimed to reduce the project by 34%, or 3 million square feet. Given subsequent cuts by the developer, they said the bill “would now compel a reduction by 27%.

They said that a revival of the bill, which would add state aid for affordable housing in the project, “serves as the path” for a downsizing solution. (The bill has been criticized by DDDB for giving too much to Forest City Ratner.)

PACB delay

They asked Silver to ensure that the proposal be returned to the ESDC for modifications. “This will also allow the Spitzer Administration to address the gross defects in the Environmental Impact Statement or conduct other reviews,” they wrote. “A delay of several months while concerns are incorporate into the Project will cause no harm to Atlantic Yards and major long-term benefit to the community.”

Monday, November 27, 2006

FEIS reissued for December showdown; Gargano says speed not atypical

Twelve days after they determined the Atlantic Yards Final Environmental Impact Statement (FEIS) complete—and just one week after numerous comments were found missing—the board of the Empire State Development Corporation (ESDC) met and certified a revised FEIS, setting up a December 8 approval.

What went wrong? ESDC Chairman Charles Gargano said the omission of 148 comments—with about 1600 already accounted for—was inadvertent. His explanation was hardly exhaustive, blaming some “very large” comments and others “sent to the wrong person,” but he emphasized the agency’s responsiveness to the news.

Indeed, staffers worked weekends to finish the job, something Gargano asserted is not an extraordinary measure. “We have done that many times, worked weekends, over the 12 years that I’ve been here, on many projects,” he said.

Did the FEIS change? “Not substantially,” said Gargano, deeming them “mostly questions that had been asked previously.”

(To find the list of most comments left out, go to p. 20 of this PDF, where 121 people or organizations are listed as “additional commentors.” To find their original submissions, most are under the “Interested Public” link. To track the response to their comments, search on the number associated with the comment. The additional 148 submissions include comments from people who had already submitted comments, so their names do not appear multiple times.)

Approval in ten days

The swift pace, which Gargano asserted was part of the agency’s practice of moving projects along, leaves open the possibility that Atlantic Yards could be approved before the end of the year and the end of Gov. George Pataki’s term. The ESDC board will meet at 10 a.m. on December 8, after a mandatory ten days, to approve the project, sending it to the office of Comptroller Alan Hevesi and the Public Authorities Control Board (PACB).

Does he expect it to move forward before the end of the year? “We have ten days from this point for additional comments and following that, it can come before the PACB,” Gargano replied. “I’d rather put in a way—why should there be unnecessary delay?”

[Clarification: The PACB can vote as early as a week later, though it's possible a review by Hevesi could slow the vote. ] But the big question will be whether the PACB, whose voting members include Pataki, Senate Majority Leader Joseph Bruno, and Assembly Speaker Sheldon Silver, will put the project on hold. Silver, the only Democrat currently on the PACB, has expressed support for the project, but he has severely criticized Gargano recently.

Will Silver hold up the project so it can be considered under the administration of Governor-elect Eliot Spitzer, a fellow Democrat who’s expressed support for the project? If so, he hasn’t told Gargano. The ESDC chairman said he’d had no contact with either Silver or Spitzer.

More comments possible

Gargano told reporters that the ESDC will continue to accept comments during the ten-day period. "If we get any substantive comments, we will take them into account," said general counsel Anita Laremont. Does the agency have to respond to them in writing? No.

Such an opportunity for additional comments is not specified in the FEIS. “It's not something we typically advertise, it’s something that the SEQRA regulations allow,” spokeswoman Jessica Copen said afterward, pointing me to Section 617.11(a) of the State Environmental Quality Review Act.

It states:
Prior to the lead agency's decision on an action that has been the subject of a final EIS, it shall afford agencies and the public a reasonable time period (not less than 10 calendar days) in which to consider the final EIS before issuing its written findings statement. If a project modification or change of circumstance related to the project requires a lead or involved agency to substantively modify its decision, findings may be amended and filed in accordance with subdivision 617.12(b) of this Part.

Example: one comment

Here's an example of one comment that appeared in the revised FEIS. Architect and Brooklyn Views blogger Jonathan Cohn suggested that event venues have a detrimental effect on residential areas and on vibrant mixed-use communities.

The response was that such facilities “thrive in combination with a strong mix of commercial and residential land uses,” with Verizon Center in Washington, DC as one example.

Cohn, interestingly enough, a day earlier addressed Verizon Center in his blog, writing that “the arena’s major accomplishments - in the eyes of the city’s business community - was to encourage suburbanites to 'sample' the city, and encourage others in the business community to invest in commercial activity downtown, neither of which are particularly the challenge for us in Brownstone Brooklyn.”

Security issues

The Council of Brooklyn Neighborhoods last week asked the PACB to urge the ESDC “to perform a thorough public analysis of any potential terrorism issues in regard to Atlantic Yards.”

Gargano was asked about the security issue. “First of all, that’s not part of the EIS,” he responded. “And number two, we’re confident the sponsors will deal with the New York Police Department and take the necessary steps, as we do on all projects.”

Atlantic Center overbuild

I asked him about the “Atlantic Center overbuild,” 1.2 million square feet next door, which was dismissed in the FEIS.

Gargano was clearly unfamiliar with the term, at first asking staff, “Anyone know about it?” He then returned to his general mantra about development: “This is New York City. There’s building going on all the time.… I don’t think it should all be concentrated in Manhattan, so the people in the boroughs have the benefit as well. …The city of New York, they are very much in favor of this project…. City Planning has approved all of this, you know that.”

Eminent domain

Gargano was asked if the ESDC should wait until the Atlantic Yards eminent domain case is resolved.

“There’s not a project that I can remember that hasn’t had some kind of a lawsuit,” he said. “I think what we’re trying to do is get projects built where the majority of the people want projects, and this is the case here, I’m sure. And we will address those lawsuits.”

Majority opinion?

On what he based his conclusion that most people supported this project? “Well, I think—I don’t know how many millions of people live in Brooklyn, and we do have some who are concerned who live in the immediate area. It’s our responsibility to address those concerns," he responded. "But I think, by and large, people in general in the city like to see improvements, new development, job creation, better facilities….”

The question was asked again. “It’s development in general," he responded. "We’re talking about a park being built around the Brooklyn waterfront. We’re talking about MetroTech. We’re talking about Atlantic Yards laying idle for 50-60 years, so I think, what I hear from a lot of people about the project—and people who live in Brooklyn—that this is a project that will help the economy, it will help in job creation, better housing…”

Only in America

During the press conference in Gargano's office, his cellphone rang, and we learned his ringtone of choice is an operatic chorus from “America the Beautiful.”

Gehry's working on “Atlantic Center overbuild” (for 2000+ residents); ESDC punts

Though city officials haven't said so publicly, newly released documents show they’ve examined plans by Forest City Ratner for three new towers over the developer’s much-derided Atlantic Center mall--and Atlantic Yards architect Frank Gehry has it as part of his assignment.

(A photo of last year's model (right), published by the Courier-Life chain, showed three towers.)

Apparently the developer, Gehry, and the city see the "Atlantic Center overbuild" as intertwined with the neighboring Atlantic Yards project. However, the Empire State Development Corporation (ESDC), in its Atlantic Yards review, has shrugged off questions about Atlantic Center, which could add 2000+ new residents across the street.

A hint of the plan came in a public statement 1/7/06 from Gehry, who said "there are some 20 buildings to be built, and the client insisted that I do them all. When he came to me, he said, 'I know you're going to try and bring all your friends in to do all the buildings, 'cause that's a cop-out.'... And he didn't want me to do that, he wanted me to really solve the problem, and put me on the hot seat."

Given that Atlantic Yards would involve an arena and 16 towers, Gehry's statement raised a question: was he being vague, or was he referring to the Atlantic Center mall? The developer retains more than 1.2 million square feet of development rights, enough for three towers at least 300 feet tall. (That would represent a 15% increase on top of the AY project, which would be about 8 million square feet.)

The plot thickened in May, when Atlantic Center towers appeared in at least one model of the plan shown at a press conference featuring Gehry.
(Photo of this year's model from the New York Times shows two towers north of Atlantic Avenue behind the flagship "Miss Brooklyn.")

While the two projects would be technically separate, and FCR already has development rights for the Atlantic Center site, the incorporation of the Atlantic Center plans into the Atlantic Yards model suggests that it deserves more scrutiny.

City Planning, AC & AY

A document I acquired from the Department of City Planning (DCP) via a Freedom of Information Law request shows that the parties involved have considered the Atlantic Center project in tandem with Atlantic Yards. A 9/20/05 “DCP Checklist” that otherwise focused on AY stated:
Review of Atlantic Center (AC) overbuild. Want AC buildings at the same level of design detail as Atlantic Yards (AY).
(Click to enlarge)

The responsible parties: “GP,” or Gehry Partners, and “Jane,” or Forest City’s Jane Marshall, who sent the email to DCP to which the the checklist was attached.

Housing or office space?

Apparently the developer has already changed course and decided to emphasize housing over office space in the overbuild--and may continue to do so. (Mall photo by Daniel Goldstein for Slate.)

Initially, there was to be more office space. The Final Environmental Impact Statement for the Downtown Brooklyn Rezoning, completed 4/30/04, stated:,
While there are not yet any design plans, it is anticipated that Atlantic Center and the Shops at Atlantic Center will be developed to the maximum extent allowable under current zoning and the ATURP [Atlantic Terminal Urban Renewal Plan].

The plan was 711 units of housing (likely 711,000 square feet) and 875,000 square feet of office space; the project was expected to be complete in 2008.

That same configuration surfaced in a 2/18/05 Memorandum of Understanding the developer signed with government entities. FCR would develop up to 875,000 square feet of commercial space and up to 711,000 square feet of residential space on the Atlantic Center site, minus, if the Atlantic Yards project proceeds, 328,272 square feet.

Later in the year, with some subtractions, the 9/20/05 DCP memo sketched out reductions in both office space (to 711,000 square feet) and residential space (to 547,000 square feet).

Office space cut

Now plans have changed. There's a glut of Class A office space in nearby Downtown Brooklyn—some 800,000 square feet, or 10 percent of the total, according to Joe Chan, president of the Downtown Brooklyn Partnership, who spoke at a November 20 meeeting of the Fort Greene Association.

And FCR recently cut office space in the Atlantic Yards plan by 45 percent, to 336,000 square feet. So the developer must be rethinking the overbuild.

Indeed, according to the Atlantic Yards Final Environmental Impact Statement, Atlantic Center now would have more residential space than office space. According to the Land Use chapter, Atlantic Center would include 850,000 square feet of residential space and 550,000 square feet of commercial space, with the retail space remaining unchanged.

The project would be complete five years later than initially projected, by 2013, halfway between the end of the two phases (2010 and 2016) projected for the Atlantic Yards plan.

How many people?

That 850,000 square feet means about 20 percent more residential space than initially contemplated. At 1000 square feet a unit, that's 850 apartments. At 2.4 people per unit, that would mean 2040 new residents.

If the project were shifted to all residential space, it could add more than 1250 apartments and 3000 residents to the area, further straining infrastructure and services.

So it’s worth knowing Forest City Ratner’s plans--and how Atlantic Center fits into the environmental review for the Atlantic Yards project.

ESDC ignores impact

In the Response to Comments chapter of the Final Environmental Impact Statement, the ESDC was told (p. 82):
The developer’s intention to further develop the Atlantic Center Mall site would increase the density in the immediate vicinity of the project site to extreme conditions.

The reponse is a generality:
As discussed in Chapter 3, “Land Use, Zoning, and Public Policy,” the New York City Zoning Resolution reflects the City’s policy of encouraging high density development in areas with significant mass transit access, such as Grand Central Terminal, Times Square, Penn Station, the Fulton Street Transit Center, Long Island City, Downtown Brooklyn, and the proposed rezoning of Downtown Jamaica. All of these examples are similar to the Atlantic Terminal area because they represent places where a significant number of transit lines and modes are converging from different directions and proximate to central business districts. The density of the proposed project is consistent with, but generally less than, the densities employed throughout the city for areas surrounding concentrations of mass transit. Thus, the proposed project would further the City’s policy of promoting transit-oriented development by locating these high-density uses adjacent to the Atlantic Terminal transportation hub.

But those areas features much more commercial space than residential space. So the state seems to be discussing density simply in terms of building sizes rather than increased population.

Stuckey says it's old hat

FCR’s Jim Stuckey, on the Brian Lehrer Show on 5/15/06, said it was all old hat:
It’s an interesting thing, because those who oppose the project sort of bring things out and recreate them every six months or so. We’ve had the rights to build over the Atlantic Center mall going back for years. In fact, when we signed the Atlantic Yards Memorandum of Understanding, we signed a Memorandum of Understanding to build over the Atlantic Center mall as well. And in fact, if you were to go on some of their web sites, you would see that six months or eight months or a year ago, this was a new discovery that they made six months or eight months or a year ago. I guess what they’re doing, because there’s really not a lot we can talk about. They really don’t want to confront the issue of affordable housing, and the fact that we desperately need housing and creating jobs here, and creating housing here. So what they do is they dust off the year-old press release and they recirculate it again. The fact is that this was studied in the Downtown Brooklyn plan’s EIS. When the City Council voted for it, that Environmental Impact Statement with the overbuild for Atlantic Center was in that EIS, there was an MOU that was signed, it was signed in February of ‘05, so well over a year ago, that discussed what we were doing over the Atlantic Center as well, or what we could do.

It’s basically as of right square footage. It’s the air rights that have existed there for probably the last 40 years that’s being discussed. And in order to do a comprehensive Environmental Impact Statement that doesn’t deceive anyone but shows everyone that we’re looking at it all in a transparent way, it will be studied in this EIS.


As noted above, it hasn't been fully "studied."

Not in the Times

The plans for the Atlantic Center mall didn't make a huge impression on the New York Times, which in a 5/26/04 article headlined Different by Design, Soon to Be Less So; Rethinking Atlantic Center With the Customer in Mind, focused on the mall's unwelcoming design.

The article did include developer Bruce Ratner’s infamous quote:
''It's a problem of malls in dense urban areas that kids hang out there, and it's not too positive for shopping,'' Mr. Ratner said. ''Look, here you're in an urban area, you're next to projects, you've got tough kids.''

Ratner did say the retail design would improve. He said nothing about how Gehry was working on the overbuild--and the Times didn't raise the question.

Sunday, November 26, 2006

The Times practices "rowback": Atlantic Yards (finally) is not a rezoning

An article in the New York Times today, headlined Bloomberg Administration Is Developing Land Use Plan to Accommodate Future Populations, states, in part:
City officials declined to publicly elaborate on their proposals in advance of the advisory board’s announcement. But some of its goals were foreshadowed by two of the largest rezoning revisions in city history — of the Brooklyn waterfront in Greenpoint and Williamsburg and the Far West Side of Manhattan — both driven by Mr. Doctoroff.
The two major zoning changes, coupled with other development proposals, including the Atlantic Yards project in Brooklyn, were aimed at revitalizing underutilized land for economic development and expanding the city’s property tax base.


Note that the Atlantic Yards project is not lumped in with the rezoning efforts. This serves as an implicit acknowledgement, if not a correction, of previous misleading language.

A 1/2/06 Metro section news analysis that contained this passage regarding Mayor Bloomberg: ...the fruits of his huge rezoning initiatives along the Brooklyn waterfront and at the Atlantic Yards will not all be realized within four years.

The new phrasing is certainly an improvement, but it does ignore the state override of city zoning for AY that would bypass local elected officials.

Fruitless protest

As I wrote in March, there's a big difference between the waterfront rezoning, a process that involves the City Council and extensive hearings, and the state process governing the Atlantic Yards project, under which the unelected Empire State Development Corporation (ESDC) would override city zoning.

In correspondence, I tried fruitlessly to get this erroneous shorthand corrected. A Times editor evasively said that the details of the "bureaucratic processes" were not needed, and Times Public Editor Byron Calame, apparently unwilling to recognize a distinction between city and state oversight, endorsed the error as published.

The new correction-without-a-correction is a variant of "rowback," which former Times Public Editor Daniel Okrent described in his 3/14/04 column as "a way that a newspaper can cover its butt without admitting it was ever exposed."

This isn't the first example of Atlantic Yards rowback by the Times, given "downtown Brooklyn" and "on the railyards"; it probably won't be the last.

Marty (in Brooklyn!!) continues AY dance of avoidance

In April, I pointed out how Atlantic Yards was conspicuously absent from issues of Borough President Marty Markowitz's Brooklyn!! (subtitled "Where New York City Begins"), the tabloid promotional vehicle for Brooklyn and all things Marty.

The Fall/Winter issue arrived yesterday, and there was hardly a word about Atlantic Yards, even after perhaps the year's most tumultuous public event regarding Brooklyn, the August 23 public hearing on the Draft Environmental Impact Statement.

Yes, we know that Brooklyn!! is mostly about feel-good stuff like Brooklyn's holiday lights, the inaugural Brooklyn Book Festival, and readers' Favorite Waitpersons.

But if Brooklyn!! is going to tell us about the new Aviator Sports and Recreation Center at Floyd Bennett Field, or new hotels around Downtown Brooklyn, or new designs for the New York Aquarium at Coney Island, well, why not a word about the borough's biggest development project?

[An eagle-eyed reader informs me of the sixth paragraph in the "Welcome to Brooklyn--Stay Awhile" article on p. 12:
In Crown Heights, the Atlantic Motor Inn opened its doors on Atlantic Avenue near Utica Avenue in July, with 40 rooms. Hopes are high for a classy hotel to open on the Golden Gate Motel site in Sheepshead Bay, and a hotel may be part of the Miss Brooklyn building at Atlantic Yards.]

Marty's views are certainly on record. Is the topic so radioactive he couldn't inform Brooklynites about his take on the project, and maybe some responses, such as the Council of Brooklyn Neighborhoods or NoLandGrab?

Saturday, November 25, 2006

As protesters warn of gridlock, Ratner’s security guards call the cops

They carried signs like “Atlantic Yards: Where Traffic Comes to Die” and “Atlantic Yards Gridlock Solution: Add More Cars.” Yesterday, they kept crossing the intersection of Flatbush and Atlantic Avenues, from 2 pm to 3:30 pm, warning drivers and pedestrians of the coming gridlock should the Atlantic Yards plan go forward—and, actually, even if it doesn’t.

(Photos by Jonathan Barkey.)

In the protest called “Merry Gridlock,” some 15 volunteers from the Council of Brooklyn Neighborhoods (CBN) helped escort seniors and those with carriages--and handed sheets with diagrams of gridlocked intersections to those they encountered on foot or stopped at traffic lights.

The message: "Tell the city and the state to FIX THE TRAFFIC FIRST!" (One solution could be congestion pricing.)

They also attracted the attention of three security guards from the Atlantic Center/Atlantic Terminal mall complex, owned by Atlantic Yards developer Forest City Ratner. First, the guards told two sign-carriers outside the Target store in the Atlantic Terminal mall that they should instead walk in the street, according to Schellie Hagan of the Prospect Heights Action Coalition.

Then, in front of four reporters, the security guards told organizer Jim Vogel of CBN and several others to stop, because they were trespassing on private property, including the sidewalks outside the mall, and the sidewalks outside the Modell’s/P.C. Richard complex, formally known as the Shops at Atlantic Center.

The protesters, somewhat incredulous at the assertion, refused. The security guards, who wouldn’t give their names to reporters, called the cops. Then they waited, away from their stations, on the south intersection on Flatbush outside Modell’s for at least half an hour as the protesters continued in their quadrilateral pattern.

The cops arrive

When a squad car from the 88th Precinct finally pulled up, the security guards had briefly moved away. I asked an officer what the rules were. A security guard materialized and joined the conversation. The sidewalks, the cop explained, were open to the public.

The guard asserted, “You can walk but not picket.”

The officer responded that Fort Greene Place, in between the malls, is private, “but I think they have a right to protest. I don’t understand who’s giving you direction.”

The guard suggested that the protesters had to keep a 30-foot buffer.

The second officer (left) explained that protesters standing in front of a building would have to get a permit.

“We’re not stopping,” insisted Patti Hagan of the Prospect Heights Action Coalition (right, in picture).

“So they’re allowed to…?” the guard (center) asked.

“As long as they don’t stop and obstruct people from going into the store,” the second officer said.

(Indeed, the New York Civil Liberties Union advises: If you want to distribute handbills on a public sidewalk or in a public park, have a demonstration, rally, or press conference on a public sidewalk, or march on a public sidewalk and you do not intend to use amplified sound, you do not need any permit. If you want to use amplified sound on public property, want to have an event with more than 20 people in a New York City park, or wish to conduct a march in a public street, you will need a permit.)

With that cleared up, Vogel of CBN called it a day, and said a group would return on selected weekend afternoons. “We want to be crossing guards,” he said. “The old people love seeing us.”

Mitigation situation

Vogel even acknowledged that some of the traffic mitigations proposed in the Atlantic Yards plan—such as an all-pedestrian phase—could mean progress. But he wasn’t convinced that the solutions would be enough.

After all, despite plans for high-occupancy vehicle (HOV) parking and shuttle bus service to the arena, the Atlantic Yards Final Environmental Impact Statement (FEIS) acknowledges numerous unmitigatible significant impacts--which could well mean gridlock on nearby streets at certain times.

During the protest, actually, the traffic could've been worse. The intersection was crowded, a few cars got stuck between pedestrians when the light changed, and various vehicles honked and speeded, threatening pedestrians. (I got some photos, but my camera later malfunctioned, so they're lost for now.)

There were some backups--but the situation was hardly as hellish as its been. Then again, as the 90-minute segment proceeded, though, traffic began to back up more. Expect the protesters to select even more opportune times to make their point in the future.

Fifth Avenue unimportant?

Another big traffic challenge presented itself a block away. Given the line of northbound drivers on Flatbush Avenue who aimed to turn right on Fifth Avenue to get to the malls, and the northbound drivers on Fifth Avenue already heading the same way, wouldn't the plan to demap Fifth Avenue to build Frank Gehry’s flagship “Miss Brooklyn” make people nervous.

However, the FEIS, in the chapter responding to public comments, downplays the issue:
The Unity Plan would not close Pacific Street or Fifth Avenue, but retaining these streets would not have a substantial benefit to local traffic circulation.

Uh-oh.

[Update: The plan is to turn narrow Sixth Avenue into a two-way street, accommodating traffic and the B63 bus. That would make for several turns, and backups at traffic lights.]

Looking at the map

Below, one of several diagrams in the FEIS regarding unmitigatible traffic impacts. Click to enlarge.

Congestion pricing re-emerges on the public agenda

One solution to the inevitable and so far unmitigatible traffic problems in Downtown Brooklyn and environs might be congestion pricing, which would cause those driving to Manhattan via Brooklyn to think twice if they had to pay for the privilege.

BrooklynSpeaks says that the Atlantic Yards proposal “offers no real plan to avoid gridlock or improve subway and bus service” and recommends, among other things, that the developer and the city “implement roadway pricing to relieve traffic congestion in and around downtown Brooklyn.” The Empire State Development Corporation says that’s not on the agenda as of now--but it might emerge.

Indeed, both business groups and transportation progressives have begun to push for congestion pricing. In an article yesterday headlined Bigger Push for Charging Drivers Who Use the Busiest Streets, the New York Times reported how the Partnership for New York City, which includes major businesses, is bouncing back from an effort a year ago, in which a congestion pricing proposal was floated, then blasted by City Hall. According to the Times:
“We were premature in terms of talking about the problem and potential solutions without thinking about how those might be implemented here in the metropolitan region and what that would take,” said Kathryn S. Wylde, president of the group. “It takes a lot of public buy-in, building consensus.”

Indeed, Wylde said this spring that it would be a challenge to sell it to the public, noting that p.r. firms recommended the term “value pricing” to dissociate the policy from a new tax. Depending on how you establish the baseline, it could be considered a tax; on the other hand, current policies could be considered a subsidy for car owners.

New studies coming

The Partnership never released its study last year, but is expected to issue a revision within a few weeks, estimating the costs of congestion at $12 billion to $15 billion per year. Another study from the national group Environmental Defense will address the environmental and health costs of too much traffic. The conservative Manhattan Institute has its own report in the works.

And to show they’re really serious, Environmental Defense has hired the p.r. firm Dan Klores Communications to help market congestion pricing to the public. The firm also works on the Atlantic Yards project, among many others.

Paul Steely White of Transportation Alternatives told the Times that any congestion pricing program would have to be combined with — or preferably preceded by — other measures like improving bus service and smoothing traffic flow. Will that be enough to get support from City Council members from more suburban parts of the city, where driving is more common? Unclear.

But Deputy Mayor Dan Doctoroff is preparing a long-term strategic plan for the city, and he’s been closemouthed about its contents. Should the outside groups begin the bandwagon, Doctoroff just may join in.

Congestion pricing dissed in FEIS

Chapter 24 of the Atlantic Yards Final Environmental Impact Statement, which includes responses to comments, acknowledges congestion pricing, but punts on the larger issue. Below are the relevant comments, and responses.

Comment 12-27: Two-way tolls should be implemented on the Verrazano-Narrows Bridge. Tolling of the East River Bridges should be implemented to ease congestion.

Response 12-27: Implementation of new tolls on the East River Bridges and changes in the current toll system at the Verrazano-Narrows Bridge are beyond the scope of this project. Any implementation of new tolls would be subject to an independent environmental review.


But that’s also because the state wouldn’t listen to many requests to include the East River crossings in the scope of review.

Comment 12-79: A comprehensive transportation plan should include congestion pricing and improved transit capacity and access. The failure to consider congestion charging in the vicinity of Atlantic, Flatbush, and 4th Avenues and the Downtown Brooklyn core, as a serious measure to address traffic load, is a clear shortcoming of the DEIS.

Response 12-79: The proposed project includes a major new on-site entrance and internal circulation improvements at the Atlantic Avenue/Pacific Street subway station complex. In addition, the traffic mitigation plan proposed in the FEIS incorporates a comprehensive package of travel demand management strategies for arena trips that include a free-fare transit incentive program and free charter bus service from park & ride facilities on Staten Island, and a high-occupancy-vehicle (HOV) restriction of three or more occupants per car would be enforced for onsite arena parking in order to discourage single and two-person auto trips. In addition, congestion pricing has also been incorporated in the proposed mitigation plan in the form of a surcharge that would be imposed for on-site arena parking on game days.


This would be congestion pricing and traffic mitigation just for basketball games. The rest of the project, as well as certain arena events, also would generate much traffic.

Comment 13-48: The DEIS has incorporated several elements into the plan that will encourage use of transit for trips to and from the arena. However, the real mitigations for the impact of this and other developments in the Downtown Brooklyn regional area can only be carried out by the state and the city. These would include improvements to the capacity of Atlantic Avenue subway (and overall transit improvements to the station), roadway/congestion pricing, traffic calming in surrounding neighborhoods, residential parking permits and other measures beyond the scope of the developer to implement.

Response 13-48: The proposed project does include a major new on-site entrance and internal circulation improvements that would increase the capacity of the Atlantic Avenue/Pacific Street station complex. However, as noted in the comment, measures such as congestion pricing and implementation of traffic calming and residential parking permit programs in surrounding neighborhoods are beyond the scope of this project.


Whether or not Atlantic Yards gets built, the case for congestion pricing will be made. Atlantic Yards would make it even more urgent to find solutions.

Friday, November 24, 2006

Looking at Spitzer's transition team and AY

On November 16, Governor-elect Eliot Spitzer announced 13 policy advisory committees to help guide transition efforts. And, should the issue of Atlantic Yards arise, there's no shortage of experts and advocates--from across the spectrum--who could lend their voices to the debate.

Note that participating on a committee does not necessarily mean that the committee will touch on Atlantic Yards. Also, of course, there are many more committee members with no overt connection to Atlantic Yards.

Here are the ones I could identify.

Arts, Culture and Revitalization

Kent Barwick is president of the Municipal Art Society, which has criticized the Atlantic Yards plan and also helped found BrooklynSpeaks, a coalition that seeks to change the project signficantly.

Economic Development

Richard Kahan, former CEO of the New York State Urban Development Corporation (now the Empire State Development Corporation) and chairman of the Battery Park City Authority, has classified Atlantic Yards among “top-down projects” but said “I don’t think they’re necessarily bad.

James Parrott, deputy director of the Fiscal Policy Institute, contributed to a Pratt Center report that criticized the assumptions behind Forest City Ratner's claim of $6 billion in new revenue from the project.

Deborah C. Wright is Chairman and CEO, Carver Bancorp, Inc. In March 2005, Forest City Ratner opened a new account with the bank, the largest African- and Caribbean-American run bank in the United States, and deposited $1 million at the Atlantic Terminal Branch. Atlantic Yards Community Benefits Agreement signatories praised Ratner effusively.

Government Reform

Preeta Bansal is a former Solicitor General of the State of New York. She's also one of the attorneys representing the Empire State Development Corporation in the Atlantic Yards eminent domain case.

Blair Horner is legislative director for the New York Public Interest Research Group (NYPIRG), whose Straphangers Campaign has criticized the Atlantic Yards plan.

Housing

John Kest is statewide head organizer for New York ACORN, which is a signatory of the Atlantic Yards Community Benefits Agreement and negotiated the affordable housing agreement for the project.

Brad Lander directs the Pratt Center for Community Development; he served as a consultant to the Council of Brooklyn Neighborhoods in its review of the AY plan and has expressed praise and criticism for the project as currently configured. The Pratt Center last year released an analysis of the AY plan that included both praise and criticism, but said many questions were unanswered.

Labor and Workforce Development

Kenneth Adams is president of the New York State Business Council in Albany and until recently headed the Brooklyn Chamber of Commerce. He previously headed the MetroTech Business Improvement District, of which Forest City Ratner is a major member. In September, Adams expressed the Chamber's support for Atlantic Yards.

Mike Fishman, president of SEIU Local 32BJ, has expressed support for AY, citing Forest City Ratner’s commitment to union labor in servicing the buildings.

Mike McGuire is Director of Governmental and Legislative Affairs of the Mason Tenders Political Action Committee , and has endorsed the Atlantic Yards project.

Transportation

Jon Orcutt is Executive Director of the Tri-State Transportation Council and Gene Russianoff is Staff Attorney for NYPIRG's Straphangers Campaign; the two groups submitted joint testimony criticizing the transportation plan in the Atlantic Yards Draft Environmental Impact Statement.

Mitch Pally is the only member of the Metropolitan Transportation Authority board who opposed the sale of development rights to the agency's Vanderbilt Yard to Forest City Ratner. Pally thought the agency could get a better deal and said worried that the project might be delayed.

Robert D. Yaro is president of the Regional Plan Association, which issued some significant criticism of the Atlantic Yards plan but praised the design of the first phase and said that it's too late to go back.

Other ties

On the Government Reform committee is Richard Emery a partner in the law firm that has been retained by plaintiffs in challenging the exercise of eminent domain for Atlantic Yards. His partner Andrew Celli, Jr. is on the Human Services committee.

I'm sure I missed some members of law firms that have worked for either developer Forest City Ratner or the Empire State Development Corporation.

Thursday, November 23, 2006

Final EIS delayed only until Monday

So much for a quiet Thanksgiving weekend. Consultants working on the Atlantic Yards Final Environmental Impact Statement (FEIS), which had to be revised to incorporate comments that were missed in the first version released November 15, will have it ready for a 9 a.m. meeting Monday of the board of the Empire State Development Corporation (ESDC), the agency confirmed.

The board again will be asked "to determine that the FEIS is complete," and again will say so. Clearly, that's just a formality. We can't expect the board to actually compare the lengthy document at hand with, for example, the comments submitted. (Apparently, according to the Brooklyn Papers, some of those comments not included came from Prospect Heights resident Raul Rothblatt.)

The board can't act to approve the project for at least ten days, until December 7, when it also will sign off on the environmental review and the approve the use of eminent domain.

Endgame delays?

Then Atlantic Yards would go to the office of State Comptroller Alan Hevesi, who could spend up to a week on a review, or waive a review. (Given Hevesi's expressed concern about increasing state debt, there's a good bet that he'd use that week.)

The Public Authorities Control Board (PACB) could theoretically approve the project before the end of the year. Still, Assembly Speaker Sheldon Silver, one of the three voting members of the PACB, is being pressured to delay the vote until the administration of Governor-elect Eliot Spitzer, a fellow Democrat.

In an article yesterday headlined Agency error delays Atlantic Yards approval, Crain's New York Business suggested that approval of the project "will likely be pushed back to 2007." Still, Crain's pointed out, state approval is a lesser hurdle than the pending eminent domain lawsuit.

Wednesday, November 22, 2006

Eminent domain case gets day in court; public use, legislative process at issue

It was just a status conference, the first skirmish in a legal war, but two lines of argument emerged yesterday as lawyers in the case known as Goldstein v. Pataki, which challenges the use of eminent domain for the Atlantic Yards project, met in federal court in Downtown Brooklyn.

On the one hand, the plaintiffs (property owner Daniel Goldstein and nine others, owners and tenants, threatened with eminent domain) will be pressed to argue that the Atlantic Yards project would provide too little public use to meet the legal standard.

On the other, the defendants (Empire State Development Corporation, developer Forest City Ratner, and city and state officials including Governor George Pataki) must stretch to contend that the project was in fact considered by a legislative body, as evolving eminent domain law seems to require.

The parties were there to address two issues: a motion by the defendants to dismiss the case, and a request by the plaintiffs for discovery, the legal process under which a party to a case is compelled to provide relevant documents. But in essence they were discussing the whole case, which may break some new legal ground. (Here's the complaint.)

Was it greased?

Plaintiffs’ attorney Matthew Brinckerhoff (right) explained to U.S. District Judge Nicholas Garaufis that the case was brought primarily under the public use clause of the Fifth Amendment, turning on the question of the motive of government officials in approving the case.

“We pleaded a whole host of facts, most of which are circumstantial,” he said, noting that that was not unusual in such cases. He said that, shortly after Forest City Ratner CEO Bruce Ratner and his company conceived of the project, they “very quickly obtained” the consent of city officials to bypass the city’s Uniform Land Use Review Procedure (ULURP) and get the state to override city zoning for an oversized project.

Brinckerhoff also pointed to reports that, shortly after the December 2003 project announcement, the Metropolitan Transportation Authority (MTA) had agreed to convey development rights to FCR. The MTA, he said, wound up issuing a Request for Proposals (RFP) in 2005, giving respondents about 40 days. One other developer, Extell, did offer three times more cash ($150 million) than did FCR, but the MTA board, controlled by appointees of Gov. George Pataki, “decided to select” FCR.

A Kelo violation?

To Brinckerhoff, the fact pattern points to questions raised in the U.S. Supreme Court’s 2005 Kelo v. New London decision on eminent domain. “Why did the five members in the majority feel comfortable that this taking was not intended to convey a private benefit?” he asked rhetorically.

Because there were safeguards, he said, and such safeguards cited in Kelo are absent in the Brooklyn case: a legislative process that began before the beneficiary was known; extensive review by a legislative body; and a bidding process to select a developer that came later rather than sooner.

“Here of course the developer has driven the process,” he said. “So there’s very strong circumstantial evidence that this taking is what the Supreme Court found not to exist in Kelo.” He acknowledged that claims always could be made that a project would increase the tax base and create jobs. Even though a project could benefit the public, he said, the “purpose” and “intent” must be discerned.

Garaufis (right) asked why the plaintiffs were in a hurry. Brinckerhoff said that the ESDC soon would confirm findings under the state Eminent Domain Procedure Law and that the plaintiffs must obtain new evidence via discovery to make their claims. If there’s going to be discovery, he added, “I would imagine” that the defendants would want it to proceed quickly so the case could be expeditiously resolved.

“You don’t feel outnumbered?” the judge asked, acknowledging the reality of the courtroom: four lawyers backing the plaintiffs sat at one table, and about ten representing the defendants sat at another.

Brinckerhoff responded that he didn't mind.

Limits on the court?

Douglas Kraus (right), representing the ESDC, started off by saying that Brinckerhoff had not addressed the 12/5/05 Brody v. Village of Port Chester decision by the U.S. Court of Appeals for the Second Circuit. His point: the court has little discretion to evaluate the legitimacy of the Atlantic Yards project.

He quoted Brody, which states, in part, “While a legislature may juggle many policy considerations in deciding whether to condemn private property, judicial review of the final legislative decision to exercise the power of eminent domain focuses exclusively on whether or not the taking is for a public use…. The combination of those factors – the narrow scope of issues and the broad deference to the legislature – suggests that the role of the courts in enforcing the constitutional limitations on eminent domain is one of patrolling the borders. That which falls within the boundaries of acceptability is not subject to review.”

Thus, Kraus continued, “the wisdom or advisability of a public project” is not subject to the court. The review process “began several months ago with a public hearing,” he said, citing the extensive record created by the ESDC.

A legislative agency?

Kraus then made a crucial linguistic switch from "legislative" to "administrative." He said, “If there’s a public use and you find that in the legislative record—the administrative record—that’s the end of the inquiry. The motive is irrelevant. Either there’s a public use or there isn’t.”

The judge demurred. “I’m not sure Brody is factually congruent” with the case at hand.

Kraus added that the defendants have a different view of Kelo, which, he noted, expanded the role of government and did not address blight, which is the crux of the ESDC's plan to exercise eminent domain. “We read that case as broadening the standard," he said.

Reading Kelo

Kraus pointed out that the plantiffs were basing their argument on a concurring opinion in Kelo by Justice Anthony Kennedy, who said he’d look askance at eminent domain if the process produced a favored developer.

“He didn’t muster a majority for his point of view,” Kraus noted.

“Neither did they,” the judge responded, referring to the other four justices who voted to uphold the use of eminent domain, and needed Kennedy's vote.

Kraus and other lawyers for the defendants also argued that the case belonged first in state court rather than federal court.

A second lawsuit

Jeffrey Braun (right), representing Forest City Ratner, said that “opponents and a lot of blogs” had indicated that another lawsuit was in the works, “by people who don’t live in the footprint,” challenging the adequacy of the state’s environmental review.

“Based on traffic?” asked the judge.

Brinckerhoff nodded.

“Have you ever been to that corner?” the judge continued, referring to the convergence of Atlantic, Flatbush, and Fourth avenues in Brooklyn.

Braun assented.

“Another disclosure: I’ve been to that corner,” Garaufis said dryly, to chuckles from the audience.

AY public use

Braun asserted that the project would have “significant public uses,” citing a sports arena, 2000-plus units of affordable housing, eight acres of open space, and “extensive mass transit improvements,” including redevelopment of the Vanderbilt Yard. He said there was “enough evidence to demolish the idea there’s not a public use.”

In essence, he said, the plaintiffs charge that public officials “pursued the public process for the principal purpose of benefiting a private developer. If that’s not what they’re saying, they’re asking the court to weigh public benefits versus private benefits…. I don’t think that’s something the court is entitled to do.”

Brinckerhoff responded: “Mr. Kraus referred repeatedly to the legislature... Another fundamental point—the ESDC is not the legislature. It’s one thing to defer to an elected body. It’s another to give deference to a public body that answers to the governor.”

What next

The parties then hashed out some procedural issues. “We’d like the opportunity to brief the discovery issue," Kraus told the judge. "There’s no such thing as modest or small discovery,” he said, suggesting that the plantiffs would want to pore through all ESDC documents and depose numerous board members.

The defendants must file a motion to dismiss the case by December 15. The plantiffs will have to respond by January 5, 2007. The defense will have a week to reply, and oral argument, if necessary, would be held approximately a week later.

The arguments regarding the scope for discovery will proceed even more quickly—with a submission by plaintiffs next week.

Disclosures

Garaufis at the start advised the parties that “I’m currently married to someone who at one time worked for Forest City Ratner.” His current wife, to whom he was not married at the time, worked for FCR “for a number of years, until 1994” and now works for York College.

He noted that Magistrate Judge Robert M. Levy will handle the preliminary activity in the case, providing a report and recommendations, so that if lawyers have any concern about his impartiality they can raise it at a later date.

Levy disclosed that he worked with Brinckerhoff’s partner Richard Emery at the New York Civil Liberties Union “maybe ten, 20 years ago” and that they encountered each other socially once or twice a year.

Garaufis added wryly that, when he was counsel to the Queens Borough President, he participated in a case opposing Emery, who won a landmark 1989 case at the U.S. Supreme Court abolishing the Board of Estimate. “He’s a fine lawyer,” Garaufis added.