So, the case will ultimately be heard on its merits, either in federal court (if the plaintiffs prevail on Judge Nicholas Garaufis to override Levy's recommendation) or in state court.
Then a judge will have to evaluate the curious claim, made by lawyers for Forest City Ratner in legal papers and in oral argument, that the developer did not initiate the Atlantic Yards project.
During the 2/7/07 federal court hearing in the eminent domain case challenging the project, Forest City Ratner attorney Jeffrey Braun stated, "Certainly, one of the plaintiffs' contentions is that the fact that their complaint alleges that Forest City Ratner people initiated this project, all normal presumptions on public use issues are thrown out the window.
Now, we deny as a factual matter that that is what happened, but I think we have to accept it for purposes of the present motion."
As stated in the developer's memorandum of law supporting a motion to dismiss the case (p. 22, or p. 28 of PDF):
The complaint seeks to bolster plaintiffs' claims of favoritism by asserting that Forest City Ratner defendants initiated the project. However, even were the assertion to be true (which it is not), standing by itself it would not be enough to create a viable claim.
A narrow legalism?
The evidence suggests otherwise, unless the lawyers are narrowly defining the project initiation as Brooklyn Borough President Marty Markowitz's exhortation to Bruce Ratner to buy the basketball Nets and move them to Brooklyn.
The issue is important, because, if the plaintiffs can't show that the developer initiated the project, their case crumbles. (They have to prove much more than that--that the benefits of the project are "pretextual" and dwarfed by the benefits to the developer.)
Markowitz's entreaties, as the New Yorker's Rebecca Mead reported in 2005, merely set the stage for the 16 towers beyond the arena:
“He called every two to three weeks,” Ratner says. “I would make up little white lies, and I would wait a day or two to call him back. I am sure I said to my assistant, ‘Oh, my God, it’s Marty.’” Eventually, Ratner was convinced of the wisdom of the notion, but not before augmenting the Borough President’s ambitions with his own calculations—“the recognition that there is an opportunity to do what my business is, which is real estate and large-scale economic development.”
Thus the arena imagined by Markowitz became only part of a much larger development, which will stretch six blocks along the border of Prospect Heights.
"Not economically viable"
The day after the project was announced, the 12/11/03 New York Times quoted developer Bruce Ratner:
"This started with basketball, a Brooklyn sport," Mr. Ratner said. "This was always the site. But it became clear it was not economically viable without a real estate component. And Frank Gehry was the perfect architect for this site."
New York magazine's Chris Smith, in his Atlantic Yards cover story last August, quoted Deputy Mayor Dan Doctoroff as crediting the plan to Ratner:
“We did not require a lot of convincing as to the conceptual merits of Bruce’s plan,” Doctoroff says. “We’ve been involved in it from almost day one. I was advising Bruce on his purchase of the Nets. Clearly, he was going to use it as a centerpiece for a significant development over the yards. The mayor was always very intrigued by the design. He’s in favor of big statements. What you’ve got now is an opportunity to have an independent economy in Brooklyn.”
Initiated by developer
Last March, Winston Von Engel of the Department of City Planning's Brooklyn Office, said at a hearing of Markowitz's Atlantic Yards committee that it certainly wasn't the city's idea. I reported an exchange between Kate Suisman, aide to Council Member Letitia James, and Von Engel:
"Just to be clear, this was a project that was initiated by the developer--is that right?" asked Suisman, whose boss is the leading public official opposed to Forest City Ratner's project.
"That's our understanding," Von Engel replied. (Well, Markowitz approached developer Bruce Ratner with the idea of bringing a basketball team to Brooklyn, and the developer recognized that a standalone arena wouldn't make economic sense.)
"Had the city been looking at making use of the land?" Suisman pressed on politely.
"Not that I can recall," Von Engel said.