Thursday, April 19, 2007

Delay demolitions? Not in public interest, say ESDC, FCR

The Empire State Development Corporation (ESDC) and developer Forest City Ratner (FCR) have responded forcefully to the lawsuit trying to invalidate the environmental review for the Atlantic Yards project.

In doing so, they argue against the temporary restraining order (TRO) sought by Atlantic Yards opponents and critics to block planned demolitions of some 15 properties owned by the developer, saying that it would not be in the public interest and that the chances of getting a preliminary injunction in court next month are low.

A decision on the TRO is expected by Friday. The preliminary papers filed this week will be followed up by more extensive legal arguments from both sides.

An affirmation filed by Philip Karmel, an attorney representing the ESDC, points out that the ESDC determined that Atlantic Yards “would achieve significant public purposes;” thus, the “petitioners’ assertion that the public will not be harmed by any delay in the Project is self-serving.”

FCR attorney Jeffrey Braun states in another document that “the public benefits include the elimination of blight, the redevelopment of a largely derelict 22-acre site, the return to Brooklyn of a major league sports franchise…, the creation of new housing (including 2250 units of affordable housing), environmental remediation…, the construction of extensive new mass transit improvements, the creation of thousands of jobs, and the generation of billions of dollars in new tax revenues.”

The impact of vacant lots

The crux of the matter, beyond the cost of delay alleged by the developer, is the impact of vacant lots cleared for development and "interim surface parking" that could last for decades.

Karmel argues that plaintiffs have not established that they would be irreparably harmed by limited demolition work, as the buildings are currently vacant: “Petitioners have not demonstrated that they would suffer any legally cognizable harm from living next to a vacant lot rather than a vacant building.”

Braun makes a similar point, noting that Forest City had gained required permits and approvals to demolish buildings it owns. The request is “based on the idea that they have some protectable interest in the current character of these properties that they neither own nor occupy” and that Forest City might rehabilitate the buildings if the court sets aside the project approvals. “These suggestions are absurd.”

Even if the case succeeds, Braun notes, the developer could still demolish the buildings at issue and build more profitable new structures.

For the petitioners, civic and neighborhood groups organized by Develop Don’t Destroy Brooklyn (DDDB), the argument is about “facts on the ground.” Attorney Jeff Baker argues, “It would be inequitable to permit FCRC to turn a substantial portion of the neighborhood at issue into vacant lots before the Court has had the opportunity to consider fully the merits of petitioners’ motion.”

Citing an affidavit from City Council Member Letitia James, Baker points out, “demolition of the buildings at issue would have a severely intimidating impact on residents who live adjacent to or near the demolished buildings,” some of whom are in court challenging the project.

Whose delay?

“It would be illogical and unfair to allow FCRC to demolish buildings before the remanded environmental review is completed, just because of a “window” of opportunity between the end of the unlawfully conducted review” and the reopening of the review after a judge’s decision, Baker argues.

The defense blames the petitioners for asking the court to hurry up after they moved slowly. “They waited four months to file this proceeding and now seek extraordinary relief prior to proper briefing,” Karmel states.

Similarly, Braun argues, “If anyone has been dilatory, it is petitioners, who for months have trumpeted their intention to seek an injunction halting demolition but did not apply for a T.R.O. until eight weeks after FCRC’s public announcement of the work’s commencement

Posting a bond

Braun suggests that the petitioners have no case, noting that a similar injunction, brought by parks advocates against the destruction of trees for the new Yankee Stadium, was denied because of the costs of delay.

He attempts to turn the tables, saying that the wealthy people are the petitioners: "Significantly, the potential economic harm to FCRC of injunctive relief is so substantial that petitioners’ papers devote considerable space to a specious effort to persuade the Court that, notwithstanding the fact that petitioners for the most part are associations of homeowners and other residents of prosperous Brooklyn neighborhoods, petitioners should be allowed to avoid financial responsibility for the economic havoc that they seek to impose upon FCRC by being excused form any requirement that they post an injunction bond in an amount sufficient to protect FCRC from its potential losses."

The petitioners had argued that the court "should not require petitioners to post more than a nominal undertaking,” given that judges have discretion to consider the financial means of the parties and the balance between financial resources and public purpose. A large bond requirement would render moot a TRO or preliminary injunction.

Responding to the charges

Braun also takes aim at some major components of the lawsuit filed two weeks ago. While the petitioners argue that the Public Authorities Control Board (PACB) failed to make written environmental findings, the defense states that such findings are not required.

As for the charge that the “community forums” were actually public hearings, and thus the public comment period should have been extended, Braun calls them “good faith efforts to facilitate public comments” but does not specifically explain why they differ from the public hearing.

He argues that the petitioners did not point out an argument that was omitted because of the short window of opportunity to comment.

The petitioners argue that a privately-owned arena can’t be a “civic project,” but Braun points out that the ESDC “has sponsored the construction of numerous sports stadiums and arenas in various locations around the state.”

As for the “purported deficiencies” in the FEIS, Braun points out that the “standard for judicial review of an FEIS is reasonableness” and that courts shouldn’t substitute their judgment for an agency.

Ward Bakery

As for the Ward Bread Bakery, which preservationists would like to see retained, the State Historic Preservation Office, notes Forest City Ratner executive Jim Stuckey, concurred “that there are no prudent and feasible alternatives to demolition” of the building.

“Historic” CBA?

Stuckey claims, as he did in February 2006, that the “historic” Community Benefits Agreement “may set a standard for future projects in the City.” That’s doubtful, as shown by the CBA being discussed in West Harlem regarding Columbia University’s expansion. (And there are further questions about the LDC established for that project.)

The "intended beneficiaries of the CBA" are "the least privileged residents of Brooklyn," according to Stuckey, which seems to omit certain beneficiaries, including the McKissack Group, cited by Stuckey as the "nation's oldest minority-owned professional design and construction firm," hired to work on the MTA's Vanderbilt Yard.

Stuckey claims that all of the CBA commitments—including job training, affordable housing, and minority contracting, “have teeth in the form of substantial legally enforceable penalties for a failure by FCRC to fulfill its obligations.

Actually, the CBA (XIII. ENFORCEMENT) sets up a 60-day right to cure and mediation, before the coalition members may seek binding arbitration or judicial remedies. If they go to court, seeking to require the developer to comply, they must pay their own fees.

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