Friday, April 06, 2007

Lawsuit over environmental review would require ESDC, PACB, and MTA to take another look

After 26 co-petitioners—some broad-based organizations, some block associations—filed suit yesterday in State Supreme Court) to annul the Final Environmental Impact Statement (FEIS) and the approval of Forest City Ratner's Atlantic Yards project, the question is: does it have a shot?

Lawsuits that allege flaws in environmental reviews are generally tough going. Still, said Candace Carponter (right), co-chair of petitioner Council of Brooklyn Neighborhoods (CBN) and legal chair of fellow petitioner Develop Don’t Destroy Brooklyn (DDDB), “This isn’t a sole-issue challenge. We’re saying they forgot to take a hard look at 13 issues.” Among them: a failure to examine terrorist impacts and a finding of blight "in one of the hottest real estate markets in New York City."
(Photos by Jonathan Barkey)

The main defendant is the Empire State Development Corporation (ESDC), though the Public Authorities Control Board (PACB) and Metropolitan Transportation Authority (MTA) are also named. A successful lawsuit would not block the project—as the pending eminent domain case in federal court, if successful, would do—but rather send it back to the agencies for a do-over.

“Do we think it will change the project once it goes back to the ESDC?” Carponter said. “That’s what we’re hopeful for.” She observed, "It is striking to note that the ESDC did not demand or effectuate even one significant change or modification of the project Forest City Ratner proposed at the start of the environmental review process."

“This is a different PACB than it was last December,” added attorney Adam Perlmutter.

Well, maybe. The point was that new Governor Eliot Spitzer now holds one of the three PACB votes, and Spitzer in part controls the ESDC, since he can make new appointees. (There are several holdovers, however.) Spitzer has pledged a new reform government but has generally supported Atlantic Yards and did not take the opportunity, after his election, to urge the PACB to wait to vote on Atlantic Yards.

His ESDC has shown more openness in some areas than its predecessor, for example inviting public comment at meetings. Whether that will extend to a “hard look” at Atlantic Yards is another question.

Done deal?

The argument behind this lawsuit, much like that in the eminent domain case filed by a separate group of renters and property owners, is that the project was a done deal from the start. “Each elected official who has supported his project has their head in the sand,” declared City Council Member Letitia James (right), who signed an affidavit supporting the suit but is not listed as a petititioner. “No one is stepping up to the plate and taking responsibility. That’s why I staked my political career on this—because it’s wrong.”

James and others spoke at a press conference held at the tiny Brooklyn Bear’s Garden at the corner of Pacific Street and Flatbush Avenue, a once-desolate space reclaimed by community gardeners, now bordering some extremely valuable real estate. A 250-foot tower is planned adjacent to the garden, replacing the low-slung P.C. Richard/Modell’s retail complex, and the 511-foot flagship Miss Brooklyn tower would be just across Flatbush.

The garden was jammed with representatives of organizations supporting the lawsuit and members of the press; indeed, there was so little space that some of the garden planting beds, threatened, according to the lawsuit, by wind and shadows, faced a formidable Atlantic Yards-related hazard: feet.

Showdown in court

The developer has announced plans to demolish several buildings within the project footprint, and has commenced asbestos abatement on them. Actual demolition could begin in less than two weeks.

Meanwhile, the petitioners in the lawsuit have asked for a preliminary injunction—not a more immediate temporary restraining order (TRO)—to block the demolitions. Unless a TRO is issued, some demolitions may proceed before a hearing. (Keep watch to see if one is requested.)

Yesterday, Justice Joan Madden asked about the timing issues. The defendants said it would be an unfair delay to issue a preliminary injunction, because the arena is planned to be open by 2009. Jeff Baker, lawyer for the petitioners, argued that the pending case in federal court, which would block the whole project if successful, represents, in effect, a delay on the project, so an injunction in state court would not further stall the project.

Legal papers from the defendants are due April 25; the memos in response are due May 2, and an oral argument regarding the temporary injunction will be May 3.

“Petitioners face the prospect of a pyrrhic victory,” argues the memorandum in support of the preliminary injunction. “If they succeed on any of their claims, the Project will be stayed pending further review and, quite possibly, prevented from ever going forward as currently planned.” However, Forest City Ratner by then will have demolished buildings with no alternative plan if Atlantic Yards does not proceed as currently planned.

And the demolitions, the memorandum argues, citing James’s affidavit, lead to “an aura of inevitability which would discourage further public challenges to the Project.”

“Petitioners have a strong probability of succeeding on the merits of at least some, if not all of their claims,” the memorandum argues. The strongest claims, apparently, are that the PACB failed to make the written environmental findings statement required by law and that the ESDC failed to provide the 30-day minimum comment period required after a public hearing.

Posting a bond

Then comes a dicey question: how much should this community coalition be required to put up as an undertaking, a bond that, if the plaintiffs fail in their suit, be required to pay to the defendants as damages for the delay? This is a $4 billion project, and the developer obviously wants to move forward as quickly as possible; on the other hand, other court actions may block the case, and representatives of parent company Forest City Enterprises have already said the project might take 15 years, not ten years.

“[T]his court should not require petitioners to post more than a nominal undertaking,” the memorandum argues, noting that judges have discretion to consider the financial means of the parties and the balance between financial resources and public purpose. In other words, should the judge agree with the defendants’ likely request that the plaintiffs post a significant bond, the case could be moot.

Plaintiffs

The plaintiffs include DDDB, the 41-member coalition CBN, New York Public Interest Research Group (NYPIRG), Sierra Club, Central Brooklyn Independent Democrats (CBID), Fort Greene Association, Society for Clinton Hill, Boerum Hill Association, Crown Heights North Association, Park Slope Neighbors, Fort Greene Park Conservancy, and Friends and Residents of Greater Gowanus, as well as 15 other community organizations and block associations.

Several CBN members are also members of the BrooklynSpeaks coalition, which has scheduled a rally on April 15 to block the demolition of the Ward Bakery, pointing to the potential for long-lingering surface parking lots. BrooklynSpeaks, however, has not joined the lawsuit, nor has its most prominent component, the Municipal Art Society.

“I believe they don’t want to be seen as adversarial,” Carponter said. “We don’t believe it’s adversarial. We’re protecting the community.”

Well, protecting the community, as James’s statements suggested, can sound adversarial. It may be a question of tactics. BrooklynSpeaks has called for the establishment of a local development corporation to oversee the project; clearly, it would be difficult to negotiate with government agencies and to push politically for changes while enmeshed in a lawsuit.

On the other hand, the decision not to join the lawsuit means that BrooklynSpeaks has missed out on the chance, for example, to legally challenge the ESDC’s limited provision for public input on the project as well as the demolition that they're protesting.

Forest City response

In today’s Metro, Forest City Ratner responded to the suit:
"Opponents are unfortunately continuing a strategy of legal maneuvering rather than constructive dialogue," Bruce Bender, Ratner's executive vice president, said in a statement. "For nearly four years, we participated in an exhaustive public review process, involving hundreds of meetings with local leaders and officials."

Carponter, however, contended that there’s been no public review: "They held three public hearings, two of which were called ‘community forums,' and one in which half the people lined up couldn't get through the front door.”

CBA coalition response

The Atlantic Yards Community Benefits Agreement (CBA) Coalition, the eight groups that signed the CBA, offered a statement from Delia Hunley-Adossa, chair of the CBA Executive Committee.

"Another delay in the Atlantic Yards project means delaying economic opportunity for many in the Brooklyn community," she said. "Those opposing the project can afford delays, but what of the over 2,000 who are clamoring for jobs, the hundreds of minority and women-owned contractors who've showed up at events looking for contracts and the thousands seeking an affordable place to live? The Brooklyn community needs the economic boost."

Hunley-Adossa, however, has said nothing about statements by project landscape architect Laurie Olin and Forest City Enterprises executive Chuck Ratner about delays in the project--which would delay the housing and jobs promised.

Hearing or forum?

The second cause of action charges that the ESDC violated legal procedural requirements by failing to follow a minimum public comment period and failing to meaningfully consult with the Citizen Advisory Committee (CAC).

A public hearing was scheduled 8/23/06 and follow-up community forums were held on 9/12/05 and 9/18/06. Though organizations now part of the suit argued that the comment period should close 30 days after the final community forum, the ESDC argued that the forums were not public hearings, and closed the comment period 9/29/06.

However, as the suit points out, “ESDC in fact administered and treated” the community forums “exactly the same as the public hearing.” Indeed, the hearing officer at one point referred to the forum as a “public hearing” before he was corrected by ESDC staff. (Having attended all three, I can say that there was no material difference; arguably, the less-attended community forums were more appropriately run; the hearing officer rigorously enforced the three-minute time limit on testimony, unlike at the public hearing.)

"Petitioners respectfully assert that the Court should recognize that if something looks like a duck, walks like a duck, and quacks like a duck--it's a duck. Thus, if an event designated a "community forum" is identical to a public hearing, then it is a public hearing," the suit states. Had it been appropriately designated, the community would have had nearly three weeks to add comments on the environmental review.

The lawsuit also charges that the 8/23/06 public hearing was fatally flawed because many members of the public who wanted to comment were barred from the Klitgord Auditorium of New York City Technical College. “Upon information and belief,” the suit charges, representatives of developer Forest City Ratner, the construction unions, and Community Benefits Agreement signatories ACORN and Build “controlled access to the auditorium” and massed their supporters, effectively monopolizing the room.

What's a CAC?

The ESDC is required to create CACs to advise it and serve as a liaison with the community. That began around 4/16/06, when letters were sent by ESDC chairman Charles Gargano to the chairs of Community Boards 2, 6, and 8. The CAC membership consisted of representatives of each of those boards, the ESDC, New York City, and the Brooklyn Borough president.

The suit points out that the latter three supported the project and thus rendered the CAC impotent. Indeed, the community members of the CAC asked for more time to respond to the Draft Environmental Impact Statement, as well as funds for expert review, and were denied.

Civic project?

The lawsuit calls for the court to declare that “a privately leased, for-profit sports arena, such as Forest City Ratner's (FCR) arena, is not a project that the ESDC may lawfully undertake within its enabling legislation.”

“Although FCRC has actively encouraged a public impression that the Barclays Center may be available to host local high school and college events, ESDC’s own estimates of the revenue recovery from arena rentals to civic groups indicates that it will not be affordable to those institutions,” the suit states. It cites the KPMG report to ESDC that observes that the cost of rental, $100,000, would have to be lowered to accommodate such events. (Also, the arena would be made available to civic groups at low cost for at least ten events a year.)

“The Barclays Center sports arena is a private, profit-making enterprise, like Madison Square Garden, and is not the type of facility envisioned by the legislature when it sought to support civic projects that promote the public health, welfare and safety of unemployed and impoverished New Yorkers.”

A “civic project” is defined under state law as a “project or that portion of a multi-purpose project designed and intended for the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes.”

There’s little precedent. The lawsuit states, “We have no reported cases addressing the meaning of the term ‘civic project,'” but contends that the plain language of the statute "does not encompass a commercial sports arena leased by the state to a private business enterprise."

Blight?

The lawsuit charges that the ESDC ignored extensive, detailed public comments refuting the blight study. It charges that the ESDC manipulated and twisted crime statistics to overstate crime rates in the project site; that the ESDC failed to demonstrate a blighting effect from the rail yards on the blocks to its south; and noted that the City of New York never added the blocks below the MTA’s Vanderbilt Yard to the Atlantic Terminal Urban Renewal Area. Thus, the outline of the 22-acre project was determined by the developer, not blight.

In an affidavit, and at the press conference yesterday, veteran city planner Ron Shiffman (right), co-founder of the Pratt Institute Center for Community and Environmental Development, backed up those charges. “It seems to me the blight report is flawed from beginning to end,” said Shiffman, also an advisory board member of DDDB.

He noted that the neighborhood had begun to regenerate, citing four recent conversions of manufacturing facilities to housing and suggesting that Forest City Ratner “is responsible for the ‘developer’s blight’ that is apparent in the area.” Most blight cited in the ESDC’s blight report is related to the MTA-owned railyards but could have been reduced had the MTA maintained sidewalks.

Shiffman also took aim at the ESDC's claim that lots that are built to 60 percent or less of their allowable Floor Area Ratio (FAR) under current zoning are blighted. "Under this standard, large sections of Brooklyn would be considered blighted, as they are also not built out to their full capacity under existing zoning," he stated, citing neighborhoods like Clinton Hill, Carroll Gardens, and Park Slope.

The reason? The city's 1961 zoning resolution "envisioned that large swaths of brownstone Brooklyn would be demolished to make way for 'super blocks' and 'towers in a park' designs." However, instead, those existing properties "eventually became the signature for the revitalization of Brooklyn."

Bad planning

“The other [flaw] is the planning process itself,” Shiffman said, saying that, rather than the city and state backing the Atlantic Yards project from the start, they should have set criteria for disposition of public land, involved the public, and then issued a request for proposals for the property.

“We do need to rethink density,” said Shiffman, an acknowledgement that the area near the Atlantic Terminal transit hub could accommodate larger buildings. “But the carrying capacity” of the neighborhood, he said, is insufficient to accommodate the increased traffic; the 6430 residential units would house a population too large for day care, recreational, and education facilities.

"Even as a professional dedicated to inclusive housing policies, I cannot recommend the Project's affordable housing component," Shiffman said, citing the out-fo-scale development and the possibility that subsidies could be transferred to other developments that could come on line earlier or support more low-income households.

“Unlike Riverside South or Battery Park City in Manhattan, whose heights are slightly lower, there is no river frontage that would compensate for the lack of light, air, or open terrain caused by the oversized development and the shadows it still will cast,” Shiffman said. The project, he warned, “would be the Brooklyn equivalent of failed over-dense developments like the Pruitt-Igoe [public housing] developments in St. Louis,” since demolished.

"The huge density of the proposed development would bring more havoc to drivers and transit riders in downtown Brooklyn, adversely impacting dozens of intersections," said Gene Russianoff, senior attorney for the New York Public Interest Research Group and its Straphangers Campaign. "The environmental impact statement offers ridiculous suggestions, such as asking transit officials to put more buses on gridlocked streets, where they will just add to traffic; no suggestions for giving buses priority are made. To paraphrase my daughters, the EIS is lame."

Terrorism review?

When commenters brought up questions of security, the ESDC previously responded:
Emergency scenarios such as a large-scale terrorist attack similar to the World Trade Center attack, a biological or chemical attack, or a bomb are not considered a reasonable worst-case scenario and are therefore outside of the scope of the EIS.

The suit charges that that’s a violation of state law. The summary: “With a glass-walled arena with 225 publicly scheduled events per year, surrounded by glass skyscrapers, over a major transportation hub, directly adjacent to Brooklyn’s busies traffic intersection, Atlantic Yards has a unique design, use, location and density requiring a security/terrorism study. ESDC purposefully and inexplicably ignored one of the paramount issues facing New York City since 2001–the threat of terrorism and the need to incorporate security measures into the design of major developments.”

The ESDC’s position, the plaintiffs contend, “runs contrary to statements by public officials, recent case law and common sense.” Norman Groner, an expert on security planning and a professor at the John Jay College of Criminal Justice of the City University of New York, says in an affidavit that the project would present an attractive target for terrorists, calling the omission of the review “inexcusable.”

Groner, who served as an expert advisor to the National Institute of Standards and Technology investigation of building evacuations during the 9/11 World Trade Center attacks, states that the environmental review “should have considered alternative configurations to limit the vulnerability of the arena as well as alternative locations in Brooklyn.” Moreover, the large amount of steel and glass in the arena and towers should have triggered a “blast analysis” that included “different scenarios for blast resistant window treatments.”

Groner says that the state should have analyzed the performance of roadways in emergency evacuation, and should have taken guidance from several governmentally-produced security-related documents, most issued after the 9/11 attacks.

Supplemental EIS?

The suit also charges that the ESDC failed to properly identify and consider relevant issues in the Draft EIS and, rather than mentioning them in the Final EIS, should have issued a Supplemental Environmental Impact Statement (SEIS) to allow for public comment. This includes ESDC’s “belated recognition that Coney Island could be an alternative location for the arena;” the ESDC did finally respond to contentions about Coney, but dismissed them.

Another relevant issue, the suit contends, is that the ESDC conducted a study of the impact of wind without including it in the FEIS. Indeed, that study was made available only upon request to the press and others. The wind created by new towers would not have a significant adverse impact, the state says; however, as noted in an affidavit from Brooklyn Bear’s Garden Coordinator Jon Crow, the study acknowledges that for approximately one day a week, it would be unsuitable for gardening.

Hard look?

The suit charges that the ESDC and MTA each failed to take what the law requires, a “hard look,” at the environmental impacts. Among the charges: the agencies understated the expected project build-out time by at least five years in order to artificially minimize the adverse impacts associated with the construction; falsely stating the amount of open space created by the Project and qualifying inaccessible areas as open space; relying on flawed analyses of traffic and mass transit; failing to adequately consider the public costs associated with the project; failing to consider the impact of increased traffic on emergency vehicles; understating the impact of shadows; understating the impact of wind and construction-related air pollution; accepting excessive noise levels without exploring alternatives.

The timing issue is important. The project is officially supposed to take ten years, but Olin has suggested 20 years, supporter Kathryn Wylde has said at least 15 years, and executive Chuck Ratner has also said 15 years—and then backed off. A delay in the project would also delay some of the promised benefits, including public open space, all of which would be in Phase 2, scheduled between 2010-16, as well as affordable housing, most of which would be in Phase 2.

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