Wednesday, July 18, 2007

Waiting for Madden: judge indicates AY decision won't come 'til September

While pre-construction demolition and other activities continue in the Atlantic Yards footprint, a decision in the state lawsuit challenging the environmental review of the project probably won't come until September, the judge has indicated.

A memo to attorneys released yesterday indicated that Supreme Court Justice Joan A. Madden has changed the case from "Standard" to "Complex" and now has 120 days from the date of the oral argument, May 3, to make a decision.

Any interpretation of that memo is speculation, but it suggests that, while lawsuits challenging environmental reviews routinely fail, this one poses particular challenges. Indeed, Madden is faced with an almost absurdly voluminous record: 20,000-plus pages.

Some skepticism

During oral argument regarding the case, Develop Don't Destroy Brooklyn et al. v. Empire State Development Corporation et al., Madden expressed skepticism regarding the state's assertions of "blight" and whether the project is actually a "civic project."

A successful suit might block the project entirely--even as Forest City Ratner has sunk significant sums into pre-construction demolition and railyard work--or require a revision of the environmental review, which could delay and change the project.

Immersed in AY

Madden is not unfamiliar with other Atlantic Yards controversies. Indeed, when Assemblyman Jim Brennan and State Senator Velmanette Montgomery sued to get access to Forest City Ratner's business plan for Atlantic Yards, Madden was the judge assigned to the case.

Brennan last October filed a Freedom of Information Law request with the Empire State Development Corporation (ESDC). The Pataki administration initially denied the request; the new Spitzer administration provided some data. The lawsuit was filed March 1, well after the approvals of the project by the ESDC and the Public Authorities Control Board last December.

After a hearing before Madden, Forest City Ratner voluntarily agreed to turn over documents to the ESDC, which then turned them and other documents over to Brennan. Madden never issued a ruling.

Also pending

In the other major pending lawsuit, Goldstein v. Pataki, project opponents last month received a setback as District Judge Nicholas J. Garaufis on June 6 dismissed it for failure to state a claim, setting up a challenging circuit court appeal. Legal briefs will be filed over the next few months.

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