Tuesday, February 19, 2008

Is the CBA part of the public interest? FCR says yes, but it's barely part of ESDC findings

Is the Atlantic Yards Community Benefits Agreement (CBA) something the courts should take into account to speed the appeal of the case challenging the AY environmental review?

A Forest City Ratner attorney says yes, but an attorney for the petitioners points out that the CBA was not part of the Empire State Development Corporation's (ESDC) decisionmaking process.

FCR attorney Jeffrey Braun, in an 1/25/08 affirmation, contends:
In addition to the foregoing public benefits, the project will be a powerful engine of economic growth.... Furthermore, pursuant to an innovative Community Benefits Agreement (Exhibit D hereto), the FCRC affiliates that sponsor the project are contractually bound to provide a wide array of far-reaching benefits to the historically most disadvantaged segments of Brooklyn's communities, including (but not limited to) contracting and employment opportunities, job training for permanent employment and job placement services, and affordable housing preferences. For example, the Agreement obligates FCRC's affiliates to "use good faith efforts" to cause at least 35% of the construction workers in the project to be members of minorities and at least 10% to be women, with 35% of each category to be "journey level" workers (§ IV(B)).


Not a basis?

Jeffrey Baker, attorney for the petitioners, responds in a 1/31/08 affirmation:
Finally, there is no grand or pressing public interest that warrants severely curtailing Appellants' rights to proceed in a deliberate manner on appeal. Mr. Braun's reference to the Community Benefts Agreement (CBA) is completely inappropriate. The CBA was not a basis for determination by either ESDC or MTA in the approval of the project. The only reference to the CBA is ESDC's findings for the project in a single reference that FCRC has provided additional relocation assistance to tenants displaced by the taking of their homes. ESDC does not acknowledge or rely on the alleged promises purportedly made in the CBA.

The relocation plan is on page 19 of the General Project Plan (GPP), which does mention the CBA. Actually, the GPP (p. 18) also mentions a health care facility and an intergenerational facility, though it doesn't say that they are part of the CBA. While the affordable housing is not described as part of the CBA, such below-market housing is declared by the ESDC to be one of the public purposes for the project. There's no mention, however, of hiring and contracting.

ESDC: CBA is separate

The ESDC's Final Environmental Impact Statement (FEIS) generally ignores the CBA. In the Response to Comments section (1-49) of the FEIS, several people comment pro and con about the CBA.

The ESDC's response offers some support for the petitioners' case:
The CBA is an agreement between the project sponsors and certain community-based organizations and is separate from the GPP [General Project Plan]. The DEIS included elements of the CBA to the extent that they relate to the program elements that are part of the GPP.

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