Second look at judge's ruling that "there are neither allegations nor proof... that the property will not be timely improved"
Solomon rejected charges by tenants in two AY footprint buildings that that the Empire State Development Corporation (ESDC) is violating a provision of state law that requires disposition of properties within a decade and should hold another hearing because the project has changed considerably.
On the latter issue, attorney George Locker had argued that, while the project, when approved in December 2006, was supposed to take a decade, the State Funding Agreement gives a long leash: there's no start date for Phase 1, and that the developer has 12 years from the delivery of property to complete that phase without penalty, and there’s no timetable for Phase 2, which would include 11 of 16 towers.
“The bulk of the Atlantic Yards project, as far as the operative contracts are concerned, does not exist,” Locker argued in court.
Solomon, despite expressing surprise in the court hearing that eminent domain had not commenced despite “all of this publicity” about the project, wrote:
There simply are neither allegations nor proof in petitioners' papers that the project is or will be abandoned, that the property will not be timely improved or that it is intended to be conveyed to a private user without giving the fee owner a right of first refusal.
“Reasonable” efforts to proceed
In court, ESDC attorney Philip Karmel had said, "The foundation stone is the funding agreement,” he said, adding that the claim that there is no deadline “is a complete and total mischaracterization.” Rather, the developer is required to use “commercially reasonable efforts” to move forward.
What does that mean?
“It means you have to try your hardest,” he said.
As I pointed out last month, the developer at an investment conference claimed that "we control the pace."
In what language does "we control the pace" mean "try your hardest"?