Wednesday, August 05, 2009

ESDC resists lawyer's request for AY costs and benefits; FOIL appeal filed

Those testifying last week at the Atlantic Yards public hearing were not the only ones who want to learn how the Empire State Development Corporation (ESDC) calculates the costs and benefits from Forest City Ratner's AY plan.

Attorney George Locker, who represents rent-stabilized residents in two buildings in the Atlantic Yards footprint, has hit the wall in his Freedom of Information Law (FOIL) request for documents regarding any ESDC current cost-benefit analysis.

Last month, the ESDC denied Locker's request for such documents, saying they were exempt from disclosure. An agency may deny access to records that are inter-agency or intra-agency materials which are not statistical or factual tabulations or data, or not final agency policy or determinations. 

Appeal filed

Locker recently filed an appeal with the ESDC general counsel, arguing that the documents requested are not exempt from production.

He wrote:
By statute, ESDC must make a determination of the public benefit of the Atlantic Yards Project. New York EDPL, section 204. ESDC’s determination of public benefit is subject to judicial review. EDPL section 207.

The legal language is a bit more vague. The relevant passage from EDPL 204: The condemnor, in its determination and findings, shall specify.... the public use, benefit or purpose to be served by the proposed public project.

The relevant passage from EDPL 207: The scope of review shall be limited to whether... a public use, benefit or purpose will be served by the proposed acquisition.

During an informational meeting July 22, ESDC Senior Counsel Steve Matlin asserted that "We’re constantly looking at that analysis and updating that analysis,” a statement belied by the absence of any new numbers in the 2009 Modified General Project Plan.

Changes in three years

Locker pointed out how much the project has changed:
The Atlantic Yards Project circa 2009 bears no resemblance to the Atlantic Yards Project circa 2006. A 10-year project has become at best a 25-year project. The project may only be an arena. The area may remain undeveloped for decades. The affordable housing is in question. The rail yard component has been changed. The public open space is in question. The urban room is in question. The list goes on.

By refusing to provide documents on the subject of the public benefit of Atlantic Yards circa 2009, ESDC deprives condemnees, whom I represent, of their statutory right to know and to challenge ESDC’s determination that this project provides a public benefit, when by any reasonable standard, it does not.

Moreover, condemnees have a due process and a first amendment right to comment at ESDC hearings on Atlantic Yards circa 2009, such as the hearing currently being held. The right of condemnees to comment and thereafter to seek redress of grievances is rendered meaningless when, as now, ESDC withholds key documents on the cost and public benefit of the Atlantic Yards Project circa 2009.


Duty to the public

He argued that the ESDC's duty to the public trumps any political allegiance it has to a developer or elected official:
As an agency created by the Legislature to implement remedial legislation, ESDC has a statutory duty to the public that is the beneficiary of the UDC Act, and a statutory duty to condemnees in particular, because the UDC Act says so. These are not optional duties. As a legal matter, these mandates take precedence over whatever political allegiance ESDC may have with any particular project developer or elected official.

As the implementer of the UDC Act, ESDC has a public duty to be honest and forthcoming. That this duty may clash with ESDC’s policies and practices to the contrary does not make it less of a duty. The suppression by ESDC of fundamental information on the cost and benefit of Atlantic Yards circa 2009 is repugnant to the lawful and honest implementation of urban development and the condemnation process.

If the documents do not exist, I urge ESDC to so state.


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