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The ESDC's non-responsive Response to Comment document: looking at evasions about benefits, renderings, timetables, signage, blight, etc.

I've already written about major changes agreed to by the Empire State Development Corporation (ESDC) at the September 17 approval of the Modified General Project Plan (MGPP), including:
The Response to Comments document distributed by the ESDC at the September 17 board meeting is notable for non-responsive or evasive responses, including, as I've previously explained:
  • the claim that an "economic benefit analysis" equals a cost-benefit analysis
  • the claim that a construction schedule represents a "useful timetable"
  • the evasion of the question of whether affordable housing financing would be available
  • the claim that a ten-year timetable is reasonable
  • the questionable critique of the New York City Independent Budget Office's report on the Atlantic Yards arena.
The rest of the document

But the rest of the document deserves scrutiny, as well, given the ESDC's avoidance of candor.

Below are some selected responses, with my commentary. Among the highlights, the ESDC:
  • punts on whether project benefits would be binding
  • ignores the request for architectural renderings
  • claims an Arena block program required closing Fifth Avenue
  • doesn't acknowledge the likelihood of extended surface parking
  • ignores a question about the timetable for reopening the Carlton Avenue bridge
  • disregards how an extended project timetable would extend blight
  • ignores a request for renderings of signage.
Questions completely ignored

I should also point out that some questions raised in comments were completely ignored in the Response to Comments documents.

For example, some commenters
expressed concerns about the condition of subway tunnels adjoining the Atlantic Yards site. Others asked if the ESDC had compared the needed subsidy for affordable housing to the subsidy needed to build the same number of units elsewhere.

The excerpts below are from the Response to Comments document.

Net financial loss

Comment 7: The Project’s Arena will be a net financial loss for taxpayers.

Response: The MGPP does not affect the State’s financial contribution to, or the tax revenues associated with, the Arena or the fiscal benefits of the Project.

AYR: The New York City Independent Budget Office (IBO) did come to that conclusion. The ESDC avoided the questions (though it disagreed, not so convincingly, with the IBO, elsewhere in the document).

Public benefits binding?

Comment 14: A number of comments raised concerns that the public benefits of the Project, such as the affordable housing and jobs, are not legally binding.

Response: The MGPP has not changed the requirement for 2,250 units of affordable housing upon completion of the Project. Project documentation (e.g., the development agreement, lease agreements, and related contractual documents) will reflect the commitment made in the MGPP.

AYR: As noted above, the affordable housing isn't binding. It depends on subsidies.

Different plan?

Comment 16: Numerous comments were received asserting that the modified plan is substantially different from the plan that was analyzed in the FEIS and approved in 2006. These commenters made assertions relating to the redesign of the Arena; increased number of surface parking spaces; elimination of the Urban Room and B1 commercial tower; reduction in affordable housing; limited and compromised public space; and a reconfigured rail yard with reduced capacity.

Response: The MGPP does not change the number of parking spaces, the provision of an Urban Room or Building 1, the number of affordable housing units, the amount or type of publicly accessible open space, or the adequacy of the rail yard for MTA’s needs. The proposed modifications to the GPP would allow for the acquisition of property in phases, rather than one phase as detailed in the FEIS; would reflect the commitment by the Project Sponsor to assess project-generated day care enrollment and capacity as the Project progresses; and would reflect changes to the Project’s business terms. No modifications to the Design Guidelines or overall program are proposed, and the Arena, although redesigned, does comply with the Design Guidelines as required by the GPP. The Design Guidelines, which establish the framework for the design and development of the Project Site, were developed in close consultation with ESDC and DCP staff and are attached as an exhibit to the GPP. The design changes to certain buildings and the elimination of certain Project elements would affect the Arena block and, to a lesser extent, Block 1129; however, none of the proposed uses of the Project buildings on these blocks would change and the program, configuration, and uses of the proposed buildings on other blocks would not change. In addition, all buildings, including the Arena, will continue to conform to the Design Guidelines.

AYR: As I noted in July, the Design Guidelines regarding the arena are quite thin, and can't fully describe such a special-purpose building.

New site plan

Comment 17: Numerous comments called for ESDC to release a new site plan and architectural renderings in order for the public to understand and comment on the Project modifications.

Response: An updated site plan was presented at the public hearing to reflect the elimination of the privately-accessible open space on the Arena roof and also to reflect the Arena’s smaller footprint. The updated site plan, which is consistent with the Design Guidelines, has been included in the ESDC Board materials.

AYR: The answer ignores the issue of architectural renderings.

Closing Fifth Avenue

Comment 19: On September 9, 2009, FCRC released new updated renderings of the proposed Arena. With the re-orientation of the Arena, there is no justification for the closing and de-mapping of Fifth Avenue and Pacific Street between Carlton and Vanderbilt Streets.

Response: The closure of Fifth Avenue and Pacific Street remains necessary in order to develop the Arena block program. The Arena and the Urban Room will continue to occupy portions of Fifth Avenue.

AYR: What's the Arena block program? This term--previously not indexed by Google--apparently includes the urban plaza planned as a replacement for the Urban Room, but some commenters pointed out there's no reason to close the street before the B1 office tower is built. The Urban Room can't "continue" to occupy portions of Fifth Avenue until B1 is built, and there's no likelihood of that in the near future.

Smaller railyard?

Comment 23: A number of comments stated that the rail yard included in the MGPP has a smaller capacity than the one analyzed in the FEIS and questioned the effect of this change on LIRR operations.

Response: The proposed changes to the planned improvements to the Vanderbilt Yard have been the subject of detailed review by the MTA. In a staff summary dated June 22, 2009, the Long Island Rail Road determined that the revised design would support the Brooklyn shuttle service that will be implemented at the time that East Side Access service into Grand Central Terminal commences operation. Under a separate approval process, the MTA Board considered the recommendations contained in the staff summary and approved the resolution to accept the proposed rail yard modifications as well as other business terms. The planned reconfiguration also includes a number of other physical upgrades to the Yard that will improve future operations, which have not been changed in the MGPP.

AYR: As I noted in June, the initial 2005 RFP noted that the Vanderbilt Yard could store up to 72 cars and that the yard "is contemplated to provide additional storage to accommodate the 40% system-wide fleet expansion in 2009 through 2012, which would cause it to be used 24 hours a day."

Previously, a nonbinding letter of agreement between the MTA and the developer stated that FCR would produce a yard with nine tracks or an alternative configuration "that does not reduce yard/station capacity or functionality."

Extended surface parking

Comment 30: The MGPP will delay the creation of publicly accessible open space and extend the amount of time that the Project Site is occupied by surface parking.

Response: The projected completion date of 2019 described in the MGPP does not change the length of time that the interim surface parking facilities will be in place. As disclosed in the Technical Memorandum, an unanticipated delay in project completion may prolong the use of the interim parking facilities. During construction, sites not being developed will be used for construction staging and, if feasible, as interim programmed public amenity space.

AYR: The ESDC acknowledges that "an unanticipated delay in project completion" could extend interim surface parking, but it doesn't acknowledge that the delay is already anticipated in project documentation and by developer Bruce Ratner himself.

Carlton Avenue bridge

Comment 31: What is the timetable for the completion of the Carlton Avenue Bridge? Is it part of Phase I or Phase II? While it is unclear how long those phases will take, it will be much longer than two years.

Response: The proposed MGPP does not change the schedule for the reopening of the Carlton Avenue Bridge, except that it does require that the bridge be open by the time the Arena is operational. As noted in the FEIS, the closure of the Carlton Avenue Bridge would need to be undertaken consistent with a New York City Department of Transportation-approved plan for the maintenance and protection of traffic, which is currently being implemented.

AYR: The ESDC didn't answer the question about the timetable for completion, which will be at least three years, not the two years announced in previous ESDC documentation. There's nothing in the MGPP about the bridge. (Updated 2/27/10) The Modified General Project Plan stated:
In all events, the Project Sponsors will also reconstruct the Carlton Avenue Bridge so as to be functional as of the opening date of the Arena.

Comment 32: The Project has been causing blight, not reducing it, by vacating and demolishing buildings without proceeding with the Project. This blighting effect will worsen if the Project’s timetable is extended.

Response: Litigation has delayed the construction of the Project. Demolition was undertaken to clear unsafe or vacant buildings in preparation for construction of the Project. The delay in implementation of the Project has delayed the public benefits of the Project, one of which is to eliminate blight at the Project Site.

AYR: Putting aside the dubious explanation that only litigation has delayed construction, the ESDC ignores the question of how an extended timetable would leave empty lots and blight.


Comment 33: A security analysis for the Project should be conducted in coordination with NYPD. The Arena and Building 1 meet NYPD’s classification of “high risk” buildings. Disruptive security measures, such as street closings and barrier placement will need to be put in place if security is not adequately planned for.

Response: The MGPP and the Arena design have not affected security aspects of the Project. From the preliminary phases of project design, the Project Sponsor has retained security consultants to prepare a Threat and Risk Assessment (TARA) to evaluate design and operational aspects of the Project to avoid and minimize security concerns, particularly focused on the Arena and Phase I buildings. The TARA is refined and revised as plans and specifications move forward in detailed design and as new strategies or criteria arise within the state of security planning. The Project Sponsor and its security consultants have and will continue to consult and coordinate with the New York City Police Department’s Counterterrorism Bureau to receive law enforcement feedback and recommendations on further strategies on public safety and security. The Project buildings are being designed to be compatible with the traffic and pedestrian flow patterns on the streets surrounding the Arena, as analyzed in the FEIS.

AYR: As Alan Rosner, who has studied AY security, points out, the likely classification of Building 1 and the arena as high-risk buildings means that an explosive event would be a reasonable worst-case scenario and thus generate a Supplemental Environmental Impact Statement.

Supplemental EIS

Comment 34: Numerous comments were received stating that a Supplemental Environmental Impact Statement (SEIS) should be prepared to study the potential impacts of the MGPP. Among the reasons expressed were assertions relating to: changes to the Arena design that diminish mitigation described in the FEIS; newly discovered information, including security concerns; changes in background conditions; delay in the creation of open space and stormwater management measures; the provision of fewer affordable housing units than originally proposed; new impacts on LIRR service given the reduction in proposed railyard improvements; negative economic impact; and potential delay of the decking of the Vanderbilt Yards, resulting in the failure to realize the goals of connecting surrounding neighborhoods and removing its blighting influence.

Response: The Technical Memorandum presented a complete analysis of the proposed MGPP, design changes, changes to the Project’s schedule, and changes in background conditions and analysis methodologies under the CEQR Technical Manual and assessed whether the Project—as described in the MGPP—would result in any significant adverse environmental impacts not previously addressed in the FEIS. ESDC staff believes that the additional information that would be developed through an SEIS would not be useful in determining whether the MGPP should be affirmed. A supplemental EIS is not warranted under these circumstances.

AYR: While an SEIS might indeed be informative to people in the community, the ESDC was correct here; it would not have affected a pre-determined conclusion by the ESDC board.

Open Space

Comment 39: Some commenters expressed concern that with the increased background demand, as well as the elimination of the private open space on the Arena roof, and a delay of the Phase II publicly accessible open space, existing permanent public outdoor open space such as the Dean Street Playground, Brooklyn Bears Garden and South Oxford Playground, will have to accommodate unanticipated demand, and claimed that this increase in background condition and the delay in the creation of the Project’s open space was not accounted for in the open space analysis.

Response: It is anticipated that the full build-out of the Project would be completed by 2019. The open space to be developed by the Project would be constructed incrementally, as each adjacent building is completed; this has not changed from the 2006 approval. As described in the FEIS, providing new open space by the end of Phase I is not practical given that the areas that could be used as open space are needed for construction phasing, worker parking, and materials storage in order to minimize or avoid construction impacts on the surrounding neighborhood. The Technical Memorandum also analyzed conditions associated with a potential delay in construction of portions of the Project as a result of prolonged adverse economic conditions. As described in the FEIS and Technical Memorandum there would be a temporary significant adverse open space impact between the completion of Phase I and the completion of Phase II. Under a delayed build-out scenario, this temporary impact would be extended, but would continue to be addressed by the Phase II completion of the 8 acres of publicly accessible open space. Moreover, as each of the buildings is completed, a certain amount of open space would be provided in conformance with the GPP’s Design Guidelines, thereby offsetting some of this temporary open space impact. Moreover, the Technical Memorandum did consider changes in background conditions in the assessment of open space in accordance with the methodology set forth in the FEIS. It concluded that the Project would not affect the baseline conditions, as the Project’s publicly-accessible open space has not changed since the FEIS and the demand generated by the project-generated population would remain the same. There would be no new significant adverse impacts. The open space analysis accounts for all project-generated population and did not exclude those that would have used the private open spaces.
(Emphasis added)

The temporary impact wouldn't "continue to be addressed" by completion of the planned open space; rather, it would "finally be addressed."


Comment 49:
There were no renderings showing the gigantic sign (150 by 75 feet) that was in the original proposal. This signage would have a significant impact on the surrounding neighborhood. Will new renderings show a street-level perspective of the signage?

Response: As the Arena block is further designed, the proposed signage design will conform to the Design Guidelines. The MGPP does not propose any changes to the Design Guidelines.

AYR: The ESDC dodged the question. There are no renderings of the signage initially attached to the Urban Room.

Traffic costs

Comment 63: Public costs for mitigating potential traffic impacts from the Project have not been factored into the fiscal analysis for the Project.

Response: It is expected that FCRC will be responsible for a substantial portion of the traffic mitigation cost although a portion of the infrastructure cost subsidies provided by the City and State may be used for certain roadway improvements.

AYR: This sounds like some more wiggle room.

Traffic impacts

Comment 65: Under the MGPP, the construction of the Vanderbilt Yards will be delayed, resulting in all “interim” parking and construction staging and parking to the southern side of the site, which will result in changes in study area traffic patterns for indeterminate periods compared to what was previously analyzed. The effects of additional traffic and air pollution on Dean Street, Pacific Street and Flatbush Avenue should be analyzed.

Response: Delay in the construction of the rail yard is not expected. However, even if the rail yard construction were delayed, it would not affect the interim parking and construction staging uses described in the FEIS and Technical Memorandum upon completion of Phase I.

AYR: It would not affect the uses, but it would affect their duration.


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