Friday, October 09, 2009

Beyond the eminent domain case, other lawsuits looming against ESDC and MTA, but can they have any impact?

Many people believe that the pending eminent domain case, to be heard in the Court of Appeals on October 14 after being rejected at the trial court and appellate court levels, is the only piece of litigation that can stop Atlantic Yards from going forward.

That may be so, and that case has to be considered an uphill battle for the plaintiffs. Both the Empire State Development Corporation (ESDC) and developer Forest City Ratner have expressed confidence about success in the case.

Still, the willingness of the Court of Appeals to accept a case unanimously dismissed at the appellate division suggests that the court recognizes it needs to at least clarify whether the state constitution restricts eminent domain more than does the federal constitution. (On Monday, I'll have a preview of the legal arguments.)

And, if the court upholds the defendants, the ESDC apparently intends to pursue eminent domain even as other cases proceed.

More litigation

Meanwhile, one other appeal is still in play and three other cases should be filed soon, both by Develop Don't Destroy Brooklyn (and allies) and the BrooklynSpeaks coalition. News of the latter's suit surfaced yesterday.

While these lawsuits may not be able to stop the project formally, they might raise sufficient questions to affect the financing of the arena. More likely, they would at least shine some light on the process behind some questionable decisions by the ESDC and the Metropolitan Transportation Authority (MTA).

The lingering EIS case

The coalition that challenged the project's environmental review, led by Develop Don't Destroy Brooklyn (DDDB), has asked the Court of Appeals to hear an appeal. A decision is expected later this month.

The appeal was filed after the case was dismissed at the trial and appellate court levels. While the latter decision was unanimous, Justice James Catterson filed a concurrence that read like a dissent, giving some ammunition to the appellants.

New cases from DDDB

DDDB is still raising money, not only for the above two cases, but for two additional cases, likely to be filed in partnership with other organizations.

"In the next few weeks we plan on bringing 2 or 3 new lawsuits against Atlantic Yards to help stop it once and for all," DDDB said in a handout Sunday at the Atlantic Antic. Hence the fifth annual Walk Don't Destroy walkathon on October 17.

One case will challenge the ESDC's unwillingness to issue a Supplemental Environmental Impact Statement (SEIS). The ESDC has said an SEIS wasn't necessary.

The other case will challenge the Metropolitan Transportation Authority's decision in June to revise the Vanderbilt Yard deal on terms more favorable to Forest City Ratner.

The suits should be filed within the next week.

Possible impact?

But can the suits slow or stop the project and/or the pursuit of eminent domain?

"First, we will file these suits because we believe the involved agencies have violated the law," DDDB spokesman Daniel Goldstein said. "The involved agencies should not allow the project to go forward until these serious issues are resolved. Where applicable we will be seeking an injunction on the project."

"As to whether the suits could slow or stop the project, or slow or stop the ESDC from stealing properties by eminent domain, we'll have to see about that," he said. "Our goal is to hold these agencies accountable and to win these suits."

Brooklyn Law School Professor David Reiss was more cautious. Regarding the SEIS suit, he told me, "That certainly can result in delay if the court finds that an SEIS is necessary, but it’s really procedural, and I can’t imagine that the lawsuit can stop the project for good.”

What about the MTA lawsuit? "Generally, courts give broad discretion to the judgments of the board of an entity like the MTA," he said. "In the absence of a finding of a breach of fiduciary duty, they will defer to that judgment."

The BrooklynSpeaks lawsuit

Yesterday the Courier-Life reported that the BrooklynSpeaks coalition, including at least the Prospect Heights Neighborhood Development Council (PHNDC), the Boerum Hill Association, and the Park Slope Civic Council (PSCC), would be filed, arguing that the ESDC approved the 2009 Modified General Project Plan (MGGP) last month without a SEIS to assess traffic impacts.

Interestingly, BrooklynSpeaks was formed in 2006 to pressure the developer and the state for changes to the project, and specifically to avoid litigation spearheaded by DDDB (and later the Council of Brooklyn Neighborhoods, or CBN). The Courier-Life quoted PSCC President Ken Freeman: "It is with a heavy heart that we are forced to admit that nearly three years later, all our efforts have been in vain."

And why didn't BrooklynSpeaks and DDDB join forces? "We began preparations for a challenge to the MGPP approval several months ago, at a time when we were not aware of DDDB’s intention to file a similar suit," PHNDC's Gib Veconi told me. "We’re following through with those plans, while watching to see how their efforts unfold."

Local tensions?

The Courier-Life quoted Freeman:
"The PSCC has decided to sue to draw attention to the fact that even reasonable organizations who tried to work with the developer and the ESDC have been shut out and rejected."

I'm not sure whether he had air quotes around the word "reasonable;" surely, the groups in BrooklynSpeaks were considered more reasonable by project supporters such as Borough President Marty Markowitz. That doesn't make groups that have regularly pointed out flaws and deceptions in the project unreasonable.

Similarly, the Courier-Life quoted Veconi:
...the participation of the Park Slope Civic and other groups like the Pratt Area Community Council and Boerum Hill Association sends a message “that purposeful opposition to the project is not limited to a tiny group of people”

Does that imply that those behind and supporting DDDB and CBN are a "tiny group"? Veconi said no.

"The quote in the article regarding opposition to the project was taken out of context," he told me. "It was a reference to the Mayor’s remarks to the Brooklyn Paper a few weeks ago. I told the reporter that the Mayor and other project supporters could no longer claim that 'purposeful opposition to the project was limited to a tiny group of people.' I did not suggest that I agreed with the Mayor’s perception. Both CBN and DDDB have worked very hard organizing awareness and opposition to the Atlantic Yards project, and their efforts are recognized by all community advocates."

(The original quote from Bloomberg, an 8/25/09 article: “One of the great sins here is this small group of people stalled it so long [that] the economy is different.")

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