Sunday, May 31, 2009

More testimony submitted for the Senate hearing: why eminent domain should be reformed

The issue of eminent domain and blight got short shrift at the hearing on Atlantic Yards held Friday by State Senator Bill Perkins.

One person who submitted testimony, but couldn’t attend, was Michael Rikon, an attorney since 1980 in private practice representing property owners in condemnation proceedings. (He also represents some property owners in the AY footprint.)

“In my opinion, it is fundamentally wrong to take someone’s property and turn it over to a private party,” Rikon said in his prepared testimony. “We understand that eminent domain is necessary on occasion. But the use of this most extreme power should be limited to a true public purpose. Atlantic Yards should be limited to a stadium site for the Nets.”

Interestingly enough, Rikon does not challenge condemnation for an arena whose profits would go to a private developer far more than any public entity.

After Kelo

As a result of the Supreme Court’s widely-criticized 2005 Kelo v. New London decision, which narrowly upheld eminent domain for economic development--something long permitted in New York, Rikon pointed out--42 have enacted legislative reform.

While a task force of the New York State Bar Association called for the legislature to create a Temporary Commission on Eminent Domain, “nothing has been done to further the task force’s many recommendations,” Rikon noted.  (I wrote about this issue on Thursday.)

Deck is stacked

Rikon pointed out that those challenging a condemnation have very little chance in court--which is why the plaintiffs in the Atlantic Yards eminent domain case first went to federal court.

“There is no real or effective procedure to stop a condemnation,” he said. “ Our law has a procedure, Article 2 of the Eminent Domain Procedure Law–but it is virtually impossible to win a challenge.”

Moreover, he said, “There is not a concrete definition of what is blight. Indeed, blight is in the eyes of the beholder. And blight often follows the cloud of condemnation and the purposeful neglect of a sponsor.”

Recommendations

“The Eminent Domain Procedure Law should be amended to take into account and correct the inconsistencies in the existing statutory provision,” Rikon suggested. “More importantly, the law should focus on the need to define and perhaps limit the definition of public purpose and permissible acquisition in the wake of the public outrage following Kelo... The time is at hand for a thorough study of New York Eminent Domain Substantive Law and Procedures, particularly how New York defines “blight.” How can a building which was converted to luxury apartments be deemed ‘blighted?’”

He made several other recommendations regarding how compensation is determined and cited the many recommendations of the task force.

“The last recommendation was that a Temporary State Commission on Eminent Domain should be established, resolving issues such as defining public use, the appropriate level of judicial scrutiny, just compensation, and others will be accomplished through study by a variety of stakeholders represented," he stated. "This was two years ago. Nothing has happened to put the task force recommendations in place. The Temporary Commission must be created now.”

Brutally weird: for "Brooklyn," substitute "Forest City Ratner"

The Daily News editorial today cites "a new basketball arena for Brooklyn."

But the arena wouldn't be for Brooklyn.

Forest CIty Ratner would get the naming rights and the revenues. Brooklyn would get a chance to buy tickets.

Pinamonti predicted it

Brutally weird? Well, John Pinamonti predicted it, in "The Burrow":

Makes me sad, yea it's such a pity
They're trying to rename Brooklyn "Forest City"


Devils owner far less bullish than Newark mayor about Nets moving to The Rock

Though Newark Mayor Cory Booker is a huge cheerleader for a potential Nets move to Newark, it appears that New Jersey Devils owner Jeff Vanderbeek, operator of the Prudential Center, is more concerned about having the competing Izod Center close so the Rock can attract lucrative concerts.

The Record reports:
The Nets basketball team continues to play at Izod Center on a year-to-year basis as it awaits groundbreaking on a proposed new arena in Brooklyn. Asked if he would rather the Nets move to Brooklyn or to Newark, Vanderbeek replied, "Personally, I guess I would marginally rather see the Nets in Newark."

The team's financial experts are "about 50-50" on whether the added revenues and public attention for the arena from Nets games would offset losing some flexibility for the Devils on desirable weekend home dates, Vanderbeek said. He said the uncertain fate of the Nets has allowed state officials to postpone making a decision on Izod's future.

"I just want the Nets off the fence," Vanderbeek said. "The biggest problem for us is that the Nets are being used as a pingpong ball [by the sports authority]. For a while they wanted to throw them out, then they love them."


The numbers

The Record reports:
Vanderbeek said closure of the Izod Center would boost the Prudential Center and the Devils' collective bottom line by at least $10 million annually, with about $2 million of the new money going to Newark. The monopoly on North Jersey arena offerings would bring the Devils from a loss of a few million dollars annually to around break-even or better, Vanderbeek estimated, depending on postseason success and ticket sales.

Daily News to MTA: compromise with Ratner (and ignore all else)

The New York Daily News, ostensibly the newspaper of the city's working class, is owned by a real estate developer and has maintained blinkered support for Atlantic Yards, today editorializing that the Metropolitan Transportation Authority should compromise on a deal with Forest City Ratner.

In an editorial headlined Net the Nets: New York must get behind a new basketball arena for Brooklyn, the newspaper urges the MTA to be "flexible... in getting the deal done."

Missing reality

While the Daily News cites an extension on the Hudson Yards deal as a precedent, the newspaper neglects to point out that an adaptation to changing conditions might also require a new assessment of costs, benefits, and subsidies, as City Council candidate Brad Lander, among others, points out.

After all, if the Independent Budget Office now thinks that the arena would be a money-loser for the city in terms of new tax revenue, maybe "netting the Nets" deserves a bit of reconsideration.

Fair process?

The Daily News suggests that the MTA would get "revenue it would otherwise lose." 

Remember, Forest City Ratner's proposed payment would be even less than half the appraised value--and stretched over a longer period of time. Rival Extell bid $150 million, rather than Ratner's $50 million, later upped to $100 million. 

One reason for the MTA's willingness to negotiate exclusively with FCR was the developer's promise of a new railyard--apparently more elaborate than the one incorporated in Extell's bid. But now FCR promises to scale that back too.

Given that only one bidder emerged after an RFP was issued 18 months after Forest City Ratner was anointed the site, can we assume there was fair competition for what Chuck Ratner, CEO of parent Forest City Enterprises, calls a "great piece of real estate"?

Council candidate Lander, in testimony prepared for Senate hearing, gets tougher on AY, saying deal should be canceled

It was notable that, at the State Senate hearing Friday, the only legislators to appear in favor of the project were three (one via proxy) from Southern Brooklyn, far from the project site and the area from which Forest City Ratner executive VP Bruce Bender can always call in chits. Even Borough President Marty Markowitz neglected to show up or send an emissary.

And, though there was much extraneous testimony that had nothing to do with the hearing's ostensible purpose of government oversight, there were several people who didn't get to testify.

One would-be elected official, 39th District Council Candidate (and urban planner) Brad Lander, submitted testimony calling for legislators to pressure Governor David Paterson and the Empire State Development Corporation to cancel the AY deal. The issues he raised were ones the legislators barely touched.

(In photo, Lander is talking with State Senator Velmanette Montgomery.)


His reasons: 
  • a need for a full accounting of public subsidies
  • a need for a new economic and cost-benefit analysis
  • a need to investigate whether land valuation for the PILOTs (payments in lieu of taxes) deal would be as questionable as the one for Yankee Stadium.
Changed position

Lander, the fund-raising frontrunner for the seat held by Bill de Blasio, has long had a more nuanced position on Atlantic Yards, previously taking a more BrooklynSpeaks-ish position, on his web site stating that "we should use the opportunity to either fix the flaws or reconsider the project." (Lander, former director of the Pratt Center for Community Development, is now a senior fellow there.)

Recently, in debates, Lander has ramped up his criticism of AY. Lander told me that, when he wrote his position a year ago, "I imagined that the economic crisis (which was then just beginning to become clear) might be an occasion for a renegotiation between ESDC/MTA/City/State and FCRC that might include the opportunity to fix some of the fundamental flaws. But as has become clear over the past year, and was evident at the hearing, that is not the case."

Lander's position also might be seen as an effort to compete with Josh Skaller, who's second in fundraising and has long been fundamentally opposed to the project, allying himself with Develop Don't Destroy Brooklyn.

Excerpts from Lander's testimony

In 2005, the Pratt Center released
a report that was highly critical of the Atlantic Yards proposal. We found that:

The process through which the project was advanced was not accountable. Planning for the project was initiated by the developer, despite the fact that this is a major site, with a majority of the land publicly-owned. 

Public subsidies – which run into billions of dollars when direct and indirect subsidies are included – were never sufficiently accounted for... To put it simply, ESDC bought this project without any clue of what the taxpayers would pay for it.

The cost-benefit analysis of the project was insufficient and misleading. One particular problem that is amplified today is that the commercial components and residential components were not separated.

There was inadequate information and insufficient planning around traffic, transportation, and parking issues. 

The urban design of the project was deeply flawed for the site (scale, interiorizing the park, lack of attention to context) …

We identified these flaws when we published our early planning assessment in March 2005. None of those issues were sufficiently addressed, and several grew worse as the process proceeded.

Atlantic Yards was not the right project when it was proposed in 2004. It was not the right project when ESDC approved it with insufficient information and through a flawed process in 200x. And it is not the right project now.

I urge you to bring pressure to bear on Governor Paterson and the Empire State Development Corporation to explore options to cancel the [MOU/general project plan/”deal”]. Let’s go back to the drawing board.

A few particular questions that are critical at this moment:

A full accounting of public subsidies is needed more than ever, as the State and City face extremely difficult fiscal situations. We must know the true cost of the project.

A new economic and cost-benefit analysis is required for the project that FCRC actually intends to build, and in light of today’s economic realities. The condo sales prices projected for the market-rate units on the site were probably unrealistic in 2006; today, they are simply fantasy. The challenges and costs of securing financing have risen enormously. It does not appear that the office space will be constructed. 

Land valuation: Information recently came to light that the land valuation for the PILOT in the Yankee Stadium deal was misleading and perhaps criminal. How is land valuation being handled here? 

What is the process for renegotiating or canceling the deal between FCRC and ESDC, as the project shifts and changes and is not completed as contemplated?

ESDC should face up to the reality that the project that was approved is not going to be built in the current economic climate, and that the project that the developer seems to intend to build is not what was approved (and has not been subject to meaningful public review).

Updated report on Senate hearing

For those who'd like another look, I've updated my long report on the Senate hearing Friday with photos from three photographers.

See legislators in action, government officials parrying not-so-tough questions, and the Rev. Herbert Daughtry heckling.

It also has links to all the press coverage, including Neil deMause's incisive piece in the Village Voice.

Stay tuned for some analysis Monday.

Ratner's hardball pays off: construction resumes at the Beekman Tower

The construction workers cheering for Atlantic Yards on Friday probably don't embrace the developer's hardball tactics to reduce construction costs at two extant projects.

After all, FCR stopped work halfway through the construction process of the Beekman Tower in lower Manhattan, what the New York Times calls an effort to "desperately sought to cut costs on the project."

In an article Friday headlined Savings on Labor Allow Work on Residential Skyscraper to Resume, the Times reported that work resumed this week, just as abruptly as it stopped.

The key: a cut in labor costs and cheaper construction materials and appliances. Among the other projects helped by a new agreement with unions is the tower under construction at 80 DeKalb Avenue.

Depends on the price

While proponents of the new agreement say it's worth a 20% discount, the Times suggests that's under debate:
Still, some developers say the agreement is worth far less, perhaps only 8 percent in savings, and not enough to get some stalled projects moving again, especially in cases where they paid high prices for land.

“God bless them,” said Steven Spinola, president of the Real Estate Board of New York. “But I don’t think they’re going to save much money.”


That would seem to bode well for Atlantic Yards, given that land was not so costly.

The city gave Forest City Ratner $100 million for land acquisition and it looks like the developer will not have to pay (at least at first) the MTA the $100 million it pledged for the Vanderbilt Yard. And that $100 million was less than half the appraisal of $214.5 million.

Saturday, May 30, 2009

Times takes semi-skeptical look at Brooklyn arena plans, doesn't question professed 2011 opening

Well, the New York Times didn't cover the hearing yesterday, but in a long article in tomorrow's Sports section, sports business reporter Richard Sandomir asks, Will the Nets ever play basketball in Brooklyn? and concludes: maybe.

For one thing, the Nets have some $500 million--albeit over 20 years--in sponsorship commitments for the arena, notably from Barclays Capital, which bought naming rights. 

(Hm--one question no one asked--and I didn't think of: why exactly does the Empire State Development Corporation let Forest City Ratner sell naming rights to an arena that is nominally publicly-owned? The fig leaf of public ownership is necessary for tax-exempt arena bonds; FCR gets to keep the revenues.)

The cost of the arena was approved at $637.2 million in 2006, ballooned to $950 million, and now may be cut by $200 million. The Times reports that Forest City Ratner hopes to have $600 million in tax-exempt bonds sold, which would imply some portion of taxable bonds.

The Times reports that Develop Don't Destroy Brooklyn is committed to lawsuits that could continue to delay the project, though it's not clear they can stop the crucial exercise of eminent domain and thus stop the sale of bonds.

Arena, 2011?

The Times, however, doesn't look skeptically at the claims that the arena will open in 2011:
“It’s done, inevitable, it’s imminent, it’s going to happen this year,” said Brett Yormark, the Nets’ chief executive. After a number of failed predictions for when the Nets would move into the arena, he said: “We’re on schedule. There’s more certainty than there’s ever been.”

The failed predictions include regular claims from Yormark.

As I pointed out Thursday, arenas designed by Ellerbe Becket, which is apparently in charge of the arena design, must break ground in June or July to open for an NBA season some two years later. (The original Frank Gehry design was to take 32 months.)

That's almost impossible, especially if a new Modified General Project Plan, with an accompanying hearing, is necessary. If construction is to begin at the end of the year, as the Empire State Development Corporation indicated yesterday, there's no way the arena could open in 2011.

Issues of stasis

The Times reports:
No work has been done since the end of last year on land that is a hodgepodge of empty lots and buildings and the Long Island Rail Road’s Vanderbilt Yards. Forest City has neither begun to pay the Metropolitan Transportation Authority the $100 million they agreed to for development rights over the yards — and is, in fact, negotiating the price sharply downward — nor begun to move the tracks to a far end of the site.

However, as we learned yesterday, the developer is planning to resume work, and the MTA is getting ready for a compromise.

Arena bonds

Not only is Forest City confident about lawsuits, the Times notes that the recession is abating, making it easier to sell bonds. Goldman Sachs' Gregory Carey said financing has gotten easier, and the publisher of The Bond Buyer said that a deal like that for bonds for the Yankees’ and the Mets’ stadiums would work.

Forest City has a December 31 deadline for both issuing bonds and for the naming-rights agreement. While the Times doesn't say so, I believe that bonds can be issued even if there's no construction--there's just a layer of additional cost.

Unmentioned: whether and how the assessments for arena land would increase sufficient to generate phantom property taxes used to pay off construction bonds via PILOTs (payments in lieu of taxes). That issue was raised yesterday by George Sweeting of the Independent Budget Office.

FCR vs. DDDB

The Times offers a point-counterpoint:
Forest City is not surrendering and believes only a restraining order can stop the eminent domain process and construction. But Yormark’s confidence is mixed with testiness that Forest City cannot rid itself of Goldstein or the legal aggressiveness displayed by Develop Don’t Destroy.

“I have no admiration for anyone who puts his personal interests before the people’s interests,” Yormark said.

Goldstein said, “ The selfish party is his boss, Bruce Ratner, who wants public land for a song, private property confiscated by eminent domain and the taxpayers to pay hundreds of millions of dollars toward his enrichment.”


It's clear that the arena is a priority. The Times notes the team's relatively low attendance—not pointing out that gate count is far lower--as well as $353 million in pretax losses for the team's dozens of investors. In the past year, Forest City Enterprises took on additional responsibility for losses, not 54%.

What about Gehry?

Will Gehry's name still be on the arena? The Times reports:
Yormark said that the arena would reflect Gehry’s vision but that the savings would come mainly through cutting square footage, particularly in storage areas. “As of now, Frank is still in,” he said.

The Times reported two weeks ago that Bruce Ratner would decide in 60 days whether to keep Gehry's original design. That seems highly unlikely. So the question is whether Gehry would agree to be part of a changed design.

Would he? The Times asked:
Gehry, who declined to comment through a spokesman, recently cast doubt on the Atlantic Yards, for which he is the master architect, ever coming to fruition. He quickly retracted his statement. But if the shape and look of the arena changes enough to meet economic needs, it may not meet Gehry’s standards.


Well, if Gehry won't talk to the Times, he can't be very enthusiastically involved in the project.

Friday, May 29, 2009

Senate hearing: no tough questions for ESDC; MTA yields on yard; IBO calls arena a loss; arena 2012; raucous AY supporters make for 8/23/06 flashback

(Update as of 10:38 am 5/31)

In some ways, the State Senate hearing held today on Atlantic Yards was eerily reminiscent of the epic 8/23/06 hearing on the Draft Environmental Impact Statement: the house was packed--I’d estimate at least 2/3 of the crowd at Pratt Institute’s Higgins Hall--by union members and Community Benefits Agreement signatories, many wearing "Atlantic Yards Now" buttons, who raucously disrupted the hearing and, when some of their members testified, repeated old arguments for the project.

Though this was supposed to be a fact-finding hearing, the representatives of city and state agencies emerged almost completely unscathed by questions posed by the panel led by State Senator Bill Perkins, despite testifying for some two hours. No one asked about the current timetable or cost of the project, nor challenged a stale, purported cost-benefit analysis. (Forest City Ratner, though it helped orchestrate the turnout and had uberflack Joe DePlasco in the aisles, did not testify.) More than 200 people were present in the main hall; more people were in two overflow rooms.

As shown in the photo, project supporters targeted Perkins and fellow state Senator Velmanette Montgomery, and took personal swipes at Daniel Goldstein of Develop Don't Destroy Brooklyn, the most public opponent. (Photos by Adrian Kinloch are at right with his name embedded. Photos by Jonathan Barkey are on both sides side of the page, with his name embedded. Photos on left side of page without credit are by Tracy Collins.)

You might say the afternoon was "brutally weird." Here's more from Noticing New York's Michael D.D. White on "manufactured chaos," noting that some of the people who appeared as construction workers were BUILD supporters who got to leave as a group at 5 pm.

IBO: arena now a loss

But there was some significant news later on in the hearing: George Sweeting (below left) of the Independent Budget Office, which in a 2005 report concluded that the arena would be a net positive for the city, said that additional subsidies--from $100 million to $205 million--nearly double the present-value cost to the city. (He had previously hinted at a potential loss to the city but hadn't provided calculations.)

“This change alone therefore eclipses the $25 million net positive benefit to the city that we previously estimated for the arena,” Sweeting testified dryly, as the crowd remained quiet. (Updated: He didn't provide the math, but it's apparently a $60-70 million loss.) The bottom line, Sweeting told Perkins, was that all the assumptions about benefits touted by the city and state officials need to be recalculated based on current numbers, and they’re not available yet. Notably, most of the gains in tax revenue come from commercial space, and there are no plans to build an office tower as of now.

Indeed, all indications are that the city and state will bend to Forest City Ratner's requests for more time or more money, thus decreasing the public benefit. Officials acknowledged there was no firm timetable to start affordable housing.

Perkins, who plans to look at the performance of state development agencies around the state, said there would be further hearings on AY; perhaps at that time, more clarity will emerge.

(Here's the Observer's coverage, which notes that governmental benefits haven't been updated, even though the project has changed. The Post focused on the reduced railyard and a lower payment from Ratner, noting that project opponent Goldstein was booed when he said--quite correctly, though the Post didn't acknowledge it--Atlantic Yards as approved does not exist. The Daily News ignored the IBO and focused on the construction workers and cited 17,000 jobs, even though 12,000 would be construction jobs, in job-years, meaning 1200 a year over a decade--though note Raul Rothblatt's comment about construction workers insulting his baby daughter. The Record, from New Jersey, highlighted on the raucous crowd, though noting that officials appeared to be using stale financial estimates and pointing to the MTA renegotiation. Here's video from NY 1, which noted the IBO's new numbers. Neil deMause did a good overview for the Village Voice. The Times sent an intern from the blog The Local; no story is online yet, though the Metro section contains, among other things, a report on tours of the revamped Plaza Hotel. WNYC did a thin report, below, that at least gives a flavor of the atmosphere. WNYC later followed up with a meatier report and blog post.)

)

No timetable; arena 2012

As an example of the gentle treatment faced by witnesses, Empire State Development Corporation (ESDC) CEO Marisa Lago (right) straightfacedly maintained that the General Project Plan from 2006 was still in place--despite her recent acknowledgment that Atlantic Yards could take decades--and was not asked about the timetable for the project. She also maintained that the public benefits remain the same, even though a delayed schedule would obviously delay the benefits.

(Afterwards, I asked the ESDC about the timetable and was provided one factoid, that the construction is expected “to begin at the end of the year.” Translation: the arena, in a best-case scenario, would open in 2012, not 2011, as Forest City Ratner continually promises. FCR CEO Bruce Ratner has stated that construction would begin anywhere from this summer to October.)

Changed economics?

One key issue, Lago and others noted, is the changed economic environment requiring government agencies to renegotiate terms with the developer. That may be so, but it was before the economic downturn, in March 2007, when Chuck Ratner, CEO of parent Forest City Enterprises, said “we still need more” subsidies.

And it was in September 2007, again in happier economic times, when the ESDC signed a State Funding Agreement that gave the developer six years after the close of eminent domain to build the arena without penalty, and 12 years to build Phase 1, with no timetable for Phase 2, which would contain most of the affordable housing and all the open space. And the city at the same time signed the City Funding Agreement, which allows Forest City Ratner to build a 44% smaller Phase 1 without penalty.

New public hearing?

While Lago did not say it was certain, she noted that design and timing changes regarding AY would require a proposal before the ESDC board. "That will followed by a public hearing, and a second hearing before the ESDC, thus giving the community the opportunity to have input," she said.

So, perhaps there will be another public hearing this August.

MTA negotiations

Acting Metropolitan Transportation Authority Acting Executive Director Helena Williams (right, with Lago) did break some news, announcing that the MTA had completed negotiation with Forest City Ratner on a cheaper, less elaborate railyard--seven tracks rather than nine, a 22% decrease--and that negotiations regarding a delayed schedule for payments are ongoing, pending a June 24 MTA board meeting at which the public can testify.

The MTA’s willingness to deal with Forest City Ratner drew tough questions from Assemblyman Hakeem Jeffries (below), who questioned whether the agency was performing its fiduciary duty on behalf of the public and suggested that the term "value engineering" connoted a bailout.


Perkins also queried Williams briefly on whether the MTA was about to accept $50 million instead of $100 million for the Vanderbilt Yard, but didn't get an answer.

Deceptions from NYC EDC's Pinsky

Similarly, Seth Pinsky, president of the New York City Economic Development Corporation (below, in dark suit, with Mathew Wambua of the NYC Housing Development Corporation), in prepared testimony maintained that the project would produce more than half a billion dollars in new tax revenues to the city, but acknowledged later that he was using a study from 2005, which calculated new revenues on 2 million square feet of office space.

Only one office tower, with less than one-third of the previous square footage, is now part of Forest City Ratner's announced configuration, and it's on indefinite hold. He later added: "We’re in the process of updating that analysis… we expect it to still be an extremely positive number."

NYC EDC calls it a "fiscal impact analysis." It acknowledges no offsetting costs or subsidies, so it's not a "cost-benefit analysis," despite Pinsky's deceptive use of the term. Only the IBO has attempted a cost-benefit analysis, but limited it to the arena, not the project as a whole.

Keep in mind that a decline in office space led to a nearly one-third decline in the ESDC's own calculations of new revenue. (The ESDC never conducted a cost-benefit analysis, either.)

Arena cost-saving: fewer luxury suites

Forest City Ratner has publicly announced efforts to reduce the cost of the arena through value engineering, cutting perhaps $200 million from a price tag that had ballooned to $950 million.

One change Lago was willing to announce: fewer luxury suites. That likely would also reflect Forest City Ratner's calculations that, given the economic downturn, the market for luxury suites has declined.

Affordable housing: FC and ACORN in charge

Affordable housing was the subject of much discussion, with no guarantees as to when it might begin and an acknowledgment that only 300 units might be built in Phase 1, which could last 12 years. One stunning moment: Mathew Wambua (left) of the New York City Housing Development Corporation testified that the plan for affordable housing was up in the air, subject to ongoing negotiations between Forest City Ratner and its partner, New York ACORN.

Unmentioned was that FCR has bailed out ACORN’s parent organization; no one questioned why a developer and a community group (in hock to the developer) get to make the decision.

Wambua acknowledged, in a statement not caught by any of the panelists, that the AMI (Area Median Income) for the affordable units would go up slightly, thus increasing returns to the developer.

As approved, there would be 4500 rentals, half of them subsidized, with 900 apartments for low-income households, 900 for middle-income households, and 450 for moderate-income households. There would be 1930 condos. There was no effort at the hearing to establish the timetable--whether the 900 low-income units would arrive in a decade, as promised, or over many decades, as is more likely.

And while there was testimony that there would be a minimum of 300 subsidized units in Phase 1--meaning 120 low-income units--there was no testimony about whether all 2250 affordable units would be built.

FCR statement: no more debate

FCR's Bruce Bender--who was spotted outside the hearing helping coordinate the pro-project throngs--issued a statement.

(At left is BUILD's James Caldwell, wearing red hat, and some catered lunches.)

It said: “After five years of public debate and countless hearings, it is time now to get to work. The arena and an NBA team in Brooklyn will create jobs and excitement and the affordable housing is sorely needed in the borough. Opponents have significantly delayed this project, including the jobs, housing and tax benefits. Now is not the time for re-debating the project. It is time to get work.”

(Presumably he meant "get to work.")

Long day

The hearing stretched from 1 pm to 5:30 pm, with later panels of community representatives rushed through their testimony. Along with Perkins at the start was Montgomery. Two project supporters, State Sens. Carl Kruger and Marty Golden, showed up later, as did Jeffries, joining the panel. (Golden, as noted below, clashed significantly with fellow panelists.) City Council Member Letitia James, who showed up midway through the afternoon, testified at the end of the hearing.

(Perkins is pictured at right with Montgomery and Kruger.)

Montgomery is a longtime project opponent and Perkins is at least a skeptic; despite a road map of questions from AYR and other sources, neither pressed hard. At times, it seemed like Perkins was establishing basic information about AY rather than probing issues of controversy.

Jeffries, a lawyer, was tougher, leading the MTA's Williams as if she were a not-so-friendly witness, though he did not focus on some of the major questions about the project. Montgomery, while asking some basic questions about affordability, managed to elicit some jaw-dropping acknowledgments from NYC HDC's Wambua.

Outside and inside the hearing

Those arriving at the hearing saw union members rallying in the company of a giant rat--the typical protest symbol at non-union construction sites, as at Pratt [updated 5/31], but an imperfect coincidence given the name of the developer. A table welcomed members of BUILD (Brooklyn United for Innovative Local Development) , whose president, James Caldwell, is shown speaking.

A handout from BUILD suggested that homeless people would benefit from the project, even though the affordable housing is years away, and there's no specific provision for the homeless, many of whom likely are below even the lowest income band, 30% of Area Median Income (AMI).

Inside the hearing, project supporters cheered loudly and raucously, as they did at the 8/23/06 hearing, at even boilerplate statements by the state officials describing the project.

Union members handed out whistles from a box, leading to sounds so loud that those waiting to go in plugged their ears (below). The Rev. Herbert Daughtry, who like other Community Benefits Agreement (CBA) signatories has seen his organization funded by Forest City Ratner contributions, regularly heckled, complaining at one point, "They're blocking the program, with these complicated questions." (Actually, the questions were pretty gentle.)


Though Perkins repeatedly asked the crowd to be quiet and respectful, he was unwilling or unequipped to take further measures to maintain order. (There have been construction workers supporting Yankee Stadium at hearings held by Assemblyman Richard Brodsky critical of the project, but Brodsky has not tolerated any disruption.)

Uneasy from the beginning

The tone of the hearing was set as Montgomery, in her introduction, apologized to Perkins (shown entering, below, wearing hat) for the raucousness. When Perkins declared, by way of orientation, that “I represent Harlem,” an audience member heckled, “What are you doing here?”

“I am also the chair of the Senate standing committee on Authorities and Commissions,” Perkins continued firmly. As he went through some boilerplate information about the project, noting it would “be the future home of the New Jersey Nets,” the crowd cheered and shouted “Brooklyn Nets.”

“Let me be clear: development as I see it, is generally a good thing,” Perkins said. “But the truth is that development does have a checkered history in New York, particularly in this city.” Too often, he said, “We have not taken into account the needs of all our legitimate stakeholders.”
“Our goal,” he said, “is to make sure
this project does not go off track,” seemingly acknowledging AY as a done deal, despite the numerous questions and uncertainties concerning it.

What about Gehry?

Perkins went on to read, not completely steadily, a host of headlines from news and editorials about AY, indicating the controversy about the project. One headline, concerning architect Frank Gehry, Perkins read as “Jerry expresses doubts,” hinting at his unfamiliarity with the architect.

There were no questions asked about whether Gehry is still on the project, despite signs that his role has receded.

ESDC testimony

Lago, in her testimony, said that Atlantic Yards was “about neighborhood redevelopment.” She offered a personal aside, saying she was born “just a few blocks away,” at Long Island College Hospital, and has memories of going to the dentist at the Williamsburgh Savings Bank building.

She described the AY site as one “that has the type of transit infrastructure that most cities could only dream about.” Why is ESDC interested in the project? She said it was “because of the public benefits,” starting with the housing, going on to mention retail space, commercial space, and the arena, which will “bring the same type of vitality that Madison Square Garden brings to Manhattan.” Big cheers.

The additional open space, she said, would be a boon. No one pointed out that the open space was not due until the unscheduled second phase of the project.

But most of all, she said, all the components “translate into one thing: jobs.” Nobody pointed out that the number of promised permanent jobs has declined significantly from the 10,000 office jobs initially promised in 2003, and there are no plans to start the commercial office tower.

Challenging economic times

“There is not one of us who works in economic development who isn’t aware of the impact the economy is having on economic development projects,” Lago said, seguing into the need “to be realistic.”

If there are significant changes, she said, there will be a clear and open communications process, allowing for public comment. Then, without having revealed anything of substance, she turned over the microphone to NYC EDC’s Pinsky.

Pinsky’s testimony

Pinsky, who has endured a grilling before Brodsky’s Assembly committee, had a much easier time of it today. He also offered an early personal aside, describing AY as a project “that, incidentally, is to rise about a mile from my home in Brooklyn.”

“Only by moving forward with projects such as Atlantic Yards that use millions of dollars from the public sector to leverage billions of dollars from the private sector” can jobs and infrastructure be created, he said.

He cited the benefits as stated when the project was approved in December 2006: more than 6000 new housing units, hundreds of thousands of square feet of new commercial and retail space, and eight acres of open space.

Repeating the Ebbets Field canard

All the benefits, Pinsky said, would come on “a largely vacant site with access to great public transportation that has remained underutilized since the days when it was proposed as a home for a baseball team...”

In that, Pinsky repeated the canard that the Atlantic Yards site was targeted by Brooklyn Dodgers owner Walter O’Malley for a new Ebbets Field; actually O’Malley was looking across Atlantic Avenue at the site now occupied by the Atlantic Center mall.

Real estate discounts

Besides the city’s $100 million in capital contributions and “additional money”--he didn’t specify $105 million--for “general infrastructure improvements in and around the Atlantic Yards and Atlantic Avenue,” he said, “Finally, the city has committed to contribute to the project at agreed-upon discounts certain real estate assets for which there are unlikely to be other opportunities for monetization… and to provide…a series of largely off the shelf housing subsidies...”

In return, he stressed, the city expects to realize many times more revenue than it is putting into the project. However, he didn’t offer any new numbers.

Sensitive negotiations

Citing the challenging economic times, he said, “It is perhaps not surprising that the developer has, in recent months, come back to both the city and state to discuss various ways in which the public sector can help make this project, and its associated benefits, feasible.”

“The simple answer is that we are still engaged in very sensitive negotiations with the developer,” he said, unable to offer specifics. (The Observer has reported that FCR wants the city to deliver pledged funds more quickly.)

Though current conditions make AY “substantially more difficult,” they “also underscore the need for us to succeed in our efforts,” he said. “These benefits would be hard to forego in the best of times and are nearly impossible to forego at a time like today."

MTA testimony

The MTA’s Williams, who also heads the Long Island Rail Road (LIRR) was introduced by Perkins as “Williamson” and, perhaps in an effort to maintain comity, she made no effort to correct him. (Lago later referred to her as “Williams,” as if helping Perkins along.)

Williams began with her own version of Brooklyn cred: the LIRR’s operation begin in Brooklyn, in 1836, she said, provoking cheers and whoops at the history lesson.

Then, indicating that the MTA was fully onboard with the project, she said that the transportation improvements will help the Long Island LIRR achieve their mission. She noted that the project would include a new subway entrance of the arena, forming “a nice intermodal connection” with the LIRR, subways, and buses, providing a new opportunity for ridership growth. (She didn’t mention that there wouldn’t be any service growth.)

She cited Forest City Ratner’s “ambitious goals for minority and women-owned business participation,” noting that more than 40% of the contracts so far had gone to minority- or women-owned business enterprises and to Brooklyn-based firms..

MTA revises history

Williams described the MTA’s May 2005 Request for Proposals for the Vanderbilt yard, 18 months after city and state officials backed the AY plan, as “an opportunity to look at the yards” and become more like Grand Central Station, where a deck led to new development.

It wasn’t an opportunity to look at the railyard, since there had never been any effort to solicit proposals; rather, it was an after the fact response to a project that had already been awarded, in the eyes of the mayor and governor, to Forest City Ratner.

She inaccurately described the project as including “a new arena on the site currently occupied by the Vanderbilt Yard;” the arena site would extend below Pacific Street onto a block occupied by residential and commercial buildings and, now, more and more vacant lots.

Construction to resume

While Forest City Ratner began work on the temporary railyard in February 2007, she said, work was suspended in December. “Forest City Ratner informed me they were waiting for resolution of remaining litigation,” Williams said, and no one pointed out that the developer had claimed it could move forward on properties like the railyard no matter the progress of litigation.

“They have since informed me they will resume construction and will complete construction,” she said, though she didn’t offer a timetable.

Cheaper permanent yard

In early 2008--again, well before the real economic downturn--Forest City Ratner “came to me and said we need to go through a value engineering exercise” to reduce the cost of construction of the permanent railyard.

“I am pleased to announce we have reached a tentative agreement on that new design,” she said, explaining that “the new yard will have seven tracks plus an 8-car drill track, and will be sufficient to support future ridership growth.”

Change in payment schedule

The MTA is currently engaged in discussions with FCR concerning their revised proposal to some of the deal terms approved by MTA board in 2006. “They have proposed a smaller upfront cash payment for the land,” she said. “plus additional payments over time.”

She did not confirm that the developer offered $20 million rather than the $100 million due. She noted that “we haven’t agreed to new terms,” but are in the process of due diligence.

She said it was not up to her to approve the deal, but to present it to the MTA board, which would happen next month.

First questions

Perkins began the question session by asking panelists to explain value engineering.

Williams said they wanted to “meet the full needs of our train operations” at a lower cost. After a very long and very technical process, she said, the number of tracks was reduced from nine to seven.

How much is the cost reduction, Perkins asked, in a logical follow-up.

“I don’t have that kind of breakdown,” Williams said.


“We’d like to have that breakdown,” Perkins said.

Williams noted it was the developer’s responsibility to build the yard. So the cost reduction would be a saving to Forest City Ratner.

Perkins turned to Lago and asked a general question, about the procedures by which ESDC evaluates projects and decided to sponsor them.

Lago said, “We look for projects that will return a positive investment to the state,” citing the benefits such as those in the AY project.

Eminent domain

“One of the other areas of significant concern is eminent domain,” said Perkins, asking a rudimentary question: if it was contemplated from the start.

Lago noted that a “very significant percentage of site is owned by the MTA” and “much of the rest of the site has been assembled privately by Forest City.” Eminent domain, she said, is regulated by a law that requires public input and hearings before authorization by the ESDC board.

(Pictured are ESDC and NYC EDC staff in the front row.)

The use of eminent domain was challenged, she said, leading to lawsuits that have delayed construction. There were some cheers from project opponents, but bigger boos from supporters.

Perkins asked for calm, saying “we need to know what [the project] means.”

“It means jobs,” shouted one audience member.

“We want good jobs, but we want to make sure what that means, in terms of this project… as it evolves,” Perkins admonished. “You cannot know that unless you hear them.”

Perkins went on to ask an uninformed question: “Are the parcels involved in the eminent domain proceeding still a part of the project, or will those parcels no longer be a part of the evolving project?”

Lago confirmed that “the footprint of the project remains the same.”

She continued with a whopper: “The public benefits remain the same.” (It’s impossible for the public benefits to remain the same if they’re delivered over a much attenuated schedule.)

From $100M to $50M?

Perkins asked Williams about Ratner’s $100 million pledge for air rights, saying he’d heard a rumor that it would be $50 million.

“We’re in the midst of negotiation,” Williams said. “Between what you heard and what was in the paper, I like your number better.”

However, what was in the paper was a $20 million down payment, not a total payment.

“You would like even more, I would dare say,” Perkins continued.

Williams nodded.

Value engineering the arena

Perkins asked Lago to explain value engineering in terms of the arena. Lago offered what she called “very common sense terms,” likening the process to updating a 45-year-old kitchen and determining that the wish list comes in at too high a cost.

So a planned six-burner stove becomes a four-burner, she said, noting that the arena would remain the same, but the changes would be in reduced luxury boxes and the level of the finishes.

She then indicated that there could be a board meeting and public hearing.

Bonding questions

Perkins asked Lago a general question about financing for the arena.

“The risk is going to be on the private sector, not the public sector,” replied Lago. “The full faith and credit of state and city are not at risk.” Later, Develop Don’t Destroy Brooklyn attorney Jeff Baker was to disagree.

She said a Local Development Corporation, established by ESDC under state statue, would sell the bonds, and they would be paid off by a revenue stream coming from the arena.

Has LDC been established, Perkins asked, not knowing that it had been.

Yes said Lago, and when she pronounced the words “Brooklyn Arena Local Development Corporation,” she drew deafening cheers and whistles.

Perkins asked another general question about the LDC. Lago, not acknowledging that the AY arena had been grandfathered in under more lenient Internal Revenue Service rules, said the authority for this project expires at the end of December.

Some project opponents clapped.

“Obviously that affects the economics of this project,” Lago said. “For those of us committed to seeing the project go forward… we would not want to make the financing that much more difficult.” In other words, there’s a deadline.

Perkins asked if there were any obstacles to moving forward.

Lago said that, with a win in the Appellate Division on the state eminent domain case, “we believe that the last legal hurdle had been cleared to going forward with eminent domain,” which is a step along the away to the issuance of bonds.

Perkins, either not knowing or playing coy, asked if the case is still being appealed, or if it’s settled.

Lago acknowledged the possibility of appeal--in fact, one is pending--”but our sense is, giving the unanimous decision, it is not an impediment to the ESDC to obtain the order that will allow us to engage in the taking.”

Montgomery’s turn

Montgomery tried to remonstrate with the crowd. “I’d like to remind my constituents and others… the chair of the finance committee [Kruger] is here… What comes out of this hearing is very important.” She noted it was the first time to have “a real dialogue” and to look at the ESDC. “It’s not just about Atlantic Yards.”

“You trying to block it,” shouted a heckler.

“I hope that the union will speak to their members,” Montgomery said with a bit of edge in her voice.

“You trying to block the program,” heckled Daughtry (at right in photo, with a woman who appears to be his daughter Dawnique).

Montgomery, noting that Williams described several other MTA/LIRR projects besides Atlantic Yards, asked about minority- and women-owned business participation.

Williams said she’d have to get back to her on numbers.

Questioning Pinsky

Montgomery addressed NYC EDC’s Pinsky. “You’ve indicated the city has provided additional money for infrastructure improvements,” she said. “What is the additional money?” (The number has been widely reported at $105 million.)

“There have been several tens of millions of dollars in the city’s budget, used for area-wide improvement,” Pinsky said, not offering a figure. “Not just Atlantic Yards, but the area more widely.” (That’s in dispute, since it’s a line item called “Atlantic Yards.)

You don’t know the exact sum, Montgomery said,  following up.

Pinsky acknowledged that it’s “a figure in the $100-$105 million range.. It’s been spent down… even as Atlantic Yards has not moved forward.”

Montgomery, as if in flashback to 2006, asked Pinsky “what is happening related to sewage, the overflow problem.”

Pinsky, not unreasonably, noted that “there was an environmental impact statement” that acknowledged impacts and required certain mitigation.

Daughtry heckled again.

What if AY dies?

What happens if Forest City Ratner does not complete the project as proposed, Montgomery asked, apparently unmindful of the gentle penalties and provisions in the State Funding Agreement and the City Funding Agreement. “If that doesn’t happen, what will ESDC do to ensure we do in fact get affordable housing?”

Lago noted the city and state financial commitments. “Forest City Ratner has invested significantly amount of money, in the hundreds of millions, not tens of millions,” Lago said. “The economic return to Forest City comes from the development of the housing.” So “we have a very useful alignment in the public sector’s interest.”

However, Forest City and other owners of the Nets are losing tens of millions of dollars on the team in the Izod Center, so a new arena is by far the priority.

(At left, Peter Krashes of the Dean Street Block Association listens. Behind him is Anthony Pugliese of the Carpenters Union, one of whose members is pictured below.)

Subsidy questions

To make housing affordable, subsidies are required, Montgomery noted. “Have you done a cost-benefit analysis, of just how much it’s going to cost us to make that housing work?

Lago turned the question over to Pinsky, who claimed, ‘We have undertaken a cost-benefit analysis, and it factored in all the benefits offered to Forest City.”

The analysis didn’t calculate benefits to the developer.

Over a 30-year period, the net present value was more than half a billion dollars, he said, noting that “we’re in the process updating that analysis” and expect it to “still be an extremely positive number.”

Housing subsidies, he said, were generally consistent with other programs.

Can you give a figure of per-unit subsidy? Montgomery asked.

NYC HDC’s Wambua (left in photo) said there will still conversations with Forest City regarding financing options. “The subsidies that would be received at any single development at the Atlantic Yards site would not exceed the subsidy any other developer would receive for a comparable project,” he said.

He described the additional mortgage subsidy at $55,000 to $85,000 per unit, but that did not encompass the full cost per unit.

Golden enters

And just as Montgomery began to ask about the definition of affordability, Golden strode imperiously down the center aisle of the hall (rather than the side), led by a union representative bellowing, “Senator Golden is here.”

Perkins admonished Golden for the disruption.

“I can’t tell people to leave me or not to leave me,” Golden riposted.

“I suppose these are Senator Golden’s people,” Montgomery said dismissively. “This is my district.”

She was met by cheers and heckles.

Changing AMI?

Montgomery went back to the question of affordability: who will be able to live there?

It was seemingly a gimme question, given that it has been known since 2006 that the range would be 40% of AMI to 160% of AMI--low-, moderate-, and middle-income households--though Forest City Ratner initially set 140% of AMI as the upper bound in its publicity.

“The programs we have discussed with Forest City and ACORN,” Wambua said, would range from 60% of AMI to 165% of AMI.”

In other words, a slight but not insignificant increase in the upper bounds of middle-income subsidized apartments.

Montgomery asked for specifics. Wambua began looking at some documents.

Daughtry took advantage of the pause to heckle again: “More delay, more delay, for a development as good as that.”

Wambua said that a family of four with an income of $30,000 would qualify under 40% of AMI.

Perkins began asking some seemingly basic questions about the number of affordable units, a mix determined in the housing Memorandum of Understanding and appearing in state documents.

Forest City/ACORN decision

Wambua, surprisingly enough, said “that’s not what I’m able to give you... Forest City is responsible for determining ultimate unit mix.” Forest City and ACORN, he said, were “deliberating.”

He said that the upper range of affordability--in HDC programs, not necessarily AY--was 175% of AMI, or $135,000 for a family of four.

“You have no idea yet when these negotiations would be finalized,” Montgomery asked.

“My understanding is that Forest City and ACORN are deliberating to what the ultimate mix is going to be,” Wambua responded.

Lesser impact?

Montgomery (shown with some attendees) asked if “we can now have a conversation with you similar to how the developer is having a conversations with you… about some possible improvements in what the community views as the scale and other aspects of the project.”

“We’d be more than happy to speak to you at any time,” Pinsky replied brightly.

“You and Assemblymember Jeffries had asked for a meeting a while ago,” said Lago, noting that she and others had visited Perkins at his offices.

“We want to talk to the other ear, that the developer isn’t talking to,” Montgomery said.

Downsizing = fewer subsidies?

Montgomery asked, if the project is being downsized, whether city and state investment would be lower.

Lago said no. While discussions have focused on how to make the project doable, “what has not changed is that the project will involve a reconstructed Vanderbilt Yard… will entail an arena.”

Perkins (pictured with Council Member James and Montgomery) followed up.

“At the risk of appearing confrontational, I don’t view it as downsizing,” Lago said, going back to her kitchen analogy. “You’re getting a new kitchen, just some of the shiny chrome finishes will be changed.”

Forest City absence

“Can you give me an idea of what value engineering means?” Perkins asked.

“The folks best positioned would be the folks driving the project from the private sector, Forest City,” responded Lago.

She cited the expense of luxury boxes.

(Later, Perkins asked if there was anyone from Forest City in the audience. He got no answer, though many attendees obviously were there at the behest of the developer.)

Kruger’s serenade

Kruger, known for his Brooklyn aria during the 8/23/06 hearing, bizarrely combined another invocation of his beloved borough with an attack on the MTA.

“It is very disconcerting to me as chairperson of the Senate Finance Committee,” he said, “to hear and know that the MTA was foot-dragging in developing a dialogue” that could advance the Atlantic Yards project.

In other words, Kruger was accusing the MTA of intransigence as Forest City Ratner tries to reduce its obligations to pay cash and provide and upgraded railyard.

As Kruger--a Democrat who often was allied with the Republicans when that party was a majority in the Senate--spoke, Montgomery looked at him with a chilly expression.

MTA negotiations

“Forest City needs assurances” that MTA is working with the project, said Kruger, a recipient of Forest City campaign cash.

As Kruger continued, citing gentrification in Harlem and Brooklyn, a heckler--presumably a project critic--shouted, “Ask questions.”

Kruger finally did. “How long is it going to take, what you call sensitive negotiations...?”

Williams, who must maintain a good relationship with the legislature, was extremely cordial. She first thanked the legislators for helping save the MTA budget.

“Let me say that I worked personally on the issue of the conceptual yard design, that I can protect train service to Brooklyn,” she said. “We set a deadline of the Friday before Memorial Day” and reached agreement on the upgraded yard.

Jeffries hones in

Jeffries then got a chance to ask questions. Citing displacement and gentrification in the areas around Atlantic Yards, he said that public benefits should be used to create affordable housing for the folks who have been pushed out. “Would you agree with that?”

Lago said that ESDC had a support for affordable housing, but “I’d place an equal emphasis on jobs.”

“It’s in the agreement,” heckled Daughtry.

Jeffries went through the housing numbers, identifying 1950 condo units--actually 1930--of which approximately 200 are supposed to be affordable. (That last promise came in last-minute concessions by Forest City Ratner, but are not in state documentation.)

“My understanding,” Lago said, is that there 600 to 1000 subsidized homeowner units, with 200 targeted on site. That’s in Forest City’s agreement with ACORN, but does not appear in government documentation.

“I personally think that 200 is not significant enough,” Jeffries said.

Then he did some math. If half the rental units are affordable, plus 200 subsidized condos, that would be about 37.5%. (Actually, 2450 of 6430 would be 38.1%.)

Jeffries asked how many units would be built in Phase 1.

Wambua said either 300 affordable units--13.3% of the total promised--or, if it’s a larger total, 30% of whatever’s built.

“Wouldn’t it be reasonable that community expect that the percentage be at least proportional to overall percentage?” Jeffries asked.

“Assemblymember, I actually think we’re on the same side,” Wambua said. He said that “the struggle on the Forest City side is how to calibrate the phasing,” given that the economy has changed.

Jeffries, who didn’t mention the previously established funding agreements, asked why ESDC wouldn’t require that Forest City maximize the number of affordable units

“We’re very focused on getting the project under way,” Lago said. “It has to be financeable [and] economically feasible.”

Even with generous federal, state, and city programs, a 100% affordable project isn’t feasible, she said.

“I haven’t suggested 100%,” Jeffries responded. “What I have suggested is proportional affordability.”

He asked if Lago wouldn’t agree the affordable housing is most economically feasible

“The balance has to be born by the project’s economics,” Lago said.

“Is it more economically feasible to build an arena,” Jeffries asked, or to build the housing?

“The economics of the arena will be borne by the folks who buy the bonds,” Lago said, not mentioning that most of the subsidies were tied to the arena.

Jeffries pressed on: “Forest City, they’re going to build the arena simultaneous to exactly how many units of affordable housing?”

“It’s not clear that they’ll be building simultaneously,” Pinsky acknowledged. “There’s a time period with which they have to build the arena and four towers.”

Jeffries didn’t ask about the time period. Actually, that 12-year time period does not require four of the five announced towers in Phase 1 to be completed without penalty, just a certain amount of space, which might be accomplished in three towers.

Questioning the MTA: bailout?

Jeffries pointed to proposed MTA fare increases of 26% as well as draconian service reductions. He asked Williams to guarantee no fare increases in the next three years.

Williams said she couldn’t offer such a guarantee.

MTA’s fiduciary duty is to the public, not any outside developer or entity, Jeffries said, asking, “Would that be fair?”

Williams agreed.

“I’m still struggling around the phrase ‘value engineering,’” Jeffries allowed. “It seems like a phrase created by corporate America... To some folks, it’s value engineering, to some folks, it’s a bailout.”

He asked about the $100 million Forest City owed.


Williams said the developer would still have to pay, over a longer period of time, including interest--like a mortgage.

“Isn’t it correct that that if you were given $100 million payment up front,” that would ward off a fare increase, Jeffries asked, in a bit of grandstanding.

Williams, in a steady voice, responded that the money was always directed at the MTA’s capital funds, not operating expenses.

Jeffries noted that there’s a shortfall in capital funding.

Williams agreed.

Fiduciary duty

Jeffries suggested it’s still in the MTA’ s best interest to hold the developer to its initial commitment “as a matter of upholding your fiduciary relationship.”

Williams, a lawyer herself, demurred. “I want to be very cautious about characterizing how that fiduciary duty is fulfilled,” she said. “There are lots of ranges for fulfilling it.”

"I think there is room to say the board’s meeting its obligation, the community is getting benefits of going forward, and we don’t have to demand the $100 million on closing,” she said. “At the end of the day, it’s got to equal the value of the $100 million.”

Daughtry offered an appreciative heckle: “Good answers.”

“I think we all would like a discount, but the question is: at whose expense would that discount” come from, Jeffries followed up. “I don’t think it should come from the community.”

Jeffries went on to ask about local hiring guarantees.

“It’s in the Community Benefit Agreement,” shouted Daughtry.

Lago cited goals in the General Project Plan (GPP), then went on to cite the CBA, which she said “I believe” local officials were a part of

“Neither of us were a part of it,” Montgomery commented acidly.

“There are some concerns about the enforceability” of the CBA, said Jeffries. Indeed, if Forest City sells the project, the agreement could be moot.

Jeffries asked about outreach.

Lago said the project was blocked by litigation.

"Legitimate duty"

Jeffries expressed skepticism that litigation precluded job training.

Summing up, Jeffries said that legislators were concerned because of substantial public investment of money, as well as a waiver of ULURP (Uniform Land Use Review Procedure), a state zoning override, and the use of the “extraordinary power of eminent domain.”

So, “despite the clamor that may exist, there’s a legitimate duty that we have to adequately represent the public interest,” Jeffries declared.

Daughtry stood up, and, like a broken record, heckled, “They’re blocking the program!”

Golden’s moment

Golden (right), given a chance to ask questions, said he’d request simple yes and no responses. “I think you’ve gone through enough torture today,” he said to the governmental witnesses, even though they’d been treated rather gently.

He recited some basic numbers in the project document: 6430 units of housing, 850,000 square foot arena, 900,000 square feet of office/hotel, 247,000 square feet of retail.

“Is that still there?” he asked.

“Please don’t hold me to every square foot,” said Lago, “but the GPP has not changed.”

It hasn’t changed, but it most likely will change.

Golden, a Republican long hostile to reform of rent regulation, noted 2250 affordable units negotiated by “ACORN, the premier low-income housing organization.”

Is the CBA still in place?

The CBA, acknowledged Lago, is outside the GPP

Daughtry shouted out: “We can show it, we can make it happen.”

Bending over backwards

Golden noted that the legislative session is supposed to end on June 23. If any other state legislation is required after June 24, he said, he’d suggest that the legislature “stay in session, until this project goes forward.”

He was cheered.

He then went through several other elements of the agreement. The $6.5 billion in economic output from the project--is that correct, he asked.

“Nothing has changed, Senator, since the General Project Plan, and the documentation backing it up,” responded Lago.

“And the $5.6 billion in new tax revenues to the city and state over 30 years?” he continued.

“Nothing has changed from the GPP,” responded Lago.

That $5.6 billion figure appears nowhere in state documents. It is a figment from Forest City Ratner, though FCR lawyers have claimed it was a government statement.

Stimulus funds?

Golden asked if there was any stimulus money for the project.

ESDC “has not asked for stimulus dollars,” Lago said.

Golden asked why not.

“In looking at the project and the amount of public subsidy and the right way of getting it forward, we have not determined that stimulus funds are part of that package,” Lago responded carefully.

Golden asked if there was enough money as designated in the original agreement.

“As we’re looking at the project now, as all of us are engaged in the sensitive negotiation, they have not entailed a request for stimulus money,” Lago said.

“If that request were made, would you be willing to make that request?” Golden asked.

“That would be something that we would consider,” Lago said. “We would of course look at the overall project plan.”

Golden said he’d make a request.

The crowd erupted in cheers.

Golden asked the crowd to calm down. He said that, while it seemed things were “beaten to death,” times change and some questions have to be answered, so “I commend my colleagues.”

“They’re blocking the program,” heckled Daughtry.

Golden went on to say that two baseball stadiums had been built and the World Trade Center started. “It’s time, ladies and gentlemen, it’s time for the hearings to stop,” he declared.

He got a standing ovation.

Montgomery targets Golden

Montgomery, alluding to Golden’s disruptive entrance, said “I really am absolutely surprised at the disrespect that you have for the three elected officials sitting here.”

She got big boos.

She raised her hand to quiet the crowd. Perkins asked for order.

"It is not up to Senator Golden to determine what gets on the floor," Montgomery said, with an edge in her voice, alluding to the fact that the Democrats, after many years out of power, now control the Senate. The rest of her statement was drowned out by the bellowing.

Perkins, talking over the hubbub, thanked the panel, called it “informative and engaging panel,” noting that new information had emerged, and that more would be revealed as negotiations continue. Again, he presumed the project as a done deal, saying that he wanted to make sure that "the community will understand the benefits of this project and realize the benefits of this project."

It was past 3:30. The first panel had testified for some 2.5 hours.

Project opponents

When the hearing resumed shortly afterward, a good segment of the crowd had left, and Perkins advised the three-person panel of project to abbreviate their testimony to nor more than 20 minutes.

“Are these people pro or con?” heckled Daughtry.

Perkins said to listen to the testimony.

Jeffrey Baker (right, with Goldstein at left), attorney for Develop Don’t Destroy Brooklyn and community groups challenging the environmental impact statement, said “we do not question the need to develop the Vanderbilt Yards… and to provide affordable housing,” but “we do question the structure of this deal.”

Saying he respected the inability of the previous panel to provide details on a revised plan, Baker urged the panel to hold another hearing as soon as the Modified GPP was issued.

He was heckled.

Perkins admonished the crowd: “Everything you disagree with does not have to be sounded out.”

“I was born in Brooklyn,” one person heckled, reminiscent of the street cred shout-outs on 8/23/06. More people heckled. Perkins addressed Daughtry, saying he “might ask for a prayer in a minute.”

“It’s too important” Perkins said of the reasons for oversight.

“Let’s build it,” bellowed an audience member.

“The point of an additional hearing... is not to stall or delay the project but to elicit information,” Baker said. “I find it personally shocking and I imagine you find it insulting, that Forest City Ratner refuses to show up at this hearing to answer those question. Nevertheless, Forest City Ratner has no compunction about orchestrating the turnout by the trades councils and the unions to be the disruptive forces--”

“We’re not disruptive,” bellowed an audience member, thus proving Baker’s point.

Private bonds

Baker said Lago’s statement that the bonding will be private bonds is “a shockingly irresponsible” but technically legal answer. He noted that, in the 1970s, the city and state were on the brink of default, because organizations like the ESDC’s predecessor approved irresponsible loans.

While the lenders do not have direct recourse for the state to pay for the bonds, he said, “the fact is the moral obligation of the state supports those bonds, and if the state was not going to cover those bonds, the state would not be able to borrow any money, because the capital markets would be closed.”

“That is a fact,” he said emphatically. “And that is the reason why the Public Authorities Control Board [PACB] was instituted."

“For the ESDC to be going forward on the basis of approving a project and simply saying the risk is being borne by developer and is not a risk of the state, is not to hearken back to the relatively distant past of the 70s but the past of a couple of years ago, where we had irresponsible lending and lack of financial controls.”

“I strongly believe that if the MTA is going to renegotiate the deal with Forest City Ratner,” he said, “they have to go out for a new RFP and open the project up.”

Goldstein: blame FCR

DDDB’s Goldstein took the mike to low boos and he departed from his prepared statement to address the legislators and the crowd. “You guys want to boo me,” he said rhetorically. “I want construction [over the Vanderbilt Yard]. The chief impediment to construction is Forest City Ratner’s maniacal drive to build a 800 million-dollar arena that will sit empty most of the time.”

Forest City Ratner, he noted, likes to claim the the project was stalled because of litigation. “But today, they said, over and over, it was a financial issue, he said.

Actually, the ESDC maintained Forest City Ratner’s claim that litigation was to blame, but all the previous discussion about negotiation was an acknowledgment that financial issues remain unresolved.

The ESDC, he said, leaning forward to emphasize his words, could start condemnation tomorrow, but haven’t done so, “because they don’t have the financing for the project.”

“You guys can jeer me,” Goldstein said, challenging the disrespectful audience members, “but it’s Forest City Ratner” who's responsible.

Perkins advised Goldstein to “talk to us.”

Project a "charade"

Goldstein then made a statement that should’ve been made up front: “The project that was approved in 2006 doesn’t exist in reality, not the jobs, not the housing, not the arena.” He called it a “charade that this project can built as proposed... That is a fact.”

He said that the MTA made a sweetheart deal with FCR, given that the rights to the railyard were appraised at $214 million [actually, $214.5 million], with a competing bid offering $150 million.

“Besides it being a wired deal” he said the MTA was convinced because Forest City Ratner was "going to build a state of the art new railyard” while rival bidder Extell was not.

Now, he suggested, the “bid is nearly worthless... The MTA, which just got this bailout, is going to bail out Forest City Ratner.”

He pointed out that Lago could not say what the project benefits would be or how long it would take. A month ago, he noted, Lago admitted it would take “decades,” but it was proposed and approved at ten years.

Missing Urban Room

“She didn’t say what would happen with the Urban Room,” Goldstein said of the much-touted entrance to the subway and arena.

“It would not exist," he said, "because the commercial tower, which would provide the space and jobs, is not going to be built.”

Next controversy: PILOTs

The next controversy, he suggested, is that Forest City Ratner will inflate the assessment under the arena to meet the schedule for PILOTs (payments in lieu of taxes) to pay off the arena. (Actually, the city will make the assessment, likely at the developer’s nudging.)

“They are going to violate IRS regulations,” he warned. “Hopefully it will come before your committee.”

Perkins thanked Goldstein, indicating it was the end of his testimony. Goldstein added one more thing: “Forest City Ratner is driving this process, and no one, not even ESDC, can say what it looks like... [and] what it costs.”

He got substantial cheers from the project opponents in the audience, finally seeing someone counterpunch, but he also drew major boos.

(Above: Goldstein, with the IBO's Sweeting behind him.)

Short shrift to security

Alan Rosner, who has raised questions about arena security issues and the effects of shadows on access to solar energy, was asked to move quickly through his testimony.

Perkins had no questions. Rosner was incredulous: “You asked us to go quick so you could ask questions.”

Perkins had clearly already had a full day.

IBO testimony

Sweeting, who by rights should have testified with or right after the initial panel, then got a chance to provide his testimony, noting that the nonpartisan city agency’s estimates are neither an endorsement nor a condemnation of the project.

The Observer noted that the IBO numbers assume all the subsidy goes to the arena, though the project as a whole is larger. (Well, $100 million goes for land acquisition on the arena block, and $105 million goes to infrastructure improvements, many though not necessarily all go to the arena. We don’t have a full breakdown.)

Tax loss on arena bonds: $200M?

Sweeting also provided a revised estimate of the cost to the public of tax-exempt arena bonds. He noted that the estimated cost of the arena in September 2005, when the IBO did its report, was $555.3 million.

Now, using an estimate of $850 million--which Sweeting acknowledged was hypothetical--IBO estimates that the public sector cost in foregone tax revenue would be $200 million, with nearly all, $193 million, borne by federal taxpayers, and $4.5 million by city taxpayers. Forest City’s savings would amount to $191 million.

It was an implicit argument for additional federal scrutiny by Rep. Dennis Kucinich, who has looked at sports facility finance, concentrating on the new Yankee Stadium.

(Sweeting’s estimate may be high; Forest City Ratner has said it hopes to trim $200 million from the $950 million arena cost, which would put the tab at $750 million, and a somewhat decreased amount of foregone tax revenue.

Assessment issue

Sweeting also pointed to the need, as with Yankee Stadium, to get the PILOTs to work: “Relying on this interpretation also depends on the city’s Finance Department assigning a property tax assessment to the arena which results in a payment in lieu of taxes—supposedly equivalent to a regular property tax bill—large enough to cover the annual debt service. This assessment process for Yankee Stadium proved quite controversial, with the city’s assessment higher than those of several independent appraisers, and the process may prove controversial again at Atlantic Yards. In the case of the Yankees and Mets stadiums, the department indicated what the assessments would be prior to the start of construction. No similar announcement has been made for Atlantic Yards, but it is notable that the land assessments for the parcels under the arena have more than tripled in the last three years.”

That’s a tantalizing issue; expect more discussion.

Bottom line

Perkins drilled down: “What would you say is the bottom line?”

“The bottom line,” Sweeting responded, “is that, with the project substantially changed, many of the numbers that were used earlier today about how much the net benefit for the city would be, until we know how much they’re changing the assumptions that were, in terms of the amount of office space, the amount of commercial space, as those things change, it’s appropriate to go back and ask: how does that then change the estimated fiscal benefit to the city. It’s important to keep in mind that most of the new tax revenue that’s generated form the project comes form the commercial space, the office space. if the project that finally emerges has less commercial office space, then presumably that tax revenue piece that’s spun off from there will be lower.”

Project supporters

Daughtry (right, with James Caldwell of BUILD) led off the next panel, and began with personal history, saying that he put together the slate that ran Montgomery in her first political race. “Council Member Tish James was a member of my church,” he said. “She’s backsliding.”

Perkins advised Daughtry that he was eating up his allotted time.

Daughtry went on to explain that he is pastor of the House of the Lord Church, and , head of the Downtown Brooklyn Neighborhood Alliance (DBNA), not acknowledging that the group has been funded by Forest City Ratner.

He then proceeded to cite and elaborate on Errol Louis’s Thursday column in the Daily News, headlined “The damage done to Brooklyn,” augmenting it by calling project opponents and critics “the killers of the people’s hope of a better life.”

Showing Daughtry more respect than he showed others, the crowd refrained from heckling.

“Here we go again, with another charade you euphemistically call a hearing,” Daughtry declared, showing that he and DDDB’s Goldstein had diametrically different views on what constitutes a charade.

He went on to echo past testimony about the CBA, calling it a model and saying “there is a small minority that dissent.”

(Remember, the Rev. David Dyson of Lafayette Avenue Presbyterian Church told the Brooklyn Rail that the project had split progressives: “We feel that Reverend Daughtry and ACORN have been brought in by Ratner not as advocates for the community but as private business partners in the deal.”)

BUILD testimony

James Caldwell, president of BUILD (Brooklyn United for Innovative Local Development) began, as he typically does, by thanking Jesus Christ. (What would Christ have made of the heckling?)

Caldwell commended Perkins for being one of the few politicians who initially stood up for Barack Obama, but said “I was very hurt” when Perkins “made a trip to Brooklyn without even talking to the supporters.” He went on to cite the importance of the project to young men out of work.

“When you are assigned in the legislature to chair a committee,” Perkins responded, “you are assigned to chair that committee from the perspective of the state… you’re required to have oversight hearings.”

“With all due respect, we invited you and you responded to the invitation,” Perkins said, apparently addressing the hearing at issue rather than a preliminary meeting attended mostly by project critics.

A BUILD member, Lisa Holloway (right with Marie Louis), offered rambling testimony in support of the project, explaining that she had gotten her life together after “eight years in the penitentiary.”

Then BUILD COO Marie Louis touted the CBA’s “legally-binding strategies.” No one pointed out that the CBA is not, in fact, legally binding.

Shiffman: AY a "sham"

Ron Shiffman (right), founder of the Pratt Center for Community Development (and a member of DDDB’s board), cited his long history of working with low- and moderate-income communities.

While Shiffman said he has “a great deal of respect for groups that negotiated the CBA... I totally disagree with them on this project, because I have read and reviewed the plans.”

He pointed out that claimed 12000 would occur over a decade or two decades, not this year. “It’s a fraud to talk about this.”

All the funding for affordable housing is money “being transferred from other neighborhoods in Brooklyn, housing that could be built right away… at a more affordable rate.”

He noted that the environmental review “shows that more low and moderate income families would be displaced than will be housed” by AY. (Actually, it’s “risk” of displacement.)

As for issues of minority hiring and contracting and affordable housing, he said “it should be part of public policy” rather than part of a CBA because it “allows the developer to literally buy” support for the project. Rather, there should be a level playing field.

He added that the promised open space would be publicly accessible but not truly public space, “it’s the courtyards of the buildings.” (He didn’t mention that the open space wouldn’t come until the unspecified Phase 2.

Closing by calling AY a “sham,” Shiffman was met by moderate applause and little heckling, given that many project supporters had left.

Questions about funding and blight

He was followed by Patti Hagan of the Prospect Heights Action Coalition, who in July 2003 “called a war against Bruce Ratner,” spotting plans for the project well before they were announced. Our questions then-how much does it cost, where does the money come from, what are taxpayers paying--”remain the same and largely unanswered.”

Perkins rushed her to finish as she began to list the curious characteristics that have been used to describe properties as blighted.

Affordable housing questions

Michelle de la Uz (left below, with Deb Howard of the Pratt Area Community Council) of the Fifth Avenue Committee cited her group’s experience in building and manage affordable housing and job training.

She said the legislators should ask the ESDC and NYC HDC about the cost of affordable housing, suggesting that the per-dwelling unit cost for Atlantic Yards is more than “twice the cost of what I build at FAC and what Deb builds at PACC."

Only 14% of the units would be “specifically affordable to residents of Brooklyn,” she said, apparently referring to the difference between AMI, set on a regional basis, and borough income. “For that level of subsidy, shouldn’t we be getting deeper affordability?”

It’s a little difficult, actually, to compare the cost of housing, given that it’s more costly to build at the AY site and the mix of units may be different. Also, there’s a difference between union and non-union labor, as noted below.

Howard said a Freedom of Information Law (FOIL) request showed that $1.9 billion worth of tax-exempt funds would be needed for the project.

(While FCR filed multiple documents regarding potential use of funding, document revealed in AY litigation said that $1.4 billion in bonds would be needed.)

How long would it take?

Howard drilled down to a question raised by AYR: how long would it take to fund the housing?

“What you need to be asking HDC is, what is their annual allocation of these bonds, so you’ll know what it realistically takes to finance the affordable housing?” Howard said.

Also, raising an issue pushed by the BrooklynSpeaks coalition, she noted that other comparable project have a local development corporation that takes on governance.

Near-final speakers

A representative of Sen. Diane Savino, whose district encompasses Staten Island and Southern Brooklyn, expressed support for the project. (FCR’s Bender long worked in Southern Brooklyn, home of Kruger and Golden.)

Ruth Payne, coach of a Double Dutch team supported by Forest City Ratner, lauded Bruce Ratner.

Henry Weinstein, who has in court prevailed against Shaya Boymelgreen’s attempt to transfer a lease to Forest City Ratner, read part of a statement.

Carpenters’ union rep Anthony Pugliese (left)commented that FAC builds non-union--a factor in building at less expense.

James: arena only

At 5:36 pm, after a long day, Council Member Letitia James got to speak. “It’s regrettable,” she said, that as the MTA is renegotiating with the developer, three nearby subway booths are slated to be closed. (Like Jeffries, she was conflating operating funds and capital funds.)

“It is regrettable that the state of New York, in cooperating with this developer, has chosen to override local land use,” James said, adding that it’s a false dichotomy to say that it’s this project or nothing.


“It is also my understanding that, according to a source at ESDC,” James said, that the project is now limited to “the arena and the arena only....If there should be any building... it should be housing, and housing alone.”

Her statement had essentially been confirmed by Pinsky, who had said, “It’s not clear that they’ll be building [the arena and housing] simultaneously.”

Targeting Golden, James continued, “It’s rather unfortunate that we had to bear the disrespect of a local politician who did not support Barack Obama and never supported affordable housing in his district in Bay Ridge.”

Montgomery's edge

Montgomery added, that it’s “not an issue, whether or not we are for or against development.”

Most developments, she said, she supports. “But there are principles involved in the relationship between the developer and the community,” she added, with an edge in her voice. “That’s what I am asking for.”

“We have an obligation to have some oversight over these authorities and commissions that are tieing us into billions of dollars of debt,” she observed. “All of us have an interest in making sure there’s some oversight.”

Gathering steam and an energy that might have been better deployed earlier, she concluded, “For those who are confused about the purpose, I’m very sorry… they’re still my friends… but they certainly don’t understand what the deal is… as long as we are paying our tax dollars, we need to have information.”

The myth of construction jobs: it's not AY or nothing

Given that there are no plans for office space, the major source of jobs--as of now--should Atlantic Yards be built would be temporary construction jobs. So supporters like Errol Louis, in touting the project, should acknowledge that.

Also consider economist Brad Humphreys, who testified skeptically at a Congressional hearing last September concerning Yankee Stadium, noting that the alternative to the new project was not zero construction jobs but, instead, jobs elsewhere.

The same would apply to Atlantic Yards, so that's important to remember if, for example, construction workers show up en masse at today's oversight hearing.

Humphreys' testimony

“The key to determining the actual net economic benefits generated by sports stadium construction projects is to determine how many jobs are created that would not have existed if the project did not take place, and also to determine how many of the workers filling those jobs would have been unemployed if the project had not taken place,” he said. “According to economic theory, only this small subset of the total number of jobs created by a stadium construction project can be counted as part of the economic impact of the project.”

“The net economic benefit created by stadium construction projects is much smaller than the total economic benefit (which can be easily found by simply adding up the total amount of spending associated with the project) because of the presence of opportunity costs, and the double counting that typically takes place when non-economists attempt to estimate these benefits,” he observed.

“Opportunity cost is the cost of forgone alternatives. In the case of the New Yankee Stadium, the facility generates significant opportunity costs for the City of New York and in the local community," he said. "The City could have issued a billion plus dollars of tax exempt bonds to finance any number of alternatives.”

“The materials and supplies that are going into the construction of the new stadium could have been used on other construction projects,” he said. “And most importantly, the construction workers employed on this project could have worked on other projects.”

As I wrote, while supporters often suggest it’s AY or nothing, others point out that an alternative, albeit smaller project, could be built on the Vanderbilt Yard, and subsidies and incentives deployed elsewhere.

Some questions for today's Atlantic Yards oversight hearing

Here's a round-up of some questions that might be addressed at the State Senate oversight hearing today, notably by representatives of the Empire State Development Corporation (ESDC). Most but not all have appeared previously on this blog.

(Forest City Ratner seems unlikely to testify, but State Senator Bill Perkins, contradicting a statement by the developer's rep to Daily News columnist Errol Louis, said FCR was invited. The hearing at Pratt Institute is supposed to start at 1 pm, but it's always good to get there early.) 

Costs and timetable

Why is the cost of the project and arena a secret? And why did Bruce Ratner disclose the cost to the Times? Where's the new timetable and budget? How long would the arena take to build? Could it really open in 2011?

Why did the State Funding Agreement provide no timetable for Phase 2? Why did the City Funding Agreement impose no penalties for a Phase 1 some 44% smaller than approved?

Does the ESDC really believe the project could be completed in the announced ten-year timeframe? Would groundbreaking be this year or next year? Was the ESDC candid or deceptive about the timetable to the IRS?

Is there an interim plan for the site, should nothing get built over most of it?

Will a new Modified General Project Plan be issued and when? If so, when would a public hearing be held? Would changes in the project timetable necessitate a revision of the environmental impact statement? Would they necessitate a new vote by the Public Authorities Control Board (PACB)? 

Analysis of benefits?

What is the financial accountability for the project? How are the government agencies considering renegotiating the deal? Is there any new analysis of expected benefits? Will there ever be a cost-benefit analysis?

What does the Independent Budget Office (IBO)  think, given that tax revenues from the arena are surely reduced from 2005, when the arena cost-benefit analysis showed a break-even proposition? (The IBO, which did not attempt a cost-benefit analysis for the project as a whole, will testify at the hearing.)

The architect's role

Is Frank Gehry still on the project? What's Ellerbe Becket's role? How does Gehry's diminished role affect naming rights and expected revenue?

Is Laurie Olin still on the project? Is another landscape architect?

The MTA and the railyard

Will Forest City Ratner pay the MTA the promised $100 million once the ESDC begins to pursue eminent domain? Will the MTA be willing to compromise with Forest City's request to amend the agreement and pay only $20 million up front?

If Forest City Ratner does not create the upgraded railyard it intended, would that be violating the General Project Plan?

Who's in charge?

What did Chuck Ratner, CEO of parent Forest City Enterprises, mean when he said two years ago --before the economic downturn--that "we still need more" subsidies? Was he talking about the city, the state, or the MTA--or all three?

Did the ESDC do any independent evaluation of Forest City Ratner's claim that it had stalled work because of litigation?

Why did the ESDC let the city Department of Transportation make a deal regarding reconstruction of the Carlton Avenue Bridge at a different timetable than announced?


What exactly does volunteer Susan Rahm do on the project?

Did the promised utility work on Pacific Street ever occur? Why did the utility work schedule change? Why is Forest City Ratner in complete charge of Construction Updates?

Should the ESDC have created a more honest property ownership map? Will all properties be taken by eminent domain at the same time? Including Site 5?

Affordable housing

Was there ever enough bond capacity to support the promised AY affordable housing over ten years? 

What's the minimum the developer could build? Why is ACORN muzzled?

Questions of blight

Should minor cracks in the sidewalk be considered blight? What about lots to 60 percent or less of their allowable Floor Area Ratio (FAR) under current zoning?

Was the fabric of the community "shot to hell"

Has the developer exacerbated blight via demolitions?

Project rationale

Can anyone at the ESDC claim, as did the agency's consultant AKRF in the environmental impact statement:
The project site is not anticipated to experience substantial change in the future without the proposed project by 2016 due to the existence of the open rail yard and the low-density industrial zoning regulations.

Thursday, May 28, 2009

Senator Perkins confirms that Forest City Ratner was invited to the hearing

State Senator Bill Perkins took umbrage at the quotation from an unnamed Forest City Ratner representative, as reported in Errol Louis’s Daily News column today, that the developer “wasn't even asked to testify at Perkins' invitation-only hearing.”

“I’m disturbed by the insinuation we did not invite Forest City Ratner,” Perkins told me, after I called his office to inquire. “You can be sure that if they called to meet with me”—the developer asked Perkins to postpone the hearing—“you can be sure they were invited.”

He said that FCR had been invited by mail, fax, and email, and that, “when their representative met with me to share some of their concerns, they were invited by me personally.”

Need for oversight

“Change in itself is not a bad thing,” Perkins said, “but if there is a change, the public has a right to know how their investment of public resources is being used.”

Whether or not FCR shows up Friday, “there without a doubt will be additional hearings” on Atlantic Yards, Perkins said. “I would hope they live up to their responsibility to the public, and let the public know where they’re coming from.”

Errol Louis blames AY foes, reveals that Ratner wants to pay MTA just $20 million at first

Amid New York Daily News columnist Errol Louis's predictable support for Atlantic Yards, criticism of project opponents, and avoidance of inconvenient facts, is some real news: developer Forest City Ratner wants to pay the Metropolitan Transportation Authority (MTA) just $20 million--rather than the $100 million pledged--then pay the rest of the sum over some unspecified timetable.

In other words, another indirect subsidy. Hints of the developer's strategy emerged in December, but not the sum at issue.

If the MTA is truly a guardian of its funds--the money would go to the capital plan, not operations--that deserves a lot of sunlight. Louis wrote that the MTA could vote as early as Friday morning; no board meeting is listed, and MTA spokesman Jeremy Soffin confirmed to me that there's no meeting. (An executive session requires a public meeting, and no special meeting is planned at this point, Soffin said. The next MTA board meeting is June 24.)

Keep in mind that Forest City Ratner's $100 million pledge in September 2005 was less than half the appraised value of $214.5 million--the appraiser took into account the value of an improved railyard, which FCR counts as a bonus--and less than Extell's $150 million bid. And that $100 million bid came only after a $50 million bid, and the decision by the MTA board--controlled by Gov. George Pataki at the time--to negotiate exclusively with FCR.

(El Diario has a far more skeptical editorial today: End developer welfare at Atlantic Yards.)

"My corner of Brooklyn"

Today's column, headlined The damage done to Brooklyn: Atlantic Yards has shrunk, and with it good jobs and affordable housing, begins:
More than five years after the first unveiling of Atlantic Yards, the ambitious project - a plan to build a basketball arena and thousands of units of housing - is being downsized and restructured so that maybe, just maybe, my corner of Brooklyn will secure badly needed jobs and housing.

It's been slow going.


As for "my corner of Brooklyn," consider that Louis lives in the eastern end of the district serviced by Community Board 8, while the project would be partly located in the far west end of CB 8, as well as two other Community Board districts,

"Frivolous litigation"

Louis writes:
Developer Bruce Ratner has been hobbled by frivolous litigation by an anti-development faction of neighborhood groups and a global credit crunch that's making it hard to line up financing for his multibillion-dollar project.

Louis can call it "frivolous litigation," but U.S. Magistrate Judge Robert M. Levy, in his 2/23/07 ruling, acknowledged that the plaintiffs’ eminent domain complaint “raises serious and difficult questions regarding the exercise of eminent domain under emerging Supreme Court jurisprudence.”

As for the litigation challenging the environmental review, Appellate Judge James Catterson filed a concurring opinion that read like a dissent, slamming the Empire State Development Corporation (ESDC) “for being used as a tool of the developer to displace and destroy neighborhoods that are ‘underutilized.’" Petitioners appealing that decision argued that Catterson’s inability to formally dissent, despite major misgivings, was a reason the Court of Appeals should step in and “determine the boundaries of judicial review.”

Government balking?

Louis writes:
Cash-strapped state and city government officials, who have already applied hundreds of millions in direct and indirect assistance to Ratner, are balking at giving any more help.

Project insiders say Ratner's most pressing short-term financial hump is the need to pay $100 million to the Metropolitan Transportation Authority for the Vanderbilt Yards, a crucial stretch of property and train tracks along Atlantic Ave. between Flatbush and Vandbilt Aves.

As early as tomorrow, the MTA board could vote in closed session on whether to allow Ratner to make a smaller-than-expected downpayment - $20 million or so - and allow him to pay the rest over time.

If that happens, Ratner hopes to break ground on the arena this fall, using part of the railyards as a construction staging area.


That doesn't sound like government is balking just yet. Nor do we know whether the city, for example, will speed up payments of money owed, as the developer has requested. In other words, there are ways to offer indirect subsidies without adding additional cash.

Arena re-design, public hearing

Louis writes:
That's the optimistic timetable. More delays are almost certain to crop up.

As reported by my Daily News colleague Jotham Sederstrom, the striking, soaring (and costly) arena designed by architect Frank Gehry will likely give way to a less expensive creation by Ellerbe Becket, the Kansas City firm that designed the Conseco Fieldhouse in Indianapolis, the Fedex Forum in Memphis and a host of other sports projects.

Adding to redesign delays will be a requirement that revisions to the project go through public review, complete with hearings and a 30-day comment period.


Note that Conseco Fieldhouse, rather than the Ellerbe Becket's newer arenas in Memphis and Charlotte, gets mentioned first. Is that a hint that the AY arena would look most like Conseco?

Louis doesn't pause to consider why arena costs went up so rapidly, some 50% after the project was approved in December 2006. Was that because, as Sederstrom's reporting suggested, no one calculated the cost of safety glass?

The "obstructionists" and the hearing

Louis writes about the hearing scheduled for tomorrow:
And that brings us to the obstructionists who have spent more than five years In a losing battle to block the project in court and/or convince the world that Brooklynites don't want a massive investment in jobs, hoops and housing.

Expect a new wave of anti-project propaganda as soon as tomorrow, when Sen. Bill Perkins of Harlem, who chairs the state senate's committee on Corporations, Authorities and Commissions, convenes a misguided hearing in Brooklyn on Atlantic Yards.

"This hearing will trace the history of the Atlantic Yards project to determine its current status," the official notice reads, promising to "envision where this project might lead" and consider "whether this is the best possible deal for taxpayers and the local community" and "the meaning and use of the concept of 'blight' in condemnations," and "what is a 'public benefit' sufficient to justify massive state action."

The hearing will likely be a complete waste of time.


Does Louis think that the state's enormously loose application of vague language regarding blight--allowing minor cracks in the sidewalk and minor graffiti to qualify--is unworthy of scrutiny? Does he think that government should never do a cost-benefit analysis or, in this case, even a revised benefit analysis?

Issues in flux

Louis concludes:
Perkins is unlikely to hear about key aspects of the project that are in flux right now, including Ratner's purchase of the Vanderbilt Yards from the MTA.

Even if the details were settled, it turns out that Forest City - the single most knowledgeable source of changes to the project - wasn't even asked to testify at Perkins' invitation-only hearing, according to a company spokesman.

Questions like the meaning of "blight" and the application of New York's powerful eminent domain laws have been litigated repeatedly in state and federal court, debated in thousands of pages of testimony, and covered in detail in the press. There is no constructive reason to rehash these five-year-old questions yet again.

But the anti-development brigade - and, it seems, their new friend, Sen. Perkins - seem bent on blocking money and manpower from being mobilized.

That, in a city shedding jobs by the thousands, is inexcusable.


Well, the head of the MTA is supposed to testify. She should be asked about the attempt to revise the deal.

If Forest City Ratner wasn't asked to testify, that's not what I was told.

[Update 5:10 pm: Perkins says it's not true.]

As for the meaning of blight and eminent domain, last year, a Special Task Force on Eminent Domain appointed by the New York State Bar Association recommended a Temporary State Commission on Eminent Domain to address just such issues. Perkins held a hearing last September regarding reform of eminent domain laws.

The litigation and (skimpy) press coverage do not put the issues to rest; they only highlight the need for reform.

Check out Louis's language here:
But the anti-development brigade - and, it seems, their new friend, Sen. Perkins - seem bent on blocking money and manpower from being mobilized.

Note the passive voice. While money might be mobilized, more and more, it seems, it would not be contributed by the developer.

Jobs and housing

The only jobs right now would be construction jobs, and construction jobs could be created for many other projects.

As for housing, the developer plans to build only one tower. And there's no evidence that the developer or the state considered the availability of crucial housing bonds when they announced the ambitious plans that convinced Louis the project was legit.

As public hearing approaches tomorrow, questions of benefits and blight; will Bruce Ratner testify?

At the State Senate oversight hearing Friday, some big questions, as noted below, concern benefits and blight.

But one immediate question is: will Forest City Ratner show up to testify? CEO Bruce Ratner has been invited, but, at least as of yesterday, had not confirmed participation.

CBA witnesses?

Another question: will there be any witnesses from the Community Benefits Agreement (CBA)? If so, maybe they'll be asked about their financial dependence on Forest City Ratner.

Remember, Delia Hunley-Adossa, chair of the CBA executive committee (and a City Council candidate), won't say who supports her dubious environmental organization, Brooklyn Endeavor Experience.

The national organization ACORN never announced that it was bailed out--with a $1 million loan and $500,000 in grants--by Forest City Ratner, which has relied on ACORN's New York affiliate to supply crucial political support for the project. Can New York ACORN criticize the diminished plans for affordable housing? Unlikely.

Remember, experts on CBAs have criticized this agreement for unenforceability if Forest City Ratner sells the project--not unlike the apparent switch in architects--and because signatories are not supposed to accept money from developers.

Details

NYS Senate Public Hearing on Atlantic Yards and Public Authorities:
“Atlantic Yards: Where Are We Now, How Did We Get There, and Where is this Project Going?”
WHO: NYS Senator Bill Perkins, Committee Members Martin Malavé Dilan, William J. Larkin Jr., Hiram Monserrate, Michael H. Ranzenhofer, Daniel L. Squadron; NYS Senator Velmanette Montgomery

The following have confirmed they will testify:
Empire State Development Corporation CEO Marisa Lago
Metropolitan Transportation Authority Interim Chair and LIRR President Helena Williams
NYC Economic Development Corporation President Seth Pinsky

Others invited:
Forest City Ratner Corporation CEO Bruce Ratner
NYC Department of Transportation
Witnesses from environmental, planning, legal and social justice groups
Members of communities impacted by the proposed project

Location:
Higgins Hall, Pratt Institute
61 St. James Place [Map]
Brooklyn, NY 11238

Purpose

According to the official notice:

This hearing will trace the history of the Atlantic Yards project to determine its current status. The Committee's intent is to examine the process by which decisions are made, to understand where the project is now, and to envision where this project might lead. Issues involved include but are not limited to whether this is the best possible deal for taxpayers and the local community; whether the use of eminent domain is necessary and is it being exercised responsibly; the meaning and use of the concept of "blight" in condemnations; what is a "public benefit" sufficient to justify massive state action; and what are the financials?

I've suggested a range of questions.

Benefits and blight

I'll stress that the projected "public benefit" declined precipitously after office space was eliminated; now, there's no reason to build office space in the short-term, so projections of new tax revenues should be revised.

Also, as I noted, the state defines blight so loosely that it was applied to minor cracks in the sidewalk within the AY footprint. And, as veteran planner (and now Develop Don't Destroy Brooklyn board member) Ron Shiffman pointed out some two years ago, the ESDC's claim that lots that are built to 60 percent or less of their allowable Floor Area Ratio (FAR) under current zoning are blighted should be looked at with skepticism.

After all, the Atlantic Yards site is hardly an example of the fabric of the community being "shot to hell," to quote academic Lynne Sagalyn's characterization of blight.

"Home team advantage": what an Ellerbe Becket arena might look like and whether a 2011 opening date is possible

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

Two years ago, I pointed out
the essential lie in a 12/10/03 Forest City Ratner press release announcing the Atlantic Yards project (and accompanied by renderings by architect Frank Gehry such as the one at right):
The complex has been planned to look whole and complete during each phase of construction.

Given that many of the 16 towers were scheduled to slowly replace parking as the project proceeded, Atlantic Yards was never going to look "whole and complete." Now, as the developer plans just the arena and one tower, "whole and complete" is even more of a fantasy, and the Municipal Art Society's Atlantic Lots scenario seems more and more plausible.

But it's worth asking state representatives about the timetable to build the arena, whether they've seen designs from a new architect, and whether there are plans for interim open space.

Gehry's arena

Just one year ago, in May 2008, Forest City Ratner issued a new renderings, with more metal than glass on the arena.

But the arena now probably looks very different, especially since it seems that the firm Ellerbe Becket, responsible for many recent arenas, may be in charge of the design. The New York Daily News reported yesterday:
..."Because Gehry's designs are fairly complex, any real changes would probably end up looking like an Ellerbe Becket project," said a former Gehry architect who worked on Atlantic Yards until being laid off late last year. "[Gehry's projects are] relatively difficult to execute."

Gehry gone?

We won't get the official word for two months, according to the Daily News:
Ratner spokesman Joe DePlasco said a reevaluation of Gehry's design would be completed by July, at which point Ratner will determine whether the world-famous architect would remain on the project...

Given that Gehry's laid off his staff working on AY, I'd bet on Ellerbe Becket. And what's notable is that the company's arenas, with one partial exception, are essentially standalone structures, several ringed by parking. 

The exception is the more urban Verizon Center (right) in Washington, DC, which borders a retail complex and is reasonably integrated into an urban neighborhood--though not with housing as close or as connected as was planned for Atlantic Yards.

Arena, 2011?

Forest City Ratner claims that groundbreaking would be this summer, or October, though no date is truly certain.

It's highly unlikely, however, that groundbreaking would come next month, given that the Gehry-or-not decision wouldn't come until July. And, based on the timeline for Ellerbe Becket's recent arenas, it looks like a June groundbreaking is necessary to get the arena open for a basketball season beginning in October two years hence.

So a 2011 arena opening date, even if there are few legal and oversight hurdles, seems quite doubtful.

The arena for the Charlotte Bobcats broke ground in July 2003 and opened in October 2005. The arena for the Memphis Grizzlies broke ground in June 2002 and opened in October 2004. 

It has to take longer to build in Brooklyn, especially given the need to plan for adjacent towers. The original plans, I calculated, would take 32 months.

Looking at Ellerbe Becket's work

The text italicized below comes from the Ellerbe Becket web site, describing the work of its staffers.

The Time Warner Cable Arena in Charlotte

The architect of TimeWarner Cable Arena and BankAtlantic Center, Douglas Brown:
You'd be hard pressed to find a design professional with more sports project management experience than Doug Brown. He's overseen the design of seven NBA/NHL arenas and adjoining practice/training facilities. When the NBA Hornets moved from Charlotte to New Orleans, Doug was there to lead the renovation of the New Orleans Arena and bring it up to NBA standards. Likewise, when Charlotte voted to build an arena to attract a new NBA tenant, Doug oversaw the design and construction of the Time Warner Cable Arena (formerly Charlotte Bobcats Arena). As an Architectural Director, Doug also helps manage the firm’s Kansas City office.

The FedEx Forum in Memphis

Jon Niemuth:
Jon is an inspired conceptual and contextual designer, as evidenced by his “juke joint” concept for the Grizzlies NBA arena just off Memphis’ historic Beale Street. The project, known as FedExForum, has become the new standard for professional themed sports environments with its melding of the Memphis music scene into the overall fan experience. He’s been named to the “Forty Under 40” list of outstanding young professionals by both Building Design & Construction magazine and the Sports Business Journal.

Conseco Fieldhouse in Indianapolis

The architect of Conseco, James Poulson, has a bit of a reputation, at least when it comes to football:
James is a master at maximizing the home team advantage. At Qwest Field in Seattle, the Wall Street Journal noted that James’ design “made sure the wind and rain would disproportionately hit the visitors’ sideline. Mr. Poulson placed the cheapest endzone seats (where, he says, the ‘crazies’ sit) atop steel risers that send thundering noise to the hard surfaces on the overhangs and roof, redirecting it back to the field. The Seahawks are among the NFL’s leaders in false-start penalties called against the visiting teams.” James puts the same kind of intense research and understanding of the client’s needs into every project.
(Emphasis added)

"Home team advantage" sounds a little like Forest City Ratner's lobbying.

The AT&T Center in San Antonio

The architect of AT&T Center, William Crockett, Principal and National Director of Sports:
"We deliver innovation that achieves value," says Bill Crockett, Ellerbe Becket’s National Director of Sports. "Buildings we design are uniquely valuable. We live in a world where every city is becoming the same. This is a great opportunity for innovation." For two decades Bill has led the successful completion of a wide range of technically complex and successful Ellerbe Becket projects for government, private and higher education clients. Bill serves on the firm’s Management Committee and Board of Directors. Bill continues to lead projects in a hands-on manner while implementing diversification and expansion strategies for health sciences and other strategic offerings.

The BankAtlantic Center in Sunrise, FL

This arena is home to the Florida Panthers, the hockey team run by Michael Yormark, brother of Nets CEO Brett Yormark. 

Susan Fulton:
Susan’s tenure with Ellerbe Becket has focused almost exclusively on NBA/NHL professional arenas, like Time Warner Cable Arena (formerly Charlotte Bobcats Arena), FedExForum in Memphis and Conseco Fieldhouse in Indianapolis. She holds invaluable expertise in sightline issues, as well as the operational requirements of arena management, which impact overall design solutions.

The Sprint Center in Kansas City

The Sprint Center in Kansas City was the work of the Downtown Arena Design Team, composed of Ellerbe Becket, HOK Sport + Venue + Event, 360 Architecture and Rafael Architects.

Changing names

Note how many of these venues have changed their names, sometimes because of corporate evolution but other times as business deals changed. BankAtlantic Center was formerly Office Depot Center. Time Warner Cable Arena was formerly Charlotte Bobcats Arena. Verizon Center was formerly MCI Center. ATT&T Center was formerly SBC Center. Quicken Loans Arena in Cleveland was formerly Gund Arena.

This suggests that, should the Barclays Center get off the ground, it might not always be the Barclays Center, despite the reported naming-rights deal.

AY Arena 2006

In 2006 graphics, there was a tower at Site 5, between Pacific Street and Flatbush, Atlantic, and Fourth avenues, and there was more glass than the metal in the 2008 rendering (near top).

Here's more on the contrast between the May 2008 and May 2006 Image Galleries.

These distinctions may be moot now, as we await new designs.



Curious case: at the ESDC, a volunteer lawyer plays a key role in the Atlantic Yards project

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

Ever heard of Susan Rahm?

One key contributor to the Empire State Development Corporation's (ESDC) oversight of Atlantic Yards is an unpaid consultant--a retired partner at a major law firm, with a background in city planning and urban redevelopment--who has volunteered several days a week since the summer of 2007, well after the project was approved.

While it's not unheard of to have unpaid (or barely paid) workers serve in public capacities--Mayor Mike Bloomberg takes only a buck, and Caroline Kennedy famously raised funds for the school system--Rahm is the only person now at the ESDC functioning in such a role.

"Empire State Development is incredibly fortunate to draw on the years of experience that Ms. Rahm provides to us in her voluntary role as an advisor on the important Atlantic Yards project," ESDC spokesman Warner Johnston told me in response to my queries. "Public service is at the heart of good government and citizens of Brooklyn benefit from Ms. Rahm's time, expertise and commitment to assisting Empire State Development bring this critical project to fruition."

That may be. However, the reliance on a volunteer--less accountable than a staffer employed through normal channels--raises additional questions, in my mind at least, about the ESDC, especially given the controversy surrounding the project and the unease about the ESDC's "truly amazing powers" to pursue eminent domain. After all, the ESDC's willingness to defer to Forest City Ratner regarding such basic questions as utility work does not bolster the authority's reputation for accountability.

Also, as I describe below, there are contradictory accounts about what role Rahm plays.

FCR connection?

Also, Rahm, who in 1999 was honored by New York Commercial Real Estate Women (NYCREW) as "Woman of the Year," may have a professional acquaintanceship, at least, with Forest City Ratner executives like Joanne Minieri and Maryanne Gilmartin, both of whom, for example, spoke at a 2002 NYCREW event.

There's nothing wrong with that--commercial real estate is not a large world, especially among women. Still, it's less likely that Rahm has professional acquaintanceships with community members concerned about Atlantic Yards.

Public service questions

Rahm was brought in by the administration of then-Governor Eliot Spitzer to work on the project. How typical is such a role? "We have no other in-house volunteers at this moment," Johnston said, adding, "State government has used pro bono volunteers in many different capacities over the years."

I couldn't find any state guidelines about the role of volunteers. Nor could I get formal comment from any government watchdog groups about such a situation, though one representative, commenting generally, suggested that any level of concern would depend on the significance of the person's policy-making role.

Not policy-making?

And Rahm, according to Johnston, has no policy-making position, thus not triggering a requirement to file a financial disclosure form under the Public Officers Law.

Except maybe she does help make policy.

Speaking in February at a meeting called by the Council of Brooklyn Neighborhoods, ESDC Ombudsman Forrest Taylor said, "As an employee of the state, I attend all the meetings I’m invited to, and I take those issues and problems and concerns back to my boss, Susan Rahm, at ESDC."

Presumably that meant that Rahm has a policy-making role.

However, Johnston told me shortly afterward that Rahm was not, in fact Taylor's boss. An email I referenced in February, and reproduced at right, was ambiguous; it shows Taylor writing to Rahm and Darren Bloch, as if they were both on a level above him.

Johnston explained that Rahm "is a unpaid consultant to the AY project and as such has no direct reports. Mr. Taylor reports to Darren Bloch, EVP."

Well, either Taylor has trouble remembering his boss or the ESDC operates in a somewhat loosey-goosey manner.

FOIL request

I filed a Freedom of Information Law (FOIL) request asking how Rahm's role and responsibility was introduced to ESDC colleagues when she joined ESDC as a volunteer in 2007. I was told there were no responsive documents to disclose.

I have another FOIL request pending.

Law firm ties

On the web site of the law firm Kaye Scholer, Rahm is listed as a retired partner; her resume lists a history of working for the D.C. Redevelopment Land Agency and the New York State Urban Development Corporation (both the formal name of the ESDC as well as its precursor).

In 2008 documents (right) filed with the Federal Election Commission (FEC), while Rahm was working on Atlantic Yards, she listed her occupation as retired or "not employed."

Technically, that seems accurate. But working on Atlantic Yards for the ESDC is not the same as volunteering at the local soup kitchen.

Questions pending

Enormous policy questions regarding AY, including the level of indirect subsidies, remain unresolved. So, while Rahm likely was not required to tell the FEC she was volunteering on Atlantic Yards, shouldn't the ESDC have been more forthcoming with the public?

Perhaps ESDC CEO Marisa Lago could be asked at the hearing tomorrow how exactly Rahm contributes, what kind of interaction she has with Forest City Ratner, and why the agency was so ill-equipped it needed a volunteer to help out on this project.

Wednesday, May 27, 2009

As with FCR's pictures of open space, the city likes to produce unrealistic park renderings

From Tuesday's New York Post:
A Parks official... also said the city has a "bad" habit of commissioning renderings for park projects "it knows it'll never be able to fully fund" just to grab a quick headline "and boost the mayor's popularity."

That sounds a lot like Forest City Ratner commissioning landscape architect Laurie Olin for some renderings of open space not scheduled until Phase 2, for which the State Funding Agreement imposed no timetable.

Remember, according to Empire State Development Corporation CEO Marisa Lago, Atlantic Yards could take "decades." And the open space is all scheduled for Phase 2.

Money questions for the Senate hearing: public benefit plunging, MTA obligation thrown off, per-unit subsidy compared

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

In the end, perhaps, it all comes down to money.

What's the public benefit now?

Atlantic Yards never got a real cost-benefit analysis, in which costs were realistically assessed. Such a cost-benefit analysis is still in order.

But even a revamped fiscal impact analysis--essentially a benefit analysis--would still be meaningful. Remember how in December 2006 the Empire State Development Corporation (ESDC) quietly cut projected net new tax revenues by nearly one-third, from $1.4 billion to $944 million?

The main reason, according to the ESDC, was a loss of 270,000 square feet of office space, which could accommodate approximately 1000 jobs.

But right now Atlantic Yards would include zero office space; there are no plans to build the 650,000 square foot B1 office tower.

There's a bit of a glut. Today, the New York Times reports: In Midtown Manhattan — where many of the world’s largest financial companies are headquartered — three out of every four office towers now have sublet space available.

So, for now, shouldn't projected tax revenues be cut a lot more?

Revising the MTA deal

While an appraiser for the Metropolitan Transportation Authority (MTA) said that the rights to the Vanderbilt Yard were worth $214.5 million--with a new railyard--Forest City Ratner bid $50 million cash (to Extell's $150 million), then upped the cash bid to $100 million after the MTA board, controlled by the governor and mayor, decided to negotiate exclusively with the developer.

In September 2005, then-MTA Chairman Peter Kalikow notoriously dismissed the appraisal his agency commissioned as "just some guy's idea of what it's worth."

The Independent Budget Office suggested that month that the tax-free status of the railyard was supposed to help the public coffers:
Indeed, the MTA has an incentive to make a deal that maintains the tax exemption in order to maximize the price it receives for the development rights.

Now that Forest City Ratner is in the driver's seat--at least as long as the mayor and governor support the project--what if the developer wants to revise the deal with the MTA, paying even less cash for development rights, or paying over a longer schedule?

(The $100 million is supposed to be due before or contemporaneously with the ESDC's acquisition of land via eminent domain.)

What if the developer wants to build a cheaper than promised temporary yard?

If the MTA approves any or all of this, isn't that a shifting of costs to other sources of MTA revenue, notably... straphangers?

Affordable housing's affordability?

I've previously questioned whether the ESDC ever considered whether enough housing bonds would be available to build the affordable housing at the announced timetable.

Evidence suggests the timetable was never realistic.

But did the ESDC ever compare the per-unit subsidy with the subsidy for units at other developments? Would this be a prudent use of housing subsidies? Obviously, cost should not be the only factor, but when and how should the various factors be applied? 

These questions never came up in public, to my knowledge, but they're still worth asking.

FCR was evasive on open space, Olin's role, bridge openings, plausible timetable, so the state should be answering these questions

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

Let's look back at some not-so-transparent responses from Forest City Ratner to community concerns, and consider that the Empire State Development Corporation, not the developer, should be answering such questions.

Timetable issues

In a letter sent December 31 of last year, BrooklynSpeaks asked Gov. David Paterson to make available "current expected and worst-case construction timelines and release updated construction schedules."

The state has not done so yet.

Remember, the State Funding Agreement includes no timetable for Phase 2. None.

In a response to Assemblyman Jim Brennan, FCR's Maryanne Gilmartin wrote that the developer "fully intends to build out the project in approximately ten years consistent with the schedule set forth in EIS [environmental impact statement] subject to financing and market conditions (albeit with a delayed start)."

Doesn't that mean, simply, that "we control the pace," as parent Forest City Enterprises claimed at a conference last year? How does the ESDC feel about that?

Impact of litigation?

Forest City and the state claim that litigation stopped work at the site, including at the partly-demolished Carlton Avenue Bridge.

However, as I've noted more than once, then-FCR executive Jim Stuckey said in a 2007 sworn affidavit (and seconded in 2008 by his successor, Gilmartin):
FCRC’s construction schedule has been carefully drawn to allow the arena to be ready for the 2009-10 season by commencing work now on vacant properties that are owned by FCRC, the MTA and the City, with work on properties that are owned or occupied by other parties deferred until the pending judicial challenges to the Project have proceeded to a point where ESDC is in a position to actually use its powers of eminent domain to acquire title to and possession of those properties.

Does the ESDC really believe Forest City Ratner?

Buffer around the arena?

Community Board 8 raised concerns about one rather than four towers serving as a buffer to the arena, and FCR's Scott Cantone responded last July:
In the event that any of the development sites that surround the Arena (Buildings 1-4) are not in construction by the time that the Arena open, FCRC will create temporary public open spaces between the Arena and the surrounding streets; however, we anticipate that construction of Phase 1 will be complete or underway at the time of the Arena opening.

Is that prediction still plausible?

New open space

CB 8 asked if there'd be any open space added to the project in Phase 1 to compensate for the loss of the arena roof as open space.

Cantone responded:
As noted above, in the event that a development site on the Arena Block is not in construction or needed for other project purposes by the time the Arena is completed, FCRC will create temporary open spaces that will persist until such site is needed for development or construction activities.

Actually, Cantone first said that open space would be created if a development site is “in construction” but then added a broad qualifier: “needed for other project purposes.” What does the ESDC think?

Laurie Olin's role

Along with starchitect Frank Gehry, the distinguished landscape architect Laurie Olin helped sell the project in presentations to the press and in promotional material. Gehry's role has receded, if not faded completely.

What about Olin? Forest City suggested last October that he's on sabbatical of some sort, but Olin's own words were in the past tense. What does the ESDC think?

If Gehry has been supplanted by the firm Ellerbe Becket, as signs suggest, is there a lesser-known (but still quite capable) landscape architect now in the mix?

Both bridges open?

CB 8 asked if the Carlton Avenue and 6th Avenue bridges would be complete and open when the arena is opened.

Cantone responded:
Both the Carlton Avenue and the 6th Avenue bridges are anticipated to be open when the Arena opens.

An ESDC spokesman told me in November 2007, “Forest City Ratner tells us that while the arena might be able to open without the bridge in operation, the goal is to have the bridge open in coordination with the arena's opening."

Will the state let FCR's interest trump public safety? Who's in charge?

Outreach issues

BrooklynSpeaks also asked that Paterson require Forest City Ratner and ESDC "to involve the community and its elected representatives with public forums and outreach" regarding construction mitigations; street closures, traffic flow, and parking issues; and safety and security problems fostered by the loss of business and residential activity.

That certainly hasn't happened yet--but, then again, not too much has happened.

Jobs

Cantone told CB 8 that "Phase 1 will generate over 3000 new, permanent jobs."

Oh, really? Do either FCR or the ESDC have current calculations?

Tuesday, May 26, 2009

A Gehry arena or an Ellerbe Becket arena?

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

So, the Kansas-City based firm Ellerbe Becket may become the lead designer for Barclays Center, which raises all kinds of questions about the role of Frank Gehry.

Sports Business Journal reported:
Renowned civic architect Frank Gehry originally designed the building. Kansas City-based Ellerbe, designer for the two newest NBA arenas, in Charlotte and Memphis, has been consulting for the Nets for the past three years and is making adjustments to arena blueprints to see how it can be built at a lower cost.

Team officials declined to confirm Ellerbe’s involvement or whether Gehry is still part of the project.
...

Ellerbe Becket principal Bill Crockett said, “Our work has been ongoing, and we have not been advised of what they will accept and when it will be released.”

(Emphases added)

When was the switch?

Well, there's serving as a consultant and serving as a lead designer. Ellerbe Becket may have been working on the AY arena for three years, but it's unlikely that the firm's role entered the foreground until Gehry laid off his staff just before last Thanksgiving (as the Daily News reported).

If Barclays bought naming rights in 2007 with knowledge that Ellerbe Becket was helping, the firm surely expected to see Gehry's name on the arena.

So, even if the news won't "wreck the arena's financing model," as DDDB alleged, state officials surely should be able to tell the public who's designing the arena. Right?

And what about the cost and timing of the arena?

Stay tuned for the hearing Friday.

Update 5:45 pm

In a comment, the snide and not-so-trustworthy Bobbo (aka NetIncome on the NetsDaily message board) asserts that AY arena interior designer Michael Hallmark works for Ellerbe Becket. That’s not true. Hallmark worked for Ellerbe Becket from 1988 to 1995.

Since May 2005--more than three months before I started blogging about AY--Hallmark has worked for Forest City Ratner on this project, but he still maintains his Future Cities firm.

The unanswered question is whether Ellerbe Becket is in the lead.

A closer look at the Borough President's budget, his marquee Coney project, and the off-books funding via the mayor's office

City Council Member and Comptroller candidate David Yassky is on to something with his It's Your Money NYC web site showing recent City Council earmarks. We need a lot more transparency, and it should go beyond the City Council.

After all, do we know what Brooklyn Borough President Marty Markowitz does with his operating budget? Sort of, but it takes a little digging.

Do we know what Markowitz does with his discretionary budget? Not quite.

Do we know what Markowitz does with his capital budget, by far the greatest pot of money he controls?

People might be surprised to learn that some $24.6 million, more than a third of the total this year, is directed to the $64 million amphitheater planned for Asser Levy Park in Coney Island, home of one of the two summer concert series Markowitz has long sponsored. (It's been reported that Markowitz wants to spend $54 million from his office on the project, but I hadn't seen the context. Not everyone in Coney is happy with the idea of amplified music near religious institutions.)

Details needed

Remember, when Markowitz met with bloggers on April 23, he lamented the pressures on his budget but couldn't immediately provide details.

I later that day got some overall numbers. His staff pointed me to the city budget office (right; click on graphics to enlarge), which shows that the agency budget has indeed gone down dramatically.

I was told that, for FY 09, the budget is $4,729,484 for personnel and $914,826 for other spending, including $302,000 in discretionary funds. Also, the BP's office, was initially allocated $88.7 million in capital funding, but after cuts, the estimate is $70.96 million.

(Click on graphics to enlarge)

But what's next?

A city official the next day pointed me to p. 168 of the Departmental Estimate, Office of Management and Budget (PDF), Markowitz's office stands to lose a significant number of staffers, 24 of 75, in the proposed mayoral budget, as more than $1.4 million will be cut from his $4.4 million personnel budget.

Which staffers will go?

But which ones would be cut? Would it be any of the three chauffeur-attendants, important to moving Markowitz to the many promotional/ceremonial events he attends?

Or would it be any of the three people in the planning office, crucial to the nuts-and-bolts land use advice the BP's office is supposed to provide (and, according to Markowitz, are available to help beleaguered Community Boards)?

Or would it be some of the 20 community coordinators, nine community liaison workers, or 12 senior community liaison staff?

Markowitz spokesman Mark Zustovich several days later told me it's too soon to tell: "Our office is reviewing the budget and no determinations have been made, or timetable established, in respect to staffing."

Discretionary funding

Also, page 169 of the PDF shows that the $298,662 "special expense" line would be cut almost completely.

Zustovich said that was the BP's discretionary budget, which itself was cut dramatically from the previous fiscal year.

What was it used for? He said no information was available, as it will be tabulated at the end of the fiscal year (after June 30).

Overall trend: way down

The mayor's proposed Executive Budget (p. 9 of this PDF) shows a dramatic dropoff in funding for the Brooklyn Borough President's office, as well as for the other borough presidents.

Markowitz has publicly lamented the decline in support, telling the Brooklyn Paper that the mayoral budget doesn't show "respect," and it sure seems that he has a grievance.

There should be a public discussion of the proper funding levels for the offices of the Borough Presidents.

Back-door support

Meanwhile, as the New York Post reported last October, since 2003, the Bloomberg administration has provided at least $2.7 million in taxpayer funds to three nonprofit groups Markowitz controls, including Best of Brooklyn and the organizations that run his summer concert series. Forest City Ratner and others connected to Atlantic Yards also gave between $680,000 and $1,075,000 to Markowitz's nonprofits.

The Brooklyn Paper further reported that FCR and affiliated companies gave $200,000 to the Martin Luther King Jr. Concert series, and Barclays gave $60,000.

So, this is a way of funding certain targeted priorities of the Borough President's office. Some of those programs may be very welcome. But the back-door funding means even less oversight.

The capital budget

So, what does Markowitz do with his $71 million capital budget? As noted in a January profile by City Hall News, there's little guiding philosophy:
If he had an opponent, this might be a point of contention, along with the kinds of things which have received support from his discretionary budget over the years. Though Markowitz has a knack for grand thinking—Brooklyn as an international tourist destination? Astroland retooled for the 21st century?—his capital expenditures have been decidedly small-bore. Unlike Adolfo Carrión in the Bronx, who directed much of his capital money toward creating affordable housing, Markowitz has spent less than $9.5 million over seven years on this construction, lacking any identifiable emphasis toward this or anything else for his capital investments. In disbursements rarely higher than $1 million and generally much less, Markowitz has spread the money around to things like adding street planters and buying new equipment for community centers. To his critics, this is evidence of an inability and unwillingness to flex the full power of the office, though to defenders like Council Member Lew Fidler (D-Brooklyn), the hundreds of thousands of dollars the borough president has been pouring in to renovating school playgrounds in recent years is “not a small thing if it’s your playground.”

Well, maybe not so small-bore. Markowitz in February 2007 unveiled a $35 million plan for a new Coney amphitheater, as the Brooklyn Paper reported. By November 2008, it was a $64 million project, as the Brooklyn Paper reported. In January of this year, the Brooklyn Daily Eagle reported that Markowitz would contribute $54 million from his capital budget, and $10 million would come from the Mayor’s Office via Council Member Recchia.

That $54 million obviously isn't being disbursed in one year, since this year's budget, as the chart at right (supplied by the BP's office in response to my request) shows some $24.6 million. It also shows$10.75 million for the refurbishment of the Loews Kings Theater in Flatbush.

The rest of the numbers are somewhat opaque. There's apparently funding for playgrounds at schools and fixing libraries. There's little apparently directed at affordable housing, despite Markowitz's rhetoric about the importance of affordable housing at Atlantic Yards.

More info needed

Also notable is that I had to ask for the list--it's not online--and it took a couple of weeks, and that it came with no supporting explanations.

Such information should be accessible to anybody, right? Perhaps the next Comptroller, whether it be Yassky or a rival, will make sure there's more transparency. The issue should be part of the current campaign.

And maybe Mayor Mike Bloomberg, who's inundating New Yorkers with campaign mailings, can see fit to supply us with information citizens deserve, rather than advertisements for himself.

Monday, May 25, 2009

In Pinamonti's new album, listen to "The Burrow," "It Wasn't the Rain," and more

Brooklyn roots musician John Pinamonti, best known in AY circles for his live version of "The Burrow," part-elegy, part-fight song, has released a studio version of the song--with richer instrumentation--as part of his fifth album, End of Smith.

It's well worth a listen, as is the rest of the album.

Mixed blessings

The title song refers to, yes, the mixed blessing of gentrification on Smith Street, once home to bricks and auto parts and wild dogs, now a place for some gifts and a new health spa. (Pinamonti's version of "Back in the Old Days" touches on similar ground.)

You can buy End of Smith online, but I'm sure it will be available at his next gig, which is May 30, as well as at future gigs.

"It Wasn't the Rain"

To my mind, however, the strongest song on the album is "It Wasn't the Rain," another mix of elegy and fight song, about Hurricane Katrina and New Orleans. (The excerpt online doesn't convey its full power.)

Sample lyrics:
It wasn't the rain/it wasn't the wind/it was just greed and power/winning again.

It wasn't the storm/it wasn't the surge/it was just poor people/being purged.


You might hear some thematic connections between "The Burrow" and "It Wasn't the Rain."

Sunday, May 24, 2009

The Ratner family and allies gave big to Kucinich's 2008 challenger

Even if Michael Ratner, the most publicly left-wing member of the Ratner family, has given several contributions to Rep. Dennis Kucinich's Congressional and Presidential races, others in the family worked hard to support Kucinich's most recent opponent.

Should Kucinich scrutinize plans for the Atlantic Yards arena the same way he's done the Yankee Stadium deal--with the important distinction of doing it beforehand rather than after-the-fact--undoubtedly there would be reason for the Ratners to support his next opponent.

Cimperman v. Kucinich

In a 2/26/08 piece in the Cleveland Leader headlined Cimperman Is Doing Corporate Work, Cleveland gadfly journalist Roldo Bartimole wrote about the campaign of Downtown Councilman Joe Cimperman to gain support from developers in the city, including Forest City Enterprises.

Bartimole wrote:
Cimperman got one of his first tastes of the downtown crowd after taking office. At a holiday party, someone poked him in the back. It was the legendary Forest City’s Sam Miller. As I wrote in January 1998, “Cimperman, young, idealistic and exuberant, introduced himself and said that he hoped the two could work together. The kind of chatter one might expect at a first meeting. The gruff Miller wasn’t having much of the ‘can’t we get along’ line and wanted to know why Cimperman had voted against his (and Mayor Michael White’s) candidate for City Council President.”

I guess Cimperman was beginning to understand how the game was played. He became a favorite benefactor of Sam and the Forest City gang.

His zestful pursuit of campaign funds made him the all-time City Council money raiser. In 2002, he raised $62,210 to bring his bank account to $150,004, a very sizeable sum for a mere councilman. He held one fund-raiser at fashionable and expensive Johnny’s, the favorite restaurant of downtown developer Dick Jacobs (who, by the way, gave two $1,000 checks at the time) and many other elites. The restaurant location was via an in-kind contribution. They love Joe.

Once on the “take list,” it’s hard to get off. Now Cimperman lives on the pay-as-you-play dole.
Let’s lead off with the 10 donors for this Congressional run from Forest City Enterprises, the chief buyers of politicians: The Ratners: Al, $2,000, Brian, $1,000, Mark, $1,000, Ronald, $1,000, James, $1,000, Kevin, $1,000, Audrey, $2,000, Charles, $1,000, Deborah Ratner Salberg, $1,000 and Alan Krulak, $1,500. That’s $10,500 from Forest City people in the first financial report to the Federal Election Commission. (On a single day in the early 2000, Cimperman got $4,000 from some of the same Ratners, always seeking favors at City Hall)

When Tower City’s Al Ratner made his pitch to the Convention Facilities Commission, guess the only Councilman on hand to speak out strongly for Forest City’s location grab for the new convention center.

Did you guess Joe Cimperman? Go to the head of the class.

He was from the beginning an exuberant supporter of a publicly subsidized convention center on Ratner property, attached to its heavily subsidized downtown shopping area, Tower City. Whatever, you guys want, says Joe.

The Federal Election Commission database shows that people associated with Forest City Enterprises gave $22,000.

Kucinich did bounce back

Kucinich, with his national profile, however, outraised Cimperman, relying significantly on out-of-state donors, beat him in the primary, and was reelected. Commentators on Bartimole's piece suggest that the money flow to Cimperman declined after the incumbent showed his strength.

Saturday, May 23, 2009

Brooklyn Exchanges, an exhibit on AY and more, is well worth a look

Probably the single most compelling aspect of the ambitious, absorbing, and flawed Brooklyn Exchanges exhibition, produced by Pratt Institute architecture and planning students, is the up-close view of Guy Ambrosino's sculpture What Was (right), scavenged metal from the Ward Bakery turned into art, and previously shown behind glass.

(Photos by Steve Soblick/NoLandGrab)

The exhibit, which focuses on Vanderbilt/Atlantic Yards, the Fulton Mall, and the BAM Cultural District, continues through June 1 at Metropolitan Exchange, 33 Flatbush Avenue (at Livingston), and is open Wednesday-Saturday 12-6 p.m. 

When I stopped by yesterday afternoon, the gallery represented a respite from some horrific traffic on Flatbush.

History and context

Particularly valuable is a historic timeline of Brooklyn--it's best to enter the gallery, go past the Atlantic Yards images, and walk counterclockwise to start with the timeline.

In each of the three major sections of the exhibition, the renderings of planned developments (e.g., CityPoint, the Irondale Theater at Lafayette Avenue Presbyterian Church), several of which are on hold, are juxtaposed with current views of the sites as well as historical photos. 

Especially valuable are views of the theaters that once occupied the area near BAM. There's also an effort, with variable success, to intersperse text from interviews with residents and other interested parties.

The AY section

The segment of the show devoted the Vanderbilt/Atlantic Yards gives attention to the alternative UNITY plan, as well as interviews with photographer Tracy Collins (whose photos offer perspective on the AY footprint), and Develop Don't Destroy Brooklyn legal chair Candace Carponter. (No, there are no interviews with plan boosters.)

There's one intriguing image of a road not taken, the 1980s plan for the land that later became the Atlantic Terminal and Atlantic Center malls but was stymied by community opposition and economic hard times.

The segment is diminished somewhat, however, by a not-so-informative map (center of photo) and, oddly enough, a rendering (top left of photo) identified as the AY plan that actually comes from the Atlantic Lots scenario produced by the Municipal Art Society.

Looking forward

Around the room are interspersed "Precedents for the Future," a selection of developments around the world that could inform development in Brooklyn.

The concept seems a bit obscure in places--it's not clear to me how the high-density housing pictured applied to Brooklyn--but can provoke thought: there's a museum in Sao Paolo that straddles a street; if we could get past the security implications--and I'm not sure we could, since that precluded an arena bridging Atlantic Avenue--that kind of design has potential.

At the least it could make Flatbush Avenue less forbidding at rush hour.

Friday, May 22, 2009

In Columbia eminent domain case, some skeptical judges, AY echoes, and signs of emerging strategy for community resistance

Lawyers representing two property owners resisting the use of eminent domain for the Columbia University expansion maintained a passionate argument in appellate court yesterday, calling the Empire State Development Corporation’s (ESDC) actions in bad faith and seeing an ESDC lawyer clearly on the defensive before two clearly skeptical judges.

“Nobody’s opposed to Columbia expanding. They’re opposed to eminent domain,” attorney Norman Siegel said in his closing remarks before a five-judge panel of the Appellate Division, First Department. “The [skeptical] questions [from the Court] I hope will reflect the decision.”

Harlem State Senator Bill Perkins, speaking after the hearing on the sidewalk outside the courthouse, at 25th Street and Madison Avenue, was blunt: “It looks like Columbia’s going to lose.”

That’s unclear, given that three judges were largely quiet and ESDC lawyer John Casolaro, despite facing some withering skepticism from Justice James Catterson, reminded the court that the condemnor had a structural advantage. Their job, he told the judges, is to decide whether ESDC has some foundation for its decision. If they decide that the ESDC “had a reasonable basis or a basis, the inquiry is at its end.”

(Should two judges dissent, an appeal would be automatic.)


The argument came just a day after Mayor Mike Bloomberg and Gov. David Paterson saluted the Public Authority Control Board’s final approval of the General Project Plan for the Columbia University expansion into West Harlem, aka Manhattanville.

AY echoes, and a different strategy

There were echoes of and contrasts with Atlantic Yards, notably as Siegel compared parallel blight studies for each project, the petition pointed out that no alternative project was considered, and the judges found reason to consider the AY site a somewhat more legitimate subject for eminent domain.

(The lawsuit in the Columbia case includes a challenge to the environmental review, essentially combining some of the legal strategies separated in the AY case; in the latter, there was a much longer opportunity for a trial court hearing.)

Catterson, in the appeal of the case challenging the AY environmental review, wrote a concurrence that read like a dissent, and Siegel (I'm told; I missed part of the argument) opened up by quoting the judge's opening line: that the the Urban Development Corporation Act is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are "underutilized."

As Siegel’s aggressive strategy showed, there were hints of a road not taken in the AY case. (Siegel, a veteran civil rights attorney and candidate for Public Advocate, as he was in 2005, represented Develop Don't Destroy Brooklyn in the early stages of the AY fight.)

On behalf of client Nick Sprayregen of Tuck-it-Away Storage, the legal strategy included but went beyond questioning the benefit to a private actor, as has been the focus of the AY eminent domain cases.

As the Columbia project went through its approval process before the ESDC, Siegel created a factual record of 10,000 pages--as noted in the 107-page petition--to be presented for a court challenge in which there would be no new chance at fact-finding. Documents were gained through Freedom of Information Law (FOIL) requests, and a “No Blight” Study of the neighborhood countered the state’s Blight Studies. (The ESDC commissioned a second Blight Study after consultant AKRF was charged with conflict of interest.)

That “No Blight” Study examined the concept of blight, arguing that it must be seen in context of physical and social conditions impeding normal development and the suppression of investor interest leading to worsening social and physical conditions. (In other words, to quote planning professor Lynne Sagalyn, “the fabric of a community is shot to hell.”)

Priming an appeal

In an element that may prime an appeal to the U.S. Supreme Court, the lawsuit also included a wholesale assault on eminent domain law in New York State. It claims that the Urban Development Corporation Act (UDCA) is on its face unconstitutional because it offers no definition of blight and is impermissibly vague.

(The law states: The term "substandard or insanitary area" shall mean and be interchangeable with a slum, blighted, deteriorated or deteriorating area, or an area which has a blighting influence on the surrounding area, whether residential, non-residential, commercial, industrial, vacant or land in highways, waterways, railway and subway tracks and yards, bridge and tunnel approaches and entrances, or other similar facilities, over which air rights and easements or other rights of user necessary for the use and development of such air rights, to be developed as air rights sites for the elimination of the blighting influence, or any combination thereof and may include land, buildings or improvements, or air rights and concomitant easements or other rights of user necessary for the use and development of such air rights not in themselves substandard or insanitary.)

The lawsuit also claimed that the Eminent Domain Procedure Law (EDPL) is unconstitutional on its face because there is no opportunity to obtain evidence through discovery, no opportunity to cross-examine witnesses, and the 15 minutes afforded to each side--a time limit breached yesterday and in the AY case--denies the parties “adequate judicial resources” for consideration of complex facts.

Along with representatives of the ESDC and a few dozen West Harlem community members, Forest City Ratner attorney Jeffrey Braun was among the spectators in court.

Blight questioned

Questioning the Blight Study, Siegel argued that it was arbitrary for the ESDC to say properties were underutilized if they fulfilled only 60% of their allowable development rights--the same as in the AY Blight Study--especially given that only a Floor Area Ratio (FAR) of 2 was allowed before the area was rezoned. That means that a two-story building covering a lot would be fully built out and a one-story building--such as a functioning gas station--by definition would beblighted.

In the AY Blight Study, a vacancy rate of 50% or greater was an element of blight; with Columbia, the initial determination--later revised--was a vacancy rate of 25%. (Wouldn’t that cover a lot of new condo buildings?)

In New Jersey, Siegel pointed out, the state highest court decided to stop using underutilization as a standard for blight. As for state law declaring blight to be a “substandard and insanitary,” he said, “it’s void for vagueness,” noting that the Ohio Supreme Court had abandoned similar language.

Beyond that, the petition contended that 43% of the buildings found to be blighted crossed the line after Columbia assumed ownership.

How, Siegel asked, could his client know what standards to follow? “There are so many ways,” he implored the court, “for you to say ‘Enough is enough; we’re not allowing it to go on any more.’”

Catterson leads the charge

Catterson was not unfamiliar with the Columbia conflict, last July writing an opinion upholding a Supreme Court justice’s order that the ESDC turn over to the West Harlem Business Group correspondence with consultant AKRF, which had also worked for Columbia. (AKRF also worked for Forest City Ratner and the ESDC on Atlantic Yards, though consecutively, not concurrently.)

Yesterday he was skeptical. Why, he asked, did ESDC’s Blight Study of Manhattanville use building code violations to determine blight, but the Atlantic Yards Blight Study did not?

(The AY Blight Study did inventory such violations but stated:
Building code violations are also not shown [as indicia of blight] because building code violations vary widely in date of issuance and type of violation, making it difficult to make meaningful comparisons in data across lots.
)

ESDC attorney Casolaro suggested that records were better in Manhattan. “It’s an indicia” of blight, he said.

“That’s a claim you make,” Catterson shot back. “How does a 15-year old boiler violation means a building is deteriorating?”

Casolaro backed off, switching the subject, noting that only two new buildings had been built in the area since 1975.

Justice Rosalyn Richter was skeptical, suggesting that the zoning was a more important factor.

“It’s a FAR 2 district,” Catterson followed up. “New construction may or may not be viable… Your adversary’s position seems to be unrebutted.”

Casolaro took another tack, pointing out that 88% of the buildings were more than 65 years old.

“So what,” responded Catterson, pointing out that the same could be said for the neighborhood of Chelsea.

Siegel got back to the building code violations, noting that nearly all the buildings were owned or controlled by Columbia, and that most of the violations were either obsolete, purely administrative, or dealt with boiler issues. At most there were about a dozen building code violations “that create a real problem,” he asserted.

“In Brooklyn they didn’t use [violations],” he said. “Here they used it. They were doing what they could do to shoehorn it” into blight.

Difference with AY

I missed part of the argument, but elements were reconstructed for me by some spectators and lawyers for the petitioners. The AY federal eminent domain case, Goldstein v. Pataki, was cited by the ESDC to buttress its support for Columbia. Similarly, the state court, in its recent eminent domain ruling on AY, cited that federal case, deferring to governmental claims of public use.

However, the Columbia case, the petitioners argued, is different, because Columbia is a private university and there are no cases that allow a taking for private education.

An ESDC attorney, however, countered that public use is a flexible concept and educational institutions serve the public interest. Beyond that, the Columbia project serves economic development, via the creation of jobs, and also removes blight--though that's obviously an issue of controversy.

Petitioners’ attorney David L. Smith, who represented the Singh family (as noted in the Columbia Spectator's report), pointed out that a state case, Murphy v. Erie County, supports claims in the AY case that a sports facility is a public use and a civic purpose.

Smith said that the “collateral” non-educational purposes of Columbia’s project benefiting the community--such as a swimming pool--were not identified until late in the process and remain under Columbia’s control.

Manhattanville, the lawsuit pointed out, was never previously found to be blighted. By contrast, as one judge noted yesterday, in the case of Atlantic Yards, the state could point to the longstanding Atlantic Terminal Urban Renewal Area (ATURA), which includes the part of the AY site north of Pacific Street.

The record is key

The record before New York courts in eminent domain cases, Siegel said after the hearing, is generally “only what the government puts in.” The strategy in the Columbia case was to create an alternate record that could be presented to the ESDC and then used when the case went to court.

The key, he said, was to file FOIL requests-something he asserted does not necessarily require a well-funded client (as in the case of Sprayregen), but, I suspect, certainly doesn’t hurt, since going to court to pursue rejections of FOIL requests can be costly.

Another key was creating both a No Blight Study, which included a market study. In the case of Atlantic Yards, the state was supposed to perform a market study--a plan that surfaced only after I filed a FOIL request--and the issue was raised in the case challenging not eminent domain but the environmental review. However, the court ignored it.

In hindsight: need for reform

Could Atlantic Yards opponents have created a more robust record to challenge the project in court? Quite possibly, though it would have been more costly.

Would it have made a difference? Unclear, given that the AY cases aren't over and we don't know the result of the Columbia case. As noted above, the fact pattern is somewhat more sympathetic to the petitioners in the Columbia case.

What is clear is that both the AY litigation and the Columbia litigation have brought to light the need to reform state eminent domain laws.

Support wanes for Atlantic Yards? Maybe, but not at the PACB, most likely

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

Just as reports of Atlantic Yards's death are greatly exaggerated, so, I think, is the meaning of the project's decline in political support, as noted in the Brooklyn Paper and Crain's Insider.

Bloomberg says "enough"?

Yesterday the Brooklyn Paper reported, in an article headlined Bloomy to Bruce: Enough already:
Mayor Bloomberg dealt Bruce Ratner a blow on Wednesday, saying that the city would not subsidize the Atlantic Yards project with additional public funds.

The city has already pledged $230 million for infrastructure and land-acquisition costs at the embattled arena and skyscraper project — but Bloomberg dashed Ratner’s hopes for more.

“We’ve done everything,” he said in response to a reporter’s question at his daily availability on Wednesday. “We’re going to have a tough time balancing our budget.”


Develop Don't Destroy Brooklyn issued a press release, claiming "Ratner Losing Mayor's Support for Atlantic Yards." (The city has pledged $205 million; the Brooklyn Paper apparently calculated $230 million by adding in the value of city land to be transferred.)

Remember, in December, the New York Observer reported on Forest City Ratner's quest for additional indirect subsidies; the developer was not asking the city for more money, just a speed-up in the amount of city money delivered, at that point calculated at $40 million. 

(I suspect the sum is greater, but that should be a question for the oversight hearing held by Sen. Bill Perkins next Friday.)

So Bloomberg could be meeting Forest City Ratner's request for faster payment without violating his pledge to not deliver additional money.

In Crain's

Today's Crain's Insider, under the headline Support wanes for Atlantic Yards, notes:
Political support for the Atlantic Yards project in Brooklyn was nearly unanimous when it was proposed in 2003 and for years afterward. That’s no longer the case—despite a string of court decisions favoring the developer, Forest City Ratner, and its partner in state government, the Empire State Development Corp.

In the past two years, local officials including Councilman David Yassky and Assemblyman Hakeem Jeffries have done little cheerleading for Atlantic Yards and have periodically been critical. Project booster Roger Green quit the Assembly in 2006, leaving Borough President Marty Markowitz as the only unflagging supporter among local officials. Not one of more than a dozen candidates in two City Council districts near the project openly supports it, according to opposition group Develop Don’t Destroy Brooklyn.


OK, but at the same time very few in the local political establishment line up behind DDDB, either. John Heyer, who works for Markowitz, does support an arena. And Jeffries certainly would like to see housing at the site.

Keep in mind that the two leading fundraisers in the 33rd District, Jo Anne Simon and Steve Levin, both steer clear of DDDB's opposition, as noted by Noticing New York. The leading fundraiser in the 39th, Brad Lander, seems closer to mend-it-don't-end-it BrooklynSpeaks on his web site but has expressed greater opposition in public, while Josh Skaller, second in fundraising, is an unequivocal opponent of the project.

Waning of support?

Crain's continues:
Initially, the Brooklyn political and nonprofit establishment lined up behind Atlantic Yards and Forest City, while opponents were marginalized and deemed NIMBYists. That made it easy for Mayor Bloomberg, Assembly Speaker Shelly Silver and Govs. Pataki and Spitzer to grant Forest City the funding and approvals it needed. Two exceptions were Councilwoman Tish James and state Sen. Velmanette Montgomery, who have opposed the $4 billion project from the outset.

The waning of political support for Atlantic Yards could cost Forest City if it decides to seek new approvals from ESDC and the Public Authorities Control Board [PACB] for an arena-only general project plan. The developer has been unable to get financing for the project’s huge housing component—and affordable housing was the major reason it garnered support from elected officials and Acorn, an influential nonprofit group. The developer must break ground on the arena this year to qualify for tax-exempt financing.


The waning of political support should impose some pressure the ESDC and PACB, but I can't imagine there would be an "arena-only" plan, especially since Forest City Ratner has announced at least one tower at the start and surely would promise that a few more are on their way. 

ACORN is indebted to Forest City Ratner and likely could turn out supporters--though that should trigger scrutiny of ACORN's acceptance of a loan and grant from the developer.

PACB issues

The three members of the PACB are Gov. David Paterson, Assembly Speaker Sheldon Silver, and Senate Majority Leader Malcolm Smith. Silver is an enthusiastic supporter of AY, and a recipient (via a committee) of $58,420 in Forest City Ratner "soft money." 

Smith is an AY supporter and former business partner of Darryl Greene, who works on AY minority contracting. Paterson hasn't said much about AY, given his preoccupation with other matters, but his hands-off approach is essentially an endorsement of the status quo.

Unless, perhaps, Senator Perkins, at the oversight hearing, raises sufficient questions about the project to make Paterson particularly uncomfortable.

Thursday, May 21, 2009

Clueless Charlie Rose asks about "Brooklyn Yards;" Gehry says "it hasn't stopped"

On the Charlie Rose show Wednesday, architect Frank Gehry, on the occasion of the publication of the Conversations with Frank Gehry, met up with an interviewer even less clueful about Atlantic Yards than author Barbara Isenberg.

But Gehry dropped some hints, at least, that the Atlantic Yards plan of the past is not the AY plan of the present.

The exchange starts at about 6:38.



CR: Well, what's happened to Brooklyn Yards, we'll come back to other things in New York--

Rose couldn't even remember the name of the project.

FG: Well, we've spent a lot of time on that--

CR: --But is it being nickled and dimed to death?

FG: No. Today, in this world we're in, every developer I've worked with, or am working with, is looking at tightening up, because financing doesn't exist, the banks are looking at things differently.

Note how Gehry seems to edit himself from the past tense to the present tense; is this is a clue that he's working less or not at all on AY?

CR: Commercial real estate they say is going to get worse.

FG: I think we did a very interesting master plan, which has been vetted by City Planning, and I think 's going to go-y'know, it's in one of those stages, but it's going--it hasn't stopped.

Gehry's syntax leaves room for a lot of ambiguity. We still don't know if he's designing the arena. And the master plan sure sounds like a thing of the past. 

(Btw, the Chair of the City Planning Commission and Director of the Department of City Planning, Amanda Burden, has been long been involved with Rose, though some reports have that relationship as "intermittent.")

Tracy Collins on the block: a curious new condo at 499 Dean and a topping-out moment at 80 DeKalb

Photographer Tracy Collins has had a busy couple of days. First he's documented the emergence of condos at 499 Dean Street, a building, as he noted, with a bit of past, given that in 2006 most tenants were given buyouts and one who didn't saw the building walled up with brick.

And if AY is built as approved, the building on the left, 497 Dean, would be next to a 272-foot tower, some five times taller than the row next to it, known as Building 15. Will the real estate brokers alert potential customers?



Then Collins went today to the topping out ceremony for 80 DeKalb Avenue, Forest City Ratner's rental building financed with state Housing Finance Agency bonds.



FCR head Bruce Ratner is at left in the photo below, trailing Bruce Bender, the executive VP for government and public affairs.

Fallout from the Weinstein case: questions of condemnation timing and valuation; will Site 5 really be taken?

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

When on May 8 I wrote about the case upholding Henry Weinstein's right to three properties on Block 1129 in the AY footprint (see oval in map), I noted that the Empire State Development Corporation's (ESDC) Modified General Project Plan (GPP) states:
All of the properties within the Project Site would be acquired by ESDC... at the outset of Project implementation.

So that suggests that, whatever the dispute over Weinstein's ownership and the value of the lease to Shaya Boymelgreen (which Boymelgreen, according to the courts, improperly transferred to Forest City Ratner), the ESDC will just condemn Weinstein's property, along with the rest of the 22-acre AY footprint, once the eminent domain appeal is dismissed. 

(The properties in white, or with asterixes, would be condemnations of the unwilling, while most of the rest would be "friendly condemnations" of properties owned by Forest City Ratner;  a few of the buildings contain rent-stabilized tenants whose leases would be extinguished by eminent domain, and thus do not consider the action "friendly.")

Some caveats

But maybe there won't be blanket condemnation after all. Two asterixes should be added to that GPP statement.

Eminent domain attorney Michael Rikon, who has long represented condemnees, told me that, whatever the language in the GPP, the ESDC can acquire property in phases, given that Atlantic Yards was planned in two phases. So much for reading documents literally.

Also, there may be a revision of the Modified GPP, as noted, which could, among other things, change the schedule for the project--it would have to, given that AY was supposed to be completed by 2016--as well as other aspects, such as the acquisition schedule.

Site 5 spared?

So, what might the ESDC leave for a later phase of condemnation? I have to think they won't touch Site 5, the one piece of land below Flatbush Avenue, now home to Modell's and P.C. Richard, and bounded by Pacific Street and Flatbush, Atlantic, and Fourth avenues.

Yes, the ESDC claims the site is blighted, given that the low-slung big box stores fulfill only a fraction of the site's development potential. However, given that Forest City Ratner announced it plans just one residential building--and the City Funding Agreement allows a much smaller Phase 1--it doesn't make sense to demolish existing businesses and leave the site fallow for years.

Parking needed

What about property east of Sixth Avenue, planned for Phase 2? Remember that Block 1129, the southeast block containing Weinstein's property and the site of the Ward Bakery, is needed for interim surface parking and staging.

So Weinstein's property would likely be targeted.

What about the properties on the center block, Block 1120, adjacent to the railyard? There are no plans to build any housing there for a long time, though previous maps suggest parking would be needed. I suspect that those properties wouldn't be taken until closer to the time the arena opened.

What about three houses and an industrial building still extant in the 100-foot lot on Block 1128, just east of Sixth Avenue? Those buildings were supposed to be needed for construction staging for the arena. If the ESDC delays taking them, it might be symbolism, a wariness about taking people's houses.

Questions for the hearing

So it's worth asking about the ESDC's plans at the public hearing: would the whole site be condemned at once? What are the plans for Site 5?

It's also worth asking whether, given that the project likely will take much longer than projected, Forest City Ratner plans any interim open space, as once suggested in plans by landscape architect Laurie Olin.

Valuation questions

I suggested May 8 that, while the appellate court ruling couldn't stop the ESDC from taking Weinstein's property, it could make it more costly, since Weinstein has contended that Boymelgreen’s deal with Ratner diminished the value of his property.

Rikon, who does not represent Weinstein but has met with him in the past, told me that when property is condemned and appraised, the appraiser then can ignore all leases. "That doesn't mean you ignore existing leases, if they're good fair market leases," Rikon said.

The goal is to look at comparable leases, but it may not be easy to find such comparable leases. That suggests to me that Weinstein still gained an advantage in the valuation phase should condemnation occur. 

But Rikon suggests that the more important impact of the lease was in suggesting that Forest City Ratner controlled the property, not in setting its value. And that's another question for the oversight hearing.

"Secure your spot in Brooklyn," urge the Nets, a tad prematurely

So yesterday people on the Nets basketball mailing list got an email (below) from the Barclays Center: Courts Rule In Favor of Atlantic Yards -- Secure Your Spot in Brooklyn," linking to a press release with some not-so-definitive information:
Mr. Ratner said he was confident the project would break ground this year, with the intent that the Nets will play ball in the Barclays Center in the 2011-2012 season.



At the official site

Meanwhile, no one saw fit to fix the home page at AtlanticYards.com (below), which still promotes a Treasury Department decision made seven months ago. Well, the In the News page has been updated.

Wednesday, May 20, 2009

Catching up on some media mentions: FCR's stonewall, NYT's correction, Stern's (mis)information, and more

Time to catch up on some media mentions.

1) Globe Street, in an article headlined ESDC Stands by Atlantic Yards, asks a few questions, but doesn't get answers:
Regardless, beyond a widely reported statement expressing Forest City Ratner Cos. CEO chair Bruce Ratner’s "thrilled" reaction to the court dismissal, when asked about the very timely issues of financing and star architects, an FCRC spokeswoman tells GlobeSt.com the company has "no other comment" at this time.

...In response to GlobeSt.com’s question as to whether FCRC would use the original Frank Gehry design for the arena or perhaps another architect altogether, ESDC says GlobeSt.com that was a question best answered by FCRC. Told that FCRC had not provided an answer, the ESDC spokeswoman says "regardless of Gehry’s involvement, ESDC’s design guidelines must be met."


2) In the May issue of a magazine called Selling Power (thanks to NetsDaily), there's a profile of New Jersey Nets CEO Brett Yormark, headlined Slam Dunk Sales. It contains this line:
The $950 million, Frank Gehry-designed Barclays Center in Brooklyn is expected to be completed in time for the start of the 2010 season.

No, it's not $950 million, it's not necessarily designed by Gehry, and it certainly won't be completed by 2010.

3) DDDB suggests that the New York Times's error, corrected yesterday, in reporting that the eminent domain case was dismissed upon appeal, was a teaching moment, because it alerted people to an eminent domain system stacked in favor of the government. OK, but I think it also was some pretty sloppy journalism.

4) NBA Commissioner David Stern says Newark Mayor Cory Booker is "misinformed" about a potential sale of the Nets. Maybe, but NLG points out:
Stern should hope that he hasn't been "misinformed" about the likelihood of a summer groundbreaking.

5) Scott Turner of Fans for Fair Play lays into the New York Daily News for its editorial about "losing LeBron."

The AY endgame? The deadline for tax-free bonds, the impact of lawsuits, and Atlantic Lots

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

Two articles published yesterday give some hints of the Atlantic Yards endgame, including an effort by developer and Forest City Ratner (FCR) and the Empire State Development Corporation (ESDC) to gain additional subsidies (and to delay developer obligations), and plans by opponent Develop Don't Destroy Brooklyn (DDDB) to file more lawsuits, none of which may block the issuance of tax-free bonds by the December 31 deadline.

Also hinted is a plan by the ESDC to issue a revision of the Modified General Project Plan (GPP), which would describe a new timetable and offer new financing numbers and could--I believe--trigger an additional public hearing in the summer or fall.

Also, Forest City Ratner now plans only the arena and one tower, and NoLandGrab points out that GlobeSt "presciently"--I'd call it an error that revealed truth--ran an image commissioned by the Municipal Art Society, from a photo by Jonathan Barkey, for its Atlantic Lots scenario.

Clash with the MTA

The New York Observer's article, headlined Atlantic Yards, Finance Footrace, mentions what I think may be a key sticking point:
The developer is negotiating with the M.T.A. to close on a deal for the development rights on much of the site, for which Forest City agreed to pay $100 million and invest more than $300 million into a rail yard and other improvements. Forest City has asked to change that agreement, though the M.T.A. has resisted thus far, according to multiple people familiar with the discussions.

Thus the forced resignation of MTA Executive Director Elliot (Lee) Sander looms large; as I wrote, his successor may be more willing to compromise with Forest City Ratner's requests.

So, the oversight hearing should get to these questions: how little does Forest City Ratner want to pay the MTA, and what's the value of the cheaper rail yard it proposes?

The December deadline

There's a December 31 deadline to get tax-exempt bonds for the arena, under a provision in which AY was grandfathered in by the Internal Revenue Service, and Forest City Ratner has expressed confidence in doing so even while lawsuits are pending.

Indeed, the one lawsuit that could definitely stop the project--rather than require the ESDC to revise some of its documents--is the appeal of the eminent domain case, which was decided unanimously. That appeal could be dismissed by the fall; if it is accepted, and goes to the Court of Appeals, the case could take two years.

FCR spokesman Joe DePlasco said that, even if the case is appealed, the developer will seek financing. That's not impossible, but an additional risk premium would have to be factored in. I suspect they don't want to issue bonds until the eminent domain case is dismissed.


That question should be answered not by DePlasco, whose record is not exactly credible and who doesn't answer to taxpayers, but by the ESDC.

The Observer points out that the market for tax-free bonds "is far more robust than the broader credit market." (Update: See Gringcorp's comment below for some skepticism.)

Other cases

Another case involves an appeal of the decision dismissing the challenge to the environmental impact statement. While a successful appeal might not formally stop the process of eminent domain and thus issuance of bonds, it could raise sufficient questions about the use of blight to pause or even kill the process.

Also, I learned yesterday, there's a hearing June 8 in state Supreme Court on a motion filed on behalf of residents in two buildings in the AY footprint, who ask that a decision against them be vacated and that a new ESDC hearing be held, given questions about project benefits and timetable.


A motion filed by attorney George Locker pointed to ESDC CEO Marisa Lago's acknowledgement that the project could take "decades":
As of April 8, 2009, the evidence is clear that ESDC believes that Atlantic Yards is a project that will take decades. This is an enormous change from the 10-year project that was approved in 2006. ESDC should be directed to hold a public hearing on all of the changes.


Should there be a new Modified GPP, as noted above, those plaintiffs may get their wish.

FCR's doggedness

The Observer offers some context regarding the developer:
The tough financial realities of this recession have scared off even some of the most quixotic developers in the city, forcing them to tuck their grand plans for new projects away, eating whatever costs they put into the early stages of development. By contrast, Mr. Ratner has refused to give up on Atlantic Yards, continuing to pour cash in. In the past year, Forest City has successfully extended a key loan, worked to redesign its arena, pushed various governmental agencies for revisions to agreements and all the while kept on contract an army of consultants and lobbyists.

This is an extraordinarily expensive task. Between the lawyers, the Nets, property purchases, lobbyists, architects, demolitions, and early infrastructure work, Forest City and its partners have spent hundreds of millions of dollars on this project in the past five years. That tremendous investment has been spent on a physically complicated project for which the developer hasn’t yet begun building or even clinched a deal to buy much of the land from the M.T.A.


Well, yes, and no. As of October 2007, for example, the developer committed $250 million, not counting the Nets losses, but the city and state have pledged $305 million. And FCR, as the New York Times first reported, would get a 5% development fee, or $200 million, should the project come in at the previously announced $4 billion.

That's a question for the oversight hearing: what's Forest City Ratner's projected development fee?

But Atlantic Yards has always been the developer's priority, in part because continued losses by the Nets and the team's loss in value mean that a move is crucial to reverse the tide. And the developer has been lobbying hard to gain subsidies, so FCR's efforts might be seen less as sacrifice and more like strategy.

New subsidies from Bloomberg?

Beyond the wrangling with the MTA, the Observer reports:
Forest City is negotiating with the Bloomberg administration, too, to change a deal that involves a total of $200 million in subsidies, according to those sources.

I'm assuming that's a reference to the current deal of $205 million, in which $105 million was quietly added, rather than an additional $200 million. Again, that's a question for the oversight hearing.

More litigation

While DDDB plans more lawsuits, the Observer notes that "[i]njunctions are not frequently granted to challenges on public approvals."

An article in the Brooklyn Daily Eagle suggests that DDDB may file a second lawsuit regarding environmental review, given that the project has changed. Again, if a Modified GPP is issued, there could be a hearing before bonds are issued, thus responding to that potential lawsuit.

DDDB Legal Director Candace Carponter told the Eagle that they could file a taxpayer lawsuit in federal court claiming the IRS made an illegitimate exception specifically for Ratner’s development; or perhaps a lawsuit that challenges the financing of the project.

In both those cases, a stay would be necessary before eminent domain is pursued.

[Update 7 pm May 20: Carponter tells me that the lawsuits she discussed with the Eagle were potential, rather than definite.]

A political battle

Lawsuits may raise serious questions about the project, but, outside of the eminent domain case, it may be that political entities--notably the Senate committee holding a hearing, the MTA board, and the ESDC board--may have more impact on the project over the next months.

Can the ESDC's evolving plans for AY pass the smell test? Will there be a real cost-benefit analysis?

So it would be interesting to learn what exactly Gov. David Paterson thinks.

The Weinstein case, a deceptive land ownership map, and some questions for the oversight hearing

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

It's plain to see, not in black and white but in bright color. 

The Empire State Development Corporation, which has regularly taken Forest City Ratner's cue in presenting facts to the public (as in the Construction Updates provided by the developer), in the December 2006 Modified General Project Plan provided this map of property ownership in the AY footprint.
(Click to enlage)

The asterixes in the three properties owned by Henry Weinstein (see oval) indicate: FCRC has closed on an option to take by assignment the lessee's interests under the ground leases for these properties. However, the property owner has objected to such assignments.

More than an objection

It wasn't merely an objection; it was a bitter legal dispute. Weinstein had leased the properties to Shaya Boymelgreen, who operated his office in the building at 752 Pacific Street. 

At about the same time that Boymelgreen sold the Ward Bakery to Forest City Ratner, he also transferred the lease to Weinstein's properties to FCR--without getting approval from Weinstein. Both parties went to court, as I wrote in August 2006. 

Weinstein won a fundamental victory in March 2007; the  Boymelgreen leases were terminated. This month Weinstein saw that upheld--and more--in appeals court. 

Given that FCR leased the property immediately back to Boymelgreen, and agreed to fund litigation, the lease was clearly an effort to add Weinstein's properties--about 5% of footprint square footage--to the property it owned or controlled. 

Thus at one point the developer could say that only 10% of the footprint remained in private hands. Now it's about 14%.

New map

Last year I acquired a new map, dated August 2008. It was produced apparently by Forest City Ratner, but it's in the same style as the map used by the ESDC, so it may have been produced by or for the agency.

Rather than the blue-green indicating control by FCR, the map uses the color white to indicate that Weinstein's properties are not controlled by the developer.

The asterixes indicate:
FCRC acquired ground leases on these sites, but fee owner objected and sued to terminate ground leases. The Court declared lease assignments invalid and leases terminated. The decision is being appealed.


What's the default?

But the case was in court when the first map was issued. Rather than allowing the default description--Weinstein's properties in purple--be in Forest City Ratner's favor, shouldn't the portrayal have been more neutral? 

Such a more neutral map could have used the white background for Weinstein's properties, or even a different color. And the asterixes could have indicated the complication.

Similarly, asterixes should be appended to any of the properties that may be owned by the developer but not fully under its control. For example, on Block 1127, residential tenants remain in three buildings owned by the developer (Lots 21, 50, 46); those tenants are all plaintiffs in pending lawsuits. And Lot 43, Freddy's Bar & Backroom, is also a plaintiff.

So, do ESDC officials recognize, in retrospect, that they should have created a more honest map?

When it came to the railyard work stall in December, the ESDC was more enabler than evaluator

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

I've written recently about how the Empire State Development Corporation lets Forest City Ratner pull the strings on Atlantic Yards Construction Updates and leaves the developer in charge of explaining a discrepancy in those updates.

Here's another example: when work stalled in December at the Vanderbilt Yard, the developer blamed lawsuits, and the ESDC endorsed that explanation.

"The latest I have is that they’ve done all the preliminary work they can complete until the lawsuits are taken care of," ESDC spokesman Warner Johnston told me. "The work will resume when litigation is resolved." His source: "our people who work with FCR."

Unexplained contradiction

However, that ignored sworn affidavits by Forest City Ratner officials that the construction schedule was “carefully drawn to allow the arena to be ready for the 2009-10 season by commencing work now on vacant properties that are owned by FCRC, the MTA and the City, with work on properties that are owned or occupied by other parties deferred until the pending judicial challenges to the Project have proceeded....”

In other words, ESDC refused to challenge the developer on the discrepancy. 

So, is the ESDC an evaluator or an enabler? Is the ESDC ensuring that public purpose is dominant or is it assisting a private developer to get a project done, no matter what?

It's another contradiction facing a public authority birthed during the Civil Rights era, with the significant (but not only) purpose of rebuilding slums, to the ESDC, whose slogan is "New York Loves Business."

Tuesday, May 19, 2009

Looking back at that IRS letter: did ESDC stretch the truth about the project timetable?

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

So, if Empire State Development Corporation (ESDC) CEO Marisa Lago thinks Atlantic Yards would take "decades," as she said in April, when did she and other ESDC officials come to that unsurprising conclusion?

Because the ESDC said something very different last year to the Internal Revenue Service (IRS) when it was lobbying to get an exemption for Atlantic Yards as the IRS planned to tighten rules regarding tax-exempt bonds.

Longstanding doubts

Keep in mind that project supporters like Assemblyman Roger Green and Partnership for NYC's Kathryn Wylde in 2005 and 2006 projected decades-long delays. Then the project was approved in December 2006 with an announced ten-year timeframe. In May 2007, Rob Lane of the Regional Plan Association suggested AY could take many, many years.

In September 2007, long before the IRS letter, the ESDC signed a State Funding Agreement that imposes penalties only six years after the exercise of eminent domain for arena delays and 12 years for delays in Phase 1, with no deadline for Phase 2. The implication was that a ten-year time frame was unlikely.

Lago was named to the ESDC last August.

May 2008 IRS letter

As I wrote last June, in a May 5, 2008 letter to the IRS and U.S. Treasury Department, the New York City Industrial Development Authority and the ESDC cited the discredited and chimerical decade-long timetable in arguing that the PILOTs (payments in lieu of taxes) plan for arena financing should stand.

Part of the argument was that Atlantic Yards had already proceeded significantly. But no construction had begun--no construction has begun, a year later--and a realistic timetable would have acknowledged the project was much farther away from its completion date.

Official claim

The letter stated:
In order to illustrate the substantial progress that has been made with the Project prior to the issuance of the Proposed Regulations, we have provided the chronology of events set forth below. The Project commenced in 2003; the Arena is anticipated to be completed in 2010, and the balance of the Project is expected to be built over the next decade.

The claim that the arena would be completed in 2010 was doubtful then, and the developer's current estimate of 2011 is equally dubious.

The claim that "the balance of the project" would be "built over the next decade" was and remains extremely unlikely, given the loose deadlines already established, not to mention the continually shifting projections from the developer.
Did the ESDC ever believe it?

How Forest City Ratner pulls the strings behind the AY Construction Updates (and why the ESDC should answer questions)

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

Well, we all know that the Empire State Development Corporation (ESDC) was willing to repeat Forest City Ratner's not-credible claim last December that lawsuits--as opposed to a cash crunch--had stopped ongoing work at the Metropolitan Transportation Authority's Vanderbilt Yard.

Here's another example, in which documents prove that Forest City Ratner--not the ESDC--is the author of the not-so-informative semi-monthly Atlantic Yards Construction Updates.

Uneasy relationship

This may not seem like a big deal, but it's illustrative of an uneasy relationship in which ESDC must both oversee and promote Atlantic Yards. Officially, the ESDC circulates and posts the updates, announcing:
In an effort to keep the Atlantic Yards Community aware of upcoming construction activities, ESD and Forest City Ratner provide the following outline of anticipated upcoming construction activities.


(Click on all graphics to enlarge)

Deferring to Ratner

The statement that "ESD and Forest City Ratner provide" suggests that the state agency should be willing to answer questions raised by discrepancies in the updates, such as my query about why announced utility work on Pacific Street never apparently occurred.

However, the ESDC sent me to Forest City Ratner, which ignores my queries and, not being a government agency, is not subject to any oversight. So the government and the developer should be asked about Pacific Street utility work at the upcoming Senate oversight hearing.

Behind the Construction Updates

Why didn't the ESDC answer me? One plausible explanation is that it didn't have an answer--because it's merely a conduit for a document prepared by Forest City Ratner.

How do I know this? As a resident who gets construction updates emailed directly explained to me, the ESDC slipped once, failing to strip Forest City Ratner employees' names from a memo emerging from the developer's office.

In December 2007, residents were forwarded the following update, credited to Forest City Ratner's Scott Cantone. (The other names are either FCR or state employees.)


The update was followed by this apologetic email from an Empire State Development Corporation staffer.


Here's an example of the heading on a typical Construction Update circulated by the ESDC as an attachment:


Another  recipient of FCR's originals

For another example of the original form of the updates, see this message, excerpted below, from FCR's Sonya Covington to Delia Hunley-Adossa of Community Benefits Agreement signatory Brooklyn Endeavor Experience.



Monday, May 18, 2009

The money primary: looking at fundraising in the 33rd, 35th, 36th, 39th, and 41st District Council races

A round of financial reports to the New York City Campaign Finance Board [corrected*] arrived Friday, and help provide perspective on which candidates proceed from a position of strength.

I look at the three districts that touch on Atlantic Yards (33, 35, 39), as well as two nearby districts (36, 41) where the incumbents have supported the project.

Fundraising is only one indication; institutional support, such as endorsements from unions, political clubs, and other organizations that can supply volunteers, can be key. A candidate's policies, doggedness, and media savvy surely play significant roles, as can a newspaper endorsement.

But the candidates with the most money can afford advertising to get the word out, as well as staff and consultants. And, with multi-candidate Democratic primary races--the election is September 15--a candidate with a mere plurality can win.

Who’s ahead?

The fundraising race is fiercest in the two districts where there are open seats and crowded fields. In the 33rd, Jo Anne Simon, lawyer and 52nd AD District Leader, and Steve Levin, chief of staff to Assemblyman (and county Democratic Leader) Vito Lopez, are neck and neck, well ahead of the rest of the field.

(The third debate of the season, and the first in which Levin will appear, will be held Tuesday at 7pm at Harry Van Arsdale High School, 257 North 6th Street in Williamsburg, sponsored by New Kings Democrats. Look for dynamics to be different than in previous debates, when Simon has been challenged by rivals who see her as the frontrunner.)

In the 39th, Brad Lander leads the field, with Josh Skaller the closest behind. (A debate also will be held Tuesday at 7 pm, at the Church of the Gethsemane, 1012 8th Avenue at 10th Street in Park Slope, sponsored by CBID, IND, and Park Slope Neighbors.)

Interestingly enough, in the 35th, incumbent Letitia James faces a challenger, Delia Hunley-Adossa, who is in fighting distance--though challengers usually have to outspend an incumbent who has the advantage of name recogntion.

In the 41st, incumbent Darlene Mealy faces a challenger, former Councilwoman Tracy Boyland, in fighting distance. And in the 36th, incumbent Al Vann has been outraised so far by no fewer than three challengers.

Because the open seats are so competitive, some of the candidates lagging in the 33rd and 39th would be in the lead in the 35th, where total fundraising is much lower. And I haven't seen any debates yet in the districts with incumbents.

The AY vote

And what of the “Atlantic Yards vote”? Based on contributors prominent in the Atlantic Yards opposition, it would clearly go to James in the 35th, especially since Hunley-Adossa is a prominent Atlantic Yards supporter.

I didn’t see evidence of pro-AY backing for Hunley-Adossa, beyond two contributions from construction unions that likely have some connection to AY. Then again, as I've reported, Hunley-Adossa and her treasurer Charlene Nimmons are being paid--via contributions that likely come from Forest City Ratner, but they won't say--salaries to run organizations that don't do all that much.

In the 39th, the vote would seem to go to Skaller, a longtime AY foe; Lander, a critic of the project closer to the “mend it don’t end it” BrooklynSpeaks position, says "we should use the [current] opportunity to either fix the flaws or reconsider the project."

The race in the 33rd is more complicated. Though candidates Ken Baer and Ken Diamondstone, longtime project foes, have support from prominent AY opponents, Simon has some support, even as her role in BrooklynSpeaks has been slammed most prominently by Diamondstone.

Then again, many people are not single-issue voters; Simon was endorsed by the Central Brooklyn Independent Democrats, whose officers include some prominent AY opponents, and Lander was endorsed by his predecessor at the Pratt Center for Community Development, AY opponent Ron Shiffman.

A few caveats

Some caveats should be applied to the summaries below. While the Campaign Finance Review Board reports the number of contributions, that does not necessarily reflect the number of contributors, because in many cases candidates get multiple contributions from the same person.

I’ve also tried to track the amount of contributions from the candidates themselves and assume that people with the same last name are family members. That means I miss some relatives with different last names--and may misidentify some people as relatives.

Also, I highlight only a small number of contributions that struck me as interesting, so it shouldn’t be considered a full analysis of a candidate's public support.

Note that the contribution limit is $2750 per person, with candidates seeking matching funds limited to three times the contribution limit ($8250). The spending limit is $161,000 in the primary election and then the general election for those seeking matching funds. To qualify for public financing, Council candiates need contributions from a minimum of 75 district residents and a minimum total of $5000. Council candidates may receive matching funds up to $88,550; each dollar a NYC resident gives, up to $175, is matched with six dollars in public funds, for a maximum of $1,050 in public funds per contributor.

35th District

Letitia James: 142 contributions for $14,230, including $500 from herself, contributions from Deborah Schwartz of the Brooklyn Historical Society, fellow candidate Jo Anne Simon, St. Joseph’s College President Elizabeth Hill, Rev. Mark Taylor of the Church of the Open Door, John Dew of CB 2, Laurie Cumbo of MOCADA, and SEIU Local 32B-J ($500). Donors among those active in the Atlantic Yards fight are Candace Carponter, Daniel Goldstein, Christabel Gough, Patti Hagan, Eric McClure, and Eric Reschke.

Delia Hunley Adossa: 141 contributions for $12,123, including $700 from relatives, plus contributions from several police officers (she’s president of the 88th Precinct Council), and several neighbors and two employees in the two buildings of the First Atlantic Terminal Housing Corp. (where she’s president of the board; a resident told me a volunteer was soliciting contributions door to door). She also received $1000 from the Carpenters union and $500 from the Plumbers union.

There was no report from the third candidate, Medhanie Estiphanos. It's possible that he hasn't raised the $2000 minimum (see p. 88 of this PDF).

39th District

Brad Lander: 560 contributions for $109,499, including $8500 from family members, numerous contributions from people in affordable housing and academia, and $2500 from Jonathan Rosen and Valerie Berlin of Berlin Rosen Public Relations, who represent progressive organizations, including housing groups like ACORN, the Fifth Avenue Committee and the Pratt Area Community Council, and also count Lander as a client. Here’s a dust-up on whether Lander has “developer” support, as well as Lander's clarification about nonprofit developers

Josh Skaller: 658 contributions for $82,730, including $8250 from himself and $14,000 from relatives. Among progressives supporting him are Kevin Powell, Chris Owens, and John Keefe, an aide to Assemblyman Jim Brennan. Among those in the Atlantic Yards fight contributing are Tom Angotti, Candace Carponter, 33rd District candidate Ken Diamondstone, Daniel Goldstein, [added 5/20] Lucy Koteen, Eric Reschke, Lumi Rolley, and Eric McClure.

Bob Zuckerman: 379 contributions for $68,872, including $8000 from himself and $10,175 from relatives. Also contributing are the Gay and Lesbian Victory Fund ($1000), Assemblwoman Deborah Glick, Lester Petracca of Triangle Equities ($1000), and Rep. Anthony Weiner.

John Heyer: 419 contributions for $51,470, including a number of priests, Council Member Vincent Gentile’s campaign committee, Assemblywoman Joan Millman (his former boss), and three staffers (and one former staffer) in the Borough President’s office where Heyer works: Carlo Scissura, Carolyn Greer, Yvonne Graham, and Greg Atkins. He got $750 total from two Carpenters unions.

Gary Reilly: 152 contributions for $24,505, including $5010 from himself and $3295 from relatives.

Green Party Candidate David Pechefsky: 88 contributions for $10,690, including $2750 from himself.

33rd District

Jo Anne Simon: 694 contributions for $82,751, including $2750* from her husband, Bill Harris, $1000 from Assemblyman Joan Millman, and $250 from Rep. Nydia Velazquez. Some participants in BrooklynSpeaks--Gib Veconi of PHNDC, Stuart Pertz of the MAS, and Judy Stanton of the BHA--contributed, as did Terry Urban of the Council of Brooklyn Neighborhoods. Simon got contributions from Aaron Naparstek of Streetsblog, Wiley Norvell of Transportation Alternatives, and two former activists turned Department of Transportation officials: Jon Orcutt and Andy Wiley-Schwartz.
[*corrected 5/20; the $4250 originally stated was a misreading of documents]

Steve Levin: 349 contributions for $82,348, including $3300 from family members (including Sen. Carl Levin, D-MI), $2000 each from David Peng of Windstar Construction and Douglas Steiner of Steiner Studios, $1000 from the New York State Court Officers and from Retail, Wholesale & Department Store Union Committee on Political Education; $1000 from his boss, Assemblyman and Brooklyn Democratic leader Vito Lopez and from Benjamin Geyerhahn of the lobbying group Hudson TG. There are contributions from Council Members Dominic Recchia, Lew Fidler, Vincent Gentile, and (Comptroller candidate) David Weprin, as well as Assemblymen Joe Lentol and Michael Gianaris. Also, there are 13 contributions from people connected to Lopez’s power base, the Ridgewood Bushwick Senior Citizens Council (RBSCC). There's also $2500 from a clothing executive in the Kings Highway area, Raymond Salem, and $2000 from a textile executive in the same area, Jeffrey Beyda.

Evan Thies: 233 contributions for $51,020, including $6450 from relatives, $500 from Jordan Barowitz of the Durst Organization, $2500 from developer Dean Palin, and $500 each from Jonathan Rosen and Valerie Berlin of Berlin Rosen, where Thies used to work.

Ken Diamondstone: [updated 5/20] 181 contributions for $40,339, including $8250 from himself, $3000 from relatives, and $2650 from his partner Joe Kopitz. He also got contributions from Atlantic Yards activist Jezra Kaye, [updated: former Rep. Major Owens, and 39th District candidate Bob Zuckerman.
[Based on info available 5/15, I reported 118 for $33,988.]

Isaac Abraham: 126 contributions for $24,127, mainly from the Hasidic community.

Ken Baer, 272 contributions for $22,029, including $5250 from himself. Those in the Atlantic Yards fight contributing include Daniel Goldstein, Christabel Gough, and Eric McClure.

Doug Biviano: 92 contributions for $11,832.

The 36th District

The 36th District race looks like a donnybrook, with eight announced candidates, including incumbent Al Vann. Veteran journalist Ron Howell, in his BrooklynRon blog, has been covering the race, and a dozen years ago assessed Vann’s work as a state legislator. There’s been no all-candidates debate yet, and clearly the size of the field helps the incumbent.

Mark Winston Griffith: 204 contributions for $35,589, including nearly $6000 from relatives and support from progressive activists nationally.

David Grinage: 523 contributions for $33,815, including some $5600 from relatives plus support from those in education and law enforcement.

Robert Waterman: 416 contributions for $22,073, including $2500 from himself.

Robert Cornegy Jr.: 152 contributions for $14,417, including $5000 in in-kind contributions.

Incumbent Al Vann: 120 contributions for $12,895, including $500 from himself, support from the United Federation of Teachers and several people heading organizations in the district.

Saquan Jones: 493 contributions for $10,249, including $570 from himself.

William Carrington: 59 contributions for $4825, including $2300 from himself.

Tremaine Wright: 99 contributions for $4797, including $1000+ from herself.

Aaron Fraser: 12 contributions for $1024.

41st District

Incumbent Darlene Mealy: 244 contributions for $30,876, including $1000 from developers Ben and Roya Shavolian, $1250 from DC 37, $500 from developers Jed and David Walentas, $1000 from lobbyists Wilson, Elser, Moskowitz, Edelman, and $2750 from consultant Melvin Lowe (who may or may not be the same Melvin Lowe who served as a consultant for Forest City Ratner in Yonkers).

Mealy also received $75 from James Caldwell and $50 from Marie Louis, both officers in the Community Benefits Agreement signatory BUILD (Brooklyn United for Innovative Local Development), which Mealy has supported.

Tracy Boyland: 205 contributions for $21,360, including $175 from Rep. Ed Towns and a contributions from a number of people whose employers aren’t listed. (When in 2006 Boyland ran against State Senator Velmanette Montgomery, she was not so good at documentation, either.)

Tulani Kinard: 119 contributions for $8835, including $580 from family members. She’s been endorsed by Charles Barron and Al Sharpton)

Janelle Hobson: 81 contributions for $3159.

More from City Hall News on the race in this district.
Correction
*I originally called it the Campaign Finance Review Board.

Why Atlantic Yards affordable housing will be long-delayed, and why ACORN can't complain

Despite the rhetoric, there are couple of important things to know about the promises regarding Atlantic Yards affordable housing.

First, should the project proceed, the housing will not be built on a schedule close to that originally promised.

Second, ACORN, signatory to the affordable housing Memorandum of Understanding (MOU) and the Community Benefits, owes Forest City Ratner $1 million and is in no position to complain about delays.

Markowitz's claim

After news of the Atlantic Yards eminent domain ruling that emerged Friday, Brooklyn Borough President Marty Markowitz asserted, "The unanimous ruling by the State Appellate Division once again affirms the numerous public benefits of the Atlantic Yards project—during these difficult economic times and into Brooklyn’s bright future—including the creation of affordable housing, solid union jobs, and permanent employment opportunities..."

Does it actually affirm those public benefits? The decision used vague locution from the Empire State Development Corporation (ESDC):
The project is anticipated to create between 5,325 and 6,430 housing units, of which 2,250 are expected to be affordable for low- and middle-income families.

The project itself can't create anything. Someone has to put up the money and, guess what, the housing market isn't great and housing bonds are scarce.

Who's speculating?

The court stated:
The project also serves the additional public purposes of creating an arena, publicly accessible open space, affordable housing, improvements to public transit, and new job opportunities... The petitioners' argument that some of these public benefits may never actually be realized is conclusory and speculative.

Isn't it equally speculative to assert that some of the public benefits will in fact be realized?

The court said:
In contrast, while the petitioners in the instant proceeding question the true motivations of the public officials involved in the development of this project, they have offered no evidence that the public benefits which the project will allegedly promote or achieve are illusory, or that equivalent or greater public benefits would accrue absent the condemnation.


Well, there's evidence and there's argument. There was no opportunity in the court proceeding to have a duel of experts, as in eminent domain battles elsewhere. But no cost-benefit analysis was ever attempted by the state, which announced benefits without assessing costs.

FCR's claims

Forest City Ratner issued a statement quoting Bruce Ratner, “This significant victory keeps Atlantic Yards moving forward. It means that more affordable housing, jobs, the Nets and other sports and entertainment are that much closer to being a reality in Brooklyn.”

Ratner added, "The world has changed significantly since we announced this project in December 2003. But one thing has never changed -- Forest City’s commitment to bringing the Nets to Brooklyn and building an arena and residential community that will make the people of Brooklyn and the entire City proud.”

Also in the press release was this statement, "FCRC expects to start at least one residential building during the first phase of construction."

Well, one building does not make a residential community. Nor would it "create" much affordable housing.

(The Daily News, in an editorial today, blames "rabid obstructionists" for delaying the arena and housing the city needs, somehow neglecting to point out that Ratner is delaying the housing on his own. The Daily News also blames AY opponents and critics for denying the Nets a chance at superstar LeBron James, somehow neglecting to point out that James could sign a bigger contract with his current team, the Cleveland Cavaliers.)

Where's ACORN?

You'd think that ACORN, which put its political muscle behind the project in exchange for a pledge to construct 2250 subsidized apartments, might protest the fact that those units likely would take "decades" (to quote ESDC CEO Marisa Lago) to emerge, rather than the ten-year span promised when the project was approved in December 2006.

(Bonus prediction: then-Assemblyman Roger Green, a project supporter, in 2005, predicted the project would take 25-30 years.)

But, when ACORN signed the MOU in May 2005, it was contractually obligated to support the project.

Since then, ACORN has become much more indebted to Forest City Ratner. When the organization, in the wake of an embezzlement scandal, faced mounting debts and a decline in donations, the developer stepped in last August and bailed out ACORN with a $1 million loan and grants totaling $500,000.

For Forest City Ratner, it looks like a very good investment.

The Times still punts

And the developer has gotten a free ride from the press so far, as well.

Yesterday, New York Times Public Editor Clark Hoyt looked into charges, raised by ACORN whistleblower Anita MonCrief, that the newspaper ignored a "game-changing" article about ACORN's connections to the Obama campaign.

Hoyt called it The Tip That Didn't Pan Out. (The conservative blog PowerLine disagrees.)

But MonCrief's tip regarding ACORN and Forest City Ratner checked out completely. It was confirmed by ACORN's spokesman. ACORN is indebted to Forest CIty Ratner and, likely, muzzled. That's news.

Were promises ever realistic?

I wrote last week how there's no evidence that, before the project was approved, the ESDC considered the availability of sufficient housing bonds to construct the affordable housing.

I filed a Freedom of Information Law (FOIL) request with the ESDC in December to see if any documents indicated such deliberations. Each month, I get the same response: they're still looking.

I just got my May response (right) this past weekend.
(Click to enlarge)

So, why did FCR's Gilmartin give mayoral candidate Thompson $400?

In the season's first report of campaign contributions, there are only six contributions from Forest City Ratner employees, to six different candidates in city political races, and the contributions are relatively small. So there's no reason to think it's a coordinated effort.

But the most curious contribution is $400 from MaryAnne Gilmartin, who heads the Atlantic Yards project, to Democrat Bill Thompson, the mayoral candidate and current Comptroller. (Click to enlarge)


Thompson has to be considered a long shot candidate, and Forest City Ratner is certainly most comfortable with Mayor Mike Bloomberg, a steady backer of Atlantic Yards.

Gilmartin on Bloomberg

Gilmartin in a public speech just after term limits were overturned last October, seemed to praise the mayor: "So I think the future holds great buildings that are also sustainable buildings. That we’ll be challenged by economic times, but in those challenging times creates great opportunities... If we have a great mayor, and I hope that we do, I think that this next five-year period represents tremendous opportunities for New York to build great buildings...”

Gilmartin made her contribution on September 13 of last year, after discussion of Bloomberg's plan had surfaced but before he actually went forward with it

So, was the contribution to Thompson just a courtesy? A personal connection of some sort? An insurance policy? A belief that he was the frontrunner at the time?

I have to think Bloomberg--who's been vastly outspending his potential rivals--will forgive her.

Sunday, May 17, 2009

After city/state claim cost of arena is trade secret, Ratner volunteers a number to the Times

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

There are two curious aspects to the New York Times's report yesterday, in the context of an article on the Atlantic Yards eminent domain case, on the price tag for the AY arena.

First, the Times identified the cost of the arena at $800 million, later adding, regarding Bruce Ratner, that "[h]e has also said he wants to pare the projected $1 billion cost of the arena by about $200 million."

But the arena had previously been said to cost $950 million and, while rounding up to $1 billion may be convenient, $50 million isn't chump change. So I'm going to call the price tag $750 million until further notice.

Trade secret?

More importantly, Times reporter Charles Bagli apparently didn't have to file a Freedom of Information Law (FOIL) request to get the cost estimate.

When I filed a FOIL request with the New York City Economic Development Corporation, it was rejected, and an appeal also was rejected, because it is either a trade secret or its disclosure "would cause substantial injury to the competitive position of the subject enterprise."

When I filed a similar FOIL request with the Empire State Development Corporation, it was rejected, and an appeal also was rejected.

So, how come the cost is not a trade secret any more? There's a public policy issue here. As I wrote, if the cost is now a secret, that suggests that developers and public agencies can announce one set of numbers to the public, then turn around and keep the actual numbers secret.

Saturday, May 16, 2009

Reading the dailies on the eminent domain case: questions about groundbreaking, appeal timing, Gehry's role

OK, so when does Bruce Ratner promise a groundbreaking for the Atlantic Yards arena? This summer, according to the New York Daily News; in September (which could be this summer), according to the New York Post; or in October, according to the New York Times. This year, according to an official statement (available on the Barclays Center site but not yet the Atlantic Yards site).

Why does it matter? First, it suggests that Ratner can't get his story straight. Second, it assumes a certain time frame for a decision regarding an appeal of the eminent domain case announced yesterday.

Perhaps most importantly, it allows Ratner, at least for now, to continue to promise that the arena would open for the 2011-2012 season. I think that's highly unlikely, because Ratner already suggested the arena would take 30 months to build, and the environmental review said 32 months, but it's remotely possible that a stripped-down design could be completed faster.

The timing of an appeal

Plaintiffs' attorney Matt Brinckerhoff left open the possibility that current legal cases could be cleared by the fall: "At a minimum, if we lose every single thing imaginable, it's still going to take them four to six months," he told the Daily News. That would then lead to the effort to exercise eminent domain by the Empire State Development Corporation.

But if the eminent domain case appeal is heard, it could slow things down for another two years. That's important, because Forest City Ratner has until the end of the year to see tax-exempt bonds issued to fund arena construction, a savings of well over $100 million.

Appeal in EIS case

What about the pending request for an appeal in the case challenging the AY environmental review? The Post reports:
There is also a suit pending challenging whether the state conducted a proper environmental review before approving Atlantic Yards, but Ratner's staff said it feels construction could still begin while that case remains under appeal. Opponents, however, said they disagree.

Perhaps construction work might be able to go forward, but would bonds be approved (via a local development corporation set up by the Empire State Development Corporation) before that case was cleared? If that case goes forward and is successful, a revised environmental impact statement might be required, so the ESDC might want to wait until the case is resolved.

Forest City Ratner's role

"This is really the last hurdle that we have and now we can do what our company does best and build an arena and houses," Ratner told the Daily News.

The company has no track record building an arena and little track record building houses. Rather, as the company web site states, it "currently owns and operates, 11 million square feet of commercial property in the New York metropolitan area, including office, retail and residential."

Gehry: in or out

So, is Frank Gehry still on the project? According to the Post:
Ratner said a revised arena plan would be released at a later date and promised it would still be a Gehry-design that's top-notch.

According to the Times:
He has also said he wants to pare the projected $1 billion cost of the arena by about $200 million. He said he would decide within 60 days whether to keep the original design, by the architect Frank Gehry, or use another.

Gehry's participation is important, because the arena has been sold to sponsors as a Frank Gehry arena. Should Gehry no longer be involved, presumably they would be able to renegotiate their level of support. I predict that some hybrid will emerge, with Gehry's name--if not his and his firm's ongoing participation--attached to the arena.

Cost of arena going down?

The price tag had previously been stated at $950 million. Trimming $200 million would bring it to $750 million. Previously, the Times had reported that Ratner wanted to cut the price tag in half, and in February I expressed skepticism, pointing out that an arena in Orlando, where construction costs are much lower, has a $480 million price tag.

The cost is important because, the higher the price tag, the larger the amount of PILOTs (payments in lieu of taxes) and the larger amount of foregone property taxes. And that means that the arena site would have to be assessed--in echoes of the Yankee Stadium controversy--so the value is high enough to generate those PILOTs. Stay tuned for that controversy to emerge.

Misunderstanding eminent domain

The Times reported:
In its unanimous decision, the Appellate Division of State Supreme Court, Second Judicial Department, upheld a lower court ruling rejecting a challenge to the state’s use of eminent domain to obtain properties for the developer from owners unwilling to sell.

No, eminent domain cases begin in the Appellate Division, because New York State law tilts strongly in favor of agencies pursuing condemnation and no trials and fact-finding are allowed. That information was both in my report yesterday and in the Develop Don't Destroy Brooklyn press release.

It's dismaying that the Times, whose commercial real estate reporter Charles Bagli is generally quite able, can't accurately inform its readers about a basic tenet of New York's much-criticized eminent domain law.

Missing warnings

None of the dailies mentioned new warnings from Forest City Enterprises about additional real estate development risks faced by the project. Such warnings may seem to be boilerplate required by the Securities and Exchange Commission, but they're different from warnings filed just six weeks earlier.

One-building Phase 1?

The Forest City ratner press release stated:
FCRC expects to start at least one residential building during the first phase of construction. 

Only one? There initially were supposed to be four buildings around the arena, and another building at Site 5. The City Funding Agreement suggests that the developer can meet obligations without penalty by building three towers within 12 years after the exercise of eminent domain.

Job claims

According to the press release:
Ratner explained as well that the arena and larger development are expected to create 16,924 direct jobs and over 30,000 indirect jobs.

Well, that's construction jobs, and job-years, not jobs. And it refers to the entire once-planned build-out, while there's no indication that Forest City Ratner would build the project as approved. (The jobs figure was reproduced without skepticism by Crain's.)

The statement comes from the Final Environmental Impact Statement, Chapter 4: Socioeconomic Conditions (PDF):
As a result of the direct expenditures, the direct employment for constructing the entire Residential Mixed-Use Variation is estimated at 16,924 person-years of employment.


23rd decision?

Ratner called the decision "the 23rd in a row in favor of the development,” without citing examples. What about the Weinstein case? Or the rejected motion to dismiss the eminent domain case?

The Lopez-Sander dust-up, Ratner lobbying, and the Weinstein case: why so little coverage?

"Society doesn’t need newspapers," wrote Clay Shirky recently. "What we need is journalism."

Muscling the MTA?

While not everyone agrees--newspapers, at their best, offer a menu of coverage a reader might not seek out--Shirky's argument got a boost this week..

That's because the New York Times and New York Post ignored the New York Daily News's scoop that Brooklyn Democratic leader Vito Lopez may have been behind the ouster of generally-respected Metropolitan Transportation Authority Executive Director Elliot (Lee) Sander.

Forest City Ratner lobbying

And what about Forest City Ratner's lobbying? It didn't quite make the Top Ten last year in New York state, but the developer did have the third-largest contract, which is notable, given that no construction proceeded but the developer surely was seeking indirect subsidies (or even direct ones).

That news didn't make it into last week's editions of the Brooklyn Paper or the Courier-Life chain, but that wasn't surprising, given that the news broke at or after those newspapers' deadlines.

What about this week? Nope.

Here's the Brooklyn Paper, which leads with a story about tickets for "rogue bikers." The Courier-Life doesn't put its issues online as a whole, and the articles are generally posted several days after the publication date.

The Weinstein case

An appellate court's decisions in favor of Atlantic Yards footprint landowner Henry Weinstein, who charged that his tenant, developer Shaya Boymelgreen, had improperly transferred a lease (to a building and parking lot) to Forest City Ratner, got a very brief article in the Courier-Life and hasn't yet been covered in the Brooklyn Paper.

I'll have more shortly on the implications of that case.

Friday, May 15, 2009

Forest City warns SEC of potential new delays, new costs, and failure to meet (tax-exempt bond?) deadlines

On April 2 I pointed out that Forest City Enterprises, in its Form 10-K filed with the Securities and Exchange Corporation (SEC), acknowledged additional potential for increased costs and delays, for the first time warning of potential "inability to retain the current land acquisition financing" and "loss of arena sponsorships and related revenues." Forest City also warns about the possibility of failing to meet required equity contributions.

A new Prospectus filed Wednesday in association with the issuance of 40 million new shares adds several new warnings. I've bolded the new or changed text.

Disclosure of risks

In the “We are Subject to Real Estate Development Risks” risk factor in our Annual Report on Form 10-K we disclosed risks associated with our Brooklyn Atlantic Yards project. The following updates that risk factor to provide additional information.

Brooklyn Atlantic Yards. We are in the process of developing Brooklyn Atlantic Yards, an approximately $4.0 billion long-term mixed-use project in downtown Brooklyn expected to feature a state of the art sports and entertainment arena for the Nets basketball team, a franchise of the NBA. The acquisition and development of Brooklyn Atlantic Yards has been formally approved by the required state governmental authorities but final documentation of the transactions is subject to the completion of negotiations with local and state governmental authorities, including negotiation of the applicable development documentation and public subsidies. Pre-construction activities have commenced for the potential removal, remediation or other activities to address environmental contamination at, on, under or emanating to or from the land.


For the first time, Forest City acknowledges that cost is a changing target.

New deadlines

There is also one lawsuit pending challenging the use of eminent domain which may not be resolved in our favor resulting in Brooklyn Atlantic Yards not being developed at all or not being developed with the features we anticipate. As a result of the foregoing, this project has experienced delays and may continue to experience further delays. There is also the potential for increased costs and further delays to the project as a result of (i) increasing construction costs, (ii) scarcity of labor and supplies, (iii) our inability to obtain tax-exempt financing or the availability of financing or public subsidies, or our inability to retain the current land acquisition financing, (iv) our or our partners’ inability or failure to meet required equity contributions, (v) increasing rates for financings, (vi) loss of arena sponsorships and related revenues, (vii) our inability to meet certain agreed upon deadlines for the development of the project and (viii) other potential litigation seeking to enjoin or prevent the project or litigation for which there may not be insurance coverage. The development of Brooklyn Atlantic Yards is being done in connection with the proposed move of the Nets to the planned arena. The arena itself (and its plans) along with any movement of the team is subject to approval by the NBA, which we may not receive.

This likely relates to the December 31 deadline for getting tax-exempt financing.

Delays and payback

If any of the foregoing risks were to occur we may: (i) not be able to develop Brooklyn Atlantic Yards to the extent intended or at all resulting in a potential write off of our investment, (ii) be required to repay the City and/or State of New York amounts previously advanced under public subsidies, plus penalties if applicable, (iii) be in default of our non-recourse mortgages on the project, and (iv) be required to restore the rail yards that previously existed on the land. The costs associated with those events could be significant and could have a material adverse effect on our business, cash flows and results of operations. Even if we are able to continue with the development, or a portion thereof, we would likely not be able to do so as quickly as originally planned, would be likely to incur additional costs and may need to write-off a portion of the development.

Eminent domain case is dismissed unanimously; appeal in this and EIS case remain as last legal hurdles

The Atlantic Yards eminent domain case was always a long shot in state court (even more so than in federal court), and today a state appellate court dismissed Goldstein et al. v. Empire State Development Corporation (ESDC) in an unanimous opinion.

In New York State, an appellate court, rather than a trial court, hears eminent domain cases, and no testimony or cross-examination is allowed.

The straightforward language of the 16-page decision, which gave no quarter to the petitioners' claims, contrasted with the appellate decision in the case challenging the Atlantic Yards environmental impact statement (EIS), which took pains to express some skepticism about the project and featured a concurrence that sounded like a dissent.

Appeal issue

Eminent domain law in New York State gives unusual deference to the government condemnor. A major issue raised in legal briefs and the February oral argument is whether the defendant ESDC conducted a study to measure the relative benefit to developer Forest City Ratner.

In legal papers, the ESDC claimed it had done so, though it cited a document that didn't perform such a measure. In court, the ESDC lawyer said it wasn't necessary, and the court agreed.

Plaintiffs’ attorney Matthew Brinckerhoff said today, “The court’s logic is faulty. The private benefit to Ratner was never compared with the alleged public benefit because no one knew or cared to ask Ratner whether he would make billions, tens of billions or hundreds of billions. The ESDC has conceded that it had no idea how much money will be made by Ratner when it agreed to seize my clients’ homes and businesses on his behalf." (Here's the statement from Develop Don't Destroy Brooklyn.)

Arena vs. appeal

Forest City Ratner and the ESDC have said the project--or, at least, the arena--will proceed once legal cases are cleared, and the latest decision is a significant step toward the exercise of eminent domain. (I'll add their comments when they emerge.)

(Update: Brooklyn Borough President Marty Markowitz said, "The unanimous ruling by the State Appellate Division once again affirms the numerous public benefits of the Atlantic Yards project—during these difficult economic times and into Brooklyn’s bright future—including the creation of affordable housing, solid union jobs, and permanent employment opportunities to meet the demands of new residents and visitors to the future Barclays Center. Today’s decision marks a significant step forward in the dream of bringing professional sports and a world-class facility back to our borough, and Brooklyn’s shovels are, and have been, ready. So, let’s pick them up and get to work!”)

Newark Mayor Cory Booker, however, thinks that the project is doomed, and even if all cases are cleared, financing a new arena may not be easy.

The nine petitioners, organized and funded by Develop Don't Destroy Brooklyn, will appeal to the state's highest court, the Court of Appeals, and say that they have the right to appeal without asking permission.

Update: Brinckerhoff said that the state Constitution and the Civil Practice Law and Rules allow the right to appeal when a case raises a constitutional question. That's been interpreted to mean a "substantial contitutional question." He said "we have multiple substantial constitutional questions, which gives us the right to appeal." However, he acknowledged, if the Court of Appeals disagrees, it could reject the appeal and require the petitioners to ask the Appellate Division to file a motion for leave, which would be discretionary. "I have a high degree of optimism [that the Court of Appeals would hear it], but I can't guarantee it," he said.

Such an initial request for leave to appeal is still pending in the case challenging the EIS. It could take several months--likely until the fall, given the courts' summer recess--for final appeals to be denied, and it would take much longer should the appeals be accepted. If the latter, there could be two more years of delay.

Declarative decision

In its decision, the court stated:
We reject the petitioner's claim that the Public Use clause of the New York Constitution must be read literally to allow the taking of private property only where that property is to be held open for common use by all members of the public. We find that, on the record in this case, the condemnation does not violate the Public Use clause of the New York Constitution because it cannot be said that the public benefits which the Atlantic Yards project is expected to yield are incidental or pretextual in comparison to the benefit that will be bestowed upon the project's private developer. Accordingly, we confirm the determination to acquire the petitioners' properties by condemnations.

The court on blight

The court didn't agree with any criticism of the Blight Study:
This study, replete with empirical data, amply supports ESDC's finding that the project site is underdeveloped and characterized by unsanitary and substandard conditions, and thus provides an adequate foundation for its conclusion that the land is substandard.

Incidental benefit

The court concluded that there was no need to measure the private benefit:
Furthermore, in light of the evidence in the record that much of the land to be acquired is substandard, and that the taking is rationally related to the purpose of remedying these substandard conditions, any incidental profit that may inure to Forest City from the remediation of the blighted project site does not "undercut the public purpose of the condemnation of the substandard land"... It has long been recognized as a matter of State constitutional law that where the public good is expected to be enhanced by a project, "it does not matter that private interests might be benefited"…. In any event, on the record presented here, it cannot be said that the project's public benefits are "incidental or pretextual in comparison with benefits to particular, favored private entities"

State constitutional clause

The petitioners tried to argue that the state constitution limited use of such funds, but the court said no:
They assert that the provision of State funds for the construction of housing, without a concomitant restriction of occupancy of the new housing units to persons of low income, is unconstitutional. ESDC responds that the term "project," as used in section 6, encompasses only low-rent housing projects receiving State aid, and that the low-income housing restriction contained in the constitutional text is thus inapplicable to Atlantic Yards. Although the term "project" is not defined by section 6, ESDC's contention that it applies only to low-income housing projects is supported by an examination of the structure of the relevant constitutional article and its stated objectives.

Issues of due process

The petitioners argued that they weren't given due process, but the court said no:
We further find that the petitioners' due process claim is without merit. ESDC substantially complied with the procedural requirements of EDPL article 2 by conducting a public hearing, at which those in attendance were given "a reasonable opportunity to present an oral or written statement and to submit other documents concerning the proposed public project"… Although not every interested person who attended the hearing had an opportunity to speak because of the large turnout, ESDC accepted written comments for more than one month after the close of the hearing, and additionally conducted two community forums to allow area residents to express their views.
(Emphasis added by the court)

In Ombudsman's response, ESDC maintains dubious timetable, says Carlton Ave. Bridge might reopen for pedestrians

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

Atlantic Yards Ombudsman Forrest Taylor has responded with the Empire State Development Corporation's (ESDC) answers to several questions raised at Taylor's February 11 public appearance in Brooklyn sponsored by the Council of Brooklyn Neighborhoods (CBN).

In one case, at least, the official ESDC answer--that construction would be completed during the ten-year timeframe set out in the General Project Plan (GPP)--contradicts ESDC CEO Marisa Lago's acknowledgment last month that the project would take decades.

So I think any further claim of a ten-year timetable should be backed up not merely by a construction schedule--which indicates technical possibility--but by a "probabilistic" date that indicates what might go wrong.

The ESDC, in its answers, does not offer much in the way of compromise, except for being willing to entertain the option of temporarily reopening the Carlton Avenue Bridge for pedestrians.

CBN shared the document with me. I've bolded the questions and put the answers in italic, all verbatim, then interpolated some of my own comments.

1. Q. Terry Urban, re: Carlton Avenue Bridge.

A. The bridge was expected to be closed for a couple of years as construction progressed; however, as a result of the temporary construction slow down, we are currently working with FCRC on a revised timeline and schedule. ESDC is very focused on the inconvenience that the bridge closure presents and we continue to work with FCRC to make sure the bridge is not closed any longer than is absolutely necessary. The idea of having the bridge opened, at least for pedestrian use in the short term, is an interesting idea that we will raise with FCRC and the City to see if it's feasible while insuring the safety for all pedestrians.

Their willingness to entertain even a short-term reopening suggests that construction work is not expected to resume soon. Urban had asked if a temporary bridge with two-way access could be provided.

2. Q. Daniel Goldstein, re: Parking.

A. Regarding the request for no parking, temporary construction regulations would need to be changed on 6th Avenue between Pacific and Dean Streets. Currently, on the east side, no parking is a permanent regulation and existed before construction commenced; on the west side, DOT could authorize the contractor to replace "no parking" signs with the regulations that were in place before only if no work is planned for this block in the near future. Since ESDC expects FCRC to resume work in the near future, there is no reason to ask DOT to make the change now, only to have to change it again in a few months.

It's unclear why work is expected "in the near future" on this block but not on the Carlton Avenue bridge. Goldstein had asked if "no parking for temporary construction" signs could be removed.

3. Q. Daniel Goldstein, re: Feasibility of project.

A. ESDC and FCRC continue to support the project and believe that the entire project is feasible and will be completed. ESDC and FCRC will soon release an updated construction timetable, which will include any budget and/or design changes to the project.

This begs a question: what exactly is the project?

If the developer has up to six years to build the arena (after delivery of property via eminent domain) and 12 years to build Phase 1, with no timetable for Phase 2 (all according to the State Funding Agreement) and Phase 1 can be 44% smaller (according to the City Funding Agreement), the project looks quite different.

4. Q. Eric McClure, re: FDNY response times analysis.

A. We are unaware of any analysis performed by the FDNY regarding response times for the Carlton Avenue Bridge.

Maybe it's worth asking the firefighters whether the bridge closing has hampered their work.

5. Q. Eric McClure, re: Traffic Plan.

A. The traffic plan during construction continues to be revised pending the resumption of construction activity at the site. Once construction plans and schedules are in place, the traffic plans will be shared with the community.

Let's assume that information will be shared at or before the State Senate hearing May 29.

6. Q. Eric McClure, re: Arena cost.

A. FCRC's most recent estimate of the cost of the arena is $950 million. FCRC has been undergoing an exercise in value engineering to decrease the cost. Once the exercise is completed and the project is ready to resume, the cost, as well as other aspects of the project, will be shared with the community.

Again, this information should emerge sooner rather than later.

7. Q. Joanne Simon, re: When is the project, no longer the project?

A. ESDC and FCRC remain committed to the project in its entirety. Once construction commences, it is expected that the entire project would be completed within the timeframe set out in the GPP.

This has already been contradicted by Lago's statements, the City and State Funding Agreements, and even the latest information from Forest City Enterprises. Simon had pointed to the many announced changes in the project; let's assume we will get some clarification soon about those changes.

Given multiple reports that Forest City Ratner is pursuing indirect subsidies, as well as the New York Observer's recent observation (via NLG) that "large projects seem to rarely provide the public with the value initially advertised, at least not within the time frame once imagined," this issue deserves a lot more scrutiny at the Senate hearing.

Newark Mayor Booker predicts Brooklyn deal will die: "I think there's going to be a comeuppance very soon"

Three weeks ago on the WBGO radio show Newark Today with Mayor Cory Booker, the mayor asserted, "I believe the project in Brooklyn is not going to work," and in last night's show Booker expressed even more confidence in that prediction, again arguing for the Nets to move to Newark's Prudential Center.

The action began at about 47:50 with a New Jersey-born caller from New York named Bob.

CB: Bob, you're from New York, are you from Brooklyn?

Bob: No, I'm from Manhattan.

CB: OK, 'cause I'm trying to get those Nets from Brooklyn.

Bob: What is the status of the negotiations to keep the Nets in New Jersey and more particularly to move them to Newark?

CB: I'm going to go way out on a limb here and let you know maybe more than I should... I am confident now more than ever that the deal in Brooklyn is just not going anywhere. I think there's going to be a comeuppance very soon where the team is going to go up for sale. That's my prediction--I really do believe it.

I'm working on this issue more than I ever imagined I would, because the Nets in Newark would have a significant game-change, in terms of the energy and the excitement and the job opportunities and economic investment in our downtown. So it's something I'm working on a lot. I've watched the deal very closely. I know people that are involved in the deal. It does not look like it's going anywhere in Brooklyn.

The team's going to be put up for sale, and this is my fear--that there are going to be people competing from Kansas City to Seattle and Newark is going to have to get in that game. And there's a lot of very good investors who are already stepping up that want to purchase the team should it be put up for sale.

(Emphasis added)

Prudential vs. Izod

In the rest of the segment, Booker and Essex County Executive Joe DiVincenzo, another guest on the show, discussed the importance of working out an arrangement with the Izod Center. Booker said he was "in active talks with people from the Meadowlands and the Sports Authority."

Of course, had officials from Bergen County, where the Izod Center is located, been on the show, the discussion might have been a little more contentious.

Eminent domain expert: AY EIS decision deserves an Oscar for "approving a litigation outcome while holding the judicial noses"

In February, when a state appellate court ruled against a challenge to the Atlantic Yards environmental review, I noted that the majority "took pains to express some skepticism about the project" and Justice James Catterson offered "a concurrence that had the tone of a dissent."

Gideon Kanner, an emeritus professor of law at Loyola University in Los Angeles and a veteran eminent domain litigator and critic, took a much bigger swing, in a post on his Gideon's Trumpet blog headlined It’s Oscar Time for their New York Lordships:
Since we write a stone’s throw from Tinseltown, we tend to award Oscars for outstanding performance, and the New York judiciary has just turned in a breathtaking bravura performance that calls for such recognition. The Oscar for writing an opinion approving a litigation outcome while holding the judicial noses, goes to the New York Appellate Division, First Department, for its virtuoso performance in Develop Don’t Destroy Brooklyn v. Urban Development Corp., 874 N.Y.S.2d 414
.

Malleable blight

While Kanner inaccurately calls it "the state court counterpart" of the federal eminent domain lawsuit--actually, there's a state eminent domain lawsuit--he does find a telling quote from the decision:
The point to be made is that ‘blight’ has proved over time to be a highly malleable and elastic concept capable of enormously diverse application.

He observes:
So there you have it folks: the concept of blight is so “malleable” that, try as they may, their Lordships have never met a blight finding they didn’t like. New York, it turns out, has achieved such a state of civic perfection that none of its saintly politicians have ever abused the power of eminent domain in the redevelopment context. Wow!

The curious concurrence

Kanner writes:
Special honorable mention goes to Justice Catterson, for his concurring opinion. The wonder of it is how Justice Catterson could say what he said and still rule in favor of the condemnor

He quotes Catterson as saying "I reject the majority’s core reasoning, that a perfunctory 'blight study'... should serve as the rational basis for a determination that a neighborhood is indeed blighted” and calling ESDC's look only at conditions years after the project announcement "is ludicrous on several levels."

No judicial independence

Kanner offers some sobering words for New Yorkers:
[N]ext time some politician — black-robed or otherwise — starts pontificfating about “judicial independence,” remind him of this opinion in which the judges recognized that there was no basis for their decision, but they rendered one in favor of the condemnor anyway in a sort of a the-devil-made-us-do-it performance.

Game is rigged

In a 10/14/06 speech in Albany at the Tenth Annual National Conference on Private Property Rights held by the Property Rights Foundation of America, Inc., Kanner slammed New York as "kind of the basement or the sub-basement of eminent domain law, if not the sewer."

In his speech, EMINENT DOMAIN: Where We Are, Where We’ve Been, & Where We Should Be Going, Kanner was blunt:
New York has a very primitive, very brutal system of eminent domain.

Why is New York worse? Only two other states, he said, deny people a right to jury trial, which allows for witnesses, discovery of evidence, and cross-examination of experts.

Moreover, in New York, he said, counties with any significant amount of eminent domain business have a single judge designated to hear cases. I'm not sure that's accurate--in New York City, it's a single appellate court, not a judge--but his point is that a much smaller corps of eminent domain lawyers has been developed.

Land assembly vs. redevelopment

Kanner commented:
New York is a sewer. New York City is a sewer when it comes to abuse of the power of eminent domain for favored private interest. The New York Stock Exchange, the New York Times, the Bank of America, those are only the current ones. That’s been going on for a long time. And, it’s phony. Why do I say that with such force? Well, I come to New York on business regularly, every now and then, and every time I go to Manhattan, what do I see? I see construction. I see skyscrapers going up. I see cranes. I hear jackhammers going. Almost none of it is redevelopment. This is all privately assembled land on which private individuals build buildings. So what do they need all that redevelopment for, if not for private, favored deals?

He said entire chunks of boroughs have been abandoned--not so true by 2006--but his point was that eminent domain wasn't necessary to start development in prime areas. And the same could be said for the Atlantic Yards footprint, where no rezoning was attempted.

The New York Courts, he concluded bluntly, "are completely hopeless."

Thursday, May 14, 2009

Forest City Ratner mints money with new shares, stock declines only 16%

Morningstar, which had once called Forest City Enterprises stock worthless but then raised its Fair Value to $4 three weeks ago, today upped its Fair Value estimate to $5.50, even as the developer announced it would sell 45.5 million new Class A shares at $6.60 each.

Gross proceeds will be about $300 million, or, if underwriters buy an additional 6.8 million shares, $345.3 million.

The stock closed at $6.30, down 16.11%, a hit to current shareholders but certainly a risk worth taking for the company, given its need to raise money to pay off debt.

Still, Morningstar issued an analyst's report that said "Forest City's risks outweigh its potential rewards." Analysts tracked by Yahoo are slightly more pessimistic than they were last month and months previous.

NLG tweaks me for not emphasizing that the 16% drop is the largest drop for FCE shares in months. it's a significant drop, sure, but the dilution of Class A shares by 50% could've meant an even greater fall.

Construction delay kills 2011 arena opening, puts even 2012 in doubt

Let's be clear about the meaning of Forest City Enterprises' quiet acknowledgment that no "vertical development"--including, implicitly, the Atlantic Yards arena--will occur this year.

[Update 10:25 am: a reader asks if no new development "in the near term" could still encompass starting construction this year? That's not ruled out, but if they were confident they could start this year, they would've said so.]

If arena construction doesn't begin until 2010, there's no way the arena could open by 2011, which has been the most recent official opening date (though there's been some hedging).

It's even questionable that the arena could open in 2012. Sure, a 24-month arena construction schedule would allow a 2012 opening, but the Atlantic Yards arena--at least in its earlier incarnation--was supposed to take 30 or 32 months.

[Update 2:55 pm: See comment that construction this year shouldn't be ruled out. Even if so, I'd bet that 2011 is still not tenable.]

Forest City Enterprises backs off arena construction pledge, issues 50% more stock to raise money (and dilute value?)

Two announcements yesterday showed how embattled Forest City Enterprises may be, given that the developer quietly backed off its pledge to start building the Atlantic Yards arena this year and announced it would issue 50% more Class A stock in an effort to raise money.

Arena timetable

Forest City Enterprises, 3/30/09 press release:
In 2009, we do not anticipate commencing construction on any new projects, with the exception of the arena at our Atlantic Yards project in Brooklyn, and a fee-based development project in Las Vegas.


Forest City Enterprises, 5/13/09 press release:
The Company anticipates investing approximately $169 million of equity to satisfy existing completion guaranty obligations on eight projects currently under construction as of January 31, 2009. In addition, although Forest City does not anticipate commencing any new vertical development in the near term, it does anticipate potential capital needs related to existing development opportunities and the preservation of entitlements on a number of long-term projects of approximately $331 million over the course of the next four years.
(Emphases added)

Empire State Development Corporation CEO Marisa Lago last month indicated that arena construction wouldn't begin until 2010 at the earliest.

[Update 10:25 am: a reader asks if no new development "in the near term" could still encompass starting construction this year? That's not ruled out, but if they were confident they could start this year, they would've said so.]

Stock issuance

Forest City also announced it would sell 40 million newly issued Class A common shares, with the underwriters allowed to sell an additional 6 million shares. The developer stated:
Forest City intends to use the net proceeds from the sale to reduce its outstanding borrowings under the Company's $750 million revolving credit facility and, if proceeds remain, for general corporate purposes.


What Forest City didn't say--and neither the Wall Street Journal nor Cleveland Plain Dealer noticed--is that, as of April 14, there were 80,744,785 shares of Class A Common Stock and 22,686,427 shares of Class B Common Stock, according to the Proxy Statement linked here.

The Class A stock closed yesterday at $7.51, but plunged 12% after hours to $6.60, a suggestion that traders believe the value of the stock would be diluted by the end-of-day announcement.

No price was announced for the new shares, but if they sold for $6, the company would reap $240 million.

When will MTA get any of FCR’s $100 million? Not yet, so it's worth asking about an alternative fate for the Vanderbilt Yard

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

So, when is the Metropolitan Transportation Authority supposed get Forest City Ratner's $100 million cash payment for rights to the Vanderbilt Yard? When is the MTA even supposed to get the $10 million nonrefundable deposit?

Not yet.

I wrote yesterday about developer Forest City Ratner's reported attempt to stretch out payments of the $100 million it owes as well as its reported effort to build a less extensive replacement railyard.

But it's worth a look at the documentation regarding when they're supposed to pay, and what the promises have been. And it's worth asking the MTA if it ever pressed Forest City Ratner.

The GPP on the $100 million

Note this sentence from Part 1 of the Empire State Development Corporation's (ESDC) Modified General Project Plan, or GPP (p. 14):
FCRC shall be required to consummate such purchase prior to or contemporaneously with the first acquisition by ESDC of a parcel within the Project Site not owned by the MTA.


After MTA Executive Director Elliot (Lee) Sander in Apri. 2008 expressed concern that the $100 million was delayed, Loren Riegelhaupt, a spokesman for the developer, told the Observer that the $100 million would be delivered later in 2008, once the company closed on the deal.

That didn't happen and, indeed, Riegelhaupt has left Forest City. The ESDC has yet to acquire any parcels. Sander recently said that the agency is "flexible and thoughtful" in its negotiations--but we don't know whether his successor will be more flexible.

Deposit comes later

Paragraph #3 of the 9/15/05 sale letter concerns the Purchase Price:
One Hundred Million ($100,000,000.00) Dollars payable as follows: Ten (10%) percent non-refundable deposit (in cash) on contract execution and the balance, in cash, at the Closing; provided, however, that if the MTA fails to close for reasons to be set forth in the contract of sale, the deposit will be returned to FCRC.

But the contract hasn't been executed. “As noted in the document, the 10% nonrefundable deposit is payable ‘on contract execution,’” MTA spokesman Aaron Donovan told me. "We expect that payment when the contract is executed at closing.”

When is closing? According to paragraph #7 of the 9/15/05 sale letter:
The Closing of the purchase and sale shall be subject to the completion of all public approvals for the FCRC Atlantic Yards Project, of which the development of the VD Yard as set forth in the FCRC Proposal forms a part, including approval of an ESDC General Project Plan, Public Authorities Control Board approval, approval under the Eminent Domain Procedures Law [EDPL], City and State funding approvals, and a final environmental impact statement. The parties will agree in the contract on the appropriate sequencing of construction of temporary and permanent improvements to the VD Yard, Closing of the purchase and sale, and an outside date for the Closing.
(Emphases added)

Cause of delays

The deal is still in the pre-closing period, during which work proceeds according to a license agreement. MTA spokesman Jeremy Soffin told the Observer in September 2007 that the deal was expected to close at the end of that year or in the beginning of 2008.

He told me more recently that negotiations are still going on; the question of "appropriate sequencing" is apparently unresolved. Also, though he didn't say so, no property has been delivered via eminent domain, and the EDPL has been challenged in court.

Plans way behind

As I reported in December, according to the Construction Schedule attached to the Atlantic Yards Final Environmental Impact Statement, the temporary yard was supposed to open 8/17/07.

According to the Preliminary Draft Construction Schedule that is part of the 2/14/07 license agreement entered into by MTA and LIRR with FCR, the temporary yard was supposed to open 11/8/07. According to another document, Construction Schedule Stage One, dated 5/20/08, the Temporary Yard was supposed to open 10/24/08, more than 14 months late.

Reversal possible?

As I wrote in December, a license for temporary yard work signed 2/14/07 states that, if construction of a permanent railyard does not begin within 24 months, the MTA has the option to ask Forest City Ratner "to fully restore the Present VD Yard Functions" and--apparently, though the language is murky--end the deal.

There's no indication that the MTA would exercise such leverage, but no construction has begun within that timetable.

It's worth asking the MTA whether it renewed the license, and why, or in what circumstances it would restore the railyard functions. 

After all, it's been nearly four years, and the MTA hasn't received the capital funds it expected from the Vanderbilt Yard deal.

Wednesday, May 13, 2009

Whither AY affordable housing: how little can they get away with building? Were promises ever realistic?

(This is one in an irregular series of articles about issues that a State Senate committee might address when it holds a hearing on Atlantic Yards.)

So, let's look at the promised Atlantic Yards affordable housing. 

How much are they supposed to build? How little can they get away with building? And were the promises ever realistic?

The affordable housing push

Affordable housing was one of the strongest selling points for the Atlantic Yards project; indeed, the slogan "Jobs, Housing, and Hoops" within about two years became much more about hoops, according to developer Forest City Ratner's propaganda.

Of course, the 6860 units of "mixed-income housing" touted in the flier at right are not all "badly needed." (After all, the total number was cut to 6430.) And many of the 2250 subsidized units are a lot more affordable than others, given that a good chunk--perhaps 900--would be rented for close to market rate

The opportunity for affordable ho