Tuesday, January 05, 2010

ESDC representatives will testify at state Senate hearing on Columbia, eminent domain; four AY questions suggested

Today's state Senate oversight hearing, "Unconstitutional: What the Appellate Division’s Eminent Domain Ruling Means for the Columbia Expansion," might get interesting: three representatives of the Empire State Development Corporation (ESDC) the state agency pursuing eminent domain in both the Columbia and Atlantic Yards cases, are scheduled to appear as witnesses.

(The hearing will be held from 4-7 pm at the State Office Building in Harlem. Here's coverage of a September 2008 hearing.)

Whether the ESDC reps will answer specific questions is another question, given that the Appellate Division ruling against the ESDC in the Columbia case will be appealed, and the lawyers for the plaintiffs in the Atlantic Yards case are trying to get the Court of Appeals to reopen the case in light of the Columbia appeal.

Looking at AY

Though the hearing focuses on Columbia, I'll suggest that state Senator Bill Perkins, who chairs the Senate Standing Committee on Corporations, Authorities and Commissions, pursue the questions "How should the process be reformed?" by looking into four aspects of the Atlantic Yards Blight Study and environmental review.

This does not represent an attempt to reargue the Atlantic Yards litigation; rather, it represents an effort to assess the ESDC's professional standards.

The crime study

First, given the slam-dunk evidence that crime in the precinct sector including the Atlantic Yards footprint occurs mostly at Forest City Ratner's malls rather than the AY site, does the ESDC have any qualms about the study it commissioned from consultant AKRF?

Did AKRF interview any police officials? Did AKRF take with an appropriate grain of salt the claims by mall security officers that no robberies occurred in 2005 at the malls, especially since current evidence is in such contrast?

The missing market study

Remember, according to the Contract Scope for the environmental review and Blight Study, AKRF was supposed to document blighted conditions, including:
--Analyze residential and commercial rents on the project site and within the study area
--Analyze assessed value trends on the project site, and compare to sample blocks with comparable uses in the study area, such as the Atlantic Center.


That was never done, even though journalistic reports from the New York Times Real Estate section, for example, show steadily rising trends.

In the challenge to the AY environmental review, Justice James Catterson (who also wrote the Columbia opinion), agreed in his fiery concurrence that AKRF had failed to fulfill its Blight Study contract by ignoring market conditions.

The majority, which upheld the dismissal of the challenge, essentially punted, saying the market study wasn't crucial for the ESDC to prefer Forest City Ratner's project over alternatives. Perhaps, but the market study may have been crucial for an accurate assessment of whether the site was blighted.

Perhaps the ESDC witnesses, however, can tell us why it wasn't conducted.

Who's responsible for railyard upkeep?

Remember how the ESDC received comments saying government agencies should be blamed for failing to maintain the perimeter of the Vanderbilt Yard. Was the city responsible? The Metropolitan Transportation Authority?

The ESDC ignored the question and ignored the issue. It simply punted.

Underutilization and vacancy

As noted at the September 2008 hearing (and in the Columbia litigation), in the case of Atlantic Yards, buildings were deemed vacant with 50% vacancy rates, while in the Columbia University expansion, buildings were initially deemed vacant at 25% vacancy rates.

And AKRF asserts that a building not fulfilling 60% of its development rights, or Floor Area Ratio (FAR) is underutilized. However, as attorney Philip Van Buren testified, “The City Planning Commission uses 50% for its policy planning purposes. Even 50% is arbitrary.”

Indeed, Catterson wrote in his Columbia opinion:
No rationale was presented by the respondents for the wholly arbitrary standard of counting any lot built to 60% or less of maximum FAR as constituting a blighted condition. To the contrary, the New York City Department of City Planning uses a 50% standard to identify "underbuilt" lots. The petitioners accurately contend that while in a mid-rise residential area, or a high-rise business district, a 60% figure might have some meaning as an indicator of demand, in an area zoned for a maximum of two stories, it effectively requires owners to build to the maximum allowable FAR.
At the May 2007 hearing in the challenge to the AY environmental review, ESDC attorney Philip Karmel told Justice Joan Madden, “We now hear they don’t like using 60%” of FAR as a criteria for underutilization and “You have to have a cutoff somewhere.”

Why, asked the judge, is the formula relevant.

Karmel’s response was something of a non sequitur. The ESDC, he said, had looked at an area of Downtown Brooklyn and adjacent to Downtown Brooklyn, and “surrounding” the borough’s largest transit hub. “We found very little there… We found a bunch of one-story buildings.” (There were some, but not many.)

By contrast, he said, on the north side of Atlantic Avenue, there are a number of taller buildings. Unmentioned was that there are also mid-rise buildings and many row houses. And, I'd add, that the manufacturing zoning (M-1) on Pacific and Dean streets in the footprint left little room to meet the ESDC's arbitrary standards, just as in the Columbia case.

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