Skip to main content

Motion to dismiss condemnation raises procedural issues and larger argument that no findings were made for significantly changed (and delayed) project

The condemnation hearing today in state Supreme Court could result in the Empire State Development Corporation (ESDC) taking title to property it needs in the Atlantic Yards footprint.

But attorneys for the property owners and leaseholders, in a case organized and funded by Develop Don't Destroy Brooklyn, are pressing both narrow and broad issues in their motion to dismiss the case. Most notably, they argue that the project has changed so much that the 2006 Determination & Findings (D&F) no longer stands.

It's an unusual challenge, breaking new ground, and thus hard to assess. Judges usually grant condemnation petitions. And judges usually hesitate to substitute their judgments for agencies like the ESDC

But AY has always been complicated, and the motion to dismiss (reproduced at bottom) makes some serious claims.

So, unless Justice Abraham Gerges decides that none of it is relevant, it could be a long hearing and/or a reason to allow much more time for further argument or an opportunity to consider dueling legal arguments.

The larger issue

The potential condemnees argue that the petition should be dismissed because the 2006 D&F is no longer valid, because the 2006 Modified General Project Plan (MGPP) was superseded by a 2009 Modified General Project Plan, "thus vitiating the 2006 D&F."

Another issue: that 2006 D&F and MGPP provided for the acquisition of all properties simultaneously, but now the 2009 MGPP provides for the acquisition of properties in two stages.

Another issue: "the factual underpinnings of the determination of public use, benefit and purpose set forth in the 2006 D&F have materially changed."

Also, they argue that condemnation, according to the 2009 MGPP, should not occur until there are guarantees that Forest City Ratner would promptly build the arena, but the bond document states that an additional $324.8 million is required to complete the arena, with no assurances that it would arrive.

The respondents, citing AYR, also ask to investigate "the revelations just this week that firmly establish that Petitioner has consistently misrepresented the timing of the Project."

The motion to dismiss states:
Given this development, and Petitioner’s steadfast resistance to allowing a court to consider the many changes to the Project over the course of more than three years – changes that have utterly eviscerated any legitimate claim that the Project will serve anything other than Ratner’s singular desire to increase his and his shareholder’s wealth – while turning a large swath of Brooklyn into a wasteland for decades, if not longer, this Court should grant Respondent’s leave to conduct discovery, pursuant to CPLR 408.
Narrower issues

The narrow issues involve procedural issues, such as the contention that the eminent domain case has not fully been resolved.

Though the Court of Appeals ruled in December against the eminent domain plaintiffs (who are technically the respondents in the condemnation case), they have filed a motion to reargue it and/or hold it abeyance in light of the appeal in the Columbia University eminent domain case, and that motion has not seen a ruling, which, at the earliest, could come February 9.

They have also asked for a stay because of pending cases challenging the 2009 Modified General Project Plan, which won't be resolved until the end of February, at least.

Another issue: the eminent domain petition does not state “the public use, benefit or purpose for which the property is required,” as required.

Another issue: the 2006 D&F attached to the Petition is incomplete, because the state "intentionally omitted the list of properties contained in the 2006 D&F in order to conceal the fact that the 2006 D&F was premised upon a single acquisition, which was recently changed to a staged acquisition." (This, of course, links to the larger issue.)

Another issue: the petition "does not contain true and complete copies of the proposed acquisition maps."

Another issue: the petition in different places is contradictory, saying that condemnees would have 120 days or 90 days to file a written claim for damages.

Atlantic Yards Motion to Dismiss Condemnation

Atlantic Yards Condemnation Answer

Comments

  1. ESDC's lawyers are used to scurrying up to the judge with a vesting order and getting what they want. That is the way it usually works. But not here. When ESDC's eyeballs stop rolling in their heads, it will dawn on them that a long, tough, maybe impossible legal road lies ahead to gain title to the site. Given the blatant lies and deception, the judge will never grant ESDC title unless ESDC starts over and conducts a lawful process. That will be difficult for ESDC, because it is hopelessly corrupt and dimwitted, relying entirely on favors from the judicial system. One good piece of news for FCRC: Brett Yormark may not have to learn Russian after all!

    ReplyDelete

Post a Comment

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

Forest City acknowledges unspecified delays in Pacific Park, cites $300 million "impairment" in project value; what about affordable housing pledge?

Updated Monday Nov. 7 am: Note follow-up coverage of stock price drop and investor conference call and pending questions.

Pacific Park Brooklyn is seriously delayed, Forest City Realty Trust said yesterday in a news release, which further acknowledged that the project has caused a $300 million impairment, or write-down of the asset, as the expected revenues no longer exceed the carrying cost.

The Cleveland-based developer, parent of Brooklyn-based Forest City Ratner, which is a 30% investor in Pacific Park along with 70% partner/overseer Greenland USA, blamed the "significant impairment" on an oversupply of market-rate apartments, the uncertain fate of the 421-a tax break, and a continued increase in construction costs.

While the delay essentially confirms the obvious, given that two major buildings have not launched despite plans to do so, it raises significant questions about the future of the project, including:
if market-rate construction is delayed, will the affordable h…

Revising official figures, new report reveals Nets averaged just 11,622 home fans last season, Islanders drew 11,200 (and have option to leave in 2018)

The Brooklyn Nets drew an average of only 11,622 fans per home game in their most recent (and lousy) season, more than 23% below the announced official attendance figure, and little more than 65% of the Barclays Center's capacity.

The New York Islanders also drew some 19.4% below announced attendance, or 11,200 fans per home game.

The surprising numbers were disclosed in a consultant's report attached to the Preliminary Official Statement for the refinancing of some $462 million in tax-exempt bonds for the Barclays Center (plus another $20 million in taxable bonds). The refinancing should lower costs to Mikhail Prokhorov, owner of the arena operating company, by and average of $3.4 million a year through 2044 in paying off arena construction.

According to official figures, the Brooklyn Nets attendance averaged 17,187 in the debut season, 2012-13, 17,251 in 2013-14, 17,037 in 2014-15, and 15,125 in the most recent season, 2015-16. For hoops, the arena holds 17,732.

But official…

So, Forest City has some property subject to the future Gowanus rezoning

Writing yesterday, MAP: Who Owns All the Property Along the Gowanus Canal, DNAinfo's Leslie Albrecht lays out the positioning of various real estate players along the Gowanus Canal, a Superfund site:
As the city considers whether to rezone Gowanus and, perhaps, morph the gritty low-rise industrial area into a hot new neighborhood of residential towers (albeit at a fraction of the height of Manhattan's supertall buildings), DNAinfo reviewed property records along the canal to find out who stands to benefit most from the changes.
Investors have poured at least $440 million into buying land on the polluted waterway and more than a third of the properties have changed hands in the past decade, according to an examination of records for the nearly 130 properties along the 1.8-mile canal. While the single largest landowner is developer Property Markets Group, other landowners include Kushner Companies, Alloy Development, Two Trees, and Forest City New York.

Forest City's plans unc…

Skanska says it "expected to assemble a properly designed modular building, not engage in an iterative R&D experiment"

On 12/10/16, I noted that FastCo.Design's Prefab's Moment of Reckoning article dialed back the gush on the 461 Dean modular tower compared to the publication's previous coverage.

Still, I noted that the article relied on developer Forest City Ratner and architect SHoP to put the best possible spin on what was clearly a failure. From the article: At the project's outset, it took the factory (managed by Skanska at the time) two to three weeks to build a module. By the end, under FCRC's management, the builders cut that down to six days. "The project took a little longer than expected and cost a little bit more than expected because we started the project with the wrong contractor," [Forest City's Adam] Greene says.Skanska jabs back
Well, Forest City's estranged partner Skanska later weighed in--not sure whether they weren't asked or just missed a deadline--and their article was updated 12/13/16. Here's Skanska's statement, which shows th…