Tuesday, April 20, 2010

FCR affidavit regarding DDDB's litigation strategy relies on one not-so-reliable Brooklyn Daily Eagle reporter

The Brooklyn Daily Eagle, thanks to columnists Dennis Holt and Henrik Krogius, has been a longtime cheerleader for the Atlantic Yards project.

But it's neither Holt nor Krogius but courts reporter Ryan Thompson whose conclusionary and loaded language regarding Develop Don't Destroy Brooklyn's (DDDB) legal strategy is crucial to Forest City Ratner executive Maryanne Gilmartin's affidavit in support of an eviction order.

The affidavit is part of an ESDC package of legal papers aiming to convince state Supreme Court Justice Abraham Gerges to ensure that all condemnees leave the Atlantic Yards footprint by May 17. DDDB is not a party to this case, though DDDB spokesman Daniel Goldstein is a condemnee.

A hearing will be held Wednesday at 9:30 10 a.m. before state Supreme Court Justice Abraham Gerges at Supreme Court in Brooklyn, 320 Jay Street.

DDDB's strategy

While delay is surely a calculation, Thompson suggests that DDDB's litigation strategy is solely about delay, rather than any legitimate effort to hold government accountable.

Thompson, it should be pointed out, was the reporter behind the scoffing report, cited Saturday, that Develop Don’t Destroy Brooklyn asked "the court to consider new evidence that DDDB claims was not available at the time of the oral argument in January."

Choosing to cast doubt on DDDB's "claims," Thompson failed to point out that the Development Agreement was, in fact, not made public for nearly a week after the oral argument.

The affidavit

From Gilmartin's affidavit:
Time after time, the Project's opponents have sought to frustrate and delay the Project through litigation and motion practice. In fact, the Project's opponents have publicly acknowledged their intention to use the prolonged pendency of multiple litigations to kill the Project. On August 3, 2009, the Brooklyn Daily Eagle reported that the Project's opponents, "despite losing every major court case and lawsuit, vow to sue for as long as possible")"Hours Before Cutthroat Deadline, Atlantic Yards Opponents File Legal Papers in Court". The same newspaper previously attributed this telling statement to the Legal Director of Develop Don't Destroy Brooklyn, Inc. ("DDDB"), the opposition's umbrella group, whose principal leader and spokesman, Daniel Goldstein, is a condemnee in the present proceeding: "Can we bring other challenges? Absolutely. And we will." (The Brooklyn Daily Eagle, May 19. 2009, "Atlantic Yards Will Face More Lawsuits; Will It Face Eternal Delays?"). As shown below, however (and as the courts have recognized), the Project is important for the future of New York and is intended to bring enormous public benefits that the Project's opponents should not be allowed to thwart.
The coverage: DDDB responsible for delays?

From Thompson's 8/3/09 article headlined Hours Before Cutthroat Deadline, Atlantic Yards Opponents File Legal Papers in Court:
The appellants in the eminent domain case include property-owner Daniel Goldstein, the spokesman for DDDB, which organization is primarily responsible for the years of delays that have plagued the Atlantic Yards project in Downtown Brooklyn.

Through constant litigation and lawsuits, DDDB and its supporters have successfully stopped Ratner from building the multibillion dollar project according to schedule, which would have meant the New Jersey Nets moving to Brooklyn several years ago.

Opponents of Atlantic Yards, despite losing every major court case and lawsuit, vow to sue for as long as possible.
Why exactly is DDDB primarily responsible for years of delay? What about the economic downturn and a project (and approval process) sure to generate challenges?

As for the "vow to sue for as long as possible" statement, it's not backed up by any direct evidence.

The coverage: DDDB's strategy

From Thompson's 5/19/09 article headlined Atlantic Yards Will Face More Lawsuits; Will It Face Eternal Delays?:
In addition to a lawsuit filed in Manhattan Supreme Court that claims that the project’s timeframe violates state laws, DDDB has a bank of potential lawsuits to come.

Carponter said that if the eminent domain appeals fail, then there are numerous other causes of action for DDDB to pursue.

“Can we bring other challenges? Absolutely,” Carponter said on Monday. “And we will.”

Carponter cited some examples of possible upcoming lawsuits that would seek to stop Atlantic Yards. Carponter said 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.

“I could probably give you a half a dozen right now,” Carponter said.

She acknowledged that the lawsuits would not have the effect of stopping construction of Atlantic Yards unless a stay or an injunction ordering such was issued as part of the new lawsuits. Seeking such injunctive relief would be one of the primary goals.

“Any lawsuit we file, we’d file before they get the land,” Carponter said. “At some point, if we don’t get a stay, they will start construction.”

That means that before title is transferred, DDDB will start suing again. The reason why these lawsuits weren’t originally filed years ago was likely a time-management strategy, so as to cause as much delay as possible. If that was DDDB’s strategy, it seems to be working, as even Ratner admits that the main reason for the construction delays is the pending lawsuits.

“It just depends on who’s got more stamina,” Carponter said, making it clear that DDDB and Atlantic Yards opponents will not stop suing. She added, with a bit of a chuckle, that DDDB didn’t file all of the lawsuits originally because they “didn’t want to seem over-litigious.”
(Emphasis added)

Note that the speculative conclusion comes not from Carponter (who's not a party to the current case) but from the reporter.

Beyond a lawsuit, how else could the Empire State Development Corporation, which held the Development Agreement under wraps, be held accountable?

Order to Show Cause ESDC, Atlantic Yards Condemnation Case

No comments:

Post a Comment