Wednesday, June 23, 2010

Justice Friedman schedules motion for reargument in case challenging ten-year timeline; Development Agreement should get its day in court

The belatedly-released Atlantic Yards Development Agreement should get its day in court, after all. A hearing in the effort to reopen the case challenging the Modified General Project Plan--essentially the legitimacy of the ten-year timeline--will be held on Tuesday, June 29.

It will be held before state Supreme Court Justice Marcy Friedman at 60 Centre Street, Room 335, at 11 am.

Chance of success

Given general judicial deference to the Empire State Development Corporation (ESDC) and other agencies, it's a long shot to expect a ruling in favor of the petitioners, community groups organized by Develop Don't Destroy Brooklyn (DDDB) and BrooklynSpeaks.

However, the petitioners have some inconvenient facts to air in court regarding the dubiousness of the official ten-year project timeline.

If the case is successful, it could severely slow the project--at least the non-arena portion--by requiring new analyses of the project's environmental impact.

One case out, one in

Yes, Manhattan (New York County) Supreme Court Justice Friedman refused to hear a separate case charging that the belatedly-released agreement--which contrasts with the 2009 Modified General Project Plan--diminished the project's benefits so much a new Determination & Findings for the use of eminent domain should be issued.

Instead, she sent it to Kings County Justice Abraham Gerges, who handles condemnations, and likely will dismiss it.

However, Friedman is now willing to hear two groups of community petitioners ask her to reconsider her ruling March 10 that the project's ten-year timeline was legitimate and that a Supplemental Environmental Impact Statement was not necessary.

Development Agreement under wraps

Key to the motion for reargument is the Development Agreement, which was not released until about a week after the oral argument in January--despite a pledge to release it earlier--and which Friedman refused to add to the case.

It amplifies the more general language in the Modified General Project Plan (MGPP), approved in September 2009, that developer Forest City Ratner would be required to use "commercially reasonable" efforts to complete the project in a decade.

Given that the Development Agreement sets a 25-year outside date for project completion, that suggests that the ten-year timeline is tenuous, especially since the developer has ten years to start the third of 16 planned towers before penalties kick in. (That timetable was not in the MGPP.)

However, Forest City Ratner and the Empire State Development Corporation claim that a vague provision--that could cost $10,000 a day or, more likely, $1000 a day--would be used to enforce the official timeline.

Previous skepticism

Friedman in her March ruling offered some skepticism of the ESDC:
Under the limited standard of SEQRA (State Environmental Quality Review Act) review, the court is constrained to hold that ESDC's elaboration of its reasons for using the 10 year build-out was supported — albeit, in this court's opinion, only minimally — by the factors articulated by ESDC.
Given that the Development Agreement offers further reason to doubt the legitimacy of the ten-year buildout, DDDB notes that "it would seem that that minimal support erodes entirely due to the facts subsequently revealed in the Atlantic Yards Development Agreement."

Possible relief

A successful suit could throw a wrench into plans, at least, for the project beyond the arena.

The community groups organized by DDDB and by BrooklynSpeaks filed essentially similar suits, but have somewhat different goals.

As I wrote in May, Friedman, in her earlier ruling, said the horse had essentially left the barn, and that any relief regarding Atlantic Yards should rest with the political process.

In legal papers, FCR and the ESDC argue that the project has advanced even further, given the settlements reached with several occupants of the project site, and that nullification of the 2009 MGPP would "severely disrupt the project."

DDDB attorney Jeff Baker, who asked the court to consider whether enjoining future work was possible, noted that a significant portion of funds expended would be useful regardless of the nature of future development.

(That's likely regarding land purchases, demolition, and railyard work, though much if not most of the utility work and recent foundation work is clearly arena-specific.)

BrooklynSpeaks attorney Al Butzel, who pointed out that much of the investment has been of public funds, wrote that the defenses by ESDC and the judge--large expenditures and the role of the political process--do not, "in the Petitioners' view, justify condoning an illegal action."

While his clients would prefer to see all work stopped, he wrote, their greatest concern regards the parts not yet begun and the ensuing disruption. That sets up a scenario in which work on the arena would be tolerated if future work was enjoined.

Baker, by contrast, wrote that the arena shouldn't be allowed to proceed as a standalone project, given that it had never been considered by itself.

Both Baker and Butzel asked for a hearing, with sworn testimony to clearly establish whether 2019 was a reasonable date. That means there could be another hearing--but the hearing June 29 is essentially the reargument itself.

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