Skip to main content

Will Development Agreement get its day in court? Unlikely, as Justice Friedman moves case back to condemnation judge who already dismissed issue

It looks like the belatedly-released Atlantic Yards Development Agreement--which signals significantly relaxed deadlines for the project--won't get its day in court, after all.

In a brief, five-page decision in the case known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka Empire State Development Corporation, or ESDC), state Supreme Court Justice Marcy Friedman essentially rejected a challenge by property owners that the Atlantic Yards project has changed so much that the ESDC should be forced to issue a new Determination & Findings to proceed with eminent domain.

Friedman did not formally reject the case, because she didn't examine the Development Agreement or get to the merits.

Instead, she moved it from New York County (Manhattan) to Kings County, as the ESDC had requested. In Kings County, Justice Abraham Gerges, who handles condemnations, already rejected similar arguments when rejecting a direct challenge from property owners to the condemnations.

The decision was dated May 26 and filed June 1, but I only learned about it last week. I asked the attorney for the petitioners, Matthew Brinckerhoff, for a comment, but didn't get one.

Development Agreement still at issue in separate case

Friedman is still considering a request by two groups of petitioners--organized by Develop Don't Destroy Brooklyn and BrooklynSpeaks--to consider the Development Agreement in revisiting her March 10 ruling that the ESDC's ten-year timeframe for Atlantic Yards was reasonable.

In her ruling, Friedman disagreed that a Supplemental Environmental Impact Statement to reflect the burden of a 25-year project on communities was necessary. Nor would she annul the 2009 Modified General Project Plan, or MGPP.

But she refused to let the Development Agreement--released in January a week after oral argument--to be added to the case, known as Develop Don't Destroy (Brooklyn), et al., vs. Empire State Development Corporation and Forest City Ratner Companies.

She's still considering the request for reargument, but such motions, like appeals, are generally more of a long shot than new cases, as was the Williams case.

Development Agreement bypassed

The difference between the Williams case Friedman moved to Brooklyn and the case Gerges already decided is that the Development Agreement, which points clearly to a much longer buildout than the official ten-year timetable, had barely emerged at the time of the oral argument in January before Gerges, and was not formally added to the case.

The petitioners in the Williams case have cited the Development Agreement in legal papers, but wanted to add it to the record. Friedman never got to that issue.

In legal papers before Friedman in the Williams case, ESDC attorney Philip Karmel stated that petitioners' attorney Brinckerhoff "made each of the arguments he is now presenting" before Gerges but they were rejected as meritless.

That's not quite so, because Gerges didn't evaluate the Development Agreement, part of the master closing documents that give the developer six years to build the arena, 12 years to build Phase 1, 15 years to start construction of the platform, and 25 years to finish the project.

(The project was approved for the second time in September 2009; the Development Agreement was signed in late December but not publicly released for a month.)

Gerges considered the issue moot, since the question of public use had already been declared to be off-limits and cited the ESDC's argument:
Whatever the pace may be for the delivery of the many public benefits of the Project, the nature of those benefits remains the same.
Location of petitioners

While the six original petitioners in the case sought venue in New York County, based on the location of the ESDC's principal office, rules of civil procedure, Friedman wrote, provide that "venue shall be placed in the county where real property is located where 'the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property.'"

Though Friedman indicated that five of the six petitioners were located in Kings County, it's a little more ambiguous, as three of them (as she failed to note) had left the case. They had done so as part of the process of reaching eminent domain settlements. So they were no longer part of the case when Friedman held a brief oral argument on May 18.

Those who settled were Williams, condo owner Daniel Goldstein, and Freddy's Bar & Backroom. The remaining petitioners are two entities owned by Henry Weinstein, a longtime owner of property near the corner of Carlton Avenue and Pacific Street, and The Gelin Group, occupants of a house on Dean Street east of Sixth Avenue.

Title to the Weinstein properties already has been transferred to the ESDC, though a settlement regarding their value is pending, and Weinstein won't give up occupancy until June 30. The Dean Street house is subject to eminent domain in a later phase.

Judicial reasoning

Friedman wrote:
The instant proceeding should accordingly be transferred to Kings County based on settled venue rules and in order to avoid duplicate or inconsistent judicial determinations. Contrary to petitioners' contention, transfer is not barred on the ground that one of the six petitioners, Gelin, was not a party to the Kings County proceeding. Assuming arguendo that Gelin has standing to maintain this proceeding--a matter in dispute--the venue procedures provide not for severance of the parties or claims, but for the court to set venue in the county proper to at least one (or here, five of the six) of the parties.
...They are represented by the same counsel in the two proceedings and, as discussed above, raise the same arguments that they raised in the Kings County proceeding. This conduct suggests forum shopping which cannot be countenanced by the court.

Brinckerhoff had argued that, at the least, The Gelin Group had the right to be heard in the court of its choosing.

Friedman Decision Williams Case

Comments

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…

Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website Matzav.com explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…

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…

Atlanta's Atlantic Yards moves ahead

First mentioned in April, the Atlantic Yards project in Atlanta is moving ahead--and has the potential to nudge Atlantic Yards in Brooklyn further down in Google searches.

According to a 5/30/17 press release, Hines and Invesco Real Estate Announce T3 West Midtown and Atlantic Yards:
Hines, the international real estate firm, and Invesco Real Estate, a global real estate investment manager, today announced a joint venture on behalf of one of Invesco Real Estate’s institutional clients to develop two progressive office projects in Atlanta totalling 700,000 square feet. T3 West Midtown will be a 200,000-square-foot heavy timber office development and Atlantic Yards will consist of 500,000 square feet of progressive office space in two buildings. Both projects are located on sites within Atlantic Station in the flourishing Midtown submarket.
Hines will work with Hartshorne Plunkard Architecture (HPA) as the design architect for both T3 West Midtown and Atlantic Yards. DLR Group will be t…

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…