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In court today, likely the last oral arguments in the remaining Atlantic Yards legal cases (new Determination & Findings; air rights easement)

Likely the last oral arguments in any of the latest round of Atlantic Yards legal cases will be held this morning before Kings County Supreme Court Justice Abraham Gerges, at 9:30 a.m.

The location is Kings County State Supreme Court, IAS Part 74, 320 Jay Street, Room 17.21, Brooklyn. Here's the map.

Both cases are distinct longshots for those challenging the Empire State Development Corporation (ESDC), but still could provoke some interesting volleys. Both cases are named for property owner Peter Williams, but he actually doesn't remain a party in the first case.

New Determination & Findings?

In June, as I wrote, in a brief, five-page decision in the case known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka 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 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.

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. 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, slated for condemnation in a later phase of the project.

Friedman is still considering a separate case, brought by coalitions organized by Develop Don't Destroy Brooklyn and BrooklynSpeaks, challenging the legitimacy of the ESDC's ten-year timeframe and requesting a Supplemental Environmental Impact Statement to evaluate project impacts over a longer period.

In that case, she did consider the belatedly-released Development Agreement.

The air rights case

The other case involves a claim by Peter Williams Enterprises (PWE), who owned 38 Sixth Avenue, adjacent to the Spalding Building at 24 Sixth Avenue, that that the state made a "colossal mistake" in not pursuing eminent domain for the easement bordering and above the Spalding Building. Williams has said he's motivated by money, not any anti-project feelings.

The ESDC's motion to dismiss, below, calls it a "meritless lawsuit... brought for the sole purpose of attempting to interfere with and delay" the project. Not only does the complain lack legal foundation, according to Charles Webb's affirmation, but plaintiff PWE executed a release waiving any claims.

While the complaint alleges that the easement agreement gave PWE ownership of tax lot 7501, that is not a real tax lot. According to an affirmation from a senior tax counsel with the New York City Department of Finance, such a designation is given for administrative billing purposes only. The condominium declaration for 24 Sixth Avenue does not mention a Lot 7501.

Moreover, Webb stated, when ESDC condemned 38 Sixth Avenue, it also acquired PWE's interest in the easement; thus, the pre-vesting offer to PWE (only $423,000) included $114,000 for the easement. PWE, in settling the claims for 38 Sixth Avenue, signed a release agreeing not to pursue any claims regarding the property.

The FCR motion

According to the Forest City Ratner motion to dismiss, the Atlantic Yards Development Company paid a sum "substantially in excess of the sum that previously had been offered to PWE by ESDC."

The motion, in an affirmation from attorney Jeffrey Braun, argues that PWE's "heavy-handed" press release was attempted to embarrass ESDC in the media, part of a "shameless effort to shake down FCRC and its affiliates for more money."

An easement, according to the Court of Appeals, is an appurtenance to the land benefited by it, the motion states.

The plaintiff's response

Attorney Matthew Brinckerhoff, who represents the property owners in both cases, responded that the ESDC's motion to dismiss "is nothing more than a poorly disguised motion for leave to amend" the public hearing notice and the Determination & Findings to include the unmentioned tax Lot 7501--an action that would re-start the eminent domain process.

It was the ESDC, according to Brinckerhoff that chose to list parcels by tax lot rather than the "traditional metes and bounds" physical description of properties.

The affirmation from Joy Bobrow, Senior Tax Counsel at the city Department of Finance, is inappropriate, according to Brinckerhoff. Rather, the facts as presented in the complain must be accepted as true on a motion to dismiss.

Brinckerhoff states:
Whether Lot 7501 is most accurately characterized as a fee interest in property above the plane within the metes and bounds set forth in the document (as Plaintiff contends) or a compensable property interest of a different sort, such as an easement (as Defendants contend), the one thing we know with absolute certainty is that it was a valuable, duly recorded, property interest that the [ESDC] never identified and thus did not condemn and does not now own.
A footnote states:
Plaintiff has monitored, as best it can, Defendants' activities on and around Lot 7502 and have not observed any encroachment. Plaintiff, however, reserves its right to seek an order prohibiting trespass on its property should such a trespass occur or appear imminent.
Um, that's going to happen.

As for whether PWE released its right to the property interest, Brinckerhoff notes that the release was limited to 38 Sixth Avenue--a fact omitted by Braun.

ESDC response

A second affirmation by Webb asserts that the plaintiff did not address the fact that Lot 7501 is not a true tax lot, nor acknowledge that the original agreement was in fact called an easement.

Nor did the plaintiff address the fact that the acquisition map for 24 Sixth Avenue did set forth the metes and bounds.

Webb says that the release signed by PWE regarding the sale of the building discharges any and all claims that could have been brought in the condemnation proceeding.

ESDC Motion to Dismiss, PWE case

Forest City Ratner Motion to Dismiss, PWE case

Matthew Brinckerhoff Affirmation Opposing Motion to Dismiss, PWE case

Affirmation of Charles Webb, Motion to Dismiss


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