Thursday, December 23, 2010

The dialogue (imagined) behind yesterday's court non-drama; what if someone challenged Justice Friedman on the Development Agreement?

I wasn't privy to the discussions among lawyers yesterday before state Supreme Court Justice Marcy Friedman, so I don't think this was the discussion that led to the lifting of a request for a stay on project construction.

I suspect the discussion was far more limited and politic.

But this is what might have happened had there been a law clerk in the room raising inconvenient arguments.

Dramatis personae include:
  • State Supreme Court Justice Marcy Friedman (MF)
  • Develop Don't Destroy Brooklyn attorney Jeff Baker (JBa)
  • BrooklynSpeaks attorney Al Butzel (AB)
  • Empire State Development Corporation Phil Karmel (PK)
  • Forest City Ratner attorney Jeffrey Braun (JBr)
  • Friedman's imaginary, impudent law clerk (LC)
MF: OK, so you asked for a stay--

JBa: Right.

MF: Until they completed a response and they--

PK: Did just that. We submitted it. AKRF works very fast.

AB: We just think it's vastly inadequate. They completely ignored the real impacts of 25 years of construction.

JBa: Not to mention that the meeting was illegal. That executive session--

JBr: They haven't submitted any papers on that.

MF: Don't you realize, I can only decide the case before me. I ordered them to deliver findings and they did.

JBa: Did you read those findings?

MF: It's not the court's job to evaluate those findings. I'm not an environmental analyst.

PK: It's the court's job to determine whether the agency acted rationally. We submit we did.

AB: Well, we submit that the agency does not deserve standard deference. Look at the record.

JBa: Did you watch the board meeting? You really need to have been there.

JBr: It should be pointed out that Mr. Baker's office is in Albany.

JBa: OK, I watched the webcast. And I distinctly heard this board member use the term "rubber stamp"--

MF: Gentlemen. Gentlemen. Do you really think I'm going to stop construction of a billion-dollar basketball arena just because you disagree about the impacts of a parking lot that will linger 25 years--and you haven't briefed it fully?

JBa: That's not--

AB: --the only thing.

MF: You need a little more meat on the record. You can file a supplemental petition next month, and we'll proceed from there. For now, please work on a stipulation. We'll announce that in open court.

The attorneys exit. The court session ensues. The parties leave.

LC: Judge, you really didn't have any choice, right?

MF: None whatsoever. The law in New York is the law. If they want the law changed, they should go to the legislature. Lotsa luck.

LC: But, really, judge, wasn't it kind of your fault? In court last January, when it mattered, the ESDC kept talking about this Development Agreement they'd signed that would ensure the project would get done in ten years, but it wasn't available.

MF: True.

LC: And then it emerged a week later, and the penalties were pretty weak. Baker and Butzel asked that you get it into the record and--

MF: I said no. And, in my decision in March, I said the ten-year timetable was rational, but barely.

LC: And then they filed for reargument, and there was finally an oral argument in late June and a decision last month. Meanwhile, Forest City broke ground on the arena, and made significant progress on excavation and even erecting steel.

MF: What can I say--the judicial process takes time.

LC: In your decision November 9, you admitted it was a "misapprehension" on your part to not let in the Development Agreement back in the winter.

MF: If I made a mistake, they're not going to push me. The only people who can tell me I made a mistake serve on the Appellate Division.

LC: But if you'd ruled differently in March Forest City might not have been able to draw down the bond proceeds and construct the arena.

MF: That's what the petitioners say. The briefs on this seem to clash.

LC: Still, the ESDC gets rewarded for its willingness to withhold the Development Agreement, and Forest City Ratner benefits too. Then, when the ESDC finally complies last week and makes findings on the 25-year buildout, the report's not available until after the time for public comment.

MF: It's not pretty, but that hasn't been fully briefed. My job is to approach the next set of briefs with an open mind.

LC: I'm beginning to think Mr. Butzel has a point. He says Atlantic Yards, "though wrapped in ESDC's gauze, is clearly a private development project proposed and being implemented by a private for-profit developer." Didn't you read that law review article about "judicial deference to unaccountable agencies"?

MF: C'mon, I already criticized the ESDC for "what appears to be yet another failure of transparency." Has any elected official--beyond Sen. Bill Perkins--said as much regarding the ESDC's performance with Atlantic Yards? Is anyone going to reform this agency? I rest my case.

LC: OK, let's have lunch.

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