As expected, the Empire State Development Corporation (ESDC) this morning approved findings that the Development Agreement--which has a 25-year outside date--and MTA contract for the Vanderbilt Yard "do not have a material effect on whether it is reasonable to use a ten-year construction schedule for the purpose of assessing the environmental impacts of Atlantic Yards." (Documents are here.)
The findings were geared to fulfill a request by Supreme Court Justice Marcy Friedman, who will hold a hearing December 22 on a request for a stay on project construction, based on her preliminary ruling that the ESDC make "findings on the impact of the Development Agreement and of the renegotiated MTA agreement on its continued use of a 10 year build-out for the Project, and on whether a Supplemental Environmental Impact Statement [SEIS] is required or warranted."
"Does it stand to reason that 25 years is the same as ten years?" asked project opponent Daniel Goldstein of Develop Don't Destroy Brooklyn.
The state never studied the neighborhood character impact of interim surface parking noise, much less over 25 years, added Jo Anne Simon of BrooklynSpeaks.
At issue is that distinction, one that sounded, in the words of ESDC attorney Robin Stout (at 5:10 of the video below), a bit like a zen koan: "The agreements require the developer, as I said, to use commercially reasonable efforts to achieve a completion date of 2019, but perhaps more importantly, the agreements set a framework, where the market demand for the project's buildings can be expected to bring the project to completion as soon as it is commercially reasonable to do so. The documents separately set out the outside completion date of 2035."
The definition of "commercially reasonable" is unclear, but it looks like developer Forest City Ratner is in the driver's seat.
After all, it was then ESDC CEO Marisa Lago who said in April 2009, candidly and memorably, that Atlantic Yards would take "decades."
(Below, ESDC Chairman Dennis Mullen. Photos and set by Tracy Collins. Videos by Jonathan Barkey. Here's coverage in Patch.)
No SEIS needed
The board went into a 34-minute executive session, but hardly discussed the issues in the open session.
The board also agreed that, while it appears unlikely that the project would be constructed on a ten-year schedule--because it's already lagging and because of continuing weak general economic and financial conditions--that a delay in the ten-year construction schedule "would not result in any new significant adverse environmental impacts not previously identified and considered... and would not require or warrant an SEIS [Supplementary Environmental Impact Statement]."
Such an SEIS, should it have been needed as the project approached the ESDC board in September 2009, might have delayed approval until 2010, thus eliminating Forest City Ratner's capacity to save more than $100 million by having tax-exempt bonds issued by the end of 2009.
(Below, board member Kevin Corbett salutes Mullen.)
Why no SEIS? For one thing, according to the 71-page Technical Analysis of an Extended Build-Out of the Atlantic Yards Arena and Redevelopment Project (embedded below), the amount of traffic has declined since 2006, and some projected developments haven't been built--all of which means that "the potential ten percent increase in study area background traffic... would not be expected to result in total traffic volumes greater than what was analyzed in the FEIS for the 2016 Build year."
The analysis also suggested that the delay in eight acres of open space--promised in Phase 2 and completed by the end of the project--would not be meaningful:
With the Extended Build-Out Scenario, the temporary impact identified in the FEIS would extend longer, but would continue to be addressed by the incremental completion of the Phase II open space. As each of the Phase II buildings is completed, the adjacent open space would be provided in conformance with the 2006 Design Guidelines, thereby offsetting some of this temporary open space impact.And, crucially, the project sponsors acknowledge that neighbors of the project will bear the brunt--but say it doesn't make a difference:
Therefore, the impacts of the Project’s construction on neighborhood character with the Extended Build-Out Scenario would remain localized and be comparable to those described in the FEIS and the 2009 Technical Memorandum. As in the FEIS scenario, the construction activity associated with the Project would have significant adverse neighborhood character impacts in the immediate vicinity of the Project site during construction, but these impacts would be localized and would not alter the character of the larger neighborhoods surrounding the Project site.The analysis was written by ubiquitous environmental consultant AKRF. The board meeting was held at 633 Third Avenue in Manhattan.
Criticism from project neighbors
By the standards of ESDC meetings on Atlantic Yards, it was relatively subdued, with a half-dozen residents and representatives of neighborhood groups commenting in opposition to the findings, suggesting, in the words of longtime project opponent Patti Hagan (below), that it was "ridiculous" and "bullshit" to think that a 25-year impact would be no more significant than a ten-year one.
No project supporters offered comments, but in the audience were Forest City Ratner's David Berliner and Michael Rapfogel, as well as spokesman Joe DePlasco and attorney Richard Leland.
The EB-5 connection
Goldstein even linked developer Forest City Ratner's quest for a $249 million no-interest loan from immigrant investors under the EB-5 program to the issue at hand.
Pointing to an affidavit from ESDC Executive Director Peter Davidson in a pending legal case regarding the project timetable, Goldstein (below) suggested that Davidson's assertions might not be trusted, given that he claimed in China that Atlantic Yards "will be the largest job-creating project in New York City in the last 20 years.”
The ESDC statement
Below, ESDC attorney Robin Stout describes how the agency played defense. In response to charges made by two groups of community petitioners pending, he said, staff believe that the assumptions in the agency's 2009 Technical Memorandum--a document produced instead of an SEIS--were reasonable.
The ten-year schedule, he said, was evaluated by ESDC, in light of market demand for residential units, which at that time ESDC determined to be robust, based on expected population growth, Brooklyn's tight housing market, the demand for affordable housing and the transit-accessible location.
ESDC, he said, also considered the developer's contractual commitment and financial incentives to bring the project to completion on an expeditious schedule.
None of the above factors, however, assessed whether the housing would meet the expected rental and sales levels required by Forest City Ratner's bottom line.
Stout neglected to mention a document cited in ESDC's legal papers, a report by the consulting firm KPMG, which predicted that the market could in fact absorb the units. That report, as I pointed out, is full of fuzzy numbers.
Similar to the conclusion of the 2009 Tech Memo, Stout said, "further analysis concludes that further modification to an outside date of 2035 would not result in any new or substantially different significant impacts than those addressed in the FEIS."
Thus, there's no need for SEIS.
Those conclusions deserve a closer look, which is coming in an update.
Hagan introduced herself as a 32-year resident of the Prospect Heights Historic District, today representing "my St. Marks Avenue community garden."
"I live two blocks from the Ratlantic Yards 25 years buildout," she declared. "I am awakened early morning by the thunderous pile-driving going on by the footprint... It is deafening and not music to our ears."
"I would like to say the judge criticized ESDC for gross failures of transparency and honesty in regards to the Ratlantic Yards boondoggle, that is, to hide the fact of a 25-year buildout," she said, asking if "ESDC people feel any responsibility, any shame, for the actions you have taken with regard to this?"
"I wonder how you can present your analysis against a new environmental impact statement and not factor in the blighting, totally disruptive effects of a 25-year buildout," she asked.
Collins: "neighborhood is destined to die"
As noted, documents issued today made a distinction between the blocks near the project site and the surrounding larger neighborhoods.
The documents had not been issued when photographer Tracy Collins, a resident of Dean Street between Sixth and Carlton avenues, addressed the board. "For those of you who don't know the area, it's literally a half block from the back end of the arena," he said.
"Already with the demolitions, the construction and the closing of streets, life on my block is becoming less and less livable," he said. "When it was projected to be ten years, that was enough to give me more gray hair than I already have… Now, with 25 years, I just think--the neighborhood is destined to die."
"It's like Patti [Hagan] said: it's inconceivable that anybody would believe that something that would last ten years versus something that would last 25 years is going to give you same kind of impacts," he said.
"I would hope that as representatives of New York State you would take your jobs very seriously and consider what it's going to do for us who have to live through it," he added. "I don't know how many of you have visited the area... but I can imagine that if it were in your neighborhoods they're going to build an arena that's not supposed to be, per New York City law, next to a residential area, you'd be very concerned that something that's going to take ten years [is] now going to take 25 years."
"I told myself I wouldn't get mad and lecture, but merely ask that you take this very seriously and not just rubber-stamp this and agree to whatever it is Forest City Ratner wants you to do," Collins said in closing. He didn't even mention that his block of Dean Street will bear the brunt of arena-goers walking from the 1100-space surface parking lot and later underground parking.
Goldstein: it's "an embarrassment"
Goldstein, who shook hands with Mullen as he approached the chair Mullen gave up for commenters, said he was not only representing DDDB, "I'm also one of your most recent condemnees... I haven't gone anywhere. I still live about two blocks away from the mess you've created at that intersection."
He tweaked the ESDC for its congratulary message to Mullen at the beginning of the meeting, noting comments about "some of the signature great programs, and I think the ESDC does do great things around the state... Atlantic Yards isn't one of them... I think you all probably agree with that.... And you could say, well, it's Mr. [Charles] Gargano's probleme, or Ms. Lago's, but it's your project, as well."
What Friedman had to say about the ESDC "is an embarrassment, as you represent the people of New York State. I don't care what the reply briefs say," he said, "the ESDC misled the court and the public by not handing over key documents."
General Counsel Anita Laremont looked down. Davidson crossed his arms. Mullen maintained a neutral expression.
Goldstein then pointed out FCR's EB-5 venture in China, saying that it suggested the developer "is short $250 million... That's a serious question that speaks to what's before you today."
The issue of parking
Simon, the 52nd District Democratic Female Leader, representing BrooklynSpeaks, began by saying, "I would like to express my tremendous disappointment at the recommendation of the staff."
She stressed that "the FEIS never actually studied the noise impacts of a surface parking lot... It was expected to be put underground within a few years You cannot say there is no impact because it's now going to be there for 25 years."
Indeed, as Simon indicated, the FEIS chapter on neighborhood character never addressed the impact of surface parking.
The Technical Analysis acknowledges extended surface parking:
For a portion of the Extended Build-Out Scenario, there would be a prolonged use of one area of Block 1129 for construction staging and other areas of Block 1129 for surface parking for construction workers and arena patrons during events.However, the analysis suggests, the same residents--neighbors but not a significant neighborhood--would be affected as was previously disclosed:
...Temporary surface parking would be sequentially reduced and eliminated, and replaced by permanent below-grade parking, which would also come on line incrementally.
Although the entire Project would be prolonged in the Extended Build-Out Scenario, 2020 represents an outside date for when the interim surface parking and staging areas on Block 1129 would start its incremental transformation into completed and occupied permanent uses, including public open space and below-grade permanent parking.The document deals with views, but not noise, as Simon (above) indicated:
Therefore, the impacts of the Project’s construction on neighborhood character with the Extended Build-Out Scenario would remain localized and be comparable to those described in the FEIS and the 2009 Technical Memorandum. As in the FEIS scenario, the construction activity associated with the Project would have significant adverse neighborhood character impacts in the immediate vicinity of the Project site during construction, but these impacts would be localized and would not alter the character of the larger neighborhoods surrounding the Project site.
As in the FEIS Scenario, the upper floor residences immediately across from the parking lot (i.e., upper floor residences on the eastern edge of Block 1128, the south side of Dean Street between Carlton and Vanderbilt Avenues and, to a lesser extent, the eastern side of Vanderbilt Avenue between Dean and Pacific Streets) will see the screening (which will be 10’ in height), but because of their elevation will also see over the screening into the surface parking lot; this would be a change in their views from the pre-Project condition in which Block 1129 was characterized by a mix of abandoned industrial buildings, occupied residential and commercial buildings, a homeless shelter and much smaller surface parking lots. That change in views would not constitute a significant adverse impact to neighborhood character.From the FEIS chapter on Neighborhood Character:
Although the proposed project would result in a change in character along the Dean Street corridor from a quiet to an active street, the effect of the proposed project would be localized to this mixed-use corridor and would not extend beyond this transitional area of Prospect Heights. Thus, these localized adverse effects along Dean Street would not be considered significant adverse impacts on the overall neighborhood character of Prospect Heights.After the vote
After the public comments and the vote passed unanimously, Joyce Miller, a new board member (as of June) who had not previously voted on the project, offered a small olive branch to the commenters.
"Some of the comments that we heard this morning have some merit to them although they may not apply direction to the question, which is… the litigation and our focus on the environmental impact statement," she said. "But having lived next to a construction site for a number of years, I'm sympathetic to some of the complaints that are being made and I would like to know and be reassured that some of the complaints regard to construction hours, et cetera, noise you can't do anything about, obviously, pile drivers are pile drivers, that care is taken to ensure that regulations and laws regarding maintenance of site, the hours of construction, safety of the construction site, are all adhered to."
"Yes," came the response from Stout. (Miller told Patch that she lived near Riverside South.)
The parking lot
Take a look below at one potential scenario, in the third document, which shows the impact of a parking lot on the southeast block, 1129, that would last nearly 25 years.
ESDC Atlantic Yards Memo 121310a
ESDC Atlantic Yards Memo121310b
ESDC Atlantic Yards Memo121310c
ESDC Response to Remand Order, 12/16/10