Wednesday, December 29, 2010

The meaningless of time: how the ESDC claims that a buildout of 25 years, rather than ten, would not significantly affect benefits or impacts

Here's the question of the day: Does time have any impact on Atlantic Yards benefits and impacts?

No, says the Empire State Development Corporation (ESDC), thus perplexing anyone who's considered such mundane, time-related issues as compound interest or prison sentencing.

Being "reasonable"

Covering the latest ESDC board meeting, as I wrote 12/16/10, ESDC attorney Robin Stout (at 5:10 of the video), uttered what sounded 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."
So commercially reasonable means that the developer can get loans and make its profit.

OK, so if the ESDC would accommodate a reasonable situation for the developer, would it thus evaluate the reasonable impacts of that situation or the reasonable benefits that could be expected?

Not quite.

The issue of comparable impacts

Crucially, the ESDC acknowledges 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.
(Emphases added)

They might remain localized, but if the significant impacts last twice as long as previously disclosed, how can they be comparable?

What about benefits?

As I wrote in March, it may be that no court evaluates whether the changes in the benefits to the Atlantic Yards project are significant.

Much of Justice Abraham Gerges' decision upholding condemnation regarded technical challenges, but he did address the contention that the public use, benefit, or purposes changed materially from what was described in the 2006 eminent domain Determination & Findings (D&F).

The ESDC countered that the issues were inappropriate for a condemnation proceeding, but, even if the modifications were subject to judicial review, the 2006 Modified General Project Plan (MGPP) and the 2009 MGPP are virtually identical, since they involve the same site, buildings, uses, a new railyard, a new subway entrance, etc.

Gerges summarized the ESDC's argument in response to concerns that a renegotiated agreement with the Metropolitan Transportation Authority (MTA) could mean a 22-year timetable to pay for the railyard:
Petitioner further argues that respondents' claim that the MTA agreement could allow FCRC to delay completion of the Project does nothing to diminish the validity of the D&F regarding the Project's public uses, since the benefits of the Project will be realized as the Project proceeds, i.e., blighted conditions in the area will be eliminated step-by-step, as substandard buildings are taken down and Project-related improvements are constructed in their place. It also notes that the many significant benefits afforded by the Arena, the LIRR yard and subway entrance will be provided at the earliest stages of Project construction and all the Project benefits will come to fruition at the point of Project completion. Whatever the pace may be for the delivery of the many public benefits of the Project, the nature of those benefits remains the same.
(Emphases added)

As noted, Gerges didn't attempt to measure the benefits, since the issue was moot.

But the ESDC's contentions, accepted by Gerges, deserve some pause.

Blighted conditions may not be eliminated as "substandard buildings" are demolished, since vacant lots still constitute blight, as does the railyard.

More importantly, can't the pace of the delivery of public benefits ultimately change their nature? In other words, aren't affordable housing and tax revenues delivered over a decade far different than such benefits delivered over 30 years?


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