Wednesday, December 22, 2010

No stay on construction, as petitioners in timetable case agree to withdraw motion in light of ESDC's report; will file new motion next month

There will be no stay on Atlantic Yards construction for now and, given the momentum of time, the bar grows higher.

Two community coalitions sought a stay on some if not all Atlantic Yards construction because of the Empire State Development Corporation's (ESDC) failure to analyze the impact of a 25-year construction schedule.

But last week, the ESDC issued findings that no Supplemental Environmental Impact Statement (SEIS) is necessary and, while petitioners Develop Don't Destroy Brooklyn and BrooklynSpeaks consider that analysis vastly inadequate, it was too soon to argue that in court.

So, in a very brief hearing today before state Supreme Court Justice Marcy Friedman in New York County Supreme Court, the parties--the petitioners as well as the defendants, the ESDC and Forest City Ratner--agreed that the request for a stay would be withdrawn.

"They acted last week," BrooklynSpeaks attorney Al Butzel said of the ESDC decision, "and there's a presumption [on the part of the court] that they acted legitimately, which changed the balance." BrooklynSpeaks and DDDB disagree and will argue that next month.

Next phases

As part of the stipulation, the petitioners have until January 18 to file a supplementary petition arguing that the ESDC's analysis is inadequate--and to bring another request for an injunction. The could lead to another oral argument in the case in February.

Meanwhile, the defendants--who while responding to Friedman's request also asked leave to appeal her November 9 ruling--have agreed to hold their appeal until either Friedman's resolution of the next phase or six months from now, which is 6/22/11.

In her ruling, while severely criticizing the ESDC, she remanded the proceedings "to ESDC for 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."

"I think that the stipulation puts this case in a procedural posture where the merits of this case can be resolved," Friedman said from the bench.

She spoke after a five-minute conference behind closed doors, a conference that followed several minutes of informal public discussion among the lawyers.

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