Sunday, March 13, 2011

On Tuesday, big hearing in last Atlantic Yards case, regarding legitimacy of the timetable, need for more environmental review, and lawyer's fees

I'll have an analysis of the legal arguments beginning tomorrow, but first, the press releases/public statements.

From BrooklynSpeaks:
On Tuesday, March 15 at 2:30PM, NYS Supreme Court Justice Marcy Friedman will hear arguments on a petition by BrooklynSpeaks sponsors, local elected officials, and neighborhood residents seeking to reverse the Empire State Development Corporation’s (ESDC) approval of the Atlantic Yards 2009 Modified General Project Plan (MGPP). Justice Friedman’s courtroom is located at 60 Centre Street, room 335.

On November 9, 2010, Justice Friedman ruled in favor of the BrooklynSpeaks petitioners, ordering the ESDC to explain its rationale for continuing to rely on its 2006 environmental impact statement (EIS) when it approved changes to Atlantic Yards in 2009 allowing construction to continue for 25 years or more. The 2006 EIS analyzed only the impacts of 10 years of construction.

In December 2010, the ESDC responded to the court with findings acknowledging that Atlantic Yards would not be completed in 10 years. The ESDC nevertheless claimed it believed a 10-year buildout would be possible when it approved the 2009 MGPP, even though a former CEO had stated publicly the project would take “decades,” and the agency was at the time negotiating a development agreement allowing Forest City Ratner 25 years or longer to complete construction. The ESDC’s findings also stated that the communities surrounding Atlantic Yards would suffer no additional impacts by extending the construction period by 15 years.

In January 2011, the BrooklynSpeaks sponsors filed a supplemental petition challenging these findings as not sufficient to show a rational basis for the agency’s refusal to prepare a supplemental environmental impact statement (SEIS) prior to the approval of the 2009 MGPP. The BrooklynSpeaks petitioners have asked that the court reverse the approval and stay further construction at Atlantic Yards until an SEIS is completed.
From Develop Don't Destroy Brooklyn:
On Tuesday, March 15, at 2:30 p.m., New York State Supreme Court Justice Marcy Friedman will hear argument on the motion of Develop Don't Destroy Brooklyn to require the Empire State Development Corporation and Forest City Ratner, and their lawyers, to pay DDDB for the costs of the additional legal work which DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year. Justice Friedman will also hear argument on the supplemental petition filed jointly by DDDB and BrooklynSpeaks challenging the failure of the ESDC and Ratner to consider the environmental impacts of the much more likely 25 year build-out of the Atlantic Yards Project.

We strongly encourage you, as a DDDB supporter, to attend the hearing on Tuesday. We believe it is particularly egregious that a grassroots organization such as ours has been forced to suffer financial consequences because of the misconduct of a state agency in failing to disclose terms of its agreement with Ratner that allows the 25 year build-out. And we believe it is simply wrong for the court to permit Ratner to benefit from this misconduct by allowing him to continue the project despite the fact that the impacts of the probable scenario have been completely ignored. We are again asking for the court to send this project back for the analysis that is required by law.

Here is the background for the arguments:

DDDB sued in 2009 to challenge ESDC's approval of the Modified General Project Plan for the Atlantic Yards Project, on the grounds that the Plan was premised upon a ten-year timeline for construction of the entire project even though Forest City was contractually permitted by the MTA to take 30 years to complete the purchase of the rights to the Vanderbilt Yard and construction of most of the project had been postponed indefinitely. ESDC and FCR responded that their development contract required FCR to build the project within ten years, but refused to disclose the contract to the court.

In March 2010, Justice Friedman ruled against DDDB, finding that ESDC's continuing use of the ten-year construction timeframe was sufficiently supported by the evidence in the record, "albeit, in this court's opinion, only minimally". Because ESDC had refused to make the development contract part of the record before the court, DDDB had to wait until the court issued its decision before it could submit the development contract to the court in a motion to reargue the case.

Once DDDB was able to put the actual ESDC-FCR development contract before the court, Justice Friedman determined that the contract did not impose any meaningful obligation on FCR to complete the project within ten years, and reversed her previous decision. In November 2010, the court ordered ESDC to reconsider its reliance on a ten-year construction timeframe for the project, and criticized ESDC for failing its legal obligation to disclose evidence to the court that contradicted the record. The ESDC, not surprisingly, quickly issued its "reconsideration", affirming its approval of the project.

ESDC’s findings were inherently inconsistent. It first found that relying upon the ten-year timeline was completely reasonable despite the 25-year time frame in the development contract. It then recognized that the ten-year deadline would not be reached and then it reviewed a new technical memorandum that purported to address the changes in potential impacts of a 25-year time frame and unsurprisingly found the impacts would not be greater or different than what was previously considered.

In December 2010, DDDB filed its motion to the court to award it the additional legal expenses incurred in making its motion to reargue the case, on the ground that the motion would not have been necessary if ESDC and FCR had disclosed their development agreement to the court as they were legally obligated to do.

The legal basis of DDDB's motion is a Court Rule which permits the court to assess legal expenses against a party or attorney whose litigation conduct "is completely without merit in law" or "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another", or who "asserts material factual statements that are false."

In January, 2011, with the permission of the court, BrooklynSpeaks and DDDB filed an amended petition challenging the failure of the ESDC to consider the negative impacts of what we believe to be the more likely 25 year plus timeline of the buildout of the entire proposed Atlantic Yards Project. DDDB also challenges ESDC’s failure to hold a public hearing on the 2010 Technical Memorandum that supported its decision where ESDC held a hearing on the 2009 Modified GPP and Technical Memorandum.

Argument on both DDDB's motion for sanctions and the amended petition are scheduled for Tuesday:

Details:
Tuesday, March 15th, 2:30 PM
New York County Supreme Court
60 Centre Street
Room 335
Manhattan

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