Tuesday, June 26, 2012

Court of Appeals denies effort by ESDC, Forest City to appeal timetable case; state must analyze impact of 25-year buildout; will leave cloud over project as arena opening approaches; provokes new call for oversight

Updated with comments from BrooklynSpeaks & DDDB.

Yes, the Empire State Development Corporation will have to conduct a court-ordered analysis of the potential 25-year impacts of Atlantic Yards construction after all, leaving a cloud of concern over the project--and a rebuke to the state agency--as the Barclays Center proceeds to a September 28 opening.

And the decision provoked further call for reforming oversight of the project.

The project was long expected said to take ten years, but document signed in late 2009 gave developer Forest City Ratner 25 years.

The state agency, as well as Forest City, had sought to appeal a unanimous Appellate Division decision upholding a lower court's requirement of Supplemental Environmental Impact Statement (SEIS). The state Court of Appeals, in a decision issued without elaboration, denied permission for such an appeal.

(Had the appellate court been split, an appeal would have been automatic. Here's the Appellate Division decision, which upheld a ruling by state Supreme Court Justice Marcy Friedman.)

The decision to seek an appeal rather than pursue the SEIS and evaluate the impacts of an extended buildout had rankled community members who'd gone to court, in cases filed by two coalitions, led by Develop Don't Destroy Brooklyn and BrooklynSpeaks.

The lower court ruling required an SEIS to evaluate Phase 2 of the project, the towers planned east of Sixth Avenue and the arena block, thus sparing the arena. However, many questions remain regarding the parking lot planned to serve the arena, located on the southeast block of the site, destined ultimately for towers.

As noted 5/3/12 by Peter Krashes on Atlantic Yards Watch:
Plans for parking continue to shift, reducing the parking for arena patrons by half with no formal study released to the public of the impact to traffic and on-street parking in local neighborhoods. Nor has it assessed the long term environmental impacts on the community of a lot that does not meet NYC's own guidelines for the landscaping of surface parking lots.
Impact of case: courts can be check on agency

As I wrote June 5, at issue is whether a change in timing of a project whose fundamental elements seem unchanged is a fundamental change.
And, depending on which side you consult, it's either a dangerous intervention by the judiciary into agency discretion or the last check on an out-of-control agency that failed to tell the public that it faced 25 years of construction, extended surface parking lots, and lingering vacant lots.

The Court of Appeals' unwillingness to intervene suggests an interpretation in the latter direction is more credible.

The challenge by two community coalitions was originally dismissed by a state Supreme Court judge, then reopened and ultimately reversed. Had the Court of Appeals--which conveniently ignored certain arguments in its November 2009 decision upholding eminent domain for Atlantic Yards--accepted the case, that would have meant it was leaning toward reversal.

What-ifs

Had the state conducted an SEIS when it changed the project timing in 2009, that likely would have stretched the timetable to approve the new Modified General Project Plan to 2010, thus making Forest City Ratner ineligible for tax-exempt bonds that will save it more than $100 million.

Had state Supreme Court Justice Marcy Friedman in early 2010 had accepted into the record the belatedly released Development Agreement, which clearly indicated a potential 25-year timetable with no penalties to ensure a ten-year buildout, her ruling requiring an SEIS might have have thrown a wrench into the drawdown of arena bonds.

BrooklynSpeaks reaction: need for reform

BrooklynSpeaks said in a press release
“In the year since Justice Friedman ordered an SEIS, construction impacts on the neighborhoods surrounding Atlantic Yards have been well-documented,” said Danae Oratowski, Chair of the Prospect Heights Neighborhood Development Council. “But what is most shocking is ESDC’s and FCRC’s failure to comply with their own stated protocols for air quality, noise, construction traffic and worker parking. We urgently need not just an SEIS, but also establishment of proper oversight to ensure that agreed-upon mitigations for construction impacts are monitored and enforced.”
Michael Cairl, President of the Park Slope Civic Council, said, “Our elected officials must demand accountability from the SEIS process. While the arena may be nearing completion, the impact of the project on local individuals, families, and businesses is just beginning. The SEIS must develop in good faith plans and alternatives to complete the Atlantic Yards project on its original schedule.”
BrooklynSpeaks sponsors have argued that ESDC fast-tracked its approval of the 2009 schedule concessions demanded by Forest City in order to allow FCRC to meet a deadline necessary for its arena bonds to qualify as tax-exempt. “ESDC’s actions saved the developer hundreds of millions in interest payments,” said Michelle de la Uz, Executive Director of the Fifth Avenue Committee, “but at the cost of thousands of units of affordable housing being delayed for decades. Now that the appeals have been exhausted, the Cuomo administration has a responsibility to put the public’s interest first, and ensure that housing and jobs are delivered as soon as possible.”
“Today’s action by the Court of Appeals demonstrates that neither powerful developers nor State agencies are above the law,” said Council Member Letitia James, whose district includes the Atlantic Yards project. “However, the courts have never been the place to determine the future of our communities. I call on Mayor Bloomberg and Governor Cuomo to recognize the urgent need to reform the Atlantic Yards project, its plan, and its oversight by State and City governments. It’s time to come together with residents, business owners, and their elected representatives to make this project work for Brooklyn and New York.”
DDDB reaction 

Develop Don't Destroy Brooklyn said:
The ruling today and the previous ones show, thankfully, that NY courts can actually be a check against public agencies running amok on behalf of private interests.
The ruling also means that the bulk of the Atlantic Yards project will undergo an SEIS, which will include a public hearing.
The time is now for ESDC and Governor Cuomo to intervene to insure that Forest City Ratner doesn't hold a huge chunk of Prospect Heights hostage for the next generation.

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