Tuesday, December 18, 2012

Flashback: "providing Brooklyn" (which has no ownership) with the "important civic amenity" of an arena

Let's take another look at the 2006 SEQRA [State Environmental Quality Review Act] Findings Statement regarding Atlantic Yards issued by the Empire State Development Corporation:
The alternative of not building an arena would fail to achieve a principal benefit of the Project – providing Brooklyn, a “city” in its own right of nearly 2.5 million people but without an arena or major professional sports team – with a facility and team in keeping with the proud sports legacy of the Borough. As identified in the FEIS, the arena will result in significant traffic impacts. These impacts have been mitigated to the maximum extent practicable with a comprehensive package of physical improvements to the traffic network, operational improvements and an innovative set of demand management strategies... Several of the incremental traffic delays that will be experienced are substantial, and major arena events on weekend afternoons will result in a greater number of unmitigated, significantly impacted intersections due to relaxed on-street parking restrictions on weekends.  Nevertheless, an arena is an important civic amenity and an arena event such as a Nets basketball game will bring not only additional traffic congestion, but also additional vitality to enrich the Brooklyn experience. On balance, ESDC finds that the arena’s significant traffic impacts (as well as the other adverse impacts, such as the reduced availability of on-street parking during major arena events) are far outweighed by the social, economic and civic benefits that an arena would offer. Accordingly, ESDC, after closely examining the possibility of pursuing development at the project site without an arena, has come to the conclusion that this facility should remain as an essential component of the Project.
(Emphases added)

There's clearly an argument that people in and around Brooklyn might wish to attend arena events, and that the borough--if not the metropolitan area--is underserved by large venues.

And the Barclays Center has certainly added "vitality," though diminished it in some other ways, if you consider retail changes in the area. And the "civic amenity" has its very local trade-offs.

"Providing" Brooklyn

But look more broadly at the language: a benefit of the project would be "providing Brooklyn... a facility and team in keeping with the proud sports legacy of the Borough."

That mixes public and private. The borough houses the facility and team. But it does not own them nor reap revenues from them. (Technically, the arena is publicly owned, but that's a fig leaf to issue tax-exempt bonds. The profits, and naming rights, flow to the private operators.)

So the use of the term "providing," a term used in a misleading 2006 poll in Crain's New York Business, fudges the issue.

What's "civic"?

As for "an important civic amenity," consider how the definition of civic suggests citizenship and community affairs. In this case, the arena is open to the paying public, but operated by a private entity, not a public one.

Under state law, a civic project is defined as “A project or that portion of a multi-purpose project designed and intended for the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes.”

At a May 2005 hearing in the case challenging the project's environmental review, Develop Don't Destroy Brooklyn attorney Jeff Baker observed, “The legislature did not intend a privately owned sports facility” to be a civic project.

Well, it's complicated.

ESDC attorney Philip Karmel pointed out that the agency had determined that several aspects of Atlantic Yards constituted a civic project: not just the arena, but the new railyard, eight acres of open space, the new “subway station” (actually, a new entrance) to be built, and the “atrium,” or Urban Room serving as civic space and arena lobby. (That's on hold, given the lack of the promised office tower, so instead there's a plaza.)

The only one of those challenged at that hearing was the arena.

Civic project = recreational?

But Karmel got into trouble when pressed on exactly how a professional sports arena fits the law’s definition of a facility for recreational purposes.

“It generally means you have a community-based basketball team” or other sports team, Supreme Court Justice Joan Madden suggested.

“It would be recreational activity” to watch a basketball game, Karmel responded.

“I thought that was profit-making,” responded the judge. (In other words, what Borough President Marty Markowitz and others call "our team" is actually a "sports entertainment corporation." It's not uncommon for fans to claim "us" when all they have is a geographic association.)

Karmel returned to the theme. “We believe that going to a ballgame is a recreational activity, and having a ball team is a civic event… It brings pride to a community.” (Perhaps, but “civic event” doesn’t necessarily segue to the statutory definition “civic project.”)

In her January 2008 decision, Madden agreed. She declared that going to a game was a recreational activity, and thus the arena qualified as a civic project.

The language is expansive. After all, if recreation is a civic purpose, by that logic, I suggested, so too would be watching Coney Island's (now-defunct) Shoot the Freak.

But it was necessary to get Atlantic Yards passed.

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