Saturday, June 30, 2012

A timely t-shirt: the name Barclays, now attached to a subway hub (and the Brooklyn arena), comes with a $450 million taint

Maybe Deborah Goldstein was onto something in resisting the renaming of Brooklyn's most diverse transit hub as Atlantic Av-Barclays Center.

When the t-shirt maker (aka Miss Wit) came up with "I'm still calling it Atlantic Av-Pacific St," she was merely spreading the message that "everyone is not okay with this, still,”

Now, of course, Barclays is a wee bit tainted. Wrote Michael D.D. White in his Noticing New York blog:
Think about the appropriateness of naming New York City subway stops “Barclays Center” (while receiving virtually nothing of value to do so). “Barclays,” nothing but a name being advertised, is simply one more name in a sea of distracting ads. The “Barclays” bank didn’t build the arena that advertises its name; it’s being built by Bruce Ratner with the financial assistance of a Russian oligarch, Mikhail Prokhorov. The bank contributed nothing to the city or the borough of Brooklyn in order to build it. It has nothing to do with the arena. “Barclays” is not the name of the name of the basketball team planning to play there. It is not even necessarily the name of an honorable bank. Just of now the bank has been fined £290m ($450m) for manipulating LIBOR rates to benefit its traders and cook its books. Chief executive Bob Diamond is under pressure from British politicians to quit over the rate rigging scandal.
To be clear, the Barclays payment of $10 million-plus a year for naming rights--the latter a gift to Forest City Ratner from New York State--will help pay off the tax-exempt bonds used to finance construction.

Piling on Barclays

Reuters reported:
It's for the board to decide whether Bob Diamond - who has amazing leadership qualities and huge personal following in the organisation - whether he can be the person to turn the page on this or whether he is part of the problem," said Martin Taylor, who was Barclays chief executive from 1994 to 1998.
"If you go in for a policy of systematic dishonesty you have some rebuilding to do. And I'm sure the board will be very conscious of that," Taylor told BBC Radio on Thursday.
..."Bob runs an extraordinarily competitive and aggressive ship, and that is one reason why Barclays Capital has been so successful in the first decade of the century," said former CEO Taylor, who was sat on a commission that proposed far-reaching reforms for all UK banks this year.
"When people are pushed to go to the limit - you know what traders are like - they sometimes go beyond it. They don't need to have an instruction from headquarters to go beyond it, they think it is what the bank might expect perhaps."
Wrote Justin Cartwright in The Independent:
Bob Diamond has said that the practices in his bank "fell well short of the standards to which Barclays aspires in the conduct of its business. When we identified those issues, we took prompt action to fix them and co-operated extensively and proactively with the authorities".
This sounds to me like a roundabout way of saying when they were caught out they decided to come clean. The bank has, apparently, given plenty of information to the FSA and the SEC, the regulators in the US, presumably in hopes of leniency. I don't know if the £290m fine is considered lenient, but these offences took place between 2005 and 2009 when Bob Diamond was head of Barclays Capital, which was supposed to oversee these practices.
Diamond and three top executives are giving up their bonuses. It turns out, however, that Diamond may be giving up only one of his bonuses. Despite shareholder protests he took home £17m in 2011 alone. In that period the bank's share price and the return on equity had fallen dramatically. Investors were particularly angry about the £5.75m Barclays gave Diamond on the grounds that his move to Britain entailed a tax disadvantage.
The greed, the hubris, the sheer brass neck of some of these bankers are almost beyond belief. They seem to see the banks they work for as existing primarily to make them money. The bonus is a sort of manna from heaven that falls on them after Christmas, often without regard to their achievements. What they have forgotten in the rush to the trough is that banks and banking are there to serve their customers.
When Bob Diamond says, "I am sorry some people acted in a manner not consistent with our culture and values", we are free to ask what exactly this culture and these values might be: the single most important aspect of the "culture" of Barclays (and many other banks) is greed, and the prime beneficiaries are the senior executives.
Barclays' culture and values

At the March 2010 arena groundbreaking, as I wrote, Diamond was relatively brief, leading off by thanking several people, "including my good friend Bruce."

"This is a landmark partnership in so many ways," he said. "It's about our commitment to the regeneration of Brooklyn in some small way. But it's also about facilitating absolutely top-flight professional sporting achievement."

Not only the Nets but "many great events" will be held at the arena. "All of them will emphasize commitment," he said. "All of them will emphasize dedication to excellence. And all of them will emphasize teamwork. And that fits very very strongly with the ethos and the values of Barclays."

"It's important that we give back," Diamond said.

"The governor talked about the incredible generation of jobs: thousands and thousands of jobs, during construction, but more importantly, permanent jobs for many, many years going forward," he said. "The Barclays Center will not only help secure those jobs, but it's also about affordable housing, about new schools, and so many opportunities for the youth in these communities."

The Barclays Center is not, of course, about many permanent jobs (though lots of part-time ones), nor is about schools or affordable housing.

Diamond cited a "20-year commitment to Brooklyn, the Brooklyn Nets, and the Barclays Center." He might have better called it a 20-year advertising arrangement that will help pay for arena construction.

Friday, June 29, 2012

Getting some answers from ESD on transportation plan: is cutting parking a disincentive? will parking change be studied? where will savings on "NetroCards" go?

The draft Transportation Demand Management (TDM) plan was presented to the local community and elected officials on 5/22/12 (my coverage), as noted by Empire State Development, and the public has until July 3, 2012 to submit comments and questions to

ESD has prepared a document (also below) that answers several of the questions already raised. I highlight a few.

Parking disincentive

The key question is below, though it could be formulated in multiple ways. How can the reduction by half in on-site parking is an effective disincentive, according to the question, when there's sufficient off-site parking elsewhere nearby?

The answer is that "[p]roviding fewer parking spaces in an area with robust transit service is clearly a disincentive to driving." But the presence of free, on-street parking will be an incentive to driving, at least for some (and initially). That's not mentioned here.

Parking changes

Why was there no official analysis of the changes in parking? ESD says it is "in the process of considering" Forest City Ratner's proposal to reduce on-site parking, and "will determine whether a supplemental environmental review is necessary."

Well, it's hardly in doubt whether ESD will approve the proposal. As for a supplemental environmental review, that may have been accelerated by the court decision this week upholding a required Supplementary Environmental Impact Statement for Phase 2 of the project, which (arguably) subsumes plans for the parking block.

Saving money on no "NetroCards"

So, if Forest City Ratner will save potentially $2 to $3 million a year by not providing free MetroCards (aka "NetroCards"), where will the money go? The answer suggests it will go to mass transit marketing, though no dollar amount was announced.

Nets games, or other events?

Will TDM measures be used at other events? Why was the focus on Nets games? The answer is that Nets games are "the reasonable worst case scenario," with likely repeat high attendance. That's surely plausible, but if Jay-Z plays five concerts to open the arena, that'll be high attendance, too.
62012 May 2012 TDM Presentation Questions

From the Arena Operations presentation: views of the Haier Store, loading dock, and parking lot

The Empire State Development has posted the Barclays Center Arena Operations presentation unveiled at the June 26 public meeting concern security, sanitation, and parking, and the full document is also posted below.

Below, I highlight several issues, including the Haier Store, the loading dock, and the parking configuration.

The Haier Store & plaza

Arena opening condition, under extended build-out, 12/10
The Haier Experience Store, "which will be part of the Barclays Center and accessible to the public from outside of the arena during event and non-event days" (according to January 2009 press release), is, for one of the first times, demarcated on a map.

There's a plaza in front of it at the intersection of Sixth Avenue and the extension of Pacific Street.

By contrast, a rendering issued via ESDC in a 12/16/10 memo (right), did not indicate that the narrow blue rectangle just east of the arena indicated the Haier Store. However, a retail store in that spot was indicated in a September 2009 presentation (first video) by arena architects, though they didn't post the graphics.

Was there ever an analysis of the Haier Store's impact on neighborhood foot traffic? I don't think so.

Arena schematic, 6/26/12 Arena Operations Presentation

The loading dock

Also note in the illustration above the location of the loading dock across the street from a residential staip. It was previously not described in any official diagram (to my knowledge), though it seems to have been indicated in a document (below right) regarding the redesigned arena that I got from the Department of City Planning.

2009 arena rendering
In the illustration up top, neither the loading dock nor the Dean Street Plaza are demarcated, perhaps subsumed into the under-construction Building 2.

Note that the Building 2 site in the illustration above looks distinctly smaller than the Building 2 site in the 12/10 rendering.

The loading dock, acknowledged arena operators and state officials, would be unique, raising potential complications, given the inability to stage trucks nearby.

From the November 2006 Final Environmental Impact Statement, Chapter 1, Project Description:
The entrance to the enclosed, below-grade loading areas for the arena and Building 1 would be located on Dean Street. All security screening and loading dock activities would take place internally within this enclosed, below-grade area. This area would accommodate eight loading berths and have adequate truck maneuvering space to allow for head-in and head-out operations. There would be sufficient internal reservoir space that there would be no anticipated on-street queuing of delivery vehicles. All deliveries would be pre-scheduled.
I suspect that "no anticipated on-street queuing of delivery vehicles" also depends on a clear path on Dean Street. What if there are stalled vehicles?

The June 2009 Technical Memorandum indicates a redesign of the loading dock, but no specifics:
As described in the FEIS, the project was anticipated to require the demolition and rebuilding of the 6th Avenue Bridge between Atlantic Avenue and Pacific Street, to allow the arena’s loading dock to extend below the bridge as well as to accommodate the LIRR’s drill track. The arena’s loading dock would now be redesigned to stay within the arena block footprint, and the LIRR drill track would be relocated partially off the arena block. Accordingly, the 6th Avenue Bridge would not need to be demolished.
From the September 2009 architects' presentation

They briefly mentioned the loading dock.

The parking lot

Below is a clearer version of a document shown in a photo earlier this week. Note that there are pedestrian gates on both Dean and Pacific streets, entrances for cars on Dean and Pacific, and exits on both those streets, as well as Vanderbilt Avenue.

The latter, residents suggested, might lead to backups at the traffic light.

Also note that Pacific Street is supposed to be demapped for open space. Will there be an underground lane that exits at either end of Pacific Street? Or would traffic be shunted to other exits.

The Carlton Avenue Bridge, north of Pacific Street, is supposed to be open before the arena opens. If not, there would be significant pressure on other streets in the area.

A potential parking lot configuration

This is not necessarily a final blueprint, but note the impact of not demolishing the building near the northwest corner of the site and maintaining an area at the northeast corner for construction staging.


Are there 1,079 (FT?) workers at the Atlantic Yards site? If so, that's a huge jump (and sign of crunch time?)

Patch reported yesterday, "Right now on the Atlantic Yards construction site, according to FCRC, they have 1,079 union employees in total...."

We don't know what that means in terms of FTE jobs. Generally, the number has been overstated by about 25%.

Still, it's a significant increase in workers, given that, in January 2012, Forest City construction chief Bob Sanna said about 666 workers was near peak. "I think we are approaching the peak, between all three parts of the project," he said, noting that perhaps 25 more workers would be added.

Does the increase relate to the 24/7 work now going at the site? That seems likely, and an indication of crunch time to get the project finished. Still, arena neighbors tell me they haven't seen signs of a major influx of workers.

Forest City Ratner spokesman Joe DePlasco gave a brief response to my query: "That publication asked for the most recent number of workers on site and we provided. They change weekly and based on the work that is being done."

That's understandable. But the rest of the issue is murky. Perhaps the introduction of the long-delayed Independent Compliance Monitor would shed some light.

Thursday, June 28, 2012

Lots of people looking for part-time arena jobs, but they were never the justification for the subsidies and tax breaks

There are 1901 projected-part time jobs at the Barclays Center, and "nearly 20,000" (according to NY 1) or 26,000 (as per New York Times) applicants, a sign, according to the Times, that Amid Gloom, Job Hopes Rest Heavily on New Arena.

Well, that's news, especially given the desperate economic times, with half of the city's black residents unemployed. In Residents Line Up For Chance At Barclays Center Jobs, NY 1 quoted a resident calling it "a good opportunity."

It's surely better than no job, or even certain low-wage jobs, given that it's expected to be unionized. And Forest City Ratner, as the Times pointed out, has fulfilled its pledge by recruiting in Brooklyn, at churches and housing projects.

But such part-time jobs were never the justification for Atlantic Yards, and the attendant subsidies and tax breaks. No wonder elected officials like Council Member Letitia James and state Senator Velmanette Montgomery scoffed at them, during a rally earlier this month. The jobs should be those "that sustain families, not sell hot dogs," said James.

Looking at the numbers

The Times acknowledged that the jobs were "generally part-time and low-paying (though union-scale)," though it didn't offer numbers.

As I wrote in April, the 1901 part-time employees would work 23.9 hours a week over 52 weeks.

Given that existing legislation defines a living wage in New York City as a minimum of $10 per hour with benefits, or $11.50 per hour without benefits, the salary adds up to $239 to $275 a week.

That's a decent salary only if you have a part-time additional job, or are sharing an apartment with a lot of other people.

(For the record, both news outlets reported that there were 2,000 jobs, conflating part-time and full-time position. Rest assured, the people seeking jobs as ushers and food servers were not eligible for the full-time jobs, which require higher education and other qualifications. My bet is the news outlets simply reported the number provided by Forest City Ratner)

Making a dent

Forest City is not exactly acting out of charity. At an average of $11/hour, 23.9 hours/week over 52 weeks adds up to an aggregate of about $26 million a year, paid, surely, by arena revenues.

News of significant public subsidies going to the developer has gotten much less dramatic coverage.

Consider, by contrast, the news the Times reported almost parenthetically in a 4/5/07 article headlined, Clearing of Atlantic Yards’ Site Proceeds as Legal Thicket Grows Denser.
In the budget it unveiled in January, for example, the Bloomberg administration quietly doubled its direct subsidy to the project area, to $205 million from $100 million. The difference is bigger than the entire annual budget of the city Buildings Department.
Couldn't such money be used to help job seekers find work or, heck, simply serve as wage supports? (City officials now say the total's $171.5 million, but that could be disputed.)

And what about the $200 million-plus in arena naming rights? The state simply gave that away. Again, that hasn't exactly been the focus of such press coverage.

Consistently inconsistent: Marty Markowitz wants the Barclays Center (liquor license, metal detectors) to be treated like other sports facilities--except regarding its fundamental placement in a neighborhood

Brooklyn Borough President Marty Markowitz, in recent comments on the proposed liquor license for the Barclays Center and the plan to use metal detectors, has had a seemingly consistent message: treat the Brooklyn arena the same as any other sports facility.

The inconsistency? From early on, the Brooklyn arena was not treated the same as any other sports facility.

The state agreed to override city zoning that bars sports facilities from being within 200 feet of residential areas, as well as override many other zoning rules.

So the tight fit of the arena into Prospect Heights has to be recognized, as even Empire State Development CEO Kenneth Adams--whose agency overrides the zoning--acknowledged this week, pointing to the dicey operation of the arena loading dock, with no ramp or holding area for trucks.

Markowitz on the liquor license

At right is testimony Markowitz submitted to a June 12 State Liquor Authority hearing.

All other arenas in the area have been granted liquor licenses, he wrote:
In keeping with NBA regulations, Barclays Center will stop selling alcohol at all concession stands before the start of the fourth quarter during basketball games. So to deny the Barclays Center a license out of spit, or to hyperventilate over the idea that Brooklynites are not responsible enough to know their limits and that our streets will be inundated by misbehaving visitors is disrespectful...
Of course, this was a bit of a dodge: the arena will not, after all, stop selling alcohol to 1,800 VIP patrons, and reserves the right to keep selling alcohol for an hour after the game. (A Markowitz rep said they weren't concerned.)

So the issue was not about whether the Barclays Center should get a liquor license. It's whether there are limits on the liquor license that are appropriate to the setting.

Nor is it "hyperventilating" or "disrespectful" to recognize that some fraction of a large crowd attending a sporting event or concert might get rowdy.

Advocates from BrooklynSpeaks, drawing on the 9:30 pm cut-off, for only 30 night games, at Wrigley Field in Chicago, have gotten more than 1,300 signatures asking for a 10 pm cut-off in Brooklyn.

On the one hand, that's a far cry from the 2 pm last-call that would occur, according to arena operators, at very few events. On the other, it's not that distant from what seems to be the likely cut-off at most evening events, as BrooklynSpeaks' Gib Veconi noted at the second SLA hearing.

The question, again, is: will the SLA evaluate whether there are limits on the liquor license that are appropriate to the setting? Markowitz didn't recognize that.

Markowitz on the metal detectors

At the meeting June 26, Barclays Center operators described security procedures, including the use of metal detectors. They offered no explanation for the need for metal detectors, nor did any community members, nor agency officials, raise any questions.

Notably, Markowitz had a couple of representatives at the meeting. None said anything about security.

Yet Markowitz was willing to further press coverage, in denouncing the metal detectors.

Credit Rich Calder of the New York Post for highlighting the metal detectors and, more dubiously, finding a potential fan--as did WABC--who said that the metal detector would keep him from visiting the arena.

Are potential arena-goers really going to boycott the venue because of metal detectors?

People go through metal detectors frequently, such as at government buildings. (The Barclays Center, technically, is a government building, the fig leaf of state ownership necessary for tax-exempt arena bonds.)

The issue, I suspect, is whether the metal detectors used at the arena will be relatively unobtrusive, as officials suggested, to allow through shoes and belts and jewelry, or whether it will cause delays and dismay. If the latter, it'll be a disaster.

"I am vehemently opposed to metal detectors as standard operating procedure, and I expect patrons to be subject to security policies consistent with similar venues in our region," Markowitz said in a statement to WABC.

But he never objected to an arena being placed across the street from a residential district, nor a parking lot two blocks away, with event attendees sent down residential streets on their way to the venue.

Wednesday, June 27, 2012

At (belated) meeting on arena operations, some specifics on parking, questions about loading dock and traffic agents, and a flat statement that the public will pay for extra police

A long-awaited meeting last night on Barclays Center operational issues--parking, security, sanitation--was deemed useful but frustrating by community members who’ve been watching developer Forest City Ratner plow ahead with arena-related construction, even without official approvals.

“This is a start, six months late,” observed Peter Krashes of the Dean Street Block Association, noting the tight timetable before the arena opens Sept. 28. He said he told Empire State Development Corporation CEO Kenneth Adams, a convenor of the Borough Hall meeting, that he almost didn’t attend because he was so frustrated by Forest City’s decision, for example, to proceed on the planned surface parking lot without a work permit.

The Barclays Center operational team, which did most of the talking, delivered a good amount of boilerplate, as well as occasional specifics, such as the configuration of parking lot and planned entrances and exits. Krashes pointed out, however, that a lot of questions remain unanswered, such as the location of Traffic Enforcement Agents (TEAs) to steer traffic so it doesn’t overly impact the residential neighborhood, or plans for emergency and fire service in the neighborhood. (Neither was the location of pedestrian managers noted.)

Carlo Scissura of the Borough President's Office
speaks, with ESD CEO Kenneth Adams at right
Community consultation will continue, but mainly after the arena opens.

Adams led off by saying that ESD, the Borough President’s Office, and Forest City will convene an Atlantic Yards quality-of-life committee once the arena opens. It will involve state and city agencies, and unlike the bimonthly Atlantic Yards District Service Cabinet, which meets during work hours, will “meet regularly, in the evenings.” Arana Hankin, Director, Atlantic Yards Project for ESD, is working on it.

Forest City’s Ashley Cotton added that a community affairs officer would be hired for the arena.

Metal detectors coming

The headline, to the New York Post, is that the Barclays Center would use metal detectors (as well as wands). The paper, noting that metal detectors are deployed by few sports facilities nationally and none in New York, called it a “stunning diss to the Borough of Kings” and noted that Borough President Marty Markowitz was in “vehement” opposition.

While arena security head Bob Sena noted that the use of metal detectors would not make the procedure as thorough as at the airport, he did not explain the reason arena operators went beyond the local standard, nor did any of the community members in attendance--who had other priorities--raise questions about the issue.

Update: "This is new technology that is more efficient, more effective, and less intrusive than a wand," Barclays Center spokesman Barry Baum told DNAInfo. "We take security very seriously and these detectors will allow us to most effectively screen arena visitors."

(Also see my coverage of plans for a Supplementary Environmental Impact Statement and a potential governance entity, and a live blog from Patch. The slide presentation should be posted shortly on the ESD’s Atlantic Yards web site.

Knotty questions: loading dock

Even Adams, who promised to work cooperatively with the arena, acknowledged that the arena would be a very tight fit, notably the loading dock, at the west end of residential Dean Street as it encounters Flatbush Avenue.

To operate the loading dock off resident relies on a turntable and two truck elevator rather than a ramp and adjacent parking lot (as with most such facilities), arena operators will stage trucks at the Brooklyn Navy Yard and schedule deliveries, while requiring them to use truck routes--Flushing and Flatbush avenues, most likely--that may have their own snags guarantee on-time deliveries.

Steve Rosebrook
"We know Barclays Center is a very unique facility," observed Steve Rosebrook, the arena VP responsible for "back of the house" operations. "But in my world, [the loading dock is] the most unique aspect."

Acknowledging that things don't always go according to plans, Rosebrook said, "we'll have to make adjustments on the fly."

“I'm struck by the uniqueness of that, and the challenge to that operation,” Adams said, “and wish you the best of luck in making it all run smoothly, especially when you’re dealing with"--he referenced an arena act he'd brought up jocularly, by way of example--"Justin Bieber and his producers."

Later, Krashes said that the track record with construction deliveries was dismaying; though there’s a plan in place, trucks often go off-route, going through residential streets.

Arena GM John Sparks, who stressed that arena operators had tried to learn best practices from facilities around the country, deflected a question about what operational issues regarding arenas in residential neighborhoods worry him.
All this keeps me up at night," he said, referring to the panoply of issues raised at the meeting.

Who's paying for extra cops?

Community Board 2 Chairman John Dew, noting announced plans to bolster security both with off-duty law enforcement officers (aka “paid duty”) as well as an increased police presence, asked who’d pay for the latter.

Forest City security chief Steve Bonano, a former New York Police Department official, noted that, as with any large-scale event, such as the West Indian Day Parade, police officers will be moved. “The city is very good at handling big crowds,” he said.

“I think we all know that, but this takes from resources,” Dew pressed on, in his low-key manner. “In this particular instance, is there an opportunity to bill back to Forest City Ratner?”
Ashley Cotton (r.) and Jane Marshall of Forest City

“The answer is no,” replied FCR’s Cotton, taking the question, though there were city police and special projects officials in the room. Just as with new housing being built on Flatbush Avenue, said Cotton, a former city official, “the city has to adjust... The arena is not alone in adding new work to the city.”

For the record, Andrew Zimbalist, the sports economist hired by Forest City Ratner in 2004 to declare Atlantic Yards a fiscal boon to the city and state, deferred to his client, declaring:
Based on conversations with former budget officials, FCRC concludes that the increment in fire and police budgets would be negligible.
The New York City Independent Budget Office, surprisingly, leaned toward Zimbalist regarding fire protection, saying that the additional costs "would be relatively low." (The agency, however, didn’t use the term "negligible.")

However, the IBO disagreed with Zimbalist on costs for police, asserting that "costs to the city for policing the new Nets arena could be significant."

Nor was it made clear at the meeting who will be paying for increased sanitation service on Dean Street and Pacific Street, the blocks between the arena and the arena parking lot.

John Sparks
Arana capacity, planning

Sparks said there would be about 220 events a year, with varying capacities. For example, he said, for Brooklyn Nets games, there would 18,200 sellable seats, including suite and premium tickets.

In the configuration for hockey, there would be 14,500 seats, of which about 1500 would be obscured, the totals a consequence of an arena built specifically for basketball.

For concerts, there would be from 2000 in a theater-style setting to about 17,500 for a sold-out event. The Barbra Streisand concerts, for example, have 16,458 sellable seats.

From Barclays Center website
"You may have heard larger numbers," Sparks observed, regarding arena capacity. Indeed, the Barclays Center itself has regularly announced 19,000 seats for concerts, as well as 18,200 seats for pro basketball.

Each event, Sparks said, has its own planning process, including events of the same type, since an NBA game on a weeknight against a lesser-known opponent would draw a smaller crowd than a Saturday night game against the New York Knicks. The planning includes consultation with arena operators, tour managers, and local officials in other cities to evaluate potential scenarios.

Arena hierarchy

Sparks explained that he works for Brooklyn Events Center, a subsidiary controlled by Forest City Ratner. BEC has hired AEG as an operational arm, and Levy Restaurants to handle food service.
David Anderson heads the “front of house,” including guest services, ushers, ticket takers, and ticket sellers.

Working under Anderson is Sena, the director of security, who works with Bonano, who oversees security at the Atlantic Yards site. Working the “back of the house” is Rosebrook. All the officials, noted Sparks (who also cited Levy’s Julie Margolin) have extensive experience running sports facilities or operating in Brooklyn.

Foot traffic

Sparks estimated that between 70-75% of arena visitors would enter the arena from the new subway entrance on the arena plaza, walking under the oculus, an area also where the box office is located.

He estimated that 5-10% of the crowd, mainly suiteholders, would enter on the VIP entrance on Atlantic Avenue, though he said suiteholders on the other side of the arena wouldn’t likely use that entrance. Another small entrance on Atlantic, closer to Sixth Avenue and the broadcast parking lot, will have 5-10% of the crowd.

It seemed unlikely that that large a percentage of the crowd would be press.

Sparks also said that the “mid-sized” entrance on Dean Street would accommodate arena staff--estimated at 800 people for major events--as well as some 20% of attendees, which could mean 3,600 people.

He didn’t supply calculations, and it was unclear whether the estimates, for example, factored in the numbers of people expected to arrive in Brooklyn well before event times, lured by planned cross-marketing programs. If, for example, people arrive from Fort Greene and Park Slope, they could choose entrances other than the one leading from the transit hub.

Type of events

Beyond the 44 NBA games (three of them pre-season), Sparks described other planned events.
Hockey, he said, will be a preseason event, “and we'll see what happens after that,” Sparks said, with a distinct lack of the promotion attributed to arena CEO Brett Yormark and Forest City CEO Bruce Ratner.

Right now, he said, the only hockey plans are the preseason game between the New York Islanders and New York Rangers, and a doubleheader involving the European league centered in Russia.

There also will be a fall and spring session of Disney on Ice events. “Other than that, it's not likely,” Sparks said, “It’s not economical to keep ice down unless you use it.”

He said that, “on a busy year, we'll be shooting to do 50 concerts,” though in the first year, “it’s going to be a stretch” to meet that.

There’s a “large college basketball program,” with 26 games scheduled to date, mostly involving nationally-known teams, but also including local power Long Island University.  Sparks also cited the Ringling Brothers circus.

He described four or five “major neighborhoods” in which events are distributed: Brooklyn Show, Brooklyn Hoops (college), the Nets, Brooklyn Family, and Brooklyn Boxing.


Sparks said the arena would be “in communication” with the mall--actually two--across the street, given that operations can impact each other.

Anderson explained what various front of the house staffers would do, boilerplate that didn’t interest many of the community attendees. There will be 12 box office windows at the plaza, open during the week and during event.

Various items will be prohibited, including laster pointers, alcohol, skateboards, cans/bottles, glass, metal, and plastic containers. That list is published on the arena website.

Guests are encouraged to report any kind of behavior to the nearest usher or to arena staff via texting.

Bonano, a 30-year veteran of the NYPD, said the arena would be policed by a supplement to the 78th or 88th precincts, noting it had not been determined. Contract security guards would be posted along routes to the arena, and to the C train and G train.

Security officials at the Long Island Rail Road and Metropolitan Transportation Authority “assured me they would beef up their manning levels,” Bonano said.
Sena, a former city cop who headed public safety at colleges in Wilkes-Barre, PA, and upstate New York, repeated a good deal of what previous speakers already said.

He noted there will be an evacuation plan and drills, perhaps a tabletop exercise, in preparation. One ambulance will be on staff for all events, two for NBA games, as a separate ambulance for players is required. The arena will be a nonsmoking building.
Regarding event security assessments, Sena said, “we look at best practices of other arenas.”

Entering the building, after people go through metal detectors, we “will also ask them to put bags on table,” he said, and will look at them but “not rummage through.” Hand wands will be used if necessary. The arena will have closed-circuit TV coverage.

Sena said “we will be working very closely with Steve [Bonano] and security on the arena block,” and also with security officials at the malls and transit stations.

Unmentioned--and, officials said later, they wouldn’t give details--is exactly where security will be beefed up in Prospect Heights, a concern of the dozen or so community representatives sitting in.

Loading dock

Referencing the loading dock as the “most unique aspect” of the arena, Rosebrook called it “one of a kind, so it demands a lot of attention.”

There will be “a secured, private, web-based scheduling system,” he said. “If you're not scheduled to come into the building, you're going to get turned away.”

There will be “a lot of pre-planning to get them there,” he noted, though, because “things don't always go according to plans, we'll have to make adjustments on the fly.”

(Despite the arena operators’ experience in the business, they’re still new to Brooklyn. Rosebrook referred to the staging area at one point as the “Naval Yards,” rather than “Navy Yard,” while Sparks referred to “Pacific Avenue,” not “Pacific Street.”)


Rosebrook said a third party contractor will have a cleaning crew that will be in charge of arena block cleaning, working events, and post-events.

Outside of the arena block, “we're working very closely” with the Department of Sanitation “to outline roles and responsibilities,” such as extra containers, more frequent pick-ups, and snow removal, though it was not established who would be paying for what.


Brian Collins of Central Parking, speaking quickly, described information that very much intrigued community members: the design of the parking lot, with 565 spaces, 24 for police, 541 for the arena. The lot is located on the block between Dean and Pacific streets and Carlton and Vanderbilt avenues.

The area described in yellow is self-parking, while, brown is attended. There will be entrances from Vanderbilt and Carlton avenues, with exits on Vanderbilt and Dean and Pacific.

While the lots has been described as completely prepaid, Collins called it “prepaid, by and large,” allowing for the option of payment on site for remaining spaces.

Brian Collins
The lot devotes 150 spaces for VIPs, who get free parking, with the balance (391 spaces) for HOV (high-occupancy vehicle) parking, involving three or more people. All the spaces not designated for VIP/NYPD will be HOV up until a day or two before the event, and then, if not sold out, will be made available.

Other area parking lots that are part of prepaid arena parking, he said, will be required to offer 20% of parking capacity as HOV, at a lesser rate. (Forest City committed to offering 600 HOV spaces at the project site, a commitment that surely must be amended.)

Pacific is a closed private street, open only during event hours, with two openings and stgaffers directing traffic. Operators want to fill all the self-park spaces first.

“Even if we park the car, the individuals will be asked to take keys with them,” he said.

“While you ordinarily wouldn't love to have four-deep parking in an event parking venue,” Collins said, indicating potential pile-ups inside the lot, “we are more than 1000 feet away from the arena, so there will be some time lag in people getting back.”

There will be no exit on residential Carlton Avenue, but, those exiting on Pacific can turn onto Carlton.
During nonevent days, the lot also will be used for construction worker parking.


Veconi, who called the parking presentation detailed and helpful, asked if cars exiting mid-block on Vanderbilt would be required to make a right.

Collins said yes.

The question, Veconi, observed, is where drivers go next. There could be traffic backed up on Vanderbilt, which means drivers “are going to look to make rights or lefts on residential streets,” or ending up at Grand Army Plaza. He asked if egress could be on Pacific Street, whereupon drivers could make a left, at a light, on Vanderbilt, proceeding to broad Atlantic Avenue.

Collins called it “a good point,” and noted it did come up with Forest City's traffic consultant, Sam Schwartz (who was not at last night's meeting). “It’s clearly better to utilize the Pacific Street roadbed.”

Still, he left the issue open. “We're not traffic management people,” he said. “Our goal is to get the lot empty. If the plan is to shut off and not leave VB open, we're more than happy to provide that service.”

Truck route

Michael Cairl of the Park Slope Civic Council asked about truck route between the Navy Yard and arena.

Cotton said it hadn’t been finalized.

Chris Hrones of the Department of Transportation noted that the shortest north-south route is not a legal truck route.

Marshall cited Flushing and Flatbush avenues,, but added “there are probably other options.”


Where will taxis and limos go?

Forest City’s Marshall said arena lay-by lanes exist for pick-ups and drop-offs. “There is no staging area for black cars.”

“We are looking at the use of the lane just in front of the Atlantic Center mall to support yellow cabs and black cars after an event opens,” she added, but said it hasn’t been finalized.

Jim Vogel, a representative of state Senator Velmanette Montgomery, brought up the Neighborhood Protection Plan supported by Montgomery and others, and noted that it proposed sanitation coverage in the neighborhood paid for by the developer.

Rosebrook said there have been discussions but “nothing’s been solidified yet.”

Vogel pointed out that Levy Restaurants is familiar with the operation of Wrigley Field in Chicago, which has its own Neighborhood Protection Plan, which inspired the effort in Brooklyn. “We'd hope that Barclays steps up.”

Cotton said, “Obviously, a clean neighborhood is in our best interest as well.”

Newswalk impact

Wayne Bailey, a representative of the 171-unit Newswalk condominium between Sixth and Carlton avenues, said residents were quite worried about the security implications of glass walls and doors on the route from the arena to the parking lot. “Are you guys aware of that?” he asked.

Marshall responded evenly, “I think that’s why we’re here, and I think that’s why we’re talking about an operations plan, and that's why we want to hear your ideas.”

Krashes followed up, saying he wanted to reinforce Bailey’s concern. “We had hoped to
get these plans earlier,” he said, asking of Forest City reps would make themselves available for more meetings with the community.

“That’s why we’re here,” Cotton responded.

“I serve at the pleasure of Forest City,” Collins said.

Cotton followed up, “If we had this six months ago, maybe we would’ve brought it.” Her statement echoed the six-month delay in the Transportation Demand Management plan, which was promised last December but delivered in May.

Later, Bailey said Newswalk has been told it has to spend tens of thousands of dollars to upgrade the building. “When we will hear about security?” he asked.

“We're not going to show you a map with dots saying where people would stand,” Cotton said, but noted that, by bringing security staff, they were trying to convey their commitment.

Loading dock

Krashes said it was helpful to consult the community, given that there are residents living right across from the loading dock. “This is about a relationship between a residential community and the arena.”


He asked if the parking lot, as per a request from a landscape architects’ organization, could meet Department of City Planning standards, including use of medians.

The ESD’s Hankin said that the state has overrun local zoning, so the lot is not subject to we're not subject to DCP guidelines. “But more importantly, this is a temporary lot,” she said. “Forest City Ratner is required to work on the lot by 2020.” (Actually, on one building.) “If we plant trees, we're going to have to rip them out.”

An added median or barrier extension would require stackers, which would add delay to the lot operations.

Krashes said that, despite the reduction of on-site spaces from a once-planned 1,100 spaces, there would be “more cars introduced to Dean Street than anticipated.” He said there would be “a huge delay of cars at Dean and Carlton,” plus more pedestrians on sidewalks that have effective widths narrower than anticipated.
So the community, he said, was facing something that hadn’t really be assessed.

Broadcast lot

Krashes asked about screening plans for the broadcast parking lot, located just east of Sixth Avenue above Dean Street.

Marshall said a proposed screening plan would be implemented with ArtBridge, which added art by local artists to part of the arena construction fence.

Marshall noted that the fence is not chain link but a mesh fence, a steel fence with
one-inch square holes.


Richard Goldstein of the Carlton Avenue Block Association asked about worst-case scenarios.

“What we're worried about is what we presented,” Cotton said, noting that they hadn’t talked about other issues not important to the community, such as interior food operations. “This whole presentationwas supposed to be proactively addressing what I think communities are concerned about,” she said, citing trash, noise, drunk driving.

Sparks referenced the arena’s capacity to control anyone unruly and call on the police, but, as noted above, wouldn't specify concerns raised at similar venues.


Alan Rosner, representing Develop Don’t Destroy Brooklyn, brought up issued he’d raised earlier in the process. Given that, according to his calculations, the cantilever arena would be from four to ten feet closer to curbside vehicles than when it was first approved in 2006, that raises questions about the arena’s vulnerability to terrorism.

(As I wrote last August,  despite previous claims by Forest City Ratner that the arena would be 20 feet from the street, new city documents confirm that the structure would be considerably closer--less than 12 feet--above ground level along Atlantic Avenue.)

The city of Newark closes streets fronting the Prudential Center, Rosner pointed out, and the Freedom Tower was set back for security reasons. Street-level glass, he said, should be eliminated.

Marshall responded sharply, saying there had been a threat and risk assessments by the responsible agencies, that hardening had been applied, “the arena is not five feet closer,” and “the glass is required by the [arena] design guidelines,” which is why we had to design the glass to withstand forces, which were studied.”

“All I'm saying: everything was studied, it's all done,” Marshall continued. “You keep asking about this. And I just want you to know: it's safe.”

Rosner said there were still reasons to be skeptical.

“Alan, thank you for sharing your concerns,” Adams responded placatingly, moving the meeting along.

Local officials, however, have asked for more details on the security review, to no avail, citing the closeness of the arena.

Impact on Bear’s Garden

Jiwan Choi, from the Pacific Bear’s community garden catercorner to the arena, asked if the Code of Conduct will apply to people outside the arena. “If we notice something is going wrong, are we going to be able to reach out to you?”

Cotton said there’d be a community affairs liaison. Bonano said the polcie would be actively involved.

“The theme is, you've got a residential neighborhood that feels vulnerable,” Krashes
followed up, citing the potential impact on the Dean Street Playground. “The community is going to want to see that operated successfully during arena events,” he said.

He also noted that there would be a lot more trash on local streets, especially on
Pacific Street between Fourth and Atlantic avenues. Property owners often get citations. “I think we deserve a lot more detail than we've been given as to how you're going to protect private property,” such as broken car windows or an aerial snapped off.

Is that an arena issue, or not, he asked.

Cotton looked at Bonano.

“No, it’s police department, Bonano said, acknowledging valid concerns but said there’d be more coverage, both “paid detail” and additional officers.

Tuesday, June 26, 2012

At meeting on arena operations, the shadow of today's court decision; also, while state agency seems open to new governance entity, developer Forest City Ratner remains opposed

There was a slightly surreal air to a long-scheduled meeting tonight regarding Barclays Center operations, notably security, parking, and sanitation, held at Brooklyn Borough Hall. (I'll have a full report in the morning.)

After all, Forest City Ratner External Affairs VP Ashley Cotton, a recent hire, led off by asserting that “we have learned that transparency and sharing details as we go is the best policy,” only hours after the state Court of Appeals rejected leave to appeal--filed by the developer and the state agency overseeing Atlantic Yards--of a decision saying that the defendants had failed in such transparency.

No one mentioned that case until Gib Veconi, who as a leader of the Prospect Heights Neighborhood Development Council and BrooklynSpeaks was a prime mover behind the suit, brought it up near the end of the two-and-a-half hour meeting.

“At this point, when we can see a draft scope of analysis for an SEIS?” Veconi asked Kenneth Adams, CEO of Empire State Development (ESD). He was referring to the Supplementary Environmental Impact Statement ordered by a lower court to analyze the worst-case impacts of a 25-year project buildout, as opposed to the long-professed ten-year schedule (and the alternate delayed scenario, covering 15 years, that ESD considered when it re-approved the project in 2009).

“Obviously we have to obey the court's order,” Adams said. “We'll start working on it.”

Given that it’s been nearly a year since state Supreme Court Justice Marcy Friedman initially ordered the SEIS, Veconi countered, “our hope would be to see the scope of analysis”--the precursor to the actual study--in the very near future.”

New oversight structure?

Those who prevailed in the lawsuit, including Council Member Letitia James, said the court decisions gave impetus to more democratic oversight of Atlantic Yards.

Veconi pointed out that Adams, at a community meeting in early May, had said that his agency was looking at potential models, and asked for an update.

Adams said the agency has continued discussions with Assemblyman Hakeem Jeffries, who introduced legislation, which has passed the Assembly but not the Senate, that would create a a new governance structure.

The issue, Veconi responded, is both is form and structure. Jeffries' legislation would merely authorize such a subsidiary. What sort of structure would ESD support?

Adams said the "short answer" is that, while Jeffries asked ESD to consider a structure similar to other development project around the state, the Atlantic Yards Development Agreement is between the agency board and Forest City Ratner.

"A new entity could be a subsidiary," Adams allowed, and could function under the ESD board. But the membership, and other details, remain in question.

“The transparency of decision-making is what's really important,” Veconi said last month. “The gold standard is that decisions are made by a board that includes outside directors.”

Forest City Ratner has opposed Jeffries' legislation; here's my 7/11/11 critique of their memo. Tonight, Cotton confirmed after the meeting, Forest City still opposes it.

Forest City does have a relationship with some influential Senate Republicans, notably Brooklyn Sen. Marty Golden, though I don't know whether the stall in the Senate is a result of Forest City's lobbying, other Senate priorities, or both.

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.


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.

From n+1, "Berman's Children": how a key Supreme Court case furthered both the eminent domain that enabled Atlantic Yards and the landmarking that shaped the neighborhoods nearby

In the latest issue of n+1, attorney Andrew Jacobs offers an intriguing take on Atlantic Yards, titled "Berman’s Children" (subscribers only), explaining how the legal doctrine that enabled the state power of eminent domain--and the not-so-transparent agency overseeing the project--also brought us the Prospect Heights Historic District, and, of course, the earlier historic districts in the radius of the development site, thus creating enduring tensions from an expansion of state power.

"Efforts to designate the Prospect Heights Historic District began in 2006 and came to fruition in the summer of 2009," Jacobs writes. "The Yards, in some sense, created the District."

Jacobs finds a thread of connection in Suleiman Osman's The Invention of Brownstone Brooklyn, who explains how postwar, post-industrial New York faced both "urban modernism and antimodern, romantic urbanism."

The former, including eminent domain, relied on experts "without electoral accountability to build the modern city." The latter, at least at the beginning, was outside the system:
As Osman writes, “The historic landscape was born in the wake of the modern projects. One could not exist without the other.”
Osman’s book is full of sentences like these, connecting the phenomena of early gentrification with a common sense of paradox. The brownstoners’ aversion to suburbia “mixed an anticorporatist critique of ‘tickytacky’ tract homes . . . with a veiled disdain for their provincial denizens.”... To Osman, our ambivalence about how Brooklyn and places like it have changed in the last sixty years is not a failure of nerve. Rather, it is a reflection of the shape-shifting motivations and actions that wrought that change. Today, Prospect Heights’ struggle against Atlantic Yards is a sort of sequel to Brooklyn Heights’ against Cadman Plaza.
Yes, but I'd add that the struggle has been much more than Prospect Heights. Organizations from equally storied neighborhoods like Park Slope and Fort Greene, notably including longstanding residents, also have struggled against Atlantic Yards. And the failure of the public sector to deliver benefits like jobs and subsidized housing has left room for private companies to proclaim public goals.

Two threads of preservationists

Jacobs notes that the initial preservationists were not looking at Brooklyn Heights:
[Preservationist Albert] Bard and his cohort at the city’s Municipal Art Society (MAS) were inspired not by the brownstoners’ organic urbanism, but by the integrated grandiosity of the City Beautiful movement, first given physical expression in The White City at the Chicago World’s Fair in 1893.
...The main reason nothing happened in the immediate aftermath of the act’s passage was that at the time, preservation didn’t have much of a constituency beyond the old folks at the MAS. Soon, though, the society began working with residents of Greenwich Village and, especially, Brooklyn Heights.
The Landmarks Law, relies on the 1954 Supreme Court case Berman v. Parker, best known for upholding eminent domain. So landmarking is a not insignificant legacy, but it's not the main one:
...Berman’s more fecund legacy lies in its extreme deference toward what constitutes a “public use” (i.e., a public purpose) in the context of eminent domain. As private entities assumed greater roles in urban renewal projects, and as the purposes of these projects crept from “slum removal” to the more nebulous “economic development”... courts cited Berman and its progeny...
Moving on to Kelo

The Supreme Court's controversial 5-4 Kelo v. New London decision in 2005 galvanized attention, outrage, and hope. Jacobs notes that, in Justice Anthony Kennedy's "concurrence — which is 'persuasive' but not binding on lower courts," the Justice tried to distinguish between "pretextual takings from those made in good faith":
In particular, a taking might show its bona fides if it were part of a “comprehensive development plan”; if “the identities of most of the private beneficiaries were unknown” at the time the plan was formulated; and if a procedure were in place to “facilitate review of the record and inquiry into the city’s purposes.”
Indeed, this is what plaintiffs in the Atlantic Yards case seized on, but it would not be easy to get courts to take it seriously. And, as Jacobs points out, Kennedy didn't quite have it right; as described by the New London Day, given beneficiaryPfizer's early involvement.

The AY legacy

Jacobs then gets to the Atlantic Yards eminent domain case (which he credits to Daniel Goldstein, cofounder of Develop Don’t Destroy Brooklyn and the owner of a now-condemned property on the Atlantic Yards site, as plaintiff, rather than added co-plaintiffs).

The federal court dismissed the case:
On pretextual takings, the court interpreted Goldstein’s argument as demanding “a full judicial inquiry into the subjective motivation of every official who supported” suspect projects like Atlantic Yards.... The court left the door open for future, Kennedy-inspired pretextual takings claims, but only where “the circumstances of the approval process so greatly undermine the basic legitimacy of the outcome reached that a closer objective scrutiny of the justification being offered is required.” That wasn’t the case here, so the court instead told the story of Berman & company, reminding us that the eminent domain power need only be “rationally related to a conceivable public purpose.” Atlantic Yards will have a public arena and (by 2035 or so) some affordable housing. Isn’t it conceivable that the state meant to benefit the public with it?
Actually, the arena is public only in name, a financing tool to engineer tax-exempt financing. Some subsidized housing should come within a year or two, but the full complement may not come for 25 years.

Jacobs, though he does cite Battle for Brooklyn, does not discuss the state eminent domain case, where other issues were raised, notably the claim that the developer drew the outline of the site, yet were ignored by the Court of Appeals majority in 2009.

The aftermath and legacy

While many states have passed reforms regarding eminent domain. "The state of New York is exceptional in its political acceptance of Kelo," Jacobs writes.

I'd suggest that the influence of New York City Mayor Mike Bloomberg and Assembly Speaker Sheldon Silver are key factors.

Jacobs concludes:
In scene after scene of the recently released Battle for Brooklyn, which documents Daniel Goldstein’s fight against Atlantic Yards, the effective opacity of today’s public-private development apparatus is on display, obscuring even the negotiation of so-called Community Benefits Agreements. In this environment, historic districting can be only a prophylactic, guarding against any more change than what’s already coming. In the end, this is how Berman’s children have grown to get along: The Yards chases the District to its room, and the District locks the door behind it.
It wasn't just Goldstein's fight, which is a not-surprising misreading of the filmmakers' decision to focus somewhat narrowly. But Jacobs does grasp an essential fact of the film (my review).

Tonight, at an invitation-only meeting organized by the Empire State Development Corporation regarding security, sanitation, and parking, there will be some transparency, and some opacity.

Monday, June 25, 2012

Behind the revision of the railyard deal: MTA says it leaves agency whole, won't try to put a dollar figure on work so far, says disruptive work to meet deadline not expected

As noted on June 7, the Wall Street Journal broke the news that developer Forest City Ratner, which successfully revised the Vanderbilt Yard development rights deal to build a smaller, cheaper replacement railyard and to attenuate payments, has managed to save cash flow by renegotiating another aspect of the schedule with the Metropolitan Transportation Authority.

Instead of beginning the permanent railyard this June 30, as indicated in an MTA Staff Summary dated 6/22/09, the official start date has been moved back 18 months to 12/31/13, with terms disclosed to the MTA board members on June 4.

Now that I have the underlying documents and posed questions to the agency, I can attempt answers at some of the lingering questions:
  • Does Forest City save money? Probably.
  • Does it leave the MTA where it wanted? Yes, but thanks in part to the agency's own delays.
  • Will a concentrated schedule mean noisy late-night work? No, they say.
  • Can the schedule be extended/relaxed again? Surely.
  • Does Forest City have the upper hand? Looks that way.
By building the arena, Forest City Ratner had to move the railyard functions (storage and cleaning) to a smaller temporary yard east of the arena block, and to build an upgraded yard--though not as large as originally promised, and smaller than its predecessor-by 9/1/16.

Note that Forest City Ratner in 2005 agreed to build a nine-track yard that can accommodate 76 train cars but, with the 2009 renegotiation, got the MTA to agree to a seven-track yard holding 56 cars, valued at $147 million, perhaps $100 million less than the larger yard.

The temporary railyard has capacity for only 42 cars. It was once supposed to last 32 months after construction, but could last six years and eight months, or 80 months.

Little changing?

The Journal reported:
Forest City spokesman Joseph DePlasco said the yard will still be completed on time. The developer has already built a portion of the yard, he said, and other related work will continue.
MTA spokesman Adam Lisberg said the developer has agreed to do $10 million of additional work in the interim, and the LIRR is using a temporary rail yard meanwhile.
"From our perspective, very little is changing here," Mr. Lisberg said.
Why the delay?

MTA Chairman Joseph Lhota wrote to board members:
While substantial work has been performed that progresses the new yard, Forest City has asked for an extension of the formal construction commencement date for a period of 18 months, until December 31, 2013. Forest City has indicated that it will be completing work at the arena site and in the temporary rail yard to facilitate the arena's opening. 
That's fairly opaque, since it doesn't explain why, so I asked. "I don't have an official reason why they asked, but it's sort of immaterial to us, because we don't need it [finished] until 2019," Lisberg told me. As the Journal's Eliot Brown wrote:
The delay comes as developer Forest City Ratner Cos. has struggled with higher-than-expected costs and a sluggish economy that have slowed other portions of the project.
So it seems likely that the delay, at minimum, will save Forest City some cash flow.

Delayed East Side Access means a delayed yard?

The new railyard is needed to facilitate East Side Access: service to Grand Central Station, with Atlantic Avenue to Jamaica trains as a shuttle service. Until last month, the MTA had been predicting 2016 as the start date; hence the requirement, in the 2009 revision of the Vanderbilt Yard deal, for the railyard to be finished by 2016.

But East Side Access is delayed, and the new goal is 2019. "We did not put forward a new time estimate until last month, but had backed off earlier ones," Lisberg said.

Of course, if the railyard is not needed until 2019, that gives opportunity for Forest City to further revise the deal. The year 2016 is no longer a drop-dead date, so if things are going slowly, or they need to save cash flow, why not simply ask for more time?

The amount of spending: ahead or behind?

If the new railyard costs $147 million and would take four years and three months to build, a $10 million expenditure over 18 months represents a slowdown in progress, I wrote.

Then again, presumably Forest City has already spent a portion of the overall cost.

Indeed, that's what Lhota indicated:
As background, in February of 2011, LlRR/MTA agreed to allow Forest City to enter into the existing temporary rail yard so that Forest City could begin the reconstruction of the Carlton Avenue Bridge -a road connection over the rail yard that the City and the Empire State Development Corporation (the Project Sponsor) required for the opening of the Barclays Center in September 2012. To construct the bridge, Forest City Ratner has had to excavate within the rail yard in order to ensure adequate clearance over LlRR trains using the yard. Because this excavation would also be required in connection with the construction of the permanent yard, this early work has advanced the construction of the permanent yard before the official "commencement of construction" and has been achieved without Forest City being permitted to draw down on the $86 million letter of credit. Thus, LlRR has received the benefit of the excavation without any diminution of its security. 
(Emphasis added)

So, can that benefit be quantified? No. Lisberg said "we are not, as a matter of policy, giving any estimates on the value of work done so far."

He noted that the additional $10 million letter of credit protects the MTA, so if Forest City backs out, the agency would get a letter of credit worth $96 million to construct the new railyard, and have the opportunity to sell new development rights.

Disruptive work?

If the deadline is met, I asked, how much disruptive late-night and overnight work will be necessary? That's a very relevant question, given that late-night railyard work to finish the Carlton Avenue Bridge has proven quite disruptive to nearby residents.

The LIRR engineering staff examined the proposed schedule, and said--according to an internal memo Lisberg quoted to me--that the work for the permanent yard could be completed without "resorting to extensive multiple shifts over time, night time work, or other extraordinary measures."

That suggests that railyard work would not be as disruptive as the current work. But it also looks like they have a time cushion to extend work.

Delegated decision

As Lhota's memo indicates, the board did not have vote on this, because in 2009 they delegated authority to:
the Chairman and Executive Director and their designees "to negotiate, execute and deliver contracts and any other necessary or appropriate agreements, leases, deeds, documents, and other instruments, and to take any other necessary or appropriate steps, to implement the Atlantic Yards Project." 
Lhota noted ESDC concurrence:
MTA/LIRR have been coordinating closely with the Empire State Development Corporation, who supports this amendment to the permanent yard construction agreement. 
Vanderbilt Yard Agreement, 6/4/12, MTA & Forest City Ratner