Saturday, September 28, 2013

Another look at latest legal decision; Daily News, Post frame "rare" victory; winning groups not quite cooperative; Times absent

News12 yesterday offered a lame report with a dopey headline, Barclays Center naysayers remain after 1 year, which gave the "naysayers" very little voice.

But why might there be some naysayers? Maybe it's that a judge yet again confirmed the process behind Atlantic Yards was sketchy, awarding legal fees to two community coalitions that challenged the state's 2009 approval of the project and successfully got the court to order a Supplemental Environmental Impact Statement to study the community impacts of a 25-year buildout.

However, the narrative, in the rather skimpy news coverage, was more simple, as noted below.

Different takes from the winners

It's also worth noting, as I point out, that the two community coalitions that won the case had somewhat different emphases, with Develop Don't Destroy Brooklyn focusing on the judge's vindication of their critique of the project, and BrooklynSpeaks focusing on the failure to deliver benefits like affordable housing.

The latter press release got virtually no pickup, as it came later in the day Thursday, but it's worth a look especially because it contains quotes from three elected officials, two of whom were named petitioners. (Rounding up such quotes takes a while.)

Though the two coalitions cooperated in court, neither acknowledged the other in their press releases, which strikes me as rather pissy behavior.

In the Daily News

The Daily News, sponsor of the arena plaza, cast it as a minor victory in a long war, rather than a decision that leaves a cloud over the project, in Bruce Ratner will have to pay his opponents’ legal bills: Judge Foes spent $325K to fight Atlantic Yards. They lost. But one court victory in 2009 leads to legal windfall.:
They fought Atlantic Yards developer Bruce Ratner for close to a decade — and now the real estate mogul is on the hook for their legal fees.
Develop Don't Destroy Brooklyn and Prospect Heights Neighborhood Development Council will get hundreds of thousands of dollars to pay their legal eagles — a ruling that followed a rare court victory over Ratner in 2009.
That win, which forced the state to conduct a new study of the project's environmental impact, led to Supreme Court Judge Marcy Friedman’s ruling this week on the legal reimbursement.
Though Forest City wouldn't comment, the Daily News did find a critical quote:
Real estate law expert David Reiss cautioned against seeing the opponents’ victory as a big win the little guy.
"It is hard to call it a David-versus-Goliath win when Goliath is still standing and still going strong," said Reiss who teaches at Brooklyn Law School. "It is a tactical victory. The war has been lost. The arena is built."
My comment:
Um, yeah, the arena's been built. But the "tactical victory" points out, yet again, how sketchy this project was and is.
And it wasn't a "rare court victory... in 2009"--it was a series of court victories that began in *2010* and continued over the next two years, at both the lower level (Supreme Court) and then appellate division.

"legal windfall" = reimbursement for challenging government overseeer that misled public
Patch's Ratner Must Pay Anti-Barclays Groups' Legal Fees relied on the Daily News.

In the Post

The New York Post reported, Barclays Center developer has to pay foes’ legal fees
He won the battle to build Barclays Center — and now he’ll pay for it.
Developer Bruce Ratner is on the hook for hundreds of thousands of dollars in legal fees shelled out by foes of his $5 billion Atlantic Yards project for Brooklyn that includes the NBA Nets’ new arena, a state judge ruled on Thursday.
Manhattan Supreme Court Judge Marcy Friedman granted community groups who oppose the project a rare victory in a nearly ten fight. She ruled the Empire State Development Corp. liable for legal fees the groups spent trying to compel the agency to complete a new environmental review for Atlantic Yards.
Again, it was a "rare victory" rather than something that leaves a cloud.

The Post prompted Crain's New York Business to post Atlantic Yards legal fees
Developer Bruce Ratner will reportedly have to pay opponents of his Atlantic Yards development $300,000 in legal fees. A state judge ruled Thursday that the Empire State Development Corp. was liable for legal fees the groups spent trying to compel the state agency to complete a new environmental review for the Brooklyn development project, according to the New York Post.
Mr. Ratner is responsible for the payment because he agreed to pay for the cost of the review when he signed up to build the massive mixed-use project, which includes the Barclays Center. The decision is a rare victory for opponents of Atlantic Yards.
I love the use of the term "reportedly," as if Crain's couldn't find the legal decision itself and come to an independent conclusion.

Well, that's better than the Brooklyn Paper, which is owned by the Post's parent, but didn't publish any story.

The Record beats the Times

Of all the press beyond this blog, sports business reporter John Brennan, of The Record in New Jersey, got the story first, perhaps because he's been covering it for a long time. He offered a little media criticism:
Friedman’s 2012 ruling on the “10-year plan” was sometimes scathing,as I noted at the time.
But it received little New York City media ink, probably because the issue is complicated and the industry continues to trim payroll.
Well, once you spend some time absorbing the details, it’s not THAT complicated – as I wrote in a 2011 blog post.
The New York Times, unsurprisingly, hasn't run an article. I'd bet that the decision will be mentioned grudgingly in passing, in a Times roundup, likely keyed to the Barclays Center's first, successful year.

After all, remember the 7/19/11 article, Atlantic Yards Arena Takes Shape, but Protests Carry On, which contained this passage:
On Wednesday, Judge Marcy S. Friedman of State Supreme Court ruled that the Empire State Development Corporation, the state body overseeing the project, failed to adjust its environmental impact study from 10 years to 25 years in 2009 when it approved Forest City Ratner’s modified building plan. Justice Friedman ordered the development corporation to conduct a new study to determine whether alternatives were needed for the lot where parking is planned.
Ms. Carponter of Develop Don’t Destroy Brooklyn, the lead petitioner in the suit, hailed the decision as a rebuke of the development corporation’s oversight and a chance to amend the project. The judge did not, however, order the current work to be stopped.
Or the 4/17/13 roundup, headlined Impact of Atlantic Yards, for Good or Ill, Is Already Felt:
A ruling by a state appeals court last week, stemming from one of the lawsuits over the project, may cause additional delays in putting up most of the housing — though not in building the arena itself — by requiring the state to conduct a new environmental impact statement.
The ruling by the Appellate Division of State Supreme Court said that the Empire State Development Corporation conducted its environmental review based on a 10-year time frame, but that a 25-year schedule could force residents to “tolerate vacant lots, above-ground arena parking and Phase II construction staging for decades.”

The press release: DDDB
Judge Rules Plaintiffs in Atlantic Yards Legal Case Entitled to Fees; Forest City Ratner Must Pay
Developer, State Must Compensate Develop Don't Destroy Brooklyn, Other Community Groups

NEW YORK, NY—A judge today ruled that the Empire State Development Corporation ("ESDC") is liable for legal fees incurred by community groups that sued successfully to compel a supplemental environmental impact study (SEIS) for the second phase of Forest City's controversial Atlantic Yards project. She referred the parties to a referee to determine the amount of the award, which under an agreement with ESDC, Forest City Ratner will then have to pay.
The ruling was issued by New York State Supreme Court Justice Marcy S. Friedman, who in July of 2011 held that the second phase of the Atlantic Yards project must undergo re-analysis because of significant changes in the originally claimed 10-year construction timeline. Justice Friedman noted that this review "should lead to ‘consideration of alternatives [to the currently proposed project] that may more effectively meet the ostensible goal of the project to alleviate blight and create affordable and market-rate housing with less adverse environmental impacts.'" ESDC and Forest City Ratner lost their appeal of Justice Friedman's ruling at the Appellate Division, and the Court of Appeals, New York's highest court, refused to hear the case. The ESDC, the quasi-governmental entity overseeing the project, has yet to issue the draft SEIS required by the courts.
In reaching her decision that the plaintiffs were entitled to their attorneys fees as the prevailing party, Justice Friedman expressly denounced ESDC's claim that it was justified in continuing to use a ten year timeline when its own Development Agreement with Forest City Ratner reflected a buildout of up to 30 years, calling the claim "no small audacity, in light of the court's prior findings . . [including] the ESDC's ‘deplorable lack of transparency.'"
"Justice Friedman's ruling today is another reminder of the sordid 10-year history of the Atlantic Yards project, which to this day has largely failed to deliver on the promises that were used to sell it to the people of New York," said Candace Carponter, Develop Don't Destroy Brooklyn's legal director. "We're gratified by today's decision, but the fact remains that, as Justice Friedman suggests, had the ESDC and Forest City Ratner not knowingly misrepresented the facts to the court, the entire Atlantic Yards project, including the heavily subsidized Barclays Center, would never have gotten off the drawing board."
"Justice Friedman has rendered a strong decision that vindicates what the community has been saying for a long time. One can only wonder whether this project would have ever moved forward if, as Justice Friedman noted, ESDC had disclosed the project's true timeline", said Jeffrey S. Baker, lead attorney for Develop Don't Destroy Brooklyn and a partner in Young, Sommer LLC. "It is time for ESDC to finally engage in an open and honest process that considers the full range of alternatives for Phase II of this project, not just the interests of Forest City Ratner."
The press release: Brooklyn Speaks

State court decision acknowledges misrepresentations by ESDC may have enabled construction of Barclays Center to proceed
In a decision issued yesterday, New York State Supreme Court Justice Marcy Friedman confirmed what many observers of the Atlantic Yards project have long suspected: if the Empire State Development Corporation (ESDC) had fully disclosed the terms of its 2009 agreement with Forest City Ratner Companies (FCRC), the Barclays Center arena might not have been built. Justice Friedman’s decision granted a motion filed by BrooklynSpeaks sponsors for recovery of legal fees from a 2009 suit challenging ESDC’s approval of changes to the Atlantic Yards plan. Those changes allowed FCRC to extend the construction of the residential portion of the project—including the majority of its promised affordable housing—from ten to twenty-five years.
In legal papers filed in response to BrooklynSpeaks’ 2009 suit, ESDC had suggested its agreement with FCRC included provisions to ensure the completion of Atlantic Yards on its original ten-year schedule. However, ESDC delayed releasing the text of the agreement to the Court prior to arguments being heard in the case. Yesterday, Justice Friedman wrote, “Had the ESDC disclosed the terms of the Development Agreement that were being negotiated when the petitions were initially heard, or brought the Agreement to the court’s attention promptly after it was executed, construction would not have been as advanced on the arena at the time of the court’s determination requiring an SEIS, and the balance of the equities may have favored a stay pending preparation of the SEIS.” If such a stay had been issued after initial arguments, FCRC’s access to $500 million in bond financing for arena construction would have been in jeopardy.
Civic leaders and advocates renewed calls for better government oversight of Atlantic Yards. “It’s outrageous that after more than two years, ESDC has yet to comply with a court order for a supplemental environmental impact statement,” said Ellen Fishman, chair of the Prospect Heights Neighborhood Council. “Justice Friedman again confirmed the need for just such a study of alternatives that can deliver housing without the need for extended construction.”
“Atlantic Yards delays are costing local families their chance to live in an apartment they can afford,” said Michelle de la Uz, executive director of the Fifth Avenue Committee. “Yesterday’s decision is another reminder that ESDC has long held the veil shrouding Atlantic Yards from accountability to the public, and that must change.”
Elected officials noted the recent announcement by FCRC of its intention to sell a majority of its interest in the residential portion of the Atlantic Yards project. “The massive delays in producing affordable housing are intolerable,” said Assemblyman Jim Brennan, chair of the Assembly Committee on Corporations, Authorities and Commissions. “I call on ESDC and Forest City Ratner to accelerate the schedule to bring the affordable housing units to completion as soon as possible.”
Said Assemblyman Walter Mosley, whose 57th District includes nearly all of the Atlantic Yards site, “Yesterday’s decision by the Court puts a greater burden on ESDC to demonstrate transparency in its future dealings on this project, into which the public has already directly invested hundreds of millions of dollars.”
“The Court has acknowledged what many of my constituents have known all along—that an agency of the State of New York has failed, and continues to fail, to represent their interests in favor of those of a powerful corporate developer,” said Councilmember Letitia James, who represents the neighborhoods of Fort Greene, Prospect Heights, Clinton Hill and Crown Heights. “ESDC needs to bring fundamental change to the oversight of this project to ensure public benefits get delivered before private profit.”

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