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ESD to commenters requesting 10-year Atlantic Yards buildout: it can still happen, but we won't require it (so 25-year deadline stays)

As noted, the Final Scope for a Supplementary Environmental Impact Statement (SEIS) for Phase 2 of Atlantic Yards contains a lengthy Response to Comments document (bottom), which I will excerpt in several posts. (The Final Scope was issued 2/7/1, but the actual court-ordered SEIS will not arrive until sometime in the spring.)

And, as I wrote, Empire State Development, the state authority overseeing/shepherding Atlantic Yards, does not give much ground to community concerns.

For example, several people--including the coalition BrooklynSpeaks and Council Member Steve Levin--challenged the state's agreement in 2009 to extend the project buildout to 25 years from a long-promised ten years, a concession to developer Forest City Ratner's financial needs in light of the recession..

The response was essentially that the project can still be built faster--but the state indicated no willingness to require such a schedule, because that's not part of the environmental review process. The process is a disclosure process, with the aim to mitigate adverse impacts, rather than a contract process, which is separate.

That contract process, in 2006 and 2009, was parallel to the disclosure process, but the contracts are not at issue now. Of course, if there were political juice, the contracts and timetable could be changed, just as they were in 2009, especially since the market has revived.

The basic request

The comment, with the commenter noted in parentheses:
Comment 4: ESD should consider whether the grounds for the 2009 Modified General Project Plan (MGPP) are still valid, and whether this project can in fact be built in ten years as it was originally approved, or in fact if it’s not necessary to extend the project to 25 years after all. The Master Development Agreement (MDA) and MGPP should be amended to the ten year schedule. (Veconi)
The response:
Response: As described on page 2 of the Draft Scope of Work, the Draft SEIS is being prepared pursuant to the Order of the Supreme Court for New York County to examine the potential environmental impacts of a prolonged delay in the completion of Phase II of the Project. Neither the Project documents nor the SEIS preclude a more rapid project completion, which was analyzed in the 2006 FEIS.
Trying to drill down

Another comment asked for specifics:
Comment 6: Brooklyn Community Board 8 expects the scope of the SEIS to address and disclose salient issues reviewed by the Court underlying the proposed extension of the Phase II construction beyond the 10 years originally contemplated. These issues include:
 The status of and schedule for the acquisition of the air rights necessary for Phase II construction,
 a definition of the term 'commercially reasonable efforts' as used in the Development Agreement executed after the Modified General Project Plan (MGPP) was approved
 specific dates for the construction of the Phase II buildings, and
 detailed factual basis for any statements regarding the environmental impacts protracted construction of Phase II will have on the residents of the affected area. (George)
Because the Draft Scope of Work envisions an analysis of environmental impacts projected 25 years into the future, the SEIS must provide an explanation as to why the build year has been increased beyond what CEQR considers reasonable, together with a description of how speculative risk in the analysis will be managed. Alternatively, the Draft Scope of Work could be revised to study an interim build year not more than ten years into the future in accordance with CEQR guidance. In either case, the SEIS must also include detailed construction plans describing what portions of the project will be completed and when. Together with these plans, the SEIS should also describe in detail the contractual terms that govern schedule performance on the construction plans.
In addition to the MDA, other agreements that might contain obligations that bear upon the schedule include:
 The MTA Transfer Agreement;
 The MTA Sale Agreement;
 The MTA Air Space Parcel Purchase and Sale Agreement;
 The MTA Air Rights Development Agreement; and
 The Yard Relocation and Construction Agreement. (Brooklyn Speaks)
The response:
Response: The 2006 FEIS studied the impacts of a 10 year construction period in accordance with CEQR guidance. As stated in the Draft Scope of Work, the SEIS for Phase II of the Project is being prepared to comply with the Order of New York State Supreme Court dated July 13, 2011, which required an analysis of a construction schedule for Phase II longer than was assumed in the 2006 FEIS. In accordance with that order, the SEIS will focus on the environmental impacts of a prolonged construction schedule of the Phase II program, and will assume that the Project will be completed in 2035. As outlined in the Draft and Final Scope of Work, three illustrative construction phasing plans will be analyzed, which are intended to be illustrative of a reasonable range of foreseeable construction sequences and schedules that may occur with an assumed 2035 build year. The SEIS will summarize the terms of the relevant Project-related contracts to the extent that they bear on the construction schedule for Phase II of the Project, or require particular commitments to mitigate or avoid adverse environmental impacts.
Delayed blight removal?

Several commenters said a 25-year buildout would delay the removal of blight, and essentially were told "so what":
Comment 8: As many in the community have stated, the approval of the 2009 MGPP seems to be at odds with the goal of removing blight from the area within the Atlantic Yards project. Now, instead of ten years of blight and construction, the communities I represent will be faced with 25 years of construction, noise and
traffic. (Levin)
ESD's justification for the project itself hinges on the goal of removing blighted conditions. The SEIS must study the impacts of delaying its achievement of removing blight by 15 years or more. (Brooklyn Speaks, Simon)
This project was supposed to relieve blight. But the project is not going to build a deck over the supposedly blighted rail yard until the end —when the 25 years are up. My neighborhood was declared blighted, and that was one of the reasons that this project was approved by the ESD. (Puca)
As part of the 2009 approval, the platform over the Long Island Railroad can be postponed by 25 years. The elimination of that blighted open rail yard should have been the first milestone being demanded of FCRC if there was any serious intention to oversee the delivery of public benefits. There could already be affordable housing on that platform. The possibility of construction lasting to 2035 is a far greater blight to our neighborhood. (Urban)
The removal of blight is one of the main basis for justifying the project and must be a focal point of any EIS, because blight is essentially an environmental item. (Ettlinger)
The response:
Response: The SEIS will not require construction of the Project in a 25-year period. Neither the 2009 MGPP nor the SEIS would preclude construction of Phase II of the Project faster than the 2035 Build Year that is being used for analysis purposes in the SEIS to comply with the Court Oder directing ESD to prepare an SEIS for an extended delay in Phase II of the Project. Blighted conditions on the Project site are being addressed incrementally as demolition, site clearance and construction move forward. As noted on page 2 of the Draft Scope of Work, the SEIS will examine the effects of a prolonged Phase II construction schedule
on various environmental areas, including the effects of an extended construction period on land use, zoning and public policy; socioeconomic conditions; community facilities; open space; urban design and visual resources; and neighborhood character.
Diminished public benefits?

Another commenter suggested public benefits would be diminished by a delayed timetable:
Comment 28: The public benefits announced and promoted by the Developer in justification of the accumulation of the entire project site, as approved by ESD, should be included for study in this Draft Scope of Work, these measurable values and their impacts being useful to assess the impacts and mitigations in the previous study that used AKRF's assumed values. We believe the impacts of delayed benefits will be shown to be appreciably different over 25 years than the 10-year assumptions provided. (Urban)
The response was that it's irrelevant, mostly:
Response: The socioeconomic benefits resulting from an action—including project-generated jobs, wages and salaries, and total economic output—are not the subject of a CEQR [City Environmental Quality Review] analysis of potential significant adverse impacts, and in general, the delay in the provision of public benefits announced and/or promoted by a project sponsor is not a determining factor in assessing significant adverse environmental impacts. The socioeconomic analysis instead focuses on the potential for significant adverse impacts that may occur from the build-out of Phase II over an extended period of time. With respect to this analysis, “delayed benefits” as described by the commenter will be addressed in the SEIS if those benefits were mitigating factors precluding a significant adverse socioeconomic impact where one otherwise would have been disclosed.
The SEIS will include the number of construction jobs and expenditures and associated economic benefits for the Extended Build-Out Scenario in the Construction Socioeconomic Conditions section of the SEIS. See also the response to Comment 29.
Impact on the neighborhood

Another comment addressed the impact neighborhood character:
Comment 118: The SEIS must study the effect of prolonging for an additional 15 years the blight associated with the Vanderbilt rail yards found by the ESD in 2006. What would be the specific impact to the "immediate area" surrounding the rail yards should they remain "a blighting influence" for an additional 15 years? The SEIS should identify impacts with respect to land use, socioeconomic conditions, open space, cultural resources, urban design, and neighborhood character, and propose necessary mitigations in lieu of the expected project benefits. The SEIS must also study the effect of prolonging the blight conditions around the rail yards on crime rates in the area. (Brooklyn Speaks, Simon, George)
One reason for using eminent domain was blight from the exposed LIRR Vanderbilt yards. Since the start of the Atlantic Yards Barclays construction, today when residents look out on Pacific Street they continually still see a rail yard under construction. Residents have no reasonable expectation when the platform will be built to cover the rail yard, or when the buildings will be constructed. But what we do anticipate is that it will be more than likely a 25 year build-out with the associated construction impacts. (Bailey)
The response:
Response: As described in the Draft Scope of Work, the SEIS construction analysis will evaluate a scenario in which the development over the rail yard does not occur in the earlier stages of the Phase II development. The analysis of that scenario will examine the effects of the rail yard on land use, open space, socioeconomic conditions, urban design and other elements of neighborhood conditions for an extended period. However, the elimination of the blighting influence of the rail yard is a benefit of the Project, and a delay in the realization of that benefit is not a Project impact.
Adverse construction impacts?

Another addressed construction impacts:
Comment 119: There is no doubt that the extended construction period will result in adverse impacts on surrounding neighborhoods. Construction, traffic, noise and pollution have a ripple effect throughout our communities. In a neighborhood already battling traffic congestion and unsafe streets due to an increase in taxis and limousines on event nights, 25 years of construction, truck traffic and noise from jack hammers and pile driving will exacerbate the problem. Proper mitigation must be outlined in the SEIS, and ESD must hold the developer to a high standard as the build-out progresses. (Levin)
The response:
Response: As described in the Draft Scope of Work, the SEIS will provide an analysis of neighborhood conditions resulting from prolonged Phase II construction under the Extended Build-Out Scenario. This will include an analysis of traffic, noise and air quality. If the analyses identify significant adverse impacts, practicable mitigation measures will be assessed.
Why not do it differently?

Other comments addressed alternatives:
Comment 120: The East Pacific Block Association, and the Council of Brooklyn Neighborhoods, join the many voices raised here in demanding that the ESD add to its Scope of Work for the Draft SEIS an extensive, thorough analysis of Alternative development plans for Phase II. We believe that any serious analyses of those will reveal viable opportunities to mitigate the many impacts and reverse the delayed benefits that your 2009 modification allows the possibility of in a 25 year build-out. We researched, prepared and provided to the public and the ESD, years ago, an entirely workable Alternate blueprint, called the "Unity Plan". This plan, and others like it if proffered, should be part of the analysis of Alternatives. In the "Unity Plan", Phase II is split into separate parcels, encouraging a variety of developers to bid on developing them simultaneously. Simultaneous development brings all the promised benefits to fruition in the soonest possible time, while minimizing the community upheaval caused by a massive construction project. The environmental impacts and multiplier community benefits of such a plan should be compared to the impacts and delay of public benefits that 25 years and the sole developer’s stranglehold and super block vision promises. The Draft Scope of Work must contain an investigation of the impacts and mitigations available when using Alternatives to the current Developer, especially the community's "Unity Plan" which addresses the development of the site by multiple developers to get the project built within the allotted timeframe. (Urban)
Given the current high level of development activity in Brooklyn, the SEIS should study an alternative to the 2009 MGPP in which the original 10-year build-out is achieved by dividing the Phase II site among multiple development teams through a competitive bidding process, and in so doing adding resources, expanding access to financing and reducing supplier risk. The SEIS must consider this scenario as an alternative to the 25-year build-out of 16 residential towers with few prescribed public amenities. (Brooklyn Speaks)
The Atlantic Yards project should be divided up for bid amongst multiple developers like Battery Park City. (White)
Alternatives to a single developer should be studied. (Balboza)
Reduce the risk or exposure for a single developer by bringing in partners to avoid an Extended Build-Out period. (George)
ESD also must consider the question of what project and/or combination of development partners is best positioned to actually build the project in the shortest reasonable time. Using the SEIS as a tool, ESD should consider alternate designs and densities and evaluate the benefits of working with other developers to complete a feasible project in a reasonable period of time. (Baker)
25 years is just too long. So you need to come together, maybe with partners, to help build the rest of the Atlantic Yards. (Staton)
Take the project site, divide it up into parcels and allow multiple developers to bid on land so that the MTA gets the money it deserves for this valuable land, and allow each developer to develop his own parcel in a timely fashion. The community demands the UNITY plan as it always has. (Koteen)
The ESD should reexamine the 25 year build-out and develop alternatives to delivering the project within the ten year build-out, perhaps with other developers. (Vogel)
If FCRC doesn’t want to amend The Master Development Agreement (MDA) and MGPP to a 10 year schedule, ESD should consider issuing an RFP for developers who can develop this project in ten years. (Veconi)
Given the current high level of development activity in Brooklyn, the SEIS should study an alternative to the 2009 MGPP, in which the original ten year build -out is achieved by dividing the Phase II site among multiple development teams through a competitive bidding process, and in so doing adding resources, expanding access to financing and reducing development risk. Can’t the State in the guise of the ESD and the MTA bring more public benefit to the Atlantic Yards site by utilizing the competitive process and multiple developers? Can’t a variety of housing alternatives be produced? Can the alternative to a sole source developer provide both deeper affordability, units more responsive to the needs of families seeking affordable homes, community facilities, cultural amenities such as daycare and healthcare. The SEIS must look at this scenario as an alternative to the 25 year build-out for the 16 residential towers with few prescribed public amenities. (Howard)
When we financed Atlantic Commons we put back streets and sidewalks that urban renewal had removed, something that should now be done in dealing with the Atlantic Yards site. It will be that much easier to divide it up and give it to multiple developers the way it should have been. (White)
The response:
Response: As described on page 2 of the Draft Scope of Work, the Draft SEIS is being prepared pursuant to the Order of the Supreme Court for New York County to examine the potential environmental impacts of a prolonged delay in the completion of Phase II of the Project. Neither the Project documents nor the SEIS preclude a more rapid project completion, which was analyzed in the 2006 FEIS. As per the CEQR Technical Manual, alternatives to the project should be considered that have the potential to reduce or eliminate a proposed project’s impacts and that are feasible, considering the objectives of the proposed project and those of the project sponsors. As described in the Draft Scope of Work, the SEIS will analyze the potential impacts of various construction phasing scenarios for Phase II of the Project under the Extended Build-Out Scenario, none of which would preclude a joint venture between the project sponsors and another developer or developers with respect to one or more Phase II building The SEIS will also assess the feasibility of other forms of a “multiple developer alternative” in light of the project sponsors’ contractual and property interests in the Phase II project site and whether pursuit of such an alternative would be effective in reducing or eliminating any identified significant adverse impacts.
(Emphasis added)

A joint venture, of course, refers to Forest City's planned deal with the Chinese government-owned Greenland Group to sell 70% of the project going forward.

A comment in support

One commenter, the architect of the Atlantic Yards affordable housing plan--Ismene Speliotis, formerly of ACORN, now of the successor Mutual Housing Association of New York--countered the critics:
Comment 121: We have to be very careful. We believe that carving it up doesn’t necessarily make it better, nor faster, nor will it make it more affordable. (Speliotis)
The response:
Response: Comment Noted.
Could it be built in ten years?

Others addressed the ten-year buildout as an alternative:
Comment 122: The SEIS ought to study the ten year build - out as an alternative scenario. (Levin)
If the air rights to complete the project on the scale envisioned have not yet been acquired and there is no realistic timetable for completing that task, then those options should be examined for amendment to enable completion of the project within the 10 year timeframe. (George)
We need to make sure ESD studies an alternative to get the project done in the ten year time frame originally approved. (Schindler, Cairl)
The Draft Scope of Work must be amended to study the Alternatives available and possible 1) if the current Developer stays with its intention to delay the Platform over the MTA’s Vanderbilt Rail Yard until some time past the State-approved 10 year timeframe, and 2) if the current Developer decides to use its option to buy out of its contract to do so at a later date, 10 to 25 years in the future. (Urban)
The response:
Response: The FEIS already assessed and disclosed the environmental impacts of a 10-year construction schedule as the reasonable worst case scenario for construction period impacts. The FEIS did not mandate the completion of construction in that time frame. The SEIS is being prepared to study the impacts of Phase II construction over a more prolonged construction schedule, in compliance with the Court Order described in the Draft Scope of Work for the SEIS. To the extent that the SEIS identifies additional significant adverse impacts from construction over a prolonged period, it will assess the feasibility of mitigation measures with respect to such impacts and whether there are practicable alternatives that, if selected, would avoid or reduce such impacts.
Alternate history

Another comment on what might have happened:
Comment 123: The SEIS should also consider for comparison a reasonable best case scenario of development that likely would have occurred had the ESD and the Atlantic Yards project not transferred control of the site to Forest City Ratner and instead allowed organic development already established at the site to continue.
The alternatives studied in the SEIS should also include options for constructing a platform over the MTA Vanderbilt Yard that are not dependent upon the development rights over the rail yard. (Brooklyn Speaks)
The response:
Response: As discussed in the 2006 FEIS, “the overarching goal of the proposed project is to transform a blighted area into a vibrant mixed-use community.”
Notwithstanding City policies to encourage redevelopment in this area for the past twenty-five years, the project site remains underutilized. The historic lack of development on the project site is due in part to infrastructure costs associated with platforming over the rail yard and an open rail yard on Blocks 1120 and 1121 would constitute the future condition in absence of Phase II of the Project. The presence of a single developer willing to locate a mixed-use development on the project site presents an opportunity to develop this long underutilized site. Organic development failed for decades to eliminate the blighted conditions on the Project site and therefore would not meet the objectives of the Project. In addition, this alternative is no longer feasible (and therefore will not be studied in the SEIS) because ESD acquired title to most of the Project site in 2010 and the project sponsors have significant property interests in the Phase II site. The “No Action” alternative suggested by the commenters is not appropriate for the SEIS.
(Emphasis added)

That's a bit disingenuous, since, once the development boom started and it became feasible to platform the railyard, the city and state never moved to put the Vanderbilt Yard out for bid.

Alternative history and blight

Another comment on blight:
Comment 134: The SEIS should identify this and all other permits granted to the project sponsors prior to the 2009 MGPP and determine whether the 15-year delay in construction would have the effect of increasing blight in the project area and document the impact of that extended blight. The SEIS should assess the impacts in terms of land use, socioeconomic conditions, open space, cultural resources, urban design, and neighborhood character, and propose necessary mitigations in lieu of the expected project benefits. (Brooklyn Speaks, Simon)
The response:
Response: The impacts of a prolonged construction period for Phase II of the Project will be assessed with respect to land use, socioeconomic conditions, open space, urban design, and neighborhood character. If significant adverse impacts are identified, the SEIS will discuss practicable measures to mitigate such impacts.
Gentle deadlines

Another noted the wide latitude available:
Comment 138: Another change that requires study is the extension of the timetable for Phase II from a 10-year to a 25-year build-out. As the decision by the Appellate Division noted, the project agreement does not provide for significant financial penalties for delays in Phase II construction project agreements and does not provide specific commencement dates for Phase II construction beyond the construction of one building on block 1129 and building a platform over the rail yard. This allows the developer wide latitude in the sequencing and timetable of project elements and may result in adverse impacts that could last for 15 years or more. The Draft Scope of Work’s proposed method to study Phase II in discrete snapshots is arbitrary because there are no agreements to deliver project elements in the block increments the Draft Scope of Work indicates for the SEIS. (Brooklyn Speaks)
The response:
Response: The three illustrative construction scenarios outlined in the Draft Scope are intended to be illustrative of a reasonable range of foreseeable construction sequences and schedules that may occur with an assumed 2035 build year. The commenter is correct that many other sequences and schedules are also possible and may occur. It is intended, however, that an environmental analysis of the three construction scenarios described in the Draft Scope will result in the disclosure of the environmental impacts of prolonged construction of Phase II of the Project and would enable practicable mitigation measures to be identified.
These measures would be imposed to mitigate the adverse environmental impacts of Phase II construction activities under other construction sequences and schedules.

Atlantic Yards, Response to Comments on Draft Scope for Supplementary EIS, Feb. 7, 2014


  1. The law that governs eminent domain in NYS, The Eminent Domain Procedures Law, section 406, requires a developer who has not yet constructed after 10 years to offer the property back to the condemnee. Section 401 provides for a 10-year time limit for legal proceedings for projects with staged acquisition. The 1974 legislative history of the EDPL shows the Legislature's concern about "condemnation blight", "forced sales" and "unfairness". There is no question that a planned and intended 25-year construction project based on eminent domain is illegal in NYS. The Legislature has spoken and the politicians may not (lawfully) override it.

    1. Here's the passage at issue, from Section 401:$$EDP401$$@TXEDP0401+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=53338062+&TARGET=VIEW

      (C) In the event property is to be acquired for a public project in stages, the condemnor after conducting a required public hearing for the entire project need not conduct additional hearings for subsequent stages, provided that proceedings under this article with respect to the property necessary for the first stage were commenced within such three year period and provided further, that all proceedings under this article with respect to property for the project are commenced within ten years from the dates hereinabove set forth in paragraphs one, two and three of subdivision (A).

      Here's the passage from Section 406:$$EDP406$$@TXEDP0406+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=53338062+&TARGET=VIEW
      § 406. Abandonment. (A) If, after an acquisition in fee pursuant to the provisions of this chapter, the condemnor shall abandon the project for which the property was acquired, and the property has not been materially improved, the condemnor shall not dispose of the property or any portion thereof for private use within ten years of acquisition without first offering the former fee owner of record at the time of acquisition a right of first refusal to purchase the property at the amount of the fair market value of such property at the time of such offer. In the event that the acquisition was a partial taking in fee, such offer need not be made unless such former fee owner has title to the contiguous remainder parcel at the time the condemnor determines to dispose of the property. A notice of the offer shall be served on the former fee owner by registered or certified mail return receipt requested. Such former fee owner shall have sixty days after service of such notice to serve a written acceptance upon the condemnor.


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