BrooklynSpeaks on Draft SEIS: "the pretzel logic of a government bureaucracy serving the interests of an influential developer"
Perhaps most notable is the argument by Empire State Development (ESD, or ESDC), the state agency overseeing/shepherding the project, that Atlantic Yards--a project "nearly unrecognizable" from that described in previous documents--is essentially surfing ongoing gentifrication. States BrooklynSpeaks:
These factors, all of which in 2006 should have argued against a finding of blight, now highlight the urgency for Atlantic Yards to deliver on its commitments for affordable housing in the shorter 10-year term originally promised. However, using the pretzel logic of a government bureaucracy serving the interests of an influential developer, the DSEIS instead argues that the strength of the Brooklyn real estate market and its attendant gentrification of neighborhoods surrounding the Atlantic Yards site form a rationale for discounting the impact of the project’s promised housing. Because the areas near the project footprint were already experiencing gentrification, the DSEIS implies that delaying the completion of Atlantic Yards won’t make things any worse than they already are.Note that the state refused to analyze how the project site would have developed if Atlantic Yards had never been approved. And that the DSEIS massages the record regarding developer Forest City Ratner’s compliance with the project’s environmental agreements.
The DSEIS--which regards only Phase 2, the 11 towers east of the arena block--was ordered after lawsuits filed by BrooklynSpeaks and Develop Don't Destroy Brooklyn challenged the state's re-approval of Atlantic Yards in 2009 without analyzing the potential impacts of a 25-year buildout allowed by contracts that were under negotiation but not unveiled at the time.
Instead, the state, which long had assumed a ten-year buildout, studied only a five-year delay. Had the state followed the law and ordered a DSEIS in 2009, it likely would have delayed re-approval of the project--including a new timetable for the use of eminent domain, saving Forest City money--and thus jeopardized Forest City's ability to get tax-exempt bonds to build the Barclays Center, which saved over $150 million.
Thus the cost of the DSEIS--likely over $1 million in fees to AKRF, the consultant hired but not paid by Empire State Development--might be seen as the cost of doing business.
Excerpts below from the summary, as well as some sections of the larger report.
The summary begins:
It is an outrage that ESDC has produced a supplemental environmental impact statement (SEIS) for the Atlantic Yards project nearly five years after it was required. If properly prepared at the time of the 2009 Modified General Project Plan, it would have led to an informed discussion about the merits of the MGPP among policy makers, elected officials, community members and the board of the ESDC. ESDC waited eighteen months after the New York State Supreme Court ordered it to produce an SEIS before even releasing a draft scope of work for review. After submitting detailed comments on the draft scope a year ago, we were deeply disappointed to find in February of this year that ESDC dismissed our request that it reconcile the 15-year project delay to which it agreed in 2009 with the project’s goals of eliminating blight and providing what the 2006 FEIS accurately described as “much needed affordable housing.”Blight, gentrification, and affordable housing
We were even more troubled to discover on March 28 that ESDC would allow only 45 days for public comments on the DSEIS—a period far shorter than it had allotted for comments on either the draft scope of work or the 2006 DEIS. Given the agency’s extended delay in complying with a court order to do what it was otherwise required to do under New York State law, ESDC’s refusal to grant our request for additional time to prepare a response demonstrates again the agency’s contempt for public participation in the Atlantic Yards process, contempt it has consistently displayed since the time it declared itself lead agency in September of 2006.
While not as long as would have been appropriate for a report of this size, our review has nevertheless made clear that ESDC has not taken the opportunity to meaningfully consider strategies that would directly address the 15-year project delay that necessitated this SEIS. Instead, in an effort to cement both Forest City Ratner’s position as sole developer and decision-maker at Atlantic Yards, as well as the firm’s right to wait up to 2035 or longer to make good on its commitments to provide affordable housing, the DSEIS attempts to recast Atlantic Yards as something nearly unrecognizable from the project that was described in previous documents leading up to its prior approvals.
Atlantic Yards is no longer the solution to blight:
The Atlantic Yards of the 2006 FEIS was a project required to “transform a blighted area” with a population in need of affordable housing into a “vibrant mixed-use community.” In contrast, the DSEIS largely paints the area surrounding Atlantic Yards as one teeming with development and experiencing rapid gentrification, despite the fact that not one unit of housing has been delivered at Atlantic Yards. It informs us that income in the area is up 56% between 1999 and 2010, from $45,231 to $70,513. Rent is up 72%, from $765 to $1,316. Not only that, but the DSEIS acknowledges these trends are not just the product of the completed Barclays Center arena, but were established long before it was even approved and are consistent with the pattern of gentrification throughout brownstone Brooklyn. The DSEIS describes in detail the building boom sweeping nearby neighborhoods, and approvingly observes increasing retail rents as evidence of economic strength and increased investment. It tells us that since the 2006 FEIS, households near the project that were vulnerable to indirect displacement have since been pushed out. And the DSEIS notes that the community near Atlantic Yards has become significantly less diverse: African American population in the area ¾ mile around the project declined from 48% to 37% from 2000 to 2010, while the white population increased from 35% to 50%.Atlantic Yards vs. nothing built?
These factors, all of which in 2006 should have argued against a finding of blight, now highlight the urgency for Atlantic Yards to deliver on its commitments for affordable housing in the shorter 10-year term originally promised. However, using the pretzel logic of a government bureaucracy serving the interests of an influential developer, the DSEIS instead argues that the strength of the Brooklyn real estate market and its attendant gentrification of neighborhoods surrounding the Atlantic Yards site form a rationale for discounting the impact of the project’s promised housing. Because the areas near the project footprint were already experiencing gentrification, the DSEIS implies that delaying the completion of Atlantic Yards won’t make things any worse than they already are. At the same time, the DSEIS makes the inconsistent and presently false assertion that neighborhoods further from the project, like Bedford-Stuyvesant and Crown Heights, neighborhoods which are now on the front lines of gentrification, will continue to experience stable rents simply because they have been the subjects of rezonings with a voluntary inclusionary housing component, with neither empirical data nor testimony from real estate professionals to back up this claim. Finally, the DSEIS brazenly suggests that its forecast of an excess of new housing units built by other developers over the forecast from the 2006 FEIS is a sort of a dividend that will mitigate the delay of the completion of Atlantic Yards’ housing in reducing pressure on rents.
Just as the 2006 Final Environmental Impact Statement unaccountably claimed there would be no redevelopment on the 22-acre site without Atlantic Yards, so too does the new document. States BrooklynSpeaks:
We requested that the SEIS consider how the project site would have developed if Atlantic Yards had never been approved in order to better understand the impact of delayed development on a site the State formally committed to a single developer for at least 25 years. ESDC refused this request. In all of its analyses of future development without the project, the DSEIS instead takes the unsubstantiated position that nothing will be built within the project footprint, even though it acknowledges a crush of development activity is happening all around the site that began before the project was approved. Fixing on such an unlikely scenario disregards a pattern of rezoning throughout Brooklyn and New York City to increase available density that was well-established during the Bloomberg administration and appears set to continue under the City’s new Mayor. (In fact, the first project—Domino—negotiated by the new administration includes affordable housing with lower income targets and larger apartment sizes than have thus far been proposed for Atlantic Yards.)The impacts of construction
The DSEIS of course does not acknowledge that many successful residential developments had already been completed within the footprint prior to Atlantic Yards’ approval, nor does it assess what impact upon the neighborhood those developments would have had if they had not been demolished to assemble land for Atlantic Yards. The gap between where we are today versus what could have happened at Atlantic Yards if ESDC had not allowed Forest City to hold the site hostage is the measure of Atlantic Yards’ drag on economic and neighborhood development in northwest Brooklyn, but we will never know its true weight. Not only has not one unit of housing been delivered in Phase I of the project (which originally was to have been completed by now), Atlantic Yards has caused displacement by razing homes and businesses which have not yet been replaced. The developer has continuously delayed building the promised affordable housing which was to make up most of the site. Nor do increased rents charged to new businesses after viable long-term businesses were pushed out represent increased economic activity. They represent increased rents. Longevity of any such businesses remain to be seen, and have not been analyzed in this DSEIS.
The BrooklynSpeaks analysis dissects some fuzzy claims in the state documenet:
The DSEIS does offer a multitude of analyses to argue that the impacts of extended construction on the local community will be either insignificant or limited to Atlantic Yards’ immediate neighbors. But reassurances about Forest City’s compliance with the project’s environmental agreements are belied not just by the general nature of the statements made in the DSEIS, but also by inconsistencies within the statements themselves. We hear that “the majority” of trucks were required to use internal staging areas to avoid queuing on public streets, even though 49% of trucks could be out of compliance for the statement to be true. We hear that signage and driver education materials led to a “substantial” reduction in idling violations, but with no specifics about the before and after conditions.(The number in each case was probably pretty small, because according to the DSEIS the violations were issued by the Onsite Environmental Monitor, a Forest City employee assigned many tasks other than watching for idling trucks.) We hear, without irony, that “a large quantity of stockpiled soil was temporarily stored in Block 1229, Lot 81 for several months without being covered or kept adequately damp (emphasis added).” The passage almost certainly refers to Block 1129, since the project footprint does not contain a Block 1229; the dirt pile in question was directly across Dean Street from residences whose tenants complained frequently to ESDC about exposure to fugitive dust during construction. And last we hear confirmation that Forest City, ESDC, and ESDC’s environmental consultant waited until Barclays Center was complete and the arena was open to discuss how to improve compliance with agreed-upon air quality protocols; too late, unfortunately, for the residents who had to live through the effects of its construction. Little in the DSEIS gives them reason to expect the future will be different from the past in any way other than the length of time they will be subjected to similar impacts from an extended build out at Atlantic Yards.What about other developers?
BrooklynSpeaks and others asked the state to examine the possibility of bidding out the site to other developers, but got the response that Forest City was entrenched, but only because the state cheated to let them do it:
ESDC’s true priorities are revealed in the DSEIS’ evaluation of the opportunity to return the completion of Atlantic Yards to its originally-approved 10-year schedule through engaging multiple developers at the site. The DSEIS’ four case studies of development projects intended to demonstrate that extended development will not harm a neighborhood show the opposite. The one example of a single-source development cited by the DSEIS has stalled, resulting in delayed retail demand on First Avenue due to development sites remaining vacant. Nevertheless, the DSEIS’ discussion of a multi-developer approach at Atlantic Yards is utterly dismissive, instead placing a premium on Forest City’s “extensive contractual and property rights in the Phase II site”. The rights in question, however, exist solely due to ESDC’s illegal approval of the 2009 MGPP, upon which the various Atlantic Yards development agreements were predicated, and thus cannot be given controlling weight. The DSEIS further explains that “FCRC affiliates also have spent hundreds of millions of dollars in performing their obligations under these contracts, and have used many of those agreements as security for financing the Project,” without noting that Forest City did so in years not only during which the legality of the 2009 MGPP was being challenged in court, but also during years in which the public awaited ESDC’s production of the court-ordered DSEIS itself after the challenge proved successful. The DSEIS doesn’t explain why contractual rights gained and expenses incurred based on ESDC’s illegal approval of the 2009 MGPP should limit the public’s right to the same scope of review that would have been possible prior to that approval.Would multiple developers slow things down?
Further, the arguments put forward in the DSEIS to justify its dismissal of a multi-developer alternative at Atlantic Yards are superficial and lack any of the depth of analysis that characterizes the rest of the document’s content. Their elliptical nature is typified by the following statement: “Since the FCRC affiliates have given no indication that either they or their secured lenders would be willing to give up their existing rights, issues arising in connection with a switch by ESD and MTA to a multi-developer alternative would take years to resolve, prolonging the construction period.” We are left to guess as to whether ESDC actually broached the subject with Forest City, or if its having “given no indication” allowed ESDC to assume no such negotiation was possible. We are told “a multi-developer alternative would take years to resolve, prolonging the construction period,” but no attempt is made to quantify such prolonged construction, let alone compare it to the minimum fifteen year delay to which ESDC agreed in 2009. ESDC has extensive experience bidding development projects, but the DSEIS whines that managing such a process at Atlantic Yards would be “complex and time-consuming;” again, no attempt is made to quantify the impact of such a process, even though ESDC must surely have dozens of case studies upon which to draw. The DSEIS continues with unsupported conjecture when it shrugs, “it is not clear that multiple developers would have an interest in the opportunity presented” at Atlantic Yards. We wonder why it isn’t clear to ESDC. The other sections of the DSEIS indicate that the agency surveyed real estate professionals and developers with knowledge of the study area about residential and retail demand and found both to be strong. But there is no mention of the agency having even an informal discussion about the potential for expanding the development teams active at Atlantic Yards, let alone circulating an RFI to gauge interest.Embracing the Greenland joint venture
The DSEIS asks we accept without analysis that shared elements at Atlantic Yards, like the rail yard platform, parking facilities, and open space are inconsistent with a multi-developer approach. But such a proposition seems inconsistent with the experience at Battery Park City and Riverside South presented in the DSEIS’ case studies, or the example of the Hudson Yards project in Manhattan, or for that matter, many other large projects, including those overseen by ESDC. The DSEIS makes no attempt to describe how multiple developers solve problems related to shared services at other successful projects, let alone explain why similar solutions wouldn’t apply at Atlantic Yards.
The DSEIS was delayed significantly, almost surely to allow a new joint venture to emerge:
Having brushed aside a multi-developer alternative with unsupported and questionable rhetoric, the DSEIS bends to embrace the proposed joint venture between Forest City Ratner and Greenland Holdings Group: “In the event that the joint venture transaction with the Greenland Group affiliate were to close, it is likely that it would inject substantial additional capital into Phase II, and thereby be more effective in accomplishing an accelerated development schedule than pursuit of a multiple developer alternative.” The logical leaps here are many, and they start with the acknowledgement that the deal in question not only hasn’t closed, but wasn’t on the horizon when ESDC released its draft scope of work, let alone when the agency was ordered by the court to produce a DSEIS. Is it “likely” Greenland would bring “substantial” capital to the project? Perhaps, but it’s equally likely the joint venture could be deadlocked by a capital crunch affecting either of the partners. No attempt is made to compare the resiliency of the proposed joint venture’s ability to complete the project with an alternative involving multiple independent developers, so there is no basis for us to agree it is more likely to result in an “accelerated” development timeline.A scornful summary: forgetting history
The complete lack of analysis behind the DSEIS’ determination that a multiple-developer approach won’t work at Atlantic Yards therefore brings us no closer to understanding the opportunity to avoid the impacts of 25 years of construction by restoring the original completion schedule of 10 years. Forest City could easily make the question moot by simply agreeing to amend the project agreements to reflect a 10-year build out. It should go without saying that doing so would also make an SEIS unnecessary. Unfortunately, the fact remains that Forest City has instead chosen to spend millions of dollars on the SEIS in order to preserve its right, based upon ESDC’s illegal approval of the 2009 MGPP, to wait until 2035 to complete Atlantic Yards.
The summary closes:
One is thus reminded of the words of the 20th century economist and reformer Leland Olds, who once characterized government’s function as “handling certain administrative details for an immensely powerful ruling class.” Yes, after five years ESDC has finally produced the SEIS that should have accompanied the 2009 MGPP; whether its effort will be seen as complying with the court’s order is yet to be determined. But to get to this point, ESDC has largely abandoned the blight characterization of the Atlantic Yards area that was so critical to the project’s original approval with its massive public subsidies. It has tried to recast the project as just one in a string of developments gentrifying Brooklyn, and given up any sense of urgency about the need for its promised affordable housing, at a time when historic efforts are being made by the current administration to do just that. It has attempted to paper over its own failure to limit the impacts of construction on Atlantic Yards’ neighbors. It has forgotten about how it has built other large projects in the past, with multiple developers and dedicated and representative project oversight.From the full comments, the procedure
Perhaps ESDC hopes the community has forgotten the past, too. But we haven’t.
Below, BrooklynSpeaks' summary (with no mention of the parallel lawsuit from DDDB that was combined) of the procedure that brought us to this point:
The Empire State Development Corporation's approval of Atlantic Yards' 2009 Modified General Project Plan (MGPP) had the effect of extending the project's build-out from ten years to twenty-five years, while adding no mechanism for effective project oversight. Faced with more than double the duration of construction impacts being borne by our communities, as well as deferral of the vast majority of public benefits for a generation, a group of BrooklynSpeaks sponsors filed suit against the ESDC and Forest City Ratner Companies (FCRC) in November of 2009.More on blight
The Sponsors' petition was filed on November 19, 2009, prior to FCRC's master closing with the ESDC and purchasers of the arena bonds, which took place on December 29, 2009. The Master Development Agreement (MDA) was not immediately released to the public. and it had still not been released by the date of oral arguments in the matter, January 19, 2010. At the hearing on that date, counsel for the ESDC implied that remedies in the MDA were sufficient to ensure Atlantic Yards would be completed on schedule—assumedly the ten-year project schedule initially studied in the environmental impact statement.
Less than a week later, on January 25, 2010, the ESDC made the MDA available to the public. It showed that remedies for completion of the full Atlantic Yards project were minimal, and only applied after 25 years. The BrooklynSpeaks petitioners were not allowed to submit the MDA to the court. Consequently, on March 10, 2010, the court found for the ESDC and FCRC.
The BrooklynSpeaks petitioners filed a motion to renew their claim based on the evidence in the MDA. Had the court ruled against ESDC, FCRC’s access to escrowed $500 million in bond financing would have been in jeopardy. The escrow period expired in May 2010. The court heard the reargument in June 2010. On November 9, 2010, the court ruled that the master development agreement called in to question ESDC’s “rational basis” in approving the 2009 MGPP, and ordered ESDC to submit findings justifying its use of 10-year build-out for its environmental analysis. On December 16, 2010, ESDC submitted findings to the court that, among other things, claimed the timelines negotiated in the master development agreement had no bearing on its expectation for the actual project schedule, but that, in any event, the surrounding communities would not suffer additional adverse impacts by more than doubling the construction duration to 25 years.
On January 18, 2011, almost one year after the first hearing in the suit, the petitioners filed a supplemental petition challenging the findings in the ESDC's response. Together with their supplemental petition and with its reply to ESDC's answer, the BrooklynSpeaks sponsors also submitted affidavits from experts in urban planning and sustainable development that countered ESDC's contention that the community would suffer no additional impacts from extended construction, and supported BrooklynSpeaks' call for a supplemental environmental impact statement (SEIS). On July 13, 2011, the court found that the ESDC's approval of the 2009 MGPP based upon the 2006 environmental impact statement lacked a rational basis, was arbitrary and capricious, and therefore illegal under New York State environmental law. Justice Marcy Friedman ordered the ESDC to prepare a SEIS, and to reconsider the MGPP in light of the findings in the SEIS.
On September 9, 2011, FCRC filed a notice of its intent to appeal the July 13 decision ordering a supplemental environmental impact statement. ESDC followed suit on September 12. The two notices stayed the order to conduct an SEIS pending appeal. The Appellate Division heard oral arguments in the appeal on February 14, 2012. On April 12, the Appellate Division issued a unanimous decision upholding the lower court's ruling that ordered ESDC to prepare a SEIS and revisit the 2009 MGPP.
On May 14, 2012, ESDC and FCRC filed notices with the New York State Court of Appeals requesting leave to appeal the Appellate Division decision. The motion by ESDC and FCRC was denied by the Court of Appeals on June 26, 2012. With no further appeals possible, the decision of the lower court ordering a SEIS and revisiting of the 2009 MGPP became final.
On December 19, 2012—nearly six months following the exhaustion of its appeals, seventeen months after the lower court ruling ordering an SEIS, and more than three years after it had illegally approved the 2009 MGPP without proper environmental review—the ESDC issued a “Draft Scope of Work for a Supplemental Environmental Impact Statement for the Atlantic Yards Arena and Redevelopment Project.” The agency set March 14, 2013 as the deadline for public comments. The comments submitted by the BrooklynSpeaks sponsors are available at http://brooklynspeaks.net/sites/default/files/scoping_response_1-00.pdf.
On February 7, 2014, nearly eleven months after it had received public comments on the Draft Scope, ESDC released “Final Scope of Work for a Supplemental Environmental Impact Statement for the Atlantic Yards Arena and Redevelopment Project.” At public meetings during the intervening months, ESDC staff members stated that the delay in producing the Final Scope was due to the complexity of the SEIS and the detail of comments received. However, the Final Scope was followed shortly by the release of the Draft Supplemental Environmental Impact Statement (DSEIS) itself on March 28, 2014, the length of which (more than 1,200 pages) indicated it had been under development for many months before the Final Scope was published. The quick succession of the release of the Final Scope and DSEIS may be in part explained by the pending sale by Forest City Ratner Companies of 70% of its interest in the remainder of the Atlantic Yards project to Shanghai-based Greenland Holdings, a developer owned by the government of China.
ESDC set a deadline of May 12, 2014 for receipt of comments, giving the public and its elected representatives a significantly shorter interval to review and respond to the DSEIS than ESDC provided for the Draft Scope, or even for the project’s 2006 DEIS. The BrooklynSpeaks sponsors requested an extension of 60 days to respond to the 1,200-page DSEIS, but ESDC denied the request.
This document contains the response of the BrooklynSpeaks sponsors to the DSEIS. It is of necessity shorter than the response we would have preferred to submit had we been allowed sufficient time to review the DSEIS and its exhibits.
The comments explain how blight has gotten worse, not better:
One of the primary purposes of the Atlantic Yards project, according to the EDPL Findings23, was the removal of blight: “The principal public use, benefit, and purpose of the Project is to eliminate the blighted conditions on the Project Site and the blighting influence of the below grade Yard.”Delayed rail yard construction
According to Section 10(c) of the New York State Urban Development Corporation Act, “blight” is “a substandard or insanitary area” which “tends to impair or arrest the sound growth and development of the municipality.” Because ESDC’s primary justification for the project was the removal of this condition, the SEIS should have studied the impacts of delaying its achievement by 15 years or more. It should also have assessed a full range of alternatives that lessen the risk the project will take 15 years longer to build than originally anticipated. In fact, the impact of the project so far has been to expand the blighted area by destroying well-maintained, in some cases historic, buildings in the project’s footprint and by increasing the cost of development in some areas. Some sidewalks are in a worse state than before, there are fewer street trees, and the view of much of the project site is undeveloped lots and poorly maintained fencing.
...One of the critical impacts of the delay of the project’s completion is that any blighted conditions that existed before would be substantially prolonged, and in fact expanded, as the project proceeds at a snail’s pace. The DSEIS completely fails to address this in any meaningful way.
In her decision of July 13, 2011, Justice Marcy Friedman explained that the ESDC’s Technical Analysis prepared by its environmental consultant failed to support its conclusory findings that prolonged development would not result in substantial additional environmental concern. She explained that “under established standards for environmental impact analysis, the duration of construction activities is a factor that is required to be taken into account in assessing the impacts on both environmental conditions such as traffic, noise, and air quality, which are amendable to quantitative analysis, and conditions such as neighborhood character, open space, and socioeconomic conditions, which are largely subject to qualitative analysis.”
Yet the new DSEIS makes the same sort of conclusory and unsupported findings as the old one, dismissing completely the obvious concern about extended and increased blight by making the faulty assumption that existing blight would have remained for 25 years without the project, despite the rapid and escalating pace of economic and real estate development in the area.
Moreover, because the project began by demolishing whole blocks of a thriving neighborhood which included well-preserved and in some cases recently remodeled residential and commercial buildings and thriving businesses, the impact of the project has been to add to the blighted conditions of the neighborhood rather than to remediate them. The SEIS therefore cannot possibly be considered complete until it has analyzed the impact of the additional blight created by the project, as well as the substantial delay in remediating the blighted conditions that were originally promised.
Another significant factor that should have been considered is the current economic condition of the surrounding neighborhoods, and the extremely fast pace of development in the area. Had the ESDC not approved this project – i.e., the Future Without Phase II – the result would not have been no development, as the DSEIS presumes, but likely far faster development, by multiple developers, of the surrounding area.
The result of the ESDC’s approval of the project has been to make the entire 22-acre site off limits to developers, thereby ensuring its continued – and expanded – blighted condition for more than a decade into the future. t.
The comments note:
A main source of the blight alleged in the original project plan was the Vanderbilt rail yards. According to the 2006 Blight Study, the rail yard “has long been a blighting influence in the immediate area,” that creates a “physical and visual barrier that separates the neighborhoods of Boerum Hill, Fort Greene, Prospect Heights, and Park Slope.”Delayed open space
...According to Atlantic Yards’ Master Development Agreement (MDA) , construction is not even required to begin to cover the rail yard until 2025.24
At the time of this writing, FCRC can still forfeit its letter of credit and not proceed with the building of the permanent rail yard or the platform over the rail yard. If they choose to proceed, the railyard need not be covered until 2035. In the meantime, blight has increased in the area because ESDC used the threat of eminent domain to help FCRC purchase the buildings that existed along the west side of Vanderbilt Avenue between Atlantic and Pacific Streets. FCRC then razed those buildings and excavated the area to allow for relocation of the rail yards for purposes of its project. Now, that area as well as the rest of blocks 1121, 1120, and potentially a remaining part of block 1119 need an expensive platform before development can begin. This leaves open the possibility that this area, which was not blighted before, will now remain blighted and a negative impact on surrounding neighborhoods for decades to come.
The delay in FCRC taking control over the MTA property has also resulted in no one being in charge of many of the sidewalks lining that property, particularly on Atlantic Avenue and on Pacific Street. The result is the area is frequently strewn with trash and no one shovels the sidewalks.
Also, because FCRC has delayed construction of the permanent rail yard, the operations offices, construction staging, and employee parking for the rail yard have been moved to block 1129. These uses compete for space with potential project improvements, including promised temporary green space. In addition, extended construction of the rail yard itself has degraded pedestrian facilities by eliminating and/or reducing sidewalks for an unanticipated period, and cutting street trees, most especially on Pacific Street between 6th Avenue and Carlton Avenue.
The DSEIS ignores all of these aspects of the project, which expand and prolong the very blight that the project was allegedly designed to address.
The comments state:
The Blight Study specifically says that the Atlantic Yards project would address blight by adding “at least 7 acres of publicly accessible open space” as mitigation for blight in the project area. The ESDC now ignores that the open space promised will be delayed for up to 15 years or more. This is an extremely important and significant impact on the environment and on the surrounding communities.A lack of environmental controls and oversight
As Justice Friedman explained in her July 2011 decision, quoting the CEQR Technical Manual: “[a]
construction impacts analysis for open space should be conducted . . if access to the open space would be impeded for an extended period during construction activities.” She further noted that, according to the ESDC’s Technical Analysis, “the provision of eight acres of publicly accessible open space is a ‘key component of the Project’” as it will “connect the neighborhoods to the north and south of Atlantic Avenue, for the first time in a century. The court went on to criticize the Technical Analysis for making faulty assumptions about the negligible impact of the prolonged construction period, performing a “perfunctory analysis” of the impacts of extended delay, and for failing to examine the years of potential delays before commencement of the Phase II buildings, and thereby creation of the open space designed to accompany them.
Pursuant to the court’s order, the SEIS should have specifically addressed the impact of the substantial delay on open space, taking into account the delays of commencement of the Phase II buildings. It should also have considered that multiple developer projects could have added open space to the area much more quickly.
From the comments:
Extended adverse significant impacts are described in the DSEIS for the community near the site, but the DSEIS minimizes them by defining the area of impacts as narrow geographically, and the degree of impacts as mitigated through environmental commitments. The DSEIS acknowledges that some construction-related activity has not complied with environmental commitments and that construction oversight has been flawed. It does not state non-compliance has been minimized to the extent that is possible.Trucks and idling
Our comments on the draft scope of the SEIS asked ESDC to take into account the actual experience of construction as it assesses the future impact of an extended project build out. Some residents living near the project are in the ninth year of living with adverse impacts from construction, and have documented non-compliance not only with the MEC, but also with New York City and State laws throughout that period. This is nearly the length of time originally anticipated for project construction.
As part of our comments on the draft scope for the SEIS, BrooklynSpeaks included “Evaluation of Construction Air Quality and Noise Commitments and Mitigations, Atlantic Yards, Brooklyn, NY, ”
prepared by Sandstone Environmental Associates for the Prospect Heights Neighborhood Development Council in June 2012. It was provided to the State and the developer at the time of its release. It contains examples of non-compliance drawn from the hundreds of examples on Atlantic Yards Watch, (a community-based initiative and website to protect the health and livability of neighborhoods impacted by Atlantic Yards and the Barclays Center), and recommends improvements it asks the State to put in place.
The report prepared by Sandstone was based on quarterly reports provided by Empire State Development Corporation, some of which (it was discovered after the report’s release) had been edited prior to being provided to Sandstone, incident reports submitted by nearly 100 separate community members to the website Atlantic Yards Watch, and a construction log kept by the Dean Street Block Association that predates the website. Nearly 1,000 construction-related incident reports were filed on Atlantic Yards Watch in the period between its founding in mid-2011 and the opening of Barclays Center in September 2012. Documentation of non-compliance with the MEC has continued since.
Our comments on the scope asked for the SEIS to include an impartial, transparent analysis of the root cause of so many violations of agreed-upon environmental commitments, and for it to present a credible plan to ensure full compliance during future phases of construction. We asked for the analysts to study the oversight mechanisms defined in various project agreements to find why they were not followed or sufficient. Perhaps in response, the DSEIS delineates the structure of oversight including the Onsite Environmental Monitor (OEM), the State’s own Environmental Monitor (HDR), and the various plans that are required by the MEC and/or State and City regulations.
Either the DSEIS does not give a hard look at these oversight mechanisms, or it glosses over problems identified in its analysis by not disclosing them to the public. It is telling in this context that as the DSEIS describes, ESDC and the project sponsor sat down to improve compliance with the MEC only after the hard deadline of opening Barclays Center and the Carlton Avenue Bridge had passed, supporting the notion “higher ups” in the State tolerated non-compliance as a means of helping the developer meet its own deadline.
...There have been many gaps in staffing and plans. For extended periods key elements of the oversight detailed in the MEC, and ESDC’s 2007 oversight regime for Atlantic Yards, have not been in place. This includes the Ombudsman, FCRC’s Community Liaison, and the OEM. At the start of the project, the State does not appear to have had its own Environmental Monitor. ESDC does not have an office on site. The project cannot be monitored from 633 3rd Avenue.
One of many examples of lax oversight regards trucks:
Until community members consistently documented problems, truck behavior at the site continued to be disruptive, and there was considerable idling. In September 2011, only hours before FCRC’s OEM publicly stated protocols for trucks had been “significantly improved” at the construction site, a community member documented a large number of violations of the protocols. This was one and a half years after the arena groundbreaking, and part of a long pattern of non-compliance with commitments detailed in the MEC. The DSEIS notes the OEM improved its vigilance, suggesting there was room for improvement.Problems with construction noise
This is part of a pattern in which obvious, and sometimes major, problems identified by the community are responded to slowly.
Although HDR cites an estimate by the OEM that 98% of trucks followed proper routes, throughout the period of intense construction activity from the arena ground-breaking to the arena and Carlton Avenue Bridge’s opening, trucks traveled on illegal routes and often idled on streets near the site, and continue to do so. Because truck companies and the way they serve construction differ over time, during arena construction, ESDC was prone to identify the numerous violations of truck protocols as “isolated incidents” rather than as patterns. The DSEIS should recognize that for the experience of the community, especially those areas where truck violations repeat, the experience is a pattern. The DSEIS should then propose measures which would improve compliance with truck protocols across the scope of the project site.
...A community member documented cement trucks in a no standing zone for a lengthy period on a day in May 2013 in which the two-week look-ahead had warned a major concrete pour was to occur at the site of building B2. The documentation was not posted to Atlantic Yards Watch and instead was forwarded by email a week or so following the event. When forwarded to the State and Developer, the State replied, “we did have consultants out there during the time you are talking about on the 17th of May. … We were aware of what the trucks were doing; they did follow the proper protocol… the trucks were not idling. They were only there when they when they were transferring, when one truck was coming in to work and another truck was moving.” Later, the Community Liaison for FCRC responded by email saying that they were aware of a problem on the 14th when there was a run through of the concrete pour, but that things had gone smoothly on the 17th. Because Atlantic Yards Watch has a webcam, it was able to verify that the problem was indeed on the 17th and that the trucks had stayed stationary for some time. This discrepancy was pointed out to the State and the developer. The developer responded by finally acknowledging the problem was on the 17th. The DSEIS should assess the opportunity to use remote cameras to monitor compliance with truck protocols in areas where construction is taking place.
From the comments:
The DSEIS identifies a significant adverse impact from construction noise that project-wide may now last 2035 years instead of 2016. Individual residents may be exposed to many more years of adverse construction noise impacts than anticipated in the FEIS. Anecdotally, no matter whether it is for 3 or 23 years, no single adverse impact alters the quality of life of residents more than construction noise, particularly during extended hours work. More than 300 individual incident reports citing noise impacts, many of them associated with construction, have been filed on Atlantic Yards Watch. Some incident reports complain about sleepless nights and the need to take sleeping pills. The adverse effects...Extended hours?
Simple disclosure of significant adverse impact in the FEIS and SEIS appears to excuse the project sponsor and State from any further responsibility to ameliorate the impact of construction noise. It is this lack of flexibility that has come to epitomize the sense the “higher-ups” who run the project are beyond accountability to the community their decisions affect. Many residents report they have the noise attenuation measures (double glazed windows and air conditioners) the MEC currently requires, and they are still kept up at night. Some homes have already been impacted by years of adverse construction noise impacts. Adverse noise impacts from construction are in the process of unfolding for a ninth year, without any project building except Barclays Center currently completed. To anticipate an additional 20 or more years of construction without improvements to noise mitigations is hard for some to fathom.
Even though the need for extended hours work was claimed by the FEIS to be infrequent, hard deadlines necessitated multiple shift and weekend work for much of the construction period extending from 2010 to 2012, some of it 24/7. The nature of the site—which includes an operating rail yard owned by a State Public Authority, an arena and two major thoroughfares–puts the community at high risk of extended hours work. In order to facilitate modular construction for B2, the project sponsor has announced that up to four deliveries will occur each night of the workweek, a circumstance entirely unanalyzed in the FEIS.
According to the response, after-hours work is common but not monitored well:
According to the Sandstone report, “The 10-year construction schedule discussed in Chapter 17 of the FEIS implies that construction may last into the early evening up to three days per week approximately every other week. The frequency of evening and night work was not specified, leading the reader to believe it would not occur frequently or for extended periods of time. Chapter 17 did not identify periods when consecutive days of late night work would occur for weeks or months at a time. HDR’s quarterly reports from 2009 through June of 2011 did not address construction hours except to state that all material and equipment deliveries appeared to be conducted during allowable workday hours.”The impact of the arena block
The absence of detail in HDR’s quarterly reports about extended hours work may be because the OEM appears rarely if ever to have been on site for more than the morning to mid-afternoon shift. That was the case even though extended hours construction was the rule, not the exception for much of the period of the arena, temporary rail yard and Carlton Avenue Bridge construction. The adverse effects of the work that took place at night were not captured by the oversight of the OEM or HDR. The State must not have understood the work that was taking place caused impacts, for it not to have assured oversight was on site during extended hours work on a regular basis. With the advent of modular construction, the construction plans to the public entail up to 4 deliveries a night 5 nights a week.
The DSEIS details that the number of OEM staff will now be adjusted according to the level of construction activity, including any after-hour and/or weekend construction work, to ensure a proper level of monitoring coverage is maintained33. The degree of staffing, the employer, and the amount of time required to be on site is not explained. The Sandstone report recommends as a project improvement that the State’s Environmental Monitor and the OEM should visit the site during extended hours work one or more times per week using an unpredictable schedule. A log of extended hour work, including the time, type of work, etc., should be included in quarterly reports. The justification for the need for extended hours work should be documented, and the rationale should be part of the construction notices to the community. The DSEIS should detail specifically how much oversight is to be provided and who is providing it. The onsite environmental monitor should not be employed by and report only to the project sponsor or contractors.
The lack of oversight during nighttime work has shifted the onus of monitoring to the community who must follow up on their own. And for the community, getting concerns acted upon can be difficult, especially if the decision to respond lies with the project sponsor or the contractor. The following is one of numerous incident reports filed on Atlantic Yards Watch by a community resident repeatedly woken up at night by a carting company removing garbage from the construction site.
“This is an ongoing problem, 4 or 5 nights a week between 3:30 and 5:00 a.m. generally a company called Action Environmental comes by to empty the dumpster with loud beeping, engines running, dumpsters clanking etc. Nearly every week night (if not all of them).
...The State should ensure there is a way for community concerns to be validated punctually. The new amended MEC should specify that within 24 hours of a community member’s nighttime noise complaint to either the ESDC or the project sponsor, the appropriate office will take the necessary steps to validate the community concern, and if valid take the maximum necessary steps practicable to mitigate the problem.
BrooklynSpeaks notes how the arena block has changed in ways that were never described in previous documents and thus evaded analysis:
They include a reduction in the below-grade capacity of the arena, the introduction of elevators for the loading dock, a “pad” adjacent to the arena, changes to the arena structure that have resulted in concert noise leaking from the arena, and the delinking of the construction of the arena from non-arena buildings on the block.Vibrations
Some of these changes have produced adverse noise impacts for the community. Concert noise has leaked from the arena since its opening one and a half years ago, inconveniencing residents. The project sponsor has announced a plan to reduce noise by adding a green roof to the arena. The addition of the roof may help those residents on higher level floors impacted by the noise. The SEIS should identify a construction timeframe for this repair, and detail the construction plans which may be impactful.
The reduction of the capacity of the arena below grade, and the addition of loading dock elevators in 2009 have resulted in parking anticipated to be below grade in 2006, now being brought to grade on the arena block. Not only buses, but production trucks, campers, arena patrons, NBA staff, horses and generators have been located on the “pad” adjacent to the arena. The “pad” was created without any public notice even though parking at grade on the arena block was never disclosed in any environmental analysis. The sometimes noxious noise effects of the pad spill over to residents, including the back windows of residents on 6th Avenue. Its existence is an unanticipated construction-related impact and should be mitigated to the maximum extent practicable.
The response takes issue with a claim in the DSEIS regarding vibrations, that “there has been no recorded incident of a threshold exceedance caused by construction activity to date.” The DSEIS attributes any incident to local sources, like a boiler. However:
The experience of many property owners and tenants conflicts with the interpretation in the DSEIS.Better mitigation for open space
Property owners, and some tenants, have expressed concern about vibrations. The Sandstone report submitted with our comments on the scope of work for the SEIS refers to a number of them. For example, two residents in buildings near each other on Carlton Avenue with the NYCL historic district reported property damage within several weeks of each other at a time in which work generating vibrations was occurring nearby. The Department of Buildings was unable to place responsibility on any factor. The two incident reports associated with these incidences can be found on Atlantic Yards Watch at http://www.atlanticyardswatch.net/node/691 and http://www.atlanticyardswatch.net/node/708
In the case of these incidents, no exceedance was identified by the vibration monitors in place. DOB inspectors expressed dissatisfaction to a local resident with the amount of information provided to them by the project sponsor. The consequence is that assignment of responsibility for the cause of the problem largely rests with the project sponsor who, if culpable, would be required to pay for repairs. It is our understanding that the project sponsor has paid for the cost of some repairs, but it is apparently not willing to acknowledge responsibility. This apparently enables the project sponsor to control the assessment of the extent of the damage and the cost of the repair. The vibration monitors are placed by a contractor of the project sponsor, maintained by that contractor, and the results are provided only to the project sponsor.
Based on information provided by NYC DOB at the time of these incidents, no reports of vibration monitoring had been received by NYC DOB for some time, and any reports provided were summaries.
The DSEIS should recommend the MEC be amended so that
the project sponsor is required to provide actual (rather than summary) vibration monitoring reports to NYC DOB, ESDC and HDR;
documentation is provided property owners if they request it;
a prompt response to a resident’s complaint of damage is provided and the damage is documented and correlated to the construction activities at that time;
construction activities that may cause severe vibrations in nearby residences are identified and mitigation measures are implemented proactively to prevent damage; and
night time activities that may cause vibration are banned as vibration are more disruptive when residents and their families are trying to sleep.
From the comments:
The SEIS offers three options for mitigation of the extended construction period impact - the Lowry Triangle, Times Plaza and Culyer Gore Park. Two of those mitigations, Lowry Triangle and Times Plaza, are adjacent to highly trafficked roadways. Times Plaza is at the nexus of three of Brooklyn’s busiest streets, making it both noisy and not easily accessible. Culyer Gore Park, while perhaps a quieter location, requires project workers and residents to traverse busy Atlantic Avenue. Any location offered as a mitigation for passive open space should be analyzed for noise impacts to determine whether the proposed space exceeds the CEQR guidelines for noise for passive open space.Parking issues
Taking into account the factors described above—from the significant noise impacts on interim open space—the potential for shifts in the delivery of building gsf, and the extended loss of trees, the mitigations should be far more robust than what has been offered. First, to remedy the adverse impact of Phase I, the DSEIS should propose mitigations not dependent on Phase II tasks. Further, it should provide off-site open space to Phase II residents as a mitigation for what its own analysis acknowledges: no effective practicable mitigations can be developed to effectively address construction noise impacts on Phase II open space. Any mitigation for open space should be easily accessible to workers and residents from the project site, should be a distance from busy roadways, and removed from construction noise. In addition, mitigations should be developed in consultation with community stakeholders, including local residents adjacent to the project who have already experienced construction impacts and the demands that have been placed on local open space during Phase I construction.
The DSEIS should consider the following in particular:
The potential to expand Dean Playground by incorporating part of the neighboring HPD parking lot as additional passive open space; and
Adding an attendant for Dean Playground’s comfort station for the duration of the construction of the project.
From the comments:
The DSEIS does not recognize or propose mitigations for the negative impact on the community created by construction workers’ parking on residential streets. The DSEIS concludes that a total 392 vehicles of peak parking demand by construction workers can be accommodated in on-site and off-site facilities, including recognizing that some workers will search for “nearby on-street” parking (i.e., on nearly neighborhood streets)41. During construction of the arena, there were numerous reports of negative neighborhood impacts from parking and environmental violations by construction workers.Overcrowded subway?
Just as did the 2006 EIS, the DSEIS continues to disregard the documented negative environmental, traffic and parking impacts of black cars and limos during arena events. The DSEIS recognizes that pedestrian access on the south side of Atlantic Avenue from 6th Avenue to Vanderbilt Avenue will be restricted during construction of nearby buildings (3H-32). This is also the current designated “holding area” during arena events for black cars and limos. But the DSEIS includes no recognition of the additional congestion and parking issues that will be created from black cars and limos no longer having temporary parking space on the south side of Atlantic Avenue.
The comments point to a potential impact on the B/Q subway station at 7th Avenue and Flatbush Avenue:
The DSEIS, like the 2006 FEIS, continues to disregard the projected impact of the additional 4,508-4,932 dwelling units in Phase II on the 7th Avenue subway station. The reason the 7th Avenue subway station was not analyzed in 2006 was asserted, without evidence, in the 2006 FEIS (July 2006 Draft Report page 13-54; November 2006 Final Report pages 13-50 and 13-54): “Trips using B or Q trains enroute to Manhattan from the project’s residential components in the AM would enter the subway system at the Atlantic Avenue BMT subway station, and would not pass through the maximum load point on these routes which is located north of the 7th Avenue BMT subway station.” The DSEIS does not repeat this unsubstantiated, and patently unsupportable, assertion.What's the baseline?
Instead, the DSEIS summarizes on page 4D-3 that:
Subway line haul conditions “…through Downtown Brooklyn (emphasis added) are expected to operate below their practical capacity in the peak direction in each peak hour”; and
The full build-out of the project “…would not generate more than an average of 3.7 new subway riders per car in any peak hour,” which is below the 5.0 CEQR analysis threshold.
Once again, the DSEIS assumes that few residents living in Phase II will utilize the already-overcrowded 7th Avenue Manhattan-bound platform in the AM peak. This demonstrates the fallacy of using average figures and misperceiving how subway users value the trade-off between walking the additional distance to the Atlantic Avenue BMT station entrance versus attempting to be the “last rider” who can board a train at the nearer 7th Avenue subway station. A substantial number of the Phase II buildings are to be sited on block 1129, whose southwest corner at Carlton Avenue and Den Street is only four short Brooklyn blocks from the 7th Avenue station entrance at Carlton Avenue and Park Place, rather than two and one-half long Brooklyn blocks from the new Atlantic Avenue station entrance located on the west side of the arena.
BrooklynSpeaks points to a fundamental fallacy in the framework for analysis, the use of a chimerically completed Phase I, which at this point only includes the arena and one in-progress tower, rather than three or four additional towers:
In its comments on the Draft Scope for the SEIS, BrooklynSpeaks requested that the baseline analysis of begin at the time the SEIS was conducted, not at the time of the completion of Phase I. The basis for that request was that there is no justification for moving the baseline to a point the project agreements don’t guarantee will happen, especially given that changes to the project affect the first phase of construction in ways not anticipated or analyzed in the FEIS. Even if Phase I of the project is completed in full, the project agreements enable the construction of Phase I to overlap with Phase II in multiple scenarios. The DSEIS ignored this request and the result is a failure to analyze construction plans or impacts for the most likely construction sequences, including the one most recently announced by the developer.The developer has recently announced the construction of two or three more towers, including one on the arena block.
Modular construction--announced by Forest City as the plan for all the towers, but not being used on the next towers--gets short shrift:
The extent of modular construction in Phase II is unknown at this time. Assuming that it is used—both the DSEIS itself and public statements by the developer indicate that it will be—the report says nothing about how many buildings will be constructed this way or what their locations will be. So, while the developer appears to be reserving the right to use modular construction as much or as little as it likes, the DSEIS doesn’t contain any detailed information about the extent or specifics of modular use, hence it cannot properly analyze the impacts created by its use. No effort has been made to project different scenarios, e.g. impacts under a 20% modular construction assumption, or 30%, or 50%, etc. Essentially, Atlantic Yards will proceed without a full and thorough analysis of the impacts of modular construction.Nor is there an analysis of the reduced tax revenues and workers' compensation.
Indeed, setting the tone is this highly ambiguous statement from the Introduction of the Executive Summary of the DSEIS: “It is possible that some or all of the buildings planned for Phase II would be constructed using prefabricated, or modular, construction techniques; however, the SEIS assumes that each building would be constructed using the conventional construction method. Where relevant, differences in potential impacts related to conventional and modular construction are discussed qualitatively.” But in fact, the DSEIS offers no meaningful analysis of these differences as they pertain to socioeconomic conditions, transportation, air quality, and noise.
Nor does it analyze the delivery of modules, which is presented as not atypical nighttime heavy truck traffic:
Originally described as one delivery per night, at a meeting at Brooklyn Borough Hall in December 2013, FCRC announced it would be increased to four (between 10PM and 5:30AM).
According to the FEIS, "a certain amount of extended hours, nighttime work, and weekend construction would likely be required," but nighttime work is defined as ending at 11PM. It appears that deliveries are not being defined as actual construction work, although with respect to construction impacts experienced by neighboring residents, there is no meaningful difference.
Wide-load deliveries are indeed supposed to take place at night, per New York City building regulations and the NYC Department of Transportation’s stated preference. Meanwhile DOT has given their approval for 4 deliveries per day between 10 AM and 2 PM, although this information is not included in the DSEIS.
The DSEIS also does not specify whether there will be weekend deliveries or not.
How can the impact of these night and daytime modular deliveries be evaluated? Since there are no statistics provided in the DSEIS about the number of deliveries that would occur for conventional construction, there is no benchmark against which to measure the impact of modular deliveries. The DSEIS claims that, “On-site building activities using modular techniques is expected to have shorter construction durations and fewer daily on-site workers and truck trips as compared with the use of conventional construction techniques, and would therefore be less disruptive overall.” The DSEIS should present hard data to back this up.
Meanwhile, some 17 months after the ground breaking for B2, only 122 of 930 modules have been installed to date. So the noise impact for those living near B2 is likely to continue for an extended period of time. If the pace of modular construction doesn’t pick up when this method is used for buildings in Phase II, the impact of these nighttime deliveries will be very significant for nearby residents.
Nowhere does the DSEIS analyze the difference between noise impacts created by daytime and nighttime deliveries. Four (4) hours of daytime delivery activity (between 10 AM and 2 PM, as suggested by DOT) is not the equivalent of four hours of nighttime activity.
The DSEIS states, “While night-time delivery of modules would occur, these deliveries would not be expected to result in a perceptible increase in noise levels (as measured by Leq(1h)). Operation of the trucks used for night-time module deliveries in close proximity to noise receptors would result in increases in noise level for short periods of time. Such increases in noise level would occur only when the trucks would operate adjacent to the noise receptor and would be comparable in magnitude and duration to that which would result from operation of any heavy truck on the roadway adjacent to the receptor (emphasis added). Consequently, these short-term increases in noise level during night-time module deliveries would not constitute a significant adverse noise impact. Overall, it is not expected that the use of modular construction for the Phase II buildings would result in significant adverse noise impacts beyond those identified for conventional construction in Chapter 3J, “Construction Noise.” Implicit in this is that, in the absence of night-time module deliveries, local residents would normally be experiencing noise impacts from heavy trucks on their streets. But that’s not correct. Heavy truck traffic is not the norm on streets in the local area.