Develop Don't Destroy Brooklyn (DDDB) lawyer Jeffrey Baker, a veteran of state land use tussles, wrote that government entities failed to plan for the site. Also, he charged, the agency misdescribed the project under the law, ignored key evidence about the potential for an arena in Coney Island, conducted a flimsy blight study, and proceeded in a biased manner.
Failure to plan
Baker's charges set the stage for a challenge to the exercise of eminent domain, since the U.S. Supreme Court's decision last year in the Kelo case suggests that eminent domain to support redevelopment can pass muster only if derives from a democratically arrived at plan.
The state cites the longstanding presence of the Atlantic Terminal Urban Renewal Area (ATURA), but Baker says that doesn't wash, especially since there was no request for proposals to develop the site with competing bids:
Most fundamentally, this project did not originate from any government or ESDC inspired exercise to identify an area that is blighted, or that needed an arena for professional sports. While Vanderbilt Yards has been included in ATURA, there have not been any proposals or initiatives by any governmental entity to develop the area for at least 30 years. This proposal germinated as a goal of FCR who envisioned the massive mixed-use development with an arena. FCR knew the plan far exceeded what would otherwise be permitted or even conceived of by New York City under existing laws and thus sought out the State to use its powers to override local wishes, procedures and laws to effectuate its goals.
FCR also sought the power of ESDC to use eminent domain to assure control of properties from those unwilling to sell. This is a classic instance of using the constitutional power of a taking for a public purpose as a subterfuge for one private party taking another’s property for its own gain. There was no existing public planning that lead to this project, no request for proposals and no indication whatsoever that this is anything but to assist the vision of a private developer with preferred access to politicians who can assist his goal.
The Urban Development Corporation (UDC) Act, which established the ESDC--the successor name to the UDC--is something that few people following Atlantic Yards have read (including me), but Baker has.
He argues that the state is shoehorning a private project with some civic benefits as a Civic Project, even though it will not be managed by a public entity:
ESDC has characterized this project as both a Civic Project and a Land Use Improvement Project as defined in the UDC Act. It is neither. A Civic Project is defined as one that provides facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes. A civic project must be owned or leased by a public entity. This project will be leased to a private entity. The lease to a subsidiary of ESDC and then a sub-lease to a FCR entity is not permitted. An arena dedicated for for-profit enterprises does not qualify. It will be used for the Nets, concerts and other paying activities. While the DEIS discusses the availability of the arena to local colleges and schools, there is no provision for how it will be available and at what price. The intent of the Legislature to limit ESDC’s authority to fund sports arenas is evident by the various acts the Legislature has passed where specific authorization for such facilities was enacted. None of those acts apply to this project.
He also argues that Land Use Improvement Projects require the building of low-income housing, not a mixed-use project with a fraction of low-income housing. In other words, despite the praise for this project from some housing advocates, the affordable housing would be far too little to qualify under the state definition. Baker writes:
The project also does not qualify for a Land Use Improvement Project. That is defined as a project to inter alia rehabilitate a substandard and insanitary area as provided under Article 18 of the State Constitution. Article 18 ties such activities to the provision of low-income rental housing. It does not permit the funding, approval or facilitation of other types of housing. In fact in 1989 and 1991 there was a proposed constitutional amendment to expand the powers under Article 18 to cover all types of housing. That amendment failed. ESDC cannot use its authority to fund and facilitate what is primarily a market rate based, private-ownership residential and commercial project.
Blight study errors
I've pointed out that, based on one ESDC definition in the blight study conducted as part of the General Project Plan, much of New York City could be considered blighted, because properties are not built to 60% or more of their development potential.
Another glaring error is the mischaracterization in the blight study of what constitutes a blighting characteristic. ESDC includes underutilization of lots as a factor. However there is no legal support for applying that standard to lots such as gas stations that are in active use. There is no legal or planning requirement that a lot be fully built out to the maximum permitted under zoning to avoid being considered blighted.
What about Coney Island?
As I've written, the DEIS dismisses the option of an arena in Coney Island because a site identified in 1974 is no longer available, even though as late as 2003, less than a year before Atlantic Yards was announced, Borough President Marty Markowitz was calling for a Coney Island site.
Project opponents have found two studies that the state apparently ignored. Baker says that only a Supplemental Environmental Impact Statement (SEIS) can address the issue properly:
As noted, if this is a State project, and if it can qualify as a Civic Project, ESDC can undertake the project anywhere in Brooklyn, where the stated goal is to provide a means for an arena. During the scoping period, DDDB commented that ESDC must consider Coney Island as an alternative location for the arena. The DEIS failed to consider an alternative with the arena at other locations, let alone on Coney Island. Instead, the sole mention of Coney Island is at p. 1-11 of the DEIS where it identifies it as one of the locations identified in a 1974 study but then claims it is not available due to the construction of Keyspan Park, the minor league baseball stadium.
As noted in the report prepared by Simon Bertrang of Barnacle Planning Studio for DDDB, entitled “Report on Three Decades of Locational Analysis for a Brooklyn Arena” ESDC has seriously misrepresented the facts. First, ESDC audaciously ignores reports prepared in 1984 and 1994, both of which it had access to, which further identified Coney Island as the preferred location for an arena. Second and even more glaring is the mischaracterization about the ability of Coney Island to accommodate the arena. As, Mr. Bertrang demonstrates there are at least two locations on Coney Island that could accommodate the arena. Mr. Bertrang also demonstrates that those locations are in many ways preferable to the Prospect Heights location and are consistent with adopted land use and planning documents.... The bald-faced misrepresentation in the DEIS cannot be cured by trying to address the alternative in the FEIS. This is a significant alternative that can only be addressed in a SEIS.
Should ESDC have managed this?
The ESDC is responsible for both promoting business and, in this case, conducting the environmental review under the State Environmental Quality Review Act (SEQRA).
Baker argues that this was not necessary:
We also object to ESDC’s serving in the role of Lead Agency under SEQRA. To the best of our knowledge ESDC never prepared an Environmental Assessment Form under SEQRA and never circulated a request to other involved agencies seeking their input on which agency should serve as lead for the environmental review. ESDC’s pre-disposition toward the project sponsor, Forest City Ratner (FCR) precludes its ability to undertake an objective review of the environmental impacts of the project, particularly the proper consideration of alternatives.
ESDC also violated the mandate of SEQRA that an agency begin the SEQRA process as early as possible in its consideration of the action to evaluate the environmental impacts before it is so far into the review that meaningful consideration is precluded. FCR, the State and the City announced the project in December 2003. Clearly there had been significant discussions between the parties for some time earlier. In February 2005, FCR, ESDC and MTA entered into a series of Memorandums of Understanding concerning the project. In May 2005, MTA released an RFP for the disposition of the Vanderbilt Yards and in July 2005, MTA accepted the proposal from FCR. It was not until September 16, 2005 that ESDC stated its intent to be Lead Agency (without circulating notice to other Involved Agencies), issued the Positive Declaration and initiated Scoping. By that time the project had been under active consideration by ESDC for at least 20 months. Moreover, MTA had already committed to going the FCR proposal and was proceeding to contract. Rather than putting SEQRA at the front of the process to assure environmental integrity, ESDC has placed it at the end of the process, violating both the letter and the spirit of SEQRA.