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Will ESDC accept part of CBN's DEIS response that missed deadline?

With only 66 days to respond to an enormous Draft Environmental Impact Statement (DEIS) that took many months to prepare, the Council of Brooklyn Neighborhoods (CBN)--along with other community groups and local elected officials--had asked the Empire State Development Corporation (ESDC) to extend the deadline for two months in the public interest. After all, smaller projects like Yankee Stadium had gotten four months, albeit from a city, not state agency.

The ESDC only nudged the deadline back a week, so CBN and the consultants it hired, thanks to city and state grants, were staying up late as Sept. 29 approached. The submission CBN produced on deadline date was hefty, but at 219 pages, actually a little smaller than anticipated.

That's because 45 pages were missing, six chapters: cultural and historic resources, urban design and visual resources, shadows, noise, neighborhood character, and construction impacts.

After the missing chapters were pointed out--I told CBN I had noticed that some chapters shown in draft form were absent from the final submission--the group quickly assembled a supplementary submission on Oct. 2 and delivered it to the ESDC, citing a "production error." (The supplement is now incorporated into the main CBN filing.)

"We regret the oversight and appreciate the opportunity to provide these materials and complete our Response as intended," CBN said.

Up in the air

So, will the ESDC accept this? Spokeswoman Jessica Copen told me, "It's under review by our legal counsel."

Attorney Jeffrey Baker, who represents Develop Don't Destroy Brooklyn and has been involved in environmental review procedures before several agencies, has already argued that the ESDC should have extended the deadline date.

Baker told me that state and local agencies often grant waivers when the error is clerical as opposed to meeting the deadline altogether. "In this case it is clear that the comment period is too short (legally and practically) and people were scrambling to put together their materials," he said pointing out that CBN has received city funds to help in its review.

CBN also received state funds--for a total of $230,000--giving it the capacity to offer more professional heft than any other group in its response to the DEIS. Thus CBN has pointed out that government officials intended that the group's response represent the public interest, and should be considered in full.

Copen said she couldn't predict when ESDC would issue its determination on the issue.