That means that demolitions of four properties, which had been scheduled to begin Wednesday but were postponed pending Madden's decision, can proceed on Monday, as will a protest organized by Develop Don't Destroy Brooklyn (DDDB), which leads the coalition of neighborhood and civic groups challenging the environmental review. The protest will be in front of 191 Flatbush Avenue, between 5th Avenue and Dean Street, at 8 a.m.
(At right, three of the four buildings at issue.)
Four other buildings are scheduled for demolition before the May 3 hearing. Madden noted that she was not making a decision on the ultimate merits of the case, but noted that a "TRO is a drastic remedy which should be sparingly used," with a higher burden of proof than a preliminary injunction.
What was needed
The community groups argued that, by creating empty lots, it would intimidate the remaining residents of the footprint, including those who are challenging the project in three court cases. The Empire State Development Corporation (ESDC), the main defendant, and FCR argued that the petitioners couldn't demonstrate sufficient harm.
Madden's decision suggests that the petitioners would've had to present more compelling evidence, such as photographs and renderings that depicted the neighborhood, before and after, from above.
Petitioners fail to make a sufficient showing that they will suffer immediate and irreparable injury if a TRO is not granted before the hearing... Petitioners essentially argue that the demolition of the nine buildings will 'irrevocably harm the neighborhood.' However, petitioners fail to substantiate this argument with factual support showing how removal of these nine buildings will affect the nature and character of the area. Specifically, petitioners provide no details as to the composition of the neighborhood, its geographical boundaries, or any valid analysis to support their allegations.
Madded noted that the petitioners have no property interest in the buildings and do not challenge the assertion that the work is being done according to the proper permits.
Madden's decision suggests that, had the organizers of the suit been able to prepare it a month earlier, the petitioners might have been in court to argue for a preliminary injunction before Forest City Ratner had proceeded with all but the initial demolition activity.
That might not have stopped the demolitions--a TRO, with its high threshold, likely still would have been necessary, while a decision was pending, and a high bond might have been required even if the judge were to rule on the preliminary injunction--but it would've precluded some charges by the defendants.
“If anyone has been dilatory, it is petitioners, who for months have trumpeted their intention to seek an injunction halting demolition but did not apply for a T.R.O. until eight weeks after FCRC’s public announcement of the work’s commencement," Forest City Ratner attorney Jeffrey Braun stated in court papers this week.
The developer has already demolished one property, a former auto repair facility at 179 Flatbush Avenue, west of Fifth Avenue. That demolition was announced on February 20, two months after the Public Authorities Control Board approved the project, which was 12 days after the Empire . On March 1, FCR announced its intention to demolish 12 additional buildings, beginning with asbestos abatement. The actual demolition of the buildings was to begin last week.
The lawsuit challenging the legitimacy of the state environmental review was filed on April 5. On April 11, Forest City offered the petitioners a schedule that indicated that demolition of four buildings would begin on or after April 18, and four more during the week of April 23. Hence the filing of the longshot TRO.
Costs of delay
In court papers earlier this week, Forest City Ratner and the ESDC argued that delay was not in the public interest, because it would delay the provision of public benefits in the project. Additionally, FCR said that delay would cost $4.15 million a month and interfere with an intricate schedule to get the arena built by 2009--even though the project is already behind the stated construction schedule.
Madden did not address the issue of whether the construction schedule is realistic.
DDDB calls on Spitzer
“We are confident in the merits of our challenge to the state’s approval of the project and that once our claims are heard we will prevail–sending the project back to the drawing board,” said DDDB legal team chair Candace Carponter in a news release. “It is also clear that as long as owners and renters challenging the state’s right to seize private property by eminent domain succeed in federal court, the project cannot be built. Because of the irreparable harm these demolitions will bring, we call on Governor [Eliot] Spitzer, Mayor [Mike] Bloomberg and other elected officials to use the ESDC’s funding leverage to halt the demolitions unless the project is proven to be feasible.”
Given the support that Spitzer and Bloomberg have shown for the project, such action is doubtful.
An Associated Press story on Madden's decision, published by the New York Daily News and Newsday, inaccurately described the petitioners as "a group of property owners and tenants facing eviction," stated that there would be at least 600 subsidized condo units (actually, only 200 would be onsite and that pledge is not memorialized in any state documents), and suggested that a magistrate judge's decision in the federal eminent domain suit is unlikely to be rejected (though U.S. District Judge Nicholas Garaufis seemed willing to revisit the issues).