Without explanation, a state appellate court has rejected the request by the Empire State Development Corporation (ESDC) and developer Forest City Ratner (FCR) that the appellate arguments in the case challenging the Atlantic Yards environmental review be heard before this summer. (The decision, dated Feb. 26, was received today by the parties.)
Instead, the five-judge panel of the Appellate Division, First Department, ordered the petitioners, whose case was denied by Judge Joan Madden in a ruling January 11, to file their legal papers by July 7, in anticipation of the court hearing oral arguments in the September Term.
The defendants, as expected, did see the court deny the petitioners' motion for a preliminary injunction to block the demolition of the Carlton Avenue Bridge.
But the court's timetable for the appeal represented an implicit denial of fervent arguments made by the ESDC and FCR.
Arguments for speed
ESDC attorney Philip Karmel had argued, "Delay in construction would delay completion of the Project, postponing it significant public benefits. It is thus critically important that the appeal be perfected so as to be argued before this Court's customary summer recess."
FCR attorney Jeffrey Braun had written, "The issue presented by ESDC's cross-motion is straightforward: Is the public interest in the Atlantic Yards project of sufficient importance to compel the parties to brief this appeal on an expedited schedule that will allow this Court to hear the appeal this spring? The answer to this question is, resoundingly, yes."
Braun continued, "Petitioners make no commitments as to when they will perfect this appeal. Instead, all that they say is this: Currently, it is anticipated that the appeal will be perfected approximately three to four months after the Notice of Appeal was filed on January 18, 2008."
(That would be, at the latest, May 18, 2008.)
"Even if this equivocal non-commitment is viewed as a commitment, it would mean that, at the earliest, the appeal would be heard by this Court during its September 2008 term, which is approximately seven months from now," Braun stated. "This case should not be treated in such a lackadaisical manner."
Braun pointed to the apparent contradiction in the petitioners' asking for what they believe to be sufficient time to file the appeal and the contention that construction work on the site represents irreperable harm: "If the petitioners truly believed that the work was causing irreperable harm, they would be perfecting this appeal expeditiously and pressing for a prompt determination."
Precedent, or evaluation?
The court didn't offer any explanation for its procedural ruling, so it's unclear whether the judges were simply drawing on precedent regarding similar cases or making a judgment regarding the likelihood of the public benefits, given other factors also causing delay, such as the credit crisis and the difficulty in getting bond financing for the affordable housing.
It's not clear how much the timetable has been pushed back. It might take two years to build the arena, once construction starts, but it would be unwise to open the arena until bridges around it have been reconstructed, a three-year process likely not complete until January 2011.
In a best-case scenario, a ruling on behalf of the defendants next fall or winter, would have to be coupled with the U.S. Supreme Court's unwillingness to hear a challenge to the eminent domain case, as well as a dismissal of the emiment domain plaintiffs' effort to bring the case to state court.
That would have to be followed by condemnation proceedings to acquire remaining property and those buildings would have to be demolished.
Nets to Newark?
In other words, the 2011-12 season in Brooklyn may now be the realistic best-case scenario for the opening of the Barclays Center, leaving the Nets three more years in the Izod Center, where crowds have been sparse.
Could Bruce Ratner and fellow team owners be thinking a bit harder about the option of moving--[updated] at least temporarily--to the Prudential Center in Newark? It would cost them a significant penalty as of now, but state officials in New Jersey, thinking they might have a chance of keeping the Nets, might be amenable to negotiation.