Skip to main content

Daily News's "Abuse of process" editorial an abuse of facts

An editorial in today's Daily News about Atlantic Yards, headlined Abuse of process, deserves a close look because of the numerous errors.

(It was quickly distributed as part of Forest City Ratner's "Atlantic Yards News.")

Blight inflation

It begins:
Opponents of the Atlantic Yards project - developer Bruce Ratner's $4 billion plan to build housing and a pro basketball arena on 22 blighted acres in Brooklyn - have had their days in court. And they have lost over and over again.

While the extent of blight is a matter of extreme debate, especially the state's assertion that a building not developed past 60% of its development rights is blighted, no one disagrees that the state did not designate all 22 acres as blighted. The Second Circuit Court of Appeals opinion noted that "unblighted parcels" may be added "as part of an overall plan to improve a blighted area.”

Of course that "overall plan" came from Forest City Ratner. Note how the Daily News seems to have forgotten the "Jobs, Housing, and Hoops" rationale.

"Wacko attempt"

The editorial continues:
On Friday, a federal appeals court summarily tossed a wacko attempt to block the state from using eminent domain to buy a handful of privately owned properties on the site. The opponents argued that Ratner had co-opted or corrupted every official who likes the idea of building 2,250 units of affordable housing there, along with a ton of market-rate housing and a home for the Nets.

Wacko? Well, U.S. Magistrate Judge Robert M. Levy a year ago wrote that the case raised "serious and difficult questions regarding the exercise of eminent domain under emerging Supreme Court jurisprudence."

The state would not be using eminent domain simply to buy a "handful of privately owned property" but also to acquire buildings owned by Forest City Ratner itself in "friendly condemnations" that would bypass a more onerous process of removing tenants with rent-stabilized leases.

Given that the state’s projections "ignore a whole lot of public costs,” as the plaintiffs' attorney said in court, it's pretty hard to figure out the public benefit, and thus find clues to whether Ratner would benefit.

As for the argument of co-option and corruption, as the court summarized it, the plaintiffs "contend that a 'substantial' motivation of the various state and local government officials who approved or acquiesced in the approval of the Project has been to benefit Bruce Ratner."

I'm not sure that they have to (or could) prove it, but favoritism may arise simply out of failure to do due diligence, as I wrote.

Supreme Court Justice Anthony Kennedy, whose nonbinding concurrence in the Kelo v. New London decision inspired some of the legal challenge, wrote that a “court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose.”

The Second Circuit Court's decision ignored Kennedy’s observation that Kelo was OK because “the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known” and “evidence that respondents reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand.” Both of those conditions are absent in the Atlantic Yards case.

Who's generous?

The editorial continues:
Such is the nonsense that the opposition, Develop Don't Destroy Brooklyn, has peddled for four years. As Ratner reached generous settlements with scores who lived or owned property in the development zone, the group charged that he had ensnared Mayor Bloomberg and Govs. Pataki and Spitzer into fabulously and unjustifiably enriching him.

While some (but hardly all) settlements may have been relatively generous for the market, they are dwarfed by the vast increase in development rights--and thus profits--that Forest City Ratner would get via the state override of zoning. (An expert in New York magazine estimated a billion-dollar profit.)

Misreading EIS review

The editorial continues:
The federal judges rejected the claim out of hand, just as a Manhattan Supreme Court justice two weeks ago threw out a suit by the group alleging state officials did a faulty environmental review in order to, you guessed it, make Ratner wealthy.

No, the charges of faulty environmental review don't claim a motive. They claim that, among other things, the state ignored extensive public comments refuting the blight study. And that the crime study component of the blight study was bogus--an issue on which the judge punted.

Nine month delay?

The editorial continues:
Now, the opponents are getting set to appeal again - and appear determined to wait the maximum of nine months before filing papers. This is the height of cynicism. The group is dragging its feet for one reason: to try to delay Atlantic Yards to death.

Except a lawyer for the petitioners says it would take three or four months, not nine months.

About that $12 million

The editorial concludes:
Every month costs Ratner $12 million, and financing has become increasingly difficult in the subprime mortgage credit crunch. The developer has asked the Appellate Division to force Develop Don't Destroy to make its case on an expedited basis.

That must happen. The opponents are engaged in an abuse of process that threatens great public harm. The court should order them to proceed forthwith so the matter can be decided on the merits once and for all.

That $12 million a month figure comes from Forest City Ratner's lawyer, who unaccountably doubles the $6 million a month figure provided by an FCR executive. And that $6 million figure is completely untenable as well, as I wrote.

Abuse of process

Are the petitioners' efforts to have their legal claims heard more of an abuse of process than the state's claim that there would be no redevelopment without Atlantic Yards or the state's willingness to claim blight at the edge of the Vanderbilt Yard (now magically removed) without pointing to who might be responsible?


  1. I don't understand why the Daily News is pro-eminent domain. Large segments of the left and right were unhappy with the Supreme Court's Kelo decision - even some of the justices who were in majority didn't like the decision but felt constrained by the law.

    Did the News not get the memo?


Post a Comment

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

No, security guards can't ban photos. Questions remain about visibility of ID/sticker system.

The bi-monthly Atlantic Yards/Pacific Park Community Update meeting June 14, held at 55 Hanson Place, addressed multiple issues, including delays in the project, a new detente with project neighbors,concerns about traffic congestion, upcoming sewer work and demolitions, and an explanation of how high winds caused debris to fly off the under-construction 38 Sixth Avenue building. I'll have more coverage.
Security issues came up several times at the meeting.
Wayne Bailey, a resident who regularly takes photos and videos (that I often use) of construction/operations issues that impact residents, asked representatives of Tishman Construction if the security guard at the sites they're building works for them.
After Tishman Senior VP Eric Reid said yes, Bailey asked why a guard told him not to shoot video of the site, even though he was on a public street.

"I will address it with principals for that security firm," Reid said.
Forest City Ratner executive Ashley Cotton, the …

Atlantic Yards/Pacific Park graphic: what's built/what might be coming (post-dated pinned post)

This graphic, posted in November 2017, is post-dated to stay at the top of the blog. It will be updated as announced configurations change and buildings launch. Note the unbuilt B1 and the proposed shift in bulk to the unbuilt Site 5.

The August 2014 tentative configurations proposed by developer Greenland Forest City Partners will change. The project is already well behind that tentative timetable.

How many people are expected?

Atlantic Yards/Pacific Park has a projected 6,430 apartments housing 2.1 persons per unit (as per Chapter 4 of the 2006 Final Environmental Impact Statement), which would mean 13,503 new residents, with 1,890 among them in low-income affordable rentals, and 2,835 in moderate- and middle-income affordable rentals.

That leaves 8,778 people in market-rate rentals and condos, though let's call it 8,358 after subtracting 420 who may live in 200 promised below-market condos. So that's 5,145 in below-market units, though many of them won't be so cheap.


Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…

Atlanta's Atlantic Yards moves ahead

First mentioned in April, the Atlantic Yards project in Atlanta is moving ahead--and has the potential to nudge Atlantic Yards in Brooklyn further down in Google searches.

According to a 5/30/17 press release, Hines and Invesco Real Estate Announce T3 West Midtown and Atlantic Yards:
Hines, the international real estate firm, and Invesco Real Estate, a global real estate investment manager, today announced a joint venture on behalf of one of Invesco Real Estate’s institutional clients to develop two progressive office projects in Atlanta totalling 700,000 square feet. T3 West Midtown will be a 200,000-square-foot heavy timber office development and Atlantic Yards will consist of 500,000 square feet of progressive office space in two buildings. Both projects are located on sites within Atlantic Station in the flourishing Midtown submarket.
Hines will work with Hartshorne Plunkard Architecture (HPA) as the design architect for both T3 West Midtown and Atlantic Yards. DLR Group will be t…

Atlantic Yards/Pacific Park in 2017: no new towers, unfilled affordable units, Islanders prepare to leave, project timetable fuzzy

My 2018 preview.

It was another wait-and-see year for Atlantic Yards/Pacific Park, with one big twist--the beginning of a slow goodbye for the New York Islanders--but continued delays for towers, a lost (mostly) 421-a subsidy for condos, and new skepticism about unfilled not-so-affordable housing units.

So ongoing questions linger regarding the project's pace, affordability, and even future ownership.

In my 2017 preview, I predicted--not exactly going out on a limb--that two and likely three more towers would open, though it would be unclear how fast they'd lease up and sell.

Indeed, we've learned that the middle-income below-market units at 461 Dean (which opened in 2016) and 535 Carlton have leased very slowly, while it's too soon to assess progress for commensurate units at 38 Sixth. (At 535 Carlton and 38 Sixth, middle-income units make up half the "100% affordable" buildings.) Meanwhile, many apartments are up for rent at the 550 Vanderbilt condo buildin…