Given that subway ridership in New York City has been growing steadily and just grew 4.2% overall in one year, as pointed out in news coverage February 7, how could the Empire State Development Corporation (ESDC) claim an 0.5% "background growth" rate for transit when it conducted its analysis of the Atlantic Yards project?(Right: the latest MTA chart on subway ridership growth. It may have mislabeled 2006 as 2007.)
It's another example of the tension between reality and legality, in which a judge just has to agree that an agency's analysis was reasonable, without being able to second-guess it.
Questions raised
The ESDC's analysis, which also factored in numerous other planned projects, was deemed legitimate by Supreme Court Justice Joan Madden in her decision last month, but there are reasons to question it, though the petitioners did not raise all of them before the judge:
1) for baseline "background growth," the ESDC relied on a stock figure last affirmed in 2001, before a growth spurt in Brooklyn, rather than choose the option of developing an "independent estimate"
2) for the purposes of "background growth," the ESDC considered Atlantic Yards to be located in Downtown Brooklyn, which has a lower "background growth" rate than the rest of Brooklyn, even though most of the project--if not the primary subway station serving the project site--is outside Downtown Brooklyn
3) the ESDC punted when commenters on the Draft Environmental Impact Statement (DEIS) pointed out the inconvenient fact that the aforementioned primary subway station, according to the DEIS itself, had experienced leaping subway counts of 12 percent in 2005 and 13 percent the previous year.
The petitioners challenging the legitimacy of the environmental review would have had a stronger case, according to Madden's decision, had they provided solid documentation of the growth in transit. And they didn't even raise the second and third points noted above.
That's not to say that any of them would've been successful, given the judicial standard.
Go to the manual
The ESDC--or, rather, its consultant, the ubiquitous AKRF--was following the CEQR Technical Manual, which was written in 1993 "under a consultant contract" and updated by city agencies in 2001. That consultant was AKRF.
The relevant section is Chapter 3-P, regarding Background Growth Rates (emphases added):
For rail and bus transit analysis purposes, NYCT can be consulted for modeled projections that may be available on a per line, or possibly per station, basis. In the absence of such information for a given transit study area, the following annual compounded growth percentages suggested for use in the traffic and parking analyses may be used or an independent estimate of a reasonable growth rate may be developed.
No such independent estimate was developed, though, as the ESDC pointed out multiple times, it factored in a considerable amount of development to produce some sort of blended assessment of total growth, which has not been boiled down to an estimate of annual percentage increase.
- Manhattan 0.50%
- Bronx 0.50%
- Downtown Brooklyn 0.50%
- Other Brooklyn 1.00%
- Long Island City 0.50%
- Other Queens 1.00%
- St. George (Staten Island) 1.00%
- Other Staten Island 1.50%
A different location?
Nearly all of Atlantic Yards is not located in Downtown Brooklyn but "Other Brooklyn," for which the background growth rate would be twice as large: 1%. Then again, the main subway station serving the project, at Atlantic Terminal, is arguably part of Downtown Brooklyn, though other stations would clearly be in Prospect Heights. That all suggests that an adjusted background growth rate should be higher than .5%.
Indeed, the ESDC's legal Answer in the environmental lawsuit did not claim the project would be located in Downtown Brooklyn (emphasis added):
The Project will be located in the Atlantic Terminal area of Brooklyn. (Atlantic Terminal is a terminus for a major LIRR line serving downtown Brooklyn and, via subway connections, Lower Manhattan.) The project site is situated immediately to the south of Downtown Brooklyn in an area that lies at the junction of several Brooklyn neighborhoods. Portions of the project site are within the Special Downtown Brooklyn District created by the New York City Zoning Resolution.
Those portions are small. Only the segment of the project west of Fifth Avenue--the triangle of land above of Flatbush Avenue, as well as the wedge known as Site 5, which now houses P.C. Richard/Modell's and the Brooklyn Bear's Garden--would be in that special district.
Comments and response
The issue was raised in the FEIS, Response to Comments, Comment 13-6:
The DEIS assumes an annual growth of subway ridership of only 0.5% per year, the standard citywide for background growth in average times. NYC Transit Subway and Bus Rider Surveys report average weekday subway entries has grown in the last five (pre-boom) years at close to 2% a year from Brooklyn outside Downtown, and in 2004 to 2005 began an upward trajectory of 3.3%, which averages 3% for all Brooklyn. (24, 54)
It is not reasonable to assume a 0.5 percent growth rate for the No Build scenario, especially for the Atlantic Avenue Subway Station. In the DEIS, Table 13.3 shows that turnstile counts increased 12 percent in 2005 and 13 percent the previous year so the actual historical growth rate at this stage of ridership is 24 times greater than the growth rate assumes in the DEIS. (24, 299)(That came from a 9/29/06 letter from then-Community Board 2 Chairperson Shirley McRae.):
The ESDC responded:
Response 13-6: The transportation analyses in the DEIS assume a 0.5 percent per year background growth rate for travel demand during the 2006 through 2016 period. This is the growth rate recommended in the 2001 CEQR Technical Manual to account for background increases in travel demand for Downtown Brooklyn. However, it is important to note that in addition to this background growth, the transportation analyses in the DEIS also reflect the anticipated travel demand from a total of 33 discrete No Build developments in Brooklyn, comprising approximately 6,281 dwelling units, 5.19 million sf of office space, 1.14 million sf of retail space and 2.43 million sf of other space (community facility, academic, hotel, court, etc.). These developments were selected for inclusion as discrete No Build sites based on their size, completion date and proximity to the project site, and include three recent developments not reflected in the DEIS but that have been added to the FEIS analyses. Several developments were included at the request of NYCDOT which was consulted in developing the list of No Build sites. The estimates of future travel demand used for the DEIS transportation analyses therefore reflect not only a 0.5 percent per year background growth rate, but the demand that would be generated by much of the development reasonably likely to be developed in and around Downtown Brooklyn by 2016.
Despite the adjustment, it's hardly clear that the overall estimate takes in increased development in Brooklyn as a whole that would affect such stations.
And, while the growth at the Atlantic Avenue station likely depends significantly on the 2004 opening of Forest City Ratner's Atlantic Terminal mall, a development that the ESDC did include in its list of No Build sites, the agency didn't respond directly to the point about turnstile counts at that station. Those filing the lawsuit should have picked that up.
Post-FEIS comments
As I reported, the ESDC--or, rather, its consultants, AKRF--responded to comments on the FEIS. From the post-FEIS letter from Community Consulting Services:Wrong Factor for Background Growth
It is a further distortion of CEQR guidelines to assert that the omitted discrete sites are accounted for in the 0.5% annual background growth factor recommended in the CEQR Technical Manual for Downtown Brooklyn. The 20-year-old 0.5% factor in the CEQR Manual is intended to reflect trips generated by the truly small projects in the study area. The Manual specifies 1%/year for Brooklyn outside Downtown for trips generated outside the narrow study area. Since these areas are the principal source of trips within Downtown, a 10% growth over 10 years is more inappropriate [sic] for background growth than the 5% used. This is consistent with the growth in building permits issued in Brooklyn. Anyone who drives around Brooklyn and sees new construction being shoehorned everywhere knows using the 0.05% [sic]/year background growth rate used in the FEIS is irresponsible. The higher background growth would profoundly change all FEIS conclusions.
The ESDC response:The FEIS's transportation analysis included reasonable assumptions with regard to the projects likely to be built in the future without the proposed project. The rationale for the development of the list of the No Build projects is detailed in the memorandum... provided in Appendix C. As indicated in that memo, the background growth assumed in the FEIS (0.5 percent per year) would be roughly equivalent to the travel demand generated by 19,000 new dwelling units or 9 million square feet of new office space in Downtown Brooklyn....
The FEIS utilizes the background growth factor of 0.5 percent per year called for in the CEQR Technical Manual for Downtown Brooklyn. This background growth factor was approved by the New York City Department of Transportation and New York City Transit.It would've been interesting to hear those agencies defend that decision.
The lawsuit
According to p. 58 of the petitioners' complaint:
The FEIS estimates impacts on and demand for mass transit by utilizing a background growth factor of 0.5% per year in subway ridership included in the 2001 CEQR Technical Manual.
The FEIS ignores actual recent data from the past five years that showed growth factors in Brooklyn of almost 2% a year and even higher trajectories for 2004 and 2005 of almost 3% a year.
The FEIS understates the present conditions of dangerous overcrowding on subway platforms and the likelihood such conditions will be exacerbated upon Project completion particularly during arena events.
The FEIS assumes that the problems will be mitigated by the provision of additional trains by the MTA to accommodate the increased passenger loads without any analysis of MTA's ability to meet that demand or commitment to do so.
The ESDC's Answer (p. 80) essentially repeated responses already made:
As with the traffic analysis, the FEIS assumed a 0.5 percent per year background growth rate to estimate future transit demand in the absence of the proposed project (the No Build conditions), as recommended by the CEQR Technical Manual. In addition, the FEIS also considered the substantial transit ridership from No Build development projects expected to be completed by the 2010 and 2016 analysis years. Thus, in addition to the 0.5 percent per year background growth rate, the transit analyses also include the travel demand from a total of 33 discrete development projects in Brooklyn, comprising approximately 6,254 dwelling units, 5.19 million sf of office space, 1.15 million sf of retail space and 2.43 million sf of other space (community facility, academic, hotel, court, etc.). Through the inclusion of a very significant amount of development in the No Build conditions, in addition to the 0.5% general growth factor, the FEIS took a hard look at this issue [and] did not underestimate the background transit growth that will occur by 2010 and 2016.
The decision
From Justice Joan Madden's decision:
As to substantive compliance, the court must review the record to assure that the agency identified the relevant areas of environmental concern, took a "hard look" at each one, and "made a reasoned elaboration of the basis for its determination.'
Petitioners argue that in assessing the adverse impact on public transit, the ESDC relied on a "faulty assumption" as to an annual subway ridership growth rate of 0.5%, which is suggested in the CEQR Technical Manual. To support this argument, petitioners point to a single generalized comment on the DEIS, Comment 13-6, which stated that "NYC Transit Subway and Bus Rider Surveys report average weekday subway entries has grown in the last five (pre-boom) years from Brooklyn outside Downtown, and in 2004 to 2005 began an upward trajectory of 3.3%, which averages 3% for all Brooklyn." Petitioners' reliance on this single reference to "surveys," without supporting documentation, such as copies of actual surveys or an expert's affidavit, is insufficient to raise a material issue as to the ESDC's reliance on the CEQR Manual's 0.5% annual growth rate.
Madden also cited the ESDC's statement that the analysis took into account demand from other development.
What's missing
CCS's Brian Ketcham, in a 9/21/06 submission , was the source of the claim that NYC Transit subway and bus rider surveys showed a growth rate of 2% and then 3%. There's no reason to doubt it, but he did not, as far as I can tell, attach documentation, nor did the peititioners in the lawsuit.
He made larger points (right) that the numbers in the ESDC analysis couldn't hold up unless more information was provided, and in a timely manner.He added:
Alternatively, the NYC transit model can be recalibrated with the latest Brooklyn data and elimination of an arbitrary ceiling for each borough of growth of jobs and population.
The ESDC's analysis may be lawsuit-proof, given the limits on judicial scrutiny. But there's increasing evidence it's in tension with reality.
Regarding the tension between reality and legality- Yes, judges often wind up in an Alice in Wonderland world of unreality by not second-guessing the analysis of a public agencies: But that doesn’t mean that a judge “has to agree” that the unreality of an agency's analysis “was reasonable.”
ReplyDeleteAfter work, judges, just like the rest of us, go home and watch enjoyable fiction like “Law and Order” or “Michael Clayton.” But the fiction we enjoy in popular culture is regularly more real than the fiction in some judges’ opinions. In popular culture we see stories about deals that have been “fixed” and machinations of improper political influence. OK, crime investigations don’t get wrapped up in trials that seem to go by in an hour, but every public official is familiar with the phrases, “the fix is in,” “the deal is wired,” “he’s got juice” and their familiarity isn’t based primarily on works of media fiction.
We know, because of what they write, that the justices in the Supreme Court’s Kelo opinion are also perfectly aware that when public officials handle matters there might be "impermissible favoritism,” transfers that are "suspicious" and “procedures employed” that are abused or "prone to abuse" and "purported benefits" that are only "trivial or implausible." The justices mention that they know that "benefitting" a developer could be, but should not be "the primary motivation or effect of” a “development plan.”
Though they may not want to, there is no doubt that our New York justices know that they can second-guess analysis of a public agency. They don’t want to because it is an uncomfortable thing to do. Essentially they are required to make an ad hominem finding about how the public officials have conducted themselves; the courts will have to say that what they see is “unreasonable,” “in bad faith” or “arbitrary and capricious.” Either that or they need to change their presumptions- which in cases of developer-initiated, developer-driven condemnations like Atlantic Yards they probably should.
The public officials who know that a deal like this one was wired should not be surprised to be called off base. An important thing to understand is that not all deals are “wired.” Most deals handled by public officials are not. It may be strange to think that all deals, whether they are wired or not, may be subject to the same standard of judicial review, but if our judges choose not to deal with reality that may indeed be the case.
When a deal is wired, process breaks down and rationalization sets in. Public servants don’t stand up for proper process because they might lose their job or not get promoted as fast. They may believe in taking orders. But they don’t want to acknowledge that there is real harm in this. If a deal is small, a public official may disregard the skip in process as too small to pay attention to. If a deal is big, like Atlantic Yards, then the breakdown in process will lead to cumulatively bad results. Through rationalization, these bad results are probably not even acknowledged by the very public servants who have ushered through a wired deal.
Inside ESDC I am sure that Atlantic Yards seems much like the elephant did to the blind men. An expert on the arcana of our condemnation statutes is not an expert on urban design, social fabric or density. Not wanting to acknowledge that they are contributing to a bad result they readily conclude that the glinting towers of Gehry represent an exciting future for Brooklyn. So also, the numbers-cruncher. In all those numbers is there a real and human experience of the megadevelopment? And the people working on the “R-TIFC-PILOT” (pronounced “Artifice-PILOT”) arena bonds?- how far do they consider beyond that the governor says he wants this and there is a Wall Street pay-day here to make? Of course these are hard working individuals but working hard to make plausible the political optimism of an environmental impact statement for a preordained project and developer is not the same as working hard to achieve the best for the public. And then who with a regular job could have enough expertise to fully appreciate the folly of Atlantic Yards?- Even if your job was working on Atlantic Yards.
Even if you are a public servant who has doubts about the deal being pushed through so fast for political reasons, you are more likely to speak your rationalizations around the water cooler than to express doubts- You have a job to keep and need your working relationships- So the collective wisdom of crowds never has a chance to develop. That wisdom is especially not likely to develop if the governor doesn’t circulated the stacks of negative public comment about the project.
Last in line to say whether the fantasy-land mis-processing of a wired project should be rejected as an unreasonable version of reality is the reviewing judge. The judge can side with reality and reject the work of the public officials. Again, it is uncomfortable to do so- Honestly speaking the public officials who did the work will acknowledge that wired deals are a very real thing- but that doesn’t mean a judge is going to want to render a real opinion that acknowledges this failure of process.
It is rarely much of a secret that a deal is wired. The facts have a way of speaking for themselves and presenting a certain flavor. It doesn’t need to be as obvious as many hundreds of millions of public-dollar-benefit being awarded without competitive bid. The judge is likely to pick up on that flavor. So in deciding whether to do the uncomfortable thing and declare public officials to be off base, the judge must also think realistically about the implications of deciding against a wired deal. One might think of this as the-bid-for-reality’s-recognition confronting another brand of realism.
No, it is not necessary that they actually wind up there, but yes, judges often wind up in an Alice in Wonderland world of unreality by not second-guessing the analysis of a public agencies when they should do so.