Skip to main content

Does AY "exist"? State judge dismisses lawsuit that challenged AY deadline and sought new hearing

A “smaller” lawsuit involving the Atlantic Yards project has been dismissed by a State Supreme Court justice, who rejected charges by tenants in two AY footprint buildings that the Empire State Development Corporation (ESDC) is violating a provision of state law that requires disposition of properties within a decade and should hold another hearing because the project has changed considerably.

As I wrote, during a hearing on the case in June, Justice Jane Solomon seemed skeptical of the main thrust of the argument made by attorney George Locker, who has filed two previous (and unsuccessful) cases on behalf of the 13 tenants, who live in two Forest City Ratner-owned buildings on Dean and Pacific streets. Her five-page decision (PDF) gave no credence to the petitioners’ claims, despite significant public doubts about the project’s timetables. Locker said an appeal would be filed.

(Develop Don’t Destroy Brooklyn has organized and largely funded two other pending cases, one challenging the use of eminent domain and the other challenging the legitimacy of the environmental review.)

Main goal of the case

The petitioners sought to annul the State Funding Agreement signed September 12, 2007 to the extent it permits the acquired property to remain undeveloped for a period of more than ten years--twelve years, actually, before penalties--and it to the extent it “purports to give [ESDC] the option to reacquire such property as remains undeveloped for four years,” according to the decision. This issue had not been raised in any previous case.

No standing

The ESDC, however, argued that the petitioners lack standing and failed to state a claim. Solomon noted that, in a prior case involving Locker’s clients, the Appellate Division did agree that petitioners had standing under Section 103 of the Eminent Domain Procedure Law (EDPL), which defines a “condemnee” as “the holder of any right, title, interest, lien, charge or encumbrance in real property subject to an acquisition or proposed acquisition.” However, the section of the EDPL at issue in this case (406), makes reference only to “fee owners” but not to “condemnees” or tenants, she wrote.

During the court hearing in June, Philip Karmel, the attorney for the ESDC, pointed out that the law says the condemnor would have to sell the property back to “the original fee owner”--which would not include the petitioners.

Abandonment questions

Does the language in the funding agreement violate EDPL 406? Solomon wrote:
The statute is focused on abandonment of the project, and subsequent disposition of the property to a private owner. There simply are neither allegations nor proof in petitioners' papers that the project is or will be abandoned, that the property will not be timely improved or that it is intended to be conveyed to a private user without giving the fee owner a right of first refusal.

In court, Karmel argued that the law applied only to projects in which the condemnor announced plans to acquire property in multiple stages. Regarding Atlantic Yards, ESDC “intends to acquire all property at once,” he said.

Has project changed enough for hearing?

The petitioners also wanted the court to require another public hearing, based on the law establishing the ESDC, because the project has changed significantly. Though Atlantic Yards, when approved in December 2006, was anticipated to take a decade, there’s no start date for Phase 1, and that the developer has 12 years from the delivery of property to complete that phase without penalty, and there’s no timetable for Phase 2, which would included 11 of 16 towers. “The bulk of the Atlantic Yards project, as far as the operative contracts are concerned, does not exist,” Locker argued in court.

Solomon, despite expressing surprise in the court hearing that eminent domain had not commenced despite “all of this publicity” about the project, dispatched the petitioners’ argument in one sentence:
Similarly, as argued by Respondent, there is no evidence that the challenged agreement is not consistent with the contemplated project and existing general project plan so as to bring into play the need for a public hearing.


In court, ESDC lawyer Karmel had said that further documentation would emerge, requiring the developer to use “commercially reasonable efforts” to move forward.

Solomon took no notice of the statement in court by ESDC co-counsel Charles Webb that condemnations would begin “in October or November of ’08,” a date that seemed unrealistic--and now seems even more unrealistic, given pending legal cases.

The "elephant in the room"

Locker commented yesterday, “There is an elephant in the room. It is a project that does not exist. Choose to see the elephant, and the legal reasoning follows. Choose to ignore the elephant, and you have Judge Solomon's decision.”

He added, “In a prior but unrelated decision, the Appellate Division ordered ESDC to hold a hearing when the project that it had proposed was changed. Judge Solomon avoided the hearing issue entirely by saying it's the same project. How come Bruce Ratner won't contractually commit to a ten year project, Phase II has no time limit, but Judge Solomon finds there's no evidence it's not the same project?”

“So we will appeal to the Appellate Division, and see whether the Appellate Division chooses to see the elephant in the room. Maybe by then, the Court will have decided that the area is not blighted,” he said, referring to the September 16 argument in the case challenging the AY environmental review. “We will also give the Appellate Division the opportunity to decide whether the project exists at all."

Locker also questioned whether the judge was correct regarding whether his clients have standing in the case, which is more of a stretch--and could preclude the appeals court from even considering whether the project exists.

Comments

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 …

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 Matzav.com 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…

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

Click on graphic to enlarge. This is post-dated to stay at the top of the blog. It will be updated as announced configurations change and buildings launch. The August 2014 tentative configurations proposed by developer Greenland Forest City Partners will change, and the project is already well behind that tentative timetable.


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…

Not quite the pattern: Greenland selling development sites, not completed condos

Real Estate Weekly, reporting on trends in Chinese investment in New York City, on 11/18/15 quoted Jim Costello, a senior vice president at research firm Real Capital Analytics:
“They’re typically building high-end condos, build it and sell it. Capital return is in a few years. That’s something that is ingrained in the companies that have been coming here because that’s how they’ve grown in the last 35 years. It’s always been a development game for them. So they’re just repeating their business model here,” he said. When I read that last November, I didn't think it necessarily applied to Atlantic Yards/Pacific Park, now 70% owned (outside of the Barclays Center and B2 modular apartment tower), by the Greenland Group, owned significantly by the Shanghai government.
A majority of the buildings will be rentals, some 100% market, some 100% affordable, and several--the last several built--are supposed to be 50% market/50% subsidized. (See tentative timetable below.)

Selling development …