Skip to main content

Is "adoption" really "approval"? Looking more closely at ESDC board action in July 2006

In the Atlantic Yards chronology, the meaning of one action by the Empire State Development Corporation (ESDC) is a key to whether tax-exempt bonds for the project would be grandfathered in under new Internal Revenue Service (IRS) rules.

Last week, I (like others) concluded that the ESDC's vote to adopt the Atlantic Yards General Project Plan (GPP) at its 7/18/06 meeting likely constituted what the Treasury Department requires as "official action evidencing its preliminary approval of the project before October 19, 2006."

The issue may be more ambiguous. "Adoption" might also be seen merely as an agreement to release a "proposed" plan for public comment. On the other hand, "adoption" of a plan that receives no comment means it will go into effect, which does indicate approval.

(All emphases in text below are added.)

City/state argument

A May 8 letter to the IRS and Treasury Department from the ESDC and the New York City Industrial Development Authority (IDA), which clearly influenced the new regulations, stated:
On July 18, 2006, the ESDC Board approved the General Project Plan (the "GPP") for the Atlantic Yards Land Use Improvement and Civic Project. Adoption of a General Project Plan is ESDC's method of initially approving a project.

Then the letter switched to the word "approved":
We note that the GPP was approved prior to the IRS release of the Stadium PLRs [Private Letter Rulings, which enabled Yankee Stadium and the new Mets stadium] or the Proposed Regulations.

At the meeting

So what exactly happened at the meeting? I attended, and remember the board action as rather pro forma; the real action came afterward in a press conference, during which ESDC Chairman Charles Gargano answered questions not about the funding mechanism but the Draft Environmental Impact Statement and the process for ultimately project approval.

I asked ESDC for a copy of the meeting minutes (PDF), which totaled nine pages and consist mainly of resolutions rather than narrative. The minutes indicate that ESDC board members asked "several logistical questions" and that one wanted to make sure that the agency would use its condemnation powers for a public benefit. There was no apparent discussion of the plan to finance the arena, nor any indication that it was a novel strategy pending approval, in the case of the Yankees and Mets, by the IRS.

The ESDC's adoption vote was a prelude to another action: for purposes of the public hearing(s) required by Section 6 and Section 16 of the New York State Urban Development Corporation Act.... the proposed General Project Plan.
(Emphasis added)

Had the GPP been approved in preliminary fashion or had it simply been proposed? The vote was to approve a resolution that contained the "adoption" of the GPP for the purposes of a public hearing.

Looking at Section 16

Section 16 describes how the ESDC must file copies of the adopted GPP in local municipalities, how it must announce notice of the plan, and how it must announce a public hearing, It adds:
(c) the corporation shall conduct a public hearing pursuant to such notice, provided that such public hearing shall not take place before the adoption or the filing of such plan by the corporation;

In other words, the act of adoption may be akin to "filing," or on the continuum with it. Rather than a preliminary approval, it sounds like an administrative action.

Then again, other language in Section 16 buttresses the argument for preliminary approval: (d) upon a written finding of the chief executive officer of the corporation that no substantive negative testimony or comment has been received at such public hearing, such plan shall be effective at the conclusion of such hearing; provided, however, that if any substantive negative testimony or comment is received at such public hearing, the corporation may, after due consideration of such testimony and comment, affirm, modify or withdraw the plan in the manner provided for the initial filing of such plan in paragraph (a) of this subdivision.

If no negative testimony or comment is heard, the plan becomes effective, so no additional approval is needed.


Executive Law § 807, regarding Local land use programs, uses "adoption" as similar to "enactment," rather than filing:
Upon approval, or approval subject to conditions by the agency, and upon valid enactment or adoption of such law or ordinance, the authority of the agency over such uses and facilities pursuant to sections eight hundred six and eight hundred nine of this article shall be vested in the local government,

Looking at the press release

In the 7/18/2006 press release regarding Atlantic Yards, the term "adopted" was used, but there was no mention of "approval":
Charles A. Gargano, Chairman of Empire State Development Corp., today announced the ESDC Board adopted the General Project Plan (GPP), made Land Use Improvement Project Findings and Civic Project Findings available, accepted the Draft Environmental Impact Statement (DEIS), and authorized a public hearing for the Atlantic Yards project in Brooklyn, NY.

The resolution noted that the ESDC found the DEIS "satisfactory." There is no mention in the resolution regarding the GPP that it was considered adequate or satisfactory.

ESDC statements

It's worth noting that the ESDC, in its public statements on similar projects, has used inconsistent language.

In a 4/5/2006 press release on the Javits Convention Center project, both words were used:
Empire State Development Chairman Charles A. Gargano announced today that the General Project Plan (GPP) for the redevelopment of the Jacob K. Javits Center has been adopted by the New York Convention Center Development Corporation (CCDC) and the Empire State Development Corporation (ESDC).

“Today’s approval marks another step forward in the redevelopment of the Jacob K. Javits Center,” CCDC Chairman Gargano said. “The new convention center will provide New York with the world-class, state-of-the-art facility our great city deserves, capable of hosting more conventions, exhibitions and trade shows...."

This year, regarding Columbia University's expansion plan, the 7/17/08 press release did not use the word "approved":
In adopting the General Project Plan, the ESDC board accepted the findings of a neighborhood conditions study conducted by the consulting firm AKRF Inc. and a comprehensive audit of that study by Earth Tech Inc. Both reports found that the area surrounding the project’s 17 buildings was mainly characterized by aging, poorly maintained and functionally obsolete industrial buildings, with little indication of recent reinvestment to revive their generally deteriorated conditions.

The word "accepted" may describe the essence of the board's action; it has neither the time nor expertise nor function to seriously analyze long reports prepared by specialized consultants.


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 + FAQ (post-dated pinned post)

This graphic, posted in February 2018, 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--but not yet approved--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…

The passing of David Sheets, Dean Street renter, former Freddy's bartender, eminent domain plaintiff, and singular personality

David Sheets, longtime Dean Street renter, Freddy's bartender, eminent domain plaintiff, and singular personality, died 1/17/18 in HCA Greenview Hospital in Bowling Green, KY. He was 56.

There are obituary notices in the Bowling Green Daily News and the Wichita Eagle, which state:
He was born in Wichita, KS where he attended public Schools and Wichita State University. He lived for many years in Brooklyn, NY, and was employed as a legal assistant. David's hobby was cartography and had an avid interest in Mass Transit Systems of the world. David was predeceased by his father, Kenneth E. Sheets. He is survived by his mother, Wilma Smith, step-brother, Billy Ray Smith and his wife, Jane all of Bowling Green; step-sister, Ellen Smith Alexander and her husband, Jerry of Bella Vista, AR; several cousins and step-nieces and step-nephews also survive. Memorial Services will be on Monday, January 22, 2018 at 1:00 pm with visitation from 10:00 am to 1:00 pm Monday at Johnson-Vaughn-Phe…

Some skepticism on Belmont hockey deal: lease value seems far below Aqueduct racino; unclear (but large?) cost for LIRR service

As I wrote for The Bridge 12/20/1, The Islanders Say Bye to Brooklyn, But Where Next?, the press conference announcing a new arena at Belmont Park for the New York Islanders was "long on pomp... but short on specifics."

Notably, a lease valued at $40 million "upfront to lease up to 43 acres over 49 years... seems like a good deal on rent for the state-controlled property." Also, the Long Island Rail Road will expand service to Belmont.

That indicates public support for an arena widely described as "privately financed," but how much? We don't know yet, but some more details--or at least questions--have emerged.

An Aqueduct comparable?

Well, we don't know what the other bid was, and there aren't exactly parcels that large offering direct comparables.

But consider: Genting New York LLC in September 2010 was granted a franchise to operate a video lottery terminal under a 30 year lease on 67 acres at Aqueduct Park (as noted by Gov. Andrew Cuomo).


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…