I still question that contention, but additional evidence suggests that, however much the project received "preliminary approval," the public sure didn't know it.
The grandfather clause
To grandfather in a project, the rule requires a governmental entity to have taken "official action evidencing its preliminary approval of the project before October 19, 2006."
While the Modified General Project Plan for Atlantic Yards was formally approved in December 2006 by the Empire State Development Corporation (ESDC), a slightly different version, the General Project Plan (GPP), had been "adopted" (according to an agency press release) by the ESDC on July 18, 2006.
Though that ESDC board action in July was likely cursory, the IRS rule still seems tailored to comments filed by the city and state regarding the definition of "preliminary approval." Thus I (and most others) concluded that the ESDC's "adoption" of the GPP qualifies as "preliminary approval" under the regulation.
Even less deliberation
However, there's another indication that the ESDC's action was even less deliberative than adoption.
Developer Forest City Ratner's Atlantic Yards web site does not use the term "approval" to describe the action at that July ESDC board meeting.
It does not use the term "adopted."
It uses the term "released," adding that the ESDC's action "formally started the public review process."
In other words, the board's action was a starting point of sorts--not the beginning of the agency's involvement, but the beginning of the public review. Writing in this blog on 7/19/06, I described the main action of the day as the "release" of the Draft Environmental Impact Statement.
The New York Times's coverage that day used "release":
The report’s release sets into motion a public comment period. The project faces a final vote by the development corporation’s board this fall, and if it is approved, it will face a vote by the state Public Authorities Control Board.
The IRS may well consider that "preliminary approval." But the public sure didn't know it.
From the official AY web site
The official Atlantic Yards web site has a page on the Public Process (click on graphic to enlarge):
Atlantic Yards was approved through an extensive environmental review pursuant to the New York State Environmental Quality Review Act (SEQRA). The project received its final approvals in December 2006. Demolition and preparatory work has been under way at the project site since February 2007.
Important Dates in the Public Approval Process
On December 20, 2006, the PACB unanimously approved the Atlantic Yards development, marking the culmination of a years-long planning and public approval process.
On December 8, 2006, the ESDC Board of Directors gave final approval to the FEIS and the General Project Plan (GPP). The development was referred to the Public Authorities Control Board (PACB).
On November 27, 2006, the ESDC Board of Directors certified the Amended and Corrected FEIS, which addresses a number of comments inadvertently left out of the November 15th FEIS.
On November 15, 2006, the ESDC Board of Directors certified the Final EIS (FEIS) as complete. The FEIS studied a reduced program and other modifications to the proposed project as recommended by City Planning, as well as comments received from the public on the DEIS. The FEIS included a list of all substantive comments on the DEIS, and responses to each.
On September 27, 2006, the New York City Planning Commission voted on recommended changes to Atlantic Yards, and FCRC accepted these recommendations, which included, among other things, a reduction in the project’s overall size by 8 percent.
In August and September 2006, the ESDC hosted a public hearing and two community forums, during which members of the public had the opportunity to comment on the record regarding the DEIS. Hundreds of people participated in the public comment period for the Atlantic Yards DEIS, which closed September 29, 2006. Every substantive comment submitted during this process was responded to directly in the ultimate Final Environmental Impact Statement.
On July 18, 2006, the ESDC released the Atlantic Yards DEIS and GPP, formally starting the public review process and opening a public comment period that closed September 29, 2006.
On Friday, March 31, 2006, the ESDC released the Final Scope of Analysis, which was modified based on comments received at the Public Scoping meeting in 2005. In the Final Scope several areas of analysis were expanded or otherwise modified, and the proposed development was reduced in size by 475,000 gross square feet and in height by 231 feet or 23 stories. These reductions were made primarily in the market-rate housing component and did not affect the affordable or middle-income housing component.
A public meeting was held by ESDC on October 18, 2005, to discuss the Draft Scope of Analysis, which explains in detail the environmental issues that will be analyzed in the DEIS. The public submitted comments on the Draft Scope at this hearing and in the weeks following.
On September 16, 2005, the Empire State Development Corporation (ESDC) established itself as lead agency pursuant to statute and is responsible for overseeing the public review process. The public review includes a scoping process to determine what will be studied in the Draft Environmental Impact Statement (DEIS) and the Final Environmental Impact Statement (FEIS).
Note that the chronology provided in a letter to the IRS from the city and state includes one example of governmental action that, at least according to developer Forest City Ratner's web page on Public Process, does not constitute a serious part of the public process.
The city and state cite a February 2005 Memorandum of Understanding as an example of preliminary approval. That document certainly described what was contemplated, but it was non-binding.