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Chutzpah! FCR tried to evade paying $159K restitution for trees, saying (unscheduled) open space would compensate

Preparing to demolish 86 street trees around the Atlantic Yards footprint, Forest City Ratner contended last year that it did not need to pay $159,000 in partial restitution to the city because the trees in the Atlantic Yards open space eventually would “add much more value than the trees that will be removed during construction.”

That argument required chutzpah, given that no part of the Atlantic Yards open space would be constructed until the project’s Phase 2, for which there is no announced timetable and no penalties (as of yet) for delays.

The city Department of Parks and Recreation, perhaps mindful of that timetable, held its ground, requiring the requested payment, and Forest City Ratner complied.

The story is told via letters received by the Council of Brooklyn Neighborhoods (CBN), after filing a Freedom of Information Law (FOIL) request with the Parks department. The entire document is nearly 30 pages (below).

(Photo by Steve Soblick. Click on all graphics to enlarge.)

Tree inventory gives value

A 5/18/07 letter from FCR’s Rebecca D’Eloia to Brooklyn Forestry Director Andrew Rabb accompanied a “Tree Inventory and Valuation For the Brooklyn Arena Project” report by the arborists Urban Forestry, LLC.

The report detailed the number and conditions of 86 street trees (though D’Eloia, in her letter, said 85). Given the age, size, and conditions of the trees, it valued their replacement at $246,180 or 328 new trees, three inches in diameter.

Six trees, all on or near the arena block, were valued at more than $10,836, with four of them valued at more than $12,364.

The report depicted the current street tree layouts, provided by the project landscape architect, Olin Partnership, as well as preliminary layout of the trees proposed for the eight acres of open space.

Numbers and timing

Forest City Ratner plans 116 street trees, but due only at the end of each phase, as I reported in September. That's a pretty good deal for the developer, since Phase 1 could take 12 years after the close of litigation and the delivery of property by eminent domain, and there's no timetable for Phase 2.

(Photo from The Footprint Gazette, which has photos and videos from April tree removal.)

That means the 33 street trees for the arena block wouldn’t come until the arena and (all?) subsequent buildings are finished. There would be an additional nine open space trees on the arena block.

The rest of the trees would come in Phase 2, and the street trees would be planted only after major construction.

Block 1120, the block bounded by Pacific Street and Sixth, Carlton, and Atlantic avenues, would have 171 trees, including 39 street trees and 132 open space trees.

And Blocks 1121/29, the superblock bounded by Dean Street and Carlton, Vanderbilt, and Atlantic avenues, would have 449 trees, including 44 street trees and 405 open space trees.

“The approved Design Guidelines for the project require a minimum of 290 trees within the open space, although the current layout provides for 546,” D’Eloia wrote. “The current street tree layout would provide for an additional 116 street trees.”

Parks focuses on street trees

The Parks department, however, was only willing to count the planned 116 street trees, and asked for either 212 new street trees within a quarter of a mile of the project or payment of the remaining value: $159,000.

FCR’s chutzpah

Even though Forest City Ratner had what seems to be a pretty good deal, it wanted a much better one. An 11/2/07 letter from Project Manager Debbie Bhatt reminded Rabb of the numbers in D’Eloia’s letter. “Therefore, we are replacing 85 trees with a minimum of 406 trees, but probably closer to 662 trees,” she wrote.

“We understand that your analysis of potentially required restitution only counts the 116 street trees, resulting in a request for 212 new trees within a ¼ mile of the project or $159,000," she continued. "We ask that you consider all of the trees we are planning, as they will all be within publicly-accessible areas. As stated in the General Project Plan, and as part of the public approvals and documents associated with our project, the 8 acres of open space in our project are completely publicly accessible, and will provide passive and active recreational opportunities, attractive pedestrian and bicycle path connections between the adjacent neighborhoods to the north, south, and east, and will include landscaped areas, plazas, boardwalks, water features, lawns, and as stated previously, approximately 540 trees. In sum, we believe that the Atlantic Yards project and the open space that will be part of it will add much more value than the trees that will be removed during construction, and we ask that all trees be considered in the restitution calculations.
(Emphasis added)

Her letter said nothing about when such open space and trees might be provided.

Parks stands ground

Rabb responded 11/13/07, “After careful consideration of your letter, it has been determined that the restitution for the removal of 86 street trees within the project limit of the proposed Atlantic Yards Project remains at 328 trees or $246,180 as stated in the May 2007 survey.”

“The Department of Parks and Recreation will count the 116 trees to be planted within the public right-of-way towards this restitution. This leaves a balance of 212 trees to be planted or $159,000,” he wrote, adding that a permit for tree removal would be issued only after “receipt of restitution value.”

FCR complies

FCR filed a permit request but had did not immediately send a check. Rabb, in a 2/5/08 letter, reminded Bhatt that the balance had to be paid. On 3/11/08, FCR sent the $159,000 check.