Second look at judge's ruling that "there are neither allegations nor proof... that the property will not be timely improved"
Given the statements yesterday by Forest City Enterprises' Chuck Ratner about how the market--not the timetable the developer announced in May--it's worth taking another look at a September 2008 decision in an AY-related lawsuit by state Supreme Court Justice Jane Solomon.
Solomon rejected charges by tenants in two AY footprint buildings that 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.
No timetable?
On the latter issue, attorney George Locker had argued that, while the project, when approved in December 2006, was supposed to take a decade, the State Funding Agreement gives a long leash: 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 include 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, wrote:
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.
(Emphasis added)
“Reasonable” efforts to proceed
In court, ESDC attorney Philip Karmel had said, "The foundation stone is the funding agreement,” he said, adding that the claim that there is no deadline “is a complete and total mischaracterization.” Rather, the developer is required to use “commercially reasonable efforts” to move forward.
What does that mean?
“It means you have to try your hardest,” he said.
As I pointed out last month, the developer at an investment conference claimed that "we control the pace."
In what language does "we control the pace" mean "try your hardest"?
Solomon rejected charges by tenants in two AY footprint buildings that 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.
No timetable?
On the latter issue, attorney George Locker had argued that, while the project, when approved in December 2006, was supposed to take a decade, the State Funding Agreement gives a long leash: 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 include 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, wrote: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.
(Emphasis added)
“Reasonable” efforts to proceed
In court, ESDC attorney Philip Karmel had said, "The foundation stone is the funding agreement,” he said, adding that the claim that there is no deadline “is a complete and total mischaracterization.” Rather, the developer is required to use “commercially reasonable efforts” to move forward.
What does that mean?
“It means you have to try your hardest,” he said.
As I pointed out last month, the developer at an investment conference claimed that "we control the pace."
In what language does "we control the pace" mean "try your hardest"?
Judge Solomon refused to see the elephant in the room, i.e., the disappearance of the Atlantic Yards Project, which occurred well before this latest financial crisis. The lack of any start or end date for the bulk of the project is clearly documented in a September 2007 Funding Agreement between FCRC and ESDC, which was kept a secret from the public until March 2008. We are appealing from Judge Solomon's decision and order. We believe that the Appellate Division will take judicial notice of reality, as opposed to the posturing of an ESDC lawyer, and send this dramatically changed project back for public hearings, as the law requires.
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