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CBN, DDDB say Supplemental EIS needed; what will ESDC respond at meeting today?

No one doubts that the board of the Empire State Development Corporation (ESDC), at its meeting this morning, will approve the 2009 Modified General Project Plan (MGPP) and set the stage for the issuance of tax-exempt bonds and--though delayed by a pending legal challenge--the use of eminent domain.

Before it does so, however, the ESDC will have to consider some forceful comments, notably from the Council of Brooklyn Neighborhoods (CBN) and Develop Don't Destroy Brooklyn (DDDB), raising big questions about the announced ten-year project timetable and the need for a Supplemental Environmental Impact Statement (SEIS).

Surely the ESDC, in a memorandum prepared by environmental consultant AKRF, will dismiss those questions--given that an SEIS would delay the project, and the developer wants the bonds issued before a crucial end-of-year deadline--but the explanations will be interesting.

CBN, in part of its submission, included a report from a real estate analyst questioning the economics of the timetable. DDDB, in its submission, noted that the revised deal between Forest City Ratner and the Metropolitan Transportation Authority (MTA) regarding the Vanderbilt Yard allows the developer until 2030 to pay for development rights--and cannot begin construction on each parcel until after payment.

In other words, the project simply can't be built in a decade.

Changes mean SEIS

The ESDC, actually, allows for the possibility of a delayed buildout, but says there's no reason for an SEIS. CBN and DDDB disagree.

They argue that the significant changes in the project require a Supplemental Environmental Impact Statement to evaluate project changes.

CBN, in comments authored by urban planner Tom Angotti, gave three reasons:
1. The MGPP is substantially different from the 2006 plan;
2. The new plan creates a new and different Worst Case Scenario – parking lots for decades; and
3. Background or No Build conditions have changed dramatically since 2006.

Also, argued attorney Jeff Baker on behalf of DDDB, given the evidence that suggests there are no commitments to build Phase II, the project could no longer be considered by the ESDC as a Land Use Improvement or a Civic Project.

Renegotiated MTA agreement

"The most fundamental omission is a frank consideration of the renegotiated deal between FCRC and the MTA for the purchase of properties constituting the Vanderbilt Yards," writes Baker, describing the shift from a $100 million deal to one in which FCR would pay $20 million for a portion of the site and pay the rest through to 2030.

"This is a major restructuring of the deal that effectively allows FCRC to abandon Phase II of the project at any time. It can abandon it before 2012 when the first additional payment is due, or in any of the subsequent years before June 2016 when the payments significantly increase," Baker commented. "In essence, FCRC is paying only a minimal fee to secure the rights to the properties without any penalty for a decision to abandon the project."

It's a little more complex. Forest City would have to put up an $86 million letter of credit to construct a new railyard, and would be subject to penalties for abandoning the project. But it does seem they can hedge their risks.

Land Use Improvement Project

Baker says the ESDC--in the MGPP or Technical Memorandum-failed to describe the renegotiated MTA agreement, which allows the supposedly blighting railyard to remain uncovered for dcades. If it had, he argues, it would be clear how the agreement casts doubt on the Land Use Improvement Project, the aim of which is the elimination of blight.

Even as DDDB and other civic groups challenge the environmental review, he writes, "it must be recognized by ESDC that even if that determination is accepted on its face value, the supposed blighted and blighting conditions will not be alleviated with the MGPP."

Moreover, there's no plan to reconstruct and rehabilitate the area, as required, given the absence of assurances that the project will be built as a whole.

If Phase II is never built, the failure to build a platform over the Vanderbilt Yard will continue "to have the blighting influence on the surrounding neighborhoods that the project was supposedly designed to alleviate," Baker writes. Beyond that, an indefinite surface parking lot on the southeastern block of the site would perpetuate blight.

Questionable benefits

The delay in or abandonment of Phase 2 means that affordable housing is an "ephemeral promise," and the promised economic benefits--based on a ten-year buildout--of the project are also undermined, Baker writes.

Similarly, all the permanent open space would be in Phase 2.

Impact of single developer

Baker questions the ESDC's reliance on a single developer ratner than a planning process. "ESDC cannot allow the MGPP to become a classic bait and switch that freezes the development potential of the Vanderbilt Yards for so long as FCRC holds a hope of development or chooses to abandon the project," he writes. "ESDC should renew the consideration of the project and seek a reconfiguration that allows the development of the important elements of the Vanderbilt Yards by other developers at a scale appropriate for the community."

If the goal of the project is to alleviate blight, he writes, ESDC should have "sought alternative scenarios and developers to present a project that would result in the timely redevelopment of Vanderbilt Yards and promote the elimination of blight."

Impact of changes

Given the departure of Frank Gehry, it's "a complete falsehood" to say that the project will follow his master plan, given that Gehry is an architect, not a planner, Baker writes. He also notes that landscape architect Laurie Olin has apparently left the project.

"Most outrageous is the absence of any renderings or design information concerning the Arena and the initial buildings," he adds, noting that such renderings were important to the 2006 documents.

The deadline for comments was August 31, so neither the comments from Baker or others could address the new arena design by SHoP and Ellerbe Becket.

Changes mean SEIS?

Baker notes that the State Environmental Quality Review Act (SEQRA) requires an SEIS if there is newly discovered information; changes proposed for the project or a change in circumstances related to the project.

The newly discovered information, he says, "is the clear realization that the project, will, at best take decades to complete." The decline in the developer's "significant capital investment" represents a change. Among the changed circumstances are changes in the financial markets and the demand for housing, as noted in the CBN report.

The ESDC's "conclusory Technical Memorandum," he writes, "is not a substitute for an SEIS which allows full public comment and forces the lead agency to respond to comments."

As with real estate consultant Joshua Kahr, Baker points out the background conditions in surrounding neighborhoods will not move in lockstep with Atlantic Yards: it's not realistic to think that all other projects will face similar delays, since smaller projects would more likely go forward--and thus change.

CBN criticisms

Beyond the Kahr report, CBN's submission offers several criticisms:

Notably, the indefinite postponement of Phase Two casts doubt on certain mitigation claimed in the Final EIS, including the eight acres of promised open space, the bulk of the affordable housing units, and the storm water retention system. "This change requires a supplemental EIS," CBN says.

Among other criticisms:
  • There's no site plan nor meaningful design for Phase I
  • The proposed time frame is not feasible
  • The ESDC, in the Technical Memorandum, acknowledges it expects the project to take much longer than 10 years.
  • The MGPP, given the amorphous timeframe, proposes an essentially new plan with entirely new environmental and economic consequences
  • The impact of indefinite “interim” parking must be analyzed
  • A smaller railyard, a set of incremental purchase/closings on MTA and other land, and no guarantee of a platform constitute a new plan, requiring an SEIS
  • Certain mitigations proposed in the Final EIS are rendered moot by the project time extension
  • Given potential permanent parking lots, an SEIS is required to analyze the impacts upon the sewer system of unmitigated storm water runoff from paved surfaces.
"The Technical Memorandum that accompanies the MGPP discusses each of the EIS categories but is not a supplemental EIS," CBN says. "In 66 pages plus appendices, the technical document only describes some minor changes in existing conditions but does not take a hard look"--as the law requires--at changes to the project that have occurred and are likely to occur."
(Emphasis in original)

More criticisms

CBN criticizes the use of the term "anticipated" to describe the use of Gehry's master plan and landscape designs by Olin, saying there are no guarantees.

Beyond that, CBN says, the developer is being given unlimited discretion for the interim open space.

Moreover, the lack of a specific design makes it impossible to anticipate the security impacts of the project.

Given that the Carlton Avenue Bridge was supposed to be closed for two years but will be closed for at least one and possible three more years, there's been no study of the impact on emergency response times.

Who's to blame?

CBN blames not the public but the developer: "We reject FCR’s attempts to blame past and potential future delays on community opposition, court challenges and the resistance of site tenants. Instead, FCR’s heavy-handed approach circumventing local land use procedures and ignoring community boards was a prescription for delays. It generated community opposition from the very beginning. The company has declined to seriously engage with the opposition or seek compromises that would settle legal challenges. Instead, before the project was announced publicly, FCR entered into contracts with a few local groups that received funding from them. FCR has not considered or publicly discussed alternative community plans for the site, such as the UNITY Plan. FCR has employed methods that continue to antagonize community organizations, including disruption of the few public meetings called by the ESDC."

And it criticizes ESDC: "The ESDC has contributed to this environment by failing to insure an open, transparent review process that fully engages the diversity of local community views... While FCR may not change its strategy, the ESDC can and should insist on a change in course. Furthermore, a large and complex development site like Atlantic Yards invariably takes more than ten years to develop in New York City. The site is almost twice as large as the World Trade Center site, which after eight years is far from complete."

New warnings

CBN warns that the proposed surface parking likely would be contracted out to private operators, who "could increase capacity by two or three times by installing lifts, resulting in an estimated 1,000 surface parking spaces." (Actually, this is an underestimate, since the surface parking lot on Block 1129 is already supposed to handle that many spaces.)

CBN warns that demolition and construction at the rail yards and on property acquired by developer Forest City Ratner may have led to significant environmental problems. "This includes water infiltration and a rising water table in subway tunnels that pass beneath the Atlantic Yards footprint causing dangerous deterioration of steel support beams, catalogued in a 2007 engineering report, and reports by building owners and tenants on Pacific Street and Carlton Avenue of growing cracks in exterior and interior walls." Thus an SEIS is needed.


Angotti, a critic of Mayor Mike Bloomberg's PlanNYC2030, says the policy change in the city is reason enough for an SEIS.

"The discussion of PlaNYC2030 in the MGPP is minimal and misleading," he writes. "It fails to disclose fully the extent to which the Atlantic Yards plan is inconsistent with PlanNYC2030, only mentioning a few areas where it is consistent. A supplemental EIS would require a more detailed and balanced assessment of consistency with the city’s sustainability plan."

As I've previously noted>, AY is not mentioned at all in PlanNYC2030. "This is telling because Atlantic Yards is one of the largest proposed developments over a rail hub in the city and PlanNYC2030 promotes 'Transit-Oriented Development' at major transit hubs," Angotti writes. "One can only speculate why Atlantic Yards was not included but it seems clear that Atlantic Yards, contrary to the claims of its sponsors, does not promote or improve transit and instead would result in additional burdens on transit."

I've already written about PlaNYC 2030’s failure to address parking at projects like AY.

Goldstein comments

Daniel Goldstein, spokesman for DDDB, also submitted comments as an individual, offering further arguments for an SEIS.

He cites the lack of project renderings or site plans and the inability for community members to comment on them. He notes April 8 comments by then ESDC CEO Marisa Lago that Atlantic Yards would take “decades” to build--in contradiction to the MGPP.

Affordable housing

Citing my report raising questions about affordable housing, Goldstein says the impact of a lesser amount of housing should be studied.

"Considering that there is no evaluation whatsoever if the amount of bonds desired will be available under the City and State bond caps there is serious question if the plan to construct 2,250 subsidized, affordable units can be fulfilled," he writes.

The impact of much less promised housing should be studied, he says.

More questions

He notes that the ESDC failed to study the impact of a smaller (56-car), rather than larger (76-car), replacement Vanderbilt Yard (which previously could accommodate 72 cars).

Regarding security, Goldstein notes that a new report from the New York Police Department, "Engineering Security: Protective Design for High Risk Buildings,” wasn't considered.

Joining CBN, he points out that the ESDC did not study the traffic impacts of a longer closure of the Carlton Avenue Bridge

Urban Room and Fifth Avenue

Goldstein points out that the now-promised "Urban Plaza" could not fully replace the previously promised Urban Room, once touted as a benefit"

"With the new arena design and orientation there is no longer any justification for the closing of Fifth Avenue," he adds, arguing that even if the street is needed for Building 1 and the Urban Room, the immediate closing of the street in 2010 is not justified.

Subway repairs?

As with CBN, he cited the subway tunnel inspection report about which I recently wrote.

"The study clearly states that major repair work on these tunnels located beside the Atlantic Yards site is needed in the near future," Goldstein comments. "Yet we have no idea if any of those repairs have been made yet." Repairs during or after construction would have significant impacts, he points out.

Arena financing

Goldstein argues that the Public Authorities Control Board (PACB) should reconsider the project, given changes "in the project, the project cost, the project financing, the project revenue models, the financial health of Forest City Ratner and Forest City Enterprises, the bond market, and the economy—all raising questions about the developer’s financial ability to construct the project as proposed and approved, and the strong likelihood of new financial burdens on the State."

Cost-benefit analysis

There was never a cost-benefit analysis, just a limited fiscal analysis--and that hasn't been updated, Goldstein notes.

Indeed, an ESDC lawyer said in July that “We’re constantly looking at that [economic impact] analysis and updating that analysis."

Presumably, the Independent Budget Office's recent analysis--issued after the comment period closed--that the arena would be a loss for the city will be a topic of discussion and generate a response.


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