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Nets Are Scorching interview with me on lawsuits, press coverage, and the unclear AY endgame

I was interviewed via email by Mark Ginocchio of the blog Nets Are Scorching.

His intro:
As the Atlantic Yards saga has unfolded, the Atlantic Yards Report has served as a well-researched watchdog, analyzing details that were being overlooked by the mainstream press. The blog is run by Norman Oder, a journalist with more than 25 years of experience. Oder is not shy about the fact that he’s a critic of the Atlantic Yards proposal by Forest City Ratner, which would include a new arena for the New Jersey Nets. But he also prides himself of the amount of sourcing that goes into his posts.

With two new lawsuits recently filed against the project, NAS thought this was a good opportunity to talk to Oder about his recent research, and where he believes this project, and the Nets potential move to Brooklyn, may be headed.
1. Develop Don't Destroy Brooklyn (DDDB) has already lost several rounds in the legal fight challenging the Atlantic Yards project. What makes the latest suits--challenging the Metropolitan Transportation Authority (MTA) and the Empire State Development Corporation (ESDC)--any different?

DDDB has filed--or organized/funded--five major lawsuits, plus a sixth:
1. Blocking planned demolitions--lost. (This is the minor case.)
2. Challenging environmental review--lost at two levels of state court, request for appeal pending at state Court of Appeals.
3. Eminent domain #1--lost at two levels of federal court; request for appeal to Supreme Court denied.
4. Eminent domain #2--lost at first level (Appellate Division) in state court; appeal to Court of Appeals heard on October 14.
5. Challenge to MTA revision of deal--just filed.
6. Challenge to ESDC re-approval of deal--just filed.

I’m not a lawyer, I’m a journalist (who sometimes talks to lawyers), so don’t consider this definitive.

All of the cases are uphill challenges, given that, in none of the cases the plaintiffs/petitioners have been able to call their own expert witnesses and challenge defense witnesses under oath or proceed with discovery to extract new information. In other words, the courts evaluate the case based only on the administrative record. They generally defer to the administrative agencies if the agencies acted on a "rational" basis--a very low bar, as opposed to a higher level of scrutiny. Other states make it easier to challenge the government's determination in eminent domain cases, though cases challenging environmental review are always tough.

That said, as I've written regarding the newest suit against the ESDC, there are some very inconvenient facts regarding the announced and promised 10-year construction timeline, such as the MTA deal that structures payment over 22 years and proposed ESDC leases that allow 25 years for construction.

And the suit against the MTA raises some very interesting questions, since the Public Authorities Accountability Act of 2005, the basis for the case, has not—to my knowledge—been invoked previously in this way. And, at least as far as my Freedom of Information Law request showed, the MTA board members got no written legal advice--other than a check-off on a Staff Summary--stating that their action was appropriate, even though board member Jeffrey Kay told fellow board members on June 24 that the MTA's "legal department has advised us that this is a legal transaction."

Some people say these cases are only efforts to delay the project and throw a wrench into the effort to sell tax-exempt bonds. While they certainly might have that effect, they raise some important issues that no other oversight body has been willing to pursue. That's why, whatever the uphill challenge, it's valuable--from my POV--to see the cases ventilated in court, with the government agencies required to respond to some tough questions.

2. You yourself speculated that the media might be experiencing some "lawsuit fatigue" based on their recent coverage. Why do you think some outlets are moving slower to this story as the December 31 deadlines to break ground approaches?

Right--I can only speculate. Part of it is simple shorthandedness--the dailies, at least, have a limited print newshole and very few reporters assigned to Brooklyn, with more than enough to cover and not enough personnel to do so. Also, I suspect, their editors think that another lawsuit is more of the same. A couple of the reporters who've followed this most steadily--Eliot Brown of the New York Observer and Matthew Schuerman of WNYC (and formerly of the Observer)—did think the latest case was worthy of coverage.

Sure, the parade of lawsuits probably makes some editors’ eyes glaze over. They don’t have the time—or the interest—to read the filings, and that’s understandable. And the lack of consistency in coverage means that the dailies don’t have a reporter who’s followed the story steadily. That said, the New York Daily News did cover the latest lawsuit—a day late—and has been trying harder recently.

But the suits, as I said, deserve a close look. And there have been some fascinating arguments in past court cases that got little or no coverage in the dailies. See for example the case challenging the environmental review and the first eminent domain case.

3. Supposing that DDDB and project opponents are the "David" in this "David and Goliath" story, how important is it for the petitioners to have the support of the media?

The petitioners have never had the support of the editorial pages. All three dailies have supported the project in editorials, with the New York Times, I'd contend, somewhat compromised in its editorial stance by the parent company’s business relationship with Atlantic Yards developer Forest City Ratner.

The weekly Brooklyn Paper, before it was bought by Rupert Murdoch's CNG Group, opposed the project editorially--though it published an editorial shortly before the sale that supported the arena. Since then, the Brooklyn Paper has not maintained its editorial page opposition; this past week, however, it did publish a curious editorial chastising the state but not the developer.

How important? Clearly it helps a “David” to have regular news coverage, but I can’t quantify that. Actual investigative work--highly unusual in the daily press--makes more of a difference.

The unusual aspect of the AY saga is that it involves so much homegrown media of various stripes--something the Times noticed (and exaggerated somewhat) in 2006. That includes DDDB's own blog/press releases; the NoLandGrab blog that catalogs (and often critiques) almost every scrap of info related to the project, from a critical perspective; and photographers like Jonathan Barkey, Tracy Collins, and Adrian Kinloch, who shoot photos and videos of events that others either ignore or cover more briefly.

And there's my own watchdog blog, which, while generally critical of AY, is produced by a veteran journalist who aims at professional standards of evaluation and who's dug much deeper than other reporters on the project. I try to link to supporting documents as much as possible to bolster my credibility. My goal is not “he said, she said” objectivity, but fairness, as defined by former NYTimes Public Editor Daniel Okrent: "Fairness requires the consideration of all sides of an issue; it doesn't require the uncritical reporting of any."

One quick recent example of the media ecosystem: I believe that it was criticism in online media--coverage in NoLandGrab, my blog, and most graphically DDDB--that nudged Assemblyman Hakeem Jeffries to clarify his stand on Atlantic Yards last week.

4. With the number of active lawsuits being filed regarding the project, do you see any possible way for Ratner to legally break ground by the end of the year?

I'm not sure he has to legally break ground or that he plans/hopes to break ground more than ceremonially. He has to sell the bonds by the end of year—or get alternative financing by March 1. He can put the bonds in escrow until the cases are resolved.

But I suspect that only a few people in state government and the developer’s office understand the nitty-gritty details of the endgame—for example, what happens to the Barclays naming rights deal if the project lingers without resolution. I don’t claim to fully understand the endgame myself.

5. Do you believe this story ends by December 31? Do project opponents have the resources to continue fighting beyond then if necessary?

I think it's highly unlikely the story ends by December 31, though we should have much more clarity by then, including a resolution to the eminent domain case. If the plaintiffs win, the project folds. If the plaintiffs lose—and eminent domain challenges are very tough to win in New York—then the question is how much the other lawsuits affect the sale of arena bonds and/or construction.

Similarly, we should know before December 31 if Mikhail Prokhorov is approved by the NBA to buy the Nets; so far, Commissioner David Stern and owners quoted publicly seem positive about the transaction.

Keep in mind that, when AY was announced in December 2003, the arena was supposed to open in 2006. (In April 2006, state Senator Marty Golden declared, "It is the chance of a lifetime to have stars such as Jason Kidd, Vince Carter, Richard Jefferson and all the others have their home court based in Brooklyn." They're all gone now, as you know.)

When the project was first approved, in December 2006, the arena was supposed to open in 2009. So Atlantic Yards is a "never say never" project.

Nets CEO Brett Yormark has expressed certainty about an arena opening date but also has kept shifting the goalposts, so I compiled some audio of those statements.

Do project opponents have the resources? I don't have access to their ledger, nor have I discussed this recently with DDDB, but I wouldn't count them out. This isn't a repeat of the West Side Stadium controversy, where deep-pocketed Cablevision made the difference. Still, opposition to the project is centered in neighborhoods with a good number of relatively well-off, politically active people, so presumably a fundraising campaign could generate additional funds if needed.


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