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BrooklynSpeaks attorney Butzel: "ESDC has just handed over the entire keys to the kingdom to Ratner"

Though most news reports--and even Forest City Ratner, which erroneously claimed that "opponents who pledged to sue early and often are still suing"--treated yesterday's lawsuit filed by BrooklynSpeaks and allies as more of the same, the biggest news, as I pointed out, was the simple fact of the lawsuit: the radicalization of groups that once tried to negotiate with the state and the developer, and found it all came to naught.

So the rhetoric of those at yesterday's press conference at City Hall sounded remarkably DDDBesque. "We are now faced with... a ceding of ESDC's powers to Forest City Ratner to do whatever it wants over the next 20some-odd years," declared Jo Anne Simon of the Boerum Hill Association, speaking above. "We know that will not be in the best interests of the community."

(Photos by Tracy Collins; videos by Jonathan Barkey.)

Legal argument

The legal papers filed make scornful reference to developer Bruce Ratner's claims that Atlantic Yards "isn't a public project" and warn of a "failure" scenario in which the Atlantic Yards site, left mostly unbuilt, recalls the scene in New London, CT, where, despite a U.S. Supreme Court decision upholding the use of eminent domain, nothing was built and key property owner Pfizer decided to leave.

"What we're trying to do is give the communities a voice in how this site is ultimately developed," stated attorney Al Butzel (right) of the Urban Environmental Law Center, a nonprofit group set up to help community groups. Butzel led the legal fight in the 1970s-early 1980s against Westway.

"Litigation is not the best of all instruments; politics is the best of all instruments," he said. "But when you have an administration like you have in New York City with its complete ties to the development community, and a state government which really isn't paying attention and an ESDC which has largely lost its focus, litigation is one of the ways you gain attention and hopefully stop this project."

Grounds for lawsuit

"Our lawsuit basically challenges the approval of the Modified General Project Plan," said Butzel, "on the grounds that the agency refused to look at the fact that this project is going to be delayed for 22 years or more. In the meantime, you're going to have a barren urban wasteland."

"Those changes should've caused ESDC to prepare a Supplemental Environmental Impact Statement [SEIS]," he said. (The ESDC said the case was the same as one filed last month: "Repeating this claim, however, does not make it any more valid.")

The lawsuit states:
Courts have understandably been wary of requiring agencies to prepare supplemental environmental impact statements due to the passage of time or changes in projects that are not central to the proposed action. Where, however, the change is fundamental and involves new impacts having a significant effect on the environment, and those impacts have not been addressed in the original EIS, the language of the statute requires the preparation of an SEIS.
As with the previous case, filed by DDDB and allies, the lawsuit takes aim at the disconnect between the ESDC's approval of a ten-year project and an MTA deal with Forest City Ratner that allows the developer 22 years to pay for the Vanderbilt Yard:
What was critical was ESDC's complete failure to identify or acknowledge, much less take into account, the fact that FCRC had abandoned its 2005 agreement with the MTA for the purchase of the rights to the Vanderbilt Rail Yards and entered into a new agreement in June 2009.

ESDC's own decision document implicitly recognizes that the Project will take decades to complete. The Project Leases Abstract includes the basic terms for the leases of parcels associated with the 16 towers. The basic structure is that ESDC will lease each parcel to an FCRC affiliate until the building is completed at which point it will be purchased by the entity owning the building. However, the Abstract states that if the improvements are not completed, the leases will terminate "no later than the 25th anniversary of the vacant possession of the Arena Block and any other properties acquired in the first taking."
(Emphasis in legal papers)

A Ratner project

Butzel acknowledged that the case likely would be consolidated with the DDDB case.

"In addition, the lawsuit says what I believe to really be the case: this isn't an ESDC project, this is a Ratner project; and ESDC has just handed over the entire keys to the kingdom to Ratner to do what he wants," Butzel said.

"Agencies are created with particular powers--the ultimate goal being to exercise those powers in the public interest," he said. "ESDC, in theory, is supposed to be approving the components of the project, the timetable… in the MGPP, they've left that completely to Ratner."

Unmentioned in the lawsuit, but clearly backing the allegations, is a November 2008 statement by Forest City Enterprises (FCE), parent of Forest City Ratner, at a real estate conference that Atlantic Yards is among "Active Large Scale Projects Where We Control the Pace."

Westway comparison

I asked Butzel how this case compared with Westway.

One contrast, he noted, was that in this case he's not starting at the beginning.

"In Westway there really was a very significant governmental involvement," he continued. "The problem was the agencies basically cheated. In this case, this is really reflective of how the development community is running New York, in terms of its physical landscape, of what gets built and doesn't get built…. very little opportunity for public to participate in the planning."

"It's really a throwback to the days of Robert Moses," Butzel continued. "People have to be reminded that, when Robert Moses was doing his thing, everyone loved him. It took ten years after he stopped doing his thing for everyone to realize what he had done to the city… And I feel that same way about what's going on with the Bloomberg Administration. I have high regard for the mayor, but not when it comes to his development attitudes and his development policies."

Process going forward

The case will not involve a trial with witnesses but rather rest on the record that's already been established.

Butzel acknowledged that it's an uphill legal battle. "There are some cases on SEIS's, none of them particularly solicitous from our point of view. What I attempted to do is get the courts back to where they ought to be… the tests should be the same… the statute says you've got to prepare an EIS. I think it's a tough case to argue, to win, because of the attitudes of the courts about Supplemental EIS. A lot of stuff depends on how the judge feels about the overall situation."


Butzel pointed to the new Beekman Tower under construction nearby: "I look at the Ratner project just over here behind us and I think to myself, How could anyone do this to New York City? And that is what I see happening in Atlantic Yards in an even broader way, with a combination of a huge arena and towers that are going to completely dwarf the brownstone communities."

Now that kind of rhetoric surely would rub the wrong way those who think New York needs to grow vertically--but it also offers a counterpoint to Frank Gehry's reported phallic emphasis.


Groups and elected officials filing suit include the Atlantic Avenue LDC, the Brooklyn Heights Association, the Boerum Hill Association, the Fifth Avenue Committee, the Park Slope Civic Council, the Pratt Area Community Council, the Prospect Heights Neighborhood Development Council and State Senator Velmanette Montgomery, Assemblyman Jim Brennan and City Councilmember Letitia James (below, speaking at press conference). Also several residents living near the Atlantic Yards footprint are named as plaintiffs.

“Democracy should not operate in secrecy. The proposed Atlantic Yards project continues to be led by the developer, undermining our system of government and in defiance of the law. The lack of transparency, community input and proper review force a legal challenge," said James in a press release.

At the press conference, she freelanced somewhat, saying "The New Jersey Nets are 0-12. Why would we want to build an arena for a losing team?" (Of course she wouldn't be supporting the arena if the Nets were winning.)

More from the lawsuit

The lawsuit also states:
While ESDC‟s failure to address the implications and the impacts of the greatly elongated build-out of the Project was certainly the most serious of the errors it made in concluding that no SEIS was required, there were additional failures of consideration that underscore the fact that such a supplemental impact statement should have been prepared in this case. Included among these are the following:
1. Expanded Surface Parking.
2. Runoff Implications of Expanded Surface Parking.
3. Increased Visibility of the New Arena.
4. Traffic Congestion.
5. Implications of the Redesigned Arena.
6. The Failure Scenario.
Legal argument

What about the claim that the ESDC had turned over the keys to Ratner? The ESDC said yesterday, "The additional claim asserted in the new lawsuit is devoid of merit."

The petitioners' memorandum of law points to three not-quite-related cases in which courts have looked askance at unauthorized delegations of government power. One involves a Public Health Council created by the Legislature that exceeded its authority when it issued a comprehensive code to govern smoking in public areas. Another involved a District Attorney's delegation to an independent “master” the authority to conduct an investigation. Another involved delegating to the Jockey Club, a private organization, the power to grant licenses to owners, trainers, jockeys and other working at New York running tracks.

Contrasts with DDDB suit

While the new case and the DDDB suit cover much of the same ground, the latter also points to the ESDC's failure to respond to an expert's report that it was unrealistic to build the AY housing in a decade and the belated acknowledgment, only in documents released September 17, that affordable housing subsidies were required to build the promised affordable housing.