Skip to main content

The look ahead for 2010: the final endgame and, likely, a very changed landscape

At the end of 2008, with Atlantic Yards stalled, Develop Don't Destroy Brooklyn (DDDB) solicited donations by asserting that Victory is Within Sight. At the end of 2009, following the master closing on the project and a near-final victory for developer Forest City Ratner and its government partners, DDDB's pitch was more subdued.

After all, it looks like a done deal--but not quite. Even though the master closing has been completed and the bonds have been sold, they've been placed in escrow for a year, an unusual deal kink set up to both meet Internal Revenue Service deadlines (terms grandfathered in to the end of 2009) and leave room to overcome legal and financial hurdles, even as construction activities--if not yet full vertical construction--proceed.

While developer Forest City Ratner and its government partners have the clear upper hand in getting final funding and control of the land, the challenges raise serious questions, and likely will persist at least past visible signs of project progress, such as street closings.

(And what happens if the opponents win and everything gets reversed? A very interesting mess.)

Durable fight

For the opposition, it has hardly been a flawless fight. But the six-year struggle has been remarkably durable, compared to, say, the challenge to the new Yankee Stadium, sited in a community with fewer resources in both time and money. The AY challenge is one that other community activists in the city have begun to look to for inspiration and advice.

And, given the lack of accountability on the part of many government agencies and the developer, it's hard to say the fight could have been avoided. AY advocates often argue that DDDB should have negotiated a better outcome. But was there anything to negotiate? BrooklynSpeaks, the "mend-it-don't-end-it" coalition, tried to negotiate but ultimately went to court.

Pending legal challenges

There are several pending legal issues, though most could be dismissed without a further hearing or ruling on the merits.

The one that will get a hearing is the case challenging the ESDC's approval of the revised project, charging, among other things, that the ESDC board was "never officially informed about the changed financial terms" of the Vanderbilt Yard deal.

As with other cases challenging agency approval, the law gives significant latitude to agency decision, so the ESDC has to be favored. But that doesn't preclude a hard look at the rationale for those decisions. An oral argument is scheduled for January 15; I'll have an additional report on the case next week.

(It has not yet been combined with a similar case filed by BrooklynSpeaks, though that was expected.)

Wild cards

The lawsuit challenging the Metropolitan Transportation Authority's revision of the Vanderbilt Yard deal was dismissed last month. DDDB and fellow plaintiffs have not announced whether they will appeal.

The original case challenging the Atlantic Yards environmental review was dismissed at the trial court and appellate court levels, then refused by the Court of Appeals. However, in light of the Appellate Division's ruling overturning the Empire State Development Corporation's (ESDC) pursuit of eminent domain for the Columbia University expansion, the plaintiffs have asked that that appeal be reopened.

Similarly, the case challenging eminent domain was rejected by both the Appellate Division and then the Court of Appeals, but the plaintiffs have taken the unusual step, in light of the Columbia decision, to reargue the appeal or hold the motion in abeyance until the Columbia appeal has been decided.

What could happen in the Columbia case? It's unlikely that the court would turn around and uphold the Columbia decision on broad grounds, essentially admitting it was wrong in the Atlantic Yards case.

Rather, it could follow the advice of editorial boards at Crain's New York Business and the New York Times and offer sweeping deference to the ESDC. Or it could rule more narrowly and uphold the decision on more narrow grounds of bad faith--such as multiple blight studies--rather than ruling on the ESDC's use of blight criteria such as "underutilization."

New cases coming?

Also, though the legal space to challenge a condemnation petition is typically quite narrow, some of those facing condemnation will contest it, with attorney Matthew Brinckerhoff asserting that the petition "is defective in many respects."

There have been murmurs of a lawsuit challenging the murky Brooklyn Arena Local Development Corporation (BALDC) and its approval of bonds, but nothing yet. (Will state Attorney General Andrew Cuomo answer state Senator Bill Perkins' questions about the BALDC?)

Shortly after the eminent domain decision was released, DDDB lawyers pledged a new lawsuit seeking to compel the ESDC to issue new or amended public use findings, given that the decision was based on 2006 conditions. That has not been announced.

Does DDDB have the money? "Thanks to the ever supportive and resilient community we are proud that we actually surpassed our fundraising goals for 2009," DDDB's Daniel Goldstein stated, expressing confidence about the means to pursue ongoing and future legal challenges. (Meanwhile, he's also looking for a new apartment.)

Injunction possible?

"When construction begins or appears imminent, then we will seek an injunction to preserve the status quo and protect our rights," DDDB attorney Jeff Baker said in October.

"Bonds are normally required if a preliminary injunction is granted," Baker acknowledged. "However, the amount of the bond is at the discretion of the court and of course we would seek a nominal bond that is appropriate. Obviously whether a bond is affordable will depend on what the amount is."

That's a very big question, and a daunting one. Do judges, few of whom have stuck their necks out during the AY legal fight, want to stall "construction jobs" during a recession?

Condemnation and eviction

If everything goes smoothly--though there's no reason to think, in the convoluted AY saga, that it will--on January 29 the state Supreme Court judge in charge of condemnation in Kings County, Abraham Gerges, will sign the vesting order and transfer title to the ESDC.

A vesting order provides a period of time for condemnees to file claims. At that point, the condemning authority can authorize advance payments--generally the amount of money they offered in pre-vesting offers.

Those advance payments are generally authorized within 90 days and aim to get people to find a new home or business location. "Once advance payment is made, a condemning authority can move, by a writ of assistance, to remove condemnees from their premises," attorney Michael Rikon said.

And that removal could be theatrical--or even ugly. Consider that chains were installed at Freddy's Bar & Backroom so regulars can, in protest, chain themselves to the bar if condemnation proceeds.

Construction, street closures, groundbreaking

Last month, Forest City Enterprises officials said they anticipated a groundbreaking in the fourth quarter, meaning by the end of the January. No date has been announced.

Meanwhile, streets have been partially closed and "branded signage" has been installed. And, likely, the project developers will announce new sponsors for the arena, part of an extensive new effort at public relations.

Expect more street closings and more signage in the coming months, as well as significantly increased numbers of workers--demolition, utility, construction--and equipment.

And, if so, expect congratulatory words about jobs and spending from Brooklyn Borough President Marty Markowitz and Mayor Mike Bloomberg and a much more prominent role for the Community Benefits Agreement (CBA) signatories, groups funded by the developer.

But, even if the legal cases are dismissed, it may take a while for construction to ramp up. Consider the need for additional demolition before the footprint is cleared.

What about the Nets?

The expected confirmation of deep-pocketed new owner Mikhail Prokhorov within the next six months would provide a public relations boost for the lowly Nets. So would his willingness to trade for a big contract even before free agents become available.

The Nets might get a top draft pick and thus an impact player. And, like other teams, the Nets will be vying for the big free agents, notably the Cleveland Cavaliers' LeBron James, when they can test the market beginning on July 1.

Expect a lot more coverage of the team's chances than, say, the revision of the much-ballyhooed Barclays Center naming rights deal.

Residential tower coming?

Atlantic Yards is supposed to be about affordable housing, not an arena, and Forest City Ratner has promised that at least one tower would go up within six months after the arena begins.

If so, designs should be released and an architect named. While there are doubts that housing bonds would be available for the announced 2250 units over the promised ten-year timetable, it's a good bet that Mayor Mike Bloomberg's housing agencies could find a way to fund one tower, enough to ensure that ACORN, Forest City Ratner's loyal partner, has something palpable.

DDDB and electeds

What happens to the opposition? When the legal challenges end and if, as seems likely, Goldstein is forced to move, it's doubtful that he will remain as DDDB's full-time, modestly-paid staffer or as a symbol of a no-longer-extant legal fight.

So DDDB's presence likely would be diminished, and it's an open question as to how much he and other activists will maintain the organization over the long term.

Should the project move forward, and DDDB's role recede, look to other neighborhood organizations--the Council of Brooklyn Neighborhoods? Prospect Heights Neighborhood Development Council? the BrooklynSpeaks coalition?--to keep some tabs on the project. But they won't be able to match DDDB's pace.

Can elected officials like Council Member Letitia James, the project's leading opponent, still have a voice? Sure, she can ask questions, but look for officials like Assemblyman Hakeem Jeffries, who said he opposed eminent domain for a basketball arena but didn't go any farther than that, to have more dialogue with the developer than others who finally went to court.

Media watchdogs

Will NoLandGrab remain as a daily compiler (and commenter on) all things Atlantic Yards? That's up to the contributors, or the successors they manage to recruit.

Will AYR remain? I don't see the role of a watchdog blog evaporating if the challenge to the project ends. Then again, if there's less news, the pace of the blog should slow.

As noted yesterday, Atlantic Yards has reminded us of the need for accountability. That's not going away.

Lingering questions

There are major questions about the developer's capacity to fund the project, so, if another round of federal stimulus funds--or other new financing--emerges, look for Forest City Ratner to seek a piece of it.

State Senator Bill Perkins has re-launched the fight to reform state eminent domain laws. In doing so, will he take a tough look at AY? We'll see some signs at a hearing today (though it won't be the last opportunity).

Can $8.1 million in infrastructure contingency funds pay for repairs on damaged MTA tunnels when neither the extent nor the cost has been assessed? No, which increases the likelihood that more public funds would be sought for AY.

While Forest City Ratner and the Nets likely will engineer several positive stories about Atlantic Yards, the project has begun to get national attention as a poster child for unwise development and improper use of eminent domain, as in columns by Newsweek contributor Joel Kotkin and George Will.

And, despite the efforts of BrooklynSpeaks, there's been no effort to set up a governance structure for a project that could easily last 25 years.

Which leaves one looming question: who's really in charge?

That's another sign that, whatever happens to AY in 2010, its legacy will remain highly contested.


  1. It will take more than a year to resolve the legal challenges and appeals in the vesting proceeding. Judge Gerges will not be the last word. The residential rental tenants will remain while the appellate courts make their determinations.


Post a Comment

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

No, security guards can't ban photos. Questions remain about visibility of ID/sticker system.

The bi-monthly Atlantic Yards/Pacific Park Community Update meeting June 14, held at 55 Hanson Place, addressed multiple issues, including delays in the project, a new detente with project neighbors,concerns about traffic congestion, upcoming sewer work and demolitions, and an explanation of how high winds caused debris to fly off the under-construction 38 Sixth Avenue building. I'll have more coverage.
Security issues came up several times at the meeting.
Wayne Bailey, a resident who regularly takes photos and videos (that I often use) of construction/operations issues that impact residents, asked representatives of Tishman Construction if the security guard at the sites they're building works for them.
After Tishman Senior VP Eric Reid said yes, Bailey asked why a guard told him not to shoot video of the site, even though he was on a public street.

"I will address it with principals for that security firm," Reid said.
Forest City Ratner executive Ashley Cotton, the …

Atlantic Yards/Pacific Park graphic: what's built/what might be coming + FAQ (post-dated pinned post)

This graphic, posted in February 2018, is post-dated to stay at the top of the blog. It will be updated as announced configurations change and buildings launch. Note the unbuilt B1 and the proposed--but not yet approved--shift in bulk to the unbuilt Site 5.

The August 2014 tentative configurations proposed by developer Greenland Forest City Partners will change. The project is already well behind that tentative timetable.

How many people are expected?

Atlantic Yards/Pacific Park has a projected 6,430 apartments housing 2.1 persons per unit (as per Chapter 4 of the 2006 Final Environmental Impact Statement), which would mean 13,503 new residents, with 1,890 among them in low-income affordable rentals, and 2,835 in moderate- and middle-income affordable rentals.

That leaves 8,778 people in market-rate rentals and condos, though let's call it 8,358 after subtracting 420 who may live in 200 promised below-market condos. So that's 5,145 in below-market units, though many of them won…

The passing of David Sheets, Dean Street renter, former Freddy's bartender, eminent domain plaintiff, and singular personality

David Sheets, longtime Dean Street renter, Freddy's bartender, eminent domain plaintiff, and singular personality, died 1/17/18 in HCA Greenview Hospital in Bowling Green, KY. He was 56.

There are obituary notices in the Bowling Green Daily News and the Wichita Eagle, which state:
He was born in Wichita, KS where he attended public Schools and Wichita State University. He lived for many years in Brooklyn, NY, and was employed as a legal assistant. David's hobby was cartography and had an avid interest in Mass Transit Systems of the world. David was predeceased by his father, Kenneth E. Sheets. He is survived by his mother, Wilma Smith, step-brother, Billy Ray Smith and his wife, Jane all of Bowling Green; step-sister, Ellen Smith Alexander and her husband, Jerry of Bella Vista, AR; several cousins and step-nieces and step-nephews also survive. Memorial Services will be on Monday, January 22, 2018 at 1:00 pm with visitation from 10:00 am to 1:00 pm Monday at Johnson-Vaughn-Phe…

Some skepticism on Belmont hockey deal: lease value seems far below Aqueduct racino; unclear (but large?) cost for LIRR service

As I wrote for The Bridge 12/20/1, The Islanders Say Bye to Brooklyn, But Where Next?, the press conference announcing a new arena at Belmont Park for the New York Islanders was "long on pomp... but short on specifics."

Notably, a lease valued at $40 million "upfront to lease up to 43 acres over 49 years... seems like a good deal on rent for the state-controlled property." Also, the Long Island Rail Road will expand service to Belmont.

That indicates public support for an arena widely described as "privately financed," but how much? We don't know yet, but some more details--or at least questions--have emerged.

An Aqueduct comparable?

Well, we don't know what the other bid was, and there aren't exactly parcels that large offering direct comparables.

But consider: Genting New York LLC in September 2010 was granted a franchise to operate a video lottery terminal under a 30 year lease on 67 acres at Aqueduct Park (as noted by Gov. Andrew Cuomo).


Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…