ESDC amends mitigation memo on timing, open space, etc.; more important is leeway on affordable housing, paying for TEAs, and "practicable" procedures

The Empire State Development Corporation (ESDC) has quietly--i.e., with no press release--posted an updated version of the Amended Memorandum of Environmental Commitments (aka Memorandum of Mitigation Commitments), which was signed in December.

Notably, the document--which was posted either in late December or early January--describes:

• more time to build a school
• more time to build a day care center (or not build it at all)
• larger stormwater detention tanks, in the absence of an arena green roof
• plans for temporary open space, such as kiosks, seating areas, and landscaping
• plans for a temporary Urban Plaza
  

Most if not all of the changes are also memorialized in the master closing documents signed in late December and finally made available on January 25.

Not the changes but the wiggle room

Still, most of the changes seem minor. The key text, most likely, the significant amount of wiggle room built into the language of both documents, leaving the city or the ESDC--which have not exactly pressed hard on developer Forest City Ratner--in charge of enforcing some vague agreements.

For example, the developer is supposed to use quiet construction procedures "where practicable."

And, as signaled in other documents, the affordable housing might not be as affordable as once promised:

Based on currently available information, the parties anticipate that the affordable housing units will be made available to households with incomes falling within the income bands set forth in the FEIS. However, the income bands may be adjusted to accommodate the requirements of any City, State or federal housing program utilized for the construction of the affordable housing, subject to City approval.

(Emphases in bold added throughout)

That offers a lot of leeway and allows the developer and the city--rather than any governance organization (as suggested by BrooklynSpeaks and pushed by Assemblyman Hakeem Jeffries)--to make the decision on stretching the affordability of the housing.

ESDC discretion on TEAs

Similarly, the developer is expected to reimburse the city Department of Transportation (DOT) for Traffic Enforcement Agents (TEAs) at major arena events, but if they can't come to an agreement, the decision will be made by the ESDC.

That leaves a lot of leeway, and provides another argument for a governance structure.

The documents

The original 12/8/06 Memorandum of Mitigation Commitments and the updated 12/21/09 Amended Memorandum of Environmental Commitments are embedded below.

Several sections are compared and analyzed below.

A new school?

The original document offered a timetable for the school:

As mitigation for the projected significant adverse impact to the supply of elementary and intermediate school seats within 1⁄2 mile of the Project, FCRC shall, if requested by the New York City Department of Education (“DOE”) prior to January 1, 2010 (or such other date agreed to in writing by FCRC and DOE), convey or lease to DOE, space within a development parcel sufficient in size to allow for the development of an approximately 100,000 gross square foot elementary and intermediate public school of contiguous space, a portion of which shall be located on the ground floor of the building (the “School”).

The updated document offers more leeway on time, given potential delays for Phase 2:

As mitigation for the projected significant adverse impact to the supply of elementary and intermediate school seats within 1⁄2 mile of the Project, FCRC shall, if requested by the New York City Department of Education (“DOE”) prior to the later of (i) January 1, 2013 or (ii) the date that is 18-months prior to the anticipated commencement of construction of the first Phase II residential building constructed after completion or substantial completion of each of the Phase I residential buildings (or such other date agreed to in writing by FCRC, DOE and ESDC), convey or lease to DOE, space within a development parcel sufficient in size to allow for the development of an approximately 100,000 gross square foot elementary and intermediate public school of contiguous space, a portion of which shall be located on the ground floor of the building (the “School”).

Day care in new center

The original document specified a new day care center:

In order to avoid a significant adverse impact to day care services as a result of the Project, FCRC shall construct on the Project site and arrange for the long- term operation of a duly licensed day care center that shall accommodate at least 100 children with publicly funded vouchers available to income-eligible households (or with some alternate form of publicly funded day care for income- eligible households). The day care center shall be placed into operation prior to the expected completion of occupancy for 1,800 affordable housing units at the Project.

The updated document allows for delay, as well an alternative, in which services are contracted:

In order to avoid a significant adverse impact to day care services as a result of the Project, FCRC shall: (i) construct on the Project site and arrange for the long-term operation of a duly licensed day care center that shall accommodate at least 100 children with publicly funded vouchers available to income-eligible households (or with some alternate form of publicly funded day care for income-eligible households); and (ii) assess day care enrollment and capacity in the study area identified in the FEIS as construction of the Project progresses, and, as and to the extent necessary to avoid a significant adverse impact (following the methodology of the CEQR technical manual, as of the date of the Technical Memorandum), make arrangements with one or more duly licensed day care providers for the long-term operation of a duly licensed day care center (or centers) that shall accommodate approximately 250 additional children, either on or in the vicinity of the Project site. FCRC shall place into operation the day care center specified in clause (C)(3)(i) above by the date of occupancy of the first Phase II residential building not containing a school; provided, however, that the operation of the day care center may be delayed to a later point in the Project as determined by ESDC based on information provided by FCRC and the City of New York that there are adequate day care facilities in the area to accommodate children requiring subsidized day care services from the existing and immediately anticipated Project buildings.

Open space

The original document stated:

FCRC shall design and construct the Open Space as described in the FEIS and in accordance with the Design Guidelines.

The updated document makes a distinction between permanent and temporary open space, given that the latter would be created in spaces meant for delayed buildings--and, apparently, managed only by the developer--and adds mention of a promised not-for-profit organization to manage it:

The permanent Open Space shall be owned by a Conservancy or other not- for-profit entity established by FCRC, which shall be responsible for the maintenance, operation, and security of this public amenity.

Stormwater and sewage minimization measures

The original document stated:

1. As part of the Project, FCRC shall implement the stormwater management measures set forth in the FEIS as designed by Judith Nitsch Engineering and the Olin Partnership, which formed one basis of a report prepared by HydroQual Environmental Engineers and Scientists, P.C. (“HydroQual”) entitled “Impact of the Atlantic Yards Project on Local Sewer Infrastructure” dated November 8, 2006 (the “HydroQual Report”). The HydroQual Report is Appendix H to the FEIS. Such measures shall include installation or implementation of the following facilities or alternative detention/retention facilities providing the same or greater combined retention and detention capacity:
(a) Two 100,000 gallon tanks in the Project site (one for the runoff from Buildings 5, 6 and 7 and one for the runoff from Buildings 8, 9, and 14);
(b) Two storage tanks in the area of the Long Island Rail Road yard, with an aggregate capacity of 124,000 gallons;
(c) Four storage tanks within the arena, with an aggregate capacity of 291,000 gallons; and
(d) Two 12,000 gallon storage tanks at Site 5.

The updated document adds capacity given the lack of a green roof on the arena:

1. As part of the Project, FCRC shall implement the stormwater management measures set forth in the FEIS as designed by Judith Nitsch Engineering and the Olin Partnership, which formed one basis of a report prepared by HydroQual Environmental Engineers and Scientists, P.C. (“HydroQual”) entitled “Impact of the Atlantic Yards Project on Local Sewer Infrastructure” dated November 8, 2006 (the “HydroQual Report”) and included as Appendix H to the FEIS, as modified by the measures described in the Technical Memorandum, which modifications were analyzed in supplemental reports by HydroQual dated October 17, 2007 and June 25, 2008. (These three HydroQual reports are referred to collectively as the “HydroQual Reports”). Such measures shall include installation or implementation of the following facilities or alternative detention/retention facilities providing the same or greater combined retention and detention capacity:
(a) Two 100,000 gallon tanks in the Project site (one for the runoff from Buildings 5, 6 and 7 and one for the runoff from Buildings 8, 9, and 14);
(b) Two storage tanks in the area of the Long Island Rail Road yard, with an aggregate capacity of 124,000 gallons;
(c) Storage tanks within the Arena Block having an aggregate capacity of 388,568 gallons upon completion of the Arena and a total of 636,000 gallons upon the build out of the Arena and Buildings 2, 3 and 4 on the Arena Block; and
(d) Two 12,000 gallon storage tanks at Site 5.

The Carlton Avenue Bridge

The original document doesn't mention it, but the updated document provides a timetable linked to the arena but not a specific date (though currently the estimate is April 2012):

FCRC shall reconstruct the Carlton Avenue Bridge so as to be functional as of the opening date of the arena.

Who pays for TEAs?

Left unresolved in both documents is how much Forest City Ratner would reimburse the New York City DOT for TEAs:

FCRC shall enter into discussions with NYCDOT to determine the extent of FCRC’s financial responsibility for the traffic enforcement agents (“TEAs”) required to manage traffic flow for major arena events and shall comply with the terms of any such agreement with NYCDOT as required by the DOT letter. If necessary to ensure that the TEAs are deployed for major arena events as described in the FEIS, and only in the event that FCRC and NYCDOT do not reach a funding agreement, FCRC shall provide such funding for TEAs as ESDC shall reasonably direct, considering funding arrangements at other sports and entertainment venues in New York City.

Construction parking adds lighting

The original document stated:

(f) FCRC shall provide on-site parking for construction workers at levels appropriate in light of the number of workers employed at the site during different stages of construction, to a maximum of 800 spaces. FCRC shall monitor the work force levels throughout the construction period and shall report to ESDC on a quarterly basis as to the number of on-site spaces and the utilization of such spaces. The parking facilities shall have perimeter fencing and shall be accessible only during work hours. Parking fees at rates comparable to commercial off-street facilities in the surrounding area shall be imposed for these spaces. FCRC shall consult with and obtain the approval of ESDC, such approval not to be unreasonably withheld, prior to reducing the number of construction worker parking spaces at the Project site as the number of workers changes and permanent parking locations within the Project site become available for construction worker parking.

The updated document adds mention of lighting and increases the number of spaces:

(f) FCRC shall provide on-site parking for construction workers at levels appropriate in light of the number of workers employed at the site during different stages of construction, to a maximum of 800 spaces. FCRC shall monitor the work force levels throughout the construction period and shall report to ESDC on a quarterly basis as to the number of on-site spaces and the utilization of such spaces. The parking facilities shall have perimeter fencing and shall be accessible only during work hours. Parking fees at rates comparable to commercial off-street facilities in the surrounding area shall be imposed for these spaces. FCRC shall consult with and obtain the approval of ESDC, such approval not to be unreasonably withheld, prior to reducing the number of construction worker parking spaces at the Project site as the number of workers changes and permanent parking locations within the Project site become available for construction worker parking. Any lighting on any interim construction staging and parking area shall be equipped with directional lighting angled to limit light intrusion beyond the site, and shall employ controls to reduce lighting during periods when the facility is not in active use, consistent with site security. The screening measures required herein shall be properly maintained so long as such facility remains in operation. No more than 1100 vehicles, in the aggregate, shall be parked in any surface parking lot(s) on Block 1129 at any one time.

Monitoring program

The new document adds this:

(g) FCRC shall implement a monitoring program to ensure that vibration levels at the Swedish Baptist Church and the town houses along Dean Street immediately adjacent to the Project’s Building 15 site are kept below 0.50 inches/second.

This refers to buildings outside the footprint, east of the Building 15 site, which includes five houses (two already demolished) just east of Sixth Avenue. In the map, the vibration levels will be monitored at the buildings in top left colored pink. (Map from Municipal Art Society; click to enlarge.)

But there are three houses not yet condemned--and waiting for the second phase--that are located inside the Building 15 site. What about them?

Tough luck, says the ESDC. Spokeswoman Elizabeth Mitchell responded to my query:

The monitoring program referenced in the Amended Environmental Commitments memo is specifically for the protection of historic structures that are located within 90 feet of the project site. As documented in the FEIS, the three buildings in the project footprint were not determined to have historic significance, and therefore do not warrant the vibration monitoring program that is identified in the memo.

Temporary open space and a different arena entrance

The new document adds language about interim facilities, including temporary open space and an urban plaza (also known as an Urban Experience).

It also notes--as first mentioned in a Technical Memorandum issued in June--that the arena entrance would temporarily move north and east if and when Building 1 is constructed:

9. In the event FCRC does not expect to commence construction of a particular portion of the Project site or to use such portion of the Project site for interim parking facilities or construction-related activities, including staging, in each case for a period of time to be set forth in the Project Documentation, then such portion of the project site shall be used as publicly accessible temporary open space, subject to safety and security requirements. FCRC shall improve and develop areas to be used as publicly accessible interim open space in accordance with a design and program subject to the approval of ESDC (which is not to be unreasonably withheld), and such open space on the Arena Block shall include amenities such as kiosks, seating areas and landscaping. FCRC shall thereafter operate and maintain such interim public open space in good and clean condition until the property is needed for construction of the Project.

10. In the event that construction of Building 1 is delayed so that the Urban Room will not be completed by the date the arena commences operation, FCRC shall construct an urban plaza at the southeast corner of Flatbush and Atlantic Avenues, in substantially the same location as the location where the Urban Room is to be constructed. The design and program for the urban plaza shall follow the basic use and design principles of the Urban Room as set forth in the Design Guidelines, creating a significant public amenity. The urban plaza shall be a minimum of 10,000 square feet and shall include the following elements: landscaping, retail, seating, the subway entrance and space to allow for formal and informal public uses, such as outdoor performances, temporary markets, art installations and seating. In addition, the plaza may include public art or a prominent sculptural element (such as a canopy or other architectural feature that could be part of the arena and/or the subway entrance). The urban plaza shall be completed and available for public use upon the date of the opening of the arena. Thereafter, FCRC shall operate and maintain the urban plaza in good and clean condition, until such time as the area occupied by the urban plaza is required for construction of Building 1 or the Urban Room.

11. In the event development of Building 1 is delayed so that it will be constructed after the arena commences operation, FCRC shall, for the period of construction of Building 1: (i) relocate the main arena entrances to the north and east side of the arena; (ii) provide directional signage at various point on the arena block, indicating routes to the arena’s entrances and amenities; and (iii) erect pedestrian construction sheds protecting, among other areas, the subway entrance and pedestrian walkways and sidewalks on the arena block.

12. FCRC shall screen the construction staging area and interim parking areas on Blocks 1120 and 1129 with fencing and landscaping installed in accordance with a plan subject to the approval of ESDC, which is not to be unreasonably withheld. If an interim construction staging or parking facility is equipped with lighting, it shall be directional lighting angled to limit light intrusion beyond the site and shall employ controls to reduce lighting during periods when the facility is not in active use, consistent with site security. The screening measures required herein shall be properly maintained so long as such facilities remains in operation.

13. Should there be periods in which there are temporary cessations of site construction, there shall be no major equipment stored on the site; however, the project sites would be maintained and secured.

14. Temporary parking and construction staging areas, if paved or otherwise required by law, shall have on-site detention systems equipped with standard NYCDEP Type 2 catch basins with oil water separators, as required by NYCDEP.

Mitigation Commitments 2006

AmendedEnvCommitmentsMemo122109