Skip to main content

In court today, likely the last oral arguments in the remaining Atlantic Yards legal cases (new Determination & Findings; air rights easement)

Likely the last oral arguments in any of the latest round of Atlantic Yards legal cases will be held this morning before Kings County Supreme Court Justice Abraham Gerges, at 9:30 a.m.

The location is Kings County State Supreme Court, IAS Part 74, 320 Jay Street, Room 17.21, Brooklyn. Here's the map.

Both cases are distinct longshots for those challenging the Empire State Development Corporation (ESDC), but still could provoke some interesting volleys. Both cases are named for property owner Peter Williams, but he actually doesn't remain a party in the first case.

New Determination & Findings?

In June, as I wrote, in a brief, five-page decision in the case known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), state Supreme Court Justice Marcy Friedman essentially rejected a challenge by property owners that the Atlantic Yards project has changed so much that the ESDC should be forced to issue a new Determination & Findings to proceed with eminent domain.

Friedman did not formally reject the case, because she didn't examine the Development Agreement or get to the merits.

Instead, she moved it from New York County (Manhattan) to Kings County, as the ESDC had requested. In Kings County, Justice Abraham Gerges, who handles condemnations, already rejected similar arguments when rejecting a direct challenge from property owners to the condemnations.

The difference between the Williams case Friedman moved to Brooklyn and the case Gerges already decided is that the Development Agreement, which points clearly to a much longer buildout than the official ten-year timetable, had barely emerged at the time of the oral argument in January before Gerges, and was not formally added to the case.

Though Friedman indicated that five of the six petitioners were located in Kings County, it's a little more ambiguous, as three of them (as she failed to note) had left the case. They had done so as part of the process of reaching eminent domain settlements. Those who settled were Williams, condo owner Daniel Goldstein, and Freddy's Bar & Backroom.

The remaining petitioners are two entities owned by Henry Weinstein, a longtime owner of property near the corner of Carlton Avenue and Pacific Street, and The Gelin Group, occupants of a house on Dean Street east of Sixth Avenue, slated for condemnation in a later phase of the project.

Friedman is still considering a separate case, brought by coalitions organized by Develop Don't Destroy Brooklyn and BrooklynSpeaks, challenging the legitimacy of the ESDC's ten-year timeframe and requesting a Supplemental Environmental Impact Statement to evaluate project impacts over a longer period.

In that case, she did consider the belatedly-released Development Agreement.

The air rights case

The other case involves a claim by Peter Williams Enterprises (PWE), who owned 38 Sixth Avenue, adjacent to the Spalding Building at 24 Sixth Avenue, that that the state made a "colossal mistake" in not pursuing eminent domain for the easement bordering and above the Spalding Building. Williams has said he's motivated by money, not any anti-project feelings.

The ESDC's motion to dismiss, below, calls it a "meritless lawsuit... brought for the sole purpose of attempting to interfere with and delay" the project. Not only does the complain lack legal foundation, according to Charles Webb's affirmation, but plaintiff PWE executed a release waiving any claims.

While the complaint alleges that the easement agreement gave PWE ownership of tax lot 7501, that is not a real tax lot. According to an affirmation from a senior tax counsel with the New York City Department of Finance, such a designation is given for administrative billing purposes only. The condominium declaration for 24 Sixth Avenue does not mention a Lot 7501.

Moreover, Webb stated, when ESDC condemned 38 Sixth Avenue, it also acquired PWE's interest in the easement; thus, the pre-vesting offer to PWE (only $423,000) included $114,000 for the easement. PWE, in settling the claims for 38 Sixth Avenue, signed a release agreeing not to pursue any claims regarding the property.

The FCR motion

According to the Forest City Ratner motion to dismiss, the Atlantic Yards Development Company paid a sum "substantially in excess of the sum that previously had been offered to PWE by ESDC."

The motion, in an affirmation from attorney Jeffrey Braun, argues that PWE's "heavy-handed" press release was attempted to embarrass ESDC in the media, part of a "shameless effort to shake down FCRC and its affiliates for more money."

An easement, according to the Court of Appeals, is an appurtenance to the land benefited by it, the motion states.

The plaintiff's response

Attorney Matthew Brinckerhoff, who represents the property owners in both cases, responded that the ESDC's motion to dismiss "is nothing more than a poorly disguised motion for leave to amend" the public hearing notice and the Determination & Findings to include the unmentioned tax Lot 7501--an action that would re-start the eminent domain process.

It was the ESDC, according to Brinckerhoff that chose to list parcels by tax lot rather than the "traditional metes and bounds" physical description of properties.

The affirmation from Joy Bobrow, Senior Tax Counsel at the city Department of Finance, is inappropriate, according to Brinckerhoff. Rather, the facts as presented in the complain must be accepted as true on a motion to dismiss.

Brinckerhoff states:
Whether Lot 7501 is most accurately characterized as a fee interest in property above the plane within the metes and bounds set forth in the document (as Plaintiff contends) or a compensable property interest of a different sort, such as an easement (as Defendants contend), the one thing we know with absolute certainty is that it was a valuable, duly recorded, property interest that the [ESDC] never identified and thus did not condemn and does not now own.
A footnote states:
Plaintiff has monitored, as best it can, Defendants' activities on and around Lot 7502 and have not observed any encroachment. Plaintiff, however, reserves its right to seek an order prohibiting trespass on its property should such a trespass occur or appear imminent.
Um, that's going to happen.

As for whether PWE released its right to the property interest, Brinckerhoff notes that the release was limited to 38 Sixth Avenue--a fact omitted by Braun.

ESDC response

A second affirmation by Webb asserts that the plaintiff did not address the fact that Lot 7501 is not a true tax lot, nor acknowledge that the original agreement was in fact called an easement.

Nor did the plaintiff address the fact that the acquisition map for 24 Sixth Avenue did set forth the metes and bounds.

Webb says that the release signed by PWE regarding the sale of the building discharges any and all claims that could have been brought in the condemnation proceeding.

ESDC Motion to Dismiss, PWE case

Forest City Ratner Motion to Dismiss, PWE case

Matthew Brinckerhoff Affirmation Opposing Motion to Dismiss, PWE case

Affirmation of Charles Webb, Motion to Dismiss


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…

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…

Atlanta's Atlantic Yards moves ahead

First mentioned in April, the Atlantic Yards project in Atlanta is moving ahead--and has the potential to nudge Atlantic Yards in Brooklyn further down in Google searches.

According to a 5/30/17 press release, Hines and Invesco Real Estate Announce T3 West Midtown and Atlantic Yards:
Hines, the international real estate firm, and Invesco Real Estate, a global real estate investment manager, today announced a joint venture on behalf of one of Invesco Real Estate’s institutional clients to develop two progressive office projects in Atlanta totalling 700,000 square feet. T3 West Midtown will be a 200,000-square-foot heavy timber office development and Atlantic Yards will consist of 500,000 square feet of progressive office space in two buildings. Both projects are located on sites within Atlantic Station in the flourishing Midtown submarket.
Hines will work with Hartshorne Plunkard Architecture (HPA) as the design architect for both T3 West Midtown and Atlantic Yards. DLR Group will be t…

Forest City acknowledges unspecified delays in Pacific Park, cites $300 million "impairment" in project value; what about affordable housing pledge?

Updated Monday Nov. 7 am: Note follow-up coverage of stock price drop and investor conference call and pending questions.

Pacific Park Brooklyn is seriously delayed, Forest City Realty Trust said yesterday in a news release, which further acknowledged that the project has caused a $300 million impairment, or write-down of the asset, as the expected revenues no longer exceed the carrying cost.

The Cleveland-based developer, parent of Brooklyn-based Forest City Ratner, which is a 30% investor in Pacific Park along with 70% partner/overseer Greenland USA, blamed the "significant impairment" on an oversupply of market-rate apartments, the uncertain fate of the 421-a tax break, and a continued increase in construction costs.

While the delay essentially confirms the obvious, given that two major buildings have not launched despite plans to do so, it raises significant questions about the future of the project, including:
if market-rate construction is delayed, will the affordable h…

Not quite the pattern: Greenland selling development sites, not completed condos

Real Estate Weekly, reporting on trends in Chinese investment in New York City, on 11/18/15 quoted Jim Costello, a senior vice president at research firm Real Capital Analytics:
“They’re typically building high-end condos, build it and sell it. Capital return is in a few years. That’s something that is ingrained in the companies that have been coming here because that’s how they’ve grown in the last 35 years. It’s always been a development game for them. So they’re just repeating their business model here,” he said. When I read that last November, I didn't think it necessarily applied to Atlantic Yards/Pacific Park, now 70% owned (outside of the Barclays Center and B2 modular apartment tower), by the Greenland Group, owned significantly by the Shanghai government.
A majority of the buildings will be rentals, some 100% market, some 100% affordable, and several--the last several built--are supposed to be 50% market/50% subsidized. (See tentative timetable below.)

Selling development …

For Atlantic Yards Quality of Life meeting Sept. 19, another bare-bones agenda (green wall?)

A message from Empire State Development (ESD) reminds us that the next Atlantic Yards/Pacific Park Quality of Life Meeting--which aims to update community members on construction and other issues--will be held:
Tuesday, September 19, 2017 @ 6 pm
Shirley Chisholm State Office Building
55 Hanson Place
1st Floor Conference Room
Brooklyn, NY 11217 The typically bare-bones, agenda, below, tells us nothing about the content of the presentation. One thing to look for is any hint of plans to start a new building on the southeast block of the project by the end of the year.

If not, ESD is supposed to re-evaluate a longstanding request from project neighbors to move back a giant wall encroaching on part of Dean Street between Carlton and Vanderbilt avenues. It's said to enclose construction activity, but, in recent months, has significantly served to protect worker parking.

Also, by the way, if you search for Atlantic Yards on Google or the ESD website, it leads to this page for the Atlantic Ya…