ESDC files request to appeal decision ordering new environmental review, says “shadow of uncertainty" shrouds project's Phase 2

Yes, Empire State Development (ESD), the state agency overseeing Atlantic Yards, is not accepting defeat. It is seeking to appeal a unanimous loss last month in the Appellate Division, which upheld a lower court's requirement that a Supplementary Environmental Impact Statement (SEIS) be conducted to examine the impacts of a 25-year project buildout.

The effort may seem like a long shot, but state Court of Appeals has proven friendly to Atlantic Yards before--remember the November 2009 eminent domain decision. It must first agree to accept the appeal. The key part of the ESD's motion:

The Appellate Division's order requiring that a SEIS be prepared to study the impacts of a delay in the Project's construction schedule is an unprecedented expansion of SEQRA [State Environmental Quality Review Act] that would interfere not only with progress being made on the Atlantic Yards Project, but with the progress of other large-scale projects that are subject to delays due to adverse economic conditions or other circumstances.

"Shadow of uncertainty"

I'll have more once I see Forest City Ratner's expected companion motion, and the petitioners' response. But the ESD contends that the court decision "casts a shadow of uncertainty on Phase II of the Project," a shadow elongated by the preparation of the SEIS and the inevitable legal challenges it will prompt.

Then again, Forest City has another decade to build Phase 1, the towers around the arena block, and eight years to start the first tower (of 11) in Phase 2, east of Sixth Avenue.

At a meeting with community stakeholders on 5/2/12, ESD CEO Kenneth Adams said the agency had not decided whether to appeal. Some community members, as well as Council Member Steve Levin, said an appeal sent the wrong message.

Updated: coverage from Crain's NY Business

Here's coverage in Crain's, with quotes from ESD:

“ESD conducted the legally-required hard look analysis at impacts of delay, and our review demonstrated no new significant impact not previously disclosed and addressed,” said Kenneth Adams, president of the Empire State Development Corp. in a statement. “ESD's goal is to keep all phases of the project moving forward to ensure that the community can receive the benefits of a world-class development that will bring thousands of jobs, affordable housing, open space and community facilities to Brooklyn as soon as possible.”
In a statement, a Forest City spokesman said, “We of course agree with the state's decision to appeal and are equally focused on moving this project forward given the promise of jobs, affordable housing and much needed tax revenue for the city and the state.”
However, the project’s opponents believe that there is a very slim chance that the ESDC will be allowed to appeal because two courts found it acted illegally.
“We are disappointed in ESDC’s decision to bring an appeal instead of working with the community to make the project better and just do the environmental impact study,” said Jeffrey Baker, a partner at the law firm of Young Sommer, which is representing Develop Don’t Destroy Brooklyn, a group opposed to the project. “The appeal is a waste of resources.”

Of course, if the state agency wanted the project to proceed "as soon as possible," then it wouldn't have signed a Development Agreement providing 25 years to build the project before penalties--other than regarding a few buildings--kicked in.