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The Culture of Cheating: Ratner claims efforts to comply with construction regulations, but record tells a different story (and the state backed off plan for $10K/day fines)

Barclays Center developer Bruce Ratner, appearing 9/11/12 on Bloomberg Television's "Surveillance," managed to smoothly rewrite the history of Forest City Ratner's (FCR) noncompliance with construction protocols (noise, dust, traffic) and the state's failure to stop such violations.

The failure, actually, goes beyond FCR's noncompliance and a TV host's inability to be skeptical. It implicates the "culture of cheating"--nothing illegal, but a framework that lets private interests trump public interests.

The failure goes back to the December 2009 Memorandum of Environmental Commitments (MEC) that FCR negotiated with Empire State Development, the state agency that has the dicey duty of both overseeing and promoting Atlantic Yards. The MEC was supposed to bind Forest City to construction practices that protected the neighborhood.

In fact, according to documents I viewed via a Freedom of Information Law request, the state at one point sought a $10,000 daily penalty for violations of the MEC. Forest City opposed the penality. The developer clearly prevailed--though the documents I saw didn't explain how the resolution was achieved.

Think about it: even assuming that the state first issued a warning in response to violations, Forest City could have been fined hundreds of thousands of dollars--likely millions--for letting its subcontractors cut corners in the breakneck effort to get the arena and associated infrastructure finished under a tight deadline.

The question, and the evasion

"Two of our Bloomberg Surveillance crew live within the shadow of the Barclays Center, and they are thrilled," stated host Tom Keene. "How did you do this? Usually, if you're near new construction, you hate Bruce Ratner? What have you done? You're the big real estate mogul guy and all that--what have you done to mollify the neighborhood?"

As I noted, I'm sure that those who are "thrilled" have not suffered the brunt of construction impacts; they may be happy because they can walk to an arena.

"Well, actually, the truth of it is," Ratner responded, 'we spent a lot of time, despite what some may say, we spent a lot of time with community groups, with community boards, with neighborhood groups, with churches, with everybody around, doing everything to make sure there was no dust where trucks came in, to washing trucks down, to making sure to keep noise down, to looking at traffic issues. We've done a huge amount. A lot of it doesn't get a lot of public attention, but we really have."

That's Orwellian, almost. See, for example, the local Community Boards' protest that Forest City overstated their participation in the Community Benefits Agreement.

Fact-checking Ratner

No dust when trucks came in. How about dust from trucks continuing for nine hours, as described this past March by Atlantic Yards Watch, the community initiative that has doggedly tracked numerous violations and allows for residents' input?

Washing trucks down. How about, as Atlantic Yards Watch pointed out last December, the absence of wheel washing stations at each exit as promised.

Keeping noise down. How about this open letter, sent in April, to the mayor about noise so troublesome the writer takes sleeping pills to get through the night?

Looking at traffic issues. That's a vague statement. Of course they've been "looking at traffic issues," because they have to try to mitigate the impact of traffic and to discourage driving. But on some key elements of the traffic and parking plan, there are major unknowns.

For example, Forest City's consultant, Sam Schwartz Engineering, said nothing about the value of a residential permit parking plan (RPP), though many near the arena think it's necessary. And while Forest City now says it's not opposed to RPP, it hasn't indicated it would spend the political capital to get it passed.

A damning report

As I wrote in July, a report, prepared for Atlantic Yards Watch by a veteran environmental consulting firm, concluded that FCR and its contractors, bent on getting a huge project finished by a tight deadline, have regularly failed to comply with mitigation protocols officially agreed to, and that other mitigations were implemented late, poorly, or unevenly.

The report, Evaluation of Construction Air Quality and Noise Commitments and Mitigations was conducted by Sandstone Environmental Associates of Metuchen, NJ,  compares official obligations in the MEC with reports by ESD's own consultant, as well as Atlantic Yards Watch incident reports.

The report states:
The construction mitigation measures can be considered a failure for numerous citizens who have experienced extremely loud noise, consecutive sleepless nights due to 24/7 construction activities, clouds of fugitive dust, vibration damage, and other impacts. The problem is not just that FCRC contractors are failing to follow various mitigation measures, but that they are getting away with it.
Why is that? As the report states: 
Penalties for failure to follow MEC are largely absent
  • Drivers can be dismissed under Two Strike policy.
  • Contractors may not be compensated for lost time when forced to mitigate violations of MEC.
  • Otherwise, MEC violations do not cause penalties for FCRC or ESDC.
"It won't happen again"

As I wrote last December, the common mantra from both was Sorry, it won't happen again.

That's what FCR and ESD said after neighbors (via Atlantic Yards Watch) blew the whistle on generators that were making an infernal racket.

That's what ESD said--more or less; they later issued a letter--after neighbors (via Atlantic Yards Watch) cited widespread violations of truck routes.

That's what ESD said after neighbors (via Atlantic Yards Watch) showed how railyard flood lights were left on all night without warning.

That's what ESD said after neighbors (via Atlantic Yards Watch) spotted a contractor disposing of powder on Pacific Street.

Some of these did improve, but new problems cropped up, as the report indicates.

The Bloomberg TV hosts didn't bother to check.

And the state didn't set up a robust framework to preclude such violations.