DDDB lawyer says ESD mispresented Atlantic Yards history; state agency says no, but look at the evidence

As noted, the Final Scope for a Supplementary Environmental Impact Statement (SEIS) for Phase 2 of Atlantic Yards contains a lengthy Response to Comments document (bottom), which I will excerpt in several posts. (The Final Scope was issued 2/7/1, but the actual court-ordered SEIS will not arrive until sometime in the spring.)

And, as I wrote, Empire State Development (ESD), the state authority overseeing/shepherding Atlantic Yards, does not give much ground to community concerns.

Jeff Baker, attorney for Develop Don't Destroy Brooklyn--one of the two coalitions whose lawsuits led to the court-ordered SEIS--wrote to chide ESD for revising history and omitting the authority's sketchy behavior in extending the project buildout to 25 years.

The state responded that he was wrong, but I disagree, as explained below.

Charging a misstatement

Baker's comment:

Comment 7: The Introduction of the Draft Scope of Work misstates the procedural posture of this project and the circumstances that gave rise to this SEIS. Unmentioned in the Draft Scope of Work is that in 2009, faced with major changes in the project, namely the phased acquisition of the Vanderbilt Yards by FCRC from the MTA, ESD continued to assume a 10-year build out for the project as the basis for its SEQRA determination. ESD ostensibly did so based upon assurances that FCRC would use "commercially reasonable efforts" to complete the project by 2019. As New York State Supreme Court Justice Marcy Friedman found (and as was confirmed by the Appellate Division), ESD knew at the time that the contract documents being drafted allowed for up to 25 years for project completion before FCRC would be in danger of losing its position as the project developer. It was that change in the project timing and ESD's failure to properly consider that change on remand in 2010 that precipitated the court's order that an SEIS be prepared. The SEIS must properly recount the history of the litigation and subsequent reviews. (Baker)

(Emphases added)

The response:

Response: As stated in the Draft Scope, the SEIS for Phase II of the Project is being prepared to comply with the Order of New York State Supreme Court dated July 13, 2011. In accordance with that order, the SEIS will focus on the environmental impacts of a prolonged construction schedule of the Phase II program and will assume for analysis purposes that the Project will be completed in 2035. The commenter errs in asserting that the Draft Scope contains misstatements with respect to the litigation that gave rise to the Order.

Who's right?

I think Baker is largely correct, if we consider a "misstatement" to be an incomplete statement that misleads the reader. ESD remains narrowly, defensibly correct in stating that the Draft Scope description is not incorrect. It's just incomplete.

Let's look at the documents. First, from the notice on the cover page of the Draft Scope:

In an Order dated July 13, 2011, the Supreme Court for New York County directed ESD to prepare a Supplemental Environmental Impact Statement (SEIS) to assess the environmental impacts of delay in Phase II construction of the Project. In 2012, that Order was affirmed by the Appellate Division of State Supreme Court.

That's pretty general statement. OK, let's look at the Draft Scope itself, beginning with the procedural history:

In November 2006, the New York State Urban Development Corporation, a public benefit corporation of New York State doing business as Empire State Development Corporation (ESD), in cooperation with the Metropolitan Transportation Authority (MTA) and the City of New York (the City), prepared the Final Environmental Impact Statement (FEIS) for the Atlantic Yards Arena and Redevelopment Project (the Project) in Brooklyn... In December 2006, ESD adopted its SEQRA findings. In December 2006, ESD also affirmed a Modified General Project Plan (the 2006 MGPP) for the Project.
The 2006 MGPP and FEIS described and examined the Project in two phases (Phase I and Phase II). Phase I is comprised of an Arena, four other buildings (Buildings 1, 2, 3 and 4) and a new subway entrance on the Arena Block, which is located at the southeast corner of Atlantic and Flatbush Avenues, in the area bounded by Atlantic, Sixth and Flatbush Avenues and Dean Street....Phase II comprises a platform over the new LIRR yard, 11 buildings (Buildings 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15) south of Atlantic Avenue between Sixth and Vanderbilt Avenues, below-grade parking facilities in that area, and 8 acres of publicly accessible open space in that area. Phase I includes all components of the Project west of 6th Avenue and some components east of 6th Avenue; all Phase II components are east of 6th Avenue.
In June 2009, ESD approved a resolution adopting certain modifications to the 2006 MGPP as set forth in a second Modified General Project Plan (2009 MGPP). A Technical Memorandum (2009 Technical Memorandum) was prepared that described the proposed modifications, changes related to design development, changes to the Project‘s schedule, and changes in background conditions and assessed whether the Project as envisioned would result in any new or different significant adverse environmental impacts not previously identified in the FEIS. The 2009 Technical Memorandum discussed shifts in completion years for Phase I of the Project from 2010 to 2014, and full build-out from 2016 to 2019. In addition, the 2009 Technical Memorandum assessed the potential for a delayed completion of Building 1 (the commercial building on the Arena Block) as well as a post-2019 build-out scenario for the Project, for which 2024 was selected as a hypothetical completion year.

That meant a 15-year buildout, though contracts allowed 25 years.

Responding to the delay

The Draft Scope continues:

In 2010, a second Technical Memorandum (the 2010 Technical Analysis) was prepared to comply with an Order of the Supreme Court for New York County dated November 9, 2010. The 2010 Technical Analysis evaluated the potential for new significant adverse environmental impacts not previously disclosed in the FEIS from a prolonged delay beyond the 2024 hypothetical completion year assessed in the 2009 Technical Memorandum. For analysis purposes, the potential post-2024 condition was assumed to extend to 2035.
In 2009 (on the basis of the FEIS and 2009 Technical Memorandum) and then in 2010 (on the basis of the FEIS, 2009 Technical Memorandum, 2010 Technical Analysis and other documents), ESD determined that a Supplemental Environmental Impact Statement (SEIS) was not required or warranted in connection with the 2009 MGPP. However, those determinations were challenged in a proceeding before the Supreme Court for New York County. In an Order dated July 13, 2011, the Court rejected the SEQRA challenges to Phase I of the Project,...[but] "remanded ―the matter…to ESD for further environmental review consistent with this decision, including preparation of a Supplemental Environmental Impact Statement assessing the environmental impacts of delay in Phase II construction of the Project; the conduct of further environmental review proceedings pursuant to SEQRA in connection with the SEIS, including a public hearing if required by SEQRA; and further findings on whether to approve the MGPP for Phase II of the Project." In 2012, that Order was affirmed by the Appellate Division of State Supreme Court.

As noted, that's not incorrect. It's just incomplete, and omits the state authority's sketchy behavior.

Draft Scope for Atlantic Yards SEIS, December 2012

Atlantic Yards, Response to Comments on Draft Scope for Supplementary EIS, Feb. 7, 2014