With Draft SEIS, AKRF tab for Atlantic Yards rises to $7.7 million; "anticipated" litigation support for lawsuit
The contract is funded completely from a continually replenished imprest account funded by affiliates of the developer, Forest City Ratner, and maintained by the gubernatorially-controlled ESD.
AKRF, it should be remembered, has been working on Atlantic Yards since June 2003, first for Forest City, then, in September 2005, for the state, reimbursed by Forest City. Such consecutive representation was seen not as a conflict but as an aid to efficiency.
On one level, the rising tab for the environmental review might be seen as an example of what academic/architect/developer Vishaan Chakrabarti has called a "kind of workfare program for lawyers and consultants.”
Then again, the extra $1 million, to Forest City, surely is preferable than having had to fund an SEIS in 2009, when Atlantic Yards went through a new approval process and ESD agreed to to a 25-year buildout rather than ten years, which was long professed, or 15 years, which was studied as an exmple of delay.
Such a 2009 SEIS likely would have delayed the approval past a crucial end-of-year deadline to get tax-exempt bonds for the arena, which may have saved Forest City some $150 million.
A couple of highlight
In the Board Materials below, I've bolded a couple of things. First, the lawsuits were attributed to "project opponents," though the BrooklynSpeaks coalition, as opposed to the petitioners led by Develop Don't Destroy Brooklyn, was never trying to kill the project.
Also, ESD anticipates litigation regarding the Draft SEIS. There's been one hint of legal action, but nothing concrete.
From the Board Materials:
Background and Prior Environmental Review
The Project, located on 22 acres in Brooklyn at Flatbush and Atlantic, includes development of: the completed Barclays Arena; improved and reconfigured subway facilities and Long Island Rail Road train yard; 16 new buildings, primarily for residential, but also for office, retail, and potentially hotel use; and eight acres of publicly accessible open space.
In 2006, ESD (as lead agency), with the City and MTA (as involved agencies), conducted an environmental review of the Project as described in the 2006 Modified General Project Plan (“2006 MGPP”), resulting in the Project’s Final Environmental Impact Statement (“FEIS”), as required by New York State Environmental Quality Review Act (“SEQRA”).
In 2009, ESD affirmed certain modifications to the 2006 MGPP, resulting in the 2009 Modified General Project Plan (“2009 MGPP”), after again taking a “hard look” (as required by SEQRA) at potential environmental impacts of the 2009 changes. A 2009 Technical Memorandum concluded that the modifications comprising the 2009 MGPP, design developments, and the potential for extended construction delays would not result in any significant adverse environmental impacts not previously identified in the FEIS and did not warrant preparation of an SEIS.
Project opponents commenced litigation alleging that SEQRA required ESD to prepare an SEIS prior to approving the 2009 MGPP. In November 2010, the court found that ESD’s environmental review of the 2009 MGPP did not properly account for potential extended build‐out of the Project under ESD and MTA agreements with FCR. In response, ESD undertook further environmental assessment under SEQRA, resulting in the 2010 Technical Analysis (analyzing a delay in the Project construction schedule to 2035, the outside date for Project construction completion set forth in the Project Documents, subject to certain terms and provisions), and, based on such further review, re‐affirmed the determination of the 2009 Technical Memorandum that the potential for an extended construction schedule did not warrant preparation of an SEIS.
In 2011, the court nonetheless found that an SEIS was required to study the potential environmental impacts of an extended construction period for Phase II of the Project.1 The court therefore directed ESD to prepare an SEIS assessing the environmental impacts of a delay in Phase II construction; conduct further environmental review proceedings pursuant to SEQRA in connection with the SEIS; and issue further findings on whether to approve ESD’s general project plan for Phase II of the Project. In 2012, the trial court’s Decision and Order was affirmed by the appellate court.
The Arena, new transit entrance, and the temporary rail yard have been completed. The first residential building and the permanent rail yard are currently under construction. A Draft SEIS has been completed and has been circulated for public review and comment. A public hearing was held on April 30th, comments are being collected, and a Final SEIS will be prepared which will include responses to comments received regarding the draft SEIS.
Proposed Contract Amendment
Pursuant to Director authorization on September 29, 2005, ESD initially retained AKRF to perform environmental consulting services in connection with the Project in an amount not to exceed $1,500,000. Since such initial authorization, the Directors have authorized a first amendment (April 2006) of $600,000, a second amendment (September 2006) of $2,056,230, a third amendment (May 2007) of $630,000, a fourth amendment (March 2010) of $250,000, and a fifth amendment (October 2011) of $1,700,000 for a current contract total of $6,736,230. As indicated, the contract has been funded, in its entirety, from an imprest account funded by FCR.
Additional funds are required due to: extended review and revision of the SEIS draft scope of work and related response to comments; review sessions with the SEIS team that numbered many more than had originally been budgeted; refinements of construction related noise and traffic analysis in response to team and agency comments; restructuring of DSEIS chapters; a number of further reviews requested by ESD and environmental counsel either in response to public review comments received on the draft scope or during the course of preparing the DSEIS; additional technical memoranda between draft and final SEIS; anticipated litigation support; and contingencies. As a result of this additional work, AKRF has already performed services beyond the upset amount of the current contract, which work will be paid for from the additional funds requested under this contract amendment.
During the course of this retention, AKRF has, among other work: (a) produced a draft and final environmental impact statement; (b) catalogued, reviewed, and responded to voluminous public comment on multiple occasions; (c) produced the 2009 Tech Memo; (d)produced the 2010 Tech Analysis; (e) produced a draft and final scope of work for the SEIS; (e) produced the Draft SEIS accepted by the Directors on March 28, 2014; and (f) conducted other environmental reviews and studies as requested by ESD. AKRF is now in the process of responding to comments and producing the Final SEIS.
AKRF is uniquely qualified to complete the Final SEIS given its involvement with the Project and its SEQRA reviews since inception. AKRF has been a long‐time key environmental consultant to numerous ESD projects, including Brooklyn Bridge Park, Moynihan Station, One Bryant Park, Queens West, and the 42nd Street Project. In connection with this Atlantic Yards Project, and for numerous other ESD projects, AKRF has demonstrated a consistent ability to produce complex work of a superior quality under severe time constraints. Further, in completing such assignments, AKRF has accumulated a wealth of experience and information not readily available elsewhere and which is directly transferable to this Project. No other New York City environmental consultant known to ESDC staff has the resources, experience, database, staff depth, familiarity with the Atlantic Yards Project, and proven reliability of AKRF.
Accordingly, for the reasons stated above, an amendment of the AKRF contract for this Project in the amount of $1,000,000 is requested. As stated above, the previous total amended contract amount approved by the Directors is $6,736,230; therefore, the revised contract total amount would be $7,736,230. The amended contract will continue to be funded, in its entirety, from the imprest account funded by FCR.
Footnote 1: For planning purposes, the Project is divided into Phase I and Phase II. Phase I is comprised of: site clearance and environmental remediation; relocation of utilities; six new buildings west of Sixth Avenue (including the Barclays Arena) and associated below‐grade permanent parking facilities; a new subway station entrance adjacent to the Arena; a reconstructed and improved LIRR Yard and associated rail facilities; a new Carleton Avenue bridge spanning the Yard; and temporary surface parking facilities. Phase II is comprised of: a platform over the Yard; eleven residential buildings east of Sixth Avenue and associated below‐grade permanent parking facilities and infrastructure; and the creation of 8‐acres of publicly accessible open space.