DDDB comments on Draft SEIS: state goes through "extreme mental gyrations" to avoid analyzing Atlantic Yards alternatives

Yesterday was the deadline to comment on the Atlantic Yards Draft Supplemental Environmental Impact Statement (Draft SEIS or DSEIS) regarding the impacts of a potential 25-year buildout. The Draft SEIS was ordered by a judge after two coalitions, led by Develop Don't Destroy Brooklyn (DDDB) and BrooklynSpeaks, filed separate lawsuits challenging, among other things, the state's decision to extend the project deadline without analysis of delay.

Tomorrow, I'll look at BrooklynSpeaks' extensive comments (the summary is headlined ESDC's DSEIS preserves Forest City's right to delay Atlantic Yards, ignores critical need for housing now).

Below I've excerpted comments from DDDB attorney Jeff Baker, whose full comments are at bottom.

Note that Baker, like DDDB legal coordinator Candace Carponter at the 4/30/14 public hearing to accept testimony on the Draft SEIS, warned of a potential lawsuit regarding the failure of Empire State Development (ESD), the state agency overseeing/shepherding the project, to study alternatives to Forest City's plan, such as bidding out the parcels to multiple developers

That must have been at the core of the talking points, distributed by developer Forest City Ratner, warning that "benefits cannot be realized if there continues to be litigation delaying the project." (The Draft SEIS concerns only Phase 2, the 11 towers east of Sixth Avenue, and there's no potential litigation affecting Phase 1; the delays there reflect business decisions by Forest City.)

Insufficient time to comment

Baker notes that May 12 was the deadline for comments on the extensive Draft SEIS, but the state is legally required to offer more time, until May 30, to make comments on the far less extensive proposed changes--a shift in bulk from Phase 1 to Phase 2, and a reduction in parking--to the Modified General Project Plan (MGPP), which governs the project.

Baker writes:

As an initial comment, DDDB strongly objects to the grossly insufficient time given to comment on a document of this size and complexity. ESD must admit that it has had over two years to work on this document and is providing the only the bare minimum of legally required time to comment. This is further evidence of ESD’s historical disdain for public comment and determination to avoid transparency and public involvement. ESD’s atrocious behavior, which has been commented upon by several courts, is further evidenced by the fact that the comment period on the MGPP lasts until May 30th. As ESD is well aware, that slightly longer comment period is required pursuant to Section 16 of the UDC [Urban Development Corporation] Act which requires a minimum of a 30-day comment period following the public hearing on the MGPP. It is quite obvious that if ESD actually cared about public comment, it would, at a minimum have had the comment period for the SDEIS [sic] match the comment period on the MGPP. Its failure to do so and refusal to extend the comment period at the request of various individuals and organizations is a clear and unequivocal indication that the current SEQRA [State Environmental Quality Review Act] process is the same farcical exercise that has marked the review of this project since its inception.

No Description of Project Need

Baker writes:

The DSEIS is largely silent on the question of project need or why the project must be built and the goals it is supposedly meeting. This is obviously important as it is directly relevant to the question of alternatives and available mitigation for the admitted unmitigated adverse impacts. ESD forgets that it must make findings for the MGPP and determine that the project meets the requirements of the UDC Act. Without an honest assessment of the project need there is no way to make that assessment.

Indeed, the 2006 Final Environmental Impact Statement (FEIS), in its Executive Summary, had a section headed "PROJECT PURPOSE AND NEED":

The overarching goal of the proposed project is to transform a blighted area into a vibrant mixed-use community. The proposed project aims to provide a state-of-the-art arena, affordable and market-rate housing, first-class office space, publicly accessible open space, local retail and community services, a hotel (under one variation of the project program), a new subway entrance, and an improved rail yard. The proposed project’s buildings would contribute to the Brooklyn skyline, and the open space would connect the surrounding neighborhoods, which are currently separated by the open rail yard and a major avenue (Atlantic Avenue). More specifically, the proposed project is intended to:
1. Enhance the vitality of the Atlantic Terminal area by providing new residential, retail, office, and hotel space that will capitalize on the project’s proximity to one of the major subway hubs in New York City; removing the physical and visual barrier created by the existing below-grade rail yard that separates the neighborhoods of Boerum Hill, Downtown Brooklyn, Fort Greene, Clinton Hill, Prospect Heights, and Park Slope; eliminating blighted conditions on the project site, including dilapidated and structurally unsound buildings, debris-filled vacant lots, and underutilized properties; remediating environmental conditions; contributing to the Brooklyn skyline and streetscape with distinctive buildings and a cohesively designed open space; fostering and supporting growth through job creation and economic activity during construction and operation of this mixed-use development.
2. Provide for new development to support the current and future residents of the Atlantic Terminal area and the borough as a whole by contributing to the City’s effort to meet the demand for affordable and market-rate housing by providing approximately 6,430 housing units, including 4,500 rental units, 50 percent of such rentals being affordable to low-, moderate- and middle-income families; creating a first-class arena for a professional sports team and an entertainment venue to meet the needs and demands of the New York City area—primarily Brooklyn; creating publicly accessible active and passive open space with amenities encouraging year-round use; providing community facility spaces, including a health care center and an intergenerational facility, offering child care, youth, and senior center services.
3. Improve railroad and subway facilities by expanding rail yard capacity, providing direct rail access to the rail yard from Atlantic Terminal through a new West Portal, building a new drill track to allow for the switching of 10-car trains, installing new toilet manifolds for unrestricted servicing, and adding signal, interlocking, and switching systems; platforming over the new rail yard to increase pedestrian connections between neighborhoods; and improving subway access and pedestrian safety by opening a subway station entrance on the south side of Atlantic Avenue at Flatbush Avenue.

There is no such statement in the Draft SEIS, though the Executive Summary chapter states that "there are no reasonable alternatives to the Project that would meet its purpose and need." So presumably that purpose and need--despite the implied delays for open space and affordable housing--remains.

Baker writes:

ESD must consider the changed conditions since the previous EIS in 2006, in both the surrounding neighborhoods and the nature in which the project is being constructed. A significant element of the approval of the project in 2006 was based upon the expected economic benefits of the construction jobs and sales taxes generated by construction. However, the first building being constructed in Phase I after the Arena is being built as pre-fab units using significantly less labor than was previously considered and generating less sales taxes. While the SDEIS [sic] claims that the Greenland Group will revert to the original construction methods, there is no indication that is a binding commitment and that the projections of jobs and tax revenues are still accurate.

I'm not sure that the Draft SEIS does say Greenland will use conventional construction, though that has been in press accounts.

Unmitigated Impacts

Baker notes that, given ESD's commitment to Forest City's plan, it won't consider ways to mitigate impacts:

In the 2010 Technical Analysis by ESD following the court’s remand, ESD said that the delay in project completion to 2035 would not result in increased impacts because construction would be less intense. Now in the DSEIS, ESD admits there will be significant adverse environmental impacts to community facilities, the availability of open space during construction (lasting at least until 2035), transportation (both during construction and after completion) and construction related noise. While the DSEIS claims those impacts have been mitigated to the maximum extent practicable, it also recognizes that the predicted shortage in school space, operational traffic and pedestrian issues and construction traffic and noise cannot be mitigated. However ESD fails to consider any alternatives or changes in the project that can mitigate those impacts.

Impacts to Community Character

The Draft SEIS, given its account of gentrification, counters one of the most specious aspects of the 2006 review, a Blight Study that claimed that vacancies and graffiti and small buildings meant that the 22-acre footprint, and only that footprint, was blighted.

Baker writes:

Throughout the original review of this project, DDDB strenuously contested EDC’s claim that the area was blighted. DDDB pointed out that ESD ignored and a failed to study then current real estate trends which indicated increasing private sector investment in the surrounding area, particularly the development along Pacific Street. In fact, EDC even violated its own contract with AKRF which was supposed to complete the blight study by omitting any such market study.
Now, in a striking absence of any shame or self-awareness, the SDEIS notes that blight is no longer a problem and that area rents and purchase prices are rising and will continue to do so over the now extended project time frame. It is also noted that the surrounding minority population is dramatically decreasing as housing prices are increasing. The net result is that this project, in conjunction with other market forces, is adding to the gentrification of the area and driving lower income groups from the area. That drive will not be mitigated by the limited amount of affordable housing provided by this project. Moreover, that affordable housing will become less affordable as the AMI upon which the rents will be based are rising, thus skewing the “affordability” of the rents.
The SDEIS seems to be completely silent on that issue and consideration of how this project will increase both the rate an extent of the gentrification. Gentrification is an impact and a change in community character and is a prime issue of consideration under SEQRA, one of the areas of which EDC must take a hard look. By failing to recognize and address the impact on community character, is a clear violation of SEQRA.

This issue gets even more analysis in the BrooklynSpeaks submission. And I wrote about it yesterday.

Assessment of Project to date

The impact of Phase 1 gets ignored in the review, notes Baker. (Perhaps that's because the review is limited to Phase 2, but the impact of arena operations sheds light on the project as a whole.) He writes:

The SDEIS seems to either avoid or gloss over the experiences to date with the Arena and the initial construction of Phase I. Notably there is no discussion of the effectiveness of the identified mitigation measures particularly with regards to traffic controls and noise. ESD has received numerous and regular complaints of traffic problems with the Barclays Arena especially with regard to illegal parking. There have also been numerous complaints about noise from the Arena. The SDEIS fails to address these issues and fails to evaluate modifications of the mitigation measures.

Alternatives

The longest passage in Baker's submission regards the failure to consider alternatives and reasons to distrust Forest City:

While the alternatives section is supposed to be the heart of the EIS, in this case the heart has been cut out. Rather than provide a fresh assessment of the goals of the project and alternatives to meet those goals, ESD undertakes extreme mental gyrations to avoid an analysis that could result in redesigning the project and/or splitting the project up amongst multiple developers. The reasons for doing so are legally deficient and specious.
In 2006 and 2009 ESD and FCRC lied to the public when they claimed the project would be built in 10 years and minimized the likely impacts. Now, forced to deal more with reality they are admitting there will be significant unmitigated adverse impacts. Instead of modifying the project to reduce those impacts, ESDC claims it must stay with the FCR project without any analysis of why that is really necessary.
Current FCRC CEO Mary Ann Gilmartin has already been found by the courts not to be credible. In the lawsuit filed by DDDB against the 2009 approval, Gilmartin submitted an affidavit stating that FCRC was committed to using commercially reasonable efforts to complete the entire project by 2019. Justice Friedman specifically found her affidavit not credible [AYR: see p. 8 here] since it did not include any financial information showing that FCRC actually had the ability to do so. Subsequent delays in moving forward with even the first building in Phase I and recent requests to delay completion of the railyard further demonstrate that past statements by Ms. Gilmartin and other FCRC officials are simply not credible. Therefore the continued reliance upon FCRC and any representations it makes are without any rational basis.

Unwinding Forest City's deal

How hard would it be to involve multiple developers? ESD, as I wrote, said it would be very difficult to unwind the deal, but only because the state changed the rules. Baker isn't convinced, and says the agreements were invalid:

ESD dismisses in very cursory fashion the available alternative of seeking multiple developers to complete project. ESD claims that FCR has too many contractual and vested rights and that dividing the project will be too difficult and time-consuming involving so many agencies and entities that it is not a feasible alternative. ESD’s analysis is legally and factually wrong and demonstrates a shocking level of hubris and hypocrisy given ESD’s past actions on this project.
All of ESD’s analysis assumes that the exact project approved in 2006 must be built despite the significant change in market forces. ESD fails to consider any lesser alternatives or modifications to Phase II (even though it is proposing to move 208,000 sq ft of residential development from Phase I to Phase II). ESD has not had any discussion with community groups seeking input on changes to the project.
ESD claims that the project agreements signed with FCRC in December 2012 are binding contractual commitments, however all of those agreements were signed after the illegally adopted MGPP since the SEQRA analysis was fraudulent and has since been overturned. Simply put, agreements signed by ESD in violation of SEQRA for which FCRC was complicit in the fraud cannot be considered binding limitations on the consideration of alternatives.

Reversing eminent domain

Baker suggests the state could use its powers to get the project done faste:

ESD makes the absurd claim that FCRC has acquired many of the properties on the Phase II blocks and thus acquisition of those may be difficult and time consuming. ESD seems to forget that it has the power of eminent domain and has used that power in this project to facilitate the construction of the Barclays Center. It would seem fairly obvious that ESD could use the same power to acquire the properties to complete a project if FCR is unwilling or unable to do so. The fact that the SDEIS ignores that basic fact and simply uses it as a basis to ignore alternatives points to the fundamental flaws in the SDEIS.

A crowning irony

Baker points to a fundamental irony in an procedural claim from ESD:

ESD also claims that to reconfigure the project will be so time consuming because of the need to solicit RFPs conduct multiple reviews and negotiate new contracts. This is curious because ESD never solicited RFPs for the initial proposal approved in 2006. Moreover, MTA only conducted a cursory and fallacious RFP process in 2005 providing the barest minimum of time for bidders to submit proposals for the Vanderbilt Yards.
The delays and complexities used as an excuse by ESD as to why it cannot consider other developers and their proposals are striking as they never were factors in ESD’s calculations of a build years during the 2006 and 2009 reviews. It is curious that now those are real factors to consider but were never relevant factors in the prior reviews.
ESD claims that many of the financial commitments of FCRC create some form of vested rights that preclude changing developers. But most if not all of the financial commitments were required to construct the Arena and thus FCRC has already received those benefits (not to mention the hundreds of millions of dollars in city and state contributions). To the extent FCRC has actually spent any significant funds on improvements solely related to Phase II, reallocation of those costs and any potential reimbursement would be considered in the revised proposals.

Conclusion: a "mockery"

Baker's submission closes with a warning:

EDC continues its practice of making a mockery of the SEQRA process by constraining the review to only that presented by FCRC. EDC and FCRC bemoan the delays caused by what they claim are the concerns and litigation of the surrounding community, yet neither organization has bothered to reach out to DDDB or other groups to discuss their concerns. ESD must reconsider this DSEIS and release a new version that properly considers alternatives, otherwise it will face continued opposition and litigation.