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Atlantic Yards/Pacific Park graphic: what's built/what's coming + FAQ (pinned post)

An absurdist dialogue: noisy construction activity on site isn't "construction" unless it's vertical

This is the fifth of several articles based on discussion at the 1/22/19 Atlantic Yards/Pacific Park Quality of Life meeting. The first concerned timing for the B15 tower, with school, and the B4 tower. The second concerned questions about the affordability of future income-restricted housing. The third concerned plans to constrict streets around the B15 tower. The fourth concerned plans for the railyard, demolition, and Times Plaza. 

Was this another nod to the author Samuel Beckett (as in two Atlantic Yards episodes), or was it Franz Kafka?

Either way, the exchange between neighborhood activist Peter Krashes, a Dean Street resident and Dean Street Block Association stalwart, and Tobi Jaiyesimi, who manages the project for Empire State Development (ESD) and also serves as executive director of the Atlantic Yards Community Development Corporation, definitely touched on the absurd.

Krashes brought up the neighborhood effort last year to improve project oversight by having new RFPs (requests for proposals) for the two consultants, an environmental monitor and owner's representative, that work for ESD.

Instead, the current contracts were amended. No RFPs were issued, because the scope for the environmental monitor is defined by a document called the Memorandum of Environmental. Commitments (MEC), Jaiyesimi said, and "scope of work hasn’t changed."

What triggers a change?

"We anticipate issuing an RFP when we have a timeline, especially as it relates to Site 5"--the giant two-tower project percolating for the site now containing Modell's and P.C. Richard, across Flatbush Avenue from the arena--which would trigger a change in the guiding General Project Plan, she said.

"I don't buy into the Site 5 change as being key to the modification of the consultants’ contract," said Krashes, because scope of work is "directly related to your ability to implement the MEC." And current monitoring doesn't capture issues affecting residents, he said, which means the current scope of work should be modified.

Past problems

Jaiyesimi acknowledged complaints about previous activity at the B12 lot, adjacent to 550 Vanderbilt on Dean Street and, not coincidentally, across the street from residents like Krashes.

"About a year or so ago, we had a conversation about the LIRR [Long Island Rail Road] having used that site for staging activity and LIRR employees," she said. "We don't anticipate the happening in near future but if it does" there will be coordination and conversations with the developers regarding the best measures to minimizes impacts.

Krashes responded that the LIRR used the site, "in a very active way, for as much as six months to a year," and left just a few weeks ago. "Through that entire period, the construction fence facing Dean Street was simply just chain link... So there was no noise mitigation." (Here's previous coverage of one episode, plus video.)

"Whose responsibility is it for that fence to provide any noise mitigation?" he asked, noting that previously, a 16-foot fence at the same lot encroached into the street "for work that was almost nonexistent."

What's "construction"?

"We had this conversation extensively," Jaiyesimi said. "The MEC notes there needs to be sound attenuating efforts when there is construction activity... what made it unique is because the LIRR was using it for staging... or just storage of equipment, it wasn't active vertical construction."

It was not, she said, "B12 related construction at the site."

"But there was project-related construction," said Krashes, noting that the LIRR was loading piles of soil and large boulders into trucks. "Isn’t it ESD's responsibility to make sure there’s a wooden construction fence there?"

"ESD did its due diligence in having conversations with LIRR and project team," she responded. "At the time, it was not B12-specific construction... it was staging and prep work for LIRR."

"I don't recall the MEC saying the noise that had to be mitigated had to be vertical construction," Krashes responded. And that's where they left it.

Looking at the MEC

The disagreement points to the gap in project planning, given that state agencies like the Metropolitan Transportation Authority, parent of the LIRR, are not parties to the documents and thus can evade oversight.

Then again, the governor oversees both ESD and the MTA, and presumably could knock heads, especially since anything other than a very cramped reading of "construction" suggests that the state should be protecting residents no matter what.

Here's the MEC on general construction issues:
CONSTRUCTION 1. FCRC [the developer] shall provide ESD with “six month look aheads” that will describe, in general terms, the activities anticipated on the Project site for the next six months (including major milestones for areas of new construction activity, excavation, construction, anticipated maintenance and protection of traffic (“MPT”) measures, soil and groundwater remediation work and soil characterization). The six month look aheads shall be provided to ESD one month prior to the beginning of the six-month period.
(Emphases added)

That clearly suggests that construction activities go well beyond vertical construction.

Here's the responsibility regarding noise:
5. During the construction of the Project, FCRC shall undertake, fund and/or cooperate in the undertaking of the measures set forth below in order to minimize, avoid and/or mitigate, as applicable, the effects of Project construction on traffic conditions, noise and air quality in the surrounding area. FCRC shall require its contractors to adhere to these construction measures (to the extent such measures are relevant to the contractor’s activities) by including appropriate provisions in its contractor agreements and enforcing such provisions as necessary to assure compliance. FCRC shall provide ESD documentation demonstrating same
This refers to contractors working for the developer, not all contractors on the site, so that leaves a gap. But if construction on the project site creates noise that affects neighbors, shouldn't the noise--not the source--be the main issue?

Here's more specific responsibility regarding noise:
8. Noise and Vibration (a) FCRC shall comply with the City’s Noise Control Code (Chapter 2 of Title 24 of the City Administrative Code) (the “Noise Code”). Prior to commencement of construction of each building or other major element of the Project, FCRC or its contractors shall develop a construction noise mitigation plan in accordance with the Noise Code which shall be subject to NYCDEP review and approval procedures. All FCRC contractors shall follow the construction noise mitigation plan in combination with the noise protocols described below and adhere to the noise reduction measures described below and set forth in the FEIS and FSEIS. During construction, FCRC and its contractors shall implement the construction noise mitigation plan.
...(d) FCRC shall employ the following measures in the construction of the Project: i. Using equipment that meets the MEC Noise Levels; ii. Scheduling work that would generate high noise levels during weekday daytime hours to extent feasible, rather than during weekday nighttime or weekend hours, unless required as a result of safety or other agency requirements; iii. To the extent feasible, scheduling equipment and material deliveries during weekday daytime hours, rather than during weekday nighttime or weekend hours; iv. Where practicable and feasible, configuring sites to minimize back-up alarm noise;
Clearly, the MEC aims to protect residents from work "that would generate high noise levels," not just vertical construction that would generate such noise.

It just doesn't have the scope to do so, as of now.