Revisiting the 2006 Response to Comments: how sturdy were project promises? (Not very)

Over several posts, I'll revisit various Response to Comments documents in separate environmental review or project approval processes, pointing out, with the asset of hindsight, unwise or unfounded assessments by either commenters or the Empire State Development Corporation (now called Empire State Development), the state authority overseeing and shepherding the project.

I previously wrote about the "project concept, evolution, and process to evaluate changes."

These comments are from the first round of project approvals, in the 2006 Final Environmental Impact Statement, bottom. Emphases are added.

How sturdy were promises?

Commitments made by the project sponsors should be legally binding. (23, Council Member David Yassky; 143, Malcolm Armstrong)
Promises made will be null and void as soon as the current governor and current mayor leave office. (349, Robert Ohlerking)
What mechanisms are being set in place to assure compliance with applicable codes and that commitments made for various improvements are, in fact, part of the revised designs? (483, Steven Cantor)

The response:

ESDC would require the project sponsors to enter into contractual obligations to implement the environmental impact avoidance and mitigation measures to be executed by the project sponsors. During construction of the proposed project, ESDC expects to retain the services of appropriate professionals to monitor and ensure compliance with the same.

That response was significantly incomplete: the notion of "environmental impact avoidance and mitigation measures" does not encompass a timetable for buildout or a commitment for affordable housing that matches past promises, to choose the most prominent (but not the only) examples. State contracts allowed far more slack than the developer's promises professed.

And that meant a professed--but unrealistic--ten-year buildout, as well as a range of affordability, in which the percentage of low-income units matched that of middle-income units, were not fulfilled.

Such commitments as affordable housing, minority/women's hiring, and MWBE contracting were part of a separate Community Benefits Agreement (CBA), a private agreement said to be legally binding. 

But it was unenforceable because the provisions offered significant slack and only the signatories--either financially dependent on the developer and/or weak in their structure--could enforce it. (In some other cities, government agencies are parties to CBAs.) 

The Atlantic Yards CBA is mostly moribund, with most of the signatories inactive or defunct.

Atlantic Yards Final EIS 20... by on Scribd