At first-ever Executive Session, Atlantic Yards advisory group privately learns of a proposal (supersize?) for the six railyard towers. Small pushback on secrecy.

This is the first of three articles about the Aug. 8 Atlantic Yards Community Development Corporation (AY CDC) meeting. The second concerned leasing of the arena plaza. The third concerned plans for Site 5 and community engagement about the project's future.

It's likely that, in yesterday's meeting, the six members present of the AY CDC board learned of a new proposal to supersize the towers at the six railyard development sites (B5-B10), surely involving a new developer, reported to be Related Companies.

But we can't be sure, because, for the first time in the AY CDC's existence, it went into Executive Session, free from scrutiny via the press present (um, me) and those watching the public meeting, which was broadcast and taped. 

The justification, as I'll describe below, was questionable, and other statements at the meeting suggested a diminished pursuit of accountability. Nor did the AY CDC Directors, when they returned after the Executive Session, publicly summarize what was discussed, though that possibility had been hinted it.

(They did talk more about approved plans for Site 5, catercorner to the arena, about which I'll write tomorrow.)

What might happen

Increasing height and bulk would require approval from the board of the AY CDC's parent, Empire State Development (ESD), the gubernatorially-controlled state authority that oversees/shepherds the project. 

ESD surely is being asked to renegotiate the $2,000/month fines for the 876 affordable units not built by May 2025.

Whatever proposals ESD is considering are part of a complex process in which master developer Greenland USA has lost the rights to pursue developing those sites, given the foreclosure of $286 million in debt owed to immigrant investors under the EB-5 program.

Those sites served as collateral, and the "lender"--actually, the manager, an affiliate of the middleman U.S. Immigration Fund (USIF), a regional center that recruits investors--has apparently been negotiating with a developer to take over those sites and, perhaps, pay the debt (and fees to itself?).

In other words, no company would bid in the foreclosure auction, already announced and postponed five times, without negotiating the terms of the future project with ESD.

This unofficial image of Proposed Plans, based on increased building heights,
likely understates the change, given discrepancies in Greenland documents.

We do know, as I reported, that Greenland in 2023 sought to rescue the project by supersizing it, apparently concluding that 1 million additional square feet would make the project viable, including the costly platform and affordable housing obligations.

Was that vetted? Apparently not.

Meeting delayed

The meeting started about 22 minutes late, because the sixth AY CDC director needed for a quorum--there are currently 11 directors, but there should 14--was delayed.

That five directors didn't show suggests that, not only is it challenging to schedule meetings during weekday business hours, some don't make it much of a priority. (Some of those who didn't show are the most disengaged/least informed directors.)

Public comment: Executive Session

Chair Daniel Kummer noted that two written comments were received by the pre-meeting deadline, 24 hours before. 

"The first comment concerned a legal issue relating to the propriety of going into Executive Session, which I have referred to agency counsel," he stated.

That didn't fully describe my comment.

Yes, I questioned the (unspecified) justification for discussing the "Platform Site Update (Oral Report)" in Executive Session, which seems to exclude the press and public. My arguments, detailed below, were not met with any substantive justification by agency counsel during the meeting.

I also noted that no justification had been publicly provided, nor did the two ESD public affairs reps I contacted answer my query about the justification. 

Also, I wrote that providing the Agenda less than 24 hours before the deadline for public comment surely hampers public comment, and that, substantive pre‐meeting public comment is precluded when no board materials, other than a barebones Agenda and past Minutes, are provided beforehand

In other words, Kummer, who heads a body that, among other things, is supposed to evaluate "the quality and effectiveness of monitoring, support and other services," didn't address that.

Public comment: development and impacts

A second letter came from a nearby resident:

I live at [redacted] and wanted to express my opinion with regard to more development in the Atlantic Yards. B5, B6, B7 towers will be directly behind us. This area is already extremely overcrowded. There is NO street parking and deadlock traffic with extremely loud honking and noise pollution every time there's a Barclay event. The car garages are full. There are no bike lanes. The corner of atlantic and pacific has a traffic problem as well - it takes 45 mins to cross 10 blocks by car. I am highly against more high rises going up. We need space for public parks, playgrounds and dog parks, not more crowding

That comment, it turns out, comes from a resident who moved into the nearby Newswalk condo building in 2018. She's apparently protesting any construction at the railyard sites, not the supersized plan recently proposed, though presumably any buyer should've been told what had been approved in 2006.

Kummer stated, "The second comment raised a general concern about future development in the B6 and B7 sites but also raised some current concerns about traffic and congestion issues in the development zone. I would request the staff review those comments and consider whether it’s appropriate to refer them to NYC DOT [Department of Transportation] or to NYPD [Police Department]."

Addressing the commenter, he also suggested "that we have Quality of Life meetings where issues are raised. I’m not sure when the next one is scheduled, but if it’s a continuing problem with traffic congestion. related arena events. or anything else, [they] should definitely come to Quality of Life meetings and raise them."

From AY CDC web site

No one pointed out that there has not been such a meeting, previously held bi-monthly, for more than 18 months, since February 2023. That surely related to the stall in new construction.

But as the commenter pointed out, regular arena activities impose impacts on the community and are rarely monitored. For example, what about the recent inundation of buses? Or the problems at the 38 Sixth Avenue tower?

Without a regular forum and empowered agencies, those living closest to the project will continue to bear the brunt of impacts.

Executive Session: litigation

Kummer then invited a motion for an Executive Session, citing Section 105 of the New York State Open Meetings Law 105, specifically the following clauses:

• d. discussions regarding proposed, pending or current litigation;
• h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

No one elaborated on the issue of litigation, though some justification should have been made. Note: had ESD public affairs staff responded to me pre-meeting query regarding the justification for Executive Session, I would have, in my public comment, questioned the legitimacy of the claim.

A lawyer familiar with the Open Meetings Law pointed me to one of the few relevant cases, a 1981 Schoharie County case titled Daily Gazette Co. v. Town Bd., Cobleskill, which states:

To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity, the pending, proposed or current litigation to be discussed during the executive session.

Executive Session: property

No one grappled with my comment that the second clause, which refers to "such public body," cannot apply to the AY CDC, which is purely advisory.

However, others raised questions. Director Ron Shiffman noted the phrase "publicity would substantially affect the value" and suggested that pointed to a change in the overall project plan. He warned of the precedent of avoiding public discussion of substantive items.

"We are not discussing changes to the plan," responded AY CDC President Anna Pycior, who's ESD's Senior Vice President, Community Relations. "We remain committed that those will be done, in a robust public way with yourselves and the elected officials and the public and the community."

"We can't take any action in Executive Session," commented ESD counsel Richard Dorado.

"I do want to echo some of Director Shiffman's concerns," stated AY CDC Director Gib Veconi. "We know, at this point, there was a development lease entered into for Site 5 that had the affect of agreeing to a transfer of density." 

"I'd also be concerned that anything that has those kinds of results be a subject of one of these meetings and public sessions," he said. "This body is constituted to review changes and have an advisory role with respect to changes to the project plan. We never were presented with any of the changes that ended up being in Exhibit K of the Site 5 development lease."

Jousting about secrecy

Kummer suggested that, assuming the motion passes, that they hear the update and, if there are things the board feels should be aired in public, they could do so when the public session resumes or at the next AY CDC meeting, in September.

Shiffman asked what would happen if they didn't approve the Executive Session.

"We wouldn’t get the update that the staff is going to give us," Kummer said. "I think it would deprive us of the information that would be useful to carrying out our role. There was a reason they felt we should have a meeting in August, as opposed to waiting until the next scheduled meeting in September."

"I mean, we value your counsel and we're trying to be as transparent as we can, within the constraints of an ongoing negotiation," Pycior added.

That seemed a little strained. ESD--or at least a previous iteration--didn't value the AY CDC counsel enough to discuss upsizing Site 5 in 2021.

That said, the AY CDC could, presumably, serve as a guide, brake, or rubber-stamp regarding the changes proposed for the railyard.

Without any guidance from AY CDC, asked Director Ethel Tyus, would ESD proceed on their own?

"We could continue to do it without getting whatever guidance we got from you," Dorado said. "But eventually we'll have to come back to you. We could present it now, or wait until the next meeting in September."

There's no guarantee that that situation will be different in September, observed ESD's Joel Kolkmann, Senior Vice President, Real Estate.

Toward the vote

"I’m supportive of hearing the update," stated Veconi. " I want to raise the concern about not getting into something that properly belongs in public, being done in a public process."

The vote to go into Executive Session passed with yes votes from Kummer, Veconi, Drew Gabriel, and Anand Amin. Shiffman and Tyus abstained.

The AY CDC board and ESD staff then left the meeting, and returned about 53 minutes later.

While the subsequent discussion, as I'll report, did address Site 5, no one took up Kummer on his suggestion that, if there are things the board feels should be aired in public, they could do so when the public session resumes.

So, not much transparency.