Unanimous Appellate Court Decision Slams ESDC;
Forces NY State to Do Supplemental Review; and
New Approval of Ratner's Atlantic Yards Project
Golden Opportunity for Governor Cuomo to Fix the Atlantic Yards Debacle
BROOKLYN, NY — Develop Don't Destroy Brooklyn (DDDB), BrooklynSpeaks and all of their co-plaintiff community groups have won another victory in court over the Empire State Development Corporation (ESDC) and Forest City Ratner—their second in a row.
In a unanimous decision, the Appellate Division of the New York State Supreme Court today found that Justice Marcy Friedman correctly ruled in July 2011 that the ESDC's 2009 approval of Atlantic Yards' Modified General Project Plan violated State environmental law.
The decision upholds the lower court's order that the ESDC initiate a Supplemental Environmental Impact Statement (SEIS) and new approval process on Phase 2 of the Atlantic Yards project, which includes the bulk of the 22 acre project and the bulk of the non-arena portion of the demolished site.
A public hearing on the SEIS will be mandatory.
The SEIS process requires the ESDC, on behalf of developer Forest City Ratner to detail and analyze all of the environmental impacts of a 25 year construction project on the community. ESDC had failed to do this by misrepresenting the nature of the project and its construction timeline before the project received final approval and eminent domain sign off. The state clung to the laughable idea that the construction would take ten years.
According to the appellate decision the ESDC failed to analyze the possible situation "in which area residents must tolerate vacant lots, above-ground arena parking, and Phase II construction staging for decades."
"We are thrilled that the Appellate Division affirmed Justice Friedman's decision. This has proven our long standing contention that the project is too big for the area and could not be completed in the unrealistic timeframe claimed by Forest City Ratner and ESDC. Instead the community will be faced with literally decades of construction impacts and developer induced blight," said DDDB attorney Jeffrey S. Baker of Young/Sommer. "The next step is an SEIS that will consider not only the impacts of the delayed project but alternatives that will provide a reasonable development in an achievable timeframe. While past practices by ESDC do not give us much reason to hope, maybe this strong decision will teach ESDC that it must undertake an honest and transparent SEIS."
"The fact is that the project should never have been approved at all—it is entirely illegitimate," said DDDB's legal director Candace Carponter. "The tragedy here is, but for the blatant misrepresentations to the Court by Forest City Ratner and ESDC, it would been determined in 2010 that an SEIS was required and that would have stopped construction of Barclays Arena. ESDC's dishonesty has allowed that to go forward and the community is already feeling the adverse impacts that have long been forecast. We hope that ESDC will abandon its servile devotion to Forest City Ratner and start representing the citizens of this area."
"The ruling gives Governor Cuomo the opportunity and impetus to reconsider and change the course of the project, instead of continuing to allow roughly 14 acres of demolished properties to be held hostage by a developer who has no feasible plan or financial wherewithal to build the desperately needed affordable housing he promised," said DDDB's cofounder Daniel Goldstein. "Only the Governor have the power to fix the mess the ESDC and Ratner have created at Brooklyn's crossroads. This will be a real test of their leadership and independence."
Candace Carponter concluded, "It has now been proven, in and out of Court, that Bruce Ratner simply cannot and will not do the job he promised the public, his supporters and elected officials. It is time to end Ratner's control of the site and move towards a Unity Plan style solution: divide the non-arena portion of the site into multiple parcels so that multiple developers can build a project that responds to the community's needs and concerns and brings true benefits, rather than pie-in-the-sky promises made to be broken. "
The key section of today's ruling follows:
Pursuant to the MGPP [Modified General Project Plan], FCRC is required to acquire at the inception of the Project only the portion of the site needed for the construction of the arena. It has until 2030 to obtain all the property interests necessary for Phase II construction. Moreover, in a Development Agreement executed after the MGPP was approved by ESDC, FCRC was given until 2035 to substantially complete Phase II construction. The Development Agreement sets forth no specific commencement dates for the construction, other than for the construction of the platform on which 6 of the 11 Phase II buildings will be built, which is not required to be commenced until 2025, and the construction of one Phase II building on Block 1129, which is not required to be "initiated" until 2020.
However, in assessing the potential environmental impacts of the changes to the Project wrought by the MGPP, ESDC used a build date based on the same 10-year completion schedule for the Project as was used in the 2006 Plan, and determined that it was not required to prepare a SEIS before approving the MGPP.
Moreover, the Technical Analysis assumed that Phase II construction would not be stalled or deferred for years and that it would proceed continuously on a parcel-by-parcel basis. Thus, it failed to consider an alternative scenario in which years go by before any Phase II construction is commenced — a scenario in which area residents must tolerate vacant lots, above-ground arena parking, and Phase II construction staging for decades.
ESDC relies on mitigation measures adopted to address the impacts found in the FEIS in 2006. However, the Technical Analysis did not consider whether those measures were adequate in the case of a protracted period of construction.
We have considered respondents' remaining contentions and find them unavailing.
On his Atlantic Yards Report Norman Oder has more analysis and key excerpts from today's decision.
The back story to the long case history is here