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September 17, 2007

Oversight in ESDC’s “Atlantic Yards” Oversight?

Agency Gave Public 66 Days to Respond to Project’s Environmental Impact Statement, Has Yet to Appoint Ombudsman After 132 Days

The Council of Brooklyn Neighborhoods (CBN) today challenged the Empire State Development Corporation (ESDC) to finally name an “Atlantic Yards” ombudsman – something the state agency promised to do more than four months ago.

In a press release issued on May 7th, 2007, the ESDC announced that it was implementing several measures “to increase oversight” of, and “improve the flow of information” pertaining to, Forest City Ratner Companies’ (FCRC) “Atlantic Yards” project. Foremost among these steps was ESDC’s plan to hire an ombudsman, intended to serve as a liaison between ESDC, elected officials, “community representatives” and the general public. That position has yet to be filled.

The May 7th announcement came on the heels of the collapse of a 200-foot-long section of the parapet wall of the Ward Bakery building, on which FCRC’s contractors were performing pre-demolition asbestos abatement. New York City’s Department of Buildings (DOB) recently levied fines against FCRC and its demolition contractor for multiple violations in connection with that incident. Although ESDC originally said it would halt all work at the Ward Bakery site pending the results of DOB’s investigation, it instead allowed pre-demolition work to resume in early July – despite its failure to have appointed an ombudsman.

“We find it extremely troubling that the ESDC allowed our community just 66 days to review and comment upon the 4,000-page Atlantic Yards Environmental Impact Statement and General Project Plan, yet with twice that amount of time they haven't been able to find an ombudsman. We are waiting for the ESDC to fulfill its promise,” said Council of Brooklyn Neighborhoods co-chair Therese Urban. “We know they can do it. This is the same agency that worked around the clock through the Thanksgiving weekend in order to certify the EIS.

CBN is among 26 community and civic organizations that have sued the State of New York, seeking to annul the Final Environmental Impact Statement (FEIS) for “Atlantic Yards.” The plaintiffs allege that the State failed to take a required “hard look” at the project’s impacts, failed to adequately consider alternatives, and did not have sufficient basis to make a blight finding, among several other causes of action.

“ESDC appears to have its priorities backwards,” said CBN co-chair Candace Carponter. “As a public agency, ESDC should be looking out for the public’s interest. Instead, it drags its feet when it comes to important community safeguards, such as the appointment of an ombudsman. We have been told that this administration’s ESDC is vastly different from the Pataki-era ESDC, but we haven't seen that yet.. It’s well past time for the ESDC to name the ‘Atlantic Yards’ ombudsman. It's a matter of public safety. ESDC’s failure to provide proper oversight of this project is a recipe for disaster – as we have seen with tragic consequences at the Deutsche Bank building in Lower Manhattan.”

In addition to its failure to provide an avenue for community inquiries and communication, the ESDC’s failure to provide adequate project oversight has caused additional problems. The sole remedy proposed in the FEIS for mitigating the effects of construction noise – construction is officially expected to last for 10 years, though many experts believe it could last twice that long – is the provision of double-paned windows and window air conditioners by the developer to residents of properties adjacent to the project site. Thus far, the administration of this mitigation program has been haphazard at best, yet ESDC has provided no opportunity for affected residents to seek redress.

Furthermore, the Construction Updates issued by ESDC have included numerous errors in the identification of properties undergoing pre-demolition work, and ESDC has not provided any opportunity for affected residents to appeal the scheduling of double-shift work that, while causing significant inconvenience to residents, appears calculated to aid the developer’s timetable.

The Council of Brooklyn Neighborhoods is a coalition of recognized diverse community groups formed to provide a community voice in the scoping and review of the Environmental Impact process as it pertains to the Brooklyn Atlantic/Vanderbilt Yards development. All block associations, church, community and business groups regardless of their position toward any proposed development are invited to join CBN and are encouraged to attend and participate in CBN's bi-monthly meetings.

Mr. Patrick Foye
Downstate Chairman
Empire State Development Corporation
633 Third Avenue - 31st Floor
New York, NY 10017

Dear Chairman Foye;
Our community continues to find problems with the efficacy of Empire State Development Corporation’s construction oversight for the Atlantic Yards project. With the restarting of construction in the Atlantic Yards footprint since the collapse of the Ward Bread Bakery parapet, two important issues have emerged that have reinforced community concern about the ESDC’s ability to provide oversight in respect to Forest City Ratner’s implementation of its obligations in relation to the FEIS. They are both also the product of the absence of meaningful community input into the construction plan of the project.

1. The Noise Attenuation Mitigation
Noise is a significant community concern and the FEIS for the Atlantic Yards project outlines construction and traffic noise impacts that will cause current low noise levels in some areas in our communities to be elevated to “marginally unacceptable” levels. Without apparent community input, the FEIS identifies alternative ventilation systems, (such as air conditioners), and double-paned windows as mitigations for noise impacts. The FEIS acknowledges that where air conditioners and double-paned windows now exist, no mitigation will be provided. In part because double-paned windows have been an industry standard for residential buildings for decades, and because the operational costs of the air conditioning are not provided, the sufficiency of the mitigation has been questioned by many in the community.

The Memorandum of Environmental Commitments clearly states that noise mitigations will be implemented in a timely manner. On May 15th, three months after construction started in the footprint of the Atlantic Yards Project, Forest City Ratner began distributing letters notifying residents of their eligibility for the alternative ventilation and double-paned windows stipulated in the FEIS as a mitigation for construction noise. This is the single mitigation provided for residents near the project impacted by construction noise, (and later by the operational noise of the project). In the multiple variations of the letter distributed, the developer notified the recipients construction would restart thirty days from the date of notification, presumably to give time for the mitigations to be put in place. Construction apparently restarted exactly thirty days from the date the first letter was received, leaving those in the community who received the letter later and wanted to take advantage of the mitigation a more limited time to respond than the letter suggested. Although according to the developer seven hundred letters were mailed, a large percentage of the letters simply ask the property owner to acknowledge their lack of eligibility for the mitigation. Almost all of the remaining letters seem to have been directed toward the air conditioner mitigation only.

In some areas such as Dean Street, where noise levels are projected to increase significantly due to construction, an unacceptable number of residential units were passed over in the letter distribution. As an example, in Merchant House, a two building condo development with twenty-five units directly located across the street from the Ward Bread Building, one condo owner in each building received a letter. This was a pattern all along Dean Street with many multiple ownership buildings, (with the exception of Newswalk), receiving no more than one letter addressed to a single owner. Many single ownership buildings received no letter at all. The historic Temple of Restoration Church, singled out in the FEIS for double paned windows, also received no letter. After the Dean Street Block Association delivered English and Spanish flyers notifying those on the street they were eligible, no tenant, of the many who reported back to the block association, had been notified by their landlord of their eligibility for the mitigations. The property owners of the largest buildings containing non-conforming residential uses did not receive a letter. Finally, no Spanish speaker was aware of the mitigations, since the letter was only distributed in English. Following community complaints, FCRC recently sent a second mailing. While some new residents received the letter, the letter has still not been distributed adequately. And the new, and surprisingly undated, letter has been provided five months after construction was first initiated and a month after construction was restarted. The Memorandum of Environmental Commitments appears to have been breached in this respect.

2. Double Shifts
Since there currently is no place in the new construction oversight structure for meaningful community input, there are few avenues for the community to appeal the work detailed in the Construction Alerts.

As an example, recent Construction Alerts have described six-weeks of double-shift work to complete the asbestos abatement and parapet demolition of the Ward Bread Bakery. Neither the asbestos abatement nor the parapet removal seems to be urgently required for safety reasons. Work after hours significantly disrupts the many residents in the community, including the same three hundred and fifty residents of the family shelter directly next to the Ward Bread Building on Dean Street who have already been significantly disrupted by problems with construction. Here is a real example that if representatives from the community continue not to have a meaningful role in oversight and planning, consequential impacts on the community will be overlooked. Conclusion

As the above examples clearly illustrate, the lack of meaningful community participation in the Atlantic Yards development process is significantly impacting both the course of the development and the quality of life for Brooklyn residents. We call upon you and the ESDC to implement the promised position of Ombudsman, which at the time of the sending of this letter is unfilled after 130 days, more than twice the time allowed for the public to respond to last year’s DEIS.

We would like to close by repeating the message we delivered 4 months ago at the ESDC Board meeting of May 17, 2007:

“We would like to repeat CBN's message to the ESDC, the same message we have been communicating throughout this process, to the previous ESDC Board as well as to this Board: community participation in this process is not meant to be an afterthought. The regulations require a central role for the Community. The Community is supposed to be the point of this state project, and the Community is an invaluable resource in the shaping and execution of this state project. We have provided you with the benefit of our thousands of pages of studies; we again offer the invaluable benefit of our precise and integral understanding of the particular challenges of the project area, and our communication network in harnessing this knowledge and optimizing communication between the ESDC, the developer, and the stakeholders, the Community.”

CBN looks forward to working with the ESDC in the development of the office of the ombudsperson and to providing a channel for further community participation. We again extend our invitation to meet and discuss a format for meaningful community participation in the oversight and development of the Atlantic Yards project.


Candace Carponter, Co-Chair       Therese Urban, Co-chair

Posted by lumi at September 17, 2007 1:00 PM