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June 20, 2008

Given 50% arena cost increase, DDDB asks PACB to reconsider AY approval

Atlantic Yards Report

Develop Don’t Destroy Brooklyn (DDDB) yesterday asked the three-member Public Authorities Control Board (PACB)—comprised of Governor David Paterson, Assembly Speaker Sheldon Silver and Senate Majority Leader Joseph Bruno—to revisit its approval of the Atlantic Yards project, given “the dramatic increase in cost of Forest City Ratner’s Atlantic Yards arena and the development project as a whole.” The effort relies on an untested area of state law.

The PACB, which in 2006 derailed the planned West Side Stadium, is not supposed to evaluate the overall merits of a project, just whether the state’s investment is a sound one. DDDB contends that the nearly 50% increase in the price tag for the arena over 15 months—$637.2 million as approved in December 2006, but $950 million in March 2008—means the PACB should take another look. (The state has pledged $100 million of the project’s cost, estimated at $4 billion at time of approval but certainly significantly higher at this point.)
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I asked DDDB attorney Jeffrey Baker if anyone has successfully made this challenge and, if so, what was the increase in the cost of the project at issue. “As far as I know there is no case law directly on point on this issue with PACB,” he responded.
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Baker noted that the “source of the nearly $320 Million of additional construction costs has not been identified, and it is utterly unclear how the arena PILOT can be paid towards the bond based on assessed property taxes.”

The latter is a reference to a rule that says PILOTs (payments in lieu of taxes) cannot exceed the maximum amount of foregone property taxes. In terms of Atlantic Yards, those taxes may be significantly dwarfed by the potential arena bond.

What if PILOTs curtailed?

Indeed, the PACB’s approval, as with the KPMG study that led to the ESDC’s approval, was predicated on the use of PILOTs to pay off the arena bonds. Should the Internal Revenue Service be successful in curtailing the use of such PILOTs, that would strain the financial model significantly. The cost increase adds another strain.

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Posted by eric at June 20, 2008 8:28 AM