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February 26, 2009

Appellate court, despite some misgivings, dismisses EIS case; one judge concurs but slams blight study, says his hands were tied

Atlantic Yards Report

In a decision that constitutes a crucial advance for the Atlantic Yards project (even if only an arena is planned as of now) an appeals court has rejected an appeal in which 26 community groups challenged a trial judge's dismissal of a wide-ranging challenge to the project's environmental review.

In the opinion (Develop Don't Destroy Brooklyn, et al., v. Urban Development Corporation dba Empire State Development Corporation, et al.), the judges in the Appellate Division, First Department, took pains to express some skepticism about the project, calling it “purportedly transformational” and noting that the ESDC, rather than being a neutral agency, had “promoted” Atlantic Yards.

And one judge, in a concurrence that had the tone of a dissent, slammed the ESDC for a "ludicrous" claim regarding the blight study.

However, the main opinion ignored a contract signed by the ESDC that gives the developer vastly more time than established in project approval documents.

Ultimately, they acknowledged that “our power to review the substantive adequacy of an EIS [Environmental Impact Statement] is extremely limited,” thus dismissing challenges regarding issues of terrorism, the project’s build timeline, and the findings of blight.

An appeal is planned, though the Court of Appeals, the state's highest court, is not obligated to hear the case. One more case, on eminent domain, is pending, after oral arguments Monday; it is even more of a long shot, given constraints on courts interfering with agency decisions.

A political issue

The court concluded:
While we do not agree with petitioners' legal arguments, we understand those arguments to be made largely as proxies for very legitimate concerns as to the effect of a project of such scale upon the face and social fabric of the area in which it is to be put. Those concerns, however, have relatively little to do with the project's legality and nearly everything to do with its socio-economic and aesthetic desirability, matters upon which we may not pass. To the extent that the fate of this multi-billion dollar project remains, in an increasingly forbidding economy, a matter of social and political volition, the controlling judgments as to its merits are the province of the policy-making branches of government, not the courts.


NoLandGrab: Though the justices are bound by the laws of New York State, they sure sound sympathetic to the plight of the community. Et tu, David Paterson?

Posted by eric at February 26, 2009 4:05 PM