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April 8, 2010

DDDB, allies aim to reopen case based on Development Agreement that gives Forest City 25 years to complete AY; ESDC claims those provisions trumped

Atlantic Yards Report

Pointing to the curious delay by the Empire State Development Corporation (ESDC) in releasing the Atlantic Yards Development Agreement until after a key January 19 oral argument in the case challenging the ESDC's 2009 approval of the project, Develop Don't Destroy Brooklyn (DDDB) and 19 community groups have asked that the case be reopened.

The Development Agreement, as I've written, gives developer Forest City Ratner 12 years to build Phase 1 and 25 years to build Phase 2. Meanwhile. the ESDC maintained the project would take a decade, a finding to which Supreme Court Justice Marcy Friedman reluctantly deferred in her March 10 ruling dismissing the case.

"ESDC's continuing use of the 10 year build-out was supported—albeit, in this court’s opinion, only minimally—by the factors articulated by ESDC," she wrote, with one of those factors being the ESDC's professed intention to ensure that Forest City Ratner used "commercially reasonable" efforts to finish the project in a decade.

However, wrote DDDB attorney Jeff Baker in an affirmation filed today:

As set forth below, ESDC did not obtain a commitment from FCR to use commercially reasonable efforts to complete the project by 2019 and in fact signed an agreement that extends the completion of project until at least 2035. Thus, where the Court previously found that ESDC’s rational [basis] was only “minimally” supported, since one of the essential elements is demonstrably false, the Court should reconsider its decision in light of the new evidence.

Bad faith

The petitioners might have gone even farther, charging bad faith. Remember, the Development Agreement, signed December 23, 2009, was not released until January 25, about three weeks after ESDC spokeswoman Elizabeth Mitchell told me the documents would be made available.

ESDC response and defense

Mitchell told the Brooklyn Paper that the agency will oppose the motion and expects to prevail.

Still, the ESDC has offered a rather weak defense of the timeline discrepancy in a motion to dismiss the only extant case, which challenges the failure to issue a new Determination & Findings:

Their allegations... [of delay] are inconsistent with the plain terms of the Development Agreement, which requires that the Project be constructed in accordance with the 2009 MGPP. See Development Agreement at pp. 4-5 (“Project Description”); p. 10 (requiring that the 2009 MGPP requirements be satisfied); p. 4 (requiring that FCRC use commercially reasonable efforts to complete the entire Project by 2019); p. 21 (requiring that the Project “shall have not less than the required Project Site Affordable Housing Units,” a term defined at page 15 of Appendix A to mean the 2,250 affordable housing unit required by the 2009 MGPP).

Baker noted that “commercially reasonable” appears in only one place, and is not defined.


Additional coverage...

The Brooklyn Paper, Suit: ESDC lied to judge about Yards timetable

The state development agency leading the Atlantic Yards project got a favorable ruling in a key opposition lawsuit by withholding information about the mega-development’s construction timetable from a judge, a new appeal filed today charges.

The missing information was contained in a “closing document” signed by the Empire State Development Corporation and developer Bruce Ratner that allows Ratner to take 25 years to finish the project, instead of the 10 years that the lawyers had argued during the suit itself.

That closing document was made public eight days after the case was heard by Judge Marcy Friedman — and project foes now claim that if she’d had all the information, she might have ruled differently.

In fact, Friedman’s ruling, issued in March, hinted as much.

Brooklyn Daily Eagle, Brooklyn’s Atlantic Yards Will Take Over 25 Years, New Legal Documents Claim

Atlantic Yards will take over a quarter century to build, claims the lead opposition group in a new motion filed in court this week.

Develop Don’t Destroy Brooklyn (DDDB), the lead plaintiff in a lawsuit that was dismissed by the Manhattan Supreme Court earlier this year, has filed a new Motion to Reargue/Renew, asking the court to consider new evidence that DDDB claims was not available at the time of the oral argument in January.

The Motion to Reargue/Renew, filed on Wednesday, has a return date of April 29 at 9:30 a.m. in the Manhattan Supreme Court.

Posted by eric at April 8, 2010 10:22 PM