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November 30, 2010

In request for stay on Atlantic Yards construction, DDDB attorney charges ESDC and FCR with malfeasance, says their lawyers breached ethical conduct

Atlantic Yards Report

A must-read from Norman Oder on yesterday's request by community groups for a stay on all Atlantic Yards construction.

Maybe the Barclays Center arena should never have gotten started.

Maybe the arena construction is proceeding thanks only to the "malfeasance" of the Empire State Development Corporation (ESDC) and developer Forest City Ratner (FCR) in withholding the Atlantic Yards Development Agreement until after a crucial court argument in January.

Those are the messages of a blistering legal motion filed by the attorney for Develop Don't Destroy Brooklyn and allied groups, urging state Supreme Court Justice Marcy Friedman to follow up her November 9 ruling on the project timetable and stay construction on the entire project.

Friedman, partly reversing a March 10 decision that endorsed the ESDC's claim that a ten-year buildout of the project was reasonable (despite the Metropolitan Transportation Authority's agreement to allow 22 years to sell FCR Vanderbilt Yard development rights), on November 8 declared that the ESDC had failed to address the impact of the Development Agreement, which it had kept under wraps and which allows 25 years for project construction.

Friedman remanded the proceedings "to ESDC for findings on the impact of the Development Agreement and of the renegotiated MTA agreement on its continued use of a 10 year build-out for the Project, and on whether a Supplemental Environmental Impact Statement is required or warranted."

Why a stay is needed

Leaving the timetable to the ESDC, however, is not what the petitioners want.

(The parties met this morning with Friedman to establish a hearing schedule in the case; an argument on the motion for a stay, has been scheduled for noon on December 22, though that date is subject to change)

Argues DDDB attorney Jeff Baker in an Affirmation (below), a stay of all construction is needed to maintain the status quo, not just to prevent further harm to the environment, "but to assure that ESDC makes an honest appraisal of the potential environmental impacts of the project and seriously considers the consequences of a 25-year construction schedule."

Baker argues that, had the Development Agreement (referred to as the MDA, or Master Development Agreement), been presented to the court in a timely manner, and had the ESDC and FCR been truthful to the court, the project would not have gone forward without a new evaluation of environmental impact.

And that would have delayed project approval beyond the end-of-2009 deadline to get crucial tax-exempt bonds issued.

“Put simply, the ESDC colluded with Forest City Ratner to deceive the Court. Unless and until the ESDC follows the Court order, any work at the project site would be in violation of state environmental law and an affront to the community that would have to live with Ratner’s developer’s blight for decades,” said DDDB legal director Candace Carponter in a statement.

BrooklynSpeaks, the coalition of groups in a companion case, also filed for a stay.

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Related coverage...

Brooklyn Daily Eagle, Judge Asked to Halt Atlantic Yards Construction

In a last-minute attempt to stop construction at Atlantic Yards, and in connection to some of the last litigation remaining in the courts on the topic, a Brooklyn community group announced Monday that it has filed a motion to halt work on the multibillion dollar project in Prospect Heights.

The motion filed in Manhattan Supreme Court last week asks a judge to order a halt to construction at Atlantic Yards, where an NBA basketball arena for the New Jersey/Brooklyn Nets has begun to be built. The motion, which was filed by community groups including Develop Don’t Destroy Brooklyn (DDDB) and BrooklynSpeaks, is in response to an unusual, but possibly meaningless, legal victory that was achieved earlier in the month.

After years of losing litigation battles and many months after a judge ruled against petitioners’ claims that the massive Atlantic Yards project would take much longer than 10 years, a judge now seems to agree and granted a motion to reargue. The next court date is set for Dec. 22.

NoLandGrab: "Possibly meaningless?" One could say the same about ESDC's prior legal victories if Judge Friedman halts construction.

NetsDaily, Critics Try One Last Time to Stop Arena

Posted by eric at November 30, 2010 10:51 AM