« The cognitive dissonance of the Daily News: cheering Atlantic Yards, slamming Albany corruption, giving slack to Kruger's partner Forest City Ratner | Main | Stage Dive: Turning Off Julie Taymor’s Dark Spider-Man for Good »
March 13, 2011
On Tuesday, big hearing in last Atlantic Yards case, regarding legitimacy of the timetable, need for more environmental review, and lawyer's fees
Atlantic Yards Report
Here is the background for the arguments:
DDDB sued in 2009 to challenge ESDC's approval of the Modified General Project Plan for the Atlantic Yards Project, on the grounds that the Plan was premised upon a ten-year timeline for construction of the entire project even though Forest City was contractually permitted by the MTA to take 30 years to complete the purchase of the rights to the Vanderbilt Yard and construction of most of the project had been postponed indefinitely. ESDC and FCR responded that their development contract required FCR to build the project within ten years, but refused to disclose the contract to the court.
In March 2010, Justice Friedman ruled against DDDB, finding that ESDC's continuing use of the ten-year construction timeframe was sufficiently supported by the evidence in the record, "albeit, in this court's opinion, only minimally". Because ESDC had refused to make the development contract part of the record before the court, DDDB had to wait until the court issued its decision before it could submit the development contract to the court in a motion to reargue the case.
Once DDDB was able to put the actual ESDC-FCR development contract before the court, Justice Friedman determined that the contract did not impose any meaningful obligation on FCR to complete the project within ten years, and reversed her previous decision. In November 2010, the court ordered ESDC to reconsider its reliance on a ten-year construction timeframe for the project, and criticized ESDC for failing its legal obligation to disclose evidence to the court that contradicted the record. The ESDC, not surprisingly, quickly issued its "reconsideration", affirming its approval of the project.
ESDC’s findings were inherently inconsistent. It first found that relying upon the ten-year timeline was completely reasonable despite the 25-year time frame in the development contract. It then recognized that the ten-year deadline would not be reached and then it reviewed a new technical memorandum that purported to address the changes in potential impacts of a 25-year time frame and unsurprisingly found the impacts would not be greater or different than what was previously considered.
In December 2010, DDDB filed its motion to the court to award it the additional legal expenses incurred in making its motion to reargue the case, on the ground that the motion would not have been necessary if ESDC and FCR had disclosed their development agreement to the court as they were legally obligated to do.
The legal basis of DDDB's motion is a Court Rule which permits the court to assess legal expenses against a party or attorney whose litigation conduct "is completely without merit in law" or "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another", or who "asserts material factual statements that are false."
In January, 2011, with the permission of the court, BrooklynSpeaks and DDDB filed an amended petition challenging the failure of the ESDC to consider the negative impacts of what we believe to be the more likely 25 year plus timeline of the buildout of the entire proposed Atlantic Yards Project. DDDB also challenges ESDC’s failure to hold a public hearing on the 2010 Technical Memorandum that supported its decision where ESDC held a hearing on the 2009 Modified GPP and Technical Memorandum.
Argument on both DDDB's motion for sanctions and the amended petition are scheduled for Tuesday:
Details:
Tuesday, March 15th, 2:30 PM
New York County Supreme Court
60 Centre Street
Room 335
Manhattan
Posted by steve at March 13, 2011 10:55 PM