February 1, 2012
February 14: a day of reckoning for Forest City Ratner? Cases involving Atlantic Yards timetable and Ridge Hill corruption charges go to court
Atlantic Yards Report
Tuesday, February 14, may be a day of reckoning for developer Forest City Ratner, as two key court cases proceed in Manhattan.
Sometime after 2 pm, there will be oral argument in the appeal filed by FCR and Empire State Development in the case challenging the state's finding that there was no need for a Supplemental Environmental Impact Statement (SEIS) to analyze the impacts of a 25-year buildout.
In a victory for community petitioners, a judge ruled that such an SEIS was needed.
The case will be heard in the Appellate Division of New York State Supreme Court, 27 Madison Avenue. I've already written about the first two legal exchanges: the appeal brief from ESDC/FCR and the reply from the petitioners. The appellants get the last word, so I will write shortly about their reply.
The Ridge Hill case in Yonkers
On February 14, jury selection begins in federal court regarding the Ridge Hill corruption case, which touches on Forest City Ratner, though the developer was not charged. The case, which could take a month to try, will be heard by U.S. District Judge Colleen McMahon in courtroom 14C of the federal courthouse at 500 Pearl Street.
...Will Forest City staffers or lobbyists be called to testify?
I'll have a preview article about the case in the next week or so.
Posted by eric at 1:17 PM
January 25, 2012
NY State Appeal of Atlantic Yards Sweetheart Deal Ruling in Court on Valentine's Day
Develop Don't Destroy Brooklyn
Happy Valentine's day courtesy of the Empire State Development Corporation and Forest City Ratner.
Oral argument on NY State's and the developer's appeal of the ruling that went against them in DDDB et al. v. ESDC et al. has been scheduled for....Tuesday, February 14th at 2pm in the Appellate Division of New York State Supreme Court (27 Madison Avenue in Manhattan.)
What better day to further discuss, in court, the sweetness of Bruce Ratner's sweetheart deal.
NoLandGrab: Will they be the Appellate of our eye?
Posted by eric at 11:55 AM
January 20, 2012
Responding in timetable case appeal, community coalitions charge ESDC with "fabrication," "sham," and "cover-up" for not analyzing impact of 25-year buildout; argument likely in February
Atlantic Yards Report
The two community coalitions challenging the state's failure to study the effects of a 25-year project buildout have filed a joint brief responding to the dual filings by the Empire State Development Corporation (ESDC) and Forest City Ratner that appeal a lower court's decision finding the ESDC's actions arbitrary and capricious for failing to order a Supplementary Environmental Impact Statement (SEIS).
The legal dispute does not affect the building of the arena, nor the towers around it, but does address plans for and impacts of Phase Two of the project: the eleven towers east of Sixth Avenue, including those to be built on a platform over the Vanderbilt Yard.
On a broader note, the case, which should be heard in a state appellate court in Manhattan in February, addresses whether the state agency essentially cheated to ensure that Atlantic Yards would move forward.
As the plaintiffs--coalitions led by Develop Don't Destroy Brooklyn and BrooklynSpeaks--argue, had the ESDC been forced to conduct an SEIS, the agency, which approved a new Modified General Project Plan in September 2009, would have had to delay approval until 2010.
That would have forced Forest City Ratner to miss a crucial end-of-2009 deadline to get federally tax-exempt arena bonds sold. And that would have cost the developer at least $100 million more.
Posted by eric at 12:11 PM
January 18, 2012
A Call For Governor to Step In and End 'Cycle of Litigation' at Atlantic Yards
Community group wants renewed focus on promised affordable housing at the site.
Fort Greene-Clinton Hill Patch
by Jamie Schuh
Amidst a back-and-forth legal war over the environmental effects of the timeline of Atlantic Yards development, at least one community group is now asking for Gov. Andrew Cuomo to step in and make affordable housing at the site a priority.
“Brooklyn needs Governor Cuomo to step in to end the cycle of litigation, and get this project to deliver on its promises,” said Deb Howard, executive director of the Pratt Area Community Council. “It’s time to move beyond the past failings of the Empire State Development Corporation, and focus on building the affordable housing and providing the jobs the community so desperately needs—now, not in 25 years.”
The call to Albany coincides with ESDC and Forest City Ratner's recent appeal of a July 2011 court decision ordering further environmental review of the Atlantic Yards project, and the subsequent legal response taken this weekend by groups like BrooklynSpeaks and Develop Don’t Destroy Brooklyn.
NoLandGrab: Sure, Status Cuomo will get right on it — as soon as he builds his mega-casino-convention center in the chic downtown neighborhood of Ozone Park, Queens.
Related coverage...
The Real Deal, Brooklyn activists call on Cuomo to bring resolution to AY saga
The legal tug of war started in 2009 when the Empire State Development Corp. allowed Forest City Ratner a 15-year extension on the construction timeline at Atlantic Yards. This summer a court ordered an environmental review of the consequences of the prolonged construction timeframe, which ESDC and Forest City Ratner subsequently appealed. This week, several other activist groups — including Develop Don’t Destroy Brooklyn — filed legal documents against that appeal.
But the Pratt Area Community Council wants to bypass the legal jostling by getting Cuomo to coerce a resolution.
Posted by eric at 9:57 AM
January 12, 2012
New York State's Atlantic Yards Appeal Briefs Dissected by Norman Oder
Develop Don't Destroy Brooklyn
Norman Oder takes a long look at New York State's briefs on appeal of the Supreme Court ruling that requires the Empire State Development Corporation to undertake a Supplemental Environmental Impact Statement. ESDC argues that the court usurped agency discretion. The ESDC certainly knows a thing or two about usurpation, such as usurping all NYC zoning laws and 22 acres of Brooklyn to construct a money-losing arena and massive parking lots for a politically connected developer.
But we digress. The plaintiffs on the case, which include DDDB, have made clear, and the court agreed, that the ESDC acted arbitrarily and capriciously in its decision making "process."
Posted by eric at 11:34 PM
In new briefs, ESDC and Forest City ask appeals court to overturn decision ordering new environmental review for Phase 2 of Atlantic Yards
Atlantic Yards Report
The battle over the last remaining Atlantic Yards lawsuit continues in court, with new briefs from the Empire State Development Corporation (ESDC) and developer Forest City Ratner.
The state agency, decrying an "unprecedented judicial usurpation of agency discretion," slams state Supreme Court Justice Marcy Friedman for imposing what it says are her views on how to analyze the potential impact of an extended project buildout lasting 25 years, rather than the officially announced ten years.
Similarly, Forest City denounces "an unprecedented expansion and distortion of SEQRA [State Environmental Quality Review Act], and an improper substitution by the court of its judgment for that of ESDC."
Thus, contends the agency, her decision, which required the ESDC to conduct a Supplemental Environmental Impact Statement (SEIS) regarding Phase 2--the eleven towers outside the arena block and Site 5--should be reversed both because judges should defer to agency decisions, as well as "the record here, which makes clear that ESDC took multiple SEQRA 'hard looks' at the impacts of the Project under various construction schedules."
The briefs by ESDC and Forest Citywill get a response from the two coalitions (led by Develop Don't Destroy Brooklyn and the Prospect Heights Neighborhood Development Council/BrooklynSpeaks) that brought the (now-combined) lawsuit.
The twist
But the whole thing's a bit surreal.
Why? Because statements made outside the record by developer Bruce Ratner make a mockery of the agency's longstanding claims the project would last ten years. Moreover, a regular pattern of construction-related abuses means that the mitigation plan created by and cited by the state is less "robust" than asserted.
Posted by eric at 11:30 AM
December 8, 2011
Queens judge reexamines lawsuit against city over Willets Point
Queens Times Ledger
by Joe Anuta
A State Supreme Court judge reopened a lawsuit Tuesday that could throw a wrench into the $3 billion redevelopment blueprint for Willets Point after the city broke down its original plans into three separate phases.
State Supreme Court Judge Joan Madden originally ruled against a group of property owners who sued the city to stop the project, but she said in her Tuesday ruling that she would reopen the case after the city Economic Development Corp. made changes to its plans for the 62-acre, mixed-use development, which would replace the auto body shops and industrial businesses that currently populate the Iron Triangle.
According to the ruling, the city broke up the proposal into three phases without conducting a separate environmental study and also claimed that it did not need additional ramps on the Van Wyck Expressway to accommodate increased traffic.
In addition, the city earlier claimed that it would not proceed with condemning property in the triangle until the ramps were approved but did so anyway, the ruling said.
“As the city has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment,” Madden said in her statement.
Posted by eric at 11:02 AM
December 6, 2011
Feds open SEC probe into Miami Marlins stadium deal
The U.S. Securities & Exchange Commission has subpoenaed records from Miami-Dade County and Miami over the deal to build a new ballpark for the Marlins.
Miami Herald
by Charles Rabin, Martha Brannigan and Patricia Mazzei
Look who's just catching on!
Federal authorities have opened a wide-ranging investigation into the Miami Marlins’ controversial ballpark deal with Miami-Dade County and the city of Miami, demanding financial information underpinning nearly $500 million in bond sales as well as records of campaign contributions from the Marlins to local and state elected leaders.
In a pair of lengthy letters delivered to government attorneys Thursday, the U.S. Securities & Exchange Commission gave the city and county until Jan. 6 to deliver everything from minutes of meetings between government leaders and Marlins owner Jeffrey Loria and Major League Baseball Commissioner Bud Selig, to records of Marlins finances dating back to 2007.
In the almost-identical subpoenas, the SEC also requested documents concerning stadium parking garages built by Miami. The Miami Herald reported Nov. 22 that city leaders are now complaining they were hoodwinked into likely having to pay an annual $2 million tax bill on the garages.
The financing agreement to build the controversial new stadium in Little Havana left the county and city on the hook for almost 80 percent of the overall $634 million tab, which critics considered a giveaway to the Marlins. The deal was a contributing factor in the recall of Miami-Dade Mayor Carlos Alvarez, who championed it.
...Neither subpoena said exactly what the SEC was looking for, though federal investigations into municipalities generally focus on whether bond holders were misled about finances while being enticed to purchase the bonds.
Two former SEC attorneys who reviewed the subpoenas for The Herald said government investigators are likely looking at whether the city and county did proper due diligence into the Marlins’ finances, and whether there was any influence peddling to local politicians.
“There’s always the issue of pay-to-play. They want to know whether there were unlawful contributions,” said William Nortman, a Fort Lauderdale attorney and former SEC regional administrator. “Don’t forget, there was a lot of controversy over the building of this in Miami. They are examining how this came to be. They want to know whether inappropriate payments were made.”
NoLandGrab: Hey, SEC, you might want to look into another recent deal in which approximately $500 million of bonds were sold to fund construction of a basketball arena.
Posted by eric at 1:25 PM
December 4, 2011
More from the file in the case challenging economic development grants: the influence of politics, the legacy of AY eminent domain litigation
Atlantic Yards Report
A few more pieces from the file in the case (as I described November 28) unsuccessfully challenging the state's practice of economic development grants as violating the state Constitution's ban on gifts to private undertakings.
The corruption of state politics
From the initial plaintiffs' brief, 9/15/08:
Complaints about state politics being dominated by “Three Men in a Room,” the Governor, Speaker and Majority Leader, are legion. What makes this corrupt regime possible is the flagrant disregard of the Constitution, both in appropriating grants to favored corporations and in allowing those three officials to secretly choose the recipients of the illegal largesse. As pointed out in the complaint, many recipients of grants return the favor by making campaign contributions to influential legislators. This further increases their power over the rank and file legislators who need this money at election time.
From the 8/4/08 complaint:
- There are well over 100 grants to chambers of commerce, groups that supposedly espouse the principles of free private enterprise.
- On information and belief, recently a candidate for state legislature in Upstate New York approached a chamber of commerce official for support and was told the group could not support him as they were getting state money from the incumbent.
- This anecdote illustrates the corrupting influence of corporate welfare in our extraordinarily non-competitive political system.
The influence of eminent domain litigation
The Atlantic Yards eminent domain case, known as Goldstein, played a key role in the 1/10/11 brief from the state as defendant:
B. Appropriations For The Purpose Of Fostering Economic Development Are For A Public Purpose.
This Court has recognized that promotion of economic development is a valid objective of governmental action. The issue has presented itself primarily in cases involving condemnation of real property, where the Court has confirmed that “removal of urban blight” is a “recognized public purpose or ‘use’ ” and therefore “a proper, and, indeed, constitutionally sanctioned, predicate for the exercise of the power of eminent domain.” Matter of Goldstein v. New York State Urban Dev. Corp.... The determination that economic development in the form of the removal of urban blight is a public purpose sufficient to justify a taking of private property necessarily implies that economic development is a also sufficiently public purpose to justify an expenditure of public funds. Indeed, a “public purpose” requirement supporting a taking of private property should be at least as stringent as a public purpose requirement supporting the expenditure of public funds.
In the Goldstein and Kaur cases, this Court also made clear that the determination of whether a governmental action serves a public purpose is a legislative rather than a judicial task.
Of course, the "legislative" task in the case of Atlantic Yards was determined not by the legislature but by a purportedly (to the defense) independent public benefit corporation, the Empire State Development Corporation.
Some reformers think that the burden should be higher when eminent domain is conducted by such an unelected body, compared to an elected one.
Posted by steve at 10:57 PM
November 28, 2011
NY Court of Appeals, reversing surprise decision, OKs state economic development grants; Daily News, which saluted AY, lauds dissent by Judge Robert Smith (whose AY dissent the paper ignored)
Atlantic Yards Report
A 5-2 state Court of Appeals decision last week (Bordeleau vs. New York State) upholding state grants for economic development wasn't a surprise, even though the court had to reverse an appellate court that gave the Tea Party-affiliated plaintiffs some measure of hope.
Yes, the state Constitution bans gifts and loans to private entities, but the state has done so for years through intermediary public benefit benefit corporations like the Empire State Development Corporation (ESDC), based on the premise that they are independent. (Of course, the governor controls the ESDC, as we've seen in the Atlantic Yards saga.)
And, judges are reluctant to intervene in such longstanding, however dubious, economic development policy, even if involves the largest state economic development subsidy in history, to upstate chip maker GlobalFoundries, which--no surprise--is already seeking to modify and improve the deal it got.
An editorial surprise
What was a surprise was a scorching 11/26/11 New York Daily News editorial headlined New York Court of Appeals was wrong to toss corporate subsidy suit: Dismissal reveals double standard on taxpayer protection.
After all, while the Daily News criticized the court's endorsement of the ESDC's subsidy practices, it has never looked askance at ESDC support for Atlantic Yards. (The New York Times hasn't covered the subsidy case, either in its news pages or editorial pages.)
Related content...
NY Daily News, New York Court of Appeals was wrong to toss corporate subsidy suit: Dismissal reveals double standard on taxpayer protection
Posted by eric at 12:11 PM
November 20, 2011
Workers: "Atlantic Yards Scammed Us"
Bay Ridge Journal
According to a South Brooklyn Legal Services press release, a group of Brooklyn workers who joined a job training program as part of the Atlantic Yards development deal have filed a federal lawsuit against Atlantic Yards Development Company LLC, Brooklyn Arena LLC, Brooklyn United for Innovative Local Development (‘BUILD’), Forest City Ratner Companies LLC (‘FCRC’), Bruce Ratner and others.
The lawsuit alleges that the defendants fraudulently induced the plaintiffs into taking part in a fake employment training program.
When developer Bruce Ratner announced Atlantic Yards in December, 2003, neighborhood residents immediately objected that by demolishing residential buildings, the project would evict tenants and drive out homeowners and small businesses.
In a move calculated to subvert protest and conquer local politicians, Atlantic Yards developers entered into a so-called ‘Community Benefits Agreement’ (‘CBA’), promising jobs and other benefits, with a bunch of cardboard "community organizations", including BUILD, created solely for purposes of negotiating the CBA.
Among other things, the CBA promised that Atlantic Yards would create a Pre-Apprenticeship Training Program’ (‘PATP’), in partnership with BUILD, to train community residents for construction jobs at Atlantic Yards.
Plaintiffs joined the PATP in the fall of 2010 -- several even quit their jobs to do so. They were repeatedly assured by the developers that, by completing the program, they would earn membership in construction unions employed at Atlantic Yards.
Those jobs never materialized.
Posted by steve at 9:41 PM
November 17, 2011
Atlantic Yards Lawsuit Plaintiffs Allege Broken Promises
Brownstoner
Former Build supporters sue the organization and FCR from rumur on Vimeo.
Here’s a video of the press conference on Tuesday about the lawsuit over Atlantic Yards jobs. The footage, shot by Milica Petrovic, shows some of the plaintiffs saying they were promised union jobs at Atlantic Yards after completing a training program. Maurice Griffen, one of the people suing, has this to say: “They guaranteed me a union card. They said it’s not a question of if we have it, it’s just a question of if you complete the program or not.” Meanwhile, a lawyer from South Brooklyn Legal Services says the suit hinges on “contract law…if a promise is made it has to be kept…these were promises made at the Community Benefits Agreement, they were made at orientation…” Councilwoman Letitia James says the plaintiffs “were had.”
Posted by eric at 12:42 PM
November 16, 2011
Brooklyn Residents File Lawsuit to Recover Unpaid Wages
The Local [Clinton Hill/Fort Greene]
by Chester Soria and Martin Leung
Ironic that The Times, which sent experienced reporter Liz Robbins to cover the Nets' staged event at Borough Hall, sent two interns to cover the press conference about the lawsuit. Let's hope they get better treatment in their training program than the ex-trainees got from Forest City Ratner and BUILD. And frankly, their reporting is better than The Times's usual Atlantic Yards coverage.
[Plaintiffs' attorney Nicole] Salk added that the plaintiffs entered the internship program because they were guaranteed union jobs and that they continued working because they were told they would not receive membership if they stopped.
Marie Louis, BUILD chief operating officer, attended the press conference with other members of the organization to find out who the plaintiffs were. She argued after the press conference that all the plaintiffs signed an agreement that said they would not receive pay or be guaranteed union membership.
“They knew it was an unpaid internship,” Ms. Louis said, adding that the plaintiffs misunderstood the agreement. “We can’t help it if people have an idea in their mind that they laser in on.”
Those lasers, of course, were guided by falsehoods.
The plaintiffs’ attorneys, however, said after the press conference, that a signed agreement does not mean that their clients were not entitled to pay.
“You can’t waive your right to be paid for your labor,” said Molly Thomas-Jensen, a SBLS staff attorney.
Maurice Griffin, 23, of Prospect Heights, was one of the plaintiffs at the conference. Mr. Griffin said that he personally asked James Caldwell, BUILD president and CEO, about union books — membership cards that denote union membership — and that Mr. Caldwell told him he had nothing to worry about. He also said Mr. Caldwell told the class that he himself had seen the union books.
“You can ask all the 36 students,” said Mr. Griffin, “and all 36 will tell you that the said the union books were guaranteed.”
Related coverage...
NY Observer, SUIT: Forest City Broke Union Promises
“Their understanding was that upon being admitted (into the unions), which (BUILD instructors) guaranteed they would be when they completed the program, that they would be given a job on the Atlantic Yards construction site,” Matt Brinckerhoff, one of the attorneys representing the plaintiffs, told The Commercial Observer.
Mr. Brinckerhoff added that the training itself was “muddled and haphazard” and taught the participants “various platitudes.”
Gothamist, Atlantic Yards "Interns" Suing Forest City Ratner For Broken Promises
Posted by eric at 5:05 PM
“I was robbed,” claims plaintiff in lawsuit against BUILD and FCR; defendants deny promising jobs and union cards, setting up contest over credibility; claims over unpaid wages in "sham" training program may be easier to prove
Atlantic Yards Report
To City Council Member Letitia James, the leading political opponent of Atlantic Yards, the federal lawsuit filed yesterday by seven would-be Atlantic Yards workers, who claim they were promised construction jobs and union cards after finishing a highly competitive training program, confirms that the project “was the greatest bait and switch in the history of Brooklyn.”
For the workers-- some of whom quit jobs or declined job offers in expectation of post-training work and union membership--it was simply a chance for justice, after going through the 15-week program sponsored by Community Benefits Agreement (CBA) signatory BUILD (Brooklyn United for Innovative Local Development), where they learned little and were put to work, without pay, on a mostly unsupervised contracting job.
“We were repeatedly reassured on numerous occasions that all we had to do is to complete the program and we would obtain union books and employment,” said Kathleen Noreiga, 58, an electrician (in video below). She made a point of saying she had rallied for the project with BUILD, which, while offering job training and assistance, has regularly brought Atlantic Yards supporters to public hearings and events. (BUILD CEO James Caldwell has regularly praised Atlantic Yards developer Bruce Ratner as "like an angel sent from God.")
Seven of the 36 workers who went through the program, which concluded last December, joined the suit, announced at a press conference yesterday afternoon. (Videos by Jonathan Barkey)
“I was robbed,” asserted Maurice Griffin (in video below), who quit his non-union carpentry job to do the 15-week, Forest City Ratner-funded program that began last August.
“They guaranteed me a union card, They said it’s not a question of whether we have it, but whether you complete the program. And I completed it. I came every time, early. I did my work. I’m here to let everybody know I’m not going to stand for this.” Griffin later joined a union on his own.
Click thru for much more.
Posted by eric at 12:30 PM
Lawsuit Against Forest City Ratner And The Fallacy Of Relying On A White-owned Monopoly To Create Construction Work For The Minority Community
Noticing New York
I’d like to focus on one particular aspect of the lawsuit, the question of what Forest City Ratner really ought to owe everyone. The plaintiffs are represented by South Brooklyn Legal Services and one of the attorneys I spoke to today commented that it was sort of absurd that Forest City Ratner had to be sued for not delivering what was essentially the jobs “sweetener” promised for getting control over all the acreage associated with Atlantic Yards. I think that actually trivializes the debt that Forest City Ratner is walking out on.
It is astounding to think that with the resources of its huge mega-monopoly Forest City Ratner is stiffing people for even these few jobs. The 22 acres of Atlantic Yards are contiguous to other Ratner-owned acreage, making for 30 contiguous Ratner-owned acres at the site, with 50+ Ratner-owned acres in the area. That’s an awful lot of mega-monopoly tying up resources in the community accompanied by an unwillingness to hand out jobs.
More important, it should not be overlooked that the creation of the Ratner mega-monopoly precluded and destroyed other jobs. Therefore, I don’t think it is a case of Ratner just owing the community or individuals the few jobs that were the promised sweetener in connection with all the Ratner takings; what Ratner owes the community ought to be commensurate with all the jobs destroyed or precluded by the mega-monopoly.
Posted by eric at 12:24 PM
Bait and switch? Ratner sued over ‘sham’ job-training program
The Brooklyn Paper
by Daniel Bush
Atlantic Yards developer Bruce Ratner set up a “sham” job-training program that ended up screwing workers out of promised union positions on his $5-billion mega-project, a bombshell lawsuit charged on Tuesday.
The workers say that they were promised union membership and jobs in exchange for taking a 15-week apprenticeship course in 2010, but were never hired on at the Prospect Heights site — which includes the Barclays Center and 16 residential towers on a 22-acre parcel of land stretching from Flatbush Avenue to Vanderbilt Avenue.
“They told us they would set aside jobs,” said Kathleen Noriega, one of the plaintiffs. “What they did was wrong and misleading.”
Noriega and six other plaintiffs are being represented by South Brooklyn Legal Services, which has long been involved in Atlantic Yards-related suits.
“The project developers … blatantly violated many federal and state statutes designed to protect individuals from exploitation,” said lawyer Molly Thomas-Jensen. “The project developers … also made promises, to community members and directly to the plaintiffs in this case, that they have broken.”
NoLandGrab: We don't see how this could have happened. We had Bruce Ratner's word, for crying out loud.
Posted by eric at 12:14 PM
November 15, 2011
Construction Workers Sue Atlantic Yards Developer, Claiming They Were "Duped"
Workers allege that Forest City Ratner and the non-profit BUILD failed to deliver promised union cards and jobs following unpaid apprenticeship program.
Park Slope Patch
by Amy Sara Clark
Claiming they were duped, seven Brooklyn construction workers are sueing the developer of the Atlantic Yards Project and a local community organization for failing to deliver union cards and construction jobs they said were promised at the end of what they call a “sham” job-training program.
“I was robbed,” said Maurice Griffin of Crown Heights at a news conference today in the shadow of the rising Barclays Center. Griffin, like many of the plaintiffs, quit a job to join the program.
”I would never have joined this pre-apprenticeship program if it wasn’t agreed (guaranteed) to me that I would have a union card upon completion,” he said.
Councilwoman Letitia James, who organized the press conference, called both the pre-apprenticeship program and the Atlantic Yards Project “the greatest bait-and-switch in the history of Brooklyn.”
Read on for more of this sordid story.
Photo: Amy Sara Clark/Patch
Related coverage...
NY1, Locals Claim Atlantic Yards Developers Denied Promised Construction Jobs
This is priceless:
Developer Forest City Ratner said, "We have already generated 50 percent of the projected economic activity for phase one. Were it not for the delays brought on by opponents of the project, including some of those behind this law suit, even more people would be employed right now.”
NoLandGrab: "Some of those behind this law suit?" The people "behind" this lawsuit are seven former Atlantic Yards-supporting BUILD members who got screwed over by Forest City & friends.
My Little O [Fort Greene/Clinton Hill], Unpaid Wages and broken Promises
The seven plaintiffs participated in a Pre-Apprenticeship Training Program, created by the project developers totrain community residents for construction jobs within the arena and project. The plaintiffs alleged that they were repeatedly and consistently told that upon completion of the program they would earn membership in building trades unions whose workers would be employed by the Project. Instead, they said they never received any offers of employment at Atlantic Yards, and were only employed for two months in the construction of a house on Staten Island, for which they received no wages or other compensation.
Brooklyn Daily Eagle, Another Atlantic Yards Lawsuit
The suit seeks the recovery of unpaid wages as well as damages based on alleged false promises. The plaintiffs are represented by South Brooklyn Legal Services (a program of Legal Services NYC) and Emery Celli Brinckerhoff & Abady LLP.
Atlantic Yards Report, Documents from the lawsuit against BUILD & FCR: the press release and the legal complaint
Posted by eric at 11:26 PM
Seven (of 36) trainees who went through job training program for Atlantic Yards construction jobs sue Forest City, BUILD, others, claiming promises were a sham
Atlantic Yards Report
But wait — they had Bruce Ratner's word!
Forest City Ratner and Community Benefits Agreement (CBA) signatory BUILD (Brooklyn United for Innovative Local Development) have made extensive promises regarding construction jobs for locals at the Atlantic Yards project, a new lawsuit contends, but have not come through.
A Daily News exclusive today, headlined Promise of union jobs a lie by Atlantic Yards, suit by construction workers charge, presages a press conference this afternoon about the suit.
The essence of the case
Notably, the plaintiffs include some people who vocally supported the project with the expectation of jobs. The Daily News reports that workers who say they were promised Atlantic Yards construction jobs instead got "a sham training program" and "offers to work in maintenance, a health club and McDonald’s."
...Were workers guaranteed construction work, as alleged? No, BUILD CEO James Caldwell told the newspaper. His organization, along with the deeper-pocketed Forest City Ratner, and individual company executives, are named in the suit.
Forest City declined comment until the company sees the suit. Likely crucial to the case is what specifically the trainees were promised, and how that can be established in court.
Click thru for more.
Related coverage...
Develop Don't Destroy Brooklyn, Bruce Ratner, BUILD, James Caldwell Sued in Federal Court Today for Broken Atlantic Yards Promises
Seven construction workers, including former outspoken supporters of Atlantic Yards, promised union cards and construction jobs on Bruce Ratner's Atlantic Yards project are filing suit in federal court today against the developer, the community group funded by him, Brooklyn United for Innovative Local Development (BUILD), and others.
Remember, it was Mayor Bloomberg who was famously caught on tape, as seen in the film "Battle for Brooklyn," saying that legal agreements aren't necessary because, "You have Bruce Ratner's word. That should be enough for you." It appears that neither his words or agreements carry much weight.
The only promise kept so far is to construct a money losing, community disruptive, environmentally damaging billion dollar arena in the midst of a housing crisis for a team in a league that is currently working its way into oblivion.
Brownstoner, Lawsuit to be Filed Over Atlantic Yards Jobs
One of the plaintiffs had this to say: “I believed I was going to be employed, that jobs were going to come into my community. …It was all lies.” Meanwhile, the president of BUILD says the program never guaranteed construction jobs. Matthew Brinckerhoff, the lawyer representing the plaintiffs along with South Brooklyn Legal Services, is quoted as follows: “It’s galling that people living in the community were conned into enthusiastically supporting this project based on the promise of jobs.”
The Brooklyn Paper, ‘Betrayed’ workers to sue Ratner today
Ratner once boasted that the 22-acre project would create 1,500 jobs per year over a 10-year buildout, but roughly 700 people are currently at work on the arena.
The paltry numbers have prompted disgruntled workers — who backed the project during its approval process five years ago — to rally regularly for jobs.
NoLandGrab: At least the paltry few got construction jobs, unlike these duped trainees.
The Real Deal, Construction workers sue Ratner over false promises at AY
The workers say they enrolled in Ratner's training program for construction workers on the project, weren't fully compensated for the work they performed during the training and afterwards were offered jobs in maintenance, a nearby health club and a McDonald's.
Atlantic Yards Report, Given the lawsuit against BUILD and FCR, will the New York Times revisit the 2005 "modern blueprint" claim?
Remember this 2005 New York Times article about Forest City Ratner and BUILD?
Now there's a lawsuit.
NLG: But wait, people — they had Bruce Ratner's word!
Posted by eric at 11:54 AM
Promise of union jobs a lie by Atlantic Yards, suit by construction workers charge
Seven construction workers to sue Bruce Ratner
NY Daily News
by John Marzulli & Erin Durkin
But they had Bruce Ratner's word!
They say they were promised good paying union jobs on Brooklyn’s largest construction site.
But what they got from what a new lawsuit charges was a sham training program were offers to work in maintenance, a health club and McDonald’s.
Seven construction workers will sue developer Bruce Ratner Tuesday, accusing him of falsely promising them the moon to win political and community approval of his controversial Atlantic Yards project.
He not only failed to deliver the jobs but also stiffed them for work they performed in the training program, they allege.
“I believed I was going to be employed, that jobs were going to come into my community,” said electrician Kathleen Noriega, 58, of Crown Heights.
“It was all lies,” said Noriega, one of the plaintiffs filing suit Tuesday in Brooklyn Federal Court.
The suit contends Ratner claimed plans for a new sports arena for the Nets and 16 residential and commercial skyscrapers would create 17,000 union construction jobs and 8,000 permanent jobs.
Noriega said she was a vocal supporter of the project’s training program, which offered construction workers membership in building trade unions. Many of the organizations that signed on to train the workers, like Brooklyn United for Innovative Local Development, were bankrolled by Ratner, according to the suit.
BUILD President James Caldwell, who is named as a defendant in the suit, defended the program, saying most of the 36 participants have been placed in maintenance jobs at other Ratner properties.
Caldwell denied anyone was guaranteed construction work.
“Just like Forest City Ratner made adjustments, (in the size of the project) we had to make adjustments,” Caldwell said.
...“It’s galling that people living in the community were conned into enthusiastically supporting this project based on the promise of jobs,” said lawyer Matthew Brinckerhoff who is representing the plaintiffs, along with South Brooklyn Legal Services.
“They were promised union membership with union jobs, instead they got McDonald’s,” Brinckerhoff said.
NoLandGrab: Mr. Caldwell means they had to adjust their lies. Shame.
Posted by eric at 6:24 AM
November 14, 2011
Federal lawsuit to be filed against Forest City Ratner Companies LLC, and others for damages based on unpaid wages and false promises
City Councilmember Letitia James issued the following media advisory this afternoon.
Council Member James, State Senator Velmanette Montgomery, South Brooklyn Legal Services, Clergy and Community to Hold Press Conference in Support of Brooklyn Residents Persuaded into Participating in Deceptive Atlantic Yards Training Program
Press Conference This Tuesday, November 15, 3:30pm at 67 Hanson Place and South Elliott place - in front of the District Office of Council Member James
Federal lawsuit to be filed against Forest City Ratner Companies LLC, and others for damages based on unpaid wages and false promises
A group of Brooklyn residents who participated in a job-training program negotiated as part of the Atlantic Yards project plan to file a federal lawsuit against the Atlantic Yards Development Company LLC, Brooklyn Arena LLC, Brooklyn United for Innovative Local Development, Forest City Ratner Companies LLC, Bruce Ratner and others.
The suit seeks the recovery of unpaid wages as well as damages based on false promises. The plaintiffs are represented by South Brooklyn Legal Services (a program of Legal Services NYC) and Emery Celli Brinckerhoff & Abady LLP.
WHO: Elected Officials, Clergy, Lawyers, and Plaintiffs
WHAT: Press Conference to Announce Lawsuit against Atlantic Yards Development Company LLC and others
WHEN: Tuesday, November 15 at 3:30pm
WHERE: 67 Hanson Place and South Elliott Place in front of the District Office of NYC Council Member Letitia James
NoLandGrab: But Mayor Bloomberg saidwe had Bruce Ratner's word!
Posted by eric at 8:11 PM
November 6, 2011
If both parties got charged in the Boyland bribery case, finishing up in federal court, why did Forest City Ratner (or an affiliate/staffer) get a bye with Ridge Hill?
Atlantic Yards Report
A current federal bribery trial sets up a distinct contrast with a case involving Forest City Ratner.
In an 11/2/11 article headlined Corruption Trial Opens for Lawmaker From Brooklyn Political Family, the New York Times reported:
An assemblyman from one of Brooklyn’s most prominent political families struck a secret deal to use his influence in Albany on behalf of a hospital chief executive in return for a sham consulting job that paid him about $175,000, a federal prosecutor said Tuesday.
The assemblyman, William F. Boyland Jr., “demanded a no-show job to enrich himself,” the prosecutor, William J. Harrington, told the jury as the politician’s trial began in Federal District Court in Manhattan.
“Boyland did no meaningful hospital work,” Mr. Harrington said, adding that what the hospital, Brookdale University Hospital and Medical Center in Brooklyn, got for its money was “a paid advocate in Albany, a politician on the take.”
...On Tuesday, a lawyer for Mr. Boyland told the jury there was no evidence that his client had accepted bribes and that the government’s case “rests really on cynicism, speculation and suspicion, because you are not going to find evidence of that unlawful agreement,” the lawyer, Richard H. Rosenberg, said in his opening statement.
He said Mr. Boyland had done genuine consulting work for Brookdale, an arrangement he had reached with David P. Rosen, then the chief executive of MediSys, the nonprofit sponsor of Brookdale and other hospitals, nursing homes and neighborhood health centers in Queens and Brooklyn.
...Mr. Rosen was tried this summer by Judge Jed S. Rakoff — in a nonjury trial, at Mr. Rosen’s request. In September, Judge Rakoff issued a ruling finding Mr. Rosen guilty of seeking to bribe Mr. Boyland and two other Democratic officials — Assemblyman Anthony S. Seminerio of Queens and Senator Carl Kruger of Brooklyn — in return for favorable treatment for MediSys.
What about Ridge Hill?
As I wrote in March 2010:
After all, City Council Member Sandy Annabi changed her vote to approve the project and was indicted for accepting bribes. Her cousin, Zehy Jereis, was indicted for giving them.
FCR, which hired Jereis for an apparent no-show job, was not indicted and issued a statement indicating that it had been told by federal prosecutors that neither it nor its employees was a "target" of the investigation.
If so, that suggests either that prosecutors lack sufficient evidence to indict the developer and/or that they believe the developer's cooperation justifies not seeking its indictment.
Thus, FCR not only escaped sanction for some questionable behavior--it has never explained or justified the no-show contract--it also can continue to benefit from a zoning change that was, according to prosecutors, illicitly gained.
If Rosen, who arranged the consulting job for Boyland, was tried and convicted, why has the person (or party) who arranged the no-show job for Jereis given a pass? (Jereis has yet to come to trial.)
Posted by steve at 5:17 PM
October 9, 2011
Somehow, AKRF-like conflict shouldn't past muster in federal environmental review process
Atlantic Yards Report
Remember how it was just fine for the ubiquitous environmental consultant AKRF to have worked for Atlantic Yards developer Forest City Ratner before the Empire State Development Corporation (ESDC) hired it to do the Atlantic Yards environmental review? (That review, for example, underestimated the impacts of construction noise on surrounding residents.)
Remember how it was also kosher for AKRF to have worked for Columbia University simultaneously while working for the ESDC?
In both cases, the New York State Court of Appeals, upholding eminent domain, thought nothing of the seeming conflict.
...
Yesterday, in a through-the-looking-glass article headlined Pipeline Review Is Faced With Question of Conflict, the New York Times tells us that that kind of conflict might be bad--at least in federal cases:
The State Department assigned an important environmental impact study of the proposed Keystone XL pipeline to a company with financial ties to the pipeline operator, flouting the intent of a federal law meant to ensure an impartial environmental analysis of major projects.
The department allowed TransCanada, the company seeking permission to build the 1,700-mile pipeline from the oil sands of northern Alberta to the Gulf Coast in Texas, to solicit and screen bids for the environmental study. At TransCanada’s recommendation, the department hired Cardno Entrix, an environmental contractor based in Houston, even though it had previously worked on projects with TransCanada and describes the pipeline company as a “major client” in its marketing materials.
While it is common for federal agencies to farm out environmental impact studies, legal experts said they were surprised the State Department was not more circumspect about the potential for real and perceived conflicts of interest on such a large and controversial project.
John D. Echeverria, an expert on environmental law, referred to the process as “outsourcing government responsibility.”
The subsequent study, released at the end of August, found that the massive pipeline would have “limited adverse environmental impacts” if operated according to regulations. That positive assessment removed one of the last hurdles for approval of the proposed pipeline.
"Outsourcing government responsibility" is par for the course in New York, though I don't see AKRF trumpeting its clients.
Posted by steve at 11:06 PM
September 15, 2011
Cuomo Administration to Appeal Court Order to Re-examine Atlantic Yards Environmental Impact
Develop Don't Destroy Brooklyn
Speaking of the ESDC...
Governor (Status) Cuomo and his new appointee heading the Empire State Development Corporation (ESDC), Kenneth Adams, have decided that the most responsible thing it can do for the public in reaction to a July court order to rationally examine the environmental impacts of the 25-year (at minimum) Atlantic Yards project is to...appeal that court order.
The ESDC, again, is acting solely on behalf of the developer Forest City Ratner while gifting the public (DDDB and BrooklynSpeaks foremostly) the present of having to fight off an appeal that shouldn't have been brought in the first place.
Oh, and all the local politicians had called on Adams and the Governor to comply with the court order.
Posted by eric at 12:09 PM
September 14, 2011
ESDC, Forest City to appeal state court judge's ruling that requires Supplemental Environmental Impact Statement; legislators had asked state to comply with decision
Atlantic Yards Report
When it comes to Atlantic Yards and New York State government, everything is Status Cuomo.
Does the impact of extended Atlantic Yards construction, which could last 25 years, need to be studied further?
No, say the Empire State Development Corporation (ESDC) and Forest City Ratner. They're appealing two decisions made by state Supreme Court Justice Marcy Friedman--strong criticisms of the state's processes--leading to 7/13/11 ruling and order that the ESDC conduct further environmental review, including a Supplemental Environmental Impact Statement (SEIS).
The defense argument, as described further below, is that it was "rational in all respects, and adequately supported by the record" for the state to assume a ten-year buildout and to assume that no significant adverse environmental impacts had not already been analyzed.
The question for the appellate court is whether, indeed, it was "rational"--not clear and convincing but simply "rational." That's a very low bar for a state agency to meet in an environmental review proceeding, which is why Friedman's rulings against the state were unusual.
The petitioners--in two combined cases--include civic groups organized by BrooklynSpeaks and Develop Don't Destroy Brooklyn (DDDB), as well as several individuals and local elected officials. The appeal decision was announced yesterday by BrooklynSpeaks, which in recent months has taken more of a leading role in the litigation.
NoLandGrab: Why you hittin' yourself, ESDC?
Related coverage...
Prospect Heights Patch, Order for Environmental Review of Atlantic Yards to be Contested
Brownstoner, Forest City, ESDC Appealing July Atlantic Yards Ruling
Posted by eric at 1:29 PM
September 13, 2011
Empire State Development Corporation and Forest City Ratner to fight court order to revisit 2009 Atlantic Yards Plan
BrooklynSpeaks
Today, BrooklynSpeaks announced that the Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC) have served notice that the two plan to fight a July court decision ordering further environmental review of the Atlantic Yards project. The decision came after nearly two years of litigation by BrooklynSpeaks’ sponsors, local elected officials and community members, which challenged ESDC’s 2009 approval of plan changes increasing the duration of project construction from 10 to 25 years.
State legislators from the communities surrounding the Atlantic Yards project have previously called on the Empire State Development Corporation (ESDC) to comply with the court order to reconsider the 2009 Modified General Project Plan. In a letter to ESDC CEO Ken Adams from Assemblyman Hakeem Jeffries and signed by Assembly Member Joan Millman, State Senator Eric Adams and State Senator Velmanette Montgomery, the officials point to troubling facts. “More than seven years have passed since Atlantic Yards’ announcement, and almost five years have passed since its original plan was approved. In that time, we have seen the promises of affordable housing and local jobs move nearly a generation into the future,” they wrote. The legislators also note extended use of the site for 1,100 surface parking spaces, and the removal of project elements intended to reduce the impact of locating an arena in a residential neighborhood, as critical changes introduced with the 2009 plan. Assemblyman Jim Brennan, Chair of the Committee on Corporations, Authorities and Commissions, has written separately to CEO Adams urging ESDC not appeal the July decision. “I believe that it is in the interest of the whole Brooklyn community to comply with Judge Friedman’s order,” Assemblyman Brennan stated.
Filing of the appeal by FCRC and ESDC stays ESDC’s obligation to comply with the court order, thus delaying changes to the Atlantic Yards plan that would accelerate the delivery of affordable housing, create more jobs, and reduce the impacts of the additional 15 years of construction cited in the court’s decision.
...Said Gib Veconi of the Prospect Heights Neighborhood Development Council, “The 2009 Atlantic Yards plan may have been negotiated under the previous administration, but the July court decision makes it Governor Cuomo’s problem now. We expected the Governor to follow through on his promises to reform State government, turn around delayed development at Atlantic Yards, and make this project work for Brooklyn and for New York State. Instead, it looks like he’s willing to continue to run interference for Forest City Ratner.
Posted by eric at 11:12 AM
August 30, 2011
Will judge's decision requiring Supplemental EIS be appealed? Unclear, but we should know by mid-September
Atlantic Yards Report
So, what happened with that significant, if belated, Atlantic Yards judicial ruling in July?
Remember, the Empire State Development Corporation (aka Empire State Development) was ordered to conduct a Supplemental Environmental Impact Statement (SEIS) for Phase II of the Atlantic Yards project and was criticized for "arbitrary and capricious" reliance on the assumed--but not credible--ten-year buildout.
Well, the state can comply, or it can appeal. And it hasn't decided.
Note that, given the low judicial bar, requiring government agencies to have merely a "rational" basis for their decisions, it's very unusual for judges to lodge such criticism--one of the reason, I'd argue, for the significance of state Supreme Court Justice Marcy Friedman's ruling.
State posture
Last week, I asked Arana Hankin, Director, Atlantic Yards Project for the ESD, about the status of the case.
"We're still discussing our options internally," Hankin said, during a longer interview. "We feel strongly that we complied with all the SEQRA [State Environmental Quality Review Act] laws and all applicable laws. We understand that there may be a need for us to reevaluate some things, or possibly take another look... But we haven't made any final decisions yet. We have until September 16 to appeal. So we're still talking internally, with everyone, including the second floor [governor's office] about how we're going to respond."
...Note that developer Forest City Ratner was a co-defendant in the case, brought by two coalitions of community groups, led by Develop Don't Destroy Brooklyn and the Prospect Heights Neighborhood Development Council, the latter on behalf of BrooklynSpeaks.
Also note that Forest City Ratner pays the fees of the ESDC's outside counsel in this case.
The state agency takes the lead, but, if I had to bet, I'd bet that Forest City Ratner is pushing for an appeal. Cost is merely one factor, and Forest City was once willing to pay a high-priced lawyer to try to avoid a relatively small fine for improper demolition.
So the developer (and the state) might want to see a critical ruling overturned.
Posted by eric at 11:03 AM
July 27, 2011
PHNDC's Veconi on the lessons of the latest Atlantic Yards ruling: the state "is willing to risk breaking the law" when it helps Forest City Ratner
Atlantic Yards Report
In a July 23 op-ed in Prospect Heights Patch, Lessons from the Community’s Atlantic Yards Win, Gib Veconi of the Prospect Heights Neighborhood Development Council (a component of BrooklynSpeaks), analyzes the significance of Justice Marcy Friedman's July 13 ruling ordering the Empire State Development Corporation (ESDC) to conduct a Supplementary Environmental Impact Statement.
Among the lessons:
ESDC is willing to risk breaking the law when it helps FCRC [Forest City Ratner]. ESDC had previously shown itself willing to exploit New York State’s regressive eminent domain laws to transfer private property to FCRC. The Friedman decision shows that the agency is also willing to violate State environmental laws when doing so is economically beneficial to FCRC. Furthermore, the experience of this lawsuit shows that ESDC has no compunction about obfuscating in court to conceal what it knows when the facts are. This is a truly chilling realization when one considers that ESDC has sole formal responsibility for Atlantic Yards oversight.
The courts aren’t a substitute for responsible project governance.... Justice Friedman’s decision left ESDC with the responsibility of correcting its prior error in not preparing an SEIS, even though her previous decisions in the case had excoriated the agency for lack of transparency it is review, and for not informing the court of key facts during trial....
The collective judgment of our local elected officials should be sought and respected on major project decisions. Unlike other large ESDC projects, Atlantic Yards does not now have a dedicated subsidiary with a board including outside directors to give balance to decision-making. Instead, the agency in effect delegates its authority to FCRC.
...Who's the community?
Veconi's op-ed continues one dismaying pattern in discussion of the lawsuit. Two separate coalitions, led by Develop Don't Destroy Brooklyn (DDDB) and BrooklynSpeaks, filed separate lawsuits, which were consolidated.
Thus, the win was shared, even though DDDB ultimately let BrooklynSpeaks take the lead in court.
NoLandGrab: We were going to point that out, too, but Oder beat us to it.
Posted by eric at 10:27 AM
Lessons from the Community’s Atlantic Yards Win
Prospect Heights Patch
by Gib Veconi
On July 13, New York Supreme Court Justice Marcy Friedman delivered a major victory for the communities surrounding the Atlantic Yards project over the Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC). Among other things, the court found that ESDC’s failure to analyze the effects of extending construction of Atlantic Yards from 10 to 25 years meant its approval of the 2009 Modified General Project Plan (MGPP) lacked a rational basis. Justice Friedman ordered ESDC to prepare a supplemental environmental impact statement (SEIS) and reconsider the modified plan after its new impacts have been assessed. Although the Friedman decision did not receive detailed press coverage, community members can find in it important lessons for the future of advocacy on Atlantic Yards.
Posted by eric at 10:18 AM
July 26, 2011
Appeals Court Rejects Dallas Developer’s Claim That Book About Eminent Domain Defamed Him
Author and Publisher Protected by First Amendment
Institute for Justice
In an important victory for the First Amendment, a unanimous Texas Fifth Court of Appeals has handed a major defeat to Dallas developer H. Walker Royall in his defamation lawsuit against the author and publisher of Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land. In November 2009, a Dallas trial court issued a blanket denial of Carla Main and Encounter Books’ claims that the book is protected by the First Amendment, prompting the appeal.
Late yesterday, the Dallas appellate court reversed the trial court’s judgment and held that Royall failed to produce evidence that anything in Bulldozed defames him in any way. The opinion [PDF] reaffirms that criticism of public projects is protected by the First Amendment, and that developers who are involved in those projects cannot hide behind defamation law to escape criticism over their role.
“Walker Royall has failed in his attempt to use this frivolous defamation lawsuit as a weapon to silence his critics,” said Dana Berliner, senior attorney at the Institute for Justice, the nonprofit public interest law firm that is defending Main and her publisher. “The appeals court has exposed the frivolity of Royall’s lawsuit, holding that Royall failed to prove that a single word of Bulldozed defames him.”
Published in 2007, Bulldozed chronicles events in Freeport, Texas, where Royall signed a development agreement to have the city take land owned by Western Seafood—a generations-old shrimping business—and give that land to Royall’s development company for a luxury yacht marina.
NoLandGrab: Here's a link to some of our past coverage of the Freeport land grab.
Posted by eric at 12:03 PM
July 18, 2011
Atlantic Yards Twist: Judge Agrees State Agency Catered To Developer Forest City Ratner
The Huffington Post
by Norman Oder
The Atlantic Yards Report über-blogger pens a lengthy analysis of last week's court decision for The Huffington Post.
The local press recently applied team coverage to the slaying of an eight-year-old Hasidic boy in Brooklyn and the perjury trial of pitcher Roger Clemens, but an important court ruling regarding the controversial Atlantic Yards project in Brooklyn received either minor mention or -- in the case of the New York Times and the New York Daily News -- a complete blackout.
That's a shame, because the decision confirms what many Atlantic Yards opponents, and even some more neutral observers, have long believed: the New York State agency in charge of the arena-cum-skyscrapers project has bent over backwards to accommodate developer Forest City Ratner.
And that message, also contained in the new documentary Battle for Brooklyn, suggests the much-touted move of the New Jersey Nets to Brooklyn will be forever tainted.
Posted by eric at 7:00 PM
July 16, 2011
Barclays Center marches on
Meadowlands Matters
John Brennan, who has closely covered the AY story for The Record in New Jersey, gives his assessment of this week's legal decision .
When is a legal victory not a legal victory here on Meadowlands Matters?
When a New York court rules that a New York state agency erred in its conclusions regarding environmental impact analysis of the Atlantic Yards project – but declines to stop construction on the Nets’ $1 billion Barclays Center home at the site.
...
On Wednesday, a state Supreme Court Justice took the rare step of overturning a decision by a state agency – in this case, the Empire State Development Corp., which oversees the Atlantic Yards plan.
In short, the judge found that the use of a 10-year timetable for environmental impact was incorrect because even the ESDC’s own paperwork contemplates a 25-year timeline – if not longer.
...
The matter now winds up to some extent in new Governor Andrew Cuomo’s hands. It’s conceivable that the project’s entire scope could be changed dramatically, and more environmental studies likely will have to be done.
But from the Meadowlands Matters frame of mind, what’s most relevant is this: There is no stopping the Barclays Center from being built, not even a judge unhappy with the agency that has jurisdiction over it.
Posted by steve at 4:42 PM
Court Says ESDC Has to Take Another Look: More headlines
New York Post, Judge: Not so fast, Atlantic Yards
By Rich Calder
Construction of the Nets' new Brooklyn arena may be on pace to be completed next year, but a state judge's ruling yesterday puts much of the rest of the embattled $4 billion Atlantic Yards project in further jeopardy.
Supreme Court Justice Marcy Friedman ruled the Empire State Development Corp. illegally approved changes to the Prospect Heights project in 2009 by relying on an out-of-date, pie-in-the-sky 10-year timeline for the plan, which also includes 16 residential and office towers.
Instead, the effects of a project that could take 25 years to build should have been considered, she said.
Friedman isn't requiring developer Bruce Ratner to halt construction on the arena, which will house the NBA team, or the rest of his project's long-delayed first phase. But she did order the corporation to conduct a new environmental review for the project's larger second phase, which includes 11 of the residential towers -- a move that could set it back many more years.
Curbed, Atlantic Yards Gets (Probably) Meaningless Slap on the Wrist
It's a little late, but a New York Supreme Court judge has ruled that the Empire State Development Corporation should have given the Atlantic Yards project a more thorough environmental review before approving it in 2009. Oops. So what does the rebuke mean for the future of Atlantic Yards? Not much! Or a lot, depending on who you ask. The Journal notes that the judge won't be ordering a construction halt on Atlantic Yards' first phase, which includes the Nets arena, to be finished next year, and four towers. But the judge did request a new environmental review for the project's second phase, and the Post predicts this could set that phase back significantly. Develop Don't Destroy Brooklyn has taken the opportunity to urge Governor Cuomo for a "complete reassessment" of the project. Doesn't hurt to try, right?
Courthouse News Service, Court Orders New Study of Atlantic Yards Project
By ADAM KLASFELD
The agency supervising New York's controversial Atlantic Yards project must reevaluate how extensive delays in the second phase of enormous development will affect the surrounding communities, a state court judge ruled.
The results of the supplemental study may unravel plans to build more than two-thirds of the project's high-rise buildings, critics of the project say.
...
Established in 2004, the nonprofit Develop Don't Destroy Brooklyn has been leading 26 community and neighborhood groups in a lawsuit against the developers and state agencies behind Atlantic Yards.
Citing the Final Environmental Impact Statement, the organization says that the project's skyscrapers will cover blot out the sun from nearby neighborhoods, flood communities with game-time traffic surges and drive out local residents in a process they describe as "instant gentrification."
Although the judge did not grant all of the demands sought by Develop Don't Destroy Brooklyn (DDDB), the organization said in a statement that it was "very pleased" with the ruling.
"DDDB has always argued that the claimed benefits were illusory and would never occur and the community would be burdened by a poorly conceived project," the organization's legal director Candace Carponter said in a statement. "It is now clear that the timeframes and benefits of the original project were never even remotely feasible."
Posted by steve at 4:39 PM
July 15, 2011
Supreme Court judge orders new study of Atlantic Yards impact
The Brooklyn Paper
by Daniel Bush
A judge handed Atlantic Yards opponents a minor victory this week, ordering a new environmental review of Bruce Ratner’s $4.9 billion project — but one that is unlikely to halt the development of the under-construction Barclays Center.
On Wednesday, Supreme Court Judge Marcy Friedman ruled that the state acted illegally in 2009 when it approved the plan for the 22-acre Prospect Heights site without assessing the long-term impacts that its 25-year build-out would have on surrounding neighborhoods.
...Friedman ordered the Empire State Development Corporation to conduct a new environmental study of the post-arena phase of the project, which consists of 11 additional high-rises slated to go up west of Sixth Avenue.
Related coverage...
Atlantic Yards Report, After calling previous win in timetable case a "meaningless victory," the Brooklyn Paper deems latest decision "minor victory"
My comment on the latest article:
You can call the victory "minor" in the sense that it will have a minor impact on the project under construction. It could have a much larger impact on Phase II.
But it is much more than a minor victory in court, if you consider that judges almost always defer to government agencies, which need merely a "rational" basis for their decisions. The ESDC's ten-year timeline didn't pass that very minimal "rational" basis test.
Why should it have passed that test? After all, the ESDC's own CEO, in April 2009, admitted that Atlantic Yards would take "decades."
In other words, the decision confirms the belief--at least among many opposing the project or watching it closely--that the state has leaned over backward to accommodate the developer, Forest City Ratner.
But wait, there's more...
GlobeSt.com, Court Ruling Puts Part of Atlantic Yards Project on Hold
Develop Don’t Destroy Brooklyn scored a victory in a New York State Supreme Court Tuesday in its fight to force Forest City Ratner Cos. to re-imagine its Atlantic Yards project.
...Jeff Baker, an attorney for DDDB, tells GlobeSt.com that he hopes the delay will provide time to re-evaluate the project.
“What it means at a minimum is that they have to go back and do a further environmental review and make the necessary findings to go forward with Phase II,” he says. “It’s an opportunity now, with a new administration, to take a fresh look at the project and do a better scale and a better structured development that will redevelop the area but not create a monstrosity or doom it to a protracted, 25 years or more construction schedule.”
...Candace Carponter, the DDDB legal director, says that she’s not worried about Judge Friedman’s ruling being overturned. “She was very careful in writing this decision to make sure that it was unassailable on appeal,” Carponter says. “I believe that it will not be overturned. I’m not even sure that the ESDC will attempt to appeal it because I think it is such a strong decision.”
WNYC, More Delays Possible for Atlantic Yards
"We're satisfied with this decision," said attorney Jeff Baker who represents the group Develop - Don't Destroy, Brooklyn, which brought the suit. "We wish it had come a bit earlier because it could have stopped the whole project."
Metro Focus, Timeline: Atlantic Yards Grows, Slows in Brooklyn
Posted by eric at 11:16 AM
July 14, 2011
Looking at Friedman's ruling: no coverage in the Times or Daily News, no press mentions of delay in consideration of the Development Agreement
Atlantic Yards Report
So how big news was a judge's decision yesterday ordering a Supplemental Environmental Impact Statement for Phase II of the Atlantic Yards project and criticizing the state agency for "arbitrary and capricious" reliance on a not-believable ten-year buildout?
Judging by the coverage, only moderate. The Wall Street Journal and New York Post, among others, covered the story.
The New York Times and New York Daily News, pouring resources into the horrible killing of an eight-year-old Brooklyn boy, passed on the story.
Will they get to it today? The Times's commercial real estate reporter, Charles Bagli, is on leave, and the Brooklyn bureau is tiny. The Daily News's main reporter on Atlantic Yards, Erin Durkin, had three bylines in today's paper, all worthy stories: on Broadway Triangle in Williamsburg, Marty Markowitz's concert series, and St. Ann's Warehouse's bid for the Tobacco Warehouse in Brooklyn Bridge Park.
The New York Observer, its main Atlantic Yards reporter on vacation, missed the story. The Brooklyn Paper hasn't covered the story yet, either.
The missing history
And almost nobody, it seems, remembers the withheld Development Agreement--crucial, as I wrote yesterday, to the case.
Posted by eric at 10:59 AM
More coverage of yesterday's Atlantic Yards court decision
From the department of strange headlines:
NY1, Develop Don't Destroy Brooklyn Takes A Stand Against Atlantic Yards Project
About damned time!
AP via WCAX.com, NY Atlantic Yards must undergo further review
A judge says Brooklyn's Atlantic Yards development project must undergo further environmental review.
A judge ruled Wednesday that the Empire State Development Corp. erred in granting approval to developer Bruce Ratner's basketball arena and housing project by not first conducting a thorough environmental review.
Posted by eric at 10:48 AM
July 13, 2011
Court Says State Erred in Ratner Plan Review
The Wall Street Journal
by Eliot Brown
New York state's development agency erred in granting a 2009 approval to developer Bruce Ratner's Atlantic Yards basketball arena and housing project by not first conducting a thorough environmental review, a judge ruled Wednesday.
The ruling is a rebuke to the agency, the Empire State Development Corp., which approved the use of eminent domain to make way for the controversial Brooklyn development in 2006. The agency also re-approved a slowed-down version of the project after Mr. Ratner renegotiated the deal in 2009.
Related coverage...
Park Slope Patch, Judge Calls for Additional Review of Atlantic Yards Project
“While we disagree with the decision,“ said Joe DePlasco, a spokesperson for the developer, “it does not stop us from continuing work on the project and will not impact our current construction schedule. The arena is scheduled to open, as planned, in September, 2012 and we are working aggressively to start the residential portion of the project.”
NoLandGrab: If by "working aggressively" DePlasco means "doing absolutely nothing," then, yes, by all means, they're "working aggressively" [ ;-) ;-)] on the residential portion of the project.
Gothamist, Judge Orders Review Of Atlantic Yards Phase II
Judge Friedman ruled that the "ESDC's use of the 10 year build date in approving the 2009 Modified General Project Plan (MGPP) lacked a rational basis and was arbitrary and capricious," and that the ESDC failed to evaluate the impact of extensive delays for Phase II of the project. Phase I is already underway and involves the construction of a big basketball arena and beautiful sprawling parking lots. Phase II consists of the mixed-use residential and retail buildings with the low-income housing developer Bruce Ratner used to sugarcoat the project.
NY Post, Judge rips ESDC over Atlantic Yards, orders review of project’s second phase
Besides the arena, the rest of Atlantic Yards is on hold due to insuccifient financing, so critics say the judge’s decision could be a nail in the coffin for Ratner completing the project.
Develop Don't Destroy Brooklyn, The Looooong Back Story on Today's Court Ruling on Ratner's Atlantic Yards
Today's NY State Supreme Court ruling against the Empire State Development Corporation and Forest City Ratner, condemning them for their irrational review of the Atlantic Yards project and ordering the state agency to conduct a Supplemental Environmental Impact Statement on Phase II of the project has a loooooong and winding backstory that couldn't possibly be captured in soundbites, press releases or print stories (or most blogs for that matter).
So leave it to Norman Oder, on his Atlantic Yards Report, to give the ins and outs of the sad history of this case which came down against the powerbrokers today.
About.com (Brooklyn, NY), Atlantic Yards: David Just Got Goliath (well, temporarily)
Synchronicity is a funny thing; I was just about to write a blog item urging everyone to go to the Brooklyn Heights Cinema to catch the last few showings of a movie about the Atlantic Yards debacle, called Battle for Brooklyn (not to be confused with the actual Revolutionary War Battle of Brooklyn). When...pop!... into my email falls a press release so excited it nearly jumped off the cyber page, announcing a 9th inning change of fortune for Atlantic Yard community activists.
Gotham Gazette (The Wonkster), Judge Orders Another Look at Atlantic Yards
The judge did not halt construction of the arena – although that has morphed too — from a Frank Gehry landmark to a generic box. And Norman Oder writes in Atlantic Yards report, the judge did give the state and the developer, “significant breathing room” by not issuing a stay to top Phase II.
The Local [Fort Greene/Clinton Hill], Judge Orders Further Review On Atlantic Yards Development
Michael Galinsky, the co-director of the documentary “Battle for Brooklyn” and a contributor to The Local, said he hopes that today’s decision will bring more government oversight to the Atlantic Yards project.
Reuters, New York court stalls second phase of Brooklyn arena project
The grass roots group that sued the developer, Forest City Ratner Companies, to halt or modify the Atlantic Yards project said the court decision is a "golden opportunity" for Governor Andrew Cuomo to overhaul the costly project.
A spokesman for the Democratic governor had no comment.
Posted by eric at 9:45 PM
Battle for Brooklyn Press Release: Stunning defeat for Forest City Ratner and ESDC in AY Lawsuit sparks interest in Battle for Brooklyn
Today New York State Supreme Court Judge Marcy Friedman issued a stinging decision against the Empire State Development Corporation. Judge Friedman ruled that the "ESDC's use of the 10 year build date in approving the 2009 Modified General Project Plan (MGPP) lacked a rational basis and was arbitrary and capricious," and that the ESDC failed to evaluate the impact of extensive delays, at least 25 years, in the build-out of Phase II of the project.
The petitioners in the lawsuit, 26 community and neighborhood organizations led by Develop Don’t Destroy Brooklyn (DDDB), were very pleased about the ruling and the changes it must usher in politically.
The stunning news that the coummunity won a surprise victory in their lawsuit concerning the Atlantic Yards environmental impact statement could throw the rest of the project into doubt and brings new attention to "Battle for Brooklyn".
"For those people who have seen 'Battle for Brooklyn' it should come as no surprise that a Judge called foul on the process. Anyone who sees the film can see that the fix was in from the beginning, and hopefully now people will pay more attention," said co-director Suki Hawley.
"When they do a new environmental study there will clearly be more scrutiny, and that's a good thing. Perhaps this will even open the door to taking the community's alternate plan more seriously," added co-director Michael Galinsky.
Battle for Brooklyn runs through Thursday, July 14 at Brooklyn Heights Cinema
Will Play Every Wednesday Night for Rest of Summer
Posted by eric at 5:26 PM
ESDC Statement regarding State Supreme Court Decision
Empire State Development spokesperson Elizabeth Mitchell issued the following statement in response to getting pasted in court today:
Today’s decision on Atlantic Yards did not enjoin construction of the Barclays Center and all components of this important project will continue.
The court ordered ESD to prepare a Supplemental Environmental Impact Statement focused principally on Phase II of the Project (the buildings east of 6th Avenue).
ESD believes that it complied with all laws applicable to the Project, and is reviewing today’s decision to decide on the best course of action for continuing to move the Project forward.
NoLandGrab: Since the best course of action would be to dismantle the arena and turn the land over to the community, we expect to be disappointed.
Posted by eric at 5:17 PM
VICTORY! Court Orders New Atlantic Yards Review. Golden Opportunity for Gov. Cuomo
VICTORY IN COURT FOR DDDB AND ITS CO-PETITIONER COMMUNITY ORGANIZATIONS
Court Rules NY State Must Undertake Supplemental Review of Ratner's Atlantic Yards Project
Presents Golden Opportunity for Governor Cuomo to Fix the Atlantic Yards Debacle
Develop Don't Destroy Brooklyn
Bruce Ratner's Atlantic Yards project and its purported benefits were never feasible, it was all smoke and mirrors. In the past year it has become clear to everyone that the project the developer promised and New York State approved is never going to happen. Rather, parking lots and a demolition zone would persist for decades.
But now, because of a Supreme Court ruling, there is a way out of this debacle and a golden opportunity for Governor Cuomo and his Empire State Development Corporation (ESDC) to fix the big Atlantic Yards mess in Prospect Heights, Brooklyn.
..."While the Court felt it could only reverse the approvals for Phase II and require a new environmental review, it is time for Governor Cuomo to assert control over the ESDC and the project site and require a complete reassessment of the Atlantic Yards project," said DDDB attorney Jeffrey S. Baker. "We regret that the Arena is going forward. However, the project was never justified in phases. All of the purported benefits would have come from full development, not a stand-alone arena and a couple of high-rises.”
"DDDB has always argued that the claimed benefits were illusory and would never occur and the community would be burdened by a poorly conceived project. It is now clear that the timeframes and benefits of the original project were never even remotely feasible,” said DDDB Legal Director Candace Carponter. "We call on Governor Cuomo to ensure that the ESDC do an honest, unbiased analysis of the redevelopment of Atlantic Yards and consider a project that truly provides affordable housing, public opens space and meaningful benefits in a timely and financially feasible manner. ESDC should look at all aspects of the project, except the arena, and utilize the Unity Plan or other similar community inspired approaches to redevelop the area."
Referring to the Ratner tail wagging the State dog, Carponter added, "Governor Cuomo and the ESDC should establish their independence from Forest City Ratner and engage in true planning that involves the community and locally elected officials, and no longer act as Bruce Ratner's lap dog."
Posted by eric at 4:02 PM
Atlantic Yards Lawsuit: Local Groups Victorious as Judge Slams Empire State Development Corporation (ESDC) For Breaking the Law by Approving Atlantic Yards’ 2009 Modified Plan; Calls Use of 10 Year Build Date “Not Rational"
BrooklynSpeaks
The BrooklynSpeaks groups were elated and called on Governor Cuomo to investigate the Project. “This decision sends a clear message that no State authority or politically-connected real estate developer can be above the law when the future of our neighborhoods hangs in the balance,” said Jo Anne Simon, Democratic Leader of the 52nd District. “We expect an investigation into how this was allowed and call on Governor Cuomo to now take decisive action in reforming oversight of Atlantic Yards, ESDC’s largest project.”
The suit was filed in November 2009 by several BrooklynSpeaks sponsors, local elected officials, and community members. The case was originally decided in favor of ESDC and FCRC in March of 2010 on the basis of representations made by ESDC as to the terms of its master development agreement with FCRC prior to the agreement being made available to the public. After the agreement was released and was found to contain no performance guarantees for a 10-year build out, the BrooklynSpeaks sponsors successfully argued for the case to be reopened.
Said Al Butzel of the Urban Environmental Law Center which represented the BrooklynSpeaks sponsors, “After reviewing ESDC’s justification for not preparing a supplemental environmental impact statement, the Court correctly concluded the agency lacked a rational basis for approving the developer’s proposed changes to the project. It was clear to us that the approval of the plan was rushed through illegally in order to enable FCRC to meet a deadline necessary for its arena bond financing.”
Posted by eric at 3:56 PM
Breaking: Judge rules for community groups, says state failed to study impact of 25-year buildout, requires ESDC to prepare a Supplemental EIS, but refuses to stay current construction
Atlantic Yards Report
#Winning!
This will be updated.
In the second in a series of decisions finding for community petitioners who challenged the Empire State Development Corporation (ESDC), state Supreme Court Justice Marcy Friedman has criticized the agency for failing to study the impacts of an extended Atlantic Yards buildout, and ordered the ESDC to conduct a new phase of environmental review, including a Supplemental Environmental Impact Statement (SEIS).
While it is typical for judges to defer to agencies, as long as they have a "rational basis" for their decisions, Friedman, who slammed the agency last November for "what appears to be another failure of transparency," today found the "ESDC’s use of the 10 year build date in approving the 2009 MGPP lacked a rational basis and was arbitrary and capricious."
No stay, but perhaps a hearing
The decision will require additional bureaucratic hurdles and may require additional mitigation measures regarding an extended interim surface parking lot, or construction procedures. And it should help shape public perception that the ESDC has been too gentle with developer Forest City Ratner (FCR).
However, Friedman gave the ESDC and FCR significant breathing room. She refused to issue a stay on Phase I construction or other work on the project, and said it was premature to issue a stay regarding Phase II.
The judge remanded the issue to ESDC for further environmental review, including an SEIS assessing the environmental impacts of delay in Phase II construction; the conduct of further environmental review proceedings, including a public hearing if required by SEQRA; and further findings on whether to approve the Modified General Project Plan for Phase II of the Project.
She heard oral arguments in the latest phase of the case on 3/15/11. The petitioners included civic groups organized by BrooklynSpeaks and Develop Don't Destroy Brooklyn, as well as several individuals and local elected officials.
The case, however, began more than a year earlier, and had Friedman considered the contradiction between the Development Agreement, kept under wraps until after the first oral argument, and the ten-year buildout, she might have ruled differently in March 2010.
NoLandGrab: This is a clear case of justice delayed being justice denied.
But there is a remedy — we have a team of volunteers standing by to begin dismantling the arena, and we've asked BUILD to recruit a demolition crew from the neighborhood.
Posted by eric at 1:58 PM
July 10, 2011
Waiting for Friedman: four months after oral arguments, decision in last Atlantic Yards legal case yet to emerge
Atlantic Yards Report
Nearly four months later, we're waiting for a ruling in the last extant Atlantic Yards legal case.
On 3/15/11, state Supreme Court Justice Marcy Friedman heard oral arguments in the case challenging the offical Atlantic Yards timetable.
Lawyers from two community coalitions challenged the legitimacy of the Empire State Development Corporation's (ESDC) response to a court order requiring it to explain why it didn't need issue a Supplementary Environmental Impact Statement to study the impact of a potential 25-year buildout.
The ESDC made that response only because Friedman reopened a case she'd already dismissed.
Court activity often slows in the summer. If we don't see Friedman's ruling soon, we may not see it until September.
Should Friedman rule for the plaintiffs--coalitions and individuals (including elected officials) organized by BrooklynSpeaks, and groups organized by Develop Don't Destroy Brooklyn--the ESDC could be forced to look in great detail at the community impacts of 25 years of construction compared to ten years.
And that could lead to changes in the design or organization of the project--at least (or especially) for the part beyond the arena block.
Flashback: Waiting for Madden
I wrote 12/23/07 about how the challenge to the environmental impact statement was heard on May 3, and state Supreme Court Justice Joan A. Madden indicated she would try to rule promptly. In mid-July, Madden issued a memo (the first "Waiting for Madden") that stated she expected to have a decision in September 2007.
Madden finally ruled in January, eight months after the hearing.
The Daily News recently condemned her for sitting on a ruling for more than five months, thus allowing a homeless shelter being challenged to be built.
Posted by steve at 5:45 PM
April 25, 2011
A blind spot toward the ESDC, and some questions of legal ethics regarding Atlantic Yards representations
Atlantic Yards Report
Yesterday, wry New York Times columnist Gail Collins wrote about "angry" new Republican governors in Wanna Buy a Turnpike?:
In Ohio and Wisconsin, angry new governors John Kasich and Scott Walker are taking economic development out of the hands of state bureaucrats and giving the job to new quasi-private entities that will be much more effective and efficient.
In Florida, where the Legislature did all that in the 1990s, the angry new governor Rick Scott has a bold plan to improve economic development by creating a State Department of Commerce that will be much more effective and efficient.
Really, just so there’s change and it doesn’t sound socialistic. “We don’t want to leave any money on the table,” said Kasich, who is planning to sell five prisons, the lottery and maybe do something with the turnpike. I’m from Ohio, and while I never did like the turnpike, I’ve always been a fan of history. I wonder if I could get a good deal on the Warren Harding homestead.
Collins might want to look in her own backyard, where the Empire State Development Corporation is a quasi-public (or, alternatively, quasi-private) entity that cuts through red tape in service to business, such as the New York Times Company (which benefited from eminent domain in building the Times Tower with Forest City Ratner) and Forest City Ratner, in its Atlantic Yards project.
Atlantic Yards and legal ethics
Yesterday, in Applying the Principles of Legal Ethics to New York Development: Lawyers Are Not Supposed to Represent Deceiving Clients, Noticing New York's Michael D. D. White pointed out that lawyers have an ethical duty to not only withdraw from representing a client who behaving dishonestly but to do so "noisily."
White, at a legal ethics seminar asked some hypothetical questions: does this apply to the lawyer representing the developer of a publicly financed real estate project, where, in essence, the public is the buyer.
The answer--given to a hypothetical, and with the caveat it wasn't actual legal advice--was yes.
White allows for a gray area, in which the Atlantic Yards hype might be dismissed as dubious assumptions and insufficiently backed up assertions, both of which are permissible.
He adds:
One area where it seems that misrepresentations of fact did occur is with respect to the misrepresentations to Justice Marcy Friedman about the legitimately expected timetable for the development of the mega-project was: With lawyer assistance it was represented to the justice that Forest City Ratner and ESDC officials expected to complete the project within ten years while withholding from her (and the plaintiff parties representing the public in opposing the project) documents between them providing for and clearly envisioning a multi-decade build-out.
Similarly, sale of the EB-5 investments to prospective Chinese “investors” has been rife with misrepresentation. Technically, the misrepresentations being made to the Chinese are being made to them as private parties on the other side of a business transaction (rather than just an unwitting public being subjected to a spiel) so a high standard should apply respecting any misrepresentations. On the other hand is there thinking that as the Chinese are not American citizens they should not be expected to benefit from the full protection of U.S. law?
The issue regarding the timetable was brought before Friedman in March, in a motion for sanctions against the lawyers representing the state and Forest City Ratner, though Friedman refused to hear oral argument.
The EB-5 misrepresentation seems like a stronger case. We'll have to see how that plays out.
Posted by steve at 12:38 AM
April 24, 2011
Applying the Principles of Legal Ethics to New York Development: Lawyers Are Not Supposed to Represent Deceiving Clients
Noticing New York
This blogger's attendance a two hour course entitled “Legal Ethics: Real World Issues and Considerations” raises questions as to how what kind of ethics, if any, were followed by politicians and lawyers who helped get the Atlantic Yards development started.
One question that comes to mind is whether lawyers consider that a different standard does apply to Forest City Ratner and perhaps any developer that does publicly financed projects, the thinking being that when you are talking about projects financed by the public one has entered the realm of politics, a realm where truth is no longer important and “factual statements” take on entirely new definitions. A recent example of the extreme we have gone to in this regard was when an aide to Senate Minority Whip Jon Kyl (R-Ariz.), condoned Kyl’s senate floor whopper that abortions are, “well over 90% of what Planned Parenthood does” (only 3% of what Planned Parenthood does relates to terminating pregnancies) by saying the senator’s declaration of the percentage “was not intended to be a factual statement.” The political humorists are rightly having a field day with this “not intended to be a factual statement” ploy, Stephen Colbert and Wait Wait...Don't Tell Me! included.
Maybe in the political realm one can get away with virtually any misrepresentation of the truth no matter how “factual” sounding the statements appear to be. But would the perpetual Forest City Ratner promotions be acceptable if Ratner were foisting the transaction on a private party instead of the New York taxpaying public? The idea that a distinction might exist is an intriguing theory worthy of consideration but not necessarily the law.
...
One area were it seems that misrepresentations of fact did occur is with respect to the misrepresentations to Justice Marcy Friedman about the legitimately expected timetable for the development of the mega-project was: With lawyer assistance it was represented to the justice that Forest City Ratner and ESDC officials expected to complete the project within ten years while withholding from her (and the plaintiff parties representing the public in opposing the project) documents between them providing for and clearly envisioning a multi-decade build-out.
Similarly, sale of the EB-5 investments to prospective Chinese “investors” has been rife with misrepresentation. Technically, the misrepresentations being made to the Chinese are being made to them as private parties on the other side of a business transaction (rather than just an unwitting public being subjected to a spiel) so a high standard should apply respecting any misrepresentations. On the other hand is there thinking that as the Chinese are not American citizens they should not be expected to benefit from the full protection of U.S. law?
Read the full blog entry and see how a close look reveals that the law firm presenting this ethics course has worked to help the Atlantic Yards project over legal hurdles.
Posted by steve at 5:41 AM
April 12, 2011
House Judiciary Subcommittee on the Constitution Hearing on H.R. 1433: “Private Property Rights Protection Act”
Institute for Justice Media Advisory
The House heard testimony today on a bill aimed at reining in eminent domain.
In an increasingly partisan nation, one issue unites Democrats and Republicans, liberals and conservatives: reforming eminent domain laws to end the use of public power for private gain. A bipartisan bill being considered in Congress right now would greatly discourage this abuse of power by stripping federal funding from any municipality that condemns private property for private development. This would finally provide some federal protection for the property rights of all Americans, especially the poorest and most-vulnerable, from the alliance of land-hungry developers and tax-hungry government officials.
H.R. 1433 (the “Private Property Rights Protection Act”) cosponsored by Representatives Jim Sensenbrenner (R-WI) and Maxine Waters (D-CA), prohibits states and municipalities from using eminent domain for private development if they have received federal economic development funds. It also prohibits the federal government from using eminent domain for economic development, which is defined as taking private property and transferring it to another private person to increase tax revenue, jobs or general economic growth. A nearly identical bill that was introduced immediately after the U.S. Supreme Court’s disastrous decision in Kelo v. City of New London passed the House overwhelmingly by a vote of 376-38, with the Senate never voting on passage.
Importantly, the bill would still allow eminent domain for traditional public uses like public utilities, roads and post offices, and would also allow local officials to remove properties that pose an immediate threat to public health and safety and put abandoned property to productive use.
Posted by eric at 11:20 PM
April 7, 2011
Seeking balance over blight, academics suggest new standards, dropping underutilization, and tougher look at projects with more % of private benefits
This is Part 3 of a three-part series (Part 1, Part 2) on Fordham Law School's eminent domain symposium in February.
Atlantic Yards Report
Is there a reasonable compromise that would preserve the use of eminent domain as a tool for government while preventing dubious tactics like claiming underutilization--or cracks in the sidewalk--equal blight?
And shouldn't courts play some role in scrutinizing blight, especially for certain projects, ones which promise a greater ratio of private than public benefits?
In an intriguing paper titled The Use and Abuse of Blight in Eminent Domain, attorney (and part-time Columbia academic) Martin E. Gold and Lynne B. Sagalyn of Columbia Business School (and the book Times Square Roulette), set out a hierarchy of eminent domain projects, from those with clear public benefits to those with more private benefits.
Those at the bottom of the hierarchy deserve the most scrutiny, and thus a closer examination of blight findings. They mention Atlantic Yards as falling somewhere in the middle of the hierarchy and criticize some of the definitions used in the AY eminent domain case, notably underutilization.
Need for review
They make a strong case for redefinition, arguing that "effectively there is no review of blight findings in New York" and--as others have contended--the courts have abdicated their role in policing eminent domain.
So "thoughtfully crafted, objective and measurable, standards for the determination of blight" are needed:
If blight is to continue to be a condition and cornerstone for condemnations for renewal or economic development undertakings, it needs serious alteration; otherwise it will continue to serve more as an expensive foil for projects sought by developers and government officials, than as a screen filtering out lands that should be left alone.
Posted by eric at 11:27 AM
April 6, 2011
AY eminent domain decision "among the worst I've ever seen," says law prof; former NJ Public Advocate says NY court abdicated role in policing blight
This is Part 2 of a three-part series (Part 1) on Fordham Law School's eminent domain symposium in February.
Appellate Division Justice James Catterson was not the only person at a symposium February 11 to slam the New York Court of Appeals' decision in the Columbia (Kaur) and predecessor Atlantic Yards (Goldstein) cases.
So too did several academics, including some longstanding critics of eminent domain and others who, while recognizing the importance of the tool, agree that jurisprudence in New York has gotten out of hand. They spoke at Taking New York: The Opportunities, Challenges, and Dangers Posed by the Use of Eminent Domain in New York, a symposium at Fordham Law School.
In other words, instead of "junk lawsuits" and "frivolous litigation," as then-Daily News columnist Errol Louis dismissed Atlantic Yards legal filings, or "contrived lawsuits," in the words of academic Bruce Berg, maybe we should be talking about "junk judicial decisions."
After all, the former Public Advocate in New Jersey--a self-described "ACLU civil liberties lawyer"--declared that "the New York Court of Appeals basically abdicated any meaningful role for the judiciary in determining whether a blight designation even passed the laugh test."
And, though the court has indicated that the legislature should step in, panelists expressed little hope that the notoriously dysfunctional New York legislature would act to reform eminent domain laws.
In other words, even though the U.S. Supreme Court wouldn't hear the appeal in the case challenging the condemnation for the Columbia University expansion, a good number of legal experts agree that New York is an outlier.
Need to get your blood boiling? Read on.
Posted by eric at 11:14 AM
April 5, 2011
Justice Catterson says of Court of Appeals opinion in AY eminent domain case, "I don't know what it means"; rues that his critique was "an epic fail"
This is Part 1 of a three-part series on Fordham Law School's eminent domain symposium in February.
Atlantic Yards Report
James Catterson, an Associate Justice of the New York State Supreme Court, Appellate Division, First Department, has been the most conspicuous judicial critic of eminent domain jurisprudence in New York, writing the plurality opinion, later reversed, denying the state's effort to condemn land for the Columbia University expansion, and penning a scorching concurrence in the case upholding dismissal of challenge to the Atlantic Yards environmental review.
Nor has Catterson shied away from public, pungent criticism of the Court of Appeals' decision in the Columbia and predecessor Atlantic Yards cases, calling it confusingly opaque. He spoke at Taking New York: The Opportunities, Challenges, and Dangers Posed by the Use of Eminent Domain in New York, a symposium February 11 sponsored by Fordham Law School.'
The overview
In opening remarks lasting a little more than half an hour, the bow-tied Catterson--brisk, earthy, self-deprecating--offered what he termed a "Cook's tour" of the history of eminent domain.
Then, in the final minutes, he spoke about the November 2009 Atlantic Yards decision, Goldstein, et al., v. New York State Urban Development Corporation, d/b/a Empire State Development Corporation, and the Columbia case, Parminder Kaur, et al., v. New York State Urban Development Corporation.
Read on for Catterson's worthwhile words of wisdom.
Posted by eric at 4:23 PM
March 19, 2011
If LIU students don't care about their own university's basketball team, how do they care about Atlantic Yards?
Atlantic Yards Report
What must they be thinking on the Long Island University campus in Brooklyn?
In a 3/17/11 article headlined It May Be News to Brooklyn, but Basketball’s Spotlight Is on One of Its Own, the New York Times reported:
Now, L.I.U.-Brooklyn has jumped on the express to new heights. The university, by winning its conference championship, earned one of 68 bids to the N.C.A.A. basketball tournament. This Friday in Charlotte, N.C., it will play a polar opposite in school spirit, campus acreage and basketball tradition: the University of North Carolina.
Few on Flatbush Avenue seemed to know or care that the Blackbirds had made it. Junior’s Cheesecake, across the street, is stocked with sports memorabilia including a Brooklyn Nets jersey, but nothing from L.I.U.
There were no banners on campus, just two red electronic outdoor signs with a reminder to support the Blackbirds. The team did not sell out its home games until the Northeast Conference final, when the gym (capacity 1,800) was packed with students and faculty members, and some local groups who got free tickets.
...“We have had some spirit issues here over the years,” said Greg Fox, the associate athletic director for external relations. “We’re a commuter school, primarily, and our students tend to be more reactionary than proactive.”
The AY connection
Why is this important? Because the campus provost, Gale Stevens Haynes (a self-described basketball fan also quoted in the article) said in a sworn affidavit in the case challenging the Atlantic Yards timetable (heard this past week):
The students and faculty at LIU-Brooklyn are very supportive of the Atlantic Yards Redevelopment Project. The advantages of the Project are abundant.
... I know that the students and faculty of LIU-Brooklyn firmly believe that the important public benefits that will result from the Project will outweigh any adverse impacts of extended construction on our neighborhoods.
If LIU students don't care about their own university's basketball team, how do they care about Atlantic Yards?
Posted by steve at 11:27 PM
March 16, 2011
BrooklynSpeaks and DDDB battle ESDC and FCR in inconclusive court hearing over AY timetable impacts; no stay issued; judge won't hear sanctions case
Atlantic Yards Report
Norman Oder has the complete blow by blow from yesterday's New York State Supreme Court argument over the failure of the Empire State Development Corporation to properly weigh the effects of 25 years (or more) of Atlantic Yards construction impacts.
What was likely one of the last court hearings in a long skein of Atlantic Yards legal cases was an inconclusive but hard-fought affair yesterday afternoon in state Supreme Court in Manhattan.
A lawyer for the community coalition BrooklynSpeaks assailed a "cover up" by the Empire State Development Corporation (ESDC) over the legitimacy of the ESDC's response to a court order requiring it to explain why it didn't need issue a Supplementary Environmental Impact Statement to study the impact of a potential 25-year buildout.
In response, the ESDC and developer Forest City Ratner (FCR) forcefully defended themselves.
Supreme Court Justice Marcy Friedman, who in a hearing last June had evinced skepticism toward the ESDC--and issued a ruling in November partly backing community petitioners, requiring the ESDC to make new findings--asked relatively few questions.
The judge, whose default posture seems to be weary, wary skepticism, ultimately expressed some exasperation with both sides.
She heard a request for a stay on Atlantic Yards construction--a request with the provision that ongoing arena construction could continue--but did not indicate when she'd rule.
No hearing on sanctions motion
One thing was clear: Friedman was not about to take seriously the unusual motion, filed by Develop Don't Destroy Brooklyn and by Brooklyn Speaks--and later withdrawn by the latter--for sanctions and lawyers' fees from the opposing side, for failure to produce the crucial Development Agreement last year in court.
Though that issue was the subject of some heated legal papers, Friedman said at the outset that she would not devote any oral argument time on it.
She announced she'd give each side 20 to 30 minutes for their arguments, but they each wound up taking about 45 minutes. As is typical.
Click through for a full report on the arguments.
NoLandGrab: Our favorite part? Forest City attorney Jeffrey Braun getting himself extolling the virtues of ubiquitous environmental impact consultant AKRF, calling them "rigorous" and the "gold standard" for such firms. Had we been able to cross-examine, we would have asked him, in all their rigor, how many times they've ever found a project had unacceptable impacts. If he could cite just one instance, we'd throw in the towel.
And as Norman Oder reminds us, the ESDC admitted at an early 2010 oversight hearing held by state Senator Bill Perkins, that AKRF has never provided a determination that did not lead to a blight finding. Perhaps Mr. Braun meant to say "gold standard for real estate developer-friendly" consultants.
Posted by eric at 12:15 PM
March 15, 2011
Also in court today: DDDB seeks attorneys' fees for reopening timetable case after Development Agreement withheld & "deceptive, obstreperous conduct"
Atlantic Yards Report
What if the Empire State Development Corporation (ESDC) and developer Forest City Ratner (FCR) had made sure that the Development Agreement--which gives a 25-year deadline to build Atlantic Yards--was available before a January 2010 court argument, or allowed into the court record shortly thereafter?
The dispute over the timetable is the subject of a court hearing today in the last Atlantic Yards court case, as the case was reopened after it was initially dismissed, only to have the ESDC say it didn't need to have issued a Supplementary Environmental Impact Statement (SEIS) to study to impacts of a 25-year buildout.
And it's also fodder for a companion case before Supreme Court Justice Marcy Friedman, in which lawyers for Develop Don't Destroy Brooklyn (DDDB) seek attorneys fees and sanctions from the opposing lawyers and their clients for withholding the agreement, which the ESDC and FCR saw as key to guaranteeing the professed ten-year timetable.
The details:
Tuesday, March 15, 2:30 PM
New York County Supreme Court
60 Centre Street
Room 335Was the withholding of the agreement a legitimate disagreement about tactics, or was it frivolous and improper conduct?
Charges about the latter have lead to an unusual and bitter dispute.
Had the document been available, there would have been no need to file a motion to reargue the case--a motion that was partly successful, given that the case was reopened, and continues--argue DDDB lawyers.
In response, the ESDC and FCR, and their attorneys, have vigorously opposed such a request for sanctions, calling it unprecedented.
Posted by eric at 1:14 PM
Atlantic Yards Opponents Head to Court Over Project Timetable, Legal Fees
Park Slope Patch
by Geoffrey Decker
Only days after the one-year anniversary of the Atlantic Yards groundbreaking, the last standing lawsuit against developer Bruce Ratner’s mega-development will hit the courts.
Today opponents will reargue in Manhattan Supreme Court that the developer won approval from the state for the Atlantic Yards project in 2009 by submitting incomplete data. And Develop Don’t Destroy Brooklyn, one of two major activist groups opposed to the project, will also attempt to recoup some of their legal costs.
Lawyers for Develop Don’t Destory are suing the Empire State Development Corporation, the state agency overseeing the project, for $35,027.94 in legal fees, according to court documents. The group seeks back pay for its attorneys who spent several months challenging the decision that gave Ratner the green light to begin construction.
Opponents will also reargue that the approval of the project hinged on a timeline rooted in figures that forecast the completion of the entire Atlantic Yards project in 10 years, though subsequent data put completion of the Atlantic Yards as far away as 25 years. This extended timeline, opponents argue, was intentionally withheld from the courts to win a critical ruling shortly before the groundbreaking.
Posted by eric at 12:47 PM
March 14, 2011
Battle over AY timetable goes to court tomorrow, led by BrooklynSpeaks: "benefits should not be conferred as the result of a ruse..."
Atlantic Yards Report
Coming tomorrow is a hearing in the last Atlantic Yards court case, a challenge to the Empire State Development Corporation (ESDC) that was initially filed in 2009, dismissed in March 2010, resurrected a few months later, partly upheld by a judge, and then waved away by the ESDC.
The details:
Tuesday, March 15, 2:30 PM
New York County Supreme Court
60 Centre Street
Room 335
ManhattanWhile a victory would, at best, delay arena construction slightly and require further study of the overall project timetable, the case aims to right the balance between the public interest and a government agency arguably willing to do a developer's bidding.
The case challenges the legitimacy of the ten-year project timetable that the ESDC board assumed when it approved the revised project in September 2009, and the failure of the ESDC to conduct a Supplementary Environmental Impact Statement to study to adverse impacts of a project that could last 25 years.
And, though the Supreme Court Justice Marcy Friedman in December refrained from issuing a stay on construction--a request that's been renewed--the dispute continues, as groups in the coalition BrooklynSpeaks forcefully questioned the ESDC's findings that a 25-year buildout would have no adverse impacts beyond those already studied.
The lead plaintiff in the BrooklynSpeaks coalition is the Prospect Heights Neighborhood Development Council (PHNDC). Among the plaintiffs are several neighborhood groups, residents, and local officials: City Council Member Letititia James, state Senator Velmanette Montgomery, and Assemblyman Jim Brennan.
DDDB steps back
The case consolidates two cases brought by groupings led by BrooklynSpeaks and Develop Don't Destroy Brooklyn, but the latter has submitted only one set of papers since December, as well as joining in the reply papers submitted by BrooklynSpeaks and letting the latter take the lead.
"After five years of litigation, we have become disillusioned with the judiciary, and doubt that any judge will stand up to Ratner and right the countless wrongs he has imposed and continues to impose on our community," commented Candace Carponter, DDDB legal director, in response to my query about DDDB's posture.
"On the other hand, this is BrooklynSpeaks' first lawsuit, and they are more optimistic than we that the court will do the right thing," she added. "Still, we believe in the challenge raised in our joint lawsuit, and don't want anyone to mistake our letting BrooklynSpeaks take the lead as acquiescence in any form. We remain vigilant for opportunities to expose this Project for what it really is."
Indeed, DDDB attorney Jeff Baker will be in court tomorrow arguing to require the ESDC and Forest City Ratner, and their lawyers, to pay DDDB for the costs of the additional legal work "DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year." (I should have more on this case tomorrow morning.)
Click through for Norman Oder's very detailed recap of what these cases are all about.
Posted by eric at 5:02 PM
March 11, 2011
Why did Forest City Ratner try to get Carlton Avenue Bridge money from Kruger? Because they're scrounging for it; my queries haven't been answered
Atlantic Yards Report
Why was Forest City Ratner, as of December 2010, trying to get $9 million in state subsidies for the Carlton Avenue Bridge out of state Senator Carl Kruger, charged today along with lobbyist Richard Lipsky in a federal corruption case?
Because the developer still needs to pay for reconstruction of the bridge. (And the money sought from immigrant investors via the EB-5 program, though promoted as going to the bridge, would more likely go to refinance a land loan.)
I've tried several times over the past months to learn more about the bridge, to no avail.
I queried the New York City Department of Transportation (DOT) last November 12 regarding an apparently federal earmark as well as the current budget for and progress on the bridge. Despite several follow-up requests, I never got a response.
I posed the same questions to the Atlantic Yards District Service Cabinet on January 25 via City Council Member Letitia James and Carlo Scissura, the Borough President's Chief of Staff. No answers were forthcoming at the meeting February 10.
The Carlton Avenue Bridge is supposed to cost $40 million. The city in 2007 allocated $7 million. According to a 6/24/10 ESDC document (embedded below), which allowed the disbursal of additional City funds for the bridge:
It is expected that the Carlton Avenue Bridge related infrastructure work will cost in excess of $40 million. The City shall fund $24 million of the cost of the Carlton Avenue Bridge related infrastructure work. The remaining cost will be funded by Forest City.
NoLandGrab: Most unintentionally sincere quote from the 53-page federal indictment of Carl Kruger, Richard Lipsky et al — Kruger: "the bridge is out."
Posted by eric at 12:14 AM
March 10, 2011
Yes, Kruger corruption charges involve Atlantic Yards; unnamed "Developer #1" is FCR; Bender: "I don't mind fucking the Carlton Avenue Bridge"
Atlantic Yards Report
I had questioned whether the corruption charges regarding Carl Kruger's involvement with a "Brooklyn developer" meant Atlantic Yards, but apparently they do.
From the Daily News:
The complaint also points out Kruger's involvement in supporting mega-developer Bruce Ratner's planned $4 billion stadium project in downtown Brooklyn.
Kruger took elaborate steps to hide the payments, having checks funneled through a company called Adex Management Inc., then through a shell company, Olympian Strategic Development.
Olympian was controlled by Michael Turano, a son of Kruger's longtime friend and local community board director, Dorothy Turano. Michael Turano was also charged Thursday.
Kruger is accused of receiving at least $1 million in bribes, sharing lobbying fees paid to Richard Lipsky, another defendant, and then taking the official acts in favor of which Lipsky had been paid to lobby.
If Forest City Ratner, which is not named, is not a target, this might be a repeat of Ridge Hill, in which the developer benefits from apparent corruption but is not penalized.
Can the Empire State Development Corporation repeat its statement, in response to my queries about Ridge Hill, that they "remain confident in Forest City as a developer and as a good corporate citizen"?
From the complaint
The complaint (page 7) notes defendant Richard Lipksy's clients "include, among others, a significant real estate development firm ("Real Estate Developer #1") which is spearheading an over $4 billion, multi-year, mixed-use commercial and residential development project in Brooklyn, New York, as well as various unions and associations...."
On p. 14, it states that Kruger has taken a number of official actions to benefit Lipsky's clients, including "Developer #1."
More coming...
Click through to the complaint, and begin reading at the bottom of page 21 to find out why the reconstruction of the Carlton Avenue bridge is taking so long. Warning: rated NC-17 for adult language.
Posted by eric at 12:47 PM
March 8, 2011
That lingering lawsuit, an upcoming hearing, and some realism from BrooklynSpeaks affidavits about Atlantic Yards costs and benefits
Atlantic Yards Report
There's still one last Atlantic Yards court case, concerning the legitimacy of the ten-year timetable and the failure of the Empire State Development Development Corporation (ESDC) to conduct a Supplementary Environmental Impact Statement to study to adverse impacts of a project that could last 25 years.
And, though the Supreme Court Justice Marcy Friedman in December refrained from issuing a stay on construction, the dispute continues, as groups in the coalition BrooklynSpeaks forcefully questioned the ESDC's findings that a 25-year buildout would have no adverse impacts beyond those already studied.
A hearing will be held on Tuesday, March 15, at 2:30 pm in Manhattan Supreme Court before Friedman, at 60 Centre Street, IAS MOTION Part 57, Room 335.
Expert affidavits
I'll have an analysis of the overall dispute later in the week, but consider the press release circulated yesterday by BrooklynSpeaks, which cites three expert affidavits challenging the ESDC's claims.
In his affidavit, Ron Shiffman, professor of urban planning at Pratt Institute, argues that it's "an obvious omission" for the state to have bypassed city environmental review guidelines to offer an interim build year for projects whose duration is expected to be greater than ten years.
James Goldstein, Senior Fellow and Director of the Sustainable Communities program at Tellus Institute, a nonprofit research and policy organization in Boston, in his affidavit, points to the impact of delays in three projects, two in the Boston area, one in New London, CT. “The recent cases of Filene’s One Franklin development, Harvard’s Allston Initiative, and New London’s Fort Trumbull project all highlight the quantifiable and qualitative costs that arise in the course of unanticipated project delays. They invite a much more deliberate reconsideration of expectations about project costs and benefits once a delay occurs and, as in the case of One Franklin, demand a much more thorough analysis of the unanticipated impacts that inevitably arise from those delays.”
The state and Forest City Ratner, I'll note, have not revised their cost-benefit estimates.
Majora Carter, the former executive director of Sustainable South Bronx and the current President of the Majora Carter Group, in her affidavit, challenges the ESDC’s argument about the non-impact of 15 more years of construction: “This conclusion is not just counterintuitive. It reflects a national trend in land use policy that prioritizes the interests of private developers over the sustainability of vibrant communities."
Posted by eric at 9:26 AM
March 7, 2011
Urban planning, sustainable development experts support BrooklynSpeaks’ challenge to approval of Atlantic Yards 2009 modified plan
BrooklynSpeaks
On March 3, several BrooklynSpeaks sponsors seeking to reverse the Empire State Development Corporation’s (ESDC) 2009 approval of a plan extending construction of the Atlantic Yards project from ten to twenty-five years, filed affidavits with the court from leading authorities in urban planning and sustainable development. The affidavits by Ronald Shiffman of Pratt Institute, James Goldstein of Tellus Institute, and Majora Carter of the Majora Carter Group were submitted in support of BrooklynSpeaks’ supplemental petition challenging ESDC’s response to a November 2010 court decision ordering the agency to explain its rationale for failing to prepare a supplemental environmental impact statement (SEIS) at the time it approved the modified general project plan (MGPP).
“When it approved the 2009 MGPP, ESDC ignored the law, the facts, common sense and, most importantly, the opportunity to engage the community to help make Atlantic Yards work for Brooklyn,” said Gib Veconi of the Prospect Heights Neighborhood Development Council. “The statements of these experts show how ESDC was deficient in its approval of Forest City Ratner’s proposed changes to the construction schedule, and that ESDC failed to learn from either the failures or successes of other large urban redevelopment projects.”
...“Even though construction on the Barclays Center arena is underway, it’s not too late for the public to have a voice in the future of Atlantic Yards,” said Michelle de la Uz, executive director of the Fifth Avenue Committee. “Since ESDC and Forest City have so far refused to engage the local community or its elected representatives in a meaningful way, we have no choice but to ask the Court for a reversal of the 2009 MGPP and to halt further construction. Appropriate study of the impacts of 25 years of construction must be made.”
Posted by eric at 11:56 AM
March 6, 2011
Is the Downtown Brooklyn Partnership still under investigation for improper lobbying? Unclear
Atlantic Yards Report
Laws only have meaning if miscreants are prosecuted. Why does it seem that the Downtown Brooklyn Partnership is getting a pass?
Is new state Attorney General Eric Schneiderman continuing an investigation of the Downtown Brooklyn Partnership's (DBP) lobbying? I couldn't get an answer when I inquired a couple of weeks back, but the DBP, aiming to insert itself into the last Atlantic Yards lawsuit, surely has lobbied state agencies regarding Atlantic Yards.
As I wrote 10/27/10, in Cuomo has apparently put on back burner investigations of Willets Point, Downtown Brooklyn Partnership lobbying, a New York Times article that day about Attorney General Andrew Cuomo, about to win election as Governor, noted:
For example, an investigation into whether the administration of Mayor Michael R. Bloomberg and some public officials violated lobbying laws in their redevelopment efforts is still unresolved after two years. (Mr. Bloomberg last month endorsed Mr. Cuomo’s campaign for governor.)
That referred to Cuomo's investigation of questionable lobbying by the Flushing-Willets Point-Corona Local Development Corporation (FWPCLDC), paid by the city to lobby for the Willets Point urban renewal plan before the City.
What about the DBP?
Previously, I suggested that the DBP, also funded in part by the city, had similarly tried to "influence legislation by propaganda or otherwise." I cited testimony by DBP representatives before the Metropolitan Transportation Authority and the Empire State Development Corporation.
On 10/29/09, the Times reported that the investigation had in fact gone beyond the FWPCLDC:
That investigation has expanded into the activities of the Downtown Brooklyn Partnership, which the city helped create in 2006 to help push through development plans following a broad rezoning of the area.
So, is that investigation still going on? Has it been dismissed? To what extent does/did it involve the Partnership's work lobbying for Atlantic Yards?
Last year, I asked the DBP, which told me to ask the Attorney General's office. I didn't get an answer from either administration, last year and last month.
Posted by steve at 10:15 PM
March 3, 2011
Teachable moment? Downtown Brooklyn Partnership, LIU, BAM offer gushing, unfounded affidavits supporting FCR in timetable case
Atlantic Yards Report
Here's the latest addition to the list of great works of Atlantic Yards fiction.
"Atlantic Yards will be many things to many people," Forest City Ratner has long stated (as in screenshot from original AY web site, right, complete with misleading fisheye photo).
For the Provost of Long Island University's Brooklyn campus, the project appears to be a mystical mirage, promising an astonishing array of indispensable benefits.
It should be a teachable moment: the question of whether and how Atlantic Yards could provide such claimed benefits could occupy a good number of academic researchers.
Instead, it's a moment for (take your pick) irresponsibility, delusion, or power politics.
In a sworn affidavit, LIU's Gale Stevens Haynes (see p. 47 of the first document embedded below) simply takes the most optimistic scenario on faith.
She claims, without evidence, that students and faculty are "very supportive" of the project, and suggests that the project would offer "housing, jobs, and transit and infrastructure improvements to our students."
And she praises Forest City Ratner for being "genuine in its concern and efforts to understand and address the needs of this community."
Apparenly, CEO Bruce Ratner, who served on the university board's "Buildings and Grounds Committee, offering his expertise to the construction of the Zeckendorf Health Science Center and the Wellness, Recreation & Athletic Center," has won some friends.
Court case pending
Haynes's affidavit, as well as two others, accompany a motion from the Downtown Brooklyn Partnership to file a "friend of the court" brief in the last lingering Atlantic Yards court case, regarding the impacts of and the need for the Empire State Development Corporation (ESDC) to study a delayed timetable.
It should go to oral argument March 15 at 2:30 pm, as should a linked case regarding a request for legal fees). I'll look at the broader legal arguments in depth next week.
Posted by eric at 11:30 AM
February 2, 2011
Court hearing scheduled for Thursday, concerning DDDB motion for legal costs, is postponed
Atlantic Yards Report
The hearing, scheduled for Thursday, on a motion by Develop Don't Destroy Brooklyn (DDDB) to recover its legal costs, has been postponed, with no date yet set.
DDDB wants the Empire State Development Corporation and Forest City Ratner, and their lawyers, to pay DDDB's legal costs because of the withheld Development Agreement.
Posted by eric at 10:25 AM
February 1, 2011
DDDB in court Thursday, seeking sanctions from ESDC/FCR and their lawyers for withholding Development Agreement
Atlantic Yards Report
Remember how, last March, Supreme Court Justice Marcy Friedman criticized the Empire State Development Corporation's (ESDC) “deplorable lack of transparency” and acknowledged that the ESDC’s use of a ten-year timeframe for the project buildout in the Modified General Project Plan (MGPP) was supported “only minimally”?
And in a decision last November, she criticized the ESDC for withholding the Development Agreement, which gives a 25-year outside date to build the project?
The ESDC, in response, issued findings that it wouldn't make a difference in terms of impact. The two coalitions bringing suit, Develop Don't Destroy Brooklyn and BrooklynSpeaks, may be in court later this month challenging those findings.
Legal costs sought, hearing Thursday
Before then, DDDB, but not BrooklynSpeaks, has filed a motion to require the ESDC and FCR, and their lawyers, "to pay DDDB for the costs of the additional legal work which DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year."
...The fact that BrooklynSpeaks has not joined the motion suggests that such a tactic, which is on the aggressive side, might not sit well with the judge.
Then again, should the ESDC and FCR get away with the failure to disclose the Development Agreement?
It seems that, so far, they have been unscathed and the longer the case lingers, the less likely a judge would be willing to intervene in construction of the arena and ancillary facilities.
...The Development Agreement, signed 12/23/09, had clearly been delayed. Part of the master closing documents, it was not released until 1/25/10, was six days after a hearing in a case challenging the timetable was heard before Friedman.
It was also about three weeks after the ESDC told me the documents would be made available.
Doesn't that seem a little suspicious?
NoLandGrab: Actually, it seems a lot suspicious.
Posted by eric at 10:30 AM
January 31, 2011
Feb 3: DDDB In Court Seeking Sanctions and Legal Fees From ESDC
Develop Don't Destroy Brooklyn
On Thursday, February 3, at 9:30 a.m., New York State Supreme Court Justice Marcy Friedman will hear argument on the motion of Develop Don't Destroy Brooklyn to require the Empire State Development Corporation and Forest City Ratner, and their lawyers, to pay DDDB for the costs of the additional legal work which DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year.
We strongly encourage you, as a DDDB supporter, to attend the hearing on Thursday. A grassroots organization such as ours should not be forced to suffer financial consequences because of the misconduct of a state agency.
...Details:
Thursday, February 3rd. 9:30 AM
New York County Supreme Court
60 Centre Street [Map]
Room 335
Manhattan
Click thru for a preview of what will be at issue in court.
Posted by eric at 11:20 PM
December 23, 2010
The Daily Bulletin Year in Review
Brooklyn Daily Eagle
Atlantic Yards makes a few appearances in the Eagle's round-up of "top legal, judicial and courthouse news stories of 2010."
JANUARY
• Homeless people in Brooklyn attempt to arrest developer Bruce Ratner related to the use of eminent domain to take land for the multibillion-dollar Atlantic Yards project that Ratner is constructing for the Brooklyn/New Jersey Nets NBA basketball team.
...MARCH
• New York state takes ownership of the land inside the footprint of Atlantic Yards via eminent domain, after Justice Abraham Gerges finalizes a Court of Appeals ruling that the taking is constitutional. Several days later, several floors of the courthouse are evacuated (see photo) as Justice Gerges is sent an envelope filled with suspicious white powder, later to be found inert.
...NOVEMBER
• In an unexpected decision regarding the Atlantic Yards project, a Manhattan judge rules that the discrepancies between the project’s timelines warrant the granting of a motion to reargue the case concerning the environmental impact statement. Though the project is not expected to stop construction, it is a rare victory for Atlantic Yards opponents and allows the continuance of many years of litigation.
NoLandGrab: "Unexpected?" Maybe by the Ratner-idolizing Eagle.
Posted by eric at 9:25 AM
December 22, 2010
No stay on construction, as petitioners in timetable case agree to withdraw motion in light of ESDC's report; will file new motion next month
Atlantic Yards Report
There will be no stay on Atlantic Yards construction for now and, given the momentum of time, the bar grows higher.
Two community coalitions sought a stay on some if not all Atlantic Yards construction because of the Empire State Development Corporation's (ESDC) failure to analyze the impact of a 25-year construction schedule.
But last week, the ESDC issued findings that no Supplemental Environmental Impact Statement (SEIS) is necessary and, while petitioners Develop Don't Destroy Brooklyn and BrooklynSpeaks consider that analysis vastly inadequate, it was too soon to argue that in court.
So, in a very brief hearing today before state Supreme Court Justice Marcy Friedman in New York County Supreme Court, the parties--the petitioners as well as the defendants, the ESDC and Forest City Ratner--agreed that the request for a stay would be withdrawn.
"They acted last week," BrooklynSpeaks attorney Al Butzel said of the ESDC decision, "and there's a presumption [on the part of the court] that they acted legitimately, which changed the balance." BrooklynSpeaks and DDDB disagree and will argue that next month.
Next phases
As part of the stipulation, the petitioners have until January 18 to file a supplementary petition arguing that the ESDC's analysis is inadequate--and to bring another request for an injunction. The could lead to another oral argument in the case in February.
Related coverage...
Park Slope Patch, Atlantic Yards Construction To Continue
Construction at Atlantic Yards will be allowed to continue after a deal was struck in court today by both sides of a lawsuit challenging development of the 22-acre Prospect Heights plot.
Calling it a "legal reality," representatives for the petitioners withdrew a motion to stop construction, but they continued to criticize how the Empire State Development Corporation, the state agency overseeing development, has handled the process.
"My view is the ESDC is responding in a way that misses the major concern, which is how 25 years of construction will affect people living in the neighborhood." said Al Butzel, attorney for BrooklynSpeaks, one of the community groups that is petitioning the development.
Posted by eric at 10:27 PM
Atlantic Yards Stopped?
The Huffington Post
by Steve Ettlinger
Longstanding opponents Develop Don't Destroy Brooklyn and Brooklyn Speaks got a favorable response last month and will have a hearing tomorrow, Dec. 22 (State Supreme Court Justice Marcy Friedman, 60 Centre Street, IAS Motion Part 57, Room 335). At issue is a motion for a stay on the construction of Forest City Ratner's Atlantic Yards development. The plaintiffs charge collusion to deceive the court on an environmental impact statement. It appears that this is clearly the case. This is more than what stopped the infamous Westway project years ago.
How, you might wonder, does Bruce Ratner's mega-development inspire such sustained assault? Let's see some basics.
Click through to read Ettlinger's cogent summary of why NoLandGrab is still covering stories like Ettlinger's.
Posted by eric at 11:19 AM
New York’s High Court Finally Gets Something Right
Reason Hit & Run
by Damon W. Root
It’s been an abysmal few years at New York’s Court of Appeals. First, the Empire State’s highest court voted to rubber stamp the despicable Atlantic Yards land grab, thereby allowing corporate welfare recipient Bruce Ratner (and his ugly allies) to profit at the expense of homeowner Daniel Goldstein, the fine folks at Freddy’s Bar, and other Brooklyn property owners and residents. Then the Court of Appeals allowed New York state to use eminent domain on behalf of—and in collusion with—Columbia University, thereby privileging the elite private institution at the expense of family business owner Nick Sprayregen. So it’s a strange day indeed to find good news coming out of that flawed judicial body. But as the Associated Press reports, the Court of Appeals just got one right:
Slices, hooks and other errant shots are a common hazard on the links and a golfer can't expect to get a warning shout of "Fore!" every time a ball comes his way, New York's top court ruled Tuesday in dismissing a personal injury lawsuit.
Bottom line? The courts won't protect you anywhere in New York State.
Posted by eric at 10:46 AM
December 21, 2010
Atlantic Yards Report Round-Up: DDDB and BrooklynSpeaks vs. ESDC
Atlantic Yards Report, DDDB attorney: ESDC denied documents before board meeting, conducted illegal session, admitted role as "rubber-stamp"
In a legal affirmation (embedded below) in the case regarding the Atlantic Yards timetable, Jeff Baker, attorney for Develop Don't Destroy Brooklyn, takes aim at the Empire State Development Corporation's (ESDC) board meeting last Thursday, saying the ESDC denied the public access to documents and conducted an illegal meeting.
Baker states:
Nevertheless, it is important for the Court to understand the extent of the deliberations by the ESDC Board of Directors to understand the cursory review they conducted and recognize that instead of customary deference, ESDC's actions should generate skepticism and the Court should grant the stay pending a final review of ESDC's compliance with SEQRA [State Environmental Quality Review Act].
Where's the report?
Anticipating that the ESDC would prepare a report complying with Supreme Court Justice Marcy Friedman's ruling and thus indicating that a 25-year project buildout would not be unduly burdensome, Baker sought such documents via a Freedom of Information law Request on November 29 by fax and regular mail.
On December 14, he received a response dated December 6 and postmarked December 9.
Immediately, on December 14, Baker demanded copies of the documents that would be presented to the ESDC board on December 16, to afford meaningful comment. He got no response.
Atlantic Yards Report, In timetable case, petitioners say ESDC's "illegal" actions shouldn't be rewarded; FCR argues against stay, but, if granted, bond should be $100M
In the courtroom argument tomorrow over the request in a stay in Atlantic Yards construction and a re-evaluation of potential project impacts over 25 years, the battle seems to be this:
Can charges of bad procedure and dereliction of duty overcome the facts of an official document in hand and ongoing construction--construction that developer Forest City Ratner thinks requires a $100 million bond (well-nigh impossible for community groups) to pause?
The hearing will be at noon in Manhattan Supreme Court before state Supreme Court Justice Marcy Friedman, at 60 Centre Street, IAS MOTION Part 57, Room 335. (I will reconfirm and update the location by tomorrow.)
Friedman made a preliminary ruling November 9 that the Empire State Development Corporation (ESDC) make "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 [SEIS] is required or warranted."
(The Development Agreement, which has a 25-year deadline, was released in January, months after the ten-year date was approved in the Modified General Project Plan, or MGPP, in September 2009.)
The ESDC responded with a flurry of arguments, notably that the arena is already well in progress, and that the 25-year outside date for project construction was long ago disclosed. On December 16, it issued findings that an SEIS is not necessary.
The findings were criticized by the BrooklynSpeaks coalition as obfuscatory and evasive. The meeting, according to an attorney for Develop Don't Destroy Brooklyn (DDDB), included an illegal executive session and denied the public the opportunity to comment on the findings.
Given that judges are supposed to defer to administrative agencies, the petitioners face a high bar--though one they're trying forcefully to overcome.
Atlantic Yards Report, When will the area open? The goalposts are already shifting slightly, thanks to "current schedule disputes"
When is the Barclays Center arena expected to open?
According to an affidavit from Forest City Ratner executive MaryAnne Gilmartin, arguing against any stay in construction, work is carefully timed so the arena can be finished by the summer of 2012 so it then be "commissioned" to open for the basketball season in October 2012.
However, there are apparently some delays in the schedule separate from any potential delays caused by litigation, as consultants report, detailed below.
It's also unclear when an arena not-yet-commissioned for basketball could open before the season to accommodate concerts (such as for Jay-Z) and other events, though presumably such events are planned and basketball is the most complicated to stage.
Atlantic Yards Report, Number of construction jobs should peak at 600 (plus "hundreds" offsite), says FCR; however, ESDC in 2006 estimated 3710, in 2009 predicted 1954
How many construction workers will be working on the Atlantic Yards site?
According to an affidavit (p. 244 of the document below) by Forest City Ratner executive MaryAnne Gilmartin that's part of the case challenging the Atlantic Yards timetable, the Number of workers will rise to about 600 or more when construction activities reach their peak:
Under the current schedule for building the arena, the census of approximately 120 union workers who are actually employed at the site is expected to increase dramatically, and will rise to about 600 or more when construction activities reach their peak. And there are hundreds of other workers now employed for the Project off-site.
Previous estimates
That's far fewer than the Empire State Development Corporation (ESDC) predicted in 2006 and again just last year.
The Technical Memorandum issued in June 2009 by the ESDC offers quarter-by-quarter construction jobs estimates over an elapsed time of 13 years, as shown below.
The peak, when the entire arena block was supposed to be in construction, was 3710, according to the Final Environmental Impact Statement, or FEIS.
Posted by eric at 12:36 PM
December 15, 2010
ESDC response in timetable case: no stay needed, since arena's on its way, and 25-year outside date was known (but was 10-year buildout likely?)
Atlantic Yards Report
You wouldn't expect the Empire State Development Corporation (ESDC) to roll over, and the agency has responded to a request for a stay of Atlantic Yards construction with a flurry of arguments, notably that the arena is already well in progress, and that the 25-year outside date for project construction was long ago disclosed.
Supreme Court Justice Marcy Friedman, in her November 9 ruling on the Atlantic Yards timetable in favor of two community coalitions, did not resolve the issue. (The ruling came after an unusual reargument of a case that was decided March 10.)
Rather, she 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 [SEIS] is required or warranted."
ESDC says no SEIS is necessary, and that the Development Agreement's not so meaningful. ESDC staffers have been working on the required analysis, and it's likely that the report will be approved by the ESDC's directors at a meeting tomorrow.
The ESDC's legal response, embedded at bottom, will be followed by reply motions from the two coalitions, led by Develop Don't Destroy Brooklyn and BrooklynSpeaks, and then oral argument before Friedman at noon on December 22.
Read on for more of the "pay no attention to that man behind the curtain" arguments for which we've come to love the ESDC.
Posted by eric at 9:53 AM
December 13, 2010
There Goes Manhattanville: Supreme Court Turns Down Columbia Expansion Case
NY Observer
by Matt Chaban
The kleptocracy is alive and well in the good ol' US of A.
Nick Sprayregen knew the chances were slim that the Supreme Court would hear his case against the state and, by extension Columbia University, yet still, the owner of Tuck-It-Away self-storage held out hope.
"It was a shocking decision, even with the chance of the court taking the case being one percent," Sprayregen told The Observer by phone today. He was referring to the odds that all cases face in being heard by the court, though he believed his had a good chance, both on merit and import, given the particulars of his suit and the dearth of opinions from the high court since it decided the landmark Kelo case five years ago, which basically rewrote the rules around eminent domain.
"I though we've put together, in terms of facts, about the strongest case anyone could," Sprayregen continued. "What the state and Columbia have done to collude on this is horrifying. We really thought they'd take a look at this. It strikes fear in me for others about how anyone else could put together a stronger case. We spent six years on this. How anyone else will mount a stronger challenge to eminent domain, I don't know."
Posted by eric at 10:47 PM
Supreme Court refuses to hear appeal in Columbia eminent domain case
Atlantic Yards Report
Justice denied is... justice denied.
The effort to get the U.S. Supreme Court to hear an appeal on the eminent domain ruling in the Columbia University expansion has been denied, without comment.
Thus the court passes for now on the opportunity to clarify the meaning and legacy of its controversial 5-4 Kelo vs. New London decision in 2005.
While the federal appellate court hearing an appeal in the Atlantic Yards litigation interpreted Kelo quite narrowly, denying the challenge, courts in other states have used language in Kelo to more closely examine the actions of governmental agencies pursuing eminent domain.
The Supreme Court also passes on an opportunity to pronounce on eminent domain law as practiced in New York State, seen as an outlier among states, given that all challenges start in the state's appellate division, with no opportunity for testimony under oath, further evidence-gathering, or cross-examination.
Related coverage...
Bloomberg, Columbia's Expansion Allowed by U.S. Supreme Court in Eminent Domain Case
Columbia University can move ahead with plans for a $6.3 billion expansion of its Manhattan campus after the U.S. Supreme Court rejected an appeal by neighboring businesses whose property may be taken over by eminent domain.
The justices today refused to question findings by a state development agency, Empire State Development Corp., that the area is blighted and that the Columbia expansion has a legitimate public purpose. The New York Court of Appeals, the state’s highest court, upheld the plan in June.
AP via The Washington Post, High court won't block Columbia expansion plan
Posted by eric at 10:58 AM
December 11, 2010
FCR executive: state plans to deliver to judge study regarding (presumably minimal) impact of 25-year project buildout
Atlantic Yards Report
At a Forest City Enterprises (FCE) quarterly earnings conference call today with investment analysts, company representative indicated that the Empire State Development Corporation (ESDC) does not plan to appeal Supreme Court Justice Marcy Friedman's 11/9/10 ruling that it had failed to consider the impact of a 25-year project buildout but instead would deliver a document that would make the problem go away.
(There were no questions about EB-5 financing.)
About the lawsuit
One analyst asked about the remaining Atlantic Yards lawsuit that "cropped up recently."
Joanne Minieri, President and COO of subsidiary Forest City Ratner, responded, "Right now, the opponents filed for a stay of the construction until the state complies with the judge's order to do a further study and to make new findings relating to the project buildout timeline."
"The state is complying with that order right now and work is well under way," she continued. "And, towards the end of the month, papers are due and a hearing is scheduled. But it's FC's, as well as the state's intention to comply with the order and do the study in connection with the timeline and the buildout. So, by the end of the month, there'll be a court hearing regarding this particular lawsuit."
"And no stay of construction in the meantime?" came the follow-up question.
"Correct," responded Minieri.
A hearing is scheduled for December 22. While Minieri did not characterize the study at hand, presumably the ESDC will deliver a document that does not delay the project or give project opponents any more ammunition.
AY timeline up to them
In an unintentional nod to that timetable issue, David LaRue, Chief Operating Officer of parent FCE at another juncture in the call indicated that the developer plans to move forward on Atlantic Yards--but only when the time is right.
"We're heavily invested in Atlantic Yards," he said. "We fully believe in the future of that opportunity, as a value-creating mechanism for us. The example of [FCR's] 80 DeKalb opening and leasing up in nine months to where I think it's 97 percent leased now... is just an indication of the strength and depth of that [Brooklyn] market. So, [CFO] Bob [O'Brien] mentioned earlier, we're going to look, I guess not offensively, but at the right time to develop those assets and take advantage of the entitlement we have."
In other words, as FCE said in November 2008, "We control the pace."
Click on the link to read how Forest City Ratner is trying to find more sponsorships for the new Nets arena and how unloading the Nets has helped the bottom line.
Posted by steve at 7:32 AM
December 8, 2010
In effort to get Supreme Court to hear Columbia eminent domain case, AY precedent and New York practices seen as outliers favoring condemnors
Atlantic Yards Report
The Columbia University expansion case should reach a reckoning this week at the U.S. Supreme Court, which, if in the unlikely case it accepts the appeal, could place a check on eminent domain as practiced in New York State.
As I wrote in September, after seeing a surprising Appellate Division victory overturned unanimously by the state Court of Appeals, which relied on its Atlantic Yards decision, Tuck-It-Away owner Nick Sprayregen and the Kaur/Singh family are trying to get to the Supreme Court.
On his Inverse Condemnation blog, land use attorney Robert Thomas has posted the entire set of briefs in the petition for certiorari (Tuck-It-Away, Inc. v. New York State Urban Dev. Corp.) at the United States Supreme Court.
Will cert be granted?
The justices will meet December 10 to consider a number of cases and are expected to announce December 13 which cases they will accept (aka "grant certiorari").
It's always a long shot to get a case to the U.S. Supreme Court. Plaintiffs in the federal Atlantic Yards eminent domain case were rejected in June 2008, though one justice, the conservative Samuel Alito stated that he would've granted the petition.
As I wrote at the time, a decision to reject does not mean that the cases below were decided correctly, just that the appeal didn't present enough issues of law--conflicts in the interpretation of the Supreme Court's highly contested 6/23/05 Kelo v. New London decision--to merit review.
However, with some two-and-a-half years for additional cases that seemingly clash with Kelo to emerge, the petitioners in the Columbia case have a somewhat better shot.
Posted by eric at 10:44 AM
December 1, 2010
Lawsuit Tries to Slow "New Domino" Development
Gothamist
by Garth Johnston
Crying poor environmental review seems to be the hot way to try and stop Brooklyn developments of late. Just as Develop Don't Destory Brooklyn is attempting to slow the Atlantic Yards project because of misrepresentations in its enviromental impact statement another group of Brooklynites is using a similar tactic to try and halt the massive development planned for the old Domino Sugar refinery (which got City Council approval back in June after much community opposition).
Posted by eric at 10:35 PM
Atlantic Yards – war seems over yet legal battle continues
Meadowlands Matters
by John Brennan
The milestone of steel recently being erected at the site of the Barclays Center Nets basketball arena in Brooklyn sure makes it feel as if the multi-year legal Atlantic Yards battle must be over for good. Even ‘last holdout’ Daniel Goldstein finally took a buyout, and his building has been knocked down.
So what will New York State officials and Atlantic Yards opponents be doing on Dec. 22? Not giving each other Christmas gifts, that’s for sure. Instead, they have a tentative meeting with Supreme Court Justice Marcy Friedman regarding a possible halt to construction until state officials get their environmental impact statement house in order. That filing was made on Thanksgiving Eve.
This comes as a result of a Friedman ruling three weeks ago that was a basket for Nets owners but not quite a slam dunk. Friedman accepted the possibility that opponents are right to say that since a 10-year buildout plan has been changed to 25 years, maybe new environmental analysis is required. But Friedman didn’t stop the Nets from continuing their feverish work at the site designed to have the building finished in less than two years from now.
So what’s the point of the meeting?
Good question.
Opponents are convinced that the Empire State Development Corp. state agency and the Nets owners are complete allies, to the point where state officials will do anything to make the project happen. The project was in peril in 2009 because a federal tax exemption on construction bonds for stadiums and arenas – one enjoyed by the Mets and Yankees, for instance - was expiring at the end of the year.
The developer agreement was signed with days to spare, and the money was raised – but not coincidentally, these opponents claim, the details of the deal weren’t revealed until Jan. 2010. Friedman didn’t even address the issue in her key March 2010 ruling that paved the way for site work to pick up in earnest. In her ruling in early November, Friedman seemed annoyed with state officials for the lack of transparency; she may have been embarrassed to have ignored complaints last spring by these opponents.
Posted by eric at 3:25 PM
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.
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 10:51 AM
PRESS RELEASE: Develop Don't Destroy Brooklyn Asks Court to Stay All Construction On Ratner's Atlantic Yards Project Site
Current Work on Project Is Illegal Under Court Ruling and State Environmental Law
Court Argument Scheduled for December 22
On Wednesday, November 24, twenty community organizations led by Develop Don't Destroy Brooklyn (DDDB) filed a motion with New York State Supreme Court seeking to halt all construction at developer Forest City Ratner's Atlantic Yards project site.
An argument on the motion for a stay, in front of State Supreme Court Justice Marcy Friedman, has been scheduled for noon on December 22nd (that date is subject to change).
The motion for a stay follows the November 9 decision from Justice Friedman finding that the Empire State Development Corporation (ESDC) lacked a rational basis for assuming that Atlantic Yards project would be completed in ten years when the agency approved the project's 2009 Modified General Project Plan (MGPP). Specifically the ESDC hid a key development agreement from the court.
Justice Friedman ordered the ESDC to reconsider the need for a supplemental environmental impact statement based on the 25-year construction schedule provided for in the Development Agreement between ESDC and Forest City Ratner. ESDC had analyzed Atlantic Yards as a 10-year project and repeated this unsupported claim to the court. The Court's order requires a new analysis by the ESDC. Until and unless the ESDC complies with the Court order by undertaking a new analysis of the project's timetable and impacts—with a rational basis—continued work on the project would be illegal under state law.
In the stay motion papers, DDDB attorney Jeffrey S. Baker states that all construction work must stop until ESDC complies with the Court order, to allow work to continue would be "rewarding FCR and ESDC for their malfeasance."
The papers also state that only because Ratner and the ESDC "colluded in their misrepresentations to the Court" could arena construction begin. And that "ESDC failed in its public obligation to evaluate the Project honestly in the context of its known schedule for completion." And that Forest City Ratner, "motivated by profit, used its influence with ESDC to avoid meaningful review, although it never intended to complete the project within the supposed ten-year timeframe and, to the contrary, was actively negotiating contracts providing far longer timeframes."
A stay of all construction is needed to maintain the status quo, not just to prevent further harm to the environment but DDDB argues, "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."
One of the key consequences and impacts of a 25-year construction schedule is a paved 1,100 car "interim" surface parking lot taking up much of the second phase of the project site. The ESDC has yet to study and disclose the impacts of such a massive parking lot.
"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.
Posted by eric at 10:34 AM
PRESS RELEASE: BrooklynSpeaks sponsors file for stay of construction at Atlantic Yards site
On Wednesday, November 24, several BrooklynSpeaks sponsor organizations filed a motion with New York State Supreme Court seeking to halt construction activities at the Atlantic Yards site. The motion comes after a November 9 decision from Justice Marcy Friedman finding that the Empire State Development Corporation (ESDC) lacked a rational basis for assuming that Atlantic Yards project would be completed in ten years when the agency approved the project’s 2009 Modified General Project Plan (MGPP). Justice Friedman ordered the ESDC to reconsider the need for a supplemental environmental impact statement based on the schedule provisions of the Development Agreement between ESDC and Forest City Ratner Companies (FCRC). That Agreement was made public only after a January 2010 court hearing during which the ESDC misrepresented its ability under the Development Agreement to ensure Atlantic Yards would be completed within ten years.
BrooklynSpeaks’ motion seeks to stay construction until ESDC has responded to the Court’s order. “Because the ESDC approved the 2009 MGPP without a reasoned basis for assuming Atlantic Yards would be complete in ten years, the agency violated New York State environmental law. As such, the work proceeding at the site now is underway illegally,” said Al Butzel, attorney for the BrooklynSpeaks petitioners. “ESDC and FCRC had a responsibility to disclose the true extent of the renegotiated construction schedule. They should not be rewarded and allowed to continue as if they had complied with the law.”
“If nothing happens, FCRC will soon begin to raze buildings, grade and pave an entire city block in Prospect Heights to create 1,100 parking spaces for arena events,” said Gib Veconi of the Prospect Heights Neighborhood Development Council. “Although they say it’s an ‘interim’ parking lot, under the MGPP, it could stay that way for up to 25 years. The State needs to disclose the noise, traffic, and air quality impacts of that likely scenario before moving forward.”
“The difference between 10 and 25 years is a long time to wait for affordable housing,” added Deb Howard, Executive Director of the Pratt Area Community Council. “The Governor and the Governor-elect can no longer ignore the fact that a State authority, appointed by the executive, has misrepresented a major development project to the Court and to the people of New York State. The ESDC has abdicated its obligations to the public purse and the public interest. Now it’s time for the Governor to put the interests of the people above those of a powerful real estate developer and commit to reform of Atlantic Yards governance.”
Posted by eric at 10:26 AM
November 10, 2010
Atlantic Yards: Judge Slams State Development Agency for "Failure of Transparency"
The Huffington Post
by Norman Oder
In today's New York Times, the Arts section features a long article on a play with music that dramatizes the Atlantic Yards development controversy in Brooklyn, another work from the impressive investigative theater company The Civilians.
Meanwhile, the Times ignores a long-awaited ruling in the last remaining Atlantic Yards lawsuit, which laid bare just how the state cut corners to favor developer Forest City Ratner, allowing a 25-year buildout while insisting the arena-plus-towers project could get done--and bring benefits like new tax revenue and affordable housing--in just ten years.
To the surprise of many, state Supreme Court Justice Marcy Friedman not only ruled for Develop Don't Destroy Brooklyn and other project opponents but also slammed the Empire State Development Corporation (ESDC), the state's economic development agency, for "what appears to be yet another failure of transparency" and "totally incomplete representations" in legal papers.
The importance of the ruling
No, the decision won't stop construction of the Barclays Center arena, which is already under way and slated to be finished by the fall of 2012. It likely won't impact construction on the arena block, as the Development Agreement the state signed with Forest City Ratner contains specific penalties regarding delays in the first three towers.
However, either the ESDC will have to file an appeal--and be forced to defend some very questionable behavior--or issue more findings justifying its analysis of the entire 16-tower project.
Related coverage...
Develop Don't Destroy Brooklyn, Court Ruling Ensures History Will Not Forget How Atlantic Yards Went Down
On the Huffington Post Norman Oder explains the significance of yesterday's Atlantic Yards court ruling against the Empire State Development Corporation. The ruling ensures, once and for all, that history will not forget what and how it all went down in Prospect Heights, Brooklyn under the watch of Bloomberg, Pataki, Spitzer and Paterson.
Posted by eric at 10:40 PM
Judge Rebukes State Agency Over Atlantic Yards Timetable
City Room
by Andy Newman
It comes too late to halt construction, but a judge has issued a stinging rebuke to the state agency overseeing the $5 billion Atlantic Yards project in Brooklyn, finding that it made “totally incomplete representations” in legal papers about how long it would take the project to get built, in “what appears to be yet another failure of transparency.”
On Tuesday, the judge, Marcy S. Friedman of State Supreme Court in Brooklyn, ordered the agency, the Empire State Development Corporation, to justify its decision to require only a 10-year environmental impact statement. The agency’s own agreement with the developer, Forest City Ratner, allows 25 years for construction of the project, which includes a basketball arena, currently being built, and 16 residential and commercial towers. Forest City Ratner officials have acknowledged that the 10-year timetable was a best-case scenario.
Related coverage...
The Local [Fort Greene/Clinton Hill], The Day: Legal Setback for Atlantic Yards Project
Opponents of Forest City Ratner’s Atlantic Yards development celebrated a legal setback for the project yesterday, as a New York State Supreme Court judge ordered the Empire State Development Corporation to re-open the question of whether a further environmental review is needed.
NY Observer, Too Little, Too Late: Atlantic Yards Opponents Finally Win a Court Case
Maybe there is hope for those opposed to Brooklyn's Atlantic Yards project after all. Or at the very least, some vindication.
Yesterday, State Supreme Court Justice Marcy Friedman ruled that the Empire State Development Corporation erred in producing a modified timetable for the project last year, when it finally won state approval, and thus violated the state's environmental review process.
The courts have criticized the project before, but none have ever ruled against it, arguing that it is the legislature and its constitutionally mandated authorities, such as the ESDC, whose responsibility is to determine right from wrong when it comes to eminent domain and the like. This time, though, Friedman found the fecklessness to be actionable.
Gothamist, A Rare Victory for Atlantic Yards Foes
"With today’s ruling it is more evident than ever that the new governor has a job to do with the Atlantic Yards debacle," Develop Don't Destroy Brooklyn co-founder (and former holdout) Daniel Goldstein told the New York Post. "The blight Ratner has created in Prospect Heights, Brooklyn can be fixed if Cuomo is willing to take the much-needed fresh look at Atlantic Yards that [yesterday’s] court ruling demands."
Brownstoner, Atlantic Yards Opponents Actually Win One
Atlantic Yards Report explains that while the ruling will not immediately effect construction, it could subject the Atlantic Yards project to further arguments in court.
Brooklyn Daily Eagle, Judge Orders Reassessment of 25-Year Atlantic Yards Project
Gib Veconi of the Prospect Heights Neighborhood Development Council said, “The Atlantic Yards Modified General Project Plan (MGPP) varied so drastically from the plan initially approved by the ESDC in 2006 that it could not escape the notice of the Court, and the decision today has confirmed that the Empire State Development Corporation must disclose the impacts of the Atlantic Yards project it agreed to, not the one it wishes would be built.”
Photo: H. Spencer Young/The Local
Posted by eric at 10:25 PM
COUNCIL MEMBER LETITIA JAMES PRESS RELEASE: Victory At Last!
Congratulations to DDDB and Community on Ruling Against Atlantic Yards Development
State Supreme Court Justice Marcy S. Friedman issued a ruling today granting the motion by Develop Don't Destroy Brooklyn (DDDB), and other petitioners. The judge sided with DDDB and associated neighborhood groups stating that the Empire State Development Corporation (ESDC) did not properly consider the full 25-year schedule of the Atlantic Yards development project. The judge sent the case back to ESDC requiring a detailed, reasoned basis for its findings and support.
Justice Friedman criticized ESDC for the lack of transparency in its approval of Bruce Ratner’s Atlantic Yards project, highlighting that the environmental review process is meant to be an open process involving the public, as well as other interested agencies.
“The Court properly found that ESDC misrepresented the facts of the contracts and there were no requirements that FCRC complete the project,” said DDDB lead counsel Jeffrey S. Baker of the Albany, New York law firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC. “ESDC’s lack of transparency was not just with respect to its own deliberations, but extended to trying to hide material facts from the Court. We are very pleased that Justice Friedman did not tolerate that behavior.”
Council Member Letitia James said: “It’s time that Forest City Ratner Corporation sit down with the community and incorporate aspects of the UNITY plan into his project, which focuses on affordable housing and buildings that compliment the community. Unfortunately, the taking of homes and businesses by eminent domain in absence of proper findings has already happened. I hold my ground and continue my objection to this entire development, the process, the land grabbing, and the waste of public funds. In light of Justice Friedman’s ruling, it’s critical that Governor Elect Andrew Cuomo examine the overall plan for the Atlantic Yards project, and meet with the community. Lastly, congratulations to DDDB, Prospect Height Neighborhood Development Council, and the community for their perseverance and victory.”
Posted by eric at 7:35 PM
Court ruling apparently leaves Forest City Enterprises a bit unnerved; executive at Investor Day says "we continue to evaluate the situation"
Atlantic Yards Report
Perhaps Judge Friedman should order Forest City Ratner to start dismantling their foundation.
During an Investor Day event today, with investors and investment analysts in attendance at the Arena Stage's Kreeger Theater in Washington, DC, Forest City Enterprises offered a confident update on its projects and its progress, and a notably less confident assessment of the court ruling yesterday regarding Atlantic Yards.
Chief Operating Officer David LaRue, who had to consult a recently-prepared script regarding the ruling, stated, "There is, just with regard to the Atlantic Yards project, while we're there, there was news that came out yesterday, we want to make sure we address it, immediately, what we know. Yesterday the state Supreme Court made a ruling that--Justice Friedman issued a ruling--which for the first time was in favor of the opponents of Atlantic Yards and against the EDC, the Empire State Development Corporation."
(Actually, in New York, the EDC is the New York City Economic Development Corporation, while the state agency is the ESDC.)
Tentative tone
"This is different--last spring she actually ruled in favor on this particular issue, which is the environmental impact study that was done," LaRue continued, in a tone far more tentative than in the rest of his presentation. "Uh, what's she's asked the EDC to do in this regard is to go back to reconsider the impact on the environmental study regarding an extended development period which we were able to negotiate, which gave up to 25 years for development of the project, versus a ten-year base plan that was used."
What he didn't tell the audience is that the judged slammed the ESDC for "what appears to be yet another failure of transparency" and "totally incomplete representations" in legal papers.
Posted by eric at 10:16 AM
Despite official efforts to downplay news, Friedman decision represents severe rebuke to ESDC; why did several news outlets ignore it?
Atlantic Yards Report
At the Atlantic Yards arena groundbreaking in March, New York City Mayor Mike Bloomberg soothingly declared, "[N]obody's going to remember how long it took, they're only going to look and see that it was done."
The official line regarding yesterday's ruling by state Supreme Court Justice Marcy Friedman seems similar: "Nobody's going to remember how it got done, they're only going to look and see that it was done."
“Nothing was announced today that’s going to impact construction,” Jeff Linton, a spokesman for Forest City Enterprises, parent of Brooklyn developer Forest City Ratner, told Bloomberg Business Week.
An Empire State Development Corporation (ESDC) spokeswoman--who didn't respond to my queries--told the Brooklyn Paper that the agency was “reviewing today’s ruling, which does not enjoin construction taking place on the Atlantic Yards project.”
Why it's important
Well, it won't stop current construction, but it could impact future construction. And, despite the Brooklyn Paper headline (Yards foes win a big case that will not likely change a thing), the case will, at the very least, provoke the ESDC to issue more findings justifying its ten-year timetable.
That timetable is less and less defensible--and that could lead to additional lawsuits, possibly affecting Phase 2 of the project. The upshot: people can and will very much remember how it got done.
Also, despite attempts to downplay the ruling, it's news when a judge rebukes the ESDC for "what appears to be yet another failure of transparency" and "totally incomplete representations" in legal papers.
In other words, the agency in charge of economic development in the state behaves somewhat like a guy on Craigslist trying to rent you an apartment he doesn't quite own.
Posted by eric at 9:53 AM
Judge sides with Atlantic Yards opponents on environmental review, rips ESDC for 'another failure of transparency'
The Brooklyn Blog [NYPost.com]
by Rich Calder
A state judge today ordered the Empire State Development Corp. to revisit its environmental review for Brooklyn’s Atlantic Yards project, saying the 10-year build-out plan it is working off of isn’t justified and that new findings are needed.
...In today’s decision, Friedman also ripped ESDC for not being forthright and providing her with a copy of the Master Development Agreement.
Related coverage...
7online.com, Judge rips environmental review of Atlantic Yards
A New York judge is ripping into state officials for mishandling the environmental review of the Atlantic Yards project.
Bergen Record, Judge agrees to hear further arguments in Atlantic Yards case
Opponents of the multibillion-dollar Atlantic Yards project — part of which includes the Nets’ new arena planned for a 2012 opening — won a rare court victory Tuesday, when a state Supreme Court justice agreed to accept further arguments in a long-running court case.
Develop Don’t Destroy Brooklyn and other opponents have argued that the Empire State Development Corp. for months withheld from the court that the development agreement had been amended to allow a 25-year build-out for most of the project.
Supreme Court Judge Marcy Friedman agreed in the 21-page ruling, saying that the state agency must offer an explanation why a new environmental review — which could substantially stall the project — is not needed, even though the previous 10-year deadline is no longer in effect.
...Develop Don’t Destroy official Candace Carpenter called on ESDC to “suspend all construction on the project” in light of the ruling.
Prospect Heights Patch, Judge Rules in Favor of Atlantic Yards Critics
In her opinion, Justice Marcy Friedman wrote that the Modified General Project Plan, which says Atlantic Yards developer Forest City Ratner Companies will need far longer to complete the Atlantic Yards development than was initially approved in 2006, raises "a substantial question as to whether ESDC's continuing use of the 10 year build-out has a rational basis."
Bloomberg Businessweek, Atlantic Yards Judge Questions Environmental Review
A New York state court judge ordered Empire State Development Corp. to re-examine whether a further environmental review is needed for the Atlantic Yards project in Brooklyn that will include offices, housing and a sports arena.
...“Nothing was announced today that’s going to impact construction,” Jeff Linton, a spokesman for Cleveland-based Forest City Enterprises, said in a phone interview.
The Brooklyn Paper, Yards foes win a big case that will not likely change a thing
The state agency overseeing the Atlantic Yards mega-development purposefully withheld information on the project’s timetable to avoid having to reexamine the project’s negative impacts, a judge ruled on Tuesday in what appears to be a meaningless victory for foes of Bruce Ratner’s project.
...Still, opponents were glowing over their first major court victory in the seven-year saga to block Bruce Ratner’s 22-acre, 16-tower mini-city sprawling east from the intersection of Flatbush and Atlantic avenues.
...“The record … lacks any expert opinion or analysis of the impact of a potential 25-year delay in completion of the project,” wrote Friedman in her ruling.
NY Daily News (Your Borough), Top state court rips agency over Atlantic Yards timetable
Reuters, NY agency must revisit Atlantic Yards impact: judge
Posted by eric at 9:17 AM
November 9, 2010
Court Slams NY State on Atlantic Yards, Rules For DDDB
Develop Don't Destroy Brooklyn issued the following email appeal shortly after today's court ruling was announced.
While the impact of the Court's ruling is unclear, what is clear is that there is likely to be more legal action by Develop Don't Destroy Brooklyn which will impact the Atlantic Yards project. We are going to need your help:
Please consider a tax-deductible donation to Develop Don't Destroy Brooklyn.
It is getting to be that time for year-end gift-giving. Let's keep the pressure on Bruce Ratner & Co.
Posted by eric at 5:23 PM
Judge Rules in Favor of Develop Don’t Destroy!
Only The Blog Knows Brooklyn
Big News: State Supreme Court Justice Marcy S. Friedman issued a ruling today in favor of Develop Don’t Destroy Brooklyn (DDDB) and other neighborhood groups, criticizing the Empire State Development Corporation (ESDC) for “what appears to be yet another failure of transparency” in its approval of Bruce Ratner’s Atlantic Yards project.
Justice Friedman granted the motion by DDDB and the other petitioners for reargument of her March 10, 2010 position. She held that the December 2009 Master Development Agreement should have been provided to the Court and having now reviewed that agreement, Justice Friedman found that the ESDC did not properly consider the full 25-year schedule.
Related content...
NetsDaily, Critics Win Right to Re-Argue Case, But Arena Construction Will Continue
After more than 30 losses in federal and state courts, critics of the Atlantic Yards project have finally won a case, but the state court decision does NOT halt construction on Barclays Center and is unlikely to slow it down either.
NoLandGrab: "More than 30 losses?" Show us a list. Of course, NetsDaily being a Nets fan blog, it knows from losses.
Posted by eric at 5:12 PM
DDDB PRESS RELEASE: DDDB Wins Atlantic Yards Lawsuit
Court Rejects NY State's Misrepresentations About Completion Of Atlantic Yards, Sending Project Back To Empire State Development Corp For Reconsideration
State Supreme Court Justice Marcy S. Friedman issued a ruling today in favor of Develop Don't Destroy Brooklyn (DDDB) and associated neighborhood groups, slamming the Empire State Development Corporation (ESDC) for "what appears to be yet another failure of transparency" in its approval of Bruce Ratner's Atlantic Yards project.
Justice Friedman granted the motion by DDDB and the other petitioners for reargument of her March 10, 2010 ruling. She held that the December 2009 Master Development Agreement should have been provided to the Court and having now reviewed that agreement, Justice Friedman found that the ESDC did not properly consider the full 25-year schedule. Justice Friedman has sent the case back to ESDC for reconsideration, requiring the ESDC to provide a "detailed, reasoned basis for [its] findings."
"We are thrilled with the Court's decision," said, Candace Carponter, Esq., chair of DDDB's Legal Committee. "It has laid bare the pattern of lies and deception by ESDC and Forest City Ratner that underlie this project. We have always contended that the project will take decades to complete, if ever and the supposed public benefits of affordable housing and open space would never happen. Instead we are faced with decades of developer created blight in an area that may never be redeveloped due to ESDC's and FCRC's malfeasance."
DDDB argued that ESDC had violated the State Environmental Quality Review Act (SEQRA) when it considered a 10-year time frame for completion of the project, despite contract documents which demonstrated a 25-year schedule. ESDC had argued that it would require Forest City Ratner Companies (FCRC) to use "commercially reasonable efforts" to complete the project by 2019. DDDB argued that the only contractual agreements between ESDC and FCRC had penalties and some guarantees for some of Phase I of the project, but there were essentially no guarantees for Phase II and it might never be built. Since most of the purported public benefits (affordable housing, open space, new school space) were included in Phase II, it affected the SEQRA determination.
In today's decision, Justice Friedman chastised ESDC for not being forthright to the Court and not providing her with a copy of the Master Development Agreement and for arguing at the January 2010 hearing that there were meaningful obligations in the development agreement, when they knew that was not case. Given the fact that ESDC misrepresented the facts to the Court and that the ESDC Board did not ever consider the 25-year schedule when it issued its SEQRA decision in September 2009, the Court has sent the matter back to ESDC to reconsider its decision.
Ms. Carponter continued, "Justice Friedman's decision puts the entire project in doubt. ESDC approved the project as an integrated development with a variety of alleged benefits. ESDC cannot proceed with just an arena or only with Phase I without considering the lasting effects of the resulting blight caused by FCRC. Such a truncated project is not what was contemplated or approved by New York State. We call upon ESDC to suspend all construction on this project which is so wasteful of public resources and consider a feasible and comprehensive development that is consistent with the surrounding area."
DDDB co-founder Daniel Goldstein said, "With today's ruling it is more evident than ever that the new Governor has a job to do with the Atlantic Yards debacle. The blight Ratner has created in Prospect Heights, Brooklyn can be fixed if Governor Cuomo is willing to take the much needed fresh look at Atlantic Yards that today's Court ruling demands."
"The Court properly found that ESDC misrepresented the facts of the contracts and there were no requirements that FCRC complete the project" said DDDB lead counsel Jeffrey S. Baker of the Albany, New York law firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC. "ESDC's lack of transparency was not just with respect to its own deliberations, but extended to trying to hide material facts from the Court. We are very pleased that Justice Friedman did not tolerate that behavior."
Posted by eric at 5:00 PM
BrooklynSpeaks Press Release: Court says State failed to properly consider impacts of extended Atlantic Yards construction
Today, New York State Supreme Court Justice Marcy Friedman found that the Empire State Development Corporation (ESDC) unreasonably failed to properly assess the impacts of twenty-five years of extended construction at the Atlantic Yards site in Brooklyn. Judge Friedman’s ruling was entered following a motion by BrooklynSpeaks petitioners to reargue an earlier decision by the Court in favor of ESDC and Forest City Ratner Companies (FCRC). The BrooklynSpeaks petitioners asked Judge Friedman to review the Development Agreements executed subsequent to the ESDC’s approval of the Modified General Project Plan but which were withheld from public disclosure until after oral argument on the petitioners' original motion.
In her opinion today, Judge Friedman echoed BrooklynSpeaks’ concern, stating “The Development Agreement has cast a completely different light on the Project build date. Its 25 year outside substantial completion date for Phase II and its disparate enforcement provisions for failure to meet Phase I and II deadlines, read together with the renegotiated MTA Agreement giving FCRC until 2030 to complete acquisition of the air rights necessary to construct 6 of the 11 Phase II buildings, raise a substantial question as to whether ESDC’s continuing use of the 10 year build-out has a rational basis.” The Court accordingly ordered ESDC to reassess its reliance on the 10-year build out schedule in failing to prepare a Supplemental Environmental Impact Statement for the 2009 MGPP.
“The BrooklynSpeaks sponsors hail the court’s decision as a victory for all of the communities who have been shut out of the Project’s decision-making process. It vindicates years of concerns expressed by the communities surrounding Atlantic Yards that the State of New York never properly assessed the impacts of this Project, and seems to have labored mightily to avoid doing so,” said Jo Anne Simon, Democratic Leader of Brooklyn’s 52nd District.
Said Gib Veconi of the Prospect Heights Neighborhood Development Council, “The Atlantic Yards Modified General Project Plan (MGPP) varied so drastically from the plan initially approved by the ESDC in 2006 that it could not escape the notice of the Court, and the decision today has confirmed that the Empire State Development Corporation must disclose the impacts of the Atlantic Yards project it agreed to, not the one it wishes would be built. Until ESDC provides an appropriate response, the petitioners will seek to enjoin so-called ‘interim’, but blighting, project features, such as the razing of existing buildings in the Phase II footprint to create giant surface parking lots.”
“We expect the Empire State Development Corporation (ESDC) to perform a full, serious, and unbiased environmental review based on conditions in the neighborhood at the time of announcement of the Atlantic Yards project, and considering the outside completion dates to which the agency is willing to agree,” said Michael Cairl, President of the Park Slope Civic Council. Added Howard Kolins, President of the Boerum Hill Association, “We further call on the Legislature and the Governor of the State of New York to implement oversight controls for this Project commensurate with its size and the amount of public subsidy it is to receive.”
Posted by eric at 4:38 PM
Justice Friedman slams ESDC for "yet another failure of transparency," says 10-year buildout wasn't justified, requires ESDC to make new findings
Atlantic Yards Report
The Atlantic Yards story just got a little more interesting.
Citing "what appears to be yet another failure of transparency" on the part of the Empire State Development Corporation (ESDC), a state Supreme Court justice today handed Atlantic Yards opponents and critics their first clear-cut victory.
Justice Marcy Friedman ruled (decision below) that, while the ESDC claimed that a ten-year buildout of the project was reasonable, it failed to address the impact of the Development Agreement, which it had kept under wraps and which allows 25 years before penalties kick in for the project as a whole.
What's the impact?
The impact of her ruling, however, may not fundamentally change anything. Friedman did not stay construction of the arena or associated infrastructure.
She granted the motions of the petitioners--groups associated with Develop Don't Destroy Brooklyn and the Prospect Heights Neighborhood Development Council--and 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."
Presumably, the ESDC will find a way to justify its decisions--despite the recent acknowledgment by Forest City Ratner that the ten-year buildout was a best-case scenario.
Then again, it may be tougher to make such justifications--thus opening up the possibility of more litigation.
Read on for Norman Oder's top-line analysis of this breaking story, which he'll be adding to as more reaction comes in.
NoLandGrab: What say you, Governor-elect Cuomo? The Status Cuomo, or something different?
Posted by eric at 1:11 PM
October 14, 2010
New York Appellate Judge James Catterson: “there is no longer any judicial oversight of eminent domain proceedings”
Reason Hit & Run
by Damon Root
All of which brings us to yesterday’s unanimous appellate court ruling in Matter of Uptown Holdings v. City of New York. As befits a lower court, the judges consider themselves bound by the precedents set by the state’s highest court. What does that mean in practice? Here’s the entirety of Judge James Catterson’s depressing and all-too-accurate concurring opinion:
In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp. (2009) and Matter of Kaur v. New York State Urban Dev. Corp. (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.
As I noted in a column last month, the victimized property owners in the Columbia University case have now asked the U.S. Supreme Court to review New York’s actions (the Court refused to hear the Atlantic Yards case in 2008). Judge Catterson’s opinion is yet more evidence why the Supreme Court needs to start paying attention to New York’s eminent domain abuse.
Posted by eric at 10:40 AM
October 13, 2010
Justice Catterson, forced to defer to the condemnors, concludes that "there is no longer any judicial oversight of eminent domain proceedings"
Atlantic Yards Report
A law review article I co-authored this spring with Amy Lavine argues that judges have become too deferential to condemning agencies and don't examine eminent domain sufficiently:
The courts have repeatedly used the principle of legislative deference to pass on the difficult issues—such as whether an arena is really a public good, whether private developers should be able to dictate that public good, the meaning of “blight,” and when a project changes so much as to require reapproval.
A judge reinforces the argument
Yesterday (as per DDDB), Appellate Division Justice James Catterson let loose with a blistering coda to that argument, concurring reluctantly in a decision upholding eminent domain:
In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp., 13 NY3d 511 [the Atlantic Yards case] and Matter of Kaur v. New York State Urban Dev. Corp., 15 NY3d 235, [the Columbia University case] (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.
Catterson background
Catterson is noted for some forceful opinions in cases related to the two above.
NolandGrab: Again we ask — can someone tell us under what circumstances New York State can't seize property through its power of eminent domain?
Posted by eric at 11:53 AM
September 27, 2010
Petition asking Supreme Court to hear challenge to eminent domain for Columbia argues that Court of Appeals failed to address Kelo
Atlantic Yards Report
As plaintiff Nick Sprayregen of Tuck-It-Away Storage pledged, he'd go to the U.S. Supreme Court to fight the state's pursuit of eminent domain in the Columbia University.
Now, after seeing a surprising Appellate Division victory overturned unanimously by the state Court of Appeals, which relied on its Atlantic Yards decision, Sprayregen and the Kaur/Singh family that owns a gas station on the project site have filed their Petition for a Writ of Certiorari (below), the request for the court to hear the case.
It's always a long shot--fewer than 1% of petitions are granted--but this petition, authored by attorney Norman Siegel and a host of others, hammers home the state court's failure to address the guidelines seemingly set forth in Justice John Paul Stevens's majority opinion and Justice Anthony Kennedy's concurrence in the 2005 Kelo v. New London case, in which the court upheld eminent domain by a 5-4 margin.
Ignoring Kelo?
The petition states:
In sharp contrast to the situation in Kelo, in which a municipal agency adopted a “carefully considered” development plan which had no preselected private beneficiary, ESDC worked backwards, pre-ordaining Columbia as the beneficiary of its eminent domain power. Having settled on this, ESDC endorsed a plan, developed behind closed doors by Columbia itself, to transfer private property to Columbia in furtherance of the university’s expansion dreams. ESDC then collaborated with Columbia to devise after-the-fact traditional public purposes to justify the takings, and even allowed Columbia to create the very blight-like conditions that ESDC then proposed to remediate.
The use of eminent domain here was thus a fait accompli meant to circumvent any obstacles to the realization of Columbia’s private agenda. A two-judge plurality of New York's appellate court recognized that the takings were unconstitutional under Kelo, and a third judge joined the plurality to hold that the condemnation was invalid because ESDC had violated petitioners’ due process rights. New York's highest court, the Court of Appeals of New York (“Court of Appeals”) nonetheless reversed, upholding ESDC's actions in a 34-page decision that never once mentioned Kelo.
Posted by eric at 9:47 AM
September 23, 2010
"Really no hope" for AY opponents? Well, not from Gerges, but...
Atlantic Yards Report
The headline on the Observer's summary of the two Atlantic Yards court decisions reported this morning is Really No Hope For Atlantic Yards Opponents.
While there wasn't much hope that Kings County Supreme Court Justice Abraham Gerges would seriously grapple with the changes in the project, there remains some hope that the other extant case, yet to be ruled on by New York County Supreme Court Justice Marcy Friedman, will yield... something.
Yes, it's a longshot to expect Friedman, who's still considering a reargument of a case challenging the project timeline, to order the Empire State Development Corporation (ESDC) to issue a Supplemental Environmental Impact Statement.
However, given her demeanor in court June 29, given that Friedman chastised the ESDC in her March ruling for a "deplorable lack of transparency," and given that she allowed a reargument, there's a good bet she'll be a bit tougher on the ESDC than was Gerges.
NoLandGrab: Tougher? Don't hold your breath.
Posted by eric at 10:29 AM
Really No Hope For Atlantic Yards Opponents
NY Observer
by Matt Chaban
There was something devilishly brilliant to how Daniel Goldstein, Develop Don't Destroy Brooklyn, and a handful of lawsuits nearly brought down the massive $4.9 billion Atlantic Yards project. For years, the arena cum condos were held off by one suit after another, first at the federal level, then in the state courts. The legal challenges went on for so long that when the recession hit, it nearly killed the damn thing. (Someone should really write a book about all this.)
Obviously, it didn't work, as the project found a savior in Russia, broke ground in March, and the arena is (maybe) on its way to opening in time for the 2012-2013 basketball season.
Still, there are a few remaining court cases to unwind, and as the indefatigable Norman Oder reports today, two of them have been tossed out by the Brooklyn Supreme Court. On Monday, Justice Abraham Gerges yet again ruled that the state was justified in its use of eminent domain at the Atlantic Yards site. The particulars of the case charged that the Empire State Development Corporation needed to file a new set of Determinations and Findings because the project had changed so much.
As before, Yards opponents could take some small consolation from the judge's decision, in that he essentially said what the state did was a terrible thing, but it not being the judiciary's place to overrule the legislature (and its constitutionally mandated subsidiaries, like the ESDC), there was really nothing he could do about it....
Related coverage...
NetsDaily, Arena Critics Lose Again...and Again
Barclays Center construction continues apace with Bruce Ratner telling friends it's on schedule for completion in late spring/early summer 2012. At the same time, the same Brooklyn judge who pushed Daniel Goldstein to sell out back in April dismissed two of the last challenges to the arena on Monday.
Posted by eric at 10:17 AM
September 22, 2010
Gerges dismisses final eminent domain challenge: "alleged additional changes... even if factually true... do not change the public purpose"
Atlantic Yards Report
This case, on the other hand, was the small, final hope for stopping Atlantic Yards through an eminent domain challenge.
So much for charges that the Atlantic Yards Development Agreement--which allows for 25 years, rather than ten, to build the project-- "was intentionally withheld in bad faith."
So much for attorney Matthew Brinckerhoff's assertion that "we now know [the ten-year project timetable] is complete, utter fantasy."
So much for Brinckerhoff's charge that the Empire State Development Corporation (ESDC) timed release of information to avoid judicial scrutiny.
In a decision that was hardly unexpected, Brooklyn Supreme Court Justice Abraham Gerges on September 20 dismissed a lawsuit--Article 78 Petition to Compel the ESDC to Issue New Determinations and Findings, with three remaining plaintiffs--arguing that the project had changed so much and the public benefits so attenuated that new eminent domain findings should be made.
(This was the final case challenging eminent domain. Supreme Court Justice Marcy Friedman is still considering a reargument of a case challenging the project timeline.)
Development Agreement not important
Gerges had already rejected most of the arguments in March, in a decision in a case challenging the ESDC's condemnation process.
But the Development Agreement had not been part of that case. No matter. His key paragraph in the new decision:
For the same reasons, the court further finds that the alleged additional changes to the Project that petitioners rely upon in this action, even if factually true, similarly do not change the public purpose to be served by the Project, i.e., to eliminate blight and the blighting influence of the below-grade rail yard and to construct a civil [sic] project. In this regard, it is noted that although the alleged changes to the Project are now discussed in more detail, based upon the assertion that more details have been revealed, the basic premise of the arguments have already been considered and rejected by the court in the Condemnation Decision and adopted herein.
(Emphasis added)
This raises a question: could even more extreme changes, "if factually true," change the public purpose? In other words, if the developer had 100 years to eliminate blight, with no effective penalties, would the public purpose be attenuated?
NoLandGrab: Justice isn't just blind in New York State — it's deaf and dumb, too.
Posted by eric at 11:00 AM
Gerges dismisses case claiming state had failed to condemn easement over Spalding Building
Atlantic Yards Report
Brooklyn Supreme Court Justice Abraham Gerges on September 20 dismissed a claim by Peter Williams Enterprises (PWE) regarding air rights above 24 Sixth Avenue (the Spalding Building), agreeing with the Empire State Development Corporation that PWE released such rights when it sold its own nearby property, the one-story 38 Sixth Avenue and that the exercise of eminent domain "extinguished all easements."
Williams had publicly said that he had brought the claim for money and his attorney asserted that the state had made a "colossal mistake" in not specifying that the easement was subject to eminent domain.
In court arguments on August 6, there was a small twist, suggesting there might be something to PWE's claim. While the ESDC's appraisal to PWE covered the building and the easement, the sums were lumped together in the offer to PWE. But Gerges didn't address that directly.
NoLandGrab: With Peter Williams more interested in money than righteousness, this case held zero hope for opponents of Atlantic Yards from the get-go.
Posted by eric at 10:57 AM
New Bill Would Create Atlantic Yards Oversight Body
BrooklynSpeaks Press Release via Brooklyn Daily Eagle
BrooklynSpeaks, a coalition of civic associations, advocacy groups and affordable housing organizations concerned about development at the Atlantic Yards site, yesterday announced that more 1,000 New Yorkers have signed a petition calling for legislation mandating public oversight of the project.
Bills introduced into the state assembly by Assemblyman Hakeem Jeffries (A11431) and into the state Senate by Sen. Velmanette Montgomery (S08193) require the Empire State Development Corporation to create a dedicated subsidiary responsible for governance of the Atlantic Yards’ development, now expected to extend as long as 25 years.
“As the largest development project in Brooklyn’s history, Atlantic Yards must be managed with no less transparency and accountability than other important state and city projects, like Brooklyn Bridge Park,” said Assemblyman Jeffries, who represents most of the Atlantic Yards footprint. “We will not accept a private developer being given sole decision-making power over this project’s future given the significant public investment that has been made.”
...The Atlantic Yards Governance Act has passed the Corporations Committee in the Assembly, and is currently before Ways and Means. The bill is before the state Senate’s Rules Committee.
Related coverage...
Atlantic Yards Report, BrooklynSpeaks: another push for governance bill, as "important first step"
According to a press release from the BrooklynSpeaks coalition (reprinted by the Brooklyn Eagle under the helpfully transparent byline of "Press Release"), more than 1,000 New Yorkers have signed a petition calling for legislation mandating public oversight of the project.
The key line in the statement is "important first step." As I wrote in June, the legislation last year had clear roles for local appointees, while the structure now proposed is vague, likely leaving more centralized power.
And this year the Empire State Development Corporation supports the legislation, though developer Forest City Ratner has not issued any statement.
Posted by eric at 10:21 AM
September 2, 2010
Law review article: "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project"
Atlantic Yard Report
Atlantic Yards has survived all court challenges, but some of the wins have been ugly, leaving significant doubts about the capacity of the legal system to oversee such projects. So let the revisionism begin. (Cf. a line from the New York Times on Atlantic Yards.)
In the same issue of The Urban Lawyer that contains a revisionist article on the seminal Berman v. Parker eminent domain case, the author of that article, Amy Lavine, a staff attorney at Albany Law School's Government Law Center, and I collaborate on an article titled "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project."
The article is embedded at bottom. Lavine did the first draft, and offered me credit because she relied so much on my work. I collaborated significantly on revisions. (Note Lavine's disclosure--unknown to me until this article--that she "provided limited research for Develop Don’t Destroy Brooklyn’s state eminent domain and MTA lawsuits.")
(The quarterly journal is published by the American Bar Association Section of State and Local Government Law, and edited by professors and students at the University of Missouri-Kansas City School of Law.)
Below I offer some choice excerpts.
Click through for those excerpts, as well as access to the full paper.
Posted by eric at 10:27 AM
August 11, 2010
Surreal morning in court: finally, belatedly, a wholesale assault on the Atlantic Yards project, but before a detached judge
Atlantic Yards Report
Here's Norman Oder's must-read coverage of yesterday's Atlantic Yards hearing in Brooklyn Supreme Court.
It was, actually, a little surreal.
Yesterday in Kings County Supreme Court emerged the most complete—and, to the Empire State Development Corporation (ESDC), completely off-base—assault on the Atlantic Yards project ever heard in any courtroom, but it occurred before a handful of spectators and a single, not-so-engaged judge, well after most people, officials, and editors had relegated Atlantic Yards to the status of old news.
The case involves only three plaintiffs (two of whom are corporate entities owned by longtime footprint property owner Henry Weinstein), none of whom were in the courtroom. However, in challenging the ESDC to issue a new Determination & Findings because the justifications for eminent domain had changed markedly since 2006, it was essentially a challenge to the project itself. Supreme Court Justice Abraham Gerges faced dueling motions to both dismiss the case and expand the record.
With charges that the project timetable is “a complete fantasy” and the project is “a betrayal of the public trust” and “an embarrassment to democracy,” it was, perhaps, the argument that attorney Matthew Brinckerhoff should’ve made last October before the Court of Appeals, the state’s highest court, in a stately setting before engaged judges and a packed house. But, rather than get to the fundamentals of the sweetheart deal, that oral argument ran aground on debates about the contours of the state’s public use clause and whether the case should have gone to the high court in the first place.
Also, as Brinckerhoff stressed yesterday in court, some of the key elements of the ESDC’s behavior came to light only after the Court of Appeals’s decision in November, as well as the previous, seemingly dispositive appellate ruling: “They timed their disclosures in order to avoid judicial review.”
ESDC attorney Philip Karmel, unbowed, responded forcefully and sometimes dismissively to Brinckerhoff’s kitchen-sink arguments, some of which were not exactly on point. Curiously enough, however, Karmel never explained why the crucial Development Agreement, released in January weeks after it was publicly promised, was withheld for so long.
...Starting off
Brinckerhoff began by thanking Gerges for giving him the time to argue and “for taking this matter seriously,” a statement that seemed a bit aspirational, aiming to goad Gerges into doing exactly that.
Brinckerhoff said he was acting for his clients, for all those affected by the project, and “frankly, for the public at large,” who’ve suffered “a really profound betrayal of the public trust by the respondent Urban Development Corporation [aka ESDC] in league with the developer.”
...“Let me be clear about what I’m attempting to do,” declared Brinckerhoff, whose pepper-and-salt beard and sometimes unruly curls give him somewhat more of a professorial than corporate air, though his boutique law firm does quite well. “There’s a whole set of facts found in the document,” and none of such new information was disclosed until after the petition in this case was filed in January. Such facts, “put the nail in the coffin on what’s been going on for years.”
And that, he said, is why his clients should be granted, at a minimum, leave to amend the record to add such facts “deliberately concealed from us."
Related coverage...
Develop Don't Destroy Brooklyn, In Court Argument Atlantic Yards Called An Embarrassment Of Democracy
DDDB attorney Matthew Brinckerhoff took roughly on hour in court yesterday to lay out the "highlights" of the whole sordid Atlantic Yards partnership between Ratner and the ESDC. As Brinckerhoff said, if he was to cover all of the history, which he called an "embarrassment of democracy," it would have taken days.
Posted by eric at 9:58 AM
August 9, 2010
In court Tuesday, a continuation of the lawsuit charging that AY benefits have changed so much the eminent domain findings should be reissued
Atlantic Yards Report
It looks like not one but two judges will have to grapple with a fundamental charge regarding Atlantic Yards: that the project has changed so much since its approval in 2006 that the findings at that time--regarding both the environmental impact of the project and its expected benefits--are no longer valid.
That doesn't mean the judges will rule in favor of those challenging the Empire State Development Corporation (ESDC). That, we've learned, is not exactly how courts in New York State work.
But it does mean they have to think about it. And tomorrow, in state Supreme Court in Brooklyn, Justice Abraham Gerges--however distracted and uninterested he was during the first part of the case on August 6--should not think the issues were resolved in similar case he dismissed in March.
(The hearing will be at Kings County State Supreme Court, IAS Part 74, 320 Jay Street, Room 17.21, Brooklyn. Here's the map.)*
NoLandGrab: Is it really too much to ask that Judge Gerges pay attention to the arguments?
* The hearing is scheduled to commence at 10 a.m.
Posted by eric at 10:18 AM
August 7, 2010
Atlantic Yards Friday Court Action
Atlantic Yards Report
Two different cases related to Atlantic Yards were heard together yesterday. Norman Oder was there and lets us know what transpired.
The Atlantic Yards Development Agreement "was intentionally withheld in bad faith."
"We now know [the ten-year project timetable] is complete, utter fantasy," declared petitioners' attorney Matthew Brinckerhoff .
Finally, in court yesterday, some serious charges were lodged about the essence of the Atlantic Yards project, part of the case challenging the Empire State Development Corporation's (ESDC) eminent domain Determination & Findings (D&F), based on the premise that the project had changed so much that the ESDC had to reassess its goals and value.
And previous court cases, limited to the record of Atlantic Yards as of 2006, were unable to examine the true nature of the project.
After a late start in state Supreme Court yesterday morning in Brooklyn--the two Atlantic Yards cases were set for 9:30 am, but state Supreme Court Justice Abraham Gerges didn’t arrive until 10:10--the case involving the easement held (and still claimed) by Peter Williams Enterprises (PWE) was heard.
And while the arguments mostly reprised those in the legal papers--that PWE had given up any claim to the light and air above 24 Sixth Avenue (the Spalding Building) when it sold its own property, 38 Sixth Avenue--there was a small twist, suggesting there might be something to PWE's claim.
The conclusion of this blog entry suggests that Judge Abe Gerges will broker a settlement.
Gerges said he wanted to get the parties together to perhaps work something out. They’re due back in court on Thursday, August 12 at noon.
Posted by steve at 2:31 PM
August 6, 2010
In court today, likely the last oral arguments in the remaining Atlantic Yards legal cases (new Determination & Findings; air rights easement)
Atlantic Yards Report
Likely the last oral arguments in any of the latest round of Atlantic Yards legal cases will be held this morning before Kings County Supreme Court Justice Abraham Gerges, at 9:30 a.m.
The location is Kings County State Supreme Court, IAS Part 74, 320 Jay Street, Room 17.21, Brooklyn. Here's the map.
Both cases are distinct longshots for those challenging the Empire State Development Corporation (ESDC), but still could provoke some interesting volleys. Both cases are named for property owner Peter Williams, but he actually doesn't remain a party in the first case.
New Determination & Findings?
In June, as I wrote, in a brief, five-page decision in the case known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), state Supreme Court Justice Marcy Friedman essentially rejected a challenge by property owners that the Atlantic Yards project has changed so much that the ESDC should be forced to issue a new Determination & Findings to proceed with eminent domain.
Friedman did not formally reject the case, because she didn't examine the Development Agreement or get to the merits.
Instead, she moved it from New York County (Manhattan) to Kings County, as the ESDC had requested. In Kings County, Justice Abraham Gerges, who handles condemnations, already rejected similar arguments when rejecting a direct challenge from property owners to the condemnations.
...The remaining petitioners are two entities owned by Henry Weinstein, a longtime owner of property near the corner of Carlton Avenue and Pacific Street, and The Gelin Group, occupants of a house on Dean Street east of Sixth Avenue, slated for condemnation in a later phase of the project.
Friedman is still considering a separate case, brought by coalitions organized by Develop Don't Destroy Brooklyn and BrooklynSpeaks, challenging the legitimacy of the ESDC's ten-year timeframe and requesting a Supplemental Environmental Impact Statement to evaluate project impacts over a longer period.
In that case, she did consider the belatedly-released Development Agreement.
Posted by eric at 9:28 AM
Friday, August 6, 9:30AM. Atlantic Yards Oral Argument
Develop Don't Destroy Brooklyn
Friday, August 6.
PLEASE NOTE: Time has changed to 9:30 AM, not 10AM.Kings County State Supreme Court
IAS Part 74
320 Jay Street, Room 17.21
Brooklyn
[ MAP ]Oral argument on: Peter Williams Enterprises, Inc et al. v. Empire State Development Corporation
Article 78 Petition to Compel the ESDC to Issue New Determinations and Findings Under the New York State Eminent Domain Procedure Law
(Filed January 19, 2010 in Manhattan State Supreme Court)
Posted by eric at 9:05 AM
July 1, 2010
Atlantic Yards Challenge Heard in Manhattan Supreme Court
The Local [Fort Greene/Clinton Hill]
by Mitchell Trinka
In mid-April the Prospect Heights Neighborhood Development Council, a group of neighborhood organizations concerned about local development, filed a motion that asked the New York State Supreme Court to reconsider a decision in January that maintained approval of the Atlantic Yards 2009 modified general project plan. On Tuesday lawyers from both sides had their chance to offer oral arguments in Manhattan Supreme Court.
Gib Veconi, a member of the development council board that filed the motion, said that changes in the project’s construction schedule were at the heart of the suit. The schedule expanded from ten years until completion in the original plans, to a possible 25 years. It was a time line not released to the public until after a decision came in favor of Atlantic Yards in late January, he said.
“That means a large area of the project footprint would be used as a parking lot for decades,” Mr. Veconi said.
Posted by eric at 11:51 AM
June 30, 2010
Is ten-year AY schedule reasonable? Judge puts ESDC on the defensive as Development Agreement is scrutinized in 75-minute reargument
Atlantic Yards Report
Norman Oder has an in-depth report on yesterday's Atlantic Yards court hearing.
In an unusual reargument of a case that was argued January 19 and decided March 10, a lawyer for the Empire State Development Corporation (ESDC) was put on the defensive yesterday, forced to acknowledge that there are far fewer penalties for delays in completing the Atlantic Yards project as a whole than those for the first phase, which includes the arena and three towers.
Will it make a difference? It’s hard to predict a yes, given that courts generally defer to agencies like the ESDC.
But the fact of the reargument itself--and the uncomfortable facts in the belatedly-released Atlantic Yards Development Agreement--suggest that, at the least, New York County Supreme Court Justice Marcy Friedman will chastise the agency, if not order a Supplemental Environmental Impact Statement (SEIS) or otherwise throw a wrench into the project.
After all, in her March 10 ruling Friedman criticized the ESDC’s “deplorable lack of transparency” and acknowledged that the ESDC’s use of a ten-year timeframe for the project buildout in the Modified General Project Plan (MGPP) was supported “only minimally.”
The MGPP, approved last September, was amplified and modified by the Development Agreement, signed in December but released in January. And yesterday Friedman steadily put ESDC lawyer Philip Karmel through a careful cross-examination.
75-minute hearing
At the outset of the hearing, Friedman said she’d allow only 40 minutes of argument, but she spent 75 minutes listening to and questioning Karmel and lawyers for two groups of community petitioners. The latter had asked her to reconsider the ruling that the project's ten-year timeline was legitimate and that an SEIS was not necessary.
Key to the motion for reargument is the Development Agreement, which was not released until about a week after the oral argument in January--despite a pledge to release it earlier--and which Friedman had refused to add to the case.
Though Atlantic Yards may seem like a done deal--eminent domain was approved months ago and (perhaps not coincidentally) Forest City Ratner announced yesterday that concrete had been poured for the Atlantic Yards arena--attorneys for the ESDC and FCR evinced some tension, a sign that the courts remain a wild card.
Posted by eric at 9:58 AM
June 29, 2010
Motion to Reconsider Atlantic Yards in Court Tuesday
Brooklyn Daily Eagle
by Ryan Thompson
Tuesday a Manhattan Supreme Court justice will hear oral arguments on a Motion to Reconsider the approval of the multibillion-dollar Atlantic Yards project in Downtown Brooklyn.
...Years of litigation has plagued and delayed developer Forest City Ratner from building Atlantic Yards on schedule, as lead opposition group, Develop Don’t Destroy Brooklyn, challenged the state’s controversial use of eminent domain to take the land from private homeowners and businesses in the project’s footprint. The group BrooklynSpeaks claims that the new evidence consists of a master development agreement that was allegedly executed between Forest City Ratner and other parties in the Atlantic Yards project, after the Empire State Development Corporation had already agreed to approve the Modified General Project Plan.
That agreement was withheld from public disclosure until after the hearing in the case, the petitioners claim. While several lawsuits challenging Atlantic Yards remain pending, few legal analysts believe that any pose a real threat to stopping the project, now that the eminent-domain lawsuits are over.
Posted by eric at 10:12 AM
Was there an "appeal" to the Appellate Division in the Columbia eminent domain case? The Court of Appeals gets it wrong
Atlantic Yards Report
Shhhh! Geniuses at work.
After watching the oral argument June 1 in the eminent domain case involving the Columbia University expansion, I suggested that Court of Appeals Chief Judge Jonathan Lippman was being either incredibly ignorant or faux-naive when he asked if there is "statutorily-provided discovery in this kind of situation."
The answer, of course, is no, and that's why the law favors condemnors more than in any other state.
Deference, and new law
The court's decision last week offered deference to the Empire State Development Corporation's (ESDC) blight findings.
Also, as attorneys at ESDC co-counsel Sive, Paget & Riesel admit, it created new law by "holding that 'civic projects' under the UDC [Urban Development Corporation] Act are not limited to public institutions, and may in fact include projects proposed by private educational institutions."
(What about trade schools and Shoot the Freak?)
Actual ignorance
It also included a line that was not faux-naive but rather incredibly ignorant:
There's no appeal to the Appellate Division in eminent domain cases.
Under the Eminent Domain Procedure Law, that's where cases start, which is why there's no "statutorily-provided discovery." They should've gotten that right.
NoLandGrab: Based on the ruling by the Court of Appeals in the Columbia case, we're just curious about when it's not appropriate to use eminent domain in New York State?
Posted by eric at 9:54 AM
Oral argument today in motion to reargue Atlantic Yards timetable case
Atlantic Yards Report
I wrote on June 23 about the effort to get the belatedly-released Development Agreement to be considered as part of the record.
Here are the messages from Develop Don't Destroy Brooklyn and BrooklynSpeaks, both of which organized petitioners.
DDDB said:
If, as the Court ruled, the ESDC's rationale was "only minimally" supported before, it would seem that that minimal support erodes entirely due to the facts subsequently revealed in the Atlantic Yards Development Agreement.
BrooklynSpeaks said:
Judge Friedman's decision to proceed with oral arguments on the sponsors' motion to reconsider represents an important opportunity to put before the court new information from the development agreement indicating the 2009 MGPP failed to address impacts of the Atlantic Yards project that ESDC knew were not only possible, but likely. Members of the community are encouraged to join us for the June 29 hearing.
Posted by eric at 9:46 AM
Tuesday, June 29: Oral Argument on Thorny Atlantic Yards Legal Issue
Develop Don't Destroy Brooklyn
While Forest City Ratner has gained control of the arena site (by abusing eminent domain and a sweetheart deal with the MTA) and started excavation for the arena, there is still a thorny legal issue concerning the timeframe of the project and the resulting environmental impacts.
Oral argument on that thorny legal issue will take place on Tuesday, June 29th at 11am on the case DDDB et al. v. ESDC. The argument is on the plaintiffs' motion asking the court to reconsider and reargue their challenge to the state's September 2009 approval of the Atlantic Yards Modified General Project Plan.
Judge Marcy Friedman had ruled for the ESDC (Empire State Development Corporation). But the plaintiffs, DDDB and 19 other community groups, as well as BrooklynSpeaks, asked the court to allow reargument in light of new, critical evidence found in the Atlantic Yards Development Agreement between ESDC and Ratner, which had been made public only after the case was argued. Put more simply—the ESDC purposely held back key documents from the legal record.
Details on the oral argument:
Tuesday, June 29. 11 AM
60 Centre Street, Room 335
ManhattanPlease take some time out of your day, if possible, to attend the hearing. (Arrive a bit early to get through security.)
Posted by eric at 9:26 AM
June 25, 2010
NY's Highest Court Upholds Columbia University Expansion Plan
WNYC Radio
by Matthew Schuerman
The state's highest court has unanimously rejected a lawsuit by two West Harlem businesses that challenged Columbia University's $6.3 billion expansion plan. The university controls the overwhelming majority of the 17 acres where it wants to build a third campus, and has already begun digging sewage trenches and demolishing buildings. The Court of Appeals decision will allow the university to proceed more confidently while also putting to rest a decision from an appeals court that sided in favor of the property owners.
...Nick Sprayregen, the owner of a self-storage company that was one of the two plaintiffs, said he is considering taking the case to the U.S. Supreme Court. "It means that entities such as Columbia or a developer can bring on their own blight into a neighborhood and then benefit from it," Sprayregen said. "It really has far-reaching consequences and none of it is positive."
Additional coverage...
Joshing Politics, NY Top Court Fails On Eminent Domain Yet Again
Allowing a wealthy developer to take the homes of a neighborhood to profit from condos and a basketball arena under the guise of community development was bad enough. Now New York's top court, the Court of Appeals, is bending for the will of an economic giant and against small businesses that stand in their way. We are talking of course, about the private Columbia University, the largest land owner in Uptown Manhattan versus the few business owners that stand in their way of a major campus expansion.
To be clear, nothing is standing in the way of Columbia's major campus expansion. The properties owned by the Singhs and Nick Sprayregen stand only in the way of a contiguous expansion.
Instead of claiming the arguments shown above, the Court should come clean, and admit to what's really behind all this. When push comes to shove, the rich are given deference over those that are not. Campaign donations from those that can afford it are used to unfairly sway those that are elected to serve the people. Ultimately, the judges fall in line and make flimsy excuses for allowing this shameful practice to continue.
AP, NY's top court upholds Columbia expansion plan
Three businesses in the project zone sued. They claimed collusion between the school and state agency, arguing that findings of blight were based on vermin, garbage and mold in buildings Columbia owned. Attorney Normal Siegel argued the university should not be rewarded for that with the forced sale of others' property.
Siegel said he expects his clients to seek a review by the U.S. Supreme Court.
"We respectfully disagree with the reasons, the analysis and the conclusion," he said. "At minimum this should be a wakeup call for the people in New York regarding the abuse of eminent domain. It calls out for major legislative reform."
Crain's NY Business, Columbia wins key legal battle on expansion
The Singh and Sprayregen families, who combined own about 9% of the area Columbia wants to redevelop, sued the ESDC to block it from condemning their property. Columbia owns the lion's share of the rest of the land, although the city also owns a portion. The families had alleged, among other charges, that there was no evidence of blight in the neighborhood until Columbia started buying up buildings and letting them fall into disrepair. A finding of blight is necessary for the use of eminent domain. The families also alleged that there was collusion between Columbia and the ESDC, and that they acted in bad faith.
Gotham Gazette, Seizure Power
The ruling is the latest victory for the state and city as they have declared property blighted so that another private owner can develop it for another, purportedly better use. In earlier rulings, the courts also upheld the state’s use of eminent domain in clearing the way for Bruce Ratner’s Atlantic Yards complex in downtown Brooklyn.
Faced with such decisions, some advocates have called for legislation to change the eminent domain law. For more on the issue, see Eminent Domain Changes Seek to Limit State’s Power to Seize Property.
GlobeSt.com, High Court Upholds Columbia Expansion
The business owners, represented by civil rights attorney Norman Siegel, argued that there were no findings of blight in the area before Columbia acquired property there. “Despite the objective data in the record to the contrary, the Appellate Division plurality agreed, stating that there was ‘no evidence whatsoever that Manhattanville was blighted prior to Columbia gaining control over the vast majority of property therein,’” wrote Judge Ciparick. “This argument is unsupported by the record.”
The state’s highest court ruled that the lower court had disregarded the results of a 2003 study conducted by consulting firm Urbitran Associates at the request of the New York City Economic Development Corp., when the university had just begun acquiring property in the area. “Indeed, the Urbitran study unequivocally concluded that there was ‘ample evidence of deterioration of the building stock in the study area’ and that ‘substandard and unsanitary conditions were detected in the area,’” according to Judge Ciparick’s opinion.
NoLandGrab: Let's just be clear that nothing is as "unsupported by the record" as a study commissioned by the New York City Economic Development Corporation.
Posted by eric at 10:00 AM
New York’s Eminent Domain “Blight” Grows
Commentary
by Jonathan Tobin
The ruling of New York’s Court of Appeals — the state’s highest judicial body — in favor of Columbia University’s bid to have the property of landowners who will not sell their land to the institution condemned is another depressing chapter in the sorry history of the corruption of the use of eminent domain.
While I have no quarrel with the university’s desire to expand the Morningside Heights campus, where I spent my undergraduate years north into Harlem, the idea that it can use its clout with the state to bludgeon those who will not sell to it is repulsive. Moreover, the court decision, which overruled a lower appeals court’s rejection of the use of eminent domain in this case, is especially troubling. Though most of the property owners in the West Harlem area desired by Columbia sold it, some did not. In response, Columbia prevailed upon the State of New York to condemn the recalcitrant owners’ property upon the doubtful premise that it was “blighted,” which mandated its demolition and replacement with more useful (at least to Columbia) projects, which might ultimately generate more tax revenue. The four active warehouses and two bustling gas stations that Columbia wished to flatten to make way for new buildings of its own do not fit that description of “blighted,” though there is no shortage of locations in New York City that do.
Referring to another eminent-domain case in which the Court had recently ruled in favor of the effort to bulldoze businesses and apartments in order to make way for a new basketball arena and other real-estate projects in the Atlantic Yards section of Brooklyn, the decision, which was written by Judge Carmen Beauchamp Ciparick, claimed that “if we could rule in favor of a basketball arena, surely we could rule for a nonprofit university.”
But in making this point, Judge Ciparick revealed that what is on display in this decision is not the application of a coherent legal principle but rather merely the justification of an act of judicial tyranny. In this way, New York has ratified a procedure by which the powerful, be they the real-estate developers who own the NBA Nets or the trustees of one of America’s most prestigious universities, can simply force small property owners out of their businesses and homes for the sake of the convenience of the wealthy and of those who are better connected to power brokers. This means that the state has the power to label any property as “blighted” in order to create a legal fiction device that allows powerful interests to acquire it without the consent of its owners. This is state-sponsored theft by any definition and the fact that it is practiced on behalf of a “nonprofit university,” as well as an NBA team, does not make it any less odious.
Posted by eric at 9:33 AM
Court of Appeals, citing precedent in Atlantic Yards case, overturns lower court ruling blocking eminent domain for Columbia expansion
Atlantic Yards Report
In less than four weeks after a contentious oral argument, the state Court of Appeals brought an unsurprising end to the Cinderella story that was the Columbia University eminent domain case, ruling unanimously--though with a very reluctant concurrence--that the courts should defer to the Empire State Development Corporation in its finding of blight.
As I reported after watching the oral argument in Kaur v. N.Y.S. Urban Development Corp., the judges--including Atlantic Yards dissenter Robert Smith--felt bound by their decision in the Atlantic Yards case last November, a decision that was glaringly ignored by the two-judge plurality who shortly afterward ruled against the ESDC in the Columbia case.
Wrote Smith:
I concur in the result on constraint of Matter of Goldstein v New York State Urban Dev. Corp. The finding of "blight" in this case seems to me strained and pretextual, but it is no more so than the comparable finding in Goldstein. Accepting Goldstein as I must, I agree in substance with all but section VI of the majority opinion.
The decision, I wrote, would hinge on how seriously the court took allegations of bad faith by the ESDC and biased methodology by its consultants. Answer: not much.
The court ignored a memo from an ESDC lawyer, as cited by property owners' attorney Norman Siegel, that stated, We are going to manufacture support for condemnation.
...Appeal coming
According to the Observer, Nick Sprayregen, who owns Tuck-It-Away storage company and has spent more than $2 million on legal cases--more than twice as much as has been spent in the Atlantic Yards cases--vowed to appeal.
"This decision, if not overturned, will allow eminent domain abuse in New York to become even worse than it is now," he wrote. "In effect, this court is sending a clear signal that a blight designation, even is caused by the very developer seeking the use of eminent domain, is acceptable."
Posted by eric at 9:24 AM
High Court Overturns Columbia Eminent Domain Ruling; No One's Property is Safe in New York
Develop Don't Destroy Brooklyn
DDDB trumpets a badly needed call to action.
Back in October the Court of Appeals allowed Ratner and New York State to move forward with eminent domain for Atlantic Yards. In a contrasting decision a Manhattan lower appellate court said Columbia could not use eminent domain to seize businesses in West Harlem. Today the high court ruled that any time government says there is "blight" the court has basically no role whatsover in reviewing that decision, no matter how corrupt or collusive that decision appears on its face.
So the Columbia expansion and Atlantic Yards bogus blight findings have now been given the stamp of approval by the state's high court. And the same court thinks that private arenas and private schools are somehow a public use.
Nonsense.
It is a very sad day for all New Yorkers. There appears to be no judicial review allowed when state actors and their developer friends collude to take homes and businesses from the little guy. Twice now the high court has excused itself from any meaningful review of the government's abuse of this awesome power.
The upsetting rulings leave no doubt for what must be done. Legislative reform must occur if we are going to protect our citizens from eminent domain abuse such as what has occurred in Prospect Heights, West Harlem and elsewhere.
There is such reform afoot. Senator Bill Perkins has a bill that would not allow these kind of bogus blight findings. The bill has made it out of committee and the full Senate must vote on it.
Please call or email Senate Leader John Sampson to tell him that New Yorker's no longer have any protection against eminent domain abuse—not from the Court's and not from the Legislature—and so the Senate must vote on the Perkins bill and must pass it...today. There is no more time to wait.
Call Senator Sampson at: (518) 455-2788
Email Senator Sampson at: sampson@senate.state.ny.usUntil this bill passes, everyone New Yorker's home or business is vulnerable to government seizure if a developer covets it.
Posted by eric at 8:59 AM
June 23, 2010
Justice Friedman schedules motion for reargument in case challenging ten-year timeline; Development Agreement should get its day in court
Atlantic Yards Report
The belatedly-released Atlantic Yards Development Agreement should get its day in court, after all. A hearing in the effort to reopen the case challenging the Modified General Project Plan--essentially the legitimacy of the ten-year timeline--will be held on Tuesday, June 29.
It will be held before state Supreme Court Justice Marcy Friedman at 60 Centre Street, Room 335, at 11 am.
Chance of success
Given general judicial deference to the Empire State Development Corporation (ESDC) and other agencies, it's a long shot to expect a ruling in favor of the petitioners, community groups organized by Develop Don't Destroy Brooklyn (DDDB) and BrooklynSpeaks.
However, the petitioners have some inconvenient facts to air in court regarding the dubiousness of the official ten-year project timeline.
If the case is successful, it could severely slow the project--at least the non-arena portion--by requiring new analyses of the project's environmental impact.
Posted by eric at 9:31 AM
Atlantic Yards Court Argument Scheduled for Tues, June 29, 11am
Develop Don't Destroy Brooklyn
Oral argument has been scheduled for Tuesday, June 29th at 11am on the case DDDB et al. v. ESDC. The argument is on the motion by the petitioners asking the court to reconsider and reargue their challenge to the state's September 2009 approvlal of the Atlantic Yards Modified General Project Plan.
Judge Marcy Friedman had ruled for the ESDC. But the plaintiffs, DDDB and 19 other community groups, as well as BrooklynSpeaks, asked the court to allow reargument in light of new evidence found in the Atlantic Yards Development Agreement between ESDC and Ratner, which had been made public only after the case was argued.
Details on the oral argument:
Tuesday, June 29. 11 AM
60 Centre Street, Room 335
ManhattanThe ruling on the original case—which challenged the ESDC's September 2009 approval the Modified General Project Plan—hinged on whether or not there was a rational basis for the ESDC to claim the project would take ten years.
Posted by eric at 9:22 AM
June 14, 2010
Will Development Agreement get its day in court? Unlikely, as Justice Friedman moves case back to condemnation judge who already dismissed issue
Atlantic Yard Report
It looks like the belatedly-released Atlantic Yards Development Agreement--which signals significantly relaxed deadlines for the project--won't get its day in court, after all.
In a brief, five-page decision in the case known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka Empire State Development Corporation, or ESDC), state Supreme Court Justice Marcy Friedman essentially rejected a challenge by property owners that the Atlantic Yards project has changed so much that the ESDC should be forced to issue a new Determination & Findings to proceed with eminent domain.
Friedman did not formally reject the case, because she didn't examine the Development Agreement or get to the merits.
Instead, she moved it from New York County (Manhattan) to Kings County, as the ESDC had requested. In Kings County, Justice Abraham Gerges, who handles condemnations, already rejected similar arguments when rejecting a direct challenge from property owners to the condemnations.
The decision was dated May 26 and filed June 1, but I only learned about it last week. I asked the attorney for the petitioners, Matthew Brinckerhoff, for a comment, but didn't get one.
Development Agreement still at issue in separate case
Friedman is still considering a request by two groups of petitioners--organized by Develop Don't Destroy Brooklyn and BrooklynSpeaks--to consider the Development Agreement in revisiting her March 10 ruling that the ESDC's ten-year timeframe for Atlantic Yards was reasonable.
In her ruling, Friedman disagreed that a Supplemental Environmental Impact Statement to reflect the burden of a 25-year project on communities was necessary. Nor would she annul the 2009 Modified General Project Plan, or MGPP.
But she refused to let the Development Agreement--released in January a week after oral argument--to be added to the case, known as Develop Don't Destroy (Brooklyn), et al., vs. Empire State Development Corporation and Forest City Ratner Companies.
She's still considering the request for reargument, but such motions, like appeals, are generally more of a long shot than new cases, as was the Williams case.
Posted by eric at 12:48 PM
June 2, 2010
Columbia eminent domain case draws heated arguments, frequent references to Atlantic Yards cases
Atlantic Yards Report
Norman Oder provides the blow-by-blow of yesterday's argument in the New York State Court of Appeals over the Columbia University eminent domain case.
In the highly contested 40-minute oral argument yesterday in the Columbia University eminent domain case, attorneys significantly reprised arguments in the briefs, with frequent references to the Atlantic Yards case the Court of Appeals decided last November.
I didn’t make it to Albany and none of the city’s three daily newspapers sent a reporter. That’s dismaying, given that the Appellate Division’s surprising and contested rejection of the Empire State Development Corporation’s eminent domain findings was big news last December.
The bottom line of the argument is unclear, given there are various strands of argument. In other words, if the court upholds the ESDC on its finding of blight--as is not unlikely, given its decision in the AY case--it could find other reasons to block Columbia.
Related coverage...
Columbia Spectator, Court of Appeals grills state on M'ville blight, civic purpose of expansion
After more than six years of buildup, the fate of eminent domain in Manhattanville came down to 45 minutes in a small courtroom in Albany.
On Tuesday, the seven judges of the New York State Court of Appeals, the highest court in the state, heard oral arguments on whether the state should be allowed to invoke eminent domain—the process of seizing private properties for a “civic purpose” in exchange for market-rate compensation—on Columbia’s behalf. The University plans to build a 17-acre campus in West Harlem, but two business owners, who represent about 9 percent of the land in the expansion zone, have refused to sell their properties.
Former New York Civil Liberties Union director Norman Siegel argued on behalf of Tuck-It-Away Self-Storage owner Nick Sprayregen and gas station owners Gurnam Singh and Parminder Kaur, and attorney John Casolaro represented the Empire State Development Corporation, the body that approved eminent domain for the project in December 2008.
Sprayregen, Singh, and Kaur challenged that approval in court in January 2009, and last December, the New York State Supreme Court, Appellate Division declared eminent domain in Manhattanville illegal in a 3-2 decision, which ESDC immediately appealed.
That brought the fight to the Court of Appeals, where Siegel called on the judges to uphold the Appellate Division ruling on several bases: one, that ESDC declared the neighborhood “blighted” in “bad faith” and based on faulty methodology; two, that there was “collusion” between ESDC and Columbia, because ESDC hired a company to conduct a blight study when that company was also a contractor for the University; three, that the expansion of a private university does not constitute a “civic purpose”; and four, that Sprayregen’s due process rights were violated when ESDC refused to turn over certain documents requested under the Freedom of Information Law in time for them to be included in the record for this case.
AP via Victoria Advocate, NY top court considers Columbia expansion plan
A state redevelopment agency urged New York's top court on Tuesday to approve its use of eminent domain so Columbia University can expand its Ivy League campus over 17 acres in West Harlem.
At oral arguments, Empire State Development Corp. attorney John Casolaro said the Court of Appeals should overturn a divided lower court and conclude this constitutes an appropriate civic project for educational purposes where the state can take land, even when the land goes to a private, not-for-profit institution.
"The Legislature has indicated this is a proper public purpose," Casolaro said.
NoLandGrab: Casolaro meant, of course, that the unelected, unaccountable ESDC had made that determination (surprise, surprise) — not the Legislature.
Bwog, Manhattanville Goes To NY Court of Appeals
This is kinda-sorta-maybe-it!
As you may recall, December brought a major obstacle to Columbia’s dreams of expansion: the New York State Supreme Court decided 3-2 that that state could not use eminent domain to secure parts of West Harlem for Manhattanville. The Empire State Development Corporation, the only major defendant in December’s case, has appealed the decision with the Columbia administration’s support.
...In November, the New York Court of Appeals gave the uber-fraught Atlantic Yards a 6-1 approval of use of eminent domain, but the Atlantic Yards project did not stumble in the NY Supreme Court like Manhattanville has.
A decision is expected this summer, which could mean this month and could also mean three months from now.
Crain's NY Business, Court date set for Columbia eminent domain case
Last November, the same judges that will hear the Columbia case ruled that eminent domain could be used to clear the Atlantic Yards site in Brooklyn so that developer Forest City Ratner could build a huge mixed-use project there.
However, experts say the Atlantic Yards decision doesn't guarantee a similar outcome because there are numerous differences between the two cases. For starters, the opponents of Columbia using eminent domain won in the lower court, unlike their counterparts in the Atlantic Yards case. Last December, in a strongly worded opinion, the New York State Supreme Court Appellate Division said it would be unconstitutional to use eminent domain to benefit “a private, elite education institution.”
“You are never the favorite when you are seeking a reversal,” said Scott Mollen, a partner at law firm Herrick Feinstein, who isn't involved in the case.
Posted by eric at 10:00 AM
May 18, 2010
Justice Friedman limits oral argument to issue of whether case involving Development Agreement should be transferred to Gerges in Brooklyn
Atlantic Yards Report
Yesterday, I asked: will the Atlantic Yards Development Agreement--which gives far longer deadlines than officially proclaimed when the project was approved--get its day in court?
Well, it didn't happen today and it's looking less likely (though not impossible).
In a hearing that lasted little more than 20 minutes, Supreme Court Justice Marcy Friedman limited argument in the case, known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka Empire State Development Corporation, or ESDC), to questions of venue--whether the case even belonged in her court.
Her announcement at the start perked up ESDC attorney Philip Karmel and left the 15 or so project opponents in the audience somewhat frustrated. (Also in the audience, a few attorneys for Forest City Ratner, the meter ticking.)
Should she agree that it does, rather than move the case to a condemnation judge in Brooklyn who has ruled without question in the ESDC's favor, she'll then entertain arguments on the merits of the case.
Posted by eric at 11:16 PM
Atlantic Yards Hits Air-Rights Turbulence
ArtInfo
Does real estate have a memory? New York City has seen its share of bungled, back-and-forth construction projects that, once completed, become part of the urban fabric, their birth pangs forgotten. The Guggenheim, for instance, was once the target of the wrath of artists, who refused to display art in a building they considered a monstrosity; after the instant landmark opened, all was forgiven.
But while public sentiment seems to be swinging in favor of the World Trade Center rebuilding project, it's less certain whether the turmoil can ever burn off of another convoluted endeavor across the river: Brooklyn's Atlantic Yards. Just as Forrest [sic] City Ratner seemed to win over the last of the neighborhood's anti-construction holdouts, another canny local has slapped the developer with an arcane "air rights" lawsuit.
Posted by eric at 11:56 AM
May 17, 2010
Tuesday at 2:30 pm: will Development Agreement get its day in court?
Atlantic Yard Report
My preview, redux:
The last Atlantic Yards case to reach oral argument will be heard tomorrow, May 18; the issues include whether the belatedly-released Development Agreement can be formally added to the case and whether the case remains before a Manhattan judge already critical of the Empire State Development Corporation (ESDC) or moved to a Brooklyn judge who has ruled without question in the ESDC's favor.
The case, known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), will be heard at 2:30 pm at 60 Centre Street, room 335, before Supreme Court Justice Marcy Friedman.
Posted by eric at 11:28 PM
Tues, May 18. Oral Argument on Eminent Domain Related Atlantic Yards Case
Develop Don't Destroy Brooklyn
Legal arguments in the following lawsuit will take place Tuesday, May 18th, at 2:30 PM in Manhattan. Keep in mind, when timing your arrival, that there is a security check to go through.
Details:
PETER WILLIAMS vs. NYS URBAN DEVELOPMENT CORP
Tuesday, May 18.
2:30 PM
New York County Supreme Court
60 Centre Street [Map]
Room 335
ManhattanOral argument on Article 78 lawsuit seeking to compel the Empire State Development Corporation (ESDC) to make new Eminent Domain Procedure Law (204) findings and determinations.
A number of property owners and tenants in the footprint brought this lawsuit in January 2010 arguing that the eminent domain takings were based on a 2006 approved plan that no longer exists. If the property seizures are going to occur, they must be for the drastically altered current plan—a basketball arena and one building—not for the project originally conceived with the promise of 2,250 affordable housing units, 16 towers and 10,000 jobs. The case argues that the ESDC must make new findings and determinations under the States's Eminent Domain Procedure Law.
Posted by eric at 11:05 AM
May 11, 2010
Oral argument postponed in case regarding call for new eminent domain findings; ESDC wants case moved to Brooklyn, says Gerges already decided issues
Atlantic Yards Report
Update: The case has been rescheduled for Tuesday, May 18 at 2:30 pm.
The last Atlantic Yards case to reach oral argument will be heard
tomorrowMay 18th; the issues include whether the belatedly-released Development Agreement can be formally added to the case and whether the case remains before a Manhattan judge already critical of the Empire State Development Corporation (ESDC) or moved to a Brooklyn judge who has ruled without question in the ESDC's favor.The case, known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), will be heard [on May 18th] at
11 am2:30 pm at 60 Centre Street, room 335, before Supreme Court Justice Marcy Friedman.The Development Agreement
The plaintiffs argue that the ESDC should not have relied on the 2006 Determination and Findings (D&F) to exercise eminent domain but instead should have issued a new D&F describing the public use to be served by the project as of 2010, given that the Development Agreement, among other documents, points to a much longer buildout.
I previewed the arguments on 4/9/10 and covered the brief hearing on 4/12/10; as noted below, a major pending issue is whether the case should be moved to Kings County Supreme Court Justice Abraham Gerges, who already ruled against similar arguments in the effort to block condemnation, but didn't evaluate the Development Agreement.
As for the Development Agreement, Friedman is already considering it in motions to reopen a separate case challenging the legitimacy of the claimed ten-year buildout. She had ruled against the petitioners, two coalitions of community groups, but had refused to open the record to the Development Agreement, released in late January.
Even as construction proceeds on the arena, the fundamental question, to attorney Matthew Brinckerhoff (who represents petitioners in the D&F case), is whether the ESDC will succeed in its "bad faith attempt to conceal the true nature of the Atlantic Yards Project from Petitioners and the public at large until after the time to challenge it has expired."
Posted by eric at 12:34 PM
May 10, 2010
Does belatedly-released Development Agreement change nothing? So claims FCR; Justice Friedman faces motions to reopen case regarding AY timeline
Atlantic Yards Report
"The Development Agreement changes nothing."
So declares Forest City Ratner in a blistering and brazen defense of the ambiguous document, kept under wraps until late January, that sets an outside date to complete Atlantic Yards in 25 years but also seems to obligate the developer to build the project, as promised, in a decade.
(The obligation involves penalties, by my calculation, that are only about $5.5 million for a 15-year delay, on top of $5 million for each of three Phase 1 towers if they're late and $10 million for a late arena.)
The Empire State Development Corporation (ESDC) is a bit more circumspect, stating the agreement's "terms are consistent with the information that was in the administrative record reviewed by this Court." The ESDC blames "petitioners' coordinated scorched-earth litigation strategy of filing multiple motions against the Atlantic Yards Project."
FCR and the ESDC point to clauses in the Development Agreement that point to daily fines for delays of $1000 or $10,000--more likely the former, as noted below--and say those are not trumped by larger penalties for delays in three towers.
Pending legal battle and judicial skepticism
The statements come in legal papers filed before State Supreme Court Justice Marcy Friedman, asked to revisit her March 10 ruling that the ESDC's ten-year timeframe for Atlantic Yards was reasonable, thus not requiring a Supplemental Environmental Impact Statement to reflect the burden of a 25-year project on communities or an annulment of the 2009 M0dified General Project Plan (MGPP).
Friedman already has reason to be skeptical of the developer and the ESDC, given that she previously wrote that the latter's rationale was "marginally sufficient to survive judicial scrutiny" and that its consideration last year of plan modifications "lacked the candor that the public was entitled to expect."
And she didn't consider the Development Agreement, signed in December 2009, three months after the project was approved, but released publicly only in January, a week after oral argument in this case.
Posted by eric at 9:18 AM
May 6, 2010
Another look at the Peter Williams case: did easement come with building and could it be sold to opponents?
Atlantic Yards Report
WNYC reports on the case brought by Peter Williams Enterprises (PWE):
He says the state took his property by eminent domain but forgot about air rights he acquired above an adjacent building nine years ago.
...Forest City Ratner says Williams never owned the air rights but instead a light and view easement that he forfeited when he gave up his building.The lawsuit says that PWE was conveyed "certain property above the plane" of 24 Sixth Avenue, including, as noted in the underlying document, "the right and interest of light and air."
So that's property, but it isn't "air rights" in the sense of the right to build.
Does easement go with building?
It's plausible that a property owner would lose the benefit of an easement when that property is sold; as described in FindLaw, some easements typically remain with the property while others do not.
With the former, the "easement essentially becomes part of the legal description." However, as Williams's lawsuit states, the easement was never described in eminent domain proceeding.
And another twist
The New York Post reports:
Williams told the Post he was contacted by project opponents who are in the process of raising money to buy the air rights before Ratner can. He declined to give his asking price but said he’d "prefer" to sell to the opponents because he considers Ratner a "bully."
Related coverage...
WNYC Radio, Atlantic Yards Project Hit With Another Legal Challenge
A former Prospect Heights property owner says he still owns air rights over a small parcel where the Atlantic Yards arena is being built.
AP, Air-rights lawsuit seeks to derail Nets arena
Another lawsuit has been filed aimed at halting the Brooklyn development that includes a new arena for basketball's Nets.
Gothamist, Atlantic Yards Faces "Air Rights" Hurdle
Bruce Ratner must have exhaled a sigh of relief when outspoken nemesis Daniel Goldstein finally agreed to vacate the last apartment in the footprint of his multi-billion dollar Atlantic Yards site last month, giving way for the humongous project to begin construction. But just because no one is physically in his way anymore doesn't mean Ratner doesn't have to contend with more ethereal concerns!
Can't Stop The Bleeding, Final Atlantic Yard Holdout To Ratner : You Paid For The Ground, Now Cough Up For The Air
While Bruce Ratner was finally successfully in paying Develop Don’t Destroy Brooklyn’s Daniel Goldstein to leave his Brooklyn home, another local resident is presenting a separate challenge to plans to build a new Nets arena.
Posted by eric at 10:36 AM
May 5, 2010
Atlantic Yards holdout Peter Williams claims developer Bruce Ratner doesn't own air rights
NY Daily News
by Erin Durkin
Just when developer Bruce Ratner thought he'd grabbed all the land he needed for his Atlantic Yards project, a property owner is staking one last claim - to the air above the site.
Peter Williams insists he still owns the air rights over a Sixth Ave. lot - and says the state forgot to condemn it when they used eminent domain to seize the rest of the site.
He sued the state Tuesday, charging the Empire State Development Corp. is trying to "steal" his property and "intends to proceed as if it owns property it plainly does not.
"They screwed up," Williams said.
...The state took possession of the Sixth Ave. building where Williams' grown children lived on March 1 - but never filed to condemn the air rights he owns over the former condo building next door.
"I have something of value that they're not paying me for," he said. "They're trying to run me over with a steamroller."
Williams came to own the air rights over the building next door in 2001, in return for letting the owner route an emergency exit through his property.
But other property owners at the project site can't follow Williams into court looking for a payday: Their air rights were taken by the state along with their land.
Without Williams' air rights, Ratner can't build anything taller than four stories at the site. He also can't claim the "vacant possession" of the project site he needs before turning over ownership of the NBA's New Jersey Nets to Russian billionaire Mikhail Prokhorov. The Nets are slated to move into the Barclays Center arena in 2012.
Related coverage...
The Real Deal, AY air rights the latest hurdle for Ratner
A former Prospect Heights property owner is claiming to own the air rights to a part of the site where Bruce Ratner plans to build his new Nets arena and is suing the state for trying to "steal" it.
...If the court rules in Williams' favor, a state condemnation of his air rights could take up to two years -- time that could devastate the project.
Curbed, The Last Last Holdouts
Bruce Ratner thought he had cleared out the last Atlantic Yards holdout when he struck a $3 million deal with Daniel Goldstein, but it turns out Goldstein has competition for the "last holdout" title.
NY Post, Air-rights suit hits Nets plan
Posted by eric at 10:42 AM
May 4, 2010
In last-minute lawsuit, owner of easement in arena block seeks to preclude claim of vacant possession; his goal is money, not to stop arena
Atlantic Yards Report
Peter Williams, who owned an industrial building-turned-home (occupied by his two adult children, and a third person) in the Atlantic Yards arena block, settled weeks ago with Forest City Ratner.
Now he's brought an unusual lawsuit claiming that the state made a "colossal mistake" in not pursuing eminent domain for the easement bordering and above the Spalding Building at Sixth Avenue and Pacific Street. He acquired the easement in 2001 and owned adjacent 38 Sixth Avenue.
This could stop the Empire State Development Corporation and Forest City Ratner from claiming they have achieved "vacant possession" of the arena block when current occupants leave by Saturday.
The easement prevents anything more than four stories from being built at the corner of Sixth Avenue and Pacific Street--presumably precluding an arena.
Doh! Stupid easements!
Though the lawsuit raises the spectre of requiring a whole new process under the Eminent Domain Procedure Law (EDPL), Williams, a former plaintiff in the Atlantic Yards eminent domain cases, has not displayed a particular ideological bent. Rather, he's publicly said he's in it for the money.
NoLandGrab: What's a few million when you could be a hero to millions? Don't forget, Ratner had your son thrown in jail — for taking one of Ratner's spycams off your own building!
Posted by eric at 10:55 PM
Bklyn arena opponent sues state for allegedly screwing up condemnation proceedings
The Brooklyn Blog [NYPost.com]
by Rich Calder
Hold the shovels. Again.
A real-estate mogul says he owns some "air rights" above the site of the planned Nets arena in Brooklyn — and that the billion-dollar project can’t be completed until he settles the issue with the developer.
Peter Williams — who has already received a money settlement from developer Bruce Ratner for handing over property he owned at the arena site — today filed a scathing lawsuit accusing the state of fowling up the project’s controversial condemnation process and trying to "steal" his air rights.
Or as Bruce Ratner and his lackeys at the ESDC like to call them, "err rights."
It alleges the state colossally blundered by never condemning air rights Williams has owned since 2001 above and around 24 Sixth Avenue in Prospect Heights when it previously condemned other land owned by project holdouts.
...If the court sides with Williams, it could take up to two years for the state to be able to "condemn" the air rights and clear the way for the project — time that Ratner doesn’t have.
The project nearly fell apart over earlier legal delays, and Russian billionaire Mikhail Prokhorov’s anticipated purchase of the Nets from Ratner is contingent on all the property being free and clear of any hurdles.
Wlliams said he filed the suit because he believes the state "screwed up" and he considers Ratner "a bully." He declined to say how much of a settlement he’s seeking but is open to one.
"I’m not a martyr like Daniel Goldstein," he said, referring to the leader of the project opposition group who last month ended a six-year holdout on his condo by agreeing to a $3 million settlement.
The suit raises the issue of whether air rights should be considered a separate property lot.
NoLandGrab: While Governor Paterson is threatening to furlough state employees, it sounds like ESDC attorneys will be working overtime.
Queens Crap, "New York State's Colossal Mistake"
This is the footprint of the Atlantic Yards project (in yellow).
The red outline shows a large piece of property that, according to opponents, the state forgot to condemn, which means the entire project is now in really serious jeopardy, if not dead.
And that payment that Bruce Ratner is making to Daniel Goldstein to get him out by Friday is really just a lot of money down the toilet now from Ratner's perspective, because Goldstein really was never the last obstacle. Actually, the last obstacle is the state's own stupidity.
How wonderfully ironic yet completely appropriate is this?
NoLandGrab: It's a actually a tiny lot adjacent to that red parcel (and air space above it), but it might well be large enough to cause Bruce Ratner and the ESDC a monumental (and, might we add, well deserved) headache.
Brooklyn Daily Eagle, Forgotten Land & People at Atlantic Yards?
Small blunders could be causing some big problems for the Atlantic Yards project.
Two unexpected events have recently arisen inside the footprint of Forest City Ratner’s proposed $4.9 billion development near Downtown Brooklyn, which project shall feature a basketball arena for the New Jersey Nets.
Forgotten Parcel Not Codemned?
A piece of property about the size of a standard one-bedroom apartment in the footprint of the Atlantic Yards site was never officially condemned, says attorney Matthew Brinckheroff in an action filed in Kings County Supreme Court on behalf of the property’s owner.
...“Last week we wrote them and said, ‘You made a mistake,’” Brinckerhoff told the Eagle Tuesday. “ESDC [the state’s Empire State Development Corporation] said, ‘That’s not a piece of property; we already condemned it, even though we didn’t,’ and basically told us to go jump in a lake. So instead of jumping in a lake, we sued.”
...Brinckerhoff pointed out that in the UDC’s 2006 documents, they clearly state that in the “event of any inconsistency between the street addresses and the tax blocks and lots, the block and lot information shall control.”
He said that under state law, UDC must now hold a public hearing to consider condemnation of this lot and issue its results.
Posted by eric at 8:21 PM
Atlantic Yards: Property Owner Files Legal Action Based on New York State’s "Colossal Mistake"
Seeks to Prevent New York State From Claiming Right to Property It Forgot to Condemn for Forest City Ratner’s Basketball Arena
New York State Does Not Own All The Real Estate Interests In the Arena Block Of The Atlantic Yards Project
Peter Williams Enterprises, Inc. Press Release via Develop Don't Destroy Brooklyn
New York, NY— On Tuesday, Peter Williams Enterprises, Inc. (“PWE”), a company owned by Peter Williams, filed an action in New York State Court seeking a declaration of its ownership of a tax lot on the block where Forest City Ratner plans to build an arena for its professional basketball team.
PWE owns the property located at 24 Sixth Avenue, Brooklyn, New York, specifically, the entirety of Block 1127, Lot 7501 (“Lot 7501”). Unlike the other lots located at 24 Sixth Avenue (Lots 1001-1021), which were condemned by the New York State Urban Development Corp (the “UDC”), and recently leased to a Forest City Ratner affiliate, the UDC did not condemn Lot 7501.
Indeed, the UDC did not identify Lot 7501 in either its Notice of Public Hearing, pursuant to Article 2 of the EDPL, dated July 24, 2006 (the “Notice”), or its Determination and Findings, pursuant to EDPL § 204, dated December 8, 2006 (the “Determination”). Both the Notice and the Determination identified the property subject to acquisition by condemnation by block and lot. Both listed Lots 1001-1021as the only lots UDC sought to acquire located at 24 Sixth Avenue. Both expressly provided that the “street addresses are included for ease of reference only,” and that in the “event of any inconsistency between the street addresses and the tax blocks and lots, the block and lot information shall control.” Because Lot 7501 was never identified, it cannot be, and has not been, taken eminent domain.
In the Complaint, PWE’s attorney, Matthew Brinckerhoff of Emery Celli Brinckerhoff & Abady, explained that: “If defendants want to acquire title to Lot 7501, they must do so through legal means. The UDC must follow the procedures set forth in the EDPL; it must hold a public hearing to consider condemnation of Lot 7501 and thereafter issue the predicate findings and determination. It cannot simply take that which it does not own.”
The Complaint and other documents establishing PWE’s claim can be obtained on request from mbrinckerhoff@ecbalaw.com.
NoLandGrab: Oops?
Posted by eric at 8:06 PM
May 3, 2010
The slow buildout at Battery Park City, according to the ESDC, serves as an acceptable example for Atlantic Yards. Except it doesn't.
Atlantic Yards Report
So what do the attorneys for the Empire State Development Corporation (ESDC) say when faced with legal papers expressing dismay about potential 25 years of construction in Prospect Heights rather than the announced and promised ten years?
They say it would be unimportant, and point to the example of Battery Park City--even though the latter is more than four times as large, with several other key contrasts.
The statement comes in a motion arguing that Supreme Court Justice Marcy Friedman should not reopen the case in which she dismissed a challenge to the ESDC's 2009 approval of the Modified General Project Plan, though she criticized the ESDC’s “deplorable lack of transparency."
...The truth about Battery Park City
Battery Park City is 92 acres, more than four time the 22-acre Atlantic Yards site, so the impact of staged development has been more attenuated.
It was built on a landfill, with no established neighborhood and longstanding street grid.
At Battery Park City, large portions of the 36 acres of open space were built first, while with Atlantic Yards, the buildings would come first.
Battery Park City involves multiple developers and multiple parcels, rather than a single developer controlling one site, choosing to move forward as it sees fit, with light penalties and many excuses for delay.
Posted by eric at 10:05 AM
April 26, 2010
Stop The Pork Lawsuit Appeal To Be Heard
Ground Report
by Richard Cooper
The Stop The Pork Lawsuit whose butchery in the New York court I reported previously (Stop The Pork Lawsuit Butchered In Supreme Court) will have its appeal heard on Monday April 26th according to Buffalo attorney James Ostrowski. The lawsuit contends that corporate welfare in New York violates our state's constitution. I contributed to the legal fund and was added as one of the plaintiffs.
The suit names as defendants Governor Paterson, the Senate and Assembly leadership, the Empire State Development Corporation (ESDC) and various corporations, including IBM.
The Empire State Development Corporation is the principal driver in New York of both corporate welfare and eminent domain abuse, including Atlantic Yards and the NY Times headquarters scheme I dubbed Time$cam.
Posted by eric at 12:00 PM
April 24, 2010
Atlantic Yards Still Faces Legal Loose Ends
GlobeSt.com
By Mark Fass
Activist Daniel Goldstein may have been the most visible and most vocal opponent of the Atlantic Yards project, but his settlement with the project’s developer, Forest City Ratner Cos., does not mark the end of the legal battle against the $4.9-billion development.
Goldstein agreed Wednesday to move out of his condemned apartment, step down from his position as spokesman of Develop Don’t Destroy Brooklyn and take his name off all pending Atlantic Yards litigation in exchange for $3 million. However, four actions intended to thwart the downtown Brooklyn project remain ongoing. Three of those actions have been dismissed at the trial level and plaintiffs have filed notice of appeal. The fourth has yet to be heard.
Two of the actions challenge the modified general plan affirmed in September 2009 by the Empire State Development Corp., the public authority that invoked condemnation. The petitioners, including DDDB, contended that because the construction of Atlantic Yards may take 25 years and the project’s environmental impact statement evaluated only a 10-year period, the development corporation should be required to prepare a supplemental statement.
Posted by steve at 8:43 AM
April 21, 2010
Hearing at 9:30 am on "writ of assistance" sought by ESDC to compel Goldstein family and two businesses to leave
Atlantic Yards Report
Daniel Goldstein and his family are the last residential tenants facing eviction in the Atlantic Yards footprint, as the others have settled, according a statement issued by Forest City Ratner yesterday and picked up by the New York Daily News and the Brooklyn Paper.
The seven households either will get apartments in “the first new residential building at Atlantic Yards” or, on average,$80,000, plus $5,000 to assist with relocation, according to a statement from FCR executive MaryAnne Gilmartin.
Hearing this morning
That leaves Goldstein and two businesses--Pack It Away Storage and Henry Weinstein's office building and adjacent lots--to challenge the Empire State Development Corporation's motion at the condemnation hearing this morning.
It will be held before state Supreme Court Justice Abraham Gerges at Kings County Supreme Court, 320 Jay Street, 17th Floor, beginning at 9:30 am (and there's usually a considerable wait to get through security).
Accelerated schedule
The ESDC seeks a "writ of assistance" to compel the remaining condemnees to leave the Atlantic Yards footprint by May 17 under threat of eviction.
That's a rather accelerated schedule for eminent domain cases, given that Gerges's opinion was issued March 1, and, as I reported yesterday, the state has both low-balled Goldstein on the value of his condo and shown him apartments that are both much more expensive and with some serious drawbacks.
Posted by eric at 10:55 AM
April 20, 2010
ESDC/FCR say eviction delay past May 17 would "cripple" Atlantic Yards, but claims of continued losses and jeopardized benefits seem overblown
Atlantic Yards Report
On the eve of a crucial court hearing regarding the fate of condemnees still in the Atlantic Yards footprint, the Empire State Development Corporation (ESDC) and Forest City Ratner (FCR) are arguing that the failure to evict those occupants by May 17 would cause "enormous harm" and significant financial losses to the developer.
It is unclear how many of the six households (15 people) and three businesses yet to reach agreements with the developer will resist the condemnation, but a response to those legal arguments--likely stating that this is unusually swift for a condemnation cast--will be filed tomorrow, before a 10 a.m. hearing before state Supreme Court Justice Abraham Gerges at Supreme Court in Brooklyn, 320 Jay Street.
According to my preliminary analysis, several ESDC/FCR claims overstate the damage anticipated, emphasize the costs without acknowledging significant subsidies, and fail to provide sufficient detail to establish the argument for speed.
(Also see my coverage of FCR's claims regarding Develop Don't Destroy Brooklyn's legal strategy and alternative condos offered project opponent Daniel Goldstein. Note that, beyond those totaled above, some other businesses and residents remain in the footprint, but have reached agreements to leave.)
ESDC affidavit
ESDC attorney Charles Webb summarizes the argument made in an affidavit from the developer:
Delay in achieving vacant possession would halt work on the Project, causing enormous harm by (i) prolonging the time in which FCRC must carry the real property and the Project's overhead without generating income, which costs FCRC $6,700,000 per month, (b) prolonging the Nets basketball team's operating losses of approximately $35 million a per year arising from its New Jersey location, and (c) jeopardizing the delivery of 2,250 affordable housing units, and significant public amenities, including a new transit entrance and eight acres of publicly accessible open space.
NoLandGrab: The ESDC's and Forest City's claims about financial hardship are completely undermined by their penny-wise, pound-foolish obstinacy when it comes to buying out Daniel Goldstein...
Atlantic Yards Report, After low-balling Goldstein on condo value, ESDC (via consultant) suggests comparable condos from lawsuit-plagued complex
Maybe it is getting a little personal.
Not only have the Empire State Development Corporation (ESDC) and its real estate consultants low-balled Atlantic Yards uber-opponent Daniel Goldstein regarding the value of his Pacific Street condominium, the only alternative apartments it has shown him are either part of a lawsuit-plagued complex or very close to the Atlantic Yards construction zone.
And while the ESDC's consultant provided a list of only five condos, a simple search of a real estate web site turns up dozens of potential purchases in Prospect Heights and adjacent neighborhoods.
The alternative apartments are listed in an affidavit that's part of an ESDC package of legal papers aiming to convince state Supreme Court Justice Abraham Gerges to evict all condemnees from the Atlantic Yards footprint by May 17. A hearing will be held Wednesday at 10 a.m. at Supreme Court in Brooklyn, 320 Jay Street.
Standoff
Goldstein, the spokesman for Develop Don't Destroy Brooklyn (DDDB), and his family are the last remaining occupants of a 31-unit condo building at 636 Pacific Street, a former warehouse converted in 2002.
The condo is in a crucial spot on the arena block, and Forest City Ratner, which is funding the condemnations, wants him out of there as soon as possible so his building can be demolished for construction.
So it would be in the interest of the state and FCR to ease his departure as quickly as possible, with an offer closer to market price and a longer list of alternatives. That hasn't happened.
NLG: Here's hoping that their mean-spirited parsimony costs Forest City many millions more.
Posted by eric at 11:41 AM
Curtain to fall on last Atlantic Yards holdouts
Expected court order to seal the fate of the remaining 35 residents and businesses; Freddie's [sic] Bar on Dean Street, host of many an anti-project party, to close April 30.
Crain's NY Business
by Theresa Agovino
By May 17, all the people that live in or run businesses in the Atlantic Yards' footprint will be evicted, if the Empire State Development Corp. has its way.
On Wednesday, the ESDC will ask Brooklyn Supreme Court Judge Abraham Gerges to sign an order that will remove all occupants in the area where Forest City Ratner is slated to build a massive commercial, residential and retail project anchored by an 18,000-seat arena for the Nets on a 22-acre site. There are currently 32 residential occupants and 3 businesses remaining on the property acquired by the ESDC. Freddie's [sic] Bar on Dean Street, which hosted countless protests against the project over the last several years, will finally close its doors on April 30.
An ESDC spokeswoman said that the agency couldn't predict what date the judge would set or whether he would make a decision on Wednesday. However, she said that the agency didn't believe the date would be significantly later than May 17.
NoLandGrab: Forest City Ratner is "slated" to build an arena — it's anybody's guess as to the rest of it. And is it that hard for Crain's and Theresa Agovino to spell "Freddy's" correctly, a bar that's been around since Prohibition and which has figured prominently in the six-and-a-half-year-old Atlantic Yards saga?
Posted by eric at 11:11 AM
April 13, 2010
Case challenging ESDC's 2006 eminent domain findings put on hold until May 12; ESDC asks for case to be moved or dismissed
Atlantic Yards Report
AYR reports on yesterday's Atlantic Yards hearing in state Supreme Court, at which a new hearing date was set: May 12th at 11 a.m.
The six plaintiffs--five of them already having seen title transfer to the Empire State Development Corporation (ESDC)--want the agency to issue a new Determination & Findings (D&F) to justify the use of eminent domain, given that Atlantic Yards has changed so much since the 2006 D&F was filed.
The ESDC wants to move the case from state Supreme Court Justice Marcy Friedman in Manhattan to Justice Abraham Gerges in Brooklyn, contending that, given that he's overseeing the condemnation process, it's the appropriate venue, and he's already resolved the issues in a very similar case.
Friedman said she would allow motions making such a request to be filed, but said that no inference should be drawn from her action. She also admonished the parties not to file any new motions without the "prior leave of the court."
Which judge sought
Last month, while ruling for the ESDC in a case challenging the agency's approval of the 2009 Modified General Project Plan, Friedman nevertheless criticized the ESDC's "deplorable lack of transparency."
So presumably the ESDC would rather face a judge other than Friedman.
Posted by eric at 1:57 PM
Attorney Matthew Brinckerhoff
Photo, by Tracy Collins, via flickr Atlantic Yards Photo Pool.
|
 |
Let the construction finally begin: Bruce Ratner’s $4.9 billion Atlantic Yards project can move forward after a state Supreme Court justice yesterday rejected a group of building owners’ and tenants’ challenge of the state’s use of eminent domain. Their legal fight against the project, claiming the condemnation was not for a public benefit but for the pockets of a private developer, lasted six years.
The Empire State Development Corporation, the state agency seizing the land, already announced permanent street closures to start next Monday.
The decision was a blow to many opponents, perhaps none more visible than Daniel Goldstein, the lone holdout in a Pacific Street condo in the project’s 22-acre footprint that will bring the arena and more than a dozen skyscrapers to Brooklyn.
Posted by eric at 10:54 PM
Final Atlantic Yards holdouts to lose their property
NY Post
by Rich Calder
Reality is starting to set in for the final holdouts of the embattled Atlantic Yards project in Brooklyn.
A state judge ruled today that the state can seize property from 12 private landowners who refused to sell to developer Bruce Ratner, so he can move forward with his long-delayed, $4.9 billion plan to build an NBA arena, housing and office towers in Prospect Heights.
Ratner, who received state approval for Atlantic Yards in Dec. 2006, is now finally planning a ceremonial arena groundbreaking — March 11 — so his New Jersey Nets can move there by 2012. However, the timetable for the project’s 16 skyscrapers remains unclear because of the national credit crunch.
"I woke up this morning owning my home but by the afternoon I was told the state now owns it," said Daniel Goldstein, a holdout who became the public face of an opposition group that nearly killed the project by using the legal system to hold up construction.
Goldstein said his group isn’t giving up yet – they can still appeal the judge’s ruling and a few outstanding lawsuits could potentially halt development – but conceded he and his family must finally begin looking for a new place to live. Goldstein moved into the condo in 2003; months later Ratner announced his plans for Atlantic Yards.
...Bruce Bender, an executive vice president at Forest City Ratner, said the "ruling is a major milestone that signifies Atlantic Yards is progressing, that construction will accelerate and that long-awaited benefits will begin to materialize in Brooklyn."
NoLandGrab: And who will be surprised when the lion's share of the "benefits" accrue to Forest City Ratner?
Posted by eric at 10:37 PM
Judge rules against Atlantic Yards opponents, putting NJ Nets closer to Brooklyn move
The Star-Ledger
The Nets will play their next two seasons at the Prudential Center in Newark after working out a deal to leave Izod Center and the Meadowlands. But the team still plans on being in a new arena in Brooklyn by the start of the 2012 season.
Posted by eric at 10:32 PM
Another legal win for B'klyn arena developers
AP via WCAX.com
Developers could soon break ground on the massive Atlantic Yards development in Brooklyn that includes a new arena after lodging another legal victory.
A Brooklyn State Supreme Court judge on Monday rejected a challenge by homeowners and businesses to the state's use of eminent domain for the $4.9 billion, 22-acre project.
...Opponents lamented the judge's decision, but said two other court cases could stop the project "dead in its tracks."
Posted by eric at 10:28 PM
Judge gives Atlantic Yards project the green light; Ratner plans to break ground Mar. 11
NY Daily News
by Erin Durkin
Developer Bruce Ratner is planning to break ground in Brooklyn next week on a new Nets arena after a judge handed private property to the state for the Atlantic Yards project.
"Today's court ruling marks the transition from the obstruction to the construction phase," Forest City Ratner executive vice president Bruce Bender said Monday.
Brooklyn Supreme Court Justice Abraham Gerges tossed a challenge to the eminent domain condemnation - a final blow to property owners who fought the wrecking ball for six years.
State officials said the occupants would be evicted in the next few months - but Ratner plans to hold a ground-breaking ceremony March 11.
..."It feels like I live in a state run by crooks," said Daniel Goldstein, set to get the boot from his Pacific St. condo.
"Our state government ... has bent over backwards to give Bruce Ratner whatever he wants, including my home, and the homes of other citizens."
Patrons at Freddy's bar have threatened to chain themselves to the storefront to battle the eviction.
"There's chains on the bar and a lot of people will be buying handcuffs," said Freddy's regular and opposition organizer Steve de Seve.
"People aren't just going to put up with this ruling."
Additional coverage...
NetsAreScorching, GROUNDBREAKING SET FOR BROOKLYN
Expect preliminary construction work around the site to start heating up, in the meantime, according to the report. Evictions won’t begin until a few months.
...A spokeswoman for the Empire State Development Corporation said an “orderly” relocation is expected, but those who fight eviction will be forcibly removed by the Sheriff’s office.
Posted by eric at 10:19 PM
Atlantic Yards Project Clears Latest Hurdle
NY1 News
A state supreme court judge ruled Monday in favor of the developers of the Atlantic Yards project, saying they can seize control of 53 Prospect Heights properties surrounding the proposed Brooklyn site for the sports arena and development.
Supporters, including Brooklyn Borough President Marty Markowitz, hailed the decision, saying the project will increase affordable housing, provide solid jobs and bring a world class arena to the borough.
Not necessarily in that order.
In order for the Atlantic Yards project to move forward, Fifth Avenue between Flatbush and Atlantic, and Pacific Street between Fifth and Sixth and Vanderbilt and Carlton Avenues will be permanently closed to traffic starting next Monday.
Posted by eric at 7:05 PM
State Owns Atlantic Yards; Brooklyn Homeowners’ Titles Taken
Judge Orders Transfer of Title After State Exercises Eminent Domain
Brooklyn Daily Eagle
by Ryan Thompson with Samuel Newhouse
Those who own businesses or homes in the footprint of Atlantic Yards do not own them anymore.
The land of Atlantic Yards has been condemned. And title to that land has transferred, a Brooklyn judge ordered Monday morning.
Kings County Supreme Court Justice Abraham G. Gerges confirmed Monday afternoon that his judicial orders not only granted the right for the state to take title from the private landowners, but also effected the actual transfer of title to the state.
“New York state now owns my home,” said Daniel Goldstein, Pacific Street resident and spokesman for lead opposition group Develop Don’t Destroy Brooklyn (DDDB). “Technically, a court ruled that … it’s okay for the state to steal my home and give it to Bruce Ratner.”
...After years of lawsuits and litigation, after loud protests and verbal fights, after restructuring, refinancing, renaming and resizing, the Atlantic Yards process has yet to overcome all legal hurdles. Just when it seems the path is clear, another legal challenge rises up to block the construction cranes from building a project that was originally announced over six years ago.
Posted by eric at 6:57 PM
Judge Approves Land Seizures for Atlantic Yards
NY Observer
by Eliot Brown
The property seizures necessary for a new Brooklyn Nets basketball arena have been approved by a judge, clearing a path for a groundbreaking on the $4.9 billion Atlantic Yards project.
The action, for which the Brooklyn judge granted a state petition seeking the title of properties within the project's footprint, is one of the final few legal challenges opponents of the project and holdout landowners had thrown at the state in an attempt to block, or delay, the development.
In a project marked by incremental movements toward the start of construction, this one has a tangible effect: On March 8, the state announced, it will finally create its "superblocks," forever shutting down the streets within the project's footprint to make way for the development. In a statement, Develop Don't Destroy Brooklyn said the affected property owners and tenants "will be considering all of their legal options in light of today's ruling."
There are two other cases still pending that would stop the project, however they are not viewed by government officials or executives at Forest City Ratner, Atlantic Yards' developer, as likely to be successful.
Posted by eric at 4:48 PM
Nets arena foes lose another court case
Bergen Record
by John Brennan
The New Jersey Nets inched another significant step toward Brooklyn on Monday, as a New York State Supreme Court judge ruled against every objection raised in a lawsuit by opponents of the proposed basketball arena, housing and commercial project known as Atlantic Yards.
...The ruling moves project developer Forest City Ratner and Nets owner Bruce Ratner closer to exercising eminent domain to evict the plaintiffs, as well as to receiving state approval to close several streets in the neighborhood near downtown Brooklyn, where the project is scheduled to be built. The Nets hope to begin play in their new Barclays Center arena in the fall of 2012, but construction must begin in earnest by this summer to allow for such a franchise shift.
...Gerges wrote that even if Goldstein’s cynicism about the actual public benefits proves to be well-placed, that is not the issue for the court. Instead, the court must simply find whether the state “rationally could have believed” that the use of eminent domain would lead to the achievements of the goals of the developers and the state.
Goldstein had pointed to a September 2009 analysis by the city’s Independent Budget Office that the arena would be a money loser for the city and that the developers are permitted to take up to 25 years to fulfill promises related to the construction of affordable housing at the project.
Gerges ruled that Goldstein has until Sept. 1 to file claims related to efforts to use eminent domain to take his condominium.
Posted by eric at 4:36 PM
Judge Clears Hurdle for Atlantic Yards
City Room
by Charles V. Bagli
A justice in State Supreme Court paved the way Monday for the transfer of private land to the developer Bruce C. Ratner for his long-delayed $4.9 billion Atlantic Yards project in Brooklyn, after rejecting a challenge by local property owners to the state’s use of eminent domain.
Homeowners and business opposed to the condemnation, which was approved by the State Court of Appeals in November, had argued that the state and the developer had failed to meet the legal requirements for condemnation, which they argued would enrich a private developer rather than create a public benefit.
Justice Abraham G. Gerges, however, denied all of their motions in an 82-page decision.
The land is being seized by a state entity, the Empire State Development Corporation, and will be controlled by Mr. Ratner’s company, Forest City Ratner.
...But many of the 6,000 apartments that are to accompany the arena will have to wait. Although Mr. Ratner has pledged that at least 30 percent of the units would be reserved for moderate- and middle-income families, the developer said that it is difficult to finance residential construction in the current market. It may also take many years for a single neighborhood to absorb so many new apartments.
Posted by eric at 4:32 PM
Court upholds AY eminent domain ruling
The Real Deal
Eminent domain has prevailed once again for Bruce Ratner's Atlantic Yards project in a New York State Supreme Court ruling today that clears the way for construction to begin on the Nets' new Barclays Center arena. According to the ruling, by Judge Abraham Gerges, the state can seize properties in the way of the project because the 14 claims brought forth by opponents of the plan had no "merit." Among the claims: that the state has not explicitly said the land slated for condemnation will be used for the public and that the project plan had been illegally modified.
Posted by eric at 4:28 PM
Judge Rules Against Atlantic Yards Opponents
WNYC Radio
by Matthew Schuerman
The state of New York has taken title to property owned by Daniel Goldstein and other holdouts living in or running businesses in the footprint of the future Atlantic Yards basketball arena.
Judge Abraham Gerges of state Supreme Court in Brooklyn said that all rules were followed when the Empire State Development Corporation moved to condemn the properties. The homeowners had raised a number of objections, one of which was that the project had changed substantially since getting state approval three years ago.
The ruling authorized the state to take title to the properties that remained in private hands but are needed for the arena. But it still could be weeks or months before the state compensates the owners and residents are ordered to leave.
Posted by eric at 4:25 PM
It came from the Blogosphere... (Condemnation edition)
Curbed, Revenge of the Megaprojects
A State Supreme Court ruled this morning that eminent domain can go ahead in the footprint of the Atlantic Yards project, despite opponents' claims that the project plan had been illegally modified. The ruling applies to the buildings developer Bruce Ratner says he needs to seize immediately, including Daniel Goldstein's apartment building and the PBR guillotine-building Freddy's Bar. It's unclear exactly when Ratner will take the property, so, Freddy's folks, better pile those PBR cans while you still can.
NoLandGrab: The state is taking title, not "seizing" the actual property immediately. That won't happen for some time — if the remaining legal challenges fail.
Drinkers Unite - Barclays Boycott, Fightin' Freddy's Handcuff Catalog
Fightin' Freddy's is compiling a catalog of places to order handcuffs.
They say they are going to take Freddy's Bar. We say, get your handcuffs and come out for the (un)eviction party. We don't know the date yet. So order today. This catalog does not want to exclude anyone, so if you have a favorite handcuff website send it along. The Chains Of Justice are mounted on the bar at Freddys so you can keep drinking while we're fighting this unfair law.
Brownstoner, BREAKING: Judge OKs Eminent Domain Seizure at Yards
The Brooklyn Paper is reporting that State Supreme Court Justice Abraham Gerges this morning ruled against property owners in the footprint of the Barclays Center, paving the way for Forest City Ratner to begin construction on arena. In one fell swoop, the judge rejected 14 claims by the owners as being meritless.
NetsDaily, Brooklyn Judge Rules Condemnation Can Proceed
Critics had asked Judge Abraham Gerges to halt the process, claiming project plans had changed and a new plan was needed. The ESDC expects to move quickly to condemn the properties. Land must be cleared before the Nets sale to Mikhail Prokhorov can be finalized.
ProBasketballTalk, Brooklyn Arena another step closer to reality
Great news Brooklyn -- you're that much closer to having a six-win team play in your back yard. Break out the champagne and Beluga caviar.
...Brooklyn has had a professional sports team in the past, it's time they once again got to enjoy the play of some bums.
The Cleveland Leader, Dodgers Move & Ratner Arrival - Which is Worse Brooklyn?
With the Ratners having run Cleveland for the past eight or so decades, Roldo Bartimole knows whence he writes.
The departure of the Brooklyn Dodgers was a blow to the people of Brooklyn, N.Y. but the arrival of a Ratner might be more devastating to Brooklyn citizens.
The Local [Fort Greene/Clinton Hill, Judge Rejects Eminent Domain Challenge to Atlantic Yards
Posted by eric at 4:07 PM
Gerges dismisses challenge to condemnation; no barrier to project construction; streets to close March 8
Atlantic Yards Report
After a month, Supreme Court Justice Abraham Gerges has dismissed a challenge to the condemnation of property needed for the Atlantic Yards project.
While there are other extant legal challenges, there's no bar to construction, and Forest City Ratner has said it would mobilize large numbers of workers shortly after the decision.
It was followed shortly afterward by a community notice stating that Fifth Avenue between Flatbush and Atlantic Avenues and Pacific Street between Fifth and Sixth Avenue and between Vanderbilt and Carlton avenues would close on Monday, March 8.
That's one-week notice; at a community meeting last week, a Department of Transportation official was unwilling to specify how much notice would be needed, while City Council Member Letitia James, a project opponent, asked for two weeks.
ESDC statement
The Empire State Development Corporation issued a statement:
ESDC is pleased with today’s ruling on the Atlantic Yards condemnation hearing by Justice Gerges of the Brooklyn Supreme Court, and is looking forward to moving ahead with a project that will bring an arena, open space, affordable housing, transportation improvements and thousands of jobs to Brooklyn.
The streets condemned by ESDC will be closed as of 6:00 am, Monday, March 8, 2010, giving the community a full 7-days notice in addition to the public notice first issued in early January. ESDC is coordinating with Forest City Ratner Companies and the Brooklyn Department of Transportation to update the relevant message boards and otherwise provide notice to the community. While no formal notice period is required under law, in hearing from the community and working with the Department of Transportation, ESDC believes this additional notice period will help the community prepare for anticipated traffic changes while not overly delaying the commencement of principal construction of this eagerly anticipated project.
In terms of those residents occupying condemned property, ESDC has been and will continue to work with occupants to relocate them and anticipates an orderly relocation taking place over the course of the next few months.
Click through for a statement from Brooklyn Borough President Marty Markowitz.
Posted by eric at 3:54 PM
BREAKING! Judge rules against Yards property owners, paving way for construction
The Brooklyn Paper
by Stephen Brown
State development officials can seize properties in the footprint of developer Bruce Ratner’s Atlantic Yards project through eminent domain, a state court ruled on Monday morning, removing the most significant legal hurdle remaining before construction can begin on the Barclays Center arena.
New York State Supreme Court Justice Abraham Gerges ruled this morning that 14 claims asserted by condemnation opponents — including the timing of the condemnations, the legality of a modification of the Atlantic Yards project plan and even the state’s failure to use the words “public use” in a section over why the land is being condemned in the first place — had no “merit.”
Gerges’s ruling applies to properties that Ratner says he needs immediately to begin construction, including the home of project holdout Daniel Goldstein on Pacific Street and the building housing Freddy’s Bar on Dean Street.
The case was argued on Jan. 29. Gerges’s ruling was strictly on procedural grounds, contending that “the court is required to direct the immediate filing and entry of the order granting [the condemnations] unless there is merit to any of the [landowners’] defenses.”
With Gerges’s ruling, the street closures around the Barclays Center site will likely proceed quickly, though it is unclear when the actually taking of property will occur.
Posted by eric at 12:21 PM
February 24, 2010
Efforts to use Columbia decision to reopen Atlantic Yards eminent domain, EIS cases rejected by Court of Appeals
Atlantic Yards Report
They were both long-shot efforts, but attempts by Develop Don't Destroy Brooklyn (DDDB) and plaintiffs organized by DDDB to reopen two key Atlantic Yards cases have been rejected [without comment] by the state Court of Appeals.
Thus the eminent domain case--but not the pending challenge to the actual condemnation--is over, as is the case challenging the environmental review.
This narrows the remaining court cases related to the project to three, though two are essentially versions of the same case.
Posted by lumi at 6:21 AM
February 17, 2010
Times analyzes more "liberal" Court of Appeals under Lippman; eminent domain (and the role of Silver) get a pass
Atlantic Yards Report
A New York Times article running tomorrow on the state Court of Appeals tries to make a point about Chief Judge Jonathan Lippman, but eminent domain--which might complicate the argument--gets ignored.
The article, headlined Judge Puts Liberal Imprint on New York’s Top Court, begins:
Gov. David A. Paterson nominated Jonathan Lippman to head the New York Court of Appeals in January 2009, making him the chief judge of the state. The choice was a gamble: the judge, a longtime court administrator, did not have a long history of deciding cases, and there was almost no record of his political views.
Now, a year in, the parameters of the Lippman court are coming into focus: he has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show. To get the rulings he wants, the decisions show, the new chief judge has built alliances case by case with each of the four judges who were nominated by the last Republican governor, George E. Pataki, cracking the conservative majority.
Looking more closely
I posted most of the following as comments on the Times's web site.
While the court may have moved to the left in certain areas, on the contentious issue of eminent domain--which now challenges ideological boundaries--the court most recently displayed great deference to the state, which is hardly a "left" position.
NoLandGrab: While deference to the state may not be a lefty position, permissiveness on the use (and abuse) of eminent domain is completely in step with liberal orthodoxy. Remember, the five most liberal Supreme Court justices at the time were in the majority onKelo, while the four most conservative justices firmly opposed New London's taking.
Posted by eric at 10:15 PM
February 9, 2010
Would the Court of Appeals permit reargument of the Atlantic Yards case, given the Columbia appeal? It's a long shot, and we should know soon
Atlantic Yards Report
The unusual, long shot effort to get the state Court of Appeals to reopen the Atlantic Yards eminent domain case it dismissed in November could see a result as early as today, when the Court of Appeals resumes issuing decisions. Or it could linger for weeks or months.
Should the court agree to reargument of the appeal, or to simply hold it in abeyance until the not dissimilar Columbia University case is resolved, that could stay the pending decision by state Supreme Court Justice Abraham Gerges on an unusual challenge to the actual condemnation.
But if the court dismisses the motion, that would remove one of the few potential roadblocks--all long shots--to transfer of title should Gerges rule in favor of the Empire State Development Corporation (ESDC).
Forest City Ratner is proceeding--mostly--as if none of these cases poses a threat; it has signed contracts for arena construction and has continued utility work and demolition, but has not announced an official groundbreaking.
The Columbia opening
Let's recap. The AY case, known as Goldstein v. ESDC, was dismissed 6-1 in late November, with the majority opinion stating that it was the role of the Legislature, not the courts, to narrow the definition of blight and the dissenting judge saying the court was much too deferential to the ESDC.
Nine days later, a lower court, the Appellate Division, blocked the ESDC's use of eminent domain in the Columbia University expansion, in a case known as Kaur v. ESDC. While the ruling was 3-2, the two-judge plurality opinion slammed the ESDC for its use of consultant AKRF, its reliance on underutilization as an indicia of blight, and its indulgence toward a private developer.
While the fact pattern in the Columbia case is different from the AY case, the issues of underutilization and deference to the agency are similar. Then again, Judge James Catterson's plurality opinion ignored any reference to the judge-decided AY case, a glaring omission leaving open the option for a complete reversal.
But the Court of Appeals had already ruled against the ESDC in another Columbia case--regarding the agency's unwillingness to hand over documents requested via the Freedom fo Information Law--and may be disposed to looking carefully at its actions.
Courts, as institutions, are generally reluctant to admit that they just made mistakes, so the petitioners in the AY case have an uphill climb.
Posted by eric at 10:59 AM
February 8, 2010
Perkins introduces bill to reform eminent domain by redefining blight; had provisions been enacted earlier, AY would have been blocked
Atlantic Yards Report
As previewed (Gotham Gazette, New York Times), State Senator Bill Perkins has introduced a sweeping bill (S. 6971) to redefine eminent domain by redefining blight--currently subsumed under the amorphous terms "substandard and insanitary."
Thus environmental consultants like AKRF inevitably find blight when so requested by agencies like the Empire State Development Corporation (ESDC).
The bill, which likely will gain both supporters and critics, is clearly a response to the efforts to use eminent domain in the cases of Atlantic Yards, Columbia University, and Willets Point. The bill's provisions aren't retroactive, but if they were, they almost certainly would've have precluded the use of eminent domain for the AY site.
New York is one of few states--perhaps seven--that failed to enact any reforms regarding eminent domain after the Supreme Court's controversial 2005 Kelo v. New London decision, and the libertarian Institute for Justice, which brought the Kelo case, considers New York "one of the worst" states in the country when it comes to eminent domain abuse.
Underutilization
Notably, the bill eliminates the opportunity for condemning authorities like the ESDC to cite underutilization--as it did in the Atlantic Yards and Columbia cases--as an indicia of blight.
Given that AKRF deemed properties occupying less than 60% of allowable development rights (Floor Area Ratio, or FAR) as blighted, that could potentially doom broad swaths of the city.
Posted by eric at 10:29 AM
February 5, 2010
Looking back at the legal battles: the eminent domain cases over nearly three-and-a-half years
Atlantic Yards Report
With news on the Atlantic Yards front slow on a mid-winter Friday, Norman Oder decided to take a look back at the three-and-a-half year legal battle over the project's use of eminent domain.
The legal battles regarding the Atlantic Yards project are epic and, while nearing conclusion, hardly over. Here are some flashbacks to the arguments over eminent domain, first in federal court, later in state court.
I'll write at another time about the other cases, including those challenging the Empire State Development Corporation's (ESDC) environmental review, the revised Metropolitan Transportation Authority deal for the Vanderbilt Yard, and the ESDC's approval of the 2009 Modified General Project Plan.
Legal papers are posted on Develop Don't Destroy Brooklyn's web site.
Posted by eric at 1:11 PM
January 30, 2010
Condemnation on hold after judge promises prompt review of claims; streets unlikely to close on February 1 - Updated
Atlantic Yards Report
Usually, NoLandGrab only posts a blog entry once, but this one by Norman Oder has been substantially updated and now provides blow-by-blow coverage of yesterday's condemnation hearing.
Here are choices for Justice Abe Gerges to choose from in ultimately ruling on this case:
Gerges's focus is on the narrow law of condemnation, so it would be unusual for him to allow argument on claims that the project has changed so much--and after the chance for public comment on such changes--that the ESDC should issue a new Determination & Findings.
So he could simply dismiss the new claims filed by property owners and leaseholders. Or he could ask the ESDC to revise the petition because of technical defects. Or--the longer shot--he could look at the broader claims, or hold this case in abeyance while another court examines those claims.
...
Here is Brinckerhoff on the need to reign in out-of-control agencies (such as the ESDC, tool of developer Bruce Ratner).
Brinckerhoff moved on to his analogy regarding the court's presumed unwillingness to transfer title if no financing were available. "What has happened is the fundamental equivalent of the project being abandoned," he said.
Gerges pointed out that courts are supposed to defer to legislative agency.
"There are limits to that deference," Brinckerhoff said, pointig to the unelected three ESDC board members who approved the plan, based on blight findings--including sidewalk cracks and underutilization--made by environmental consultant AKRF, which was slammed in the Columbia case.
"The reason we have courts is so they can rein in agencies when they go too far," he said.
"The only thing we know we're getting is an arena," he said, failing to acknowledge the one promised housing tower.
"And we know the arena is not a benefit to the public," he continued, pointing to New York City Independent Budget Office cost-benefit analysis that it would be a net loss to the city--a study to which the ESDC responded by pointing to its less rigorous benefit analysis, based significantly on taxes from that phantom office tower.
"We are entitled to raise these issues," Brinckerhoff said. "No court should stick its head in the sand. We'll go [to court] where we're told to go."
Please click on the link to get all the details on this hearing.
Posted by steve at 8:29 AM
Property Seizure for Atlantic Yards Is Delayed
New York Times
By Colin Moynihan
The state’s planned seizure of property in Brooklyn to make way for the $4.9 billion Atlantic Yards project was delayed on Friday when a judge declined to rule immediately on the state’s request for final approval.
After hours of argument at a condemnation hearing by lawyers for property owners attempting to halt eminent-domain seizure and by lawyers for the state entity, the Empire State Development Corporation, that seeks to condemn the land, the judge, Abraham G. Gerges of State Supreme Court, told the lawyers, “We’ll get back to you.” He said he would rule “expeditiously.”
...
At the condemnation hearing, a lawyer for the property owners, Matthew D. Brinckerhoff, urged Justice Gerges to re-examine the project before granting the development corporation title to the properties, in the Prospect Heights neighborhood near Downtown Brooklyn.
“We are asking this court to be the only court thus far to allow us to raise issues that have transpired over the last three years,” he said. “The fact that they changed so much about this project has to be heard.”
Charles S. Webb III, a lawyer for the Empire State Development Corporation, responded by telling the judge that current plans by the developer, Forest City Ratner, were “virtually identical” to plans that the state approved in 2006. (Forest City Ratner was also the development partner of The New York Times Company in building its new Midtown headquarters.)
NoLandGrab: Best comment from "Jamie" on this Times blog entry:
“Charles S. Webb III… responded by telling the judge that current plans… were “virtually identical” to plans that the state approved in 2006.”
Yes “virtually identical” if you mean “substantially different.”
Posted by steve at 7:32 AM
Atlantic Yards Condemnation Rests in Hands of Brooklyn Judge
Brooklyn Daily Eagle
By Samuel Newhouse
The fate of properties in the footprint of the proposed Atlantic Yards project is still in limbo after a condemnation hearing on Friday in Kings County Supreme Court. Brooklyn Supreme Court Justice Abraham G. Gerges decided not to issue a decision Friday, citing submissions as recent as the day of the hearing and the day before. A decision will be released “expeditiously,” Gerges said.
It was within the power of Justice Gerges to condemn the properties on Friday and transfer title to the Empire State Development Corporation (ESDC) – a state-run construction organization that would then lease the properties seized by eminent domain to developer Bruce Ratner.
Ratner’s company Forest City Ratner would then be able to build his multibillion dollar Atlantic Yards project at Atlantic and Flatbush avenues, which includes a NBA basketball arena for the New Jersey Nets to move to Brooklyn.
Community group Develop Don’t Destroy Brooklyn (DDDB) and home- and business-owners who will have their land seized by the state have filed a myriad of lawsuits to stop or modify Atlantic Yards. Several months ago, in the most high-profile case, New York’s highest court ruled that it is constitutional for the state to take the land in question.
...
One of the arguments by attorney Matthew Brinckerhoff (whose name is misspelled in the Brooklyn Eagle article) calls for a hard look at what really constitutes the proposed Atlantic Yards project.
Lead attorney for the plaintiffs Matthew Brinckeroff said that one of the reasons that the condemnation petition is defective is that changes to the Atlantic Yards project since December 2006 have never been considered by any court.
Brinckeroff said that according to the amended project plan released in September 2009 and other sources, changes to the Atlantic Yards project include a construction timeframe increase from 10 years to up to 25 years, the possible absence of affordable housing from the project, and the reduction of the project from 7.9 million square feet to 4 million square feet.
“The Court of Appeals never examined any of these issues,” Brinckeroff said, saying that a November 2009 decision by the state’s highest court was based entirely on plans and environmental reviews from before December 2006.
“Where on the continuum from nothing changing from December 2006 to everything changing from December 2006 do we get to be heard?”
Posted by steve at 7:23 AM
January 29, 2010
Condemnation on hold after judge promises prompt review of claims; streets unlikely to close on February 1
Atlantic Yard Report
No, the Atlantic Yards condemnation case was not going to be simple, after all.
After nearly two hours of oft-contentious oral argument before Kings County Supreme Court Judge Abraham Gerges--argument that, according to counsel for the Empire State Development Corporation (ESDC) went well beyond the proceeding at hand--the judge chose not to rule on the motions and counter-motions filed in the last two days.
"While the court will proceed promptly, the parties are entitled to a review of their claims," Gerges said at the end of the hearing, promising to "proceed expeditiously."
That means, most likely, that streets planned for closure February 1 will not close, even though developer Forest City Ratner seeks the closure of Fifth Avenue between Flatbush and Atlantic avenues for sewer work needed before arena construction will go forward--and has said it wanted that street closed even if the case was delayed.
...Gerges was not unskeptical about the claims raised by attorney Matthew Brinckerhoff, representing several footprint property owners and leaseholders, who argued that changes in the project after the ESDC's 2006 approval of the eminent domain Determination & Findings (D&F) were so significant that a new D&F was required.
Weren't such issues supposed to be dealt with in other cases, the judge asked.
Brinckerhoff pointed out that other courts considering AY-related cases had relied solely on the record as of December 2006. "The fact that they changed the project so much has to be considered by someone," he said.
He suggested, by way of example, a situation in which a D&F had been approved but there was absolutely no financing for a project. In such a case, despite the D&F, he said, a condemnation court would not have transferred title.
He said: "The question is: where on the continuum from nothing changing to everything changing do we get heard?"
Posted by eric at 3:53 PM
Motion to dismiss condemnation raises procedural issues and larger argument that no findings were made for significantly changed (and delayed) project
Atlantic Yards Report
The condemnation hearing today in state Supreme Court could result in the Empire State Development Corporation (ESDC) taking title to property it needs in the Atlantic Yards footprint.
But attorneys for the property owners and leaseholders, in a case organized and funded by Develop Don't Destroy Brooklyn, are pressing both narrow and broad issues in their motion to dismiss the case. Most notably, they argue that the project has changed so much that the 2006 Determination & Findings (D&F) no longer stands.
It's an unusual challenge, breaking new ground, and thus hard to assess. Judges usually grant condemnation petitions. And judges usually hesitate to substitute their judgments for agencies like the ESDC
But AY has always been complicated, and the motion to dismiss (reproduced at bottom) makes some serious claims.
So, unless Justice Abraham Gerges decides that none of it is relevant, it could be a long hearing and/or a reason to allow much more time for further argument or an opportunity to consider dueling legal arguments.
Click on the link to get details on the legal arguments.
Posted by steve at 7:33 AM
Atlantic Yards Condemnation In Court Friday
Brooklyn Daily Eagle
By Ryan Thompson and Samuel Newhouse
The homes and buildings remaining in the footprint of the proposed Atlantic Yards development may finally get taken. Years after the state set out to acquire the property via eminent domain, the hearing that is expected to approve the condemnation is set for Friday in Brooklyn.
Kings County Supreme Court Justice Abraham G. Gerges is scheduled to preside over a hearing regarding a condemnation petition filed by Empire State Development Corp (ESDC). It’s the last step required for the state to take control of the land at Atlantic Yards, which the New York Court of Appeals ruled can be done via the constitutional use of eminent domain.
...
The Brooklyn Eagle thinks that attendance by members of the community at today's Condemnation Hearing constitutes packing the courtroom. Don't worry, attendance is a right and your interest is welcomed.
Members of grassroots group Develop Don’t Destroy Brooklyn (DDDB), which strongly opposes Atlantic Yards, are expected to pack the courtroom. DDDB spokesman and lead plaintiff in the eminent-domain case Daniel Goldstein said, “We will challenge the petition. It is defective in many respects.”
Posted by steve at 5:03 AM
January 20, 2010
Lawyers: Yards neighbors will enjoy decades of blight
The Brooklyn Paper
by Stephen Brown
State officials condemned Prospect Heights to as much as 23 years of upheaval by ignoring the implications of giving Atlantic Yards developer Bruce Ratner more time to build his mega-development when they renegotiated their so-called sweetheart deal with the builder last summer, project opponents alleged in court on Tuesday.
Lawyers from a broad coalition of Atlantic Yards opponents made their argument in state Supreme Court in what is the final major case against the Empire State Development Corporation, the quasi-public agency supervising the project.
The plaintiffs’ main argument centered on what they believe is Ratner’s extended buildout for his 16-skyscraper residential, retail and arena project, which was originally supposed to be done by 2016.
The terms of the summer renegotiation allow Ratner to complete the project by 2031 — yet the state did not conduct a new environmental review to determine if such a long buildout would have dire consequences for the neighborhood.
Related coverage...
Mobilizing the Region, Brooklyn Groups: State Rushed Through Changes to Atlantic Yards
Several Brooklyn civic and community organizations, joined by local elected representatives, argued in state court today that the Empire State Development Corporation improperly rushed through major changes to the Atlantic Yards project without legally required study.
The modified plan changed the schedule for construction, delaying the finished product by 17 years and deferring the creation of public space. It expands the size of the surface parking at the site, seemingly creating the “blight” that the state has used to justify the use of eminent domain in the first place. The effects of the expanded timeline on the surrounding neighborhoods were not studied in a Supplemental Environmental Impact Statement, ignoring the “hard look” required under state environmental law.
In addition to altering the construction plan, the suit contends that ESDC improperly ceded decision power over future changes to the development plan to Forest City Ratner, the developer.
Posted by eric at 10:51 AM
In court argument over ESDC project approval, questions about the MTA's Vanderbilt Yard deal and the mysterious development agreement
Atlantic Yards Report
Well, if you'd read the papers in the lawsuits challenging the Empire State Development Corporation's (ESDC) approval of the 2009 Atlantic Yards Modified General Project Plan (MGPP), the two-hour-plus argument in court yesterday wasn't all too surprising.
But the reason some 70 people--mainly Atlantic Yards opponents including Council Member Letitia James), but also ESDC officials and Forest City Ratner executives--packed a state Supreme Court courtroom in Lower Manhattan is that the courts remain a wild card, a potential, if unlikely, brake on state power in such cases.
Justice Marcy Friedman asked marginally tougher questions of the ESDC attorney, but evinced no particular sympathies, maintaining a serious and skeptical mien throughout the proceeding.
She did not rule on a requested preliminary injunction that would stop current activities--demolition, railyard work, environmental remediation--but indicated she'd rule on the case in a few months, before significant construction.
So it's unlikely anything other than a symbolic groundbreaking would be held in the near future. Should the lawsuits succeed, the ESDC's Modified General Project Plan for AY would be annulled, as would be the subsequent resolutions and contracts--essentially setting the project back and, given the snag in arena bonds, dealing it a serious if not fatal blow.
(Photos and set by Tracy Collins)
Posted by lumi at 5:56 AM
January 19, 2010
After court says announced change was a mistake, Atlantic Yards condemnation case back on for January 29 hearing
Atlantic Yards Report
You really can't make this stuff up:
Never mind.
After an electronic court filing indicated that the Atlantic Yards condemnation case was postponed from January 29 to March 17 and with a different judge than anticipated, court officials today said that was a mistake and the case will proceed on January 29 before Justice Abraham Gerges.
Posted by lumi at 7:51 PM
Cases challenging ESDC's approval of AY goes to court today; dispute concerns timetable, KPMG study, SEIS, affordable housing requirement
Atlantic Yards Report
Norman Oder offers up an in-depth preview of today's court showdown(s).
Today, the Atlantic Yards legal saga hits another flashpoint, with oral argument at 2:30 pm in state Supreme Court in Manhattan, combining two similar cases, one brought by groups led by Develop Don't Destroy Brooklyn (DDDB) , and another brought by groups in BrooklynSpeaks.
The last major case to go before a judge--though there could be more--challenges the Empire State Development Corporation's (ESDC) September approval of the Modified General Project Plan (MGPP), in part because the ESDC board was not (allegedly) told the details of how the deal for the Vanderbilt Yard was renegotiated, thus creating a 22-year timetable.
And while the case cannot formally stop the (now-postponed) condemnation plans, at least not without a stay or preliminary injunction, success could delay or even doom the project. The case will be heard by Justice Marcy Friedman.
Posted by eric at 12:43 PM
BROOKLYNSPEAKS MEDIA ALERT: BrooklynSpeaks goes to court for accountability on Atlantic Yards
Date/Time:
Tuesday, January 19, 2010, 2:30 PM
NEW LOCATION:
NY Supreme Court, 60 Centre Street, Room 335 in Manhattan
Contact:
Jo Anne Simon – (917) 685-3747
Linda Gross, LCG Communications – (718) 853-5568; (917) 767-1141
On January 19, 2010 at 2:30 PM, New York Supreme Court Justice Marcy Friedman will hear arguments in a suit filed by several BrooklynSpeaks sponsors, elected officials and individuals challenging the approval of the Atlantic Yards Modified General Project Plan. The location of the hearing was changed this morning to Room 335, 60 Centre Street in Manhattan.
When suit was filed on November 19, Atlantic Yards’ developer, Forest City Ratner, spoke dismissively of the suit being just another in a string of litigation by project opponents. But the opposite is true. “BrooklynSpeaks’ member organizations have tried for three years to engage the Empire State Development Corporation (ESDC) regarding impacts of the Atlantic Yards project on the surrounding communities. This includes putting forth a thoughtful proposal for the governance of the project which proposed a strong advisory role for local elected officials and community residents currently excluded from any meaningful participation. We have been forced to litigate to make this project accountable,” stated Gib Veconi of the Prospect Heights Neighborhood Development Council.
Since the suit was filed, a mere two months ago, a chorus of new voices from across the political spectrum has risen in outrage over the questionable relationships between government agencies and private developers, including a State Appellate Division decision which struck down the use of eminent domain to acquire land for Columbia University; a new State law which brings oversight measures to the State’s public authorities (including the ESDC), an investigative hearing convened by State Senator Bill Perkins to look into ESDC’s role in both the Atlantic Yards and Columbia University land deals; and an indictment brought against a Yonkers city councilmember of taking a bribe in another Ratner project.
“New Yorkers have started to find out exactly how little Atlantic Yards’ promises of economic development and job creation are worth,” said Joanne Simon, spokesperson for BrooklynSpeaks. A few weeks before Christmas, 88 families at the Pacific Dean Annex shelter were told the facility would close on January 15th for demolition, with no relocation assistance offered by the developer. “This doesn’t bode well for the community and future actions by this developer. The public and our elected officials are seeing that the project has no effective oversight or benefits for Brooklyn,” said Deb Howard, Executive Director of Pratt Area Community Council.
More and more people agree—when it comes to the ESDC and Atlantic Yards, we’ve had enough. It’s long past time for accountability on the largest development in Brooklyn’s history or the largest sole source development in New York City history. Join us in bringing that message to court on January 19.
Posted by eric at 11:46 AM
TODAY: Jan 19: Oral Argument in DDDB et al. v. Empire State Development Corporation — PLEASE NOTE ADDRESS CHANGE
From Develop Don't Destroy Brooklyn (dddb.net):
Legal arguments in the lawsuit brought by DDDB and 19 other community groups challenging the Atlantic Yards Modified General Project Plan approved in September will take place on January 19 at 2:30pm.
We invite and urge you to attend the arguments and spread the word.
Details below:
Tuesday, January 19. 2:30pm
Oral Argument for Develop Don't Destroy Brooklyn et al. v. Empire State Development Corporation
Manhattan State Supreme Court
60 Centre Street, Room 335
Manhattan
[ MAP ]
Please note the new address above.
Posted by lumi at 7:17 AM
January 15, 2010
For its defense of case challenging AY project approval, ESDC relies on deference to documents still under wraps
Atlantic Yards Report
The last major Atlantic Yards case to go before a judge is the one challenging the Empire State Development Corporation's (ESDC) September approval of the Modified General Project Plan (MGPP), in part because the ESDC board was not (allegedly) told the details of how the deal for the Vanderbilt Yard was renegotiated.
I'll have a broader preview before the court hearing next Tuesday, but first want to point to a key point of dispute between the ESDC and the groups (led by Develop Don't Destroy Brooklyn) bringing the case, which is consolidated with a similar suit brought by groups that are part of BrooklynSpeaks.
The petitioners assert that the Vanderbilt Yard deal points to a project that would last some 22 years rather than the promised ten years. The ESDC claims they're wrong, and buttresses its case by pointing to a set of documents that has not been made public.
...No one other than representatives of the ESDC and Forest City Ratner have seen these documents. So how can they be fairly assessed?
NoLandGrab: We suppose we could just trust them, right?
Posted by eric at 12:56 PM
January 13, 2010
newstracker: court to hear suit concerning Nets' brooklyn site
NorthJersey.com
By John Brennan
What's new: New York's Supreme Court is scheduled to hear oral arguments Tuesday in a lawsuit filed against developers who want to move the New Jersey Nets basketball team to a proposed Atlantic Yards project near downtown Brooklyn.
...
This suit contends that the Empire State Development Corp. — the state agency overseeing the project and also a party to the suit — improperly approved a modified general project plan last September.
Posted by lumi at 5:43 AM
January 11, 2010
Legal case challenging AY approval will be heard on January 19, not January 15
Atlantic Yards Report
While there are appeals requested and potential cases to be filed, the last major Atlantic Yards case to go before a judge is the one challenging the Empire State Development Corporation's (ESDC) September approval of the Modified General Project Plan, in part because the ESDC board was not (allegedly) told the details of how the deal for the Vanderbilt Yard was renegotiated.
That case will be heard not this Friday, as originally scheduled, but on January 19. Of course, developer Forest City Ratner and the ESDC are proceeding as if the case were meaningless (or its resolution not in question), and there's no formal bar to proceeding. Still, it could, at the least, send the project back for re-approval or, at the most, nullify the ESDC's approval.
Posted by eric at 7:32 PM
Date Change for Atlantic Yards Legal Argument. Now January 19, 2:30pm
Develop Don't Destroy Brooklyn
Now Tuesday, January 19. 2:30pm
We invite and urge you to attend the arguments and spread the word.
Details below:Tuesday, January 19. 2:30pm
Oral Argument for Develop Don't Destroy Brooklyn et al. v. Empire State Development Corporation
Manhattan State Supreme Court
80 Centre Street, Room 328**
Manhattan
[ MAP ]
(**Address subject to change, check DDDB.net)
Posted by eric at 6:56 PM
January 8, 2010
From the U.S. Attorney on the Yonkers case: "the developer enlisted the [now-indicted] Jereis," but he "demanded" a consulting contract from FCR
Atlantic Yards Report
Forest City Ratner says it's not a target in the Yonkers corruption case involving former Council Member Sandy Annabi and former Republican Party Chair Zehy Jereis, but the U.S. Attorney wouldn't confirm that.
According to the prepared remarks for U.S. Attorney Preet Bharara, which I received today, the clues regarding FCR's role are contradictory; one sentence suggests FCR was a mover behind the alleged dirty deal, while another suggests that "Developer No. 2" might have been extorted:
In June, the developer enlisted Jereis, who had been providing Annabi with tens of thousands of dollars in secret payments, to get Councilwoman Annabi’s vote.
...And for his part, Jereis demanded, and received, a so-called consulting contract worth $60,000 a year from the Ridge Hill developer immediately after Councilwoman Annabi switched her vote.
Did FCR blow the whistle?
According to unnamed sources talking to the Daily News (as noted by DDDB), it looks like FCR was playing along:
At no time during these meetings and agreements with Jereis did Ratner go to the FBI, according to two sources familiar with the investigation.
NoLandGrab: Oh, please. If Forest City was being extorted, Bruce could have worn a wire and exposed the plot. The feds ought to heed Deep Throat's Watergate advice: follow the money.
Posted by eric at 6:04 AM
January 7, 2010
Yonkers pol Sandy Annabi took bribe to OK Ratner deal, feds say
NY Daily News
by Robert Gearty and Greg B. Smith
Has there ever been a more apropos federal indictment alias than Forest City Ratner's "Developer No. 2?"
Developer Bruce Ratner's company agreed to hire the cousin of a former Yonkers councilwoman if the pol dropped her opposition to one of his major projects, prosecutors and other sources say.
The stunning conflict emerged in the indictment Wednesday of Yonkers Councilwoman Sandy Annabi and her cousin Zehy Jereis, a former Yonkers official.
Annabi, Jereis and a local lawyer were hit with multiple charges, brought by Manhattan U.S. Attorney Preet Bharara, in a bribery and extortion scheme.
Ratner confirmed that his firm, Forest City Ratner, was the "Developer No. 2" named in the indictment. The project at issue was a huge residential/commercial project in Yonkers called Ridge Hill.
Annabi opposed Ratner's project. Then, in June 2006, Jereis was introduced to unnamed reps of Developer No. 2 who promised to arrange a meeting with Annabi, the indictment states.
After Jereis and Annabi met with Forest City reps at a Brooklyn restaurant, Jereis asked Forest City to give him a job, the indictment and sources state.
The potential quid pro quo emerged in a June 28, 2006, "agreement in principle" in which Developer No. 2 "agreed to give Jereis a job sometime after Annabi formally voted in favor of the Ridge Hill project," the indictment alleged.
Two weeks later, Annabi switched her vote. In October 2006, Developer No. 2 signed a contract hiring Jereis as a "real estate consultant" for $60,000 at $5,000 a month.
Jereis had no real estate experience and the contract was backdated two months.
Although the contract required Jereis to submit invoices, he didn't until word leaked of an FBI investigation in March 2007. Jereis then sent Forest City seven months worth of backdated invoices.
At no time during these meetings and agreements with Jereis did Ratner go to the FBI, according to two sources familiar with the investigation.
More coverage...
The New York Times, Ex-Official in Yonkers Faces Charges of Corruption
Oops! The Times forgot to mention that "Developer No. 2" was "Developer No. 1" of its Manhattan headquarters building!
A former Yonkers city councilwoman was indicted Wednesday on federal charges of accepting nearly $167,000 in cash and gifts in exchange for dropping her opposition to two contentious developments, including a $630 million project that is the city’s largest private undertaking.
...The investigation began in 2008, about two years after Ms. Annabi voted to enable a $630 million residential and commercial project by Forest City Ratner known as Ridge Hill, to move forward. Shortly after Ms. Annabi cast her vote, Forest City hired Mr. Jereis as a consultant at $60,000 a year.
AP via 1010WINS, Yonkers Councilwoman Accused of Accepting Bribes
Although the indictment incriminates the unidentified developers, Bharara would not discuss why they were not named in the indictment or charged.
...According to the indictment, the Ridge Hill developer, Forest City Ratner Cos., held a meeting with Jereis and Annabi during which Jereis asked for a consulting job. Annabi reversed her vote five days later and Jereis got a $60,000 position, it says.
LoHud.com, Yonkers residents express surprise, dismay over former Council member's indictment
Martin McGloin helped organize a group called Community First! to oppose the Ridge Hill Village project. McGloin said he was not surprised by the accusations against Annabi, who changed her opposition to both Ridge Hill and the Longfellow School at the last minute.
"I've read the indictment. Obviously they must have hard evidence for what they're putting in the indictment," McGloin said.
"There was a lot of back-room dealing among the council members with the developers," he said.
LoHud.com, Yonkers indictments: Greenburgh considers reopening lawsuit vs. Ridge Hill
The town may reopen its lawsuit against the Ridge Hill development, saying the project's environmental impact study may have been compromised if former Yonkers Councilwoman Sandy Annabi took a bribe to support of the controversial development.
Greenburgh filed a suit against the developers over concerns with the size and traffic impact of the mixed-use Yonkers project near the town's border. The town settled the case in 2007, though town Supervisor Paul Feiner said he and other board members were still concerned about the traffic impact. Outside legal counsel specializing in land use advised the town to settle since the Yonkers City Council supported the project, Feiner said.
...The Town Board could direct the town attorney to review possible legal action when it meets at 7:30 p.m. Wednesday at Town Hall, 177 Hillside Ave.
LoHud.com, Reisman: Scandal runs deeper than Annabi
This is the tip of the iceberg. It has to be.
No one who has spent any time watching Yonkers and its sad Byzantine history of cronyism, greed and shady deal making believes that the deal to smooth the way for a couple of major developments could possibly begin and end with only a vain councilwoman and the two political hacks.
There must be more.
...Preet Bharara, U.S. attorney for the Southern District said, at Wednesday's news conference that the federal investigation into Yonkers corruption is continuing. He did not discount the possibility of more indictments.
LoHud.com, Loss of Faith, Destruction of Trust
Columnist Phil Reisman follows up today's column (above) on his blog.
It’s really come to this. Things are so bad in the way of corruption, legislative gridlock and greed that David Paterson, the governor of the greatest state in the greatest country in the world, used his State of the State Address yesterday to lecture lawmakers on the myriad ways they’ve destroyed the people’s trust.
...His address to the 212-member den of thieves came just an hour or so after a federal indictment was handed down in White Plains accusing former Yonkers City Councilwoman Sandy Annabi of accepting $166,000 in bribes to, in effect, help grease the wheels for two major development projects. One of them was the $600 million Ridge Hill project, a massive undertaking by the Forest City Ratner group, which is the same outift, incidentally, that is remaking an entire neighborhood in Brooklyn.
Ridge Hill will now forever be associated with corruption—that’s how critical Annabi’s vote was. If the allegations against her hold up, then it can always be said that Yonkers can bought for the price of a condo, a Rolex watch and a couple of vacation trips.
Posted by eric at 5:35 PM
January 6, 2010
Update: FCR says it's not a target
Norman Oder has amended his earlier post on federal indictments connected to Forest City Ratner's Ridge Hill project with the following:
Update: FCR says it's not a target
"Forest City Ratner Companies has cooperated fully with the U.S. Attorney's Office during the course of its investigation and will continue to do so. In addition, Forest City has been advised by the U.S. Attorney's Office that neither the company nor any of its employees is a target of the investigation," said Ed Tagliaferri, Senior VP, Dan Klores Communications, in a statement.
Note that the U.S. Attorney's Office would not comment when I earlier asked the same question. After I received the statement from Tagliaferri, I asked the U.S. Attorney's Office to confirm that "neither the company nor any of its employees is a target," and was told there was no comment.
NoLandGrab: What, FCR worry? Let's keep in mind that the U.S. Attorney alleges that Forest City promised and then delivered a consulting contract to the guy who bribed a Yonkers Councilmember to change her vote and approve their project.
More coverage...
NY Observer, Corruption Charges in Yonkers Development May Have Links to Forest City Ratner
A former City Council member in Yonkers and two others were indicted Wednesday on charges of corruption in a case that may have links with Brooklyn development firm Forest City Ratner. The investigation by the U.S. Attorney's office centers around Yonkers Councilwoman Sandy Annabi, and two individuals who allegedly helped convince her to sell her votes on two development projects: Zehy Jeries, former head of the Yonkers Republican Party, and Anthony Mangone, an attorney.
One of those projects' developers appears to be Forest City Ratner, in connection with its planned Ridge Hill mixed-use project. Forest City was not named directly or charged in the indictment, with the papers referring only to "Developer No. 2" as the developer of Ridge Hill.
The indictment alleges that Developer No. 2 gave Mr. Jeries a consulting contract worth $60,000 in exchange for swinging Ms. Annabi to vote for the project. Ms. Annabi previously had been opposed to the project, though ultimately voted in its favor, after Forest City agreed to numerous concessions including paying more property taxes. Mr. Jeries also is charged with giving Ms. Annabi a $70,000 loan and more than $50,000 in other financial benefits from 2004 to 2008. (Ms. Annabi and Mr. Jeries are cousins.)
Runnin' Scared, Pol Charged With Corruption in Ratner (Atlantic Yards) Project in Yonkers
Forest City Ratner, currently trying to ram Atlantic Yards down Brooklyn's throat, is unnamed and unindicted and unmentioned even in the U.S. Attorney's official statement. But the case centers on its controversial Ridge Hill development. (Indictment here; "Developer No. 2" is Forest City Ratner.)
...All suspects are innocent until they're proven guilty or unless they somehow wriggle off the hook. Except for the New Jersey Nets, the condemned property owned by Bruce Ratner. The NBA team is currently 3-31, and not even eminent domain can save it.
Posted by eric at 4:53 PM
January 3, 2010
Save the Date: January 15 Atlantic Yards Case Oral Argument
Develop Don't Destroy Brooklyn
A date has been set for legal arguments in the lawsuit brought by community groups challenging the Atlantic Yards Modified General Project Plan.
Friday, January 15. 11:00 AM
Oral Argument for Develop Don't Destroy Brooklyn et al. v. Empire State Development Corporation
Manhattan State Supreme Court
80 Centre Street, Manhattan
[ MAP ]
Posted by eric at 10:44 PM
December 17, 2009
Judge, deferring to MTA version of the case, dismisses lawsuit challenging revision of Vanderbilt Yard deal
Atlantic Yards Report
We already knew that private property in New York State is only "private" to the extent that somebody richer and more powerful than you doesn't have designs on it, but now it seems that it's okay for government bureaucrats to give the rich and powerful our public assets, too.
Norman Oder reports on yesterday's court decision.
State Supreme Court Justice Michael Stallman, in a ruling issued yesterday, dismissed the case. He wrote that not only did the plaintiffs--AY opponents Develop Don't Destroy Brooklyn, joined by four elected officials and the Straphangers Campaign--not have standing to challenge the alleged violation of the Public Authorities Accountability Act (PAAA), even with standing they couldn't make their case.
They charged that the PAAA, passed in 2005, requires an independent appraisal of the property and that a seller seek out competitive offers.
DDDB said it was considering an appeal and pointed to the MTA's willingness to leave $80 million on the table--money the agency asserts it will ultimately get--at a time of severe service cuts.
Stallman, in deferring to the MTA's version of the case, agreed that the limited response to the original 2005 RFP--only Extell responded along with Forest City Ratner--was due to "the unusual nature and scope of the project" rather than FCR's inside track.
Agreeing with the MTA
Stallman agreed with the MTA that the original plan and revised deal were essentially the same, subject to two modifications: the $100 million price would instead be $20 million down for the arena block, with the rest paid over 22 years, and the replacement railyard was value-engineered.
He also agreed that the process by which only two developers answered the RFP in 2005 was fair.
He left out the generous 6.5% interest rate granted Forest City Ratner and the extended time to operate a temporary railyard. He didn't comment on the rather surprising suggestion, by MTA CFO Garry Dellaverson, that FCR had the MTA over a barrel, rather than vice versa, given the developer's need to get the deal done in order to reap tax-exempt bonds by the end of the year.
Read on for more of Judge Stallman's rationalizations, including his ruling that the public has no standing to sue to stop the giving away of public assets.
article
Additonal coverage...
The Brooklyn Blog [NY Post], Courts drop MTA Suit by Brooklyn arena opponents
A state judge today sided with the MTA in a lawsuit challenging a "sweetheart deal" it gave developer Bruce Ratner to bail out his controversial Atlantic Yards project that includes an NBA arena for Brooklyn.
The suit, filed by several lawmakers and other project opponents, sought to annul the Metropolitan Transportation Authority’s revised deal with Ratner in June that allows the developer to pay off $100 million he owes the agency over 22 years for the 8.5-acre Vanderbilt rail yard site in Prospect Heights and also shave off more than $100 million of the $345 million in transit improvements he had promised there.
It also alleged the cash-strapped agency violated the Public Authorities Accountability Act by failing to obtain an independent appraisal of the site or solicit competitive offers before agreeing to a new deal.
But Judge Michael Stallman in his decision wrote the petitioners didn’t prove the revised plan "gives the MTA less than the estimated market value" or that the MTA "did not attempt to obtain competitive offers."
Reason Hit & Run, Another Loss in the Atlantic Yards Fight
More bad news on the Atlantic Yards front. Today a New York court upheld the Metropolitan Transit Authority’s (MTA) controversial deal allowing Atlantic Yards developer Bruce Ratner to acquire a crucial 8-acre rail yard for just $20 million upfront and $80 million due over the next 22 years. Remember that the MTA first struck a deal with Ratner for the property back in 2005—but without first opening the land up to competitive bidding as state law requires.
Posted by eric at 11:32 AM
December 16, 2009
DDDB PRESS RELEASE: The Same Day in NYC:
MTA Approves Severe Service Cuts
Court Rules MTA-Ratner Sweetheart Deal Lawful
(Deal Left At Least $80 Million on the Table)
NEW YORK, NY — On the same day that the MTA Board approved severe service cuts—including Access-A-Ride and discounts for school kids—a New York State Supreme Court ruled against petitioners who challenged the MTA's sweetheart deal for the Vanderbilt Rail Yards with developer Bruce Ratner.
This past summer the now "unexpectedly" cash-strapped MTA left $80 million on the table when it "negotiated" a new deal with Ratner for the 8-acre yards. Instead of paying $100 million as he had agreed in 2005, Ratner would now, after Board approval, pay only $20 million.
The lawsuit (Montgomery et al. v. MTA et al.) brought by State Senator Velmanette Montgomery, Assemblyman Jim Brennan, Councilmember Letitia James, the Straphanger's Campaign and Develop Don't Destroy Brooklyn, charged that the MTA violated the Public Authorities Accountability Act of 2005 when it did not test the market for competition for the Yards or issue an independent appraisal for the piece of valuable central Brooklyn real estate.
The MTA's deal also clearly violates the letter and the spirit of the new Public Authorities Reform bill signed last week by Governor Paterson. As The Times reported, "…authorities will no longer be allowed to sell real estate for below-market value, as the Metropolitan Transportation Authority did when it sold rights to build over railyards in Brooklyn to the developers of the Atlantic Yards project."
Just last week New York City announced that it has 29 developers interested in "redeveloping" the 62-acre Willets Point, Queens district it wants to take by eminent domain. Yet the MTA claimed that it was impossible to find any interested developers, besides Ratner, for the 8-acre site in the heart of Brooklyn. Not one.
"The MTA has no shame—while giving a sweetheart deal to billionaire developers, leaving at least $80 million on the table and widening its budget gap, its Board gives a big lump of coal to school kids, disabled New Yorkers and all transit riders. It's disgusting," said DDDB's spokesman Daniel Goldstein. "It's just one more plaque for the Atlantic Yards hall of shame, in the no-bid wing. MTA gives it away, Ratner wins and the public loses. For what? A money-losing arena in the middle of a fiscal crisis. We'd like to hear Governor Paterson, Mayor Bloomberg and Speaker Quinn justify this. While the Court has ruled, these leaders can do the right thing by New Yorkers, and collect the full $100 million Ratner reneged on."
The petitioners will review the decision and decide whether or no to appeal the Court's ruling.
The ruling is at: http://dddb.net/MTAsuit.
Posted by eric at 4:03 PM
Still more EMINENT DOMAINIA: The Big Apple Bites!
inversecondemnation.com, NY Times Editorial On Eminent Domain: Columbia Case "Completely Out Of Step With Eminent Domain Law" And Is "Weakly Reasoned." Really?
It should not be a huge surprise that the Times ends up cheerleading for the wrong team in both of these cases. As you may recall, the paper was the private beneficiary of a similar eminent domain action (as noted here), so at least it cannot be accused of being inconsistent. But let's give the editorial board the benefit of the doubt and assume that its opinion wasn't driven by crass self-interest, but by a genuine belief that the Kaur decision "conflicts with the relevant law."
It is still wrong.
...When the Times castigates the Kaur opinion as "weakly reasoned," you have to wonder whether the editors read the same decision we did, since all Kaur did was look at the facts. Unlike Goldstein, the Kaur court did not ignore Kelo's baseline and refuse to even look at the facts in the record. Goldstein washed its hands of the inquiry, holding that courts must accept an agency's determination that a parcel is in fact blighted. How Goldstein's interpretation of the New York Constitution's public use clause is above Kelo's Fifth Amendment baseline was never explained by the court.
...Thus, the Times editorial is 180 degrees off the mark: it is the Court of Appeals' abdication of the rule of law in Goldstein -- and not the Appellate Division's opinion in Kaur -- which "conflicts with the relevant law," and which is is "completely out of step with eminent domain law."
NEIGHBORHOOD EFFECTS, Empire State of Mind
These cases highlight just how much of a mess eminent domain proceedings are in the wake of 2005’s U.S. Supreme Court decision Kelo v. City of New London. Supreme Court decisions are no stranger to controversy, but the outrage surrounding Kelo transcended party or ideology, and led to forty-three states adopting restrictions on their own eminent domain powers.
New York, of course, is one of the seven "holdouts."
In the Brooklyn case, the issue is identical to Kelo. Bruce Ratner wants to tear down a significant portion of a vibrant neighborhood, and replace it with private economic developments including office towers, a shopping complex, and a basketball arena, which will likely be financed with a significant public subsidy.
...The majority’s reliance on the ESDC study is quite controversial, because it’s quite possible that the ESDC has significant conflicts of interest, if not outright corruption. These problems came to light in the Columbia University case.
Amsterdam News via The Black Urban Times, Judge gives Columbia University red light
Once in a while in the big bad city, the little guy wins.
Last Friday, an appeals court blocked New York State from seizing private property in order to further the planned $6.3 billion expansion of Columbia University. The 3–2 ruling by the Appellate Division of State Supreme Court in Manhattan backed charges against the Empire State Development Corporation (ESDC), saying that by allowing the use of eminent domain, ESDC was giving the Ivy League school an unfair advantage over commercial property owners of the land.
Posted by eric at 9:55 AM
December 10, 2009
Plaintiffs in Atlantic Yards eminent domain lawsuit ask Court of Appeals to reopen case given appeal in similar Columbia case
Atlantic Yards Report
Like a kindly teacher who gives a failing student an opportunity to re-take a test, the plaintiffs in the Atlantic Yards eminent domain case are willing to give the New York State Court of Appeals a second chance to get things right.
In an unusual, long-shot effort to reopen a case seemingly closed, attorneys for the plaintiffs--nine residential and commercial property owners and tenants--in the Atlantic Yards eminent domain litigation are asking the Court of Appeals to take a second look.
Why? A lower court's ruling against the use of eminent domain case for the Columbia University expansion will force the Court of Appeals to revisit the Empire State Development Corporation's (ESDC) application of allegedly arbitrary blight standards.
"We do not bring this motion for reargument lightly," said attorney Matthew Brinckerhoff in a press release from Develop Don't Destroy Brooklyn, which has organized and funded the lawsuit. "But this is an extraordinary situation. It's not every day that a court rules that the ESDC has conspired with an influential private party to violate the constitutional right to property."
"Given the Columbia and Atlantic Yards rulings, no one knows whether their property is now vulnerable to the ESDC engaging in the same pattern," he said. "We need clarity concerning the ESDC's fraudulent abuse of the ‘blight' issue. The ESDC has been unmasked as a serial eminent domain abuser. We've reached a tipping point where that agency's actions regarding condemnation have lost all legitimacy."
...Potential results
1) The motion could simply be rejected.
2) It could be accepted, and the 3-2 decision in the Columbia case--known as Kaur--could be overturned, based on the decision in the Atlantic Yards case, which gave seemingly unlimited authority to the ESDC to decide on blight. (That's what Greg David of Crain's thinks.)
3) It could be accepted, and the Columbia case could be upheld, but on narrow grounds, such as bad faith--the ESDC's use of three separate blight studies--not available on the AY case. That would leave the ESDC to proceed with condemnation.
4) Or it could be accepted, and the Court of Appeals could uphold the Columbia case on broad grounds, declaring the blight standard to be vague and its application improper. That's what the Atlantic Yards plaintiffs are hoping for.
article
Additional coverage...
NY Observer, After Columbia Decision, An Atlantic Yards Appeal to Top Court, Again
As promised, opponents of Bruce Ratner's planned $4.9 billion Atlantic Yards project are litigating once again.
Following a surprise court decision last week that ruled as unconstitutional the use of eminent domain for Columbia University's West Harlem expansion, opponents of the giant Brooklyn development today appealed again to the state's top court.
Click through to see the motion.
Brooklyn Daily Eagle, Eminent Domain Issue Not Dead?
Posted by eric at 9:09 PM
DDDB PRESS RELEASE: Atlantic Yards Eminent Domain Plaintiffs Request Reargument in Court of Appeals
Ask Court to Hold Decision on Request Until It Decides Columbia Case
Eminent Domain Ruling Against ESDC/Columbia Gives New Life to Brooklyn Owners and Tenants Fighting to Save Their Homes and Businesses
BROOKLYN, NY — The Atlantic Yards eminent domain issue will not go away. The legal fight against the Empire State Development Corporation's use of eminent domain to seize Brooklyn homes and businesses so developer Forest City Ratner can build a private arena and luxury condominiums continues.
Today plaintiffs in the Atlantic Yards case (Goldstein et al v. NY Urban Development Corp.) are asking the Court of Appeals to reconsider its November 24 decision, and specifically requesting that the Court hold any final decision on today's motion and appeal until the Court rules on the Columbia eminent domain case, which it will hear early next year.
The Appellate Division, First Department's, December 3rd ruling (Kaur v. NY Urban Development Corp.) in favor of property owners found that the Empire State Development Corporation engaged in a scheme to seize their properties by eminent domain for Columbia University's expansion plan. The ruling is the first to date that has exposed the ESDC's illegal activity and it has created confusion in New York's courts regarding eminent domain and "blight."
"We do not bring this motion for reargument lightly. But this is an extraordinary situation. It's not every day that a court rules that the ESDC has conspired with an influential private party to violate the constitutional right to property" said Matthew Brinckerhoff, an attorney representing the Brooklyn plaintiffs. "Given the Columbia and Atlantic Yards rulings, no one knows whether their property is now vulnerable to the ESDC engaging in the same pattern. We need clarity concerning the ESDC's fraudulent abuse of the ‘blight' issue. . The ESDC has been unmasked as a serial eminent domain abuser. We've reached a tipping point where that agency's actions regarding condemnation have lost all legitimacy."
The Columbia ruling, in stark contrast to the Atlantic Yards ruling only nine days prior, presents an extraordinary and compelling situation warranting reargument in the State's high Court. The ESDC's blight determination in the Columbia case was thrown out in a 3-2 decision that deemed it to be nothing more than "sophistry" and "idiocy." The post-hoc justification of blight to allow for what is an impermissible private taking of private property by ESDC, is the same in both cases. There is no common understanding or standard criteria used by ESDC and its blight consultant AKRF—in each case paid by the developers—to determine what "blight" is.
The ESDC in furtherance of Columbia's scheme and Forest City Ratner's scheme, found so-called "blight" precisely where the university and Ratner asked them to, and found it years after each had introduced their plans to remove neighborhoods for their benefit.
The situation now is that "blight" means whatever the agency and its consultant, on behalf of private developers, says it means.
The motion papers can be found at: http://www.dddb.net/eminentdomain
They will be posted in the early afternoon.
Posted by eric at 12:33 PM
December 9, 2009
As challenge to MTA deal awaits a judge, did Forest City Ratner really have the MTA over a barrel, or was it the other way around?
Atlantic Yards Report
Here's a must-read piece from Norman Oder on the lawsuit challenging the giveaway sale of the Vanderbilt Yard to Forest City Ratner.
All the legal papers have been filed in the case challenging the Metropolitan Transportation Authority's revision of the Vanderbilt Yard deal with Forest City Ratner. As we await a decision by the judge--no oral argument is expected, and a decision could take weeks--two things must be kept in mind.
First, as the MTA reminds state Supreme Court Justice Michael Stallman, the standards of review in such an Article 78 proceeding is "highly deferential to agency action."
So, no matter the facts, it's an uphill climb for the plaintiffs, AY opponent Develop Don't Destroy Brooklyn, joined by four elected officials and the Straphangers Campaign, in charging that a state law (the Public Authorities Accountability Act, or PAAA) passed in 2005 requires an independent appraisal of the property and that a seller seek out competitive offers.
If successful, the lawsuit (which also names Forest City Ratner as a defendant) could force the MTA to seek a new bid for the railyard. But the lawsuit is not seen by state officials as stopping either the bond sale or the pursuit of eminent domain.
...Who's over a barrel?
In the MTA's eyes, Forest City Ratner had the agency over a barrel. That's why the MTA didn't get a new appraisal of the railyard, figuring a new valuation—due to the decline in real estate values and the increased cost of building a platform--would inevitably be less than in 2005, exposing it to a worse deal.
But maybe it was the other way around. Didn't the MTA have Forest City over a barrel?
The developer--well, its principal and its parent--has a major stake in the money-losing Nets basketball team that it wants desperately to move. The developer faces a December 31, 2009 deadline to get tax-exempt bonds issued for the Atlantic Yards arena. In April, in fact, a FCR executive privately confessed to being "a freaked out devel