Legal challenge to ESDC's approval of Atlantic Yards' 2009 Modified General Project Plan
The Empire State Development Corporation's approval of Atlantic Yards' 2009 Modified General Project Plan (MGPP) had the effect of extending the project's buildout from ten years to twenty five years, while adding no mechanism for effective project oversight. Faced with more than double the duration of construction impacts being borne by our communities, as well as deferral of the vast majority of public benefts for a generation, a group of BrooklynSpeaks sponsors filed suit against the ESDC and Forest City Ratner Companies (FCRC) in November of 2009. This page contains links to the legal filings in the case from the time of its inception to present, organized as a chronology of events in the ongoing litigation. (Note: Some of the filings are very large PDF files.)
BrooklynSpeaks' petition was filed on November 19, 2009, prior to FCRC's master closing with the ESDC and purchasers of the arena bonds, which took place on December 29, 2009. The Master Development Agreement (MDA) was not immediately released to the public, nor had it been released by the date of oral arguments in the the matter, January 19, 2010. At the hearing on that date, counsel for the ESDC implied that remedies in the MDA were sufficient to ensure Atlantic Yards would be completed on schedule--assumedly the ten year project schedule initially studied in the environmental impact statement. On January 25, 2010, the ESDC made the MDA available to the public. It showed that remedies for completion of the full Atlantic Yards project were minimal, and only applied after 25 years. The BrooklynSpeaks petitioners were not allowed to submit the MDA to the court. Consequently, on March 10, 2010, the court found for the ESDC and FCRC.
Motion for reconsideration
The BrooklynSpeaks petitioners filed to renew their claim based on the evidence in the MDA. Had the court ruled against ESDC, FCRC’s access to escrowed $500MM in bond financing would have been in jeopardy. The escrow period expired in May 2010. The court heard the reargument in June 2010. On November 9, 2010, the court ruled that the master development agreement called in to question ESDC’s “rational basis” in approving the 2009 MGPP, and ordered ESDC to submit findings justifying its use of 10-year build out for its environmental analysis. On December 16, 2010, ESDC submitted findings to the court which, among other things, claimed the timelines negotiated in the master development agreement had no bearing on its expectation for the actual project schedule, but that, in any event, the surrounding communities would not suffer additional adverse impacts by more than doubling the construction duration to 25 years.
- Notice of motion
- Affirmation and Exhibit A
- Exhibit B
- NYS Supreme Court order
- ESDC Response to Remand Order
On January 18, 2011 (almost a year after the first hearing in the suit), the petitioners filed a supplemental petition challenging the findings in the ESDC's response. Together with their supplemental petition and with its reply to ESDC's answer, the BrooklynSpeaks sponsors also submitted affidavits from experts in urban planning and sustainable development that countered ESDC's contention that the community would suffer no additional impacts from extended construction, and supported BrooklynSpeaks' call for a supplemental environmental impact statement (SEIS). On July 13, 2011, the court found that the ESDC's approval of the 2009 MGPP based upon the 2006 environmental impact statement lacked a rational basis, was arbitrary and capricious, and therefore illegal under New York State environmental law. Justice Marcy Friedman ordered the ESDC to prepare an SEIS, and to reconsider the MGPP in light of the findings in the SEIS.
- Verified supplemental petition
- Memorandum of law
- Affirmation and exhibits
- Reply memorandum of law to ESDC
- Final New York State Supreme Court decision
ESDC and FCRC appeal
On September 9, 2011, FCRC filed a notice of its intent to appeal the July 13 decision ordering a supplemental environmental impact statement. ESDC followed suit on September 12. The two notices stayed the order to conduct an SEIS pending appeal.
Perhaps surprisingly, in October, 2011, the ESDC Board voted to fund the SEIS as required by the July 2011 court order. However, on December 5, 2011, FCRC and ESDC served the BrooklynSpeaks sponsors with appellate briefs. BrooklynSpeaks filed a response on January 13, 2012 in conjunction with Develop Don't Destroy (Brooklyn), petitioners in a similar case also included in the July 2011 ruling.
Oral arguments in the appeal were heard by the Appellate Division on February 14, 2012. On April 12, the Appellate Division issued a unanimous decision upholding the lower court's ruling which ordered ESDC to prepare an SEIS and revisit the 2009 MGPP.
- Forest City Ratner notice of appeal
- Empire State Development Corporation notice of appeal
- FCRC brief
- ESDC brief
- BrooklynSpeaks/DDDB response
- FCRC reply
- ESDC reply
- Decision of the Appellate Division, First Department
Request to New York State Court of Appeals
On May 14, 2012, ESDC and FCRC filed notices with the New York State Court of Appeals requesting leave to appeal the Appellate Division decision.
The motion by ESDC and FCRC was denied by the Court of Appeals on June 26, 2012. With no further appeals possible, the decision of the lower court ordering an SEIS and revisiting of the 2009 MGPP became final.
- Empire State Development Corporation notice of appeal
- Forest City Ratner Companies notice of appeal
- BrooklynSpeaks response
Supplemental Environmental Impact Statement
On December 19, 2012, more than three years after the original BrooklynSpeaks petition challenging the 2009 MGPP was filed, the Empire State Development Corporation released a Draft Scope of Work for a Supplemental Environmental Impact Statement.