The unfortunate alternative

The BrooklynSpeaks sponsors who filed suit against the approval of the Atlantic Yards modified general project plan considered carefully the current situation of the project and the opportunity for realizing greater accountability from the Empire State Development Corporation and the Atlantic Yards developer before deciding to pursue litigation. This article by Ezra Goldstein of the Park Slope Civic Council describes his organization's decision to join the suit.

The Park Slope Civic Council has joined six other Brooklyn civic groups, all members of the BrooklynSpeaks coalition, in filing suit against the Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC), challenging ESDC’s September 17 approval of the Atlantic Yards Modified General Project Plan. The suit charges that the ESDC failed to prepare a mandated Supplementary Environmental Impact Statement, and that ESDC has illegally abrogated its responsibilities and powers as a public agency to a private developer.

State Senator Velmanette Montgomery, Assemblyman Jim Brennan, and City Councilwoman Letitia James joined the suit, filed in the New York State Supreme Court on November 19, as did 14 individuals who live close to the site of the proposed $4.9 billion project.

The suit comes only after years of failed attempts to engage the state and the developer in constructive dialog, and represents a major change of direction for the Civic Council and its sister organizations, which include the Atlantic Avenue Local Development Corporation, the Brooklyn Heights Association, the Boerum Hill Association, the Fifth Avenue Committee, the Pratt Area Community Council, and the Prospect Heights Neighborhood Development Council.

The BrooklynSpeaks coalition was formed in 2006 with the intent of reforming rather than derailing the Atlantic Yards project, which, as planned, would be one of the largest in New York City history. In particular, the coalition fought for significant and meaningful community involvement in project planning, as mandated by the New York City Charter, arguing that the massive development would have enormous, lasting, negative impact on the surrounding residential neighborhoods. The coalition’s efforts were repeatedly rebuffed despite promises to the contrary by ESDC and FCRC, which are described in detail in a supporting affidavit filed with the lawsuit.

PSCC President Ken Freeman said, “It is with a heavy heart that we are forced to admit that nearly three years later, all our efforts have been in vain. The project has changed significantly for the worse in that time, and our efforts have yielded no concessions.

“The Civic Council has decided to sue to draw attention to the fact that even organizations who tried to work with the developer and the ESDC have been shut out and rejected. Frankly, we have been left with no alternative but to have our day in court in an effort to force improvements to the project.”

Assemblyman Brennan, whose office attempted to facilitate communication between BrooklynSpeaks and the state, said he finally concluded that “there has never been any interest in any modification of the project or its governance. The state government, basically acting as the agent of Forest City Ratner, never had any interest in reforming or modifying the project to address any community or public concerns about balancing public good versus private interest.

“With our input, they could have developed a rational project that balanced private and public benefits, but state government has moved lock, stock, and barrel with the developer to ignore every rational concern of the local community. We came to the conclusion that there were no options in dealing with the state government other than to sue it. Since it appears that the government and Forest City Ratner are one and the same with respect to this matter, there was no alternative.”

Brennan cited the amorphous time frame granted the developer in the Modified General Project Plan and charged that the ESDC is, in essence, allowing FCRC to “warehouse land in the eminent domain footprint for 20 years or more, while putting off 95 percent of the promised affordable housing in perpetuity.”

In a November 19 press conference on the steps of City Hall, attorney Albert Butzel of the Urban Environmental Law Center made similar charges in describing the two aspects of the suit he had filed that morning on behalf of the Civic Council and the other plaintiffs.

In approving the modified project plan without preparing a Supplementary Environmental Impact Statement, said Butzel, ESDC “simply refused to look at the fact that this project is going to be delayed for 20 years or more, and that, in the meantime, you’re going to have a barren urban wasteland, lots of parking lots and none of the amenities that were supposed to be a part of the project when it was first approved.

“In addition,” said Butzel, who led the legal fight against the proposed Westway expressway in Manhattan 25 years ago, “this isn’t an ESDC project, it’s a Ratner project. The ESDC turned over the keys to the entire kingdom to Ratner to do whatever he wants. The ESDC is supposed to be a government agency that protects the public interest. Instead, they’ve handed the authority down to a private developer who is only interested in his own private interest.”

Butzel charged, for example, that ESDC has ceded control to FCRC over the components and timing of the Atlantic Yards project. “[Ratner] can do whatever he wants on his schedule. He can have anywhere from 336,000 to 1.6 million feet of commercial space, depending on what he decides. I believe those are functions that need to be exercised by government, not by a private developer.”

Butzel was referring to FCRC Chairman and CEO Bruce Ratner, who insisted in a recent interview in Crain’s New York Business that Atlantic Yards is “not a public project” and that the company is thus exempt from sharing details of its plans with the community. At the same time, however, ESDC, as project sponsor, has used its public powers to enable FCRC to ignore city land use, planning, and zoning laws; intends to use its powers of eminent domain to secure private property for the developer’s use; and would allow FCRC to build over parts of 5th Avenue and Pacific Streets.

The net result, argues the Memorandum of Law filed with the lawsuit, is that FCRC is “using ESDC as a government enabler… The private developer has taken on the government’s role. But it has been able to do so because government has delegated that role—delegated it without legislative authorization and in excess of its power to do so.”

Butzel admitted the lawsuit is a long-shot, given the record of deference courts have shown ESDC and the lack of specific precedent for the points raised by the plaintiffs, but “you try to show the courts that what you want them to do is either compelled by the law or that it’s consistent with the law. In order to get the court to get that far you have to persuade them it’s a case worth getting involved with, which this clearly is.

“It could well be a New London situation,” he said, citing the U.S. Supreme Court’s approval of eminent domain to demolish a Connecticut neighborhood for private development, which never took place. “It could well be 15 years of empty lots. It could wind up being an arena and nothing more.”

Regardless of the outcome in the courts, Norman Oder argued in the Atlantic Yards Report that “the fact of the lawsuit—BrooklynSpeaks' growing opposition--may be just as important as its contents… [T]he rhetoric of the legal complaint, which charges that the ESDC has capitulated to a private developer, and the details in an accompanying affidavit, suggest that the organization, once following a "mend-it-don't-end-it" strategy, has been pushed into firm opposition by the intransigence and lack of consideration from the ESDC and developer Forest City Ratner.”

The same point was made by several speakers at the Oct. 1 meeting where Civic Council trustees voted overwhelmingly--with no nays and three abstentions--to join the lawsuit, believed to be the first such step in the organization’s 113-year history. Trustee Michael Cairl captured the trustees’ sentiment: “A lawsuit is the last chance open to us to affect the outcome of this project. All attempts at persuasion have failed.”