New York State Court of Appeals denies ESDC and Forest City Ratner appeal of order to revisit 2009 Atlantic Yards plan

In a final defeat for the Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC) in their attempt to illegally extend construction of the Atlantic Yards project from 10 to 25 years, New York State’s highest court today denied their motion to appeal a July 2011 decision ordering a revisit of a 2009 modification to the plan and additional environmental analyses. ESDC and FCRC lost their previous appeal by a unanimous decision of the New York State Supreme Court Appellate Division. The denial by the New York State Court of Appeals means that the July order by Justice Marcy Friedman will stand, and the supplemental environmental impact study (SEIS) must proceed.

A group of BrooklynSpeaks sponsors, local residents and elected officials originally filed suit in November of 2009, charging that ESDC approved Atlantic Yards’ 2009 Modified General Project Plan (MGPP) without sufficient study of the effects of a 25-year construction period on surrounding communities.  At oral argument in January 2010, ESDC implied it had negotiated remedies with FCRC to ensure the project would be completed on its original schedule.  The court ruled in favor of ESDC and FCRC, but when details of the agreement between them were made public, it was revealed that ESDC had in fact agreed to an extension of the project schedule to 25 years. The BrooklynSpeaks sponsors then asked the court to reopen the case, and Justice Friedman ultimately ruled that ESDC’s approval of the 2009 MGPP lacked a rational basis and violated New York State environmental law. (A full chronology of the case is available here.)

“In the year since Justice Friedman ordered an SEIS, construction impacts on the neighborhoods surrounding Atlantic Yards have been well-documented,” said Danae Oratowski, Chair of the Prospect Heights Neighborhood Development Council.  “But what is most shocking is ESDC’s and FCRC’s failure to comply with their own stated protocols for air quality, noise, construction traffic and worker parking.  We urgently need not just an SEIS, but also establishment of proper oversight to ensure that agreed-upon mitigations for construction impacts are monitored and enforced.”

Michael Cairl, President of the Park Slope Civic Council, said, “Our elected officials must demand accountability from the SEIS process. While the arena may be nearing completion, the impact of the project on local individuals, families, and businesses is just beginning. The SEIS must develop in good faith plans and alternatives to complete the Atlantic Yards project on its original schedule.”

BrooklynSpeaks sponsors have argued that ESDC fast-tracked its approval of the 2009 schedule concessions demanded by Forest City in order to allow FCRC to meet a deadline necessary for its arena bonds to qualify as tax-exempt.  “ESDC’s actions saved the developer hundreds of millions in interest payments,” said Michelle de la Uz, Executive Director of the Fifth Avenue Committee, “but at the cost of thousands of units of affordable housing being delayed for decades.  Now that the appeals have been exhausted, the Cuomo administration has a responsibility to put the public’s interest first, and ensure that housing and jobs are delivered as soon as possible.”

“Today’s action by the Court of Appeals demonstrates that neither powerful developers nor State agencies are above the law,” said Council Member Letitia James, whose district includes the Atlantic Yards project.  “However, the courts have never been the place to determine the future of our communities. I call on Mayor Bloomberg and Governor Cuomo to recognize the urgent need to reform the Atlantic Yards project, its plan, and its oversight by State and City governments. It’s time to come together with residents, business owners, and their elected representatives to make this project work for Brooklyn and New York.”