This document has been released as a "working draft" and comments from the public are invited. Please click contact@brooklynspeaks.net to email us with comments. To download a pdf of this file, click here. Click here to watch the Borough Hall press conference from the day the report was released.

Contents

1. Introduction
2. Current Project Governance
3. Proposed Governance and Accountability model
Appendix

1. INTRODUCTION

1.1 Overview

Since the time Atlantic Yards was announced in December 2003 until now, local residents, civic and community organizations and local elected officials have been excluded from meaningful involvement in the decision-making process for Brooklyn’s biggest development project. While the announcement in May from the Empire State Development Corporation of new measures to increase government oversight and coordination over the Atlantic Yards project is a positive step, the State has yet to propose how the local community, local elected officials and the general public will be meaningfully engaged in the planning for a project that is likely to be built out over several decades. This document attempts to analyze how the existing governance for the project excludes the public and proposes the creation of new mechanisms to more fully involve the local community, elected officials and the general public in the project’s decision-making.

The contents of this document are as follows:

• Section 1 describes the background to how Atlantic Yards came to be approved without any meaningful community input.

• Section 2 analyses the current governance structure of the Atlantic Yards project and describes the initiatives announced by the ESDC on May 7, 2007.

• Section 3 proposes governance bodies to be created in order to provide representative local input into project planning, design and oversight.

The analysis presented in this document is based upon research by the Brooklyn Law School Clinic performed for the BrooklynSpeaks.net sponsors. To download the BLSC report, click here.

1.2 Background

This report argues that the public has been excluded from any meaningful involvement in the decision-making for the Atlantic Yards Project. This is principally due to the following factors:

1. The State and the Mayor chose to use the land use approval process set out by the Urban Development Corporation Act of 1968, which required only votes by the ESDC board and the Public Authorities Control Board, rather than the review mandated by the city’s Uniform Land Use Review Procedure (ULURP). Other projects, while still nominally under State control, have nevertheless been governed by the ULURP process (e.g. Battery Park City). ULURP would have required a full review by the local community boards, Borough President, City Planning Commission, and ultimately would have been voted on by the City Council. Instead, the Community Boards, Borough President and City Council had no formal role in the approvals process, with the result that all the local elected officials who represented the neighborhood residents who were likely to be most impacted by the project were essentially sidelined.

2. While the public had the opportunity to participate in the environmental review for the project as mandated by the New York State Environmental Quality Review Act (SEQRA), no significant changes to the project to the project resulted from the public’s participation. The ESDC under Governor Pataki’s leadership was focused on getting the project approved before the end of the governor’s term in December 2006 and made little or no effort to address community concerns. The following is evidence of this:

• The ESDC initially allowed only the statutory minimum of 60 days for public comment on the Draft Environmental Impact Statement. While this period was later extended, it remained significantly lower than the review period for other comparable projects, such as the Hudson Yards project in Manhattan or Yankee Stadium in the Bronx.

• Despite thousands of public comments submitted in the course of the public comment period, the only significant changes to the project were made in response to comments submitted by the Department of City Planning and the Borough President of Brooklyn. According to press reports, many of these changes were agreed upon well in advance of the public comment period.

• Despite extensive calls for the approval process to be slowed down following the release of the Final EIS to allow for the public to fully understand the implications of the project’s impacts, the project was approved by the Public Authorities Control Board on December 2006 after a minimum of review.

3. The public and local elected officials were never given the opportunity to fully understand the financial implications of the project to the taxpayer during the approvals process. Only recently have the financial assumptions concerning the project been made public.

1.3 Audience and stakeholders

This document has been written to inform and advise the following stakeholders:

• the Governor of the State of New York, who is the chief executive responsible for the State authority executing the project;

• the Mayor of the City of New York, who is the chief executive responsible for City agencies that are largely responsible for mitigating the project impacts;

• representatives of the New York State Assembly and State Senate, who will vote whether to provide further State funding to the project sponsors;

• representatives of the New York City Council, who will vote whether to provide further City funding to the project sponsors;

• the Brooklyn Borough President, who has actively promoted the development of large projects in Brooklyn, and is expected to have a continuing interest in the evolution of Atlantic Yards;

• the Chairman and senior staff of the Empire State Development Corporation, who are responsible for seeing that the Atlantic Yards project achieves the goals outlined in its General Project Plan;

• the management of Forest City Ratner Companies (FCRC); the management of Forest City Enterprises, and its directors and shareholders; and the owners of the New Jersey Nets basketball team;

• members of Community Boards 2, 3, 6 and 8 who serve the neighborhoods most immediately affected by the project’s impacts, and who have responsibility for review of land use proposals under the New York City Charter;

• the boards of community organizations and associations that serve constituents in the neighborhoods affected by the project; and

• the residents and merchants of Prospect Heights, Fort Greene, Clinton Hill, Boerum Hill, Park Slope, Crown Heights and Brooklyn Heights, who will bear the impacts of the development for many years to come.

2. CURRENT PROJECT GOVERNANCE

Figure 1: Diagram showing existing project governance. Click here for a higher resolution PDF.

2.1 Existing governance structure
Under the governance structure in place before the ESDC’s May 7 2007 announcement, the State and the City were technically responsible for overseeing the project, but neither entity had established specific mechanisms in order to do so. It was anticipated that construction work, traffic mitigation and other issues would be monitored by the responsible city agency, such as the Department of Buildings or Department of Transportation. However, no mechanism was in place to coordinate between the different agencies, liaise with the public, or continually review the planning and design of the project over its lifespan.

Instead, many of these responsibilities were assumed by Forest City Ratner and quasi-governmental entities established by the developer. For example, in February 2007, the developer established a Community Liaison Office to manage and address community concerns with construction work on the project. As this entity reports to the developer, it could not reasonably be expected to represent the public by providing timely and accurate information or meaningfully addressing the public’s concerns with construction.

In July 2005, the developer announced the creation of a Community Benefits Agreement which was intended to demonstrate that the local community would benefit from the project. Although no government entity representing the public was involved in the creation of the CBA, many of the other roles that might normally be the responsibility of government entities appear to have been assigned to its signatories. These include the monitoring of the delivery of affordable housing, job training and other public benefits of the project.

The CBA is structured around a central group of signatories who form an Executive Committee that collaborates with the developer to deliver these benefits. All of the signatories, except for one, establish “councils” whose function includes community outreach. However, the councils have neither accountability to the public nor a voice in any decision-making relative to the delivery of benefits under the CBA. Each council is formed and controlled by a CBA signatory; the CBA explicitly states that the actions of each council must be “approved by” its respective CBA signatory. Therefore, no matter what governance structure was established for an individual council, the council itself would serve only in an advisory capacity to a CBA signatory, which itself is only a party to an agreement with a subsidiary of the project’s developer.

Typically, Community Benefits Agreements are organized by government entities, such as the Staples Center Agreement in Los Angeles. The Atlantic Yards Community Benefits Agreement was essentially a private agreement between the parties, rather than a publicly negotiated document, and no government entity is bound by its provisions. Compliance with the terms of the CBA is determined by an Independent Compliance Monitor who is responsible only to the CBA Executive Committee. Clearly, the CBA’s structure provides neither a channel for the community to have its voice heard with respect to project decision-making, nor a representative governance structure for managing the delivery of benefits, nor accountability to any agency of State or City government, including the ESDC.

2.2 ESDC Changes

On May 7, 2007, the ESDC announced several initiatives with respect to the Atlantic Yards project geared toward improving project coordination and communications. (Click here to read their announcement). These included the following:

• the designation of an Atlantic Yards ombudsperson who will coordinate communications of project activities to elected officials and community members, and who will also “facilitate the cooperation” of various government agencies involved in the project;

• the designation of an Owner’s Representative to monitor construction activities performed by the developer;

• the creation of an interagency working group, including representatives of the MTA, NYCEDC, NYCDOB and NYCDOT to “review approved and planned work on a monthly basis”;

• the creation of a transportation working group, to include City and State agencies, local elected officials and community organizations to “discuss anticipated issues and available mitigation opportunities”; and

• the scheduling of regular meetings “to update and inform elected officials about overall progress and key project milestones.”

There are a number of positive aspects to the announced initiatives. An ombudsperson accountable to a state agency is clearly preferable to the current “Community Liaison Office” run by FCRC. The interagency working group should provide the formal, institutionalized channel of communication between State and City agencies that is clearly needed for a project of this magnitude. And the inclusion of community representatives in the transportation working group would be the first time community members were asked for input into the Atlantic Yards Project.

However, the changes announced by the ESDC on May 7 fall short of providing meaningful local participation and public accountability.

• The only policy-making entity established by the ESDC appears to be the transportation working group. While traffic and transit issues are of great concern to the local community, there are other subjects for which public input should be sought that are not addressed by the ESDC’s proposed changes. Construction impacts, environmental impacts (e.g., air quality, water and sewer impacts, noise, etc.), secondary displacement, public services, safety and security, workforce development and project phasing will all have major effects on the neighborhoods that surround Atlantic Yards.

• While there is a commitment to “meet with” local elected officials regularly, there is no mention of a role for local elected officials in project decision-making. Informing elected officials of committed plans is of limited value if the officials have no ability to shape those plans.

• There is no role defined for Community Boards in any part of the process, despite their relevance to almost every aspect of the Atlantic Yards project as defined by the City Charter.

• Most importantly, there is still no mechanism for the public and the local community to have a meaningful voice in the decision-making and planning for the project.

In short, the ESDC changes assume that the current Atlantic Yards project will be built out as currently proposed. Even if this were desirable, it is highly unlikely to occur, if the experience of other large-scale projects – such as Queens West or Battery Park City – is a guide. Given that almost every aspect of the project is likely to change during the project’s life cycle, it is unacceptable for the public to continue to be unrepresented in the decision-making process for Atlantic Yards.

3. PROPOSED GOVERNANCE AND ACCOUNTABILITY MODEL

Figure 2: Proposed governance structure. Click here for a higher resolution PDF.

The sponsors of BrooklynSpeaks.net believe that two new structures should be created in order to meaningfully involve stakeholders from the local community prospectively, coordinate effectively between the City and the State agencies, and generally improve the quality and accountability of project decision-making.

• A Project Planning and Oversight Entity should be created. This could be established as an ESDC subsidiary, comparable to Brooklyn Bridge Park Development Corporation or Queens West, both of which were created specifically to involve local representation in the decision-making for those projects. The Project Planning and Oversight Entity would include as part of its board representatives from the ESDC, City agencies responsible for planning and provision of infrastructure, as well as local elected officials. This Planning and Oversight Entity would be responsible for reviewing and approving all changes to the project and policy surrounding it. The entity would also ensure mitigations were being implemented according to agreed-upon standards, and that the actual delivery of public benefits under the project was consistent with the stated goals of the project.

• A Stakeholder Council should be chartered by ESDC to provide a forum for community dialog and input into the project on a continuing basis. This Council could establish working committees to address particular categories of project issues (e.g., transportation, public services, open space, urban design, workforce development, etc.). The representatives of the Council would include members of local Community Boards and leaders of community organizations and civic groups, including the signatories of the CBA. The Stakeholder Council would serve in an advisory capacity to the Project Planning and Oversight Entity.

The establishment of representative decision-making and community advisory bodies would help make the Atlantic Yards project a genuine public/private partnership. However, their simple establishment alone will not resolve the flaws in the project, including its overwhelming density and height of its buildings; its lack of a transportation plan; and its failure to address the housing needs of thousands of local families whose incomes would not qualify them for housing in the new project. These flaws are the direct result of Atlantic Yards having been conceived and planned without adequate public participation, and can only begin to be addressed as Atlantic Yards moves forward if the public is meaningfully engaged in the decision-making for the project.

Appendix: Frequently Asked Questions

Since the release of the BrooklynSpeaks governance proposal in August 2007, elected officials, government officials, community leaders and members of the public have asked us several questions about the proposal. The following are answers to some of the most frequently asked questions.

1. Is this proposal an attempt to stop or slow down the Atlantic Yards project?

No. Regardless of what is built on the Atlantic Yards site, a structure for accountable governance and meaningful community input is needed.

2. Would implementing this proposal transfer control of the project to the community?

No. Under the proposal, the Atlantic Yards project would be controlled by the same State, City and other entities as it is today, but their authority would be exercised through a transparent and accountable structure, informed by community input channeled through the proposed “Stakeholder Council”.

3. If the entities that are controlling the project aren’t changing, why does this proposal matter?

The entities currently controlling the project do so in an ad-hoc manner that lacks the transparency and accountability that other comparable development projects in New York City have. Providing a structure to govern the project will bring accountability, transparency and better coordination between the State and City agencies overseeing the project. Creating a “Project Oversight Entity” would also provide continuity of governance over the project as newly elected officials replace those originally involved in the project, or in the event that the developer sells its interest in the project to a third party.

Finally, the entities currently overseeing the project do so without a vehicle for community input. The BrooklynSpeaks sponsors believe that public involvement is vital to ensuring responsible development takes place on this site.

4. Is there any precedent for this?

Yes. Every other State project of a comparable scale in New York City has its own “project oversight entity,” such as the Brooklyn Bridge Park Development Corporation which oversees the construction of Brooklyn Bridge Park; the Lower Manhattan Development Corporation which oversees the redevelopment of the former World Trade Center site; the Queens West Development Corporation which oversees the redevelopment of Queens West and others. These entities have established accountability for the governance of these projects, as well as providing a structure for the State and City to coordinate their oversight.

Similarly, many large-scale projects have established structures for community input, including the Hoyt/Schermerhorn redevelopment project, the rebuilding of the Gowanus Expressway, and many others. The general consensus is that these and other projects were ultimately improved by community input.

5. Haven’t Brooklyn Bridge Development Corporation and the Lower Manhattan Development Corporation been criticized for the way they have conducted their responsibilities?

Good governance cannot be guaranteed under any structure, but these entities still provide a measure of accountability, transparency and coordination that is lacking in the Atlantic Yards project, and at their best, are able to successfully synthesize community objectives with the goals of the State or City.

6. Isn’t Atlantic Yards a privately-led development? Why should it be necessary for it to have a government-run oversight entity?

Atlantic Yards is a State project. The construction of the project will involve the exercise of State powers, including the override of local zoning and potentially the use of eminent domain, and the project will be built pursuant to a General Project Plan developed and administered by the State, in accordance with the UDC Act of 1968. Notwithstanding the substantial role of a private developer in the project, the BrooklynSpeaks sponsors believe that the use of these State powers, and the magnitude of public funds for the project, require that public oversight and involvement in the project be maximized.

7. Would the project oversight entity be an ESDC subsidiary?

Not necessarily. The project oversight entity needs to have a board that is made up of State and City-appointed members (and members appointed by local elected officials such as the Borough President and State representatives), but this does not necessarily entail an ESDC subsidiary.

8. Why does the community need a structure to provide input to the decision-makers? Can’t the community visit with ESDC at any time to give their input?

Although community members have met with ESDC representatives, this is a not a substitute for a vehicle for an official, structured, ongoing relationship between the community and the decision-makers, which historically has proven to be the most effective way for communities to work with government entities. The proposed “Stakeholder Council” would provide a platform for different segments of the community to reach consensus over the input they provide to the entity overseeing the project.

9. The ESDC plans to hire an Atlantic Yards “ombudsman”. Will this address some of the perceived deficiences in the governance of the project?

The appointment of an ombudsman to liaise between the community and the State is a positive step. However, the ESDC views the role of the ombudsman as to “provide elected officials, community representatives and the public with access to current information about the project” (ESDC Press Release, 5/7/2007). This does not address the need for more accountable governance or a vehicle for community input to the project’s decision-making over its lifespan.

10. Haven’t all the decisions about the project been made?

No. It is unlikely that the project will be built entirely as proposed. The Atlantic Yards site will probably be redeveloped over several decades, and in that time, it is likely that the sponsors of the project will seek changes to the General Project Plan, for any number of different reasons that might include:

• changes in market conditions
• changes in architectural tastes
• changes in construction costs which would impact on design or time table
• changes in ownership of some or all of the property covered under the General Project Plan.

In addition to changes to the General Project Plan, policy surrounding Atlantic Yards, such as measures to mitigate the transportation impact of the project, will continue to be developed by its sponsors.

Any changes to the project, and other policies relating to it, will require approval by the State in what will amount to a continual decision-making process. The BrooklynSpeaks sponsors believe these decisions must be made by an accountable entity and informed by community input.

11. Would the Stakeholder Council be made up of those who previously supported or opposed the project?

The community Stakeholder Council would represent all of the community, including supporters of the project, those who have expressed concerns, and those who have not yet been involved.

12. Why does it matter whether the City participates in Atlantic Yards through a governance structure or “behind the scenes”?

The City is essentially responsible for most of the mitigations that are set out by the Environmental Impact Statement, including transportation and infrastructure concerns. It is essential that the City and its agencies participate openly and in an accountable fashion in addressing these responsibilities.

The City’s participation in the Atlantic Yards project to date has, for the most part, been behind the scenes. While the City held considerable influence over the project, notably over the creation of its design guidelines, the majority of this influence was exercised behind closed doors, and without the benefit of public input.

In addition, the City’s lack of participation in a formal governance structure for the Atlantic Yards project has occasionally resulted in decisions that the City vigorously disagreed with, such as the recent proposal to “carve-out” Atlantic Yards from the 421-a legislation.

13. What if the plaintiffs in the lawsuits against the Atlantic Yards project are successful?

Whether the current proposal for Atlantic Yards moves forward or not, an accountable governance structure and a vehicle for community input is necessary for whatever is built on the project site.

14. Who supports the governance proposal put forward by the BrooklynSpeaks sponsors?

The governance reform proposal has been endorsed by the following elected officials: Council Members Letitia James and David Yassky; Assembly Members James Brennan, Joan Millman and Hakeem Jeffries; State Senators Eric Adams and Velmenatte Montgomery.

15. What is the position of other elected officials on the proposal?

Mayor Bloomberg and Governor Spitzer have not yet stated a position on the proposal.

Brooklyn Borough President, Marty Markowitz, has stated that he believes a vehicle for community input is essential.

16. How could the governance proposal be implemented?

The proposal could be implemented by the ESDC under the powers granted to them by the UDC act, or through legislation passed by the State Legislature.

This document has been released as a "working draft" and comments from the public are invited. Please click contact@brooklynspeaks.net to email us with comments. To download a pdf of this file, click here.