Appellate Division agrees that 2009 Atlantic Yards plan was approved illegally

In a unanimous decision, the Appellate Division of the New York State Supreme Court today found that Justice Marcy Friedman correctly ruled in July 2011 that the Empire State Development Corporation’s (ESDC) 2009 approval of Atlantic Yards’ Modified General Project Plan violated State environmental law. Among other changes, the plan renegotiated in 2009 between the State and Forest City Ratner Companies (FCRC) extended Atlantic Yards’ construction schedule from 10 to 25 years. Justice Friedman’s order that the ESDC conduct additional environmental analyses and revisit the project plan will remain in effect.

“ESDC’s decision to appeal was deeply disappointing both to the community and to its elected representatives, who had pressed the agency to comply with the court order,” said Jo Anne Simon, 52nd District Democratic Leader. “Now that the Appellate Division has upheld the lower court’s decision, we strongly urge Governor Cuomo to act to restore credibility to this process, and direct his agency to conduct a thorough and transparent assessment of the environmental impact of this project on central Brooklyn that involves our communities in a meaningful way.”

BrooklynSpeaks sponsors had argued against the appeal, contending 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. The Appellate Division ruling gives the Governor an opportunity to put the project’s public benefits back on the schedule promised.”

The Appellate Division rejected arguments by ESDC and Forest City that the impacts of 25 years of construction to surrounding neighborhoods were likely to be less severe than if Atlantic Yards were completed in 10 years, writing that such a conclusion “is not based on any technical studies of the environmental impacts of protracted construction. It is supported by the mere assertion that the build-out will result in prolonged but less "intense" construction and that most environmental impacts are driven by intensity rather than duration.” Significantly, the Appellate Division noted that ESDC “failed to consider an alternative scenario in which years go by before any Phase II construction is commenced — a scenario in which area residents must tolerate vacant lots, above-ground arena parking, and Phase II construction staging for decades.”

“In the two years since this suit was filed, nearby communities have had a ringside view of continued violations of Atlantic Yards’ stated commitments on air quality, noise and truck safety,” said Danae Oratowski, Chair of the Prospect Heights Neighborhood Development Council. “Less than six months before Barclays Center opens, we have yet to see the developer’s plans for parking and traffic management, or the City’s plans for crowd control and security. Today’s ruling should be a wake-up call for Mayor Bloomberg to engage the community and work together both to limit the impacts of continued construction, as well as to reduce the effect of the operation of an arena amid historic residential neighborhoods.”

“ESDC not only has allowed Forest City Ratner to steamroll local residents and their elected representatives, but has also played a role in violating State law to the developer’s advantage,” said Howard Kolins, President of the Boerum Hill Association. “Taken together with recent revelations of Forest City’s connection to political corruption cases in Brooklyn and Yonkers, today’s ruling shows the need to reform oversight of Atlantic Yards is more urgent than ever. The New York State Assembly has already passed legislation requiring ESDC to create a subsidiary to oversee the project. We now need swift action on the bill by the State Senate, and a commitment by Governor Cuomo to ensure Atlantic Yards is accountable to the public.”