ESDC's response to court order shows Governor not yet willing to reform Atlantic Yards

The BrooklynSpeaks sponsors are disappointed that board of the Empire State Development Corporation has voted to adopt findings regarding the delayed Atlantic Yards build out that obfuscate the issues raised by the Master Development Agreement ESDC executed with Forest City Ratner, are dismissive of the greater impacts which will now be sustained by the communities surrounding the project, and totally ignore the time value loss on New Yorkers’ substantial investment in Atlantic Yards given the deferment of its public benefits for decades.

Specifically, our responses to ESDC’s findings are as follows:

  1. “The Development Contracts do not have a material effect on whether it is reasonable to use a 10-year construction schedule for the purpose of assessing the environmental impacts of the Project.”

    We strongly disagree with this finding. Under SEQRA, the ESDC had a responsibility to analyze a “reasonable worst case scenario” with respect to the project build-out. An outside date to which the ESDC was willing to agree in writing with the project developer in the Development Contracts by definition must be considered better than worst case. “Worst case” scenarios presumably would be ones in which the developer defaults on the MDA, cannot obtain credit, files for bankruptcy, and the like—in other words, scenarios in which the ESDC has lost the ability to enforce the project agreements. There is simply no question that the agency had a responsibility to analyze the impacts of a project schedule to which it was willing to agree, not just the schedule it wished could be realized.

  2. “As of the date of these findings, it appears unlikely that the Project will be constructed on a 10-year schedule, because the construction of the Project’s residential buildings has lagged behind the 10-year schedule provided by FCRC to ESDC in 2009, and because of continuing weak general economic and financial conditions.”

    We agree with the finding that the Project is not likely to be completed in 10 years, but for reasons different than those cited by the ESDC. We rely instead on the words of FCRC CEO Bruce Ratner, who on September 28, 2010 told reporters when speaking about the 10-year schedule for Atlantic Yards’ arena and 16 towers, “It was never supposed to be the time we were supposed to build them in.” We also rely on the statement by former ESDC CEO Marisa Lago in April 2009 that Atlantic Yards’ construction would take “decades”. ESDC’s finding referencing a “10-year schedule provided by FCRC” at the time of the MGPP approval, Mr. Ratner’s and Ms. Lago’s comments don’t agree. Nevertheless, the build year is not the one was studied in the FEIS, a fact that FCRC and ESDC apparently knew all along.

  3. “A delay in the 10-year construction schedule, through and including a 25-year final completion date, would not result in any new significant adverse environmental impacts not previously identified and considered in the FEIS and 2009 Technical Memorandum and would not require or warrant an SEIS.”

    The statement is simply not accurate. For example, it fails to take into account the following issues related to so-called “interim” parking on block 1129:
    • According to the FEIS’ construction schedule, “interim” parking on block 1129 would have begun to be phased out in three years, and completely phased out in five and a half years. Under the 25-year term, the parking lot presumably would remain in place in its entirety for ten years, and remain in some form for twenty years.
    • The FEIS’ traffic analysis shows peak volume entering the parking lot at 631 cars, a little less than half of the 1,100 cars now planned by FCRC. Air quality and noise impacts from the surface parking lot were studied using the lower number of cars, and applied to a much shorter period.
    • The FEIS does not analyze the impact of the parking lot on neighborhood character, although it lies between two blocks of historic buildings.
    • The FEIS assumes the use of block 1129 for construction staging for all of the buildings of phase 1. However, no space on 1129 will be available for staging after the arena opens in the findings adopted by the ESDC board today. The findings do not identify a new location for construction staging, nor is there an analysis of the impact of moving staging, presumably to neighborhood streets.

    “ The analysis of the potential environmental impacts of a 25-year construction schedule confirms the conclusion reached by ESDC in 2009 that an SEIS is not required or warranted for the 2009 MGPP. Similarly, the Development Contracts do not require or warrant an SEIS.”

    The incomplete analysis performed by the ESDC in response to the Court’s order is self-serving, and confirms a conclusion which itself was reached in order to further the timetable requirements of the developer in 2009. It is hardly to be expected under these circumstances that FCRC would have agreed in the Development Contracts for any requirement to perform an SEIS.

ESDC’s continued dissembling in favor of FCRC and against the public interest reflects poorly on an agency that reports to the Governor of New York State, and whose board is appointed by him. We remind the Governor that the findings approved yesterday were necessitated by a Court order which characterized ESDC’s prior claims about its ability to enforce a 10-year schedule as “totally incomplete” and “yet another failure of transparency on ESDC’s part.” We are sorry the Governor has passed up yet another opportunity to reform his agency’s oversight of Atlantic Yards.