A missed opportunity to lead, and the back of its hand to the affected communities, as ESDC continues to defend its improper actions of 2009

When Forest City Ratner Companies approached the Empire State Development Corporation in 2009 seeking an additional 15 years for the development of the Atlantic Yards project, the agency had two responsible choices. It could have complied with the requirements of New York State environmental law and analyzed the impact of more than doubling construction duration on surrounding neighborhoods. Or ESDC could have fulfilled its obligation to State taxpayers that it manage public funds wisely, and sought bids from additional developers in order to maintain Atlantic Yards’ approved schedule. It could have even done both.

ESDC did neither, and instead attempted to conceal the schedule change by insisting the project would still be completed in 10 years. It knew this was a fiction, as a panel of five Appellate Division judges recently pointed out: “When it approved the [2009 revised plan], ESDC certainly was aware that the same economic downturn that necessitated the negotiation of new agreements would prevent a 10-year build-out.” After being sued by community organizations and elected officials, ESDC continued the fiction in front of a New York State Supreme Court, when its counsel implied that a then-unreleased master development agreement contained remedies that would ensure the project was completed on its original schedule. That “totally incomplete” representation (as it would later be characterized by the court) was enough to have Justice Marcy Friedman initially rule against the community petitioners. But when the development agreement was made public, and the supposed remedies were absent, Justice Friedman reopened the case and found for the community in July of 2011, ordering ESDC to right the wrong it had committed in 2009 by completing a supplement environmental impact statement and revisiting the project plan. Over a call from local elected officials to honor the court's ruling, ESDC appealed Justice Friedman’s decision, losing eight months later.

ESDC has now filed notice requesting permission to  appeal to the New York State Court of Appeals. With a record of having misrepresented its agreement with FCRC, and after losing its first appeal by a unanimous decision, it’s unlikely that the court will grant ESDC’s request.

Governor Andrew Cuomo was not in office, and ESDC CEO Kenneth Adams was not at its helm, when the illegal approval of the renegotiated project terms took place in 2009. They have an opportunity to put Atlantic Yards back on track to deliver the public benefits promised at the time of its original approval. Instead, they appear to sanction the illegal actions of their predecessors, wasting the court’s time and the public’s money in what will most likely be a fruitless appeal.

In a statement yesterday, Mr. Adams said, “ESD's goal is to keep all phases of the project moving forward to ensure that the community can receive the benefits of a world-class development that will bring thousands of jobs, affordable housing, open space and community facilities to Brooklyn as soon as possible.” With all due respect, this is doublespeak. The fact is that the State of New York is prolonging litigation to preserve a private developer’s control over property delivered through a subversion of government process, and to give that developer the ability to delay for decades—and perhaps further dilute—the very benefits Mr. Adams cites.