Wednesday, November 10, 2010

DDDB Wins Atlantic Yards Lawsuit

Court Rejects NY State's Misrepresentations About Completion Of Atlantic Yards, Sending Project Back To Empire State Development Corp For Reconsideration

New York, New York— State Supreme Court Justice Marcy S. Friedman issued a ruling today in favor of Develop Don't Destroy Brooklyn (DDDB) and associated neighborhood groups, slamming the Empire State Development Corporation (ESDC) for "what appears to be yet another failure of transparency" in its approval of Bruce Ratner's Atlantic Yards project.

Justice Friedman granted the motion by DDDB and the other petitioners for reargument of her March 10, 2010. She held that the December 2009 Master Development Agreement should have been provided to the Court and having now reviewed that agreement, Justice Friedman found that the ESDC did not properly consider the full 25-year schedule. Justice Friedman has sent the case back to ESDC for reconsideration, requiring the ESDC to provide a "detailed, reasoned basis for [its] findings."

"We are thrilled with the Court's decision," said, Candace Carponter, Esq, chair of DDDB's Legal Committee. "It has laid bare the pattern of lies and deception by ESDC and Forest City Ratner that underlie this project. We have always contended that the project will take decades to complete, if ever and the supposed public benefits of affordable housing and open space would never happen. Instead we are faced with decades of developer created blight in an area that may never be redeveloped due to ESDC's and FCRC's malfeasance."

DDDB argued that ESDC had violated the State Environmental Quality Review Act (SEQRA) when it considered a 10-year time frame for completion of the project, despite contract documents which demonstrated a 25-year schedule. ESDC had argued that it would require Forest City Ratner Companies (FCRC) to use "commercially reasonable efforts" to complete the project by 2019. DDDB argued that the only contractual agreements between ESDC and FCRC had penalties and some guarantees for some of Phase I of the project, but there were essentially no guarantees for Phase II and it might never be built. Since most of the purported public benefits (affordable housing, open space, new school space) were included in Phase II, it affected the SEQRA determination.

In today's decision, Justice Friedman chastised ESDC for not being forthright to the Court and not providing her with a copy of the Master Development Agreement and for arguing at the January 2010 hearing that there were meaningful obligations in the development agreement, when they knew that was not case. Given the fact that ESDC misrepresented the facts to the Court and that the ESDC Board did not ever consider the 25-year schedule when it issued its SEQRA decision in September 2009, the Court has sent the matter back to ESDC to reconsider its decision.

Ms. Carponter continued, "Justice Friedman's decision puts the entire project in doubt. ESDC approved the project as an integrated development with a variety of alleged benefits. ESDC cannot proceed with just an arena or only with Phase I without considering the lasting effects of the resulting blight caused by FCRC. Such a truncated project is not what was contemplated or approved by New York State. We call upon ESDC to suspend all construction on this project which is so wasteful of public resources and consider a feasible and comprehensive development that is consistent with the surrounding area."

DDDB co-founder Daniel Goldstein said, "With today's ruling it is more evident than ever that the new Governor has a job to do with the Atlantic Yards debacle. The blight Ratner has created in Prospect Heights, Brooklyn can be fixed if Governor Cuomo is willing to take the much needed fresh look at Atlantic Yards that today's Court ruling demands."

"The Court properly found that ESDC misrepresented the facts of the contracts and there were no requirements that FCRC complete the project" said DDDB lead counsel Jeffrey S. Baker of the Albany, New York law firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC. "ESDC's lack of transparency was not just with respect to its own deliberations, but extended to trying to hide material facts from the Court. We are very pleased that Justice Friedman did not tolerate that behavior."

The Court's ruling can be found at: