Tuesday, December 27, 2011
"New York Attorney General Eric Schneiderman has found “red flags” in a review of local development corporations that uncovered the potential for self-dealing, nepotism, improper loans and exorbitant expenses at some. He has been examining the more than 200 local development corporations statewide, reviewing salaries and spending at the nonprofits that do government work but with fewer restrictions and less oversight. The review has led to deeper examinations of several organizations, including the Multi-County Community Development Corp. and its affiliate Rehabilitation Support Services Inc. Those organizations provide residential and day services for mental health and drug abuse clients in the Hudson Valley and part of western New York."
The AG has been like Horton Hatches a Who-a well meaning elephant faithfully sitting on the investigation started by the intrepid Andrew Cuomo of ethical fame-but willing to wait indefinitely until the mother bird returns. The gestation period of this investigation is worthy of a herd of elephants.
Look forward to grievous evidence of wrongdoing that will soon be uncovered in Oneonta or some other boondocks location. Closer to home the intrepid elephant morphs into the three monkeys who cannot see, hear, or speak of evil.
"In its mishandling of Willets Point, the city Economic Development Corp. has qualified for the Chutzpah Award of the Year. Notwithstanding the lack of sewers in Willets Point, the city not only ignored repeated requests from property owners for many years to install sewers, but collected sewer rent for the non-existent sewers...It willfully allowed the area to fall into structural disrepair and then mislabeled it as substandard. Now comes the pinnacle of absurdity in that the EDC has awarded the sewer contract to a New Jersey-based company (“Avella, biz group slam EDC,” Flushing Times, Dec. 1-7)."
Haber also underscores the central point that WPU has been making about the city's eminent domain abuse: "It made a mockery of the understanding that eminent domain was to be used for public purposes and not to subsidize fat-cat real estate developers."
Make no mistake about it, the Willets Point development will go down in the annals of the city's history-along with the theft of the Bronx Terminal Market by Dan Doctoroff for his friend Steve Ross--as the exemplar of crony capitalism and what Newsday's Dan Janison has coined as patricianage. Unfortunately there are far too few Habers around to righteously call out the self servers.
He does, however, end his letter with an important policy suggestion-and for that he deserves the last word: "By no stretch of the imagination can the proposed Willets Point development in its concept, planning and implementation qualify as democracy in action. Machine politics would fit the bill. The time has come to remove the EDC’s jurisdiction from the mayor and make it accountable to the City Council."
Monday, December 26, 2011
Willets Point United is pleased to announce that it has filed its final brief with the NYS Appellate Division in our case challenging the use of eminent domain ("Serrone v. City of New York"). This culminates a three year process that began when the city council approved the land use application for the development of Willets Point before the city received approval for the Van Wyck ramps-and action that led to the current condemnation proceeding that the city promised the court would not occur before ramps were signed off on.
The Petitioners in Serrone v. The City of New York, the lawsuit commenced to stop the condemnation of twenty acres, or a third of Willets Point filed their reply brief in the Appellate Division in Brooklyn. In addition, two amicus briefs were filed supporting the effort to stop the improper condemnation. One brief was filed by the Institute for Justice, the second by the Property Rights Foundation of America.
In their brief, the petitioners stated that in reality, what the City of New York is attempting to perpetrate at Willets Point, Queens is little different than the land grab in Wukan, China. Wukan is a small fishing village in Guangdong Province whose residents rose in revolt over a land grab by local officials to turn over to their land to connected real estate developers.
But China is a communist country, how can that happen here? We have constitutional rights granted by the U.S. Constitution and New York State Constitution that provide that private property may not be taken by government except for a public purpose, and then only after protecting the due process rights of property owners, don’t we? But isn’t the City trying to do a land grab without according any constitutional rights to the people of Willets Point, just as happens in communist China?
In the briefs filed to stop this wrongful exercise of the most awesome of governmental powers, the property owners detailed the wrongful conduct of the City from the very start. This began with the Mayor’s office having EDC, a non-profit entity, pay money to another non-profit entity to lobby the City Council to approve the project. Non-profits are precluded was from lobbying. Indeed, former Borough President, Claire Shulman, who headed the lobbying effort for the Flushing, Willets Point Corona Local Development Corp was hit with a $59,090 fine by the City Clerk because of her failure to register as a lobby. The Attorney General is still reviewing the illegal lobbying issue.
Then there was the special deals made with the larger owners in Willets Point which violated the law’s requirement for fairness and equal treatment of who are slated for condemnation. The violations of the Constitution and New York’s Eminent Domain Procedural Law mark a new low in the use of eminent domain.
The brief authored by Michael Rikon with the environmental legal issues drafted by Michael Gerrard, point out the outrageous conduct by the City, starting with the failure to provide proper notice of the public hearing.
The City of New York was required to provide notice of the public hearing by complying with the Constitution’s due process procedural requirements. The notice is required to clearly state that those property owners who may subsequently wish to challenge condemnation of their property via judicial review must do so within thirty days after the condemnation makes it “Determination and Findings” which authorize condemnation.
There are over 150 Spanish speaking businesses employing over 654 people in the 20 acres. It has long been the law that a commercial tenant has the constitutional right to recover for the taking of its trade fixtures.
There is no reason for not personally serving people who will lose their businesses. The commercial tenants on the site were well known to the City. The City had become the landlord to the vast majority of the condemnees and had actual knowledge of their names and addresses. No reason is offered for the failure to effect personal service. Certainly if one of its tenants became delinquent in payment of rent, the City would be required to obtain personal jurisdiction to evict them. Why would the procedural due process required by the Constitution be excused because the City desires to condemn their trade fixtures?
There was no excuse for the denial of due process. The City knew exactly who occupies the premises in Phase I. Due process requires that a deprivation of property be preceded by notice that is “reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action.”
But the most important element of the notice is the absolute necessity of warning the condemnees that their property rights could be lost as a result of the hearing. This was not done. Nor is there anything in the Notice of Hearing that warns that a proceeding within thirty days after a “Determination and Findings” is adopted must be commenced.
There is more, much more in terms of the conduct of the City, and this blog will discuss the other serious violations presented to the court in subsequent issues.
Monday, December 19, 2011
On November 9, the New York City Economic Development Corporation (NYCEDC) held its "Public Information Meeting" for the public to discuss and ask questions about NYCEDC's permit application to allow toxic water removed from the Willets Point sewer construction site to be discharged, after filtering, into the Flushing bay. But even before that meeting occurred, it was obvious that NYCEDC had failed to comply with the written public participation plan that it had presented to the Department of Environmental Conservation (DEC), as well as applicable DEC regulations.
For example, NYCEDC held its November 9 meeting:
- While completely concealing from the public the permit application that was supposed to be the topic of that meeting;
- Without making available project-related documents approximately 15 days in advance of the meeting (or perhaps at any time whatsoever in advance of the meeting);
- After deliberately omitting from the written meeting stakeholders outreach list all Willets Point businesses, including those located on 126th Street immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work – while including on the written notification list 35 church organizations that are located one mile away.
On November 21, 2011, environmental attorney Michael Gerrard of Arnold & Porter LLP, representing Willets Point United Inc. (WPU), notified DEC of multiple failures of NYCEDC, including those summarized above, to comply with the written public participation plan presented to DEC, as well as provisions of DEC Commissioner Policy 29.
DEC must have appreciated that its consideration of NYCEDC's permit application would lack necessary integrity, if it relied upon the inadequate public participation implemented thus far by NYCEDC. And so it comes as no surprise that, after receiving attorney Gerrard's letter, NYCEDC has since acceded to WPU's demands, by:
- Making available to the public the permit application document that had previously been completely concealed;
- Scheduling a new public participation meeting;
- Making available to the public project-related documents in advance of the new public participation meeting;
- Including in the written meeting stakeholders outreach list Willets Point businesses immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work.
Make no mistake about it: NYCEDC is taking those extraordinary steps, not because NYCEDC enjoys public participation in its projects, but because it must correct its failures to comply with its written public participation plan, as well as applicable DEC regulations.
In particular, the new public information meeting to be held tonight is obviously intended to correct the failures of the original meeting. Significantly, the original public information meeting held on November 9 was supposed to have been the only such meeting. (See page 4 of the original Public Participation Plan, http://www.nycedc.com/ProjectsOpportunities/CurrentProjects/Queens/WilletsPointDevelopmentDistrict/Documents/Public%20Participation%20Plan.pdf: "One public information meeting will be held at a publicly accessible location in Flushing to provide information about the construction of the proposed sanitary and storm water sewer lines and the associated NYSDEC permitting process.")
The new meeting is, for all intents and purposes, a do-over – necessary to correct failures of the original.
Now, we understand that no one likes to admit they have failed – especially when doing so could threaten their holiday bonuses.
So while NYCEDC incredulously spins tonight's new public information meeting as a mere "follow-up", the fact of the matter is that this meeting is a do-over, implemented because WPU has held NYCEDC to account, and necessary to correct NYCEDC's prior failures.
Significantly, tonight's sewer meeting do-over is just one example of WPU holding NYCEDC to account, and turning back the clock on aspects of the proposed Willets Point development. That has happened before: After WPU brought to the attention of state and federal regulators fatal flaws in NYCEDC's application for the proposed Van Wyck ramps, the entire process for evaluating those proposed ramps was revised, and still remains incomplete more than two years later. More recently, after WPU brought to the attention of State Supreme Court Justice Joan Madden that NYCEDC intends to proceed with "Phase One" of the proposed Willets Point development without having approval of the proposed Van Wyck ramps, and to condemn Willets Point property on that basis – in direct contradiction of the City's prior representations to Judge Madden's court – Judge Madden has decided to re-open WPU's Article 78 case "in the interests of justice".
We're weren't surprised that NYCEDC and the City attempted to distract from all of that, by staging a sewer project groundbreaking on December 1, 2011 despite not having obtained the required DEC permit, and despite knowing that NYCEDC had failed to implement a proper public participation process (and that it would have to be re-done). Tellingly, NYCEDC's consultant mailed notices regarding the public information meeting do-over on December 2, 2011 – one day after the Mayor's groundbreaking press conference. That prevented members of the press from questioning the Mayor about NYCEDC's revised public participation plan during the groundbreaking press conference.
WPU will continue to hold NYCEDC and the City to account. We're unfazed by the Mayor's phony press conferences, and by NYCEDC's laughably inaccurate spin. For each failure of NYCEDC, expect a do-over. One step forward, but two steps back. And to NYCEDC chief Seth Pinsky we say: Axe those holiday bonuses.
[The December 19, 2011 sewer permit public participation meeting will be held from 6:15PM - 8:15PM at the Al Oerter Recreation Center, 131-40 Fowler Avenue. NYCEDC has not posted notice of this meeting on its web site, apparently preferring low attendance.]
Thursday, December 15, 2011
Madden was unfazed by the city's legal arguments about the phased implementation of a Willets Point development that the city told to one and all simply must be done all in one piece because of the remediation issue from years of environmental neglect. There is one reason, and one reason alone that the city is willing to risk the court's ire-and that is because it is desperate to get this boondoggle started before Mayor Megabucks finally leaves for greener pastures.
The city is desperate because it told the court that it wouldn't condemn a single property until the Van Wyck ramps were approved-and almost three years after it sought this approval the regulators at the state and federal levels have yet to give the ramps the green light:
"In addition, the city has said in the past it would not start condemnation proceedings until the ramps were approved. In her ruling, Madden said: “As the city has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment.”
This about face is what has irked the judge-and WPU's attorney weighs in on the duplicity: "WPU attorney Michael Gerrard said the decision “casts a large, dark cloud” over the development project. Gerrard added the ruling shows that the city “cannot run roughshod over the environmental laws and over the rights of the businesses that are struggling to survive.”
In the entire article, however, the city never attempts to defend the indefensible: the fact that its deputy mayor-the late great Robert Lieber-had lied to the court about condemnation. Instead it falls back on the fact that all the powers that be support the project-standing in line drooling at the prospect of being beggars at the EDC feast. We'd love to see a referendum on this development conducted with the voters of Queens-one where an equal amount of money was allocated to both sides to make their case.
We're confident that if the facts about the 80,000 cars per day and the lack of adequate transportation infrastructure were made known-not to mention the billions needed to complete this project-the voters of Queens would give it a thumbs down. Here's the fatuous statement from EDC:
"The Willets Point project is overwhelmingly supported by elected officials and the community and will transform this blighted and underutilized area into a vibrant neighborhood where thousands of New Yorkers will live and work. We are confident that the environmental review was properly conducted, and the project is proceeding as planned.”
Well, the fact that the ramps remain unapproved is the best indication that a proper environmental review wasn't conducted-and this situation came about because EDC's consultants fudged the traffic data and were caught red-handed. This entire development needs to be subjected to an independent fiscal as well as environmental review-the folks at EDC have proven their inadequacy to this crucial task.
Thursday, December 8, 2011
"A State Supreme Court judge reopened a lawsuit Tuesday that could throw a wrench into the $3 billion redevelopment blueprint for Willets Point after the city broke down its original plans into three separate phases. State Supreme Court Judge Joan Madden originally ruled against a group of property owners who sued the city to stop the project, but she said in her Tuesday ruling that she would reopen the case after the city Economic Development Corp. made changes to its plans for the 62-acre, mixed-use development, which would replace the auto body shops and industrial businesses that currently populate the Iron Triangle."
We've been calling the EDC phase-in approach a phony ruse and Madden concurred-using more judicial language: "According to the ruling, the city broke up the proposal into three phases without conducting a separate environmental study and also claimed that it did not need additional ramps on the Van Wyck Expressway to accommodate increased traffic. In addition, the city earlier claimed that it would not proceed with condemning property in the triangle until the ramps were approved but did so anyway, the ruling said."
Liar, liar, pants on fire! "As the city has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment,” Madden said in her statement."
So much subterfuge it's hard to know where to begin-and as the Ledger also reports the city can't even conduct a sewer permit hearing honestly. WPU's chastisement of EDC/DEC brought immediate results, however:
"And Monday night, the group released a statement alleging that the EDC did not properly conduct a period for public comment, which is required by the state Department of Environmental Conservation. Michael Gerrard, a lawyer for Willets Point United, sent DEC a letter Nov. 21 accusing the agency of purposely concealing documents from the public’s view and not disclosing the environmental impacts of the project. In addition, Gerrard’s letter stated that the EDC did not initially include business owners in Willets Point on an outreach list ahead of the Nov. 9 meeting."
So, what happened? EDC and the DEC blinked: "The day after Bloomberg’s news conference, the EDC issued a statement that a new public hearing will be held Dec. 19, which Willets Point United chalks up to Gerrard’s letter. But Jennifer Friedberg, spokeswoman for the EDC, said her agency and the DEC collaborated on the public comment period, which is ongoing. A spokesman for DEC said the agency announced it would be conducting further outreach without the provocation of DEC."
What this clearly shows is that EDC can't do the right thing without provocation from an aggrieved party-something that has characterized this development from the very first time the agency set up its illegal lobbying scheme four years ago; "And to drum up support in the immediate area, the city has been giving funding to a Willets Point redevelopment advocacy group led by former Queens Borough President Claire Shulman, Deputy Mayor Robert Lieber confirmed, boosting an organization that has brought on a lobbying team of its own for the push. The city has approved up to $250,000 in matching funds for Ms. Shulman’s group."
So here we are-soup to nuts. The Bloomberg administration holding on desperately to have at least something to point to when these past 12 years are put into the record books will stoop to any tactic to get Willets Point developed-after all, with school test scores flat lining (what Daily Politics calls a "legacy" problem) there really isn't much for these folks to cheer about as they prepare to walk out the door at the end of 2013.
Wednesday, December 7, 2011
Madden also addresses WPU's right to request that she vacate the original order dismissing the case-and points to the issue of misrepresentation as a just cause for doing so. As the judge says;
"Here, in the original Article 78 proceeding, the FGEIS assumed the ramps would be approved and did not analyze alternatives if approval was not obtained. Additionally, the City acknowledged that the ramps were an integral part of the plan and that the plan as conceived could not proceed without the ramps, and repeatedly and clearly stated that it would not seek to exercise its power of eminent domain prior to obtaining approval of the ramps. In reaching the decision to dismiss the petition, I relied upon the City’s representations.
As the City has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, indirect contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment...
I conclude that I have the inherent power to entertain petitioners’ concerns regarding the City’s new staged approach to the development of Willets Point and to consider the adequacy of Technical Memorandum, and that it is in the interests of justice to do so."
What the judge is trying to say is that the city is engaged in an illegal segmentation-trying to avoid the ramp review and accomplish the development of Willets Point in piecemeal fashion. Professor Rick Hills lays this out in a blog post: "Judge Madden ruled today against New York City in the Willets Point litigation, holding that the City's changing its position regarding the need for a highway ramp undermined the factual basis for her earlier decision upholding the City's final generic environmental impact statement ("FGEIS"). In effect, she accused the City of playing a game of "bait-and-switch" -- obtaining judicial approval of an FGEIS on the basis of one set of facts and then changing those facts after securing a favorable ruling."
What we have year is an ends justify the means mentality that sacrifices integrity and ethical behavior for unscrupulous representations before the city council as well as the court. Remember living wage? Just another example of the bait and switch philosophy that EDC believes is justified by its vision of the future development of Willets Point-and anyone who gets in the way of that vision better watch out!
In a ruling that will send shock waves throughout the Economic Development Corporation (EDC) corridors down at 110 William Street – not to mention City Hall – New York State Supreme Court Judge Joan Madden has decided to reopen a lawsuit filed by Willets Point United Inc. (WPU) "in the interests of justice". Judge Madden's decision comes roughly three months after hearing oral arguments in which the City urged the judge to deny WPU's motion to reopen the case.
But Judge Madden has rejected the City's arguments that she could not reopen her prior decision that dismissed WPU's lawsuit. Instead, Judge Madden ruled that she has inherent power to reopen this case, and she agrees with WPU that the City attempting to proceed with "Phase One" of the proposed Willets Point development without approval of the Van Wyck Expressway ramps is "in direct contradiction of [the City's] prior representations" to the court – representations on which Judge Madden relied when dismissing the case during 2010. The City had told the court in sworn depositions from Deputy Mayor Robert Lieber and an EDC official that it would not condemn any property at Willets Point until the Van Wyck ramps were approved. Today those ramps remain unapproved, but the city has gone back on its word and commenced condemnation anyway.
A key portion of Judge Madden's decision is the following:
"... the City acknowledged that the [Van Wyck] ramps were an integral part of the plan and that the plan as conceived could not proceed without the ramps, and repeatedly and clearly stated that it would not seek to exercise its power of eminent domain prior to obtaining approval of the ramps. In reaching the decision to dismiss the petition, I relied upon the City’s representations. As the City has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment. The question remains as to whether doing so would be in the interests of justice. ... I conclude that I have the inherent power to entertain petitioners’ concerns regarding the City’s new staged approach to the development of Willets Point and to consider the adequacy of [the] Technical Memorandum, and that it is in the interests of justice to do so."
Attorney Michael Gerrard of the law firm Arnold & Porter LLP, who represents Willets Point United Inc. and presented the case on August 17, 2011 before Judge Madden, said:
"This decision casts a large dark cloud over the Willets Point development. It upholds our claims that the City's breach of its promises not to condemn property without approval of the ramps may have serious legal consequences. Many further proceedings lie ahead but today, at last, a judge has heard us and agreed with us that the City cannot run roughshod over the environmental laws and over the rights of the businesses that are struggling to survive."
WPU is pleased that Judge Madden has recognized that our complaints of wrongdoing by the City are legitimate, and are grounds for additional legal review.
WPU will be back in Judge Madden's courtroom on January 27, 2012 at 10AM.Judge Madden's Williets Point Preliminary Decision
Friday, December 2, 2011
"Mayor Bloomberg broke ground Thursday on a controversial redevelopment that he vowed will transform gritty Willets Point into “a major engine for economic growth.” Bloomberg unearthed dirt with a slew of elected officials just steps from the mix of auto body shops and junkyards that abuts Citi Field.
“We are that much closer to the vibrant Willets Point of the future,” Bloomberg said at a news conference near the World’s Fair Marina along Flushing Bay."
All we can hear, however, is Paul Simon singing, "Slip Slidin' Away:" "You know the nearer your destination, the more you slip sliding away..." WPU's Joe Ardizzone hit back at the faux optimism: "But Willets Point United, a coalition of stakeholders critical of the project, blasted Bloomberg and Pinsky for jumping the gun. “The city is trying to create an impression of a fait accompli when there are serious legal and financial issues unresolved,” said Joe Ardizzone, 78, the lone resident of Willets Point."
In an NY1 story WPU's Antonacci blasts the city's years of neglect: "Business owners point out that it's not their fault the streets look rough. They paid taxes for years, and now they're the ones bearing the brunt of the city's neglect. Jerry Antonacci's family has run a carting business for 35 years.
"It's gotta be over a million dollars over 30 years in taxes, and what do we get for it? We're getting kicked out. I mean, we didn't get no streets, we didn't get no sewers, we didn't get no sidewalks, no street signs, no stop signs, no snow plowing, nothing," said Antonacci."
We did get a chuckle about the comments of EDC's boy president: "Seth Pinsky, president of the city Economic Development Corp., said the proposal will turn Willets Point into “one of the great and vibrant neighborhoods of New York City.” In fact we have a great name for the new "vibrant" neighborhood: Gridlock City! The overdeveloped Willets point might better resemble a Roach Motel-where the roaches get in but can't get out.
And what have they been putting in BP Marshall's coffee? Here's her observation about the plight of the existing businesses: "Queens Borough President Helen Marshall said she wants all Willets Point businesses to be re-located to the same spot. “I would like to see them placed somewhere they can work as a team,” she said."
EDC-in usual prevarication mode-chimed in: "As for threatened businesses, officials insist they're offering fair market value and relocation help." This amounts to the usual one way bus ticket out of town.
Of course no one at EDC shares her vision for the displaced workers and their employers-and especially not CM Ferreras who has given up any pretense of advocacy on their behalf in exchange for marionette strings. Here's her inane prattle on NY1: "This was an area that we just didn't walk by. It wasn't safe and I would come by with my dad only," said City Councilwoman Julissa Ferreras."
What she was saying, however-inadvertently making a strong counter intuitive point-was that when her dad needed something for his car Willets Point was the destination. As for walking, why would you walk in Willets point when there were no paved roads or sidewalks? It was not, after all, El Malecón.
NY1 did also bring in the living wage issue: "A retail union also alleges there’s double-talk on higher wages for those that will eventually work there. In a 2008 letter, city officials said they will favorably view development plans that maximize the number of jobs that meet the city's living wage and health benefit. With construction union backing, City Hall officials now say that would jeopardize the project."
So the city is going to put over 200 businesses and 1800 mostly minority workers out of a job-put hundreds of millions of dollars into the development-and they say that a living wage requirement would kill the deal? What that means to us is that the plan calls for box stores and more box stores-another about face from the original Lieber letter to the city council-where the deputy mayor lied about, "suburban box stores being discouraged due to their significant impacts on traffic and vehicular circulation."
Willets Point was created in dishonesty and illegality and that pattern continues to this day. The "beautiful vision" that Marshall sees rests on fraud and deception and, as Max Weber once observed, the use of nefarious means to achieve good ends usually results in the opposite. Willets Point is a case in point.
Thursday, December 1, 2011
Mayor Bloomberg cavorts with employees of Cruz Construction -- the Holmdel, New Jersey firm that was awarded a $40 million contract to install sewer lines at Willets Point.
The photo op was also-with a tip of the hat to Robert Moses-premature since there are numerous legal and financial obstacles that face the city before this development can move forward. It is not surprising, however, that EDC would put the photo op horse before the permit cart-something it also did with the ramps off the Van Wyck. What this all indicates is that the city is desperate to show some progress-three years after the initial approval by the city council.
The permit application may very well run into a serious legal problem since-as our letter to the DEC highlights-EDC is violating the environmental justice guidelines that the agency has promulgated-Willets Point is in an "environmental justice area," which means that care must be taken-along with "enhanced participation"-to include all stakeholders in order to insure that a project doesn't have a disparate impact on minorities.
Since there are around 1800 Hispanic workers set to be displaced if the development goes forward we think there is reason to assume that there will be considerable disparate impact. But the photo op says it all. Take a close look at all the hard hats with the mayor-not a single black or brown face.
This dramatizes how the Bloomberg administration sees environmental justice as, "just us." And the fact that the city couldn't find a local firm to do the work underscores their mind over matter mindset-they don't mind and tax payers don't matter.
DEC Letter from Mike Gerrard
Above is a letter sent by WPU's environmental attorney, Michael Gerrard, of the law firm Arnold and Porter, to DEC.
The gist of the letter is that NYCEDC has failed to comply with the "enhanced public participation" process that is required by DEC Commissioner Policy 29, for NYCEDC's permit application to dump water from the construction site into the Flushing bay. The failures to comply invalidate steps that NYCEDC has taken thus far to attempt to obtain DEC's approval of the permit. Moreover, DEC may not even be entitled to grant NYCEDC's permit application, because the proposed work enables the Willets Point development -- which involves an adverse environmental impact upon an environmental justice area, which is contrary to the concept of "fair treatment" set forth within DEC Commissoner Policy 29. WPU has sent copies of this letter to State Senator Avella, Council Member Ferreras, and State Assemblyman Peralta.
How can you hold a groundbreaking for a project without having the necessary permits to do start the project and no guarantee that you will get them?
It's not just dirt they're shoveling!
"The EDC has also been criticized by Willets Point United, a property owners group, over the topic of a living wage requirement for retail employees who might one day work in the planned $3 billion development that will include both commercial and residential space. The group cited a recently leaked letter written in 2008 from the city to Gary LaBarbera, then head of the city Central Labor Council, that said the request for proposals would include language about a living wage.
The letter states: “As we discussed, we will include the following language in the Willets Point RFP .... NYCEDC will view favorably development plans that maximize the number of jobs that meet the city’s living wage and health benefit standards (‘living wage jobs’).”
This doesn't sit well with the RWDSU-the main proponent of the living wage law: "But the actual request for proposals did not include such language. And the Retail, Wholesale and Department Store Union, which touted the redevelopment project as a boon for local workers, is not happy. “They clearly broke the promise and reneged on what they said,” said Dan Morris, a spokesman for the union and for Living Wage NYC Coalition. Morris said a living wage bill, currently being debated in the City Council, would prevent this from happening in the future."
But what about the promise on Willets Point? Doesn't this invalidate the agreement? It certainly should caution the city council about any deals it makes with the mayor on land use applications-their word is simply not credible and stronger measures are needed to prevent the cynical about faces that we have seen on Willets Point.
The mayor, however, continues to stand strong against the living wage concept even though-as the IBO has pointed out-the city has hundreds of living wage provisions in its contracts. Capital explains:
"Still, there was a time when the Bloomberg administration didn't find it all that complicated. Today, Doug Turetsky, chief of staff for the nonpartisan, publicly funded Independent Budget Office, pointed out that the city already has living-wage provisions in place covering the employees of food-service and security firms under contract with the city. In 2002, Bloomberg himself signed into law a bill extending the wage requirements to cover home health care and child care workers under contract with the city. Bloomberg also supported instituting living wage-like provisions at Willets Point.
This new bill under consideration in the Council would apply to only six or seven projects a year, according to the I.B.O. “That’s a small number compared with the 437 contracts the city signed in fiscal year 2011 that are subject to the existing living-wage law,” writes Turetsky."
And where would a living wage argument be without the Kingsbridge Armory straw man? "To bolster his point, Bloomberg pointed to what has been Exhibit A for opponents of the wage mandate: Kingsbridge Armory in the Bronx, where developer Related Companies once proposed investing more than $300 million to build a mall. In 2009, the City Council, overriding a mayoral veto, defeated Related's plan, after it refused to comply with wage demands. “You saw up in the Bronx what happened when somebody tried to do that,” said Bloomberg. “Thousands of jobs that would have been created by now just aren’t there and it’s hard to see in the immediate future how we’re ever going to catch up and make up for that.”
CM Fidler picked up the same false argument:
"I think the problem that many of us have with the bill is that we all like it in principle,” he said. “The fact remains that that same principle guided our decision on the Kingsbridge Armory, and it’s still empty."
“Who am I to tell someone that no job is better than a job that doesn’t pay a quote-un-quote living wage,” he continued. “And, what do I say to the person, who says, ‘Wait a second. I would have had one of those jobs. I want one of those jobs.'”
Lost in all of this is the fact that the Armory project-subsidized by millions of public dollars-was a poor economic development investment because it threatened the existing local retail base. So Fidler should ask himself, Should public dollars be invested so that a local store owner would be forced out of business? The Bloomberg model is a zero sum game and Fidler-a strong defender of local stores-should be smart enough to realize that.
Which brings us back to Willets Point. It is unclear whether the current legislation would apply to Willets Point but shouldn't labor and the council be holding Bloomberg to his commitment? Was the Willets Point living wage promise simply a ruse to gain approval of a controversial project? If so, isn't it time for the council to exercise its oversight authority?
Monday, November 28, 2011
"It was supposed to be a breakthrough victory for Harlem residents and a model on how to settle raging land-use disputes.But more than 2½ years after Columbia University brokered an agreement with community groups—exchanging a lucrative package of benefits for the area's blessing of the university's expansion into West Harlem—local officials and residents are complaining that the fruits of the deal remain a mystery."
This is really nothing new and the seeds of this calamity were reported by the NY Post a year and a half ago: "A $76 million windfall intended to help Harlem residents is in limbo -- and may never be paid -- because the politician-backed nonprofit in charge of distributing the money is in disarray, the Post has learned. Although it formed four years ago, the West Harlem Local Development Corp. lacks a mission statement, has yet to get tax-exempt status from the IRS and doesn't even have a phone number. The group already has received $500,000 from Columbia University -- part of a 16-year payout designed to assuage community fears over the school's expansion -- yet hasn't spent a cent on the neighborhood."
This was why Nick Sprayregen-the property owner who fought the project-walked away from the group. He saw just how fraudulent the whole scheme was: "Concerns about the agreement surfaced even before it was drafted in December 2007. Five West Harlem board members resigned, upset over the heavy-handedness of the politicians involved in negotiating with Columbia. "The LDC sacrificed good development because it wanted to control a slush fund," Tom DeMott, one of the former board members, told The Post. Another former board member, the Rev. Earl Kooperkamp, said the politicians "dominated the LDC." Kooperkamp, the rector of St. Mary's Episcopal Church in Harlem, said the pols "whittled down" the community initiatives, which included better housing and subsidized transportation for seniors."
What is missing from the Journal story today is the extent to which EDC played a significant role in this charade-after all someone brought Jesse Masyr in, pro bono, to negotiate the pact and we don't think it was the residents of the community. Masyr is as smart a land use attorney as you can find in this city but even he would resist the appellation, "community spokesperson."
What this means for us at WPU is that the city will do and say anything once it embarks on a condemnation venture-and the use of a CBA is a neat trick used to beguile the gullible to sign off on a bad deal. This is reminiscent of EDC's promises of living wage at Willets Point. What the latest deceit makes abundantly clear is that Diogenes would not strike pay dirt down at 110 William Street.
Sunday, November 27, 2011
This 4-minute video compilation shows union officials during 2008 announcing, and testifying to the New York City Council on the record regarding, an agreement that requires a living wage provision to be included in the Request for Proposals seeking developer firms to implement the Willets Point development.
No matter what the unions may now have us believe, it is quite clear from this video that:
(1.) The unions unequivocally state that a living wage provision is "guaranteed" and "required" to be included in the Willets Point RFP, and that this has been memorialized in a written and signed agreement (i.e., there is no wiggle room);
(2.) The agreement to include a living wage provision in the Willets Point RFP was "critical to labor's support on this [Willets Point] project";
(3.) The agreement was consistent with the ideology of the local City Council member (Hiram Monserrate), without whose consent approval of the proposed Willets Point development would have been unlikely;
(4.) The local City Council member forewarned that in the future, the City of New York might attempt to avoid implementing agreed labor provisions, but that the City must honor its commitments to labor and to the City Council;
(5.) The City Council requested, and union officials agreed to provide to the City Council, a copy of the written agreement pertaining to the the inclusion of a living wage provision within the Willets Point RFP. Therefore, that agreement is part of the record on which the City Council based its decision to approve the proposed Willets Point development.
Now that the City has reneged on its commitment to include a living wage provision within the Willets Point RFP, who will challenge this? Will the unions -- whose agreement apparently has been violated by the City -- bring a lawsuit to require a new RFP that includes a living wage provision? Will the City Council act? Will law enforcement?
Or, were union officials exaggerating, or perhaps deceiving themselves, during 2008?
Friday, November 25, 2011
Just what the hell is the "restless middle?" And who exactly is raising money on behalf of these restless folks? The only guy that Wapo cites is someone descrbed as a Rebublican strategist who once worked for the Democratic governor of Massachusetts-inspiring the thought that this kind of effort is self aggrandizing but not really stimulating to anyone not simply looking out to make a quick buck.
Perhaps all we need to know is that the effort is being bankrolled by Peter Ackerman, a former partner of Mike Milken-and that Mark McKinnon, a co-founder of the No Labels effort that Bloomberg has been allied with, sits on the board of directors. This is priceless-no labels, junk bonds and the surreptitious presence of one Michael Bloomberg. A perfect fit for the current political mood. Maybe they should call their party the Crony Capitalists.
As WaPo reports: "New York Mayor Michael R. Bloomberg’s name has also been mentioned, probably because a leader in the effort to draft the independent into the 2008 presidential race is involved in Americans Elect. " But we don't think that Mike will get involved with this crew-too haphazard and uncertain an effort, and Bloomberg needs to be fully in control of the rudder in anything he does.
Which brings us to John Podhoretz's column today in the NY Post:
"Fanciers and critics of Michael Bloomberg alike, take note; there are signs he’s noodling once again about making an independent run for president.
Item 1: After two months of dilly-dallying, the mayor finally moved on the Occupy Wall Street encampment, just as — fancy this! — the polls were showing public opinion turning firmly against the squatters nationwide.
Item 2: The Wall Street Journal published an op-ed calling on Barack Obama to forego a bid for second term by Patrick Caddell and Douglas Schoen. Doesn’t seem relevant? Schoen, an experienced Democratic pollster, has been a Bloomberg intimate for years and one of the leading expostulators of the notion that an independent could really win the presidency in 2012."
The speculation might be fueled by the mayor's apparent boredom with his current job: "He looks tired and bored and annoyed. And there are two long years until his liberation from the third term he foolishly sought. But what is a man who clearly loves the spotlight, the attention and the idea that he is a get-it-done guy who transcends ideological and partisan categorization to do?"
Just to get into the holiday spirit, "Ho, ho ho"-the idea that Mike Bloomberg is a "get-it-done" kind of guy is a train that has long ago left Rational Central Station. Bloomberg has shown a knack for self promotion but that has been accompanied by little in the way of tangible achievement-check the city schools, CityTime and last winter's snow storm if you nee to have your memory refreshed.
Podhoretz for his part is a fan of the idea because he feels that the mayor-as a "nanny state liberal"-would sink Obama's re-election efforts: "But given his own ideological predilections — meaning, he’s a nanny-state liberal — it’s more likely than not that those states would be ones Obama would otherwise win. If Bloomberg succeeds in capturing independents and a bunch of disaffected or depressed Democrats, he’ll ensure an Obama defeat and a Republican victory in 2012."
We tend to agree with this assessment but we would add that, aside from his nanny tendencies Bloomberg is the ultimate crony capitalist and the combination of traits would make him an anathema to a wide swath of the electorate. His run, however, would generate a great deal of mirth-and given the recent gloom and doom in the economy that is indeed something we would look forward to.
Put simply the city lied -- in Paradise by the Dashboard light fashion --to assorted labor leaders when it made promises around the living wage provision for Willets Point. Once it had gotten off, so to speak, it no longer felt the need to honor those promises so they were conveniently ignored. But the bad living wage wager is only the tip of the duplicitous iceberg when it comes to this development. Shall we count the ways?
(1) Created an illegal lobbying scheme to to promote the project: Set up Claire Shulman's LDC-a phony charity that was comprised of grasping developers - with tax payer money - to present an ersatz grass roots support group for the development plan;
(2) Shulman hid her lobbying activities until the whistle was blown by Willets Point businesses. The result? The largest fine for this kind of underhandedness in the city's history;
(3) Illegal activity exposed by the NY Times: resulting in an investigation that has disappeared into the miasma through two Attorney Generals' tenure -- raising the specter of a cover up and political corruption at the highest levels of city and state government;
(4) Failure of City Council oversight: The council approved the project sight unseen and left the details for later-opening the door because of legislative non-feasance for unacceptable uses such as Wal-Mart;
(5) Scandal of the Van Wyck Ramps: Another failure of council oversight that lead to a lawsuit from WPU against the city;
(a) Lawsuit dismissed when Deputy Mayor Lieber swore to the court that the city wouldn't condemn any property until the ramps were approved;
(b) Ramps application from EDC spit back: EDC consultants filed deceptive and/or fraudulent traffic data that has held up the approval process for over three years;
(6)Governor Cuomo appoints Joan McDonald as new SDOT commissioner: a former EDC executive and ringer who fits comfortably into the cover up narrative;
(7) City reverses its stand on condemnation: Ignores Lieber's sworn deposition and begins "Phase I" of the development that includes condemnation but no ramp approval. Phase I is a fiction that undermines all of the representations that EDC had made to the council in the approval process-indicating the extent to which nothing that the agency says about the development can be believed;
(8 Shulman's LDC receives a $1.5 million grant for the Flushing Waterfront: Grant is challenged by WPU which leads to NYS AG's Office contradicting itself about the existence of an investigation into Shulman's illegal lobbying-raising further questions about a cover up;
(9) City reverses itself on living wage: Comes full circle with its duplicity;
(10) Small property owners still facing eviction;
(11) Thousands of Hispanic workers still being displaced and losing their livelihoods;
(12) Crony capitalism: WPU property to be handed over to rich developer(s);
(13) Still no price tag on what this scheme is going to cost NYC tax payers.
What this narrative dramatizes is just how the city has exhibited a thoroughgoing bad faith throughout the Willets Point development process. The entire scam needs to be halted in its track-beginning with the act of bringing to justice the ringleaders of the illegal lobbying scheme that started this process off in such an initial stench.
Thursday, November 24, 2011
"In June 2008, the president of the Retail, Wholesale and Department Store Union, Stuart Appelbaum, stood on the steps of City Hall to praise the city’s Economic Development Corporation. Along with several other powerful union bosses, Appelbaum touted the EDC plan to jumpstart a long-stalled, $3 billion project at Willets Point in Queens, because he said it would lead to the creation of so-called “living wage” retail jobs for his workers – paying a minimum of $10 an hour.
“It won’t just mean thousands of jobs,” Appelbaum said. “It will mean thousands of construction and permanent jobs that pay prevailing wages and living wages.”
Juan Gonzales in the NY Daily News also weighs in on the correlation:
"And in 2008, when the mayor wanted the City Council to approve a proposed $3 billion Willets Point development project, his deputy mayor then, Robert Lieber, made such a deal with several labor unions.Under that deal, the city would require that all construction, maintenance and security jobs at Willets Point pay “prevailing” wages — far higher than $10 an hour.
As for retail jobs, Lieber promised to “view favorably” Willets Point proposals that “maximize” the number of “living wage jobs.” He even specified $10 an hour for a living wage. Because of those promises, the unions backed the plan and the City Council approved Willets Point."
Only one problem: EDC has-like it has done with so many other things -- reneged on the deal. In doing so EDC and the rest of the gang down at city hall demonstrate that they will say almost anything just to advance their crooked scheme to abscond with the Willets Point property. The key prevaricator in all of this is former Deputy Mayor Lieber -- a stone chump if there ever was one.
As City Hall reports:
"Appelbaum’s contentions that his members could expect living wage jobs at Willets Point were based upon by a letter penned in April 2008 by Robert Lieber, then the city’s deputy mayor for economic development, to the then-head of the city’s umbrella labor organization, Gary LaBarbera.
“NYCEDC will view favorably development plans that maximize the number of jobs that meet the City’s living wage and health benefits standards,” Lieber wrote. “The proposal must explain how the proposed tenanting plan maximizes the number of jobs that meet these criteria.”
That was then, and this is now-just as WPU has already reported: "Yet this May – when the EDC put out a 125-page request for Willets Point proposals to developers – there was not a single mention of living wage jobs. It did state that developers had to hire construction contractors who would pay prevailing wage and that some building workers would get prevailing wage salaries—but retail workers were left out completely. Earlier this week, far from offering tacit support for a living wage, the EDC released a list of 36 projects around the city, including Willets Point, that it said could be jeopardized by the living wage bill."
In response EDC has started to spin like a top: "EDC spokesman David Lombino declined to directly address why living wage language from the 2008 letter never made it into the requests for proposal. “When seeking proposals for development, the city always considers the creation of well-paying jobs in addition to other factors like the feasibility of the project, proposed uses, job density, and cost to taxpayers,” Lombino said."
For us this is quite a familiar scenario. When WPU went to court to challenge the Willets Point development the very same Robert Lieber -- in a sworn deposition -- promised that the city wouldn't move to condemn any Willets Point property until the ramps off of the Van Wyck were approved. When WPU stymied that approval EDC went right ahead with condemnation anyway-and prattled on about changing conditions. This issue is now before Judge Joan Madden who ruled for the city precisely because of the Lieber deposition.
Here's the exit question for us: If the Willets Point development was approved because of the city's wage promises, does that mean that the entire development needs to be re-analyzed? And if the city can so blithely renege on this promise, what does that say about all of the others?