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Appellate Court Orders Additional Review for Atlantic Yards Project

Rebukes state for approving extension on construction from 10 to 25 years without studying how change will affect area residents.

Prospect Heights residents would be forced to live for decades with vacant lots, above-ground arena parking and the impact of construction staging due to an illegal decision made by state officials when it allowed the developer of the Atlantic Yards Project to extend the construction timeline from 10 to 25 years without studying how the change would impact area residents, the state appellate court said Thursday.

In a unanimous decision, the State Appellate Court upheld Justice Marcy Friedman’s that the Empire State Development Corporation, the state agency that oversees the construction, do a new study of the environmental impact of the construction based on the longer timetable and undergo a new approval process for Phase II of the project, which includes 11 skyscrapers.

The decision in the case, Matter of Develop Don't Destroy (Brooklyn), Inc. vs. Empire State Dev. Corp., does not apply to Phase I of the project, which includes the Barclays Center and several towers around it.

“We agree with Supreme Court that ESDC's use of a 10-year build date under these circumstances lacks a rational basis and is arbitrary and capricious,” the justices wrote in the decision.

While the New York State Empire State Development Corporation, which oversees the Atlantic Yards project and Forest City Ratner, the project’s builder, argued that a longer construction schedule would cause less disturbance to area residents, the justices said in the decision today that the extended timeline could make things worse for area residents, not better.

“Thus, it failed to consider an alternative scenario ... in which area residents must tolerate vacant lots, above-ground arena parking, and Phase II construction staging for decades,” the justices wrote.

“It seems clear to me that if the facts regarding the impact of the development had been accurately presented two years ago, the resulting decision would’ve halted construction,” said Council Member Letitia James in a written statement. “We can be almost certain at this point that the jobs and affordable housing originally promised will not come to fruition anytime soon, and instead Prospect Heights and surrounding residents will have to live with vacant lots and construction for years to come.”

Although the decision is a win for Atlantic Yards opponents, Atlantic Yards watchdog Norman Oder argues that it may not make much of a difference for the construction plans for the developer, Forest City Ratner.

“The ruling represents a moral victory, if not necessarily an instrumental one; ESD surely will re-approve the project and issue a study, already begun (as a hedge) that likely will find few significant new impacts,” Oder wrote on Atlantic Yards Report.

But Develop Don’t Destroy Brooklyn, one of the petitioners, suggests that elected officials change course, and bring in additional developers to develop the 22-acre site.

"It has now been proven, in and out of court, that Bruce Ratner simply cannot and will not do the job he promised the public,” said DDDB's legal director Candace Carponter in a written statement. Instead she suggests the site be divided "so that multiple developers can build a project that responds to the community's needs and concerns and brings true benefits, rather than pie-in-the-sky promises made to be broken."

Brooklyn Speaks, another petitioner in the lawsuit also suggested lawmakers take action following the decision.

“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,” said Danae Oratowski, Chair of the Prospect Heights Neighborhood Development Council.

Both the ESDC and Forest City Ratner released statements saying they were still committed to the project and that the decision wouldn’t affect the opening of the Barclays Center arena in the fall.

Norman Oder April 13, 2012 at 12:06 PM
Here's some additional analysis and commentary, including a transcript of the Jan. 2010 hearing, in which a lawyer for the state claimed they were relying on the Development Agreement to enforce the ten-year timetable, but withheld the document: http://atlanticyardsreport.blogspot.com/2012/04/how-appellate-court-in-its-way-backed.html

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