State Loses Final Appeal in Atlantic Yards Fight

New York State’s highest court has upheld a decision ordering the agency overseeing the Atlantic Yards project to conduct a new study of how construction will affect the surrounding communities.

Tuesday’s ruling ends nearly a year of appeals by the Empire State Development Corporation (ESDC). There is no additional avenue for appeal.

The decision means that Phase II of the mega-project, which includes 11 skyscrapers, will not be able to go forward until the ESDC's board of directors approves the new study, called a Supplemental Environmental Impact Statement (SEIS). 

In declining to hear the appeal, the court upheld a lower court ruling that the ESDC acted illegally in 2009 when it approved changes that stretched the construction timetable from 10 to 25 years without conduction a new study.

The new study may spur the ESDC to bring in additional developers to complete construction in 10 years, which developer Forest City Ratner says isn't possible for the company.

"The ESDC maintains that when they approved the project in 2009 they really believed it would get done in 10 years. But three courts didn’t find that credible," said Gib Veconi of the Prospect Heights Neighborhood Development Council (PHNDC) who for Patch.

"Now that the court has ripped open the curtains on that, they’re (the ESDC) going to have to find a credible alternative to get the project done in 10 years, whether it involves Forest City or not," he said.

The decision upholds State Supreme Court Justice Marcy Friedman’s in whch she chastised the ESDC for “continuing use of the 10 year build date [that] was not merely inaccurate; it lacked a rational basis given the major change in deadlines reflected in the MTA and Development Agreements.”

In April, the , writing: “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. … 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."

At a Tuesday night, ESDC Commissioner Kenneth Adams said his agency would “get working on" the study.

"While we do not agree with the Court's decision, we are prepared to conduct the SEIS on Phase II as ordered. ESD's goal is to keep all phases of the project moving forward to ensure that the community is fully engaged and 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," Adams added in a statement today.

Developer Forest City Ratner declined to comment on the ruling.

Community coalitions praised the decision.

A statement from Develop Don’t Destroy Brooklyn, one of the original plaintiffs in the suit, said the decision showed that New York “courts can actually be a check against public agencies running amok on behalf of private interests.”

But community groups urged government officials to create a system for better oversight of the project going forward. 

"We urgently need not just an SEIS, but also establishment of proper oversight to ensure that agreed-upon mitigations for construction impacts are monitored and enforced,” said PHNDC chairwoman Danae Oratowski in a written statement. 

Michael Cairl, President of the Park Slope Civic Council, said in a statement that the new SEIS could make a big difference in the quality of life for Atlantic Yards area residents for decades to come.

“While the arena may be nearing completion, the impact of the project on local individuals, families, and businesses is just beginning. …  It’s time to come together with residents, business owners, and their elected representatives to make this project work for Brooklyn and New York.”