July 8, 2008
Yesterday Develop–Don't Destroy Brooklyn and their 25 community and good-government group co-plaintiffs (which incudes this block association) filed our appeal on the lawsuit seeking to overturn the Supreme Court decision from January, and annul the fatally flawed environmental review and overall approval of the Atlantic Yards proposal. The plaintiffs believe that the case, DDDB et al. v ESDC et al., was wrongly decided, on a number of grounds, in the lower court. The appeal focuses on the plaintiffs’ charge that the lower court erred in numerous respects, including the following:
> The State’s determination that the project site is “blighted” was illegitimate, and manufactured by the developer to take valuable private property via eminent domain.
> The State had no authority to approve the Barclays Center Arena because it is not a “Civic Project” as defined under the Urban Development Corporation Act (UDCA).
> The State violated the State Environmental Quality Review Act (SEQRA) by failing to consider the possibility of terrorism and other security breaches on the Project.
> The State violated SEQRA by grossly misrepresenting the project’s construction timeline, thereby minimizing the project’s impacts, and not requiring adequate mitigation.
> The State violated SEQRA when it failed to adequately study alternative locations for the proposed Project, including locating the arena in Coney Island.
> The PACB violated SEQRA by approving the project without considering its environmental impacts and failing to make its own SEQRA findings.
Lead attorney Jeffrey S. Baker said, "Our appeal seeks to overturn the Supreme Court ruling from January, and annul the environmental review and approval of Atlantic Yards by Charles Gargano's Empire State Development Corporation, the Public Authorities Control Board, and the MTA, necessitating an urgently needed fresh look from Governor Paterson, his new ESDC and MTA, and the PACB, which has two new members on the three-member board since the approval of the project in December, 2006.”
All legal papers filed can be found here: www.dddb.net/FEIS/appeal
A summary of the original complaint can be found at: www.dddb.net/FEIS/summary.php
If you haven't already contributed to the DDDB Summer Drive to help pay for the costs of this appeal filing, it is not too late....go to http://dddb.net/php/donate.php and make a tax-deductible contribution!
Update from April 2008:
There are many rounds of legal and political fighting left in the struggle. As a community we should all be proud. Our tenacious fight against Atlantic Yards has already had a profound effect on the project. Because of the commitment of Develop Don’t Destroy Brooklyn, and the commitment of our friends and neighbors who have joined the effort, this “done deal” of 2003 is not yet “done” in 2008. DDDB has over 3500 individual donors and over 800 registered volunteers. And even with a median donation of just $50, together we have stood head to head against one of the most powerful, politically connected developers in the country. Despite Forest City Ratner's multi-million dollar publicity campaign, Atlantic Yards is now seen, locally, nationally, and internationally, as the poster child for bad planning, bad process and abusive development.
LEGAL STATUS UPDATES:
Lawsuit in State Court on the Environmental Impact Statement
On April 4, 2007, twenty-six community groups (including the South Oxford Block Association) filed a legal challenge against the state’s environmental review and overall approval of Atlantic Yards. The plaintiffs alleged 11 different serious claims. On January 11, the judge ruled against the community. We are clearly disappointed and believe that the ruling was wrongly decided. We are currently in the early stages of appealing the case, on three or four of the most important claims, on which we feel the judge erred on the facts and on the law. There will be a vigorous challenge to the state’s blight study and the state’s designation of the arena as a “civic project” under state statutory definition. A victory could stop the project entirely, or send it back into a new political environment where at minimum a new vote by Silver, Bruno and Spitzer would have to occur. The appeal process could take at least six months.
Lawsuit in Federal Court on New York State’s Use of Eminent Domain to Seize Properties
In October 2006, thirteen property owners and tenants filed a lawsuit against New York State and Forest City Ratner charging that the use of eminent domain for Atlantic Yards is private use and therefore violates the US Constitution. After nearly 17 months of legal wrangling, the Second Circuit Court of Appeal ruled against the homeowners, business owners and residents. We are now preparing to petition the US Supreme Court to hear their case, in the hopes of finally going to trial over their claims and eventually keep their homes and businesses. If they keep their properties, Atlantic Yards cannot be built. Their case, organized by DDDB and supported by the community with generous donations, involves important constitutional questions that every year affects tens of thousands of Americans citizens and local governments. They argue that the proffered public justification for seizing private properties is a pretext for a private taking of property. The 2nd Circuit Court’s ruling against the plaintiffs conflicts with other circuit court decisions. The plaintiffs’ petition to the Supreme Court will rest on the argument that these conflicts need to be resolved by the highest court in the land.
FINANCING & POLITICAL STATUS:
According to Forest City Ratner’s own legal papers, the lawsuits are having a chilling effect on their ability to gain private and public financing for the project. As we continue to defend our rights, that problem will persist. Ground has not been broken for the construction of the arena or any buildings. According to Ratner, the arena was supposed to open in 2006, then in 2009. Now they say 2010. We believe they are unable to secure bond financing for the arena, or financing for the housing, or for the properties they need, which is why they cannot move forward. The construction activity they are currently doing involves relocating public utilities (which taxpayers are paying for), demolishing some buildings they own, and relocating the rail yards. But what they are not doing, is constructing the project.
Given the public morass that the project has become, and the troubled economy are in, our politicians are becoming less and less comfortable with the project. In addition there is a dawning realization that this project is not what was once advertised. For example, just last week, also in court papers, Ratner’s lawyers admitted to drastically lying about the amount of revenue the project would bring for the city and state. Their highly publicized “$4 billion in tax revenues” was basically a made up number.
THE GOAL:
As long as the community keeps the pressure on politicians, keeps fighting in court, and remains vigilant, the 4-year old “done deal” is likely never to get done. Then we can start over and develop the rail yards in an equitable and sensible manner. DDDB will continue to pursue every legal option to secure justice for the plaintiffs and the community. We will continue to seek every political option, and we will continue to promote the UNITY Community Development Plan in light of the markets not being conducive to Atlantic Yards going through. (see: www.unityplan.org)
To find out more information and get involved come to the DDDB Community Meeting: “Update on the Struggle Against Ratner's Atlantic Yards Project and For Fair Development,” on Thursday, March 13, at 7pm. Located at the Hanson Place United Methodist Church. 144 Saint Felix Street at Hanson Place. Fort Greene. Save the Date.
Written by Abby Weissman and Lucy Koteen for Develop Don’t Destroy Brooklyn.
