Monday, February 20, 2006
Demolitions timeline: what do "emergency" and "immediate" mean?
The testimony and legal filings in the court case filed by Develop Don't Destroy Brooklyn (DDDB) and other community groups, in which state Supreme Court Justice Carol Edmead refused to overturn ESDC's approval of the demolition plans, offer a timeline to flesh out some of those questions.
The papers suggest that the terms "emergency" and "immediate" may be legal terms required to approve the demolitions, but at the same time, the actions of the parties belie the urgency suggested by the plain meaning of those terms. Otherwise, the parties might have acted more quickly and tried harder to warn the public.
In Spring 2005, Forest City Ratner was advised to apply to the ESDC to demolish the buildings as an "emergency." However, the company did not, for various reasons, make the effort for several months. On 11/7/05, LZA Technology, a respected engineering firm hired by the developer, certified that 11 buildings at five properties were in "immediate" danger. But it took the ESDC five weeks to approve the decision; during that interregnum, there was no apparent effort by the developer to warn the public.
That's not to say that Forest City Ratner has tried to knock down most of the buildings it has acquired. Indeed, a company official said in his affidavit that the developer deferred to the judgment of its consultant and withdrew plans to demolish buildings that were deemed structurally sound.
Winter 2004-05: plans emerge
According to Forest City Ratner's contract for demolition work with Gateway Demolition Corp., the environmental firm AKRF--the same firm that is now working for the ESDC--conducted environmental site assessments in April, June, and August of 2004. But the real path toward the demolitions began at the end of the year. In December, 2004, contractors conducted asbestos inspection report for the Underberg Building, at 608-620 Atlantic Avenue. (Photo by Forgotten NY.)
In January or February 2005, according to an affidavit from FCR's Andrew Zlotnick, in consultation with environmental consultants at AKRF, he put together a list of buildings that appared to be so dilapidated that they would require demolition rather than maintenance. Besides consulting with staff members, the company also retained LZA Technology, "a well-known Manhattan based firm of consulting structural engineers."
According to the contract, the inspections began in January, and in February and March, demolition plans were drawn up for several buildings.
1/14/05: Pre-demolition asbestos inspection for 461 Dean Street
1/16/05: Pre-demolition asbestos inspection for 463 Dean Street
2/05: Environmental site assessments
2/10/05: Pre-demolition asbestos inspection for 585-601 Dean Street
2/15/05: Demolition specifications for 608-620 Atlantic Avenue
3/2/05: Structural due diligence survey of 461 & 463 Dean Street, and 585-601 Dean Street
3/4/05: Demolition plan for building at 585-601 Dean Street
3/7/05: Demolition plan for buildings at 461-465 Dean Street and 626 Pacific Street
Spring 2005: legal twist, MTA roadblock
Zlotnick stated: "As to some of the buildings that I had identified as potentially so hazardous as to require demolition, LZA advised me that, in its opinion, the buildings were not structurally unsound and need not be demolished. As to those
buildings, FCRC deferred to LZA's professional judgment and decided not to proceed with demolition. Nevertheless,in the spring of 2005, FCRC had received reports from LZA recommending that six or seven buildings that FCRC had acquired or was in contract to acquire were so unsafe and structurally unsound that they should be demolished." (Right, 461 and 463 Dean Street, in a photo taken shortly after the 12/16/05 demolition announcement. There were no apparent warning signs.)
On 4/28/05, FCR issued a notice of intent to award the demolition contract and on 5/2/05, the developer listed the scope of work for demolition. However, a legal dispute arose about FCR's right to demolish the buildings. Attorney Melanie Meyers argued that FCR had the right to demolish the buildings without any ESDC review; attorney David Paget, then working for the developer (but later for ESDC), and the ESDC's Rachel Shatz said state regulations required ESDC approval. Paget suggested a solution, according to Meyers: state law exempts from the SEQRA (State Environmental Quality Act) "emergency actions that are immediately necessary on a limited and temporary basis for the protection or preservation of life, health, property or natural resources." FCR, according to Meyers, decided to submit materials to ESDC to determine that an emergency existed.
However, a roadblock arose. According to Zlotnick's affidavit, some of the structures were close to subway tunnels and could not be demolished without the MTA signing off on the process. Meyers wrote that "efforts toward demolition" halted in late spring because the Metropolitan Transportation Authority sought competitive bids for the Vanderbilt Yards. "Because of the ongoing public bidding process, there was a moratorium on any FCRC communications with the MTA and ESDC regarding the Project," she stated.
The moratorium lasted until 9/14/05, when the MTA awarded FCR the right to develop the railyard. Note that Jeffrey Baker, the attorney for Develop Don't Destroy Brooklyn, said in court that Bruce Ratner met twice with MTA officials, including Chairman Peter Kalikow, during that supposed interregnum.
Summer 2005: moving ahead
According to the contract, LZA continued its inspections:
6/23/05: Structural due diligence survey for 608-620 Atlantic Avenue
6/27/05 & 6/30/05: Demolition plan for buildings at 620 Pacific Street
7/6/05: Pre-demolition asbestos inspection for 620 Pacific Street
7/23/05: Structural due diligence survey for 620 Pacific Street
On 9/14/05, the MTA awarded FCR the right to develop the railyard, and thus removed the moratorium. On 9/16/05, ESDC issued a notice that it would be the lead agency for environmental review process.
Fall 2005: another look, a five-week gap
On 10/18/05, ESDC held a six-hour public scoping hearing on the project. At about the same time, FCR asked LZA to update its surveys, expressing concern that snow, ice, and other weather conditions could further damage the buildings, according to Zlotnick. On 11/2/05, a LZA engineer made a presentation, with Power Point slides, to MTA, ESDC, and FCR representatives. On 11/7/05, LZA prepared a new report on the buildings, calling their condition "an immediate threat to the preservation of life, health, and property." The next day, FCR sent the LZA report to ESDC, via FedEx. (Above, 620 and 622 Pacific Street, shortly after the 12/16/05 announcement of the demolition plans. There were no apparent warning signs.)
It took five weeks for the ESDC to act, but it's not clear why. The agency's Shatz said in an affidavit that there were both internal and external meetings. "After reviewing the LZA report and consulting with other senior officials at the ESDC, and our outside environmental counsel Sive Paget, I determined that an 'emergency' existed," she stated.
[Note that I wrote on 12/30/05 that "the timing of Forest City Ratner's announcement seems to have been tied less to the receipt of the report than the plans for asbestos abatement." According to the papers filed in the lawsuit, the timing related to the receipt of the ESDC's approval.]
Meanwhile, work by LZA continued, according to the contract.
11/22/05: Environmental site assessments
11/30/05: Demolition plan for building at 622 Pacific Street
On 12/1/05, FCR issued a revised scope of work for demolition, the next day revised its notice of intent to award the demolition contract. On 12/14/05, according to the contract, it again revised the scope of work for demolition.
On 12/15/05, Shatz, in a memo to the ESDC's Atlantic Yards project file, concluded that "demolition of the Unsafe Structures by FCRC is an emergency action that is immediately necessary on a limited and temporary basis for the protection and preservation of life, health, and property." (The footer of the memo, curiously enough, was dated 12/5/05.) The same day, Forest City Ratner gave the New York Times an exclusive regarding its demolition plans.
On 12/16/05, ESDC sent FCR a letter declaring the demolitions to be an emergency action. The same day, when the Times story appeared, FCR issued a press release saying it would begin asbestos abatement and then demolish six buildings. (One of those buildings, 622 Pacific Street, was incorrectly listed, because LZA had not included it in its report to ESDC.) FCR also issued a demolition contract that day.
A week later, on 12/22/05, FCR again revised its notice of intent to award the demolition contract, and revised the scope of demolition work.
During the week of December 19, DDDB and local politicans asked for an opportunity to look at the buildings, with an independent engineer. Forest City Ratner initially agreed, and an inspection was scheduled for 12/20/05, including representatives of DDDB, Council Member Letitia James, and the engineer. "That inspection was cancelled by FCRC without explanation, and a subsequent inspection was scheduled for December 21st or 22nd," according to the legal filing. "However, FCRC informed DDDB that it would not be permitted to be present at the inspection and it informed Councilwoman James that she would not be permitted to bring an engineer to the inspection." James said she wouldn't visit the buildings without the engineer. "They told me that an independent review might 'slow down the process," James said.
"The question is, God forbid that a building collapses, God forbid that a falling brick hits someone in the head, or that there's a fire," FCR's Bruce Bender said, according to the 12/16/05 Times article. On the one hand, the approaching winter did present a more hazardous situation, especially since Forest City Ratner neglected to seal all the windows in its buildings. On the other hand, the concept of "emergency" had existed since the spring.
Winter 2005-06: lawsuit
In January 2006, engineer Jay Butler said in an affidavit, after reviewing the LZA report and conducting an external examination of the buildings: "Any defects to the buildings or threats to public safety appear to be consistent with conditions found at countless other buildings in New York City. Such defects can be safely stabilized with commonly-used repair measures." He acknowledged that his observations were preliminary; the LZA report said that the interiors of the structures were far more damaged than the exteriors. (Above, 585-601 Dean Street.)
On 1/18/06, DDDB and associated groups filed suit to block the demolitions and to disqualify Paget. On 2/14/06, Edmead refused to block the demolitions but did disqualify Paget. Two days later, the ESDC appealed Edmead's disqualification decision.
Note that there are five properties at issue, since a sixth building initially announced for demolition has not yet approved by the ESDC. The petitioners consider the six initially announced properties 12 buildings since one of the properties has a building behind it, and the Underberg Building is six joined structures. Subtracting that one building, five properties and 11 buildings are, according to the ESDC, approved for demolition, but Forest City Ratner must still get permits from the city Department of Buildings.