Saturday, February 18, 2006
ESDC appeals decision, says loss of lawyer puts Atlantic Yards project on hold
Now, with the potential loss of attorney David Paget, "the order of the court below has brought the environmental review process respecting the Atlantic Yards project--and thus the project itself--to a screeching halt, since experienced outside counsel is required for a project of this nature," said ESDC attorney Douglas Kraus in a statement filed with the appeal of Justice Carol Edmead's decision.
What about finding a new lawyer? Well, said Kraus, relatively few such qualified counsel exist, and three are already working for other parties in this case: two for Forest City Ratner and one for the Metropolitan Transportation Authority. He asked for an expedited appeal "in the interest of fairness," and called for a schedule that would lead to an oral argument before the state appellate court during the week of March 6.
A factual twist in the legal case
As shown by Edmead's narrow decision upholding the ESDC's right to approve the demolitions proposed by Forest City Ratner, what's legal may remain questionable. While Edmead's disqualification of Paget may seem intuitively right to those objecting to the "collaborative" relationship between developer and state agency, it may not rest on solid legal ground. The judge herself said from the bench, "I don't doubt that the court's determination may not stand."
While the case law undoubtedly will be argued in competing memoranda of law, the memorandum initially filed by the ESDC makes the case that Edmead misread the documents in asserting that Paget was retained by ESDC in February 2005 and thus was representing both parties at the same time. Rather, Kraus argues in the memorandum, there was no such formal retainer, just the signing of a cost reiumbursement agreement, which actually occurred in February 2004.
Rather, Paget worked for Forest City Ratner through September 2005, then went to work for the state agency the next month--but never for both parties simultaneously. The issue, though, is broader: whether there is an apparent conflict of interest as well.
Edmead wrote, "The Court does not question respondents' contention that it is normal procedure for the applicant to pay for ESDC specialists. However, that does not obviate the obligation to avoid any conflict of interest"--a conflict stemming also from the "oft bottom-line, profit-making pursuits of real estate development corporations" and the "valid environmental interests of the ESDC." Since that pattern may be typical for such large development project, the appellate court must decide is whether it's inappropriate.