Thursday, January 19, 2006


Community groups sue ESDC to block demolitions; engineer expresses doubts

A set of community groups, led by Develop Don't Destroy Brooklyn (DDDB), filed suit yesterday to reverse the Empire State Development Corporation's approval of Forest City Ratner's plans to demolish six buildings controlled by the developer within the footprint of the proposed Atlantic Yards development. The suit also argues that the ESDC lawyer, David Paget, should be disqualified because he until recently represented Forest City Ratner on the project. The suit also names Forest City Ratner as a defendant.

While this dispute may seem relatively minor in comparison to a decade-long, $3.5 billion project, the lawsuit asserts that the demolitions indicate that the project is a done deal: ESDC’s actions do significant harm to the SEQRA process by giving the public the perception that the Atlantic Yards Project is a foregone conclusion headed toward approval and that physical actions are underway to permanently change the fabric of the community.

The plaintiff group includes: Fort Greene Association, Boerum Hill Association, Society for Clinton Hill, Pratt Area Community Council, Fifth Avenue Committee, Prospect Heights Action Coalition, Atlantic Avenue Betterment Association, Prospect Heights Neighborhood Development Council, East Pacific Block Association, Dean Street Block Association (4th to 5th) and DDDB.

What the engineer said

None of the news coverage quoted from the affidavit of a professional engineer, Jay Butler, who conducted an external review of the buildings. Acknowledging that he couldn't make definitive judgments, Butler stated:
Based upon that review I cannot conclude that the buildings pose an imminent threat to public safety. 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.

The Village Voice's blog, Power Plays, in an entry headlined Nets Foes Shoot Suit, took a look at city records and found a mixed record: some, but not all, "like most buildings, had multiple violations of building and environmental codes."

Will part of the suit prevail?

The New York Times had the most extensive coverage, in an article headlined Local Groups Sue to Halt Big Project in Brooklyn. It suggested that part of the lawsuit has a stronger chance of prevailing:
Philip Weinberg, a professor at St. John's University and an expert on the state's environmental review law, said the lawsuit faced "an uphill battle" in trying to get Mr. Paget disqualified. "There's nothing in the law or the regulations saying they can't have the same counsel," he said.
In general, he said, courts have tended to defer to public agencies on questions of fact, which might include whether the buildings are unsafe enough to warrant demolition. Still, Mr. Weinberg added, the agency "is supposed to play it down the middle," and "courts are supposed to step in if it doesn't pass the smell test."

Gargano unaware

The Daily News focused on the conflict-of-interest claim, in an article headlined Same lawyer repped state, Ratner: suit. The newspaper reported the developer's explanation, and ESDC chair Charles Gargano's indifference:
A Ratner spokesman said Paget has not worked for Forest City since at least the fall, when he began working for Empire State Development Corp., and never worked for both simultaneously...
Asked about Paget's alleged conflict, Empire State Development Corp. Chairman Charles Gargano said he was unaware of any problem.
"I don't know whether we are using the same lawyer," said Gargano. "I don't know of any conflict."

Gargano, it should be noted, has already endorsed the project without changes.

The New York Post ran a two-paragraph summary, headlined HOOPS-ARENA FOES SUE STATE. The New York Sun didn't cover the story.

The back story on timing

Though the Times did the most to explain the request by City Council Member Letitia James to gain access to the buildings with an independent engineer, even its report lacked some key details:
City Councilwoman Letitia James, whose district includes the site and who is an outspoken opponent, asked the company to allow her to inspect the buildings with a different engineer. At first, Forest City Ratner officials agreed to the inspection, but said later that Ms. James could not bring an engineer.

The Times didn't point out that Forest City Ratner's explanation--that letting that engineer inspect the property would cause undue delay--was undermined by the five-week gap between the receipt of the initial engineering report and the public announcement of the demolition plans.

A reference to that delay would have added some context to statements yesterday from the developer, which appeared in most coverage. The Times reported:
In a statement, Bruce Bender, an executive vice president of Forest City Ratner, defended its initial engineering report and said the lawsuit amounted to "delay tactics."
"While the opponents have another agenda," Mr. Bender said, the developer "will not play games with the public safety and is proceeding as any responsible property owner should and must."

Another look at that delay

Previously, I had speculated that Forest City Ratner had waited five weeks to announce its action on 12/15/05, in part because it needed to get its plans for asbestos abatement in order.

However, it seems likely that the delay could be attributed, perhaps in major part, to the ESDC's Declaration of Emergency, which was dated 12/15/05, the day the company alerted the New York Times. Then again, a look at the ESDC document shows that it was drafted on 12/5/05 (see the footer on the last page). Is it possible that the ESDC had its document ready 10 days earlier but only issued it after discussions with Forest City Ratner? That's speculative, but also consider that the lawyer for the ESDC formerly worked for the developer.

Whatever the scenario, the 11/7/05 report from Forest City Ratner's engineering consultant stated that the buildings posed "an immediate threat to the preservation of life, health, and property." If the threat really was immediate, shouldn't the company have made a public statement upon receipt of the report and/or urged the ESDC to expedite its review?

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