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Develop-
don't destroy
BROOKLYN Press
Release Main Page
For Immediate
Release: February 26, 2009
State Appellate Court Rules for ESDC on Atlantic Yards EIS Appeal
But Justices Remain Skeptical About
NY State’s Blight Claim As Basis for Bruce Ratner’s Project
Community Petitioners Will Ask Court of Appeals to Review the
Case
New York, NY— Petitioners—26 community organizations led by Develop Don’t
Destroy Brooklyn—will be headed to the highest court in the state, the Court
of Appeals, after a four judge Appellate Division panel ruled for the Empire
State Development Corporation (ESDC) on their challenge to the environmental
review and blight designation for developer Forest City Ratner’s floundering
Atlantic Yards proposal in Brooklyn. (The court’s ruling is here.)
Petitioners will ask the Court of Appeals to review the ruling and are considering
all issues in the case for an appeal.
A key issue in the case is the state’s designation of the developer’s handpicked
development site as "blighted." The court ruled that the state’s "blight"
designation had a "rational basis."
However, Judge Catterson wrote a concurring
opinion which raises substantial questions about that basis, suggesting
there was no rational basis, but rather a decision to facilitate Forest
City Ratner in its effort to control 22 valuable acres in the heart of Brooklyn.
Catterson wrote:
Because I believe that the New York Urban Development
Corporation Act…is ultimately being used as a tool of the developer to
displace and destroy neighborhoods that are "underutilized,"
I write separately. I recognize that long-standing and substantial precedent
requires a high level of deference to the Empire State Development Corporation's
finding of blight. Reluctantly, therefore I am compelled to accept the
majority's conclusion that there is sufficient evidence of "blight" in
the record under this standard of review. However, I reject the
majority's core reasoning, that a perfunctory "blight study" performed
years after the conception of a vast development project should serve
as the rational basis for a determination that a neighborhood is indeed
blighted.
…ESDC's contention that as 'a matter of law,' ESDC could only look at
conditions contemporaneous with the study, which was conducted years after
the [project’s] announcement, is ludicrous on several levels."
(Emphasis added.)
"We are going to request that the Court of Appeals review this case because
it is the only court that is able to require a harder look at the facts,
rather than blind obeisance given by the Empire State Development Corporation
to the dictates of Forest City Ratner. Judge Catterson’s concurrence that
the ESDC 'is ultimately being used as a tool of the developer,'is the reason
why extreme deference is not warranted in this case," said lead attorney
Jeffrey S. Baker. "The Court of Appeals is the only court that can break
the chain of previous cases, and we eagerly await our opportunity to argue
before it."
Baker continued, "The appellate court is constrained by previous decisions
regarding the issue of blight, decisions which have shown a high level of
deference to government agency decisions. While we recognize the limitations
this court is under, we do not think this is a similar type of case, particularly
with the severe condemnation of the ESDC’s actions and decisions as put
forth in Judge Catterson’s concurrence. This case will provide the
Court of Appeals an opportunity to make it clear that judicial review is
not a meaningless exercise and require agencies making blight determinations
to do so for legitimate reasons and not simply to facilitate the goals of
a developer with political connections."
Judge Catterson’s concurrence echoes
the concerns expressed in Appellate Court argument this past Monday
on the eminent domain case against Atlantic Yards. There the judges understood
the critical issue that there is no record at all of the state balancing
the private versus purported public benefits of the project, which points
to the overwhelming evidence that the blight determination is a story the
ESDC has fabricated to accomplish the developer’s purposes. "Hopefully,
the Court of Appeals will provide a standard to avoid the ludicrous outcome
that, despite the significant questions about the improper motives of the
ESDC and the inappropriate influence of the developer, the court's hands
are tied and constrained to uphold the approval of such a disastrous project,"
said Develop Don’t Destroy Brooklyn legal director Candace Carponter. "While
Forest City Ratner would have the public believe that the court has found
that Atlantic Yards is a good project, to the contrary the court noted our
very legitimate concerns about the project. Their ruling on a standard of
review is not in any way a validation of the purported benefits of the project."
The court concluded its majority opinion with this:
"While we do not agree with petitioners' legal arguments, we
understand those arguments to be made largely as proxies for very legitimate
concerns as to the effect of a project of such scale upon the face and
social fabric of the area in which it is to be put. Those concerns, however,
have relatively little to do with the project's legality and nearly everything
to do with its socio-economic and aesthetic desirability, matters upon
which we may not pass. To the extent that the fate of this multi-billion
dollar project remains, in an increasingly forbidding economy, a matter
of social and political volition, the controlling judgments as to its
merits are the province of the policy-making branches of government, not
the courts."
(Emphasis added.)
"As the court suggests, because today's economic realities ensure that the
Atlantic Yards proposal is not the project that was approved and its future
remains an enormous question mark, it is time for our elected leaders starting
with Governor Paterson to step up, re-examine the project and explain to
the public the rationale for allowing a zombie project of unknown design,
cost or benefit to flail forward," said Develop Don’t Destroy Brooklyn spokesman
Daniel Goldstein.
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A list of the petitioners and all appeal briefs can be found at: http://www.dddb.net/FEIS/appeal
DEVELOP DON'T DESTROY BROOKLYN leads a broad-based community
coalition
fighting for development that will unite our communities instead of dividing
and destroying them
DDDB is 501c3 non-profit corporation supported by over 4,000 individual
donors from the community.
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