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Writer’s Telephone Extension: 227
May 12, 2014
Via Email (email@example.com) and Regular Mail
Empire State Development
633 Third Avenue
New York, NY 10017
Re: Comments by Develop Don’t Destroy –Brooklyn on the DSEIS for the Atlantic
Yards Arena and Redevelopment Project
Dear Mr. Lynch:
We are the attorneys for Develop Don’t Destroy – Brooklyn (DDDB) and submit these
comments on the above-referenced DSEIS. As per ESD’s Notice of the Public Hearing and the
opportunity to comment, these comments are largely limited to the DSEIS. DDDB will submit
additional comments on or before May 30, 2014 on the Modified General Project Plan (MGPP).
These comments are in addition to the comments presented orally at the public hearing.
Insufficient time to comment
As an initial comment, DDDB strongly objects to the grossly insufficient time given to
comment on a document of this size and complexity. ESD must admit that it has had over two
years to work on this document and is providing the only the bare minimum of legally required
time to comment. This is further evidence of ESD’s historical disdain for public comment and
JEFFREY S. BAKER
DAVID C. BRENNAN
JOSEPH F. CASTIGLIONE
MICHAEL J. MOORE
JAMES A. MUSCATO II
J. MICHAEL NAUGHTON
ROBERT A. PANASCI
KENNETH S. RITZENBERG
DEAN S. SOMMER
DOUGLAS H. WARD
KEVIN M. YOUNG
LAURA K. BOMYEA
LAUREN L. HUNT
ALLYSON M. PHILLIPS
KRISTIN LAVIOLETTE PRATT
JESSICA R. VIGARS
SUE H.R. ADLER
ELIZABETH M. MORSS
SCOTT P. OLSON
STEPHEN C. PRUDENTE
KRISTIN CARTER ROWE
LAWRENCE R. SCHILLINGER
ALLYSSA T. MOODY
AMY S. YOUNG
YOUNG SOMMER WARD RITZENBERG BAKER & MOORE LLC
COUNSELORS AT LAW
EXECUTIVE WOODS, FIVE PALISADES DRIVE, ALBANY, NY 12205
Phone: 518-438-9907 • Fax: 518-438-9914
determination to avoid transparency and public involvement. ESD’s atrocious behavior, which
has been commented upon by several courts, is further evidenced by the fact that the comment
period on the MGPP lasts until May 30
. As ESD is well aware, that slightly longer comment
period is required pursuant to Section 16 of the UDC Act which requires a minimum of a 30 day
comment period following the public hearing on the MGPP. It is quite obvious that if ESD
actually cared about public comment, it would, at a minimum have had the comment period for
the SDEIS match the comment period on the MGPP. Its failure to do so and refusal to extend the
comment period at the request of various individuals and organizations is a clear and
unequivocal indication that the current SEQRA process is the same farcical exercise that has
marked the review of this project since its inception.
No Description of Project Need
The DSEIS is largely silent on the question of project need or why the project must be
built and the goals it is supposedly meeting. This is obviously important as it is directly relevant
to the question of alternatives and available mitigation for the admitted unmitigated adverse
impacts. ESD forgets that it must make findings for the MGPP and determine that the project
meets the requirements of the UDC Act. Without an honest assessment of the project need there
is no way to make that assessment.
ESD must consider the changed conditions since the previous EIS in 2006, in both the
surrounding neighborhoods and the nature in which the project is being constructed. A
significant element of the approval of the project in 2006 was based upon the expected economic
benefits of the construction jobs and sales taxes generated by construction. However, the first
building being constructed in Phase I after the Arena is being built as pre-fab units using
significantly less labor than was previously considered and generating less sales taxes. While the
SDEIS claims that the Greenland Group will revert to the original construction methods, there is
no indication that is a binding commitment and that the projections of jobs and tax revenues are
In the 2010 Technical Analysis by ESD following the court’s remand, ESD said that the
delay in project completion to 2035 would not result in increased impacts because construction
would be less intense. Now in the DSEIS, ESD admits there will be significant adverse
environmental impacts to community facilities, the availability of open space during construction
(lasting at least until 2035), transportation (both during construction and after completion) and
construction related noise. While the DSEIS claims those impacts have been mitigated to the
maximum extent practicable, it also recognizes that the predicted shortage in school space,
operational traffic and pedestrian issues and construction traffic and noise cannot be mitigated.
However ESD fails to consider any alternatives or changes in the project that can mitigate those
Impacts to Community Character
Throughout the original review of this project, DDDB strenuously contested EDC’s claim
that the area was blighted. DDDB pointed out that ESD ignored and a failed to study then
current real estate trends which indicated increasing private sector investment in the surrounding
area, particularly the development along Pacific Street. In fact, EDC even violated its own
contract with AKRF which was supposed to complete the blight study by omitting any such
Now, in a striking absence of any shame or self-awareness, the SDEIS notes that blight is
no longer a problem and that area rents and purchase prices are rising and will continue to do so
over the now extended project time frame. It is also noted that the surrounding minority
population is dramatically decreasing as housing prices are increasing. The net result is that this
project, in conjunction with other market forces, is adding to the gentrification of the area and
driving lower income groups from the area. That drive will not be mitigated by the limited
amount of affordable housing provided by this project. Moreover, that affordable housing will
become less affordable as the AMI upon which the rents will be based are rising, thus skewing
the “affordability” of the rents.
The SDEIS seems to be completely silent on that issue and consideration of how this
project will increase both the rate an extent of the gentrification. Gentrification is an impact and
a change in community character and is a prime issue of consideration under SEQRA, one of the
areas of which EDC must take a hard look. By failing to recognize and address the impact on
community character, is a clear violation of SEQRA.
Assessment of Project to date
The SDEIS seems to either avoid or gloss over the experiences to date with the Arena and
the initial construction of Phase I. Notably there is no discussion of the effectiveness of the
identified mitigation measures particularly with regards to traffic controls and noise. ESD has
received numerous and regular complaints of traffic problems with the Barclays Arena
especially with regard to illegal parking. There have also been numerous complaints about noise
from the Arena. The SDEIS fails to address these issues and fails to evaluate modifications of
the mitigation measures.
While the alternatives section is supposed to be the heart of the EIS, in this case the heart
has been cut out. Rather than provide a fresh assessment of the goals of the project and
alternatives to meet those goals, ESD undertakes extreme mental gyrations to avoid an analysis
that could result in redesigning the project and/or splitting the project up amongst multiple
developers. The reasons for doing so are legally deficient and specious.
In 2006 and 2009 ESD and FCRC lied to the public when they claimed the project would
be built in 10 years and minimized the likely impacts. Now, forced to deal more with reality they
are admitting there will be significant unmitigated adverse impacts. Instead of modifying the
project to reduce those impacts, ESDC claims it must stay with the FCR project without any
analysis of why that is really necessary.
Current FCRC CEO Mary Ann Gilmartin has already been found by the courts not to be
credible. In the lawsuit filed by DDDB against the 2009 approval, Gilmartin submitted an
affidavit stating that FCRC was committed to using commercially reasonable efforts to complete
the entire project by 2019. Justice Friedman specifically found her affidavit not credible since it
did not include any financial information showing that FCRC actually had the ability to do so.
Subsequent delays in moving forward with even the first building in Phase I and recent requests
to delay completion of the railyard further demonstrate that past statements by Ms. Gilmartin and
other FCRC officials are simply not credible. Therefore the continued reliance upon FCRC and
any representations it makes are without any rational basis.
ESD dismisses in very cursory fashion the available alternative of seeking multiple
developers to complete project. ESD claims that FCR has too many contractual and vested rights
and that dividing the project will be too difficult and time-consuming involving so many
agencies and entities that it is not a feasible alternative. ESD’s analysis is legally and factually
wrong and demonstrates a shocking level of hubris and hypocrisy given ESD’s past actions on
All of ESD’s analysis assumes that the exact project approved in 2006 must be built
despite the significant change in market forces. ESD fails to consider any lesser alternatives or
modifications to Phase II (even though it is proposing to move 208,000 sq ft of residential
development from Phase I to Phase II). ESD has not had any discussion with community groups
seeking input on changes to the project.
ESD claims that the project agreements signed with FCRC in December 2012 are binding
contractual commitments, however all of those agreements were signed after the illegally
adopted MGPP since the SEQRA analysis was fraudulent and has since been overturned. Simply
put, agreements signed by ESD in violation of SEQRA for which FCRC was complicit in the
fraud cannot be considered binding limitations on the consideration of alternatives.
ESD makes the absurd claim that FCRC has acquired many of the properties on the Phase
II blocks and thus acquisition of those may be difficult and time consuming. ESD seems to forget
that it has the power of eminent domain and has used that power in this project to facilitate the
construction of the Barclays Center. It would seem fairly obvious that ESD could use the same
power to acquire the properties to complete a project if FCR is unwilling or unable to do so. The
fact that the SDEIS ignores that basic fact and simply uses it as a basis to ignore alternatives
points to the fundamental flaws in the SDEIS.
ESD also claims that to reconfigure the project will be so time consuming because of the
need to solicit RFPs conduct multiple reviews and negotiate new contracts. This is curious
because ESD never solicited RFPs for the initial proposal approved in 2006. Moreover, MTA
only conducted a cursory and fallacious RFP process in 2005 providing the barest minimum of
time for bidders to submit proposals for the Vanderbilt Yards.
The delays and complexities used as an excuse by ESD as to why it cannot consider other
developers and their proposals are striking as they never were factors in ESD’s calculations of a
build years during the 2006 and 2009 reviews. It is curious that now those are real factors to
consider but were never relevant factors in the prior reviews.
ESD claims that many of the financial commitments of FCRC create some form of vested
rights that preclude changing developers. But most if not all of the financial commitments were
required to construct the Arena and thus FCRC has already received those benefits (not to
mention the hundreds of millions of dollars in city and state contributions). To the extent FCRC
has actually spent any significant funds on improvements solely related to Phase II, reallocation
of those costs and any potential reimbursement would be considered in the revised proposals.
EDC continues its practice of making a mockery of the SEQRA process by constraining
the review to only that presented by FCRC. EDC and FCRC bemoan the delays caused by what
they claim are the concerns and litigation of the surrounding community, yet neither organization
has bothered to reach out to DDDB or other groups to discuss their concerns. ESD must
reconsider this DSEIS and release a new version that properly considers alternatives, otherwise it
will face continued opposition and litigation.
Very truly yours,
Jeffrey S. Baker
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