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Release: September 18, 2008
Oral Argument in Appeal on Atlantic Yards Environmental Review and Approval Focuses on Key Issue of Blight
State Appellate Court Justices Skeptical About New York State’s Blight Claim As Basis for Bruce Ratner’s Project
New York, NY— The entire 30-minute oral argument in plaintiffs’ appeal
et al. v. ESDC et al. -- the case challenging the environmental
review and approval of developer Bruce Ratner’s Atlantic Yards development
proposal - was spent on the issue of New York State’s determination that
the proposed project site is blighted.
The Empire State Development Corporation (ESDC) was required to show that the site was “blighted” in order to approve the project.
Plaintiffs have argued all along that the three distinct blocks comprising the southern portion of the project site, south of Pacific Street, are not blighted. Much to the contrary, that area was on an economic upswing until developer Forest City Ratner, with an assist by the ESDC, came along with the Atlantic Yards proposal, and therefore the court should overturn the ESDC’s blight finding because it was an arbitrary and capricious determination, and irrational.
Members of the 26 community group plaintiffs, led by Develop Don’t Destroy Brooklyn, filled the Manhattan courtroom as they intently listened to the exchange between the five-judge panel and the attorneys yesterday afternoon. They heard a judicial bench that was extremely skeptical of the ESDC’s rationale for its blight determination.
“Develop Don’t Destroy Brooklyn and our co-plaintiffs were encouraged by the judges’ questions and are optimistic about the outcome,” said Develop Don’t Destroy Brooklyn legal director Candace Carponter.
Last week The
New York Times reported that Forest City Ratner plans to break
ground on its Barclays Center Arena in December, but nearly the entire
article outlined the numerous financial and legal factors working against
the developer’s claim. In the article Develop Don’t Destroy Brooklyn spokesman
Daniel Goldstein told The Times, “There's no way they'll
get control of the land they need, get the financing, end the litigation
and break ground by December.”
An account of yesterday’s dramatic court argument from Atlantic Yards watchdog journalist Norman Oder appeared on his Atlantic Yards Report. An excerpt of Oder's account follows below:
Was it déjà vu? As with the May 2007 oral argument in the state lawsuit challenging the Atlantic Yards environmental review, the plaintiffs in the appeal yesterday exited optimistically, with a sense that the court—in this case, at least two of five appellate judges—was sympathetic toward their argument. Again, representatives of developer Forest City Ratner and the Empire State Development Corporation (ESDC), along with their clutch of attorneys, exited looking none too cheery.
Notably, when a judge skeptical of the blight claim asked whether environmental consultant AKRF had ever not found blight when asked to look for it, the ESDC attorney sidestepped the question.
Then again, state Supreme Court Justice Joan Madden, when it came time to rule last January, came out squarely on the side of the defendants, so the questions in court hardly predict a final ruling. **Still, even a 3-2 decision upholding Madden means an automatic appeal to the Court of Appeals, the state’s highest court, potentially stringing out the case even longer.
Justice James Catterson intervened skeptically, asking if it was possible to “measure where an area is blighted by mere reference to area?” What, he asked about issues like value or the sites’ characteristics?
Karmel said the decision was at the discretion of the agency.
“Has [environmental consultant] AKRF ever studied an area it didn’t find to be blighted?” [Justice James] Catterson asked, drawing muted titters from thi?e audience. (He’s another Republican appointee of former Gov. George Pataki.)
[ESDC attorney Philip] Karmel didn’t answer the question directly, but said, “We are relying on cold hard facts.”
Catterson wasn’t buying it: “If there’s all of a sudden new development in a poor neighborhood, why would we characterize it as blighted?”
Karmel tried to point to the blight characteristics found in the study. Catterson, who wrote the majority opinion upholding a judge’s decision that found a conflict of interest in AKRF’s relationship to Columbia University, said that “Columbia has hired the same consultant” and found the “same blight.”
“The facts in the blight study are objective,” Karmel insisted.
“You don’t seriously argue that the blight study is solely an objective conclusion?” Catterson asked…
The full account from the Atlantic Yards Report the back and forth between the five judge panel, plaintiffs’ attorney Jeffrey Baker and ESDC attorney Philip Karmel, and clearly describes the court’s skepticism. That account can be found at:
All appeal briefs can be found at: http://www.dddb.net/FEIS/appeal
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