Breaking: Judge rules for community groups, says state failed to study impact of 25-year buildout, requires ESDC to prepare a Supplemental EIS, but refuses to stay current construction

In the second in a series of decisions finding for community petitioners who challenged the Empire State Development Corporation (ESDC), state Supreme Court Justice Marcy Friedman today criticized the agency for failing to study the impacts of an extended Atlantic Yards buildout that could last decades, and ordered the ESDC to conduct a new phase of environmental review, including a Supplemental Environmental Impact Statement (SEIS).

While it is typical for judges to defer to agencies, as long as they have a "rational basis" for their decisions, Friedman, who slammed the agency last November for "what appears to be another failure of transparency," today found the "ESDC’s use of the 10 year build date in approving the 2009 MGPP [Modified General Project Plan] lacked a rational basis and was arbitrary and capricious."
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The back story

Unmentioned is that, had Friedman, when she considered an earlier version of the case but had not admitted the Development Agreement into the record, could have ruled before construction started in  March 2010.

The case was initially argued 1/19/10 and decided 3/10/10 (a day before the groundbreaking). In that decision, Friedman criticized the ESDC’s “deplorable lack of transparency” and acknowledged that the ESDC’s use of a ten-year timeframe for the project buildout in the Modified General Project Plan (MGPP) was supported “only minimally.”

In that case, the main ammunition against the decade-long promise was an agreement with the MTA that allows 22 years to pay for Vanderbilt Yard development rights.

However, there was much more reason for skepticism. The Development Agreement, signed in late December 2009, was not released until January 25, about three weeks after ESDC spokeswoman Elizabeth Mitchell told me the documents would be made available.

Friedman did not allow it to be entered into the record for the case. It showed a clear contradiction with the professed time frame.

So, both sets of petitioners asked Friedman to reopen the case, which she did, acknowledging a misapprehension--though not quite a mistake on her part--about the Development Agreement.

In November, Friedman remanded the proceedings "to ESDC for findings on the impact of the Development Agreement and of the renegotiated MTA agreement on its continued use of a 10 year build-out for the Project, and on whether a Supplemental Environmental Impact Statement is required or warranted."

The ESDC, which still can appeal that ruling, responded by issuing findings that said no such SEIS was needed.

Friedman wrote:

In its findings on the remand, ESDC claims that it disclosed, at the time of its approval of
the 2009 MGPP, that the outside dates for construction would extend “well beyond 10 years.” As discussed at length in the court’s November 9, 2010 decision, that claim is patently incorrect. In what the court termed a failure of transparency, ESDC made no mention of the provision in the Development Agreement for a 25 year substantial completion date for Phase II and, instead, repeatedly cited the provision requiring FCRC to use commercially reasonable effort to complete the Project in 10 years.