Bruce Ratner has lost his fourth court decision in a row. Today NY State's high court, the Court of Appeals, rejected the developer's (and the Empire State State Development Corporation's) request to appeal the lower court's unanimous upholding of the Supreme Court order that Atlantic Yards must undergo a Supplemental Environmental Impact Statement (SEIS).

The suit, originally brought by Develop Don't Destroy Brooklyn and other community organizations, has had a long and winding path. At the core the case is about the State's bogus claims (and subsequent impact study) that the project build out would be 10 years, when in actuality it will likely be 25 years at minimum, and thus the attendant impacts will be substantially different then the ones studied.

The ruling today and the previous ones show, thankfully, that NY courts can actually be a check against public agencies running amok on behalf of private interests.

The ruling also means that the bulk of the Atlantic Yards project will undergo an SEIS, which will include a public hearing.

The time is now for ESDC and Governor Cuomo to intervene to ensure that Forest City Ratner doesn't hold a huge chunk of Prospect Heights hostage for the next generation.


More from Norman Oder on his Atlantic Yards Report:

Court of Appeals denies effort by ESDC, Forest City to appeal timetable case; state must analyze impact of 25-year buildout; will leave cloud over project as arena opening approaches

Yes, the Empire State Development Corporation will have to conduct a court-ordered analysis of the potential 25-year impacts of Atlantic Yards construction after all, leaving a cloud of concern over the project--and a rebuke to the state agency--as the Barclays Center proceeds to a September 28 opening.

The project was long expected said to take ten years, but document signed in late 2009 gave developer Forest City Ratner 25 years.

The state agency, as well as Forest City, had sought to appeal a unanimous Appellate Division decision upholding a lower court's requirement of Supplemental Environmental Impact Statement (SEIS). The state Court of Appeals, in a decision issued without elaboration, denied permission for such an appeal. (Had the appellate court been split, an appeal would have been automatic.)

The decision to seek an appeal rather than pursue the SEIS and evaluate the impacts of an extended buildout had rankled community members who'd gone to court, in cases filed by two coalitions, led by Develop Don't Destroy Brooklyn and BrooklynSpeaks.

The lower court ruling required an SEIS to evaluate Phase 2 of the project, the towers planned east of Sixth Avenue and the arena block, thus sparing the arena. However, many questions remain regarding the parking lot planned to serve the arena, located on the southeast block of the site, destined ultimately for towers.

As noted 5/3/12 by Peter Krashes on Atlantic Yards Watch:

Plans for parking continue to shift, reducing the parking for arena patrons by half with no formal study released to the public of the impact to traffic and on-street parking in local neighborhoods. Nor has it assessed the long term environmental impacts on the community of a lot that does not meet NYC's own guidelines for the landscaping of surface parking lots.

Impact of case: courts can be check on agency

As I wrote June 5, at issue is whether a change in timing of a project whose fundamental elements seem unchanged is a fundamental change.

And, depending on which side you consult, it's either a dangerous intervention by the judiciary into agency discretion or the last check on an out-of-control agency that failed to tell the public that it faced 25 years of construction, extended surface parking lots, and lingering vacant lots.

The Court of Appeals' unwillingness to intervene suggests an interpretation in the latter direction is more credible.
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