NEW YORK, NY— The following letter (pdf
from Develop Don’t Destroy Brooklyn Attorney Jeffrey Baker was delivered
this morning to the Board of the Empire State Development Corporation
(ESDC) and its Chairman Charles Gargano. That Board is set to meet today
at 3:30 regarding the Forest City Ratner “Atlantic Yards” proposal.
December 8, 2006
Hon Charles Gargano, Chairman
Empire State Development Corporation
633 Third Avenue
New York NY 10017
Members of the Board of Directors
Empire State Development Corporation
633 Third Avenue
New York NY 10017
Re: Atlantic Yards
Dear Sirs and Madam:
We are writing on behalf of Develop Don’t Destroy Brooklyn (DDDB) to provide very brief comments on the FEIS for the Atlantic Yards project. On December 8, 2006 you are going to be asked by ESDC staff to adopt findings under the State Environmental Quality Review Act (SEQRA) and the Urban Development Corporation Act (UDCA) to approve and begin the implementation the project. As set forth below, it is clear that the FEIS for the project is fatally flawed and does not provide the ESDC Board with sufficient basis upon which to make the legal findings that are required to approve the project. You should decline to move forward with the project and direct staff to undertake a Supplemental EIS to cure the myriad deficiencies in the current document.
As you are most probably aware, under SEQRA you are charged with considering the environmental impacts of ESDC actions and assuring that your final decision chooses from the available alternatives the one that avoids, minimizes or mitigates the adverse environmental impacts to the maximum extent practicable, consistent with social, economic and other essential considerations. In the process of meeting that requirement, you must take a “hard look” at the relevant areas of concern and produce reasoned elaboration of the determination.
The FEIS fails to meet that standard. ESDC staff rushed to complete the FEIS which was accepted by the Board on November 15th. Thereafter, staff realized that in their rush to completion they omitted numerous comments and then rushed again to reissue the FEIS. However, that speed did not alleviate the overall sloppiness inherent in the FEIS. The FEIS is rife with errors and omissions. Most strikingly, although there were numerous substantive comments on the DEIS, in many cases the response to those comments is nothing more that a reiteration of the language in the DEIS. The failure to consider and respond to those comments is not only illegal, but insulting and demonstrates that the result of ESDC’s consideration of the project is a foregone conclusion.
Set forth below are selected examples of the errors in the FEIS. This
is not an exhaustive list, nor are they the primary deficiencies. Given
the extremely short time frame in which to review the FEIS, a thorough
review is impossible. These examples are indicative of the problems inherent
in the FEIS.
Many comments noted the dearth of open space, particularly publicly accessible
open space and the fact that the space provided is less than the City
goal of 2.5 acres per 1,000 residents and is less than is being provided
in Battery Park City. The FEIS responds that the project provides 1.7
acres per 1,000 residents. (FEIS p. 24-169) However the math is wrong.
Per the FEIS, there will be approximately 13,503 residents based on the
assumption of 2.1 persons per unit. That results in a ratio of 0.59
acres per 1000 residents far less than the 1.7 acres represented in
the FEIS. This fundamental mathematical error is indicative of the carelessness
of the FEIS and should put the Board on notice that there has not been
sufficient analysis to warrant approval of the project.
Traffic and Police and Fire Response Times
The project’s impact on traffic has been a major concern, where a road
network already at capacity will have to bear the burden of at least 20,000
additional vehicles. Besides ignoring the comments about how the DEIS
understated traffic impacts and took too narrow a look, the FEIS also
ignores the concerns expressed about response times for emergency vehicles.
Faced with gridlock conditions, the FEIS simply states that emergency
vehicles will not be hampered because police, fire and ambulance vehicles
“are not bound by standard traffic controls” when responding to emergencies.
(FEIS 24-143). Apparently when faced with gridlock, the traffic magically
parts to make way for the vehicles without delay a miracle of modern
physics that has not been witnessed in other gridlock events.
Terrorism Threats and Security Issues
The FEIS takes the bizarre position that the threat of terrorism need
not be considered in the planning of the project or in the FEIS.
To quote from the FEIS (p. 24-538), the only response to numerous serious public concerns regarding terrorism and security is as follows:
"Emergency scenarios such as a large-scale terrorist
attack similar to the World Trade Center attack, a biological or chemical
attack, or a bomb are not considered a reasonable worst-case scenario
and are therefore outside the scope of the EIS."
There is no support for such a head in the sand approach to an obvious
threat. Placing a 20,000-seat arena over a major transit hub, adjacent
to a major traffic intersection, surrounded by glass-walled towers presents
an obvious invitation to terrorists. Nevertheless, the FEIS claims no
responsibility to consider that potential and to design accordingly to
minimize the impacts such a threat poses or the costs incurred by related
planning, insurance, and emergency issues. While ESDC staff may disregard
the responsibility to consider the threat, we hope that the ESDC Board
is not so narrow-minded.
A substantial number of detailed comments were submitted detailing the errors in the DEIS and the Blight Study, including a 191 page response from my client DDDB. In particular it was noted that there are no blighting conditions on blocks 1127, 1128 and 1129. Comments noted that any conditions in the area are a result of either neglect by MTA or vacancies created by FCR. Comments also noted that in the entire history of the Atlantic Terminal Urban Renewal Area (ATURA), despite numerous opportunities, the City of New York never claimed the project siteand in particular the blocks to be condemnedas blighted. All of those comments were completely ignored and the FEIS simply reiterates the statements made in the DEIS. While the FEIS makes the claim that the blocks south of Pacific Street are blighted, saying so does not make it true and the Board should not ratify a decision that is contradicted by hard facts.
The Blight Study characterizes the project site as crime-ridden, claiming that instances of crime in the project site are greater than surrounding precincts. As shown in my clients response the crime statistics are misrepresented and skewed to such an extent that the reality is crime is lower in the project site than surrounding areas. The FEIS completely ignored this critical point. Another hard fact the Board should be wary of ratifying.
Coney Island Alternative
DDDB’s comments noted that the DEIS misrepresented the feasibility of
Coney Island as a location for the arena. The DEIS claimed there was
no room for an arena. DDDB demonstrated that at least two locations were
suitable. The FEIS tried to correct the error by acknowledging that there
were suitable sites but then in only a few paragraphs argued why it was
not preferable to the chosen site. There continues to be no sound argument
as to why the arena needs be part of a mixed-use development. ESDC cannot
ignore an obvious alternative in a DEIS and then pretend to consider it
in the FEIS without subjecting it to a full alternative analysis subject
to public review. ESDC has ignored the long-standing goal of the Brooklyn
political leaders to bring a major league franchise to Coney Island, a
desire that has continued to be expressed.
Violations of the UDC Act
DDDB and others noted that ESDC has violated Sec. 16 of the UDC Act by failing to hold the comment period open until October 18th, 30 days after the last public hearing on September 18th. The FEIS while acknowledging the legal obligation of Sec. 16, continues the absurd contention that the public hearing was on August 23rd and the September 18th event was a “community forum”. The fact remains that the “community forums” were completely indistinguishable from the public hearing. ESDC cannot try and hide behind a change in name to avoid its legal obligation. The minimum time frames in the applicable laws providing for public review are often insufficient to consider enormous projects. At the least ESDC must comply with the minimum legal requirements. Instead ESDC shortened the mandatory minimum comment period by nearly 3 weeks.
DDDB also noted that the project does not meet the legal definitions of a civic project or a land use improvement project. Those comments are not recognized or responded to in the FEIS. These are fundamental questions that go to the public need, purpose and authority of ESDC to undertake the action and override local land use controls. The lack of response is a striking admission that ESDC is operating beyond its authority.
The foregoing is just a small sampling of the omissions and tone of the FEIS which demonstrate that ESDC’s SEQRA compliance falls below the legal standard. There are numerous other issues. It is our hope that the ESDC Board, rather than acting as a lame duck administrative body determined to rush through an approval in its waning days, exercises the independent judgment with which it is entrusted and requires reconsideration of this ill-conceived document.
Very truly yours,
Jeffrey S. Baker