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BROOKLYN     Press Release Main Page

For Immediate Release: February 26, 2009

State Appellate Court Rules for ESDC on
Atlantic Yards EIS Appeal

But Justices Remain Skeptical About
NY State’s Blight Claim As Basis for Bruce Ratner’s Project

Community Petitioners Will Ask Court of Appeals to Review the Case

New York, NY— Petitioners—26 community organizations led by Develop Don’t Destroy Brooklyn—will be headed to the highest court in the state, the Court of Appeals, after a four judge Appellate Division panel ruled for the Empire State Development Corporation (ESDC) on their challenge to the environmental review and blight designation for developer Forest City Ratner’s floundering Atlantic Yards proposal in Brooklyn. (The court’s ruling is here.)

Petitioners will ask the Court of Appeals to review the ruling and are considering all issues in the case for an appeal.

A key issue in the case is the state’s designation of the developer’s handpicked development site as "blighted." The court ruled that the state’s "blight" designation had a "rational basis."

However, Judge Catterson wrote a concurring opinion which raises substantial questions about that basis, suggesting there was no rational basis, but rather a decision to facilitate Forest City Ratner in its effort to control 22 valuable acres in the heart of Brooklyn.

Catterson wrote:
Because I believe that the New York Urban Development Corporation Act…is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are "underutilized," I write separately. I recognize that long-standing and substantial precedent requires a high level of deference to the Empire State Development Corporation's finding of blight. Reluctantly, therefore I am compelled to accept the majority's conclusion that there is sufficient evidence of "blight" in the record under this standard of review. However, I reject the majority's core reasoning, that a perfunctory "blight study" performed years after the conception of a vast development project should serve as the rational basis for a determination that a neighborhood is indeed blighted.

…ESDC's contention that as 'a matter of law,' ESDC could only look at conditions contemporaneous with the study, which was conducted years after the [project’s] announcement, is ludicrous on several levels."
(Emphasis added.)
"We are going to request that the Court of Appeals review this case because it is the only court that is able to require a harder look at the facts, rather than blind obeisance given by the Empire State Development Corporation to the dictates of Forest City Ratner. Judge Catterson’s concurrence that the ESDC 'is ultimately being used as a tool of the developer,'is the reason why extreme deference is not warranted in this case," said lead attorney Jeffrey S. Baker. "The Court of Appeals is the only court that can break the chain of previous cases, and we eagerly await our opportunity to argue before it."

Baker continued, "The appellate court is constrained by previous decisions regarding the issue of blight, decisions which have shown a high level of deference to government agency decisions. While we recognize the limitations this court is under, we do not think this is a similar type of case, particularly with the severe condemnation of the ESDC’s actions and decisions as put forth in Judge Catterson’s concurrence. This case will provide the Court of Appeals an opportunity to make it clear that judicial review is not a meaningless exercise and require agencies making blight determinations to do so for legitimate reasons and not simply to facilitate the goals of a developer with political connections."

Judge Catterson’s concurrence echoes the concerns expressed in Appellate Court argument this past Monday on the eminent domain case against Atlantic Yards. There the judges understood the critical issue that there is no record at all of the state balancing the private versus purported public benefits of the project, which points to the overwhelming evidence that the blight determination is a story the ESDC has fabricated to accomplish the developer’s purposes.

"Hopefully, the Court of Appeals will provide a standard to avoid the ludicrous outcome that, despite the significant questions about the improper motives of the ESDC and the inappropriate influence of the developer, the court's hands are tied and constrained to uphold the approval of such a disastrous project," said Develop Don’t Destroy Brooklyn legal director Candace Carponter. "While Forest City Ratner would have the public believe that the court has found that Atlantic Yards is a good project, to the contrary the court noted our very legitimate concerns about the project. Their ruling on a standard of review is not in any way a validation of the purported benefits of the project."

The court concluded its majority opinion with this:
"While we do not agree with petitioners' legal arguments, we understand those arguments to be made largely as proxies for very legitimate concerns as to the effect of a project of such scale upon the face and social fabric of the area in which it is to be put. Those concerns, however, have relatively little to do with the project's legality and nearly everything to do with its socio-economic and aesthetic desirability, matters upon which we may not pass. To the extent that the fate of this multi-billion dollar project remains, in an increasingly forbidding economy, a matter of social and political volition, the controlling judgments as to its merits are the province of the policy-making branches of government, not the courts."
(Emphasis added.)
"As the court suggests, because today's economic realities ensure that the Atlantic Yards proposal is not the project that was approved and its future remains an enormous question mark, it is time for our elected leaders starting with Governor Paterson to step up, re-examine the project and explain to the public the rationale for allowing a zombie project of unknown design, cost or benefit to flail forward," said Develop Don’t Destroy Brooklyn spokesman Daniel Goldstein.


A list of the petitioners and all appeal briefs can be found at: http://www.dddb.net/FEIS/appeal

DEVELOP DON'T DESTROY BROOKLYN leads a broad-based community coalition
fighting for development that will unite our communities instead of dividing and destroying them
DDDB is 501c3 non-profit corporation supported by over 4,000 individual donors from the community.