Friday, September 30, 2011

Could the Atlantic Yards Monopoly Be Even Less Regulated Than It Is? Why A Mega-Monopoly Continuation Isn’t Workable

Just how unregulated can the Forest City Ratner Atlantic Yards mega-monopoly be? Probably more unregulated than anyone can possibly imagine. Anyone, except perhaps the developer/subsidy collector himself, Bruce Ratner, who seems always to be able to envision the next steps to which his firm’s lack of accountability can be taken, and then implement it.

The signals being sent by Governor Andrew Cuomo indicate that Ratner’s fondest wishes for no effective regulation will be accommodated. One such signal is the appointment of mega-project booster Joe Chan for a top-ranking job at the Empire State Development (Corp.), the agency that theoretically supervises and regulates the megadevelopment. (See: Wednesday, September 14, 2011, Post: Atlantic Yards booster Joe Chan to leave Downtown Brooklyn Partnership for ESDC and Downtown Brooklyn economic development czar stepping down for state job, September 14, 2011, by Rich Calder)

The fact Atlantic Yards will be so blatantly unregulated should make clear to those considering the matter that seeking to regulate a continuing Ratner monopoly of vast size is not a solution. What is really needed is for the unjust and unjustifiable Ratner mega-monopoly to be broken up.

The Vice of of a Versa: A Monopoly That Turns The Tables to Regulate the Government

Earlier this month Noticing New York commented that rather than being a regulated monopoly the Atlantic Yards mega-development has turned the tables and, instead, regulates the government that we might suppose existed to regulate it:
The Forest City Ratner monopoly hasn’t consented to be regulated by the government in exchange for its special [monopoly] status. For all intents and purposes it is the reverse. The government doesn’t regulate Forest City Ratner; instead Forest City Ratner has been regulating the government. To the extent that Forest City Ratner’s real estate industry development activities ought to have been subject to time-tested and carefully evolved regulations normally applicable to other participants in the industry, like zoning and review processes such as the City Charter’s ULURP (“Uniform Land Use Review Procedure”) or SEQRA (the “State Environmental Review Act”), Forest City Ratner used its political capturing of the state’s Urban Development Corporation (aka and dba: “The Empire State Development Corporation”) in order regulate government and effectively avoid any meaningful application of these or similar restraints as well as the public protection that was thereby intended.

Similarly, when IRS regulations said that interest on bonds issued for the Forest City Ratner arena (now the Ratner/Prokhorov “Barclays” arena) would be subject to income tax, New York officials swooped into action to lobby for a special loophole exempting interest on Forest City Ratner’s bonds from the taxes that regulations would have required anyone else to pay. When in 2007 the state legislature planned to enact across-the-board reform of the city's 421a property tax incentive program applicable to the building of new apartment buildings, a special treatment loophole was created to excuse the Atlantic Yards mega-project from supplying affordable housing on the same terms required for any other project.

The list of accommodations to specially excuse the mega-monopoly from all sorts of regulatory and procedural requirements is too extensive to attempt to list them all here. Another escape from regulatory safeguards worth mentioning is how the MTA in connection with the land it was furnishing the developer managed to confer extra benefit and a lowered cost on the project by not complying with provisions of relatively new public authority reform legislation intended to prevent abusive favoritism.

Even the rerouting and redesign of the surface traffic all around the busiest, most populous areas of the Borough of Brooklyn have been turned over and put in the hands of the private sector monopoly, being done by a consultant hired by and working for the private developer. (See: Thursday, June 16, 2011, Sovereign Immunity, Reconfiguration of Brooklyn’s Traffic And The Peculiar Verisimilitude of Government Functions When Forest City Ratner Takes Over.)
(See: Wednesday, September 7, 2011, The New York Times Takes an Editorial Position on the Subject of Encouraging Competition and It’s Inconsistent With Its Position on Atlantic Yards. Note added 10/03/'11: Atlantic Yards Report pointed out that, as originally written, this critique didn't include, “the state's unwillingness to crack down on blatant and continuing violations by trucks drivers of of site and city regulations.” Here is another link in that respect.)

Sense and Tradition When It Comes To Monopoly Regulation

It makes sense that this Forest City Ratner mega-monopoly ought to be meaningfully regulated, because the government is paying with subsidy for so much of what is being developed, a proposed $2 to $3 billion, probably coming in at a figure at the higher end of that spectrum. It also makes sense to regulate because it is a vast monopoly and there is an American tradition of constraining monopolies that includes regulating them if those monopolies are permitted at all.
How vast is the Ratner monopoly? If you look at the maps above you will see that Ratner has more than 50 acres of some of the highest density real estate in Brooklyn sitting astride an important series of stops on the Borough's key subway lines. The Atlantic Yards plan, while nominally involving only 22 acres, actually serves to give Ratner ownership of 30 contiguous acres. For more details you can read: Saturday, November 21, 2009, Mapping Out Forest City Ratner’s Monopolistic Strategy of Subsidy Collection and Thursday, January 7, 2010, An Updated Map of Forest City Ratner’s 50+ Acre Prime Brooklyn Real Estate Mega-Monopoly. The community is having to figure out how to refer to a landscape where everything is Ratner owned: Ratnerville? Ratner Heights?


(For more on the story that goes along with the above Ratnerville image click here.)

The supremely odd thing is how the Ratner monopoly attained its vastness. When the government doesn’t regulate monopolies it normally steps in to break them up. In the case of the Ratner mega-monopoly it was the reverse: The government stepped in to create it. Were it not for the assistance the state ESD provided, conferring upon Ratner the power to abuse eminent domain, the Ratner mega-monopoly could never have come into existence. A second odd reversal is manifest: The U.S. Supreme Court had never ruled that the creation of a monopoly is an acceptable purpose for which eminent domain may be used; it has ruled, however, that eminent domain may be used to break up real estate monopolies. The case was Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)*.

(* “Regulating oligopoly and the evils associated with it is a classic exercise of a State's [eminent domain] police powers. . . . The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals but to attack certain perceived evils of concentrated property ownership in Hawaii - a legitimate public purpose.” And in footnote 5: “After the American Revolution, the colonists in several States took steps to eradicate the feudal incidents with which large proprietors had encumbered land in the Colonies.”- emphasis supplied)

So in theory while government could use eminent domain to break up Ratner's real estate monopoly, there is nothing in terms of United States precedent that says eminent domain can be used the way it was to create such a monopoly.

As pointed out in the above Noticing New York article earlier this month, once upon a time the price in America for being allowed to exist as a monopoly was to consent to be regulated. I used as an example the permission that was given to the Bell telephone company, the incipient AT&T, via the Kingsbury Commitment of 1913, which was appropriate because I was pointing out the philosophical inconsistency in the anti-monopoly stance that the New York Times editorial page was taking in opposing “AT&T’s $39 billion attempt to buy the nation’s fourth-largest carrier, T-Mobile” while at the same time the Times has supported the Atlantic Yards monopoly.

The Times, mind you, was not saying that an expanding AT&T monopoly should be allowed and then regulated; it was flat out opposing the monopolistic “anticompetitive threat” that would result from AT&T acquisition and absorption of T-Mobile.

No More Mr. Nice Monopoly?

In explaining what happened with AT&T and the 1913 Kingsbury Commitment I quoted extensively from Columbia Law professor Tim Wu’s excellent book “The Master Switch: The Rise and Fall of Information Empires” that beginning with the telegraph and telephone companies and then bringing us up through the advent of the Internet, is about the cycle and repeated pattern of information and communication empires and how they tend toward monopoly. I did this to compare and contrast the initial good intentions and public service commitment of the newly regulated early phone company with the Forest City Ratner monopoly empire in Brooklyn.

Because Forest City is so consistently and so preeminently focused on its own self-interest over that of the community,* it is very far away from being either a benign or benevolent entity. Hence the need for regulation. But the way that Wu gives credit to the early phone company for its good and public spirited intentions, particularly as embodied in the personage of key founder Theodore N. Vail, the regulation consented to by the early phone company to protect the public seems almost superfluously unnecessary. (Right: Image of Vail in 1913 from Wikipedia)

(* Even to the extent that Ratner felt it necessary to create a fictitious set of AstroTurf community groups on its payroll to “represent” - i.e. misrepresent- the community interest rather than engage in real dialogue with the community about its interests. Malcolm Gladwell, a staff writer at the New Yorker, provided some of the most recent thoughts available on Ratner’s self-interested behavior.)

An Out-of-Bounds Monopoly: Republic Sacrifice

The Forest City Ratner mega-monopoly is all the more pernicious in that it involves real estate, an industry for which it was not previously thought there was a reason to create monopolies, and also for the fact that the very extensive Atlantic Yards monopoly involves granting Ratner (with free and below-cost donations of property from New York city and the MTA) a monopoly over what is property that properly should be an inalienable part of the public realm, part of the “res publicae” or “res publica” (from which derives our word “republic”) that under Roman Law were inalienably public property, held in common, that no person could privately own.

Kenyon College and Harvard University Professor Lewis Hyde in his book “Common as Air: Revolution, Art, and Ownership” describes “res publicae” this way:
Things such as roads and harbors, bridges and ports, that belong to the public and are open to them by operation of law

* * * *

. . . in a commercial culture, city streets are republic property . . .
Notwithstanding that “res publicae” is supposed to include public parks and all the roads and streets the public needs to travel for purposes of public commerce, Atlantic Yards involves giving over all of the park space, plus the private roads, avenues and sidewalks that were previously owned by the public to the dominion or Ratner’s private monopoly ownership.

(For a discussion of the subject of “res publicae” a footnote in Hyde’s book recommends reading: Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age, by Carol M. Rose, in Duke Law’s Law and Contemporary Problems. In his acknowledgments Hyde notes that in the course of writing his book he was invited to become a fellow at the Berkman Center for Internet and Society at the Harvard Law School where he learned his law and was given research assistance.)

Monopolies Bestowed By Government & Revolt

That is about as far as we took the subject of the relationship between monopolies and government in the last Noticing New York post to which we have been referring, but it is not altogether that simple. Yes, there has been an American tradition of government constraining monopolies. That tradition involves the constraints of not permitting them at all, examples being the Sherman Antitrust Act of 1890, and the Clayton Antitrust Act of 1914, or constraining them through regulation as was done with the phone company pursuant to the Kingsbury Commitment. The tradition of government constraint of monopoly power in America even goes back to the framing of the Constitution as we shall see in a moment. But there have also been traditions of other sorts between governments and monopolies.

During the reign of Queen Elizabeth I (November 17, 1558 to March 24, 1603- image above) the Queen regularly granted lucrative monopolies to those she favored. The Earl of Essex was granted the monopoly on sweet wines throughout the realm. When he fell out of favor, he lost his monopoly. She granted monopolies for iron, coal, oil, vinegar, saltpeter, lead, starch, yarn, skins, leather, and glass, the result being that these, according to historian Lord Thomas Babington Macaulay, “could only be bought at exorbitant prices.” (This quote from Macaulay appears in Hyde's “Common as Air: Revolution, Art, and Ownership”)

According to Macaulay:
At length in the reign of Queen Elizabeth the power of creating monopolies began to be grossly abused ; and, as soon as it began to be grossly abused, it began to be questioned. The Queen wisely declined a confrontation with the House fo Commons backed by the whole nation. She frankly acknowledged the reason for the complaint: She cancelled the patents [monopolies] which had excited the public clamours; and her people delighted by this concession, and the gracious manner in which it had ben made, did not require from her an express renunciation of the disputed prerogative [to grant monopolies].
This is not to say that disputation of the prerogative didn’t unfold with more history involving her successor monarchs.

Monopoly and Revolt in Colonial India

Lest one think that the British practice of government granting and enforcing monopolies is all part of the far distant past it ought to be remembered that the Mahatma Gandhi-led salt march (Salt Satyagraha) that was an important part of the Indian independence movement was a march in opposition to the British salt monopoly in colonial India. Did you see director Richard Attenborough’s 1982 film “Gandhi”? The monopoly was used to prevent the Indian people from gathering the salt they could otherwise cheaply produce for themselves.

Monopoly in Colonial America When Revolution Arrived

In the colonial times of our own American Revolution of 1776 monopolies, though they may not have been banished before the revolution, were not well regarded. Adam Smith’s “Wealth of Nations” first published on the 9th of March, 1776, uses the words “monopoly” or “monopolies” over 200 times. As favorably disposed as he was to the benefits of a free market (his famous “invisible hand” being regarded as virtually sacrosanct in the U.S.) none of Smith’s references to monopolies are complimentary. There are those who say that Smith’s furious opposition to the monopolies helped fuel his writing of the book. And given that he was opposed to monopolies it is not surprising to observe that Smith abhorred their being assisted or brought into effect through government.

I am indebted to the Lewis Hyde “Common as Air” book (referred to above) for pointing out that when adoption of the U. S. Constitution was being negotiated and Thomas Jefferson famously wanted, as an essential safety measure, to include a bill of rights he wanted that bill of rights to include a provision restraining monopolies. Noticing New York previously covered the topic of what the Founding Fathers would think of Atlantic Yards: They wouldn’t like it. (See: Tuesday, November 10, 2009, Judicial Review of Atlantic Yards Corruption: Laws Should Not Be A "Dead Letter").

In that 2009 Noticing New York piece examining such sources as the “Federalist Papers” we reviewed the debate about including a bill of rights and whether the enumeration of things it might include (protections against the abuse of eminent domain being amount them) needed to be express or could just be assumed to be protected. From modern day experience we know that those unwilling to make assumptions about protections were almost certainly right given that, even with the Bill of Rights (and also the new York State Constitution) containing protection against eminent domain abuse the courts deferring to legislatures have not enforced the protections. Thus we witnessed the eminent domain abuse used to produce the Ratner Atlantic Yards monopoly on the premise that legislation, or even legislatively authorized agencies, could override these constitutional provisions. And in this regard, we noted that the Founding Fathers, believing in separation of powers and judicial independence, would have been appalled by this kind of blank-check judicial deference because, in the words of Alexander Hamilton: “Laws are a dead letter without courts to expound and define their true meaning and operation.”

(Alexander Hamilton above)

The article did address the subject of Founding Father antipathy to monopoly, including the John Adams quote:
Property monopolized or in the possession of a few is a curse to mankind
(John Adams above)

Restriction Against Monopolies As A Fundamental Entitlement

But that article did not note that in correspondence between Thomas Jefferson and James Madison about the need to add a bill of rights to the Constitution, apparently both were of a mind that it would be good if the enumerated protections included “restrictions on monopolies.”

(Jefferson above)

According to Jefferson, in some of this correspondence (emphasis added):
A bill of rights is what is what the people are entitled to against every government on earth, general or particular, and what no government should refuse, or rest on inference. . . .

. . . . [it should provide] clearly and without aid of sophisms for freedom of religion, freedom of the press, protections against standing armies, restriction against monopolies, the eternal and unremitting force fo habeas corpus laws, and trial by jury in all matters of fact triable by the laws of the land and not by the law of nations.
Madison (side) had similar thoughts (though he did go on to consider the benefit of the monopolies of patent and copyright, presumably for limited periods of time):
With regard to Monopolies they are justly classed among the greatest nuisances in Government.
Judicial Override of Principles Vis-à-vis Atlantic Yards

If the Constitution had actually eventually included “restrictions on monopolies” would the government-assisted Ratner monopoly have been permitted? Madison expressed to Jefferson his suspicion that an enumeration of rights “however strongly marked on paper” would simply be overridden if there wasn’t sentiment on the part of the public majority* to continue honoring them. It is conceivable that one more Bill of Rights provision saying that Atlantic Yards constitutes an unprincipled wrong would have prevented it, but perhaps that provision would have been just as easily ignored by the courts as they ignored the state agency override of federal and state constitutional provisions against eminent domain abuse.

(* Notwithstanding the state agency override of the constitutional provisions against eminent domain abuse acquiesced to by the courts, Atlantic Yards does not have the support of any public majority, as evidenced by the non-attendance at the Nets naming event by any elected officials other than Brooklyn Borough President Marty Markowitz.)

Effective Regulation of Monopolies vs. Collusion With Government Regulators

So there is the government tradition of government awarding monopolies to favored individuals like the numerous monopolies awarded by Queen Elizabeth I when she was `grossly abusing’ her royal prerogatives . . . or the Bloomberg and ESDC’s handout to Ratner of his mega-monopoly. There is also the opposing tradition of restricting monopolies as was envisioned by Jefferson and as underlies the idea of breaking up monopolies and the Sherman and Clayton antitrust laws. “Restrictions on monopolies” may also be said to include effective regulation of monopolies when it it is thought to be necessary to consent to their existence at all. And then there is one more tradition of relationship between government and monopolies: Of all of the traditions it is the most insidious.

The most insidious relationship between government and monopolies is the relationship that looks like regulation to constrain the monopolies but is really the reverse. It is when government regulators are “captured” by the industries they regulate and under cover of “regulation” help the regulated monopoly maintain or enhance that monopoly.

Lessons From “The Master Switch”

Tim Wu in “The Master Switch” credited Theodore Vail for his earnest consent to be regulated for the public good. He also has stories in the book about the effective use of antitrust law to break up monopolies such as the early Edison Trust and later the Hollywood studio system monopoly. The Edison Trust that monopolized the early movie industry dictated that all movies had to be of a short (Nickelodeon) length and that none of them should have stars. Pursuant to a 1948 U.S. Supreme Court decision the vertically integrated studio system (production+distribution+exhibition) was broken up, which Wu argues made possible such films as "The Godfather."

Nevertheless, much of Professor Wu’s book is about how regulators often colluded with (or were bamboozled by) the monopolies they were regulating to help them maintain or strengthen their monopolies. Wu describes the various ways in which this was to the public’s detriment.

Wu describes how a regulated radio industry held back the technological development of both television and FM radio because those new technologies threatened to displace the existing AM radio monopolies and their business model. Despite being a regulated “common carrier” that was supposed to provide equal access to all, the phone company used the pre-existing monopoly it had on the use of high-quality long distance phone lines to get a piece of the action in controlling of the radio waves. Wu describes how the culture of these emerging industries might have developed differently and in a more natural and organic fashion had these controls not been so tightly exerted. At one point Wu's thinking and analogies even take him to some mentions of Jane Jacobs urban development parallels (pages 200 and 297).

Monopolies and the Critique of Central Planning: Paging Jane Jacobs

The advantages of “central planning” are often proffered as a rationale for endorsing the existence of monopolies but Wu, invoking other well-known thinkers, critiques the disadvantages of monopolistic “central planning” : “no such planner could ever hope to have all the relevant facts. . to arrive at an adequately informed or right decision.” Wu notes that Jane Jacobs was one of a new era of both conservative and liberal thinkers (Friedrich Hayek, “The Road to Serfdom” and Leopold Kohr who inspired the small-is-beautiful movement are similarly mentioned) who were “rediscovering a love for organic, disorganized systems.” He quotes Kohr: “Whenever something is wrong, something is too big.” Wu notes that Jacob’s work revealed how:
Olympian planners like Robert Moses [upon whose development paradigms Ratner’s Atlantic Yards design is closely modeled] were going wrong. There was no understanding, let alone regard, for the organic logic of the city’s neighborhoods,* a logic discernible only on foot.

(* a few lines later: “neighborhoods like New York’s Soho and West Village, which had developed organically for centuries” and like Prospect Heights vis-à-vis Ratner, were threatened with destruction by Moses plans.)
In a later summing-up on these points Wu writes:
The twenty-first century begins with no such predilection for central order. In our times Jane Jacobs is the starting point for urban design, Hayek’s critique of central planning is broadly accepted, and even governments with a notable affinity for socialist values tout the benefits if competition, rejecting those of monopoly.
He then goes on to describe how with competition in today's technological world “inventive spirit” is translated into commerce “virtually overnight, creating major players with astonishing speed, where once it took years of patient chess moves to become one. .”

The Atlantic Yards megadevelopment exemplifies virtually every complaint Jacobs had about central planners like Moses. (See: Tuesday, November 11, 2008, Jane Jacobs Atlantic Yards Report Card.) Among other things Jacobs didn’t like were monopolies.

Jane Jacobs: Regulation of Monopolies vs. Dealing With the Real Harm From Monopolies

(Jane Jacobs image from Wikipedia)

Here is Jane Jacobs in her 1984 book “Cities and the Wealth of Nations” (note the reference back to Adam Smith) sounding like she is completing the thoughts of Professor Wu in his 2010 book, telling us that the real harm monopolies inflict is not something that can be regulated away (p.227):
Monopolies gratuitously harm cities and suppress what their economies are capable of achieving. The usual objection to monopolies is that they charge extortionate prices and make unconscionable profits by cornering a market, From this it follows that monopolies can be rendered harmless if their prices or profits are regulated. If, at the same time , a case can be made for economies of scale by protecting monopolies from competition, they can be thought of as beneficial. But extortionate prices, harmful though they certainly are, are the least of the disadvantages of monopolies, for monopolies forestall alternative methods, products, services. This often becomes most obvious when monopolies are broken.
For more of this kind of thinking you can read what Jacobs says about how company towns are not conducive to the promotion of urban economic growth in her 1969 book The Economies of Cities (pages 37, 89, 97-98, 102, 127, 143-144, 231).

How The Phone Company Got To Be Big in Texas: Using Regulation To Quash Competition

In one of his most chilling descriptions of how “regulators” can team up with the regulated to further the unfair advantages of those building monopolies. Wu describes how in Rick Perry’s Texas (in 2003 George W. Bush had already moved on to the White House) “with a hundred registered lobbyists working in Austin- - as opposed to the 181 members of the [Texas] legislature” Southwestern Bell Company and the legislature came up with a scheme of laws and regulations to freeze out SBC’s competitors. This aided in the reintegration and reestablishment of the once broken up phone company as a monopoly that is much the equivalent of what it had been before (except that in the interregnum there had been a revolution where everyone in America got more sophisticated phones, modems and the Internet).

The Secrets of Out-of-Control Monopolies Un-revealed

One frightening thing mentioned in Professor’s Wu’s book (and I am not sure mention of it can be found anywhere else) is that at the same time that phone company was assisting President Bush to violate federal law pursuant to a secret executive order by assisting the National Security Administration in the warrantless monitoring of telephone and Internet communications on a vast scale even now not full disclosed, the phone company's pending plans to reintegrate its monopoly were under review by the very same Bush administration. The full extent of exactly what may have happened has not been investigated and may never get adequate attention because in July of 2008 Congress passed a law granting AT&T and Verizon full retroactive immunity for any violation of the laws against spying on Americans.

Wu’s book is full of more interesting things to know about the phone company and what monopoly behavior may get you (or not get you), including:
• How the phone company had invented an answering machine that used magnetic recording tape in 1934 but kept the discovery secret out of paranoia that the invention would disrupt its business model. (Conventional wisdom is that America was introduced to magnetic tape recording machines after capturing and analyzing “magnetophon” machines the Germans were using to support their propaganda promulgation with multiple broadcasts from different time zones), and

• How extension of the Manhattan Project into “more sophisticated weapons” and other national security assignments was subcontracted out to the AT&T company because all the nation’s technological eggs were in that one monopoly’s basket. (Like the premise the government itself can't develop the platforms and infrastructure for the Hudson or Vanderbilt railyard sites?)
If only the telephone company had told the Defense Department about magnetic recording tape before they discovered the secret by capturing the German machines! Jame Coburn starred in a 1967 satire “The President’s Analyst” involving all sorts of secret CIA type activity. I thought the film was impossibly over the top when it reveled that behind all the double-crosses going on the (pre-breakup) phone company was the real villain implementing a secret plot. Now, reading Professor Wu’s book I have been forced to wonder whether the screenwriter knew a lot more about Washington and the phone company than I ever could have imagined back then.

Message From Governor Cuomo: Full Speed Ahead on Regulatory Agency Capture

If we have gone a little far afield at this point it has mainly been to stress the point that monopolies that are supposed to be “regulated” are frequently not that at all. Frequently, as can be seen with Atlantic Yards, the monopolies are the ones in charge, the ones running the show.

Were the Ratner Atlantic Yards mega-monopoly to continue there would be a desperate need for it to be regulated. But that seems hopeless. To be effectively regulated Governor Cuomo would have to appoint to the “regulating” Empire State Development agency (once “Corp.”) public officials with a true regulatory mind set. It is fair to bet that the appointment of Joe Chan to ESD does not represent such an approach. Instead, Chan has always been an unquestioning, reflexive supporter of Ratner’s vision of a full-blown unregulated what-Ratner-wants-is-what-Ratner-gets venture. The community, particularly the entity Brooklyn Speaks, has been crying out for greater regulatory control and accountability. Chan’s appointment seems like a clear signal from Cuomo that it is not going to be delivered. It appears to be a clear signal from Cuomo that he condones Ratner’s capture of the “regulating” ESD agency.

How much more unregulated could the Atlantic Yards mega-monopoly be? It seems that we are headed in a direction that will show us.

What does this permissive Cuomo attitude toward regulatory agency capture bode for the future of hydrofracking in New York State?

The Message of “I’m Sorry I Can’t let You See The Boss Right Now” While A Monopoly Runs the Show

Monday night’s tightly-controlled, invitation-only appearance of Empire State Development CEO Kenneth Adams before a selected group of Brooklynites is also an example of what to expect. (See: Tuesday, September 27, 2011, Genial ESD CEO Adams meets with community members, gets praised for showing up, says state solidly supports Forest City, opposes governance entity, admits he has much to learn.) It is an example of how the principal role of State Officials is to run interference and provide a insulating layer of separation between the entity actually responsible and in charge (Forest City Rather) and the community itself. In essence, ESD and its state officials are like the high-priced secretary who, with impeccable manners, brushes you off by telling you that her boss is not in but she will be sure to communicate to him everything you want him to know and she is sure it will be “looked into.”

On Monday night Adams (as Atlantic Yards Report noted) may have “deflected” questions with anecdotes including one about how when Adams phoned his parents about his appointment to ESD his father screamed “ESDC, that’s the agency that doesn’t listen to the people.” It’s a cute anecdote and the father’s statement conveys the sense of frustration one gets when the high-priced and polite secretary keeps you distanced from her boss, but a better description of ESD would be “the agency that politely PRETENDS to listen to you so that Forest City Ratner doesn’t have to show up, perhaps get yelled at and faced with questions they prefer not to answer.”

The fact that Mr. Adams got kudos for simply showing up demonstrates the extremely low bar to be met when state officials are performing this secretarial keep-away-the-riff-raff function. (Remember that at the root of the word “secretary” is “secret.”) We refer you to the Atlantic Yards Report post for a full dissection of what transpired during the evening, but showing up uninformed about the project (and alternatives to it), saying that you will check out available information, not letting your attending staff supply available information is all part of a running interference game. Once in a while, if you are lucky in this game, a senior state official will in a public appearance let slip out accurate information of substantial importance, such as when former ESD CEO Marisa Lago said that the megadevelopment would be taking “decades” to build (like the 40+ year Roosevelt Island development) rather than the advertised timetable, and which remark was later hanging out bizarrely while Forest City Ratner and ESD lawyers jointly tried to convince a state judge that the projected 10-year time frame of the environmental impact was nevertheless accurate.

If the game begins to wear thin after a little while it doesn’t really matter because in all likelihood there will, soon enough, be a new set of state officials running interference, while behind the door, still in charge, Forest City Ratner will still be Forest City Ratner.

Time to Take the Mega-Monopoly Away

It doesn’t really matter that Adams took the position that there was no need for the creation of a new state entity to oversee the monopoly. The fight for a new governance entity is almost certainly the wrong fight. Brooklynites could win the battle for the creation of such a new entity and still lose the war when, inevitably, the huge Forest City Ratner monopoly captures the new entity just as surely as ESD has been subjugated. Those who want to struggle to refine the megadevelopment’s regulation have their eye on the wrong ball.

Better to ask the question City Council Member Tish James asked Adams Monday night: “Isn’t it time to take the project away?” (Adams, of course, responded that it wasn’t. Some answers he knows without having to consult the retinue of expert staff accompanying him.)

This Noticing New York essay has spent a great deal of time to drive home two critical points. Maybe you think that in doing so we have hammered the nail well below the surface of the wood.

The first point is that monopolies are not good things. Having been generally disliked since at least the 1600s that point seems simple enough and it is one that has long been generally agreed upon even if these days people do not routinely keep in the forefront of their minds all the reasons why monopolies are bad.

The second point is more elusive and one that the general populace, thinking things to be different, may be less mindful of: That attempting to mitigate the harm of monopolies by government regulation is a treacherous proposition inclined to backfire. One negative result to be prepared for when you attempt to regulate monopolies is discovering that your government representatives no longer work for the public, that they are working instead on behalf of the very monopoly they were supposed to regulate.

Together these two things suggest one common sense approach when you confront a monopoly: Dismantle it whenever you can, whenever you have the opportunity.

That is what should be called for in the case of Atlantic Yards.

A Press Release From BrooklynSpeaks and Develop Don't Destroy Brooklyn Calling For What?

The joint press release from BrooklynSpeaks and Develop Don't Destroy Brooklyn (the first ever joint press release from the two organizations) concludes focusing on four bullet points. Cryptic and timidly expressed they fall short of the eloquence of a clarion call to action. Of the four, the third (see below) is the most important in terms of what should be done with the project and exactly what we have been talking about here. The second, with some translation, could also embody some key precepts:
• Build first on currently developable parcels, deferring the costly Vanderbilt Yards platform.

• Develop affordable housing in the manner and context of recent successes nearby.

• Open the development to additional teams in order to distribute the investment, the risk and the total work effort.

• Bring the community and its elected representatives to the table so we can all work together and win.
Does the third of those points, “open the development to additional teams,” with its ensuing etc eteras mean anything other than dismantle the Ratner mega-monopoly? Wouldn’t it be more courageous, frank and evocative of principle to simply say “dismantle the Ratner mega-monopoly and bid it out properly to multiple developers”?

(Above left: The recently built 10-story Atlantic Terrace project. Above right: The 50 to 60 story density at which Ratner wants his mega-monopoly acres across the street built.)

As for the second point, “Develop affordable housing in the manner and context of recent successes nearby,” that is possible code for a number of requests: Give us back our Ratner-seized streets and sidewalks (our res publicae) and build at a more natural and more neighborly contextual density like the successful affordable housing in the10-story Atlantic Terrace project recently built across the street by the Fifth Avenue Committee. Further, what ought also to be implicit in this, and probably is intended to be, is that the subsidies granted to the project should be no more lavish for the acres owned by any Atlantic Yards owner than for the acres just across the street. Lastly, isn’t this a call for preservation of the existing buildings within the footprint that can be preserved and adaptively reused?

All of the above translation with respect to the second point may also be thought of as a response to monopoly because it requests the undoing of the Ratner monopoly override of standard laws, regulations and conventions. Here is a suggestion: Address a number of these matters simultaneously by saying that public funds should not be used to subsidize the mega-project’s excessive density and call for a per-acre limitation on subsidies (that excludes seized streets and sidewalks from the acreage calculation) that should not exceed what developers of normal density projects ordinarily get. This would help take the profit and the wind out of the sails of the Ratner’s eminent domain abuse monopoly.

The fourth point about working with “the community and its elected representatives” would be ho-hum in the nondebatability of its sentiment except for the exceptional shut-out that has, with ESD’s assistance, prevailed to date.

That leaves the mysterious and perhaps questionable strategy behind the bullet point oddly chosen as the lead-off to all the points. What strategy is behind calling for the deferral of building on the Vanderbilt Yards until after other construction? A hope that, given time, Ratner will default and lose the sweetheart deal where the MTA gave this land away to him for less than its value? That deferral afford the possibility that the MTA would get the new rebuilt railyards it originally wanted and probably needs rather than the diminished yards Ratner wants to furnish? That deferral of building on the “costly” platform would deprive Ratner of his arguments for absurd density? That Ratner should have to replace, last-out-first-in style, the buildings like the Ward Bakery building that he destroyed to pressure and deprive the community of alternative to his monopoly project? Build first that which can be built most quickly especially if it is at a normal density?

Noticing New York concurs with Atlantic Yards Report that the open railyards might be considered, on a relative scale, the most “blighting” of the mega-projects acres. Certainly, if there was any blight at all before Ratner’s blighting demolitions it would only have been the railyards.

Whatever the reason and thinking behind this particular bullet point it is too confusing for it to be the lead demand.

A More Clarion Call?

Here are suggested bullet points that would have served better:
• Dismantle the Ratner mega-monopoly and bid the land out properly to multiple developers (and don’t use eminent domain except to reclaim land from Ratner).

• Do not publicly subsidize extreme density or the seizure public streets and sidewalks: Instead, give the public back its streets and sidewalks (and add more to make connections over the railyards) and place a fair per acre limit on subsidies (that excludes the acreage of Ratner-seized streets and sidewalks) that will not exceed per acre what developers of normal density projects ordinarily get.

• Listen to the community and its elected representatives who have already offered you their U.N.I.T.Y. to let you know what they want.

• Build first on vacant acres preserving to the extent practicable the existing buildings within the footprint for adaptive reuse.
A Crippling Offer to Don Ratner’s `Spiritual' Robes

The bullet points of the press release are crippled by another serious flaw, the sentence that introduces them. In the style of a meek Obama pre-shrunk offer of compromise it begins: “Without altering the intent or spirit of the Atlantic Yards project” and then goes on to say, “ESDC should now consider pragmatic changes that will foster success and accelerate its benefits.”

Pragmatism is one thing, but: “Without altering the intent or spirit of the Atlantic Yards project”? That is what this article has been about from start to finish: The “intent or spirit of the Atlantic Yards project” has from its very get-go been that of a monopoly, a MEGA-monopoly. It’s in its DNA and that is precisely what needs to be altered. To ignore that point is to undermine important points made elsewhere in the press release: “The project’s present path won’t lead us there [to a “healthy development”] . . . . it is the project plan itself that is the constraint.”

Escaping Constraint

The `project plan' is indeed the `constraint' that stands in the way of healthy development in the neighborhood precisely because it is entirely designed as a Ratner blueprint for monopoly.

If it was agreed that BrooklynSpeaks and Develop Don't Destroy Brooklyn were to get absolutely everything on their mildly expressed bullet-pointed wish list except for a breakup of Ratner's monopoly, the booby prize would be that it could only be delivered by some form of regulation . . . and the regulating state official might be Joe Chan unless the community managed to win another resultant fight.

The answer, the only answer, is to break up Ratner’s mega-monopoly. Those who think the answer is to more effectively and meaningfully “regulate” Ratner’s monopoly are wrong. This is not 1913 when phone company president Vail was amenable to constraints to provide public benefit. Times have changed. The regulated have changed and the regulators have changed. You cannot expect to regulate a mega-monopoly like Ratner’s with politicians like Bloomberg and Cuomo in office. And you would still need an independent judiciary to enforce the law. Whereas once Professor Wu might have surmised that regulation of the 1913 phone company was tantamount to being ineffectual because it was superfluous to the good intentions of phone company president Theodore Vail, regulation of the Ratner mega-monopoly is, per se, going to be ineffectual for another reason: Because Ratner, running the show, will simply shrug off any meaningful restraints that the misguided struggle to impose.

Wednesday, September 28, 2011

Getting Near to Holly Near: Performing This Saturday at First Acoustics (with John Bucchino and special guest Linda Tillery)- Plus Notes on Empire

“Somewhere there’s music- - - how near how far. . . .*”

(* Lyric from “How High the Moon”)

The music is very near indeed!

We are back to the subject of local music again to let you know how near you are to your chance to hear Holly Near this Saturday, October 1 (with John Bucchino and special guest Linda Tillery) in a return engagement at First Acoustics. (The performance is at 8:00 PM, box office opens at 7:00 PM, doors open for seating at 7:30.)

Ms. Near and the performers opening for her are the second night in the new First Acoustics 2011/2012 season. If you want fill out your calendar* for the rest of the season, here it is (apologies that we didn’t provide advance notice of the Sept 17, First Acoustics Spirit Ensemble performance, also a return engagement which was reportedly a lot of fun.):
Oct 1, 2011: Holly Near, plus John Bucchino and special guest Linda Tillery

Oct 22, 2011: Gathering Time, plus Kim & Reggie Harris

Nov 19, 2011: The Kennedys, plus Debbie Deane

March 24, 2012: Sloan Wainwright, plus Sharon Goldman

April 21, 2012: Seth Glier, plus The Antivillains

May 19, 2012: Stefan Bauer, plus Wendy Russell

June 2, 2012: Brother Sun (with Pat Wictor), plus The Yayas

(* Why is it good to put dates in your calendar now? Tickets are usually a little cheaper if bought in advance. Depending on the performance you are seeing and whether or not you get your tickets at the door tickets range from $25.00 to $35.00.)
Near is known not only as a singer-songwriter (and an actress and teacher); she is also identified as an activist for social change. The “activist” description is front an center in the biography on her website. That might be reason enough for Noticing New York to diverge from its more typical focus on development in New York City and associated politics to mention Ms. Near and the other musical performers listed above, but there is a longer story about why local music garners Noticing New York attention (some of which is still being written). Some of it can be found via the segments linked to below:
Wednesday, March 16, 2011
Another Insert into the Music- Hands Joining Across Eras: Brooklyn Heights Unitarians and How a Historical Landmark Saved the Past For the Future

Wednesday, March 9, 2011
An Insert Preview - Music Superstar Ethics: How Completely You Can Sell “You can say what you say, but you are what you are.” Jay-Zzzzus!

Tuesday, October 19, 2010
Adding A few More Off Topic Notes (Or Are They Really?)
The "Boardwalk Empire" Strikes Back?

(Picture above: Abbot Genser/HBO)

When it comes to local music opportunities here is something exciting that was totally off my radar screen: Local New Yorker and Brooklyn resident Vince Giordano is performing a key role in generating the period music for HBO’s “Boardwalk Empire.” When I heard this I quickly checked in with my Tivo to catch up with some of music I was missing. Last year’s season closer ended with a beautifully resurrected, stunning and languorously philosophical George M. Cohan song (performed by Stephen De Rosa) to which I had not previously paid attention: “Life's a Funny Proposition After All” (from “Little Johnny Jones” the same show as “Yankee Doodle [Dandy] Boy”). To imagine that he could write it is a whole other window into who George M. Cohan was.

Here are some interviews and stories about Vince and his contributions to Empire’s music:
'Boardwalk Empire': Meet the man behind the music, Published: Sunday, October 17, 2010, By Tris McCall/The Star-Ledger

The sounds of 'Empire': Vince Giordano leads the band on 'Boardwalk' series: Sep. 23, 2011, by Chris Jordan

Vince Giordano Talks "Boardwalk Empire Volume 1 — Music from the HBO Original Series", Working with Martin Scorsese, and More Mon, 12 Sep 2011, by Rick Florino

Playing a Bandleader and Keeping It Real, by Charles McGrath, September 3, 2010

Boardwalk Empires, Mockingbirds, Concertos & Rocket Science: Conversations with The Jayhawks, Bela Fleck and Vince Giordano, 9/23/2011, By Mike RagognaRadio Personality on Solar Powered KRUU-FM, Music Biz Vet
Here is an L.A. Times article with a lot of information about and praise for the music that somehow doesn’t mention Vince. It does mention music supervisor Randall Poster who worked with Vince on "The Aviator" which is part of the story of how they came to be working together again on "Boardwalk":
What 'Boardwalk Empire' really does right: American pop's salad days, September 21, 2010
The "Boardwalk Empire" music in its early episodes uses authentic music from the time just when the 1910s were becoming the 20s. The first episode of the first season includes a scene with a bandleader played by Vince screaming that “PROHIBITION” had just taken effect (1919)*- - Director Martin Scorsese had Vince scream out the word for so many takes Vince's voice was about to give out entirely- - and last season ended with the November 2, 1920 election of President Warren G. Harding. This music is on the cusp of the transition from ragtime to modern jazz, a hybrid form which the New York Times Charles McGrath interview above has Vince calling “Rag-a-jazz,” and the Artist Direct interview labels “Ragged Jazz.” Vince tells Rick Florino in the Artist Direct interview above that in the upcoming season the music “gets jazzier, hotter, and the tunes get a little nuttier.”

(* Note that the Ken Burns "Prohibition" documentary with period music performed by
Wynton Marsalis and his band will premier on PBS on October 2nd.)

If you missed the music in the early episodes or want to hear it again you can now get a lot of it, including the new Stephen De Rosa version of George M. Cohan’s song on Boardwalk Empire: Volume 1, Music From the HBO Series.” Rick Florino says “Due to Giordano's diligence, it's one of the best soundtracks of the year.” It is certainly hard to find a anything better than this ever.

Among other things the soundtrack has Nellie McKay going even more retro than her Doris Day tribute album, “Normal As Blueberry Pie.” Ms. McKay singing “Wild Romantic Blues” channels Jane Green, a Broadway star of the 1920s who tragically just disappeared mysteriously.

You may also notice some coincidental overlaps or near overlaps with First Acoustics. The "Boardwalk Empire" volume has songs by two members of the Wainwright family: Loudon (Wainwright III) and Martha. Previously, Vince and the Nighthawks (and Randall Poster, the music director on "Boardwalk Empire") worked with Rufus Wainwright on the soundtrack for “The Aviator” when Rufus performed “Stairway to Paradise.” As you see, Sloan Wainwright will have a March 24, 2012 performance. (Family tree-wise, Sloan is the sister of Loudon Wainwright III. Rufus and Martha are the children of that Loudon and singer Kate McGarrigle of the McGarrigle Sisters.) Another overlap: Leon Redbone, who previously did a First Acoustic Performance, is on the album performing, “The Sheik of Araby.” When Redbone performed at First Acoustics Vince backed him up playing bass. Funny how overlaps accumulate: "Boardwalk Empire" star Steve Buscemi had something of a breakthrough role in the 2001 movie “Ghost World” for which Vince and the Nighthawks provided a significant portion of the soundtrack.

Other vocalist performers on the "Boardwalk" album include: Regina Spektor, Catherine Russell, Kathy Brier, Lauren Sharpe, and Amber Edwards plus there is some ragtime piano by Mark Shane.

You can download the “Boardwalk Empire” soundtrack (and some of the others) from e-music, but here is an even better idea: It’s really easy and much more fun to go see Vince Giordano and his eleven piece Nighthawks two nights a week (Mondays and Tuesdays) at Sofias Italian Restaurant:
Vince Giordano and the Nighthawks
Monday and Tuesday Nights
Sofias Italian Restaurant
221 W 46th St # 1, New York
(212) 719-5799
Seeing Vince and the Nighthawks has got to be one of the best bang-for-your-music-buck deals in the city. You will probably feel still flush enough upon departing to add several CDs to your collection on way out and Vince will probably be happy to autograph them.

Vince and the Nighthawks do three sets starting at 8:00- I would arrive and get settled ahead of time and then stay to get full value until they finish the final set around 11:00 PM. Requests, especially from the 20s, 30s and sometimes 40s are very possible. The audience tends to be filled with appreciative folk from the music industry so you might see someone like Michael Feinstein when you go. Vince usually welcomes his industry guests from the stage. Sometimes some of the visitors join in and perform. Who knows who you might hear? (You can see Feinstein performing at the club with the band in “Michael Feinstein’s American Songbook” a PBS Series for which you can probably pick up the DVD on your trip. The song?: “Stairway to Paradise” again. See image below.)

Door cover is $15. Food (and drink) is reasonably inexpensive and pretty decent.

Did I forget to say that there is a dance floor and there are usually some very good dancers doing some vintage steps from the period. With a little imagination you can pretend you have walked into a scene from Scorsese's “The Aviator,” one of the several Woody Allen films of which Vince and company have been a part, Coppola's “The Cotton Club” in which Vince also makes an appearance or Babette’s Nightclub in 1920s Atlantic City (in "Boardwalk Empire").

“Empire” as a State of Nefarious Mind

Before we leave the subject of where music and "Empire" conjoin, let’s bring the subject around to some more typical Noticing New York themes. And it will be appropriate if people Googling for music albums with “Empire” or "Empire State" in the title find this post.

"Boardwalk Empire," which takes place in the safe, far remove of a past era, is about power-grabbing, politically-connected, law-breaking gangsters. Many will find it a tough ordeal to sit through its violence though in a fault-finding New York magazine article this week by Emily Nussbaum paradoxically suggests the flaw of the series is that the “beautifully portrayed” major characters in the series are all “suspiciously contrived” to make them too nice: “a violent twist on what Internet discussion groups call a `Mary Sue': the character who is better than everyone else—more sensitive, more traumatized, more brilliant.”

(In a backhanded way Nussbaum does acknowledge the strength of the music in the series: “There’s a limit to how many old-timey songs can be used for ironic purposes, as piquant scoring for a bloodbath or an orgy. And the historical reveals (a few episodes in, someone says, “This is Eddie, Eddie Cantor!”) have begun to feel like highbrow pop-up video.”)

But if you want your bad guys pure and straight up bad in their “empire”-building we suggest you direct your attention where gangsta-rap music star Jay-Z directed his attention this week: Atlantic Yards, the Bruce Ratner mega-monopoly. Jay-Z has been given a small piece of the action in Ratner's mega-monopoly to act as a front man dutifully providing ripped-off-the-Teleprompter PR statements centered around unbelievable stories about job creation and similar fictions. Talk about “contrived.”

The problem is that the bad empire-building behavior Jay-Z is supporting is not happening at a safe remove in a by-gone historical era. The damage he is contributing to is going on now in real time. The only good thing good about the fact that it's happening in real time is that this means a conscious and objecting public has options to do something about. Insisting that Ratner's monopoly be broken up and bid out to competing developers would be a good first step in the things to be accomplished. Ensuring that subsidies are fair and minimal with diminished density would be some other good things to accomplish.

Jay-Z has a new song with the title: Empire State Of Mind.”

The title obviously references Billy Joel'sNew York State of Mind.” It also, perhaps unwittingly, echos the name of New York’s “Empire State Development” agency just recently known better as the “Empire State Development Corporation” and long before that known as the “New York State Urban Development Corporation” the name enshrined in the statute that created it, when, in theory, the agency was supposed to help the poor. Instead, in Brooklyn, the state agency has earned its new “Empire” name by selling out and devoting itself to the premier objective of seizing land and overriding laws and procedures to build developer/subsidy collector Bruce Ratner a super-sized 50+ acre mega-monopoly.

Jay-Z showed up at the press event this week to announce that the Ratner/Prokhorov basketball team, the New Jersey Nets now in New Jersey are being renamed the “Brooklyn Nets.” The team, of course, along with jay-Z, have are being used to justify Ratner’s land grab, receipt of huge public subsidies and override of laws and the community.

But the only elected representative at the event was Brooklyn Borough President Marty Markowitz. All other politicians stayed away, although Ratner is still very much reliant on the Bloomberg and Andrew Cuomo backing he gets in the background.

In theory the event was surely supposed to be the kind of victory celebration where people could feel good about themselves. But was that the case? Atlantic Yards Report’s Norman Oder noted the peculiarity of how Markowitz had to congratulate (buck up?) the masquerading AstroTurf folk attending, “for accepting money from Forest City Ratner to [ostensibly] represent the community in the Community Benefits Agreement?” Markowitz expressed the congratulatory thought in these commiserating terms:
. . . thank you for keeping the faith. Thank you for keeping the faith," he said. "I know the taunts that you receive, and that's saying it nicely. I know. You kept the faith and you realized what this would be for the future of Brooklyn and New York. And I congratulate each and every one of you.
(See: Monday, September 26, 2011, The Jay-Z media event: an anticlimax for news (Brooklyn Nets, concert), but a chance for TV coverage; also, Ratner, Markowitz make some curious claims.)

Empire building for Bruce Ratner may be getting uncomfortable. Jay-Z only stayed long enough to bequeath a less-than-a-minute statement of support before he headed into a waiting limousine and while he was there, he and fellow Ratner/Prokhorov henchman, Prokhorov/Ratner (“Barclays”) Center CEO Brett Yormark, were photographed looking rather tense. See Tracy Collins photo below.

So, if you are interested in a real celebration and some sweet song provided by a dedicated activist for social change I remind you that Holly Near is performing this Saturday night. And if you want an evening away from empire-building gangstas, both today's real life variety (pretending to be nice and community-supporting) or the allegedly too-nice violent 1920s variety on HBO you can settle down and enjoy the same sort of superb vintage music live with Vince Giordano and the Nighthawks two nights a week at Sofias in Times Square.

As Vince Giordano says at the end of every evening: “Support live music.” And how nice when live music is near. Hurray for local music!“Somewhere there’s music- - - how near how far. . . .”

Wednesday, September 21, 2011

Construction of the Ratner/Prokhorov (“Barclays”) Arena Is Behind Schedule. Either That, OR a 24/7 Construction Schedule Was ALWAYS Intended

Ostensibly, construction of the Ratner/Prokhorov (“Barclays”) basketball arena for the Nets, which is being erected where Park Slope, Fort Greene and Prospect Heights intersect, is now, and has always been “ahead of schedule.” That’s according to the construction reports prepared by real estate consultant Merritt & Harris, reporting to the trustee for holders of the bonds issued to finance the project. See: Wednesday, September 14, 2011, Latest consultant's report: arena still ahead of schedule (but lead is narrowing), while transit connection is on schedule (but no longer ahead) from which the above charts were cribbed.

But if construction of the arena is really on schedule, why has it been necessary for some time to accelerate with the shift to a 24/7 round-the-clock construction regime with night time jackhammering and weekend work happening on both Saturdays and Sundays throughout the project footprint? Why is it necessary for the developer/subsidy collector Bruce Ratner’s Forest City Ratner's construction people to get after-hours variances for such increasingly continuous work (which they secretly lie to obtain) except for the fact that work is actually behind schedule?. . . That is unless the round-the-clock scheduling of work was always an intended part of maintaining the construction schedule, in which case the environmental impact statement intentionally avoided depicting with truth and accuracy what was to befall the community?

Regarding the above see:
Friday, September 16, 2011
From AY Watch: Atlantic Yards-related work extends to 24 hours a day, resulting in many reported quality of life impacts

Atlantic Yards-related work extends to 24 hours a day, resulting in many reported quality of life impacts, Submitted by Peter K. on September 15, 2011.

Thursday, September 15, 2011
Forest City to launch Sunday hours in railyard for at least three months; 6 am deliveries have begun

Thursday, August 11, 2011
The mysteries of after-hours work at the arena site: do people live nearby? (yes, but most permits say "no") and what's the rationale? (not made public)

Complaints about extended hours work continue, and new sources of construction noise at night and on weekends may be on their way
Submitted by Peter K. on July 26, 2011

Tuesday, August 02, 2011
From the latest Construction Alert: more late shifts, plus a plan to begin deliveries at 6 am through the entire arena construction period

(Above video, jackhammering at 10:30 PM . . . . till morning?)
We have actually been privately skeptical from the beginning about whether reports that the arena construction was on schedule were accurate, ever since the first report that came out was accompanied by a quickly reissued “corrected” chart revised specifically with respect to its main subject: exactly how far along construction actually was. See: Thursday, March 10, 2011, Arena slightly ahead of schedule, consultant reports, but "schedule disputes" linger; report reissued after chart errors found. But what do you do with private skepticism and suspicions about whether there has been PR-motivated rejiggering of information when you are on the outside looking in at an opaque process perpetually hidden behind a PR haze?

You’ll never be able to know, but as the construction of an arena that is not theoretically behind schedule is now subjecting the surrounding community to a continuous round-the-clock onslaught of construction, it seems there are some good questions to ask Empire State Development’s CEO Kenneth Adams when he meets “Brooklynites concerns about Atlantic Yards” at a non-public invitation-only Brooklyn Borough Hall meeting on Monday, September 26 from 6-8 pm. (See: Friday, September 16, 2011, ESD CEO Kenneth Adams to meet Brooklynites concerned about Atlantic Yards; session is invite-only, questions must be submitted beforehand.)

Specifically, I would ask:
Is the construction of the arena behind schedule despite reports to the contrary?

. . . . Because, if it isn’t. . .

Doesn’t that mean that the near continuous construction . . . . late at night and through the early morning hours, on Saturdays and Sundays as well as weekdays. . . . (permitted by virtue of special questionably obtained waivers) was always intended, even while the inevitability of such a schedule was tactically excluded from the Environmental Impact Statement?

. . . . . You can’t really have it both ways . . .

Or CAN you? Is having it both ways something you are allowed if you are Forest City Ratner?
Those questions are good, essential questions to ask but there is no guarantee they will get through the gauntlet. The non-public, invitation-only aspect of the event, with questions having to be submitted beforehand, indicates how tightly controlled this event will be, with the community represented only by those who are “invited” to represent the community. Also, although the Monday, September 26th evening event may seem a fair way off, the planners are taking no chances: They wanted all questions submitted almost immediately upon announcement, by September 16th.

Perhaps another place these questions should get asked is at tomorrow’s 9:30 AM Brooklyn Borough Hall Atlantic Yards District Service Cabinet meeting. (See: Wednesday, September 21, 2011, On the eve of AY District Service Cabinet Meeting, new information from AY Watch about reduced capacity of lay-by lanes.)

If the questions do get asked tomorrow and the facial expressions on the part of Forest City Ratner and Empire State Development officials are deliciously uncomfortable in responding to them, you probably won’t get to savor the spectacle unless you personally attend the event because, although it is technically open to the public, it is also tightly controlled, with a prohibition on potentially illuminating videos and photographs. (See: Monday, August 15, 2011, From Borough Hall: banning photography and video at the Atlantic Yards District Service Cabinet meetings is "to prevent disruptions." What are disruptions?)