What Could We Expect Forest City Ratner Would Do With Two Library Sites On Sale For The Sake Of Creating Real Estate Deals?

As the result of a new city-wide policy making the generation of real estate deals the library system’s priority the city expects to be selling off sites to developers.  See: Thursday, January 31, 2013, New City-Wide Policy Makes Generation Of Real Estate Deals The Library System’s Primary Purpose, and Friday, February 1, 2013, City Strategy Of Withholding Basic City Services To Blackmail Public Into Accepting Bigger Development.

Two of the sites identified for sale in the forefront of this march towards divestiture of assets with a concomitant shrinkage of the system are in Brooklyn.  Brooklyn development, especially when government officials are involved, is considered Forest City Ratner's turf, to the virtual exclusion of all others.  Whether by coincidence or not, both of these sites (library sites are unfortunately city-owned) are immediately adjacent to property the government has previously put in the hands of Forest City Ratner pursuant to no-bid deals and with special terms and subsidies.

Brooklyn Heights Library next to Ratner One Pierrepont

Another view

When asked, Josh Nachowitz, spokesperson for the Brooklyn Public Library refused to disqualify or blackball Ratner as a future owner (again without bid?) of library properties as a result of the sell-offs toward which the system is maneuvering.   That refusal is notwithstanding the fact that Forest City Ratner already has a very dangerously large government-assisted monopoly in Brooklyn and a record of failing to deliver on public benefit promises with a history of blackmailing the public to change terms of agreements.

In the words of a front page article in the New York Times last fall by Charles V. Bagli and Joseph Berger the developer and subsidy collector Bruce Ratner has a:

reputation for promising anything to get a deal, only to renegotiate relentlessly for more favorable terms.

(And that is from the New York Times which has a business relationship with Ratner and a bias towards supporting the developer.)

There is little doubt that Forest City Ratner will be interested in acquiring the two library properties adjacent to its own, one where Brooklyn Heights borders Downtown Brooklyn, the other where Boerum Hill borders the Ratner malls, “Barclays” arena and the rest of the Ratner Atlantic Yards mega-monopoly.  It may even be suspected the firm will have the inside track if for no other reason than that the firm specializes in government relationships and the spoils of crony capitalism and city officials will be heavily involved in the disposition.

Therefore it is worthwhile to ask what Forest City Ratner would be likely to do when it acquires these two library properties.  Here is what Ratner is going to want to do.

New Brooklyn Heights Tower Overlooking Cadman Plaza

Rendering of the potential Ratner "Mr. Brooklyn"

Distance between Heights library site and Mr. Brooklyn site

The Brooklyn Heights Library site being sold on at 280 Cadman Plaza West (at the corner of Tillary Street) is three short blocks (.3 miles) from 285 Jay St, (at the corner of Tillary Street) the site where a few years ago, the last time the real estate market was healthy, Forest City Rater planned to build “Mr. Brooklyn” (his “second attempt to build the tallest building in Brooklyn”), a potentially 1000 foot high “spire.”  See: December 1, 2007, Mr. Brooklyn, by Adam F. Hutton, The Brooklyn Paper.

That building had a number of similarities with what the library is now proposing to do:

    •    Ratner was “partnering” then with a public agency, exactly what the library system representatives say they are proposing: “Ratner is partnering with a public agency — in this case, City University of New York”

    •    Ratner would be erecting the larger building that would include space it would provode to the public agency (probably factoring into its ability to attain such hugeness under the zoning code) “The complex — on Jay Street between Tillary Street and Tech Place — would consist of a new, 11- to 14-story City Tech laboratory and classroom building, and an adjacent underground auditorium and gym. It is not known how much Ratner would be paid for this work.”

The 2007 Brooklyn Paper reporting on the plans made a point of the secrecy respecting exactly what was planned:

    •     . . the secret, closed-door deal is already casting a shadow

    •    Secrecy is nothing new for Ratner.

    •    The Ratner spokesman’s renunciation of the rendering shrouds the project in additional secrecy.

Chart from The Brooklyn Paper showing the relative size of the Ratner "Mr. Brooklyn" to other large buildings

How large a building could Forest City Ratner build on the Brooklyn Heights library site?

The library system representative describing the envisioned deal to the Brooklyn Heights community this past week represented that no rezoning of the site is necessary for the site to be redeveloped, saying that the FAR* for the site was 10.  The zoning for the Brooklyn Heights library site (C6-4) currently has an  FAR of 10 (for a residential equivalent of an R10, the highest density residential district), which is fairly high, but it could be increased still further, something a developer would be interested in seeing happen.  A bonus, taking the permitted FAR up to 12 is available if, for instance, some of the existing open space on the site is preserved as a public plaza.  That’s obviously an FAR higher than the public was told at the meeting last week.  In addition, because there would be a condominium unit for a small library in the new building (a community facility), the entire permitted structure could be bigger than normally permitted under that R12 FAR standard.

(* FAR stands for permitted “floor to area ratio.”  Simply put, an FAR would mean that a twelve story building could e built using the entire footprint of a site or a twenty-four story building could be built using half the footprint.)    

Green space beside the library that that might be replaced in order to get the developer a 20% density bonus

More space that's open beside the library that might be replaced to get 20% extra density

The library was constructed as part of an urban renewal plan.  The fact that arguments could be made that aspects of that plan still pertain could potentially throw in wild cards in terms of figuring out what is actually permitted, whether it be more or less. 

Finally, the permitted FAR could be increased by obtaining a zoning change for the site something the developer would likely seek after it contractually locks in control of the site.  To avoid such a change being considered an illegal “spot zoning” change that might involve an upgrade of the entire (rather small- see map below) C6-4 district, which could have the effect of allowing Ratner to transfer unused FAR zoning rights from his adjacent site to the library site.  The library system spokesman last week said that there were no development rights the library could transfer to an adjacent site: He did not say that development rights couldn’t be transferred to the library site.

Above center the triangular block with the Brooklyn Heights library site and the Ratner One Pierrepont building that could be treated as a single parcel for transfer of rights to pursue extra density

The highest permitted residential FAR in the city (with bonuses, etc.) is 12 but the highest commercial FAR that might apply is 15 and this might still wind up enabling more FAR to be transferred back to the library site, permitting what is effectively a higher FAR for the library site whether not it is commercially or residentially  used.  (Given current market conditions the best bet in is that the Heights library site will be developed as a residential building.)

Zoning map section above shows C6-4 district on Tillary at left containing Heights library site and the C6-4 district on right in which Mr. Brooklyn was to be located

Might a 74-711 transfer of development rights be possible from any of the historic landmark buildings in Brooklyn Heights?  At this time I can’t tell you.

The library site ending in a narrow triangular tip is not in all respects that easy to develop for other uses.  Concern about how elevator and utility cores will be accommodated may be one reason those formulating this plan want to downsize the current library space from 62,000 to 16,000 square feet.  (Another reason for them to want to downsize the library is to de-accentuate the perception of how much money is being spent to just to stay in the same place: In other words, the amount being spent to demolish and the reconstruct the library.  That's all profit for the developer but not the community.  Anyone who says the library somehow comes "free" is wrong)  The difficulties posed by the site’s triangular shape might cause the developer to seek variances to achieve the maximum size building that can be built.

8 Spruce Street zoning district (next to R8 district)

Would all of this allow Forest City Ratner to achieve on the acquired library site, something equivalent to the potentially 100-story “Mr. Brooklyn” it was planning only few blocks  further east on Tillary Street?  That’s unlikely, but zoning is complicated to figure out.  I don’t have enough information or professional expertise to know exactly how tall a building could be managed, but I also can’t tell you how Forest City Ratner planned to make Mr. Brooklyn 100 stories tall (it was also in a C6-4 zoning district, see map above) and I can’t tell you exactly how (other than political connections) Forest City Ratner managed to make its Gehry-designed 8 Spruce Street, crammed into the financial district on the Manhattan side of the Brooklyn Bridge (with a school in the bottom, similar to this library plan and the Mr. Brooklyn plan), 76 stories tall and thus the tallest residential building in the Western Hemisphere (image from Wikipedia's Wikimedia commons on right).  It did involve transfer of development rights: That Spruce Street tower, next to what is only an R8 residential district, is also in a C6-4 district just like the Heights library site, see the segment of the zoning map above- exact project location indicated in Google map below.  

Location (A) of 8 Spruce Street Beekman tower

When Josh Nachowitz was speaking at last week's public meeting he did not answer the question of how tall a developer would build the building replacing the library building on the Heights site as if he did not know the answer.  I have been informed that, off the record, he has told others in internal discussion the building could be forty stories plus parking below.  That height, tall enough to generate harbor views by soaring above the rest of Brooklyn Heights, would be without the transfer of additional development rights.  The price the city would be paid for the land (the money received goes to the city, not to the library system) would be based on those forty floors, not what the developer might finagle to add to it with transfers after the fact.  Would the underground parking be joined with the underground parking in the adjoining Ratner building?  That's likely.

People should talk to the librarians to get the gossip about what isn't being said to public.  I have already written noting Michael Kimmelman's astute characterization that the poor souls in the library system that is being starved by the Bloomberg administration seem to be suffering from a form of “Stockholm syndrome” in assessing the choices with which they are being presented: They are starving now but if the deal goes through they could have a shiny new facility (albeit smaller).  At the same time librarians who do not now have private parking spaces are being told they will be given them if the plan goes through.  In New York City parking spaces are worth around a quarter of a million dollars apiece!: A few of them quickly add up to the cost of the repairs said to be currently needed.  Librarians may want to lawyer up so they can be told that a statement by Josh Nachowitz that they will be given a personal parking is not legally enforceable.

14-story Federal court house across Cadman Plaze challenged by community

One thing to note:  The building on the library site would be much taller than the Cesar Pelli & Associates-designed federal court house just across Cadman Plaza or even the height it might have been.  It wound up shorter than allowed and planned after it was was challenged in court by community residents and was scaled back to 14 stories from the 18 originally planned.  I've said that in that case I believe the building should have been built according to what was originally planned.  Looking at the zoning map above you'll see the zoning for the site is R7-1, less than for the library site. 

How tall a developer can build, however complicated the rules, can be a matter of right.  To build even taller and/or denser, say through zoning changes, requires getting discretionary government approvals, something that Forest City Ratner through political connections has been extremely good at.  Some might say that a building above a certain height on the edge of historic (and now wealthy) Brooklyn Heights would be preposterous and that the powerful Brooklyn Heights Association would be certainly oppose and defeat any discretionary government approvals necessary to achieve it.  (This issue will almost certainly be discussed at the Association's annual meeting next Monday, 7:30 PM, February 11, 2013 at St. Francis College, 180 Remsen Street, in Founders Hall, the auditorium) 

On the other hand, much of what Forest City Ratner has done in pushing the envelope has been preposterous and offensive to community standards, but Forest City Ratner has nevertheless been supported in these exploits by powerful organizations (organizations getting Ratner financing) like the Brooklyn Museum and the Brooklyn Academy of Music, thus canceling out community opposition.

Before moving on to what would happen if the site of the library system’s Pacific branch (1.2 miles away) were sold to Forest City Ratner, it should be noted that Josh Nachowitz has also served as spokesperson for the Brooklyn Library System with respect to that proposed sale as well.  Mr. Nachowitz came to work for the the library system only a year ago, moving into the library system to become a VP there, from the city’s real estate development agency the New York City Economic Development Corp. (EDC), where he handled community and political relations, a year ago in February of 2012.  (In 2011 he was the face of EDC in dealing with public complaints about noise from helicopter flights and in 2010 he was a representative of EDC in dealing with the condemnation of historic Duffield Street properties to create a park.)

Extension Of Forest City Ratner Atlantic Yards Mega-Monopoly To Include The Site Of Pacific Branch Library

On right, Pacific branch library proposed to be closed to for the sake of real estate deals.  This photo is from:  Reflecting Pictorially, And Otherwise, On The Un-Truth And Consequence Of BP Markowitz’s Assertion Arena Is In Business District, Not Brownstone Neighborhood 

If Forest City Ratner acquires the site of the Pacific branch library it can extend its contiguous multi-acre Atlantic Yards empire and cheaply obtain extra benefit by also acquiring and closing down a new section of Pacific Street so as to connect the former library site to its contiguous Atlantic Yards acreage.

Above, the green shows where within the currently extant 30+ acre Forest City Ratner mega-monopoly (outlined) once-public streets, avenues and sidewalks are now privately owned by Ratner, subject to Ratner rules

Close down another city street?  Why would the Ratner organization do that and how they be arguing that it makes sense?  Forest City Ratner has a long history of obtaining private ownership and closing down public streets.  It is one reason the traffic configurations around the Ratner Metrotech are so odd and difficult.  Most of the formerly public streets right around this section of Pacific Street are already closed down and privately owned by Forest City Ratner (see map above).  If all of Pacific Street between the Ratner-owned block on which you can find Modell's and the block on which the library now exists were shut down and given to Ratner by the city it would be roughly the equivalent of the length of Fort Greene Place also spoking off from the Ratner (Prokhorov) arena, in that case just to the north.

Above, the Pacific branch library site (A) where Pacific Street could be closed down to create a new superblock, shown next to existing Ratner-owned superblocks and privatized streets

Since Pacific Street no longer exists where it once did (where the “Barclays” arena has replaced it) there is a good argument that a public street leading up to the no longer existing street is not needed.  The philosophy expressed in the Atlantic Yards design is that superblocks are good.  This would extend that practice to create one more similarly sized adjacent superblock.  The privatization of the street could be accomplished exactly the same way that the streets in the Atlantic Yards footprint were privatized: The state’s Empire State Development agency ("ESD," formerly UDC) could condemn them and New York City could accept a token condemnation award that Ratner would pay it for the land, far less than the real value of the streets.

So that Ratner could get the maximum benefit, the entire length of Pacific Street between 4th Avenue and Flatbush would be privatized.  Since, for the time being, there are still private properties fronting on some of that length of Pacific Street the owners of those properties would be granted an easement for ingress and egress over the Ratner-owned street.  The advantage of all of this would be to give Ratner extra rights in terms of increasing the maximum density at which he can legally build within his 30+ acres of mega-monopoly.  ESD's involvement extending the boundaries of the Atlantic Yards district would also serve to override normal zoning protections.  If this sounds absurd remember that this is precisely what was done on a large scale when developer-formulated Atlantic Yards was assembled.  Do the boundaries of things like government urban renewal districts get adjusted after the fact to include properties developers set their sights on?:  That's exactly how the current boundaries of the Atlantic Yards footprint wound up being drawn to Forest City Ratner's specifications. 

What the expanded Ratner mega-monpoly would look like with more of Pacific Street privately owned by Ratner as indicated in green on left

Forest City Ratner should be giving back to the public the streets that were privatized and turned over to it.  So far public officials are not requiring this. . .   . If we are not having the conversations we should be having about why Ratner should be forced to give back the portions of Pacific Street he took before and even now is not making any real use of them, what is to stop Ratner from going on the offensive once again and seek the closing and private ownership of even more of Pacific Street?

Library in happier days when it was not under threat. . . Atlantic Yards Report used this image from library's web site

For instance, the current New York City Public Advocate, Bill de Blasio, who rose in Brooklyn politics as a local city council member (for the 39th District) and therefore ought to be sensitive to local community concerns, has now served almost his entire four year term as Public Advocate without ever lifting a finger to call for the restoration to the public of those parts of Pacific Street that the Ratner organization, having reneged on original representations, isn’t actually truly using and won’t be using for many years, probably decades.  Why not?  There is, after all, ample precedent for restoring privatized demapped streets to the public when they are part of vacant sites and it is realized that the original demapping was ill-conceived.

This does not bode well: Bill de Blasio is now running for mayor.  Since he is not taking the public’s side on this issue now as Public Advocate it is entirely conceivable that he would, as mayor, similarly turn over more of Pacific Street to Forest City Ratner.  (Mr. de Blasio has offered no indications of where he would split from real estate developers to support the interests of communities.)  Christine Quinn, who has been running the City Council as its speaker has been a straight down the line implementer of the Bloomberg administration's real estate policies so it can be expected that, by continuing them, she would wind up doing exactly the same thing in the future in terms of  Ratner's continued privatized ownership of streets.

Would Ratner be impeded, unable to grab control of the library sites, due to lack of funds having fallen on the financial ropes as a result of multiple bad decisions respecting Atlantic Yards and the community's wised-up opposition?  There won't be financial hurdles so long as Ratner can readily access mufti-millions from Chinese EB-5 investors buying green cards or Russian oligarch Mikhail Prokhorov.   

What I have written here may seem almost like no more than an improbable satire except that everything I have said might happen accords so closely with what politicians in this city have already participated in making happen, many examples of it involving Forest City Ratner’s pushing the envelope of politically connected developer privilege.  There is consequently absolutely no assurance that any of the possibilities I have spelled out here won’t materialize.  What would prevent it? A vigilant, demanding citizenry who we may hope can demand accountability and action from our politicians. . . The best test of what we can expect from our politicians in the future is what we can succeed in demanding from them today.

. .  A good starting demand?  A loud outcry to take the governmentally-assisted Brooklyn mega-monoply away from Forest City Ratner and end its current abuses.

* * *
PS (added February 9, 2013): The following recent article (with links to others) that ends with a link to a petition to stop the defunding and skrinkage of the library system for the sake of creating real estate deals: Saturday, February 9, 2013, Libraries That Are Now Supposedly “Dilapidated” Were Just Renovated: And Are Developers’ Real Estate Deals More Important Than Bryant Park?

Gehry Leaks

News went out on March 19, 2009 that the Frank Gehry-designed Forest City Ratner Beekman Tower now under construction might cease construction at about half its originally planned height. (See and hear: WNYC’s Downtown Housing Complex May Downsize, by Matthew Schuerman, March 19, 2009.) Funny thing is it was just two weeks before that we happened to be wondering about possible problems with the Beekman’s construction for an entirely different reason when No Land Grab* directed our attention to a story in the Toronto Globe and Mail about how the new the new Frank Gehry-designed Art Gallery of Ontario was leaking. The Globe article included a picture of museum artwork by Giuseppe Penone covered with plastic with buckets set up on the side to catch water (see the image on the side) and it said that buckets dotted the Museum’s “famed Douglas fir central staircase, catching errant drips.” (See Gehry Partners image of the staircase from an Ouroussoff Times article we have talked about and will talk about again here.)

(* See: No Land Grab’s March 5, 2009, Moisture plagues 'impermeable' gallery, Toronto Globe and Mail, by James Bradshaw or read the original article Moisture plagues 'impermeable' gallery, Buckets line AGO's signature Douglas fir staircase, while condensation blurs view from windows, James Bradshaw, March 3, 2009.)

Adding to the List of Gehry Projects With Leak Problems: The MIT Stata Center . . .

This new report added the Art Gallery of Ontario to the list of Gehry-designed projects where there have been problems with leaks. As the Globe article wrote:

The leaks and condensation problems at the AGO have dredged up memories of a negligence lawsuit that ensnared its architect, Frank Gehry, in late 2007 after another of his designs, at MIT, became cracked, leaky and mouldy.

. . . And the Bard Campus Fisher Performing Arts Center

We have also written about similar problems with roof leaks at the $62 million Richard B. Fisher Center for the Performing Arts that Gehry designed for Bard College. We reported having it explained to us that:

. . . . there was a problem with the five-year-old roof because Gehry’s design specifications did not take into account the variability of the climate.

(See: Monday, January 19, 2009, A Fable for Our Times: Gehry and the Spirit of the Land.)


Gehry Blames “Value Engineering”

In that article where we wrote about the leaks at the Fisher Performing Arts Gehry designed for Bard College we also wrote about how Gehry attributed leaks at the Massachusetts Institute of Technology’s 2004 $300 million Stata Center to:

“value engineering” — the process by which elements of a project are eliminated to cut costs — was largely responsible for the problems.

The MIT building is the one Gehry once said “looks like a party of drunken robots got together to celebrate” and according to the Times reporting on the lawsuit brought by MIT against Gehry within months of the center’s opening, it essentially started coming apart, with “considerable masonry cracking” in the amphitheater’s seating areas. (The builder said that the construction was not the issue.) (See: M.I.T. Sues Frank Gehry, Citing Flaws in Center He Designed, by Robin Pogrebin and Katie Zezima, November 7, 2007. Image below is from MIT Sues Frank Gehry Over Design of Celebrity Architect's 'Party of Drunken Robots' Building, Monday, November 12, 2007.)

Gehry Designs with “Value Engineered” Future in Store

Gehry’s blaming of the leaks on “value engineering” for causing the problems is especially interesting for several reasons. Gehry is no longer working on Forest City Ratner’s planned Atlantic Yards and laid off those on his staff who worked on it. It is therefore not at all clear how much, if any, of Gehry’s previous design work would be used if any version of that project ever goes forward but there is talk about how whatever does go forward will be “value engineered.” (See: Thursday, March 26, 2009, Paging Lillian Hellman: on WFAN, Nets' Yormark does damage control on Gehry, reaching new depths of suspicious spin and Friday, January 09, 2009, As FCR scales back arena cost, Gehry's role recedes; ESDC, which once touted architect, says developer controls aesthetics.)

There are also indications that the Beekman Tower will be subject to value engineering or similar cost saving measures if its originally planned upper half is ever built. (According “Joyce Baumgarten, spokesperson for Forest City. . . the addition of new floors had paused so Forest City could look for ways to save money, possibly by re-bidding construction contracts.” Ratner says Gehry tower will keep rising, by Julie Shapiro, April 2, 2009.)

Gehry thinks that “value engineering” results in problems like leaks- - at least when it comes to his own designs. So?

Gehry Reassessment Time

Our January article, A Fable for Our Times: Gehry and the Spirit of the Land, suggested that it is time for a reassessment of Gehry as an architect. Interestingly, we used commentary by Nicolai Ouroussoff about the newly opened Art Gallery of Ontario to make our point that reviewers like Ouroussoff, with a blind spot for Gehry, praising him for the wrong things. We pointed out that Ouroussoff was treating the value of Gehry’s work as being based upon a personal “journey of psychological revelation.” It seemed like an indulgence even before we knew that the building Ouroussoff was talking about would leak. Back then, (though we knew other buildings leaked), we were mainly worried that Gehry’s self-absorption would takes things off-track by shortchanging the public in other ways. (See: Gehry Puts a Very Different Signature on His Old Hometown’s Museum, by Nicolai Ouroussoff, November 14, 2008.)

Time Spent With Gehry

The blind spot that we think that Ouroussoff and other reviewers like Ada Louise Huxtable have for Gehry may come from spending personal time with Gehry. We noticed that this weekend in the Times, Ouroussoff worked into an article time he spent with Gehry in LA:

. . . . In the early 1990s Frank Gehry and I took a drive down the city’s once-great commercial spine, which stretches 16 miles from downtown Los Angeles to Santa Monica.

Mr. Gehry guided me through the range of communities that the boulevard intersects, from the Latino neighborhoods near MacArthur Park to Koreatown to the many cultural institutions that include the Wiltern Theater, the Los Angeles County Museum of Art and the Hammer Museum . . . .

Mr. Gehry suggested that by concentrating more public transportation and cultural institutions along this thoroughfare, Los Angeles might finally find its center, both geographically and socially.

(See: Reinventing America’s Cities: The Time Is Now, by Nicolai Ouroussoff, March 25, 2009.)

Climactic Events?

Dealing with the challenge of local climates seems to be a problem for Mr. Gehry. In theory, it shouldn’t have been a problem for him to remember to take into account the climate in Toronto where the art gallery is now leaking even though it was his first commission in his hometown. Mr. Ouroussoff stressed, in his review of the art gallery, how significant it must have been for Mr. Gehry that the commission was in his hometown. On the other hand it was Gehry’s first commission in his hometown. It is not just inclemency and seasonal cold that is a problem for Mr. Gehry. Even in LA he had problems where the skin of his Disney Concert Hall had to be abraded because its reflection of too much concentrated sun created a problematic amount of heat on the walkways outside.

Should a Predication Be Made?

But it was the leaks that got us thinking about the Beekman before there was news of its most recently revealed problems. Thinking of these leaks we were looking at the Beekman and wondering just what will happen when it is built.

Here is prediction that somebody should perhaps be making about the Beekman. Have you watched the way water runs down mountainsides in a heavy rainstorm? Look at how the Beekman facade has channels that will collect rivuleting water into expanding streams, especially when pushed around by wind. We really can’t help ourselves; we are expecting that there may be water problems at the Beekman. As water cascades down the side of the building where will the water go? Leaks into the building’s interior may not be the only problem.

That’s what we were thinking before word came out that the Beekman may be redesigned and built at only half its originally planned height. Where are we now? All we can say is happy value engineering!

Of course, we don’t know. We haven’t studied the plans and specifications for the building. We have not asked the engineers questions and we are not engineers ourselves. In fact, we don’t even know what is ultimately going to be built. But when Ouroussoff was lauding the Toronto Art Gallery did he expect it to leak? Did MIT expect their leaks or Bard College theirs?

Whatever gets built, a short Beekman or a tall one, perhaps we should all make a date to visit the Building and see what is happening to it the first formidably inclement day after it is officially complete. We plan to bring an umbrella.

Willets Point Lawsuit Points Out . . .

The latest news on Willets Point is that a coalition of neighborhood land owners and businesses have sued the City of New York, challenging its redevelopment plans for the area. The twenty-two lawsuit plaintiffs who filed an Article 78 petition on March 11, 2009 are members of Willets Point United Against Eminent Domain Abuse. Included among the plaintiffs is 76-year-old Joseph Ardizzone, who stands to lose the Willets Point home where he has resided since birth. Mr. Ardizzone is the sole residential resident of Willets Point but as the lawsuit points out the neighborhood is “home to approximately 225 businesses” that are “viable and vital” that have “operated in Willets Point for generations” and employ “approximately 1,400-1,800 workers most of whom “speak only Spanish.” (The press release information about the filing of the lawsuit is available at: Wednesday, March 11, 2009, Willets Point United Challenges City’s Environmental Review Files Article 78 Against Mayor, City Council and City Agencies.)

Lawsuit Discussion Plus

This post discusses the lawsuit, particularly its challenge to the city’s indefinite and supposed “public purpose” in condemning Willets Point. For reasons which will become clear, we venture in our discussion to consideration of another city administration supported megaproject, Atlantic Yards, and we also give some attention to the AIG scandal tumult. We suggest you sit back for the adventure.

Willets Point Vibrancy in the Face of City Administration Orchestrated Adversity

Willets Point’s economic vibrancy persists despite, as the lawsuit points out, that the city has “for decades,” going back to Robert Moses in the early 1960s, quested to “condemn Willets Point” and “destroy its businesses and turn it over to developers.” Moses considered it a desirable goal to turn the neighborhood into a parking lot for a baseball stadium (Shea). Moses was successfully fought off by Mario Cuomo when he was a young lawyer at the beginning of his career but the plaintiffs’ lawsuit filed describes how the city has since “systematically deprived Willets Point of the vital infrastructure that every neighborhood needs and is entitled. For example, Willets Point has no functioning storm sewers, sanitary sewers, paved and maintained streets, gutters or fire hydrants, and Willets Point has little or no snow removal or municipal trash removal.”

The plaintiffs brought their petition against Mayor Michael Bloomberg, the New York City Council, the City Planning Commission and Deputy Mayor Robert Lieber.

Background on Willets Point

The filing of this lawsuit provides an updating chapter to the (four-part) story we told about Willets Point in Will It Come? What the Bloomberg Administration Wills at Willets Point (Thursday, December 4, 2008). We were pleased when No Land Grab described our series as a “must read that contains information and analysis that you'll never find in the mainstream media.” The lawsuit’s point of view accords with the analysis we provided in our Will It Come series. We note we intended that eries to provide a neutral analysis of what is going on in Willets Point.

Lawsuit Challenges: Environmental Review and Public Purpose

The lawsuit challenges the adequacy of the environmental review and the city’s lack of public purpose in taking the property through eminent domain. Michael Gerrard of Arnold and Porter, the lead attorney for the plaintiffs, is one of the best lawyers in New York State and probably the number one lawyer in the state when it comes to environmental law. As can then be expected, the papers are extraordinarily strong and well drafted when it comes to stating the suit’s two-pronged attack challenging to the environmental review. Notwithstanding, we find ourselves more immediately fascinated by the public purpose challenge to the use of eminent domain.

Multi-acre Megadevelopment Just a “Starry-eyed Vision”

The city wants to take 61 acres away from those in the neighborhood and give a single developer a 75-acre monopoly for what is likely to be 30 or more years of development. The plaintiffs’ refer to this in their lawsuit as only a “starry-eyed vision” and not a “carefully formulated economic plan” which is what the U.S. Supreme Court’s Kelo case would require at a minimum. The Office of the Deputy Mayor for Development and Rebuilding (the Office held until recently by Deputy Mayor Daniel Doctoroff and now filled by Deputy Mayor Robert Lieber) which is responsible for this project is quoted in the petition as saying that “there is currently no specific development plan.” “In other words,” says the lawsuit, “the city intends to condemn property to implement a development plan that has not even been created yet.”

The actions of the city have already brought harm to the residents of Willets Point. Even so, the suit’s challenges to the environmental review point out that for various reasons it remains to be determined that anything approximating what is being talked by the city is practically achievable.

“Starry-eyed Vision”: Excuse to Create Developer Monopolies and Holes in the Ground

In our Will It Come series we were similarly inclined to think that the city’s vision seemed more than a trifle “starry-eyed.” Would that we had used the phrase. It occurs to us that the city is attracted to these “starry-eyed visions,” Atlantic Yards being another example, more as an excuse to transfer huge tracts of land from many small owners into the hands of single-developer monopolies. After such transfers, what the project will actually turn out to be then depends upon those monopoly developers. Given the time frames involved what these developers may thereupon build is highly speculative. In the meantime, each generates a giant hole in the ground. In fact, given the 30 or so years it may likely take to fill holes created for either the Willets Point or Atlantic Yards megadevelopments, it is highly speculative that the developers to whom the monopolies are given will be around. Case in point: Forest City Ratner, the developer for Atlantic Yards and one of the developers the city was considering for Willets Point.

Developer Monopolies, Developer Demise and Disappearing Definitions of Public Benefit

The city determined to give Forest City Ratner a bidless monopoly for Atlantic Yards back in 2003. The project has not yet broken ground. Yet already, in the fraction of the 30-year time horizon the megaproject might take, it appears that the developer is very likely to financially succumb and go out of existence. When it does, the definition of what the project is supposed to be essentially disappears with it because the project seems to be little more than what Forest City Ratner has from time to time decided to define it as. As for the financial demise of Forest City Ratner, we think that it couldn’t happen to a subsidy-seeking company that deserves it more.

For more on the pending financial demise of Forest City Ratner see: Tuesday, March 17, 2009, Three months later, Morningstar again says Forest City Enterprises stock is worthless, Thursday, March 12, 2009, Purchase of FCE bonds, sale of FCE properties suggest corporation faces unsteady fate, March 11, 2009, Forest City in the News: Financial Straits Edition, March 16, 2009, Forest City in the News: Financial Straits Edition, Forest City Enterprises, Short on Money, Abandons Fresno Project, 3.14.09, and reporting on a Cleveland Crain’s article, Forest City Enterprises Dumping the Good Stuff Into a Bad Market, 3.17.09.

Abrupt Changes in Project Definition Even in Mid-construction of a Building

How strapped for cash is Forest City Ratner? One newly emerging story provides a clue. The Ratner firm is in the middle of building the Beekman Tower. The Beekman was supposed to the tallest (and probably strangest-looking- it’s Gehry-designed) residential apartment building in New York City. Though construction has only reached floor 38 of its proposed 76 stories, it is already looming oppressively over other buildings to the southeast of City Hall Park. Astoundingly, although the building is actually in construction Forest City Ratner has reportedly filed building plans to cease construction at the 38th floor, right where it is now, only midway up. (See and hear: WNYC’s Downtown Housing Complex May Downsize, by Matthew Schuerman, March 19, 2009.)

Beekman Symbolizes . . . . ?

One wonders. It is amusing to toy with the idea that the building might have been stopped by the mayor himself when he realized how the immensity of the building in his own City Hall backyard might stand as a symbol to influence the debate over his administration’s sell-off of the public realm. (See: Monday, February 23, 2009, Un-funny Valentines Arriving Late: Your Community Interests at Heart.) Realistically, however, we must conclude that this is just a stark example of Forest City Ratner’s reversal of fortune.

Mega-Openings for Mega-Change

The emerging story of the Beekman, just one building, reminds us what we should always remember: Things change. The bigger and more long-term the project, the bigger the potential for changes. When Battery Park City started construction of its first buildings in 1980 all of its residential construction was supposed to be middle-income housing. 30 years later, with Battery Park City almost completed, only a minor fraction of it is middle-income or affordable housing.

It Doesn’t Take a Bankruptcy to Redefine a Monopoly Megadevelopment

It doesn’t even require the bankruptcy of a company like Forest City Ratner to make entirely speculative in nature decades-long megaprojects over which developers have been given rights. All it takes is a change in the company’s financial condition or the economy and whatever “starry-eyed vision” the city accepted can change dramatically. Even with Forest City Ratner still technically on the scene there are no New York politicians who know what currently constitutes the project. That is, if they ever did.

As City Councilman David Yassky recently commented “I don't think the project as put forward by Forest City Ratner and approved by the State is going to be built. There just isn't the funding for it. It doesn't work in this economy. It's really time to go back to basics and say 'what do we want at that site?'” (See: Atlantic Yards on BCAT. Councilman Yassky Makes Some Interesting Comments, 2.23.09) And people like William Thompson, the City Comptroller and candidate for mayor, are noting that they don’t know what the Atlantic Yards project is.

The Atlantic Yards megadevelopment is totally undefined even though it is, in theory, much farther along than the Willets Point megadevelopment that is many acres more than Atlantic Yards. Perhaps the most defined aspect of Atlantic Yards, the proposed arena, is being subjected to such a total redesign-overhaul that it will be unrecognizable and unlike anything that was previously officially speculated about.

Private Developers Should Not Define Public Benefit

Of course, it is not good for megadevelopments to be designed by developers/subsidy collectors who will thereby be defining the benefit that will be delivered to the public. Norman Oder of Atlantic Yards Report astutely picked up that this is even acknowledged by city officials when it serves them to do so. “Having a for-profit developer write these zoning amendments is the equivalent of having a Big Tobacco lobbyist write anti-smoking legislation,” says a city official. They were talking about Coney Island, but they could be talking about the design of Atlantic Yard’s 22 acres or the 75 acres of Willets Point. (See: Tuesday, March 17, 2009, City criticizes developer for writing Coney zoning amendments, but has not criticized source of AY design guidelines and the original Daily News article providing source materials, Local Brooklyn politicians push developer's zoning changes for Coney Island, by Rachel Monahan, Sunday, March 15th 2009.)

Public Benefit is Vague When “Defined” by Private Developers Pursuing Private Benefit

It isn’t good to have developers/subsidy collectors drive the design and definition of the project and benefit the public is getting. When you give a megadevelopment monopoly to single developer that is exactly what you are doing. We have commented before that granting these monopolies before projects are defined allows developers to blackmail the public for delivery of more public subsidy, something that Forest City Ratner has already proved it can and will do. An example: Forest City Ratner’s aforementioned Frank Gehry-designed Beekman project in Manhattan. (See: Monday, September 8, 2008, Endorsements for Paul Newell for 64th Assembly District Seat.)

Production of Possible Public Benefit Becomes Trade Secret

The problem is that with an undefined project which has been given to a developer as a monopoly, the developer’s financial needs drive what the project is. That is unless and until the secret of what the project is goes with the developer/subsidy collector to their financial grave.

We have learned that assigning the project’s creation to the developer turns what should be public information into a privatized “trade secret” that the government helps conceal from the public. (See: Friday, February 20, 2009, Is the cost of Atlantic Yards now a "trade secret"? NYC EDC foils FOIL request.)

With these trade secrets intact, the developer/subsidy collector first designs the project to provide the level of private benefit and profit for themselves that they find satisfactory. At least in the case of Atlantic Yards, this level of private benefit was not weighed against the level of benefit that the developer designed the project to possibly deliver to the public. For a discussion of recent public agency testimony on this subject see: Missing a Leg To Stand On: ESDC Didn’t Consider Developer Profit, the Main Thing Atlantic Yards is About (Thursday, March 5, 2009).

Forest City Ratner: Reports of Seedy Lobbying

Gardeners talk about how dying plants parched for water and nourishment don’t curl up and die in the way that you might intuitively expect: Before they succumb, the dying plants put all their remaining resources and energy into flowering and seeding. Similarly, the financially parched Forest City Ratner, while doing little else right now (certainly not building) is reportedly spending huge sums on lobbying right now. All told when federal lobbying is added to the lobbying of New York state and local officials, the sum is assuredly exceeds a million this year. (See: Monday, March 16, 2009, Despite Atlantic Yards slowdown, Forest City Ratner spent $928,652 in 2008 on city/state lobbying.

Turns out to Be a Small World When You Are Too Big: DDDB Points Out How AIG Bailout and Atlantic Yards Have Collided

Because they are both so big, it is perhaps not surprising that a link has been found between the AIG and Atlantic Yards. “Too big to fail” in the case of the scandalized insurance giant AIG and just too damn big in the case of Atlantic Yards. (BTW: Remember Willets Point is bigger.)

As people closely following the scandal know, AIG has been routing federal bail out money around the world and to Wall Street, essentially buying favor with big firms and banks by unnecessarily paying 100% on the dollar to extinguish collateral obligations which should have been extinguished with much lower negotiated discount sums. This has turned into windfall infusions of cash, a counterintuitive reward for financial companies who (foolishly?) placed their bets on AIG’s unregulated derivatives and CDO division being sound. As Develop Don’t Destroy pointed out, and a number of news organizations are following up upon, because Barclays Bank received substantial windfall moneys in this fashion that money is essentially funding the Barclays $400 million vanity advertising expenditure on the naming rights for Atlantic Yards arena. That vanity expenditure was likely to be cancelled and then Barclays received the windfall and extended its commitment to the name rights advertising. (See: Money: Taxpayers to AIG to Barclays to Ratner, 3.16.09, U.S. Taxpayers To Pick Up Tab for Barclays' Vanity Project, 3.17.09, Gonzalez: If Ever Built, Call It "American Bailout Arena" 3.17.09, Following the AIG Bailout Money to Brooklyn, 3.17.09, "U.S. Taxpayer Bailout for U.K. Bank Center", 3.09.09.

The latest on this is that City Council Member Tish James is calling on Barclays to pull out of the naming-rights deal saying:

“Taxpayers are more willing to support efforts to free up lending for critical needs but they will not and should not support frivolous naming-rights deals like this one”

and

“Deals like this put the legitimacy of all future public spending in jeopardy, as well as jeopardize public trust in the government’s commitments of public money. . .”

(See: Councilwoman James: Barclays Should Pull Out of Naming-rights Deal, 3.18.09 and March 18, 2009, Trickle-down economics in Brooklyn, by Michael O'Keeffe.)

AIG and Big Monodeveloper Megadevelopments: The Thematic and Cultural Link of Subsidy Bear-Hugs

The above story about AIG/Atlantic Yards links is certainly arresting but we see other AIG/Atlantic Yards connections that may be even more worthy of attention, involving the tales of the $160 million in “retention bonuses” now generating outrage. (The total amount of these retention bonuses is eventually supposed to tally around one billion dollars.)

Consider the similarities: Like Forest City Ratner, huge AIG was headed for bankruptcy. Essentially, AIG was bankrupt except for the fact that the government stepped into a subsidizing partnership relationship with AIG. Through its subsidies, the government owns 79.9% of AIG. Similarly, the government is subsidizing Atlantic Yards so heavily with taxpayer money that it is paying for substantially more than half of the $4.4 + billion price tag of Atlantic Yards. In each case we are discovering how rushed and badly thought out the government’s provision of subsidies has turned out to be.

AIG’s undiscounted billions of dollars in payouts to banks like Barclays are an example of how poorly managed the AIG government subsidies are, but people probably understand the problem reflected in the case of the AIG “retention bonuses” better. Let’s look at the roots of the problem. First, AIG insiders made a bet that the government would not let AIG fail, that the government would step into the trap of a debilitating subsidy bear-hug. (Had the government let AIG go into bankruptcy any “bonuses” could have been restructured out of existence.) Second, the AIG insiders used their inside advantage and knowledge to stay a step ahead of the government in engineering a diversion of government subsidy funds to their personal benefit.

The Self-Interested Behavior Evident at AIG

The evidence in the case of AIG? At the time the contracts were written for the “retention bonuses” it was clear that AIG was headed for a bad year. We would expect that somebody in the know would have understood that AIG was very likely tubing. The contracts were written by insider-drafters to protect insider-recipients of the bonuses by specifying that if (as certainly turned out to be the case) 2008 was a worse financial year than 2007 the bonus payments would be no less than they had been in 2007. Though the bonuses were officially “retention bonuses” they went also to individuals who left the firm. As Hank Greenberg, former head of AIG (who was forced out after an Eliot Spitzer investigation) pointed out on Charlie Rose Tuesday night, the bonuses vitiated the purpose of provisions pursuant to which the special AIG unit had been set up that were structured so that the profits (or lack thereof) of people in that AIG unit would be at risk if there was poor performance.

The AIG unit not only wasn’t profitable, it took AIG into virtual bankruptcy. The New York Times front page print edition headline dubs it the “Havoc-causing Unit.” (The on-line edition changes the headline. See: 418 Got A.I.G. Bonuses; Outcry Grows in Capital: Data From Cuomo’s Office Show Payments to Nearly All in Havoc-Causing Unit/Outcry Builds in Washington for Recovery of A.I.G. Bonuses, By Jackie Calmes and Louise Story, March 17, 2009.)

Forest City Ratner’s Similarly Self-defeating Subsidy Bear-hug: The Rewards for Havoc and “Bring Your Own Blight”

Similarly, Forest City Ratner is hoping that the government will enter into a self-defeating subsidy bear-hug even if it is turning into a zombie developer. The theory with AIG was that sufficient additional “havoc” would be wreaked if AIG was not saved. Similarly Forest City pursuing a BYOB (“Bring Your Own Blight”) policy has done everything it could to make a hole in the ground big enough so that politicians could be convinced that they had no other choice but to accept its zombie subsidy bear-hug. (See: December 3, 2008, Lessons from the Ward Bakery demo.*) This is the logic the city is setting up for at Willis Point as well.

(* The latest on the BYOB front materialized yesterday. It turns out that all of the reported crime relied upon in order to find “blight” in the Atlantic Yards footprint was actually in the new shopping mall buildings built, owned and operated by Forest City Ratner. See: Wednesday, March 18, 2009, Case closed (and Blight Study bogus): high crime in Sector 88E relates to Ratner's malls, not AY footprint.)

Terminal Frustration: Obama’s Crew Were Flubbing AIG

The men the Obama administration appointed to handle the AIG bailout have been flubbing it. Probably too influenced by Wall Street’s point of view, they just didn’t get what was wrong. They started out with a tone-deaf handling of the bonuses this past Sunday on the talk show circuit where they were saying that the AIG bonuses were contracts that had to be honored and that there were also policy reasons to honor the “contracts” which means that they probably weren’t thinking very hard about how to get out of them. The sanctity of contract theory was defended by Andrew Ross Sorkin of the New York Times. (See: The Case for Paying Out Bonuses at A.I.G., March 16, 2009.) As for the additional policy reasons to retain these people, Sorkin writes:

Here is the second, perhaps more sobering thought: A.I.G. built this bomb, and it may be the only outfit that really knows how to defuse it.

Fallacy of Giving People Rights to Clean Up Their Own Mess

The way in which the retained AIG staff unnecessarily paid out windfall payments to banks like Barclays on an undiscounted, unnegotiated basis belies Mr. Sorkin’s theory. Besides, the AIG personnel involved had previously demonstrated their incompetence (many didn’t stay around anyway); they have now throughly demonstrated their venality and, in a tremendously down Wall Street market, there are more than enough competent individuals to easily hire more competent replacements.

In yesterday’s Times it was pointed out that it would not be difficult to replace the individuals these bonuses were meant to “retain” (Economic Scene: Paying Workers More to Fix Their Own Mess, by David Leonhardt, March 17, 2009.)

Mr. Leonhardt writes:

. . . . executives and bankers had an incentive to create rules that would reward them no matter what. The country is now living with the consequences.
So any attempt to build a new financial system, one that’s less susceptible to bubble, bust and bailout, will have to include a new approach to pay.
* * * *
Simon Johnson, a former chief economist at the International Monetary Fund, has pointed out that in financial crises, bankers often exaggerate the difficulty of cleaning up their mess. They do so partly to justify their own continued importance and also to fight off calls for a government takeover of banks. In reality, Mr. Johnson says, the mechanics of cleaning up hobbled banks turned out to be fairly straightforward during other recent crises, like the Asian one in the ’90s.
* * * *
Throughout this crisis, policy makers, starting with President George Bush and Ben Bernanke and now including President Obama, have been a bit too deferential to Wall Street.

A Clarion Call to Repudiate Self-Serving Contracts

While it is important to have a world where contracts are honored, the self-serving background under which these contracts were crafted certainly provides grounds for their repudiation. That is what President Obama, his Treasury Department officials and just about everyone else are now calling for. The contracts ought to be void as against public policy since they were premised upon an expectation (and actually required) that the government would rescue AIG from bankruptcy to protect the public from the jeopardy the AIG division manufactured.

The self-serving “contracts” with zombie developer/subsidy collector Forest City Ratner respecting Atlantic Yards ought to be similarly repudiated. There are probably even more grounds and reasons for doing so than with the AIG retention bonus contracts. (See: Friday, December 26, 2008, A New Year’s Revolution List (Starting 2009 Off Clean: Pull the Plug On Atlantic Yards)) We think that politicians who are not exploring these options are behaving in fashion similarly tone-deaf to the earlier behavior of Timothy Geitner and his staff.

Bloomberg Administration’s Embrace of Zombie-Hugs

What is the Bloomberg administration likely to do? It seems that the primary goal of the Bloomberg administration in situations like Atlantic Yards and Willets Point is not to build particular projects for which it has only “starry-eyed visions” but only to put large tracts of property into the hands of monopoly developers. It is likely that the Bloomberg administration will not want to pull the plug on these transfers until such limping developers have reached the ultimate nadir of a complete and total financial demise.

Keeping up with the Updates on the Declining Willets Point Developer List

We should note that super-large megaprojects reduce to a very small club, the list of “competing” developers that might (and sometimes don’t actually) “bid” for the development. After our Will It Come series it was reported how the original list of eight potential monopoly developers for Willets Points had dwindled to five, partly by reason of Forest City Ratner’s financial debilitation, and that a realistic appraisal probably thereupon reduced that list to what may be only two developers. (See: Friday, December 19, 2008, Let's take a look at the Willets Point finalists, part 1. and Tuesday, January 27, 2009, Let's take a look at the Willets Point finalists, part 2) Our own guess is that despite its recently reported problems, Muss Development probably still considers itself in the running. Should they?

These short lists of what must be very big developers means that every developer on these lists is likely to have exceptional access directly to the mayor.

The Zombie Developer “Que Sera, Sera” Answer to the “Whatever That Might Be” Theory of Determining Public Purpose

It may seem that we have gone rather far afield from where we started; talking about the Willets Point laws suit. Not really. Asserting that the state and federal constitutions require that plans justifying proposed condemnations must be reasonably ascertainable so that if the condemned property owners “are to be forced to sacrifice their livelihoods, they at least have the right to know the use for which their sacrifice is made” the papers declare (in paragraph 114 of the petition):

New York City cannot take Petitioners' businesses, property and homes based solely on the assertion that the future use of the property -- whatever that might be -- would be for a public purpose.

“Whatever that might be,” is so poorly defined as to be virtually unknown. But to the extent Atlantic Yards foreshadows the future of Willets Point the “whatever that might be” is likely to be similarly defined by the subsidy bear-hug embrace of a failing developer that is putting its own interest first and predominantly ahead of the public’s. Are the chances against lightning striking twice so remote that Willets Point will not also wind up with a failing developer? We don’t think so. It has only taken from March 2006 until now for six out of eight of the “finalist developers” to be falling off the list for various financial reasons. Therefore, why expect the remaining two won’t turn zombie or worse during the 30 or more years the firm finally selected will have a monopoly during which time it will be defining the answer to the question what public purpose is inherent in “whatever that might be.”

Reviewing the Review, The Insufficiency of What Goes on in a Bad Environment

Though the part of the Willets Point petition focusing on the city’s lack of defined public purpose in condemning Willets Point is the part that interests us most, we are not surprised by how much more of the legal petition focuses on the city’s failure to properly follow environmental review procedures. We are not surprised because our state and city government don’t seem to want New York citizens to have protective rights against government-assisted takings under either the Bill of Rights of either the federal or state constitutions. And our courts often don’t seem to want to contradict these abusive government inclinations. Therefore, challenges to environmental process almost have to serve as a stand-in for the better constitutional protections we lack. It is also not surprising because the lack of public purpose driving these land transfers to developers generates associated flaws in the environmental process.

Because the city transfers of sections of the city to monopoly developers have a different relationship with the determination of public purpose than they are supposed to, they treat the environmental review process as if it is a forgone conclusion rather than a deliberative process weighing and exploring relevant facts. Accordingly, the transfers flirt with disastrous flaws and attorney Michael Gerrard did a good job of identifying such flaws with respect to Willets Point.

The Deputy Mayor for Development’s Office Environmental Responsibilities: And How Was an Odd Grab of Power Exercised?

Notably, the role of “lead agency” for the required environmental reviews was undertaken by the Office of the Deputy Mayor for Development and Rebuilding. As noted earlier, this is the office held until recently by Deputy Mayor Daniel Doctoroff and now filled by Deputy Mayor Robert Lieber. The petition asserts that:

. . .the Deputy Mayor's Office is not even a proper lead agency, since it lacks the power to fund, approve or directly undertake the Development Plan. Indeed, the Deputy Mayor's Office has not even issued a statement of findings as required by SEQRA and CEQR.
and

Even if it were a proper lead agency (and it was not), however, the Deputy Mayor's Office also failed to perform the paramount function of a SEQRA lead agency: it failed to take a hard look at a number key environmental impacts of the Development Plan.

Getting more technical, the papers say:

The NYC Charter and Code do not vest any powers in the Deputy Mayor's Office -- rather, the Mayor must vest powers in the Deputy Mayor. See New York City Charter § 7 ("The mayor shall appoint one or more deputy mayors with such duties and responsibilities as the mayor determines."). Upon information and belief, there has been no applicable delegation of power to the Deputy Mayor's Office. Even if there were, it would not be sufficient to authorize the Deputy Mayor's Office to serve as lead agency, since under applicable precedent the role of lead agency is non-delegable. E.g. Coca-Cola Bottling Co. v. Board of Estimate of the City of New York, 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988).

We have noted the ongoing problems the mayor’s office has with conflicts of interest and delegations of authority when it comes to the large real estate transactions going on in New York. (See: Monday, February 2, 2009, The Good News IS the Bad News: Thanks A lot for Mayor Bloomberg’s “Charity”.) It would be too time-consuming to review them again here but one of the major concerns in this regard is about what kind of quid-pro-quoing could possibly be going on in the mayor’s office either directly or through his deputy mayors.

We find it interesting that Willets Point was under the auspices of the Deputy Mayor’s Office rather than being handled directly by a fully capable development agency. The petition offers a rationale furnished by the city administration for the Deputy Mayor’s office conducting the environmental review which is ominously unreassuring in terms of quid-pro-quoing (at paragraph 104):

In an effort to defend its role, the Deputy Mayor’s Office claims otherwise:
The Office of the Deputy Mayor for Economic Development is representing the City, which is undertaking this initiative, issuing the developer RFP, selecting the developer, and providing funding, and thus is the appropriate lead agency for this project.

Why would a city administration office that is incapable of taking a hard look at the environmental impact statements and which neglects to follow through with the required findings thereunder, be selecting the monopoly developer for a 75-acre swath of city acreage?

Detailing what Was Overlooked in Environmental Review

The petition goes on in excruciating detail documenting the ways in which the environmental review fell short. In addition to the state and city environmental review acts (SEQRA and CEQR) the petition deals with city failures to comply with:

• requirements of the New York State Department of Transportation
• the National Environmental Policy Act
• the Safe Drinking Water Act
• the National Interstate and Defense Highways Act of 1956
• National Fire Protection Association standards for adequacy of emergency response services

The lawsuit says that the Deputy Mayor’s Office failed to properly disclose significant, unmitigated adverse impacts to regional highways as well as failing to properly disclose the approval process for highway modifications, suggesting that (as is probably so) the city hasn’t even started the process of obtaining state or federal approvals.

Among other things the lawsuit says were not considered was significant new traffic congestion (with the location of ramps or even the possibility thereof not yet properly been considered):

61. One example of the severity of the impacts can be seen in the traffic on the ramp from the westbound Northern Boulevard to the southbound Van Wyck Expressway. Even on days without baseball games, a comparison of data tables in the FGEIS indicates that traffic on the ramp will drop during the weekday afternoon rush hour from 28.9 mph to 1.4 mph (!). (Ex. 1, FGEIS at 17-73, 17-77.) In other words, a person walking at an average speed of 3 mph wouldmove twice as fast as a car on the ramp.

Writing about the unaddressed prospect of the contamination of the aquifer under Willets Point:

88. Willets Point sits over an aquifer that has been designated a sole-source aquifer within the meaning of Section 1424(e) of the Safe Drinking Water Act. See 49 Fed. Reg. 2950 (Jan. 24, 1984). When the fill presses down on the soil, the fill will squeeze the soil like a sponge and inject its contaminants into the aquifer and New York City’s water system. (Ex. 2, Tab A - Adler Letter at 6-7.)

Aside from not taking the required hard look at these things the suit depicts the Deputy Mayor’s Office as cavalier. Asked to consider emergency response times when the highways are overburdened with new ramps (see above):

84. When these concerns were presented to the Deputy Mayor's Office, however, the Deputy Mayor's Office refused to evaluate them. Instead, the Deputy Mayor's Office offered – without supporting data or studies -- the extraordinary response that emergency services would not degrade at all.

Back to Kelo and the Violation of the Constitutional Protections Against Taking Without a Public Purpose

The suit points out that with none of these environmental considerations examined the development plan is not "finalized" and “indeed, it does not yet exist” and therefore cannot be upheld under Kelo as providing the public purpose required for a taking of private property. The suit points out that undetermined questions such as whether required access ramps can serve the project:

are not just an ancillary feature of the Development Plan, but rather “an integral part of the Plan.”

The suit says that without them the Kelo requirement of a “carefully formulated . . . economic development plan” is also absent, as well as Kelo’s requirement that the plan’s “purpose is legitimate and its means are not irrational.”

Parking the City’s “Starry-eyed Vision”

If, as appears, the city is incapable of envisioning the plan it wants for Willets Point with enough clarity to conduct a proper environmental review that can pass muster, perhaps the city should just plan on replacing Willets Point with a giant parking lot. After all, if Robert Moses had been allowed his wish Willets Point would have been turned into a parking lot for Shea Stadium though, now that it has survived about three-quarters of a century, Willets Point has succeeded in outliving Shea Stadium, just demolished, which was in use for only 44 of those years.

These days, saying that you want to tear down a time-tested neighborhood to put up a parking lot doesn’t pass muster with the public. That’s why "starry-eyed visions" are pressed into service. Still, without real plans, "starry-eyed visions" often turn into nothing more than parking lots. If Atlantic Yards foretells Willets Point’s future, pay attention: It looks exceedingly possible that much or all of the Atlantic Yards won’t be anything but a giant parking lot for decades. (See: The Municipal Art Society’s Atlantic Lots.)

Can it be? Is it possible that when the city speaks in terms of "starry-eyed visions" it is content when it gets parking lots instead?


(Above image representing the future of Atlantic Yards site from Municipal Art Society’s Atlantic Lots. Original Aerial Photograph by Jonathan Barkey.)