New York City Bar Association Program on Community Benefits Agreement Reform: Atlantic Yards Mega-monopoly as Unsurpassable Example of Abuse

(Above, Monday night’s Bar Association panel discussion of “Community Benefits Agreements.” Ken Fisher, chair of the bar association's land use committee is standing.)

This post has been updated as of May 18, 2010 to include photos, including the one above, a link to the post-program coverage of the discussion at Atlantic Yards Report (see: Tuesday, May 18, 2010, Panel discusses CBA reforms; in successful West Coast CBAs, signatories don't take developer cash; developer pays upfront for affordable housing) and the concluding update at the end of this post.

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Tonight the Association of the Bar of the City of New York is having a program on the subject of Community Benefits Agreements: Community Benefits Agreements: Time for Reform?

(Monday, May 17, 2010 6 - 8 PM, House of the Association, 42 West 44th Street, There is no charge for this program, however registration is required.)

I preparation therefor we offer the following Noticing New York thoughts:

Atlantic Yards Mega-monopoly as Unsurpassable Example of CBA Abuse

Whatever one wants to argue about the possibility of “benefits” from “Community Benefits Agreements” it is easy to see that the example of the Ratner (now +Prokhorov) Atlantic Yards mega-monopoly is hard to surpass for the litany of detriment and abuse it provides. In particular, the community and public at large was disserved by ACORN, now renamed New York Communities for Change and still something of an alter-ego for the Working Families Party.

* Where else were ALL the CBA signatories on the take from the developer?
* Where else was one of the CBA signatories (ACORN) secretly getting $1.5 million in funds?
* Where else were several of the CBA signatory groups actually formed by the developer?
* Where else is the developer actually housing one of the CBA signatories' offices?
* Where else does the CBA contain a contractual provision that the developer and one of the CBA signatories (ACORN) will do business with each other in an arrangement where the CBA signatory will be getting fees? (See the “additional housing” provisions of the housing section that sets ACORN up to do Affordable Housing Corporation-style owner-occupied housing).
* Where else does a CBA signatory (ACORN) negotiate a deal that says that the developer is exempt from providing the community with anything at all. (Virtually everything the developer is supposed to provide in the way of housing for Atlantic Yards is either required by the tax code or what the market would provide anyway.)
* Where else do the CBA signatories agree to sign away their first amendment rights to criticize the project no matter what event might materialize?
* Where else do the CBA signatories agree to unconditionally support major aspects of the project about which they have no expertise, such as the density of Atlantic Yards?
* Maybe there are other situations where the CBA signatories are called together secretly, in advance of the revelation of the project to the rest of the community, to be told that they will be signing the CBA. But AY is maybe one of the most glaring examples.
* Where else are aspects of CBA compliance monitored by a criminal fraudster who pleaded guilty to fudging and miscertification of numbers? (And that fellow is being paid by the developer!)

Yes, in some respects Atlantic Yards tactics reflect a typical divide-and-conquer-the-community strategy like other CBA situations, but Atlantic Yards itself provides a textbook worth of material to show how Community Benefits Agreements can be manipulated and abused. And it’s likely unenforceable to boot!

Concluding update: As noted, this post has been updated as of May 18, 2010 to include the photos and a link to the post-program coverage of the discussion at Atlantic Yards Report (see: Tuesday, May 18, 2010, Panel discusses CBA reforms; in successful West Coast CBAs, signatories don't take developer cash; developer pays upfront for affordable housing) and the following.

As Norman Oder reports in his Atlantic Yards Report coverage all the panelists opposed Community Benefits agreements where the signatories take money from the developer, that includes the panelist Vicki Been for whom this is just one contributory reason to oppose Community Benefits Agreements generally, and also Julian Gross the principal proponent on the panel for trying to make Community Benefits Agreements workable.

Sung Mo Kim, Associate Counsel to the Conflicts of Interest Board, made very clear that whatever protections the rules against conflicts of interest administered by the New York City Conflicts of Interest Board can afford* against self-interested politicians finagling to get personal benefit back from developers, those rules currently provide zero protection against groups like ACORN entering into feather-their-own nest arrangements as ACORN did with respect to Atlantic Yards. It is not illegal for them to do so out in the open and it is, furthermore, not illegal for ACORN to take $1.5 million from Forest City Ratner as developer of Atlantic Yards in secret as they did.

(* Perhaps VERY LOW standard given that Bloomberg-the-Mayor and Bloomberg, L.P.-the-Business regularly and mostly each do business with the same giant companies.)

Since there are no laws against these self-interested receipts by CBA signatories that vitiate the possible good of such agreements we asked the panelists what they thought the rules should be in this regard.

As Mr. Oder reports, Julian Gross responded with the suggestion that the public will essentially have to live at the mercy of a “catch 22": That though it may be a key concern it is something that nothing about which nothing can be done:

"I think that's a concern, but I don't think the city can legitimately govern all private relationships related to a development project with a set of rules,"

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"On the stronger CBAs," he said, "we've made a point of not having our groups ever be in a position of receiving money," because it can undercut the validity of the their support for the project. "People would say, Look, you've been bought off. Maybe it is, maybe it isn't, but it undercuts the value of what they're offering to the developer."

It was up to Vicki Been to take up and answer the part of my question that Mr. Gross did not answer. She said that at a very minimum these self-interested agreements need to be disclosed.

But if Mr. Gross is right is saying that these should be considered private relationships that can’t be legitimately governed, can even disclosure be required? Note that the latter part of Mr. Gross’s response to our question quoted above actually presupposes that there will be a check and balance in the public knowing about these conflicts of interest which is belied by the fact that ACORN was able to take $1.5 million from Forest City Ratner in secret. Even when that was discovered it was something that major news outlets, including the New York Times self-conflicted by its own business dealing with Ratner, elected to ignore. (See: Friday, April 10, 2009, An open letter to the NYT Public Editor: why has the Times ignored Forest City Ratner's "incredible" bailout of ACORN?)

After the formal discussion Mr. Gross, discussing the enforceability of CBAs with audience members, mentioned that he had experienced his greatest difficulty in this regard with successor entities to the developer but suggested that there was still some control over these entities to the extent that, in ongoing projects, the successor developer can probably be convinced to see the benefit of continued support from the groups who signed the CBA. While the advent of successor developer entities can definitely throw a monkey wrench into the enforceability of agreements, we would like to throw one more thing into the pot that perhaps hasn’t been mentioned before: What about successor signatory entities? Or what if the signatory entity evolves, fades away or, if not originally so, is subsequently co-opted? All of these are bars to long-term enforceability.

Our favorite quote during the evening was one that again came from Mr. Gross when an audience member asked what the remedy should be in a situation such as Atlantic Yards where the developer used the CBAs as cover to take a huge amount of property through eminent domain (we would say eminent domain abuse) and then did not subsequently follow through with promises like building affordable housing. The question is obviously an extremely real one: The Ratner/Prokhorov basketball arena is pretty much in the works but the development agreement Ratner entered into (with ESDC, not the CBA signatories) makes clear that Ratner has no obligation to complete the housing portion of the project within the 10-year time frame originally envisioned. While the agreements now formally provide a 25-year time frame for completion it is reasonable to envision that with future amendments thereof it is just as likely to be the 30-40 years envisioned in the remarks of ESDC head Marisa Lago and that the project will continue to degenerately morph to the detriment of the public. (Mr. Oder pointed out that in rephrasing the question Moderator Ken Fisher, noted that it's very common for large projects in New York to experience "changes in shape."

Included in Mr. Gross’s response (which referred to there being some applicable “common law principles” that could help?) was that the public should be saying to the developer:

. . you have to give the land back to us.

We like that answer. The naive simplicity of it aside, this is essentially what we ourselves are advocating. And, no, it’s not too early to demand the land back now.

(Above, some in the Audience for last night's discussion.)

Here are the panelists who spoke last night:

Moderator:
KENNETH K. FISHER, Cozen O'Connor; Chair, Committee on Land Use Planning and Zoning

Speakers:
VICKI BEEN, Boxer Family Professor of Law and Director, Furman Center for Real Estate and Urban Policy, New York University School of Law
JULIAN GROSS, Director of the Community Benefits Law Center, a project of the Partnership for Working Families
SUNG MO KIM, Associate Counsel to the Conflicts of Interest Board (substituting for the originally scheduled WAYNE G. HAWLEY, Deputy Executive Director and General Counsel, NYC Conflicts of Interest Board
AL RODRIGUEZ, General Counsel, Bronx Borough President ETHEL SHEFFER, Past President, American Planning Association, NY Metro Chapter

What’s Up At Dock Street, Really?

City Council Members Eric Gioia and David Yassky held a press conference Saturday morning on their continuing investigation into the proposed Walentas Dock Street project in DUMBO proposed to be built where it will block views of the Brooklyn Bridge. We try to avoid press release journalism but the Gioia and Yassky press conference was so on-target we’d like to report precisely what they said. They made it clear we have plenty of reason to be alarmed by the conduct of city administration officials and the kind of backroom dealing they are apparently willing to engage in to manipulate favored real estate deals through the approval process.

And to be fair, we will also acquaint you extensively with the thinking of a (possibly now erstwhile) proponent of the Dock Street project who came to the press conference that will, appropriately, give us the opportunity to discuss some related things about the Atlantic Yards mega-boondoggle.

The “Bundle” Bungle

When we first wrote about the Dock Street project we directed ourselves to the inappropriate bundling of the project together with a middle school:

Is there wisdom to the bundling of these decisions? Does the bundling enhance each choice or just cause each choice to be suspect? Shouldn’t we now ask, if the building is a good size, shape and height, if it has to be “sold” to the public by incorporating a school? Is the school really good planning or the one that the public actually wants if it is being tacked-on to “sell” a project of a likely unwanted size, shape and height?

(See: Wednesday, February 4, 2009, Reject the “Bundle” Bungle: Saying “No” to Walentas Dock Street Project Next to the Brooklyn Bridge. For more see: Saturday, March 14, 2009, At the City Planning Commission Hearings on Proposed Dock Street Project: A Reprise.)

From Faustian to Foxily Faux

The New York Times had already referred to this approval of a school conditional on allowing a developer to build a project of extra height as “a Faustian bargain.”Councilman Gioia, when we talked with him at the end of the press conference, referred to it more accurately as a “false choice.” The point of the press conference was to focus on the fact that internal e-mails of the School Construction Authority disclose that the SCA was clearly manipulating to put the school into the Dock Street project in order to get the project approved. Absent using the school as a sweetener to get the project approved, it seems clear the SCA wasn’t interested in providing a school or acknowledging that it was needed. The SCA did, however, think it expedient to perform a charade of pretending to consider other sites presented to it so it could pretend that it had done a cost-benefit analysis.

This is from the New York Post:

. . . while the SCA says it looked at other sites to ensure the most cost-effective school is built, documents suggest otherwise.

For instance, an e-mail dated Dec. 8 from SCA Executive Director Lorraine Grillo to another staffer shows the lack of attention a Water Street site suggested by Yassky actually received compared to the Walentas' plan for nearby Dock Street in DUMBO.

"Now I know that if we don't do the Walentas project that we don't really want to do anything else over there, but I think we have to follow up on this just so we can say that the Walentas project is such a good deal," the e-mail says.

(See: Dumbo Stumble, E-mail Shows Fix Was In: Pol, by Rich Calder, April 1, 2009.)

Yassky and Gioia

David Yassky is the City Councilman in whose district the project would be and although he is opposing the Dock Street project, he has also been asking for a new middle school for some time. It was his office’s Freedom of Information Law (FOIL) request that turned up the smoking gun e-mails. Eric Gioia is a member of City Council land use and zoning committee that will vote on this project. He got involved in the investigation when he grilled SCA Vice President Ross Holden about the e-mails at a City Council hearing on the project. (See: City Council Troubled by Dock Street Project, by Ben Muessig, May 22, 2009.)

It is worth mentioning that Mr. Yassky and Mr. Gioia are running, respectively for the positions of City Comptroller and Public Advocate, both positions where an ability to pay attention to numbers, to question ostensible versus true purpose, and to investigate effectively will be critical attributes.
Mr. Gioia’s Eloquence

Here is what Mr. Gioia had to say at the press conference Saturday:

I am here for a very simple reason. The day before the hearing on this issue I was presented with a package on this issue including some e-mails that I found incredibly disturbing. When I saw these e-mails I knew I had to act. Very simply, government is not supposed to act one way in private and another way in public. It is that kind of conduct that drains people’s confidence and faith in the honesty of government. It is that kind of behavior that drives people away from the process. When good people walk away from government, who walks onto the playing field but lawyers and lobbyists and special interests and we are all worse because of that. The overarching goal of elected officials in this city really has to be to rebuild people’s faith in our process, to rebuild people’s faith in government. All government is a way to stay working together, overcoming superficial differences by common values, common goals and to grow in the same direction.

When people begin to smell something funny, when people begin to see e-mails between government officials that say, in essence, that they are going to deceive elected officials and then the community, that is the sort of thing that turns people off from government. These e-mails raise some very serious questions about the School Construction Authority. These are questions the School Construction Authority has an absolute obligation to answer before this project moves forward. The integrity of this process has been tainted by these e-mails. These e-mails would lead a reasonable person to believe that this middle school was designed simply to justify a real estate deal and that is wrong.

The School Construction Authority in their testimony before the City Council told me, `Councilman, you’re wrong, that’s not what this is about and we have evidence that shows that those e-mails are out of context.’ At that hearing I asked for those e-mails to be produced. They told me that they had them at the ready. I suggested that if they had them ready they could provide them at the end of the day. Well, a week went by and we didn’t hear from the School Construction Authority. A few more days went and we did not hear from the School Construction Authority. So yesterday I contacted them and I said `I’m a really fair guy. If you’ve got evidence that shows that these e-mails would portray things falsely, please provide them. And so my office actually went down and picked up the package of information the School Construction Authority had prepared for me. I read the e-mails yesterday afternoon. I read the entire package last night and I did not find a single thing to refute the e-mail that I raised at the City Council.
And so I will say this. The School Construction Authority and the city government, the city has an obligation to clear the air in this situation. If they have exculpatory evidence then they should make that clear and if they don’t then this project has to be stopped. Because this is exactly,- this is exactly- the way the government is NOT supposed to work. And I will say that there have been times in my neighborhood when there have been projects in my neighborhood and there have been two sides and vigorous opposition. And that’s OK and the truth is that everyone can’t always agree and sometimes government won’t make the right decision and there is no promise that we can always fix that. But what we have to promise is that there be an open, transparent and accountable system. And when that fails we need to go back to the drawing board and start over again. And that, to me, is what this is all about.

Mr. Yassky: A Proposition on Proving Our Worst Suspicions

Councilman Gioia handed off to David Yassky who said:

I just want to remind everyone here, particularly the journalists and people who are here today, about some of the history, because four years ago there was a proposal, same owner, same site, same big building right next to the Brooklyn Bridge and the neighborhood stood together and said, on behalf of everyone in the city, in the country, in the world who cares about the Brooklyn Bridge we are going to oppose this project and we got it stopped. That was 2005. And then someone came up with the clever idea that `if we say we will put a school in it well then maybe we can get them to go along with it.’

Now I see a lot of my neighbors and constituents here. I know that you are here, you live in Downtown Brooklyn area. Yes, we need a school. Yes, we want a school. That’s why we have been demanding a middle school from the School Construction Authority for three solid years. We’ve been telling the School Construction Authority that we need a school in Downtown Brooklyn and all they said was NO, you know you’re fine, you don’t need a school.

Well, the developer comes along and says I’ve got an idea, how about this project, how about we put a school in it and all of the sudden the School Construction Authority changes its mind and says yes, we’ll put a school here. And I was wondering: Now why is that? What could explain? Maybe it really is the strength of our advocacy they finally decided even though I hadn’t seen it anywhere else. . . The School Construction Authority decided, yeah, we’re going to listen to a neighborhood about what it really needs.

And then this e-mail comes out. And then this e-mail come out, this e-mail that says in response to us saying here are some other sites where we would rather see a school. We in this neighborhood think, yes, we need a school, here’s the best place for it. Here are three better places for it than right here. And this e-mail comes out that says that if we don’t do the Walentas project we are not going to do a school anywhere nearby here.

Now that is disgusting. And that is very worrisome. Eric Gioia is right: That is government at its very worst. That just confirms people’s worst suspicions about what goes on in the back rooms out of public view.

And when we asked the head of the School Construction Authority what is this? Maybe a month ago now- - I said well, does his e-mail really reflect your position? This is the only place you will do a middle school? - Oh no, that’s not our position. - Well then, how about these other sites? - Oh no, we ‘ve got a problem with this one, a problem with that one, a problem with other one. That e-mail, you know, we are pretending that is not us, but in fact, this is the only place we will look at for a school.

Outrageous! Outrageous! Now the School Construction Authority: I want them on notice, that after we defeat this project in the City Council, they better come back and put a middle school here. Because, if they do not then they will have proved that they were participating in a sham. If the School Construction Authority does not come back and put a school in Downtown Brooklyn after this project goes down then they will have proved that our worst suspicions about them are actually true.

Dubious

Others spoke afterwards. Gus Sheha, president of the DUMBO Neighborhood Alliance said, among other things:

The Brooklyn Bridge should not be the pawn in the dirty politics of developers in dubious dealings by city agencies entrusted to protect the taxpaying public.

Another Wired Deal: Speaker Quinn, Katz, Council and Cash

Kristian Roebling great-great-grandson of Washington and Emily Warren Roebling who built the bridge reprised his testimony before the City Council. You can read more about him in this Jim Dwyer piece from the New York Times, About New York: Money and Politics Meet at the Brooklyn Bridge (May 22, 2009). In it Mr. Dwyer writes:

Whatever its merits, the Dock Street development is as wired politically as the bridge is with steel.

As Dwyer explains, it all comes down to money and campaign contributions to City Council Speaker Christine Quinn and company:

Just before new rules severely limited campaign contributions by companies doing business with the city, Two Trees accounted for at least $74,250 in donations to the two City Council members with the most power over the development, Speaker Christine C. Quinn and Melinda R. Katz, chairwoman of the Council’s Land Use Committee. The company has also spent about $400,000 lobbying the Council and city agencies

“I think Two Trees is an example of the many developers who are able to wield huge influence by the donations they make,” said Councilman Tony Avella, chairman of the subcommittee on zoning. “The real estate industry donates the most money to elected officials in New York and they control the agenda.” Mr. Avella, who has announced that he is running for mayor, opposes the project.

As we previously wrote, Borough President Marty Markowitz more or less told us that the pending City Council approval for the project was rigged. (See: Sunday, April 26, 2009, Markowitz, McCullough, Me and Other Merry Minions of the Blogosphere.)

Ed Brown and Troop

Here is an unanticipated surprise. We found that one of the most interesting things at the press conference was speaking with Ed Brown. Mr. Brown had led a group to the press conference to demonstrate in favor of the Walentas Dock Street project. We thought if we talked with Mr. Brown we might learn something interesting and we did. For reasons that will become obvious as we provide our account, it is important to note that we spoke to Mr. Brown before the press conference was underway and before Mr. Gioia and Mr. Yassky had made the statements we set forth above.
Perking on Perkins Hearing

Just the day before we had been at Senator Bill Perkins State Senate hearing on Atlantic Yards where there had been extravagantly raucous demonstrators in endeavoring to use noise (steel whistles included) to drown out any thoughtful legislative inquisitiveness about what is really going on with the Atlantic Yards megadevelopment. (See: Friday, May 29, 2009, Today’s State Senate Hearings on Atlantic Yards and Noticing New York Testimony and Monday, June 1, 2009, Negotiating With Your Contractor: The Atlantic Yards As Kitchen Renovation Metaphor.) Thoughtful and considered, Mr. Brown was a much different sort of demonstrator from the disruptors of the proceedings we had encountered at the hearing the day before. (For more thoughts on the Perkins hearing disruptions from the Daily News, see: June 2, 2009, Time to stop bullying at Atlantic Yards.)

Mr. Brown Representing . . .

Mr. Brown is a member of the local Community Board 2, the board responsible for the area into which the Dock Street project is proposed to go. He is the tenants association president for the Ingersoll Housing Development. He explained that he was there with the group that he had bought, residents of public housing, to represent the Ingersoll Houses, the Walt Whitman Houses and also the Farragut Houses. He had heard about the press conference from an e-mail he received. He said that he was there to support the project because it would give the residents of public housing the chance to send their kids to a diverse middle school within the community.

Developments Causing Discomfort, Including Atlantic Yards

A member of Community Board 2 for just over two years Mr. Browns said that he particularly liked to follow issues with respect to development because the residents of public housing were being affected by so much development that was causing discomfort because, with all the development going on in and around the community, residents just didn’t feel that they “were being included in the plans for the future of Downtown Brooklyn.” He said that, Dock Street aside, there was discomfort with the Atlantic Yards project and several other developments that had taken place in their immediate area. By contrast, he said the Walentases had “reached out, this is the first developer who had reached out BEFORE a project, rather than `it’s already there’ - - and then they engage us once we speak in opposition to it.”

The Walentas Approach

He said the Walentases had come to his group prior to the project’s coming up for approval, “for whatever reason” to let them know what the project entailed and the benefits it would have, not only for the community, but for their particular group. He said those benefits would be the middle school and also the affordable housing. He explained that there were many people in affordable housing that were looking to get out of public housing and stay in Downtown Brooklyn and that all the condominiums and all the high-end apartments with unaffordable rents coming to Downtown Brooklyn made the affordable housing component of the project very important.

Mr. Brown said that the Walentases had reached out to the tenants association (perhaps a little more than a year ago) and had come to some of the schools in the area to make presentations about the project. He said that he had been skeptical about the project at first because it was another developer developing in Downtown Brooklyn and had wondered whether his community would benefit in any way. He said it was the “middle school piece . . . that really captured our attention and then the affordable housing piece.” He said that this was something that hadn’t been seen in this area in approximately the past five or six years.

Atlantic Yards Hearing

As previously observed, Mr Brown had volunteered Atlantic Yards as an example of a project that was a particular source of community discomfort. We asked about Senator Perkins’ hearing on Atlantic Yards the day before and Mr. Brown told us that he has also gotten an e-mail about it and that while he had wanted to attend the hearing he had been unable to because of a prior engagement. He said that one of things he was concerned about with Atlantic Yards was affordable housing. (We have more commentary on that below.)

Not Anti-development but Basic Issues and the Overall Health of the City

He explained that his group was not at all anti-development but that a stigma is attached to people in public housing and that he was working to have people understand that the residents are good, hard-working, law-abiding citizens who are not involved in crime or antisocial behavior or conducting themselves in a way that was detrimental to the overall health of the city of New York. He said that not only was new affordable housing important, but jobs also were because Ingersoll and the other housing developments had upwards of 60% unemployment. He said that when people were employed it served to change the dynamics of everything for the better.

Looking Into One of the Main Criticism of Dock Street

We asked Mr. Brown whether he knew that one of the main criticisms of this project was that the community had repeatedly asked for a school, and in fact was doing a lot of work to go out and find sites that were appropriate for schools and had identified a number of them and was being told over and over by the city administration that they were not going to be provided with a school at the same time that e-mail now showed that the city administration was at the same time working to put the school in this project as a sweetener so that a project the community had previously voted down would then be approved for an up-zoning by the community. I asked him if that sounded like a manipulation by the city administration and the developer.

Mr. Brown said that he had been unaware of this and indicated such information was important to understanding the “full dynamics” of what was going on. He said that now being so informed he would have to go back and do some research on the issue, reiterating that one of the main things that had captured the attention of his group was the placement of the school in the project. Mr. Brown’s next thought was to muse on how change reflected by the new Obama administration represented an opportunity to avoid the polarization of the past and to build truly diverse communities. We confirmed with Mr. Brown that while he was in favor of a new school in Downtown Brooklyn, he was not necessarily in favor, subject to investigation, of manipulations to use this school to get an overscaled project approved that was previously disapproved by the community. Said Mr. Brown:

Oh, I can adamantly say that. You know that if there is any manipulation or underhanded moves taking place to make this thing happen I can say that, no, I am not in favor of anything of that nature.

I explained that was one of the things the press conference would be about so there was a reason to listen carefully and that maybe afterward he would have some more thoughts. Mr. Brown was in favor of looking into things. Accordingly, we suggested that proceeding with the e-mail investigation seemed to be just the ticket.

Affordable Housing: Illusive, at Least in the Case of Atlantic Yards

At this point some of the project opponents listening to our exchange spoke up, wanting to make points about how the affordable housing in the Dock Street project (being described just as “below-market rents”) would not be truly affordable. This then caused me to mention how the quote: “affordable housing” at Atlantic Yards for which ACORN is to blame is largely a sham. I mentioned the peculiarity of the middle band “negotiated” by ACORN which would effectively bar people with those incomes from getting the benefit of occupying the project. See the chart below (click to enlarge):

Incomes below the “missing band” in the above chart will be units required in any event by the tax code (so ACORN negotiated no additional benefit there) while the units provided to families in income bands above that level (especially given the MISSING income band) are being provided essentially at or close to market (so, once again, ACORN essentially negotiated no additional benefit there either). This, of course, gets to the heart of the problematic issue of “community benefit agreements” as sham and manipulations. For more on the way in which ACORN sold out the community see the following: Saturday, June 28, 2008, Selling out the Community for Beans (A Giant Wrong) Thursday, July 24, 2008, Falling Acorn! How Far from the Tree? Thursday, April 2, 2009, Jane Jacobs Atlantic Yards Report Card #14: Project Creates Population Diversity? NO Friday, April 10, 2009, As AMI climbs, a significant slice of Atlantic Yards "affordable housing" seems to track market.

We note that as the morning proceeded Mr. Brown and the opponents of the project remained very much engaged in apparently thoughtful, amicable, productive and mutually beneficial discussions exchanging information and thoughts.
(Ed Brown)

Moral of the Immorality

The window afforded by the School Construction Authority e-mails into the level of manipulation in which the Bloomberg administration is willing to engage should be a red flag and clarion call to action. Not only do we need to be able to trust our public officials to live up to a much higher standard but lawsuit after lawsuit (for instance, in the case of Atlantic Yards) hinge on the courts deferring to the notion that these same public officials can be counted upon to act in good faith and an unbiased manner, and that is something we are repeatedly seeing that the Bloomberg administration officials do not do. As the Bloomberg and Paterson administrations are equally responsible for Atlantic Yards, it appears clear we have a severe problem at both city and state levels of government.

There is an increasingly obvious absurdity to the judicial deference our courts are giving to biased public officials who consciously manipulate the public and disregard facts and fairness. (See: Saturday, July 19, 2008, Reality Denied!) When it comes to things such as eminent domain, our courts, by virtue of such absurd deference, are putting the protection of fundamental constitutional rights out of reach of every citizen. Our public officials, who have proved that they are not worthy, would clearly like for no New York resident to ever be able to win an eminent domain case against the government. And yet, against and for whom are the Bill of Rights-based eminent domain provisions of the New York State and federal constitutions meant to afford fundamental protections if not protection for the individual against the government? We look at the Dock Street manipulation and we say: These are the public officials to whom the courts defer and whom they assume act in good faith? It is absolutely time to think again.

City Council Races (33rd and 39th CDs): Candidates’ Positions on Development and Effective Action They Would Take to Stop Atlantic Yards (Part II)

In Part I of this series we examined the exceptional importance of development issues to the City Council races and the kind of coverage those issues are getting and we reviewed in detail an April 20th forum for candidates running for the 33rd Council District.

On April 23, 2009, only a few days later, candidates for both the 33rd and 39th City Council districts were invited to speak at an evening set up by the Central Brooklyn Independent Democrats. We will not review this evening in as great a depth. We hope we have already given you a feel for the issues and how our own reporting might be different from what you are picking up from the local papers. You can, however, provide you with this audio recording of the evening.

CBID Questionnaires and Candidate Stephen Levin

Central Brooklyn Independent Democrats provided a quite valuable resource for looking at the candidates’ positions in that they have questionnaires completed by most the candidates on line. (Available at the main site for endorsees and in the archive for others.) For faster reference and easier access, we are providing the candidates’ answers on development and Atlantic Yards here. In addition, Stephen Levin, a candidate for the 33rd to replace David Yassky did not show up on the 20th or the 23rd and did not return a completed questionnaire form to the CBID: We have obtained from him an answer to the question on the form respecting development and Atlantic Yards which we will set forth below. We are also supplying, from similar CBID questionnaires, the answers to the same questions from the City Councilmen being replaced, David Yassky and Bill de Blasio.

Don’t be surprised by this. There are 15 political candidates in this inventory of positions. Not one of them openly supports Atlantic Yards. They are all opposed to the project to varying degrees. The question then is what should be done to stop a project so universally despised? There is a saying about the weather which do not think should be made adaptable to Atlantic Yards: “Everybody talks about the weather but nobody does anything about it.” Heaven forbid that people would similarly say: “All the politicians talk about how bad Atlantic Yards is but nobody takes effective action to stop it.”

Here is another formulation we warn you about: Don’t trust the politician who says that `Atlantic Yards is already dead.’ That only amounts to an excuse to do nothing about it. Right now Atlantic Yards may look as awful as Dracula’s desicated corpse dissolving in the sunlight but it will not be really and truly dead until our politicians step up to the plate and affirmatively kill it. Marisa Lago, the head of the Empire State Development Corporation, has said that her state agency intends to keep pursuing the project no matter that the process of suffering its completion will take decades. And another 30 to 40 or more years that could mean CBID questionnaires that several additional generations of politicians will be filling out on the subject.

CBID Question on Development and Atlantic Yards (plus the Inherent Subquestions Respecting Atlantic Yards

Question B3 on the CBID form reads as follows:

(a) What was your position regarding the Atlantic Yards development project
in 2005? What is it today? Please explain your position and any changes. Do you
view Atlantic yards as an appropriate use of eminent domain? (b) What are some
important development issues facing the residents of your district?

Before starting to read the candidates’ answers we suggest that you put at the back of your mind the following inherent subquestions questions about Atlantic Yards to see whether they are answered when the candidates state their positions:

1. Should all the streets and avenue be closed?

2. Should the site be one developer or multiple sites with multiple developers like Battery Park City or Queens West?

3. Should the site be developed at such extraordinarily high density?

4. Should so much in the way of subsidies be concentrated on this single site rather than being used for multiple sites that are more spread out?

5. Should eminent domain be used to condemn land for the arena?

6. Should eminent domain be used to condemn land for the non-arena land such as the Ward Bakery Building block?

7. Should the developer have been allowed to destroy the historic Ward Bakery Building?

8. Is the strange wrench shape of the project site justifiable in any way? (What about the fact that this strange shape is made so strange because it includes areas of land that were never part of the 40-year old ATURA- The Atlantic Yards Urban Renewal Area?)

9. Was the Emprire State Development Corporation justified in its “blight” findings?

10. Should the developer be getting windfalls by not having to bid for or pay for: a.) the value of the upzonings, and b.) the full value of the 40% of the land (the Vanderbilt Yards) it is acquiring from the MTA?

11. Is taxpayer financing of sports venues justified when the team owner gets all the profit and absolute control over the site?

12. How should the subsidies recaptured from Atlantic Yards be redeployed to other uses, presuming they are recaptured?

Here then are responses of the candidates. As appropriate we have added some commentary.

(OTBKB series “Breakast-of-Candidates” are currently not yet available for candidates for 33rd but we will include links for candidates for the 39th in Part III.)

For the 33rd (David Yassky’s current City Council seat):

1. Isaac Abraham

Was against Atlantic Yards from the very first minute, because of many reasons. Eminent Domain was misused and should not be used by individuals for personal gain.

People have struggled for years in “mom-pop” business so that Ratner could destroy the means of livelihood. I’m still opposed to the project, this is not Russia.

Affordable Housing, better transportation less congestion and better Health and Child care.

2. Ken Baer

a. I have opposed the Atlantic Yards project since I first attended a meeting in March, 2004. Through my leadership, the Sierra Club filed lawsuits with Develop Don’t Destroy Brooklyn challenging the Environmental Impact Statement and the abuse of eminent domain for the Atlantic Yards project,

b. I have worked to prevent the inclusion of high-rise luxury condos within the Brooklyn Bridge Park and support Senator Squadron’s plan to finance and develop the park.

I support the listing of the Gowanus Canal area as a super fund site, and I oppose the rezoning of a 25 block part of the area to mixed use and residential, which would lead to the warehousing and demolition of buildings. This is what has happened along the waterfront in Williamsburg, and it is a travesty that many commercial endeavors went out of business. I will fight against any proposal that might lead to the displacement of businesses, residents, or artists. I favor downzoning along the waterfront in Williamsburg and Greenpoint as well as on 4th Avenue.

I have been outspoken in my support for designating Carroll Gardens as an historic district and have testified and spoken at meetings in opposition to the Toll Bros. project, the height of Oliver House, and in favor of the zoning text amendments for the wide streets that thankfully now limit the height of buildings on the Place streets.

3. Doug Biviano

I support, “Develop Don’t Destroy Brooklyn,” “Stop Brooklyn House of Detention,” historic districts and preserving the charm of Brooklyn Neighborhoods.

In 2005, I felt Atlantic Yards was too large in scale, would overload the infrastructure and the massive government subsidies/giveaways and use of eminent domain were wrong. Today, I support pressing the reset button on Atlantic Yards and adhering more to what the community wants.

In general, Brooklyn rezoning is out-of-scale and out-of-touch. Care must be taken in DUMBO rezoning underway and Greenpoint rezoning revisited altogether. In my conversations with residents of DUMBO and Greenpoint, and from attending CB2 hearings, it appears that many voices in the community, including DUMBO Neighborhood Association, are simply ignored by the DCP, even voices that are fine with rezoning, just not at the scale adhered to by DCP.

As for the Brooklyn Bridge Park, I support Daniel Squadron’s PIRCs plan to rid the park of private condos and, instead, replace them with a year round YMCA facility. Also, I support less berm and more ball fields. In particular, leaving Pier 5 dedicated to the planned sport fields and adding two new baseball diamonds along Furman replacing just a small portion of the berm. The baseball diamonds would be one little league or softball infield and the other being a full size baseball infield. Our children, schools and adults need this active recreation capacity.

Ultimately, I support more parks, ball fields, and waterfront promenades, especially in Greenpoint, Williamsburg and Boerum Hill. I unequivocally support the Brooklyn Greenway Initiative and building safe capacity for cyclists. Development must be integrated to serve the needs of all of our communities and transportation modes.

4. Ken Diamondstone

I was against the Atlantic Yards development from the beginning. I was the first at the Community Board to report secret meetings, publicly spoke out and was almost removed from the Community Board for opposing the Borough President’s position. I fought back by holding a press conference which embarrassed the BP sufficiently so that he reappointed me immediately.

Regarding Eminent Domain, the Kelo decision requires a public process first – not a prior designation of a developer. Therefore eminent domain usage is totally inappropriate.

Regarding Brooklyn Bridge Park, I support year round recreation for Brooklyn Bridge Park and opposed housing.

I opposed the Dock Street project because it compromises the view of one of Brooklyn’s most treasured icons, the Brooklyn Bridge. I also opposed the tactics used by Two Trees to try to both bribe and threaten the Brooklyn Heights and DUMBO communities. I find it highly offensive that greedy developers get to play by a different set of rules than the rest of us.

I also opposed the Toll Brothers project and the Gowanus rezoning and have worked with members of FROGGS in opposition. I oppose those projects at this time because NYC should temporarily suspend City Planning’s ability to convert M1 – M3 zones into residential or mixed use zones until an independent study of NYC’s long term land use needs for green tech, future high tech and medium tech industry is undertaken.

Explanation on Mr. Levin

The following is a response to the questionnaire’s question which we independently obtained from Stephen Levin who did not attend the public candidate events and who did not fill out the entire CBID questionnaire.

Originally we were not sure we would be getting a response. Mr. Levin is Assemblyman Vito Lopez’s chief of staff. Mr. Lopez is viewed as a behind-the-scenes supporter of Atlantic Yards. There was speculation that Mr. Levin might drop out of the race and one reason that could have been a possibility is that remaining in the race would pose difficulties Mr. Levin’s having to take a postion on Atlantic Yards could create awkwardness to the extent it did not comport with Mr. Lopez’s, or forced Mr. Lopez to define his position further. When were not able to get a prompt response from Mr. Levin about his position we contacted Mr. Lopez’s office for Mr. Lopez’s position on Atlantic Yards since the thinking was that Mr. Levin’s postion could be considered to track that of Mr. Lopez. We have not yet heard back from Mr. Lopez’s office. More about Mr. Lopez’s position following this statement from Mr. Levin’s of his own position.

5. Stephen Levin

In 2005, I was working as a community organizer in Bushwick. Therefore, I was not entirely familiar and did not have an official position on the Atlantic Yards project at that time. Since that time, I have developed a position on the Atlantic Yards project. I have many serious concerns about the Ratner plan as it is currently proposed. I especially have concerns regarding the proposed density of the development and the resulting strain that this density will put on the area's infrastructure, e.g. traffic, public transportation, and public school capacity. In addition, I am against the use of eminent domain unless in the case of overriding public benefit resulting from that use*.

(* We must caution that this is the same kind of formulation used by City Council Speaker Christine Quinn who then consistently finds overriding public benefit to justify every proposed and abusive use of eminent domain that has come before the City Council, including Atlantic Yards, the Columbia University expansion and Willets Point.)

I do, however, support the affordability ratio that has been proposed by Mr. Ratner and supported by a number of affordable housing advocacy groups as a very progressive model for affordable housing in the City of New York. In addition, I applaud Mr. Ratner's commitment to prevailing wages for both the construction trades workers and building service workers in this project.

In response to the second part of your question, I see development as a particularly daunting challenge in the 33rd district. Over the past ten years, we have seen a tremendous amount of overdevelopment throughout the City, as well as in the 33rd district. Frequently, this overdevelopment has not been to the benefit of the surrounding community. All too often, luxury condominiums in Brooklyn have been marketed in Manhattan, while leaving longtime community residents out of the process.

I have been very supportive of recent City Planning initiatives to implement contextual rezonings which limit height and density to the context of the surrounding neighborhoods. In particular, I have supported, and worked on, the recent proposed contextual rezoning of 175 blocks in Williamsburg and Greenpoint. In order to preserve the character of our neighborhoods, we need to have future rezonings that reflect the surrounding neighborhoods.

In addition, I support Good Growth Standards for new development throughout the City, and I am in favor of writing a Good Growth Standard into City law. Larger developments should be required to address the consequences of their projects: the need for affordable housing, environmental and infrastructure impacts of the development, and the need for open space and park space, as well as community facilities. In addition, I am supportive of mandating that all large-scale market-rate development include at least 20% affordable units on site in their projects.

We noted the potential relevancy of Assemblyman Vito Lopez’s position on Atlantic Yards given that Mr. Levin is Assemblyman Lopez’s chief of staff. Since Mr. Lopez’s office has not responded to our request for his current postion on Atlantic Yards we will supply the following instead. In the summer of 2007 Vito Lopez worked behind the scenes to create extra special real estate tax benefits for the Atlantic Yards project. Accordingly, this appeared in the Gotham Gazette:

Vito Lopez gets most of his campaign contributions from developers and, interestingly enough, chiropractors. . . . Now it becomes clear that Lopez has been bought by Bruce Ratner's family.

(See: Vito Lopez: Bought By Bruce Ratner?)

Or see DDDB post with extracts from a Daily News Juan Gonzalez column, some of which we supply below:

Bruce Ratner, developer of the $4 billion Atlantic Yards Nets arena and mega-housing project in Brooklyn, is about to get another special, secret, sweetheart deal from our state politicians.

How special is it?

Over the weekend, Vito Lopez, the powerful Brooklyn Democrat who heads the state Assembly's Housing Committee, quietly inserted wording tailored for the Ratner project into a new state property tax exemption bill.

How sweet is the deal?

It's worth at least $100 million in real estate tax exemptions and possibly as much as $170 million for the market-rate condos Ratner plans to build on the site, one housing expert estimates. It also allows Atlantic Yards to charge hundreds of dollars more in rent per month for "affordable" units than any other other developer of similar housing.

(Atlantic Yards gets a deal so sweet it's sick, 6.22.07.)

See also New York Magazine’s Ratner, Lopez Do Business the Old-Fashioned Way
6/22/07.

It also appears that Lopez is in favor of eminent domain abuse specifically to serve big subsidized developers. (See: Thursday, January 24, 2008, In Williamsburg, Vito Lopez wants "real" affordability.)

So in evaluating Mr. Levin’s position on Atlantic Yards the question is to what extent, underlying his exact words he might “share his boss's pro-AY stance” as expressed by Atlantic Yards Report (Monday, September 08, 2008, City term limits, Atlantic Yards, and the question of David Paterson.)

6. Jo Anne Simon

a) The Atlantic Yards proposal brought together some of the poorest concepts in urban planning with troubling public financing mechanisms. Situated in an area that calls for a sensitive treatment, the proposal relied on outdated urban design, over-taxation of existing infrastructures, would worsen an environmental hot spot, and use public financing and eminent domain for private enrichment. I believe the lack of public involvement, transparency, and accountability has been irresponsible. The public benefits Atlantic Yards claims to offer are almost certain to be illusory, and will undoubtedly be even more challenging to achieve in the current fiscal environment. I believe that the Atlantic Yards situation drives home the need for reform of Public Authorities and the exploration of more equitable ways to create affordable housing.

I support development at the Atlantic Yards site that respects and integrates the surrounding neighborhoods; includes a transportation plan that works, affordable housing that meets the community’s needs and involves the public in a substantially meaningful way. To this end, I have been involved in almost every effort to bring about real change to what is happening there. Among other things, I chaired the Boerum Hill Association’s task forces and was instrumental in the creation of the Council of Brooklyn Neighborhoods, the www.brooklynspeaks.net, the Brooklyn Speaks Governance Proposal, and A11395, a bill to create a governance plan for development at the Vanderbilt Yards.

b) Previous Rezonings and approaches to waterfront issues have not gone far enough to achieve the promises made. This will be further complicated in the future by current fiscal woes. I support progressive, sustainable efforts, such as the Brooklyn Greenway Initiative. I signed the Pledge to Uphold Accountable Development because I believe it is important to achieve living wages, balance, transparency and accountability when it comes to development.

We note that CBID has another, earlier questionnaire from Ms. Simon that says essentially the same thing in slightly different words. We asked Ms. Simon about the difference in wording: She said that nothing should be inferred from it; it was just that she didn’t want to repeat herself. (The older form may have been slightly more eloquently worded.)

At the CBID candidates forum on the 23rd we asked Ms. Simon about her identification with the “mend-it-don’t-end-it ” Brooklyn Speaks philosophy of Atlantic Yards. We did so partly because of the Atlantic Yards Report coverage (Thursday, April 23, 2009, Looking at the 33rd district race, AY, and some undercurrents). We followed up with her again at a City Hall press conference (on the 28th) calling for the Dock Street project to be stopped where Pulitzer Prize and National Book Award winning, historian David McCullough spoke. (Other candidates for the 33rd council seat attending that event were: Ken Baer, Ken Diamondstone and Evan Thies.) Ms. Simon said she does not feel that “mend-it-don’t-end-it” is a fair characterization of the Brooklyn Speaks coalition position. We think it is probably pretty good shorthand.

This was our question to Ms. Simon in the forum on the 23rd:

Jo Anne, on Atlantic Yards, you’ve been identified as part of the “mend-it-don’t-end-it” approach. Is that true? And if it is true, why not something stronger like taking the site away from Ratner, dividing it up and proceeding with something like the Pacific Plan or the UNITY plan?

Simon’s response was:

Actually, let me say that is an articulation of my position that isn’t mine. If you may recall, and you may not, but very early on, I was asked to chair the Boreum Hill response to Atlantic Yards and to do so in a way that was consistent with what the board wanted us to look at which was to investigate- (this was in the beginning we didn’t know very much at all really about it- We’d heard a lot of things) We did that. We actually led lots and lots of community forums where we educated the public about being involved and about what they needed to know with regard to traffic and transportation and how to respond to these positions. The Boreum Hill Association took a very strong position a few months later as a result of this investigation, ultimately declaring its very significant concerns with regard to the project and essentially opposing it.

Now, my position is always to work with people. And I know that there are people that I work with on things like Friends of Douglas Green Park (one of the efforts I created) that are signatories of the Community Benefits agreement. I work with people all across the spectrum and I am very respectful of those positions. I was one of those people who really pushed hard to get the Council of Brooklyn Neighborhoods created because I believed that, in fact, we needed more people at the table than less.

I sent an open letter to everybody involved on both sides of this issue in Brooklyn in early 2004 requesting a process where we could all get together to discuss these issues. There was nobody, actually, who wanted to do that, who wanted to get on board and talk with each other. I then was one of the people who helped create- Because there were a lot of people who were involved with CBN [Council of Brooklyn Neighborhoods], or who are still involved with CBN, who created the Brooklyn Speaks effort which was an effort to create space at the table for people to have those conversations. And, indeed those conversations are happening with people across the spectrum, most of whom frankly, do not like this project.

I think there is very little, if anything, which is good about this project and I have been very clear about that. I think that my statement in the questionnaire is very clear. I think that this project suffers from many, many, many fatal flaws. And I don’t know what you mean by “stronger voice” but I have been a very strong voice criticizing this project and, unfortunately, for a variety of reasons, - he had a lot of problems- I spent a good deal of time. Allen can tell you, Fleischman, can tell you, talking to Eliot Spitzer about this and refuting his points one by one with regard to the Atlantic Yards project. So there is nobody that is a more clear voice on Atlantic Yards.

Some observations on the above: While it may be advantageous for politicians to be broadly friendly with a broad spectrum of people, when it comes to being respectful of the positions of those signing the misnamed “Community Benefits Agreement,” we are not. Also, at this point it is senseless to work at dialoging with CBA signatories since the “Community Benefits Agreement” precludes its signers from such dialog, or shifting their positions to act in the best interest of the community. Some of them have no legitimate independently created existence and they are also being secretly funded by the Atlantic Yards developer. (See: Saturday, June 28, 2008, Selling out the Community for Beans (A Giant Wrong) and Thursday, July 24, 2008, Falling Acorn! How Far from the Tree?)

Next, when it comes to Brooklyn Speaks, it is not clear they have gained a place at any table, and if they have, it is not clear how effective their presence is because their “ask” is so much less than it should be. We have written about what their “ask,” at a minimum, should be. They have not incorporated our suggestions. See: Effective Action Needed From Brooklyn Speaks, BHA, etc. Picked up and posted by No Land Grab, March 19, 2008, BrooklynSpeaks.net.

This goes to the heart of the most important question when considering the position of politicians with respect to Atlantic Yards: What effective action will they take to stop it?

At the earlier candidates forum on the 20th, candidate Ken Baer answered the question about what effective action he would take by saying he would go to court. That is not actually a good answer coming from someone running for City Council because the community has already gone to court to fight the project. Further, one does not have to be elected to the City Council to have the tool of going to court in one’s arsenal. The question is what can one do in positions of elected office such as the City Council to effectively stop the project. What can one do that one cannot do as a mere member of the community? Nevertheless, Mr. Baer’s reference to going to court points to a key split in the community: What constitutes effective action to stop the project? Brooklyn Speak’s efforts to gain a seat at the table or the litigation of Develop Develop Don’s Destroy’s coalition of groups with which Mr. Baer was involved?

Clearly, without the litigation, Brooklyn Speaks’ efforts would have been bypassed as a fecklessly disregarded request. On the other hand, the time that has been bought by the litigation has allowed members of the Brooklyn Speaks coalition, particularly the Municipal Art Society, to create forums and opportunities for the public to grow better informed about the horridness of Atlantic Yards. Those forums have also provided an opportunity for the Develop Don’t Destroy groups to reach a wide audience. Without these mainstream forums there is doubt that there would be such unanimity among politicians as to Atlantic Yards being highly objectionable in so many ways. Among the effective things the Municipal Art Society has done in the interregnum created by the litigation is creation of the Atlantic Lots website and public information campaign.
But while the Develop Don’t Destroy coalition and the Municipal Art Society have done much in this time to protest the project and inform the public, the efforts of other members of the Brooklyn Speaks coalition have been relatively lax and far less effective. In this regard, we cannot help noting the opportunity Ms. Simon herself missed to single out Atlantic Yards at the forum on the 20th when asked what was the worst boondoggle project in Brooklyn and what she would do to stop it.

We have spent a lot of time on Ms. Simon’s position but we believe it is important because it points to an critical dividing line in identifying appropriate action and also because Ms. Simon is a frontrunner in the race. The other day when we introduced her as a frontrunner, Ms. Simon admonished us to say “the frontrunner.” Note that at the evening of the 23rd CBID endorsed Ms. Simon.

7. Evan Thies

(a) My personal position has always been to reject the project because of the flawed process that allowed it to move forward with very little government scrutiny, community input, or planning for the adverse impacts it would have on infrastructure, traffic, and the availability of resources. Other development there – that which would be more easily integrated into the surrounding communities – is much more ideal, as the site could be a boon to the local economy and a source of new and much needed investment in affordable housing.

(b) Unfortunately, the current administration has employed a “ready, fire, aim” policy of development, with very little regard or planning for impacts on existing communities and citywide infrastructure. The City has also advanced rezonings that have largely favored luxury development instead of truly affordable development, and only provided housing for low- and middle-income residents when forced to do so. Every neighborhood in the 33rd District could be negatively impacted by such policies in the coming years, and it is especially important that we fight for mandatory and truly affordable housing and a community-based, comprehensive land use process in new rezoning initiatives such as the ones being considered in DUMBO and Boerum Hill. That is why I have advocated for what I call “360 degree planning”—a planning process that would force the City to honestly and totally assess the impact of significant new land use projects. I also support making affordable housing mandatory in projects of a certain size and improving the supervision of developments once they’re improved. To protect communities from bad construction, I have proposed creating “construction hot zones” that would concentrate DOB resources in heavily developing neighborhoods such as those in the 33rd District, and increase fines for bad construction in order to pay for more inspectors on the ground (please see attached memo on DOB reform and 360 degree planning proposals entitled “Evan Thies 2009 Responsible Development Agenda”).

Mr. Thies used to work for Councilman Yassky. There has been speculation as to why Mr. Yassky has not endorsed Mr. Thies, or anyone else yet. (The Brooklyn Paper’s “Politicrasher” pointed out that Mr. Yassky has not endorsed Mr. Thies without pointing out that Mr. Yassky hasn’t endorsed anyone yet.) Thinking has been offered that Assemblyman Lopez, a powerful politician, doesn’t want Yassky to endorse anyone other than Mr. Levin, his chief of staff. People are also wondering whether with the musical chairs resulting from the extension of term limits Mr. Yassky would forego the Comptroller’s race and run again for his old council seat. (Mr. Yassky himself voted for term limits extension, notwithstanding his admission in the chamber at the time of his vote that his constituents were overwhelmingly against it.) As noted, if the term limits extension permits Bloomberg a third term, the opponents of Atlantic Yards, Yassky included, will have a much more strenuous fight on their hands.

We will return in minute to the question of Mr. Thies and possible effective action to stop Atlantic Yards.

Yassky: Current City Councilman

First, here for reference from the same CBID questionnaire is the postion of David Yassky, the current City Councilman for the 33rd. As noted, Mr. Yassky is currently running for the office of Comptroller.

8. David Yassky

I have never supported the Atlantic Yards development as proposed by Forest City Ratner. I have fought to keep the building lower, and urged the City to put in place a traffic mitigation plan. In 2005, I saw the potential for good jobs and economic development but was concerned about the development’s potential effects on our community. I still believe today that there must be a traffic mitigation plan in place, and that the site as currently designed is too large. I believe that the State and City should not invest any further resources into this stalled project and that federal stimulus dollars should absolutely not be used on the project. As City Comptroller, I will make sure to keep a watchful eye on this project as it relates to City funds and contracts.

There is a prevalent sentiment among community activist opponents of Atlantic Yards that early on Yassky did not oppose Atlantic Yards as he should have. That can extend to contradicting Yassky’s statement above that he never supported Atlantic Yards. However, everyone across the entire political spectrum has grown increasingly negative about the Atlantic Yards boondoggle and Yassky has made recent statements to the press that reflect a much stronger opposition to Atlantic Yards than reflected in his questionnaire answer. In a short Brooklyn Review documentary about Atlantic Yards broadcast on BCAT’s Reporter Roundtable Yassky made the following statements (emphasis supplied):

"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?' Now of course we want housing—we want affordable housing—we don't want it on the giant scale that was proposed but we do want housing, and affordable housing. Let's start with that now."

And:

"If they [Forest City Ratner] come in and say no we're not gonna do or we can't do these [MTA] transit improvements, they should lose every single right they have for that project."

And:

"It's time for the Paterson administration to take charge of this project. It's a state approved project, the state government is calling the shots, they at least have the authority to. It's time for them to really get engaged."

(See: Atlantic Yards on BCAT. Councilman Yassky Makes Some Interesting Comments, 2.23.09. and our own Thursday, March 5, 2009, Missing a Leg To Stand On: ESDC Didn’t Consider Developer Profit, the Main Thing Atlantic Yards is About.)

Yassky also speaks out against the project in the newest (short) Atlantic Yards documentary that debuted yesterday: Brooklyn Boondoggle.

“There is one plain truth here," . . . ."The community has never had its say in this project."

(See: Wednesday, May 06, 2009, "Brooklyn Boondoggle": a short film that packs in protest, ambivalence, and AY episodes circa 2008.)

Going back to February 2008, Yassky produced an op-ed style position article for the Gotham Gazette relevant to his run for comptroller. It came out just in time for the annual and influential Brooklyn Heights Association meeting. It criticized the amount of resources being plowed into Atlantic Yards:

We should also eliminate corporate welfare. . . .

Of course, the single biggest example of corporate welfare is the proposed Atlantic Yards development. The Bloomberg administration has agreed to give the project's developer at least $100 million in direct subsidies, plus another $400 million to $500 million in tax breaks. In the current financial climate, this handout is impossible to justify.

(See: Changing the Way the City Does Business, by David Yassky, 25 Feb 2008.)

Two important things to note: 1.) This Yassky statements from the article above preceded the deep nosedive the city’s Wall Street-based economy took in the second half of 2008, and 2.) We believe that the aggregate figures for the subsidies being channeled to Atlantic Yards, while somewhat debatable are grossly undercalculated in those cited figures: Total subsidies clearly exceed a billion and probably substantially exceed $2 billion, depending on exactly how they are calculated. (For starters see: Your 'Net' Loss, by Rich Calder, April 14, 2008.)

We will conclude this Part II with the following. We noted in Part I that we thought that Evan Thies gave the best response to the question about Brooklyn’s biggest boondoggle and what he would do to stop it when he identified Atlantic Yards “because of the sheer size and cost of the project.” It also includes the arena and he noted he is opposed to the wasteful public financing of sports venues like that and the Mets and Yankee stadiums. He said that we should be getting the money back from projects like that to spend on things we really need like affordable housing. And he said another alternative project should be built at the Atlantic yards site that “creates affordable housing at a reasonable size.” Then, in his concluding remarks, Mr. Thies spoke about how the city wastes funds on projects like Atlantic Yards and how now is the time for leaders to come forward who can be effective in City Council. As we said, we’d like to think that means recapturing those Atlantic Yards moneys as Evan spoke of.

Given the forgoing and Mr. Thies’ experience working for Mr. Yassky which we believe puts resources and valuable contacts at his disposal, we are issuing an invitation to Mr. Thies to present effective steps he proposes to stop Atlantic Yards. (Of course, we don’t mean to dissuade other candidates from offering their suggestions too.)

To assist those formulating their suggestions in this regard, we offer the following as a reference on the mechanics of pulling the plug on the project: Friday, December 26, 2008, A New Year’s Revolution List (Starting 2009 Off Clean: Pull the Plug On Atlantic Yards).

Today’s Hearing on Proposed Issuance of $515 Million Additional Yankee and Mets Stadium Tax-exempt Bonds

Here is Noticing New York’s testimony given at today’s hearing on proposed issuance of $515 million additional tax-exempt bonds to finance the Yankee and Mets Stadiums.

Additional observations about the hearing follow afterward.

We would like to have provided lengthier, more thorough testimony. What is provided below is much less than ten minutes of testimony and much closer to three. As it was, there was a question as to whether we would be required to terminate our remarks before completion. We were able to complete oral delivery of the written testimony below which we also handed in.

Noticing New York’s Hearing Testimony

* * * *

January 15, 2009


New York City
Industrial Development Agency
110 William Street
New York, New York 10038


Re: Today’s hearing on proposed issuance of $515 million additional tax-exempt bonds to finance the Yankee and Mets Stadiums.

Dear IDA:

This testimony is presented in the name of Noticing New York, which addresses itself to issues of what is good public policy and planning critical to New York development issues.

Our testimony must, in large part, address the very legitimacy of this hearing.

1. We submit to you that this hearing does not meet met the minimum statutory requirements for validity since the required ten day notice was not actually given.

2. The presupposed purpose of any hearing should be to actually hear, listen to, consider, evaluate and take into account any testimony presented at that hearing, but the fact that the vote on this matter is scheduled for just one day later clearly shows that the IDA has already decided what it wants to do, that this hearing is perfunctory and that there is no intent to actually “hear” or consider what is said here.

3. If this hearing was intended to engender honest evaluation of the cost-benefit of issuing additional bonds, the IDA and Mayor Bloomberg would not be obfuscating and misinforming the public about those costs and benefits. For example, information made available would clearly have specified what possible benefit there might be to issuing additional bonds (we think there is none) rather than conflating this with arguments about the benefit of having already issued the original bonds. For example, the Mayor and the IDA mislead the public to believe that costs would only be borne by the federal government and not by the state and city.

4. We question why the IDA provided such cost-benefit information as it did only at the last possible moment. It is only last night that we were able to learn that the city’s Independent Budget Office’s current estimate that the cost of Yankee Stadium now being picked up by the taxpayers is $854.7 million. For the Mets, the IBO calculated cost to the public is now $371.5 million. But that is without even counting the fact that neither team will be paying property taxes.

5. We don’t understand why the IBO, Mayor Bloomberg or anyone else would exclude real property taxes not being paid to the city as a cost to the public of these projects unless we are talking about the portion of those taxes under PILOT agreement, (the R-TIFC-PILOT agreement) which actually represent fake taxes due to a consciously and illegally contrived overvaluation tax assessment of the Yankee Stadium property. We do not know why anyone would consider buying the proposed additional Yankee Stadium bonds since this manipulated overvaluation makes those bonds taxable (as bonds now outstanding are also likely to be taxable too).

6. Clearly, the IDA’s and the Mayor’s focus in negotiating these transactions has been misplaced as exemplified by the documented pursuit of a luxury suite (plus food) for city officials at exorbitant cost to the public. Relinquishment of the luxury suite has not made those costs go away. If anything the full price paid for by the public has been underestimated.

7. The stadiums have already been built. Issuance of additional bonds will not change this nor whether the baseball teams involved would ever threaten to leave either pretextually or for real. Financing additional luxuries at the stadiums induces no additional public benefit. It is only a way heap more financial benefit on those already flush with benefit. If there is any value to building these things they can and will be built by the teams themselves at their own expense rather than the public. In other words, paid for the old-fashioned way. That is what can and should happen.

8. When we were preparing this testimony the IDA could not inform us, even a day before the hearing, how long we would be afforded to speak. We noted that the federal regulations for hearing on federal tax-exempt private activity bonds require that each speaker be afforded at least ten minutes speaking time. Despite a number of efforts, we could find no one at the IDA to tell us how long we would be permitted to speak.

Attached* is Noticing New York’s most recently published comment on the IDA’s issuance of these bonds. For greater depth, that piece refers and links to other previous commentary.

* (Tuesday, January 13, 2009, Another Lulu: Revisiting the Yankee and Mets Stadium Scams)


Sincerely,


Michael D. D. White

* * * *

Observations on the Hearing

The hearing, scheduled to begin at 10:00 AM, lasted almost three and half hours, ending just before 1:30. It was reasonably well attended.

We observed that, with perhaps only a few oddball exceptions, most of the speakers fell into one of the following categories:

1. Good government organizations and citizens who had scrutinized the relevant issues and were speaking quite universally against the issuance of the additional bonds.

2. Small, little-known groups or organizations that might be characterized to be, in one way or another, on the dole. Often they had fairly incidental connections to the stadiums and surprisingly little obvious reason to have gotten themselves out on a snowy day to testify about giving the stadiums extra money. Research into whether these organizations are receiving money from the city (or, for instance, its school system), from the Mayor’s Fund operated out of City Hall or from Bloomberg, LP would be worthwhile, especially given what was reported about the mayor previously using funding he controls in an arm-twisting fashion to generate favorable testimony for the term limits extension he wanted. (See: Monday, October 20, 2008, “Charity?” We Begin to Groan.)

3. Organizations that had been the object of Yankee organization marketing initiatives, sometimes including some small-scale donations from the Yankees. One observer at the hearing commented how oblivious these groups seemed to how little they were getting compared to what the Yankees are getting. The observer likened it to the image of someone standing blithely on a twenty dollar bill while bending over to pick up a penny.

4. A few local politicians who signed onto the stadium deals (apparently come hell or high water).

5. The dependable construction workers and their relatives in the construction industry. As usual, there sure were a lot of them. They just don’t seem to get it, that when they are uncritically and automatically available for rent as stage props by wealthy people seeking to fleece the taxpayer, their opinions no longer mean anything. We wish they were reading the writings of Gregory A. Butler, a union carpenter who analyzes what kind of sense this doesn’t make. (See: Tuesday, January 06, 2009, Militant union carpenter: unions shouldn't compromise with contractors or support Atlantic Yards.) Not only can bussed-in construction workers routinely be counted upon to support bad public policy that hurts the public; this often means that those construction workers support projects using public resources so poorly that fewer rather than more union jobs are created than might be with alternatives.

Sports Team Rah-Rah

Most of those who spoke in favor of piling additional money on the stadium owners spoke in a very rah-rah superficial fashion. It was on the order of letting us know that if the Yankees are playing a game they are out there rooting for them because the Yankees are the home team that they always root for. This seemed to translate seamlessly into thinking that if the Yankees are playing a game of tax loopholes, they are rooting for them to win that game as well even if it means the public loses. Some of it was oxymoronic. One speaker praised the Yankees for being so loyal to the Bronx that they never left, but argued that we need to give them money or else they might, in fact, leave.

Some Better Testimony

On the logical, thoughtful side there was some good testimony opposing the issuance of the bonds. Without meaning to slight anyone not mentioned (we were not in the room continuosly), we recommend the following available (or coming) on the Good Jobs New York web site:

1. The testimony of Good Jobs New York with their most recent analysis of the figures. Current documentation shows that only perhaps 57 additional permanent jobs are being created by the $854.7 million in public subsidy (exclusive of the real property taxes not being paid) that the IDA seeks to direct to Yankee Stadium. There are also part-time jobs like ticket sellers and takers for the relatively few days a year the stadium is used.

2. The testimony of Dan Steinberg, a doctoral student in urban planning at Columbia University, who has worked as a researcher at Good Jobs New York and an aide to Liz Krueger. This testimony among other things focuses on the “covert legislative maneuver” that was sued to “seize parkland without a hearing or without notifying the local community board.”

3. Testimony consisting of a letter from Sustainable South Bronx that was signed onto by a score of other like-minded community organizations

Representative of the Community?

Not necessarily in the category of any of the above, we thought the following was interesting. One speaker got up to announce that she was the Chairman of the Bronx Community Board 4 and that she supported the issuance of the additional bonds without even noting that she was only there to so testify by virtue of Bronx Borough President, Adolfo Carrión Jr.’s wholesale purge from Community Board 4 of those citizens, (including its chairman- and some individuals at the hearing) who had previously voted against the stadium’s financing. Out of the 19 members whose terms were up, only five were allowed to remain. (See: Markowitz to Purge Community Board 6 over Atlantic Yards Votes, by Phil DePaolo, May 21, 2007.) Mr. Carrión said:

"My very clear expectation is that these appointees are there to carry out a vision for the borough president and the leadership of this borough, and that's simply what I expect," -Adolfo Carrion, NEW YORK DAILY NEWS June 21 2006

Mr. Carrión’s carrying out of his vision apparently did not extend to an effectively negotiated community benefits agreement actually delivering benefits in a timely manner. See: Stadium Goes Up, but Bronx Still Seeks Benefits, by Timothy Williams, January 7, 2008 and Time and Cost Rise for Yankee Stadium Parks, by Timothy Williams, May 25, 2008. (This, of course, we should note, raises concerns about how suitably qualified Mr. Carrión is as Mr. Obama’s pick to head the newly created White House Office of Urban Policy. (See: New Yorkers, Real or Nearly So, Taking On New Positions in Washington, by Sam Roberts, December 21, 2008)

In fact, we note the testimony at the hearing that it was only just a month ago, in December, that efforts got underway to fulfill community benefits agreement obligations. That is when, according to testimony given at the hearing, that Yankees President Randy Levine and Brian Smith first met with those drafted to represent the community to oversee distribution of community benefit funds and Yankee tickets. When those efforts were finally launched, it should probably have been considered a sign that this new request for additional funds was in the works. (That plus the mayor running around misinforming that the stadium give-aways were costless to the local public: (Wednesday, December 17, 2008, Who Gets Clipped? Bloomberg Radio Clip on Stadium Financing and Monday, December 15, 2008, Stadium Finance: Mayor, Professing to Know Numbers, Should Know He Can’t Have It Both Ways (Unless He’s Keeping Two Sets of Books))

The Times Editorial Page Weighs In

We were somewhat startled to see the Times editorial page weigh in today on the issue of the vote scheduled for this Friday. The Times has called for any vote on the issue to be postponed. (See: Editorial: Whatever Yankees Want.) We are not used to the Times editorial page venturing a responsible lead on these kinds of city issues, but here they do. This then seems to fall into the category of the Times having to call for good behavior from Mayor Bloomberg, after having already unleashed him with their ill-considered term limits extension endorsement editorials, something we have written about before. (See: Saturday, November 15, 2008, The Mayor, The Times’ Timing, and a Proper Ordering.)

The Yankees promise over 6,000 construction jobs. But once their new house is built, there could be as few as 22 full-time, year-round positions.

What makes this latest request feel like “icing on the cake,” as Assemblyman Richard Brodsky puts it, is that the rest of the city is staring at such hard times and a looming $1.5 billion budget deficit.

Mayor Bloomberg has — rightly — had to cut city budgets and increase property taxes and explain to residents how times are bad and how we all will have to share the pain. It is time for Mr. Bloomberg to make that same pitch to the Yankees.

Now all we need is for the Times to get similarly responsible on a bunch of other city development issues. The first priority for their next move? They should take up the issues that affect Forest City Ratner, their real estate partner: the Atlantic Yards megadevelopment.