At the City Planning Commission Hearings on Proposed Dock Street Project: A Reprise

(Click on any image to enlarge.)

At last week’s City Planning Commission hearings we reprised our Noticing New York testimony on the proposed Dock Street project that would put a building of substantial height and bulk next to the Brooklyn Bridge in the Brooklyn neighborhood of DUMBO. Previously we testified on the subject at the hearing Marty Markowitz held as Brooklyn Borough President. (See: Wednesday, February 4, 2009, Reject the “Bundle” Bungle: Saying “No” to Walentas Dock Street Project Next to the Brooklyn Bridge.)

Our Reprise

Our testimony this time was essentially the same as last time, confining itself to the error of bundling approval of the project with the community’s opportunity to get a new school. This time, however, we had the opportunity to also attach to our handed-in written statement, a copy of our above referenced post which, not being subject to the three-minute oral testimony limit, provided additional analysis about how the Brooklyn Bridge should be revered as special while the Dock Street developer should not be made special, and made the case that the Brooklyn Heights Association’s opinion that a new school should go elsewhere is probably correct.

Others Reprise

Others also similarly reprised their testimony. Testimony in opposition to the project predominated.

The key new element in play at this Wednesday, March 4 hearing was that the preceding week at the Brooklyn Heights Association’s annual meeting, held Thursday, February 26, the Brooklyn Borough President revealed his recommendation for a proposed compromise. His suggestion was for a taller, skinnier tower which he said would “reduce 57 percent of its girth.” (See: Marty: Yes on Dock Street (sort of), By Ben Muessig, The Brooklyn Paper.)


We wondered whether Markowitz’s “compromise” was an example of what we see as the increasingly ubiquitous politicians’ dance, with politicians inevitably providing support for special projects but only after there has been a reduction from what a developer has requested. Accordingly, these dances always seems to be initiated with developers requesting more than they reasonably expect, sometimes with conspicuously awful proposals up front that allows the politicians to heroically claim credit for forcing a subsequent cut-back.

We wondered about this all the more because at the Brooklyn Heights Association meeting Borough President Markowitz specifically said that his approval had not been influenced by the proposed inclusion of a new middle school, which he said had to stand alone as a separate decision he couldn’t comment upon. He thereby directly addressed our Noticing New York testimony given at the hearing he held. But if he was not being influenced by the school’s inclusion, why was he now favoring a project that was otherwise so substantially similar to a prior edition of that project which he had rejected?


(Building rejected in 2004.)

There was a certain element of suspense to the hearings because the borough president’s proposed compromise had been released such a short time before the commission’s hearing. Our suspicion that this was a political Kabuki dance was challenged (though perhaps not refuted) by the negative reactions it received. The Brooklyn Paper observed that the proposed compromise united everyone, developer included, in opposition. (See: March 5, 2009, Marty’s taller Dock Street tower unites everyone — against it, By Ben Muessig, The Brooklyn Paper.) It may have generated negative reactions, but by proposing a compromise the borough president did something less than oppose the project outright.

Others Testifying


We were pleased to see that City Councilman (and candidate for Mayor) Tony Avella testified eloquently against the project and the travesty of obliterating views of the bridge. You can expect Mr. Avella to be dependably on the right side in so many issue like this.


City Councilman (and candidate for Comptroller) David Yassky also testified against the project mentioning that there were better places to put the proposed school.

Models and Renderings (& the Battle Between Them)


(Jed Walentas of Two Trees Management showing the CPC commissioners the developer’s model of the project.)

A model of the project in the DUMBO neighborhood brought to the hearing by the developer was discussed, as were renderings brought by representatives of the DUMBO neighborhood Association (see the rendering behind Mr. Yassky in the photo where he is testifying). The question arose as to whether they showed the same thing and specifically whether the renderings provided by the DUMBO Neighborhood Association were fair. We think they were fair based on photos we took of the developer’s model that essentially duplicated the DNA renderings. We refer you to the picture of the model at the beginning of this post as it compares to the rendering behind Mr. Yassky. We could not precisely duplicate the image because we could not get the camera to a postion as low as the level of pedestrian walkway and could not get the lens of the camera as close to the model of the proposed project as a person standing on the walkway would be. If we had been able to, the new proposed structure would loom larger in the photograph with more stories below the rooftop being visible. When we were taking pictures of the model, a representative of the developer was suggesting that how many floors of the building can be counted is important.


Raising our camera up it was clear that the new building was blocking views of the same Manhattan Bridge tower and buildings as shown in the before-and-after DNA renderings.


The Argument in Context: It’s About Seeing the Bridge

The community’s argument is that they want to continue to be able to see the Brooklyn Bridge and to see a sweep of historic Brooklyn from the bridge. The suggestion is that there should be preservation of a bowl-shaped view such as now exists with low buildings close to the bridge and taller buildings farther away. The developer’s arguments dispense with these desires and argue that his new building should be considered a contextual addition to the historic neighborhood if it is of comparable height to buildings which, because they are substantially farther away, do not crowd the bridge.

Predicting the Outcome: Some Indicators Including Strange Coincidences

Can the outcome be predicted? On one side, opposing the project you have Pulitzer Prize and National Book Award winning, historian David McCullough, author of The Great Bridge: The Epic Story of the Building of the Brooklyn Bridge, standing together with virtually every recognized neighborhood and historic organization from the national level on down to the local level. The only exception is that the Pratt Institute did not take the postion in opposition to this project that one would normally be expect them to take.

The project’s opposition explained away the anomalous Pratt postion, pointing out that: 1.) David C. Walentas ownern of Two Trees Management Co., LLC, who is developing the project with his son Jed, is on the board at Pratt, and 2.) Mr. Walentas has donated money to Pratt. (It makes a lot of sense for Mr. Walentas to be on the board at Pratt. We have said before that the Walentases are, this proposal notwithstanding, good developers.)

There are few icons like the Brooklyn Bridge, and the alliance of luminaries like McCullough and all the heavy-hitting premier historic organizations should, under normal circumstances, predict success for the opposition. On the other hand, there are some competing indicators. When it comes to politics a good guiding axiom is that “there are no such things as coincidences.” Maybe coincidences do exist, but in politics you are better off assuming that anything that looks like a coincidence is not.

The following coincidences are therefore unnerving. The School Construction Authority until recently used to say that the neighborhood did not need a new middle school. Now the School Construction Authority has suddenly backed the idea that there should be a new school in precisely this spot and precisely in this building. Next, testimony at the hearing by Historic Districts Council President Paul Graziano made clear, with the use of a map, that while there is a confluence of designated landmarks and historic districts where the project is proposed to go, there is also an ominous hole in their contiguity that surrounds the project site. Creating such an absence of historic designation takes a certain amount of political artistry.

The hole is even more apparent when you remember that the Brooklyn Bridge is itself an individual landmark and that the presence of the new Brooklyn Bridge Park means that the historic landmarks and districts where they otherwise don’t continue abut parkland.


(Green above shows park areas.)

We have previously pointed out how this kind of gerrymandering by the Landmarks Preservation Commission should be regarded as jigsaw piece clues to political deals. The last time we wrote about this was about the failure to preserve the Ward Bakery and its block being cleared for Atlantic Yards. (See: Wednesday, October 29, 2008, Puzzle Pieces: Proposed Prospect Heights Historic District, LPC Public Hearing.)

It is not easy to get the School Construction Authority to specially designate developers’ projects or the Landmarks Preservation Commission to create special holes in the weave of historic designation fabrics. You can expect these things to come from the mayor. And if you have any doubt about this ominous likelihood, we have already pointed out that City Council Speaker Quinn, the mayor’s close ally on development issues, has already tipped her hand (the mayor’s hand) by making “glowing comments” about the Dock Street project. (See: our Monday, February 23, 2009, Un-funny Valentines Arriving Late: Your Community Interests at Heart and Brownstoners’ February 12, 2009, Speaker Quinn Bears Bad News for Real Estate Crowd.)


So, predictions anyone? David McCullough and the powers of light and enlightenment on one side and some interesting political “coincidences” on the other.

(Picture from Save the Brooklyn Bridge.)

Hearing the Coney Island Narrative

(Carol Hill Albert, owner of the evicted Astroland that also used to run the city’s Cyclone roller coaster, testifying at last week’s hearing.)

We return now to the subject of last week’s hearing, held by Brooklyn Community Board 13, on the city’s proposal to shrink the Coney Island amusement area. Our Noticing New York testimony delivered at the hearing is available at: Our Noticing New York Testimony at Yesterday’s Community Board Hearing on City’s Proposed Coney Island Rezoning (Wednesday, March 4, 2009). Our prior testimony at the city’s Economic Development Corporation hearing held June 24, 2008 is also available at: Hearing on Proposed Coney Island Development (Friday, July 18, 2008).

Mayor Michael Bloomberg’s other legacies may yet be scarce, but it seems he is intent on presiding over the dismantling of Coney Island to enforce the complete and total demise of the 150-year-old amusement park, something no politician or city official has heretofore been able to achieve, going back to Robert Moses’ destructive antipathy in the 1940s.

It has been widely commented by the Municipal Art Society and many others that the city’s proposal to shrink the Coney Island amusement area down to a nominal 9 acres is, for all practical purposes, a proposal to shrink the historic amusement area out of existence altogether. The proposed 9 shrunken acres is about a third the minimum size you would expect for a true and viable amusement area and far below any comparable amusement area existing elsewhere in the world. Such flea-speck amusement acreage for our greatest of cities could hardly accommodate cramming in just a few flea circuses as the central attractions. And flea circuses wouldn’t stand a chance: The Bloomberg administration would soon have them converted to flea markets and on their way to being a common mall. It is with good reason that people assert that a “malling over” of Coney is what the Bloomberg administration desires for Coney in its heart of hearts.

One thing that struck us at the hearing was the failure of a clear narrative to emerge. We wondered why. The hearing lasted from 6:00 PM until about 10:30. Usually at hearings fairly strong story lines present themselves, often along dichotomus lines, a developer’s story countered by the community’s. Here are some reasons we think the emerging narrative was not as clear as we think it ought to be.

1. Three (At Least Three) Competing Visions of Coney with Confusion About Which Are Very Similar or Different. Unlike most development battles where there are two principal visions competing to assert themselves, the developers’ and the community’s, in this case there are nominally at least three. That is the way the New York Times presented things in a recent major account providing an overview of current events: City and Developer Spar Over Coney Island Visions, by Charles V. Bagli, February 16, 2009. According to the Times story, a city vision not according with the developer’s vision was included in the mix to create three points of view. The headline selected for this article even made it seem that the two most important visions competing were, in fact, the developer’s and the city’s. However, the prominent caption for the picture that conspicuously began the story (“The city’s plan for a 9.4-acre amusement district. The Municipal Art Society wants it much bigger. A developer wants time-share hotels and big retailers.”) made it clear that there is actually a third vision promoted by the Municipal Art Society, and that the most important tension is between the developer’s vision of a rezoned commercial area and MAS’s desire to keep sufficient acreage zoned and set aside for amusements.

From the Times article one would likely have concluded that the developer was at one end of the spectrum with MAS was at the other, while the city’s proposal was very temptingly, for those inclined to “split the baby,” more or less in the middle. Not so. The city’s proposal is near enough to the developer’s so that it ought to be thought of as essentially the same. Even if the city’s proposal differs, it becomes a way station to the same result by virtue of its unworkability. Furthermore, it immediately rewards the developer/speculator for destroying amusements and refusing to plan, comply or invest in accordance with the zoning intended to preserve the area for amusement.

The city’s proposal is closer to the developer’s in other ways too, but the critical gulf in proposed amusement acreage makes the city proposal, quite different from the MAS’s, notwithstanding a New York Times editorial that says about the city and MAS proposals: “The surprise here is that the two plans are not drastically far apart.” (See: Editorial: Minding Coney Island, February 3, 2009.) That editorial urges that the city not continue to plan for the building of a “row of four hotels” that would “become a wall, blocking public access to” and squeezing the amusement area “into a narrow strip” . . . “that is simply too small to attract enough rides and attractions to bring back the big crowds.” We have written about a number of New York Times the horse-is-already- out-of-the-barn editorials that have, after the Times’ endorsement of his third-term-maneuvering, belatedly attempted to rein Bloomberg back into good behavior. (See: Saturday, November 15, 2008, The Mayor, The Times’ Timing, and a Proper Ordering.) We should probably add this editorial to that list which included other instances of serious city development concerns.

We are inclined to say that the Coney Island community wants to preserve Coney Island as an iconic amusement area that capitalizes on its unique historic characteristics and that the community therefore is aligned behind the hope offered by the Municipal Art Society’s vision. We would like to say so ringingly and without qualification. The reasons we can’t will be obvious as we discuss other reasons (listed below) we suppose why the emerging narrative lacks some of the clarity it should have.

2. Candidate Community Voices from Which a Narratives Might Emerge: The Unusually Difficult Challenge of Having A Community Voice That Is Split Three Ways (At Least Three). The local Coney Island community is a split one. When we think of the Coney Island name we probably associate it first with amusements, and associated with those amusements is an amusement area community that goes back more than a hundred years. That is the community that has historically been associated with the commerce of the area. But starting in the 1940s, amusements cleared out of the area were replaced by Robert Moses with low-, moderate- and middle-income housing. While there is one private, gated neighborhood in the community, Seagate, a fairly substantial portion of the overall residential community has incomes at the lower end of the spectrum and a fairly low level of retail is supported. While the Coney Island amusement community supports amusements, much of the lower-income residential community focuses first on things they hope will address the hardships of being low-income; job creation, affordable housing and social services. Noticing New York has commented before on what might be best in terms of providing additional housing in the area and it needn’t involve a contraction of the amusement areas. (See: Monday, November 17, 2008, The Coney Island Crowd: Plans Unveiled Tonight.) Similarly, the community’s desire for jobs is likely best satisfied and consistent with maintaining a large viable amusement area.

There is a third community voice that needs to be listened to. In one regard this is why the Municipal Art Society is so important. Coney Island is a resource that doesn’t belong solely to the local community. Like Central Park or Prospect Park, the spectacular beach and its associated amusement area belongs to all city residents. The other residents of the city constitute the third community voice that needs to be listened to. There is a land use doctrine pertaining to waterfront and public waterways. They belong to all the public and the public shouldn’t be shut out by the assertion of intervening claims of private ownership that place the beach and waterfront inaccessibly behind walls. Through substantial public investment, Coney Island is spectacularly well endowed with extraordinary subway lines that make the area accessible to the entire city. The history of Coney Island is there for all New Yorkers to embrace and honor.

3. Community Members Negotiating With the City Who Need to Speak Their Mind. Members of the community testifying included a fair number of individuals who are extraordinarily dependent upon negotiations they are engaged in with the city. They are negotiating with the very same city officials responsible for proposing the city plan. We noted individuals who “officially” endorsed the city plan, but then were widely applauded for speaking in more abstract terms about how the amusement area should be maximized.

4. Community Members Negotiating With the Developer Who Need to Speak Their Mind. Many members of the community will likely remain members of the amusement community only if they can negotiate to successfully renew leases for their businesses with the developer/land speculator. The developer/spectator has a history of requiring confidentiality clauses in its leases prohibiting hos tenants from publicly commenting on the developers development of Coney. Do we expect these individuals to show up to testify and how readily can these individuals speak their minds?

5. City Recently Altered Its Plan Abruptly. The current city plan is not the plan the city was previously promoting. The previous plan had much more in common with the current Municipal Art Society plan. The old city plan was supported by significant knowledgeable community leaders like Dick Zigan, who do not support the new city plan. The abrupt change meant that the Municipal Art Society didn’t participate in early discussions to promote better alternatives. As we were arriving at the hearing it was commented to us by another community member how late MAS had shown up if they wanted to be effective. But MAS did show up immediately, without delay, as soon as they were actually needed, which was not until the city radically altered its plan.

6. Misimpression “Zoning” Equals Development. An urban planner was sitting by me at the hearing. After the umpteenth time a low-income community member got up to say that the city plan needed to be approved because the neighborhood needed the hotels, housing and amusements envisioned in the city plan, the planner said to me, “Don’t they understand a zoning change is not investment? You don’t magically zone something into existence. Don’t they understand that, in this economy, no money is going to be invested for years and the land will still be vacant?” Indeed, the irony is that this challenging economy would be hospitable to the continuation of the kind of amusements that for years have been at Coney Island, providing a certain level of employment and economic activity. Absent developer speculation, current economic conditions would probably even be hospitable to moderate growth of such amusement fare at Coney. Rewarding developer speculation with a rezoning will only convert active amusement areas that now provide jobs into land that lies fallow for the duration of the downturn. And while you can’t zone something into existence (particularly in this economy) you certainly can zone something out of existence. (See: Crain’s March 09, 2009, Doubts mount over city's Coney Island plan, Opponents find multiple failings with the long-awaited plan, even as people on all sides of the issue fear that nothing will get built.)

7. Misimpression That Shrinking the Amusement Area Gives the City New Powers to Require Amusement Area Acres To Be Amusement. It is astounding that the city is simultaneously selling the idea that it will be able to force the owners of amusement area acreage to use those acres for amusement fare if the amusement area is made smaller while asserting that it can’t have such possible control over the owners of amusement acreage if it is not so reduced. What is the theoretical basis of these now-you-see-it/now-you-don’t city official powers? And yet, we note that some members of the press have reported the city’s version of how it has these abracadabra powers as if it were actually true. That is one reason the press is having problems constructing a reasonable version of the narrative to explain things to the public. The fact is, as we testified, that if the amusement acreage is reduced you have more problems, rather than fewer. With a shrunken amusement area the economics now work harder against the owners of the remaining amusement acres. And at the same time they will be more enticed to think that the sweep of rezoning will continue and that their acres will follow suit with those that have been converted to nonamusement use before.

8. Appropriation of Terms. In order to have a clear debate that defines issues it is necessary to have a common language to speak it in. In the case of Coney Island, the city interferes with such clarity by appropriating the terminology its opposition is using, distorting it to mean something else. The traditional Coney Island amusement community speaks of preserving Coney Island as an “iconic,” “edgy” and unique amusement park. City officials, whose interest in preservation is scant and who want to severely shrink the amusement acreage while probably dispossessing and replacing most of the existing amusement industry community, adopt exactly the same terminology, saying that they too want “iconic”and “edgy.” They want “edgy”?

The most recent example of the city confusing the debate is its response to the Municipal Art Society’s publicized analysis that there should be at least “27 acres” of amusement area, instead of the city’s planned-for 9, in order for amusements to work. (Note that is a minimum.) Without altering its plan at all to respond in earnest to the MAS’s analysis, the city simply started talking about how their plan provided “27 acres” of amusement area. They did this by simply altering their own method of calculating amusement park acreage to include acreage, such as the Coney Island Aquarium, that was not previously considered amusement park.

Including the aquarium as amusement park acreage is cruel in its insensitivity. The aquarium project, where Dreamland once stood, is more often noted for the fact that it is where Robert Moses, who was hostile to Coney, reduced the available acreage for more traditional amusements, demolishing more amusements than was actually needed to build the aquarium.

9. Feints and Misleads. There are things that, as likely intended, confuse the narrative. Coney Island developer/speculator Joe Sitt (Thor Equities), in a down economy, raises rents when other real estate owners in the economy are lowering their rents. Sitt also publicizes the fact that in the same down economy he is offering to buy more property in the area at a price substantially above its actual worth. Since he will probably never actually buy that land we will discount these announcements as tactics. Also, while the city is shutting down Coney, nobody apparently wants to be blamed for its destruction. That means that the city is doing things like moving to protect the Astroland Rocket and talking about finding the evicted Astroland a new home, but these actions are difficult to accept at face value. It is probably more meaningful to observe that the city has proposed to evict world-famous Nathan’s, one of the businesses that is still providing a strong anchor and identity for the amusement area, including its annual well-publicized hot dog eating contests.

10. An Alliterative Drama, the Sitt vs City “Fight”: Does it Aid In Understanding or Distract? Drama readily catches our attention but in the case of the well-publicized animosity between the city and Coney Island developer/speculator Joe Sitt (Thor Equities) does attention to that drama really help clarify the narrative? What difference does it make if, in the end, the city plan is similar to Sitt’s and rewards Sitt for his attacks on amusements designed to shrink the amusement area? And what does difference does it make if the city has already once, in an abrupt and secretive maneuver, altered its plans to make its plans much more like Sitt’s? Besides, Sitt is always, before things conclude, in a position to sell out his position to someone who isn’t “having a fight with the city.”

11. Job Wanted? We heard at least one young fellow testifying in favor of the city plan who sounded like he was motivated in part by the hope the city would hire him to work on the amusements it might build. While the Municipal Art Society is presenting an alternative better vision is it not within their mission to similarly hire people to implement it.

12. Construction Union Testimony. During the hearing we heard the construction worker testimony you usually hear at hearings for major projects these days and which we have come to regard as meaningless. Construction unions send their members to testify whenever union work is promised, no matter how remote the prospects are. Those testifying don’t weigh the benefits of such projects to the public though they often perfunctorily profess to do so. For the unions, everything automatically hinges on the promise of union involvement. Furthermore, by definition, the union focus is on the short-term on the construction phase not on long-term jobs or long-term community benefit. Construction workers are happy enough with any project where there is work for them. That could even be a churn, tearing down something of value to rebuild something not much different. In trying to discern a clear narrative, most of what they say can be dismissed as static. They often speak in terms of providing jobs to people who are never given jobs.

13. Coney Island History Needs To Be Remembered and Is Not A Sound Bite. Part of the problem with the Coney Island story that needs to be told is that it is a story involving history needing to be remembered. It is an extended story line as opposed to a sound bite. Before people dismiss Coney as hopelessly run down, they need to know that Coney has been under attack from destructive real estate developers for decades, going back to the days of Robert Moses so that what you see is not the result of a inevitable natural decline. What you actually see is resilience in the face of attack. Our own testimony refers to the destruction of viable amusements as an attempt to force a zoning change dates back to 1966 when Fred Trump destroyed Steeplechase Park for exactly this reason.

We are old enough to remember having ridden the horses of Steeplechase Park. Many are not. And even though we remember Steeplechase Park, we need to read about the real estate machinations that put Steeplechase Park asunder because we were too young to have understood what was happening back then. People should know about the battles that were won and should be honored. Going back to the 1950s battles have been fought and won to keep the amusement area from shrinking further, but they haven’t been fully honored. Who will remain to recount relevant history as the winners of those battles themselves become history or are evicted from the amusement area? Those who don’t remember the past are condemned to repeat it. In 1979 the city purchased the former Steeplechase Park site in order that it would remain amusement just as it is now proposed that the city should now buy Coney Island property to preserve its amusement use. The end result of the city’s 1979 purchase is that the land is NOT now used for amusement and the city’s handling of the property probably did more to frustrate the return of amusements than to facilitate it.

14. Lack of Clear Consensus on Some Real Estate Ownership Questions. Some of this is technical but there is a lack of consensus on some questions of real estate ownership and control. As noted above, city ownership of acreage intended to be amusement is not always a salvation. Ownership offers opportunity for greater control but this comes in all sorts of gradations with all sorts of fee ownership and leaseholds variations being possible. The Brooklyn Paper advocates against city ownership of land, feeling that zoning and regulation would be preferable because it would be less expensive. On the other hand, the Municipal Art Society is inclined to hope that amusement areas will be acquired and owned by the city.

The next question is how the city acquires the property. While Noticing New York is almost never in favor of eminent domain we feel it is appropriate here since it is essentially a public park. It is far more appropriate than almost anywhere else eminent domain is being used in New York these days. The city previously seemed highly reluctant to use eminent domain against someone in the big-developer club. (See: Wednesday, November 5, 2008, Coney Island Plan Might Need to Seize Land, by Rich Calder, March 9, 2009.) Clearly there are questions about what use of eminent domain would be appropriate and fair. Developer/Speculator Sitt has created bright by destroying amusements, but it would not be fair to use eminent domain against the family that owns Deno’s Wonder Wheel. That family landmarked the Wonder Wheel to preserve it and they have been vigilant in preserving amusement in the area and complying with the zoning.

15. Confusion as to Urgency Tied in with Conjectured Wagers about Politicians. It is generally good legal advice not to trust someone with whom you are negotiating who wants to rush you as you make your decision. Both the city and developer Joe Sitt are promulgating a mythical sense of urgency that Coney must be rezoned without delay or further reflection. Why? What is going to happen in this economic environment? Sitt seems to offer his own destruction of amusements as a reason for urgency. The city was peddling the notion that the community needed to consummate a deal while the Bloomberg administration was still in office because a subsequent mayoral administration would be more on the side of Mr. Sitt and less on the community’s. Mayoral candidate Anthony Weiner and City Councilman Domenic M. Recchia, Jr. were held up as a special bogeymen in this regard. That was before Bloomberg procured an extension of term limits to run for a third term. It also unleashed Recchia to run for a third term. Now the city says the community must act fast because the city’s hands are tied in dealing with Sitt until there is a rezoning. Really now?

16. Cute Kids Testifying. There were some extremely personable youngsters who testified at the hearings to great applause from everyone, including those in the amusement park community. The kids had apparently worked hard on their essays in school and the amusement park community applauded them even if a number of them seemed to have gotten off track, probably influenced by misappropriated and misrepresented themes promulgated by the city. These kids are talented. Someone should give them more reliable information about what the city is up to in their community.

17. Messages from the Press Telling Us What the Story Is. Coming up with a clear narrative is a challenge for everyone. We don’t think that press has yet sorted through what it needs to do to zero in on a clear story of what is going on at Coney. To a large extent the press has bought some of the misleads that have been put out by the city. Until the press gets the story straight it will be sending out messages from the sidelines that add to the confusion. We thought this was particularly evident when we watched a number our best reporters covering Brooklyn talk about Coney Island recently on Reporter Roundtable. (See: Episode 219 which is currently the most recent.)

18. Serious Thought About Amusement. You know that right-brain/left-brain stuff? It occurs to us that understanding the Coney Island is a challenge that involves using different parts of the brain all at the same time. It involves thinking seriously about amusements. It involves a lot of left brain, logical, sequential, rational and analytical and objective thinking about what it takes to just have fun, which is an intuitive art and essentially subjective, random and right-brain. The good news is that right-brain people can be brilliant at telling stories and therefore at coming up with resonant narratives.

Where to Go For A Narrative?

So what is the true narrative about what is happening in Coney Island and where should one go to find it? We think the Bloomberg administration is happily (or haplessly) presiding over the destruction of the Coney Island amusement area after having unleashed and failed to manage a destructive speculative wave of real estate ownership changes. It unleashed those changes when, it announced in 2003 that Mayor Michael Bloomberg had an interest in “revitalizing” Coney Island as a possible site for the 2012 Olympics. The result? Under the auspices of Bloomberg, what was once the largest amusement area in the United States is now coming to naught.

At the hearing we were particularly impressed with the testimony of Charles Denson, who is the author of Coney Island Lost and Found and the Executive Director of the Coney Island History Project. Beforehand we also found ourselves referring to Coney Island Lost and Found when we prepared the portion of our testimony about Fred Trump’s unnecessary and unproductive destruction of Steeplechase Park when he attempted to force the city to rezone amusement acreage by destroying the park.

The bones, blood and flesh of a good, clear narrative are available. The Coney Island amusement area community is posting their testimony on line and there is value in reading what is being said. See: The Coney Island Message Board posts.)

Those are our thoughts for now. We wait with interest to see how these thought may be taken into account in the narrative the community is building.

Before We Leave: A Breaking News Update

Before we conclude this post we will report some breaking news. The land use committee of Community Board 13 will consider the Coney plans tonight. It may or may not make modifications to a multiplicity of recommendations its land use committee reportedly adopted Monday night. While starting with the city’s plan, those recommendations apparently back developer/speculator Joe Sitt’s plan in a number of ways. That includes an opposition to the use of eminent domain and allowing big box retail. It should be noted that Sitt’s Thor Equities has been politically busy recently, including spending a lot on lobbying (See post #17 on the Coney Message Board for a list of an aggregated $246,359 in lobbying figures.)

Other recommendations are consistent with recommendations of the amusement area community and the Municipal Art Society, including that proposed hotels should be moved north of Surf Avenue so as not to crowd amusement areas and that the historic Shore Hotel should be preserved. It is not presently clear what the board’s verdict will be on shrinking or keeping the size of the amusement area viable. (See post #21 on the Coney Message Board and reporting on other recommendations, March 10, 2009 Coney Island CB13 panel backs — and bucks — the mayor on Coney rezoney, by Mike McLaughlin, The Brooklyn Paper.)

(Below, some our ancestor relatives visiting Coney Island more than a few years ago.- A reminder that the Coney Island amusement area is 150 years old.)

The Answer to Our Question About NYC Density Destiny Is National News

(Image above from the print edition of Newsweek- click to enlarge.)

Noticing New York has been posing the question whether New York City is becoming too dense. (See: Thursday, December 11, 2008, Is NYC Becoming Too Dense? Who’s to Say?) We have also pointed out that eminent domain is being used to achieve levels of density that are greater than what was actually anticipated and achievable when the city’s zoning code provisions establishing controls over the level of density were put in place. In essence, the shoe-horning in of extra density through the use of eminent domain abruptly overrides those original expectations. (See: Sunday, January 11, 2009, Eminent Domain Is Density.)

Bloomberg’s Answer to Our Density Question

Now it seems that our question respecting whether “NYC Becoming Too Dense” has been answered by none other than Mayor Bloomberg himself. The answer is “Yes,” and it turns out that answer is national news.

To deal with escalating levels of congestion Bloomberg is planning to close down large portions of Broadway to vehicular traffic. Not only is this being reported in the city’s national paper, the New York Times, (In New York, Broadway as Great Walk Way, by William Neuman, Published: February 26, 2009); it has also made national news as a two-page spread in Newsweek (Where the Neon Lights Are Bright—And Drivers Are No Longer Welcome: Under Mayor Bloomberg, New York City is embracing a controversial theory: closing down streets can reduce traffic jams, by Nick Summers, Feb 27, 2009.)

(Graphic from the new York Times below)


Herald Square and Times Square, The Pedestrian Environment. Bloomberg Echos Noticing New York

Not surprisingly, the measures being undertaken are in large part an effort is to deal with the high levels of density in areas we have written about, Herald Square and, where eminent domain recently squeezed in extra density, Times Square. The Times’ writes:

Vehicles would be barred entirely from Broadway at public plazas in Times Square and Herald Square, and would share the thoroughfare with a bike lane and a promenade along the rest of the stretch from 59th Street to a new plaza at 23rd Street.

The city plans to start making the changes in late May, and more alterations are possible in the future.

Mr. Bloomberg said the plan would relieve traffic congestion and make more room for pedestrians, enhancing some of the city’s most popular public spaces. But it could also change the very nature of some of Manhattan’s busiest and most famous areas, including the theater district, Times Square, the fashion district and Macy’s front stoop.

In Noticing New York we also wrote about “Macy’s front stoop:”

I found myself asking the question of whether perhaps we might have reached a density limit one warm afternoon the fall of 2007 as I stood on one foot on a corner of 34th Street and Sixth Avenue at about 4:30. I was waiting for a space in the crowd to clear so I could put my other foot down to proceed in the general direction I wanted to go.

Bloomberg speaks of essentially the same indicator, pedestrians not having enough room to walk and being forced out into the streets. We think that whenever people are swarming into the streets it axiomatically means that density is overflowing. Again from that Times article:

“People avoid Times Square because the traffic is so terrible and people are getting pushed out into the streets — the sidewalks can’t handle it,” Mr. Bloomberg said at a news conference.

Newsweek’s article reports:

It's especially bad at Times Square, where drivers on Broadway and Seventh Avenue meet heavy crosstown traffic—along with 356,000 daily pedestrians.

And had the city traffic commissioner unfurling a map to point to:

the horrible intersection outside Macy's, at 34th

An Aside on Macy’s, Moynihan Station and Going Off-Track Due to Developer Ambitions for More Density-Producing Towers

(We should note that one of the things that sidetracked and held up the urgently desirable goal of the proposed new Moynihan Station replacing the currently fouled-up Penn Station.was that private developers took the project astray trying to figure out how they could acquire historic Macy’s to profit by building more density-producing towers in the area. See: Monday, February 23, 2009, Un-funny Valentines Arriving Late: Your Community Interests at Heart. Senator Schumer in recent statement is calling for more public funding for Moynihan Station expressing an understanding that the reliance on the private sector has been part of the unnecessary delay of this vital public transportation project. See: Tuesday, March 03, 2009, Schumer touts stimulus funds for Moynihan Station, waves off question on Atlantic Yards. In that vein, reporting on Schumer’s remarks, the Times noted that “Despite widespread support, the project has languished because of . . . political inertia . . . and the developers’ ambitions.” And quoting Schumer “The focus is now on the station, letting private development follow rather than the other way around.” The Times added, “Mr. Schumer’s proposal recognizes the inability of private developers in the current economic environment to advance the six office towers they had wanted to build as part of the train station project.” See: Schumer Seeks Federal Stimulus Funds to Jump-Start Moynihan Transit Project, by Charles V. Bagli, March 1, 2009.)

Shutting Down Streets and Avenues as an Escape Valve

As we have just pointed out, the shutting down of Broadway is in essence an answer to our question of whether New York is becoming too dense in that it is an implicit acknowledgment that the answer is “yes, the city is becoming too dense.” It is an acknowledgment because if the city had said ahead of time that it was going to shut down streets and avenues in order to build extra density, then it is not clear that the idea would have been readily embraced. The Times article points out that the city proposal “aroused a range of passionate reactions” reporting that “cabbies largely disliked the plan” and that “some in the theater industry also were wary of the plan.”

The shutting down of the street space is also “answer” to the density question in another sense: although it was likely not anticipated when more density was being created, it serves as an after-the-fact escape valve adjustment to deal with it. That raises the question in our mind: What will happen in those situations where we build to cram in maximum additional density and we don’t have extra streets and avenues to close down as an escape valve or way to adjust when it turns out that we get more congestion than we can otherwise handle? The question is urgent because cramming in maximum additional density is the new Bloombergian planning style.

We are thinking in particular of areas of the city that will experiment with combining superblocks with never before tried levels of density with FARs (zoning code parlance for “Floor to Area Ratio”i.e. “density”) that only become legally possible with such street closings. Ironically, important acknowledged urbanists like Jane Jacobs would call for more streets and avenues (particularly for pedestrians) as a means to cope with high density. Two examples of situations where we therefore may be building without the kind of escape valve option being used here are Atlantic Yards and, considered by the City Planning Commission only last Wednesday, construction of a dense new superblock of towers at what is now Fordham University’s midtown campus site.

(Proposed new Fordham University residential neighborhood below)


Times Square Hubbub Uniquely Desirable?

It should also be pointed out that while the density in Times Square is now so great that this escape valve seems needed, it is arguable that Times Square should be a unique example of an area where a “happy hubbub” of buffeting density is a desirable part of the experience. Times Square is an example of a situation where the city went counter to the general rule to specially zone for the amusement park fun of being assaulted by huge scale flashing animated billboards. The Times reports how the experience of hubbub in the area is valued by many:

“I like the happy hubbub,” said Melissa Gasparis, of Upper Saddle River, N.J., who was strolling through Times Square on Thursday. She said she was afraid the mayor’s plan would make the place less vibrant, because the sidewalks would be less crowded and the streets more free-flowing.

“I like to drive through Times Square,” Ms. Gasparis said. “It cheers me up. It’s big, bright and fun.”

Her mother, Aphrodite Kalonturos, of Delaware, said: “It’s the craziest place in the world. Why change it?”

But can the same thing be said about a crazy hubbub being desirable in the proposed new Fordham University residential area below classical Lincoln Center? And does it make sense interjecting such insane hubbub (and possible additional avenue closings) into the heart of residential brownstone Brooklyn as is proposed with Atlantic Yards?

(Atlantic Yards density proposed to be added to brownstone Brooklyn below)


Newsweek’s Car-Oriented Reporting: And a Not-So-New Traffic Theory

It is interesting that Newsweek’s reporting is much more from the standpoint of what the proposal means for vehicular traffic than for pedestrians. Maybe this is because Newsweek is a national news magazine and we are a nation of car drivers. We were intrigued that one way the Newsweek story shows up when you google it, (though we are not sure from where the goggled heading derives) is “New York City Embraces a Bold New Traffic Theory / Newsweek ...”
Newsweek reports on the concept that traffic congestion in the city will be reduced by the reduction of street space rather than additions to the street space:

These pilot projects fit in with a larger counterintuitive theory that's gaining traction with urban-planning wonks: that closing roads can reduce congestion. During the 1990s, a British transit engineer named Stephen Atkins read about how San Francisco congestion decreased, rather than increased, after an earthquake knocked out a key freeway. He observed the same phenomenon in other cities that closed roads, too. "In a lot of places, the traffic was not just displaced—a lot of it disappeared," he says.

Maybe it is all well and fine to hand out credit for groundbreaking thinking to urban traffic experts of a more recent generation, but this theory and its accompanying observations date back earlier than the 1990s. Jane Jacobs wrote about precisely this in painstaking and eloquent detail in her seminal 1961 book, the “The Death and Life of Great American Cities.”

The Argument About Making It Worse

In conclusion we want to say that Noticing New York considers that the proposal to shut down Broadway is probably a good idea, but we have more to say. We note that the Times article concludes with what we consider a challenge to argue from Bloomberg. It quotes Bloomberg thus:

“We all know that traffic in Midtown can be excruciatingly slow, . . .” he said, adding that it would be hard to argue that “we can do anything to make it worse.”

Noticing New York has no problem arguing that the Mayor can do a lot to make things worse. It only takes the Mayor’s continuing to move forward with his predilection for unthinking, pell mell and insufficiently planned additions to city density at every seeming opportunity.

Newsweek concludes its article with some complimentary statements about Bloomberg that indicates they have not caught up with the current turning of the tide in public opinion. (See: Monday, February 2, 2009, The Good News IS the Bad News: Thanks A lot for Mayor Bloomberg’s “Charity” (Part I)). They do say one thing with which we agree; he has a “love” of “risk-taking.” It is just that when he arrogantly joins such “risk- taking” with “big ideas” to which he has given insufficient thought and his reflexive love of accommodating big developers, the rest of us wind up with an unlivable city.

Missing a Leg To Stand On: ESDC Didn’t Consider Developer Profit, the Main Thing Atlantic Yards is About

When is it possible to have the illusion of a carefully considered decision-making process, perhaps even decked out with weighing some pros relative to some cons and still not engage in the basics steps necessary to arrive at a credible decision? It’s easy if you leave out the essence of what you really need to consider. Presto, you get a ludicrous result. Case in point? ESDC’s consideration of the Atlantic Yards megadevelopment is a marvelous example of how constrained, two-dimensional, for-the-benefit-of-appearance-only thinking leads to absurd results.

Say you weren’t truly interested in thinking through the merits of a megaproject but you didn’t want to be accused of looking like you hadn’t given serious thought to what you were doing? You could easily find a couple of things to weigh against each other. If you were up to it, you could even go so far as considering how possible public benefit from the Atlantic Yards project might outweigh its public harm. That could look convincing in a two-dimensional way. It might even appear that you had two legs to stand on. But if you failed to consider the very essence of what the project was about. . . well, a conclusion reached with such a patent lack of multidimensional thinking ought to topple right over.

. . . Private benefit to the developer is the essence of what the proposed Atlantic Yards megaproject has always been about since its developer-initiated inception. It is obvious looking at the Atlantic Yards proposal that, as we have said before: Atlantic Yards is an example of what you get when you turn over to a developer all the “public” decision-making functions, telling the developer they can write themselves a sky-is-the limit blank check.

So what would it mean if our public agencies never considered how the meager (at best) public benefit the developer is stingily parceling out to the public stacks up against the truly colossal benefit the developer is designing into the project’s DNA for himself?

ESDC Admissions: They Didn’t Bother To Look at What the Developer Was Taking For Itself at Public Expense

It is therefore a significant story when last week representatives of the Empire State Development Corporation, the lead government agency theoretically responsible for Atlantic Yards, admitted aloud in court a week ago Monday that they approved this megaproject without weighing the extraordinary magnitude of benefit the developer, Forest City Ratner, was bestowing upon itself.

(For the most thorough coverage see: Tuesday, February 24, 2009, In a swift half-hour, eminent domain argument touches on balance of public and private benefit--but not much more. For Coverage the focuses on ESDC’s admission of its failure to weigh benefit the developer designed for itself see February 23, 2009, Lawsuit asks Ratner: So, how much profit will you make on Atlantic Yards? By Gersh Kuntzman, The Brooklyn Paper. See also: Arena opponents: New York violated eminent domain laws, Monday, February 23, 2009 by John Brennan; At Supreme Atlantic Yards Hearing, Questions of Process, by Lydia DePillis on February 23, 2009; N.Y. court hears objections to Nets arena, by The Star-Ledger Continuous News Desk, Monday February 23, 2009; Arguments Heard in Atlantic Yards Case, February 24, 2009, by LT and February 24, 2009, State Appellate Court Hears AY Eminent Domain Arguments.)

The Atlantic Yards plaintiffs had pointed out that there was no evaluation or record of what the private benefit of the project will be to Ratner even though this is something New York courts have previously found to be required by the New York State Constitution. Picking up on their point, Presiding Justice Robert Spolzino, during oral argument asked ESDC attorney Charles Webb if “ESDC articulated the balance between private and public benefit.”

There’s no requirement of such a finding, Webb said.

Pressed by Spolzino Webb said: “I don’t believe there is. There’s no reason to. They don’t have to.”
Not long after that ESDC attorney Philip Karmel took the oral argument podium and compounded the earlier ESDC admission, saying that ESDC had neglected to “explicitly lay out the private benefit.”

All of which is to say that ESDC first allowed Ratner to fill in the sky-is-the limit blank check and then was not the slightest bit interested in taking a peek to see the amount the developer filled in.

Curiosity as a Value Upon Which Some Depend

It is staggering to think that ESDC did not care enough to think about the wealth Ratner had decided to transfer to himself. It is also curiously incurious. Thankfully, this kind of studied obliviousness may be going out of fashion. We quote:

But those values upon which our success depends—hard work and honesty, courage and fair play, tolerance and curiosity, loyalty and patriotism—these things are old. These things are true. They have been the quiet force of progress throughout our history.

(Emphasis supplied.)

Those are the words from President Barack Obama’s inaugural speech. (See: Science Progress: Curiosity Makes a Comeback, President Obama Understands Its Importance and Thursday, January 22, 2009, Obama Inaugural Address: National Themes and Atlantic Yards)

If curiosity is an old, true value upon which we depend. .. If it goes along with to standing side by side with the core values of “hard work and honesty, courage and fair play”. . . What does the absence of curiosity go along with? Forest City Ratner is proposing to pull down well over $2 billion dollars in public taxpayer subsidies. And that was before they sent ex-senator D’Amato to skulk around to rustle up some federal stimulus funds in addition.

Missing the Leg of an Argument to Stand On


We can make a technical argument as to why it is a fatal lapse of public responsibility for ESDC to fail to consider how Bruce Ratner filled in his no-bid blank check. The benefit of the proposed Nets arena is nil. Even though he should probably be considered a shill, Ratner’s own sports economist expert did not find that the arena provided a net benefit. To find benefit, he relied, instead, upon the idea that the arena would bring in or be accompanied by the building of housing, something that was outside his “expertise.” That was judgement was made when the cost and proposed subsidies for the arena were substantially shy of the last publicly released projections. And that was when it was assumed that the housing would be built within a reasonable time frame, something no longer expected. Further, the housing involves little or no defensible benefit since it also sidesteps bidding and involves a reshuffling of scarce-resource subsidies from other projects in other areas. What would be built as part of a monopolistic no-bid Atlantic Yards is more than canceled out by the more valuable housing that won’t, as a result, be built elsewhere.- -

- - Then there is the public harm. Recently renovated buildings, worthwhile buildings and historically valuable buildings are torn down as part of the Atlantic Yards plan. Publicly owned and valuable streets and avenues are expunged. A rational neighborhood zoning plan, appropriate density and good design are sacrificed.

So in the end, when you calculate the net public benefit by subtracting the public harm from what may be possibly no public benefit at all, you get a substantial negative or, at best, infinitesimally meager benefit. This then is the meager or negative and only “incidental” benefit that ESDC didn’t, and should have, weighed against the colossal goody bag of benefit Forest City Ratner is scooping up to take away for itself.

(But, in the end, did ESDC even weigh meager public benefit against public harm? It's not clear that what they did amounts to even this kind of net cost benefit analysis. We know they went through the motions of a few minimum statutory requirements, a few somersaults to find a public purpose for a private wealth grab, working as best they could to find “blight” in a thriving neighborhood, “considering” environmental impact.)

Why should ESDC have weighed the very expensive taxpayer supported private benefit Ratner wants to pocket? Because if you don’t know how a deal is being structured to benefit the developer you don’t know where the weight is going in terms of shortchanging the public to create the heft of that private benefit. Considering this will teach one a lot about the equations involved. It explains the peculiar footprint of the project, why the Ward Bakery block, unnecessary to the project and outside of railyard area or any conceivable blight area, is being taken for eminent domain windfall purposes. It explains the peculiar forced density of the project. It explains the stealing of the public streets, avenues and sidewalks. It explains the side-stepping of public process. It explains why public benefits that could be delivered to the public with less harm and with greater impact are instead being used simply as an excuse to accumulate private benefit for Forest City Ratner.

It is one thing to fail to ask about private benefit when a public agency specifies and puts out for bid the creation of public benefit it wants. Even then, as a government official negotiating these things (and I do have a lot of experience in this), I would keep my eye on the ball of developer profit. It is, however, something entirely beyond the pale not to ask about pocketed-private-benefit and the benefits a developer has cooked up to serve to himself when dealing with a no-bid megadevelopment which is developer-initiated and -driven and where the developer is commandeering the public functions of eminent domain, writing the zoning code, defining who owns streets and sidewalks and accessed public subsidy.

We agree with the Atlantic Yards opponent plaintiffs in this case who are saying that if the public agency hasn’t considered that this project is, in reality, simply about private benefit to Ratner and not much else, the agency hasn’t done its job. We agree that having paid attention to two legs of what they needed to consider to justify the project, the agency missed another critical evaluation without which their arguments cannot stand up.

Beyond the Technical Argument

In a way, it is a senselessly technical argument to focus on ESDC’s obliviousness to the way in which private developer benefit overwhelms the meager or missing net public benefit. That is because this technical argument assumes that ESDC was, as they assert they were, actually motivated to assess other considerations of public benefit vs public harm. We think that ESDC’s incuriosity about Forest City Ratner’s profits is actually a pretty good indication that, overall, ESDC is in the words of Justice Catterson in another legal case challenging Atlantic Yards, “ultimately being used as a tool of the developer.”

Does the Sargent Shultz of Hogan’s Heros response of “I know nothing, nothing . . . ” assuage ESDC’s failure to be publicly responsible as it falls in line as the developer’s tool? We think the know-nothing approach allows ESDC to step away from and abandon the other core values that President Obama associates with curiosity:“hard work and honesty, courage and fair play.”

Don’t Ask Us, Ask Forest City Ratner. No, Don’t Do That Either

Time and again, if you ask a question- the ESDC answer is to say that they don’t know the answer- you have to “ask Forest City Ratner.” ESDC didn’t know how significant arena security issues were going to be handled and didn’t itself have critically relevant information about how far the arena would be set back from a major avenue that might require closing for security reasons. (See: Wednesday, November 21, 2007, News flash: Brooklyn arena would be as close to the street as the Newark arena.)

Sherry Karabin, a reporter for Brooklyn Independent TV, put together a Brooklyn Review documentary about delays and problems at the Atlantic Yards project that was broadcast last week on Reporter Roundtable. Part of her report:

Brooklyn Review contacted the Empire State Development Corp. the state public authority handling the project to get an update on the status. However, we were told that information could only come from Forest City Ratner Companies.

If you want information about how the ESDC “Atlantic Yards ombudsman” knows only what is in the newspapers and can’t circumvent ESDC’s “Ask Forest City Ratner” mantra see: Thursday, February 12, 2009, Atlantic Yards Ombudsman faces audience frustrated with partial answers regarding stimulus funds, Carlton Avenue bridge.

In the Brooklyn Review documentary City Councilman David Yassky criticized ESDC’s lack of responsible involvement, at one point in his remarks struggling with the anomaly that while theoretically supposed to be responsible, ESDC hasn’t exercised responsibility:

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

In fact, ESDC goes beyond not bothering to know what Forest City Ratner knows. They now consider that when questions come up concerning Forest City Ratners profits, such as what the public approved and evaluated costs of the arena are currently, this information can be withheld from the public by ESDC’s declaring it will be concealed from public as a “trade secret.” (See: Friday, February 20, 2009, Is the cost of Atlantic Yards now a "trade secret"? NYC EDC foils FOIL request.)

What Does ESDC Consider Its Role As “Tool of the Developer” to Involve? Statutes to Trump the Constitution

If ESDC is not considering public benefit and is only acting as a “tool of the developer,” what then does this leave for ESDC to do as a public agency?

At the oral argument we picked up on a main theme represented in two ways. In each case there was the protection that the New York State Constitution should provide and then there was the possibility that such protection might be removed from public reach by the interposition of statutory substitutes for justice. In each case, it seems that ESDC would be pleased to have statutes supersede constitutional protection.

Clearly, ESDC has no interest in pursuing the spirit of the New York State Constitution. That has mostly been what this post is about. But from what we heard ESDC is also interested in using statutory interventions to prevent the Constitution from technically applying. This then seems to be their raison d’etre.

One of their arguments involves technicalities about whether anyone would ever be procedurally able to raise the New York State Constitution as a legal protection. Suffice it to say that ESDC would prefer that no one could ever procedurally be able challenge and stop an eminent domain taking that violated the state constitution. ESDC’s other argument is that it should not matter what the New York State Constitution says about condemnations that are and are not allowed, and it is not important how that has been and should be interpreted. Instead, ESDC would like to replace such tests with whatever they write into their statutes about them minimums they intend to do while acting as a “tool of the developer.” In other words, in both situations they would like to have statutory unrealities interposed to separate the public from the spirit of real constitutional protections.

We think that the courts have caught onto the unreality of ESDC’s game. In the beginning of this post we used the adjective “ludicrous” and in doing so we intentionally picked up on the adjective Justice Catterson used to describe ESDC legal arguments. Unfortunately, at this point we can only hope that the courts recognize and utilize their power to overturn this ESDC unreality. They can do this by recognizing ESDC’s technical failures. Or they can go farther and recognize that ESDC clearly acts in bad faith when they act with cultivated obliviousness as a “tool of the developer.”

(Matthew Brinckerhoff and Jennifer Levy, attorneys for the plaintiffs' opposing Atlantic Yards being interviewed outside the Monroe Street court house after the oral argument.)

Our Noticing New York Testimony at Yesterday’s Community Board Hearing on City’s Proposed Coney Island Rezoning

More on last night’s hearing later, but in the interim, here is our testimony delivered at the community board hearing on city’s proposed Coney Island rezoning. We submitted our full testimony in writing. In our allocated three minutes for oral testimony we were only able to finish reading through paragraph 5.


Noticing New York’s Testimony

* * * *


March 3, 2009


Brooklyn Community Board 13



Re: Today’s Community Board Hearing on Coney Island Rezoning.

Dear Community Board 13:

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.

1. The Coney Island Rezoning, as proposed, is destroying Coney Island, particularly its ability to function as an amusement area by sending out a wrong message. The right message can be sent out by rejecting it.

2. The enemy of the Coney Island amusement area has never been the economics of amusement park operation. Going back to Fred Trump’s 1966 destruction of Steeplechase Park, the enemy of Coney Island has always been speculation about what other possible alternative uses might be made of areas set aside for amusement. Going back to Fred Trump, that speculation has also involved the notion that not only could a zoning change be forced by amusement park destruction, but also that the public would subsidize something to replace it.

3. Development speculators have, with a particularly ferocity of late, been destroying more of Coney’s amusement area because of the message that the city’s Bloomberg administration is sending out. Approval of the city’s proposed rezoning will only serve to reinforce that destructive message. The message that is being sent is that speculation will rewarded. And yet, in all likelihood the dismantled amusement area will lie fallow for decades to come.

4. The city says that it is theoretically opposed to and wants to counter the development speculation activities of Joe Sitt, but the message this proposed plan and its possible adoption sends is designed to drive up the price that the city has to pay to acquire any land from Joe Sitt’s Thor Equities and put more money in his pocket.

5. Who will lose under this plan? The community and the city at large, but also anyone who afterward continues to own Coney amusement area property unless they too intend to profit from a continuing eviction of amusements. To work as an amusement area, Coney’s amusements cannot be shrunk beneath a certain minimum viable size. Setting aside the wildly disparate ways in which that minimum area has been calculated, many of which are apparently intended to confuse those listening, we think that the Municipal Art Society has provided the most neutral and reliable evaluation of how much space must remain in the Coney amusement area in order for there to be a viable amusement future. What MAS calls for should be viewed as a minimum, not a maximum or even a goal. The city, on the other hand, seems only to be playing into the hands of the speculators.

6. The Municipal Art Society is also absolutely right in calling for all the high-rise buildings to be relocated north of Surf Avenue and in calling for key historic resources to be protected, including but not limited to the Nathan's building and the Shore Public Theater.

7. The city plan purports to provide a future amusement area. That is a mirage because the proposed amusement area is too small. It is also a mirage because the plan that purportedly creates this reduced amusement area sends out a message that speculation that destroys precisely such amusement areas will be rewarded. Who would believe that more such destructive speculation won’t continue to receive reward in the future? Just think: the currently proposed rezoning rewards the destruction of a workably-sized amusement area. Why would one expect that, afterwards, an unworkably-sized smaller remnant of the Coney amusement area would be protected from destructive future speculation?

Attached are two recent Noticing New York articles commenting on Coney Island. For greater depth, those pieces refer and link to other previous Noticing New York commentary. (See:Friday, December 26, 2008, Coney Island- Grinch Story and Wednesday, November 5, 2008, Back In the Coney Island Saddle?)

Dear Eliot, . . . other things kept undercover may bear investigation

(Eliot Spitzer taking oath of office as governor.)

This post deals with some things the Spitzer administration elected to shroud. Not so coincidentally, it gives us an opportunity to muse on the subject of investigations and how the new preoccupation with federal stimulus funding could make them particularly important.

This continues our series regarding letters about Atlantic Yards written to politicians and people of influence. Early in the series was a letter to then Governor Spitzer (see: Dear Eliot, . . . . . Please be a true reformer, Friday, August 22, 2008). As we said in that post, we received a response to the letter we sent to Spitzer when he was still governor and the letter we received is an interesting story in itself. Interesting enough to provide it to you here, together with our letter in response to that gubernatorial response.

Our Letter Series

Our original letter urged Governor Spitzer to be a true reformer. Spitzer ran for his short-held office on a platform of general reform and specifically on accountability and proper governance of public authorities, Our exchange of letters revealed that Mr. Spitzer turned out to be quite the opposite. That was before he abruptly left office when other ethical problems came to light.

Other letters in our series to date are Dear Mr. Bloomberg, . . . . . the Harm and the Foul (Tuesday, August 19, 2008) and the letter we arranged to be on his desk of Clark Hoyt the day he started his job as the Times Public Editor, Time to Times; Dear, Dear, Dear, (Wednesday, December 17, 2008).

Your Letters and Petition to Paterson

Now is certainly a good time to be writing letters to Governor David A. Paterson. As before, we invite others to borrow freely from ours in structuring their own letters. (In addition, here is quick link to a petition you can sign to tell the Governor that Atlantic Yards should not be allowed to sop up federal stimulus funds sorely needed for worthwhile use: Petition to Governor Paterson.)

We will talk more at the end of this post about federal stimulus funds and what President Obama said in his speech Tuesday night about their proper use.

Original Letter to Governor Spitzer

Our original letter to Mr, Spitzer was a careful, comprehensive list of the problems with the Atlantic Yards megadevelopment, including the errant governmental process (or lack thereof) that engendered it. The letter was written from my perspective as an attorney and urban planner experienced in development as a senior government official who spent a significant amount of time implementing ethics and public authority reforms.

Peter A. Drago’s Executive Chamber Response

The response we received from Peter A. Drago, Director of Governor Spitzer’s Executive Chamber was, on its face, respectful and encouraging.

We reprint it here in full:

* * *

May 31, 2007

Dear Mr. White:

Governor Spitzer has asked me to thank you for contacting us and for sharing your concerns about the Atlantic Yards Project.

Your correspondence has been forwarded to the appropriate members of our staff. I am sure it will be of interest to them. Please be assured that we will keep your comments in mind during any discussions we may have on this matter.

Once again, thank you for writing.

Sincerely,

Peter A. Drago

* * *








(Click on the picture to see an enlarged image version of this letter.)







Mr. Drago’s letter notwithstanding, when we called Governor Spitzer’s Executive Chamber to follow up we discovered the reality was far from what was represented or promised. We found that a flood of correspondence opposing the megaproject was coming into the governor’s office. What was the governor’s office doing with those letters? Making sure they were buried and didn’t see the light of day even if they raised concerns that absolutely needed to be addressed elsewhere in other government offices; for instance, the Inspector General’s Office.

Letter in Response to Mr. Dragos’ Response: We Infer Mr Spitzer is NOT a Reformer

I will let my letter back to Mr. Drago speak for itself.

* * * *
October 18, 2007
Mr. Peter A. Drago
Director of Operations
Executive Chamber
State of New York
State Capitol
Albany, New York, 12224

Re: Executive Chamber Handling of Correspondence Seeking Reform and Proper Conduct and Governance of Public Authorities- Proposed Atlantic Yards Megadevelopment

Dear Mr. Drago:

I am writing to follow up on correspondence about Atlantic Yards: The letter my wife and I wrote to Governor Spitzer on May 29, 2007 and your letter in response sent to me on behalf of the Governor of May 31, 2007. I consider myself privileged to have received your response: I know the Governor receives significant volumes of correspondence on the State-sponsored proposed Atlantic Yards and I appreciate that the number of those letters that receive any response is negligible.

Yesterday when I called your office to inquire about the action taken with respect to our letter it was suggested in the conversation that a letter would be appropriate follow-up to get additional information.

Your letter to me informed me that our “correspondence has been forwarded to the appropriate members of our staff” and provided your assurance that our comments will be kept “in mind during any discussions we may have on this matter.” It stated you were “sure” our letter would be “of interest.”

Notwithstanding, with respect to the status and follow-up on our correspondence about the ongoing project, I understand:

1. Your file on our correspondence was closed out on September 26, 2007.
2. Throughout the time that the file on our letter was open our letter was kept internal within the Executive Chamber and never sent out to any external agency or authority. That means it was not shared with agencies where actions needing scrutiny are taking place: It was not shared with the Urban Development Corporation (a.k.a. the Empire State Development Corporation) or the Metropolitan Transportation Authority. It was also not, for instance, sent on to an agency such as the State Inspector General’s Office.

I have long been keenly aware that the amount of correspondence that the Governor receives about his and the State’s sponsorship and facilitation of the proposed Atlantic Yards is extraordinarily voluminous. Therefore it is not at all surprising to confirm with your office that the Governor (as handled by your Executive Chamber operation) gets thousands upon thousands of letters about Atlantic Yards, in a continual unceasing stream, that they come from people wide and far, in Brooklyn and all states in the union, and that virtually none of these letters express support for the proposed project. I was not surprised to confirm that this substantial volume of letters is all negative about the project. I also appreciate the fact that the letters about this exceedingly unusual proposed megadevelopment stand out as a highly appreciable portion of the 90,000 or so communications your office deals with in an average week.

Yes, our letter was one of a scant minority of letters about this megadevelopment to have received any acknowledgment. I would like to think that our letter earned that distinction, and became a representative voice for the multitude of other letters the Governor has received criticizing this proposed megadevelopment because of the carefully considered analysis I offered and my qualifications as: a.) a real estate development and public finance lawyer, b.) an urban planner, and c.) a senior State government official with expertise and experience in proper public governance and public authority reform. (Much of my expertise in public governance and public authority reform was developed and refined implementing reform initiatives backed by candidate Spitzer.- Governor Spitzer was the fourth Governor whom I served.). The recognition was also perhaps because my wife and I were once early supporters of the Governor.

I request more information about how our letter was followed up upon. By whom was it reviewed? What was done? From a standpoint of my familiarity with government I do not see how our letter could have received appropriate consideration by keeping it simply within the Executive Chamber. I am forced to wonder what purpose or expedient has been served by the handling it has received.

I remind you, and by copy of this letter remind the Governor, that our letter urged project scrutiny, process scrutiny, and the Governor’s communication with the State employees sensitive to: i.) everything which is wrong with the proposed megadevelopment, and ii.) knowledge of how it desperately needs to and might be fixed. It detailed reasons for the Governor to give his urgent attention to public authority reform in this critical area. If the Governor is simply quarantining in the Executive Chamber all letters offering criticism or legitimate insight into the project’s obviously errant DNA, it seems impossible that any of this has occurred.

Candidate Spitzer ran on a platform of public authority reform: If these are the actions by which Mr. Spitzer defines himself as Governor, what are we to infer?

Sincerely,


Michael D. D. White
CC: Hon. Eliot Spitzer
Brooklyn Heights Association

* * * *

New York State Office of the Inspector General

Clearly there are a number of places in government where it would have been valuable for correspondence such as mine to go, not necessarily limited to the State Inspector General’s Office. We want to focus for a minute, however, on the Inspector General’s Office because there are certainly many things respecting the no-bid Atlantic Yards project it would be their purview to look into, including, for instance, what explains the very peculiar Boymelgreen wrench shape of the project’s footprint. We quote here (in full) from the Inspector General’s mission statement on its website:

New York State’s residents are entitled to a government that is committed to the highest standards of integrity, efficiency, and accountability. We in the Office of the State Inspector General have been entrusted with the responsibility of ensuring that State officials and employees meet these fundamentally important standards. It is a responsibility we take very seriously. Indeed, we are committed to promoting and enhancing an environment that instills public confidence in our government and are proud to work with and for the thousands of public employees and citizens alike who share that commitment. The Office of the State Inspector General operates under the authority of New York State Executive Law Article 4-A. Our mission is to detect, investigate, deter and eliminate corruption, fraud, criminal activity, conflicts of interest, abuses of office, and waste in the State entities under our jurisdiction. These include executive branch agencies, departments, divisions, offices, boards, commissions, public authorities and public benefit corporations -- any entity of State government headed by an appointee of the Governor that does not have its own statutory Inspector General. Our jurisdiction encompasses more than 150 entities employing the vast majority of New York State’s nearly 190,000 public servants, as well as private entities doing business with the State.

We have implemented two distinct but complementary strategies for accomplishing our mission: We vigorously and fairly investigate allegations of misconduct; we also conduct audits and systemic reviews of State agency programs and procedures, recommending improvements for positive and permanent reform of agency operations.

We perform these functions with a professional staff of trained investigators, experienced attorneys and skilled forensic analysts who possess a broad range of expertise and a commitment to combating corruption and promoting greater efficiency in State government.

Our efforts could not succeed without the assistance of the overwhelming majority of public employees who do their jobs honestly and effectively. If you are a State employee who is aware of misconduct by a State official or employee or by any individual conducting business with the State, you are required to report your information to us promptly and may do so by calling our Hot Line, contacting us by Mail or using our On-Line Complaint Form. Those who suspect or are aware of misconduct by a State official or employee, but who are not public employees themselves, should similarly report such information to us. Keep in mind that any State employee who acts in good faith to report such misconduct may not be subject to dismissal, discipline or other adverse personnel action.

Again, welcome to our site. We appreciate your interest in our Office. Please send any questions or comments about our site to: webmaster@ig.state.ny.us.

There may be those who feel they have good reason to believe that the Inspector General’s Office will hold back from investigating the Governor’s Office in a situation such as Atlantic Yards. That might normally leave a void. But here is where something struck us as interesting when we listened to President Obama’s speech on Tuesday. . .

Federal Recovery Plan Inspector General

President Obama, talking about the federal recovery plan spending, announced his appointment of a federal inspector general to hold “mayors and governors across the country” accountable for the federal recovery money they spend (emphasis supplied)

I know there are some in this chamber and watching at home who are skeptical of whether this plan will work. I understand that skepticism. Here in Washington, we've all seen how quickly good intentions can turn into broken promises and wasteful spending. And with a plan of this scale comes enormous responsibility to get it right.

That is why I have asked Vice President Biden to lead a tough, unprecedented oversight effort - because nobody messes with Joe. I have told each member of my Cabinet as well as mayors and governors across the country that they will be held accountable by me and the American people for every dollar they spend. I have appointed a proven and aggressive Inspector General to ferret out any and all cases of waste and fraud. And we have created a new website called recovery.gov so that every American can find out how and where their money is being spent.

That means that if Atlantic Yards were ever to receive federal stimulus funds a federal inspector could mount an investigation.

It is interesting when just one office like a State inspector General’s Office has jurisdiction to look into improprieties. They may ignore them or choose to be lethargically inactive. What may raise interest sufficient to get an investigation rolling under one state administration may differ from another administration, and vice versa. We have noticed, however, that the dynamic often changes significantly when at least two such offices share jurisdiction over a matter: Casual disregard of a matter’s significance recedes as an option and competition can take hold. We certainly don’t ever want to see Atlantic Yards put on a list of projects to potentially receive federal stimulus money. But if that were ever to happen, a shift in the dynamic of who wants to investigate what and when and with how much vigor could cause things to become very interesting.

(President Obama delivering his inaugural address.)