State to Pay $300,000 to Lawyers Who Won Atlantic Yards Timetable Case

Empire State Development, the state agency overseeing the Atlantic Yards megadevelopment in Brooklyn, has agreed to pay $300,000 in fees to lawyers representing two community coalitions that won a lingering lawsuit over the project’s timetable.

The lawyers successfully challenged the agency’s decision, in 2009, to extend the potential build-out of the project to 25 years, while only studying the impact of a five-year delay on a project long billed as taking 10 years.
ishot 6005 State to Pay $300,000 to Lawyers Who Won Atlantic Yards Timetable CaseThe fee is actually paid by Atlantic Yards developer Forest City Ratner, which, as is customary, agreed to pay for litigation, as well as an environmental review ordered by the state agency. The $300,000 represents about 83 percent of the sum requested by the attorneys.

However it seems like a loss, the $300,000 may simply be the cost of doing business for Forest City, which, had a Supplemental Environmental Impact Statement been ordered in 2009 as the community groups requested, might have faced a stall in construction of the Barclays Center and thus continued massive losses on the New Jersey Nets, which at that point were owned mainly by developer Bruce Ratner and partners.

The winning petitioners were Develop Don’t Destroy Brooklyn, which fought Atlantic Yards, and a group of civic groups under the BrooklynSpeaks banner that have generally tried to mend the project rather than end it.

It is not typical for the prevailing party to get attorney’s fees; the state Equal Access to Justice Act awards such fees only when the state agency’s position is not “substantially justified. When state Supreme Court Justice Marcy Friedman ruled in September, Jeffrey S. Baker, attorney for Develop Don’t Destroy, said the decision “vindicates what the community has been saying for a long time. One can only wonder whether this project would have ever moved forward if, as Justice Friedman noted, the agency “disclosed the project’s true time line.”

ESD chose not to appeal Friedman’s decision on legal fees and settled after she requested the parties hash out the total via a referee. “ESD determined that this would be the best course of action to move the project forward,” spokeswoman Kay Sarlin Wright said last week. She confirmed that the agency, not the developer, made the decision.

ESD still seems to be cooperating with the developer, as the SEIS ordered by Friedman, and upheld in 2012, to study the impact of a 25-year project build-out is moving slowly. While a preliminary document, a draft scope of work, was issued December 2012 and a public hearing held last February, no final scope, a prelude to a Draft SEIS and later a Final SEIS, has been released, 10 months later.

By contrast, when the full Atlantic Yards project went through its first round of environmental review in 2005-06, the gap between draft scope and final scope was less than seven months and for a much larger study.

That current delay may relate to Forest City’s effort to recruit a new investor, in this case the Chinese government-owned Greenland Group, to commit to buying 70 percent of the remaining project, which includes 15 towers. 

Such a plan, which Forest City says will accelerate construction, could be incorporated in the SEIS to argue against critics’ call for remaining development parcels to be divided among multiple developers to speed construction of affordable housing. Also, several Brooklyn elected officials asked on Nov. 15 that the sale be deferred until the state studied alternatives to speed construction, that any sale be contingent on a promise to deliver the affordable housing in 10 years and that the state agree to a local development corporation to oversee Atlantic Yards.

The funds distributed in the settlement not only reimburse the winning attorneys but also leave the prevailing parties with some additional cash. (That’s because the attorneys charged their clients nonprofit rates but were reimbursed at rates somewhat closer to market rates.)

The $165,000 in the DDDB part of the case, Mr. Baker said, “is being divided between the attorneys and DDDB,” which may use its share for further Atlantic Yards-related challenges. The organization has been mostly quiet after helping organize protests around the Sept. 2012 arena opening.

Al Butzel, attorney for the BrooklynSpeaks coalition, said that he is returning $35,000 of his $135,000 award, which will be split up among the groups that contributed. (It’s unclear how that overage might be used.) 

The petitioners in the BrooklynSpeaks coalition included the Atlantic Avenue LDC, the Brooklyn Heights Association, the Boerum Hill Association, the Fifth Avenue Committee, the Park Slope Civic Council, the Pratt Area Community Council, the Prospect Heights Neighborhood Development Council, State Senator Velmanette Montgomery, assemblyman Jim Brennan and city councilmember Letitia James.

Despite this case, Forest City Ratner likely feels some momentum behind Atlantic Yards. On Nov. 20, company CEO MaryAnne Gilmartin was named to Mayor-elect Bill de Blasio‘s transition team, as was Bertha Lewis, formerly of ACORN, the developer’s partner on the affordable housing.

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