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Bruce Ratner’s Atlantic Yards mega-project is suddenly on even shakier ground, thanks to an inexplicable court ruling last week delaying until at least September a final judgment on one of the last legal barriers to the $4-billion development.
Despite a court victory in the environmental lawsuit in January, Ratner and his partners in the Empire State Development Corporation were stunned by a Feb. 26 ruling that put off oral arguments on opponents’ appeal of that Jan. 11 ruling.
The state Supreme Court’s Appellate Division offered no explanation for denying Ratner and ESDC’s motion for an expedited review of the appeal of a case that contends that the state did a legally insufficient environmental review of Atlantic Yards.
The delay, the court wrote, would allow opponents to “perfect their appeal” and submit it by July 7. Oral arguments will take place sometime during “the September 2008 term,” the ruling said.
The delay is a significant setback to Ratner and ESDC, whose lawyer, Philip Karmel, had argued that lengthy legal challenges were “a potential roadblock to the massive capital investment required to proceed.”
“It is thus critically important that the appeal be … argued before this court's customary summer recess," Karmel added.
He cited state law, which allows for expedited review “to address the delay of public projects by lengthy litigation,” he wrote. “[Laws] requiring expedited judicial review were enacted to protect public projects involving condemnation from protracted litigation. Atlantic Yards … is precisely the type of project for which the legislature intended to expedite judicial review.”
Ratner’s lawyer, Jeffrey Braun, was more succinct: “This case should not be treated in such a lackadaisical manner,” he wrote in his motion.
Yards opponents said the “lackadaisical” approach is important so that the appeal can be argued on the merits, not under the gun.
“Our litigation is not intended to delay the project — it is to stop it because it is bad planning…and a bad financial deal for the public,” said Daniel Goldstein, spokesman for Develop Don’t Destroy Brooklyn. If Ratner's investors are unwilling to proceed with the financing while the appeal is pending, that is a strong indication of the merits of our claim.”
Goldstein also took a moment to gloat about the suddenly slow-motion process.
"Considering the long periods of time that Ratner took in preparing the Environmental Impact Statement … and the short period for public comment on those documents, it is refreshing that [we] are enjoying [our] rights of due process."
A spokesman for Ratner said that the court loss was not a complete one for the developer because it appeared that the appeal would not be heard until next February.
“Had Forest City Ratner not asked for an expedited appeal, the dates would in fact have been [even] later,” said the spokesman, Joe DePlasco.
But as Ratner’s legal team suggests, delays are the enemy of Atlantic Yards. Not only is the developer facing a tightening financial market, but demand for federal affordable housing subsidies is far outstripping supply, putting in jeopardy his ability to make good on his promise to include 2,250 below-market-rate rental units in the project.
Indeed, Ratner last month walked away from a deal with City Tech in Downtown Brooklyn that would have allowed him to build the city’s tallest residential tower. One local lawmaker said the developer is “over-extended” right now.
As recently as December, Ratner officials were admitting that the best-case scenario saw the Atlantic Yards basketball arena opening in time for the 2010–11 season.
But that was before 2008 turned into the Year of the Snail.
©2008 The Brooklyn Paper
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