The state development agency leading the Atlantic Yards project got a favorable ruling in a key opposition lawsuit by withholding information about the mega-development’s construction timetable from a judge, a new appeal filed last week charges.
The missing information was contained in a “closing document” signed by the Empire State Development Corporation and developer Bruce Ratner that allows Ratner to take 25 years to finish the project, instead of the 10 years that the lawyers had argued during the suit itself.
That closing document was made public eight days after the case was heard by Judge Marcy Friedman — and project foes now claim that if she’d had all the information, she might have ruled differently.
In fact, Friedman’s ruling, issued in March, hinted as much.
“[I am] constrained to hold that ESDC’s elaboration of its reasons for using the 10-year build-out was supported — albeit, in this court’s opinion, only minimally — by the factors articulated by ESDC,” Friedman wrote.
That “minimal” support was the kernel of today’s appeal.
“It would seem that minimal support erodes entirely due to the facts [that were] subsequently revealed,” said Daniel Goldstein, a spokesman for Develop Don’t Destroy Brooklyn.
That said, the latest legal case against Ratner’s arena and housing complex slated to rise above a Long Island Rail Road yard in Prospect Heights remains a real long shot, given that several judges, including Friedman, have typically deferred to the ESDC rather than addressing whether the project itself is legally flawed.
“A court is precluded from making substantive judgments on the evidence or evaluat[ing] de novo the data presented to the agency,” Friedman said. “This court may not make any independent findings of fact or any independent determination on the impact of the changes in the plan for the project.”
That said, Development Don’t Destroy legal director Candace Carponter still thinks there’s a shot.
“We think the court will recognize that the ESDC’s argument and therefore the ruling, was egregiously incomplete,” said Candace Carponter, the legal director for Develop Don’t Destroy Brooklyn, an opposition group. “Reconsideration of the case is necessary because of the self-contradicting and revealing information ESDC intentionally held back from the court and the public.”
The reason for the appeal is that opponents believe that a 25-year build-out actually creates the very blight that the state said it would remedy by allowing Ratner to build.
“They have maintained [since 2006] that it is a 10-year project,” Goldstein said. “If that’s not true then there are major issues [that must be considered].”
A spokeswoman for the ESDC disagreed, saying that the appeal “raises arguments that are similar or identical to arguments that already have been rejected by the courts.”
“ESDC will oppose the motion, and we are confident that we will prevail,” said the spokeswoman, Beth Mitchell.
