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||April 5, 2007 Press
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DDDB et. al. v. ESDC et. al
Lawsuit Seeks to Annul Final Environmental Impact Statement and
Approval of Forest City Ratner's “Atlantic Yards” Project
For a Judgment Pursuant to Article 78 of the CPLR and Declaratory
The environmental review process was not meant to be a
bilateral negotiation between a developer and lead agency but, rather,
an open process that also involves other interested agencies and the public.
Merson v. McNally, 90 N.Y.2d 742, 753, 655 N.Y.S.2d 605, 611 (1997).
Relief sought by Petitioners:
- Annulment of the ESDC, MTA, and PACB determinations to approve the
- Declaration that a privately leased and operated sports arena does
not meet the definition of a civic project under the UDC Act.
- Enjoining Respondents (ESDC, MTA, PACB, Forest City Ratner) from proceeding
in any manner with any demolition, construction, disposition of public
property or commitment and expenditure of public funds until there is
a reconsideration of the Project in compliance with SEQRA and the UDC
A Summary of the 11 Causes of Action Filed by Petitioners:
> 1st CAUSE
OF ACTION (Against the Public Authorities Control Board, PACB)
Failure to Make Findings
The PACB Violated the State Environmental Quality Review Act (SEQRA) by
Approving the Project Without Considering its Environmental Impacts and
Did Not Adopt SEQRA Findings
CAUSE OF ACTION (Against ESDC)
Violation of UDC Act's Procedural
Empire State Development Corporation (ESDC) Violated the Important Procedural
Elements of the Urban Development Corporation Act (UDC) Rendering Its Determinations
Null and Void:
- ESDC did not provide the minimum public comment period required by
the UDC Act
- ESDC failed to meaningfully consult with the Citizen Advisory Committee.
- ESDC did not provide meaningful community participation in the environmental
review thus disenfranchising the affected public.
> 3rd CAUSE OF ACTION
The Court Should Make a Declaratory Judgment that a Sports Facility
for a Professional Sports Team Leased to a Private Entity Is Not a “Civic
Project” Under the UDC Act:
- A privately leased, for-profit sports arena, such as Forest City Ratner's
(FCR) arena, is not a project that the ESDC may lawfully undertake within
its enabling legislation; the court should affirm this.
> 4th CAUSE OF ACTION
ESDC Was Without Sufficient Basis to Determine
the Area is Blighted; That Determination Should be Annulled
- The blight determination supporting the finding that the Project
qualifies as a “land use improvement project” under the UDC Act is arbitrary
and capricious, not supported by substantial evidence, an abuse of discretion
and must be annulled.
- ESDC ignored extensive, detailed public comments refuting the blight
- ESDC manipulated and twisted crime statistics to overstate crime rates
in the project site;
- ESDC failed to demonstrate a blighting effect from the rail yards
on the blocks to its south;
- The City of New York never considered these southern blocks “blighted”
over the 40 year life of the Atlantic Terminal Urban Renewal Area (ATURA),
an Area they lay outside of;
- The project's boundaries were not determined by blight, but by where
FCR wanted the project.
> 5th CAUSE OF ACTION
Failure to Consider Threat of Terrorist Attack
ESDC Violated SEQRA by Failing to Consider the Potential Security Issues
and Impacts From a Terrorist Attack
- ESDC's head in the sand approach violates SEQRA and endangers the
health and welfare of all New Yorkers. The FEIS must be rejected and
the subsequent determinations annulled for such a blatant error.
- With a glass-walled arena with 225 publicly scheduled events per year,
surrounded by glass skyscrapers, over a major transportation hub, directly
adjacent to Brooklynâ€™s busies traffic intersection, Atlantic Yards
has a unique design, use, location and density requiring a security/terrorism
study. ESDC purposefully and inexplicably ignored one of the paramount
issues facing New York City since 2001-the threat of terrorism
and the need to incorporate security measures into the design of major
- Despite constant demands that ESDC demonstrate that it has considered
the issue, the FEIS and SEQRA findings are virtually silent on that
- ESDC has taken the bizarre position that the threat of a terrorist
attack does not qualify as a reasonable worst-case scenario warranting
examination in an EIS;
- That position runs contrary to statements by public officials, recent
case law and common sense.
- The obvious need to consider the potential for terrorist attacks is
supported in the affidavit of Norman Groner, PhD. (click
for affidavit). Professor Groner, a recognized expert on security
planning, notes that there is no question that Atlantic Yards would
present an attractive target for terrorists and there are basic issues
that must be considered in the review of the project, including location
and design details to reduce the risk of an attack and mitigate the
impacts should one occur.
- Recent, new case law confirms that such a review should have been
undertaken for Atlantic Yards
> 6th CAUSE OF ACTION (Against
Failure to Prepare Supplemental EIS
ESDC Failed to Properly Identify and Consider Relevant Issues in the DEIS
and Could Not Cure that Failure Through a Cursory Consideration in the FEIS.
Newly discovered information must be considered in a Supplemental Environmental
Impact Statement (SEIS) to allow the public to comment. This includes:
- ESDC's belated recognition that Coney Island could be an alternative
location for the arena;
- ESDC conducted a study of the impact of wind without including it
in the FEIS.
- In both instances, the FEIS addressed important new information upon
which the public had no opportunity to comment.
> 7th CAUSE OF ACTION (Against ESDC)
Failure to Take a Hard Look
MTA and ESDC Each Failed to Take the Required “Hard Look” at the Environmental
Impacts of the Atlantic Yards Project, Including:
- Intentionally understating the expected Project build-out time by
at least five years in order to artificially minimize the adverse impacts
associated with the construction of the mammoth Project;
- Misrepresenting the impact of the proposed Project on the character
of the surrounding neighborhood by using inappropriate comparisons and
failing to disclose relevant information;
- Falsely stating the amount of open space created by the Project and
qualifying inaccessible areas as open space;
- Relying on flawed analyses of traffic and mass transit that omit material
facts, rely on false assumptions, and rigidly apply CEQR methodology
to result in an outcome favoring the Project;
- Failing to adequately consider the public costs associated with the
Project in connection with the increased demands on community services
resulting from the addition of thousands of new residents to the area;
- Failing to consider the impact of increased traffic on emergency vehicles;
- Understating the impact of shadows created by the Project on open
spaces and community gardens;
- Understating the impact of wind and construction-related air pollution
on the quality of life in the immediate surrounding area;
Accepting excessive noise levels without exploring alternatives that would
minimize their impact.
> 8th CAUSE OF ACTION
Failure to Consider Reasonable Alternatives
ESDC Failed to Adequately Consider Alternatives, Including the “No Action”
Option, the Extell Plan, Coney Island as a Site for the Arena, and a Development
Limited to the Rail Yards.
- ESDC rejected each alternative without adequate consideration, without
a factual basis, and, in the case of the Coney Island alternative, without
the necessary public comments.
- To the extent the FEIS does analyze alternatives, the analysis is
flawed and intended to result in the pre-determined approval of the
> 9th CAUSE OF ACTION
Failure to Adequately Respond to Public Comments
FEIS Fails to Adequately Address Substantive Comments Submitted by Affected
Members of the Public With Respect to the DEIS, Rendering SEQRA Findings
and Determinations Null and Void
10th CAUSE OF ACTION (Against ESDC)
Violation of SEQRA's Procedural Requirements
ESDC Violated Many of SEQRA's Procedural Safeguards by:
And ESDC Abused Its Discretion, by:
- Failing to promptly give notice that it was acting as the lead agency;
- Failing to engage the public and other agencies in the environmental
review process at the earliest possible time;
- Delaying issuance of the Final Scope.
At a minimum, the proceeding should be remanded for an extension of the
public comment period and the filing of a SEIS.
- Scheduling hearings at times to discourage public participation;
- Failing to provide a meaningful public hearing by allowing the stacking
of the hearing facility;
- Giving the public only the absolute minimum time periods required
by regulation to review and comment upon documents of enormous length,
complexity, and significance for the largest single-source development
proposed in the history of New York;
- Rushing the completion of the FEIS to ensure Project approval prior
to December 31, 2006.
- Failing to adequately consider the public comments
> 11th CAUSE
OF ACTION (Against the MTA)
The MTA Failed to Fulfill Its Obligations
Under SEQRA, Including:
- Failing to advise the ESDC of the alternative proposal for development
of the Vanderbilt Yards;
- Failing to make its own, written SEQRA findings;
- Failing to take the requisite “hard look” at the Project's adverse