The battle over Brooklyn's biggest development project is heading for a showdown in court after the $4 billion project received final political approval yesterday from an Albany board.
A handful of lawsuits are now the last line of defense for opponents of developer Forest City Ratner's plan to build a basketball arena and 16 mostly residential towers on 22 acres in Prospect Heights. The plans would remake the low-rise neighborhood with 8 million square feet of development, including more than 6,000 apartments, "affordable" housing, and office and retail space in a soaring complex designed by architect Frank Gehry.
Yesterday, the Public Authorities Control Board, made up of representatives appointed by Governor Pataki, Senate Majority Leader Bruno, and Assembly Speaker Silver, signed off on the project after some last minute changes were made to the plan. The height of the project's tallest building will be lowered, below-market-rate condominiums were added, and an agreement was reached that the developer would build more "affordable" housing elsewhere in the surrounding area and work with community leaders to build a local high school specializing in technology. The state's development agency says the project will cost the city and state about $450 million.
The vote late yesterday afternoon brought a flurry of praise from Mr. Pataki, Mayor Bloomberg, and civic organizations that supported the project, citing jobs and the creation of "affordable housing." In a statement, Mr. Bloomberg applauded approval of "the biggest private sector investment in Brooklyn's history."
Mr. Bloomberg said the vote shows that "we can still achieve projects on a grand scale and ensure that New York remains a city where big things happen."
In a statement, a housing and community activist, Bertha Lewis, of the Association of Community Organizations for Reform Now called the vote, "a holiday gift for Brooklyn families."
For opponents of the plan, including several groups from surrounding neighborhoods, some property owners in the development footprint, some urban planning groups, and opponents of eminent domain, yesterday's vote shifted the battlefield to the courts, a seeming inevitability since the project has enjoyed broad support from many elected officials since its announcement about three years ago.
City Council member Letitia James, an outspoken project opponent whose district includes some of the project site, said in a statement, "Today is a sad day for democracy, and for the community I represent. But our fight is far from over."
Lawyers say it is still unclear how two existing lawsuits, and several more that are expected to follow, will affect the developer's timetable.
A statement by the developer said the New Jersey Nets, which is owned by the developer, would play their 2009-2010 season in the planned Brooklyn arena. A spokesman for Forest City Ratner, Jeffrey Lerner, said work would begin next month on preparing site infrastructure, and construction would begin on the arena sometime in 2007. Mr. Lerner would not comment on the pending legal challenges.
Earlier this month, the state notified dozens of property owners who have not sold to Forest City Ratner that they have until January 11 to file a proceeding with the Brooklyn Appellate Division for a judicial review of the state's finding that condemnation can be used. Several property owners living within the project footprint had already filed a federal legal challenge to the state's use of eminent domain.
A lawyer representing Develop Don't Destroy Brooklyn, Jeffrey Baker, said the federal suit addresses unanswered questions from last year's U.S. Supreme Court ruling, Kelo v. New London, which allows a city to invoke eminent domain for the sake of private economic development. Mr. Baker said the decision did not permit a state to condemn private property for a developer-driven project.
"Here there was no organic planning by a state or city body. This is a vision that was developed in the mind of Ratner. He went to his buddies in government and said, ‘let's make this happen,'" Mr. Baker said. "We think eventually this can end up in the Supreme Court."
The developer, the city, and the state have filed a motion to dismiss, and the case could also end as early as January, Mr. Baker said. Moving forward with construction while the suits are still in court, Mr. Baker said, could make the developer's acquisition of private financing more expensive and be devastating if project approval was overturned.
"It is up to him what kinds of risk he wants to take," Mr. Baker said.
A senior attorney at a libertarian law firm, the Institute for Justice, Dana Berliner, said the opponents' federal lawsuit raises new and important issues that the federal courts should consider in the wake of Kelo v. New London, and she expects the lawsuit will be time consuming.
"Cases can take at an absolute minimum a year, and can easily take five," Ms. Berliner said.
A spokesman for Develop Don't Destroy Brooklyn, Daniel Goldstein, said the group would soon file another lawsuit in state court challenging the project's review process.
Mr. Baker, the group's lawyer, said the state failed to properly navigate the elaborate environmental review process, had exceeded its jurisdiction, and had virtually ignored public comments and concerns.
It is still uncertain how other critics of Atlantic Yards will react to yesterday's final approval. While several neighborhood and civics groups did not oppose the project outright, they sought to reshape the plan to make it more amenable to the surrounding community. But throughout the long approval process, few substantive changes were made.
In the days leading up to the vote of the Public Authorities Control Board, several local elected officials and civic groups had hoped that Mr. Silver would delay final approval because of unanswered financial questions and recent changes to state cost and benefit projections. Mr. Silver was satisfied with an independent financial review of the project by the consulting firm KPMG, but critics said financial questions still remain.
Assemblyman James Brennan, of Brooklyn, said he was considering a lawsuit that would aim to force the developer to produce a more complete disclosure of its finances. Mr. Brennan said the financial information is required to see if Forest City Ratner could build the project at a lower density and still make a profit.
An alliance of opponents, Brooklyn Speaks, said in a statement they would rely on the incoming Spitzer administration to force changes to the approved project.
Some political analysts said that Mr. Silver's vote yesterday signaled Mr. Spitzer's tacit support of Atlantic Yards. If the governor-elect had concerns, they said, he would have asked Mr. Silver to delay the vote until after his inauguration next month.
A spokeswoman for Mr. Spitzer, Christine Anderson, did not respond to e-mails or telephone calls inquiring about the governor-elect's position on Atlantic Yards. In the past he has said he supports the project in general but has some financial questions.