Wednesday, February 28, 2007

Nets for sale? Document suggests cash flow stops in 2013

Could the Nets be for sale after the Atlantic Yards project is under way? There's certainly a hint of that in the Combined Returns Summary prepared by Forest City Ratner and released by the Empire State Development Corporation. The document estimates cash flow and investment internal rate of return starting in 2004 for both the "Team and Arena Investment" and also the "Real Estate Investment."

The "Team and Arena Investment" ends in 2013. (Click to enlarge.) The "Real Estate Investment" ends in 2015. Could the Nets be on the block before the project is completed? (The scheduled completion date is 2016, but even project landscape architect Laurie Olin admits it could take 20 years.)

I wrote last year about a clause in the General Project Plan that allowed for the sale of the Nets before the completion of the arena.

Now this may just be a separate accounting line, given that the document is "for discussion purposes only." And there's no particular reason they'd sell the Nets then. But this document, for many reasons, deserves more explanation.

"Actual results may vary"

From the Atlantic Yards Combined Returns Summary released by the Empire State Development Corporation and provided by Forest City Ratner.

ESDC-released documents from Forest City lack vital information

The Empire State Development Corporation released three pages of Forest City Ratner-prepared documents estimating investment returns over 12 years.

I'll have more analysis later, but it's important to remember that these pages differ greatly from the financing plan that the Metropolitan Transportation Authority required from bidders for the Vanderbilt Yard, and which Develop Don't Destroy Brooklyn and other organizations tried in vain to see.

Firstly, that financial plan covered 20 years, not little more than a decade. Secondly, the MTA required (p. 15, or PDF p. 18) the developer to account for "sources and uses"--in other words, the combination of subsidies, investment funds, and internal funds that would be used.

Required were:
a. Development schedule and budget;
b. Sources and uses statement;
(i) Sources, amounts, terms and conditions of financing, and the Proposer’s equity; and
(ii) Breakdown of uses of funds in the project, including an itemized list of all costs associated with the improvements of the Site;
c. Pro forma cash-flow statements, with documentation of assumptions for a 20-year period

"I find it very surprising that a full 'sources and uses' on the transaction is not publicly available, given the significant amount of public resources going in," affordable housing expert David Smith told me in December. He noted that affordable housing transactions typically offer a transparent document explaining where the money is coming from and where it will go.

The same lack of transparency apparently persists.

A dozen planned demolitions would create "facts on the ground," isolate plaintiffs

With the filing of papers preliminary to the demolition of 12 properties it owns within the Atlantic Yards footprint, developer Forest City Ratner--even as a pending eminent domain case constrains it from construction work on the planned arena--seems poised to create "facts on the ground," empty lots that would foster both a perception of isolation and a sense of the project's inevitability.

The demolitions would include the Ward Bakery on Pacific Street, which preservationists have hoped to see saved for adaptive reuse, but instead would be razed for an interim surface parking lot.

Among those most starkly impacted would be the residents still within the 22-acre footprint. Take, for example, the four story apartment house at 624 Pacific Street (above). In the fall of the 2005, when the above picture was taken, the house was bordered on both sides by existing buildings.

Last summer, after the developer demolished two properties to the west deemed structurally unsound, 624 Pacific (right) was bordered on one side by empty lots. Should the developer follow through on plans filed in the past week to demolish 12 properties, including 626 Pacific just east of the residential building, the residents, who have filed suit in state court to block the condemnation of their building, would be further isolated.

(The suit, which involves 13 rent-stabilized tenants, says the Empire State Development Corporation shouldn't be allowed to override state housing laws. Unlike the eminent domain lawsuit filed by a separate set of 13 plaintiffs in federal court, the state suit does not challenge the rationale of the project as a whole.)

Demolitions on the way

While a 2/20/07 Forest City Ratner press release announced the beginning of site preparation work and the commencement of demolition of one building, 179 Flatbush Avenue, papers filed by the developer with the Department of Buildings (DOB), mainly in the past week, indicate much greater ambitions. The demolitions have not yet been approved by the DOB.
(Map by NoLandGrab, updated 3/8/07--click to enlarge. Note that some of the properties in white are owned by Forest City Ratner and could be demolished after the filing and approval of permits. Others are not owned by the developer and are subject to condemnation. Most of the property between Pacific Street and Atlantic Avenue is the Metropolitan Transportation Authority's Vanderbilt Yard.)

The developer did not respond to a press inquiry yesterday about the timing, but a worker told Dean Street resident Peter Krashes that the demolitions could begin within six weeks, and an FCR representative said that community residents would get about a month's notice. (Ward Bakery at right)

Both phases targeted

The demolitions would involve properties in Phase 1 (the arena block, scheduled for completion in 2010) and Phase 2 (east of Sixth Avenue, scheduled for completion in 2016), where buildings would be razed for interim surface parking. (Here's the current block and lot map.)

Among those slated for demolition are a building at 465 Dean Street (partial view, at right) between Flatbush and Sixth avenues; it borders an empty lot created when the developer last year demolished two row houses. (Photo from fall of 2005, before the houses were demolished.)

Last year the developer demolished five properties, some of which occupied several tax lots.

In its response to the ESDC's blight study, which cited water damage in the building, Develop Don't Destroy Brooklyn noted that "Just before FCR purchased 465 Dean, in May 2004, a mental health not-for-profit had been preparing to open offices in the building and had sent in workers to put the building in order. Instead, FCR’s purchase kept the building vacant."

Demolitions are also planned for 618, 626, 642, 644, and 646 Pacific Street between Fifth and Sixth Avenues, 193 Flatbush Avenue, and 191 Flatbush Avenue/616 Pacific Street, the former home of Harriet’s Alter Ego.

On the eastern end of the project, where an interim surface parking lot would sit for in the southeast block years--perhaps only a few, perhaps decades--demolitions are planned for
800, 814, 818 Pacific Street, and 536-538, 542, and 546 Vanderbilt Avenue.

Parking for construction workers would be on that southeast block bounded by Pacific Street, Vanderbilt Avenue, Carlton Avenue and Dean Street.

The interim surface parking plans have concerned a lot of people. (Above, an unofficial rendering--adapted from renderings by landscape architect Laurie Olin--of the entire site east of Sixth Avenue as either surface parking, staging, or railyards.)

The lot would persist during the construction of the first stage, over four years, which would include five towers and the arena. It could last much longer, as Olin recently admitted that the ten-year construction plan would more likely take 20 years, which has generated further criticism.

As ESDC waits to name AY environmental monitor, Dean Street residents lose water supply, face FCR obfuscation

On February 5, the Empire State Development Corporation (ESDC) issued a request for proposals for an environmental monitor to oversee construction activities within the Atlantic Yards project. Responses were due February 26, with selection expected in two weeks.

However, for residents of Dean Street between Carlton and Vanderbilt avenues—a block that on the south side borders the project footprint and on the north side is within the footprint—that oversight seems already overdue.

On Tuesday, they lost their water supply for four hours owing to a worker’s error, and found the inconvenience compounded by a lack of information available from Forest City Ratner’s newly-established Atlantic Yards Community Liaison Office. The likelihood of at least a dozen building demolitions within the next few months makes the issue even more pressing.

The following account, written yesterday, was provided to me by Dean Street resident Peter Krashes, who looked into the issue as president of the Dean Street Block Association and found himself advising his neighbors about the situation. Krashes, who has been a respectful watchdog on this project, stressed that his account was an individual rather than official one.

(I received it too late to check it with Forest City Ratner, but I contacted a company spokesman yesterday about some of the matters mentioned—the demolition schedule--and didn’t get an answer. I added subheadings and spelled out some acronyms but otherwise didn't alter Krashes' text.)

Major inconvenience

For about four hours Tuesday all residents and businesses inside and outside the footprint of the Atlantic Yards project on Dean Street between Vanderbilt and Carlton avenues lost their water.

The plumbing contractor working for Gateway Demolition, the contractor Forest City Ratner Companies (FCRC) has hired to conduct the demolitions inside the footprint, damaged or disturbed the water main. The Department of Environmental Protection (DEP) was then called so that our water could be shut off in order to make the necessary repairs.

This was a major inconvenience for residents, (including a shelter with families with 350 clients), and caused serious problems for several water dependent manufacturers on our block, including a tofu manufacturer and a uniform laundry business. Both lost half a day of work.

Lack of information

While construction can understandably cause inconveniences and insurance may help businesses to cope with losses, the greatest mishap of the day was the lack of information—or confusion of information—provided by those connected to the project when asked to explain. I spent the afternoon talking to different representatives from FCRC, the plumbing contractor, and DEP.

Some were more forthcoming than others. In my opinion, what happened provides tangible evidence that meaningful, transparent public oversight of the construction elements of the Atlantic Yards project is needed immediately.

Background questions, company response

With the President of the Prospect Heights Neighborhood Development Council, Gib Veconi, I visited the Community Liaison Office last Friday. Among other questions, we asked the gentleman there what construction had taken place so far, and he only described construction inside the footprint. We pointed out that plumbers were digging up the street to shut off the water on all of the buildings lining Vanderbilt and Dean inside the footprint, and he told us he was unaware of that fact. I asked the plumber yesterday whether FCRC knew he was doing the work he was doing. He said "absolutely." His permit was issued on 2/16/07.

After the events of yesterday, Loren Riegelhaupt, VP of Government and Public Affairs at FCRC, explained that the plumbers asked the city to inspect the pipe "to double check" they were doing everything right, and the city noticed a leak they needed to shut off the water main to fix. He added, “Something was spotted as a part of what they were doing.” I asked him how he got that information. He told me he spoke to the plumber and "the construction folks" on site.

I pointed out to him the plumber and DEP had explained the event to me very differently, and that DEP had been called in response to an event caused by the plumber. When I asked him the names of the people he spoke to, he couldn’t recall. He called me back later to correct his story and said the plumber hadn't been honest with him because he was scared, and that the plumber and everyone up the line of command had now been severely reprimanded.

I told him that reprimanding the plumber was unfortunate and that accidents happen. Throughout all of this the plumber, though powerless to enact any interaction, was the most forthcoming. The larger aspect of the problem was not the event caused by the plumber, but the way the Community Liaison Office, and by extension FCRC, dealt with the problem.

The intent here is not to punish contractors for the inevitable mistakes and the unforeseen circumstances they must deal with routinely, but instead to ensure that those events are represented to concerned residents and businesses in a transparent fashion so that they may deal with the situation appropriately.

Water goes off

When I originally heard about the water shut-off around 1:00 pm I called the community liaison at the two numbers he gave us Friday. (No one answered one and the other was answered by a consultancy who had no idea what I was talking about.) I called 311, I called DEP, etc.

Around 3:30 I called the community liaison again, this time using a phone number he inadvertently left on Gib’s cell phone. He answered that, seemed surprised to hear me on the other end of the line, and told me he was still working on getting answers to the questions Gib and I left him with on Friday.

When I responded that actually I was calling because of the problem on Dean Street, after a pause he said, “Oh you mean the problem with the water?” But he had no information to give me and as of this afternoon still has not provided me with any information. As of this moment I have been provided no information about follow-up.

Demolition permits posted

An undercurrent in this whole event is that something may have been going on they did not want the public to know about. Today, following the event on Dean Street, the Department of Buildings posted demolition permits for many of the buildings on the east end of the site.

I asked Riegelhaupt yesterday the same question the community liaison answered inadequately on Friday: what construction has taken place in the last week? He said the rail yard is being prepped to move the temporary rail yards east. He also said there is asbestos abatement being done on 161 Flatbush.

He once again omitted the water main work on the east end of the project. When I asked about it directly, he seemed to try to talk around it. He finally said it was preliminary to “removing small stuff” from the buildings. What did he mean by that? Furniture? Hazardous materials? What would happen if the event yesterday had been a problem with hazardous materials—not just a water problem?

Government role?

DEP had no knowledge that the problem had any relationship to the Atlantic Yards project. They said the fact that it did was irrelevant to them. If each time an event like this occurs we have to go to a separate city agency, no city agency will have the whole picture.

Are we supposed to go to the NYC Office of Environmental Coordination? The ESDC? Why hasn’t anyone told us where to go? Who oversees FCRC’s compliance? How do they do it? In what ways can the public give meaningful input?

One month's notice

One worker at the site told me demolition of the eastern side of the footprint is going to happen in about six weeks. While this wasn't confirmed by anyone from FCRC, a representative named John Welsh from First New York Partners, (the FCRC subsidiary that is apparently overseeing the buildings inside the footprint), conceded under pressure that the demolitions will be happening sooner rather than later.

FCRC’s Riegelhaupt wouldn’t address the future construction schedule. I asked him how much notice the community would have before demolition. He said FCRC would provide a week's notice before abatement, which would give the community about a month of notice before demolition.

After Brennan's lawsuit, ESDC poised to release Ratner’s profit projections

Brooklyn Assemblyman Jim Brennan, joined by State Senator Velmanette Montgomery, has gone to court in an attempt to force the Empire State Development Corporation (ESDC) to answer his Freedom of Information Law (FOIL) request to see the projected costs, revenues, and profits for Forest City Ratner’s Atlantic Yards plan--a prelude to arguing for a reduction in the project’s size.

While Brennan's effort had been rejected by the ESDC under the administration of Gov. George Pataki, the New York Sun reports today that new Gov. Eliot Spitzer's administration has indicated that it's willing to comply--and the documents should be released shortly.

The ESDC, two months before it approved the Atlantic Yards project, last October rejected Brennan's FOIL request, though the ESDC later released a different fiscal document, regarding the plan’s projected fiscal impact, meaning the net new tax revenues to the city and state. (That number dropped dramatically in December.)

Brennan (right) last year sponsored an unsuccessful bill in the State Legislature to decrease the size of the project by 34% while adding affordable housing subsidies. The lawsuit, filed in state Supreme Court, states, “The purpose of the Requests is to enable the public to evaluate fully the relationship between such financial and business plans and the size of the Project, and whether the Project’s size and density could be reduced without endangering its economic viability.”

He said last October, “So that is a critical public question: how much money do they think they’re going to make on their market-rate housing, and how much money do they think the arena is going to make? How much money does the affordable housing need and where are they going to get it? Without that information, the public is shortchanged.”

What might the numbers say?

The question arises: Would the numbers support a downsizing? (Examining the plan before a recent 8 percent reduction in square footage, New York Magazine estimated Ratner's profits at up to $1 billion, or 25 percent.)

Or would they suggest that the “extreme density,” enabled by the state’s override of zoning, is necessary to a viable project? (If so, then should the city and state have punted on zoning--or made civic investments to ensure a more reasonably scaled project?)

[An interesting comment from developer Shahn Anderson on Brownstoner:
Forget about the big number that they will make (I'd estimate it at around a billion dollars), what is their real return on investment when they have been given atleast $300 million dollars up front from various city and state agencies to do the deal? Even if they end up spending $50 or a $100 million of their own equity outside of financing, at the end of the day, they will make 1000% to 2000% ROI from what they actually invested. ]

Legal requirements

Develop Don’t Destroy Brooklyn (DDDB) in September 2005 requested such a document of the Metropolitan Transportation Authority (MTA), noting that the agency, in its Request For Proposals for the Vanderbilt Yard, required that pro forma cash-flow statements, with documentation of fiscal assumptions for a 20-year period, be included as part of the bid. However, the MTA did not comply.

In rejecting Brennan's request, the ESDC stated that, according to the law, it may deny access to records or portions thereof that "are inter-agency or intra-agency materials which are not... statistical or factual tabulations or data." So the ESDC's rationale, Brennan said last year, must be that the business plan is not a statistical or factual tabulation.

The lawsuit reveals that Brennan’s internal appeal to the ESDC was denied, with an additional justification attached: the agency believed that the information could either impair ongoing negotiations or reveal trade secrets.

Given the “enormous socioeconomic impacts” on local constituents, the lawsuit states, “it strains credibility” that the requests would be exempt under FOIL, given that the law was enacted to support “the people’s right to know the process of governmental decisionmaking.”

Brennan has long called for a reduction in the project's size, along with several other Brooklyn Assemblymembers. Montgomery, along with City Council Member Letitia James, has more directly opposed the project.

FCR's defense

Last July, Forest City Ratner executive Jim Stuckey, speaking on the Brian Lehrer Show, was hit with a similar request, from Develop Don't Destroy Brooklyn spokesman Daniel Goldstein, and stood his ground.

He declared, “We’re not going to discuss the profit on a project that hasn’t gone through a public approval process yet. We’re a public company. We have annual reports…In order to get whatever profit we ultimately do make, we also have to spend a tremendous amount of money on infrastructure that the government isn’t paying for, and no one else has stepped up to the table to pay for, for many many years.

Actually, the project has since received public approval, by the ESDC and then the Public Authorities Control Board last December.

Stuckey, however, added another caveat, “At the end of the day, until this project is approved, until we see what the ultimate cost of the infrastructure will be, it’s very hard to make these determinations.”

Given the elastic cost of infrastructure, that day could be far off--unless the state (or a court) intervenes.

Tuesday, February 27, 2007

Lawyers claim AY wasn't Ratner's idea, but the record says otherwise

While U.S. Magistrate Judge Robert M. Levy last Friday recommended that the Atlantic Yards eminent domain case be dismissed from federal court, he acknowledged that the lawsuit "raises serious and difficult questions regarding the exercise of eminent domain under emerging Supreme Court jurisprudence."

So, the case will ultimately be heard on its merits, either in federal court (if the plaintiffs prevail on Judge Nicholas Garaufis to override Levy's recommendation) or in state court.

Then a judge will have to evaluate the curious claim, made by lawyers for Forest City Ratner in legal papers and in oral argument, that the developer did not initiate the Atlantic Yards project.

Developer denial

During the 2/7/07 federal court hearing in the eminent domain case challenging the project, Forest City Ratner attorney Jeffrey Braun stated, "Certainly, one of the plaintiffs' contentions is that the fact that their complaint alleges that Forest City Ratner people initiated this project, all normal presumptions on public use issues are thrown out the window.
Now, we deny as a factual matter that that is what happened, but I think we have to accept it for purposes of the present motion."

As stated in the developer's memorandum of law supporting a motion to dismiss the case (p. 22, or p. 28 of PDF):
The complaint seeks to bolster plaintiffs' claims of favoritism by asserting that Forest City Ratner defendants initiated the project. However, even were the assertion to be true (which it is not), standing by itself it would not be enough to create a viable claim.

A narrow legalism?

The evidence suggests otherwise, unless the lawyers are narrowly defining the project initiation as Brooklyn Borough President Marty Markowitz's exhortation to Bruce Ratner to buy the basketball Nets and move them to Brooklyn.

The issue is important, because, if the plaintiffs can't show that the developer initiated the project, their case crumbles. (They have to prove much more than that--that the benefits of the project are "pretextual" and dwarfed by the benefits to the developer.)

Augmented ambitions

Markowitz's entreaties, as the New Yorker's Rebecca Mead reported in 2005, merely set the stage for the 16 towers beyond the arena:
“He called every two to three weeks,” Ratner says. “I would make up little white lies, and I would wait a day or two to call him back. I am sure I said to my assistant, ‘Oh, my God, it’s Marty.’” Eventually, Ratner was convinced of the wisdom of the notion, but not before augmenting the Borough President’s ambitions with his own calculations—“the recognition that there is an opportunity to do what my business is, which is real estate and large-scale economic development.”
Thus the arena imagined by Markowitz became only part of a much larger development, which will stretch six blocks along the border of Prospect Heights.

"Not economically viable"

The day after the project was announced, the 12/11/03 New York Times quoted developer Bruce Ratner:
"This started with basketball, a Brooklyn sport," Mr. Ratner said. "This was always the site. But it became clear it was not economically viable without a real estate component. And Frank Gehry was the perfect architect for this site."

New York magazine's Chris Smith, in his Atlantic Yards cover story last August, quoted Deputy Mayor Dan Doctoroff as crediting the plan to Ratner:
“We did not require a lot of convincing as to the conceptual merits of Bruce’s plan,” Doctoroff says. “We’ve been involved in it from almost day one. I was advising Bruce on his purchase of the Nets. Clearly, he was going to use it as a centerpiece for a significant development over the yards. The mayor was always very intrigued by the design. He’s in favor of big statements. What you’ve got now is an opportunity to have an independent economy in Brooklyn.”
(Emphasis added)

Initiated by developer

Last March, Winston Von Engel of the Department of City Planning's Brooklyn Office, said at a hearing of Markowitz's Atlantic Yards committee that it certainly wasn't the city's idea. I reported an exchange between Kate Suisman, aide to Council Member Letitia James, and Von Engel:
"Just to be clear, this was a project that was initiated by the developer--is that right?" asked Suisman, whose boss is the leading public official opposed to Forest City Ratner's project.

"That's our understanding," Von Engel replied. (Well, Markowitz approached developer Bruce Ratner with the idea of bringing a basketball team to Brooklyn, and the developer recognized that a standalone arena wouldn't make economic sense.)

"Had the city been looking at making use of the land?" Suisman pressed on politely.

"Not that I can recall," Von Engel said.

Monday, February 26, 2007

Brooklyn Bridge + Atlantic Yards CBA = Black History Month?

Let's try to decode the advertisement Forest City Ratner has placed with its favorite Brooklyn weekly, the Courier-Life chain. (The chain was bought last year by Rupert Murdoch's News Corp., which also owns the New York Post.)

First, even though the Community Benefits Agreement (CBA) partners are significantly funded by the developer, and most have no history previous to this CBA, they get credit for honoring Black History Month as well.

And what history is being made? Seemingly the signing of the CBA in June 2005--and also the Brooklyn Bridge. However, the CBA has little to do with the bridge; while the document was signed nearby (on Old Fulton Street), it applies to a very different and oversize project.

And the developer often seems unwilling to show Atlantic Yards to the public, relying instead on drawings of ground-level views, photos of other Brooklyn scenes, and when pressed, 15-story buildings rather than the 20- to 50-story buildings that would make up the project.

Black history in FCR's management?

Forest City Ratner's commitment to Black History Month does not extend to the executive suite, however. Of the top 12 managers on the company web site, 11 are white and one is South Asian.

City role?

What's Mayor Mike Bloomberg doing in that picture above? Yes, a mayoral press release claimed that he "signed" the CBA, but actually, he served as a "legally irrelevant witness," as noted by the Brooklyn Rail's Brian Carreira. Now, perhaps mindful of the flaws in the Brooklyn agreement, his administration is standing back, funding a more formal and democratic process for the CBA under discussion for Columbia University's expansion in Manhattan.

And didn't City Planning Commission Chairperson Amanda Burden, on 2/14/07, say bluntly that “Community Benefits are really private agreements, they aren’t between the city and a community"?

When questioned whether the city--beyond the planning commission--should have a role, Burden responded. “I don’t think the city should participate in them. I think what the city has done at Columbia is to try to facilitate a conversation.”

Saluting the Black & Puerto Rican legislators

Forest City Ratner practiced a similar strategy last week with an advertisment in the program for the annual conference of the New York State Association of Black and Puerto Rican Legislators. Even though the CBA partners almost surely did not pay for the ad, they get equal credit for the support.

The developer especially thanks Assemblyman Darryl Towns, chairman of the legislative caucus. While it's understandable that someone in a leadership position might be thanked, Forest City Ratner may have a special interest in Towns's success. His father, Rep. Edolphus Towns, won a hard-fought Congressional reelection bid last November, facing City Council Member Charles Barron and Assemblyman Roger Green.

Towns, an Atlantic Yards supporter, was challenged most forcefully by Atlantic Yards opponent Barron. While Green, another project supporter, was initially a legitimate candidate, he ultimately played more of a spoiler role. Darryl Towns may be his father's anointed successor, setting up a race against Barron, who has pledged to run again. There's little doubt which candidate Forest City would favor.

A grudging Times correction on "city approval" and another taking more blame than Barclays

Why did it take six days for the New York Times to grudgingly correct a basic error in a 2/20/07 Metro Brief about Atlantic Yards, especially since the Times in December published essentially the same correction?

The brief stated:
The city and state approved the project despite heated opposition from residents...

The correction today, under the For the Record rubric (where basic errors are corrected), states:
A report in the Metro Briefing column on Tuesday about the construction work expected to begin at the Atlantic Yards project near downtown Brooklyn referred imprecisely to the development. Although it has been endorsed by the Bloomberg administration and the City Planning Commission, it is a state project that does not require formal city approval.
(Emphasis added)

That wasn't imprecise but simply incorrect.

Why would a reporter insert this extraneous fact in a new story? Well, people make mistakes; let's assume that the reporter, unfamiliar with Atlantic Yards, simply assumed that the city had approved the project. (The one Times reporter who built up some continuity on the Atlantic Yards beat got promoted to Albany this year after less than 15 months in Brooklyn.)

The problem with such errors is that the Times is supposed to be the Paper of Record, and both NY1 and WNYC repeated the error, as NoLandGrab pointed out.

Why take so long?

The Times frequently publishes corrections the next day after the error appeared. The delay in this case seems indefensible, because a similar correction was published less than two months ago, regarding an item in the Magazine:
An item in the Year in Ideas issue on Dec. 10 about the increasing scale and size of urban planning referred imprecisely to the Atlantic Yards project in Brooklyn. The New York City Planning Commission endorsed it but did not approve it; final approval can be given only by state officials.

It wasn't as if research needed to be done. So was the delay the consequence of bureaucratic incompetence or could it even be... spite in response to persistent criticism?

The Barclays correction

Under the rubric of Corrections, where more serious errors are corrected, the Times today tells us:
Because of an editing error, an article on Feb. 2 about a controversy over a naming agreement with Barclays, the British bank, for the basketball arena that is part of the planned Atlantic Yards project in Brooklyn misstated Barclays’ response to accusations by several black politicians that the company had cooperated with the apartheid regime in South Africa. Barclays says it withdrew from the country in 1986, which it considers to be eight years before the end of apartheid; the company did not say it withdrew six years before the end. (Apartheid was dismantled over several years beginning in 1990, but there is no generally agreed-upon date for the official “end” of apartheid.)

First, it shouldn't have taken more than three weeks to correct the time period from six years to eight years, given that the Barclays claim was made public in several venues.

More importantly, the larger error does not concern the Times's misstatement of Barclays' time frame. Rather, it concerns the newspaper's initial implicit acceptance of the company's contention that apartheid ended in 1994. That parenthetical about the dismantling of apartheid should have been in the initial story, and the Times should be apologizing for that more than its shift to six years from eight years.

Yes, I wrote about all this on 2/3/07.

Atlantic Yards corrections fatigue

Footnote: last night I contacted a Times editor about correcting the Times's misleading and irresponsible editing of the Associated Press story on the eminent domain lawsuit. The response was not to acknowledge any fault in disserving readers; rather, I was told to take it up with the AP.

Perhaps that notably unsympathetic response was brought on by "Atlantic Yards corrections fatigue," which I'll define as "the disturbing realization that we too often make errors in covering Atlantic Yards."

Sunday, February 25, 2007

Errol Louis on AY negotiation, but not the 20-year affordable housing plan

Daily News columnist Errol Louis, in a column today headlined Play ball with Bruce, writes:
The biggest myth about the $4 billion, 22-acre Atlantic Yards project in Brooklyn is that it might not get built. So it's long past time for people concerned about the complex to quit fantasizing about how to stop it and start focusing on ways to improve it.
This was made clearer than ever two days ago, when federal Judge Robert Levy hammered another nail into the legal coffin of anti-project advocates by recommending dismissal of Goldstein vs. Pataki, a lawsuit by a handful of holdouts who refuse to sell their property to the project's developer, Bruce Ratner.

Louis calls the litigation "doomed" and likens Atlantic Yards to other projects with public benefits such as Lincoln Center in Manhattan and Melrose Commons in the Bronx, neither of which have, as the Atlantic Yards plan would have, nearly 2000 luxury condos, 2250 market-rate rentals, and 900 (of 2250 "affordable" rentals) at or over market rate.

(In the print edition, there's a big picture of a smiling, benevolent Bruce Ratner.)

Case closed?

Louis calls it a "fool's errand" to go to federal court to impinge on state and local exercise of eminent domain. He notes Levy's citation that federal courts generally stay out of these cases. True, but the question here is whether the Atlantic Yards litigation, based on legal theories developed after the Supreme Court's 2005 Kelo vs. New London decision, will break new legal ground.

Louis predicts that the plaintiffs "will fare even worse in state court, which has long been bent in favor of giving government the power needed to build New York." Again, that's the history--but will this case break new legal ground?

Louis doesn't acknowledge Levy's respectful nod to the substance of the case:
Plaintiffs’ Amended Complaint raises serious and difficult questions regarding the exercise of eminent domain under emerging Supreme Court jurisprudence, many of which were explored in some detail at oral argument. However, in light of my recommendation that this court abstain, it would be inappropriate to address plaintiffs’ claims on the merits.

By the way, Louis also calls the plaintiffs "a handful of holdouts who refuse to sell their property." Actually, a majority are renters (mostly residential, one commercial) who have leases in buildings subject to eminent domain.

Hakeem Jeffries' negotiation

Louis closes by suggesting a model of compromise:
The model of how to do this was laid out by freshman Assemblyman Hakeem Jeffries. After winning election last fall - even before he was sworn in - Jeffries began talking with Ratner and put an entirely new demand on the table: creation of 200 subsidized units that people would own, not rent.

Guess what? Ratner agreed. As a result, hundreds more people will own their own homes, in addition to the thousands who will rent apartments at the site.

All it took was a bit of nerve, sharp negotiating skills and a willingness to face the reality that change in Brooklyn is at hand.

It wasn't exactly an "entirely new demand." The developer had long promised--though it's not memorialized in state documents--the creation of 600 to 1000 "affordable" for-sale units, on or offsite. The announcement in December was for 200 of those units onsite.

We still don't know 1) when those apartments would be built and 2) for what income brackets. I asked Jeffries those questions Wednesday night and he still didn't know.

More affordable housing, or a much slower process?

Indeed, unmentioned by Louis is the gap between Jeffries' current request and the developer's promises. Also unmentioned is the gap between the stated project timeline and the likelihood of far more delay in completing it and producing the affordable housing that supporters so often cite.

Jeffries told me he thought 50 percent of the housing in Phase 1 of the project should be affordable. (Right now, the percentage would be about 25 percent.) That's a significant gap, and meeting that demand would cut significantly into the developer's profits.

Moreover, in December a major project proponent, Kathryn Wylde of the Partnership for New York City, predicted the Atlantic Yards project could take 20 years to build, not ten. And just last week, project landscape architect Laurie Olin said it could take 20 years, requiring him to be contradicted publicly by the guy who hired him, Jim Stuckey of developer Forest City Ratner.

In other words, even as the developer "negotiates," the reality of a delayed development process undermines the developer's promises. When I told Jeffries of Olin's remarks, he seemed dismayed.

Louis's column offers this summary headline: With Ratner's wrecking ball in motion, arena critics must stop stalling and start dealing.

What exactly are they dealing? And with what leverage?

On objectivity, neutrality, and integrity in covering AY

[From my remarks yesterday at the Grassroots Media Conference. A lively crowd of about 50 came to listen to and question the panel, organized by Stuart Schrader of Picketing Henry Ford. Also participating were Lumi Rolley of NoLandGrab and Candace Carponter of Develop Don't Destroy Brooklyn. Attendees might notice that this version differs slightly from that delivered orally.]

I’m the most mainstream person sitting on this panel, and I don’t think there’s a contradiction between using mainstream training and experience in the service of grassroots media.

In fact, I think that grassroots media, held to professional standards, can be more intellectually honest and more responsible than the mainstream media.

I try to read everything. I read all the press. I read the documents regarding Atlantic Yards. There's lots of information in documents. That was the lesson from I.F. Stone in the 1950s and that's still true today.

The news ecosystem

Let me talk about the ecosystem for news coverage.

There’s an incredible mismatch between the news potential of this project and the attention and effort that most media outlets devote to it. Part is simply that Brooklyn’s an afterthought. Paul Moses, who teaches journalism at Brooklyn College--he says, “Nowhere in the country do so many people get so little local coverage.”
(Photo of crowd by Jonathan Barkey. Here's a full image gallery.)

Think about it. Brooklyn would be the fourth largest city in the country if it were independent. But the dailies covering Brooklyn assign maybe four or five reporters—for the equivalent of a city. If this were Philadelphia or Houston, the biggest project in the city would be on the front page--a lot. It would generate op-eds and columns and all sorts of careful coverage.

Instead, Atlantic Yards--even though the activism and blogging and independent journalism has had some effect—Atlantic Yards still does not get reporters looking much beyond the surface.

That’s left room for me.

I’ve dug into Forest City Ratner’s pattern of campaign donations. I scoured the state’s blight report—the highly questionable blight report—I’ve shown how their analysis of crime around the project site just isn’t believable. I’ve gotten documents from city agencies that show that Frank Gehry, the project architect, is working on another Forest City Ratner project across the street. Never announced. And I source what I do—it’s a blog—so my work is checkable.

I haven’t been completely successful. No one will reveal the housing subsidies for the project. And that’s key information, because it would help the public figure out whether Atlantic Yards is really worth it—and it would place the “affordable housing” issue in some context.

Mistakes still made

The press has gotten somewhat better, but they still make mistakes, way too many.

This past Tuesday, the Times reported that “the city and state approved the project.” The city had nothing to do with approval. They still haven’t printed a correction. Why does it take so long?

Today [Saturday], they published a really disturbing mistake. They ran an Associated Press story on the pending eminent domain lawsuit, saying that a magistrate had recommended that it be tossed out of court. “A U.S. district judge still has final say on whether the suit survives.” But that misses the point—the suit wouldn’t die, it would be transferred to state court.

[Apparently what happened was: the first version of the AP story left out the state court option. An updated version of the story added that important fact, but the reporter and editor didn't revise the lead. The Times, and some other news outlets, cut from the bottom but didn't rewrite the story, thus excising the state court option. Irresponsible.]

Journalist or opponent?

I actually called the Associated Press yesterday to say they needed to fix their story, after it first appeared, and they told me, "Well, we haven't been able to reach either side," and they asked me, “Are you an advocate?”

I’m like, "Well, opinions differ, but I did read the judge's decision and your guy apparently didn’t, so do your homework." And then I said bye—if I were really an advocate I would’ve stayed on the phone.

People call me a blogger or an opponent, and I’m not too happy with that shorthand.

I’m a journalist who writes a blog, and the reason that’s important is that the blog is just a format. People do different things with that format.

As for opponent or advocate. I resist that language, even though it may be futile.

I have been highly critical of the project, and I’m not neutral. That means I don’t think that balancing a quote from the developer and the opponents necessarily makes for honest journalism. That’s pseudo-objectivity.

I am often skeptical of the claims made by the developer and the supporters of the project. So that aligns me closer to project opponents, and that’s why I’m here today. But they don’t control my blog—I mean, today’s coverage, I wrote a nuanced piece on the judge’s decision and DDDB issued a press release—different content, different goals.

Still, it doesn’t make sense to try to find a mythical middle if you don’t do any digging. I mean, I don’t have to ask [DDDB's] Candace [Carponter] here if the project’s too big. Frank Gehry thinks the project’s too big.

I don’t have to find an activist to say that the approval process for this project isn’t democratic. The Regional Plan Association, mainstream group—they say the process is lousy.

So my criticism—or what seems to be opposition--emerges from my journalistic examination of the project, not the other way around.

What’s neutrality?

Calling me an “opponent” is a way of diminishing the credibility of my work. It also suggests, falsely, that other journalists and media outlets are really neutral.

And if I'm an opponent, that means that lazy and irresponsible journalism can turn journalists, in effect, into project proponents.

Objectivity is dead

Let me talk briefly about the death of objectivity. Here’s quote from Brant Houston, he’s the executive director of Investigative Reporters and Editors, a professional group. He says:
“Objectivity” was probably well-meant, but it’s been distorted, become so thin – sometimes meaning: Opinionless. Mediocre. Without a point of view. Disingenuous. Cowardly. I don’t want to discuss objectivity. I want to discuss credibility, accuracy. Is something as thorough about a subject as it can possibly be?... The idea is to know what your point of view is, to be open to other points of view, and to be open to your hypothesis being proved wrong by your findings.”

Let’s talk about fairness. Here’s a quote from Daniel Okrent, former New York Times Public Editor (It's Good to Be Objective. It's Even Better to Be Right., 11/14/04):
"Fairness requires the consideration of all sides of an issue; it doesn't require the uncritical reporting of any. Yet even the best reporters will sometimes display a disappointing reluctance to set things straight."

The city doubles the budget

Here's an example of some bad reporting. A little while ago, I discovered that the city had put $205 million in the budget for Atlantic Yards—that’s double the official pledge of $100 million.

That wasn’t hidden; it was right there for everyone to see, it’s just that none of the reporters either remembered the pledge or thought there was news.

I wrote a story. DDDB put out a press release. The Post and the Sun wrote stories. The Daily News and the Times ignored it.

So, am I and the others who reported this story opponents or responsible journalists? And are those who ignored the story irresponsible journalists? And does that make them, in effect, proponents?

The six-to-eight percent cut

Here’s a failure of commission, not omission. On September 5 of last year, after Labor Day, a slow news day, the lead story in the New York Times—the lead story, in the top right of the front page—had this headline: “Developer is Said to Plan Cutback in Yards Project.”

The second headline, what’s called the deck, said: “A Response to Criticism.”

That sounds like big news. Front page. Cutback. Response to criticism.

Now the Times, in the article, did report skepticism about the plan, but here’s what they didn’t say. The rumored six to eight percent cutback would bring Atlantic Yards back to the same size—in terms of square footage—the same size as it was when announced in December 2003.

Here’s what happened. The developer had increased the size of the project, then offered strategic cuts that were essentially meaningless.

Let’s look again at that second headline: “A response to criticism.”

That’s conclusory. How do we know it was a response, or just a tactic? The numbers suggest it was just a tactic.

In other words, the placement and framing of this story served the developer’s ends. It made something look like a concession even though it was most likely a tactic.

Then I got proof.

Some weeks later, thanks to a Freedom of Information Law request, I found a document that proved that most of this cutback—this front-page news—had already been proposed back in January by the developer. In other words, it was clearly a tactic.

Now this scoop made news in the Brooklyn weeklies, and the New York Observer, but the Times, and the other dailies, they ignored it.

Again, am I an opponent or a responsible journalist? Does the failure to consider that newsworthy demonstrate their journalistic integrity? Does it make them proponents?

Saturday, February 24, 2007

Magistrate says eminent domain case belongs in state court

In a setback for plaintiffs in the Atlantic Yards eminent domain case, U.S. Magistrate Judge Robert M. Levy yesterday recommended that the federal case be dismissed without prejudice, leaving those challenging condemnations to do so in state court, where they would have less leverage to argue that the project results from a sweetheart deal.

Levy’s report and recommendations centered on narrow procedural grounds rather than the merits of Goldstein vs. Pataki, which occupied the majority of the lively 2/7/07 oral argument in the case.

Though Levy’s recommendation to federal Judge Nicholas Garaufis is not binding, judges generally follow such recommendations. Still, the parties in the case have ten business days to file objections, and Develop Don’t Destroy Brooklyn, the coalition organizing the 13 plaintiffs—homeowners, business owners, and renters—promised to do so.

Forest City Ratner had no comment, but a spokesman for Mayor Mike Bloomberg praised the decision.

Press coverage

Irresponsibly, the New York Times today offers a brief Associated Press article on page B2, headlined Judge Urges Dismissal of Atlantic Yards Suit, that indicated that a judge "has the final say on whether the suit survives." It fails to acknowledge that the case could be refiled in state court, though longer versions of the AP story make that point. There's no disclosure of the Times Company's business relationship with Forest City Ratner. The Times, which in January promoted the one reporter who gained expertise regarding Atlantic Yards, never covered the hearing in the case. The Times today also offers an op-ed critical of Atlantic Yards, but the effect of that piece is diminished by the report on the lawsuit.

The Daily News, in an article headlined N.Y. home court in arena suit - judge, got the point that the case was being pushed to state court. The New York Post didn't cover it. The New York Sun, which offered significant coverage of the hearing, doesn't publish until Monday.

A procedural issue

Levy at first disagreed with two other procedural arguments made by the defense. Noting, however, that eminent domain is mainly a matter of state and local concern, he relied on a case known as Burford, which requires federal courts to stand clear when they might disrupt “state efforts to establish a coherent policy with respect to a matter of substantial public concern."

The plaintiffs looked on the bright side. "We are pleased that Judge Levy rejected all of the defendants' strained procedural arguments except one," said plaintiffs' lead attorney Matthew Brinckerhoff. He called the Burford abstention "a very rare and narrow exception to the general rule that federal courts are obligated to hear claims seeking to vindicate federal rights."

Jennifer Levy of South Brooklyn Legal Services, who represents tenant-plaintiffs in the case, noted that the plaintiffs were not challenging the intricacies of state eminent domain law but rather eminent domain as evaluated under the constitution. "The area of law under which the case is brought is purely federal, so federal court is the appropriate forum," she said.

Whether that argument will convince Garaufis, who also must weigh whether there might be a flood of similar cases, remains to be seen. If not, when the plaintiffs go to state court, they'll face more restrictions on their capacity to extract government documents that might prove their theory that the project was conceived by developer Bruce Ratner and immediately backed by the city and state.

A respectful nod to the charges

Near the end of his 42-page report, Magistrate Levy gave a respectful nod to the claims expressed in court earlier this month, in which Brinckerhoff argued that the benefits of the project were pretextual, and that the plaintiffs should be given the chance to prove that.

Lawyers for the defendants, including the Empire State Development Corporation (ESDC) and developer Forest City Ratner, contended that, as long as the project demonstrated a “public purpose”—and they said an arena, open space (which they erroneously called “parks”), and affordable housing certainly qualified—the courts have no role in serving as “super-planning boards of last resort.”

Levy seemed quite intrigued, tossing out hypotheticals in which a clear public purpose was balanced by a clear case of corruption, and asking where to draw the line.

Brinckerhoff pointed to the Supreme Court’s 2005 Kelo vs. New London decision, especially the concurrence written by Justice Anthony Kennedy, which looked askance at projects unlike that in New London, where the state had committed public funds “before most of the private beneficiaries were known” and a variety of development plans were examined—both arguably missing in this case. Lawyers for the defense said that Kelo applied only to eminent domain for economic development, not for blight removal, as in Brooklyn.

In a coda to his decision, Levy wrote yesterday, "Plaintiffs’ Amended Complaint raises serious and difficult questions regarding the exercise of eminent domain under emerging Supreme Court jurisprudence, many of which were explored in some detail at oral argument. However, in light of my recommendation that this court abstain, it would be inappropriate to address plaintiffs’ claims on the merits."

Yes, the case is ripe

Before recommending dismissal, Levy disagreed with two key arguments made by the defense. The defendants asked that the complaint be dismissed as not ripe for review, because condemnation proceedings have not actually begun.

Levy noted that the pertinent question “is whether the challenged condemnation is final, imminent, or inevitable,” but acknowledged that those concepts remain “amorphous, open to interpretation, and at any rate highly fact-specific.”

Still, he found “plaintiffs' injuries sufficiently concrete to be considered ripe for judicial review.” Even though the ESDC has not yet gone to court to acquire the properties at issue, the agency has issued a “Determination and Findings” regarding eminent domain.

Levy was dismissive of some defense arguments, noting that, while the ESDC had offered “a few examples of development projects that stalled or were abandoned after the condemning authority issued its Determination and Findings... they do not suggest that there is any danger of the Atlantic Yards Project meeting a similar fate.”

Abstention, version one

Levy, after spending spent more than 15 pages on the ripeness issue, devoted fewer than 13 pages to the issue of abstention, or whether the court should stay out of the case. For more than three pages, he addressed a case known as Younger, which states that federal courts should not interfere with ongoing state proceedings.

In this case, he noted, “there is no pending state court proceeding in which plaintiffs will have the opportunity to present the federal claims raised in the instant complaint.” While other plaintiffs have filed a case in state court challenging the ESDC’s plans regarding two specific properties, “that proceeding will not necessarily address or resolve the claims plaintiffs assert in this matter.”

Abstention, version two

Regarding Burford, Levy cited three factors identified by the Second Circuit Court of Appeals, including "[1] the degree of specificity of the state regulatory scheme, [2] the necessity of discretionary interpretation of state statutes, and [3] whether the subject matter of the litigation is traditionally one of state concern.”

“Here, the first and third factors weigh in favor of abstention,” he wrote, citing the “highly specific and comprehensive mechanism for condemnees” to challenge condemnation “in a state-created system of administrative and judicial review” under the Eminent Domain Procedure Law, or EDPL. (Still, as he suggested later, that’s not easy.)

Also, he wrote that “it is indisputable that eminent domain is traditionally a matter of local concern and that the state has a vital interest in establishing a coherent policy with respect to it.” He even noted that the Supreme Court's Kelo opinion emphasized “the 'great respect' that we owe to state legislatures and state courts in discerning local public needs.”

Why the venue matters

Levy then got to the crux of the matter: it’s easier to pry documents from the defendants in federal court. “Plaintiffs have good reasons for preferring federal court over state court, not the least of which is the lack of access to discovery in state court proceedings under the EDPL,” he wrote.

In a footnote, he offered an observation that, from the plaintiffs’ perspective, must be ominous: “As one court has explained, ‘under the EDPL, the [condemning authority] holds nearly all the cards, with any aggrieved party having little right to participate in the initial determination and limited right to judicial review thereafter.”

He agreed with the defense that a ruling in favor of the plaintiffs might send future litigants to federal court. “No prospective condemnee, given the choice, would opt for narrow, on-the-record (yet constitutionally adequate) review in the Appellate Division if all of the benefits of federal review were freely available,” he wrote.

The larger issues

In another footnote, Levy seemed to acknowledge the larger issues. “As a matter of public policy, the availability of discovery could reasonably be expected to promote a full and robust public debate and enhance the likelihood of rational decision-making,” he wrote. “However, the constitutionality of the EDPL is not in question in this litigation, and it is not the place of the federal courts to determine public policy in areas of state and local concern such as eminent domain.”

Arguably, the plaintiffs’ challenge under Kelo is a plea for courts, if not federal ones, to intervene in certain instances where public policy has gone wrong.

Still, while Levy acknowledged “this action presents important public policy concerns,” it is “essentially local in nature.” So, if the plaintiffs can’t convince Judge Garaufis to overrule Levy’s report, they will argue the important public policy concerns in state court, albeit without as much legal ammunition.

A Times op-ed critical of AY, 38 months later

Some 38 months after the Atlantic Yards project was announced, the first-ever national edition op-ed on the topic appears today in the New York Times. (One was published in the City section in November 2005.) Headlined A Developing Story, it makes some valuable points, especially in a venue unwelcoming to the topic, though--and who knows what the imposed boundaries were--it also falls short in some ways.

The author, novelist and journalist Jennifer Egan, is a regular contributor to the Times Magazine and an advisory board member of Develop Don't Destroy Brooklyn (DDDB). It's understandable that the Times would solicit a piece from a writer it knows rather than others even closer to Atlantic Yards debate, but the latter strategy might have produced an even tougher piece--or maybe one that the Times would've rejected.

The headline and lead

Start with the headline, which is not the writer's doing. It's bland, indirect. Not The Project That Ate Brooklyn, the headline on the flawed previous op-ed. Nothing about a battle or conflict or outrage. The pull quote is "What Brooklyn can learn from the Atlantic Yards affair."

It begins:
The developer Bruce Ratner broke ground this week on his Atlantic Yards project in Brooklyn, despite an eminent domain suit over property he must raze to build a basketball arena for the Nets. This “preparatory work” is Mr. Ratner’s latest maneuver in a maddeningly effective campaign to make his instant city — a 22-acre swarm of 16 residential skyscrapers (and a 20,500-seat arena) that would create the densest population swath in the United States — look and feel like a foregone conclusion.

That's an important point--"densest population swath"--and one that public officials should be challenged to defend. They haven't. The state has dodged the issue, pointing to high-density at transit hubs but not acknowledging that most is commercial space, not residential space.

In a coincidence that can only be described as "brutally weird," the Times today contains a story irresponsibly headlined Judge Urges Dismissal of Atlantic Yards Suit, thus suggesting that the eminent domain suit Egan highlighted is likely dead--but failing to point out that the case would be re-filed in state court.

In her essay, Egan takes some muted swipes at news coverage, but doesn't--or, perhaps more likely, isn't given the opportunity to--name names. The Times deserves some blame, especially today.

The view from Fort Greene

Egan, as with fellow Fort Greene resident Chris Smith in New York magazine last August, is skeptical of the state's environmental review, citing the already present "strain of poor planning for a rising population," such as the effect on traffic and schools.

She writes of the project size:
Nearly everyone I’ve spoken to about the Atlantic Yards project, whether they favored or opposed it, assumed that it would be scaled back. In fact, the plan approved by the Public Authorities Control Board in December was more than 600,000 square feet larger than the one first unveiled.

Actually, it was just about the same square footage as first unveiled. A more potent criticism would've been that the developer increased the size of the project and then scaled it back twice to square one, offering an illusion of scaleback, enabled significantly by a front page story in last September's Times. (I answered some fact-checking inquiries from Egan but not this one.)

No concessions

Despite "sobering revisions by the city and the developer of his initial heady claims about the project’s benefits to Brooklyn," Atlantic Yards "sailed forward with hardly a concession from Mr. Ratner (whose company is also building this newspaper’s new headquarters)," Egan writes.

Why was this different from the Norman Foster tower on Manhattan’s Upper East Side and the Jets stadium on the Far West Side, she asks.

State review

Her answer:
The most critical fact is that, because part of the property on the Atlantic Yards footprint belongs to the Metropolitan Transit Authority, a state organization, Mr. Ratner was allowed to bypass local checks and balances and work directly with Albany.

True, but someone let this happen. That's Mayor Bloomberg. As I wrote, the state and the city sometimes manage dual jurisdiction.

Egan also notes the absence of a wealthy corporate adversary like Cablevision, which fought the West Side Stadium, and the absence of protected buildings to involve the Landmarks Preservation Commission. (True, but preservationists suggest that a different kind of loss--of a sense of scale and place--should be recognized.)

Why the apathy?

Egan wonders why so many Brooklynites oppose the development but are apathetic. She writes:
What chance do we have, I was asked, when our mayor, governor and borough president are in lockstep with a private developer? News coverage has often left unscrutinized Mr. Ratner’s claims about the development’s financial benefits or the implications of its density and scale. This tacit approval has only added to the perception that the project is a done deal.

Let's add to that. Atlantic Yards has never been shown in neighborhood scale in the Times.

Community benefits?

She offers a bit too much credit to the Community Benefits Agreement:
The commitments Mr. Ratner made to these groups — should he honor them — are good ones: construction job training, small-business development and 2,250 units of subsidized housing.

Even this opponent doesn't point out all the tradeoffs and contradictions regarding the subsidized housing; the large percentage that's not affordable to average Brooklynites; the still-unrevealed amount of public subsidies; and the use of "affordable housing" to gain political support for a project that's out of scale. Indeed, the project, in the developer's p.r., has morphed from hoops to housing.

She notes one contradiction--much of the affordable housing "won’t be completed until 2016"--but could've been tougher. More than two months ago, a major project supporter acknowledged that the project, and thus the affordable housing, could take 20 years, and just this week project landscape architect Laurie Olin made the same point, forcing the developer to publicly contradict him.

What Brooklyn can learn

Egan's closing paragraphs point to the contradiction of Ratner allying himself with handpicked groups "run largely by African-Americans," casting himself as the savior of "working-class Brooklynites who favor jobs and housing in a battle against affluent, spoil-sport newcomers who have the luxury of fretting over their quality of life."

The loss was any real evaluation of the project. "Are we content to let our borough’s future be imposed on us by developers and politicians?" she asks. She points hopefully, if wishfully, to the "progress" evinced in the alternative UNITY plan for the MTA's Vanderbilt Yard, leaving a blueprint "should Mr. Ratner yet fail."

But it may be hard to be "united in advance on questions of jobs, housing and scale," given the city's willingness to invest in development over community planning. Thus, Egan's "healthy warning to elected officials who might consider placing these developers’ interests above our own" may have to come in court, as in the Atlantic Yards eminent domain suit, should the "serious and difficult questions" be heard. And the Times today, one section away, ignores Magistrate Judge Robert M. Levy's respectful nod to the merits of the case.

The questions raised in court about the state's designation of blight, the outline of the Atlantic Yards footprint, and the willingness of public officials to give Ratner a deal remain worthy of evaluation.

Previous essay

Egan's piece comes 15 months after the first-ever op-ed, from former borough historian John Manbeck, whose 11/13/05 City section op-ed piece was headlined The Project That Ate Brooklyn. I called it "critical but hardly coherent." (The Sunday City section circulates only in the five boroughs, so many interested in or impacted by the project didn't get to read it.)

As I wrote:
Manbeck's critical take on the project, calling the subsidies a "misuse of public funds," likely won't be welcomed by the developer, but at the same time he misreads critics, calling them NIMBYs, and, while criticizing the approval process, basically throws up his hands.

While Egan's op-ed is not as resigned, the Times today, given the news coverage, may lead readers to similar resignation.

Friday, February 23, 2007

A visit to the Atlantic Yards Community Liaison Office

So you're a member of the community and you take seriously Forest City Ratner's press release on Tuesday, which announced that "an Atlantic Yards Community Affairs Liaison Office, located onsite at 24 6th Avenue, will be open from 8am-4pm weekdays to provide updates and answers to any questions or concerns" about the preparatory work that's begun.

Yesterday morning, two days later, you walk up to the office, in the former Spalding building that was renovated into condos, at the corner of Pacific Street, part of the planned arena block.

(After demolition of the building, which is perhaps 60 feet tall, the lot would apparently be the site, in part, of 219-foot Building 3 and border 511-foot Building 4.)

The sign doesn't mention opening hours; that might deter some who haven't seen the press release or the web site. You remember what BrooklynSpeaks wrote: Interestingly, the sign doesn't clearly indicate that the office has been established by Forest City Ratner. And there's the crux: the government seems to be entrusting a private developer that's ultimately answerable to investors with the responsibility to manage the concerns of the community, rather than a public entity that's responsible to the public.

You open the door. A security guard asks if you work for the developer. No.

You tell him you're here to visit the new office. He asks you if you're a member of the community. Yes, you say, and ask if he is a member of the community; apparently he's not. You sign in. (They also have security cameras outside, just in case.)

The guard works for CopStat security, which, you remember, contributed $3100 to Tracy Boyland's Senate campaign, which was notable for her pro-Atlantic Yards stance, use of a consulting firm linked to Forest City Ratner, and failure to answer press questions.

[Update: despite a sign for CopStat, which also works on the project, actually the guards work for Eddington & Associates.]

He makes a phone call. Before the designated representative, a pleasant young fellow named Marcin, descends the stairs, you encounter Tom Tuffey, a member of Forest City Ratner's governmental affairs staff. You have a cordial though not completely pacific history with Tuffey, given that he last month cross-checked you when you tried to question CEO Bruce Ratner.

No place to sit

You follow the two into a former loft condo with polished wood floors, handsome wood shelves, and no furniture whatsoever. It is a stunning space, with ceilings at least 15 feet high. (Here's a look at another loft when it was occupied. When Forest City Ratner bought out the residents, the price was over $1 million for this first-floor loft--plus the seller's silence, assuming that the policy regarding nearby condos was practiced here.)

It is the first few days of operation and they promise a desk is coming. You wonder: Will the models and posters from the Oz-like Atlantic Yards Information Center be moved here as well?

Marcin hands you the press release that you already have. Tuffey asks if you're there as a community member or as press. Both, you say; you have only a few questions.

The questions

Is the Community Benefits Agreement, the document is cited so enthusiastically in the press release ("a voluntary and legally binding agreement signed by eight groups and ratified by over 200 community groups and leaders"), available at the Community Liaison Office?

No. Will it be? They will get back to you. (For some skepticism about that ratification, check the New York Observer.)

What if someone's concerned that construction has begun too early in the day or that the noise is excessive?

Call here, Tuffey responds. Surely, you ask, there's also a governmental role. They say they will get back to you.

When might Fifth Avenue be closed, you ask, and when might buildings be torn down for interim surface parking?

Again, they will get back to you.

A quick response

In the afternoon, just a few hours later, you receive a cordial but unsigned note by email, from
So you are clear, the office's primary function is to act as a liaison for FCRC and the community with respect to construction-related issues. It is a contact point for the community and local leaders to voice any concerns about construction activities. It is not a public relations office and any questions you have in the future, unless specifically construction related, should be directed to our PR office.

The questions posed, you think, were pretty much construction related. Still, you appreciate their prompt reply, especially since questions you've directed to the PR office have generally been ignored.

Then again, you remember that this was predicted by BrooklynSpeaks just a day earlier: If past experience is a guide, this office will appear responsive to community concerns, but little of substance will actually change about the plan or the proposed mitigations as a result of them. This will not be surprising. We should expect private companies to put their own interests first, ahead of acting in the public interest.

And you remember the Forest City Ratner press release two months ago, when the project was approved, which stated: Forest City Ratner will also open a community affairs office on the project site that will be operated and staffed during all phases of the construction project.

You think that "community affairs" may have already been narrowed to "construction-related issues."

The answers

The letter continued with specific responses to the questions posed:
1. Will there be a copy of the CBA available for public viewing at the CLO?
A. The community liaison office is a contact point for the community and local leaders to voice any concerns about construction activities not questions about the CBA. The CBA is available on our web site and we are happy to provide a hard copy to anyone who requests it. If anyone has questions about the CBA they are encouraged to contact us at

OK, you think, but if they're going to cite the CBA in the press release they give out, shouldn't people have access to the document? It would remind readers, for example, that the CBA signatory assigned to monitor construction activities doesn't really have anything to do.

2. Which government agency can members of the community approach if construction starts too early, or is too noisy, etc?
A. The fastest and best way to communicate any question or concern is to dial 311. The appropriate agency can then be notified and the issue addressed.

As for the questions about Fifth Avenue and interim surface parking, the response was the same:
A. It is too early in the process to address this question. We will of course provide the necessary alerts, information and updates as we get closer.

Direct communication

The press release issued 2/20/07 stated:
“As always, our contractors will conduct this work in the least intrusive way and we will be in direct communication with the local community to provide updates and address any concerns,” said Jim Stuckey, President of the Atlantic Yards Group at FCRC.

You wonder what kind of lead time there will be in the future. In this case, the announcement of the "prep work and construction of a temporary rail yard" was made the day the work began, though some news outlets got wind of it a day earlier.

Surely, you think, if a major street is closed, not just the developer but also the government will have to communicate with the community.

More on the "Footprints" saga: library says exhibit should've been renamed

I have a long article in this week's Brooklyn Downtown Star about the controversy over the "Brooklyn Footprints" exhibition. And the library offers a fuller explanation for its actions, including an acknowledgement that the exhibition should've been renamed.

Says the library's Jay Kaplan, “The library's ‘Footprints’ exhibition is not intended to be the original ‘Footprints’ exhibition minus the controversy. It is a separate, though largely overlapping, exhibition that falls within the very clear guidelines the library observes in choosing what to show. In retrospect, the library should have given the exhibition currently on display in its grand lobby a different title, so as to dispel the idea that it was merely re-presenting the original ‘Footprints’ exhibition originally mounted at Grand Space.”

My article also explores the American Library Association's interpretation of the Library Bill of Rights regarding exhibitions, the difficulty of drawing the line between documentation and advocacy, and the interesting question of what pro-Atlantic Yards art might be. Links to the art work cited are in a previous AYR post and also one from Paul Berger.

Thursday, February 22, 2007

Beyond "Brooklyn Matters": compounding and complicating the indictment

The documentary film Brooklyn Matters (click for future showings) doesn't claim to be comprehensive; rather, it's a powerful indictment . Still, upon another viewing of the film at Bishop Loughlin High School last night, I was reminded of two missing strands; one would have compounded the indictment, while the other would have complicated it.

Had Isabel Hill's camera captured the affordable housing information session held by Forest City Ratner and ACORN on 7/11/06, viewers might have seen a large crowd of working-class New Yorkers, mainly minorities, eager to gain access to subsidized housing, but dismayed that most would be either unaffordable to them and/or not available until the second phase, officially scheduled from 2010 through 2016.

Also, had a camera captured ACORN New York Executive Director Bertha Lewis at the housing debate held nearly a year ago, or in an interview longer than that in the film, Lewis might have made the point that Atlantic Yards promises more affordable housing than other developments in and around Downtown Brooklyn.

AY in and out of context

Indeed, under construction now are new luxury high-rises enabled by a Downtown Brooklyn rezoning that did not require affordable housing--a debate ACORN sat out.

Of course, the tradeoff is that the Atlantic Yards affordable housing was used to gain political support for a project that even architect Frank Gehry admits is out of scale. Had Lewis and ACORN protested the Atlantic Yards plan and called for inclusionary zoning, undoubtedly any development at the Metropolitan Transportation Authority's Vanderbilt Yard would have required affordable housing.

Would it have provided as much? Not on paper, because the 8.5-acre railyard isn't 22 acres and a rezoning of the adjacent blocks might require affordable housing but not permit the scale of the Atlantic Yards project.

However, even project supporters and landscape architect Laurie Olin have said that construction might last 20 years, not ten. At the post-film discussion last night, Ron Shiffman, founder of the Pratt Center for Community Development, pointed out that 2250 affordable housing units over 20 years would produce fewer than 120 apartments a year--and that an alternative project involving just the Vanderbilt Yard and a redistribution of subsidies might produce more units faster.

(More than 200 people attended the film, sponsored by the Fort Greene Association and the Society for Clinton Hill. Update: An organizer says the school rep estimated 300; the Brooklyn Paper reported some incidents in which posters were torn down.)

Would ACORN have been designated to manage the affordable housing? Certainly not all of it. So Lewis and ACORN made a choice that reflected the organization's mission but also some institutional self-interest.

Singleminded ACORN

Lewis, at a housing debate 2/28/06 defended ACORN's role as a pragmatic response to the situation in Brooklyn: "I can't kick ass on environment, just can't. Can't do it on density, just can't. It’s reality. Of all the things that are happening in central, downtown Brooklyn, throughout Brooklyn--this is like a goddamn tsunami. It’s for real, this shit is coming. So, if I could stop one iota of gentrification, I’ll do it. I can't do environment. I can’t do traffic. But we're not just singleminded and coldhearted."

However, at the 8/23/06 hearing on the Draft Environmental Impact Statement, ACORN members did appear singleminded, often disparaging those who tried to discuss the project's environmental impact, and cheering for those who talked about housing and jobs.

Now Lewis provides revisionist views of the project's history, suggesting that, without ACORN, the project would've contained no affordable housing.

The "tsunami" continues

Still, Lewis's "tsunami" comment can't be dismissed; it's a reminder that public officials have not moved quickly enough in response to the distended housing market.

Indeed, her choice of language was echoed, interestingly enough, by Rabbi David Niederman, a Hasidic community organizer in Williamsburg, in the Washington Post yesterday. The newspaper reported on the astonishing changes in Williamsburg, as new condo towers born of a recent rezoning are harbingers of change and displacement.

But it's hardly the free market; Williamsburg, after deindustrialization, became attractive to artists and hipsters--the first wave of change--only after significant city investment in stabilizing the existing housing stock.

The Post reproted:
But dislocation looms. The median family in Williamsburg earns $27,466 and spends 45 percent of its income on rent. The three-piece-suited newcomer hails from the financial sector, where the average salary is $195,857. "How do we compete with this tsunami?" Niederman asks. "Our insularity is no match for this money."
(Emphasis added)

Where does it end? One person in the article says he's leaving for Pennsylvania. City University anthropologist Neil Smith offers an interesting quote:
"We are witnessing the corporate and geographical restructuring of cities -- the wealthy are suburbanizing the center and pushing the poor to the fringes, and it's turbocharged," Smith says. "Artists are disposable -- developers just toss them out in hopes they'll colonize the next 'hot' neighborhood."

Bargaining with developers

And then there's an observation quote that seems quite relevant to the Atlantic Yards debate:
"Clearly the city didn't drive a hard enough bargain," says Martin Dunn, a developer of low-income housing. "What was wrong with holding developers to a mere 500 percent profit?"

How much would Forest City Ratner earn for the Atlantic Yards project? We don't know, but New York magazine estimated $1 billion, based on a slightly larger design. The city sat out the bargaining. Did the Empire State Development Corporation and the MTA drive a hard enough bargain?