As the Atlantic Yards saga has unfolded, the Atlantic Yards Report has served as a well-researched watchdog, analyzing details that were being overlooked by the mainstream press. The blog is run by Norman Oder, a journalist with more than 25 years of experience. Oder is not shy about the fact that he’s a critic of the Atlantic Yards proposal by Forest City Ratner, which would include a new arena for the New Jersey Nets. But he also prides himself of the amount of sourcing that goes into his posts.
With two new lawsuits recently filed against the project, NAS thought this was a good opportunity to talk to Oder about his recent research, and where he believes this project, and the Nets potential move to Brooklyn, may be headed.
NAS: Develop Don’t Destroy Brooklyn (DDDB) has already lost several rounds in the legal fight challenging the Atlantic Yards project. What makes the latest suits–challenging the Metropolitan Transportation Authority (MTA) and the Empire State Development Corporation (ESDC)–any different?
Oder: DDDB has filed–or organized/funded–five major lawsuits, plus a sixth:
1. Blocking planned demolitions–lost. (This is the minor case.)
2. Challenging environmental review–lost at two levels of state court, request for appeal pending at state Court of Appeals.
3. Eminent domain #1–lost at two levels of federal court; request for appeal to Supreme Court denied.
4. Eminent domain #2–lost at first level (Appellate Division) in state court; appeal to Court of Appeals heard on October 14.
5. Challenge to MTA revision of deal–just filed.
6. Challenge to ESDC re-approval of deal–just filed.
I’m not a lawyer, I’m a journalist (who sometimes talks to lawyers), so don’t consider this definitive.
All of the cases are uphill challenges, given that, in none of the cases the plaintiffs/petitioners have been able to call their own expert witnesses and challenge defense witnesses under oath or proceed with discovery to extract new information. In other words, the courts evaluate the case based only on the administrative record. They generally defer to the administrative agencies if the agencies acted on a “rational” basis–a very low bar, as opposed to a higher level of scrutiny. Other states make it easier to challenge the government’s determination in eminent domain cases, though cases challenging environmental review are always tough.
That said, as I’ve written regarding the newest suit against the ESDC, there are some very inconvenient facts regarding the announced and promised 10-year construction timeline, such as the MTA deal that structures payment over 22 years and proposed ESDC leases that allow 25 years for construction.
And the suit against the MTA raises some very interesting questions, since the Public Authorities Accountability Act of 2005, the basis for the case, has not—to my knowledge—been invoked previously in this way. And, at least as far as my Freedom of Information Law request showed, the MTA board members got no written legal advice–other than a check-off on a Staff Summary–stating that their action was appropriate, even though board member Jeffrey Kay told fellow board members on June 24 that the MTA’s “legal department has advised us that this is a legal transaction.”
Some people say these cases are only efforts to delay the project and throw a wrench into the effort to sell tax-exempt bonds. While they certainly might have that effect, they raise some important issues that no other oversight body has been willing to pursue. That’s why, whatever the uphill challenge, it’s valuable–from my POV–to see the cases ventilated in court, with the government agencies required to respond to some tough questions.
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Mark and I are continuing the process of getting you prepared for the season, which couldn’t be closer. Mark already talked about 
