Mixed Ruling at Atlantic Yards: State Lawyer Booted, but Demolitions May Proceed
UPDATE Feb 16: Develop Don't Destroy Brooklyn reports that the ESDC has decided to appeal the disqualification of their/Ratner's lawyer.
A State Judge ruled today that the Empire State Development Corporation (ESDC), which is reviewing Ratner's development plan for the Atlantic Yards area in Prospect Heights, must dismiss its retained attorney David Paget. Until working for ESDC Paget was Ratner's attorney, and was actually working on Ratner's proposal to the ESDC. Since joining ESDC Paget, until today, was empowered to make decisions about the Ratner proposal. The State Judge decided today this is a clear conflict of interest and ordered Paget dismissed form ESDC. The judge stated that retain counseling with a clear conflict of interest would harm the public interest and have a "crippling" effect on the integrity of the ESDC review process.
The decision to boot Paget from ESDC was one half of the judge's ruling in a case brought by Develop Don't Destroy Brooklyn and a coalition of Brooklyn community groups and Brooklyn lawmakers. In the other half the judge ruled in Ratner's favor to allow demolition of six buildings owned by Ratner. The decision to allow the demolitions to proceed seems odd, in that, it was Paget who authorized their demolition. Develop Don't Destroy Brooklyn and the community groups contended that demolishing the buildings now compromises the Review Process and runs afoul of the ESDC's own rules which say you can not do anything to effect a site that is under review, because the very things you do, such as demolish buildings are considered in that review. Ratner claims the buildings are in danger of imminent collapse. DDDB, in the lawsuit, asked that an independent inspector be allowed access to review Ratner's claim. The judge denied that request. DDDB and the coalition are considering an appeal.
onNYTurf back story here and here.
Norman Oder at Times-Ratner Report has play-by-play details of the hearing. Awesome journalism, but a lengthy read. More interesting than the play-by-play however might be Oder's comments at the bottom. Unfortunately they area easily missed as they are rendered at like a 5px font size. WTF Norman?! This is a great write up, please increase the font size! Here are some jems from his analysis:
"The plaintiffs had an extremely difficult case to make for blocking the demolitions because of the circuitous way the law is structured, which highly favors the developers. The judge split hairs by saying the plaintiffs' attorney had "gone down the wrong path" in pursuing a decision under Article 78 as a Type 2 action rather than move to have it reviewed as a Type 1 action. (Type 1 involves an environmental review, which the entire project is already governed under. Type 2 does not allow for a "hard look" necessary to order an independent assessment.) The plaintiffs were in a bind constructed by the developer; the developer asked the ESDC for a Type 2 waiver, and the plaintiffs asked to have the Type 2 waiver nullified. To additionally ask that the review to which they responded be treated as a Type 1 would have opened the proceedings to tortuous claims by the developer about motives and accusations of "creating new law." Besides, the plaintiffs had precedent for expanding the treatment of Type 2 reviews, which the judge totally ignored (and which may work to the plaintiffs' benefit.)
I think the judge was very careful to walk a fine line in these deliberations and left plenty of room for appeal by both parties. FCRC and ESDC spent a lot of time trying to box her in by citing the minutiae of decision making processes frequently ignored, and saying flat out that Appeals Courts have said that a judge cannot overturn a decision by a State Agency (which is pure hooey, especially if the decision making process of the state agency can be seen as tainted by something like, oh, maybe conflict of interets...) Heavy handed, but she addressed it pretty handily. Her hint to the ESDC that her decision on the David Paget conflict of interest may not stand up to appeal was, I think, pro forma. It won't be overturned and I would be surprised if the ESDC even appeals it within the 45 day window. Not with the media attention this is going to get.
But her decision to not issue an injunction blocking the demolitions is much more open to successful appeal. As stated earlier, the plaintiffs' attorney cited precedent for expanding the traditional view of a Type 2 action to include the "hard look" usually reserved for a Type 1 action (EIS). By refusing to consider the cited precedents the judge has left the plaintiffs a HUGE opening for a successful appeal.
"
I think the judge was very careful to walk a fine line in these deliberations and left plenty of room for appeal by both parties. FCRC and ESDC spent a lot of time trying to box her in by citing the minutiae of decision making processes frequently ignored, and saying flat out that Appeals Courts have said that a judge cannot overturn a decision by a State Agency (which is pure hooey, especially if the decision making process of the state agency can be seen as tainted by something like, oh, maybe conflict of interets...) Heavy handed, but she addressed it pretty handily. Her hint to the ESDC that her decision on the David Paget conflict of interest may not stand up to appeal was, I think, pro forma. It won't be overturned and I would be surprised if the ESDC even appeals it within the 45 day window. Not with the media attention this is going to get.
But her decision to not issue an injunction blocking the demolitions is much more open to successful appeal. As stated earlier, the plaintiffs' attorney cited precedent for expanding the traditional view of a Type 2 action to include the "hard look" usually reserved for a Type 1 action (EIS). By refusing to consider the cited precedents the judge has left the plaintiffs a HUGE opening for a successful appeal.
"
Dare we be optimistic?!
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