We barely knew yee, Ellerbe arena. (Courtesy ESDC)
We recently wrote above how opponent’s best hope of stopping Bruce Ratner’s Atlantic Yards Project was not the departure of Frank Gehry but lawsuits. There was a good possibility the “sweetheart” deals the state had crafted to make Ratner’s project easier to move forward could have triggered further litigation, but it seems it may not even come to that, as the Court of Appeals, the state’s highest court, has decided to hear Develop Don’t Destroy Brooklyn’s challenge to the state’s use of eminent domain. With oral arguments not due until October, the outcome of the suit may not even matter, as it will likely further delay a scheduled fall groundbreaking on the new arena and could make it even harder for Ratner to secure tax-exempt financing before year’s end.
Update: Forest City Ratner remains confident in the success of its project, with spokesman Joe DePlasco emailing along the following statement:
The Appellate Division ruled unanimously in May in favor of the use of eminent domain because of the public benefits associated with Atlantic Yards. We’re confident that the Court of Appeals will come to the same conclusion. We are moving forward aggressively following last week’s approval by the MTA and authorization by the Empire State Development Corporation. We intend to be in construction before the end of the year.
What he failed to mention but what the Observer astutely, uh, observed was that the decision to hear the case in October was in contravention of a request from the state’s attorneys to hear the case no later than September 9. This could be seen as yet another attempt by the state to accomodate the developer’s very tight timeline for financing and construction, something that has been an acute complaint for opponents. Whether or not it means greater sympathy from the court, who knows, though it is also a welcome sign of judicial independence.
As we noted above, litigation, while often unsuccessful, has been at the heart of opponents’ efforts to stall, and thereby derail, Ratner’s project. In fact, the deals reached last week will tentatively be rescinded if Ratner cannot secure financing by March 31, 2010, be it tax-exempt or otherwise. Depending on whom you ask, DDDB and company were given a decisive rebuff by the state appellate court’s unanimous dismissal of the eminent domain case back on May 15 or a more apologetic there’s-nothin’-we-can-do rejection. This may still be the case, but again it may not matter.
As the dogged Norman Oder put it a thorough post on his Atlantic Yards Report: “At the very least, the appeal delays Forest City Ratner’s announced plans to begin construction by October and severely narrows–but does not close–the window of opportunity to have crucial tax-exempt bonds issued by the end of the year.”
He also recounts the constitutional issues raised by the lower court’s decisions that could lead to a different outcome at the Court of Appeals, which he had previously expounded upon when the state first asked the court to allow its “slum clearance” program to go forward earlier this month.