Foes of Brooklyn Development Entitled to Fees, Judge Rules
Community groups challenging the Atlantic Yards project in Brooklyn are entitled to legal fees, according to a state judge who determined they sufficiently prevailed in the litigation.
In 2009, Develop Don't Destroy (Brooklyn) and Prospect Heights Neighborhood Development Council filed Article 78 petitions challenging the Empire State Development Corporation's affirmance of a modified building plan for the controversial project.
In light of the development corporation's revised timetable that pushed expected completion of the 22-acre, two-phase project from 2019 to 2035, Supreme Court Justice Marcy Friedman (See Profile) in 2011 ordered the corporation to prepare a supplemental environmental impact statement. That ruling, which addresses the planned second-phase construction of principally residential space, was affirmed by the Appellate Division, First Department (NYLJ, April 13, 2012 and July 15, 2011). Leave for appeal was denied in June 2012.
The groups filed motions for legal fees, which Friedman granted in a Sept. 20 decision over opposition from the development corporation.
"Given the magnitude of Phase II construction, and petitioners' goal of obtaining further review of the environmental impacts of such construction, the court holds that they have succeeded in achieving a substantial part of the relief sought in this litigation," Friedman wrote in Develop Don't Destroy (Brooklyn) v. Empire State Development Corporation, 116323/2009.
Friedman also ordered a special referee to report to her on the amount of legal fees to be awarded. The groups are seeking more than $323,000 in fees and expenses.
The groups filed the motion under New York's State Equal Access to Justice Act, which says courts "shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust."
The Empire State Development Corporation contested the motion, arguing it was a "public benefit corporation" and was not a state agency, and that the groups did not prevail.
Though the groups' underlying petitions also named the project developer Forest City Ratner Companies as a respondent, the fee motion under the Equal Access Act solely applied to the development corporation.
Friedman said the corporation could be considered a state agency in the instant case; she observed it was "acting as lead agent for the [State Environmental Quality Review Act] review of the Atlantic Yards Project, and thus performing a 'fundamentally governmental' function as a decision-maker."