Judge: Opponents of Atlantic Yards project entitled to legal fees

September 30, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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Prior to the erection of the Barclays Center—home of the Brooklyn Nets, the first major professional sports team in Brooklyn in over 50 years—community groups throughout Brooklyn, and in particular Prospect Heights, fought hard against the development of the Atlantic Yards Project. While the Barclays Center was completed despite the many challenges against it, a New York judge has ruled that the opponents of the Atlantic Yards Project are entitled fees and expenses incurred during their fight against the development project.

Develop Don’t Destroy (Brooklyn), Inc. (DDDB) and Prospect Heights Neighborhood Development Council, Inc. (PHNDC), fought many aspects of the Atlantic Yards Project, primarily New York State’s use of eminent domain to remove Brooklyn residents and business owners in favor of Empire State Development Corporation (ESDC) and the private developmer of the Atlantic Yards Project, Forest City Ratner. Unable to succeed on that front, the DDDB and PHNDC argued that ESDC had affirmed and then failed to comply with a series of state environmental rules and regulations as related to the project.

In 2011, New York City Acting Supreme Court Justice Marcy S. Friedman ordered ESDC to prepare a statement considering the environmental impact of the project, whose second phase is slated to run from 2019-2035. The ESDC appealed the requirement for an environmental statement and was denied appeal by the Appellate Division, First Department.

DDDB and PHNDC viewed the order for an environmental impact statement as a victory and requested reasonable attorneys fees and expenses as generally allowed the victor in civil suits. ESDC challenged the request, arguing that DDDB and PHNDC were unable to accomplish the their ultimate goal: staying the erection and progression of the Atlantic Yards Project.

New York rules allow for the payment by the losing party of legal fees and expenses of the prevailing party to a civil suit “unless the court finds that the [actions of the state] was substantially justified or that special circumstances make an award unjust,” the determination of “substantially justified” resting on judicial discretion. Finding no substantial justification as to why the ESDC should not have been required to include an environmental impact statement, Friedman ruled this month that DDDB and PHNDC claimed a significant victory in arguing in favor of and obtaining an order for the impact statement despite a “failure to obtain injunctive relief” on the entire Atlantic Yards Project.

“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.

Friedman granted the request for legal fees, though has ordered a special referee to review the legal fees and expenses to be disbursed. The groups have asked for over $323,000 in fees and expenses.