Belmont Update January 22, 2020

Board Report Deputy Mayor Kevin Fitzgerald January 21st Village Board Meeting: 

On Friday, January 10, 2020, three days after the filing deadline for submissions in the Village’s litigation against Empire State Development (ESD), Franchise Oversight Board (FOB) and New York Arena Partners regarding the Belmont Redevelopment Project (the “Project”), ESD finally produced some documents in response to the Village’s counsel’s Freedom of Information Law (FOIL) requests.  These documents were produced five months after the most recent FOIL request in August 2019.  Moreover, the documents just produced should have been produced in response to the Village’s October 2018 FOIL request – over a year ago during the environmental review process, but they were not.  It is also telling that, immediately after these documents were released, ESD attempted to retract the release of these documents, despite the lack of any legal basis to withhold these documents from public disclosure.  Moreover, while ESD finally produced a handful of responsive documents, it withheld an unknown number of others.  Meanwhile, the same August 2019 FOIL request was filed with the FOB and has failed to provide any substantive response over the past five months, indicating that both agencies have been trying to evade transparency and looking to run the clock on the pending litigation. 

A quick review of the documents produced strongly suggests why ESD sought to avoid releasing these documents.  In our view, the documents belatedly turned over by ESD further support the Village’s contention that the entire process, from well before the commencement of the Request for Proposal (RFP) process and continuing through the environmental review process conducted by ESD, was merely a show to hide a predetermined outcome. Ultimately, this project was conceived in secret and pushed through to approval without adequate regard to the project’s impact on surrounding communities, including Floral Park.

Our counsel, Beveridge & Diamond, submitted a request to Judge Mahon on Friday, January 17, 2020 requesting that these documents also be considered by the court.  A copy of Beveridge & Diamond’s submission can be viewed below. Some of the documents from ESD reveal that senior members of ESD (including, significantly, its Chairman and its Vice President of Planning and Environmental Review) and other senior State Officials were in receipt of a secret “master plan” for the redevelopment of Belmont in 2016.  The communications further reveal that multiple meetings with ESD and FOB were scheduled to occur.  It is important to note that in 2016 there was already an open RFP for the site. That RFP was abruptly cancelled and a new RFP was issued six months later.  In hindsight, now that we have this additional information, it is extremely difficult not to conclude that the new RFP was designed specifically for this project that was already known to various senior members of ESD, including the individual at ESD responsible for ensuring compliance with SEQRA. In light of these documents, which ESD was so reluctant to release, it is extremely difficult to accept ESD’s assertion that the process by which the project was selected was “open and competitive”, as required by State law.

Another troubling aspect of this for the communities surrounding Belmont is that ESD designated itself as the lead agency to conduct, and ultimately decide the adequacy of, the environmental review for this project under the State Environmental Quality Review Act (SEQRA).  It is nearly impossible to accept that ESD undertook this crucial role in an objective and unbiased manner when it has sought to hide the fact that it apparently played a critical role in the development of this specific project.  Are the residents of the communities that are to be impacted by this project supposed to be confident that the near unanimous request of residents that this project be significantly scaled back in size and scope to reduce the project’s impact was properly considered by ESD when ESD has gone to great lengths to conceal its involvement in the development of this oversized project?

Just one example of why this is so troubling is the glaring deficiency of ESD to include a proper analysis of the alternative to building this project without the 435,000 square foot retail mall (that is, having the project proceed with just the arena aspect of the proposal). Clearly a “No Mall Alternative” should have been included and thoroughly analyzed in the Draft Environmental Impact Statement so that the impacted communities could review and comment on the adequacy of the analysis.  Rather, ESD inserted a perfunctory and flawed “No Mall Alternative” in the Final Environmental Impact Statement, giving the impacted public merely a few days to analyze and comment on it before the ESD Board, without questioning this, approved the project. When you view these facts, it is hard to believe that ESD “gave primary consideration to community wants and desires” as they are required to do by State law that created ESD.  

Some questions that now must be asked and answered:

  • SEQRA “requires all state and local government agencies to consider environmental impacts equally with social and economic factors during discretionary decision-making”.  When a lead agency shepherds a proposal through the environmental review process, it must ensure that it is subjected to public scrutiny.  This requires full transparency so that the public’s participation is meaningful and informed.  Otherwise, a principal objective of SEQRA is violated.   ESD’s efforts to conceal these documents point to a predetermined outcome and raises serious concerns over whether ESD fulfilled its obligations as lead agency under the SEQRA process.  Is this indicative of how the State is representing the interests of impacted communities, and New York taxpayers generally, in relation to private development on State-owned land? 
  • In the press release in July 2017 when the RFP was issued, Howard Zemsky, the Chairman of the ESD stated “We encourage respondents to submit creative proposals that stimulate vibrant community and economic growth in the region.”  As it is now evident that eight months before the RFP was issued, Mr. Zemsky and other high-level State officials received a secret master plan virtually identical to the now approved project.  Did the ESD really expect or want creative proposals to be brought forth, particularly since the RFP was narrowly tailored to meet the plan that was previously reviewed in detail by him and other senior members of the ESD? 
  • ESD attempted to recall the FOIL production that was received by Beveridge & Diamond on January 10th.  Why did they try to recall the production?
  • ESD delayed five months to provide a substantive response to the Village’s August 2019 FOIL request.  Why did it take ESD five months to produce four emails and why was the production made after the deadline for filing final documents with the Court? 
  • As Beveridge & Diamond points out in its recent filing, while some documents were produced, there are other documents that ESD refuses to release and FOB has not provided a substantive response at all. Why are ESD and FOB refusing to release responsive documents?
  • ESD, through its spokesperson Jack Sterne, on a number of occasions has stated “The Belmont Redevelopment Project has gone through a transparent, public process over multiple years, and has adhered to all requirements under state law.”  If it was transparent, why wasn’t this secret plan disclosed before the RFP was issued, or at least promptly in response to the October 2018 FOIL request?

In closing, I think all residents of Floral Park, the surrounding communities and the entire State should be extremely disappointed in how this entire process has unfolded and continues to unfold.  In the past, the Village and its residents have always brought forth reasonable questions in the interest of ensuring that our community is not significantly impacted in a negative manner.  The Village and its residents never said they were against development at Belmont Park. All we asked for (and quite frankly have a legal right to) was to have meaningful input in the process from the beginning.  It is now even clearer, based on the aforementioned partial discovery, that it appears that it never was the intent of the ESD as lead agency to have meaningful conversations and take those concerns from those meetings into serious consideration.  The meetings and entire SEQRA process that were held were just a “check the box exercise” as the project apparently was deemed to be approved since 2016. 

The Village of Floral Park is a special place and we continue to fight to ensure it remains that way!

Affidavit of Affirmation in Support

Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Letter-Correspondence to Judge (Oral Argument)
Letter -Correspondence to Judge