This story, in slightly different form, originally appeared in the New York Law Journal.

NEW YORK CITY-Activist Daniel Goldstein may have been the most visible and most vocal opponent of the Atlantic Yards project, but his settlement with the project's developer, Forest City Ratner Cos., does not mark the end of the legal battle against the $4.9-billion development.

Goldstein agreed Wednesday to move out of his condemned apartment, step down from his position as spokesman of Develop Don't Destroy Brooklyn and take his name off all pending Atlantic Yards litigation in exchange for $3 million. However, four actions intended to thwart the downtown Brooklyn project remain ongoing. Three of those actions have been dismissed at the trial level and plaintiffs have filed notice of appeal. The fourth has yet to be heard.

Two of the actions challenge the modified general plan affirmed in September 2009 by the Empire State Development Corp., the public authority that invoked condemnation. The petitioners, including DDDB, contended that because the construction of Atlantic Yards may take 25 years and the project's environmental impact statement evaluated only a 10-year period, the development corporation should be required to prepare a supplemental statement.

The two cases were argued together and dismissed in a single opinion by Manhattan Supreme Court Justice Marcy S. Friedman on March 10. "Under the limited standard for SEQRA review, the court is constrained to hold that ESDC's elaboration of its reasons for using the 10-year build-out and for not requiring [a supplemental environmental impact statement] was not irrational as a matter of law," Justice Friedman wrote.

The petitioners in both of those cases—Develop Don't Destroy Brooklyn v. Empire State Development Corp. and Prospect Heights Neighborhood Development Council v. Empire State Development Corp.—have filed motions to reargue and notices of appeal.

A third case, Peter Williams Enterprises v. New York State Urban Development Corp., 100738/10, a hybrid Article 78 and declaratory judgment action, is also before Justice Friedman. Those petitioners—which include the iconic Freddy's Bar, which has announced plans to move, and, until his name is removed, Goldstein—are seeking, among other things, an order requiring the state's Urban Development Corp. to consider the "public use to be served" by the Atlantic Yards project. Justice Friedman has yet to rule on pending motions to dismiss and to change venue.

A fourth action, Montgomery v. Metropolitan Transit Authority, filed by four elected officials and challenging amendments to the original development plan, was dismissed by Manhattan Supreme Court Justice Michael D. Stallman in December. The judge concluded that, among other things, the plaintiffs lacked standing.

On a separate track is Matter of New York State Urban Development Corp., brought by the ESDC itself as a necessary final step to acquire title under the state's Eminent Domain Procedure Law. That action is before Brooklyn Supreme Court Justice Abraham Gerges and led to Wednesday's settlement between FCRC and its best-known opponent, Goldstein.

The numerous ongoing actions notwithstanding, both sides have signalled the possibility that the settlement with Goldstein may mark the end of the real fighting. At least a dozen cases have been filed attacking the project, all of which, other than the recently filed Peter Williams Enterprises, have been dismissed. The courts have yet to order an injunction or a stay or to make a major ruling in favor of the opposition.

Goldstein's attorney, Michael Rikon, who is a partner at Goldstein, Rikon & Rikon and a columnist for the New York Law Journal, says the "snowball effect" of successive lawsuits reduces the likelihood of success for the remaining actions. "They could be absolutely correct, but I don't think they'll prevail. That's what happens when there's a multitude of challenges," says Rikon, who specializes in condemnation. "In my experience, judges just say, 'This has been litigated so many times.'"

The lead attorney for FCRC, Jeffrey L. Braun of Kramer, Levin, Naftalis & Frankel, says, "We think that what's left is simply a small number of efforts to either ask for reconsideration [or seek appeal] of issues that were already resolved in support of the project or appeal from favorable rulings to higher courts. We think these issues have been correctly resolved by the judges who have addressed them, and that those rulings should stand up."

The lead attorney for DDDB, Jeffrey S. Baker of Young Sommer Ward Ritzenberg Baker & Moore, acknowledges that his client faced "an uphill battle." He adds, however, that the ongoing legal actions focus on the project's second phase, which includes the majority of the residential construction.

"All of the supposed benefits of the project are primarily in Phase 2 and those are ephemeral benefits because it is unlikely that those are ever going to be built, and certainly not in the time frame proposed," Baker says.

Mark Fass can be reached at mfass@alm.com.

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Atlantic Yards Still Faces Legal Loose Ends

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