By Arthur Z. Schwartz
Nineteen years ago I stood with a group of youth soccer and little league dads (including current CB2 Chairman Tobi Bergman) in the lobby of the Governor’s office, talking about how we could stop a lease from going forward at Pier 40. It was a big step for the park, which hadn’t been built, because two businessmen were going to lease the Pier for $4.5 million a year and turn it into an improved parking facility with a film studio and other small business projects. It was the night before the lease was to take effect, and I volunteered to try to get an injunction as the lawyer for the youth leagues and for local block associations.
That night, in her apartment, Judge Alice Schlesinger granted a TRO and the lease was blocked. Months later, after full briefing, Judge Jane Solomon issued an opinion that actions on Pier 40 were subject to the State Environmental Quality Review Act (SEQRA), and that the manner in which the lease had been negotiated and signed violated SEQRA.
The Hudson River Park Conservancy (HRPC), which entered into the lease, had only complied with SEQRA’s requirements in a cursory manner, and the courts had held that the law’s requirements were to be “liberally construed” and that compliance was to be “substantial.” HRPC had literally done a “back of the envelope” Environmental Assessment in concluding that there were no impacts triggering the need for a full Environmental Impact Statement. This cursory compliance with the law was fatal to the project, Judge Solomon said, and she struck down the lease.
During the litigation we were joined by the Environmental Defense Fund and its counsel, Michael Gruen. The President of HRPC at the time was Tom Fox.
Before the judge entered her order, Governor Pataki came riding to the rescue. We met in his chambers over several months and came up with a plan to save the $4.5 million-per-year lease—there would be ballfields on the roof and the State would pick up the $2.5 million construction tab. Hence the birth of today’s Pier 40, a mix of parking and ballfields, batting cages, human-powered boating facilities, and the offices of HRPC’s successor, the Hudson River Park Trust (HRPT).
Shift forward to November 2014 and the public announcement that the HRPT had been negotiating secretly for over a year and a half with media mogul Barry Diller about the creation of Pier 55, a new island to be built between the Pier 54 pile fields and Pier 57, a former bus depot between 16th and 17th Streets.
The negotiations had been secret, authorized, HRPT said, by an amendment to the Hudson River Park Act passed in June 2013, which allowed Pier 54 (at 14th Street) to be rebuilt wider than its current footprint. The secret negotiations resulted in a full plan for the new island, replete with seven-story-tall “pods” which would allow the structure to sit high enough to withstand the next Hurricane Sandy-like storm surge. It had a price tag of $135 million. The plans included a lease, which gave the Diller-controlled nonprofit power to run the “Pier” trading pier upkeep for rent. And under the lease, 51% of the events on the “Pier” had to be low-cost or free.
Perhaps most importantly the public announcement was coupled with an Environmental Impact Assessment which said, amazingly, that the “pier” would have “no significant environmental impact,” which would mean that a lengthy, expensive EIS would not be needed. There followed an expedited “public review process,” which lasted all of eight weeks (from November 17, 2014 to January 23, 2015), and the adoption, by the HRPT Board of the Negative Environmental Declaration, the lease, and the entire plan on February 11, 2015.
On June 11th Attorney Michael Gruen and Tom Fox (with whom I worked in founding and serving as a Director of Friends of Hudson River Park from 1999 to 2011) along with the City Club (a “civic” organization) filed their lawsuit in opposition to the entire Pier 55 project.The suit, titled City Club of New York vs. Hudson River Park Trust, makes a number of powerful claims.
First, the suit asserts that the Trust violated SEQRA when it made its “No Significant Impact” Environmental Assessment, and skipped the EIS process. Second, it asserts that the Trust is essentially giving parkland to a private entity, violating the Public Trust Doctrine (an action legally described as “alienation.”). Third, it argues that “Diller Island” violates the Hudson River Park Act because the Trust is supposed to spend capital money on “water dependent” uses (something Diller Island does not offer), because the Trust did not put the lease for the pier out to bid (as required by law), and because it does not include historic elements from the White Star Line (the cruise ship company which sailed the Lusitania and the Titanic, and which has its home at Pier 54).
All are strong claims, but the SEQRA one is particularly strong. Gruen, in his brief, compares the process used to vet Pier 55 with the process used to vet Pier 57. Under SEQRA, a government agency need only find that there is a “possibility” of a significant environmental impact for a full EIS to be triggered. Since the Diller Island is a “Type I” action (an action likely to require an EIS) the lead agency starts with a presumption that an EIS is needed and must show that it is not needed. In doing so it must take a “hard look” at the impact of the construction project.
In sum, Gruen argues that the finding of “no potential impact” is not only arbitrary and capricious, it is absurd. The project involves driving 550 piles into an area already described in the law as an Estuarine Sanctuary. (He talks about the impacts of the noise and vibrations on fish mortality, fish movement, and fish foraging.) It will have shading impacts on vast swatches of the river bottom, affecting flora and fish (most especially the shortnosed sturgeon, which breeds in that area). Ant it will create runoff into the river of unknown content.
He also argues that on the land there will be increased vehicular traffic, and that crowds and vehicles will have an impact on the bike path, now the busiest in the United States.
Finally he argues that the seven-story structure, just off the shoreline, will block the scenic river views of the general public. Attorney Gruen shows that in completing the Assessment, the Trust relied on data utilized in the Park’s 1995 EIS, data which is wholly out of date. He argued that no alternatives were considered including the option of using part of Pier 54’s footprint; the consideration of alternatives is a key principle under SEQRA.
Perhaps the most powerful argument in the Court submission lies in the comparison with the Pier 57 Project, a few hundred feet to the north. The Pier 57 Project will be smaller, but went through eighty-eight weeks of study, planning and adjustments—including an EIS, and multiple public comment periods. Gruen describes the Pier 55 process as a “the result of a secretive process designed to achieve a preordained outcome that lacked the transparency required by law…not designed to solicit meaningful public scrutiny. At every step , the Trust ignored the public in consideration of a massive plan such as this….[b]y the time the HRPT publicly disclosed the Pier 55 Plan…nearly everything about it had been predetermined. The ‘public process’ that ensued was flawed and illusory.”
I hate to say it, as someone who worked to create the Park, and fought successfully to defend it against incursions by all sorts of inappropriate uses, but Gruen is right. This island will fail—unless the Trust goes back to the drawing board like Governor Pataki did at Pier 40. Successful park projects must show a strong reflection of community input or they will not succeed. Here Gruen and Fox waited until the day the Statute of Limitations was to run out, but in doing so placed Diller Island in danger of going the way of Westway.
Arthur Schwartz is the Democratic District Leader for Greenwich Village. He was a founder and elevent year member of the Board of Friends of Hudson River Park, and is a former five times Chair of the Hudson River Park Trust Advisory Council.