Pier 55

The City Club filed its brief in the Pier 55 (Diller’s Island) case on July 11, 2016, bringing a shifting trend in the City's permitting policy to court for examination as a matter of law. In the years leading up to the Diller's Island project, private interests offering to finance a public project had been issued permits for proposed development without requiring the developers to go through normally required procedural safeguards.  As the procedural requirements for development protect public interests beyond the financing of development, the City Club brought this issue of transparency into the courts.

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Do all the basic rules of environmental review, public involvement, need for competitive bidding for major projects, dissolve when a public project is paid for by a wealthy individual?

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Diller's Island: The proposed project was a 2.7 acre newly created island structure. It would rise as high as seven stories above the water. Some 550 piles, many filled with concrete, would support the landscaped “island.” The site for the island was an open area with a magnificent view of the Hudson. The island, together with its forest of supporting piles, would fully obscure a view exceeding more than two city blocks.

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On June 30, 2016, the court granted the Appellants (the City Club, Tom Fox and Rob Buchanan) a preliminary injunction stopping all work on the project pending final decision. The order implicitly reflected a tentative conclusion that Appellants have a reasonable probability of succeeding on the merits, and that there would be irreparable harm to the environment without the injunction.

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Ultimately, the City Club and co-plaintiffs settled out of court.  Diller's Island was constructed, but as a result of our shining a light on the process developers agreed to terms which were more favorable to the public enjoyment of the Hudson River Park.  So far, $146 million in new funding for the park has been generated.

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​Advocating for transparency in local government is central to the City Club's mission.

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OUR LITIGATION REGARDING PIER 55 FOCUSED ON THE APPARENT BY-PASS OF ORDINARILY APPLICABLE COMMUNITY REVIEW PROCEDURES, REGULATIONS, AND COMMON LAW LEGAL PRINCIPLES WHICH ARE ESSENTIAL TO MAINTAINING ACCOUNTABILITY FOR  USE OF PUBLIC RESOURCES

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Transparency in stewarding of public resources is essential to the public interest.

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Raising income is the highest good for city government and selling city property is a popular way of advancing that goal.  In this case, without competitive bidding, the Hudson River Trust entered into a lease with Pier55, Inc. which, on its face, did not look particularly favorable for the City. 

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Pier55 Inc., to fund:

• building the structure,

• $1 per year rent for up to 30 years. 

• operating costs, exclusive of the cost of maintaining the surface of the Pier.

 

Hudson River Trust to fund:

• $17 million of  the construction costs

• maintenance of the surface of the Pier. 

 

At the end of 30 years, the Trust would get possession of the Pier, which may by then have somewhat deteriorated.

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The deal is illegal under the terms of the Park Act.

 

The Park Act is an extraordinarily carefully constructed statute intended to ensure that the Park operates not only for public recreational pleasure but to preserve the estuarine environment and even improve it.  For that reason, the Park Act prohibits pier construction, other than to repair existing piers without expanding them beyond their footprint at the time the Act was adopted. The Act prohibits most uses of  piers which are not water dependent. This restriction applied to Pier 54, which Pier 55 replaced.

 

The Trust made its deal with Pier55 in near secrecy, without generally disclosing plans to buil an entirely new pier in an area that was open water-scape, transforming its use to the  primarily non-water dependent purpose of providing performance space.  The Trust had to obtain an amendment to the Park Act to build the pier, but chose to do that by what amounted to trickery.  It buried the issue in a lengthy technical bill, and characterized the project as a reconstruction of Pier 54.  It led legislators to believe that the reconstruction would (as the word “reconstruction” connotes) be done on the existing site, but with some enlargement.

 

Although the Trust, by the time the bill was presented, was actually working on plans for an entirely new pier whose connection with Pier 54 is incidental (it very slightly overlaps the former Pier 54 site at one corner), it did not disclose this to legislators.  One of the three sponsors of the bill, Deborah Glick, filed an affidavit in the litigation protesting that she was duped.  Our point may be a little old-fashioned, but we like it:  government has every bit as much obligation to comply with the law as we mortals have.

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The environmental protection laws were simply by-passed.

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Generally applicable regulations for development in NYC include procedures which call for preparation of  an environmental impact statement ("EIS") for proposed developments which have potential to impact the environment.  The EIS studies potential environmental impacts in depth, with the goal of analyzing whether reasonable alternatives would be more environmentally sound.  The study also considers whether negative impacts to the environment caused by a proposed project can be avoided or reduced.  Ordinarily, the first step in permitting a development is an assessment of whether there is any possibility that the project will have adverse environmental impacts.  If the answer is yes, the agency must cause an EIS to be prepared.  In this instance, the Trust found it inconvenient to go through the process and declared that there was no such possibility.  That is a sham.  Obvious impacts included:

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• The new structure would obstruct the public view of the Hudson River in an area that was previously open over a distance of several hundred feet along the shore.  Thousands of motorists, cyclists, and pedestrians could enjoy the view as they traveled along the the west side of Manhattan prior to this construction. The Trust rather preposterously claimed that its proposed development would not adversely affect public views, because the public could access a river view from the island.  This position ignores the clear distinction between enjoying a  scenic byway and stopping off to enter an attraction.  Practically speaking, the area has very limited parking and the facilities don't exist to offer the thousands of drivers who once enjoyed the view in passing an opportunity to visit.  The island's capacity for visitors is quite limited, and the number of people who could enjoy the view each day was greatly reduced by its construction.
   

• As a pier, this area was available for recreational non-motorized boating. Operating small boats in the area around the island is dangerous. The Trust contended that very little boating occurred near Pier 54 prior to construction of the island as justification for permitting a development which would replace this use of the area with a small park and performance space.  The Trust is charged with encouraging more boating, a unique use of the land along the river which is not available in most areas of NYC.  Failure to recognize the value of using the waterfront for purposes specific to this natural feature represents a significant loss to the public's already limited access to boating.
   

• The site was populated by many species of fish, some rare or endangered.  Construction of the island would create shade during the day and introduce electric lighting in the evening.  In bypassing the EIS, this project disregarded the potential negative effects of disruption to the sensitive local ecology of the area.  Proper procedure required the Trust to admit that a negative impact on native wildlife was a possibility, and to undertake an EIS before moving forward.

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Is the City for sale? 

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Terms of the initial lease to Pier55 would give the lessee substantially total control over entry charges for entry to performance events on the island, thus potentially excluding a substantial portion of the public from attending.  Our parks are supposed to be open to the public generally, not just that portion which can pay high entry fees. 

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Pier 54 was entirely free to the public. Pier 55's performance space chips away at public access by requiring paid tickets to view some shows.

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