Our full brief (2016) is available as a .pdf at the end of the post.
THE CITY CLUB OF NEW YORK'S MISSION IS TO IMPROVE THE URBAN ENVIRONMENT THROUGH BETTER PLANNING AND BETTER PROCESS. THE PIER 55 CASE PRIMARILY CONCERNS PROCESS. WE ENCOURAGE THE COMMUNITY TO TAKE AN ACTIVE ROLE IN STAYING INFORMED ON ISSUES OF TRANSPARENCY IN LOCAL GOVERNMENT.
Failure to do an environmental impact statement
A full-scale environmental impact statement is presumptively required for a project of this scale. The Hudson River Park Trust avoided it by asserting that the project would not so much as a possibly adversely impact the environment. The mandatory first step toward reaching this conclusion is establishing a base condition against which to measure the impact of the project.
Respondents (the Trust and the Diller family-sponsored development corporation, “PIER55”) identified reconstruction of the disintegrated Pier 54 just south of the Island site as the no-action alternative and then argued that the proposed island would actually be, in many respects, preferable environmentally to the rebuilt Pier 54.
The trial level court disagreed, finding that it is highly unlikely that the Trust would reconstruct Pier 54 – the pier has too many deficiencies (such as lack of toilets for 5,000 event attendees), and the Trust has acknowledged that it lacks the funds for such a reconstruction. Nevertheless, the court ruled that Respondents had carefully studied the impacts and that suffices.
Our brief demonstrates that, when compared to the proper no action alternative (being open water with no Pier 54), the preliminary environmental assessment that the Trust did shows on its face that there would be adverse impacts – noise and impact on views, among others – absolutely requiring a full-scale environmental impact statement.
Failure to study cumulative impacts of two related projects: Piers 55 and 57
Where another related project is under consideration, the agency responsible for environmental review must consider the cumulative environmental impacts of the two projects together. The Trust has been planning reconstruction of Pier 57 just to the north of the island site for years, and is now substantially ready to proceed. But in its environmental assessment for the Island it never considered how the impacts of the Pier 57 project could inflate the impacts of the Island. For example, the Trust considers creating a marina along the southern edge of Pier 57, the effect of which would be to make small boating (row boats and small sailing boats) in the entire embayment between former Pier 54 and Pier 57 substantially impossible because of the cumulative effect of the Island blocking much of the area and the marina and its activities being inhospitable to small boating.
Failure to obtain competitive bids
The Park Act requires competitive bidding on all leasing projects involving more than $1 million in capital costs.
The Court below held that the competitive bidding requirement doesn’t apply because the Trust has the absolute right to reject all bids. The Brief argues that this is typical of competitive bidding arrangements, and that competitive bidding provides valuable information to the agency by giving it an informed basis for its decision, even if that is to reject all bids.
Failure to comply with legislation to allow reconstruction of Pier 54
The original 1998 Hudson River Park Act prohibits any construction in the water portion of the Park other than repairs and reconstruction of then-existing piers within their 1998 historical footprint. It also prohibits any uses in the water section (again excepting the existing piers) which are not water-dependent. As the Act uses the term, water-dependency means activities dependent on access to the water such as boating, fishing, and swimming, not concerts and theater. Back in 1998, the Legislature wisely limited human activities in order to protect the water area as an “estuarine sanctuary,” an area devoted to wildlife conservation, study of the estuary environment, and preservation and promotion of a natural environment, where human visitors could enjoy the scenery but not unduly disrupt it.
These restrictions, however, did not fit in with the plans the Trust was discussing with Mr. Diller. In 2013, the Trust asked the Legislature to make a long list of technical amendments to the Park Act. Hidden among them was a request to allow “reconstruction” of the decrepit Pier 54 to provide better facilities for concerts which had previously taken place on the Pier. The statute allows performance on historic piers, but not new ones. The amendment, therefore, provided for extending the pier in length and width. The Trust showed legislators sketches of the proposed reconstructed pier, consisting of a typical flat surface running from the shore out into the water, at the location of the existing Pier 54.
The Trust did not reveal that it had been in discussions with Barry Diller for some two years by that time and that they actually envisioned a project that looked nothing like a typical pier, would not have the boat docking functions of a normal pier, and would be located at a new site only very slightly overlapping the existing Pier 54 site. As Assembly Member Deborah Glick, whose district includes the site, subsequently attested, she and other legislators were duped.
A year after adoption of the amendment, the Trust first made the proposed Diller’s Island plan public. The Trust and PIER55 now argue that the amendment condones the Island, whose only pier-like characteristic is its formal name “Pier 55”, because the amendment states that the “reconstructed” Pier 54 may be “outside of its original footprint.”
The brief rebuts that argument. The only reason for stating that the “reconstruction” may be outside the original footprint of Pier 54 is that the “reconstructed” pier would be larger than the original and, therefore, could not avoid exceeding the original footprint.
This is a classic situation for application of a common rule of statutory construction providing that, when a statute establishes a general principle (i.e. an estuarine sanctuary with highly restricted human use) and is subsequently amended to create an exception to that principle, the amendment should be interpreted narrowly to preserve the general principle to the maximum extent consistent with the language of the amendment. Here, that is easy. The language of the amendment does not, on its face, indicate an intent to permit an entirely new structure, for a different purpose, and in a different location. Nothing indicates an intent to allow an exceedingly large and visually uncharacteristic non-pier structure to occupy a previously open water area. A court easily maximizes retention of the general principles of the Act by construing “outside the footprint” to mean at the original site but overlapping the original footprint. This interpretation is in keeping with what a reasonable person would understand from a proposal to “reconstruct” a numbered pier. In fact, this interpretation is the on elected officials had in mind when approving a change to the Parks Act.
Assemblywoman Deborah J. Glick, whose district includes the area of the planned park, was skeptical of it from the get-go. “I thought that a new pier in a sensitive part of the estuary in days of climate change was very wrong headed,” she told the New York Times. “I was also concerned that large private money resulting in the control of design and programming was not a particularly democratic notion.” - CURBED NY, SEPT 15, 2027.
Of course it is possible that, despite appearances to the contrary, the legislators did intend to approve exactly the project respondents propose. In that case, if they do not like the Court’s properly restrictive construction of the statute, they can adopt a new and clearer amendment. But if the Court were to allow construction of the Island, the Legislature may be poorly situated to compel razing a by-then completed structure. This practical consideration further justifies a narrow reading of the amendment the Legislature actually adopted.
Failure to apply the public trust doctrine, particularly to ensure open public access.
The public trust doctrine corroborates the conclusion that the 2013 amendment must be construed narrowly, but on a trust theory rather than ordinary rules of statutory interpretation. The doctrine holds, in accordance with English common law, that government owns various classes of public property as trustee for the public. It recognizes that, following governmental designation of parkland, the designation cannot be altered against the interest of the public except by express and specific consent of the legislature acting as representative of the people.
The lower court ruled that the doctrine does not apply to parkland owned by the State. (The State owns the site at issue.) That position is inconsistent with all applicable legal authority on the question, but for one decision of a single Eastern New York appellate court which, having found that no New York Court has directly ruled that the doctrine applies to parkland of the State, concluded that, therefore, it must not. A bit like say that if no court has confirmed the law of gravity, gravity does not exist.
Since parkland (including State parkland) is held for the benefit of the public, measures which inhibit public use are highly suspect. A government agency having control of parkland, as a trustee, must itself ensure reasonable access. There is no question that the park agency may reasonably charge for certain uses, such as restaurant meals, and fees for use for certain maintenance facilities such as golf courses. But the Pier 55 lease requires a bare half of events at the Island to be free or low cost, while PIER55 may charge whatever ticket prices it deems “appropriate” for the rest. The lessee has said, but it is not in the lease, that it will not exceed entry fees for similar events in the City of New York, a standard that could lead to pricing along the lines of Broadway musical tickets. In addition, the lessee may hold charity fund-raising events that entirely exclude the general public. Not only are these criteria vague and potentially, highly exclusionary, they are effectively under the lessee’s exclusive control. But a recent Court of Appeals case suggests that entry charges must be regulated directly by the park agency.
Read the full brief below:
Photo Credit (top) : Tom Fox
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