The City Club filed its brief in the Pier 55 (Diller’s Island) case on July 11, 2016, stressing a troubling theme: do all the basic rules of environmental review, public involvement, need for competitive bidding for major projects, and the like, dissolve when a public project is paid for by a wealthy individual?
The proposed project is a 2.7 acre newly created island structure. It will rise as high as seven stories above the water. Some 550 piles, many filled with concrete, will support the landscaped “island.” The site for the island is now an open area with a magnificent view of the Hudson. The island together with its forest of supporting piles would fully obscure that view which from a length of the embankment exceeding more than two city blocks.
An encouraging decision from that Court on June 30, 2016, granted the Appellants (the City Club, Tom Fox and Rob Buchanan) a preliminary injunction stopping all work on the project pending final decision. Click here to view the Appellate Division Order Granting PI Pending Appeal 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.
The Brief, by City Club attorneys Emery Celli Brinckerhoff & Abady, focuses on these issues:
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 where the case started a year ago 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.
The 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 “reconstruct” 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 (as one would expect a “reconstruction” of a numbered Pier to be) but overlapping the original footprint.
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, measure 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 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.
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 got into the case for several process reasons:
It illustrates a city-is-for-sale mentality.
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 has entered into a lease with Pier55, Inc. which, on its face, does not look particularly favorable for the City. Pier55 builds the structure, but the Trust must contribute $17 million to the costs. Pier55 pays the Trust $1 per year rent for up to 30 years. Pier55 also pays its operating costs, except that the Trust pays for maintenance of the surface of the Pier. At the end of 30 years, the Trust gets possession of the Pier, which may by then have somewhat deteriorated.
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), and the Act prohibits uses of most piers (including Pier 54 which Pier 55 replaces) which are not water dependent. The Trust made its deal with Pier55 in near secrecy, without generally disclosing that it involved building an entirely new pier in an area that was open water-scape, and using it primarily for the 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.
The environmental protection laws were simply by-passed.
Our procedures call for preparation of environmental impact statement in environmentally sensitive projects. The statement studies potential environmental impacts in depth and, at least in theory, serves to ensure that, from the beginning of a project, the governmental officials responsible for it will plan it to minimize adverse environmental impacts. The first step 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 include:
- The new structure (which we refer to as an “island,” that being more accurate than “pier”) will substantially totally block, over a distance of several hundred feet along the shore, public view of the Hudson River in an area that now is substantially totally open. The Trust rather preposterously claims that this does not adversely affect views because the thousands upon thousands of drivers and automobile passengers passing by the currently open view will get an even better view by going out to the island. Likewise as to pedestrians and bicyclists. The Trust ignores that there are very limited parking facilities, so forget the car drivers and passengers. Others would likely find it rather inconvenient to take a detour of a few hundred feet in each direction to go out onto the island in the hope of finding a fabulous view from it. For the most part, they would be disappointed anyway, as the shape and undulations of the island (it rises from about ten to 60 feet off the water surface) will block all complete views of the River other than at one corner, which may accommodate about ten people at a time, which juts furthest into the River and is at the 60 foot summit.
- The site is now available for recreational non-motorized boating. That would be substantially curtailed because the island and its accessways cover about 2.7 acres and extend from the Pier 54 pile field to the pile field of former Pier 55. Small boating is dangerous in the pile fields and would be under the island. The Trust contends that very little boating occurs there now, ignoring that the Trust is charged with encouraging more boating.
- The site is populated (so to speak) by many species of fish, some rare or endangered. There is reason for concern that they will be adversely affected by the shading of the large area beneath the island, by day, and by artificial lighting by night.
Terms of the 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.
- The settlement of our successful litigation against Pier 55, out of court, has so far generated $146 million in new funding for the Park.