Tuesday, June 6, 2017

Vindication by the State's Highest Court

Willets Point United is pleased that by its decision in favor of plaintiffs, the Court of Appeals has recognized what we have known all along – the plan devised by Sterling Equities, Related Companies and the Bloomberg administration to construct a “Willets West” mega-mall on public parkland is illegal. They, plus the City Planning Commission, have always parroted that the proposed mega-mall on parkland is “authorized by statute,” which today’s court decision confirms is utterly false.

The contract between Queens Development Group (the joint venture of Sterling Equities and Related Companies) and the New York City Economic Development Corporation (NYCEDC) specifically provides that “if there is a final determination in a Legal Proceeding which would prevent the Project from being developed,” NYCEDC may exercise a “call option” to take back the two acres of Willets Point Phase One property already given to QDG for $1 under the Bloomberg administration. Willets Point United urges Mayor de Blasio to immediately exercise this contractual call option, to ensure that QDG has no undeserved foothold in Willets Point property, and to ensure a completely clean slate regarding decision-making about Willets Point Phase One property – without the City beholden in any way to QDG.


With QDG, Sterling Equities and Related Companies out of the picture, is Governor Cuomo now on deck to attempt to acquire Willets Point property to expand his LaGuardia Airport project? Airport expansion was never discussed when the City Council approved Willets Point development in 2008 – and it seems as though the affordable housing that was highly touted at that time as the linchpin of any Willets Point development is no longer decision-makers’ priority.


In any event, Willets Point United salutes lead plaintiff State Senator Tony Avella, Queens Civic Congress, lawsuit organizer City Club of New York, Geoffrey Croft of New York City Park Advocates, all other plaintiffs including long-time Willets Point supporter Ben Haber, and especially the tireless work of attorney John Low-Beer, who prevailed against QDG and the City.

Monday, April 24, 2017

De Blasio Admin. and AG Fight for Mega-Mall on Parkland

In 2015, when Queens Development Group (QDG) announced its intention to appeal to the NYS Court of Appeals from the unanimous decision of the Appellate Division declaring that QDG cannot construct a “Willets West” mega-mall on Flushing Meadows Corona Park property without obtaining state legislative approval, Mayor de Blasio declined to join QDG’s appeal. De Blasio reportedly said that the City dropped out of the legal battle because QDG’s plan does not focus on affordable housing, and that “We think we can do much better on that [Willets Point] site going forward.”

But de Blasio has done an about-face: At tomorrow’s oral argument at the NYS Court of Appeals, the City will be fighting tooth and nail in support of QDG’s plan to construct a 1.4 million foot commercial entertainment and retail center on the parkland property located west of Citi Field stadium, right at the doorstep of the Corona neighborhood. The City has submitted a full written legal brief supporting QDG, and will be sending attorney Michael Pastor to present arguments in open court in favor of the mega-mall on parkland.

This is the same mega-mall that Queens Community Board 3 opposed in 2013, declaring that it “would change the character of the surrounding neighborhoods and impact the livelihoods of 250,000 residents and many small mom-and-pop businesses."

The de Blasio administration’s support for QDG’s mega-mall on public parkland has barely been reported by the press.

Last Tuesday, former City Councilman Hiram Monserrate held a news conference on the steps of City Hall to highlight what he called the “tale of two de Blasio’s.” Monserrate called upon de Blasio to withdraw – again – from supporting QDG’s legal battle for the mega-mall on parkland.
Photo courtesy Eli Valentin; from TimesLedger.
QDG is a 50/50 joint venture of Sterling Equities, whose owners also own the New York Mets baseball team, and Related Companies, a developer.

For its part, the Office of New York State Attorney General Eric Schneiderman will also be arguing in court tomorrow in support of QDG’s mega-mall on parkland. What could motivate the AG’s Office to swoop in and support QDG in court? Interestingly, between 2014 (the year that the legal challenge of QDG’s mega-mall began) and 2016, Sterling Equities Associates, LLC and Sterling Mets, LP have contributed $70,000.00 to AG Schneiderman’s 2014 and 2018 election campaigns.

The oral argument will take place on Tuesday, April 25, 2017 in a session beginning at 12:00 noon, in the courthouse located at 111 Dr. Martin Luther King Jr. Boulevard, White Plains, New York. The case is Avella v. City of New York.

Monday, November 23, 2015

Court of Appeals Accommodates Former Chief Judge

Willets Point United Inc. is disappointed, but not surprised, that today the Court of Appeals has decided to grant the developers' motion for leave to appeal the "Willets West" case to the Court of Appeals – especially in light of the fact that the developers are represented by attorney Judith Kaye, who is none other than the former Chief Judge of the Court of Appeals. She also happens to head the search committee for the new incoming Chief Judge of the Court of Appeals, who will ultimately participate in deciding this case.


We expect Judith Kaye to recuse herself from personally arguing this case at the Court of Appeals. In any event, we are confident that the Court of Appeals will uphold the July, 2015 unanimous decision of all four Judges of the Appellate Division – which went as far as to state that "No reasonable reading of Administrative Code section 18-118 allows for the conclusion that the legislature in 1961 contemplated, much less gave permission for, a shopping mall, unrelated to the anticipated stadium, to be constructed in the Park."

Thursday, August 20, 2015

Mayor de Blasio: Think Beyond Sterling and Related

The New York Times and Crain's New York Business are reporting that the de Blasio administration has refused to join the court appeal of developer QDG (a joint venture of Sterling Equities and Related) concerning the "Willets West" mega-mall on parkland west of Citi Field, which the Appellate Division First Department unanimously ruled illegal on July 2, 2015.

While Willets Point United is pleased that the City did not join QDG’s appeal, we find it disturbing that the de Blasio administration is still attempting to salvage any deal with Sterling and Related for affordable housing. Everyone should recall that when Sterling and Related first responded to the City's 2011 Request for Proposals for Willets Point, their plan included NO housing whatsoever. In fact, of all the developers that responded to that RFP, Sterling and Related displayed the least interest in constructing any housing.

By contrast, two other developers that responded would have constructed the housing – in one case, 100 percent of it affordable. Another developer featured a convention center.

Silverstein Properties, Inc. and Taubman Centers, Inc.
(proposal dated September 9, 2011)
100 percent affordable housing (400 units)
“A Model Sustainable Community”
Restaurant Row
“Entertainment Corridor & Urban Room”
Eco-Promenade
126th Street Retail
Neighborhood Retail Street


Macerich
(proposal dated September 9, 2011)
Housing
“A Model Green Community”
Public Open Space
Food & Beverage
Entertainment
“A True Retail Destination”
Hotel
Parking


TDC Development and Construction Corp.
(proposal dated September 9, 2011)
“World Trade Center Queens”
Hotel
Restaurant
Trade Mart
Convention Center
Retail Complex
Entertainment District
Office Building
Neighborhood Park



We think the de Blasio administration must not consider itself beholden in any way to the prior selection of QDG, Sterling and Related as developers here – especially when, unlike other developers, affordable housing was not a priority at all for them. If Mayor de Blasio insists on pursuing affordable housing at WIllets Point, then his administration should issue a new Request for Proposals, for exactly that. Let's see what all of the developers in the world are capable of proposing, now in the year 2015. There should be no presumption in favor of QDG, Sterling and Related.

But as Willets Point United sees it, there is no financially viable way to construct the affordable housing that was touted as the centerpiece of this project. Setting aside all of the cheerleading that took place in 2008, when it came time to actually present financially viable plans to develop Willets Point within the boundaries envisioned in 2008 featuring affordable housing, no developer could do so. The City has admitted this. That being the case, we recommend that the City:

(1)  Rescind the deal with QDG, Sterling and Related, and 'claw back' the 2 acres of Willets Point property already sold to QDG, as the city’s contract with QDG allows. There is no valid reason for QDG to own a tiny area within the Willets Point Phase One property, and QDG doing so only obstructs making the property available to others.

(2)  Use the $99 million that has already been allocated as a grant to QDG to cover the cost of remediating Willets Point property, for the City to instead directly hire a firm to remediate Willets Point Phase One property, thereby accomplishing a major objective of the project and increasing the value of that property.

(3)  Complete the installation of sewer lines throughout Willets Point, and begin providing the municipal services that have been denied to Willets Point for decades but which are routinely available everywhere else.

(4)  Sell the Willets Point Phase One property – valued at more than $400 million – on the open market for commercial and industrial use, which was the original intent for the Willets Point area. Restore the zoning for those purposes. This would fully recoup the taxpayer funds already unwisely spent, and even provide a profit for the City.

It is time to recognize the past 8 or so years as a very unproductive detour – a grand failed attempt to steer Willets Point away from the commercial and industrial use that it has always supported.

Thursday, July 2, 2015

WILLETS POINT CELEBRATES COURT VICTORY

Appellate Division deems Willets West mega-mall illegal;
enjoins any construction

Today, the Appellate Division First Department issued its decision in the matter of Avella v. City of New York, the court case which challenged the proposed construction of a 1.4 million square foot “Willets West” mega-mall on 40+ acres of public parkland located west of Citi Field stadium, and the 23-acre “Phase One” development of Willets Point. The developer of that project – and co-defendant with the City – is Queens Development Group, which is comprised of Sterling Equities (whose owners also own the New York Mets) and Related.

The court issued a unanimous decision of all four judges, “declaring that construction of Willets West on City parkland without the authorization of the state legislature violates the public trust doctrine, and enjoining any further steps toward its construction.”

The decision is a victory for plaintiffs that include NYS Senator Tony Avella, City Club of New York, the Queens Civic Congress (which represents the interests of 100+ civic organizations throughout Queens), New York City Park Advocates, Roosevelt Avenue business owners and nearby residents, Willets Point property and business owners, and the sole resident of Willets Point.

“Since 2007, we have battled the City at all times over its plans for Willets Point, which expanded in 2012 against the community’s wishes to include the gigantic proposed ‘Willets West’ mall on public parkland,” said Gerald Antonacci, leader of Willets Point United. “Today the Appellate Division agrees with what we’ve said all along: The City and developers failed to follow lawful procedure and now as a result their whole project cannot proceed. If Queens residents knew as much as we do about the horrendous traffic gridlock and other negative impacts of this Willets West/Willets Point Phase One project, they would be celebrating this court victory together with us. Today’s court decision absolutely vindicates all of our efforts and strengthens our resolve to continue challenging and opposing bad development propositions for our area. We’re especially thankful to Senator Avella, who has always done right by his constituents, City Club of New York which spearheaded the lawsuit, and stellar attorney John Low-Beer.”

In their failed attempt to justify the Willets West mega-mall to the court, defendants had argued that the 1961 law authorizing the construction of Shea Stadium on the same site provided all the permission they need to construct the mall there, now. The Appellate Division specifically rejected that argument today, finding that the focus of the 1961 law “is on [Shea] stadium, and the stadium only. There is simply no basis to interpret the statute as authorizing the construction of another structure that has no natural connection to a stadium. … Thus, the Willets West project must be enjoined.”

Willets Point United has previously noted that the Appellate Division seemed skeptical of the arguments made by defendants in court on April 15, 2015. Now we know that our reading of the tea leaves was correct.

The court’s decision comes just as the nation begins its Fourth of July holiday weekend.  We’ll be back next week with more to say, and will respond to press queries that time.


Meanwhile, enjoy the Fourth of July holiday and all that it represents. We certainly will this year.

Tuesday, June 2, 2015

Sunrise Co-op Press Conference



Sunrise Cooperative, consisting of tenant businesses being evicted from Willets Point, Queens, calls upon Council Member Julissa Ferreras to not abandon Sunrise's effort to relocate to the Bronx, Mayor Bill de Blasio to intercede, and alleges a lack of diligence by the Urban Justice Center concerning the Bronx relocation site, at this press conference held on June 1, 2015 in Willets Point. In English and Spanish. Recording © 2015 LoScalzo Media Design LLC. Reproduction prohibited.


Monday, April 20, 2015

Appellate Justices Skeptical of Mega-Mall Legality

The court case challenging the construction of the “Willets West” mega-mall on 40+ acres of parkland located west of Citi Field stadium – Avella v. City of New York – had its oral argument heard at the Appellate Division, First Department on April 15, 2015. A panel of four justices heard the case: Justices Angela M. Mazzarelli, Diane T. Renwick, Sallie Manzanet-Daniels and Darcel D. Clark.

Sen. Tony Avella: "Continually shocked at the
level of argument presented by the other side.
"
State Senator Tony Avella, City Club of New York, Queens activist Ben Haber and members of Willets Point United were among the plaintiffs who attended the oral argument, held in the elegant courtroom at Madison Avenue and 25th Street which is listed on the National Register of Historic Places. Attorney John Low-Beer argued the case for plaintiffs, while defendants City of New York and Queens Development Group (“QDG”) were represented by attorneys Judith Kaye (who happens to be the former Chief Judge of the State of New York), Jonathan Frank and Michael Pastore.

Courtroom interior, Appellate Division, First Department.
Photo source: https://www.flickr.com/photos/yooperann/8212901704/

Plaintiffs claim that for QDG to lawfully construct its “Willets West” mega-mall on parkland, QDG needs to obtain the consent of the state legislature to alienate the parkland at issue, and that QDG’s project must undergo the City’s Uniform Land Use Review Procedure (“ULURP”) which would involve all six community boards located around the parkland and culminate in a vote of the City Council. In response, defendants say that a 1961 law enacted by the legislature to allow the financing and construction of Shea Stadium provides all the authorization they need to construct the Willets West mega-mall – and that in any case, constructing the mega-mall is necessary so that the Willets Point property (located all the way on the other side of Citi Field) can be remediated and someday developed.

At issue is whether or not the 1961 law provides the necessary specific authorization to use the parkland for a shopping mall. Throughout his presentation in court, attorney Low-Beer focussed on the precise words and structure of that law, arguing that it has nothing to do with constructing a shopping mall. As if to bolster that point, one of the justices asked Low-Beer: “What is the title of that section?”

As the justice likely already knew, the title of that law is “Renting of stadium in Flushing Meadow park; exemption from down payment requirements” – which has nothing to do with constructing any mega-mall at the site. Moreover, attorney Low-Beer pointed out that the 1961 bill jacket, which repeatedly references the “stadium bill,” confirms that the legislature’s sole intent was to enable the construction of Shea Stadium. Low-Beer argued that the 1961 law does not provide the specific authorization for QDG to construct a “Willets West” mega-mall on the parkland.

Defendants’ attorney Jonathan Frank responded that constructing the mega-mall on parkland is now part-and-parcel of remediating and developing Willets Point, a project which Frank said has been “90 years in the making.” But one of the justices used those words to turn the tables on Frank’s argument, telling him: “If developing Willets Point was 90 years in the making, then in 1961 the legislature could have been very specific” when writing the 1961 law to permit any development of the parkland that would support the remediation and development of Willets Point. Implicit in the justice’s statement is that she does not think that the 1961 law provides the specific authorization required for the mega-mall, or for constructing anything on the parkland to (allegedly) promote remediation of Willets Point.

Still, attorney Frank insisted that the legislature was specific, in designating the parkland as a parking lot that may be used in various ways by a lessee. Again, a justice took exception with Frank’s conclusion, telling him that according to the 1961 law, the parking area is to be “for a stadium. Let’s not pretend that there isn’t a specific purpose for that parkland to support – parking, for a stadium. Shea stadium.”

Underpinning many of the justices’ comments and questions seemed to be the idea that they are being asked to bend their interpretation of the law so as not to scuttle QDG’s proposed development, which prioritizes construction of the “Willets West” mega-mall on parkland while relegating other supposed benefits of the project to future years with contractual escape clauses. As one justice put it: “This project might be perceived with some affection if it followed closely the 2008 approved plan. But now, the housing component is delayed until the year 2025 – and isn’t it true that the project contract allows QDG to pay $35 million, and not build any housing?”

The justices repeatedly questioned the $35 million “out” clause in the project contract, pointing out that in New York City “you can’t build for less than that,” and that the $35 million would be a lesser cost to QDG than building the housing – ultimately asking, “What assurance does this court have that the housing will ever come about?”

The justices also sought confirmation that the portion of the QDG project that features the “Willets West” mega-mall does not involve constructing any housing – asking “Is there any housing in Phase 1A?” and hearing the answer, “No.”

Attorney Judith Kaye, the former Chief Judge of the State of New York, argued that QDG partner Sterling Equities (owned by the owners of the Mets) “has invested its heart and soul” in the project, which she said is a unique opportunity to remediate and bring a vibrant community to Willets Point. “If you reverse this [decision of lower court Justice Manuel Mendez], we’re back to the dump” at Willets Point, Kaye urged. When interpreting the 1961 law in this case, “the challenge [of developing Willets Point] is to be taken into consideration,” Kaye told the four justices.

Judith Kaye slinks away.
Willets Point United has previously written about what QDG hopes to gain by hiring the former Chief Judge of the State of New York as a defense attorney in this case. The tactic may have worked with Justice Mendez in the lower court, but seemed less effective at the Appellate Division. Attorney Low-Beer’s focus on the 1961 law, and the justices’ pointed questions concerning aspects of that law, made the remediation of Willets Point a side-show before attorney Kaye even began to speak. Once she did, she was hesitant, and seemed aware that her argument that the challenge of remediating Willets Point somehow requires the “Willets West” mega-mall was falling flat.

A justice asked plaintiffs’ attorney Low-Beer: “Is there some validity to their argument that constructing the ‘Willets West’ shopping mall would improve the economy of the area?” He replied, “whether it does or not, that is not the question before the court. They are required to follow the law. The state legislature must approve a specific use. They did not authorize a shopping mall.”

Low-Beer also pointed out that if the words within the 1961 statute which defendants are misinterpreting as allowing a shopping mall actually do allow a shopping mall, then more than one shopping mall can be built in Flushing Meadows Corona Park because the separate statute authorizing the National Tennis Center also contains the same words. It is inconceivable, argued Low-Beer, that the legislature has granted authorization for two shopping malls in Flushing Meadows Corona Park.
Michael Gruen of plaintiff City Club of New York
with attorney John Low-Beer.

Outside the courthouse after the argument, Senator Avella told reporters: “I am continually shocked at the level of argument presented by the other side and the City. … The representative for the City of New York basically said that they don’t have to go through ULURP because of a lease arrangement. Well, City property, even if you’re leasing it out, does go through ULURP. And I’m shocked that Mayor de Blasio, who campaigned against Bloomberg policies in these type of situations, is defending this lawsuit. The Mayor should live up to his campaign promises, and say ‘this project must go through ULURP and must apply to the state legislature for approval of giving away parkland.’”

Ben Haber speaks with press.
Also outside the courthouse, Queens activist Ben Haber remarked: “I think it was a bench that clearly understood there are legal questions that they have to deal with here. And they were not going to be influenced by Willets Point, which has nothing to do with this mega-mall. … Clearly they understood this extraneous argument of Willets Point [remediation] is irrelevant to the law concerning a mega-mall on parkland.”

Haber also summarized the two key legal issues at the heart of the case: “We do not allow local politicians to give up parkland. If you want to alienate parkland in New York state, you’ve got to get permission of the New York state legislature. They didn’t do that. And clearly, the parking field that we’re talking about is on parkland. It’s part of Flushing Meadows Corona Park. So that was one of the legal questions that was raised. The other question that was raised is that when they got the parking lot to begin with, we did not have ULURP as a law. Subsequently ULURP became the law. And under ULURP, if you want to change land use, you have to go through a proceeding before each community board that surrounds the affected area. They didn’t do that here. So the two questions for these judges to decide under the law: Did they violate the law by not getting park alienation? And secondly, did they violate the law by not going through ULURP?”

“You cannot build a mega-mall on parkland. And there’s a big difference between using a field for parking occasionally when there’s a ball game, [versus] 365 days a year, a 1.4 million square foot mega-shopping mall. It’s not the same thing.”

Attorney John Low-Beer said that it is “always fun” to argue a case at the Appellate Division, and when asked about his opponents’ arguments, said: “There’s an old saying of lawyers, that if the law is against you, pound the facts. If the facts are against you, pound the law. If both the facts and the law are against you, pound the table! Which is what they were doing here.”

Plaintiffs' attorney John Low-Beer.

A decision of the Appellate Division is likely within the next couple of months. Whichever side loses, is expected to attempt to take the case to the Court of Appeals in Albany.


Plaintiffs and Willets Point United members
Irene Prestigiacomo and Joseph Ardizzone.
The Appellate Division, First Department does not permit the use of recording devices. All quotations above of statements made during the oral argument are approximate, and are based upon notes taken by attendees during the argument.