Statement of Michael B. Gerrard
Arnold & Porter LLP
On Behalf of Willets Point United and Individual Property Owners
EDPL Public Hearing on Willets Point Development Plan
March 2, 2011
The City’s proposed actions violate the law in at least four separate ways:
1. The City’s proposed actions violate binding pledges that the City previously made to the New York Supreme Court, on which the Court relied.
2. The City’s proposed actions amount to segmentation, which is impermissible under the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR).
3. The City’s failure to prepare a supplemental environmental impact statement violates SEQRA and CEQR.
4. The City’s proposed actions are a violation of federal law -- the National Environmental Policy Act (NEPA).
As a result of these numerous violations of law, my clients Willets Point United and individual property owners who are members of WPU plan to institute legal action against the City in New York Supreme Court.
Violations of Pledges to Court
In the Ardizzone v. Bloomberg litigation, Robert Lieber, Deputy Mayor for Economic Development, submitted an affidavit dated June 29, 2009 in which he stated in Paragraph 20, "The City will not acquire title to any property through Article 4 of the Eminent Domain Procedure Law (“EDPL”) until after ramps for the Van Wyck Expressway are approved by FHWA."
In her decision of August 16, 2010 deciding the case, Justice Madden stated (on pp. 18-19), "At oral argument [for WPU's Article 78], counsel for respondent [City] stated that if the ramps are not approved, the respondents cannot 'proceed with the plan as conceived and approved.' Transcript at 33. For the purposes of this review, this court assumes that if the ramps are not approved, additional review under SEQRA will be required."
Thus the City represented to the court, in a sworn affidavit, that it would not take my clients’ property by eminent domain until the FHWA has approved the ramps. Counsel to the City told the court at oral argument that the project cannot proceed unless the ramps are approved. The court relied on these representations. They are binding on the City.
Moreover, the attempt to condemn properties prior to approval of the ramps violates several statements made in the Final Generic Environmental Impact Statement:
“The City will not take possession of property acquired by eminent domain before the NEPA process is complete and the ramps are approved.” – Willets Point FGEIS, Chapter 29, General Comments, Response G-8, September 12, 2008.
“The City has maintained communication and close coordination with NYSDOT from the inception of the project, outlining a range of conceptual design options and working with options that NYSDOT determined were preferable. It is fully expected that such approvals will be obtained and the design will be progressed in light of design suggestions to be made by both NYSDOT and the FHWA. Furthermore, the proposed ramps are an integral part of the Willets Point Development Plan. The developer’s agreement would stipulate that following approval of the Van Wyck Expressway ramps but prior to completion of ramp construction, no buildings would be occupied unless the developer demonstrates that earlier occupancy of such buildings would not result in significant adverse impacts that have not already been described in this GEIS.” – Willets Point FGEIS, Chapter 29, Section 17 (Traffic and Parking), Response 17-6, September 12, 2008.
The FHWA has not approved the ramps. Nor has the New York State Department of Transportation (NYSDOT), whose approval is also needed.
The City’s Technical Memorandum for the Willets Point Development Plan FGEIS, Updated Plan, February 10, 2011 (“TM004”), makes clear that the City intends to proceed with the full plan for Willets Point, and that the construction of ramps connecting with the Van Wyck Expressway is an essential part of this plan. (E.g., -- “the City remains committed to the new Van Wyck connections,” TM004 p. 5; “Like the Approved Plan, the Updated Plan would include new connections to the Van Wyck Expressway,” TM004 p. 7.) The City has been pledging for years that this approval was imminent, but it has not arrived, and it is obviously nowhere in sight. Thus the City has violated its pledges to the Court and its representations in the FGEIS, and in desperation is attempting to start the project without this essential approval.
It is also attempting to start the project with no one having any clear idea what impacts the project would have with the ramps. There are two prior analyses by the City of traffic conditions with the ramps -- the FGEIS and the Access Modification Report (AMR). As we have previously shown in detail, the results of these two studies were radically different. No further illumination is supplied in TM004, yet the City wants to go forward with the condemnation.
The SEQRA regulations prohibit considering only a part or segment of an action. 6 N.Y.C.R.R. § 617.3(g)(1). The City’s current attempt is remarkably similar to a situation that the New York Court of Appeals found to be impermissible segmentation, where the reconstruction of a highway interchange was closely linked to the widening of the one of the highways connecting there, but the two efforts were not considered together. Village of Westbury v. Department of Transportation, 75 N.Y.2d 62 (1989). Numerous subsequent decisions have likewise struck down the comparable segmentation of intimately linked undertakings. E.g., AC 1 Shore Road, LLC v. Incorporated Village of Great Neck, 43 A.D.3d 439 (2d Dept. 2007); Long Island Pine Barrens Society, Inc. v. Town Board of Riverhead, 290 A.D.2d 448 (2d Dept. 2002); City of Buffalo v. New York State Department of Transportation, 184 Misc.2d 243 (Sup.Ct. Erie Co. 2000).
The Appellate Division has previously endorsed the consideration of modifications to a highway access ramp as part of the underlying project. Coalition Against Lincoln West Inc. v. Weinshall, 21 A.D.2d 215 (1st Dept. 2005), leave to appeal denied, 5 N.Y.3d 715 (2005). That was not done here, as it should have been.
Failure to Prepare Supplemental EIS
SEQRA requires a supplemental EIS whenever there are significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from changes proposed for the project, newly discovered information, or a change in circumstances related to the project. 6 N.Y.C.R.R. § 617.9(a)(7)(i).
All of these situations are present here. The attempt to institute condemnation without the essential approvals for the Van Wyck ramps is a change to the project, and a change in circumstances; the inability to obtain the essential approvals by now, despite the City’s promises that they would be in hand, is newly discovered information. A supplemental EIS is required.
The need for a supplemental EIS is especially compelling where, as here, there have been substantial unexplained discrepancies between the City’s two prior studies of the traffic implications of the ramps -- the FGEIS and the AMR -- and the public should have a full opportunity to comment. That opportunity has not been provided under SEQRA. Making matters worse, TM004 does not provide the information necessary to understand these discrepancies, and the City has failed to fully answer numerous Freedom of Information Law requests aimed at obtaining the documents that would
illuminate this and other questions. This hearing is premature in the absence of full compliance with FOIL.
Further enhancing the need for a supplemental EIS are the admissions in TM004 that many of the significant traffic impacts of the revised project are unmitigatable (Appx. C p. 13), and that there would be numerous significant adverse impacts on the Van Wyck mainline and existing ramps (Appx. D p. 31).
Violations of NEPA
Since the Van Wyck ramps are an essential part of the project, and they require federal approval, the project is subject to NEPA. The City has long acknowledged the applicability of NEPA. See, e.g., TM004 p. 4.
NEPA, like SEQRA, prohibits segmentation. 40 C.F.R. § 1508.25. That prohibition has been violated here.
We will submit more detailed comments during the written comment period.