Monday, March 21, 2011

WPU Ramps Up Court Challenge

WPU goes in to court today to re-open the group's legal challenge to the Willets Point development. The case for re-opening devolves-as we have pointed out-from the city's complete disregard of everything it has ever said it would do, and is now ignoring all of the protocols that it claimed were essential to mitigate the project's environmental impact.

This is a classic case-almost a textbook case-of bad faith. The great Queens gadfly, the estimable Ben Haber, has laid this out in succinct clarity in a recent letter to the Flushing Times:

"An integral part of Mayor Michael Bloomberg’s misguided Willets Point project is the use of ramps to and from the Van Wyck Expressway to handle the expected huge increase in vehicular traffic the project will cause. This is so that even without the project the Van Wyck Expressway and Grand Central Parkway are often clogged.

The traffic issue has not as yet been resolved nor approved by the federal and state Departments of Transportation. Previously, Bloomberg officials have gone on the record saying that no attempt to acquire Willets Point property through eminent domain will be made until the Van Wyck ramps have been approved.

In the devious manner in which the Bloomberg administration has proceeded, notwithstanding that the ramp issue is still open, the city is now beginning the eminent domain process that will destroy many small businesses and their employees and families (“Willets backers plan to reopen suit against city,” Flushing Times, March 3-9.)"

WPU's attorney Mike Gerrard transposes the Haber argument into its proper legal framework-making the case for the need, indeed the required need, for court re-opening: "Respondents acknowledged the centrality of the proposed Van Wyck Expressway ramps to their plans in their opposition to the Article 78 proceeding, asserting that the ramps were an “integral” and “key” part of the Development Plan. FGEIS, Response 10 at 29-9 (Gerrard Aff., Ex. 1 to Ex. A); McKnight Aff. at ¶ 64 (Gerrard Aff., Ex. C). Respondents represented to this Court that if the FWHA did not approve the proposed ramps, the Development Plan could not proceed as currently contemplated and further environmental review would be required."

Haber captures the dishonesty:"In an obvious attempt to hide from their previous agreement not to proceed without the ramp issue resolved, the city Economic Development Corp. now claims that the ramp issue is irrelevant at this time because the current eminent domain thrust dealing with “the first phase of the project does not require building the ramps.” This is a dishonest ploy on the part of the EDC consistent with the manner in which it has been operating."

Gerrard explains just how deep the dishonesty has gone, and why the court must take this critical second look: "On August 16, 2010, this Court dismissed Petitioners’ Article 78 Petition in its entirety, relying in significant part on Respondents’ commitment to obtain necessary approvals for the proposed ramps in rejecting Petitioners’ arguments.

Significantly, the FGEIS assumes that the ramps will be approved and states that they are ‘an integral part’ of the plan to alleviate the already degraded traffic. FGEIS, Response 10, at 29-9. At oral argument, counsel for respondents 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."

What EDC is desperately trying to do is avoid rigorous environmental review-especially since its traffic submissions to the SDOT have been either fraudulent or deficient. In an easy to see through sleight of hand, the agency has issued a Technical Memo that it claims demonstrates that the ramps are simply not needed for the first part of the development.

But, as Gerrard points out: "After this Court dismissed the Article 78 Petition, the City reversed itself in Technical Memorandum 004, stating that it would proceed with condemnation proceedings despite not having approval from the FHWA for the ramps. Technical Memorandum 004 at 5 (Gerrard Aff., Ex. H); Statement of Thomas McKnight, 3/2/2011 EDPL Hearing (“The completion of the new connections to the Van Wyck Expressway is not necessary for the initial development phase, and thus may be deferred until after the completion of Phase 1.”). However, the City has not undertaken the further environmental review necessary to evaluate the environmental impacts from proceeding without approval of the ramps." (emphasis added)

EDC and the city has reneged on its promises and is proceeding with a segmented plan that violates the SEQR law: "Similarly, in this case, the City is proposing to proceed in a manner contrary to its prior representations. The Van Wyck ramp approvals -- a key feature of the Development Plan’s measures to mitigate local traffic impacts -- have already taken longer than anticipated, and there is no indication that they will be obtained at a point that would permit the City to maintain its current schedule. The City has admitted that failure to procure ramp approval will require splitting the project into phases. Its decision to ignore the potential impacts of a further delay or denial of ramp approval and to start condemnation proceedings without preparing an SEIS or providing a reasoned elaboration of its decision is arbitrary and capricious."

Frustrated and stymied by the measures that WPU has taken to protect their businesses, EDC has decided to try to muscle this ill-fated development forward, and jam state and federal regulators in the process. Ben Haber's conclusion is also our own: "The game is clear. Once we get the first phase, it will argue it cannot stop now, so just forget about the ramp issue. Hopefully, a court will see the charade for what it is, let right be done and hold the EDC to the letter of the law."