Monday, July 30, 2012

Alienation, Willets Point and the Ghost of Robert Moses

In City Limits Patrick Arden has a tour de force article on the city's efforts to allow the Mets to build a shopping mall on designated parkland next to CitiField-and his piece raises some really interesting questions about the city's ability to avoid the mandated alienation process to build a shopping mall. The city is relying on an old Robert Moses inspired law to justify proceeding:

"The proposed shopping mall west of the stadium may face a larger hurdle: The parking lot is part of Flushing Meadows Corona Park. State law requires the alienation of parkland before it can be used for non-park purposes.To meet that requirement, Bloomberg has reached back to a law passed 51 years ago, summoning an uncertain ally in the ghost of Robert Moses. But questions surround this curious piece of legislation, setting up the latest in a string of disputes over city-sponsored developments on public parkland."

The city explains its tenuous position: "Yes, this area is parkland," says Benjamin Branham, a spokesman for the city's Economic Development Corporation, "but development is permitted under the 1961 law that authorized the construction of Shea Stadium—known asAdministrative Code 18-118—which also allowed for additional uses to be built on the parking lot. It's important to be clear the authorization comes from this law as opposed to a contract or other agreement of some kind."

But going back to the future may not be so easy it seems: "Yet, as recently as 2001, New York's highest court ruled parkland can't be taken, even for temporary use, without an explicit act of alienation passed by the state Legislature and approved by the Governor: "[O]ur courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes."

City Limits goes on to delve into the 1961 legislative process and sees the devious hand of Robert Moses at work-a deviousness that may not be as effective today:

"The state Legislature approved his building of Shea Stadium in the park, but its 1961 legislation was primarily aimed at granting the city authority to issue bonds to finance construction. It loosely laid out the permitted uses for the stadium and grounds, listing "recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce." The law even allowed the city to use the site for "any business or commercial purpose," so long as this activity "aids in the financing of the construction and operation of [the] stadium, grounds, parking areas and facilities" and "does not interfere with the accomplishment of the purposes referred to" above."
Parks' advocate Geoffrey Croft isn't buying this-and is contemplating a lawsuit in response:

"The bill reads like a Robert Moses special," says Geoffrey Croft of the watchdog group NYC Park Advocates. The broad powers it conferred were a hallmark of the Power Broker, who was so well-practiced in the black art of political legislating that Al Smith once called him "the best bill-drafter I know." The Parks Commissioner could enter into agreements to use part or all of the stadium grounds, but any agreements lasting for more than a year had to be approved by the Board of Estimate, which included the mayor, the comptroller, the City Council president, and all of the borough presidents."

This is where it gets really interesting because now that the old Board of Estimate is kaput, the city is arguing that the disposition of the property is exclusively in the mayor's hands-as if the city council hadn't been designated to replace the Board's functions, particularly in regards to land use: "With the elimination of the Board of Estimate, the city's Law Department says, the power of site approval under the 1961 Shea Stadium law now rests solely with the mayor. A shopping mall may not offer the "enlightenment" referenced in the text, but a Bloomberg administration spokesperson describes the new project as a "retail/entertainment complex" benefiting “trade and commerce.”

It seems to us that the mayor is laying down the gauntlet to two legislatures-trying to make an end run around both the state assembly and senate as well as the city council. But its major problem involves the overriding authority of the alienation law: "The city cites the law in apparently contradictory ways. On one hand, it argues the 1961 legislation authorizes alienation of the parkland, thereby dismissing all of the public’s claims to the land or for compensation. But the law never mentions alienation. Indeed, it describes the land as "being a part of Flushing Meadow park."

Let's go right to the law now: "Parkland alienation legislation must be explicit, according to state Assembly guidelines. Alienation bills should specify the number of acres and require that land be sold at fair market value, "with proceeds from the sale dedicated for the purchase of replacement parkland of equal or greater fair market value or for capital improvement of existing parkland."

That brings us to the Croft threat: "Croft says his group is considering a lawsuit: "Bloomberg and [Related Companies'] Steven Ross won't be shopping at that mall unless the state and City Council say so. Clearly the law's intention was not to alienate the parkland, because no restitution was provided, which is required under state law. You can alienate parkland, but you have to replace it." (And there is no statute of limitation on the reclaiming of a park!)

And WPU's own attorneys weigh in on this as well: "Another attorney for Willets Point property owners agrees. The 1961 law “authorizes the Parks Commissioner to enter into a lease transaction with the owners of the Mets,” says lawyer Michael Rikon, “but it has nothing to do with the new plan. The law is very clear on this—they can't use parkland for a retail mall unless they obtain specific approval from the state Legislature and agree to provide some kind of compensation for taking it.”

But the park issue isn't the only hurdle the city faces-and City Limits outlines the possibility that property owners at Willets Point may be able to get reimbursed for the over $1 million of legal fees it shelled out. The city had pulled the plug on condemnation-out of a fear of losing-and that's a trigger for restitution: "Rikon says his two-dozen clients are now due $1.1 million from the city, which, under state law, should be obligated to reimburse all expenses incurred by property owners after it abandons an eminent domain proceeding."
Then there's the fact that the city doesn't all of the Phase I property-a "Swiss cheese parcel according to Rikon: "The city says it owns 95 percent of the land needed for the new project, but Rikon claims it has not yet secured 17 properties from nine different owners. “The city has a Swiss cheese parcel,” he says."
City Should Start Over
City Limits also discusses our contention that the city should be forced to start over because of the illegal lobbying tactics initiated by EDC and chastized by the NYS Attoney General:
"Both Gerrard and Rikon believe the new plan, as well as the illegal lobbying, should require the city to start from scratch and put the proposed redevelopment once again before the City Council as part of the official approval process, known as the Uniform Land Use Review Procedure. But the new project will not go through ULURP. The existing environmental impact statement will be "updated," explains a spokesman for the city’s Economic Development Corporation, and the City Council will consider only a new zoning amendment to permit the shopping mall. The local Council member, Julissa Ferreras, had said she's undecided on the project, but she lent a supporting quote to the city's press release."
Ferrras needs to step up here because the city has established a horrible precedent on this-permitting the violation of the law as the foundation of a legislative approval-and the idea that this will not be subject to a new ULURP is, we believe contradicted by a stipulation entered into with us by the city. As WPU's Michael Gerrard has said about the stipulation, "It confirms that the City won’t go forward with anything at Willets Point based on Tech Memo 4, but instead will do further environmental review and seek any necessary new approvals."
The Mets Mall is a hugely traffic intensive affair and the idea that the current road infrastructure can handle it remains to be seen-especially since the Van Wyck ramps will not be built until 2025, if then. In our view the city council should not let anything go forward until the ramps are up and running-anything less is an unmitigated traffic nightmare.
The city's fiasco at Willets Point-and we haven't even discussed the gifting of $200 million worth of property to the Mets, an entity that was intimately involved in the illegal lobbying as Arden's article points out-demands a complete and thorough re-evaluation and a new process untainted by illegality. That should be up to the next mayor, the current one deserves the SNAFU* medal of all time.