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:

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.