Ratner Must Pay Up: And So Will NYC for Willets Point United

As Develop Don’t Destroy is reporting:

“A judge today ruled that the Empire State Development Corporation ("ESDC") is liable for legal fees incurred by community groups that sued successfully to compel a supplemental environmental impact study (SEIS) for the second phase of Forest City's controversial Atlantic Yards project.  She referred the parties to a referee to determine the amount of the award, which under an agreement with ESDC, Forest City Ratner will then have to pay.”

Good for them! Just another example of how Big Real Estate cheats their asses off and expects the politicians and the courts to turn the other way:

"Justice Friedman's ruling today is another reminder of the sordid 10-year history of the Atlantic Yards project, which to this day has largely failed to deliver on the promises that were used to sell it to the people of New York," said Candace Carponter, Develop Don't Destroy Brooklyn's legal director.  "We're gratified by today's decision, but the fact remains that, as Justice Friedman suggests, had the ESDC and Forest City Ratner not knowingly misrepresented the facts to the court, the entire Atlantic Yards project, including the heavily subsidized Barclays Center, would never have gotten off the drawing board."

Too often, these kinds of vindications come posthumously-and what should be seen as criminal or civil liability ends up being simply throwing coins at beggars. Willets Point United is facing the same situation-with the criminal activity being exposed and little or no consequences for the perps. But when the city pulled its eminent domain proceeding-fearing the exposure of massive corruption-they opened the tax payers to being on the hook for all of the WPU legal fees. As the Daily News reported:

“A group of Willets Point property owners want the city to pay their hefty legal fees after pulling plans last week to take over their land through eminent domain proceedings. The city halted its controversial approach because it was instead nearing a deal with a developer to overhaul the industrial cluster of auto body shops and scrap yards next to Citi Field.”

Show us the money-the city must be made responsible for putting the property owners through a living hell. All for nothing, as the News points out:

"Michael Rikon, an attorney representing about two-dozen WilletsPoint business owners, said he will file a petition for the city to repay his clients’ legal fees. Willets Point United members have shelled out more than $300,000 in legal fees since 2008, he said. That number is on top of the money group members paid to attorney Michael Gerrard, who represented them in their fight against new exit ramps on the VanWyck Expressway. Rikon said his clients are entitled to the money under section 702 of New York State eminent domain law."

The $300,000 is really chump change when seen in the context of a $400 million boondoggle-and still escalating fraud-but it is symbolic of the disregard of the plutocrats for the fate of the peons. The City Council has now been given the opportunity to give this bait and switch the bum’s rush, but given the total lack of character of the leadership-and their obeisance to Big Real Estate (not to mention the complete lack of competency of the local council member)-this is as unlikely as the sun setting in the East. It will be up to the new mayor to take a look at all of the unethical and criminal behavior involved in this mayoral grift-and decide if there really will be a new day for New Yorkers.

City likely owes us more than $1M

From today's Daily News:

Lawyers representing more than a dozen business owners of the gritty Iron Triangle are awaiting a judge’s decision on whether the city will be required to pay their legal expenses, which have surpassed more than $1 million.

Michael Rikon and Michael Gerrard both told the Daily News on Monday that once the city dropped its eminent domain bid last May in favor of a different development, it became obligated to reimburse their fees.

“The statute is very clear,” said Gerrard, who is seeking over $609,000 for work that his firm Arnold & Porter performed. “If the city abandons the condemnation, the parties whose lands were being condemned are entitled to their legal fees.”

The city decided to not proceed with its eminent domain bid. Instead, it announced in June a 23-acre development to be built by the Queens Development Group, a joint venture between Sterling Equities and the Related Cos.

The statute that Rikon and Gerrard are basing their case on is Section 702 of New York State’s eminent domain law, which states if the “procedure to acquire such property is abandoned by the condemnor ... the condemnor shall be obligated to reimburse the condemnee.”

The EDC was well aware that supplemental environmental reviews would be needed for the project, so they dropped their bid in May, court documents show.

When you play around with taxpayer money, it's taxpayers that get burned.

WPU's August 17th, 2011 court appearance

From the Queens Examiner:

Michael Gerrard, an attorney with the law firm Arnold & Porter, which is representing Willets Point United, argued that the city deliberately misled the court when it claimed it could not go forward without the ramps, and instead began eminent domain proceedings and began moving forward on phase one without the approval.

“It should not be without consequence when the city makes a promise to the court and it violates that promise,” Gerrard told Madden.

Gerrard also argued that the city could complete phase one, and then not be able to finish the rest of the project because it never obtains approval for the ramps, a scenario which was never taken into consideration in the initial environmental impact statement.

“If phase one of the project goes forward now, and the ramps are not approved, who knows what the impacts will be,” he said. “The technical memorandum said what happens at the end of phase one, but it does not say what will happen after that.

“It doesn't say what will become of the rest of the project in the years that follow the completion of phase one,” Gerrard added. “That was nowhere analyzed.”

More Coverage of Judge Madden

Curbed covers the Crain's story on Judge Madden's decision: "A ray of hope for Willets Point property owners opposed to the city's plans for redevelopment: a judge is wondering whether she should revoke the city's okay to move ahead. The State Supreme Court judge ruled last summer that the project could proceed, but the city never explained why it had decided it could build the project's first phase without the controversial traffic ramps previously deemed necessary. Now the judge would like to know!"

What will be fascinating to watch is the upcoming legal dance the city tries to do in order to keep the courts away from the environmental issues. In court the other day we heard that the city lawyers told Judge Madden that ramp approval was right around the corner. She replied skeptically, "I've heard you say that before."

What we can say for certain is now that the judge has throw a potential monkey wrench into the city's plans, we can anticipate that it will launch a full court press on state and federal regulators. But the regulators need to continue to tread carefully on this issue. There will be no hiding from the courts if a rubber stamp is pulled from out of the regulatory drawer.

Court Decision Maddening to City

As Crain's is reporting, EDC's efforts to make an end run of required ramp approvals from SDOT may have hit a giant pothole-and its bogus Phase I may be on the verge of being phased out:

"The city's bid to redevelop Willets Point, Queens, hit a pothole Tuesday when a judge ordered the Bloomberg administration to show why she shouldn't revoke the go-ahead she granted last summer. State Supreme Court Judge Joan Madden had ruled that the project could proceed because the city promised not to condemn any land until it had approval for new Van Wyck Expressway ramps, which it had deemed essential to the project.

But when state and federal approval of the ramps proved elusive, the city split the project into two phases and moved ahead with condemnations, arguing that the ramps were not required for Phase I."

Judge Madden wasn't buying this mess: "But the administration failed to make that argument to the judge. According to Michael Gerrard, the attorney for Willets Point property owners who object to the city's plan, the judge signed an order directing the city to explain why her order dismissing his lawsuit should not be vacated."

Circling back to last year, you might recall that the city argued in sworn testimony that it wouldn't proceed with condemnation prior to ramp approval (the affidavit of Deputy Mayor Lieber).

In ruling for the city last year, Madden relied on the Lieber's representation-now proven to be of little truthful value. So, what could happen now is that the judge might just re-open WPU's environmental challenge: "City lawyers will prepare a brief, the property owners will write a response, and the judge will hear oral argument in open court July 20. Mr. Gerrard and his clients are asking that she reopen the case."

What is clear, however, is that EDC by looking to take a shortcut to condemnation may have simply cut off its nose to spite the judge's face. If so, the prospects of any successful development of Willets Point might have hit an even larger pothole than the ones found on all of the Willets Point streets that the city has never paved.

Breaking News: Judge orders City to show cause for condemnation

Judge Madden, of New York State Supreme Court, has signed an order directing the City to show cause why her 2010 order dismissing WPU's Article 78 proceeding should not be vacated, due to the City's actions going forward with condemnation without having obtained approval for the proposed Van Wyck ramps.

Judge Madden rejected the City's arguments that she should only consider the procedural issue of whether the Eminent Domain Procedure Law provides the exclusive procedure for adjudicating WPU's new claim pertaining to the lack of approvals of the proposed Van Wyck ramps, and not the substantive environmental issues; the parties' briefing will consider both of those issues. The City will prepare a brief; WPU will reply; and Judge Madden will hear oral argument in open court on July 20 at 2:30 pm. If she decides to reopen the case after that argument, each side will have the opportunity to submit detailed technical affidavits. Today WPU's objective was to get a court-ordered schedule for arguing all of our issues, and WPU's attorney, Michael Gerrard, fully achieved that objective.

Ardizzone Signed Order to Show Cause

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."

EDeceit

At the eminent domain hearing of the other week, EDC reached new heights in deception-or, perhaps, depths is a better turn of phrase. Somehow the agency is trying to find a way to make its totally new Phase I segmentation of the Willets Point development pass muster- even though there has never been any portion of the project that has been conceived that doesn’t include ramps.

Here’s what the agency’s crack spokesperson told the hearing:

“The plan does not anticipate completion of new connections to the Van Wyck Expressway during Phase 1, as was previously contemplated. This is primarily attributed to the need to prioritize among the multiple infrastructure and site improvements that will be provided by the City as part of the district's redevelopment. 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. We are continuing to work towards the necessary regulatory approvals for the ramps, and anticipate approval in the coming months. Phase 1 will be completed and the substantial Phase 1 benefits will be realized, even – even if the connections are not approved by the Federal Highway Administration and the New York State Department of Transportation."

Read the first two sentences with great care. Somehow, the decision to leave the building of ramps to a later phase of development is a result of needing to, “prioritize among the multiple infrastructure and site improvements...” Oh, please! The reason for leaving out the ramps is because WPU has traffic jammed EDC with the regulators.

But the real nugget in the EDC statement is the assertion that the new phase of development will go forward to completion “even if” the ramps are not approved. Really? What does this mean?

If the ramps are never approved, then only the small Phase 1 can proceed. That is a major departure from what the City Council reviewed and approved, because ALL scenarios considered by the Council included at least the possibility and promise that the entire 62 acre site would eventually be developed.

It was that goal that the Council deemed worthy of supporting, and (rightly or wrongly) worthy of the use of eminent domain. ("… it is a transformation exercise on all 62 acres" -- Bob Lieber testimony to Council, November 29, 2007.) Had the Council been asked to approve just a mini-development to complement the Wilpons' CitiField, and to authorize eminent domain to achieve it, the outcome might have been very different.

But there is another real sticking point in the EDC strategy-segmentation. As WPU’s lawyer Mike Gerrard told the Daily News: “All of their documentation shows it's a single project for which the ramps are needed." If it now turns out that it isn’t a seamless development, EDC must submit a supplemental EIS for a land use review.

Statement of Michael B. Gerrard at EDPL Public Hearing

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.

Segmentation
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.

Eviction Judge Highlights Stalled Development

Hon. Leslie Purificacion, Queens Civil Court judge

A Queens eviction judge is now among the long list of skeptics who have questioned the City's aggressive tactics against Willets Point property owners and businesses, despite the lack of any imminent development.

Former owners of certain Willets Point properties acquired by the City, as well as the owners of businesses that currently operate at those properties, are named as Respondents in eviction Petitions filed against them by the City of New York. City attorney Harold Weinberg has said that the City intends to formally evict the prior landlords, and then will offer a month-to-month lease to each tenant business.

On Tuesday, City attorney Weinberg pursued the evictions at a hearing in Civil Court in Jamaica, Queens held by Judge Leslie Purificacion (pictured). As the hearing began, Judge Purificacion realized that the evictions might relate to the proposed Willets Point development, of which he has heard, and sought to clarify that point. The judge asked Weinberg: "This is near Shea Stadium? Citi Field?" Weinberg replied in the affirmative.

Then, leaning back in his chair and crossing his arms in front of him, Judge Purificacion observed to Weinberg: "You guys are so anxious to get them all out of there, but now you've put the brakes on it [the development]". Apparently, Judge Purificacion found it difficult to reconcile the City's urgent request for evictions, with his understanding that the City has "put the brakes" on the development project.

Weinberg replied, most non-committally: "We hope to develop it in a number of years".

While Judge Purificacion correctly stated that the City has "put the brakes" on the proposed development (and there seems to be no choice but for the City to do so, given the lack of approvals to construct the Van Wyck ramps which are prerequisites for the development to proceed, myriad legal hurdles that still remain threats to the proposed development, and unfavorable economics), the judge is misinformed regarding other aspects of Willets Point. "It is a 'superfund' site, I believe", said Judge Purificacion on Tuesday – referring to the official federal and state lists of hazardous waste sites. But in fact, not only is Willets Point not a superfund site, but it has never even been nominated to be considered a superfund site. As renowned environmental attorney Michael Gerrard testified to the New York City Council on October 17, 2008 during the land use review process pertaining to the proposed Willets Point development:

"There are processes for designating what are the most contaminated sites. There's a Federal process called the National Priorities List. There's a State process, the State Superfund List. In both of those, there are systematic looks at what are the most contaminated sites. Willets Point is not on any of these lists. It has never been nominated for any of these lists. The official Federal and State entities that are in the business of identifying the most contaminated sites have not looked at Willets Point. There are other Superfund sites in the City of New York but this isn't one of them."

"The City is proposing to destroy the community in order to save it. The only places where this kind of thing has been done, where entire communities have been torn down, are areas that are highly contaminated like Love Canal. There's been no suggestion that Willets Point is anywhere near that. And if it were, the City would not want to take title to it because of the liability risks that they would encounter if they were to acquire it. So the independent verification of contamination at this site is completely lacking."

In any case, Judge Purificacion adjourned the eviction proceedings until February. The Willets Point parties hope that, when the proceedings resume, Judge Purificacion will not rely on any of the popular misconceptions regarding the Willets Point area.

Willets Point United Inc. Exposes Shulman Grant Ineligibility; DiNapoli Involved After Cuomo's Failure to Act

The following is a letter from Willets Point United attorney Michael Gerrard of Arnold and Porter to State Comptroller Thomas DiNapoli about the disbursal of $1.5M+ state grant money to ineligible applicant, Flushing-Willets Point-Corona Local Development Corporation. How can he betray the trust of the taxpayers of New York and allow this to go on?

Letter to Tom DiNapoli

Round one goes to the City

Justice Joan Madden's decision was handed down today with regard to Willets Point United's article 78 challenge of the City's Environmental Impact Statement. She has ruled in favor of the City of New York. Our official statement is after the judge's decision below.

Doc 001

"This decision is a two-edged sword for the City. It dismissed the lawsuit, finding that the environmental impact statement adequately disclosed the project’s impacts. But in so doing, it stressed the terrible traffic effects forecast by the EIS; the need for federal approval for the Van Wyck ramps; and the fact that if the ramps are not approved, the project cannot go forward. It will be interesting to see how the City will now back away from its recent claims that the project wouldn’t be so bad for traffic after all. The City can’t paint one picture to the court and a completely different picture to the federal government." - Attorney Michael Gerrard of the law firm Arnold and Porter, representing Willets Point United.

WPU's fight spotlighted in the NY Times

From the NY Times:

It is one of Mayor Michael R. Bloomberg’s signature projects — the sweeping transformation of Willets Point, a slice of Queens that has long been among the city’s most neglected pieces of real estate. And a little over a year ago, it seemed like a done deal.

The City Council approved the proposal, which would sweep aside the car-repair shops, junkyards and small factories in the shadow of Citi Field to make room for 5,500 apartments, parks, office buildings, stores, restaurants and a hotel.

Many of the largest property owners agreed to sell to the city, and the city could use eminent domain to force out those who refused.

But a convergence of a Park Avenue lawyer known for toppling big projects, a sawdust maker bent on keeping the family business where it has been for decades, and a pair of highway ramps that exist only on paper threatens to doom Mr. Bloomberg’s grand vision.

The ramps, which would connect Willets Point to the Van Wyck Expressway, seemed like a minor detail at first and never came up during the noisy public hearings before the Council’s vote.

But, as it turns out, they are critical to the project’s survival.

“It’s our smoking gun,” said Michael B. Gerrard, a lawyer who helped lead the monumental battle to defeat Westway, a proposed underground highway along Manhattan’s West Side that opponents said would have imperiled the striped bass population of the lower Hudson River.

Mr. Gerrard, a senior counsel at Arnold & Porter, is now banking on the ramps to kill Willets Point. He has mounted a legal challenge against the project on behalf of a group of small landowners in the area who joined forces and pooled their money to fight City Hall.

The $3 billion project could generate 80,000 vehicle trips a day, and the ramps are meant to help move cars in and out. The city cannot use eminent domain unless the ramps are approved by the Federal Highway Administration and the state’s Department of Transportation.

Taking our fight to the courts

Willets Point United has been busy filing court documents and making appearances.

Our attorney, Mike Rikon, filed an Amicus Brief in the Goldstein v. Pataki case which is being heard October 15th in front of the NY State Court of Appeals. The Empire State Development Corporation tried to block the brief, but it was admitted by the court (see below).



Also on August 21st, WPU's attorney, Michael Gerrard, challenged the city's environmental impact statement in front of NYS Supreme Court Justice Joan Madden and we are awaiting her decision. Here is our brief in that case.

What our EIS challenge focused on

This is from the Crain's insider, published Thursday, August 20th, 2009:

Willets Point of attack

Tomorrow, for the first time, opponents of the Bloomberg administration’s Willets Point project will make their case in state court. Their attorneys will say the environmental impact statement for the proposed redevelopment has gaping holes, notably a failure to address the effect on the Van Wyck Expressway.

“This is going to cause traffic problems of unprecedented proportions that will stop emergency response vehicles in their tracks,” says Nelson Johnson, counsel at Arnold & Porter and a specialist in environmental law. “The [impact statement] did not consider it at all.” A comprehensive study is mandated by state law.

Johnson and colleague Michael Gerrard are representing businesses and one resident who want to remain at Willets Point. The city wants to move them out, if necessary by buying the land through eminent domain, to make way for an elaborate development. The plaintiffs are suing separately in federal court, demanding services that the city has denied them for decades.

The lawyers will tell state Supreme Court Justice Joan Madden that the project requires two new ramps to the Van Wyck, triggering the need for Federal Highway Administration approval, which is far from certain. They’ll also argue that the impact statement should not have been prepared by Deputy Mayor Bob Lieber. The agency compiling the EIS must be the one that carries out, funds or approves the project. “The deputy mayor’s office wasn’t any of those things,” Johnson claims.

The city has agreed not to condemn any land until it receives the rest of its approvals, including from the state Department of Transportation. But “just the threat of condemnation is enough to drive away customers,” Johnson says. “It has a chilling effect on the ability of these people to do business.”

Richard Lipsky joins WP United's team

WPU is pleased to have media relations expert Richard Lipsky join its world-class team of expert advocates, which already includes Michael Rikon, the top eminent domain attorney in New York State, and Michael Gerrard, the renowned environmental attorney.

WPU is confident that this team collectively will present the most formidable challenge imaginable to Mayor Bloomberg's intended land grab at Willets Point.