Willets West case dismissed; attorney issues official statement

Justice Manuel Mendez, NYS Supreme Court, NY District, has issued his decision to dismiss the lawsuit brought by plaintiffs Sen. Tony Avella, City Club of New York, Queens Civic Congress and others, challenging the plan of Queens Development Group LLC to construct a 1.4 million square foot mega-mall on 40+ acres of Queens parkland.

Justice Manuel Mendez, who has

decided that the Willets West mega-mall

can be built on 40+ acres of Queens

parkland. Photo by Rafael Fernández.

Source: http://www.impactony.com/

tag/nueva-york-2/page/2/#sthash.IgES8I9s.

4cDYLvlA.dpbs

Justice Mendez concludes that the 1961 authorization to construct Shea Stadium also allows construction of the mega-mall on parkland.

Below is the official statement of John Low-Beer, attorney for plaintiffs, concerning the decision of Justice Manuel Mendez to dismiss the case:

"Plaintiffs believe that the decision misunderstands the common law doctrine that prohibits any nonpark use of parkland without the specific and explicit approval of the State Legislature.  The State Legislature, when it passed the 1961 law permitting the construction of Shea Stadium, did not intend to allow construction of a shopping mall.  That law did not allow the construction of anything except a stadium and related facilities on the site.  Plaintiffs will appeal, and believe that this decision will be reversed on appeal."

Initial Willets West Court Decision

Avella's letter to Pinsky

Avella letter to Pinsky

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

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.