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.
Showing posts with label nepa. Show all posts
Showing posts with label nepa. Show all posts
Wednesday, March 2, 2011
Thursday, February 3, 2011
City jumping the gun by resorting to condemnation
In Thursday's Wall Street Journal, Seth Pinsky, President of the New York City Economic Development Corporation ("EDC"), threatens to begin condemnation of Willets Point properties next week.
First and foremost, Willets Point United Inc. ("WPU") wants everyone to recognize that Pinsky will use eminent domain to seize our properties, NOT for any necessary or urgent public purpose which is the traditional justification for eminent domain, such as building a highway through the area, or a hospital; but rather, just because the City administration prefers to see other businesses replace ours, at this site. Eminent domain was never intended to facilitate decisions by members of an elite class, to repurpose property according to their own preferences, to be used by their fellow elites – and in the process, trample the rights of private property owners, like us. Since the infamous Kelo Supreme Court decision, 43 other states have enacted legislation that prohibits or curtails the use of eminent domain to seize private property for economic development purposes – but New York State has not yet amended its law. Instead of respecting the obvious nationwide backlash against clear eminent domain abuse, Pinsky, EDC and Bloomberg will shamefully exploit New York's failure to amend its law.
We therefore consider Willets Point to be the front line battle against inappropriate and abusive mis-use of eminent domain within New York State – a battle which we know is of utmost concern to everyone who owns, or aspires to own, property within this state. We will act accordingly.
We find it especially disturbing that the City of New York will begin the process of condemning property at Willets Point, considering that there are WPU members who have yet to be contacted by the EDC. How can the City characterize property owners as "holdouts" in the press, when the City has never even picked up the telephone to discuss any plans with them?
In fact, so non-communicative has the City been, that we do not even know at this time which of WPU's members will or will not be affected by condemnation of properties located within EDC's amorphous "Phase 1".
EDC has published various maps – each of which shows different borders of what might constitute "Phase 1" of the proposed development. For example, EDC's "Adjusted Plan" goes no further than 34th Avenue, while EDC's "Staged Acquisition Alternative" includes property up to Northern Boulevard. This confirms, as we have observed since 2007, that EDC apparently does not know what its plan is, for our area.
Pinsky, in his haste to condemn, apparently has forgotten one minor detail – that even if the City attempts to condemn our property, the City cannot take title or possession of it unless the proposed Van Wyck Expressway ramps are first approved. With no such approval on the books (and legal challenges ahead, in the event there would be such an approval), any condemnation will be purely speculative – and we understand that courts have not permitted that.
Given Pinsky's remarks to the Wall Street Journal regarding Willets Point condemnation, bear in mind the following representations by the City, already in the record:
"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 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." – Affidavit of Robert Lieber, Deputy Mayor for Economic Development, June 29, 2009, filed with Supreme Court of the State of New York (WPU's Article 78 case).
"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." – Decision of Hon. Joan Madden, August 16, 2010, p. 18-19, re: Article 78 filed by WPU.
Considering the above, the City's use of eminent domain now – without any ramp approval – represents a "speculative condemnation", which we understand courts have not permitted. Stated differently, there is obviously no point to condemn property, when the condemnor cannot take possession or title to that property.
As events unfold, we urge observers to always be mindful of the very serious property rights issues that are implicated, which may eventually impact others just as they are now impacting us. As hardscrabble a place as Willets Point sometimes can be, it is also a place where the most important American rights still exist and will be honorably defended by people of best intentions.
– The Membership of Willets Point United, Inc.
First and foremost, Willets Point United Inc. ("WPU") wants everyone to recognize that Pinsky will use eminent domain to seize our properties, NOT for any necessary or urgent public purpose which is the traditional justification for eminent domain, such as building a highway through the area, or a hospital; but rather, just because the City administration prefers to see other businesses replace ours, at this site. Eminent domain was never intended to facilitate decisions by members of an elite class, to repurpose property according to their own preferences, to be used by their fellow elites – and in the process, trample the rights of private property owners, like us. Since the infamous Kelo Supreme Court decision, 43 other states have enacted legislation that prohibits or curtails the use of eminent domain to seize private property for economic development purposes – but New York State has not yet amended its law. Instead of respecting the obvious nationwide backlash against clear eminent domain abuse, Pinsky, EDC and Bloomberg will shamefully exploit New York's failure to amend its law.
We therefore consider Willets Point to be the front line battle against inappropriate and abusive mis-use of eminent domain within New York State – a battle which we know is of utmost concern to everyone who owns, or aspires to own, property within this state. We will act accordingly.
We find it especially disturbing that the City of New York will begin the process of condemning property at Willets Point, considering that there are WPU members who have yet to be contacted by the EDC. How can the City characterize property owners as "holdouts" in the press, when the City has never even picked up the telephone to discuss any plans with them?
In fact, so non-communicative has the City been, that we do not even know at this time which of WPU's members will or will not be affected by condemnation of properties located within EDC's amorphous "Phase 1".
EDC has published various maps – each of which shows different borders of what might constitute "Phase 1" of the proposed development. For example, EDC's "Adjusted Plan" goes no further than 34th Avenue, while EDC's "Staged Acquisition Alternative" includes property up to Northern Boulevard. This confirms, as we have observed since 2007, that EDC apparently does not know what its plan is, for our area.
Pinsky, in his haste to condemn, apparently has forgotten one minor detail – that even if the City attempts to condemn our property, the City cannot take title or possession of it unless the proposed Van Wyck Expressway ramps are first approved. With no such approval on the books (and legal challenges ahead, in the event there would be such an approval), any condemnation will be purely speculative – and we understand that courts have not permitted that.
Given Pinsky's remarks to the Wall Street Journal regarding Willets Point condemnation, bear in mind the following representations by the City, already in the record:
"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 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." – Affidavit of Robert Lieber, Deputy Mayor for Economic Development, June 29, 2009, filed with Supreme Court of the State of New York (WPU's Article 78 case).
"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." – Decision of Hon. Joan Madden, August 16, 2010, p. 18-19, re: Article 78 filed by WPU.
Considering the above, the City's use of eminent domain now – without any ramp approval – represents a "speculative condemnation", which we understand courts have not permitted. Stated differently, there is obviously no point to condemn property, when the condemnor cannot take possession or title to that property.
As events unfold, we urge observers to always be mindful of the very serious property rights issues that are implicated, which may eventually impact others just as they are now impacting us. As hardscrabble a place as Willets Point sometimes can be, it is also a place where the most important American rights still exist and will be honorably defended by people of best intentions.
– The Membership of Willets Point United, Inc.
Monday, September 20, 2010
Who will stand up for Queens?
From the Neighborhood Retail Alliance:
In a survey of the best lawyers from around the world, Willets Point United's legal advocate Mike Gerrard was listed as the best environmental lawyer in New York-and in our view, it's not even close. But the recognition should put the state and the federal regulatory authorities-NYSDOT and FHWA-on notice that their lack of due diligence (and potential collusion) over the Willets Point/Van Wyck ramps will not go unchallenged if they fail to subject the proposed Access Modification Report to a full independent review under the National Environmental Policy act.
Given that the state's roads are in a state of current disrepair-owing in large part to DOT's incapacities-the allowance of ramps that will flood the highwayss and lead to the wasting of the billion dollar being spent to upgrade of the Kew Gardens Interchange, is simply unconscionable. Queens electeds need to wake up-much as those on Staten Island have because of the poor state of that borough's roads.
In Queens...pols still seem reluctant to challenge a Willets Point project that was falsely sold to them on the basis of environmental sustainability. But the proverbial stuff is already hitting the fan and the three blind mice routine is gonna come back and bite Queens residents on their collective butts. WPU may be in the eye of the storm, but that organization's fate is akin to the canary in the mine-a warning to all those borough residents, and the folks who are supposed to represent them, that a Category 5 traffic storm is on the way.
In a survey of the best lawyers from around the world, Willets Point United's legal advocate Mike Gerrard was listed as the best environmental lawyer in New York-and in our view, it's not even close. But the recognition should put the state and the federal regulatory authorities-NYSDOT and FHWA-on notice that their lack of due diligence (and potential collusion) over the Willets Point/Van Wyck ramps will not go unchallenged if they fail to subject the proposed Access Modification Report to a full independent review under the National Environmental Policy act.
Given that the state's roads are in a state of current disrepair-owing in large part to DOT's incapacities-the allowance of ramps that will flood the highwayss and lead to the wasting of the billion dollar being spent to upgrade of the Kew Gardens Interchange, is simply unconscionable. Queens electeds need to wake up-much as those on Staten Island have because of the poor state of that borough's roads.
In Queens...pols still seem reluctant to challenge a Willets Point project that was falsely sold to them on the basis of environmental sustainability. But the proverbial stuff is already hitting the fan and the three blind mice routine is gonna come back and bite Queens residents on their collective butts. WPU may be in the eye of the storm, but that organization's fate is akin to the canary in the mine-a warning to all those borough residents, and the folks who are supposed to represent them, that a Category 5 traffic storm is on the way.
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