A Do-Over, by Any Other Name

On November 9, the New York City Economic Development Corporation (NYCEDC) held its "Public Information Meeting" for the public to discuss and ask questions about NYCEDC's permit application to allow toxic water removed from the Willets Point sewer construction site to be discharged, after filtering, into the Flushing bay. But even before that meeting occurred, it was obvious that NYCEDC had failed to comply with the written public participation plan that it had presented to the Department of Environmental Conservation (DEC), as well as applicable DEC regulations.

For example, NYCEDC held its November 9 meeting:

• While completely concealing from the public the permit application that was supposed to be the topic of that meeting;

• Without making available project-related documents approximately 15 days in advance of the meeting (or perhaps at any time whatsoever in advance of the meeting);

• After deliberately omitting from the written meeting stakeholders outreach list all Willets Point businesses, including those located on 126th Street immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work – while including on the written notification list 35 church organizations that are located one mile away.

On November 21, 2011, environmental attorney Michael Gerrard of Arnold & Porter LLP, representing Willets Point United Inc. (WPU), notified DEC of multiple failures of NYCEDC, including those summarized above, to comply with the written public participation plan presented to DEC, as well as provisions of DEC Commissioner Policy 29.

DEC must have appreciated that its consideration of NYCEDC's permit application would lack necessary integrity, if it relied upon the inadequate public participation implemented thus far by NYCEDC. And so it comes as no surprise that, after receiving attorney Gerrard's letter, NYCEDC has since acceded to WPU's demands, by:

• Making available to the public the permit application document that had previously been completely concealed;

• Scheduling a new public participation meeting;

• Making available to the public project-related documents in advance of the new public participation meeting;

• Including in the written meeting stakeholders outreach list Willets Point businesses immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work.

Make no mistake about it: NYCEDC is taking those extraordinary steps, not because NYCEDC enjoys public participation in its projects, but because it must correct its failures to comply with its written public participation plan, as well as applicable DEC regulations.

In particular, the new public information meeting to be held tonight is obviously intended to correct the failures of the original meeting. Significantly, the original public information meeting held on November 9 was supposed to have been the only such meeting. (See page 4 of the original Public Participation Plan, http://www.nycedc.com/ProjectsOpportunities/CurrentProjects/Queens/WilletsPointDevelopmentDistrict/Documents/Public%20Participation%20Plan.pdf: "One public information meeting will be held at a publicly accessible location in Flushing to provide information about the construction of the proposed sanitary and storm water sewer lines and the associated NYSDEC permitting process.")

The new meeting is, for all intents and purposes, a do-over – necessary to correct failures of the original.

Now, we understand that no one likes to admit they have failed – especially when doing so could threaten their holiday bonuses.

So while NYCEDC incredulously spins tonight's new public information meeting as a mere "follow-up", the fact of the matter is that this meeting is a do-over, implemented because WPU has held NYCEDC to account, and necessary to correct NYCEDC's prior failures.

Significantly, tonight's sewer meeting do-over is just one example of WPU holding NYCEDC to account, and turning back the clock on aspects of the proposed Willets Point development. That has happened before: After WPU brought to the attention of state and federal regulators fatal flaws in NYCEDC's application for the proposed Van Wyck ramps, the entire process for evaluating those proposed ramps was revised, and still remains incomplete more than two years later. More recently, after WPU brought to the attention of State Supreme Court Justice Joan Madden that NYCEDC intends to proceed with "Phase One" of the proposed Willets Point development without having approval of the proposed Van Wyck ramps, and to condemn Willets Point property on that basis – in direct contradiction of the City's prior representations to Judge Madden's court – Judge Madden has decided to re-open WPU's Article 78 case "in the interests of justice".

We're weren't surprised that NYCEDC and the City attempted to distract from all of that, by staging a sewer project groundbreaking on December 1, 2011 despite not having obtained the required DEC permit, and despite knowing that NYCEDC had failed to implement a proper public participation process (and that it would have to be re-done). Tellingly, NYCEDC's consultant mailed notices regarding the public information meeting do-over on December 2, 2011 – one day after the Mayor's groundbreaking press conference. That prevented members of the press from questioning the Mayor about NYCEDC's revised public participation plan during the groundbreaking press conference.

WPU will continue to hold NYCEDC and the City to account. We're unfazed by the Mayor's phony press conferences, and by NYCEDC's laughably inaccurate spin. For each failure of NYCEDC, expect a do-over. One step forward, but two steps back. And to NYCEDC chief Seth Pinsky we say: Axe those holiday bonuses.

[The December 19, 2011 sewer permit public participation meeting will be held from 6:15PM - 8:15PM at the Al Oerter Recreation Center, 131-40 Fowler Avenue. NYCEDC has not posted notice of this meeting on its web site, apparently preferring low attendance.]

Chronicaling Deception

In this week's Queens Chronicle the paper reports on Judge Madden's decision to re-open the lawsuit that WPU filed against the city: "Just days after the city made a show of starting sewer work at Willets Point, a state Supreme Court judge has decided to reopen a Willets Point United lawsuit that could halt the $3 billion mixed-use development project."

Madden was unfazed by the city's legal arguments about the phased implementation of a Willets Point development that the city told to one and all simply must be done all in one piece because of the remediation issue from years of environmental neglect. There is one reason, and one reason alone that the city is willing to risk the court's ire-and that is because it is desperate to get this boondoggle started before Mayor Megabucks finally leaves for greener pastures.

The city is desperate because it told the court that it wouldn't condemn a single property until the Van Wyck ramps were approved-and almost three years after it sought this approval the regulators at the state and federal levels have yet to give the ramps the green light:

"In addition, the city has said in the past it would not start condemnation proceedings until the ramps were approved. In her ruling, Madden said: “As the city has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment.”

This about face is what has irked the judge-and WPU's attorney weighs in on the duplicity: "WPU attorney Michael Gerrard said the decision “casts a large, dark cloud” over the development project. Gerrard added the ruling shows that the city “cannot run roughshod over the environmental laws and over the rights of the businesses that are struggling to survive.”

In the entire article, however, the city never attempts to defend the indefensible: the fact that its deputy mayor-the late great Robert Lieber-had lied to the court about condemnation. Instead it falls back on the fact that all the powers that be support the project-standing in line drooling at the prospect of being beggars at the EDC feast. We'd love to see a referendum on this development conducted with the voters of Queens-one where an equal amount of money was allocated to both sides to make their case.

We're confident that if the facts about the 80,000 cars per day and the lack of adequate transportation infrastructure were made known-not to mention the billions needed to complete this project-the voters of Queens would give it a thumbs down. Here's the fatuous statement from EDC:

"The Willets Point project is overwhelmingly supported by elected officials and the community and will transform this blighted and underutilized area into a vibrant neighborhood where thousands of New Yorkers will live and work. We are confident that the environmental review was properly conducted, and the project is proceeding as planned.”

Well, the fact that the ramps remain unapproved is the best indication that a proper environmental review wasn't conducted-and this situation came about because EDC's consultants fudged the traffic data and were caught red-handed. This entire development needs to be subjected to an independent fiscal as well as environmental review-the folks at EDC have proven their inadequacy to this crucial task.

Rexamination: Madden Gives a Second Opinion

The Times Ledger is reporting on Judge Madden's re-examination of her decision from last year to throw out the Article 78 lawsuit that WPU brought against the city:

"A State Supreme Court judge reopened a lawsuit Tuesday that could throw a wrench into the $3 billion redevelopment blueprint for Willets Point after the city broke down its original plans into three separate phases. State Supreme Court Judge Joan Madden originally ruled against a group of property owners who sued the city to stop the project, but she said in her Tuesday ruling that she would reopen the case after the city Economic Development Corp. made changes to its plans for the 62-acre, mixed-use development, which would replace the auto body shops and industrial businesses that currently populate the Iron Triangle."

We've been calling the EDC phase-in approach a phony ruse and Madden concurred-using more judicial language: "According to the ruling, the city broke up the proposal into three phases without conducting a separate environmental study and also claimed that it did not need additional ramps on the Van Wyck Expressway to accommodate increased traffic. In addition, the city earlier claimed that it would not proceed with condemning property in the triangle until the ramps were approved but did so anyway, the ruling said."

Liar, liar, pants on fire! "As the city has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment,” Madden said in her statement."

So much subterfuge it's hard to know where to begin-and as the Ledger also reports the city can't even conduct a sewer permit hearing honestly. WPU's chastisement of EDC/DEC brought immediate results, however:

"And Monday night, the group released a statement alleging that the EDC did not properly conduct a period for public comment, which is required by the state Department of Environmental Conservation. Michael Gerrard, a lawyer for Willets Point United, sent DEC a letter Nov. 21 accusing the agency of purposely concealing documents from the public’s view and not disclosing the environmental impacts of the project. In addition, Gerrard’s letter stated that the EDC did not initially include business owners in Willets Point on an outreach list ahead of the Nov. 9 meeting."

So, what happened? EDC and the DEC blinked: "The day after Bloomberg’s news conference, the EDC issued a statement that a new public hearing will be held Dec. 19, which Willets Point United chalks up to Gerrard’s letter. But Jennifer Friedberg, spokeswoman for the EDC, said her agency and the DEC collaborated on the public comment period, which is ongoing. A spokesman for DEC said the agency announced it would be conducting further outreach without the provocation of DEC."

What this clearly shows is that EDC can't do the right thing without provocation from an aggrieved party-something that has characterized this development from the very first time the agency set up its illegal lobbying scheme four years ago; "And to drum up support in the immediate area, the city has been giving funding to a Willets Point redevelopment advocacy group led by former Queens Borough President Claire Shulman, Deputy Mayor Robert Lieber confirmed, boosting an organization that has brought on a lobbying team of its own for the push. The city has approved up to $250,000 in matching funds for Ms. Shulman’s group."

So here we are-soup to nuts. The Bloomberg administration holding on desperately to have at least something to point to when these past 12 years are put into the record books will stoop to any tactic to get Willets Point developed-after all, with school test scores flat lining (what Daily Politics calls a "legacy" problem) there really isn't much for these folks to cheer about as they prepare to walk out the door at the end of 2013.

Technical Memo Subterfuge

One additional point on the Judge Madden ruling against the city. Recall that EDC has argued that it should be allowed to proceed with its phony Phase I because of its vaunted Technical Memorandum. As we have pointed out this is sheer arrogance because no independent expert has evaluated the memo and given the agency's propensity for deception it would not be wise to do so-and the judge certainly won't.

Madden also addresses WPU's right to request that she vacate the original order dismissing the case-and points to the issue of misrepresentation as a just cause for doing so. As the judge says;

"Here, in the original Article 78 proceeding, the FGEIS assumed the ramps would be approved and did not analyze alternatives if approval was not obtained. Additionally, the City acknowledged that the ramps were an integral part of the plan and that the plan as conceived could not proceed without the ramps, and repeatedly and clearly stated that it would not seek to exercise its power of eminent domain prior to obtaining approval of the ramps. In reaching the decision to dismiss the petition, I relied upon the City’s representations.

As the City has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, indirect contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment...

I conclude that I have the inherent power to entertain petitioners’ concerns regarding the City’s new staged approach to the development of Willets Point and to consider the adequacy of Technical Memorandum, and that it is in the interests of justice to do so."

What the judge is trying to say is that the city is engaged in an illegal segmentation-trying to avoid the ramp review and accomplish the development of Willets Point in piecemeal fashion. Professor Rick Hills lays this out in a blog post: "Judge Madden ruled today against New York City in the Willets Point litigation, holding that the City's changing its position regarding the need for a highway ramp undermined the factual basis for her earlier decision upholding the City's final generic environmental impact statement ("FGEIS"). In effect, she accused the City of playing a game of "bait-and-switch" -- obtaining judicial approval of an FGEIS on the basis of one set of facts and then changing those facts after securing a favorable ruling."

What we have year is an ends justify the means mentality that sacrifices integrity and ethical behavior for unscrupulous representations before the city council as well as the court. Remember living wage? Just another example of the bait and switch philosophy that EDC believes is justified by its vision of the future development of Willets Point-and anyone who gets in the way of that vision better watch out!

Judge Madden Re-Opens Willets Point Case "In The Interests Of Justice"

In a ruling that will send shock waves throughout the Economic Development Corporation (EDC) corridors down at 110 William Street – not to mention City Hall – New York State Supreme Court Judge Joan Madden has decided to reopen a lawsuit filed by Willets Point United Inc. (WPU) "in the interests of justice". Judge Madden's decision comes roughly three months after hearing oral arguments in which the City urged the judge to deny WPU's motion to reopen the case.

But Judge Madden has rejected the City's arguments that she could not reopen her prior decision that dismissed WPU's lawsuit. Instead, Judge Madden ruled that she has inherent power to reopen this case, and she agrees with WPU that the City attempting to proceed with "Phase One" of the proposed Willets Point development without approval of the Van Wyck Expressway ramps is "in direct contradiction of [the City's] prior representations" to the court – representations on which Judge Madden relied when dismissing the case during 2010. The City had told the court in sworn depositions from Deputy Mayor Robert Lieber and an EDC official that it would not condemn any property at Willets Point until the Van Wyck ramps were approved. Today those ramps remain unapproved, but the city has gone back on its word and commenced condemnation anyway.

A key portion of Judge Madden's decision is the following:

"... the City acknowledged that the [Van Wyck] ramps were an integral part of the plan and that the plan as conceived could not proceed without the ramps, and repeatedly and clearly stated that it would not seek to exercise its power of eminent domain prior to obtaining approval of the ramps. In reaching the decision to dismiss the petition, I relied upon the City’s representations. As the City has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment. The question remains as to whether doing so would be in the interests of justice. ... I conclude that I have the inherent power to entertain petitioners’ concerns regarding the City’s new staged approach to the development of Willets Point and to consider the adequacy of [the] Technical Memorandum, and that it is in the interests of justice to do so."

Attorney Michael Gerrard of the law firm Arnold & Porter LLP, who represents Willets Point United Inc. and presented the case on August 17, 2011 before Judge Madden, said:

"This decision casts a large dark cloud over the Willets Point development. It upholds our claims that the City's breach of its promises not to condemn property without approval of the ramps may have serious legal consequences. Many further proceedings lie ahead but today, at last, a judge has heard us and agreed with us that the City cannot run roughshod over the environmental laws and over the rights of the businesses that are struggling to survive."

WPU is pleased that Judge Madden has recognized that our complaints of wrongdoing by the City are legitimate, and are grounds for additional legal review.

WPU will be back in Judge Madden's courtroom on January 27, 2012 at 10AM.

Judge Madden's Williets Point Preliminary Decision

Video of portions of the oral arguments before Judge Madden on August 17, 2011; courtesy of the Queens Ledger newspaper:

Bloomberg Shovels it at Willets Point

The NY Daily News reports on the "groundbreaking for the sewer construction project that is the linchpin of the Willets Point development-70 years after the first property owners began to beg the city for primary services:

"Mayor Bloomberg broke ground Thursday on a controversial redevelopment that he vowed will transform gritty Willets Point into “a major engine for economic growth.” Bloomberg unearthed dirt with a slew of elected officials just steps from the mix of auto body shops and junkyards that abuts Citi Field.

“We are that much closer to the vibrant Willets Point of the future,” Bloomberg said at a news conference near the World’s Fair Marina along Flushing Bay."

All we can hear, however, is Paul Simon singing, "Slip Slidin' Away:" "You know the nearer your destination, the more you slip sliding away..." WPU's Joe Ardizzone hit back at the faux optimism: "But Willets Point United, a coalition of stakeholders critical of the project, blasted Bloomberg and Pinsky for jumping the gun. “The city is trying to create an impression of a fait accompli when there are serious legal and financial issues unresolved,” said Joe Ardizzone, 78, the lone resident of Willets Point."

In an NY1 story WPU's Antonacci blasts the city's years of neglect: "Business owners point out that it's not their fault the streets look rough. They paid taxes for years, and now they're the ones bearing the brunt of the city's neglect. Jerry Antonacci's family has run a carting business for 35 years.


"It's gotta be over a million dollars over 30 years in taxes, and what do we get for it? We're getting kicked out. I mean, we didn't get no streets, we didn't get no sewers, we didn't get no sidewalks, no street signs, no stop signs, no snow plowing, nothing," said Antonacci."

We did get a chuckle about the comments of EDC's boy president: "Seth Pinsky, president of the city Economic Development Corp., said the proposal will turn Willets Point into “one of the great and vibrant neighborhoods of New York City.” In fact we have a great name for the new "vibrant" neighborhood: Gridlock City! The overdeveloped Willets point might better resemble a Roach Motel-where the roaches get in but can't get out.

And what have they been putting in BP Marshall's coffee? Here's her observation about the plight of the existing businesses: "Queens Borough President Helen Marshall said she wants all Willets Point businesses to be re-located to the same spot. “I would like to see them placed somewhere they can work as a team,” she said."

EDC-in usual prevarication mode-chimed in: "As for threatened businesses, officials insist they're offering fair market value and relocation help." This amounts to the usual one way bus ticket out of town.

Of course no one at EDC shares her vision for the displaced workers and their employers-and especially not CM Ferreras who has given up any pretense of advocacy on their behalf in exchange for marionette strings. Here's her inane prattle on NY1: "This was an area that we just didn't walk by. It wasn't safe and I would come by with my dad only," said City Councilwoman Julissa Ferreras."

What she was saying, however-inadvertently making a strong counter intuitive point-was that when her dad needed something for his car Willets Point was the destination. As for walking, why would you walk in Willets point when there were no paved roads or sidewalks? It was not, after all, El Malecón.

NY1 did also bring in the living wage issue: "A retail union also alleges there’s double-talk on higher wages for those that will eventually work there. In a 2008 letter, city officials said they will favorably view development plans that maximize the number of jobs that meet the city's living wage and health benefit. With construction union backing, City Hall officials now say that would jeopardize the project."

So the city is going to put over 200 businesses and 1800 mostly minority workers out of a job-put hundreds of millions of dollars into the development-and they say that a living wage requirement would kill the deal? What that means to us is that the plan calls for box stores and more box stores-another about face from the original Lieber letter to the city council-where the deputy mayor lied about, "suburban box stores being discouraged due to their significant impacts on traffic and vehicular circulation."

Willets Point was created in dishonesty and illegality and that pattern continues to this day. The "beautiful vision" that Marshall sees rests on fraud and deception and, as Max Weber once observed, the use of nefarious means to achieve good ends usually results in the opposite. Willets Point is a case in point.

Bloomberg Sneaks into Willets Point Sewer

Mayor Bloomberg cavorts with employees of Cruz Construction -- the Holmdel, New Jersey firm that was awarded a $40 million contract to install sewer lines at Willets Point.

Earlier today Mayor Bloomberg snuck into Willets Point in order to do a photo op at the site of the sewer construction project-that has yet to be permitted by the DEC! He was so proud of this opportunity that there was no notice of the event last night on his official schedule-and the event took place close to the Flushing River where Willets Point businesses were not likely to take notice.

The photo op was also-with a tip of the hat to Robert Moses-premature since there are numerous legal and financial obstacles that face the city before this development can move forward. It is not surprising, however, that EDC would put the photo op horse before the permit cart-something it also did with the ramps off the Van Wyck. What this all indicates is that the city is desperate to show some progress-three years after the initial approval by the city council.

The permit application may very well run into a serious legal problem since-as our letter to the DEC highlights-EDC is violating the environmental justice guidelines that the agency has promulgated-Willets Point is in an "environmental justice area," which means that care must be taken-along with "enhanced participation"-to include all stakeholders in order to insure that a project doesn't have a disparate impact on minorities.

Since there are around 1800 Hispanic workers set to be displaced if the development goes forward we think there is reason to assume that there will be considerable disparate impact. But the photo op says it all. Take a close look at all the hard hats with the mayor-not a single black or brown face.

This dramatizes how the Bloomberg administration sees environmental justice as, "just us." And the fact that the city couldn't find a local firm to do the work underscores their mind over matter mindset-they don't mind and tax payers don't matter.
DEC Letter from Mike Gerrard

Above is a letter sent by WPU's environmental attorney, Michael Gerrard, of the law firm Arnold and Porter, to DEC.

The gist of the letter is that NYCEDC has failed to comply with the "enhanced public participation" process that is required by DEC Commissioner Policy 29, for NYCEDC's permit application to dump water from the construction site into the Flushing bay. The failures to comply invalidate steps that NYCEDC has taken thus far to attempt to obtain DEC's approval of the permit. Moreover, DEC may not even be entitled to grant NYCEDC's permit application, because the proposed work enables the Willets Point development -- which involves an adverse environmental impact upon an environmental justice area, which is contrary to the concept of "fair treatment" set forth within DEC Commissoner Policy 29. WPU has sent copies of this letter to State Senator Avella, Council Member Ferreras, and State Assemblyman Peralta.

How can you hold a groundbreaking for a project without having the necessary permits to do start the project and no guarantee that you will get them?

It's not just dirt they're shoveling!