Plaintiffs Vow Appeal; Project to be Redesigned to Skirt Two Buildings
A State Supreme Court judge has dismissed a lawsuit brought against the Battery Park City Authority seeking to halt that agency’s North/West Resiliency project. The huge construction project, now underway, is creating a coastal flood risk management system consisting largely of flood walls and deployable gates, stretching from First Place (near South Cove), running north along the esplanade to Chambers Street, and terminating at a high point in Tribeca near North Moore and Greenwich Streets.
Last October, a coalition of residents and organizations, including Kelly McGowan, John Dellaportas, the Battery Park City Neighborhood Association, and the Battery Alliance filed suit, alleging that the BPCA’s plan violated the State’s Environmental Quality Review Act (SEQRA), the recently enacted “Green Amendment” of the State Constitution, and the public trust doctrine, a common-law principle that government holds natural resources (such as navigable waters, underwater lands, and park space) in trust for the benefit of the general public. In particular, the suit argued that BPCA’s decision to split its South Resiliency and North/West Resiliency projects into separate initiatives violated the legal requirement for a single, overarching environmental impact statement (EIS) that would examine the effects of both, comprehensively. The legal action additionally took issue with the 400-plus trees that are being cut down for the project, mostly along the esplanade, and argued that the BPCA “failed to explore reasonable alternatives that would allow the esplanade’s canopy to remain intact.”
In court filings, the Authority responded that its North/West and South initiatives are independent resiliency projects, designed to safeguard separate areas within Battery Park City, each providing independent protection regardless of whether the other is built. The BPCA’s lawyers also made two technical arguments: First, that the complaints about compiling a separate EIS for each project are barred because they were never raised during several years of public review. And second, that the public trust doctrine applies only to City-owned public space, rather than natural resources owned by the State. (The BPCA is a State agency.) Regarding trees, the BPCA countered, “there will be a net increase in trees, which will include larger and older trees which will accelerate restoration of the canopy, improve long-term resiliency, increase green space, and enhance biodiversity.”
In deciding to dismiss the suit, Justice Phaedra F. Perry-Bond relied on a legal standard that judicial review of an EIS “is limited to whether the determination was arbitrary and capricious, an abuse of discretion, or affected by an error of law,” which mandates that “courts cannot substitute their judgment for that of the agency.”
In the absence of a clear violation of the State’s SEQRA requirements, and because “the record demonstrates that at the conclusion of construction, Petitioners will have access to an even greater number of trees and even greater biodiversity,” the judge concluded that the BPCA’s action did not meet the arbitrary/capricious standard, and dismissed the suit.
One of the leaders in the suit, Battery Park City resident (and attorney) John Dellaportas, said, “as a co-plaintiff, naturally I am disappointed with the decision. However, the lower court’s ruling contains several reversible errors, and accordingly, we intend to appeal, and we expect to prevail on appeal. Hopefully, [BPCA president] Raju Mann will suspend his environmentally catastrophic demolition of our beloved parks and promenades while the judicial process takes its full course.”
Authority spokesman Rami Metal responded, “for more than five years, BPCA has shaped the North/West Battery Park City Resiliency Project alongside agency partners with extensive community input, public review, and environmental studies. The goal of the project is to protect Lower Manhattan from the challenges presented by sea-level rise and increasingly unpredictable storms. We have secured the approvals and cooperation of dozens of agencies and property owners who are eager to see this project realized.”
“Unfortunately, two buildings have thus far refused to work collaboratively towards an agreement in line with the other agreements we have reached,” he continued, referring to 380 Rector Place (Liberty Terrace) and 377 Rector Place (Liberty House), where several of the plaintiffs involved in the lawsuit reside. “This requires BPCA to take steps toward redesigning a piece of the project that is expected to extend construction by more than a year along a portion of the waterfront. It’s an unfortunate outcome, but we’re as committed as ever to delivering this critical project.”
A BPCA source explains that the agency engaged in extensive discussions with multiple residential buildings along the esplanade: the Regatta (21 South End Avenue), Liberty Terrace, Liberty House, Hudson Towers (350 Albany Street), and Gateway Plaza. Each was offered financial compensation and other forms of accommodation in exchange for permission to construct resiliency infrastructure on their properties. This infrastructure consists of underground footings to support the weight of the new flood walls that will sit between each building and the esplanade.
Gateway Plaza, Hudson Towers, and the Regatta all negotiated terms with the Authority that allowed this work to proceed. But, the BPCA source says, Liberty House and Liberty Terrace wanted independent engineering studies of the planned work, rather than relying on designs offered by the agency. The same source says that the BPCA paid for this engineering work, along with legal fees related to the negotiations that followed. (These legal fees are unrelated to the recently dismissed lawsuit.)
To date, Liberty House and Liberty Terrace have not come to an agreement with the BPCA about the infrastructure needed for flood walls. The Authority source says the North/West Resiliency project will proceed in spite of this, but will require new designs that allow for construction of subterranean foundations that do not cross the property lines of those buildings.