Alienation Lawsuit Appeal

The City has strenuously avoided asking for “alienation” approval from the NYS legislature. East River Park Action insists. 

The more that is uncovered about the City’s East Side Coastal Resiliency project, the more it is clear that accountability is critical. Attorney Arthur Schwartz filed a brief April 30 asking the appellate court to require state legislative oversight. 

Why Alienation

The city is supposed to ask the state legislature before using parkland for any other purpose—even temporarily. New York City did not request this “alienation” for the five-year flood control project that would raze the 82-year old 1.2 mile long park, then rebuild it eight feet higher.

That’s why East River Park Action .along with 15 other community organizations and nearly 90 individuals filed a lawsuit demanding alienation legislation from the state last year. The suit was rejected in State Supreme Court. 

No. The Park Won’t Drown

The original decision that is being appealed was based on an inaccurate assumption. Judge Melissa Crane wrote, “While I do find that the City’s plan involves a substantial intrusion … without this plan we will likely not even have a park at all.” 

That is incorrect. The city’s attorneys said that the park would be completely destroyed and eventually inundated by rising sea levels and storm surges. In fact, the park is already resilient. Flood waters receded quickly and the park reopened two days after Hurricane Sandy. It can be made more resilient as sea levels rise. Salt-water resistant plantings can replace damaged trees and greenery. Instead of a massive wall against the river, marshlands can be created along the shoreline as is done in other parks around the city and the world. Flooding does not hurt natural turf ballfields. 

East River Park does not need to be destroyed to save it or the adjacent Lower East Side and East Village. Flood protection along the FDR Drive, as was originally planned, will protect the neighborhood. Innovative solutions, such as covering at least some of the FDR with parkland can also act as flood protection and can add acreage. 

Parkland Needs a Guarantee

Judge Crane also rejected the concern that the city might allow developers to build high rises on the park. Alienation would require the return of the entire park as a park. Crane said, “…at this point the danger of the city using the park for something else is speculation.” 

However, this is a major concern as expressed in a December 2018 letter from elected representatives that asked the city to request alienation. The officials asked, “If the City were to go forward with the new plan, and alienation is not required, how would the City be held accountable to ensure that 100% of the parkland and open space is returned to the public?” 

The City’s response was hardly reassuring, wrote Schwartz in the appeal: “In essence, the City said ‘don’t worry, it’s mapped parkland, so must always be mapped parkland.’ ”

State senators in the districts by East River Park, Harvey Epstein and Brad Hoylman, continue to support alienation but say they cannot initiate it—it must be done through the city’s request or by court order. 

On Time in NYC?

Schwartz, who is running for City Council in District 3 and is working pro bono through the nonprofit Advocates for Justice, also noted the problem the City has with timelines. “While the project is intended to last for five years, prior construction on the Park to fix damaged bulkheads along the waterfront took six years rather than what was originally announced as a two-year project. Construction estimates for projects such as this are notoriously bad.”

Value Engineering Study Reveals NYC Alienation Dodge

Did the City make the decision to bury East River Park in part to avoid asking for alienation from the state? Reading through the (mostly) unredacted Value Engineering Study,* it appears so. The three-year-old report, recently uncovered by East River Park Action’s Freedom of Information Law (FOIL) request and appeals, shows alienation was a concern. Making it look as though recreating the park on top of a giant levee was for the benefit of the park—not just for flood control for the neighborhood—the city would not have to face the state’s deadlines, budgets, or even a promise to return the whole park as parkland. 

In fact, the plan the city put forward, does make part of East River Park permanently unusable as parkland. How will park-goers use a steep hill to the top of the levee that will rise alongside the path next to the FDR for more than a, mile? How will park-goers use the three maintenance vehicle parking lots in places that are now much-used green areas? By avoiding alienation, the city can dodge those questions. 

Alternate Park Space

The law also says that even temporary use of parkland for other purposes requires alienation. The state legislature can demand mitigation—alternate comparable park space while the work is being done.

What will the 110,000 people in the densely populated low-middle income neighborhood do for five-plus years while the park is destroyed around them, and there is little access and no through routes from the 40 percent of the park that is supposed to remain open? 

The City’s current mitigations offer little for ball teams, runners, bikers, walkers, picnickers, and elderly and disabled people. 

Is the unwillingness to provide decent park space for our crowded neighborhood a reason the City is avoiding this long-established step? 

Over Budget

Oversight is also crucial because the $1.45 billion set aside for funding will not cover the cost of the project. The lowest bid for destruction of the park exceeds the budget by $73 million. That doesn’t include the enhanced sewer system—another expensive aspect of the plan that has yet to be put out for bids. 

The state needs to be monitoring this massive, five-year project that is over-budget before it has even started. 

Contact 

Arthur Z. Schwartz: 212-285-1400: 917-923-8136
aschwartz@advocatesny.com

Jonathan Lefkowitz: 917-544-4635
jon@lefkowitz-law.com

Links: 

April 30 Appeal: Matter of East River Park Action Brief for Petitioners Appellants
https://eastriverparkaction.org/appeal-for-alienation/

Legal page with links to documents: https://eastriverparkaction.org/legal/

Transparency Lawsuit
* East River Park Action also filed a lawsuit April 2 for the unredacted Value Engineering Study cited above. Jack Lester is the attorney in that case: 
https://eastriverparkaction.org/2021/04/05/lawsuit-filed-for-unredacted-value-engineering-report/

---

In the News:

Foes file legal appeal vs. East River Park resiliency project

BY LINCOLN ANDERSON, MAY 1, 2021, THE VILLAGE SUN

Opponents of the East Side Coastal Resiliency plan have filed an appeal in their lawsuit to block the embattled mega-project….

“I hope that the appeal is successful,” [State Senator Brad] Hoylman said. The judge got it wrong. I think it’s a question of legislative prerogative.”