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East River Park stop-work order still in effect with two more lawsuits headed to court

BY LINCOLN ANDERSON | The bulldozers and chainsaws are still being kept at bay in East River Park — at least for now — as a temporary restraining order continues to hold.

Per the order last week of an Appellate Division court panel, the T.R.O., or “stay,” remains in effect so far, pending the panel’s decision on a legal appeal by opponents of the city’s East Side Coastal Resiliency project.

In addition, this coming Friday another lawsuit pertaining to the park project will be heard in the same court. In that case, Tully, a contractor that sought the contract for the project to elevate the 60-acre East River Park by 8 feet to 10 feet, will argue that it should have rightfully won the bid. The only other bidder, IPC Resiliency Partners, allegedly is a cobbled-together entity — meaning two companies were joined together in order to meet the “experience” criteria for the contract.

“If Tully wins that case, the contract is void and they would have to rebid the project,” explained Tommy Loeb, a member of East River Park ACTION. “The bid [process] took a year the last time.”

Loeb said that, as the appeal goes on and the T.R.O. is in effect, the plan’s opponents still have allowed work to go on in one part of the park.

“We agreed to the sodding of the lawn where the compost yard used to be,” he said.

Village attorney Artuhr Schwartz, who is representing dozens of local plaintiffs in a community lawsuit seeking to stop E.S.C.R., said there was no decision on Monday that would affect the restraining order on contruction in the park.

“The court decides when they decide,” he said. “The stay stays until the panel rules.”

As for the Tully case, he said the argument is “that winning bid did not meet performance requirements and was cobbled together. They have to have a billion dollars of experience over the past number of years, a certain number of years — so they added another company,” he said. “We know that one of the companies that is part of this has a checkered history. Maybe one of them could be eliminated — that would void the contract.”

In addition, as previously reported by The Village Sun, Schwartz said he plans to file another lawsuit — hopefully on Tuesday — on the coastal-resiliency project. Like the Tully suit, it would focus on the contract for the East River Park work. Schwartz’s suit will argue that the de Blasio administration violated MWBE (Minority and Women Owned Business Enterprises) standards for city contracts by saying IPC only had to meet half of the usual MWBE contracting requirement, or 16 percent, as opposed to the usually required 32 percent.

“My case and the Tully case are very similar in a way,” the attorney said. “It’s all contracting rules.”

His other lawsuit, which is currently under appeal, is based on the principle of park “alienation.” That suit argues the $1.3 billion East River Park-raising scheme is, above all, a floodwall project and not a park project per se, so must first go through an “alienation” vote by the state Legislature to authorize the land’s removal from park use for the work.

“It’s a principle, common law, something that has existed for 120 years, the parameters of which are decided by a judge,” Schwartz said. “If there’s been 20 of these cases in the last 120 years, that’s a lot.”

The biggest alienation case to date was in 2000 and involved New York City’s effort to install a belowground filtration plant for drinking water — a nonpark purpose — in Van Cortlandt Park in the Bronx, he noted.

Similar to the proposed East River Park resiliency project, Schwartz noted the city had argued that, after it destroyed that section of Van Cortlandt Park to install the water-filtration plant, it would rebuild the park there.

New York State joined the plaintiffs, including Friends of Van Cortlandt Park, in arguing that the project constituted park alienation. The court found for the plaintiffs.

13 Comments

  1. LES3025 LES3025 November 8, 2021

    It’s kind of interesting that Schwartz’s lawsuit is premised on the idea that ESCR is a floodwall project, not a park project. But, at the same time, all the supporters in the comments here and on other blogs keep saying that it isn’t a floodwall project and the point is to rebuild and improve the park so it can be sold to developers.

  2. Barbara Katz Rothman Barbara Katz Rothman November 8, 2021

    This destruction of the park must be stopped. There are better plans, genuinely “resilient” plans, that do not call for killing all the trees, and bringing in landfill! The people living along the FDR Drive already have horrible exposure to toxins and high rates of asthma — this removes the trees that helped, and adds the harmful landfill. This plan will kill people. We must stop it.

  3. JackDog JackDog November 9, 2021

    The outgoing Mayor de Blasio has also put himself in the running to be sued.
    By overriding Comptroller Scott Stringer’s refusal to sign the contract for the boondoggle plan, “Dollar Bill” employed a Trump-like tactic. He did it because he
    said he could do it. The opponents of the de Blasio “dirt bomb” have another legal option. Nice legacy, Bill.

    As far as the failed presidential candidate’s potential run for governor of the Empire State, in my opinion even he comprehends that it is a losing gamble. He’s only in it for the money.

  4. Linda Ruggiero Linda Ruggiero November 9, 2021

    We need to save our park, there is no good reason to destroy healthy trees, we need this park for our children, seniors, our fur babies, let’s all stick together.

  5. Tahj Tahj November 9, 2021

    We Need to Save Our Park There Is No Good Reason to Destroy Healthy Trees We Need This Park

  6. Diana Carulli Diana Carulli November 9, 2021

    Senator Schumer wants to cover over a section of the Cross Bronx Expressway, another area where residents nearby are afflicted with high levels of asthma and exposure to toxins. Schumer also wants to place a park on top of the covered-over section. What a perfect solution this would be for East River Park, which could then become an ecologically designed storm-protection zone, saving its functions for the public and continuing the health benefits of 1,000 trees.

  7. LES4ever LES4ever November 10, 2021

    The stupidity of the “good intentions” here is mind-boggling.

    How many trees did Sandy kill?

  8. Paul Bartlett Paul Bartlett November 10, 2021

    Kudos to Arthur Schwartz and the environmental park activists. The way forward for a livable planet and our local habitat is a balanced approach to climate change adaptation AND biodiversity — it is poor planning to pursue one at the expense of the other. Conservation of biodiversity flora and fauna mitigates against climate change. The UN IPCC and the IPBES created a working group with that key finding. The community plan for the East River Park with extensive outreach and inclusionary planning is adaptive to sea-level rise and mitigates sea-level rise with biodiversity and as a carbon sink and albedo effect. https://www.un.org/sustainabledevelopment/blog/2021/06/tackling-biodiversity-climate-crises-together-and-their-combined-social-impacts/

  9. LES4ever LES4ever November 12, 2021

    The longer we drag our feet like this, the more likely we are to lose the park — and all those trees — to another storm.

    If you’re concerned about trees, try to remember how many were lost to Hurricane Sandy.

    And if you’re unhappy with the current plan, instead of a drum circle, maybe you should have come to the eight years of community planning meetings preceding all this, and voiced an opinion.

    If you live in the East Village and you’re troubled by the inconvenience of a temporary loss of recreational opportunities, please consider those of us on the Lower East Side who are actually trying to defend our homes against the next flood.

  10. Jane Doe Jane Doe November 15, 2021

    https://www.treeplantation.com/tree-carbon-calculator.html
    Our community would be better off with the original community-involved flood plan, preserving many of our mature trees, avoiding the toxic air quality throughout the many years of park construction.
    The oxygen that forest of trees is currently pumping into our neighborhood and that is protecting our health is something that won’t likely be restored for decades after park destruction. The nearly 1,000 large-diameter forest of trees survived Sandy, Henri, Ida… They are not sick.

    “Con Edison’s Post-Sandy Fortifications Prove Wise $1 Billion Investment For Customers”
    https://www.coned.com/en/ab
    “The strike back with Con Edison’s four-year Fortifying the Future storm-hardening program began in 2013 with the installation of more than 1,000 “smart” switches on its overhead system, submersible equipment that can withstand flooding, redesigned underground electrical networks and numerous other steps to avoid outages.”

  11. Jane Doe Jane Doe November 15, 2021

    Alternative flood-protection plan: “The project, which started earlier this year, will help capture 55 million gallons of stormwater each year to ease pressure on neighborhood sewers and reduce flooding on walkways, officials said.”
    “The upgrades include building green infrastructure — including permeable concrete sidewalks, permeable asphalt, permeable pavers, subsurface infiltration chambers or rain gardens — to soak up the stormwater, which typically would put pressure on the sewer system and overflow into local waterways like the Gowanus Canal, Newtown Creek, East River or Jamaica Bay.”
    https://patch.com/new-york/bed-stuy/upgrades-bed-stuys-roosevelt-houses-help-flooding

  12. Jane Doe Jane Doe November 15, 2021

    Alternative Flood Protection Plan: https://bpca.ny.gov/nature-and-sustainability/resiliency/
    “leveraging existing infrastructure – including garden/park walls – to the greatest extent possible in order to create a new line of flood protection along the waterfront…”

  13. LES4ever LES4ever November 17, 2021

    Again: You’ve had 8 years to make your preference known.

    Maybe you should have come to some of the meetings.

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