Foes file legal appeal vs. East River Park resiliency project

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

The plaintiffs include more than 20 community organizations, including the ad hoc East River Park ACTION, and 100 local residents who use East River Park. The suit was filed this week by activist attorney Arthur Schwartz, who is the Village’s Democratic district leader and also a candidate for City Council in the Third District.

The appeal seeks an injunction against the $1.45 billion project and to nullify the City Council vote in November 2019 that approved the plan under the ULURP review process.

The case is built on the so-called “public trust doctrine,” or as the appeal puts it, “parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purpose.”

The suit argues that the resiliency plan would essentially turn the 2.4-mile-long park into a massive seawall, which is not a park use per se. Also, taking East River Park out of action for five years or more for construction — even if part of it would be left open during that period — means it would be taken out of park use. Both of these cases, the lawsuit argues, would require a vote by the state Legislature on “alienation,” which has not happened. In turn, in such cases, an alienation vote is needed before the city can conduct a ULURP process.

“It is a long-term (five-year) closure of large portions of the park to build a flood-protection system for the surrounding community, which will, after the eight-foot elevation is built, be restored as a park,” the appeal states. “And it will not be the park which is there now, with five-story trees. It will take decades to replicate what is there now, if ever.

“They want to alter the park permanently, by destroying the existing park — cutting down every tree and removing every shrub in the park, and destroying natural habitats, and barring public use of the park, turning East River Park into a seawall with a park on the top,” the appeal states. “What they have refused to do is seek a vote of the New York State Legislature to allow the project.”

Local state lawmakers, including state Senator Brad Hoylman and Harvey Epstein, have publicly stated that they think the E.S.C.R. project should undergo an alienation vote in Albany.

But Hoylman and Schwartz both told The Village Sun that the de Blasio administration first must ask the state Legislature to hold the vote. Hoylman said he is rooting for a successful appeal, which would prove that an alienation vote is needed.

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

Last August, state Supreme Court Justice Melissa Crane ruled against the lawsuit, not buying Schwartz’s argument that the resiliency project is, above all, a seawall project not a park project.

“While it is an intrusion,” Crane said of E.S.C.R., “it is for a park purpose. The project grew to include protecting the park.”

“This is a critical case for all of Lower Manhattan,” Schwartz told The Village Sun late on Friday. “East River Park is a gem, which Mayor de Blasio, with the acquiescence of Speaker Johnson — who admitted that it was a flawed plan — wants to destroy. It will be an odd legacy. Destroying something in order to ‘save’ it is an idea which never works. Like I said at the rally [in East River Park on April 18], it reminds me of Vietnam and Afghanistan. Somehow I think that the current proposal, if voted on by the state Senate and Assembly, wouldn’t be approved. That is what the city is afraid of. They are afraid of legislative oversight, which is what the ‘alienation’ doctrine requires.

“The city adopted the current plan, not because it is a better plan, but because they thought it would keep Harvey Epstein and Brad Hoylman and their fellow legislators out of the process,” Schwartz charged. “I believe that Justice Crane misapplied the law. As we argue [in the lawsuit], the alienation doctrine applies whenever a park is taken out of service for a non-park purpose for a substantial amount of time. At best, building a flood-protection system is, in part, not a park purpose. The East Side Coastal Resiliency project is designed primarily to protect the residents of the Lower East Side, not to protect the park. Last words? Save the trees!”

Schwartz added that his appeal would also mention the “hidden material,” meaning the redactions in the “value engineering study” that the city only recently finally made public. That V.E.S. study compared the current “elevated park plan” with a previous plan, which was mostly backed by the community, that would have protected the surrounding area not by raising the park but by creating berms and walls east of the F.D.R. Drive.

The attorney said he is pushing to argue the appeal in court in June instead of September, which would be the normal timeline. Word is the city wants to start work on the East River Park section of E.S.C.R. in October, he said.

No contracts have been awarded for the East River Park work yet, and the project is reportedly currently a year behind schedule.