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Judge named for a tree chops down legal challenges to East River Park resiliency project

BY LINCOLN ANDERSON | A Court of Appeals judge on Thursday made quick work of legal challenges to the East River Park resiliency project.

As fast as hard hats have been felling the park’s venerable trees, Justice Rowan D. Wilson chopped down an appeal of the lawsuit East River Park ACTION et al v. the City of New York. He also denied a motion for a stay to block the park work, rejecting the plaintiffs’ lawyers’ arguments as “academic.”

Co-counsels Arthur Schwartz and Kathryn Freed had charged that Mayor de Blasio was in contempt of court, arguing that the park destruction was continuing in the face of a stay, or temporary restraining order (T.R.O.), that they contended was still active. But since Wilson ruled there was no stay, he also tossed out the contempt motion.

The decision has just three sentences but could mean the end for what’s still left of East River Park’s nearly 1,000 trees.

Wilson — whose first name, ironically, is a species of tree —issued a terse, three-sentence decision: “Motion for leave to appeal denied. Motion for a stay dismissed as academic. Motion to hold respondent in contempt denied.”

The lawsuit argued that the multiyear project could not proceed unless the state Legislature first voted to “alienate” the park, meaning to take it out of public use for an extended period of time.

The Court of Appeals is the state’s highest court. The lawsuit had lost at two lower-level courts.

At word of the decision, park activists gathered on the steps of the Abrons Arts Center on Grand Street to commisserate.

“This whole process has been shameful,” Schwartz said, angrily, after the decision. “It has never been necessary to destroy the park in order to get flood protection for the people of the Lower East Side.

“Tens of thousands will lose a local park for the next five to seven years, maybe more. Trees which clean our air won’t be replaced in their current glory for 50 years. The park will never again be the beautiful, historic place it currently is.

“This will be one more blight on Bill de Blasio’s legacy in this city,” Schwartz said. “I hope he is happy with his ‘win,’ which the community never bought into.”

“We lost,” Freed said, dejectedly. “And they didn’t even give an explanation. Usually, they do. We brought up a question of law. So they either didn’t want to deal with it or they don’t think it’s a matter of law or they might have decided it’s just a bit of a mess and they just avoided the whole thing.

“They really do seem to have it in for Lower Manhattan — between the Soho/Noho [rezoning] and the park,” she reflected. “No one even talks about Chinatown [part of which is in the rezoning]. … We did what we could,” she said.

As for a letter that is going around accusing the resiliency-project opponents of Jan. 6-like violence, plus arson, Freed was incensed.

“What violence?” she said. “They’re the ones who killed trees! No one hit anyone. It’s getting as bad as the Republicans. It’s polarizing. We’re going to have to live with what they wanted. So why are they yelling? Why the demonizing?”

Councilmember Carlina Rivera, who supports the E.S.C.R. project, did not immediately respond to a request for comment on the Court of Appeals decision.

25 Comments

  1. LES3025 LES3025 December 16, 2021

    Looks like this lawsuit was a waste of time and money, just like Schwartz’s lawsuit against the 14th St. busway and bike lanes. It’s unfortunate that this delayed the project at all, but at least it’s over now. Hopefully people will learn that when he does these NIMBY cases, it’s more publicity stunt than substance and take it with a grain of salt.

    I really think Schwartz, Freed and the East River Park ACTION people have done a major disservice to the community throughout this episode, particularly the issue with the “TRO” the past few days. It was (or should have been) relatively clear to any sober reader with some legal knowledge that there was no TRO after the Appellate Division decision, and at least Schwartz and Freed had to have known that. But they let the ERPA crowd rile themselves up into a frenzy, accuse the city of acting lawlessly, and even mount a borderline assault on the crew. All on a lie. And now they have the gall to accuse supporters of being polarizing? They should be ashamed but I don’t think they’re capable.

  2. Allie Ryan Allie Ryan December 17, 2021

    LES3025, I wish you’d reveal your identity because I would love to have an in-person conversation with you, maybe even navigate the neighborhood by bicycle. I appreciated Arthur’s lawsuit about the 14th St busway; I was not aware of opportunity for public comment; I only learned that de Blasio decided to make it permanent. Personally I find 14th St. now difficult to navigate by bike.

    Opposing the ESCR v5 is not NIMBYism. Speaking for myself, I know the LES needs flood protection / prevention. I advocated for a modified version of the earlier community-led flood prevention plan. Whatever East River Park, Con Ed and NYC Dept. of Transportation do, directly protects my apartment building because the landlord of my building has done nothing to create flood protection. So I want flood protection, but not at the expense of an actively, daily used park. A floodwall like the one being constructed in Stuyvesant Cove might have been less destructive.

    The de Blasio administration respected the TRO for one month. So at one time the de Blasio administration respected the NYS Court of Appeals. IMO those in power analyzed that the long-term gains outweighed the short-term repercussions that ended up being none because only a few politicians condemned the de Blasio administration for not obeying the TRO and the stays.

    I think all the documentation of the past week clearly shows the workers are visibly protected by fences (and much of the view is obstructed by double fences, dark green tarp, the FDR Drive itself), and the people opposing the demolition of East River Park are peaceful and taking solace in the company of neighbors.

    And yes, ESCR supporters have been polarizing. It doesn’t matter when we arrived in the LES. We all live here today. We need unity to go forward. Pitting neighbors against each other only divides our community. People who oppose the ESCR have had to defend their stance by sharing where they live and how Hurricane Sandy affected their homes. Discussing the merits of the ESCRv5 versus the earlier community-led flood prevention plan would be more constructive, but the Value Engineering Report is still heavily redacted.

    • LES3025 LES3025 December 17, 2021

      Maybe one day I will drop the pseudonym and we can bike around the neighborhood (I love biking!), but today’s not the day. I do appreciate you responding honestly though. I think you are well-meaning, even if I strongly disagree with your views.

      I think you and I probably have different conceptions of NIMBYism. For me, NIMBYism isn’t just about literally not building something in your backyard. It’s a broader and, in my view, more pernicious view that the “community” should control what happens in a neighborhood. I put “community” in scare quotes intentionally, because the truth is that the actual community does not speak. The “community” views are those of the largely whiter, wealthier and older minority who attend public meetings and submit public comments. That has been shown time and again in academic studies. It’s also obviously true about ERPA when you look at a picture of any of their rallies (I do not mean to discount the views of any ERPA supporters who are not wealthy, white or older, but it is clear that the overall group demographics are not representative of the actual community). The reason ESCR opposition is NIMBYism is because it stems largely from a sense that this specific “community” was not given an adequate say on the direction of the project. That is reinforced by the connections and overlap between the members of the ESCR opposition and other more traditional NIMBY causes, like opposition to housing and bike lanes.

      We all would love flood protection that does not destroy the park. I biked home from Midtown just yesterday and had to go down Second Avenue instead of my usual route through East River Park and it was less pleasant and more dangerous. I missed the park. But there is not a plan on the table that does that. Suggesting they should have done a seawall, or go back to the original plan, ignores the incredible amount of time it takes the city to develop and implement infrastructure plans. Even if some other plan is theoretically better, it would be years before it could get to the point that ESCR is today. This plan is far from perfect, but it is much better than the status quo and is something that is viable now. If we hold up climate-resiliency projects until they’re perfect, it will be too late. It’s important to accept that climate resiliency is going to require difficult trade-offs, so that we can work within that framework to mitigate them.

      • Chris Flash Chris Flash December 17, 2021

        There is no US vs. THEM as far as the community is concerned, unless one wishes to play a DIVIDE + CONQUER game. Regardless of ethnicity, we are ALL affected by what happens here.

        The city went through the motions of public input, only to ram a totally different “plan” down the throats of community members who contributed their time and energy in the process. This indicates what the city (read: de Blasio) had in mind all along: a perpetual “make-work” project to “keep us safe” from rising water, requiring endless funding for doing and redoing work in East River Park.

        The fantasy is that raising the park by ten feet will stop rising water. The REALITY is that water will rise BEFORE that project is done, making the whole thing USELESS. But the city gets that HUGE federal cash infusion it can use as it pleases.

        The city is not interested in an EFFECTIVE solution (a FLOODWALL) that costs MUCH LESS than the federal bucks the city is getting, that requires MINIMAL maintenance and that does NOT require the leveling of East River Park.

        The effective solution means less money and corruption opportunities for the city and its shady contractors. THAT explains what the city is doing now!

        • LES3025 LES3025 December 17, 2021

          See, Allie, this is what I mean. The very first complaint is that the people who show up to public meetings weren’t listened to enough. I agree that the city did an awful job with how they prepared and presented the change to the plan. But for many of the NIMBYs who oppose ESCR, all the other complaints flow downstream from there.

          ERPA and other supporters aren’t engineers or marine resiliency experts. This guy publishes an underground newspaper and organizes concerts (and I’m sure plenty of other stuff I don’t know about, but not relevant to ESCR). Their arguments that something else should have been done are analogous to anti-vaxxers who claim to “do their own research.”

      • Howard Brandstein Howard Brandstein December 17, 2021

        I think LES3025 fails to distinguish between resiliency and actual mitigation, which means lessening the risks of climate change by addressing the root causes of sea-level rise, torrential rains and rising watertables; namely, increasing greenhouse gas emissions and destruction of green space. Spending $1.5 billion on the city’s so-called resiliency plan and zero dollars on mitigation does not bode well for our future survival. I try to address these issues as they relate to East River Park at https://eastriverparkaction.org/2021/09/10/occupy-east-river-park/ Further, there are actually many more residents living in NYCHA developments along the FDR Drive opposing the city’s plan than supporting it. NYCHA residents and others who in 2019 collected about 2,000 petitions opposing the city’s plan can readily attest to this. In our video “Save East River Park” https://www.youtube.com/watch?v=SCgtYogI5WY NYCHA residents speak in depth about their opposition to the plan and how it will negatively impact their health and environment. It should be clear that the city never challenged the earlier community plan as ineffective flood control relative to their own plan, but rather that the earlier plan would impede one lane of traffic on the FDR Drive and also require Con Edison to construct a tunnel or other protection for its power lines running along the western edge of the park. In other words, our current fossil-fuel energy paradigm must be maintained at all costs, even if it means destroying the very nature that our survival depends on.

        Howard Brandstein,
        Sixth Street Community Center

        • LES3025 LES3025 December 17, 2021

          I absolutely agree with you that the city (and really the state and federal governments) need to do more to get cars off the streets. It’s a more important issue for me personally than ESCR. But this isn’t an either/or situation. We need both. There is no world where we are able to reduce emissions enough in the near or medium term to avoid needing resiliency projects. And so we should not delay those, even if they are imperfect.

      • Joe Joe December 18, 2021

        “the truth is that the actual community does not speak.”
        The truth is that many in our actual community did not know the park was to be destroyed.

        It’s also possible our actual community was too preoccupied with surviving this pandemic or with putting food on the table or with meeting our basic needs, leaving little time to even be engaged.

        • LES3025 LES3025 December 18, 2021

          You’re very close to getting the point. You’re right, it is absolutely true that much of the community is too busy living their lives to engage in or even be aware of these issues. The most well-attended community board meeting will have maybe 100 people. I recall hearing that something like 200 to 300 people signed up to speak at the City Council subcommittee meeting on the SoHo rezoning. From districts numbering over 100,000. It is a tiny, tiny minority.

          It is very well established that this minority that does show up consists of the people with the time and resources to be engaged (older and wealthier and, by extension, whiter), and that those people have views that are not representative of the broader community as reflected in public opinion polling. The people who show up are overwhelmingly against whatever proposal is up for discussion, whereas the actual community generally tends to support at higher rates.

          ESCR opponents like to point out that they got 2,000 signatures of support for their position from NYCHA residents. I have no doubt that if you go around and tell people who are not familiar with the issue that the park is being destroyed, they will sign a petition to oppose. I am equally sure that if you go to those same people and tell them that there is a project intended to protect their homes from flooding, that they would sign a petition in support. It’s well known that the results of polls are heavily influenced by the framing of the question posed. Petitioning is no different.

          Political engagement is a problem, but only one side here is exploiting that to claim to speak for the “community” in justifying its position. I do not claim to speak for the community. For me, the justification is that we live in a representative democracy and the leaders we elected have decided on this plan, and I think implementing flood-protection plans like this one is a good thing.

    • Jan Jan December 18, 2021

      The reason you have trouble navigating 14th St with your bike is that it’s a busway, not a bike path. You’re not even supposed to be there with your bike. When the busway was created, the city added two new bike lanes, one on 12th St and one on 13th St. Use them and leave the busway for the buses.

  3. Mindy Moore Mindy Moore December 17, 2021

    How can one side’s lawyers be so right and the other’s be so wrong when they were all reading the same court order? Will Arthur represent the people who got arrested protesting because he falsely told them the city was violating a restraining order when they weren’t? Will Arthur apologize to the construction workers who were threatened with jail or worse because he said there was a restraining order when there wasn’t? He should apologize to everyone for getting their hopes up falsely.

    • Miriam Miriam December 17, 2021

      People sue all the time.one side wins and one side loses. Unfortunately Arthur and the people he represented lost whereas another judge may have ruled differently. When the city kept destroying the trees, despite the stop-work order, it was not out of the question that the city would at least be held in contempt. He owes no one an apology that the court ruled as it did. At least he tried to do something. Were you there to hear actual violent threats against the construction workers or are you just trying to further discredit Arthur and the group he represented?

      • LES3025 LES3025 December 17, 2021

        The point is that the city did not keep moving forward with the project despite a stop-work order. There wasn’t a stop-work order when the city resumed the project. Arthur allowed people to believe that there was. Sure, anything can happen in front of a judge; but that doesn’t mean it wasn’t pretty clear that he had a bad case, and he allowed people to believe otherwise.

  4. WG WG December 17, 2021

    Thank you, Allie!

  5. Patricia Melvin Patricia Melvin December 18, 2021

    LES, if you believe in what you say, why do you keep hiding behind the pseudonym?

    • LES3025 LES3025 December 18, 2021

      Why do you want to know who I am so much? Do my opinions not stand on their own? Do you want to find out where I live and come to my house? Do you want to find out who my family is? Do you want to call up my employer and tell them I’ve been posting things you don’t like on the Internet?

      I said to Allie Ryan earlier in this thread that I think she is well-intentioned, but many of the other people on the NIMBY side of these issues are not. I saw the videos of some of the ESCR opponents trying to attack the crews. I’ve seen them get aggressive with city officials and their opponents in public meetings. I’ve seen them post their opponents’ addresses online. Just doesn’t seem to be a lot of upside to dropping the pseudonym.

      • The Village Sun The Village Sun Post author | December 18, 2021

        “Do you want to find out who my family is?” …

        LES, you have repeatedly tried to “doxx” Soho residents in your reader comments on The Village Sun. We slipped up once and briefly posted one such comment, in which you doxxed both an activist and her husband, describing where they work, etc., as if to shame them. It was your intention to invalidate their activism, to portray them as meddlesome, self-interested NIMBYs standing in the way of what you deem to be progress. But we unapproved that comment fairly quickly, and have not approved a few subsequent attempts by you to doxx other Soho residents. So, since you like to do research on and doxx other people, why would you not accept it if readers, in turn, doxxed you? Only fair, right? Aren’t you about fairness? You claim you are, and that it’s all about what you stand for. But by using a pseudonym, you shield yourself from that possibility.

        • LES3025 LES3025 December 18, 2021

          I hope you know I respect you and the work that you do on this blog, even if I disagree with your views and editorial stance. So please take this with that in mind.

          It is false that I have tried to doxx anyone. I have never tried to post someone’s address. Never. I have posted the fact that certain people live illegally in highly valuable JLWQA housing, which is public information available to everyone on ACRIS, ZoLa, StreetEasy, and LinkedIn. Their addresses are public, too, of course, but I intentionally do not and have never tried to post that because I think it is inappropriate.

          Moreover, the people I post about are public officials and other public figures. They are members of community boards and activists who are putting themselves out there publicly on these issues, giving quotes to outlets like yours under their name and using their identity openly to advance their cause. When a member of a community board — an appointed government official — uses their platform to advocate for a position that materially affects their personal financial interests without disclosing such interest, that is a violation of community board rules and potentially city conflict of interest laws. That is an important aspect to any story covering the issue. The same is true for activists. It matters if they are working to advance the causes they say or their own personal financial interests. You will note that in the comment you posted and then removed, I didn’t name the other “activist” I mentioned because that person had not put themselves out there for the story I was commenting on.

          I, on the other hand, am not a public figure. I’m just a guy posting anonymously in the comments of a blog. I’m not making policy or trying to influence policy. I’m just offering my opinions on local new stories.

          It’s not at all the same, and as a journalist I have to think that you understand the difference between people whose identities and motivations are matters of public interest and those whose are not.

          • The Village Sun The Village Sun Post author | December 18, 2021

            “I’m not making policy or trying to influence policy.”

            You are a frequent poster on articles involving housing, zoning, development, park projects…but you are not trying to influence policy? Do you do it for kicks?

          • LES3025 LES3025 December 18, 2021

            Yeah, I mostly do it for fun. I work a desk job at a computer so it’s not that hard to find a few minutes a few times a day to post some comments. The blog helpfully has a “recent comments” tab, so it’s easy enough to see if someone responded to me. The frequency at which I post probably indicates a greater time commitment than it actually is. And today it’s rainy and everyone in this city has COVID, so what else is there to do?

            I absolutely care about policy, which is why I comment on the articles I do. But if I was trying to influence policy, there are much better places to do it than the comments of a neighborhood blog. There are like a dozen other people who regularly comment here. I’ve been a longtime reader of your blog and a few other local outlets. I love hyperlocal news and appreciate the coverage you provide. But I found myself getting increasingly frustrated by the NIMBY editorial slant. So I started commenting to weigh in on that. I think most of my comments are still in that vein, but I also respond when people engage with me. That’s basically all there is to it.

          • The Village Sun The Village Sun Post author | December 18, 2021

            Thanks, glad you like the newspaper (we call it a newspaper, not a blog). Does your employer know you are such a frequent commenter? If you are also doing this on other sites, you must be pretty busy.

          • LES3025 LES3025 December 18, 2021

            Like I said, less of a time commitment than it may seem.

            And the vaguely threatening “does your employer know you’re spending so much time commenting” comment is exactly part of why I said I preferred staying anonymous in the first place. To be honest, kind of offended you said that. They’re perfectly happy with me, and I don’t love the idea of an aggrieved NIMBY calling them up.

          • The Village Sun The Village Sun Post author | December 18, 2021

            Definitely not a threat. Just an observation. Anyway… Keep on truckin’, er, postin’.

  6. Pete Davies Pete Davies December 19, 2021

    The one with no name is “kind of offended” that you asked him a question.

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