Call it a victory for our environment, fish, wildlife and public space! At last, they came out ahead of the almighty dollar. Pier 55, the $200 million extravagant performing space set to be built atop the Hudson River and funded by “media mogul” Barry Diller and friends – alternately referred to as “Diller Island” – was dealt a welcome set back via a federal court decision late last week which may sink its over-the-top, privatized future. The reason: lack of consideration by almost everyone involved in its planning and support to the key fact that the Hudson River Park was built to be an Estuarine Sanctuary.
The “Pier 55” project has received widespread community disdain – although local Community Board 2 supported it – and has survived three previous lawsuits aiming to halt it by civic group, City Club. However, a decision issued on March 23rd from their latest lawsuit in Federal Court by Judge Lorna G. Shofield found serious “deficiencies” with the Army Corp of Engineers approval process of the project‘s permit, specifically as it relates to upholding the Clean Water Act.
This appears to be the legal challenge – fourth times the charm? – that sinks the over-the-top concept’s future.
The Hudson River Park Trust never broached this project from the perspective of the water being “a protected fish and wildlife sanctuary” but pretty much always from the perspective of it being a way to monetize and privatize this public space.
Hatched in secret, it was recently revealed that costs for construction had ballooned from an initial projected $130 million to over $200 million.
By the way, the Parks Department has a back up plan waiting in the wings which would cost a fraction of the cost and look like… the rest of the park.
Media Coverage of the Federal Court Decision on Pier 55:
New York Times, Plan for New Pier Along Manhattan Is Jeopardized by New Ruling:
In a decision issued Thursday afternoon, Judge Lorna G. Schofield of United States District Court ruled in favor of opponents of what is also known as Pier 55. She scuttled the project’s permit and ordered a review of alternatives to building in a maritime sanctuary for the preservation of fish and wildlife.
She ruled that the Army Corps of Engineers had improperly failed to consider the project site a protected fish and wildlife sanctuary when it issued the permit. The state legislation creating the five-mile long Hudson River Park “states as its sole purpose in creating the Estuarine Sanctuary the protection of fish and wildlife resources,” she noted.
Richard D. Emery, a lawyer for the City Club and other opponents, described the decision as “a clear, solid victory.”
From Curbed, Pier 55 construction scuttled yet again by latest legal ruling:
There was a new twist in the legal saga surrounding the Barry Diller and Diane Von Furstenberg-funded Pier 55 park this week. After a series of legal losses, the City Club of New York, the group opposed to the park, finally earned a victory in court on Thursday. A United States District Court judge ruled in favor of the Club, ordering work to stop, and demanding that a review be conducted to examine the impact of such construction on wildlife, the New York Times reported.
In April last year, the U.S. Army Corps of Engineers signed off on the project, finally allowing it to move forward. The District Court judge however found the Army Corps of Engineers to be at fault and said that the agency had failed to consider the impact on wildlife before issuing the permit.
The 2.7-acre futuristic park has been embroiled in lawsuits right from the start. …
The park has already received the support of Mayor Bill de Blasio, Governor Andrew Cuomo, local elected officials, and the community board, as the Times notes. Diller and Von Furstenberg are the largest donors to the Park, but its original estimated $130 million cost has already ballooned to over $200 million. The HRTP could appeal this ruling, but the organization is considering next steps at the moment.
“We have won four challenges in four courts on this project,” a spokesperson for the organization said in a written statement. “Not one of those decisions determined the proposed project would harm the environment — and neither does this one. But even if largely procedural, we are deeply disappointed by this ruling, and are reviewing it carefully to determine our next steps.”
Additional detail from The Villager:
As [City Club lead attorney Richard] Emery explained, in an interview the day after the decision, “They have to scrupulously look at other alternatives — including land-based. They could do it on Gansevoort Peninsula. They could do it at the tow pound [on Pier 76 at W. 38th St.] It could be a lot places. It doesn’t have to be in the water.”
The Army Corps had two basic responsibilities: first, to determine the project’s “basic purpose,” then, to determine if that “basic purpose” is “water dependent.”
The Army Corps defined the project’s basic purpose as “providing a vegetated pier platform within Hudson River State Park with an amphitheater and public restrooms; and to continue to provide safe public-access pier structures within Hudson River State Park.”
However, [Manhattan Federal Judge Lorna G.] Schofield wrote, “Had the Corps properly defined the project’s basic purpose, it almost certainly would have found that the proposal is not water dependent. … A project whose fundamental goal is to provide park and performance space is not water dependent, regardless of whether the Trust prefers to build such a space on a pier.”
Specifically, the “trigger” for the project’s scrutiny under the Clean Water Act, according to attorney Emery, is the fact that Clean Water Act “prohibits the discharge of any pollutant, including dredged or fill materials, into the nation’s navigable waters, except in compliance with [the act’s] provisions… .”
In the case of Pier55, that “pollutant” would be concrete: The permit the Hudson River Park Trust applied to the Army Corps for was to allow it to pour “flowable concrete” into tubular piles that would be pounded into the riverbed to create the project’s distinctive “pot”-style supporting structures. Emery likened these piles to “mushrooms,” adding they are clearly a critical element of the design.
“The ‘mushrooms’ require fill,” Emery explained, referring to the concrete.
It’s possible that the project now could be redesigned so that standard, solid concrete piles would be used, as opposed to ones that needed to be filled with pourable concrete after being pounded into the river. But Emery was skeptical.
“I’m sure that Diller and von Furstenberg are wedded to the mushrooms,” he said. “They’d have to start the review all over. They would have to do an environmental assessment. It would set things back at least a year.”
If the Downtown power couple and the Trust do now want to redesign the project, Emery hopes that this time the process will be transparent.
“They did it in secret before,” he said.
In addition to bungling the basic use of Pier55, the Army Corps didn’t even define the park’s waters correctly, the judge determined. The Hudson River Park’s founding legislation designated the park’s waters as an “estuarine sanctuary.” As Schofield wrote in her decision, “The Hudson River Park Act states as its sole purpose in creating the Estuarine Sanctuary the protection of fish and wildlife resources.”
Also, in The Villager article, Lincoln Anderson writes, “After the Community Board 2 monthly meeting that same night, a board member who is a booster of the park, after being asked about the shocking setback, replied, ‘That damn City Club.‘”
It is not that hard to figure out who that quote comes from, and likely it is a former Chair of C.B.2.
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Previously at Washington Square Park Blog:
Why the Parks Department “Back-Up Plan” to Barry Diller’s Pier 55 Island Should be the Actual Plan April 20, 2015
City Club Legal Challenge to Hudson River Park Trust / Barry Diller “Pier 55” Island Plans June 24, 2015
Photo: Cathryn