BY LINCOLN ANDERSON | Updated Tues., March 30, 2017, 2:00 a.m.: Has “Diller Island” suddenly transformed into Atlantis?
Could the extravagant plan be sinking into the murky depths of the Hudson?
And, if so, ironically, it all might be because of the quirky “pot”-shaped concrete support piles that are the project’s signature design element — which would need to be filled with pourable concrete after being installed in the river — as opposed to traditional straight concrete piles that are just pounded right into the riverbed as is. … Talk about “going to pot.”
In a stunning decision in federal court last Thursday, Judge Lorna Schofield ruled that the U.S. Army Corps of Engineers erred in April 2015 when it issued a permit for Pier55, the glitzy $200 million “entertainment fantasy island” proposed to sit off of W. 13th St. in Hudson River Park.
In turn, due to the “seriousness of the…deficiencies” in the Army Corps’ permit, the judge vacated it — meaning she yanked the permit. So, the project now lacks a critical requirement without which it cannot move forward.
Media mogul Barry Diller and his wife, fashion icon Diane von Furstenberg, had committed to providing most of the financing to build the pricey pier, which has the support of both the governor and the mayor.
The successful suit against the project was brought by two members of The City Club of New York — longtime Hudson River Park activist Tom Fox and boater Robert Buchanan — and also argued by attorney members of the club, including lead attorney Richard Emery.
Another lawsuit against the plan that the same plaintiffs had filed in state court, however, repeatedly washed out, culminating in the Court of Appeals — the state’s highest court — ultimately refusing to hear the case in October 2016.
But the result in federal court on March 23 was clearly a jolting torpedo hit on the dazzling designer pier.
“At a minimum, the project is comatose,” Emery said on Friday, “and I don’t think it’s going to recover. We’ll see.”
Fox said, “Unless they appeal it and the judge’s decision is overturned, it’s dead in the water. The Trust could appeal, but the Corps would need to join in the appeal because the decision is against the Corps. Right now, the project has no permit, it can’t continue. They would have to go back and appeal it, or perhaps redesign it and reapply for a permit — but that doesn’t happen overnight.”
The Hudson River Park Trust — the state-city authority that is building and operates the 5-mile-long West Side waterfront park — teamed up with Diller to create the Pier55 plan. In a statement on Friday, the Trust downplayed the judge’s ruling as “largely procedural,” yet did not immediately say it would appeal.
“We have won four challenges in four courts on this project,” the statement said. “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.”
A spokesperson for Diller said he is not issuing any additional comments beyond the ones given by the Trust.
Assemblymember Deborah Glick — whose district includes the Pier55 site — on the other hand, praised the ruling.
“I think this was a great decision,” she said, “and we’ll see what the next step in the court challenge is.”
Asked for comment on the ruling, a spokesperson for City Councilmember Corey Johnson said to use Johnson’s statement that he gave on the Pier55 project in January 2015.
“We have reasons to be excited about this endeavor,” the councilmember said, in part, back then, though adding, “We must ensure that the natural habitat of the Hudson River be preserved with the utmost care. Any construction must be done in consultation with relevant environmental agencies and organizations.”
Terri Cude, chairperson of Community Board 2, noted that the board was a booster of the project.
“Community Board 2 supported a park at Pier55, as we have such limited locations and resources for truly open spaces in our area,” she said. “We’ll wait and see the outcome of this lawsuit and any appeals, and will keep working to retain and add recreation, open space and cultural opportunities where they’re most needed.”
‘Not water dependent’
Basically, Judge Schofield said, the Army Corps violated the federal Clean Water Act by incorrectly finding that the “basic use” of the Pier55 project would be “water dependent,” which enabled the Corps to grant a permit for the project’s construction.
In other words — the glitzy, 2.75-acre arts pier with an undulating landscape that was planned to host scores of annual events, drawing thousands of people to the waterfront park, simply does not need to be on a pier — alternative locations exist, and they don’t have be over water. On the other hand, something like a boat launch, for example, the judge’s decision notes, obviously is water dependent.
As 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, 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.”
A ‘concrete’ case
Specifically, the “trigger” for the project’s scrutiny under the Clean Water Act, according to attorney Emery, is the fact that the law “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 at least 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.”
On the federal side, the equivalent definition for the park’s waters is a “special aquatic site” — which, if there is fill or dredging involved in the project, then triggers the Clean Water Act review as to whether the basic use of the project is water dependent.
But the Trust argued — and the Army Corps compliantly agreed — that the park’s waters are not a special aquatic site, and not managed principally for the preservation and use of fish and wildlife resources, but rather are “designed to serve four distinct park purposes: resource protection, public access and recreation, education and research activities.”
Unswayed, the judge wrote: “Defendants’ arguments are unpersuasive. … In this case, the New York State Legislature clearly stated that its intent in creating the Estuarine Sanctuary was to protect fish and wildlife resources, without expressing any additional purpose.”
The Hudson River Park Act does say the Trust is required to manage the estuarine sanctuary to provide environmental education and research (think the River Project), boating, fishing, swimming and authorized commercial maritime uses. However, the judge wrote, the park’s waters are managed “principally” for the preservation of fish and wildlife resources.
Corps ‘contrary to law’
Schofield slammed this key blunder by the Army Corps — having deemed the park’s waters not a special aquatic site — as clearly “contrary to law.”
The Trust also tried to argue that Pier55, as an entertainment and recreational site, fits within the park’s “missions and goals.” But again, Schofield returned to the idea of the project’s “basic purpose,” and whether that purpose even needs to be on a pier.
In short, she said, there are “practicable” alternatives — meaning, the planned performance venue simply doesn’t need to be in the Hudson River.
In fact, due to changes in the project, the Trust had recently filed to modify its Army Corps permit for Pier55. Basically, the Trust had determined that to build the project per the original designs, it would have been way too expensive, so some modifications were made. The formerly undulating pier deck was flattened — with a sort of “filler” material added to create the pier’s rolling hills. Also, some of the piles underneath the center of the pier were simplified — as opposed to using the rounded “pot”-shape style, these were changed to standard-style, straight piles. Yet, the difference would not really have been visible to the eye since the “pot” piles would still have been used around the edges, with the other piles basically hidden further inside, according to renderings provided by the Trust.
“We’re obviously going to move the court to vacate that, as well,” Emery said of the permit-modification application. “I think it’s automatically vacated because it amends the one that was vacated.”
The modified project still contains some “pot”-style piles that would be filled with pourable concrete, the attorney said.
“Once there is an ounce of fill, it triggers the Army Corps review,” he noted. “It’s the same problem.”
30 days to appeal
The Trust and Army Corps have 30 days to appeal Judge Schofield’s ruling on the first permit.
“They can appeal it to the Second Circuit,” he said, “but the decision is so well-written and so well-reasoned. I would doubt it would be heard. I’m very confident in this judge’s decision.”
Last Thursday’s ruling came as a painful blow to supporters of the Trust and the ambitious Pier55 project. 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.”
Asked if he saw comparisons in this case to the lawsuit that defeated the Westway megaproject in the mid-1980s — where it was found that a highway tunnel-and-landfill scheme would have endangered striped bass that wintered in the river — Emery said not really.
‘It’s about the river’
“It’s really about the river. It’s not about snail darters and the Westway thing,” Emery explained of Thursday’s decision. “The consciousness that we have an asset of priceless proportions in the Hudson River, the Legislature recognized that when they created the Hudson River Park in 1998. The Trust was given a stewardship of the Hudson as a protector of the estuarine sanctuary. This is about preserving the Hudson and recognizing it for what it is — one of the great natural resources of the world — and not for putting vanity projects in the middle of the estuarine sanctuary, so Barry Diller can see it from his office,” he scoffed.
So how could the Army Corps have botched the decision so badly?
“In my view,” Emery offered, “the politics got to them.”
In fact, the City Club filed a Freedom of Information Act that revealed that U.S. Senator Chuck Schumer and his staffers met with the Corps to lobby on behalf of Pier55. And, of course, both Mayor de Blasio and Governor Cuomo openly supported the project. This past July, during the litigation in state court, after the Appellate Division had slapped a stop-work order on the project, Cuomo took the unusual step of issuing a press release urging that the construction be allowed to proceed.
“It was highly improper,” Emery said, “for Cuomo to put his finger on the scale like that.”
Troubled bridge over waters
That stop-work order was partially lifted, allowing the Trust to pound in a small number of more-traditional piles to support a small platform and one of the bridges that would connect to Pier55. The work had to stop in the fall, though, because pounding piles in the river is only permitted during certain seasons.
“I’m pretty sure they’re non-fill piles,” Emery noted of the ones that have already been put in.
So what will happen to that lonely bridge remnant off of W. 13th St. if Pier55 never gets built?
“It will soon be known as ‘The Bridge to Diller’ — which will be to open water,” the attorney quipped.
Fox, one of the two City Club plaintiffs, was the president of the Hudson River Park Conservancy, the Trust’s predecessor, from 1992 to 1995, and was active in the park’s planning as early as the mid-1980s. Like Emery, he, too saw political influence behind their earlier losses in the state courts.
A neutral court
“If at first, you don’t succeed — try, try again,” Fox said on Friday. “We found someplace where the judges aren’t appointed by Cuomo. And it’s good to see somebody enforce the law. I’m sure they’ll appeal; they have an awful lot invested in it. But now it’s in a more-neutral venue.”
Recalling the early planning of the Hudson River Park, Fox said, “The reason we mapped it as an estuarine sanctuary was to prevent these sort of things. There’s also no reason why this can’t go on Gansevoort,” he said of the Diller project. “Gansevoort Peninsula is 6 acres of landfill.”
A portion of Gansevoort is slated for future use as a marine-based transfer station for recyclable trash. But Fox said, so far, he hasn’t seen any funding in any budget having been allocated for that project. A Trust spokesperson, however, said the Gansevoort transfer station is still in the works. At any rate, Fox said, there would be room for both the garbage-hauling barges and the glitzy arts venue to share the peninsula.
He added that when Pier55 was recently redesigned, Diller’s lease was also renegotiated and his investment in the project capped at $185 million. And if the project goes over budget, Fox wondered, “Then whose dime is that? Who pays for it?… . We do,” he said.
Public process needed
The planning in Hudson River Park needs to be done in the open, he stressed — or you get a situation like this one, with pier projects needing to be significantly redesigned and influential donors worried about costs spiraling out of control.
“Public review and involvement isn’t a bad thing,” Fox said. “But it also means you have to listen to people.”
Under the Hudson River Park plan, three piers are specifically supposed to be used for “maritime interpretation” and waterfront history — Piers 26, 54 and 97. Pier55 was proposed as an alternative to rebuilding the decrepit Pier 54, the park’s former main performance pier, and was to be located on a new footprint between the old pile fields of Piers 54 and 56. An amendment to the Park Act was required to allow that. Fox, however, would like to see Pier 54 rebuilt on its old footprint.
“For 100 years, the West Side was the launching pad, like Cape Canaveral,” Fox said of the trans-Atlantic liners and other ships that plied the Hudson’s waterways. “We can’t lose the story of who we are — and who we are is where we came from. I can picture the survivors of the Titanic coming off the Carpathia [at Pier 54] and walking to the Riverside Hotel three blocks away.”
As for what he could imagine at a rebuilt Pier 54, Fox said, “Holograms of the Titanic, the history of the Lusitania, the flags of all the ocean-liner companies, the oyster houses that fed the working men of New York’s West Side. …”
Meanwhile, for her part, Assemblymember Glick criticized the Trust for using an old E.I.S. (environmental impact statement) from the park’s original general plan to assess the Pier55 plan’s impacts. And, like Judge Schofield, she said the Pier55 scheme is clearly not water dependent.
“I always believed there should be a new, full E.I.S.,” Glick said, “because from the time the park’s development began in 1998, many, many new developments have occurred along the waterfront in the park: It would be appropriate for all of those to be part of a new environmental review. And, of course, water-dependent uses for anything that is new. And a brand-new pier into the water was totally inappropriate, I’ve always believed. It’s one thing to redevelop some of the existing piers — but a non-water-dependent pier should not be… and without a new E.I.S. — totally inappropriate.”
Plan B…Pier 40?
Tobi Bergman, a longtime waterfront park advocate and the immediate past chairperson of C.B. 2, said — speaking for himself — that he was disappointed at the court ruling. C.B. 2 passed a resolution backing the Pier55 plan when David Gruber chaired the board right before Bergman’s tenure.
“Community Board 2 supported the proposal for Pier55,” Bergman said, “because we saw new park space and a new cultural institution that would add something special and important to the park and the community. Most people who attended our public hearings were won over by the quality of the created parkland and the proposed new performance venue. But I think all of us understand that a judge has considered this and made a decision based on the law, and if it stands, we can only hope that there will be another place in our neighborhood where this project can move forward. … Pier 40?”
Bergman currently chairs the C.B. 2 Future of Pier 4o Working Group, which is considering the Trust’s plan to redevelop the massive 14-acre W. Houston St. pier so that it could provide more revenue for both the pier and the entire park. Pier 40 is home to playing fields that are heavily used by local youth sports leagues, which the Trust has committed to retaining.
“To me, the most exciting part of the project was the programming,” Bergman said of the Pier55 idea. “If it can’t go at the planned location, I would like to see it go somewhere else in the park or in the community. I thought it was a great design. The reason I say put it at Pier 40 is it sounds like a park use that might be good for the whole mix there. Maybe it could go on the roof.”
Correction: A sentence in the original version of this article incorrectly stated that Judge Schofield had found that the Pier55 project violated the Clean Water Act. In fact, what she wrote in her ruling was that the U.S. Army Corps’ finding that the basic use of the Pier55 project was water dependent violated the C.W.A.