BY LINCOLN ANDERSON | It may still be too early to call Pier55 — the “arts fantasy island” that would be funded by Barry Diller — “the Atlantis of the Hudson River Park.”
In short, the project isn’t sunk — at least not yet, its supporters say. On Monday, the U.S. Army Corps of Engineers filed an appeal of federal Judge Lorna Schofield’s stunning March ruling, in which she said the Corps had erred in issuing a critical permit for the project, since the “basic use” of Pier55 would not, in her view, be “water dependent.” Schofield rescinded the permit, leaving the project “dead in the water,” according to the plaintiffs from The City Club of New York who brought the lawsuit.
In addition, at the end of April, the Hudson River Park Trust — the state-city authority that operates and is building the 5-mile-long park — filed a modified permit application in hopes of satisfying the judge’s objections.
The federal Clean Water Act review by the Army Corps had been triggered because the ambitious project contained a certain amount of concrete “fill” — basically, flowable concrete that was to have been poured into hollow “pot”-style support piles, which would spread out at their tops rather than just being traditional straight piles.
“The recent court decision was a procedural one concerning how the Corps considered our request for a small amount of concrete fill within some of the project’s piles,” a Trust spokesperson said. “Our new application eliminates that concern because there is no longer any fill proposed.”
Specifically, Schofield’s decision concerned 280 square feet of flowable concrete fill previously proposed in some hollow piles. According to the Trust, subsequent to the judge’s ruling, the project’s design team was able to eliminate the need for fill by substituting solid, precast concrete piles in place of those piles.
In addition, a 4,000-square-foot seasonal barge has also been eliminated from the plan, which, the Trust, says reduces the amount of piles and platform coverage of the river.
Otherwise, according to the authority, the project being reviewed is the same as the one previously permitted by the Corps — which Schofield, again, said was a violation of the Clean Water Act.
Should the Trust’s modified application be approved, the Trust and Pier55 Inc. — the Diller-led nonprofit group that would operate and program the pier — would “restart construction immediately,” the Trust said.
Separately, the U.S. Attorney, which would represent the Corps in the case, has also filed a notice of appeal. The Trust, too, has filed a notice of appeal “to preserve its ability to remain a participant in the process.”
“I was not surprised that they filed,” Tom Fox, one of the two City Club plaintiffs, said of the Trust.
However, Fox said, he was surprised that Pier55 is now being touted as a $250 million project. Back in 2013, when news of the plan first broke, its price tag was only $130 million.
In an article in last week’s Villager, Michael Novogratz, chairperson of the Friends of Hudson River Park, said of Diller that he “was ready to spend a quarter-billion dollars to give a gift to the city.” Similarly, an article in The New York Times on Monday on the Pier55 lawsuit appeal said, “The cost of the project has swelled to an estimated $250 million, from $130 million.”
Both Fox and Richard Emery, the attorney representing the plaintiffs, said their understanding was that when Diller signed an agreement after the project was modified somewhat earlier this year, the media mogul capped his enormous commitment at $185 million. The city has also kicked in $14 million toward Pier55. But who would pay that additional $50 million — the taxpayers? Fox and Emery asked.
However, “the cap” that Fox and Emery are referring to apparently is not so clearcut.
“Pier55 / Mr. Diller will be responsible for all increases / overages,” according to the Trust.
Fox, who was an early planner of the park and the first president of the Hudson River Park Conservancy, the Trust’s predecessor, remained confident in their lawsuit.
“This is another round in a long battle for the health and preservation of the river,” he said.
As for the Trust saying it has reduced the amount of fill in the project, Fox scoffed, “It’s filling the estuary. The piles are still there from Pier 54 and Pier 56 — and they’re putting in more.”
Instead of rebuilding the historic Pier 54, near W. 13th St., the Trust chose to try to create a pier on a new footprint in the river between the footprints of the old Piers 54 and 56. The wooden piles from those two piers are still sticking up out of the river, though their concrete decking is no more.
Commenting on the appeal, Emery said, “The fill issue is sort of interesting because fill triggered the judge’s ruling on the Clean Water Act, and there is some precedent for when projects attempt to circumvent the fill requirement.
“Moreover, they still seem to be using fill in here — they want to use it above the water, which I’m not sure is kosher. They’re engaging in tricky behavior,” Emery accused of the Trust. “We’re not sure it doesn’t violate the Clean Water Act or the principles of putting anything in the Hudson.”
Echoing Fox’s remarks, Emery said, “One of the things we didn’t argue the last go-around — but we will argue this time — is that the number of piles, 552, is equivalent to fill. It’s so dense. It’s a feeling that there are so many piles in one place.”
Both Fox and Emery said they don’t get how removing the barge changes anything.
Emery used a water idiom regarding the Trust’s latest modifications of the embattled plan.
“They seem to be pretty much out to sea on this whole decision,” he mused. “This whole thing seems kind of slapdash. It’s what happens when you don’t have public review.”
The plaintiffs charge the Pier55 plan — at least, initially — was conceived and developed in secret. But the Trust counters that the project went through the proper public reviews.
As part of its modified application, the Trust sought to counter Schofield’s assertions that the Pier55 plan could be sited elsewhere. For example, the Trust said it couldn’t go on Gansevoort Peninsula, which is also in Hudson River Park, since a marine waste-transfer station is planned there, which would be disruptive of performances. Also, the high-pressure natural gas Spectra pipeline that the Trust allowed to run under part of the peninsula puts that area off limits for the kind of uses in the Pier55 plan, the Trust said.
Correction: The original version of this article said that Barry Diller “was ready to spend a quarter-million dollars to give a gift to the city,” but it should have read a “quarter-billion dollars.”
