Pier 40 secret air-rights agreement is sunk: Attorney | East Villager & Lower East Sider

Pier 40 secret air-rights agreement is sunk: Attorney

As reported by The Villager last week, attorney Arthur Schwartz said he was considering suing if a secret Pier 40 air-rights transfer plan was not put through a lengthy environmental review. He has a strong track record of winning on similar environmental-review lawsuits.

As reported by The Villager last week, attorney Arthur Schwartz said he was considering suing if a secret Pier 40 air-rights transfer plan was not put through a lengthy environmental review. He has a strong track record of winning on similar environmental-review lawsuits.

BY LINCOLN ANDERSON  | Originally posted June 7, 2014) Attorney Arthur Schwartz said he met with Madelyn Wils, the president of the Hudson River Park Trust, last Friday afternoon, and she informed him that the secret $100-million memorandum of understanding, or M.O.U., for transfer of Pier 40’s air rights has officially been scrapped.

The Villager reported last week that Schwartz was considering a lawsuit to block the air-rights transfer altogether on the grounds that a comprehensive, lengthy environmental impact study would need to be performed.

“Madelyn told me, ‘I read The Villager article. I want to meet with you,’ ” Schwartz told the newspaper later on Friday.

“She confirmed that the M.O.U. is dead,” he said.

The M.O.U. was signed by Wils; a representative of the Empire State Development Corporation; and a representative of Atlas Capital Group, a part owner of the St. John’s Center building, located across the West Side Highway from Pier 40, at W. Houston St.

The language of the M.O.U. — which still reportedly has not been seen publicly — refers to a state-run General Project Plan, or G.P.P., for the project — not the city’s Uniform Land Use Review Procedure, or ULURP. A ULURP has a greater level of community review, plus binding votes by the City Planning Department and the City Council, and also normally takes more time than the faster G.P.P.

However, according to Schwartz, Wils described the document’s language as conditional.

“She said the M.O.U. reads, ‘Should the state engage in a G.P.P. …’ not ‘The state would engage in a G.P.P,’ ” he noted. “The M.O.U. was conditioned on there being a decision made to do a G.P.P. But given the reaction, it’s not going to happen.”

In short, Schwartz said, “There won’t be a G.P.P. There will be a ULURP process.”

According to the attorney, who is a longtime Hudson River Park activist, the Trust president said the M.O.U. was circulated in December, but was not actually signed until late February or early March.

In a statement this Tuesday, Wils said, “We look forward to working with the city on a ULURP that will save the pier, achieve the Legislature’s vision, and fully engage our community’s stakeholders.”

According to a source, politically speaking, Wils can’t take it upon herself to say publicly if the M.O.U. is dead since it’s essentially a deal that was made by Governor Cuomo. Similarly, Schwartz related, Wils said she couldn’t show him the M.O.U. because the decision to release it is up to E.S.D.C. and the Governor’s Office.

However, as of a week or more ago, other park insiders were also already saying the M.O.U. was now kaput, including Tobi Bergman, a leader of the Pier 40 Champions group, which is anxious to patch up the pier A.S.A.P.

The area’s politicians have all said they were shocked to have learned only a few weeks ago — and only through a New York Times article, no less — that an agreement had been signed concerning a planned massive air-rights transfer from Pier 40 for a project at the St. John’s site, all to be done with city review. They quickly all signed onto a joint letter opposing a G.P.P. process — similar to another letter they had written only a few weeks before, when rumblings of the G.P.P. grew louder after not having been heard of since last fall.

However, the idea of the M.O.U. plan now moving forward in the face of such overwhelming and united political opposition was highly unlikely.

Schwartz said Wils was clearly annoyed at criticism she has received in the past few weeks in the wake of the bombshell story. He added that sources close to the governor with whom he is in touch are furious about the fallout, feeling it’s been bad publicity for the governor — which he doesn’t want in an election year.

In fact, Schwartz said, Cuomo believed doing a G.P.P. at the St. John’s Center site was something that local politicians and the community actually wanted.

“A lot of people were onboard last year with a G.P.P. — but with a ULURP review,” Schwartz noted.

A source familiar with the project told The Villager last week that what the Bloomberg administration, Cuomo and E.S.D.C. all actually favored was something that could be called a “modified G.P.P.,” which would have had some ULURP-like elements.

However, in a follow-up to the initial bombshell article, the Times reported that Alicia Glen, a deputy mayor under Mayor de Blasio, is now calling for city review for transferring unused Pier 40 air rights to the St. John’s building.

Borough President Gale Brewer told The Villager that she called the reporter of the Times articles, Charles Bagli, who explained that the second article used the vaguer term “city review” for Glen’s statement instead of, specifically, ULURP since the former would be more understandable to readers. (Of course, Villager readers all know what a ULURP is.)

Finally clarifying things somewhat, an E.S.D.C. spokesperson sent The Villager the following statement on Wednesday, saying the project would now go through a so-called “expedited ULURP”: “Pier 40 is a vital community resource and an integral part of Hudson River Park. It, however, is suffering from severe structural issues that, if not quickly addressed, imperil the pier’s future, and the state and city administrations are committed to finding an appropriate and expeditious remedy. The St. John’s Warehouse [sic] General Project Plan (G.P.P.) provided one potential solution. Historically, E.S.D.C. has always worked in concert with the city on G.P.P.’s and E.S.D.C. remains committed to doing so here. While the prior city administration supported our approach, the current one has asked us to work with them through an expedited ULURP, which we support fully. And as we have explained throughout, we stand ready to work with them, the local elected officials, and community stakeholders to move this project forward.”

Under the M.O.U., the three-block-long, four-story-tall St. John’s building was to have been demolished and rebuilt in phases, with a mix of residential and commercial uses. More particulars about the project have not been forthcoming, though, because the M.O.U., again, allegedly has not been seen by the area’s elected officials.

Local politicians recently resorted to filing a Freedom of Information Law, or FOIL, request to view the document. 

Schwartz said Wils basically told him his potential lawsuit is now moot since the M.O.U. is sunk.

“You don’t need to do this — because it’s not going to happen,” he said Wils urged him.

Asked if he accepted Wils’s statement at face value — that the M.O.U. has been tossed in the trash bin — Schwartz said, “Absolutely.”

He assured The Villager, though, that he could pull a lawsuit together quickly at the last minute, if needed. He gave the example of how, in 1996, after the state reneged on a promise to provide athletic field space in Pier 40’s courtyard, he hurriedly filed litigation, with the resulting settlement winning a ball field atop the three-story pier shed’s southeastern rooftop corner.

On Fri., May 30, Brewer convened a meeting of the local politicians, City Planning representatives, Trust Vice President Noreen Doyle, community board members from Boards 1, 2 and 4 and other Hudson River Park activists to discuss the mystery M.O.U. Delores Rubin, chairperson of the Hudson River Park Advisory Council, attended.

Rubin said the meeting started with everyone joking around, saying things like, “O.K., where’s the M.O.U.?” and “Who’s got the M.O.U.?” with people then pretending to search in their pockets for it and quipping, “I’ve got it!” “No, I’ve got it!”

But, on a serious note, she said, “Despite the news reporting on the M.O.U., everyone in the room was moving forward, to work together to find a mechanism, a pre-certification — the process before the process. The G.P.P. would clearly be a shortcut. City Planning did say there are mechanisms to keep ULURP from being overly lengthy.

“Everyone is aware of the idea that time is of the essence in bringing money to the park,” Rubin added. “But neither the electeds or anybody else wants anything [to go] too fast.”

Any money from the sale of Pier 40’s air rights must, under the legislation passed last June, be funneled back into the dilapidated 14-acre pier for its sorely needed repair.

Meanwhile, the Trust is poised to release a report saying that, without a massive cash infusion, in a worst-case scenario, the pier could completely collapse into the Hudson in as little as two years. The Trust says Pier 40 needs $100 million for full-scale repairs — coincidentally, the same dollar amount as in the M.O.U. According to Assemblymember Deborah Glick, however, $44 million is sufficient for the most important repairs for the pier.

State Senator Brad Hoylman was among the group in Brewer’s office.

“At the meeting, city officials confirmed earlier statements made to the press that a ULURP will be the process to transfer any air rights to the St. John’s building,” he told The Villager. “The city also discussed instituting a public process for creating a mechanism for evaluating and transferring air rights to the St. John’s building and any other sites. We will be discussing this process further. I’m pleased that the city is taking an inclusive approach that will involve the local community.”

Hoylman added that it’s “an ongoing outrage” that they still haven’t been able to see the M.O.U. Yet, he said, now that FOIL has been initiated, “it may take some time to get a response because a FOIL triggers a bureaucratic and legal review.”

As for Brewer, she said she’s upset, too, like the area’s other elected officials, at not having access to the M.O.U. Despite the fact that three of the Trust’s 13 board of directors members are appointed by the borough president, she said she — like all the other local politicians — was unaware of the M.O.U. until only a few weeks ago.

That raises the question of whether the Trust’s own board members even knew what was going on.

As of last week, the local politicians said their understanding — based on what an E.S.D.C. official recently only happened to let slip to them in another meeting — was that the M.O.U. was signed in December, a month before Brewer took office.

“It wasn’t on my watch,” Brewer said.

“Full transparency is required,” she stressed. “We were all shocked to learn of this secret M.O.U. I am happy the city is committed to bringing the process under city review and including community input.”

A spokesperson for Brewer’s predecessor, Scott Stringer, said the current comptroller similarly was also unaware of the secret agreement.

Bergman, a leader of the Lower West Side’s youth sports community and a strong candidate to be the next chairperson of Community Board 2 in November, was also at the meeting, along with David Gruber, the current C.B. 2 chairperson.

Bergman said the process for Pier 40 and the St. John’s site is now focused on “moving forward with developing a zoning framework for transferring air rights, which means through the city Uniform Land Use Review Process, not a state General Project Plan that would bypass zoning, an idea which is now buried.”

For Downtown “soccer moms and dads,” preserving Pier 40 — with its huge courtyard sports field, in an otherwise park-starved community — is an absolute must.

C.B. 2 Chairperson Gruber said Edith Chin, City Planning’s Manhattan director, was at the May 30 meeting at Brewer’s office.

“She said we’re moving forward and the G.P.P. is off the table,” he said. As for the M.O.U., he said, “Everybody wants to see a copy of it. I would hope that the Trust makes it easily available.” 

Andrew Berman, executive director of the Greenwich Village Society for Historic Preservation, who is on the park’s advisory council, has been a vigilant watchdog on the park air-rights issue.

“People have extreme frustration that secret negotiations, agreements and meetings continue to characterize this process,” Berman said. “We keep being told by the Trust and elected officials that this process — which began in secret and without public involvement or notification — will be transparent and inclusive. Thus far, there has been little or no evidence of that.”

Meanwhile, Cuomo may be right to fear political payback for pushing a G.P.P. at the St. John’s site. It emerged as a hot-button issue at the Downtown Independent Democrats’ recent endorsement meeting.

“Downtown Independent Democrats endorsed all the other Dems for statewide office, except Andrew Cuomo, for whom we took ‘no position’ — basically not endorsing him,” said Sean Sweeney, a D.I.D. leader. “Particularly glaring for us locals was his recent clandestine approach to the air rights at Pier 40, as well as his support of state Senate Republicans.”

The ubiquitous Brewer was at Tuesday’s ribbon-cutting ceremony for the completion of the Washington Square Park renovations. Asked if she still hadn’t seen the M.O.U. yet, she compared it to the Passover tradition where the youngest child searches high and low for the hidden matzoh.

“It’s like the Seder,” she said. “We always find the afikomen — but we can’t find the M.O.U.”