In an effort to share and maintain for my own reference, the knowledge imparted upon me during these seminars I will summarize these classes and trips on BTLB. I have bypassed class one because it was an introduction and orientation. It was a broad review of environmental laws and issues in New York that would lead to a blog entry of bullet points.
Class two however discussed natural resources and green space through the lens of four examples.
Greenways, Chris Reo, New York Law Department
Chris discussed greenways, as a context for showing the difficulty of getting anything done, although I do not know if this was his intention. Lets build a bike path, a small trail connecting one place to another for non-motorized vehicles, nope, not so fast. First you must find land. Then if the City doesn't own this land, you have to go about acquiring it, covering the costs for it and more likely than not there is contamination on the land that must be dealt with. Is the community in favor of it, most likely some folks are and some folks will be a thorn in your bike tire. Then you must deal with regulators. If there is an impact on the environment, especially wetlands or any other roadways other agencies will have an interest and regulation hurdles to overcome. Then you must deal with other developers and their conflicting interests. And perhaps most importantly with any long-term project, there is the issue of politics and election cycles. The City Law Department is directed by the City mayor. Differing administrations and economic situations will lead to issues with sustained commitment.
As an example, Chris discussed the NYC Highline. It is an abandoned old railroad last used in the 1970s. Early in his career, under one administration, he was arguing to tear it down. Developers could only build so high until they topped out at the railroad. They were enjoined from tearing it down and later in his career he was arguing to keep the railroad there and convert it into a greenway. That project was ultimately successful and pictured above.
There are also property issues when creating greenways. Dolan v. City of Tigard, is the seminal case on this issue. In Dolan, the city required a landowner who had applied for a permit to build a parking lot to dedicate some of his land to a bike path in order to reduce congestion. The Supreme Court ruled that the condition on the permit was not reasonably related to the city's public purpose in such a way to justify infringing upon the property owner's rights. The burden lies with the City.
It is difficult to encourage greenway development, you can encourage the city to use land it already owns, but it only owns so much land. The City can condemn land, but that takes a long time and victory is not assured. The City can also build greenways into zoning but they must overcome Dolan which generally means you cannot compel the development and can lead to fragmentation of greenways.
As with anything, the hurdles are numerous, but these things cannot be made too easily either. Regulations and public involvement force thoughtful placement of greenways. Paving bike paths through wetlands or dividing communities or diverting traffic would not be good for anyone either. Greenways cannot be filtered through the same process as building a highway or skyscraper either though. A tailored method of regulating their placement and development is necessary.
The Westway Fill Project - Al Butzel
The west side of New York City used to have an elevated highway. This allowed access to the piers on the west side without having to cross a major highway. In 1973, however, the highway collapsed. The shipping industry in New York had begun to fade and so the redevelopment project that was proposed was to fill in the water in between the piers with landfill. They would then create a tunnel through the landfill in the Hudson River and build commercial and residential buildings on top. Granted 25% of downtown Manhattan is landfill, (see: Evolution of the Manhattan Coastline) but in 1973 to propose building more land where a river stands?!?
The best part, the crazy river ruiners thought, was that because this was a federal highway project the federal government would pay 90%. Even better, there was NO marine life in between the piers....?? The proposal went through the NEPA process and an Environmental Impact Statement, indicated that there would be no environmental impact to burying the Hudson River in landfill creating 700 new acres of "land."
The Department of Transportation needed two permits to go forward: an air permit from the EPA due to the increased emissions from the vehicles using the new highway and a permit from the Army Corps of Engineers for the fill. The air permit was initially denied and eventually granted in 1980. The Corps wanted to grant the fill permit, however, the EPA and the National Marine Fisheries Service had objections. These objections elevated the issue to the division level. The Corps however issued the permit in 1980 and litigation was brought. Al was at the forefront of this. The judge dismissed all claims except for the fisheries claim and eventually enjoined the project. The Second Circuit upheld the decision and sent it back to the Corps to comply with NEPA.
The EIS had very little information regarding the marine life between the piers and so the DOT agreed to undertake further study and update the EIS. The study found a significant population of striped bass lived between the piers. The draft of the EIS said that there was a significant environmental impact. The final version, however, had the same information but just placed "no" in front of "significant impact" and called it a day. NRDC then took over in the litigation, the trial was set.
There was a provision within the highway money that it could be traded in for mass transit use. So with only ten days left on the trade-in and trial looming, the City decided to opt for the trade-in. 1.3 million went to mass transit improvements.
In 1998, the Hudson River Park Act was created by state legislation and the State built a park on the piers with no fill.
Bronx River Alliance - Linda Cox
The Bronx River Alliance grew out of efforts in the 1970s to reclaim the Bronx River and 1990s to address some of the environmental justice issues occurring in the Bronx. The waterway is a 23 mile fresh water river that begins in Westchester county, with 8 miles running through the Bronx.
The Bronx River Alliance was formed in 2001 and its mission has been to improve and restore the river and the improve access to the communities through which it flows. The real start to the movement was when a concrete plant landed in the hands of the City due to tax issues. The City put it up for auction but community organizations got it pulled off the auction block and fought for it to be a park. The Department of Transportation wanted to make it a truck route but the community began to treat it as a park and that is what it became. (See picture above).
The goal of the Alliance is for there to be a greenway along the entirety of the Bronx River. They are working on rezoning efforts which will incorporate business improvement districts and developer contributions to the clean-up efforts. Currently, the standard of attainment for the river is not "fishable/swimmable," even though people swim in it regularly. The Alliance is pushing for the standard to be changed.
The primary polluter of the river is combined sewer overflow(CSO). The Riverkeeper has a great introduction into the issue of CSOs. Basically, all water runoff from the streets and sewage from homes and businesses go into one pipe which makes its way to the treatment plant. However, the pipe is only made to handle the sewage and a little rain. Whenever it rains a moderate amount the pipe becomes to full and the mix of sewage and rainwater goes into overflow pipes which spill out into waterways. The Alliance has been implementing green infrastructure to capture some of this runoff so it doesn't go into the combined sewer and flow into the rivers. The DEP released its Green Infrastructure Plan last fall. Green infrastructure focuses on green roofs, harvesting rainwater, creating green streets and islands and erosion control. However, currently there are very few incentives to engaging in these green strategies. The Alliance is working on building them into legislation and zoning laws.
Union Square Park, Butzel v. Reo
The final topic at the seminar was on the remodeling of the Union Square Pavilion. The Pavilion on the northern end of Union Square Park was scheduled for improvements. The City was concerned with its dilapidated condition and its failure to meet the requirements of the Americans with Disabilities Act. There had been mention of the Pavilion including a restaurant in it, however, which brought Al and the Union Square Community Coalition to the table. They brought a suit claiming that the City had violated the public trust doctrine. The Plaintiffs claimed that the Pavilion, which had historically been used for rallies and children's activities was going to be converted into a high-end restaurant and would not serve the public interest especially when the park is surrounded by restaurants.
The public trust doctrine is applicable to parks and states that once a property has been committed to park use then it cannot be alienated without the approval of the legislature. In 2001, the Friends of the Van Cortlandt Park brought an action to stop the City from building a water filtration plant in the park under the public trust doctrine and were successful. This has given new life to the doctrine.
The City, however, contends that restaurants are appropriate park uses. Questions of what constitutes an appropriate park use does not involve considered uses but actual uses and so they stated that because the restaurant was not set as a final decision yet that the Plaintiffs' claim was not ripe. But either way the City stated that the parks commissioner has wide latitude under the City Charter to determine a proper park use.
Al argues for a multi-factor test when considering proper park uses and claims that this isn't one. It is hard to agree, however. He made the point that if this was a McDonalds, no one would say it was a proper park use. But that cuts against his argument for a multi-factor, case-by-case analysis. This is not a McDonalds and a cafe was placed there before. There are restaurants and cafe's in multiple parks in New York City and it hasn't seemed to rob the public of their park.
The Court ruled, however, that the claim was not ripe and dismissed it. Because a final determination regarding whether to place a restaurant in the Pavilion had not been made there was not a concrete decision to rule upon. The Request for Proposal for a seasonal cafe in the Pavilion was recently issues and the Union Square Community Coalition is gearing up once again.
