Lawsuit could delay ‘L shutdown express’: Attorney

BY LINCOLN ANDERSON | Updated Wed., Feb. 21, 5:45 p.m.: An activist Village attorney has put the Department of Transportation on notice: Its much-hyped mitigation plan for the looming L train shutdown could be derailed — at least, for a while — unless the agency performs a legally required Environmental Impact Statement, or E.I.S.

Arthur Schwartz, the Village’s Democratic district co-leader, who is also a top union and community lawyer, reported that last Wednesday he faxed a letter to Polly Trottenberg, the D.O.T. commissioner, and later that evening also personally presented the letter to her at an “open house” on the mitigation plan that D.O.T. and the Metropolitan Transportation Authority were co-hosting at Our Lady of Guadalupe at St. Bernard Church, on W. 14th St., between Eighth and Ninth Aves.

According to Schwartz, when he handed her the letter, Trottenberg replied, “I got this already, Arthur.”

Arthur Schwartz, right, with Bernie Sanders in New York in April 2016. Schwartz was Sanders’s New York State campaign lawyer during the Vermont senator’s presidential run. Photo courtesy Arthur Schwartz

The missive is CC’d to Mayor Bill de Blasio, plus other local politicians Manhattan Borough President Gale Brewer, City Council Speaker Corey Johnson and Councilmember Carlina Rivera (who were among the pols whose representatives attended the coalition’s first organizing meeting two weeks ago), as well as Community Boards 2, 3, 4 and 6.

Schwartz, who is a W. 12th St. homeowner, notes in the letter that he is representing “a growing coalition of block associations and community groups who stand united in opposition to the plan posted online by D.O.T. in mid-December.”

That coalition currently includes nearly 10 block associations, with members spanning from W. 12th to W. 18th Sts., and also includes umbrella multiblock organizations, like the Council of Chelsea Block Associations.

Schwartz e-mailed the coalition’s leaders last Wednesday, reporting that he had delivered his opening letter to Trottenberg. Leaving no mystery where Schwartz believes things are now headed, his e-mail’s subject line read, “The 14th Street Litigation Begins.”

Basically, the D.O.T. chief now has less than a week to respond on the E.I.S. issue.

As Schwartz put it to Trottenberg, “I will be sending a more formal letter…if we do not hear from you by Feb. 28, 2018. We will file [suit] within 30 days after that.”

The M.T.A. intends to shut down L train service between Brooklyn’s Bedford Ave. and Manhattan for 15 months starting in April 2019. The authority is taking this hugely disruptive step in order to repair its Canarsie Tunnel tubes under the East River, which were damaged by flooding from Superstorm Sandy more than five years ago. The potential impact of the L shutdown on straphangers has been portrayed as the “L-pocalypse.”

However, Village and Chelsea residents living on 14th St. and nearby blocks counter that the L mitigation plan will be “hellish” for them.

Under the proposed shutdown plan, 14th St. would be reserved exclusively for buses and deliveries during rush hours — if not for possibly even longer periods of time — between at least Third Ave. on the East Side and Eighth and Ninth Aves. on the West Side.

As another part of the scheme, a protected two-way crosstown bike lane would be installed on the south side of 13th St.

From the sound of it, the bike lane could well be permanent. It’s unknown, though, what the future of the buses-only scenario would be after the completion of the L repairs.

“The plan, as posted, is not a ‘temporary’ plan,” Schwartz stated in his letter to Trottenberg. “It institutes permanent infrastructure changes to address a temporary problem. As such, it is a plan clearly subject to the State Environmental Quality Review Act (SEQRA).”

Making the plan definitely a “SEQRA Type 1 Project,” Schwartz added, is the fact that it involves physical alteration of 2.5 acres that are contiguous to a historic district and publicly owned parkland. The Greenwich Village Historic District stretches to midway between 13th and 14th Sts., and Union Square Park borders the north side of 14th St. for a block between Broadway and University Place.

(Schwartz explained to The Villager: “Usually a project must involve 10 acres to be a Type 1 action. But if it’s in or contiguous to a historic district or a park, the threshold is 25 percent of the usual threshold. … I do think that we have them dead to rights on SEQRA because of the involvement of the historic district,” he added.)

Schwartz noted he also sent a copy of the letter to Andrew Berman, executive director of the Greenwich Village Society for Historic Preservation.

According to the litigious district leader, unless this public project receives a “negative declaration” — as in, it is determined that it would not have a significant environmental impact — an E.I.S. would be required. Yet, for this project actually to receive a negative declaration “would be an absurd finding,” the attorney scoffed.

“Why do we need an E.I.S. process here?” Schwartz rhetorically wrote Trottenberg, before going on to answer the question: “For the same reason that our community is wholly united in opposition to the changes being proposed for 14th and 13th Sts. Your studies have not been transparent, public input has not been seriously considered or discussed, there is no public vetting of alternative means of ‘dealing with the problems’ caused by the L train shutdown, and there seems to be a lack of concern about the impact on our community.”

Schwartz continued on, pointing out that closing 14th St. to vehicular traffic “will cause horrific traffic jams” on the side streets from 12th through 18th Sts., as well as clogging the avenues from Third to Eighth Aves. In addition to more air pollution and noise pollution, “vibrations” from the increased traffic volume will “threaten the integrity of historic structures,” he warned.

Schwartz meanwhile panned the M.T.A. / D.O.T. “open house” event about the mitigation plan that he attended last Wednesday evening as “a really sorry excuse for community input.”

“People listen and nod their heads,” he shrugged of agency representatives at such affairs, “then they do what they want to do anyway. Like that little meeting they had — they let you fill out cards.”

However, he stressed, “You have to go through the E.I.S. process. You can still do what you want to do anyway — but at least you have to show alternatives. They have to discuss alternatives and how they’re doing it better [than those].”

In other words, at the end of the day, the M.T.A. and D.O.T. still could do the exact same plan that they are currently pushing — but they must first conduct a full E.I.S.

As for how long an E.I.S. takes to complete, Schwartz said, “It depends on the complexity of the problem and how many people you want to put in your study.”

The attorney gushed to The Villager that local residents are rushing to join the potential lawsuit.

“My phone is ringing off the hook with people who want to be plaintiffs,” he said.

As of Tuesday night, Schwartz reported that 15 groups are already on board for the lawsuit and that “more co-ops and condos are coming.”

Asked by The Villager what an E.I.S. lawsuit’s potential impact could be on the entire L shutdown project — and if it could even delay the closing of the East River tunnel for repairs — Schwartz said, it really all depends on the M.T.A. and D.O.T. and how they respond.

“If they fight all the way and lose, they could slow the whole plan down,” he acknowledged. “Or they can compromise and reach an agreement with community leaders.”

While the L shutdown is slated to happen in a little more than a year from now, D.O.T. reportedly wants to install the 13th St. bike lane even earlier  — as soon as this coming summer — so maybe the lawsuit and E.I.S. could potentially affect that timetable, too.

Schwartz recalled a similar case in 1997 where he sued to block a large project at Pier 40, at W. Houston and West Sts. In that instance, Ben Korman and Meir Cohen had gotten a contract to upgrade their parking operation at the pier; but local youth leagues had been fighting to get playing field space on the pier.

“At Pier 40, where I sued to void a $14 million contract, once the judge denied a motion to dismiss, we settled,” Schwartz recalled. “They did a quick process, and we got our fields.”

Like other residents and politicians, too, Schwartz is waiting for the “data study” from the M.T.A. and D.O.T. that allegedly justifies the mitigation plan. So far, the agencies have failed to publicly release the study, however. But Council Speaker Johnson’s Office told The Villager they expected to receive it on Tuesday and would then release it to the community. That then got pushed back to Wednesday. It wasn’t immediately clear as of press time if the study had yet been released.

The M.T.A. says that 50,000 straphangers use the L train daily just to ride in Manhattan, and that the mitigation plan must thus accommodate that number of riders.

But Schwartz said, “I don’t really believe the study they did that says 50,000 people would be affected.”

He’s not the only skeptic of those figures. Indeed, the coalition members likewise are demanding to see the data.

So, Schwartz was asked, what kind of alternative solutions, for example, would the community like to see, as opposed to what the city is currently proposing?

Offering up one idea that he said was purely his own, he suggested that parking along 14th St. could be banned during rush hours, so that buses could run in the parking lanes.

For the record, he noted that he is not anti-bike, and that his wife even has a cargo bicycle.

“My wife bikes everywhere,” he said. “We have a Yuba parked in front of our house. She is furious at the plan.”

Wrapping up his letter to Trottenberg, Schwartz wrote, “You must stop, pause and do what is right and what is required by law. This is a plan being foisted on a community wholly without genuine input, supported by political forces who have no interest in and no base in the affected community.”

However, the two agencies currently do not feel that an E.I.S. is required.

In a statement to The Villager this Wednesday, a D.O.T. spokesperson said: “The 15-month closure of the L train is an unprecedented challenge. D.O.T. and M.T.A. have been doing extensive analysis and planning, and we expect to release more information shortly. The city is complying with its environmental statutory obligations with regard to its L train shutdown mitigation plans. Despite assertions by Mr. Schwartz, no E.I.S. is required and D.O.T. will respond to his letter in a timely fashion. D.O.T. and M.T.A. will continue our ongoing work in engaging, reviewing and evaluating the mitigation plans prior to, during and after the L train shutdown.”

Schwartz said that, as of Tuesday night, D.O.T. had not yet formally responded to him regarding his letter.

Transportation Alternatives — a nonprofit group that advocates for increasing walking, cycling and mass transit in New York City — is among the biggest supporters of the city’s plans for 14th and 13th Sts. The group, in fact, coined the term “PeopleWay” for what it hopes will happen to 14th St. during the L shutdown.

Thomas DeVito, TransAlt’s director of advocacy, called the current plan by the D.O.T. and M.T.A. “a good first step,” but said that TransAlt actually would like to see six or seven more steps added to make it even better.

First off, he said, they would like to see 14th St. made “exclusively for bus operations” 24 / 7. In addition, the “shuttle buses” on 14th St. — the M.T.A. buses — should be made free, to speed things up.

“I think they’re expecting up to 70,000 people to use this corridor,” he said, “which would make it among the busiest bus corridors in the world.”

In addition to 50,000 subway riders who use the L train intraborough — meaning only in Manhattan — De Vito noted that 30,000-plus riders currently use the 14th St. crosstown bus, daily.

(He later bumped those figures up even further, saying, “The latest numbers from D.O.T. / M.T.A. actually posits it as 84,000 riders, not 70,000 riders on 14th.”)

DeVito said it’s his understanding that it would be less efficient for the M.T.A. to continue to fix the Canarsie Tunnel only on weekends — as it is currently doing — because that would involve constantly loading construction materials in and out, as opposed to just shutting the whole thing down for 15 months and getting it done.

“It’s the shorter, ‘rip the band-aid off’ approach,” he noted.

If the PeopleWay isn’t enacted, it would just mean that the side streets would be flooded with for-hire vehicles, like Ubers and all the rest, he added.

Asked if TransAlt would like to see the proposed changes for 14th and 13th Sts. made permanent, he basically said they should be implemented first and then assessed.

“Broadly speaking, bike lanes are good for all sorts of reasons,” he said, “for safety…and for small local businesses. We’ve seen there can be initial growing pains with them, but ultimately people want to keep them. The same can be said for busways.”

Asked about the community lawsuit that is possibly pending, he didn’t really want to get into specifics.

“Ultimately, this is a crisis,” he said of the L shutdown, “and you have to deal with that first, and deal with it appropriately.”

Leave a Reply

Your email address will not be published. Required fields are marked *