Volume One, Issue 32, April 27 - May 3, 2007
HKNA lawsuit sullies mayor’s grand environmental plan
By Chris Lombardi
As Chelsea Now goes to press, five days after Mayor Michael Bloomberg’s landmark Earth Day “PlanNYC “ speech, lawyers for the mayor’s office are scheduled to be at a Downtown New York courtroom, representing hizzoner as one of the defendants in a Clean Air Act lawsuit.
The suit, filed by the Hell’s Kitchen Neighborhood Association (HKNA), charges that the administration’s pro-development Hudson Yards zoning violates the city’s established commitments under the 1973 Clean Air Act, by requiring instead of limiting parking and thus encouraging automobile use. Now that the case is proceeding, having survived nearly two years of efforts by the city and state to get it dismissed, it may cast some light on the delicate balance between the administration’s long-established pro-growth tendencies and its new, ambitious green goals.
PlanNYC, unveiled to great fanfare this past week, describes 127 separate initiatives in areas that include housing, refurbishing the city’s buildings and power plants, upgrading public transportation and combatting climate change. The centerpiece of the plan is a measure for “congestion pricing,” which would impose an $8 fee on cars entering Manhattan during the day. While the latter measure has proved controversial, the plan was well received in the press, by such unlikely allies as Nassau County Executive Thomas Suozzi, and by a coalition of more than 25 environmental, labor and business groups—from the National Resources Defense Council to the Building Trades Council to the West Harlem Environmental Alliance—many of whom converged on the steps of City Hall on Monday morning, under the banner of “Coalition for New York’s Future.”
But serious questions remain about how the scheme’s grand plans fit into the administration’s pro-growth policies.
At that City Hall rally was Christine Berthet, a named plaintiff in the lawsuit. Berthet, co-founder of Hells Kitchen Neighborhood Association and a member of Community Board 4’s Transportation Committee, told Chelsea Now last week that when the Hudson Yards project was first proposed, including a Jets stadium that has since been rejected by voters, “we knew it would be a nightmare.” She and other HKNA members pored over the proposed zoning changes and the environmental impact statement for the stadium, the Javits Center and its hotels. They were horrified by what they saw.
“Their assumptions were not reliable,” said Berthet. “When they predicted impact on traffic, they would do analysis of one intersection but not relate it to the next corner, and you know how congestion works. So we had to look at the overall plan…and then we looked at the parking rules, and it was like—yes, we found something illegal!”
HKNA v. Bloomberg et al., filed in November 2005, charges that changes in zoning for the Far West Side, approved in 2005, reversed parking limitations agreed to by the city in 1982 in order to comply with the Clean Air Act. While the stadium project has since imploded, plaintiffs insist that the zoning errors named in the suit survive and form a basis for policies that still threaten air quality and safety for everyone.
Naming as defendants Mayor Bloomberg, New York City Planning Commissioner Amanda Burden, the Metropolitan Transit Authority and the New York State Department of Environmental Conservation, the suit asks the court to reverse the new parking requirement, declare the environmental impact statement invalid and overturn the City’s approval of the rezoning. Its argument is rooted in the web of state and city laws created to reduce air pollution in order to comply with the Clean Air Act, first passed in 1973 and amended in 1978 and 1990.
In 1979 New York State, in response to the 1978 Clean Air Act lawsuit Friends of the Earth v. Carey, created a hard-wired, legally binding plan to bring the city and state into compliance with the Act by limiting the amount of parking spaces below 60th Street in Manhattan for residential buildings (20 percent of the number of units), commercial buildings apart from hotels and hospitals (100 maximum), and mixed-use buildings (225 maximum).
Such parking restrictions are themselves a form of congestion pricing, according to former EPA administrator Dan Gutman, who lives in Hell’s Kitchen and is a plaintiff in the lawsuit. “Make parking rarer, it gets more expensive, and you discourage driving,” he said. The restrictions were even built into arguments used by advocates of the failed Westway superhighway in the early 1980s, Gutman added. “It’s interesting that now, as the mayor starts promoting congestion pricing on the roads, he’s doing the reverse at Hudson Yards,” he said.
The Hudson Yards zoning law amendments, approved in 2005, are a neat reversal of the 1982 restrictions, requiring landlords with residential buildings to build parking garages with spaces for at least 33 percent of their residents, mandating that commercial buildings include one-third of a parking space for each 1,000 square feet, eliminating the 225-space limit for mixed-use buildings, and declaring that all accessory parking for residential buildings can also be open to the public. Since the Hudson Yards plan anticipates the construction of 13,600 apartments and 26 million square feet of commercial space, the result would be 20,000 new parking spaces, with a concomitant increase in traffic driven in large part “by travel to and from the new parking garages,” according to the project’s environmental impact statement (EIS).
The HKNA suit charges that all of these new rules were based on the “unreliable assumptions” in the EIS, that the Planning Commission skipped numerous legally required review steps in the approval process, especially in its approval of a planned 950-unit parking garage stretching from West 34th to 36th Streets between Tenth and Eleventh Avenues. The result, they add, is both legally and environmentally unsustainable.
New York City officials disagree, and will tell Judge Sidney Stein so on Friday. The city’s position, according the Susan Kath, director of city’s Environmental Law Division, is that since ambient levels of carbon monoxide in the city are currently well below the nationally set CO National Ambient Air Quality Standard, the city is “in full compliance with the New York State Implementation Plan (SIP) for carbon monoxide (CO) and that the rezoning approved by the City Council in 2005 does not violate the SIP.” In fact, she added in an email to Chelsea Now, the city’s Department of Environmental Protection (DEP) is about to begin the process of removing the parking restrictions from the SIP entirely.
Environmental attorney Antonia Bryson, a former deputy DEP commissioner who is representing HKNA in the action, said that the HKNA suit challenges the rationale behind all the zoning for the Far West Side.
“HKNA opposes the building of all these new buildings without the infrastructure to support them,” said Bryson. “If you allow that much parking, there’s no incentive to rent cars when you need to, or take taxis and leave your car elsewhere, maybe at your house in the country. Everyone’s going to want a car, right there near the premises. And then they’ll drive it, even to the store.”
City officials, speaking this week at a briefing on behalf of PlanNYC, readily conceded that New York City is not in compliance with the Clean Air Act. They noted that New York ranks near-worst among U.S. cities on levels of soot and ozone, is second only to Los Angeles in “particulates” and has twice the national rate of children hospitalized for asthma. While they included “transit-friendly” development among the plan’s long list of air-quality measures, restrictions on parking—anywhere in the city—are conspicuously absent from the PlanNYC report released this week.
One official, who asked not to be identified, told Chelsea Now that parking restrictions would not have nearly the impact of congestion pricing, and that additional parking was sometimes necessary, given that people still insisted on driving into New York, and that underground parking was still preferable to “the people who are going to drive in having to go around the block over and over.” Asked at the briefing about how pro-development parking policies sat with the PlanNYC vision, that same official said with a sad, tight smile, “Some policies work together harmoniously…while others are in conflict.”
Now that HKNA’s lawsuit is finally moving before a judge, neither plaintiff Berthet nor attorney Bryson were willing to say much about what they expect. Bryson pointed out that HKNA, by taking this issue on when not a single building has yet to be erected at Hudson Yards, may set the pace and establish some ground rules before the whole massive undertaking gets underway.
“We just hope that the city’s going comply with the Clean Air Act, at a minimum,” said Berthet. “After that, they need to look at the whole zoning.” Separately, she and Bryson also expressed a measured hope that the PlanNYC effort might make the city somewhat more amenable to a fresh look at Hudson Yards.
“Once you put the vision out,” said Berthet, “then there’s this whole next layer…. People need the power to translate that vision into the millions of small actions that it takes to make [a greener city] a reality.”
