NEW YORK — New York City is confronting mounting legal pressure over its plan to rebuild Manhattan’s East River Park as a flood barrier, including one that has already resulted in a temporary pause to construction, more than half a year after work was set to get underway.
On Friday, a nonprofit sued the city for allegedly not including enough minority- and women-owned businesses in the construction contract.
A week before that, a judge in a separate case issued a temporary restraining order to pause preliminary work removing plants and preparing construction areas. A third suit, brought by a contractor that bid for the job, could set the project back even further if successful. The city prevailed in both ongoing suits before they were appealed.
Nearly a decade after Hurricane Sandy drove debilitating storm surges into the area, the effort to raze the existing park and build a new version of it on top of eight feet of fill and a seawall has not begun in earnest. The city has said construction will now go through the end of 2026.
While lawsuits over major developments are common, tenant leaders of the public housing complexes that run along the park’s length say that these cases are threatening residents’ lives as the risk of extreme storms rises due to climate change.
For Mayor Bill de Blasio, the lawsuits challenging his administration’s signature climate resiliency project are par for the course in a litigious city.
At a Tuesday news conference, he defended the park reconstruction plan as “fair” and that it amounted to “the best thing to protect this community after the devastation we saw from Sandy.”
“I don't know if there's any way to stop the rash of lawsuits that's become so common in current New York public life,” he said. “But I do know this is a good project, and I am confident it will move forward and will win the day in court, ultimately.”
A park, or a flood protection plan?
The first lawsuit the city is facing is being spearheaded by East River Park Action (ERPA), an activist group that opposes the reconstruction plan, which is part of a larger East Side Coastal Resiliency project (ESCR), and has coordinated months of protest at City Hall and the park itself.
They are arguing that the city’s plan amounts to “alienation,” a legal term for when a city illegally converts parkland into something other than park use without approval from the state legislature.
“In fact, though the City asserts that it has figured out how to build a floodwall which, it asserts, will also benefit the park,” the group’s lawyer, Arthur Schwartz, has argued in legal filings, the project is actually “a flood protection plan which will have a restored park built on top of it.”
The city has argued that the distinction is meaningless.
“Every aspect of the project to be done within park boundaries will improve the park and make it more resilient to climate change, ensuring that it remains available to New Yorkers for decades to come,” city lawyers argued in a brief filed Monday.
Because the city must fully spend $335 million in federal funds designated for the project by September 2023, its lawyers asked the court to force ERPA and other plaintiffs to post at least $5 million in bonds per month to cover potential losses of federal dollars.
The temporary restraining order on construction put in place last week by one of the appellate judges overseeing the case is set to remain until the judges issue a decision, likely later this month.
Schwartz is also bringing the case over the minority- and women-owned businesses included in the contract, known as MWBEs. A complaint filed Friday and brought by the Black Institute, a nonprofit research and activism group, argues that the city broke state and federal laws when it did not follow its own guidance for requiring contracts to include a certain percentage of MWBEs.
In July, city Comptroller Scott Stringer declined to approve the city’s contract for the work in the park, in part over the contract’s low number of MWBEs. The city approved the contract without Stringer’s sign-off.
The city required only 16% of subcontractors involved in the project to be MWBEs for the park contract, according to Amy Varghese, a spokesperson for Stringer, despite its public goal of 30% of contracts going to such firms.
The Black Institute suit alleges that the winning bid, from IPC Resiliency Partners, a consortium of three firms, did not even list specific MWBEs it planned to contract with.
A lawyer for IPC did not respond to a request for comment.
The third case was brought against the city by The Tully Group, a large contractor that issued one of the just two bids the city received for the $1.5 billion task of remaking East River Park.
In a hearing Friday before a panel of appellate judges, Jeffrey Cohen, a lawyer for Tully, argued that IPC effectively fudged its bid in order to meet a city requirement that the contractor have grossed at least $1 billion in revenue in the last fiscal year.
“What we are concerned about almost as importantly as the flooding, almost as important as the ravages of climate change, is the integrity of the bids,” Cohen told the judges.
Kate Fletcher, a lawyer for the city, called the claims “baseless,” and argued that IPC’s bid met city standards.
In a statement, Ian Michaels, a spokesperson for the city’s Department of Design and Construction, which is overseeing the park project, noted that construction at Stuyvesant Cove Park, a separate part of ESCR, has been underway for a year.
“We’re confident in our legal position,” Michaels said. “ESCR is the most important project ever attempted to keep this city safe from the worst impacts of climate change, and we will leave the entire project area safer, more beautiful, and more vibrant than we found it.”
‘Purely obeying the law’
Residents of nearby housing complexes who support the park reconstruction plan are concerned that the mounting lawsuits could further delay the promised flood protection, which under the current plan would not be in place until at least 2024.
Construction crews for IPC have started some preliminary work. They are currently converting a patch of asphalt used for years as the staging ground of the Lower East Side Ecology Center’s composting operation to sod-covered green space, to make up for lost park access during construction.
Frank Avila-Goldman, a member of a local resident council that has consulted with the city on the plan, said he is concerned that the lawsuits from ERPA and Schwartz are mainly efforts to delay the project until it loses federal funding.
“It seems like it's delayed enough to almost actually stop it,” he said. “And that’s very, very dangerous, not just for people on the waterfront, but everyone in the floodplain.”
Tommy Loeb, a member of ERPA and a plaintiff in the alienation suit, said that was not the purpose.
“What this is about is purely obeying the law,” he said. “We don't like the plan. But that’s a separate issue.”
An alienation vote could force the city to grant some of the concessions ERPA has asked for, Loeb said, such as free ferry rides to Governors Island for local residents and sports teams for the duration of construction.
Bertha Lewis, the executive director of the Black Institute, said her suit was about economic justice. She rejected the idea that her lawsuit, over minority- and women-owned businesses included in the contract, harmed nearby residents, who are overwhelmingly people of color, by potentially delaying construction.
“You can't claim to give to us with one hand and take it away with another,” she said. “You care about minorities? You care about people of color? Look at these bids, look at these contracts. It would seem to me that you would want to have some minorities participating in flood mitigation.”
The purpose of the lawsuit, according to Lewis, is to hold the city accountable.
“I don't know if we’ll win,” she said. “But I know this. We’re gonna holler.”