Opponents Sue City Over Prospect Park West Bike Lane

Opponents of the Prospect Park West bike lane have filed a lawsuit against the city in relation to the project, according to the New York City Law Department. The suit, which has been threatened for a month, was filed at the end of the day today in Brooklyn Supreme Court. Download it here.

The bulk of the legal complaint is dedicated to attacking the Prospect Park West bike lane and the behavior of the DOT, with section headings like “The Ultimate Oxymoron: DOT’s Campaign to Justify the EBL As A ‘Traffic Calming’ Measure.”

The complaint spends pages cataloguing disrespectful things said by bike lane supporters in online comment sections, including in Streetsblog’s comments section, and ominously noting that “at least one DOT official is registered as “friends” with pro-bike-lane lobbyists on social media sites.”

The more strictly legal argument shows up at the end of the complaint and takes three main tacks. It argues that DOT acted in an “arbitrary and capricious” manner, with conclusions made irrationally or in bad faith. It argues that the bike lane did not properly go through the necessary processes given the landmarked status of the Park Slope neighborhood and Prospect Park. And finally, it argues that an environmental review was necessary to assess the impact of the lane on the historic character of the area.

We’ll have more on the lawsuit tomorrow. Read it yourselves and let us know what you think in the comments.

  • fdr

    How did they get the emails between Russo and Naparstek?

  • Andrew

    FOIL, dude.

  • lol, “historic character of the area”.

    Celebrating the history of car-centric lifestyles?

    That’s one area of history I could happily live without…

  • neil

    As an automobile driver and pedestrian, i am a little shocked at the ferocity of your activity. No one is trying to take away your right to travel as you see fit, but you seem determined to take away that of others.

    Although I do not ride much, i initially supported the expansion of bike lanes. But it has become clear through your inflammatory rhetoric that you are unwilling to engage in discourse on the issue, seeking only to make increasingly unreasonable demands.

    Sadly, a group that has its roots in resistance and independence has been caught shamefully fraternizing with the city. I urge you to think for a moment what you are in danger of becoming and step back from this abyss of becoming a pawn in the game of politicians.

    Ride on

    Neil

  • P

    “i am a little shocked at the ferocity of your activity. No one is trying to take away your right to travel as you see fit, but you seem determined to take away that of others.”

    Neil-

    I really thought you were speaking to the motorists- and petitioners of a lawsuit alleging criminal misdeeds.

    Since I see I read that incorrectly I refer you to this: http://www.streetsblog.org/wp-content/uploads/2011/03/reallocation1.jpg

    Drivers can still drive down PPW in the same amount of time as before (provided they were speeding before). Why not make the street safer?

    (Don’t be too shocked by a little name-calling- I’m sure conservations amongst NBBL members share the same feature. They just aren’t subject to FOIL)

  • Neil, the PPW redesign has taken away no one’s right or ability to travel. Indeed, the same amount of cars are traveling through PPW and it’s taking them the same amount of time now as it did before.

    http://xoxosoma.com/ppw/#throughput

    I doubt this case has much of a chance of succeeding. But it’s fantastic fodder for Marcia Kramer, the Post, and others in their ongoing assault against JSK and the DOT. In that, it’s a success.

    It paints the DOT as being in collusion with radicals, when we all know that there isn’t a department in city government that doesn’t have relationships with community activists, civic leaders, and regular citizens. It also seems to take it as some sort of surprise that DOT would want to press the publicity and PR angle of its projects, as if it could instead just lay out the facts, let them play out, and hope for success. Clearly, any city department needs a PR effort to get things done.

    Never mind. The Post and others will simply quote a few mean blog comments.

    Now you have a real reason to come to the CB6 meeting on Thursday.

  • Geck

    The statute of limitations on an article 78 proceeding is 4 months. They apparently have a problem with basic math too.

  • Martin

    Wow! Thurday night should be Intheresting…

  • I suppose Schumer’s office is subject to FOIL.

    And who is Neil talking to?

  • mike

    When these jokers lose, it’s gonna be a great day.

    Still though, come to Thursday night’s meeting! And be civil — you can be sure that the NBBLers won’t be, and you can bet there will be TV coverage.

  • So far being civil has only allowed the haters to bring their money and power to bear. Is it possible for them to buy a judge to rule in their favor?

    Civility is frustrating while the real menace of the streets (automobiles) continues to kill.

    Ride safe.

  • anonymous

    If anyone has any brilliant lawyerly responses to parts of the complaint, might it not be wise to withhold them from Streetsblog’s comments section, considering that Petitioners’ lawyers evidently monitor this site pretty actively? My concern is that posting really relevant arguments here that the city might actually use in their Answer would simply give Petitioners extra time to think about those arguments and prepare responses to them. I don’t know how this stuff works so I don’t know if my fear is a realistic one but I felt like mentioning it.

  • Danny G

    Whew I can’t believe it took over 40 years to bring this vandalism of PPW to court. Hoping the judge restores two-way trolley service to this historic thoroughfare.

  • Lee

    oh, they want the street to be historic now?

    I suppose they will bring back the trolley then?

    Nothing historic about contemporary traffic patterns last I checked.

  • Larry Littlefield

    “As an automobile driver and pedestrian, i am a little shocked at the ferocity of your activity. No one is trying to take away your right to travel as you see fit, but you seem determined to take away that of others.”

    Three avenues: Seventh, Eighth, PPW. Six sidewalks. Six motor vehicle parking lanes. Six motor vehicle moving lanes.

    One lane where someone can ride a bicycle without fear of being struck by a motor vehicle. Just one.

    That’s my take on selfishness.

    “When these jokers lose, it’s gonna be a great day.”

    You don’t understand the way these lawsuits work. The first goal is to get an injunction forcing the removal of the lane, claiming irreparable harm, and then drag the lawsuit out for years, as at Atlantic Yards.

    Barring that, you still drag the lawsuit out for years, into the next administration. All the while you get the press to hammer the city for spending money to defend the lawsuit while closing senior centers — the cyclists are robbing the seniors and children!

    They you make campaign contributions to the next Mayor in exchange for removing the lane. But the next Mayor isn’t going to want to remove a bike lane supported by the majority of the community, and set a precedent that no changes can be made to the street.

    So the city “settles” the lawsuit with a consent decree that not only removes the lane but also bars any additional bike lanes in the area. The Mayor says Court made him/her do it, and it is all because JSK overrode petitions and the community board in her imperious way and didn’t do any outreach to the community. (Note it doesn’t matter whether or not that is true). The contents of the lawsuit are sealed since there is now “agreement,” and so there is no precedent.

    That’s the way these people think, and that’s the game they play.

  • Glenn

    This is really starting to make Sen. Schumer’s silence on the issue ridiculous. This is such as easy slam-dunk issue for the GOP to seize on and make a national issue. I can hear them now:

    “Sen. Schumer doesn’t want you to harm the environment in your car, but don’t try to ride your bike near his apartment building either!”

    Shame on all those working against bike lanes!

  • jb

    I ride a lot in the park and use bike lanes in Brooklyn and parts of Manhattan, and have to admit it was a bit freaky when i saw the bike go in on PPW. They’re 2 lanes and it pushed the parking lane away from the curb.

    But the benefits outweigh the impact by calming traffic and encouraging more cycling in the city. Driving down PPW was always a bit like a motor speedway. It’s long and straight and everyone wants to hit the lights so they go too fast. I’ve seen the same calming effect on Eastern Parkway on the blocks between Grand Army and Washington.

    Further, it does bother me that a small minority of well connected, well off folks are annoyed by the lanes they probably would never use anyway, Too bad government works this way, but that’s a whole different topic.

    P.S. Perhaps a letter writing campaign to old Park Slope Chuck could’t hurt.

  • Peter

    Funny, I was expecting the NYPost to have a story about it by now. Silence. The only thing they have is a story talking about how crime is up in Central Park. Perhaps the NYPD should start going after criminals and stop harassing cyclists.

  • Glenn

    Can bike lanes supporters file a FOIL to get all the email correspondence between NBBL members and DOT? I can’t see why not.

  • I just wish I could figure out why this is such a big deal to these people.

  • Joe R.

    “The statute of limitations on an article 78 proceeding is 4 months. They apparently have a problem with basic math too.”

    Hopefully the lawsuit will be summarily dismissed on that basis alone. It’s apparent from skimming through that those who authored the lawsuit have no background in traffic engineering. This is why we have DOT, and why DOT should have power to do what is needed to build a system which serves the entire city, even over the wishes of individual community boards. If you want to get from point a to point b, but someone in between at point c doesn’t want a road there, do you cater to that person’s whims when the majority will benefit? The answer is no, and the courts have upheld this concept many times. A system of bike lanes can only be fully successful as an interconnected whole. If communities are allowed to stop bike lanes, this makes the system less useful. It then becomes a self-fulfilling prophecy that other existing bike lanes won’t be used as much as they might otherwise be (with the pressure to remove them also for lack of use). I don’t doubt this is also part of the other side’s overall strategy here.

    Funny that Moses rammed through expressways over the objections of the majority of city residents, yet building a bike lane is a struggle because a minority object. These types of lawsuits should be summarily dismissed just on the basis that individual objections to pieces of a bike network render the entire network, which has a major public benefit, less useful. That is how I would rule on it if I were a judge-basically as an eminent domain issue.

  • Joe R.

    “I just wish I could figure out why this is such a big deal to these people.”

    Because it’s supposedly less safe to double-park on PPW now that there’s only two traffic lanes instead of three. Perhaps this is true, perhaps not. Nevertheless, if you need to double park to go about your business, then perhaps a car isn’t really suitable transportation. It’s more than a little hypocritical how the opposition chides “scofflaw cyclists”, yet at the same time had an understanding with the previous precinct commander that double-parked cars wouldn’t receive tickets. One set of laws for the well-connected, another for everyone else.

  • Emily Litella

    What petty bickering people we have become. What progressive change is there today that doesn’t involve some one selling or using a computer chip? Culture change is coming and these petty grudge holders can’t stop it.

  • Moocow

    Lois Carswell stood up at a CB6 meeting, and said to the DoT reps there, “I don’t believe you.” she called them liars in front of a bunch of people. That seems way more offensive to me, than name calling.

  • Larry Littlefield

    “Lois Carswell stood up at a CB6 meeting, and said to the DoT reps there, “I don’t believe you.” she called them liars in front of a bunch of people. That seems way more offensive to me, than name calling.”

    Nonetheless, it’s better not to engage in name calling. Unless behavior in this country starts improving generation by generation instead of the other way around, we’re going down the dumper.

  • jbk

    Anyone have the exhibits?

  • Al Harris

    The Federal Election Commission website http://query.nictusa.com/cgi-bin/qind/

    Shows James Walden of Gibson Dunn gave $4,600 to Chuck Schumer and $9,200 to McCain/Palin in the 2008 election cycle.

  • Moocow

    I agree Larry, it seems that NBBL it taking more offense to the name calling than the facts, which seem to not support anything they have claimed. Maybe that is all they have ie: cornered children

  • Jeff Putterman

    Chuck Shumer and Anthony Weiner will both regret their pigheaded involvement in destroying this planet. I didn’t vote for Chuck last time, and I won’t next time. The arrogance of these clowns infuriates me.

  • Suzanne

    One of the things (one of the MANY things) that gets me about this lawsuit is how upset they seem to be over some name calling on sites like this. Like that’s an actual real issue. Are you serious??! People are dying because of unsafe driving and things like the PPW bike lane are helping that. DYING!!! And for what? Because some wealthy, politically connected BOZOS want to be able to double park? Are you effing kidding me??

    I mean seriously, are you kidding me??!

    Either these people don’t have anything real to put in that lawsuit or they’re a bunch of thin-skinned whiners. But the real, actual issue is that these people are whining about NOTHING while hundreds of people lose their lives every year, in this city alone. And now apparently NYC is second after LA for gridlock and instead of supporting measures like bike lanes that would get more people out of their cars, they’re fighting against them. And they’re complaining about name calling. Give me a freakin’ break.

    I’ll tell you what I think of these people. They make me SICK.

  • blah

    No way this runs afoul of statute of limitations. It’d be highly embarrassing for any modestly decent law firm. My guess is that the clock hasn’t started ticking because it’s not a “permanent” project.

  • Actually, have the NBBL people read the everyday anti-bike comments in every other forum? If they think the occasional Streetsblog bromide is mean…

  • @Larry
    Actually, I believe Carswell said, “I don’t believe your logic”.

    You’ve got to love it.

  • Joe R.

    So they will basically ignore any data not supporting their position. And yell because they have no facts to back up theirs. Sounds exactly what little kids do to get their way.

  • @blah

    Most Article 78’s like this fail because of the four month statute of limitations and/or the very high hurdle for success.

    I’ve brought and defended Article 78s for many years. The board or agency that’s being challenged only needs to show that the decision they made was not “arbitrary or capricious” or violated procedures. T

    hat standard was proclaimed by the state’s high court in the early 1960s in “Matter of Pell” and most Supreme Court justices know it means that an agency decision will be rubberstamped so long as there is a public hearing record which includes the agency’s proposal and procedural laws like the SEQR/CEQR procedures were followed.

    The four months is from the date of the agency decision. (Not the date the bike lane was installed, and I think your concept of “temporary” is not relevant). Lots of would be petitioners have been sandbagged by this…often the agency waits the four months before proceeding with the construction for just this reason!

    Lastly, I disagree with your idea a “good” law firm would not file stale charges they knew might be thrown out of court. Seems to me that these petitioners know full well this Art. 78 has little chance of success and was somewhere between a hail mary and an outright publicity stunt. It doesn’t seem to me a serious effort (for instance, technical affidavits of engineers on their side, not just a lawyer’s petition, sworn to by some astroturfish neighborhood interest groups with no real expertise or standing).

    Looks to me like a throwaway lawsuit filed to get some friendly ink in the Post and some other media organs that share this notion that cars and parking are sacred cows for certain elements of the wealthy in NYC.

  • @jackl

    I agree that just because a lawsuit is filed, doesn’t mean they expect to win in court.

    They may want to put pressure to have DOT unilaterally remove the lane, have JSK fired, etc.

  • Larry Littlefield

    “One of the things (one of the MANY things) that gets me about this lawsuit is how upset they seem to be over some name calling on sites like this. Like that’s an actual real issue.”

    There are some who believe that once basic material needs are satisfied, what remains is the drive for social standing. And in the competition for social standing equality is impossible, because some have to be more important than others.

    What I remember at the anti bike lane meeting last summer that I rode over to but was not allowed to speak at was this one woman ranting about what “those bicycle people” were like. They are lesser people who think they are better than us and look down on us! And this enraged her. The lane itself seemed to be a side issue.

    The other people at the meeting were far more reasonable. Whoever she is, it would be funny (if a bit unfair) to have her e-mails submitted to the court.

  • Hard to see why anyone would be against bike lanes, there are absolutely no cons to bicycle lanes.

    The arguments used seems to me at least, to be fictional or another agenda that is not revealed publicly.

  • Hey jackl,

    I mainly agree with you, although I wonder if there is an issue concerning compliance with SEQR/CEQR. But even if there is, the remedy is probably that DoT does the requisite analysis retrospectively to establish that there is no probability of a significant adverse impact under the criteria applicable under those laws. If that conclusion is supportable and not arbitrary or capricious, a judge will not order the lane ripped out on principle.

    Where can I get the supporting affidavits and exhibits?

  • Larry Littlefield

    “I wonder if there is an issue concerning compliance with SEQR/CEQR.”

    If CEQR is required than no bike lanes would ever be built, because the administrative cost would a multiple of the cost of actually adding the lane. And if DOT had done an EIS, then the lawsuit would be about the adequacy of the EIS not whatever it is about, even if it cost $25 million and analyzed every intersection within ten miles in Brooklyn.

  • No, if the SEQR/CEQR assessment procedures are not followed correctly, the Court will not allow a reasonable conclusion to be restrospectively supported by the record. Then, it actually is back to square one.

    I’m not familiar with the record in this case, or how exactly a particular bike lane proposal or the system complies with CEQR under the NYS DOT decision procedures, but I would tend to think that here, again, the hurdle is low…it is just establishing as a preliminary matter that a proposed action like removing a car lane would not have a significant ADVERSE impact on the human/natural environment. Since you aren’t erecting additional structures or doing things other than putting paint down, and eliminating car emissions, it’s kind of a stretch to think that a full blown environmental impact statement would be needed for this. Still, procedures must be followed, but it’s hard for me to see a SEQR/CEQR “smoking gun”. Looks like more hot air and verbose smokescreening (typical for these things).

    As to supporting afffdavits and such, my supposition is that they don’t exist and the papers you see on the download link were all the papers. Under Article 78, a petitioner’s attorney is (according to the rules) supposed to put in ALL the papers when the petition is originally brought and served.

    A good attorney with a winning case will go loaded for bear with expert affidavits and a memorandum of law (brief). A loser with a nuisance suit will treat it like civil litigation where you file only a skeletal petition and try to backfill later. (Losers also tend to bring the briefs and affidavits with them (if at all) on the return date of the motion, not the date of the Notice of Petition, as the rules seem to require). If the DOT lawyers are competent, they’ll object (and also to the standing of the petitioner’s and their groups…some astroturf group formed last week isn’t necessarily entitled to the deference of longstanding players, like TA.

  • jackl,

    Thanks for the view on the procedure. I don’t think the documentation requirements for the DoT in reaching the conclusion that neither an EA or ER were required to put in a bike path are great. But the (obviously self-serving) petition allegations makes it sound like there might be literally no documents. If that’s the case, doesn’t this puppy go discovery?

    There should indeed be great pressure brought to bear from all quarters for NBBL and Seniors for whatever to disclose the affidavits and exhibts they relying on, as soon as possible.

  • No, I guess as a threshold item you debate whether an action is subject to the threshold EIS/no EIS “determination of significance” procedures in the first place. There are a bunch of actions called Type II actions which are categorically excluded from SEQR/CEQR, and doing bike lanes as a MAINTENANCE activity of existing streets that involves no physical disturbance may very well be such a Type II action.

    See, http://www.dec.ny.gov/regs/4490.html#18105 item (16) in particular “(16) installation of traffic control devices on existing streets, roads and highways;”. A bike lane marking on an existing street seems to be within the definition of a “traffic control device”. See also items (1) and (6) maintenance of existing facilities, repaving roads.

    As to discovery, fuhgeddibout it. Article 78 procedures are NOT “civil actions” (law suits) with discovery and a trial (or settlement) when the parties are ready. Under NY laws, an Art. 78 is a “special proceeding” to review the decision of a government agency or board. There is no trial, or jury, just a single hearing before a supreme court judge, usually about a month after the petition is filed. No discovery.

    Although you may see a lot of bs in the media about emails between activists and the DOT and so forth, none of that stuff will be considered by the court UNLESS the DOT didn’t do the bare bones work of making sure the administrative record has a rational basis for the decisions, a public hearing was held if required, and so forth. BTW, most Article 78 challenges lose unless the agency totally failed in its documentation requirements. That’s unusual.

  • Jay

    Their lawyer really needs to check his own “facts.”
    He should be embarrassed to have conflicting accounts on the same page!

    On point 14, he claims that two-way cycle tracks “did not exist anywhere in New York City. Although DOT has installed a limited number of parking-protected bike lanes, all had been one-way…”

    Then on point 18, he recognizes the Kent Avenue cycle track, which was constructed before PPW.

  • Not knowing if this will see the light of day, my letter to NYT on their article:

    Having worked in transportation for the New York City Department of City Planning under Mayors Giuliani and Bloomberg, I have known many NYCDOT Commissioners. My admiration goes out to only one: Commissioner Sadik-Khan. I am a city planner with training from the Massachusetts Institute of Technology. I want numbers to make streets make sense. Fact, in the past ten years, 54 people have been hit by cars in Times Square, and 2 people were killed. The cost of the changes to Times Square: $789,000. The cost to the City of New York for even five crashes a year: $7.8 million.
    It is give and take; I take this, happily, and safely.

  • BicyclesOnly

    Great letter, AmyPF!

    Jackl, if I’m not mistaken, “adding a lane” is a Type I event triggering heightened requirements. It should be clear that replacing a motor vehicle lane with a bike path is not “adding a lane,” but NBBL will certainly argue that it does.

    But your understanding is that there is no way to get discovery in an Article 78 proceeding?

  • commenter #6

    Agreed that the blog comments cited don’t seem to support their case in any way, so why even include them in the suit filing? Obviously just to have the email exchanges they obtained appear in the papers and embarrass DOT brass. IMO, that’s probably the only reason for the lawsuit in the first place.

    It’s amazing that Iris Weinshall continues to impede transportation progress even out of office. She is a monster. She and her fat cat park-view political cronies must be stopped from destroying what the community has fought so hard for – a safe bike lane for us and our children.

    Iris is a Vice Chancellor at CUNY, a city institution. One of NBBL’s other vocal members, Louise Hainline, is a dean at Brooklyn College – a CUNY school. Couldn’t someone FOIL their communications? If either of those two might have used company email to discuss PPW I’d love to know what THEY said.

  • jbk

    Suit is up on E-file, finally. Go to http://iapps.courts.state.ny.us/webcivil/FCASSearch?param=I , Index No 005210/2011

  • Larry Littlefield

    Again, “facts” and winning the lawsuit are besides the point in these sort of things. The goal is to get delay and kill something by stalling and inflating the costs.

    Since it’s already there, they either need an injunction to get it removed with the idea that it could be put back if the city wins, or stall the lawsuit until the next administration in the hopes the next Mayor will settle and then blame the judge for the lane’s removal.

    And just remember, the judges have been selected by a political machine forever here. I doubt this case would pass muster at the Supreme Court of Court of Appeals, but you might get a judge who owes a favor at the trial court level.

  • fdr

    According to the e-file, the case is assigned to Justice Bert Bunyan. According to his official bio, he was an attorney for the National Labor Relations Board and the US EEOC, then an administrative judge for the State Workmens Comp Board before being elected to Civil Court in 1995 and then Supreme in 2002. Went to University of Virginia Law School. At least from his resume, he isn’t a product of the Brooklyn clubhouse.

ALSO ON STREETSBLOG

Marty Markowitz Chooses the Perfect Moment to Jump Into PPW Lawsuit

|
How’s this for some impeccable timing? Less than 48 hours before the next scheduled court date in the Prospect Park West case, Brooklyn Borough President Marty Markowitz is inserting himself into the proceedings in an attempt to keep the tenuous suit from being thrown out. Yesterday afternoon LCG Communications, the PR firm representing bike lane […]