The NBBL Files: Bike Lane Opponents Knew Their Lawsuit Lacked Merit

This is the second installment in a series of posts examining the tactics employed by opponents of the Prospect Park West redesign. Read the first post.

When they filed their lawsuit this March, opponents of the Prospect Park West redesign had little chance of succeeding in court. As NYU Law Professor Roderick Hills, Jr. told Streetsblog in March, “I take this complaint to be largely public relations, with no more law behind it than is minimally necessary to avoid sanctions for frivolity.” It turns out that some of the most prominent members of the anti-bike lane group “Neighbors for Better Bike Lanes” were perfectly aware of the holes in their case too.

Bike Lane Opponents Knew PPW Was Not Landmarked But Argued Otherwise in Suit

One of the central legal arguments in the Prospect Park West lawsuit asserted that the redesign should have gone through the city’s landmarks and environmental review processes. “Because Prospect Park West touches not one but two sites that are listed on the National Register of Historic Places, New York State and City law demands careful study of various environmental impacts,” stated the lawsuit, referring to the street’s location between the Park Slope historic district and Prospect Park itself.

The city’s lawyers pointed out that each side of the street is landmarked, but not the roadway itself.

Before they filed suit, NBBL president Louise Hainline and her fellow litigant, former deputy mayor Norman Steisel, explicitly acknowledged the merits of what would become the legal argument of their opponents. They knew the bike lane was not landmarked.

On August 2, 2010, Steisel wrote to Hainline with a suggestion [PDF]. If a distinguished architect or city planner could complain about the aesthetics of the lane to the Landmarks Preservation Commission, Art Commission and City Planning Commission, Steisel suggested, First Deputy Mayor Patti Harris might be persuaded to turn against it.

“Unfortunately, the lane is not in the Landmark District,” Hainline conceded later that evening.

Steisel agreed, but he recommended that NBBL push the issue anyway. “Doesn’t matter that landmarks has no jurisdiction they are kindered spirits along with art comm and cpc types,” Steisel wrote. “Bottom line need authorstive voice to say bloomberg legacy will be besmirched by altering this historic street.”

The following month, Hainline again stated that the street itself wasn’t landmarked. In a September 10, 2010 email to NBBL members, she forwarded a news clip about the expansion of the Park Slope historic district. “I thought these were particularly interesting,” said Hainline [PDF], “and in the first one, especially ironic due to the street between the park and PPW not being apparently under Landmarks jurisdiction/protection.”

NBBL Members Knew Time Might Run Out to File Their Lawsuit, and They Waited Anyway

When Brooklyn Supreme Court Judge Bert Bunyan threw out NBBL’s lawsuit, he cited a procedural issue. Article 78 lawsuits, the kind NBBL filed, carry a four month statute of limitations. Since the bike lane was installed in June 2010, opponents had until November to file suit, but they waited until March 2011 to do so. The bike lane opponents claimed that time had not run out because the project was a “trial,” and so the clock hadn’t started ticking in the summer.

“The city is trying to avoid litigation on a technicality, which is based on a lie,” NBBL attorney Jim Walden told the New York Post in typically bombastic fashion this July. “After having told the public and various elected officials the bike lane was a trial project, the city now makes the incredible claim the lane was permanent all along, and that our suit was filed too late.”

Bunyan ruled against Walden, however, saying the project was in fact permanent and that the statute of limitations had passed. Again, prominent bike lane opponents knew about this weakness in their lawsuit ahead of time.

Jessica Schumer, a Yale Law School graduate studying for the bar exam at the time, advised NBBL in the summer of 2010, after which she moved to Washington D.C. to take a job with Larry Summers. Schumer sounded the alarm about the statute of limitations issue on July 1, 2010 [PDF]. “The NY court’s are very strict in their applicaiton of statute of limitations in Article 78 proceedings,” she wrote in an e-mail to her mother, Iris Weinshall, Louise Hainline, and a number of other NBBL members. “We need a lawyer to start drafting the motion ASAP.”

Schumer said she believed DOT was being ambiguous about calling the bike lane temporary or permanent. Filing the lawsuit immediately would clarify things, she argued. If the street redesign was permanent, NBBL wouldn’t miss their chance to sue; if it was not permanent, the Article 78 would trigger a response from DOT that would remove all doubt. (DOT’s Josh Benson had already set the record straight, however, when he publicly stated at a Community Board 6 hearing in April, 2010, that the bike lane was not a trial.) Schumer’s advice was sound and it seemed like NBBL had nothing to lose by suing the city right away. It was good legal advice, but for reasons that remain unclear, NBBL chose to wait until March to sue instead, and their suit was thrown out as a result.

In fact, Hainline herself expressed doubts about whether DOT had actually designated the bike lane a trial. On August 25, 2010, Hainline e-mailed Carlo Scissura [PDF], Borough President Marty Markowitz’s chief of staff, asking him for help with the matter. “Can you fill me in on what was said or not said by DOT about the matter of this installation being a trial? I’ve look at everything I can find Sadik-Khan or her people have said about this bike lane and can’t find anything that indicates they publically said the installation was only a trial.”

Hainline said she’d heard City Council members Brad Lander and Steve Levin refer to it as a trial, and wanted confirmation from Scissura. “Do you or Marty know what if DOT has actually said anything publically about the trial, what it would consist of and/or when it would be over? At this point, all we have is second or third hand accounts of the existence of some kind of trial.” Markowitz ultimately alleged in a sworn affidavit that Sadik-Khan told him the bike lane was a trial — testimony that earned a strong rebuke from Judge Bunyan for its lack of detail.

Other than Markowitz’s threadbare affidavit, neither Hainline nor her lawyers could cite any evidence that DOT had called the lane a temporary project.

The Public Relations Battle: Gibson Dunn Used NBBL to Drum Up Clients Who Would Maximize Suit’s PR Potential

Even though the NBBL lawsuit was destined to be dismissed if it wasn’t filed within four months of the PPW redesign’s installation, bike lane opponents and their lawyers put off the filing and instead focused on ways to enhance appearances. In a display of the importance of PR to the NBBL legal gambit, Gibson Dunn’s attorneys tried to recruit local businesses to sign on as plaintiffs along with NBBL and its spin-off, “Seniors for Safety.” “Our attorneys want to try to include some local businesses in any Article 78 they eventually file,” Hainline wrote to NBBL member Linda Brookoff on January 8, 2011 [PDF] — months after Gibson Dunn had allowed the deadline for filing to pass.

Hainline explained further in an e-mail to four other NBBL members [PDF]: “To clarify what our attorneys asked, they feel that our action would be strengthened by showing that it’s not just a few NIMBY ‘old rich folks’ (my words, not theirs) who are opposed to the bike lane. They felt that support from others, particularly members of the business community negatively affected by the lane, would broaden our chances as an article 78 would need to go in front of a politically-connected/appointed judge, who might choose to dodge a decision unless it seemed to involve more than just our group’s dislike of the impact/aesthetics.”

Of course, adding business groups to the suit wouldn’t have in any way affected the actual legal questions at hand. The environmental impact laws NBBL tried to invoke against the redesign do not list local commercial impacts as a concern, and the city’s decision would have been no more “arbitrary or capricious” had business groups opposed it. A theoretical “Businesses For Better Bike Lanes” organization would, however, have added some political and rhetorical firepower to the opponents’ arsenal.

Given the fatal decision to delay the lawsuit while exploiting its PR potential, it appears that the Gibson Dunn strategy revolved around maximizing political, not legal, efficacy.

  • Anonymous

    This is key info here. It basically reveals that they knew they had little or no legal ground to stand on when choosing to file a lawsuit against the City of New York, but did so anyway as a P.R. effort, abusing the legal system and wasting taxpayer’s money, in a shameful attempt to apply political pressure to DOT and City Hall that they hoped would persuade them to remove the bike lane. I can’t believe that these two scoundrels are employed by CUNY and on the City payroll when they demonstrate such contempt for public process and taxpayer resources.

  • Larry Littlefield

    “Given the decision to fatally delay the lawsuit while exploiting its PR potential, it appears that the Gibson Dunn strategy revolved around maximizing political, not legal, efficacy.”

    They filed in March when virtually no one was using the lane.  Because it had been intentionally blocked by unplowed (and then by intentionally plowed) snow for weeks.  Usage had been high in the dark and cold of December, before the blockage, but very limited afterward, based on my 3-4 days per week observations.

  • Fake

    Louis said in her sworn petition “it has added to the park slope historic district a bright-green… ”

    You quote her as saying, before the filing, that the lane was not in the district.

    Did she commit perjury!?

  • Mrs. Corcoran

    Considering how much apartments in her very own building have appreciated in value since 2008 when the rest of the economy was tanking, it’s laughable that Louise Hainline thought she could make the case that the bike lane was bad for business. 

    http://streeteasy.com/nyc/building/9-prospect-park-west-brooklyn

    Maybe it’s made the consequences of double-parking a tad more severe, but I doubt anyone from NBBL calls up to order delivery only to hear the guy at the pizza place say, “9 Prospect Park West? Nah, we don’t go there anymore ’cause of that damn bike lane.”

  • > “Bottom line need authorstive voice to say bloomberg legacy will be besmirched by altering this historic street.”

    It’s like an episode of Gossip Girl. The public interest has absolutely zero meaning for the Schumers and others involved here. None at all. They really should be deeply ashamed of themselves, but it’s not surprising at all. 

    These are the people who play Democrats and Liberals on teevee, it’s worth remembering.

  • Testa Mony

    Fake, here’s the part of the NBBL/SfS lawsuit about the historic district:

    “It has added to the Park Slope Historic District a bright green, eight-food-wide lane running for nineteen blocks; several flashing yellow lights, a three-foot-wide striped buffered lane, and myriad directional signs intended to govern the flow of bicycle traffic.”

    Not through, between, next to, or near the PS Historic District, but “to.” 

    Carswell signed this sworn verification on April 7th, 2011:

    “LOIS CARSWELL, member of the affected neighborhood, being duly sworn, states that she is a Petitioner in this proceeding, and has read the foregoing Amended Petition and knows the contents thereof; that the same is true to her own personal knowledge, or information and belief, based on discussions with other community members: and
    to those matters, she believes them to be true.”

    Carswell was likely on the September 10, 2010 email that went out to the “admin-for-better-bike-lanes” Google group in which Hainline says that PPW is not “apparently under Landmarks jurisdiction/protection.” 

    I’ll leave this case to the next judge…

  • Mike

    Wow, Schumer’s kids are old enough that we can despise the whole family now.

  • J

    I just love the fact that Hainline refers to her own group as “a few NIMBY ‘old rich folks'”. Need anyone say more?

  • Eric McClure

    Let me say on behalf of Park Slope Neighbors that we consider it a tremendous badge of honor that these opponents of safety and sensible transportation would “write us off” when it came to enlisting allies for their spurious lawsuit and public relations campaign.

    Let me also add that it shows how completely out of touch they are with neighborhood affairs that anyone involved in the effort to untraffic-calm Prospect Park West would have included Park Slope Neighbors on a list of groups that they thought might join their efforts.

  • Different Guest

    The timeline is a great idea. Even better, please us it to further clarify the process by putting a red line in November labeled “Statute of limitations for Art 78 legal filing.” Also, think about making space for some event labels below the timeline. Allow you to show more events without clutter.

  • Bristol Traffic

    This is fascinating. I can see why they wanted to keep these emails a secret. Moral: never use your employer-provided email accounts for other activities. It shows they really do hate people on bicycles, and the bike lane’s very presence. They even concede the traffic calming effects. It’s just the very presence of a bike lane, the cyclists it brings and the loss of the ability to double park that appear to upset them. Even the parking is something they have to look for business to complain about.

  • J

    I also think it’s telling that no business group would dare join such an effort. There is terribly little for a businesses to gain and quite a lot to lose, especially since the bike lane is pretty far away from the location of any businesses.

  • Journalism Review

    Are there any awards for investigative online journalism? I think this series and Streetsblog deserve some recognition for the high quality of this reporting. I’d like to make a nomination but where?

  • Timesman

    Next year:

    http://journalists.org/2011/09/25/2011-online-journalism-award-winners-announced

    Someone should find out how to nominate Streetsblog for ONA Journalism awards in these categories…

    Specialty Site Journalism, Independent

    Gannett Foundation Award for Innovative Investigative Journalism, Small Site

    Online Topical Reporting/Blogging, Small Site

    Online Video Journalism, Small Site

  • Anonymous

    My personal favorite quote in emails you’ve posted is Hainline saying, “The Community board, we’ve been advised, is really a cover and has no strong relevance to the real issues…Marty has been saying this all along.”  Oh, is this the same Marty who is responsible for selecting over 50% of Brooklyn’s Community Board members?  And he thinks the whole system is a sham?  That’s fascinating…as is the fact that Vacca and his City Council Transportation Committee is now pushing as hard as possible to let these ineffectual, useless Community Boards have complete review/veto power over future DOT projects. 

  • Trader Joe

    Weinshall at least had the good sense to keep her emails short and to the point, even the incriminating one. Hainline’s prose goes on for ever with one half-truth following another, revealing a woman who clearly had too much time on her hands.  Her emails are filled with one inconsistency after another and the most delusional kinds of conspiracy theories known to man, as jooltman points out. 

    If ever someone wrote enough to hoist herself with her own petard, it’s Louise Hainline.  She should be persona non grata at Key Foods, that’s for sure.

  • PPW Commenter

    OK… My favorite NBBL email quote thusfar comes from Louise Hainline’s August 25, 2010 email to Brooklyn Borough President Chief of Staff Carlo Scissura.

    Hainline watched the NY1 interivew in which Markowitz is virtually foaming at the mouth over “bike zealots” and DOT trying to turn Brooklyn into Amsterdam. Then she writes to Carlo to say that it’s great that Marty Markowitz “continues to be a beacon of reason on this issue.”

    Love him or hate him, you can call Marty Markowitz a lot of different names. “Beacon of Reason” ain’t one of them.

    Literally: These NBBL people live in an alternate reality of their own creation. It must be something about the air Louise is breathing up there in the penthouse at 9 PPW.

  • PPW Commenter

    Another interesting face to all this:

    The emails make clear that these NBBL people made a substantial effort to drum up support for their anti-bike lane cause among local businesses and civic groups.

    Yet, no one supported them. Not a single merchant, business group or local civic organization signed on with NBBL or came out publicly to support them.

  • How horribly lazy, cynical, and disgusting that Hainline seemingly did no further Google searches to learn anything about some of the groups she included on her list of local organizations to hit up for support before sending it around.

    Neighbors Helping Neighbors’ mission “is to empower low and moderate income Brooklyn residents to secure quality housing and build financial assets.”  I’m sure a bike lane miles from NHN’s headquarters on the other other side of Greenwood Cemetery would have been a top concern over this past year.  Then again, these are the same kind of people Jim Walden may have been referring to when he told Crain’s New York, “we are spending a lot of money building lanes that few people use when
    we are making really tough choices about cutting education and
    social-benefit programs that give access to food, health care, and job
    training.”

    She also included Imani House, which I’m assuming she also didn’t bother to Google at the time.  Their mission is “to assist low-income youth, families, and
    immigrants to create sustainable neighborhoods where residents are
    decision makers who take responsibility for the improvement of their
    lives and surroundings.”  Sounds like just the kind of hardworking, honest folk who need to park their cars on Prospect Park West.

  • Anonymous

    Methinks Marty told a whopper to Louise early on: that JSK told him this was a trial project, and therefore that Marty had got things under control.  Then they blew the deadline, faced dismissal on limitations grounds, and Marty had back up his lies with a sworn affidavit.  Good for Judge Bunyan that he saw right through it.

  • dporpentine

    Dear Good Folks at Streetsblog: Some time when this is all over, maybe you can put together or maybe crowdsource a spreadsheet and then graphs and so forth of the number of emails–especially during the work week–that Weinshall and Hainline (especially Hainline) wrote on this. Maybe we can even come up with a reasonable estimate (based on words per minute or something?) of how long each email would’ve taken to write. I mean, public employees using their time at work to attack a project in a way that they know is meritless and therefore know to be simply a drain on city funds? Where’s the blinkin’ Post on this?

  • Anonymous

    To me it is simply too incredible to believe that Hainline, Weinshall and other NBBLers were desperately seeking information from Marty’s Chief of Staff as to whether the bike path was a “trial” or not, they never got a definite response, and then months later marty comes out with an affidavit that flatly states he was told by JSK that it was a trial, in a meeting that *predated* all the questioning about “trial” status.  If that conversation had really happened, shy didn’t Marty or his Chief of Staff tell Hainline and Weinshall earlier?

  • Brooklynite

    “Why didn’t Marty or his Chief of Staff tell Hainline and Weinshall earlier?”
    Because, most likely, Marty lied in his affidavit. He perjured himself over this bike lane. 

  • Guest

    Do the NBBLers really want discovery on this, because it should go both ways.

  • PDX

    Speaking of discovery going both ways: 

    There’s still a whole slew of emails Iris Weinshall sent via her CUNY email account between herself, her husband Sen. Chuck Schumer and her daughter Jessica Schumer, the attorney and NBBL advisor. As I recall, Streetsblog and Vaccaro agreed not to go after those emails to expedite their FOIL request. Someone else ought to FOIL those now and start that fight. It’d be interesting to see what kind of favors Schumer pulled to draw Randy Mastro into this ridiculous case. 

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