The lawsuit seeking to eradicate the Prospect Park West bike lane may be shaky and borderline-frivolous, but Jim Walden, the lawyer representing the bike lane opponents, seems to have luck on his side this week. The source of his good fortune: A front page New York Times story on Bloomberg administration pilot programs. In a letter written the same day the story was published [PDF], Walden told Brooklyn Supreme Court Judge Bert Bunyan that the piece illustrates "precisely the issue we raised during our June 22 conference with the Court."
That Wednesday, Walden was in court arguing that the Prospect Park West bike lane was installed as a trial project last summer. He has to prove to Judge Bunyan that NYC DOT presented the redesign as an interim treatment, or else the anti-bike lane lawsuit has no standing in court. There is a four-month statute of limitations on the type of complaint filed by the PPW opponents, known as an Article 78, and the plaintiffs filed suit in March 2011, eight months after the city installed the redesign. So Walden's shot at keeping the case alive hinges on convincing the judge that the city called the project a "trial," and the installation itself did not set the four-month clock ticking. (Needless to say, we are deep in the legal weeds at this point, and far from the core contention in the lawsuit, that DOT acted in an "arbitrary and capricious" manner by installing the bike lane after years of public process.)
The problem for Walden is that bike lanes are not installed on a trial basis, and from the get-go, the city has not characterized the Prospect Park West project as anything other than a permanent redesign. In a sworn affidavit [PDF], DOT bike and pedestrian director Josh Benson said he publicly corrected the perception that the bike lane was a trial project at a Community Board 6 hearing last year. Walden has asserted that his "trial" theory will be borne out by documents he obtained from Council Member Brad Lander's office through a freedom of information request. At the hearing last week, Judge Bunyan adjourned the case until July 20 to give Walden more time to review those documents.
Enter the New York Times. As luck would have it, the Times ran a story on page A1 this Monday -- "'Pilot' Label Lets Mayor's Projects Skip City Review" -- about Bloomberg administration pilot programs, giving prominent attention to DOT initiatives under commissioner Janette Sadik-Khan. Curiously, the story repeatedly referred to bike lanes to illustrate its point, even though bike lanes are all presented to community boards and receive as much public review, if not more, as they did under previous mayors and DOT commissioners. The article erroneously stated that "painting bike lanes green" is a trial program.
Later that day, Walden sent a letter to Judge Bunyan, asking for the case to be adjourned until September 7 to give him more time to submit more FOIL requests. The primary basis for his request was the New York Times story:
I write on behalf of Petitioners Seniors for Safety and Neighbors for Better Bike Lanes (collectively "Petitioners") to bring an article from today's New York Times, entitled "'Pilot' Label Lets Mayor's Projects Skip City Review" to the Court's attention. The article, a copy of which is attached, highlights precisely the issue we raised on June 22: namely, that the City frequently presents new programs and initiatives as "pilots" and "trials" in order to avoid compliance with required legal processes and public reviews and to blunt potential criticism of the projects -- only to make the projects permanent without any further review. Indeed, the article specifically notes that Respondents, "[t]he Transportation Department and its commissioner, Janette Sadik-Khan, have begun more than a dozen trial programs in recent years, like allowing pop-up sidewalk cafes or painting bike lanes green."
Lucky or not, Walden doesn't seem to be arguing from a position of strength here. The Prospect Park West redesign quite clearly did not skirt any stage of public review, with Community Board 6 having approved it in 2009, after asking the city to study a two-way protected bike lane in 2007. There's no reference in Walden's letter to any information from the piles of documents he's already obtained from DOT and Lander's office. Not even any citation in the Times story referring to the Prospect Park West project as a "pilot." He's leaning quite heavily on a misleading headline that happens to align well with his talking points, but does not reflect the actual subject of his lawsuit at all.
Below, the letter in full:
