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.
