COURT OF APPEALS

STATE OF NEW YORK

THE CITY CLUB OF NEW YORK,
ROBERT BUCHANAN, and TOM FOX,
Petitioners-Appellants-Respondents,
County of New York
Index No.: 101068/2015

- against HUDSON RIVER PARK TRUST and

PIER55, INC.,
Respondents-Respondents-Appellants.

MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR LEAVE TO APPEAL

Emery Celli Brinckerhoff & Abady LLP

600 Fifth Avenue, 10th Floor
New York, New York 10020
(212) 763-5000

TABLE OF CONTENTS
PAGE NO.
TABLE OF AUTHORITIES ............................................................................... ii-vii

QUESTIONS PRESENTED .................................................................................1

PRELIMINARY STATEMENT ...........................................................................2
BACKGROUND ...................................................................................................6
PROCEDURAL HISTORY ............................................................................... 11
JURISDICTION ................................................................................................. 12
ARGUMENT ...................................................................................................... 12
I.

THIS COURT SHOULD RESTORE THE PUBLICS VOICE

AND THE PUBLICS INTEREST IN THE INTEGRITY OF
PUBLIC PARKLAND ................................................................... 12
A.

B.
II.

The Court Should Clarify and Strengthen the Public Trust

Doctrine ................................................................................ 14
1.

All Public Parkland Is Impressed with a Public Trust 14

2.

The Alienation to PIER55 Is Unauthorized................ 18

3.

HRPT Abdicated Its Fiduciary Duty to Ensure Public

Access ......................................................................... 22

The Appellate Divisions Rigid and Unrealistic New Barrier

to Standing Must Be Rejected .............................................. 24

THE APPELLATE DIVISIONS DECISION THREATENS

FUNDAMENTAL PRINCIPLES OF ENVIRONMENTAL
REVIEW ......................................................................................... 30
A.

The Court Should Elaborate and Enforce the Reasoned

Elaboration Requirement .................................................... 31

B.

Deference to the Agency Does Not Mean Total Disregard of

Well-Supported Judicial Factfinding About What Is Likely to
Occur ..................................................................................... 34

CONCLUSION................................................................................................... 37

ii

TABLE OF AUTHORITIES

Cases
Akpan v. Koch,
75 N.Y.2d 561 (1990) ............................................................................... 32
Albert Elia Bldg. Co. v. N.Y. State Urban Dev. Corp.,
54 A.D.2d 337 (4th Dept 1976)............................................................... 26
Brooklyn Park Commrs v. Armstrong,
45 N.Y. 234 (1871) ................................................................................... 15
Citizens for Responsible Wildlife Mgmt. v. State of Wash.,
71 P.3d 644 (Wash. 2003) ........................................................................ 17
City of Long Branch v. Liu,
203 N.J. 464 (2010) .................................................................................. 16
City of Rochester v. U.S. Postal Serv.,
541 F.2d 967 (2d Cir. 1976) ............................................................... 32, 34
Friends of Van Cortlandt Park v. City of New York,
95 N.Y.2d 623 (2001) ......................................................................... 16, 19
Gould v. Greylock Preservation Commission,
215 N.E.2d 114 (Mass. 1966) ................................................................... 16
H.O.M.E.S. v. N.Y. State Urban Dev. Corp.,
69 A.D.2d 222 (4th Dept 1979)............................................................... 32
Hechter v. N.Y. Life Ins. Co.,
46 N.Y.2d 34, 39 (1978) ........................................................................... 17
Illinois Central Rail Co. v. State of Illinois,
146 U.S. 387 (1892).................................................................................. 22
In re Aug. 16, 2007 Determination of the NJEDP ex rel. Christ Church,
999 A.2d 1168 (N.J. App. Div. 2010) ...................................................... 21
Kenwell v. Lee,
261 N.Y. 113 (1933) ................................................................................. 20
iii

Long Is. Pine Barrens Socy v. Plan. Bd.,

80 N.Y.2d 500 (1992) ............................................................................... 30
Long v. Adirondack Park Agency,
76 N.Y.2d 416 (1990) ............................................................................... 37
Martin v. Waddells Lessee,
41 U.S. 367 (1842).............................................................................. 14, 17
Matter of AAA Carting & Rubbish Removal, Inc. v. Town of Southeast,
17 N.Y.3d 136 (2011) ............................................................................... 28
Matter of Assn for a Better Long Is., Inc. v. N.Y. State Dept of Envtl.
Conserv.,
23 N.Y.3d 1 (2014) ....................................................................... 24, 27, 30
Matter of Avella v. City of New York,
131 A.D.3d 77 (1st Dept 2015) ............................................................... 15
Matter of Chinese Staff & Workers Assn v. Burden,
19 N.Y.3d 922 (2012) ..................................................................... 4, 31, 32
Matter of Glick v. Harvey,
25 N.Y.3d 1175 (2015) ....................................................................... 15, 16
Matter of Gordon v. Rush,
100 N.Y.2d 236 (2003) ............................................................................. 36
Matter of Hornblower Yachts, LLC v. Harvey,
121 A.D.3d 1513 (4th Dept 2014) .......................................................... 26
Matter of Jackson v. N.Y. State Urban Dev. Corp.,
67 N.Y.2d 400 (1986) ......................................................................... 32, 36
Matter of Kick v. Regan,
110 A.D.2d 934 (3d Dept 1985).............................................................. 26
Matter of Montgomery v. Metro. Transp. Auth.,
25 Misc. 2d 1241(A), 2009 WL 4843782 (Sup. Ct. N.Y. Cnty. 2009) .... 25
Matter of Niagara Preserv. Coal., Inc. v. N.Y. Power Auth.,
121 A.D.3d 1507 (4th Dept 2014) .......................................................... 15
iv

Matter of Riverkeeper v. Planning Bd. of Town of Southeast,

9 N.Y.3d 219 (2007) ..................................................................... 32, 33, 36
Matter of Sierra Club v. Village of Painted Post,
26 N.Y.3d 301 (2015) ................................................................... 24, 28, 30
Matter of Transactive Corp. v. N.Y. State Dept of Soc. Servs.,
92 N.Y.2d 579 (1998) ......................................................................... 25, 28
N.Y. State Psych. Assn v. N.Y. State Dept of Health,
19 N.Y.3d 17 (2012) ................................................................................. 20
Oelsner v. Nassau Light & Power Co.,
134 A.D. 281 (2d Dept 1909).................................................................. 17
Owen v. Div. of State Lands, 76 P.3d 158
(Or. Ct. App. 2003) ................................................................................... 21
People v. David W.,
95 N.Y.2d 130 (2000) ............................................................................... 37
People v. Lee,
21 N.Y.3d 176 (2013) ............................................................................... 37
People v. N.Y. & Staten Island Ferry Co.,
68 N.Y. 71 (1877) ..................................................................................... 14
Saunders v. N.Y. Cent. & Hudson River R.R. Co.,
144 N.Y. 75 (1894) ................................................................................... 17
Save the Pine Bush, Inc. v. Common Council of Albany,
13 N.Y.3d 297 (2009) ............................................................................... 29
Severance v. Patterson,
370 S.W.3d 705 (Tex. 2012) .................................................................... 16
Union Square Park Cmty. Coal., Inc. v. N.Y.C. Dept of Parks & Rec.,
22 N.Y.3d 648 (2014) ................................................................... 15, 22, 23
Van Amerogen v. Donnini,
78 N.Y.2d 880 (1991) ......................................................................... 20, 21

Warder v. Bd. of Regents,

53 N.Y.2d 186 (1981) ............................................................................... 37
Williams v. Gallatin,
229 N.Y. 248 (1920) ........................................................................... 15, 19
Statutes, Rules, and Regulations
6 NYCRR 617.4............................................................................................... 30
6 NYCRR 617.7................................................................................... 30, 31, 33
6 NYCRR 617.9..................................................................................... 4, 35, 37
21 NYCRR 752.1....................................................................................... 24, 28
21 NYCRR 752.4........................................................................... 24, 25, 27, 28
CPLR 5602(a) ................................................................................................. 1, 12
N.Y. State Fin. Law 163 .................................................................................. 25
N.Y. Unconsol. Law 1644 ............................................................................... 18
N.Y. Unconsol. Law 1647 ................................................................... 18, 28, 29
N.Y. Unconsol. Law 1648 ........................................................................ passim
Other Authorities
Jeffrey A. Meyers, N.Y. State Office of Parks, Rec. & Hist. Pres., Handbook on
the Alienation and Conversion of Municipal Parkland in New York (Mar.
2012), available at http://parks.ny.gov/publications/documents
/AlienationHandbook.pdf. ........................................................................ 17
The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention,
68 Mich. L. Rev. 471, 495 (1969) ............................................................ 19

vi

QUESTIONS PRESENTED
Petitioners-Appellants-Respondents The City Club of New York (the
City Club), Robert Buchanan, and Tom Fox (collectively, Petitioners) submit
this memorandum of law in support of their motion under CPLR 5602(a) for leave
to appeal to this Court with respect to the following significant questions of law:
(1)

Does the public trust doctrine apply to state parkland?

(2)

Where a statute preserves an Estuarine Sanctuary by prohibiting

construction except within piers historic footprints, and a
later amendment allows the reconstruction of a specific pier
outside its historic footprint, does the amendment permit the
construction of an entirely new structure that is not a pier in a
different location?

(3)

To obtain judicial review of an unlawful lease of public

parkland for a project developed in secret in violation of
competitive bidding requirements between a private entity and a
public benefit corporation, must a challenger directly affected
by the project plead that he would have submitted a bid?

(4)

Does a lead agency satisfy its duty to take a hard look at the
cumulative impact of two projects under the State
Environmental Quality Review Act (SEQRA) and to provide
a reasoned elaboration of its decision if it is silent?

(5)

Can an agency rely on unsupported claims about its future

intentions to use a no action alternative that is illusory and
highly unlikely to be built to measure the incremental
environmental impact of a proposed project?

PRELIMINARY STATEMENT
This case raises core issues of statewide importance concerning the
public process and environmental review prerequisite to the privatization of public
parkland. What process is required before giving parkland away for the
development of a privately controlled entertainment venue? Can injured members
of the public meaningfully contest a deal hatched in secret to cede public parkland
to private interests? How much private control over public parkland is too much?
What environmental process is required to protect a legislatively protected
Estuarine Sanctuary? What qualifies as a hard look and a reasoned elaboration
to dispel the possibility that two related, simultaneous projects might have an
adverse cumulative environmental impact?
Media executive Barry Diller has promised to subsidize the creation
of a major new public works project through his wholly controlled non-profit
entity, but only if the project suits his tastes and only if public property is
privatized under his control. The public property in question is not a small plot of
ordinary public land, but 2.7 acres of the Hudson River Park Estuarine
Sanctuarya statutorily protected marine conservation area in New Yorks most
cherished public waterway, within view of Mr. Dillers office building in
Manhattan. The Hudson River Park Trust (HRPT) wants to lease this public
parkland to Mr. Diller for 30 years for $1 per year without soliciting any interest

from others. And, through the lease, it proposes to give him the exclusive right to
exploit three entertainment venues that he builds on that parkland, as well as to
exclude people from this public parkland largely at his discretion.
The Appellate Divisions decision upholding this arrangement dilutes
longstanding legal protections against the privatization of public parks. If left
uncorrected by this Court, the assertion that the public trust doctrine does not apply
to state parkland would make New York an outlier jurisdiction, offering less
protection than other states against the alienation of public parks to private
interests. And the failure to require unambiguous legislative authorization for this
project and the retention of meaningful public control over access to public land
would further diminish the integrity of public parkland.
The Appellate Division also concluded that Petitioners have no
standing to challenge the evasion of legislatively mandated public bidding because
they did not allege in their Article 78 Petition that they would have made a
competing bid in a bidding process that never took place. If left in place by this
Court, this rigid and unprecedented barrier to standing would prevent injured
citizens who have standing to challenge the projects environmental review process
from challenging a back-room deal to lease away public parkland.
Finally, the Appellate Divisions decision brings into stark relief two
critical questions of universal importance in applying New Yorks environmental
3

laws. First, what counts as a reasoned elaboration of a lead agencys

environmental findings? E.g., Matter of Chinese Staff & Workers Assn v. Burden,
19 N.Y.3d 922, 924 (2012). Second, what does it mean for SEQRA to require that
a proposed projects impact be evaluated against a no action alternative that is
likely to occur in the reasonably foreseeable future? 6 NYCRR 617.9(b)(5)(v)
(emphasis added). These are basic principles of environmental protection
established by the Legislature and by this Court. The decision below reads these
imperatives to require less rigorous review than SEQRA demands.
This is what exists now in the 2.7 acres of the Hudson River Park
Estuarine Sanctuary that HRPT proposes to lease away:

The rendering below shows Pier 55, the new island performance
venue with which Respondents propose to replace the now-open vista:

Here, as the lead agency, HRPT conceded that Pier 55 was a Type I
project presumptively requiring a full environmental impact statement (EIS)
under SEQRA. HRPT also conceded that a cumulative impact statement was
mandatory to account for the neighboring Pier 57 redevelopment project that will
house Googles new East Coast headquarters. Yet HRPT did not prepare an EIS or
a cumulative impact statement, claiming that no significant adverse environmental
impact was possible.
HRPT never explained, or reasonably elaborated, before issuing a
negative declaration why it did not perform a cumulative impact statement, and it
never made express findings about cumulative impact in any area of environmental
concern except one. Yet the Appellate Division concluded that the Trust
adequately considered . . . cumulative impacts, without requiring HRPT to state,
let alone elaborate on, its conclusions. If HRPTs silence constitutes a reasoned

elaboration, that term no longer has meaning, and this Courts core SEQRA
precedents have been dramatically rewritten.
To skew the environmental analysis in order to minimize potential
impacts and avoid an EIS, HRPT compared the impact of Pier 55 to the impact of
rebuilding the old Pier 54a project that the Supreme Court found illusory and
highly unlikely to occur based on ample record evidence. The Appellate
Division disregarded the Supreme Courts factual finding and credited HRPTs
unsupported, litigation-minted assertion that it would rebuild Pier 54 if it did not
rebuild Pier 55. If accepted, this conclusion would undermine the statutory
requirement that a no action alternative be likely to occur and render irrefutable a
lead agencys assertions even in the face of a trial courts contrary factual finding.
In essence, it would permit agencies to manipulate the results of environmental
analysis to avoid the EIS process.
In short, this case will set essential ground rules for judicial review of
major new privately funded projects generally, and especially of those in public
parks. The fundamental legal protections at stake in this case warrant this Courts
consideration, and the decision of the Appellate Division should be reversed.
BACKGROUND
Established in 1998 by the Legislature, the Hudson River Park (the
Park) comprises piers, water areas, and upland areas stretching along the western
6

shore of Manhattan from 59th Street to Battery Park. HRPT, a joint city-state
public benefit corporation, runs the Park. The section of the Hudson River within
the Park is designated an Estuarine Sanctuary under state lawa protected marine
habitat dedicated to research and conservation in which construction and other uses
are restricted. See N.Y. Unconsol. Law 1648.
Pier 54, located within the Park just south of 13th Street, is an historic
pier that played a central role in New Yorks maritime history. A1144, A1653.
The original plans, permits, and EIS for the Park called for Pier 54 to serve as a
working historic pier dedicated to the celebration of maritime history and the
docking of historic vessels. Instead, HRPT used Pier 54 for concerts, festivals, and
other performances on an interim basis. A164; A206-08; A1137. 1 Pier 54 was in
poor condition when the Park was founded and continued to deteriorate. A2931.
As early as 2005, HRPT obtained the necessary permits to completely rebuild Pier
54 as a flat, rectangular pier in its preexisting footprint at the termination of 13th
Street. But it never did so and instead continued to use the old Pier 54 for ten years
for performances as it deteriorated still further. A2713 20. The deck of Pier 54
was removed in 2015, leaving behind only a pile field in the water.
In November 2011, HRPT began secret negotiations with Mr. Diller
about the possibility of funding a new project to replace Pier 54 in view of his

Citations to A___ refer to the Joint Appendix filed in the Appellate Division.

office building along Route 9A. A2629 10; A2714 23. HRPT committed
$17.5 million in public funds to the Pier 55 project; Mr. Diller and his spouse,
fashion designer Diane von Furstenberg, pledged to cover the remaining costs of
Pier 55s design and construction through a private entity they control. See A2631
15. Mr. Dillers pledged contribution exceeds $140 million. A1377; A2714
23.
In the spring of 2013, Mr. Diller created Respondent PIER55, Inc.
(PIER55), a tax-exempt non-profit corporation. A1361-64; A2631 14. In the
summer of 2013, the Legislature amended the Hudson River Park Act (the Act)
at HRPTs behest to authorize the reconstruction of Pier 54 outside of its historic
footprint. N.Y. Unconsol. Law 1648(3)(e). HRPT did not disclose its welldeveloped, grand plans for a new Pier 55 or Mr. Dillers recently created PIER55
entity, or even his involvement in the project, to the Legislature when it obtained
this amendment. Instead, HRPT told legislators that it wanted to rebuild Pier 54 at
its previous location in a somewhat shorter, wider configuration to bring attendees
closer to the stage or screen and to facilitate emergency evacuation. A2888-89
13-14.
After the legislation was enacted, HRPT announced Pier 55 in
November 2014. It released an Environmental Assessment Form (EAF), A16261934, and a proposed lease between HRPT and PIER55 (the Lease), A13478

1511.1. Notably, Pier 55 would be to the north of Pier 54, located between Piers
54 and 56, overlapping minimally with each and almost totally outside the Pier 54
footprint. A1653 fig. A-2. It would have an undulating surface platform rising as
high as 62 feet, or approximately seven stories. A1629. It would feature three
performance spaces and would accommodate about 5,000 people for performances.
A1665-67; A2681-82 15. The structures main platform would be supported by
547 piles driven into the riverbed, many of them hollow and filled with concrete.
A1797. It would eliminate the embayment, or protected section of navigable
water, between the Pier 54 and Pier 56 pile fields. A1797.
The Lease conveys the parkland to PIER55 for a maximum term of 30
years in exchange for $1 in annual rent. A1374-77. It allows PIER55 to host
cultural events at Pier 55, 51 percent of which must be free or low-cost, and the
other 49 percent of which are subject to market pricing determined by PIER55 in
its sole discretion. A1385 9.03. It also allows PIER55 to close the venue when it
deems it reasonable for set-up and breakdown of events and for maintenance, to
operate a private security force to control public access, and to stage four exclusive
fundraisers annually. A1381 7.01; A1382 9.01(a); A1388 9.10; A3067.
The Lease provides that PIER55 shall own and retain the exclusive
rights under copyright and all other intellectual property rights (with the free right
to assign and/or license the same) in and to all performances at Pier 55. A1371.
9

The Lease gives naming rights to PIER55 in perpetuity. A1377-78 4.01. The
Lease also grants PIER55 the right to control the space, control all vendors, and
maintain private security. A1381 7.01, A1382-84 9.01, A1391 9.12.
In the EAF, HRPT analyzed Pier 55s potential environmental impact
by comparing it to a baseline no action condition: the reconstruction of a flat,
rectangular Pier 54 in its preexisting footprint, as approved in 2005 (the 2005
Design). HRPT issued a negative declaration of environmental significance,
characterizing Pier 55 as having no possibility of any significant adverse
environmental impact when compared to the 2005 Design for the reconstruction of
Pier 54. HRPT did not prepare an EIS. HRPTs Board of Directors ratified this
conclusion and approved the Lease on February 11, 2015. A1176-88.
In December 2015, HRPT released to the public new documents
concerning its planned redevelopment of Pier 57, which is located just upriver
from the Pier 55 site with a planned connector between the two. HRPT is
renovating the existing Pier 57 structure into a major 480,000-square-foot office
and retail complex, with Googles new East Coast headquarters anchoring the
project. HRPT is redeveloping Pier 57 at the same time it plans to build Pier 55,
and the 2013 Amendment to the Hudson River Park Act referenced both the Pier
54 reconstruction and the Pier 57 redevelopment project. A1029-30; A1036.

10

PROCEDURAL HISTORY
Petitioners initiated a hybrid Article 78 and plenary action in the
Supreme Court of New York County (Lobis, J.), challenging the Pier 55 project.
The Supreme Court denied expedited discovery on November 20, 2015, A58-72
(Tab 2); denied Petitioners leave to file supplemental briefing regarding the
cumulative impact of the Pier 55 and Pier 57 projects on March 31, 2016, A82
(Tab 3); and granted Respondents motion for partial summary judgment and
dismissed the Article 78 petition with prejudice on April 4, 2016, A9-49 (Tab 4).
Petitioners appealed all three decisions to the Appellate Division, First
Department. A1-7. Respondents cross-appealed Justice Lobiss finding that the
reconstruction of Pier 54 using the 2005 Design was an illusory project that was
highly unlikely to occur. A7.6.
When construction on Pier 55 was imminent, Petitioners moved the
First Department for a preliminary injunction against construction pending appeal.
The First Department granted the preliminary injunction on June 30, 2016. See
Tab 5. On Respondents motion, the First Department then modified the
preliminary injunction on July 18, 2016 to allow Respondents to drive nine piles.
See Tab 6. On September 8, 2016, less than 48 hours after oral argument, the First
Department issued a Decision and Order affirming Justice Lobiss April 4 merits
decision dismissing the Article 78 petition and granting summary judgment to

11

Respondents. See Tab 7 (9/8 Decision). The First Departments September 8

decision was served with a notice of entry on September 9. See Tab 8. This
motion for leave to appeal timely follows.
JURISDICTION
The Appellate Division, First Department, finally determined this
action in its entirety when it issued an order affirming the Supreme Courts
dismissal of the Article 78 petition and grant of summary judgment dismissing
Petitioners claim pursuant to the public trust doctrine. This Court has jurisdiction
over this motion under CPLR 5602(a).
ARGUMENT
I.

THIS COURT SHOULD RESTORE THE PUBLICS VOICE AND

THE PUBLICS INTEREST IN THE INTEGRITY OF PUBLIC
PARKLAND
The Lease between HRPT and PIER55 constitutes a near-total

privatization of 2.7 acres of a public Estuarine Sanctuary in the Hudson River for
three decades.
The Lease conveys public property, as well as any improvements and
the rights of ingress and egress, to PIER55 in consideration for $1 in annual rent,
with the expectation that the lessees improvements will revert to the lessor at the
termination of the Lease. A1374-75 2.01; A1376-77 3.01. Its maximum term
is 30 years. A1376 2.02. PIER55 shall have the sole artistic and programming
12

control and sole administrative and operating control over all events at Pier 55
except HRPT fundraisers. A1386 9.08. No other program or event of any kind
(presumably including rallies or any other type of political or public gathering)
may occur at Pier 55 without PIER55s consent. A1387 9.08 (emphasis added).
Under the Lease, PIER55 has the right to 95% of all simultaneous
broadcasting revenues from events held at Pier 55, and it has the exclusive right to
royalties from any works it commissions or performances at the pier. A1379
4.03. PIER55 shall own and retain the exclusive rights under copyright and all
other intellectual property rights (with the free right to assign and/or license the
same) in and to all performances at Pier 55. 2 A1371; A1387 9.08 ([N]othing
in this Lease shall limit . . . commercial exploitation of any productions, works,
property, or rights of Tenant (either through creation of a commercial subsidiary or
by entering into licensing or royalty arrangements, investment arrangements, joint
ventures or other means) . . . .). The Lease also grants naming rights to PIER55 in
perpetuity. A1377-78 4.01.
In other words, the Lease is a complex commercial ground lease
between two sophisticated partiesa public agency and a private entity
negotiated at arms length, from which each party derives value. The unusual
features of the transaction include the low rent and the fact that PIER55s founder
2

PIER55 cannot profit from those rights, but it can freely license them to other entities that can
profit, including Dillers media content firm IAC/InterActive Corp. A1371.
13

has agreed to make a tax-deductible $140 million contribution to it in a collateral

pledge agreement.
This arrangement violates the public trust doctrine. The Appellate
Division opined that the doctrine does not apply to state parkland, while avoiding
the issue by concluding that the doctrine could not be not violated because Pier 55
would be open to the public most of the time. 9/8 Decision at 5. But the
Legislature never envisioned, never considered, and never approved this sort of
alienation to PIER55. This Court should take the opportunity to confirm the public
trust doctrines scope and restore its integrity.
A.

The Court Should Clarify and Strengthen the Public Trust

Doctrine
1.

All Public Parkland Is Impressed with a Public Trust

The public trust doctrine derives from the common law principle that
the sovereign held title to public lands in trust for the people. See, e.g., Martin v.
Waddells Lessee, 41 U.S. 367, 407-11 (1842). Because the people are the
beneficiaries of lands held in trust by the government, the government may only
alienate public lands or otherwise modify the terms of the trust with the peoples
consent, as expressed by an act of the peoples elected representatives in the
Legislature. See People v. N.Y. & Staten Island Ferry Co., 68 N.Y. 71, 76-79
(1877).

14

This Court has enforced the doctrine in cases concerning parkland for
at least a century and a half, see Williams v. Gallatin, 229 N.Y. 248 (1920);
Brooklyn Park Commrs v. Armstrong, 45 N.Y. 234, 243 (1871), and has
consistently reaffirmed the doctrine in recent years, see, e.g., Matter of Glick v.
Harvey, 25 N.Y.3d 1175, 1180 (2015); Union Square Park Cmty. Coal., Inc. v.
N.Y.C. Dept of Parks & Rec., 22 N.Y.3d 648, 654 (2014).3
The decision below marks the second time that the Appellate Division
has noted the absence of authority applying the public trust doctrine to state
parkland, without actually deciding whether the doctrine so applies. 9/8 Decision
at 4; accord Matter of Niagara Preserv. Coal., Inc. v. N.Y. Power Auth., 121
A.D.3d 1507, 1511 (4th Dept 2014), lv. denied, 25 N.Y.3d 902 (2015). The
Appellate Divisions repeated observations about the existing state of the law risk
becoming a self-fulfillingand badly erroneousprophecy. The public trust
doctrine does and should apply to state parkland. As privately funded public
spaces and controversies about the privatization of public land become all the more
common, see, e.g., Glick, 25 N.Y.3d 1175; Union Square, 22 N.Y.3d 648; Avella,
131 A.D.3d 77, this Court should take the opportunity to clarify the scope of the
public trust doctrine and correct the Appellate Divisions misconception.
3

The Court will soon hear another public trust doctrine case concerning the construction of a
commercial shopping mall in Flushing Meadows-Corona Park. See Matter of Avella v. City of
New York, 131 A.D.3d 77 (1st Dept), lv. granted, 26 N.Y.3d 912 (2015) (argument not currently
scheduled).
15

This Courts controlling decisions draw no distinction between state

and municipal parkland in articulating the public trust doctrine, but instead speak
in general terms applicable to all levels of government. See, e.g., Glick, 25 N.Y.3d
at 1180 (Under the public trust doctrine, a land owner cannot alienate land that
has been impliedly dedicated to a public use without obtaining the approval of the
legislature.); Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623,
631-32 (2001) ([O]ur law is well settled: dedicated park areas in New York are
impressed with a public trust for the benefit of the people of the State. (emphasis
added)). The absence of any case expressly deciding whether the doctrine applies
to state parkland most likely means that the issue has simply not been litigated.
The public trust doctrine is a common law doctrine, and courts
throughout the country, including the Supreme Court of the United States, have
confirmed that it applies to state-owned land. For instance, in Gould v. Greylock
Preservation Commission, 215 N.E.2d 114 (Mass. 1966), the Massachusetts
Supreme Court held that a lease to create a ski resort on state parkland was invalid
because it lacked sufficiently clear authorization under the public trust doctrine. In
the analogous context of state-owned beachland between the high and low water
lines, courts have widely concluded that the state holds the wet beach in trust for
the public. See, e.g., Severance v. Patterson, 370 S.W.3d 705, 715-17 (Tex. 2012);
City of Long Branch v. Liu, 203 N.J. 464 (2010); Citizens for Responsible Wildlife
16

Mgmt. v. State of Wash., 71 P.3d 644 (Wash. 2003); see also Oelsner v. Nassau
Light & Power Co., 134 A.D. 281 (2d Dept 1909) (public trust limitations on wet
beach remained in place even when state no longer held title to land). This broad
understanding of the doctrines scope is consistent with its historic application to
the states. See, e.g., Martin, 41 U.S. 367; Saunders v. N.Y. Cent. & Hudson River
R.R. Co., 144 N.Y. 75 (1894).
While Respondents may claim that state parkland is governed by
statutory law alone,4 it is a fundamental principle of statutory interpretation that
clear and specific legislative intent is required to override the common law.
Hechter v. N.Y. Life Ins. Co., 46 N.Y.2d 34, 39 (1978). Petitioners are unaware of
any statute that manifests the Legislatures specific intention to override the public
trust doctrine for state parkland.
And the legislation at issue in this casethe Hudson River Park
Actspecifically manifests the Legislatures intent to incorporate the public trust
doctrine into the 1998 creation of the Park. In two places, the Act closely follows
this Courts articulation of the doctrine: (1) No part of the real property in the
4

Petitioners are aware of only one authority supporting this proposition: a handbook written by
a staff member at a state agency asserting that state parkland is governed solely by state statute
and not by the common law. See Jeffrey A. Meyers, N.Y. State Office of Parks, Rec. & Hist.
Pres., Handbook on the Alienation and Conversion of Municipal Parkland in New York 20 (Mar.
2012), available at http://parks.ny.gov/publications/documents/AlienationHandbook.pdf. But
this handbook is merely unofficial guidance; by its own terms, it does not purport to be an
agencys interpretation of a statute, and it is entitled to no deference. See id. at 6.
17

park may be alienated, sold or otherwise disposed of . . . other than by act of the
legislature, N.Y. Unconsol. Law 1647(3)(c); and (2) Except as specifically
provided herein, real property subject to this act shall not be . . . used for other than
permitted uses as provided in this act, id. 1644.
What started out as a two-sentence observation in dicta about the
existing state of the law in the Fourth Departments decision in Niagara threatens
to become conventional wisdom. If the assertion that the public trust doctrine
excludes state-owned parkland is allowed to stand uncorrected, New York would
become an outlier jurisdiction. This Court should confirm that the public trust
doctrine applies to all parkland held in trust for the people, including by the state.
2.

The Alienation to PIER55 Is Unauthorized

Correctly applied here, the public trust doctrine forbids the proposed
project because it violates statutory limitations that fundamentally define the
character of the Hudson River Park Estuarine Sanctuary. The Act generally limits
construction in the Estuarine Sanctuary, restricts this area to water dependent
uses, and prohibits driving any new piles in the Estuarine Sanctuary except to
maintain or reconstruct preexisting piers within their historic footprints. See
N.Y. Unconsol. Law 1648(3). The amendment enacted by the Legislature in
2013 creates an exception to these generally applicable limitations, providing that:
[P]ier 54 may be reconstructed outside of its historic
footprint provided that the length of such pier does not
18

exceed 700 feet and the total square footage of such

reconstructed pier, including any adjacent platform areas
or access ways, does not exceed 150,000 square feet and
provided further that such reconstruction complies with
all applicable federal, state and local laws and provided
further that the historic elements from the White Star
Line, including the iron arch, must be incorporated in any
reconstruction/redesign.
Id. 1648(3)(e).
The Appellate Division reasoned that the Legislature authorized an
entirely new, redesigned structure in a different location by using the words
reconstruction and redesign when it amended the statute. 9/8 Decision at 4.
This interpretation of the Act, even if arguable, violates basic principles of law by
failing to require the Legislatures unambiguous authorization of this project.
First, the public trust doctrine demands explicit legislative
authorization. See Friends of Van Cortlandt Park, 95 N.Y.2d at 629-30; Williams,
229 N.Y. at 253-54 (authority must be plainly conferred). This requirement
serves the public interest. It ensures that the public is aware when its land is being
alienated, thereby guarding against the possibility that the Legislature might yield
to an intensive lobbying effort to relinquish public parkland covertly. See Joseph
L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 471, 495 (1969). And it prevents the possibility
that an alienation might occur not because the Legislature intended it, but because
a lapse in drafting created an ambiguity that a court later misconstrued.
19

Second, regardless of whether the public trust doctrine even applies,

subsequently enacted exceptions in the form of amendments to generally
applicable statutory provisions must be construed strictly. See Van Amerogen v.
Donnini, 78 N.Y.2d 880, 882 (1991); Kenwell v. Lee, 261 N.Y. 113, 117 (1933).
An after-the-fact exception may properly be extended only so far as the language
of the exception fairly warrants, and all doubts should be resolved in favor of the
general provision rather than the exception. Van Amerogen, 78 N.Y.2d at 882
(internal quotation marks and citations omitted).
The Appellate Divisions interpretation of the statute pays no heed to
its structure or context. See N.Y. State Psych. Assn v. N.Y. State Dept of Health,
19 N.Y.3d 17, 23-24 (2012). The fundamental purpose of section 8 of the Act is to
safeguard the Estuarine Sanctuary, an important habitat for many marine and
estuarine species including striped bass. N.Y. Unconsol. Law 1648(1). It
accomplishes this purpose by prohibiting construction, except for routine
maintenance work or reconstruct[ion] and repair of piers within their historic
footprints or boundaries. Id. 1648(3)(b) (emphasis added). The 2013
amendment creates a narrow exception to this exception for the reconstruction of
Pier 54 outside of its historic footprint provided that the length of such pier does
not exceed 700 feet and the total square footage . . . does not exceed 150,000
square feet. Id. 1648(3)(e) (emphasis added). The natural, contextual meaning
20

of the exception set forth in the 2013 amendment is to allow a somewhat enlarged
Pier 54 to be reconstructed at its previous locationthe location being what makes
it Pier 54 rather than Pier 55. See id. The general rule against building new
structures in the Estuarine Sanctuary remains fully intact and must be diligently
enforced. See Van Amerogen, 78 N.Y.2d at 882.
Especially in this context, the use of the words reconstruction and
redesign hardly provide clear authorization for Pier 55. Construing this language
to authorize an entirely new, freestanding seven-story island in a new location
contorts the statutes meaning beyond its plain text. A new structure is not a
reconstruction of an old one unless it has material similarities or meaningful ties to
the old structure. See In re Aug. 16, 2007 Determination of the NJEDP ex rel.
Christ Church, 999 A.2d 1168, 1178-79 (N.J. App. Div. 2010); Owen v. Div. of
State Lands, 76 P.3d 158, 162 (Or. Ct. App. 2003).
Indeed, the Legislature could not have expressly authorized this
project because it knew nothing about it. HRPT concealed the Pier 55 design, Mr.
Dillers involvement, and the planned alienation to PIER55 when it lobbied the
Legislature to pass the amendment, claiming instead that it needed to build a
shorter, wider version of Pier 54 to facilitate emergency evacuation and bring event
attendees closer to the stage. See A2887-89.

21

3.

HRPT Abdicated Its Fiduciary Duty to Ensure Public

Access

In addition, the Appellate Division misapplied this Courts precedent

in concluding that the public trust doctrine is not violated because most of Pier 55
is open to the public most of the time. 9/8 Decision at 5. The relevant question
is not just the amount of time that public parkland is accessible to the public, but
the degree of control that the private entity exercises over access. Two years ago,
in Union Square Community Coalition, this Court relied upon the degree of control
exercised by the City over the operations of a private restaurant in a public park to
conclude that a freely revocable licenseas opposed to a 30-year leasedid not
violate the public trust doctrine. See 22 N.Y.3d at 657. The Court explained that
the City retained extensive control over the daily operations of the restaurant,
including pricing, hours of operation, and menu items, id. at 652-53 (emphasis
added), and relied on these facts to conclude that there was no impermissible
alienation of public parkland, see id. at 657.
This approach is consistent with foundational public trust doctrine
cases. In Illinois Central Rail Co. v. State of Illinois, 146 U.S. 387 (1892), for
example, the Supreme Court of the United States concluded that the abdication of
the general control of the state over lands under the navigable waters of an entire
harbor or bay, or of a sea or lake . . . is not consistent with the exercise of that trust

22

which requires the government of the state to preserve such waters for the use of
the public. Id. at 452-53.
The Appellate Division misconstrued and weakened the public trust
doctrine by relying solely on the fact that most of Pier 55 will be open for passive
recreation on most days. 9/8 Decision at 5. But far more relevant is HRPTs
abandonment of control over public access to an entire public park structure to
PIER55s discretionary determinations about concessions, access, activities, and
pricing. A3067-68. PIER55 can charge market prices for comparable events for
49 percent of the events that occur at PIER55 each year, and PIER55 and HRPT
can hold six fundraising events annually. 5 A3067, A1388 9.10. PIER55 can also
exclude the public from the entire structure while it sets up for and cleans up from
events, to the extent it deems reasonable, and it can also bar the public from Pier
55 during maintenance and repairs or for security purposes. A1382-83 9.01(a),
(c). And PIER55 has sole discretion to prevent anyone except it and HRPT from
holding events, programs, or public gatherings of any kind. A1396 9.17; see
A1387 9.08.

It is entirely unclear how PIER55 would define a comparable event, and there are no
meaningful constraints on its ability to charge inaccessibly high prices. In fact, PIER55 has
unfettered discretion to make the majority of events that occur each year at Pier 55 unaffordable
to almost all of the general public. See A1385 9.03 (49% market price); A1386 9.06
(exclusive annual fundraisers in addition).
23

B.

The Appellate Divisions Rigid and Unrealistic New Barrier to

Standing Must Be Rejected
In concluding that Petitioners cannot challenge HRPTs exclusive

dealing with Mr. Diller, the Appellate Division created a new barrier to standing: A
member of the public who wants to challenge an unlawful lease of public land
without a mandatory public bidding process must allege under penalty of perjury
that he or she would have submitted a plausible competing bid in the nonexistent
process.6 Neither logic nor precedent supports this novel rule. Such a rigid barrier
to standing is especially inappropriate given this Courts recent emphasis on the
principle that standing must not be applied in a heavy-handed manner to foreclose
meaningful judicial review. See Matter of Sierra Club v. Village of Painted Post,
26 N.Y.3d 301, 311 (2015); Matter of Assn for a Better Long Is., Inc. v. N.Y. State
Dept of Envtl. Conserv., 23 N.Y.3d 1, 6-7 (2014).
HRPTs regulations provide that it shall issue a bid prospectus for
any proposed lease of property under its jurisdiction involving a capital
expenditure in excess of $1 million over the term of the agreement. 21 NYCRR
752.4(a) (emphasis added); see also id. 752.1 (using the term capital
expenditure interchangeably with capital investment). There is no question that
the Lease between HRPT and PIER55 is a lease involving real property in the
Park. A1347-1511. There is no question that it involves a capital expenditure of
6

The allegations in an Article 78 petition must be verified. See CPLR 3020(a), 7804(d).
24

far more than $1 million. A1363. And there is no question that HRPT did not
issue a bid prospectus, as is plainly required. See 21 NYCRR 752.4(a).
Yet, the Appellate Division held that Petitioners lack standing to
challenge HRPTs plain violation of the law because Petitioners never alleged
before the Article 78 court that they had the wherewithal to submit a plausible
competing bid or that, having suitable resources and expertise, they would have
done so. 9/8 Decision at 3. To Petitioners knowledge, no other New York court
has ever so held. This Court should not countenance such a rule, especially where
the bidding laws invoked by Petitioners are designed to protect not only the public
fisc, but also the publics interest in the sanctity of public parkland.
The usual rule under the states general public bidding statute, N.Y.
State Fin. Law 163, is that only an unsuccessful bidder can challenge the
outcome of a bidding process that actually happened. See, e.g., Matter of
Transactive Corp. v. N.Y. State Dept of Soc. Servs., 92 N.Y.2d 579, 587 (1998)
(relied upon by the Appellate Division); Matter of Montgomery v. Metro. Transp.
Auth., 25 Misc. 2d 1241(A), 2009 WL 4843782, at *4 (Sup. Ct. N.Y. Cnty. 2009)
(also relied upon by the Appellate Division). Here, however, the question is who
can challenge an agencys unlawful failure to hold any bidding process at all.
Some courts have logically concluded that a person who would have
submitted a bid has standing to challenge the failure to issue a request for
25

proposals (RFP). See Matter of Hornblower Yachts, LLC v. Harvey, 121 A.D.3d
1513 (4th Dept 2014); Matter of Kick v. Regan, 110 A.D.2d 934, 935-36 (3d
Dept 1985); Albert Elia Bldg. Co. v. N.Y. State Urban Dev. Corp., 54 A.D.2d 337,
342 (4th Dept 1976). But no court, until the Appellate Division below, has
concluded the inverse: there can never be standing unless the challenger alleges in
its Article 78 petition that it would have responded to a hypothetical RFP.
The circumstances of this case demonstrate why such a rigid rule is
unworkable, contrary to this Courts precedent, and worthy of review and
rejection. According to the Appellate Division, Petitioners should have alleged
that they would have bid because the record contains a detailed statement of the
Pier 55 project, with project costs and the amounts to be contributed by PIER55s
philanthropic principals. 9/8 Decision at 3. The record does indeed contain that
information.
But the record also clearly demonstrates that all of this was dictated by
Diller before the lease was finalized, not ex ante by HRPT. See A1362 (statement
in Lease that PIER55 and HRPT have developed the Concept Design . . . for the
redevelopment of the Premises). HRPT initially approached Diller to discuss a
potential donation to support [the] redevelopment of Pier 54. A2629 10. It was
Diller who decided that the new pier should offer . . . a first-rate design with the
topography, shape, and atmosphere conducive to the publics enjoyment of the
26

Hudson River and a first-rate public performance space with high-quality

programming. A2630 12. It was Diller who suggested that prominent architects
become involved in the design. A2630 12. And it was Diller who created
PIER55. A2630-31 13-14. In short, it was the private party, not the public
agency, that originally conceived of and drove the projects basic elements: the
aesthetic, the location, the facilities, the name, the financial structureand the
price tag.
No one can possibly know what an RFP would have said if HRPT had
issued it before reaching the deal with Diller, as required by law. See 21 NYCRR
752.4(a). Petitioners cannot be expected to swear under oath that they would
have bid in response. Bid on what, exactly? Under the Appellate Divisions new
rule, the more flagrantly an agency violates the requirement to solicit bids from the
public, the more easily it will be able to shield its unlawful action from judicial
scrutiny. Cf. Assn for a Better Long Is., 23 N.Y.3d at 6 ([W]e have been
reluctant to apply [standing] principles in an overly restrictive manner where the
result would be to completely shield a particular action from judicial review.)
(citation omitted)). By concealing the relevant details of a project before
announcing it, and by responding to the tastes of a favored private interest in
shaping the project behind closed doors, an agency can prevent potential

27

challengers from discerning what an RFP would have said if it had been issued
before the private deal was hatched.
Under this Courts precedent, the correct approach to standing is not
to demand a response to a hypothetical RFP, but to ask whether Petitioners fall
within the zone of interests protected by HRPTs bidding regulations. See Sierra
Club, 26 N.Y.3d at 309-10; Transactive Corp., 92 N.Y.2d at 587. The Appellate
Division never did so. If it had, it would have concluded that Petitioners suffer
injury to interests protected by the law they invoke.
Public bidding generally protects the public fisc and prevents the
imprudent or fraudulent allocation of public funds to favored insiders. See Matter
of AAA Carting & Rubbish Removal, Inc. v. Town of Southeast, 17 N.Y.3d 136,
142-43 (2011). But HRPTs bidding regulations also serve other important
purposes. They pertain specifically to leases of real propertythat is, to the
alienation of public parkland to private interests. See 21 NYCRR 752.1, 752.4.
The Act limits HRPTs ability to lease away public property and commands it to
require a bid prospectus for any lease involving a capital investment in excess of
$1 million. See N.Y. Unconsol. Law 1647(11). The Act also requires the
regulations to provide that any bid prospectus be given to Community Boards One,
Two, and Four within Manhattan. Id. In other words, the purpose of HRPTs
bidding regulations, as set forth in the Act, is to regulate HRPTs ability to lease
28

away public parkland and to require public input before it does so. See id. Such
public input not only encourages the prudent use of public resources, but also
fosters debate and discussion about the best possible use of the parkland at issue.
It encourages HRPT to consider, and thereby learn from, the ideas offered by
others, even though HRPT has discretion to reject alternative proposals. See id.
Petitioners fall within the zone of interests protected by this law, for
the same reasons that they unquestionably have standing to challenge the Pier 55
project as a whole. See A23-28 (Supreme Court determination that Petitioners
have standing under SEQRA). Most notably, Robert Buchanan regularly sails and
rows on the very property that HRPT proposes to lease away to PIER55 to build a
new structure. See A24-25. And Tom Fox has a long history of knowledge of,
involvement with and concern about the park which differentiates him from
members of the general public. A26. Both are members of the City Club, whose
mission focuses on protecting public parks from private development. See A2628; see also Save the Pine Bush, Inc. v. Common Council of Albany, 13 N.Y.3d
297, 304-06 (2009) (organizational standing for group whose members visited
affected site to watch butterflies).
This Court should grant leave to appeal to ensure that standing is not
used as an obstacle to judicial review of plainly unlawful official action, but is
instead extended to all persons who suffer a distinctive injury within the zone of
29

interests protected by the law at issue. See Sierra Club, 26 N.Y.3d at 309-11;
Assn for a Better Long Is., 23 N.Y.3d at 6-7.
II.

THE APPELLATE DIVISIONS DECISION THREATENS

FUNDAMENTAL PRINCIPLES OF ENVIRONMENTAL REVIEW
HRPT has conceded that Pier 55 and the connected, adjacent

redevelopment of Pier 57 are related, simultaneous actions within the same overall
plan of development, requiring a cumulative impact statement. See 6 NYCRR
617.7(c)(2)(i); Long Is. Pine Barrens Socy v. Plan. Bd., 80 N.Y.2d 500, 512-15
(1992); Joint Brief for Respondents-Respondents-Appellants 30-33 (not disputing
on appeal that analysis of cumulative impact was required).
HRPT has also acknowledged what is obvious to any casual observer:
Pier 55 will have a significant adverse environmental impact when compared to the
open water that now exists. See A1828 tbl. G-4. Any project with the potential for
a significant adverse environmental impact requires an EIS. See 6 NYCRR
617.7(a). HRPT also acknowledges that Pier 55 is a Type I action,
presumptively requiring an EIS. See id 617.4(a); A1650.
Yet, HRPT never prepared a cumulative impact statement or an EIS.
HRPT evaded these core requirements with two unexplained and unsupported
assertions. First, HRPT claimed to have silently studied the cumulative impact of
Piers 55 and 57 merely by noting the future existence of a redeveloped Pier 57.

30

The Appellate Division held that HRPTs silence was enough and that HRPT
adequately considered cumulative impact despite saying nothing about it in any
area of environmental concern except one. 9/8 Decision at 2. This conclusion
eviscerates SEQRAs requirements that a lead agency provide a reasoned
elaboration for its conclusions after taking a hard look at the relevant issues.
See, e.g., Chinese Staff & Workers Assn, 19 N.Y.3d at 924.
Second, HRPT claimed that it would rebuild Pier 54 if it did not build
Pier 55despite a host of evidence to the contrary, which the Supreme Court
credited when it found the reconstruction of Pier 54 to be highly unlikely and
illusory. A30. The Appellate Division abandoned this carefully reasoned
judicial factfinding in favor of total deference to the agencys unsupported and
litigation-minted assertion of what it was likely to do. See 9/8 Decision at 2. If
allowed to stand, this approach would undermine SEQRAs requirement that
environmental impacts be measured against the likely future without the proposed
project. See 6 NYCRR 617.7(a).
A.

The Court Should Elaborate and Enforce the Reasoned

Elaboration Requirement
The phrase reasoned elaboration originates in a Second Circuit

decision applying federal environmental law. The U.S. Postal Service concluded
that the construction of a new postal facility would not substantially affect the
environment, based upon an environmental assessment that only analyzed some of
31

the relevant factors. See City of Rochester v. U.S. Postal Serv., 541 F.2d 967, 973
(2d Cir. 1976). The Second Circuit held that, because this assessment failed to
discuss relevant factors, it falls short of the type of reasoned elaboration which
must be required to support an administrative determination of non-substantiality.
Id. The Fourth Department then incorporated the phrase into SEQRA decisions.
See, e.g., H.O.M.E.S. v. N.Y. State Urban Dev. Corp., 69 A.D.2d 222, 232 (4th
Dept 1979). Since this Courts decision in Matter of Jackson v. N.Y. State Urban
Dev. Corp., 67 N.Y.2d 400 (1986), the reasoned elaboration requirement has
become a familiar feature of state environmental law.
This Court has often noted that SEQRA demands a reasoned
elaboration of the lead agencys conclusions. See, e.g., Chinese Staff & Workers
Assn, 19 N.Y.3d at 924; Matter of Riverkeeper v. Planning Bd. of Town of
Southeast, 9 N.Y.3d 219, 232-33 (2007); Akpan v. Koch, 75 N.Y.2d 561, 571
(1990). But the Court has never elaborated on what a reasoned elaboration is, or
otherwise taken action to ensure that the reasoned elaboration requirement is
given force and meaning.
The Pier 55 EAF discusses the cumulative impacts of Piers 55 and 57
in only one area of environmental concern: the effect of pile-driving on marine
habitat. See A1774-75. While the EAF mentions Pier 57 in a few other places, it
says nothing at all about other cumulative impacts associated with construction, or,
32

more importantly, about the cumulative impacts of noise, traffic (whether highway,
bicycle, and/or pedestrian), and crowding when these two major projects are
completed. HRPT offers only silence to support its conclusion that there is no
possibility of any significant adverse cumulative environmental impact. 7 See 6
NYCRR 617.7(c)(2)(i).
The Appellate Division entirely ignored the reasoned elaboration
requirement in concluding that HRPT adequately studied cumulative impact. See
9/8 Decision at 2. A court engaged in judicial review cannot know whether a lead
agencys analysis is adequate unless the agency makes a record of its findings and
its reasoning. That is the point of demanding a reasoned elaboration: to ensure
that the agencys own reasons for its negative declaration, at the time it issued the
negative declaration, were sufficient. See Riverkeeper, 9 N.Y.3d at 232.
Here, HRPT made no record at all of its findings about cumulative
impact in the EAF in any domain but one. This case mirrors the Second Circuit
case that gave rise to the term reasoned elaboration in the first place: HRPT
reached the conclusion that Piers 55 and 57 would have no cumulative impact
7

In its briefing to the Appellate Division, HRPT offered the after-the-fact excuse that it did not
need to discuss cumulative impact in any other area of concern because it was clear Pier 55
would have no adverse impact compared to rebuilding Pier 54, so it by definition could not
produce any cumulative impact in conjunction with Pier 55. See Joint Brief for RespondentsRespondents-Appellants at 31. This assertion was obviously false. For instance, with respect to
noise, the EAF states that Pier 55 will have a moderate adverse noise impact when compared to
rebuilding Pier 54. See A1830 tbl. G-6. Because Pier 55 is considerably closer to Pier 57 than
the old Pier 54 was, it will also have different effects than Pier 54 would have had on views,
crowding, and traffic in conjunction with Pier 57.
33

while only making findings about one of the relevant areas of environmental
concern. See City of Rochester, 541 F.2d at 973.
Simply put, if this Court upholds the conclusion that HRPT provided a
reasoned elaboration of its findings about cumulative impact, then that term no
longer has meaning.
B.

Deference to the Agency Does Not Mean Total Disregard of WellSupported Judicial Factfinding About What Is Likely to Occur
The Appellate Divisions decision gives any lead agency free license

to avoid an EIS by measuring the impact of a proposed project against a fictitious

baseline, based upon the bare assertion in an EAF and in subsequent litigation that
it is likely to undertake an alternative project in the future.
Had HRPT measured Pier 55s environmental impact against a
baseline of open water, an EIS unquestionably would have been required. See
A1828 tbl. G-4. HRPT instead avoided an EISand the participatory public
scoping process that would accompany itby measuring Pier 55s environmental
impact against a no action alternative involving the reconstruction of Pier 54 in
its preexisting form as a flat, rectangular pier. This practice is known as the netincrement methodologymeasuring a new project against a baseline of
previously permitted development. But even though it is previously permitted, to
serve as a valid no action alternative under SEQRA, the reconstruction of Pier 54
must still be likely to occur in the reasonably foreseeable future. 6 NYCRR
34

 617.9(b)(5)(v); see Joint Brief for Respondents-Respondents-Appellants at 23

(conceding as much on appeal).
The EAF never explained why it was reasonable to assume that HRPT
would rebuild Pier 54 in the future, and it provided no evidence to support the
claim that HRPT would rebuild Pier 54. See A1671-72. During the litigation in
the Supreme Court, HRPT introduced the written testimony of its CEO, who
conclusorily averred that HRPT has the resources and intent to rebuild Pier 54 in
its preexisting form if it does not build Pier 55. A2728 71.
Here, based upon a careful and detailed analysis, the Supreme Court
made a factual finding that HRPT would be highly unlikely to rebuild Pier 54 if
it did not build Pier 55. A27-30. The Supreme Court did not simply take HRPTs
unsupported assertions at face value, but examined the record evidence and
reached the inescapable conclusion that HRPT was not in fact likely to rebuild Pier
54. The Supreme Court relied upon a range of evidence in the record to conclude
that the putative reconstruction of Pier 54 was illusory. These included Pier 54s
many inadequacies as a performance space,8 which led HRPT itself to
acknowledge that rebuilding Pier 54 would not provide the community with the
8

The Supreme Court cited six such inadequacies: (1) the lack of a second means of egress from
Pier 54; (2) the failure to separate event space from open space, thus preventing multiple
simultaneous user experiences; (3) the lack of multiple performance spaces; (4) the lack of
seating or greenery; (5) the narrow width limiting performance flexibility; and (6) funding issues.
A28-29. Other evidence in the record supporting the Supreme Courts finding included the lack
of bathrooms at Pier 54 and its location below the future flood plain. A2685 19; A2715-16
27.
35

amenities that it needed and that the site deserved. A29 (quoting A2714 22). In
the ten years that passed since HRPT obtained the permits to rebuild Pier 54,
HRPT repeatedly asserted that it lacked the funding to do so and instead allowed
the deck of the pier to disintegrate to the point that it had to be closed to the public.
The Appellate Division discarded this careful analysis of the factual
record with the observation that HRPTs use of the previously permitted 2005
Pier 54 rebuild design as the no action alternative in its SEQRA analysis was not
irrational, an abuse of discretion, or arbitrary and capricious and, consequently,
should not be disturbed. 9/8 Decision at 2 (quoting Matter of Gordon v. Rush,
100 N.Y.2d 236, 244-45 (2003)).9
But this Court has emphasized that judicial review under SEQRA
must be meaningful, and that courts must set aside agency decision-making
where it is unsupported by the evidence. Riverkeeper, 9 N.Y.3d at 232; accord
Jackson, 67 N.Y.2d at 417. The Supreme Court properly performed this function
by combing through the record for evidence that HRPT actually intended to
rebuild Pier 54, finding HRPTs litigation-minted claims unsupported by the
evidence, and concluding that the project was illusory. A30. The Appellate
Divisions contrary conclusionbased upon no evidencegives any lead agency
free reign to avoid an EIS by measuring a proposed project against a false baseline
9

Gordon does not consider the sufficiency of a no action alternative. See 110 N.Y.3d at 245.
36

and artificially minimizing its environmental impact. This result undermines

SEQRAs clear requirement that the lead agency evaluate a no action alternative
that is likely to occur in the reasonably foreseeable future. 6 NYCRR
617.9(b)(5)(v).
CONCLUSION
Time and again, in a variety of contexts, this Court has reaffirmed the
important principle of meaningful judicial review. See, e.g., People v. David W.,
95 N.Y.2d 130, 139 (2000); Long v. Adirondack Park Agency, 76 N.Y.2d 416, 418
(1990); Warder v. Bd. of Regents, 53 N.Y.2d 186, 198 (1981); People v. Lee, 21
N.Y.3d 176, 183 (2013) (Rivera, J., dissenting).
Across all of the important legal issues it raises, this case ultimately
concerns one central matter of principle: whether the courts have a meaningful role
to play in ensuring that major private projects in cherished public parks comply
with the law. The Appellate Division foreclosed meaningful judicial review of a
plainly unlawful deal by creating a new rule to prevent anyone but a billionaire
with inside knowledge from challenging the project. It diluted the public trust
doctrine, which is deliberately designed for courts to carefully review legislation to
ensure that public parkland is not relinquished without the unambiguous consent of
the people. And it refused to countenance any critical scrutiny of the lead agencys

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decision-making under SEQRA, deferring to the point of treating silence as a

reasoned elaboration.
The legal procedures that safeguard public resources, public parkland,
and the public environment can only protect the public when the judiciary enforces
them. The Court should grant leave to appeal.

Dated:

September 22, 2016

New York, New York
EMERY CELLI BRINCKERHOFF
& ABADY LLP

_____________________________
Richard D. Emery
Elizabeth S. Saylor
Douglas E. Lieb
600 Fifth Avenue, 10th Floor
New York, New York 10020
(212) 763-5000
Attorneys for Petitioners-Appellants

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