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Pier pressure: Will lawsuit, small boats sink dazzling ‘Diller Island’?

BY LINCOLN ANDERSON | Updated Wed., July 27, 10 p.m.: If you don’t hear pounding off of the north end of the Village waterfront shortly after Labor Day, it could be a sign that Barry Diller’s Pier55 “fantasy island” has taken a pounding — in court, that is.

Earlier this month, an Appellate Division judicial panel issued a stop-work order on construction of Diller’s glitzy Pier55 project at W. 14th St. It was a stunning blow, as the ruling came just one day before the driving of the first piles for the new “arts island” was about to begin.

But last week, the judicial panel modified their order, allowing some of the piles — though just a few, nine — to be installed now, pending the panel’s hearing of the full appeal on Sept. 6.

Initially, plaintiffs from the City Club of New York who filed a lawsuit in June of last year were buoyed by the July 5 stop-work order.

In turn, with last week’s partial lifting of the injunction, Diller’s PIER55 group and the Hudson River Park Trust declared that it’s only a matter of time until they are cleared to go full-steam ahead constructing the $130 million six-story-tall undulating pier.

But the plaintiffs have floated a raft of what they say are serious violations. For example, they charge, the pier project was never put out for competitive bidding; plus, it’s illegal to build in the water portion of Hudson River Park; and also that state legislators also were “deceived” into passing an amendment to allow the project, among other things.

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Students rowed out of the embayment — or cove-like area — around Pier 54 in a traditional Whitehall boat from the Village Community Boathouse at Pier 40. A lawsuit charges that the proposed Pier55 would block boaters from using this area. Photo courtesy Rob Buchanan

The Trust, a state-city authority, is building and operates the 5-mile-long Hudson River Park.

The Trust had hoped to drive a total of 55 steel-and-concrete piles during this in-water building season, which — under state and federal regulations — starts in the spring and ends Oct. 31. Those 55 piles would support two footbridges extending out to the new isle-like pier park. About 10 times that many piles, however, would be needed for the entire project.

The nine piles now being allowed to be driven are to hold up a “balcony” that would hang over the river and connect the pier’s footbridges to the mainland part of the Hudson River Park.

One-year delay avoided

If those nine piles had not been allowed to be installed this summer, however, it would have pushed back the project’s completion date a full year, according to a Trust source.

Construction on Pier55, including an expanded esplanade along the mainland part of the park, began in late June.

“With the City Club’s latest charade behind us, we will get back to building the new public park that local residents have sought for years,” a PIER55 spokesperson said in a statement last week. “Now that both state and federal courts have denied its demand for an injunction, the City Club should take this cue to finally end its absurd crusade against the wishes of the community. We remain committed to making Pier55 a reality and providing new green space for all New Yorkers to enjoy.”

A day before the modified injunction was announced, a federal court denied a stop-work order in a separate City Club lawsuit against the project.

A Trust spokesperson added, “We’re pleased that the court has reversed its decision, allowing us to get back on track with our planned construction for the summer. The plaintiffs have yet to produce a single relevant credible expert, and we’re confident the courts will continue to rule in our favor.”

But Tom Fox, a longtime Hudson River Park advocate and one of the City Club plaintiffs, said the Trust and PIER55 group are mischaracterizing the opposition, as well as the court’s modification of the injunction. Fox was chairperson of the Hudson River Park Conservancy, the Trust’s predecessor.

“It’s interesting that they are trying to pitch this as us against the community,” Fox said. “We’re fighting an unaccountable government agency breaking environmental laws and negotiating in secret with a billionaire.

“This is not lifting an injunction against building Pier55 — it’s allowing them to drive nine piles, not the 547 piles that they want to drive to build ‘Dilligan’s Island,’ ” he explained. “We are in court in six weeks. If they lose, they have to pull them,” he said of the nine preliminary piles. “This is another risky act by the Trust and another potential waste of scarce resources.”

Opponents’ arguments

For starters, the plaintiffs charge that the Trust was wrong to say no new environmental impact statement was needed to build Pier55 because it already had done one to reconstruct the former Pier 54 — which never was rebuilt despite the Trust getting approvals to do so in 2005. In fact, a full environmental impact study is required, the plaintiffs say — because Pier55 would be built on a totally new footprint, not on Pier 54’s former one.

“The site of the Pier55 project is open water, and the impact of Pier55 must be compared to open water,” the recently filed appeal papers state. “This comparison requires an Environmental Impact Statement (E.I.S.)… .”

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A design rendering showing an aerial view of the proposed Pier55, which would be built between the pile fields of Pier 56, to its north, and Pier 54, to its south, whose concrete decking has been removed, leaving a field of old wooden piles, as depicted in the rendering. Pier55, Inc./Heatherwick Studio

In addition, the plaintiffs argue that a request for proposals — as in, a competitive bidding process — is legally required for this project, but was never done.

“The 165-page lease between H.R.P.T. [Hudson River Park Trust] and PIER55, Inc., an entity controlled by Mr. Diller, is at bottom a commercial lease that required a request for proposals (R.F.P.). H.R.P.T.’s regulations mandate public bidding for ‘any lease’ involving a capital expenditure over $1 million,” the appeal states. “The PIER55 lease involves tens of millions of public dollars, so it demands an R.F.P. There is no exception for lessees controlled by wealthy donors, and this Court should reject H.R.P.T.’s invitation to create one.”

‘Deceived’ legislators

The plantiffs furthermore contend that the Trust “deceived” state legislators in 2013 into passing an amendment to allow the project. The amendment, among other things, permitted Pier 54 to be reconstructed outside of its footprint.

“H.R.P.T. concealed the existence of PIER55 [the private group that would run the pier], the Diller gift and the design of Pier55 from the Legislature while asking the Legislature to approve a ‘reconstruction’ of Pier 54,” the appeal says. “A futuristic island with three performance venues is not a ‘reconstruction’ of a working historic pier in a different location.”

The appeal notes that, according to Assemblymember Deborah Glick, the Trust “led [her] and other legislators to believe that its plan was to make minor changes to the then-existing Pier 54.”

Pier 54, though officially designated as a “park use” pier, had become — during the wait for its renovation — a place for performances and summer movies. In short, legislators thought they were simply voting to approve a shorter, wider pier that would bring attendees closer to the stage and facilitate emergency evacuation of the pier.

Citi Field example

However, citing the example of the Mets’ stadium, the appeal notes, “[Most]…would not call Citi Field a reconstruction of Shea Stadium because Citi Field looks nothing like Shea Stadium and was built in a different location (the Shea Stadium parking lot).”

The plaintiffs also stress that, under the “public trust doctrine,” parkland cannot be “alienated” — in this case, leased — without the state Legislature’s consent.

“While PIER55 states that its ‘intentions’ for Pier55 are inclusive,” the appeal notes, “it has bargained for the contractual right to turn a public park into an exclusive concert venue, including on major holidays, and offers no assurance that it will not exercise this right.”

Summing up, the appeal states, “If H.R.P.T. wants to lease away land north of the old Pier 54 and build something radically new and different in a protected public waterway, it needs to prepare an E.I.S., issue an R.F.P., and obtain proper legislative authorization. Because H.R.P.T. did none of these, Pier55 is unlawful, and the [state] Supreme Court’s decision approving it should be reversed.”

Cuomo slams injunction

Showing the high stakes involved, the day after the full stop-work order was issued, Governor Andrew Cuomo made a power play, personally weighing in on the side of Pier55, trying to ratchet up the pressure to allow it to proceed.

“I am disappointed the Appellate Division has temporarily halted construction of the Hudson River Park Trust’s and PIER55, Inc.’s plan to transform an underutilized pier into an open space where New Yorkers would be able to enjoy recreation and entertainment,” Cuomo said in a July 6 statement. “Delaying this project does a disservice to the public, as well as damages the economic development that important public parks like this one encourage. I’m hopeful that when the appeals court hears the merits of the case, the Hudson River Park Trust and PIER55, Inc. will be able to move forward with the construction of this important project.”

However, the plaintiffs counter that the Pier55 project is still stuck in court, not because they are obstructionist, but because the Trust “cut corners.”

The project’s supporters also point out that the courts tend to slow down in the summer, which is likely why the appeal was put off till early September. In the meantime, the Appellate Division thought it best to issue the stop-work, at least until the full appeal is heard — though the panel subsequently O.K.’d the driving of only the nine piles.

The Pier55 plan has received all the required approvals from government agencies, including from the U.S. Army Corps of Engineers and the New York State Department of Environment Conservation, as well as the advisory approval of Community Board 2.

C.B. 2 supports plan

Tobi Bergman, chairperson of C.B. 2, said the board is bullish on the Pier55 concept.

“We held two public hearings, each attended by over 100 people who overwhelmingly supported the project,” he said. “The proposal is for a beautiful and unique new park with great performance spaces that will be managed by an extraordinary team, providing unique opportunities for cultural enrichment and education for everyone, including school children. Along with the Whitney Museum, it will be a transformative counterpoint to the philistine nightlife of the Meat Market area.

“There was some initial skepticism, as there often is to a major proposal,” Bergman admitted. “But people recognized this as a very serious project and a special enhancement to the community and to the river park. That’s why almost everyone who came to our hearings supported it and that’s why our board voted for it. A few people who have personal grudges against the park leadership and obviously lots of available cash to pay for a lawsuit, are doing great harm to our neighborhood and our park by delaying this project.”

A design rendering of Pier55, looking from the south toward the north. The landscaped pier would have an undulating surface of varying heights, supported by “pot”-style concete piles, fewer of which would be needed to hold up the pier than normal-style straight piles. Pier55, Inc./Heatherwick Studio
A design rendering of Pier55, looking from the south toward the north. The landscaped pier would have an undulating surface of varying heights, supported by “pot”-style concete piles, fewer of which would be needed to hold up the pier than normal-style straight piles. Image courtesy Pier55, Inc./Heatherwick Studio

This past April, Joan Lobis, a Manhattan Supreme Court justice, dismissed the City Club’s lawsuit, throwing it out “with prejudice,” meaning that while the club could appeal to a higher court, the lawsuit could not be filed anew.

Appeals to the Appellate Division are automatic, as opposed to the state’s high court, the Court of Appeals, which can decide whether or not to hear an appeal.

Shows for thousands

The square-shaped Pier55 project, more an island than a pier, with two access ramps to the shore, would cover 2.7 undulating acres, supported on 547 concrete pilings. Its height above the river would vary from 8 feet to 62 feet. The pier would have three performance spaces, with a total audience capacity of at least 4,250.

Barry Diller, the media, Internet and travel titan, and his wife, Diane von Furstenberg, the famous fashion designer, have pledged to pay $113 million toward the project’s construction through their Diller-von Furstenberg Family Foundation. The city is paying $17 million toward the project, while the state is paying $18 million to widen the park’s esplanade from Gansevoort St. to W. 14th St. to improve access to the planned-for pier.

Under a lease, a nonprofit, PIER55, Inc., or P55, to be chaired by Diller, would fund the new pier’s programming, operations and day-to-day maintenance for 20 years, with an option to extend this another 10 years, bringing Diller and von Furstenberg’s total commitment to hundreds of millions of dollars. They’ve also promised to pay for any project cost overages that may occur.

The Trust and the Diller-von Furstenberg Family Foundation have agreed that 51 percent of the performance events on the pier would be completely free and 49 percent could charge market-rate admission.

The Lusitania arriving at Pier 54, one of the Cunard line piers, in 1908.
The Lusitania arriving at Pier 54, one of the Cunard line piers, in 1908.

Historic ships, small boats

Also among the plaintiffs’ arguments is that Pier 54, which Pier55 would replace, has always been — from the early concept plans of the Hudson River Park — designated for the berthing of historic ships, but that Pier55 would not be slated for this use.

Pier 54 was where the Carpathia brought the Titanic survivors and from where the Lusitania departed on her fateful journey that ended in her being torpedoed by a German U-boat. The Trust has already completely removed Pier 54’s concrete deck, however, leaving only its wooden pile field remaining, as the authority is bent on building Pier55 to the north of the former Pier 54 footprint.

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A mixed group of community and Stuyvesant High School rowers from the Village Community Boathouse entering the embayment around the wooden pile fields of Piers 54 and 56 last July. Photo courtesy Rob Buchanan

Another of the City Club plaintiffs, Rob Buchanan, comes at the issue from another angle, charging that Pier55 would destroy an important “embayment,” or cove-like area, along the Hudson waterfront. Boaters in small crafts use these nooks — like stepping-stones, working there way up and down the river — to duck out of the river’s powerful current, winds and boat traffic, and find calmer water, he explained.

Buchanan is a founder of the Village Community Boathouse, based at Pier 40, at W. Houston St., whose members build traditional New York-style Whitehall rowboats, then take them on free excursions in the Hudson. The boathouse also does free programs with high school students. According to Buchanan, despite the height of Pier55, boaters wouldn’t be able to safely row or paddle underneath it, while the remaining Pier 54 and 56 pile fields are also unsafe for boaters to enter. So, an entire embayment area, between Gansevoort Peninsula and Pier 57, would be off-limits, he contends.

In short, Pier55, as the appeal states, “would harm petitioners’ distinctive, legally cognizable interests” regarding the “navigability” of the Hudson River.

‘Suit doesn’t hold water’

But David Paget, the Trust’s environmental lawyer said, first of all, there has not been interest expressed from owners of historic ships to berth in the park, beyond the old ships that are there now. The Trust has issued R.F.P.’s for historic ships, and gotten no takers, he said.

But Fox countered that the Trust doesn’t make it economically feasible for operators of vintage vessels to be in the park, since the agency demands market-rate commercial rent and requires they insure themselves, among other things.

“The historic berths were supposed to have all the necessary support systems and be free,” Fox said. “But the Trust has forced nonprofits who are struggling to preserve historic vessels to provide their own water, electric and sewage hook-ups.”

However, Paget said, the Hudson River Park Act was amended three years ago to permit the Pier55 project, and the amended language says nothing about historic boats at Pier55. Plus, the park is already home to a number of old boats, he noted.

Paget added there is also nothing in the park act mandating that the storied history of Pier 54 be preserved — though, he noted that the former pier shed’s old White Star Line cast-iron entrance arch still does stand, and that the Trust has pledged to retain it.

On the second point, Paget said, the Trust’s dock master surveyed kayakers and other boaters in the park last July and found none of them use the Pier 54 embayment, though they do regularly use the waters around Piers 26, 40 and 66. Boaters consider the water around Pier 54 risky because there is a lot of submerged debris from old pile fields, the dock master stated in an affidavit.

“The plaintiffs characterized the water in this area as pristine,” Paget said. “The truth is it’s a former industrial waterfront, and it’s an area that was filled in to create 13th Ave., and was then dredged out later.”

But Buchanan slammed the survey as a “sham,” and reiterated that his group definitely uses that spot.

(Some) ‘old lions’ roaring

Some Pier55 backers have sought to dismiss the City Club as a mere shell organization with just a few disgruntled members. But Fox said the group’s board and policy council are comprised of prominent veteran leaders of New York civic life. In addition to him, the club includes Kent Barwick, Brendan Sexton and Frank Sanchis, all past presidents of the Municipal Art Society; Ross Sandler, the city’s former Department of Transportation commissioner; and Al Butzel, the environmental lawyer who in 1985 famously defeated the Westway sunken highway megaproject along the West Side waterfront, which, in turn, led to the creation of Hudson River Park and the renovation of the West Side Highway.

“We’re the old lions,” Fox said of the City Club.

Butzel, however, clarified that he, in fact, supports the Pier55 project and had urged the club not to pursue the lawsuit. It would be a missed opportunity not to accept Diller and von Furstenberg’s gift, he said.

Fox speculated that Butzel — who, he claimed, “has played both sides of the fence” in the past — must have been retained by Diller. Not true, said Butzel.

“I have nothing to do with Diller or Diane,” he said.

Butzel said the idea that the high-profile pier project should have been put out to bid is ridiculous.

“If someone offers you $100 million, it’s just going through the motions [to have competitive bidding],” he said.

As for Buchanan’s argument that Pier55 would block small boaters from using the Pier 54-56 embayment, Butzel scoffed, “That’s gotta be bulls—.”

“I think it is good for the park and good for the city,” he said of Pier55. “I think it’s an interesting design.”

The attorney said, though, if the process were done again, it could probably benefit from “more transparency.”

“I might have done it differently,” he said. “But I’m not going to criticize the Trust on this.”

Fish are into piers

Pier55 might even help the aquatic habitat, Butzel noted. He said that during the Westway fight, he learned that 30 percent of the Hudson’s juvenile striped bass winter in the waters of what today is the Hudson River Park, that the pier pilings slow the water, making it attractive to young fish.

“This — to me — the pros overwhelm the cons,” Butzel said of the Pier55 project.

Asked if he and Fox will now have to face each other uneasily while eating BLT’s in the City Club dining room, Butzel said, it’s not that kind of a club.

“When we do meet, we just meet in a room,” he said.