Albany Supreme Court Dismisses Challenge to State Permit for Pier 55 in Hudson River Park

In a decision dated January 20, 2017, Hon. Lisa M. Fisher of the New York Supreme Court, Albany County, dismissed in its entirety litigation challenging the legality of the permit that the New York State Department of Environmental Conservation (“DEC”) issued for the Pier 55 project in Hudson River Park.  The project, currently in construction, will offer park space, including performance spaces, on an innovatively designed pier.  The City Club of New York, Inc. and two individual plaintiffs brought this challenge against DEC, Hudson River Park Trust (“HRPT”), and Pier 55, Inc., a nonprofit organization funded by Barry Diller and Diane von Furstenburg that will provide the majority of funding and will operate the project.  Sive, Paget & Riesel has represented HRPT in the environmental review and permit applications for the Pier 55 project, as well as in litigation challenging various approvals for the project.

The petitioners made several unsuccessful arguments related to DEC’s permit review process.  First, they argued that DEC failed to consider whether the project was water-dependent.  Judge Fisher dismissed this claim, characterizing the petitioners’ argument that the Project is not water-dependent as “an incredulously semantic argument for a project which was originally slated as a reconstruction of a pier over a decade ago.”  She found adequate evidence in the administrative record that DEC had sufficiently considered the issue. Second, petitioners argued that DEC did not adequately consider the Project’s potential impacts on navigation.  The Court disagreed, noting that DEC considered several elements of the navigability of the Project area.   Finally, petitioners argued that the DEC should have held a legislative public hearing because of public interest in the project.  There were 108 comments on the Project, 16 of which were negative, and two of which requested a hearing.  The Court found that, “in a city with a population of over 8 million the Court cannot say a mere 108 comments constitutes a ‘significant degree of public interest’” warranting a legislative hearing. Thus, the Court denied the petition and dismissed the proceeding in its entirety.  An argument that the petitioners had initially advanced, that the DEC’s review improperly compared the project’s environmental impacts to that of a previously-approved pier design, was acknowledged by the petitioners and held by the court to be precluded by a First Department ruling in a separate litigation that the same petitioners brought to challenge HRPT’s approval of the project.

Indeed, this was one of three lawsuits that the same parties have waged against the project. The first lawsuit challenged HRPT’s environmental impact review of the Project and alleged violations of the public trust doctrine and of the Hudson River Park Act.  That lawsuit was dismissed in April, and the dismissal was upheld by the First Department in September.  The Court of Appeals denied leave to appeal in October.  The other litigation challenging the U.S. Army Corps of Engineers’ permit for the Project is ongoing.  In the instant opinion, Justice Fisher expressed frustration that the petitioners had not apprised the court of the federal litigation and concurrent applications for preliminary relief.

For more information about the Court’s recent decision, please contact David Paget, Elizabeth Knauer, or Katherine Ghilain.