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Here's What Pier55's Court Decision Means for the Barry Diller-Funded Park

By Danielle Tcholakian | September 12, 2016 2:54pm
 An aerial view of the pier at night.
An aerial view of the pier at night.
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Pier55, Inc./Heatherwick Studio

MEATPACKING DISTRICT — The Appellate Division ruling last week gave the green light for construction to go forward on the Barry Diller-funded island park known as Pier55, but two more lawsuits attempting to block the project remain.

READ MORE: Barry Diller-Funded Park Can Proceed After Court's Approval

The opponents of the project, led by civic organization City Club of New York, are suing the state Department of Environmental Conservation in state court in Albany and the Army Corps of Engineers in federal court in the Southern District of New York for approving permits for the project.

The Albany lawsuit is in a lower court than the Appellate Division, so the judge is likely to take last week's decision very seriously, especially since there are some overlapping arguments, according to Hudson River Park Trust lawyer David Paget. (The Trust is also a party in that lawsuit.)

One of the overlapping arguments that the Appellate Division dismissed was City Club's claim that the Trust was disingenuous in comparing the potential effects of the project in an environmental review to those of a proposed refurbishing of Pier 54 that dates back to 2005.

City Club lawyer Richard Emery had argued that the Trust never had the funds for that project so it should not have counted as the "no action" comparison.

"That argument is gone, that has been ruled on by the court," Paget said in an interview after the Appellate Division's decision came down. "They still have a claim in the Albany lawsuit that there should have been a public hearing, which the DEC had determined that there was not a basis for. That argument still remains."

Emery said City Club may "potentially" decide to drop the Albany case, "but we want to think about it carefully before we make a decision."

"We are making a determination about that now," Emery said, adding that they do plan to separately seek permission from the Court of Appeals — the state's highest court — to appeal the Appellate Division's decision.

And Emery insisted the Appellate Division decision "has little or nothing to do with the Army Corps of Engineers case" in federal court.

"I think it's largely irrelevant," Emery said. "There may be some strained argument that Paget comes up with, but it doesn't seem to be anywhere near the core or central point of the Army Corps of Engineers case."

"I don't think it has much to do with the outcome," Emery added.

But Paget said there is a legal doctrine called "collateral estoppel" that "would say that when there are rulings on issues by the state court that relate to claims that are being advanced in the federal court, the losing party cannot re-litigate those issues."

Paget did not see how Emery's "argument is going to be able to progress," though he conceded that the opponents "have a couple of other arguments that are unique to the Army Corps process."

The arguments in that case are slated to by fully submitted in November, Paget said.

Emery said that he may seek a preliminary injunction in the federal case to again attempt to block construction on the project, but right now is focused on preparing the papers for his request to the Court of Appeals.