Court Rules Against Activists Seeking Pause on Wagner Park Resiliency Project
Local opponents of the plan to demolish and rebuild Wagner Park, with the aim of creating resiliency measures designed to protect against flooding, were dealt a setback on Friday, when New York State Supreme Court judge Sabrina Kraus denied their request for an injunction and restraining order that would have prevented the Battery Park City Authority (BPCA) from commencing demolition work.
Britni Erez, a leader of the Battery Park City Neighborhood Association (which filed suit in December), said, “we are disappointed in the Court’s ruling. Viable alternatives supported by leading industry experts were not given proper consideration. The Authority’s designs remain at odds with industry best practices, new Federal guidance and the community’s best interests —all prioritizing green infrastructure over concrete. The Authority is using yesterday’s solutions for tomorrow’s problems.”
She added that the Neighborhood Association is “thinking through options and working on next steps.”
BPCA spokesman Nick Sbordone responded, “as we have said from the start, the South Battery Park City Resiliency project was planned and approved in full accordance with the law, and we are grateful for the Court’s decision affirming that. We now look forward to continuing the urgent work of protecting our community and Lower Manhattan from the devastation of future storms in the decades ahead.”
At issue is a pair of dueling visions for the future of Wagner Park. The BPCA plan would mostly demolish the existing space, replacing it with a new, elevated park atop a buried flood wall to act as a bulwark against future storm surges and sea-level rise, providing protection for the southern part of Battery Park City and certain additional areas of Lower Manhattan. This project would also link to separate plans designed to offer protection for the remainder of Battery Park City to the north, and the Financial District to the east.
The Neighborhood Association views this option as overkill, arguing that the existing park can be preserved, while being modified with less-intrusive resiliency measures that will maintain its character and also afford significant flood protection. The group partnered with the Olin landscape architecture firm (the company that formulated the original design for Wagner Park in the early 1990s) and Machado Silvetti architects (the original designers of the Wagner Park pavilion) to refine their alternative plan.
The Neighborhood Association vision would seek to preserve the existing pavilion by moving the flood alignment barrier outside of Wagner Park—instead locating it adjacent to nearby Battery Place. This plan would allow Wagner Park itself to flood during extreme weather events, but would aim to prevent waters from escaping the park and inflicting damage on nearby streets and buildings.
In its legal briefs, the Neighborhood Association argued (among other allegations) that the BPCA was arbitrary and capricious in its pursuit of the project, and failed to meet the standards set by the State Environmental Quality Review Act (SEQRA), which mandates that all arms of government within New York must consider environmental impacts (equally with social and economic factors) during discretionary decision-making.
Judge Kraus’s decision rejected both of these arguments, while adding that the Neighborhood Association also had to meet the high bar of showing they would likely win at a subsequent trial before the Court would grant the injunction that opponents of the Wagner Park plan were seeking.
Regarding the “arbitrary and capricious” standard, she wrote, “because it is not the province of the courts to second-guess thoughtful agency decision making… an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence,” adding that, “where an agency’s action has a rational basis, it cannot be considered arbitrary or capricious.” She further observed, “to prove that an agency acted in an arbitrary and capricious manner, the challenging party must through competent evidence establish that any error or omission in an agency’s environmental review is of such significance that the agency’s determination must be vacated.” On this basis, Judge Kraus concluded that while the Neighborhood Association “is correct that the space will not be the same after the work as proposed by [BPCA] is done, [the Neighborhood Association] has failed to establish that the proposed work or the way the plan was chosen was arbitrary or capricious, and thus have failed to establish a likelihood of success on the merits.”
About the allegation that the BPCA had failed to meet the requirements of SEQRA, the judge found that the law “prescribes both the procedure that must be followed for formulating an [environmental impact statement], as well as its substantive content, but SEQRA does not require an agency to act in a particular manner or to reach a particular result.”
She further concluded that “it is not the role of the courts to weigh the desirability of an action or choose among alternatives but to assure that the agency itself has satisfied SEQRA, procedurally and substantively,” adding that, “generalized ‘community objections’ to an agency’s conclusions are insufficient to challenge an environmental review that is based on empirical data and analysis,” and “it is not enough for the challenging party to contend that there was a better alternative that the agency should have chosen instead.”
Based on all of these criteria, Judge Kraus concluded, “this Court must defer to BPCA in determining the appropriate design standards for coastal resiliency projects intended to provide flood protection for Lower Manhattan.”
With the dismissal of the request for an injunction, the BPCA appears free to proceed with demolition work that will comprise the first phase of the South Battery Park City Resiliency project, which is slated to close Wagner Park for two years and cost approximately $220 million.