Lower East Side flood protection plan threatened by lawsuit

A transformational plan to fill in and raise East River Park by eight feet is facing a legal battle that threatens to stall flood protections for Manhattan’s east side.

A coalition of community groups have filed a lawsuit in Manhattan Supreme Court against the City of New York, arguing that officials must obtain the state legislature’s approval for the $1.45 billion East Side Coastal Resiliency Project before the five-year plan can move forward. The suit calls on a judge to annul the City Council’s November approval of the plan, and require the state senate and assembly to sign-off on plans for East River Park before any work, which is scheduled to break ground in March, can get underway.

It’s a bittersweet move for park advocates, who say they want flood protections for the vulnerable area but point to a laundry list of concerns about the project, including an abrupt change that requires the East River Park to be razed and rebuilt.

“We didn’t want it to come to this,” says Fannie Ip, a member of East River Park Action, which is spearheading the lawsuit. “This [project] is once in a lifetime. Once this goes up we can’t simply change it. We’re a model for the rest of the city, so do we really want to make a mistake? We have to do this correctly.”

The lawsuit charges that the city must seek “parkland alienation” from the state legislature in the form of a bill that would allow East River Park to temporarily become a construction zone. It’s a common practice when transferring public parkland to a private entity, but can also be used when a municipality wants to temporarily repurpose park space. Without this step, the city’s entire plan is dead in the water, argues attorney Arthur Schwartz, who temporarily stalled the 14th Street busway with multiple legal challenges.

“It’s a super flawed plan because the City Council defied a concept that has existed in the law for time immemorial, but certainly it’s been codified in New York for about 100 years,” says Schwartz.

The original project sought to build a flood wall on the park’s western edge, adjacent to the FDR Drive, in an arrangement that would have kept the green space intact while allowing it to flood and partially act as a sponge during major storms.

Under the new City Council-backed vision, that protective wall is slated to move closer to the water by raising East River Park and the waterfront’s edge by about eight feet to stave off rising sea levels and powerful storm surges intensified by climate change. But that overhaul spurred community outrage, months of protests, and a deep mistrust of the de Blasio administration’s efforts.

The change would have initially shuttered the park for about three years, but the city later implemented another significant change: switching to a phased approach that will allow almost half of the park to remain open throughout construction. But critics argue that the project will still starve Lower East Siders of green space, and has left locals with too many questions to be worth pursuing. There are also questions over whether the pricey plan will truly provide longterm protections.

“Protecting the contiguous community from storm surges and flooding is a worthy endeavor, but shutting down more than half the Park to do so would greatly interfere with its use as a public park and would require approval,” read the lawsuit, which has more than 80 plaintiffs and was filed on February 6.

To remake most of the 57-acre park, the city will have to uproot nearly 1,000 trees and displace some wildlife deemed at risk by the state. But the new resilient version of the park will include more than 1,800 new trees across 50 species planted above the floodplain for a net increase of 750 trees.

The lawmakers who represent the overall 2.4-mile project area—City Councilmembers Carlina Rivera, Keith Powers, and Margaret Chin—expressed reservations about the plan throughout the land use review process but ultimately negotiated changes and commitments from the city they believe meet the needs of the community.

“We fought for and won dozens of commitments that local stakeholders asked for, including keeping large portions of East River Park open throughout construction and the enhancement of additional open spaces throughout our communities,” the lawmakers said in a joint statement to Curbed. “With the growing threat of climate change, we cannot afford to wait on much-needed waterfront protections.”

The Council’s legal team reviewed whether parkland alienation was required during the land use process and agreed with the city law department’s assessment that it is not needed for the East Side Coastal Resiliency project. The city stands by its review, says City Hall spokesperson Julia Arredondo.

“This important project will protect 110,000 New Yorkers and East River Park from the possibly deadly effects of sea level rise and severe storms,” Arredondo said in a statement. “We have not seen the lawsuit, but we will vigorously defend any threat to our ability to keep New Yorkers safe.”