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NY High-Rise Owner Drops Subway Suits, Proposes Compromise

Law360

  • April 29, 2012

An Upper East Side high-rise owner and the building's tenant association on Wednesday dropped suits after proposing a compromise with the Federal Transit Administration and others they had previously accused of planning a New York City subway expansion project without considering environmental concerns.

The voluntary dismissals also let New York's Metropolitan Transportation Authority and its construction company off the hook.

The two federal suits, one in appellate court concerning the project's environmental impact and one in district court blasting the agencies for not readily providing public planning documents, centered on a new 86th Street subway entrance to be built as part of an effort to extend underground transit down Second Avenue. Estimates have placed the cost of the project around $17 billion.

Originally, the agencies opted to put the entrance directly in front of the 21-story Yorkshire Towers. But after residents balked at the prospect of dramatically increased foot traffic and demanded to see documents outlining the planners' rationale, local officials got involved and helped find common ground, Yorkshire attorney Joseph J. Ceccarelli of Ceccarelli Weprin PLLC told Law360 on Friday.

Under the proposal, the subway entrance will be at the end of the block, with Yorkshire providing an easement behind the property, Ceccarelli said. The proposed compromise has been in the works since January, he said.

"We withdrew the appeal as well as this [freedom of information] case in deference to giving this compromise solution a chance," he said, noting that the plans have the approval of U.S. Rep. Carolyn Maloney, a champion of the project from the get-go.

But MTA spokesperson Kevin Ortiz told Law360 on Tuesday that it has no plans to move forward with an alternate entrance for the station. Further, he said, the MTA had provided a letter to the Yorkshire parties when the parties agreed to withdraw the cases.

The letter stated that there had been no settlement over the disputed subway station and that the MTA had no obligation to enter into a compromise, Ortiz said.

According to the November 2010 complaint, the tenants and Yorkshire's owner asked for documents outlining why planners opted for the selected entrance instead of considering alternatives less intrusive to them. The agencies allegedly rebuffed the request, despite federal and state mandates that they supply information within a reasonable amount of time, according to the suit.

Those documents were key influences in shaping the proposed compromise, Ceccarelli said — a plan he said neither side had proposed, or even thought of, before reviewing the documents.

"It's a very, very good example of freedom of information law at its best," he said. "The FTA and MTA produced many documents without which our team of architects and engineers would not have been able to come to this [proposed] compromise solution."

The planning information laid out in the agencies' papers also triggered settlement talks in connection with the other case, related to the midblock subway station's potential impact on public safety, pedestrian convenience, traffic and quality of life, Ceccarelli said.

In late 2011, a district judge struck down those claims as time-barred. The Yorkshire groups had hoped to revive the allegations on appeal and justify a more comprehensive environmental review.

But that was before new plans mooted the case, Ceccarelli said.

"It's been a long journey," he said, "but as the saying goes, all's well that ends well."

Yorkshire Towers and the tenants' association were represented by Joseph J. Ceccarelli and Erik J. Berglund of Ceccarelli Weprin PLLC and Jeffrey E. Glen and Rene F. Hertzog of Anderson Kill & Olick PC.

The MTA and its construction company were represented by in-house counsel in the FOIA case and Bryan Cave on the environmental case. The Office of the U.S. Attorney represented the FTA.

The cases are Yorkshire Towers Company LP et al. v. United States Department of Transportation et al., case number 12-477, in the Second Circuit Court of Appeals; and Yorkshire Towers Co. LP et al. v. The Federal Transit Administration et al., case number 1:10-cv-08973, in U.S. District Court for the Southern District of New York.

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