Streetsblog New York City

They’re back.

Opponents of the Prospect Park West bike lane filed an appeal in their unsuccessful lawsuit against the city yesterday, hoping for a second chance to rip out the safety-enhancing redesign or, perhaps more likely, attract a few more months of headlines. As Streetsblog previously reported, the bike lane opponents will have even lower odds of winning at the appellate level than they did with their initial lawsuit, which never had much of a shot of victory in the first place.

The motion from pro bono attorney Jim Walden, who despite representing a group called “Neighbors For Better Bike Lanes” is giving quotes to Reuters about why bike lanes aren’t ever practical in big cities, focuses on the legal argument why his clients have a right to appeal and can be read above.

Said city attorney Mark Muschenheim in a statement, ”This development isn’t surprising. We are confident that our win will be upheld on appeal. The lawsuit was untimely to begin with, which the Court clearly recognized in dismissing it. The bike path’s installation was an entirely proper, thoroughly considered project that continues to enhance the safety of PPW and remains widely enjoyed by the community.”

We’ll have continuing coverage of the lawsuit as it again winds its way through the court system.

The decision issued by Brooklyn Supreme Court Judge Bert Bunyan Tuesday dismissing the Prospect Park West lawsuit should reverberate in a few ways. Among them: The storyline probably doesn’t have as much allure to the press as it used to. And without the PR value, the opponents’ legal challenges lose a lot of their fundamental purpose.

NBBL could appeal Bunyan’s ruling, but they would have to convince the appellate court to overturn a decision that hinged on a finding of fact, which, our sources in the legal profession tell us, would have even lower odds than the initial suit, in all its flimsiness. They could also file a new suit to stop adjustments to the lane that haven’t been built yet, like the addition of granite pedestrian refuges to PPW, but only after “exhausting administrative remedies” by appealing to DOT first. A separate suit could not undo the basic geometry of the bike lane, given Bunyan’s ruling.

So any future litigation from NBBL, it seems, would be an even more obvious exercise in scorched earth tactics. NBBL lawyer Jim Walden appeared to acknowledge as much when he told the Brooklyn Paper, “This is just the first battle in what is inevitably going to be a longer war.”

The quote drew this response from Bill Carey of Neighbors for Better Neighbors:

Our community is not a battlefield and the work of making our streets safer does not “inevitably” have to be a “war.” Mr. Walden’s clients can graciously accept Judge Bunyan’s decision and move on. We look at the bike path as a place to come together, not a line of division in this great neighborhood.

We encourage the plaintiffs to drop the martial language and the legal crusade, and join with their neighbors to continue the work of making our streets calmer and safer. There’s still much to be done, and we extend our hands to all those who want to take part in a positive and constructive effort.

It’s been nearly a year since we first ran Robin Urban Smith’s Streetfilm on the Prospect Park West redesign. A lot has happened since then, but the lane is working as well as ever and I can’t think of a better way to wrap up this important day for NYC street safety policy than to have another look at this video of DOT’s work in action.

After the jump, a reminder of Prospect Park West’s prior incarnation as a three-lane speedway…

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Brooklyn Supreme Court Justice Bert Bunyan dismissed the lawsuit seeking to reverse the redesign of Prospect Park West yesterday, putting an end to a protracted, ugly chapter in the annals of NYC street safety improvements. The lawsuit, brought this March by a group of politically-connected opponents who failed to participate in the years of public process that preceded the redesign, had no standing because it was filed after the statute of limitations expired, Bunyan ruled.

Official word of the decision came down last night and set off a round of jubilant tweeting from project supporters, celebrating what should be the last gasp of an extended PR attack that opponents waged against the PPW bike lane, NYC DOT, and street safety advocates. With the apparent end of the legal threat to the redesign, Brooklynites can rest a little easier knowing that the improved conditions for pedestrians and cyclists on PPW are here to stay. There will be no return to the old three-lane speedway configuration.

Bunyan’s ruling [PDF] is a major vindication for Transportation Commissioner Janette Sadik-Khan and NYC DOT’s bike and pedestrian program. “This decision results in a hands-down victory for communities across the city. The plaintiffs have been dead wrong in their unsupported claims about the bike path and DOT’s practices,” Sadik-Khan said in a statement. “This project was requested by the community, they voted repeatedly to support it, and their support has registered in several opinion polls. Merely not liking a change is no basis for a frivolous lawsuit to reverse it.”

The legal issues in the case hinged on two main questions: 1) whether the city, in responding to community requests for traffic calming and better bike connections on PPW, had acted in an “arbitrary and capricious” manner by installing the bike lane, and 2) whether the plaintiffs filed suit before the four-month statute of limitations had expired. Judge Bunyan’s decision rests squarely on his answer to the second question.

The city implemented the redesign in June and July of 2010. The plaintiffs and their attorney, Jim Walden, claimed this installation was a “trial” that did not become permanent until DOT presented data from a six-month evaluation period at a Community Board 6 hearing this January, about two months before they filed suit the first week of March.

But Bunyan rejected this argument, concluding that Walden and the bike lane opponents “presented no evidence that DOT viewed the bikeway as a pilot or temporary project.” He determined that the city committed to a permanent installation of the redesign as soon as the bike lane was built last summer, so the four-month window for opponents to file suit expired in November.

Because Bunyan dismissed the suit on statute of limitations grounds, he had no need to weigh in on the “arbitrary and capricious” question, and his decision does not address that aspect of the suit. From the outset, however, opponents had made the “trial” or “pilot project” issue a pillar of their argument, and Bunyan demolished it. He reserved his harshest rebuke for Brooklyn Borough President Marty Markowitz, who filed an affidavit at the eleventh hour alleging that DOT told him the redesign would be a trial in March 2010:

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Here’s the latest on the Prospect Park West bike lane case: Brooklyn Supreme Court Justice Bert Bunyan has again rejected an attempt by NBBL attorney Jim Walden to issue subpoenas without approval from the court.

Last week Bunyan urged Walden to withdraw a round of subpoenas issued to several people, including members of Community Board 6 and Transportation Alternatives director Paul Steely White. Today Bunyan recommended that Walden withdraw subpoenas he had issued last month to Transportation Commissioner Janette Sadik-Khan, City Council Member Brad Lander, and DOT officials. Walden complied and agreed not to issue more subpoenas unless the court decides to allow them first.

While the rejection of those subpoenas was undeniably a setback for NBBL, remember that the very act of issuing them produced all these headlines in the first place, so you can’t really say the whole gambit was a loss for bike lane opponents.

“We are pleased with today’s developments, which will go a long way toward ending the harassing theater that has surrounded this case,” said attorney Karen Selvin of the NYC Law Department in a statement. “We look forward to the judge’s decision and are confident that we will prevail on this important New York City project.”

There is no date scheduled for the next hearing in the case. Judge Bunyan may issue a decision at any time. It’s also still possible that he may decide to allow discovery in the case, which would open the door for subpoenas again.

Meanwhile, Park Slope residents and other Brooklynites will continue to reap the benefits from a project that was requested by the local community, approved by Community Board 6, and has met its goals of slowing traffic, reducing dangerous crashes, and encouraging cycling.

The post has been updated with a statement from the NYC Law Department.

Gibson Dunn attorney Jim Walden grabbed headlines earlier this month after issuing a flurry of subpoenas to city officials in the Prospect Park West case. Streetsblog reported at the time that the subpoenas were not yet sanctioned by the court and were unusual for the type of suit, known as an Article 78 proceeding, filed by opponents of the PPW redesign. Before Brooklyn Supreme Court Justice Bert Bunyan decided whether to allow those subpoenas, Walden issued another round of subpoenas last week to at least six people, including Council Member Steve Levin, Transportation Alternatives director Paul Steely White, and Community Board 6 District Manager Craig Hammerman.

Today, at the urging of Judge Bunyan [PDF], Gibson Dunn withdrew the second round of subpoenas. City attorneys had gone to court seeking a temporary restraining order against the plaintiffs for trying to subpoena more people. After Bunyan recommended that Gibson Dunn withdraw the subpoenas, the city stopped pursuing the restraining order.

“The judge called the petitioners’ counsel out on this harassing strategy in court today,” said city attorney Karen Selvin, “rebuking them and prompting them to withdraw all the subpoenas issued under the petitioner’s direction over the last week.”

In response to the attempt by the plaintiffs’ attorneys to drag more people before the court, including CB 6 members Richard Bashner and Tom Miskel, Park Slope residents announced the formation of two YIMBY counterweights to the bike lane opponents. The new groups are known as “Neighbors for Better Neighbors” and “Seniors for Civility.”

“These subpoenas were clearly meant to silence and intimidate good, hard-working neighborhood advocates,” said NBN member and PPW resident Bill Carey. “I believe community members ought to talk to each other and work together rather than using a $700/hour corporate attorney to beat each other up.”

TA’s White called the lawsuit “not only frivolous, but reckless.” He added, “Removing the street safety improvements on Prospect Park West would put local residents in harm’s way. Streets with protected bike lanes have about 40 percent fewer crashes ending in death or serious injury for all street users: drivers and pedestrians included. The opponents of this bike lane are playing a dangerous game with people’s lives for the sake of a PR stunt.”

Bunyan is scheduled to decide on August 3 whether to allow Walden’s first round of subpoenas, issued to NYC DOT staff and Council Member Brad Lander.

You can read the full “Neighbors for Better Neighbors/Seniors for Civility” press release below:

Noah Kazis contributed to this post.

We are now well into the fifth month of the attack on street safety improvements known as the Prospect Park West lawsuit. There was no conclusion in court today, so the Jim Walden media tour will go on at least a little while longer.

Transportation Alternatives Executive Director Paul Steely White had this to say in a statement released this afternoon:

By any reasonable measure, this charade is over. The City set hard data against fact-free grandstanding to defend commonsense street safety improvements that the vast majority of neighborhood residents love and asked for in the first place. Any concerns about these improvements have been exhaustively addressed and it’s time to move on. The people of Park Slope deserve better than to have their time wasted by a puffed-up PR stunt.

Here’s a little more on the integrity of DOT’s data versus the cherry-picked numbers used by opponents to sow doubt about the project.

For those following the legal developments in the case, here’s the affidavit submitted by Brooklyn Borough President Marty Markowitz, claiming NYC DOT told him the PPW project was installed on a trial basis [PDF] — and our analysis of Markowitz’s impeccable timing.

And here’s the response from DOT Commissioner Janette Sadik-Khan, explaining that adjusting the construction timetable and evaluating the project does not make it a trial [PDF].

Regardless of how the judge interprets the two statements, the multi-year process leading up to the PPW redesign — and the safety benefits it has produced — should withstand the assault by opponents who are trying to circumvent all the public meetings, hearings, and votes that preceded this project.

Said city attorney Mark Muschenheim:

The Prospect Park West project is not a pilot — and never was. However, we won’t let this issue be used as a sideshow to delay this case from being resolved on the merits themselves. The key issue is whether there was a rational basis for this project, and the record is clear that the community requested the project to improve safety, and the data show that it’s done the job it was intended to do. Thus, we are willing to forego the statute of limitations defense if it means speeding up the resolution of this case on the merits.

Jim Walden and the bike lane opponents have failed in another effort to reshuffle the court’s schedule to gain a legal advantage in their fight against the Prospect Park West lawsuit.

Yesterday, as Transportation Nation’s Kate Hinds reported, Brooklyn Supreme Court Justice Bert Bunyan denied a request by Walden to put off a July court hearing until September. The next court date remains July 20.

The attempt to postpone the July court appearance was always on shaky ground. Walden’s argument for delay, which he said was needed in order to obtain more information under the Freedom of Information Law, rested largely on a New York Times article that at no point mentioned the Prospect Park West bike lane.

The city’s Law Department has responded to the latest maneuver by Gibson Dunn attorney Jim Walden seeking to delay a decision on the Prospect Park West lawsuit.

On Monday, Walden sent a letter to Brooklyn Supreme Court Judge Bert Bunyan, citing a recent New York Times story on Bloomberg administration pilot projects to press his case for an adjournment until September 7. The hearing had already been adjourned from June 22 to July 20.

In response, city attorney Mark Muschenheim sent Judge Bunyan a letter [PDF] arguing that the Times story is irrelevant to the PPW case, and that Walden’s attempt to delay the hearing by asking for time to pursue additional FOIL requests (he’s already received hundreds of pages from DOT and Council Member Brad Lander) should be rejected.

Note the citation of actual cases in the city’s letter, including a 1984 decision that stated, “FOIL may be used during litigation for improper purposes, including harassment and delay.”

The lawsuit seeking to eradicate the Prospect Park West bike lane may be shaky and borderline-frivolous, but Jim Walden, the lawyer representing the bike lane opponents, seems to have luck on his side this week. The source of his good fortune: A front page New York Times story on Bloomberg administration pilot programs. In a letter written the same day the story was published [PDF], Walden told Brooklyn Supreme Court Judge Bert Bunyan that the piece illustrates “precisely the issue we raised during our June 22 conference with the Court.”

That Wednesday, Walden was in court arguing that the Prospect Park West bike lane was installed as a trial project last summer. He has to prove to Judge Bunyan that NYC DOT presented the redesign as an interim treatment, or else the anti-bike lane lawsuit has no standing in court. There is a four-month statute of limitations on the type of complaint filed by the PPW opponents, known as an Article 78, and the plaintiffs filed suit in March 2011, eight months after the city installed the redesign. So Walden’s shot at keeping the case alive hinges on convincing the judge that the city called the project a “trial,” and the installation itself did not set the four-month clock ticking. (Needless to say, we are deep in the legal weeds at this point, and far from the core contention in the lawsuit, that DOT acted in an “arbitrary and capricious” manner by installing the bike lane after years of public process.)

The problem for Walden is that bike lanes are not installed on a trial basis, and from the get-go, the city has not characterized the Prospect Park West project as anything other than a permanent redesign. In a sworn affidavit [PDF], DOT bike and pedestrian director Josh Benson said he publicly corrected the perception that the bike lane was a trial project at a Community Board 6 hearing last year. Walden has asserted that his “trial” theory will be borne out by documents he obtained from Council Member Brad Lander’s office through a freedom of information request. At the hearing last week, Judge Bunyan adjourned the case until July 20 to give Walden more time to review those documents.

Enter the New York Times. As luck would have it, the Times ran a story on page A1 this Monday — “‘Pilot’ Label Lets Mayor’s Projects Skip City Review” — about Bloomberg administration pilot programs, giving prominent attention to DOT initiatives under commissioner Janette Sadik-Khan. Curiously, the story repeatedly referred to bike lanes to illustrate its point, even though bike lanes are all presented to community boards and receive as much public review, if not more, as they did under previous mayors and DOT commissioners. The article erroneously stated that “painting bike lanes green” is a trial program.

Later that day, Walden sent a letter to Judge Bunyan, asking for the case to be adjourned until September 7 to give him more time to submit more FOIL requests. The primary basis for his request was the New York Times story:

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