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Editor’s note: With yesterday’s appellate ruling prolonging the Prospect Park West case, Streetsblog is running a refresher on the how the well-connected gang of bike lane opponents waged their assault against a popular and effective street safety project. This is the second installment from the six-part NBBL Files. It’s the one that revealed the bike lane opponents didn’t even believe their own legal arguments.

This piece originally ran on October 4, 2011.

This is the second installment in a series of posts examining the tactics employed by opponents of the Prospect Park West redesign. Read the first post.

When they filed their lawsuit this March, opponents of the Prospect Park West redesign had little chance of succeeding in court. As NYU Law Professor Roderick Hills, Jr. told Streetsblog in March, “I take this complaint to be largely public relations, with no more law behind it than is minimally necessary to avoid sanctions for frivolity.” It turns out that some of the most prominent members of the anti-bike lane group “Neighbors for Better Bike Lanes” were perfectly aware of the holes in their case too.

Bike Lane Opponents Knew PPW Was Not Landmarked But Argued Otherwise in Suit

One of the central legal arguments in the Prospect Park West lawsuit asserted that the redesign should have gone through the city’s landmarks and environmental review processes. “Because Prospect Park West touches not one but two sites that are listed on the National Register of Historic Places, New York State and City law demands careful study of various environmental impacts,” stated the lawsuit, referring to the street’s location between the Park Slope historic district and Prospect Park itself.

The city’s lawyers pointed out that each side of the street is landmarked, but not the roadway itself.

Before they filed suit, NBBL president Louise Hainline and her fellow litigant, former deputy mayor Norman Steisel, explicitly acknowledged the merits of what would become the legal argument of their opponents. They knew the bike lane was not landmarked.

On August 2, 2010, Steisel wrote to Hainline with a suggestion [PDF]. If a distinguished architect or city planner could complain about the aesthetics of the lane to the Landmarks Preservation Commission, Art Commission and City Planning Commission, Steisel suggested, First Deputy Mayor Patti Harris might be persuaded to turn against it.

“Unfortunately, the lane is not in the Landmark District,” Hainline conceded later that evening.

Steisel agreed, but he recommended that NBBL push the issue anyway. “Doesn’t matter that landmarks has no jurisdiction they are kindered spirits along with art comm and cpc types,” Steisel wrote. “Bottom line need authorstive voice to say bloomberg legacy will be besmirched by altering this historic street.”

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Editor’s note: Yesterday an appellate panel prolonged the legal assault on the Prospect Park West redesign, ruling that a lower court will have to hold a hearing on the question of whether the PPW bike lane was installed as a “trial” or as a permanent redesign. Of course, the case has never really been about the legality of the Prospect Park West redesign, which was implemented after an extensive public process and is doing exactly what Park Slope residents wanted it to do: reduce speeding, improve pedestrian crossings, and provide a safe north-south bikeway. The lawsuit is just a clever way to sling mud at NYC DOT in the press.

With the tabloids once again reprinting comically outlandish accusations from Jim Walden, the high-powered attorney and rumored Brooklyn DA hopeful who’s representing the PPW opponents, now is a good time to review what the Prospect Park West story is really all about: a few extremely well-connected people who doggedly refused to accept the legitimate outcome of the public planning process, using their extensive contacts in New York City media and politics to throw an epic tantrum. Throughout the day Streetsblog will be reprinting our six-part series, “The NBBL Files,” which explored these connections.

This piece originally ran on October 3, 2011.

Last week, opponents of the Prospect Park West redesign moved to appeal Brooklyn Supreme Court Justice Bert Bunyan’s decision to reject their complaint against the city. If the community board’s approval of the bike lane and the data showing its effect on speeding and safety didn’t persuade them not to sue in the first place, a judicial decision wasn’t going to persuade them now. The longer the litigation drags on, the more time they’ll have to muddy the truth (to borrow a phrase from the Brooklyn Paper).

Since the case is still in the courts, though, we’ve also got more time to get a clearer look at the anti-bike lane group “Neighbors for Better Bike Lanes.” Based on email correspondence obtained via freedom of information request, we now have a better sense of NBBL’s methods — how they’ve exploited their connections to politicians, media personalities, city bureaucrats, and various New York City power players in their attempt to erase the new bike lane in their neighborhood.

Randy Mastro offered pro bono legal representation to Iris Weinshall and Neighbors for Better Bike Lanes immediately after the bike lane was installed. Mastro photo: New York Post

Let’s begin with the connection that set the lawsuit on its path to becoming a media spectacle: NBBL’s access to Gibson Dunn partner Randy Mastro.

Actually, first let’s pause to appreciate a classic NBBL exercise in muddying the truth. In the run-up to suing the city, you may recall that NBBL adopted the posture of reluctant litigants. “Much has been said about a potential legal action; we hope not to be forced to bring one,” said their attorney, Gibson Dunn partner Jim Walden, shortly before filing the suit. At the time, in late February, NBBL and Walden had been grabbing headlines for a few weeks, talking about litigation as a supposed last resort.

In fact, his firm had been planning a lawsuit with former DOT Commissioner Iris Weinshall and the leaders of NBBL for more than seven months. Gibson Dunn provided this service “pro bono.” The person who first offered the use of the firm’s resources to assist Weinshall was Mastro, who co-chairs Gibson Dunn’s litigation arm.

Weinshall and Mastro were not strangers. Both served in Rudy Giuliani’s mayoral administration – Mastro as chief of staff and later first deputy mayor, Weinshall as a high-ranking official in the Department of Citywide Administrative Services and then as DOT commissioner.

On July 3, 2010, Weinshall emailed her daughter, Jessica Schumer, a recent graduate of Yale Law School who campaigned vigorously against the bike lane that summer. “Spoke with Randy mastro he said he would help you with the article 78!” she wrote [PDF]. (An “Article 78″ refers to the type of lawsuit opponents eventually filed in their bid to tarnish DOT and erase the bike lane.)

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Yesterday we found out that the well-connected opponents of the Prospect Park West bike lane are refusing to accept the decision from Brooklyn Supreme Court Justice Bert Bunyan rejecting their lawsuit. A caveat to the journalists who might pick up the remnants of this story: Quotes from the opponents’ attorney, Gibson Dunn partner Jim Walden, often need vigorous fact-checking.

Photo: Gibson Dunn

We’ve written a few posts about the ways Walden and NBBL cherry-picked data about the PPW redesign to suit their conclusions. But it turns out that Walden gave misleading statements about even more basic information — like whom he’s represented as part of his “pro bono” work to eradicate the Prospect Park West bike lane.

In March, soon after the lawsuit was filed, Walden was interviewed by Brian Lehrer on WNYC. At one point Lehrer asked why Walden took the case “pro bono,” given the privileged social status of NBBL members, and whether the group’s political connections played a role:

Lehrer: People say you’re trying to suck up to Senator Schumer and get a job with him because his wife is part of this group.

Walden: Right. Well, she’s not part of the group.

When the lawsuit was at its apex in the news cycle, Walden was trying to distance Schumer from it and deny former DOT commissioner Iris Weinshall’s connection to the anti-bike lane group.

But Walden and Weinshall are happy to reveal their attorney-client relationship — when it suits them.

Streetsblog recently reached a settlement with the City University of New York, stemming from a freedom of information request that CUNY initially contested, to disclose Weinshall’s correspondence regarding the PPW bike lane and her efforts to have it removed. The arrangement stipulates that CUNY does not have to disclose emails that are subject to attorney-client privilege. If Iris Weinshall indeed was not Gibson Dunn’s client, then no emails she sent or received would be shielded from disclosure based on their relationship.

However, in a log of all email correspondence protected from disclosure [PDF], Weinshall claims more than 200 messages between herself, members of NBBL, and Gibson Dunn lawyers should remain confidential due to attorney-client privilege. The shielded documents included messages written six weeks before Walden went on the air saying Weinshall is “not part of the group” suing the city. The log describes many of these messages as “emails between clients and counsel reflecting legal advice and litigation strategy.”

To recap: In March, trying to portray the lawsuit as an exercise in “good government” litigation, Walden goes on the air and tells NPR listeners that Iris Weinshall is not suing the city. Then this summer, when Streetsblog requests Iris Weinshall’s emails via freedom of information law, hundreds of them are off-limits because Weinshall is a Gibson Dunn client.

Gotta hand it to Gibson Dunn attorney Jim Walden. Somehow he’s managed to parlay his neighborhood-level “pro-bono” gig suing the city of New York over a popular protected bike lane into national status as a go-to source for anti-bike quotes. Somewhere along the way, Walden dropped the pretense that he’s fighting for “better bike lanes.”

Photo: Gibson Dunn

Back in March, Walden told Brian Lehrer that his clients “are huge supporters of bikes” and that “I do not hope [the lawsuit] has an impact on the broader bike lane plan.” But this week, in a story about Chicago Mayor Rahm Emanuel’s plans to build 100 miles of protected bikeways, Walden told Reuters that, actually, bike lanes in big cities just aren’t practical:

“Bike lanes are a wonderful idea and people certainly enjoy them, but right now what people need are jobs and ways to make their lives easier,” said New York attorney Jim Walden, who represents plaintiffs in a suit against the Park Slope bike path, which was dismissed by a state judge. “For most big cities, bikes are not a practical way for people to move.”

Nope, not a practical way to move in big cities. When you only have to go one or two miles to get where you need to be, you need maximum lane-miles for motor vehicles. In a time of austerity, cars must continue to monopolize our streets. If households cut back on the thousands of dollars they spend each year maintaining and fueling their vehicles, the economy would tank.

Walden, it seems, would fit right in with the far right-wing pols who see biking as a recreational activity, not a real transportation option. Pols like Tea Party Senator Rand Paul, who, like Walden, has a tendency to warp the numbers to suit his agenda. Last week Paul told Fox News that the 1.5 percent of federal funding dedicated to bike and pedestrian projects is actually 10 percent, and that it’s making our bridges collapse:

Right now we set aside 10 percent for bike paths and turtle tunnels and squirrel sanctuaries and all this craziness. I’m going to say, “let’s take 10 percent of the highway fund, set it aside for emergencies, then have a national priority list and say if this bridge is closed down that’s a national emergency, let’s fix it as a priority.”

Pols like House Majority Leader Eric Cantor, who’s proposed cutting the federal bike-ped program and yanking federal support for bike-sharing. Cantor’s also adept at making bike programs out to cost more than they actually do. The feds have only spent a couple of million on bike-sharing, which the Ohio Virginia rep cleverly masked within the wider pool of bike-ped funding:

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Photo copyright Dmitry Gudkov, used with permission

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.

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.

It's not a trial. Photo copyright Dmitry Gudkov

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.

Transportation Commissioner Janette Sadik-Khan has submitted an affidavit countering Brooklyn Borough President Marty Markowitz’s assertion that the Prospect Park West bike lane was installed as a trial. The rest of the news coming from today’s hearing in Brooklyn Supreme Court once again centers on procedural maneuvering. There was no decision on the Prospect Park West case.

Brooklyn families will have to wait a bit longer before they know this won't be snatched away from them. Photo copyright Dmitry Gudkov

Here are the major takeaways from today’s hearing:

• Sadik-Khan has submitted an affidavit stating that the Prospect Park West project was not installed on a trial basis. Her statement counters an affidavit from Markowitz, submitted before the hearing at the eleventh hour, in which the borough president said Sadik-Khan told him the project would be a trial. The “trial” question is relevant insofar as it affects the standing of the plaintiffs’ case. Their suit will be dismissed if Judge Bert Bunyan determines that the PPW redesign was installed as a permanent project, because the clock ran out on the statute of limitations months before opponents sued the city.
• The city believes that the case might be resolved faster if Judge Bunyan rules on the merits instead of the statute of limitations argument.
• The next hearing is slated for August 3, where Bunyan will decide whether subpoenas served by the plaintiffs’ attorneys should stand. Subpoenas are unusual for this type of case, but the plaintiffs’ attorney, Jim Walden, is seeking to compel Sadik-Khan, City Council Member Brad Lander, and four NYC DOT staffers to appear in court, in what would surely be the media spectacle of the summer.
• It is hypothetically possible that Judge Bunyan could decide the case before August 3.

Just a reminder: Community Board 6 approved this project two years ago, and it has made Prospect Park West a safer street, with less speeding, fewer injuries, shorter pedestrians crossing distances, more biking, and less sidewalk riding.

Two hours after Streetsblog published a post on Monday about the City University of New York’s refusal to disclose former DOT Commissioner Iris Weinshall’s correspondence about the Prospect Park West redesign, bike lane opponents spun up their publicity machine and spat out a press release from their PR firm, LCG Communications [PDF]. The release informed reporters that the opponents’ “pro bono” lawyers, Jim Walden and Georgia Winston of Gibson, Dunn and Crutcher, had served subpoenas to NYC DOT and City Council Member Brad Lander in advance of next week’s court hearing.

It was another chance for Walden to insert easily refutable accusations about the PPW project in the press. Walden sent out some subpoenas, so Rich Calder at the Post could dutifully quote him like so: “The city is desperately trying to avoid litigating the merits of our suit because it cannot justify its misuse of data and failure to conduct a proper safety study.”

Never mind that the city’s court filing demolished the opponents’ claims about “misuse of data” and made it perfectly clear that DOT conducted its safety study the same way that other transportation agencies conduct them. There is no PR firm working that angle, and besides, that happened a few weeks ago. It’s not news anymore. Nor, apparently, did most reporters think it was news at the time. No major dailies saw fit to run a story on it.

One thing Walden didn’t mention in the press release is that the type of hearing where Brooklyn Supreme Court Judge Bert Bunyan will render a decision on the lawsuit — known as an Article 78 proceeding — rarely involves testimony. The city must only demonstrate that it followed proper procedure when installing the PPW redesign, according to legal experts who evaluated the plaintiffs’ case for Streetsblog.

Another thing the opponents’ PR firm didn’t mention: Judge Bunyan had not even sanctioned testimony at the time Walden sent out the subpoenas, though it’s possible he may decide to do so.

Mark Muschenheim, senior counsel at the NYC Law Department, said he will challenge Walden’s subpoenas:

An evidentiary hearing is not warranted in this type of case. We will move to quash the subpoena, and are confident that our motion will be granted. Moreover, the documents filed with the court provide ample information for a decision to be made on the lawsuit’s merits, and we believe that after a review of this record the court will support the City’s actions.

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.”