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New York State Public Service Commission
Case
01-E-0377
Joint Petitition of Consolidated Edison Company of New York, Inc.
and FSM East River Associates LLC
Public
Hearing 26 September 2002
Submission
of the East Midtown Coalition for Sensible Development
Without
attempting to reiterate the extensive testimony of other witnesses
at this heariung, the East Midtown Coalition for Sensible Development,
a union of six neighborhood organizations and many residential buildings,
particularly calls to the attention of the Commissioners the following
deficiencies in the petititoners' Draft Generic Environmental Impact
Statement (DGEIS):
OMISSIONS
The
DGEIS is not based on sound planning principles, and must be revised.
Those issues which the petitioners clearly wish to disregard are
inadequately analyzed and either summarily dismissed or omitted.
These are among the more egregious:
Shadow
Studies: Language such as "adjustment to building envelopes"
is meaningless. Tall buildings cast shadows. Even the "lower
density"alternative included in the DGEIS has 70-story buildings.
The
notion that open space shaded at some time is offset by other areas
not shaded at that time ignores the basic issue that a development
of this magnitude will place additional stress on the very limited
park area that presently exists, the Tudor City parks and St. Vartan
Park. Moreover, much of the open space assumed in the DGEIS would
clearly benefit the development itself, and cannot be equated with
existing parkland.
In
fact, whether adjusting building envelopes is even feasible, or
can have any meaningful effect, is impossible without knowing the
designs proposed. The impact of shadows on public land cannot be
addressed without a Site-Specific Environmental Impact Statement,
and its discussion in the DGEIS is inadequate and irrelevant.
Streets:
The study assumes that 39th and 40th Streets between First Avenue
and the FDR Drive, having been demapped, are included in the buildable
area. But the purpose of the City's cession of the streets to Con
Edison is now gone - the Waterside property will no longer serve
a public purpose. The matter is similar to utility easements, which
are granted as a public necessity.
The
public necessity now is improved circulation of traffic, and the
stated policy of the City government is to provide the public with
access to the waterfront. Therefore, the streets must be restored
to public use. The traffic analysis in the DGEIS is flawed without
their inclusion as thoroughfares.
Adaptive
Re-Use: The argument of the DGEIS that the existing buildings
on the site have no "historical value" is specious. Structures
do not have to be architecturally outstanding nor noteworthy in
history to have significant value to the community. Two of the existing
buildings are testimony to the neighborhood's industrial past, and,
in the minds of many residents, more graceful and interesting in
design than much that has been built in Manhattan since.
Moreover,
the statement that they have been significantly altered is false.
The DGEIS does not honestly and adequately address the issue of
adaptive re-use.
Wind
Studies: The Waterside properties lie along the East River,
an open area subject to considerable wind. Yet the DGEIS does not
consider wind patterns under any of the programs it purports to
analyze, nor the effect the massing or placement of buildings may
have on the tunnelling of wind into the streets or parks, which
may be significant and deflect the public from their use.
The
FDR Drive: The New York State Department of Transportation is
currently re-designing and re-building the FDR Drive, including
new entrances and exits. Although the Drive and its southbound service
road run along the eastern boundary of the Waterside property, the
DGEIS does not analyze the effect various configurations of the
new highway may have on the development, or how the development
may affect the flow of traffic to and from the Drive.
It
is likely that the State will require more space to adequately configure
the highway, and if so, it should be taken from the Waterside property,
not the river side, which would thwart the City's long-standing
plan to construct a riverside esplanade around Manhattan.
Alternatively,
if the highway is ultimately built below grade, the petitioners
should be required to deed a sub-grade easement to the State adequate
to its needs.
These
should be conditions the Commission attaches to approval of the
contract of sale.
Air
Emissions: The predicate to decommissioning the Waterside steam-generation
plant is the repowering of Con Edison's East River plant at 14th
Street. But the Article X proceeding that approved the repowering
did not conclude an air emissions study under the new State standard
of PM 2.5. (Spitzer v. Farrell, 742 N.Y.S.2d 285.)
Waterside
is only a mile from the East River plant. The East Midtown Coalition
for Sensible Development was an active party in the repowering case,
and never signed an agreement to dispense with a new emissions study.
There seems to be an assumption that air quality will improve with
the decommissioning of Waterside, but we and the public are entitled
to know what the PM 2.5 emissions are now at East River and what
they will be after the repowering.
This
issue is not addressed by the DGEIS either. It is another example
of the segmentation that has characterized the East River-Waterside
scheme since its inception, in contravention of state environmental
law.
IMPOSSIBILITY
OF MITIGATION
Findings:
Many of the DGEIS' findings regarding environmental impact defy
logic. The addition of 10,000 people and 2,600 vehicles to less
than five blocks cannot fail to add to noise and affect air quality,
which the DGEIS denies.
The
Commissioners should walk the neighborhood on a weekday to see how
grossly unrealistic the study standards are. Traffic congestion
is not confined to intersections, but frequently backs up for many
blocks - right off the map of the study area. Theoretical rules
counting the number of vehicles at an intersection bear no relation
to the reality of clogged streets with concomittant noise and fumes.
An
attempt to read the DGEIS study standards logically yields the result
that, if the existing situation is already horrible, adding to it
has no impact.
Similarly,
the notion that changing the timing of traffic lights improves vehicle
flow is illlogical - the next developer will urge they be changed
again. Specifically, the Commissioners should see the effect changing
the timing has had at First Avenue and 57th Street, which was done
not for new development but to speed traffic to and from the Queensborough
Bridge. The effect has been to disrupt the sequencing of the signals
along First Avenue and create a new bottleneck in an already-congested
an area - an area, by the way, into which the Waterside development
will feed more traffic.
Again,
to test the idea that lane-specific turning signals can mitigate
anything in Manhattan, the Commissioners should view Third Avenue
at 42nd Street, where the shear pressure of pedestrian traffic renders
the signal useless and actually traps vehicles in the intersection.
Opening
more stairways to the Lexington Avenue subway platform at 42nd Street
mitigates nothing when the line is already over capacity. The trains
are the destination, not the platform.
Adding
parking restrictions and enforcing them obviously requires more
police, but the DGEIS denies the need.
Nowhere,
even in the discussion of the obvious need for more classroom space,
is there any acknowledgment of any impact costs. These are real
costs which must be assessed, and they logically and fairly belong
with the developer. Classroom space is not a trade-off for open
space.
All
of the unsolvable problems created by the development plans - and
minimized or side-stepped in the DGEIS - ultimately derive from
a density of 12 FAR. What mitigatioin is possible can only be done
at a considerably lower density.
Capability:
Much of the proferred "mitigation" is not within the petitioners'
power to accomplish - they can create or worsten a problem, but
cannot mitigate. Most of what they suggest merely foists additional
burdens on the City, and therefore the taxpayers - for police protection,
traffic control, additional busses, another school.
The
proponents cannot accomplish these ends, and they cannot require
the City to accomplish them, and it is likely nothing will be done.
Therefore, none of these devices can be considered mitigation.
The
only way to mitigate the impact of this massive development is to
drastically lower its density.
THE
ALTERNATIVE
The
DGEIS purports to study an alternative plan at FAR 6, but skews
the facts to generate the same impacts as at FAR 12. The result
is ludicrous, with 70-story buildings and no public open space.
A
proper environmental study requires an honest appraisal of the impact
of development at half the density the petitioners propound, and
therefore the East Midtown Coalition for Sensible Development has
retained the firm of Buckhurst, Fish and Jacquemart to create a
more meaningful lesser-density alternative. That program has been
submitted to the Commission in the course of this hearing.
This
is a conceptual plan regarding density, use and open space, not
a design study, and the drawings are illustrative only.
A serious
evaluation of our plan will show that the impact on traffic, public
transport and shadows is far less than that of any other proposal.
NECESSITY
OF A SUPPLEMENTAL DGEIS:
The
recent public announcement that the United Nations Development Corporation
seeks Robert Moses Park as a building site radically changes conditions
at the north end of the Waterside property. This is the area the
petitioners propose for significant commercial development - newspaper
accounts report negotiations with a prospective corporate tenant
for an 80-story building at 41st Street. The addition of another
large commercial building on the next block must be addressed in
the context of vehicular and pedestrian traffic, public services
and special security requirements.
The
UN's request should not be considered conjectural. The City has
repeatedly stressed the importance of the organization's presence
and has consistently met its needs.
The
United Nations project is a significant new development which must
be studied in a supplemental DGEIS, and its relationship to, and
possible inclusion in, the Waterside redevelopment is of immense
interest to the community. There are no public hearings for the
Final Environmental Impact Study, so the time for assessment is
now.
The
alternative plan proposed by this Coalition includes a land-swap
proposal that should be satisfactory to both the petitioners and
the United Nations, without the legal problems entailed in the loss
of park land.
IMPROPER
PROCEDURE
The
petitioners' contract of sale is driving the approval process, and
that is grossly improper It is improper in sequence, and improper
in intent. The contract should not be in place before the Environmental
Impact Statement, because putting the contract first prejudices
consideration of all else.
The
petitioners' contract is variable: If the Public Service Commission,
or another public agency, attaches conditions to the contract, the
parties have the right to cancel it - and that includes zoning restriction
to anything less than FAR 12. This clause is designed to scare the
Commission into approving the plans as presented, lest the process
have to start all over again. This is a conditional contract, and
the operative issue is the ability of the parties to abort if the
maximum density is not approved.
The
result is a sham series of public hearings. The PSC is going through
the motions, though it already knows it will find the contract to
be in the public interest, to keep the
project alive. This process vitiates the law.
Planning
should be done through the public process, and a contract vendee
chosen upon completion of that process. No mandate should ever have
issued for maximum purchase price because that automatically mandates
maximum density, gutting the purpose of environmental review.
The
proper process pursuant to Section 70 is first to determine if the
sale and distribution of the proceeds is in the public interest,
then to determine how the proceeds will be distributed, then to
examine various zoning programs and determine the public interest
for each, then to submit a site-specific zoning proposal to the
City's ULURP process, then for the PSC to prepare a contract based
on the approved zoning.
Instead,
the contract terms are already set, the purchaser is determined,
the distribution of proceeds is not revealed, and by this method
the decision makers are constrained by the fact a buyer has already
been selected with contractual terms that are tied to zoning scenarios.
The result is an attempted end run around SEQRA and ULURP.
For
all these reasons, the DGEIS must be reformed to provide a more
complete and accurate analysis, a Supplemental DGEIS should issue,
the Commission should order a Site-Specific EIS for the ULURP
process, and serious consideration should be given to the alternative
plan put forward by this Coalition.
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REMINDER