SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------x YORKSHIRE TOWERS COMPANY L.P., and YORKSHIRE TOWERS TENANTS ASSOCIATION, Case No. 12-CV- Plaintiffs, -against- UNITED STATES DEPARTMENT OF TRANSPORTATION, RAY LAHOOD, in COMPLAINT his capacity as Secretary of the United States Department of Transportation, FEDERAL TRANSIT ADMINISTRATION, PETER M. ROGOFF, in his capacity as Administrator of the Federal Transit Administration, METROPOLITAN TRANSPORTATION AUTHORITY, FERNANDO J. FERRER, in his capacity as Acting Chairman of the Metropolitan Transportation Authority, NEW YORK CITY TRANSIT AUTHORITY, THOMAS F. PRENDERGAST, JR., in his capacity as the President of the New York City Transit Authority and METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, MICHAEL HORODNICEANU, in his capacity as President of the Metropolitan Transportation Authority Capital Construction Company. Defendants. -------------------------------------------------------------------------x Case No. 13- CV- 175 7 (JMF) ECF Case COMPLAINT Plaintiffs Yorkshire Towers Company, L.P. and Yorkshire Towers Tenants Association, by and through their attorneys, Ceccarelli Weprin PLLC and Anderson, Kill & Olick, P.C. respectfully allege: SUMMARY OF THE CASE 1. This case challenges Defendants failure to go forward with a limited scope Supplemental Environmental Impact Statement (Limited Scope SEIS) to evaluate the 86 th 2 Street Communitys one-entrance, three escalator, corner design solution at the northeast corner, commercial corner intersection of Second Avenue and 86 th Street for the north entrance to the 86 th Street Station [less than 1% order of magnitude of total costs for the first of four phases of the Second Avenue Subway (SAS)] (the One-Entrance, Corner Solution) without suspending the rest of SAS project activities not directly affected. 2. As United States Congresswoman Carolyn B. Maloney and the entire Coalition of Upper East Side Elected Officials have pointed out, this design solution is a decided win-win for the 86 th Street Community and Defendants Metropolitan Transportation Authority and New York City Transit Authority (MTA NYCT) in at minimum sixteen new and significant respects, including safety, minimizing community disruption on a scale of five to one, and avoiding violations of important City of New York laws, policies and standards regarding safety and design. The case for Defendants to implement the One-Entrance, Corner Solution without further delay becomes especially compelling, when the beneficial effects realized and adverse impacts eliminated or substantially reduced in each of these sixteen categories, and the limited variations in entrance siting and design that make the 86 th Street Communitys One-Entrance, Corner Solution possible, are studied and evaluated, and compared in their entirety to the MTAs planned two-entrance, midblock scheme east of Second Avenue in the north sidewalk of predominantly residential 86 th Street (Two-Entrance, Midblock Scheme). 3. Despite the environmental stakes, Defendants are proceeding with the building of the Two-Entrance, Midblock Scheme without preparing a Limited Scope SEIS while continuing protracted delay in furnishing documented environmental analysis that would begin to demonstrate why the Defendants should not be going forward with implementing the One- Entrance, Corner Solution presented by the 86 th Street Communitys multidisciplinary 3 architectural and engineering design team. In doing so, Defendants have violated the National Environmental Policy Act, 42 U.S.C. 4231, et seq.(NEPA); the Council of Environmental Quality implementing NEPA regulations under 40 C.F.R. 1500.1 et seq; and United States Department of Transportation implementing NEPA regulation, subparagraph (f)(3) of 23 C.F.R. 771.130, as codified under 23 U.S.C. 139(l)(2) governing the issuance of Limited Scope SEISs for public transportation capital projects, and the Administrative Procedure Act, 5 U.S.C. 706. 4. Moreover, Defendants are poised to disregard MTA NYCTs own standards, set forth in the study especially commissioned for SAS entrances and the agencies related design policies and guidelines never considered or evaluated in an environmental impact statement or otherwise publicly disclosed, by beginning highly disruptive top down, cut and cover excavation of 300,000 cubic feet of soil and bedrock that relies on inherently dangerous blasting, and building a shoring wall for the entire 270 feet length of the Two-Entrance, Midblock Scheme east of Second Avenue. This leads to all of the associated adverse impacts this type of midblock entrance design and construction entails, and risks transforming Defendants midblock entrance location in the north sidewalk of 86 th Street into one of the most dangerous places in the New York City for community residents, pedestrians and vehicular traffic alike. 5. The 86 th Street Community therefore turns to the Court for relief. THE PARTIES 6. Plaintiff Yorkshire Towers Company, L.P. is a domestic limited partnership and the fee owner of the 698-unit apartment building known as Yorkshire Towers (Owner). Yorkshire Towers is the single largest residential building impacted by the SAS. It consists of two 21- story residential towers spanning an entire block on 2 nd Avenue between 86 th and 87 th Streets and is 4 home to over 2,000 residents, many of whom are elderly or young families with children. The main entrance is located on the north side of East 86 th Street between 1 st and 2 nd Avenues at 305- 315 East 86 th Street. 7. Plaintiff Yorkshire Towers Tenants Association (YOTTA or Tenants Association) is a voluntary unincorporated association duly organized and existing under the laws of the State of New York. 8. YOTTA has its principal offices in Yorkshire Towers at 305 East 86 th Street, New York, New York, where its President, Doron Gopstein, resides. 9. Defendant United States Department of Transportation (DOT) is an Executive Branch Department of the United States Government, pursuant to 49 U.S.C. 102. DOT has its principal offices at 1200 New Jersey Avenue, S.E., Washington, D.C. 20590. DOT is ultimately responsible for the actions of the FTA. 10. The Honorable Ray LaHood is the Secretary of the DOT. 11. Defendant FTA is an administrative agency of the DOT, pursuant to 49 U.S.C. 107. The FTA has its principal offices at 1200 New Jersey Avenue, S.E., Washington, D.C. 20590. 12. The Honorable Peter M. Rogoff is the Administrator of the FTA. 13. Defendant MTA is a public benefit corporation operating pursuant to Article 5, Title 11 of New York State Public Authorities Law. The MTA has its principal offices at 347 Madison Avenue, New York, New York 10017. 14. The FTA and MTA are acting as joint lead agencies responsible for the preparation of environmental impact statements for the SAS Project under the NEPA and its implementing regulations pursuant to 40 C.F.R. 1501.5, 1506 and 1508.16 (collectively, at times the Agencies). 5 15. The Honorable Fernando J. Ferrer is Acting Chairman of the MTA. 16. Defendant New York City Transit Authority (the NYCT) is an affiliated agency of the MTA, and a public benefit corporation operating pursuant to Article 5, Title 9 of New York State Public Authorities Law. The NYCT has its principal offices located at 2 Broadway, New York, New York 10004. The NYCT collaborated with the MTA in the preparation of a Final Environmental Impact Statement (FEIS) and a Supplemental Environmental Assessment (SEA) for the SAS. 17. The Honorable Thomas F. Prendergast is the President of the NYCT. 18. Defendant MTA Capital Construction Company (the MTACC) is a wholly owned subsidiary of the MTA. The MTACC has its principal offices located at 2 Broadway, 8 th Floor, New York, New York 10004. The MTACC is responsible for the construction and management of the SAS. 19. Michael Horodniceanu is the President of the MTACC. 20. Plaintiffs have standing to bring this action. 21. Plaintiffs have the requisite personal stake in the outcome of the action upon which to invoke federal court jurisdiction and to trigger the exercise of the Courts remedial powers. JURISDICTION AND VENUE 22. This Court has original jurisdiction over this matter under 28 U.S.C. 1331 because it arises under the laws of the United States, including NEPA and the Acts implementing regulations and APA. 23. The Court also has also has original jurisdiction over this matter under 28 U.S.C. 1361, because Plaintiffs seek relief in the nature of mandamus to compel an officer or employee of the United States or United States agency to perform a duty owed to Plaintiffs. 6 24. This Court has personal jurisdiction over the Defendants because they each transact business within the State of New York. 25. Venue in the Southern District of New York is proper under 28 U.S.C. 1391(e), because a substantial part of the events and omissions giving rise to Plaintiffs claims occurred there, and the property that is the subject of this action is situated there. Venue is also proper in the Southern District of New York, since each Defendant is subject to personal jurisdiction in the Southern District at the time this action is being commenced. 28 U.S.C. 1391. RELEVANT STATUTORY AND REGULATORY AUTHORITY INVOLVED REGARDING ISSUANCE OF LIMITED SCOPE SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENTS FOR PUBLIC TRANSPORTATION CAPITAL PROJECTS A. Administrative Procedure Act 26. The Courts review of this action is governed by the APA under 5 U.S.C. 706. The APA is the governing authority for the Court to (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; or (E) unsupported by substantial evidence.. B. The National Environmental Policy Act of 1969 27. NEPA is the basic national charter for protection of the environment. 40 C.F.R. 1500.1. Among the purposes of the statute are to insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken, and to help public officials make decisions that are based on [an] understanding of environmental consequences. Id. at 1500.1(b)-(c). 7 28. To achieve these purposes, NEPA requires all agencies of the federal government to prepare and make public a detailed statement regarding all major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. 4332(2)(C); see also 40 C.F.R. 1508.18. This statementknown as an Environmental Impact Statement (EIS)must describe, among other things: (1) the environmental impact of the proposed action, (2) any adverse environmental effects which cannot be avoided should the proposal be implemented, and (3) alternatives to the proposed action. Id. at 4332; see also 40 C.F.R. 1502.14, 1502.16. 29. NEPA requires federal agencies to develop and rigorously explore and objectively evaluate all reasonable alternatives, including those that are not within the jurisdiction ofthe agency. 42 U.S.C. 4332 (2) (E); 40 C.F.R. 1502.14 (a)-(c). 30. In addition, the agency shall state how alternativeswill or will not achieve the requirements of sections 101 and 102(1) of the Act. 40 C.F.R. 1502.2(d). This requires agencies to use all practicable means and measures to assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings. 42 U.S.C. 4331(b)(2). C. The Council on Environmental Quality Implementing NEPA Regulations 31. The Council on Environmental Quality (CEQ) promulgated regulations implementing NEPA under the authority of 42 U.S.C. 4371(c)(2). See 40 C.F.R. pts. 1500- 1508. 32. The CEQ regulatory framework details an extensive environmental review process, in which agencies are compelled to consider the environmental impacts of their actions and formally release their findings in various NEPA documents, including environmental impact statements. See 40 C.F.R. 1500.1. 8 33. As such, the environmental impact statement is not merely a means of public disclosure: its primary purposeis to serve as an action-forcing device. 40 C.F.R. 1502.1. 34. Pursuant to the CEQ regulations, an EIS must consider environmental effects of alternatives, and means to mitigate adverse environmental impacts. 40 C.F.R. 1502.16(d); see 40 C.F.R. 1508.25(c). The section of an EIS analyzing alternatives is the heart of the environmental impact statement. 40 C.F.R. 1502.14. 35. According to Forty Most Asked Questions Concerning CEQs NEPA Regulations, 46 18026-01 (March 1981) (CEQ FAQ), [r]easonable alternatives includes those that are practical or feasible from the technical and economic standpointrather than simply desirable from the standpoint of the agency. CEQ FAQ at Q2a. 36. An EIS must further include a full and fair discussion of the significance of all direct, indirect, and cumulative effects of the action and inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. See 40 C.F.R. 1502.1, 1502.16(a)-(b), 1508.25(c). 37. Significance as defined under 40 C.F.R. 1508.27, is determined by evaluating the context and intensity of an agencys proposed action. 38. Context involves considerations of whether an actions effects are short- or long- term, or site-specific or wide ranging. 39. Intensity requires evaluation of many factors, including A) whether the impacts are beneficial and adverse; B) the degree to which public health and safety are affected; C) the degree to which the effects on the quality of the human environment are likely to be highly controversial; D) whether the proposed action is related to other actions with individually 9 insignificant but cumulatively significant impacts: and E) whether the action threatens violation of Federal, State, or local law. 40 C.F.R. 1508.27 (a)(b)(1)-(2), (4)-(5), (7), (10). 40. Under 40 C.F.R. 1506.2(d), an EIS must also discuss any inconsistency of the proposed action with local law, and, where such inconsistency exists, an EIS must discuss the extent to which the agency would reconcile its proposed action with the law. 41. The agencys evaluation of these factors must be concise, clear, and to the point, and be supported by evidence that the necessary environmental analyses have been made. See 40 C.F.R. 1502.1. An agency shall also insure theprofessional integrity, including scientific integrity, of the discussions and analyses in environmental impact statement, identify any methodologies used andmake explicit referenceto the scientific and other sources relied upon for its conclusions. 40 C.F.R. 1502.24. 42. The CEQ regulations emphasize the importance of agency cooperation early in the NEPA process and the procedure for each agencys proactive and productive participation in environmental review. 40 C.F.R. 1501.6. 43. If, after preparing an EIS, [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, the agency must prepare an SEIS before proceeding with the project. 40 C.F.R. 1502.9(c)(1)(ii). 44. As with an EIS, the purpose of an SEIS is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the government. 40 C.F.R. 1502.1. 45. Where a SEIS is required, the agency shall prepare a concise public record of decision which shall: (a) [s]tate what the decision was [;] (b) [i]dentify all alternatives considered by the agency, specifying the alternative or alternatives which were considered to be 10 environmentally preferable. [and] (c) [s]tate whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. See 40 C.F.R. 1505.2. 46. The DOT may first elect to complete a supplemental environmental assessment (SEA) as an action-forcing device to determine whether an environmental impact statement for a public transportation capital project must be supplemented because new information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts would result in significant environmental impacts never evaluated before in the EIS. [40 C.F.R. 1501.4(b),(c) and 23 C.F.R 771.130 entitled Supplemental environmental impact statements] If the new information or circumstances is significant as defined under 40 C.F.R. 1508.27, then a SEIS is mandated in accordance with 40 C.F.R. 1502.9(c)(1)(ii),(2). 47. CEQ advises that an EA (SEA) is a concise public document, which should be kept to not more than approximately 10-15 pages. CEQ, Forty Most Asked Questions Concerning CEQs NEPA Regulations, 46 FR 18026-01 (March 1981) (CEQ FAQs), at Q36a. . In most cases . . . a lengthy EA indicates that an EIS [or SEIS] is needed. Id. at Q36b. D. United States Department of Transportations Implementing NEPA Regulations Governing the Issuance of Supplemental Environmental Impact Statements 48. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (enacted August 10, 2005), 23 U.S.C. 139 includes provisions governing the running of a six- month limitations period governing when the DOT is required to prepare a SEIS for public transportation capital projects under Subparagraph 2(l). 49. Subparagraph 2(l) of 23 U.S.C. 139 entitled, New Information provides that the Secretary of the DOT is required to prepare a SEIS after the close of the public comment periods 11 involving prior environmental review such as the FEIS or SEA prepared for the SAS, if that information satisfies the requirements for preparation of a SEIS under DOT SEIS regulations set forth under 23 C.F.R. 771.130. 50. The DOT SEIS regulations under 23 C.F.R. 771.130 are implementing NEPA regulations in accordance with the joint Federal Highway Administration/Department of Transportations Environmental Impact and Related Procedures. See 23 C.F.R. 771.101, et seq. 51. Under these regulations, the draft [S]EIS must identify and consider all reasonable alternatives and describe the mitigation measures that will be used in the proposed action. See 23 C.F.R. 771.123. (emphasis supplied) 52. Incorporated by reference into, and codified as federal law under 23 U.S.C. 139(l)(2), are DOT SEIS regulations under 23 C.F.R. 771.130 which provide in pertinent part that [a]n EIS shall be supplemented whenever the Administration determines that: (1) [c]hanges to the proposed action would result in significant environmental impacts that were not evaluated in the EIS; or
(2) [n]ew information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS. 23 C.F.R. 771.130(a) (emphasis furnished). 53. The DOT regulation regarding when a SEIS is required to be prepared by the agency directly adopts the CEQ SEIS regulation in its entirety 1 and goes further by adding the clause, not evaluated in the EIS to emphasize that mere internal review or the lesser, preliminary
1 If, after preparing an EIS, [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, the agency must prepare an SEIS before proceeding with the project. 40 C.F.R. 1502.9(c)(1)(ii).
12 review of a [S]EA by the agency without public review and comment, and the action-forcing device of an [S]EIS does not suffice under CEQ regulation, 40 C.F.R. 1502.1. 54. The DOT SEIS regulations specifically provide for the preparation of a limited scope SEIS to avoid needlessly delaying an entire project when only a small portion of it requires further review. 23 C.F.R. 771.130(f). Subparagraph f(3) of 23 C.F.R. 771.130, expressly contemplates that a SEIS of limited scope may be required: to address issues of limited scope, such as the extent of proposed mitigation or the evaluation of location or design variations for a limited portion of the overall project. (emphasis supplied) 55. The preparation of a Limited Scope SEIS shall not necessarilyrequire the suspension of project activities; for any activity not directly affected by the supplement. or limit the choice of reasonable alternatives, until the [SEIS] is completed. 23 C.F.R. 771.130(f)(3). (emphasis furnished). 56. Under 23 U.S.C. 139(l), there are two distinct limitations periods for claims seeking judicial review of actions taken by a federal agency for public transportation capital projects like the SAS. 57. The limitations period for a Limited Scope SEIS under DOT SEIS regulation, 23 C.F.R. 771.130(f) does being to run pursuant to 23 U.S.C. 139(l)(2) until 180 days after the date of publication of a notice in the Federal Register since the preparation of a supplemental environmental impact statement when requiredis a considered a separate final agency action from the six month limitations period that applies under 23 U.S.C 139(l)(1) to non-SEIS environmental review, such as the FEIS and the less rigorous, preliminary review of the SEA prepared for the SAS. 2
2 See fn 4 below. 13 FACTS A. Introduction 58. The former lead architect for SAS entrances and ancillary facilities, Edward L. Cohen is the architect for the multi-disciplinary design and engineering team for the Yorkshire Towers Owner and Tenants Association, and the greater 86 th Street Community through their elected representatives, consisting of the entire Coalition of Upper East Elected Officials, led by United States Congresswoman Carolyn B. Maloney and including State Senator Liz Krueger, State Assemblyman Micah Kellner and City Councilwoman Jessica Lappin (collectively, the 86 th
Street Community). 59. As a lead architect for SAS, Mr. Cohen was responsible for the planning and design of 48 entrances and 32 ancillary buildings, the new 8.5 mile subway line on the east side of Manhattan, an over $16 billion project on behalf of one of the largest international architectural and engineering firms, the joint venture of DMJM Harris Arup from 2001-2002 (DHA). 3 An important part of this planning and design work by Mr. Cohen was the preparation of a comprehensive report, entitled SAS Station Entrances Study, dated February 2003 (the SAS Entrances Study). He also actively participated in, and contributed to the drafting of the MTA NYCTs Planning and Design Guidelines for New Underground Stations, dated June 2004 (the New Design Guidelines).
3 AECOM, a Fortune 500 company acquired DMJM Harris in January 2010. The company has 45,000 employees worldwide ,and realized $8.3 billion in annual revenue through June 30, 2012 (http://www.aecom.com/ News/Fact+Sheet). AECOM is the prime consultant for the engineering and design efforts for the new Second Avenue Subway (SAS) project in Manhattan. (http://www.aecom.com/What+We+Do/Transp ortation/_projectsList/Second+Avenue+Subway). See also issue 3 of AECOMS e-magazine showing timeline on progress of SAS through 2012 (http://one.aecom.com/issue03/#!/second-avenue-subway). As the prime consultant for the SAS AECOM continues to make design and engineering changes for the SAS with a team of at least 30 architects and engineers with offices for the completing this work located at 20 Exchange Place in close proximity to MTACC headquarters in downtown Manhattan at 2 Broadway.
14 60. The New Design Guidelines for the building of new subway stations in the 21 st
Century such as the SAS are to be distinguished from the MTA New York City Transit Station Planning and Design Guidelines for existing stations (the Existing Guidelines) for the rest of the subway system built more than 75 years ago and largely dating back to the early part of the 20 th Century. The New Design Guidelines take into account the many, new design, engineering, urban and transportation planning best practices that have evolved and are involved in the siting and construction of new subway tunnels, stations and entrances. The Existing Guidelines in contrast generally involve rehabilitating the original stations within narrower confines of surface and subsurface limitations dating back to when they were first built. 61. The Station Project Review Committee of MTA New York City Transit (MTA NYCT), including the chief architect and structural engineer for NYCT (the Station Committee), unanimously approved The New Design Guidelines for use in connection with the SAS and other new construction for underground stations. Moreover, the then President of MTA NYCT, Lawrence G. Reuter points out in the foreword to the Guidelines that it incorporates clear design elements and principles; and that the document is evolving and will continue to be an essential and useful design reference manual. 62. The New Design Guidelines have applicability and are being used not only for the SAS but apply as well to any new underground subway that is being built such as the no. 7 line extension to the Javits Convention Center at 34 th Street. 63. Mr. Cohens experience before selection as the lead architect for SAS entrances and ancillary facilities, includes further significant public service as the New York City Chief of Urban Design for the Manhattan Office of the New York City Planning Department and Deputy Director of Transportation Design Office for a period of seven years. 15 64. The 86 th Street Communitys multidisciplinary design and engineering team led by Mr. Cohen developed and presented, beginning January 5, 2012, new detailed and comprehensive, design and engineering drawings, reports and related submittals (collectively at times the Design Submittals), for review by the FTA and MTA as joint lead agencies responsible for NEPA compliance (collectively, at times the Agencies), the 86 th Street Communitys, One-Entrance, Corner Solution with three escalators at the northeast, commercial intersection of Second Avenue and 86 th Street (the Northeast Corner) for the north entrance to the 86 th Street Station (at times the North Entrance). This design solution is a decided win- win for the 86 th Street Community and the MTA in at least sixteen new and significant respects when beneficial effects realized and adverse impacts eliminated or substantially reduced are studied and evaluated in their entirety, and compared to the MTAs planned Two-Entrance Midblock Scheme. The agencys planned two entrances have two escalators one sited on the Northeast corner and one at the midblock in the north sidewalk of predominantly residential 86 th
Street, east of the Northeast Corner. 65. The other members of Mr. Cohens design team are civil engineer, Peter S. Schneidkraut, P.E; transportation planning engineer, Jerome M. Lutin, Ph.D., P.E, AICP; and geotechnical and underground engineer, Ingo H. R. Fox, PE, MSc, DIC (collectively, the Design Team). 66. Although the 86 th Street Communitys, One-Entrance, Corner Solution for the north entrance of the SAS 86 th Street station 4 is of limited scope (less than 1% order of magnitude of
4 Prior environmental impact statement and supplemental assessment review for the SAS Project relating to the north entrance for the 86 th Street Station consists of the Final Environmental Impact Statement (FEIS) published in May 2004; and the Supplemental Environmental Assessment regarding the siting of midblock 72 nd Street and 86 th
Station Entrances published in June 2009 (SEA) followed by the FTAs Findings of No Significant Impact (FONSI), dated October 29, 2009 regarding the SEA. 16 total costs for phase one of the project) and is further limited to the first of the four phases of the SAS 5 , it nevertheless presents, for this limited scope, new and significant information and circumstances regarding beneficial effects achieved and adverse impacts eliminated or substantially mitigated, along with the limited entrance siting and design variations that make them possible as set forth in Section G below. These beneficial effects and adverse impacts eliminated or substantially mitigated have never been studied, evaluated and compared to the MTAs Two-Entrance Midblock Scheme in an EIS of any kind for the SAS, whether a limited scope SEIS as advanced here or otherwise. B. The MTA NYCTs Essential Criteria for Preferred One-Entrance, Corner Solutions over Multiple Entrances Sited Midblock Set Forth in the New Design Guidelines and SAS Entrances Study, and Violation of Mayors Executive Order No. 22 as Adopted by MTA NYCT
67. Section 10.3.2 entitled Entrance Placement of the Entrances Chapter to the New Design Guidelines provides in pertinent part: Specific placement recommendations are as follows: Corner entrances are preferred over mid-block entrances, as they are highly identifiable in the urban context and encourage crossing at traffic- regulated street corners. Station entrances should be located off sidewalks and in existing buildings whenever possible, in order not to obstruct pedestrian traffic and to minimize conflicting movements. Where entrances must be located on sidewalks, they should not cause sidewalk
They respectively appear at: http://www.mta.info/capconstr/sas/feis.htm; http://www.mta.info/capconstr/sas/ea.htm. http://www.mta.info/capconstr/sas/documents/ea/FONSI%2010-29-09.pdf (March 15, 2013) The SEA is 339 pages long, including 3 appendices totaling 95 pages. There is a de facto presumption that the SEA is inadequate given its size, which is 22 times greater than standard set by the CEQ. The agency responsible for preparing implementing rules for NEPA compliance for all federal agencies advises that an EA (SEA) is a concise public document, which should be kept to not more than approximately 10-15 pages. CEQ, Forty Most Asked Questions Concerning CEQs NEPA Regulations, 46 FR 18026-01 (March 1981) (CEQ FAQs), at Q36a. . In most cases . . . a lengthy EA indicates that an EIS [or SEIS] is needed. Id. at Q36b (emphasis furnished).
5 Phase Two is the expansion of the SAS into Harlem from 125 th to 105 th Streets and includes stations at 125 th , 116 th , and 106 th Streets (FEIS 3-48). Phase Three extends from 62 nd to Houston Streets, and includes stations at 55 th , 42 nd , 34th, 23 rd , 14 th and Houston Streets (FEIS 3-49). Phase Four extends from Houston Street to Hanover Square, and includes stations at Grand Street, Chatham Square, Seaport and Hanover Square (FEIS 3-50). 17 congestion, and should provide the minimum clear sidewalk passage required by NYCDOT. (emphasis furnished)
68. The Executive Summary of the SAS Entrances Study provides in pertinent part: The study investigated options and alternatives at over 100 potential sites for station entrances. The original Environmental Impact Statement (EIS) process assessment was to place entrances at all four corners of a major intersection and two at a minor intersection. It became apparent that there was a need to reduce the number of entrances to improve station identification; simplify passenger circulation; create efficiencies in VCEs; and reduce site acquisition, construction, maintenance, and operating costs. For these reasons, the planning approach changed direction to focus on Step One, one entrance at each recommended intersection; and Step Two, two entrances at each intersection should demand justifies. (emphasis furnished)
69. The SAS Entrances Study further provides: Consolidated street entrances (as opposed to multiple) entrances are preferred to achieve greater efficiency and redundancy of VCE, reduce operating, maintenance, security, property acquisition, and capital costs while creating the opportunity for larger, more significant identifiable entrances in the urban fabric. It is preferred that one entrance serve any given EIS process intersection, but in no case more than two, depending on patronage, to be located out of the public right-of-way in buildings, plazas, and open spaces where they can serve the greatest number of patrons. (emphasis furnished)
70. The New Design Guidelines and the SAS Entrances Study represent the considerable expertise of the MTAs outside experts, DHA, one of the largest and most respected international design and engineering firms. Further, the New Design Guidelines which followed the SAS Entrances Study represent the highest level of MTA agency expertise, including the chief architect, engineer, and the then President of MTA NYCT, Lawrence G. Reuter, who independently studied and adopted the state of the art new subway design criteria is essential and useful in evaluating the proper siting of new subway entrances in the 21 st Century (emphasis furnished). The manual contains clear design principles, that the agency continues to rely upon and use for new subway construction in the 21 st Century like the no. 7 line extension 18 to the Javits Convention Center. 71. Remarkably, the MTAs Two-Entrance, Midblock Plan for the North Entrance to the 86 th Street Station deviates from the standards set forth in the SAS Entrances Study and the New Design Guidelines providing for building of one entrance at a corner instead of multiple entrances at midblock locations. 72. In addition to the criteria set forth in the MTA NYCTs New Design Guidelines and SAS Entrances Study, of particular relevance regarding protecting the safety of the 86 th Street Community is the City of New York Mayor Executive Order no. 22, dated April 13, 1995 (the Executive Order). The Executive Order establishes minimum sidewalk clearance areas required to create unobstructed sight distances to protect pedestrians from vehicles turning at intersections. 73. As more fully set forth in Section G(i) below, the MTAs Two-Entrance, Midblock Scheme violates the Executive Order and the agencys Existing Guidelines, which adopts the local law, in a number of respects. The visual obstructions created by siting a midblock entrance planned by the MTA on the north sidewalk of 86 th Street east of Second Avenue, are well within the proscribed minimum sidewalk clearance areas and sight distances required for the safety of pedestrians, because of their proximity to the entry and exit roadways of an active 24/7 circular driveway and the garage exit ramp in front of Yorkshire Towers. 74. In sum, the 86 th Street Communitys One-Entrance, Corner Solution also meets and exceeds environmental review standards by realizing substantial benefits and eliminating or mitigating substantial adverse impacts in at minimum sixteen new and significant respects in accordance with the design and safety standards contemplated by the New Design Guidelines, 19 the SAS Entrances Study, the Executive Order and the Existing Guidelines 6 adopting the Executive Order, when these standards and the requirements of the Executive Order, are studied, evaluated and compared to the MTAs Two-Entrance, Midblock Scheme. C. Description of Relevant Physical Dimensions and Context for Siting of the MTAs Two-Entrance Midblock Scheme for North Entrance to the SAS 86 th
Street Station in the Middle of Sidewalk in Front of Main Entrance to Yorkshire Towers and in Close Proximity to Active, 24/7 Circular Driveway and Garage Exit Ramp for the Building 7
75. Yorkshire Towers is the single largest residential building impacted by the SAS. It consists of two 21- story residential towers spanning an entire block on 2 nd Avenue between 86 th
and 87 th Streets and is home to over 2,000 residents, many of whom are elderly or young families with children. The lot dimensions for Yorkshire Towers are 201.42 feet which is the length of Second Avenue frontage by 320.17 feet extending east from Second Avenue where the main entrance is located to the adjoining building at 331 East 86 th Street. 76. The main entrance to Yorkshire Towers is between Second and First Avenues bearing the address 305-315 East 86 th Street on north side of East 86 th Street whose midpoint is about 160 feet from the Second Avenue building line (the SA Building Line) in a recessed area behind a planter area and the entry roadway for the buildings active 24/7 circular driveway for vehicles headed west on the north side of 86 th Street. The straight line distance from the main entrance to 86 th Street through the planter area is more than 94 feet. The width for the circular driveway at the 86 th Street building line where vehicles cross the sidewalk and enter from 86 th
Street is 14 8 and is slightly larger where they exit, 14 10 and cross the sidewalk unto 86 th
6 The New Design Guidelines and Existing Guidelines were produced only after the 86 th Street Community was forced to commence a Freedom of Information Act lawsuit. Yorkshire Towers Company, L.P. and Yorkshire Towers Tenants Association v. The Federal Transit Administration, S.D.N.Y. Case No. 10 Civ. 8973 (Griesa, J.). 7 With regard to this narrative description, the Design Team presented extensive design and engineering drawings, reports and related submittals in support of the 86 th Street Communitys one-entrance, northeast corner solution at technical meetings eventually held with the MTA and FTA. 20 Street. The width of the entry roadway for the circular drive ends approximately 223 feet east of SA Building Line. 77. Approximately 67 feet to the east of the entry to the circular driveway is the exit ramp to the Yorkshire Towers garage, which is approximately 10 feet wide. The ramp is sandwiched between the easterly end of Yorkshire Towers and the adjoining building at 321 East 86 th Street. It is set back approximately 5 feet from the Yorkshire Towers 86 th Street building line. The 5 foot tall, eastern most planters for Yorkshire Towers approximately 5 feet in width behind the 86 th Street building line, and spanning over 70 feet in length, extend, from the setback for the exit ramp, as does the shared wall of the adjacent building. The garage exit ramp is thus hidden by the surrounding buildings and is impossible to see when a pedestrian is approaching from a distance on either side. 78. The MTAs easternmost midblock entrance or kiosk flanks to the east of the circular driveway. It begins 229 feet east of the SA Building Line. Only 6 feet to the west of this midblock subway entrance kiosk is the entry roadway to the Yorkshire Towers circular driveway. Approximately 20 feet to the east of the same kiosk oriented towards First Avenue is the active 24/7 garage exit ramp with hidden views. The 41 feet length of this kiosk, where the entry point for this entrance begins, is oriented toward First Avenue to the east. This is the same 270 foot point where the planned sidewalk bump-out abruptly comes to an end as well. This restricts the amount of sidewalk space that would otherwise have been available between the entry points for this new subway entrance and the hidden garage ramp had the bump-out been extended beyond 270 feet to at least the 301 feet width frontage of Yorkshire Towers on East 86 th Street. The frontage for the building encompasses the 10 foot-wide garage exit ramp at the easternmost end of the apartment building. 21 79. Under the MTAs Two-Entrance, Midblock Scheme, there is a six-foot sidewalk bump-out proposed for, among other significant matters, green space replacement and alleviation of sidewalk overcrowding. This is in sharp contrast to using 100% of the available 10-foot bump- out width that would coincide with the replacement of the 10 foot parking lane on the north side of 86 th Street as provided for under the 86 th Street Communitys One-Entrance, Corner Solution. D. Delays by the MTA and FTA in Furnishing Documented Environmental Analysis to 86 th Street Communitys Design and Engineering Submittals, Dating Back to January 5, 2012
80. On January 5, 2012, Doron Gopstein, as President of the Yorkshire Towers Tenants Association, met at the invitation of the President of the MTACC, Michael Horodniceanu, at his office at 2 Broadway for the purpose of presenting for environmental review illustrative concept drawings that Mr.Cohen developed and prepared with the Design Team in support of the 86 th
Street Communitys, One-Entrance, Corner Solution with three escalators on the northeast corner instead of the MTAs Two Entrance, Midblock Scheme with two escalators each flanking Yorkshire Towers driveway. These preliminary drawings are presented as follows. 81. The first drawing, dated December 8, 2011 is a context plan showing that the 86 th
Street Communitys new One-Entrance, Corner Solution is a primarily underground mined approach compared to the MTAs two-entrance scheme, which is a top down, surface cut and cover construction technique. This is not in keeping with the agencys policy to avoid the disruption to the community caused by this adverse impact wherever possible: [B]ecause of the disruption that cut and cover can cause, it would only be used in areas where there is inadequate cover to allow safe and stable underground mining, FEIS, at 3-1. The geotechnical and underground engineering colleague, Ingo H.R. Fox for the Design Team demonstrated at subsequent technical meetings with the MTA and FTA that there is plainly adequate cover to 22 support the One-Entrance, Corner Solution. The second drawing prepared by Mr. Cohen and the Design Team is a cross-section of the one-entrance design, dated December 13, 2011. This drawing highlights the significant, design aspect in having one entrance instead of over- designing and over-building multiple entrances at midblock locations at odds with the policy and standards adopted by the MTA in New Design Guidelines and the SAS Entrances Study whenever possible. 82. The third drawing, dated January 9, 2012 is an additional context plan showing at minimum more than 13 feet of available sidewalk width between the One-Entrance, Corner Solution and the 86 th Street building line, sufficient to meet acceptable levels of pedestrian volumes (crowding). The fourth drawing, also dated January 9, 2012, is a cut and cover excavation area comparison which shows the extent of this adverse impact, which is the stated goal of the MTA to avoid or mitigate, wherever possible, being reduced on a scale of approximately 5 to 1 in favor of the 86 th Street Communitys predominantly mined approach. This approach can be accomplished because the one-entrance scheme allows sufficient space to go down deeper into the rock than the MTAs Two-Entrance, Midblock Scheme. This two- entrance midblock scheme cannot achieve sufficient rock cover without pushing the midblock entrance further eastward and would be in conflict with Yorkshire Towers garage entrance exit ramp. 83. A professional engineer by training, Mr. Horodniceanu immediately recognized the importance of the design element that 86 th Street Communitys Design Team was introducing by asking whether Yorkshire Towers would enter into an agreement for a permanent surface easement in favor of the MTA behind the buildings property line where planters are presently located in order to proceed with the 86 th Street Communitys One-Entrance, Corner Solution. 23 When the answer to that question was yes, a follow-up meeting to explain the up to 15 feet of sidewalk width that could be realized, eliminating any arguable issue regarding excessive sidewalk crowding for pedestrians under the one-entrance plan, was scheduled for February 6, 2012 at 4 p.m. with Mr. Horodiceanu, his senior construction executive, William Goodrich, Mr. Cohen, and community representative, Mr. Gopstein (the Second Meeting). E. Development of Outline of Key Points and Support of Entire Coalition of Upper East Side Elected Officials for the 86 th Street Communitys One- Entrance, Northeast Corner Solution; Protracted and Continuing Delays by the MTA and FTA in Furnishing Documented Environmental Analysis and Going Forward with Technical Meetings
84. When Mr. Horodniceanus office called to say that he needs to reschedule the meeting for February 6, 2012 with his senior construction executive, William Goodrich, Mr. Gopstein, and Mr.Cohen, Mr. Cohen took the opportunity to prepare an outline of key points, dated February 15, 2012 summarizing how the 86 th Street Communitys, One-Entrance Corner Solution meets and exceeds environmental review standards in a variety of new and significant respects compared to the MTAs Two-Entrance, Midblock Scheme both in terms of benefits realized and adverse impacts eliminated or substantially mitigated. (Outline of Key Points) 85. When there was continued delay by the MTACC in rescheduling the Second Meeting with the 86 th Street Communitys Design Team to review the merits of the 86 th Street Communitys proposal, Angelo Grima, Director of Operations for Yorkshire Towers and Mr. Cohen reached out to United States Congresswoman Carolyn B. Maloneys office to ask if they could go forward with the presentation on the merits that they were ready to make to Mr. Horodniceanu and his senior staff before the cancellation of the February 6 th meeting. The Congresswoman and her staff graciously accepted and took the time to hear their presentation and review the design and transportation planning submittals that Mr. Gopstein had previously 24 delivered to Mr. Horodniceanus office on January 5 and 12, 2012 for environmental review together with the Outline of Key Points. 86. Hon. Carolyn B. Maloney and the other members of the Upper East Side Coalition of Elected Officials and their staff representing the 86 th Street Community questioned Mr. Cohen and Mr. Grima at length about the one-entrance, northeast corner solution during several meetings in February and March 2012. After the meetings, the Congresswoman leading the Coalition regarding the SAS Project corresponded with Mr. Horodniceanu by letter, dated April 5, 2012, adopting and fully supporting the One-Entrance, Corner Solution, enclosing the Outline of Key Points (the April 5 th Letter). 87. As Representative Maloney points out in the April 5 th Letter, the northeast corner, single entrance solution involves less community disruption both during and after construction; less MTA construction; less operating, maintenance and security costs initially and over the 100- year useful life of the facility; and more passenger convenience, reliability, safety and security. The owners of Yorkshire Towers make the proffered design possible by stipulating that they would give the MTA a permanent surface easement behind the buildings property line. The Congresswoman concludes her letter by urging Mr. Horodineanu and his technical staff to meet with Mr. Cohen and his technical team, community representatives and my office, to take a serious look at his solution and that she is persuaded that this would be a win-win for the community and the MTA. 88. When Mr. Horodniceanu and the MTACC continued to delay in re-scheduling the Second Meeting with the Design Team and representatives from the 86 th Street community in response to Congresswoman Maloneys April 5 th Letter, the entire Coalition of Upper East Side Elected Officials (the Coalition) joining in with Representative Maloney corresponded with 25 the CEO of the MTACCs parent public authority, the MTA, Joseph Lhota, by letter dated April 16, 2012, adopting the Outline of Key Points, and unanimously urging the MTA CEO to meet with the Design Team and me, and community representatives to take a serious look at one- entrance, northeast corner solution. The entire Coalition concludes that We are persuaded that this would be a win-win for the community and the MTA, and that the cost-savings from a less intrusive design make this proposal financially worthwhile. F. Agency Straw Man Errors Following Conclusory Remarks and Prejudgment of 86 th Street Communitys One-Entrance, Corner Solution
89. Despite the 86 th Street Communitys One-Entrance, Corner Solution meeting and exceeding environmental review standards in at minimum sixteen new and significant respects when the beneficial effects realized and adverse impacts eliminated or substantially mitigated are studied, evaluated, and compared to the MTAs Two-Entrance Midblock Scheme as more fully set forth in Section G below, the MTACC President Michael Horodniceanu and his staff continued to delay meeting with the 86 th Street Communitys Design Team for a follow up technical meeting of transportation planning architects and engineers after the initial January 5, 2012 meeting with the President of the Yorkshire Towers Tenants Association, Doron Gopstein and the follow up design and engineering submittals delivered by him to Mr. Horodniceanus office at 2 Broadway on January 12, 2012. 90. It was only after the MTACC let four more months pass before there was any response regarding the merits of the One-Entrance, Corner Solution. It came in the form a letter from the MTACC President Michael Horodniceanu, dated April 18, 2011 (sic), in response to the letter by United States Congresswoman Carolyn B. Maloney, dated April 5, 2012, with the following enclosure: Outline of Key Points by the MTAs former lead architect for SAS Entrances, Edward L. Cohen, dated February 15, 2012. The April 5 th Letter by Representative 26 Maloney calls for the MTACC to proceed with a technical meeting with the Design Team and to take a serious look at the 86 th Street Communitys proposal without further delay, because the Congresswoman is convinced that it is win-win for the 86 th Street Community and the MTA. 91. The April 18 Letter by the MTACC is striking for three reasons. 92. First, it is does not respond in substance with documented environmental analysis to any part of the Outline of Key Points, which is an enclosure to Representative Maloneys letter of April 5 th , and is at odds with what the design and engineering submittals that were delivered to the MTACC on January 12, 2012 show. This, at minimum, required that a detailed presentation by the Design Team at technical meetings go forward, as Mr. Gopstein specifically requested and as Mr. Horodniceanu originally agreed to do on February 6, 2012. 93. Second, for virtually the entire April 18 Letter, the MTACC discusses a different design solution at a different location, which is not the subject of the 86 th Street Communitys one-entrance, three escalator, northeast corner solution to the MTAs Two-Entrance, Midblock Scheme: most of the letter (except for a few conclusory remarks in the first two paragraphs on the last unnumbered page) refers to an entirely separate and independent five-elevator design solution presented for the southeast corner of 86 th Street and Second Avenue (the Conclusory Remarks). This separate design solution was presented by the 86 th Street Community as a viable option mirroring the identical solution achieved by the 72 nd Street Community after that community was forced to commence a federal environmental lawsuit that resulted in the MTA changing the location of the only other midblock entrance that the agency had planned to go forward with for the entire four phases of the SAS project, to the southeast corner of 72 nd Street. 8
8 325 East 72
Street Corp and 315 East 72 Street Owners Corp v. United States Department of Transportation et al., S.D.N.Y.Case No. 08 Civ. 1127 (Lynch, J.) 27 94. Third, the Conclusory Remarks that the MTACC is relying upon regarding the 86 th
Street Communitys newest One-Entrance, Corner Solution: (a) not improving safety; (b) not, at minimum, equaling standards for accommodating projected ridership; (c) increasing pedestrian congestion; (d) not having significant time and cost savings; and (e) causing delay claims, do not begin to withstand independent design and transportation planning engineering study and analysis presented by the 86 th Street Community as set forth in Section G below. 95. Upon jumping to the Conclusory Remarks without first having heard any technical meeting presentations by the 86 th Street Communitys Design Team followed by furnishing documented environmental analysis regarding new, detailed and comprehensive, design and engineering drawings, reports and related submittals that we developed, including the delivery of preliminary Design Submittals on January 5 and January 12, 2012 to Mr. Horodniceanu, the MTACC ends the April 18 Letter by saying that further consideration of the 86 th Street Communitys One-Entrance, Corner Solution is simply not an option for the MTA. 96. After the MTACC made up its mind that there would be no further consideration of the One-Entrance, Corner Solution, it then scheduled a technical meeting for further consideration of the 86 th Street Communitys design solution for June 14, 2012, but only after further agency delay of eight weeks. This is the technical meeting that had been originally scheduled by the President of the MTACC, Michael Horodniceanu, more than five months earlier on February 6, 2012 (the MTACC Technical Meeting). 97. The MTACC Technical Meeting was remarkable in a number of respects. 98. First, instead of the 86 th Street Communitys Design Team having a full and fair opportunity to present the complete set of design and engineering submittals and related materials we had developed for review by the MTACC executives and technical staff, they were 28 cut off after a few minutes into their presentation by a rhetorical question by Mr. Horodniceanu showing that the MTACC was close-minded and was prejudging the merits of the One-Entrance, Corner Solution before it was ever technically presented. What is wrong with the MTAs Two Entrances? he said. We like our plan. The issue the Design Team was attempting to explain before having their presentation cut off is not what is wrong with the Two-Entrance, Midblock Scheme in isolation, but does the 86 th Street Communitys One-Entrance, Corner Solution realize beneficial effects and eliminate or substantially mitigate adverse impacts in at least sixteen new and significant respects when studied, evaluated and compared to the MTAs Two-Entrance, Midblock Scheme as set forth in Section G below. 99. Second, before the Design Team could present the details of why building the MTAs Two-Entrance, Midblock Scheme in the middle of a sidewalk in close proximity to an active 24/7 circular driveway and garage exit ramp: (a) is a violation of local safety law in a number of respects as adopted by the MTA in the agencys design guidelines; (b) does not adhere to the agencys New Design Guidelines regarding minimizing conflicting movements between pedestrians and vehicles and transportation planning engineering principles regarding sufficient sight triangles; and (c) at minimum, poses a safety hazard for 86 th Street Community Pedestrians who are not MTA ridership, Mr. Horodniceanu interrupted the Design Team by asking another rhetorical question, drawing a conclusion, and then being cavalierly dismissive with respect to the important core value of safety: What is not safe about the MTAs two entrances? I went down to the site myself and I looked around and I saw nothing unsafe. He added, What proof do you have that it is unsafe? Do you have any studies? What you think is not good enough. I need proof.
29 100. The Design Team were ready to respond to each of the three points that MTACC President Horodniceanu raised regarding safety summarized in the preceding paragraph before being cut off. With regard to conducting new safety studies, there already had been considerable study leading to issuance of the Executive Order mandating sufficient sidewalk clearance areas and sight distances for vehicles turning where they must pass pedestrians. The MTA adopted the Executive Order which was the subject of considerable independent study by representatives from a cross-section of City agencies in its own guidelines. It therefore makes little sense for the MTACC to insist that new and further study is required regarding the conflicting movements between pedestrians and vehicles under the agencys Two-Entrance, Midblock Scheme; it is enough that the MTA follow its own guidelines which require compliance with the baseline of safety standards codified under the Executive Order. 101. Furthermore, even if the MTACC believed such new and additional safety study was required, for the sake of discussion, it is unreasonable for the MTACC to shift that burden unto the 86 th Street Community with the limited resources that they have. It is the MTA that should be moving forward with such new and additional study in the first instance, if at all, in light of the considerable $4.5 billion in public funding the agency raised to build Phase One of the SAS. 102. Before the 86 th Street Communitys Design Team could begin to respond to the above comments and questions in any detail and finish their presentation, Mr. Horodniceanu said that he had to leave. He then left the MTACC Technical Meeting in less than ten minutes and turned the rest of the meeting over to his senior construction executive, William Goodrich. 103. Third, the Design Team then resumed and made the presentations of the following extensive design and engineering drawings, reports and related submittals.
30 104. The Design Teams civil engineer, Peter Schneidkraut prepared three separate reports which were prepared for and circulated at the MTACC Technical Meeting. The first report supports the common sense notion that the building of one entrance instead of two entrances significantly accelerates construction by at least 11 months; it takes six months to build one entrance and 17 months to build two entrances. The second report supports that, conservatively, tens of millions of dollars in savings can be realized over the short and long term. The third report shows how the MTA is insulated from the risk of substantial delay claims and other increased project costs for exercising the agencys explicit contractual rights to downscale the Limited Portion of Phase One of the SAS Project involved here. 105. The Design Teams transportation planning engineer, Dr. Lutin prepared two separate reports which were circulated at the technical meeting with the MTACC. The first report sets forth the results of his new and independent study and analysis showing that the 86 th
Street Communitys One-Entrance, Corner Solution significantly improves convenience for MTA projected ridership compared to the MTAs Two-Entrance, Midblock Scheme. 106. The second report by Dr. Lutin, with supporting engineering calculations, shows how the 86 th Street Communitys design solution meets and exceeds standards for pedestrian sidewalk congestion compared to the MTAs two entrance midblock scheme. A third report by Jerome M. Lutin was also prepared that supplements the first two reports. It further supports the conclusions reached in the first two reports with supporting engineering calculations based on new information regarding an expanded area of projected ridership by the MTA and that there is more than enough sidewalk width under the 86 th Street Communitys One-Entrance, Corner Solution to meet and exceed standards for pedestrian volumes (crowding).
31 107. The Design Teams geotechnical and underground engineer, Ingo H.R. Fox, prepared a report that was circulated at the MTACC Technical Meeting as well. His report concludes that not only is the One-Entrance, Corner Solution plainly constructible based on the use of rock bolts and other related techniques, but beyond mere technical feasibility, offers decided advantages in at least seven new and significant respects when studied, evaluated and compared to the MTAs Two-Entrance Midblock Scheme. 108. Mr. Cohen prepared and developed the following design drawings and related submittals in support of the 86 th Street Communitys One-Entrance, Corner Solution which were circulated at the MTACC Technical Meeting in collaboration with the rest of the 86 th Street Communitys Design Team: (1) Axiom three-dimensional drawing showing the 5 times larger extent of excavation involved under the MTAs Two-Entrance Midblock Scheme; (2) Three drawings consisting of: (a) the composite utility plan; (b) the street mezzanine plan; and (c) the longitudinal section graphically illustrating the massive extent of overbuilding and overdesigning involved with the MTAs planned two midblock entrances in marked contrast to the building of one corner entrance. The four drawings presented or delivered by Mr. Gopstein to Mr. Horodniceanu on January 5 and January 12, 2012; (3) Pertinent Sections of MTA NYCTs New Design Guidelines; and (4) Level of Service Illustrations for sidewalks showing pedestrian volumes (crowding). 109. Remarkably, no one who stayed at the MTACC Technical Meeting after Mr. Horodniceanu left early was familiar with the design and engineering submittals that had been 32 presented and delivered to the MTACC President on January 5 and 12, 2012. This became apparent when the MTACC presented a survey of what they characterized as the dimensions for the 86 th Street Communitys One-Entrance, Corner Solution. The survey was prepared by the MTACCs builder, Skanska, and not the architects and engineers of record for the SAS, AECOM. 9
110. Skanska erroneously concludes in its survey that there is only seven feet of sidewalk width but actually there is 13 2 of available sidewalk width by bumping out the sidewalk another four feet, using the entire exist parking lane, and removing the Yorkshire Towers sidewalk planter. If additional sidewalk space is needed, 15 feet of available sidewalk width can be achieved by replacing Yorkshire Towers non-weight bearing masonry wall and relocating it 1 9 northward and installing a 6 wide glass and metal storefront for the Food Emporium under the 86 th Street Communitys One Entrance, Northeast Corner Solution. The proposed three-escalator scheme results in an entry kiosk that is 19 11 wide and requires that it be set back from the curb by two feet. 111. Since the Skanska survey was completed before the Design Team for the 86 th Street Community ever made their presentation, the MTACC had plainly prejudged the merits of the one-entrance design solution before it was ever presented at the technical meeting. The survey also amounts to little more than a straw man that the agency has no difficulty knocking down. The MTACC already knew or should have known from the January 2012 design and engineering submittals received by Mr. Horodniceanus office that there is more than sufficient sidewalk width to meet acceptable standards, and that the design solution that Skanska survey is reviewing is not the one entrance, design solution advanced by the 86 th Street Community at the MTACC
9 See fn 3 above. 33 Technical Meeting. 112. The dimensions thrown out in the Skanska survey regarding review of the One- Entrance, Corner Solution are riddled with agency errors in at minimum five major categories which Mr. Cohen details in redline drawings and a summary of findings in this regard. 113. At the same MTACC Technical Meeting the 86 th Street Communitys Design Team were handed to two sketches from MTACC in-house operations planners which according to them show only seven feet of sidewalk width, over two feet less than the Skanska survey for the one-entrance, corner solution. Based on this further straw man exercise, the agency concludes that the One-Entrance, Corner Solution does meet minimum pedestrian crowding standards and that the MTAs Two-Entrance, Midblock Scheme does, when precisely the opposite is the case. 114. Once Mr. Cohen explained that the MTACCs builder and planners was operating off erroneous dimensions regarding the 86 th Street Communitys One-Entrance, Corner Solution, some progress appeared to be made with the Design Team regarding at least narrowing remaining issues arguably standing in the way. For example, regarding the below-ground and subsurface constructability of the One-Entrance, Corner Solution, Mr. Goodrich, after observations made by Richard Paubst, an AECOM design project manager, regarding the design said we can build that. The meeting ended with the MTACC saying that, assuming that there are no technical hurdles to building the One-Entrance, Corner Solution, as the 86 th Street Communitys Design Team demonstrated is the case, the primary concern of the agency is that it would take too long for the FTA, as a joint lead agency for NEPA compliance, to review and sign off on the One-Entrance, Corner Solution for the North Entrance to the 86 th Street Station without impacting their latest projected completion date of December 2016 for Phase One of the SAS in its entirety. To this end, the 86 th Street Communitys Design Team was invited to make 34 the same presentation to the FTA that the Design Team just finished making to the MTACC to expedite that agencys review. 115. Another eight weeks lapsed before the meeting with the FTA and the 86 th Street Communitys Design Team went forward on August 2, 2012. In the meantime, the Design Team received no documented environmental analysis from the MTACC regarding the design and engineering drawings, reports and related materials that they presented at the MTACC Technical Meeting on June 14, 2012. 116. The Design Team learned when the FTA meeting began that the MTA was not cooperating with the FTA by forwarding the extra copies of the 86 th Street Communitys Design Submittals that they had left for the FTA at the MTACC Technical Meeting as one would reasonably expect one joint lead agency to do with another joint lead agency responsible for NEPA compliance. The Design Team nevertheless went forward with the same presentation of Design Submittals that they presented at the MTACC Technical Meeting and fielded any technical questions from FTA officials and staff. When the meeting was over, they were surprised to hear the FTA say that the agency would not complete any documented environmental analysis unless the MTA forwarded the 86 th Street Communitys Design Submittals in the proper form. The MTA is required to do this, the FTA said, in accordance with the terms of the FTAs full funding grant agreement under which the MTA has received over $1.3 billion in public funding for Phase One of the SAS. 117. The net result of the foregoing lack of cooperation by the MTA with the FTA has led to an impasse which in turn has served to compound chronic agency delays in furnishing documented environmental analysis dating back more than a year when the first meeting was held by MTACC President Horodniceanu to review the One-Entrance, Corner Solution on 35 January 5, 2012. To date, no one on the 86 th Street Communitys Design Team has received any documented environmental analysis from either the MTA or FTA in response to the new design and engineering drawings, reports and related submittals that they developed and presented at the MTA and FTA technical meetings that begin to demonstrate why the Agencies should not be going forward with implementing the 86 th Street Communitys One-Entrance, Corner Solution without further delay. 118. The one area of apparent progress made at the FTA technical meeting is the time the FTA said it would need to complete their environmental review. Regional Deputy Administrator Anthony Carr for the FTA said that environmental review by the FTA, contrary to the MTAs professed concerns about the FTA taking too long could be completed in as little as one month, if the MTA did what it was required to do in furnishing documented environmental analysis in the proper form under the terms of the FTAs full funding grant agreement with the MTA. This is especially the case given the limited scope of the SEIS that is involved in implementing the 86 th Street Communitys One-Entrance, Corner Solution. G. The 86 th Street Communitys One-Entrance, Corner Solution Meets or Exceeds Environmental Review Standards in at Minimum Sixteen New and Significant Respects when Beneficial Effects Realized and Adverse Impacts Eliminated or Substantially Mitigated are Studied, Evaluated and Compared to the MTAs Two-Entrance Midblock Scheme
i. Elimination of Safety Hazards Created by Inadequate Sidewalk Clearances for Conflicting Movements Between Pedestrians and Vehicles in Proximity to Active, 24/7 Circular Driveway and Garage Exit Ramp in Violation of Mayors Executive Order, as Adopted by MTA NYCT
119. A basic point to be made at the outset regarding pedestrian safety is that it is disingenuous for the MTA to say that placing the large visual obstructions of two entrances flanking the circular driveway of Yorkshire Towers in the north sidewalk of 86 th Street would 36 actually improve pedestrian safety at the circular driveway since passengers entering and exiting the eastern most midblock kiosk would not have to cross the driveway. FONSI at A-24 to A-25. The Agencies never studied and evaluated in an EIS, the consequences of not every pedestrian walking on this sidewalk will be MTA ridership. Projected pedestrian volumes for the 86 th Street Community on East 86 th Street east of Second Avenue without MTA ridership alone are significant: 1,100 during the a.m and 1,330 during the p.m. peak hours (SEA 5-26) (the Community Pedestrians). Putting aside for the sake of discussion that the MTA projected ridership coming east from First Avenue to access the planned easternmost midblock kiosk are not subject to their own independent safety hazards in violation of local law, as demonstrated below, a safety hazard is created separately for these pedestrians by the MTAs Two-Entrance Midblock Scheme. 120. Where once Community Pedestrians had 19 9 of clear sidewalk, they are now left with 53% less sidewalk space when walking between each of the MTAs two subway entrances and Yorkshire Towers 86 th Street building line, or merely 9 7. Each subway entrance is 41- foot long, 14-foot wide and 16-foot high, with the roof sloping to 6 leaving an enormous footprint and visual obstructions in the middle of what once was 19 9 of clear sidewalk compounded by severely compromised sightlines given the large size of the two entrances dimensions. 121. The safety hazard posed by the siting of the MTAs easternmost kiosk occurs because the Community Pedestrians are emerging from behind the blind spot created by this entrance before walking the 6-foot distance to, and then crossing the circular driveway for Yorkshire Towers where westbound vehicles on the north side of 86 th Street will be turning into and entering the driveway. This is at odds with the standards set forth in the MTA NYCTs New 37 Design Guidelines, which provide that conflicting movements between pedestrians and vehicles such as is occurring here, because of a siting of the entrance midblock instead of at a corner where there are sufficient sidewalk clearances and sight distances, are to be avoided whenever possible. 122. Moreover, in preparing the SAS Entrances Study, Mr. Cohen specifically designed every corner sidewalk entrance to be in accordance with the standards set forth in the New Design Guidelines and for compliance with the City of New York Mayor Executive Order no. 22. 123. The Executive Order is the product of independent study by the Streetscape Task Force comprised of City agency representatives who found that structures and objects on sidewalks such as subway entrancescreate pedestrian gridlock. and raise serious traffic and safety concerns for pedestrians who spill out into the street and are in danger of being hit by passing vehicles. This, the City of New York Task Force concludes requires the adoption of a uniform sidewalk corner clearance policy not to place structures and objects such as subway entrances in the corner and corner quadrant to the maximum extent possible. 124. In simple transportation planning design terms, a corner quadrant 10 as contemplated under the Executive Order is the square area created by extending building lines to the end of the sidewalks where sidewalks intersect with streets or roadways. To this square area of sidewalk clearance any structures or objects such as subway entrances must be kept at least another 10 feet away from where they are sited. This is the minimum sidewalk clearance area
10 The MTA NYCT refers to the corner quadrant as the corner zone or the corner off-set zone extension of building lines in the Existing Guidelines. These terms are the design functional equivalent description of corner quadrant as contemplated under the Executive Order.
38 that is required to ensure that pedestrians have sufficient sight distances to have enough time to see vehicles turning into the street or roadway that they must pass or walk across. In this regard, it bears emphasis that the Executive Order does not define or delimit the term street to intersections only formed with public avenues or streets, such as the corner intersections formed by Second Avenue and 86 th Street. 125. The Executive Order applies with equal force to sidewalk corner clearance areas formed with private driveways or roadways that cross over sidewalks and intersect onto public streets, given the harm that the local law was designed to prevent: turning vehicles hitting pedestrians because of structures and objects impairing drivers and pedestrian sightlines. For this reason, street is not a defined term under the Executive Order but is discussed in the context of setting minimum standards for pedestrian safety in its broadest, dictionary sense. According to the Merriam-Webster Dictionary, street is defined as a thoroughfare especially in a city, town or village that is wider than an alley or lane and that usually includes sidewalks. 11
126. The Executive Order also provides that state and federal governments are asked to cooperate in meeting minimum safety requirements for sidewalk clearance areas and sufficient sight distances for pedestrians to protect them against turning vehicles at intersections where they must pass other. In accordance with this stated policy, the MTA NYCT acted to implement and adopt the Executive Order as the agencys own governing standard under the Existing Guidelines without exceptions. 12 They provide in pertinent part:
11 Common synonyms in the Merriam-Webster Dictionary for street include roadway, thoroughfare, motorway and way: http://www.merriam-webster.com/dictionary/street (February 28, 2013). 12 In adopting the Executive Order, the MTA NYCT refers to the corner quadrant as the corner zone or corner off-set zone extensive of property lines. These are functionally equivalent descriptive design terms for the corner quadrant contemplated under the Executive Order. 39 Pursuant to the Mayors Executive Order No. 22 dated April 13, 1995, no new fixed streetscape elements, including subway entrances, signs and stanchions may be constructed or installed within 10-0 of the corner zone or corner off-set zone extension of property lines. (emphasis furnished) (Existing Guidelines, Entrances Chapter, p. 10.7).
127. Moreover, the Executive Order providing for minimum sidewalk safety clearances and sight distances to protect pedestrians from turning vehicles in substance represents New York Citys codification of the transportation design engineering standard known as the sight triangle required to protect pedestrians emerging from behind blind spots created by placing visual obstructions in the middle of sidewalks, which the MTAs Two-Entrance Midblock Scheme violates. 128. The minimum standards for sidewalk clearances in the Executive Order also supports what the 86 th Street Community has intuitively known all along, and one of the fundamental reasons why the entire Coalition of Upper East Elected Officials have opposed the MTAs Two Midblock Entrances and Community Board 8 passed a resolution voting against it. Locating two midblock entrances in the middle of a sidewalk in close proximity to an active, 24/7 circular driveway and garage exit ramp for the single largest residential building impacted by the SAS, Yorkshire Towers, where large volumes of pedestrians and vehicles must pass each other creates serious safety hazards. 129. The MTAs Two-Entrance, Midblock Scheme violates the Executive Order setting forth minimum safety requirements for sidewalk clearance areas and sufficient sight distances for pedestrians to protect them against turning vehicles at intersections with roadways where they must pass other 13 , in the following significant respects.
13 In this regard, see Facts, Section C above for full description of relevant physical dimensions and context for siting of the MTAs Two-Entrance Midblock Scheme in the middle of sidewalk in front of main entrance to Yorkshire Towers and in close proximity to active, 24/7circular driveway and garage exit ramp for the building. 40 130. The first violation of the Executive Order occurs because the MTA is siting the Midblock Subway Entrance Kiosk merely six feet from the entry to the circular driveway to Yorkshire Towers. At minimum, the sidewalk clearance area to create sufficient sight distances to protect pedestrians from turning vehicles, needs to be more than a three times greater distance away, or a minimum of 19 7 between the siting of the Second Midblock Kiosk and the entry to the circular drive. 131. The design measurements required to arrive at the 19 7 minimum sidewalk clearance area must take into account the following: the 86 th Street building line to the circular driveway entrance is 9 7; and to this distance must be added another 10 feet of clear sidewalk with sufficient unobstructed sight distances for both pedestrians and vehicles between the Midblock Subway Entrance Kiosk structure in the sidewalk, and the entry to the circular drive where they must pass each other. 132. The second far greater safety hazard regarding the siting of the Midblock Kiosk is the structure itself which is an obstruction to pedestrians passing behind the structure. The granite base of the entry kiosk is 3 6 tall and the metal and glass entry kiosk is 6 feet high in the back facing the circular driveway. This obstruction will block the sight lines of a driver entering off of East 86 th Street to the Yorkshire Towers circular driveway and risk serious accidents occurring on the 86 th Street sidewalk. Approximately 20 feet further to the east to the same MTA Midblock Kiosk, which extends approximately 270 feet from the Second Avenue building line, is the exit ramp from the garage for Yorkshire Towers. The exit ramp is set back about 5 feet from the 86 th Street building line and hidden from view by Yorkshire Towers 5 foot tall planters.
41 133. At minimum, the sidewalk clearance area to create sufficient sight distances to protect pedestrians from vehicles exiting the hidden garage ramp is problematic. 134. The 86 th Street Communitys One-Entrance, Corner Solution in marked contrast to the MTAs Two-Entrance, Midblock Scheme does not violate the Executive Order to any extent. It is well outside the minimum required sidewalk clearance area to prevent pedestrian-vehicular accidents, which is the other basic harm that the Executive Order was designed to protect against. 135. In light of the foregoing safety violations by the MTA under the Executive Order regarding minimum sidewalk clearances and sight distances for pedestrians and turning vehicles that must pass each other, the failure of the MTA to follow its own standards in this regard, and violation of transportation planning engineering standards regarding sufficient sight triangles, it is not an overstatement to say that were the MTAs Two-Entrance, Midblock Scheme to go forward, the north sidewalk of 86 th Street in front of Yorkshire Towers would be at risk of becoming one of the most dangerous places in New York City. ii. Far Less Community Disruption
136. The 86 th Street Communitys One-Entrance, Corner Solution substantially mitigates extended disruption to the community that surface cut and cover, top down construction causes during several years of construction is reduced on a scale of approximately 5 to 1 (300,000 versus 60,000 cubic feet) in favor of a predominantly mined approach in accordance with the Agencies stated goals for the SAS: construction predominantly through mining, and cut-and- cover construction limited to the ends of a station area. FEIS at 6-37. The SAS project will use cut-and cover techniques only if a mining approach is not constructible since this method is disruptive. Mining is quicker and more cost-effective than other methods. Id. at S-19; 3-12; 42 id. at 3-4, id. at 1817-18. The foregoing does not include the substantial community disruption and associated adverse impacts that continue after construction for the 100-year useful life of the SAS resulting from the MTAs two-entrance, midblock scheme as discussed below. iii. Meeting and Exceeding Standards for Pedestrian Sidewalk Volumes
137. The Agencies have already approved a one-entrance, three-escalator solution for the north entrance to the SAS 86 th Street station at the northeast corner of 86 th Street. This was the subject of the SAS Entrances Study and FEIS (FEIS at 5F-5), and was in keeping with the standards set forth in the New Design Guidelines. The previously approved design is described as the No-Action or Food Emporium alternative in the SEA and is sited off the sidewalk facing Second Avenue inside Yorkshire Towers. It would have required the acquisition of a substantial portion of the Food Emporium store with primary frontage on Second Avenue and frontage on 86 th Street at the northeast corner. (SEA at Figure 2-7 to 2-8) The MTA was ultimately forced to abandon this proposal after several years of delay in completing an engineering feasibility study. The study led the agency to conclude that it would substantially increase the projects construction cost and schedule, primarily because of the major structural work that would be required to build underneath the foundations of Yorkshire Towers (SEA at S- 1 to S-2). 138. After several years of delay by the Agencies in deciding that a one-entrance, three- escalator solution on the northeast corner off the sidewalk inside Yorkshire Towers was not constructible, they believed that a similar design solution could not go forward on the sidewalk at the northeast corner, because there would be only six feet of sidewalk width between Yorkshire Towers 86 th Street building line and a one-entrance, three-escalator design. The Design Team agrees that six feet is insufficient to handle pedestrian volumes and would lead to unacceptable 43 levels of crowding under transportation engineering standards and calculations. In order to determine if this problem could be solved, the Design Team studied the structural drawings for Yorkshire Towers together with the final design and engineering drawings developed by DHA for the Two-Entrance, Midblock Scheme eventually produced in response to a Freedom of Information Act lawsuit by the 86 th Street Community 14 and made several visits to Yorkshire Towers and the planned construction area for the siting of the north entrance. 139. What the Design Team learned through new study and investigation, was that Agencies were not limited to only six feet of sidewalk width, but had as much as 15 feet or more between the siting of the one-entrance, three escalator design and Yorkshire Towers, if new design elements previously not developed are introduced. The design elements that Mr. Cohen developed include Yorkshire Towers furnishing a permanent surface easement by agreement in favor of the MTA behind the buildings property line of 5 5 by removing the existing planters presently located, adding another 1 9 replacing a non-weight bearing masonry wall with a 6 glass curtain wall, and an additional 4 sidewalk bump-out width using the whole 10 wide existing parking line, instead of the 6-foot bump out the MTA has planned for the Two-Entrance Midblock Scheme. As discussed in greater detail below, the additional bump-out area realizes significant benefits and mitigates adverse impacts in a number of important ways in accordance with the most current policies and standards of the New York City Department of Transportation (NYC DOT) regarding using expanded sidewalk area to improve safety for pedestrians and vehicles and to seize opportunities for greening.
14 See fn 6 above. 44 140. 15 feet or greater is more than sufficient sidewalk width to meet and exceed the MTAs own stated transportation engineering planning standards at LOS C. 15 Moreover, the 15 feet is in marked contrast to the 36% less, or 9 7 in sidewalk width that the MTA plans between each of the agencys two entrances and the 86 th Street building line for Yorkshire Towers. The shorter sidewalk width that the MTA provides for both of its midblock entrances under the agencys scheme results in excessive levels of pedestrian crowding at substandard LOS E for the MTAs Two-Entrance Scheme if the MTA takes into account an important factor that it never studied or evaluated in the FEIS or a limited scope SEIS, or even mentioned in the SEA: at least one of the four escalators for the Two-Entrance Scheme can be expected to be taken out of service periodically for maintenance and repair resulting from mechanical failure, accidents and short- and long-term scheduled upkeep. 16
141. It is error for the Agencies, and at odds with urban planning best practices to assume that all four of the escalators in the two-entrance scheme will be continuously operating 24/7 for the next 100 years. The MTAs oversight agency, the MTA Office of the Inspector General (OIG) has concluded after a detailed study, dated July 2011, that escalator outages are realistically expected to occur about once every four weeks, on average, as a result of periodic mechanical failure, accidents and short- and long-term scheduled upkeep. When this happens the MTAs two-entrance scheme will significantly restrict access and inconvenience riders seeking
15 [L]evel of Service (LOS) D condition or better is considered acceptable for sidewalks, corner reservoirs, and crosswalks within intensely developed urban locations. Final Environmental Impact Statement, dated April, 2004 (FEIS) at 5F-1; SEA at 5-3. 16 In this regard, it is a mistake by the MTA to assume that if one of four planned escalators are taken out of service that passengers will walk down or up the out of service escalator over 35 feet down to the landing as is currently planned under the Two-Entrance, Midblock Scheme. The MTAs assumption is contradicted by the agencys current policy and practice to detour passengers away from the out of service escalator. What underlies this policy and practice is the safety of passengers. Risers for the escalators are too steep to serve as a substitute for conventional stairs without exceeding limits proscribed by local law. 45 to use either of the two-entry, two-escalator kiosks at substandard LOS E, while the 86 th Streets One-Entrance, Corner Solution will provide unrestricted access in the event one out of the bank of three escalators goes out of service at two levels above the MTAs LOS E, or above standard LOS C. Further, the three escalator solution proposed by the 86 th Street Community from the street to a midlevel landing is consistent with three escalators that the MTA plans to build from the landing to the station mezzanine under the Two-Entrance, Midblock Scheme. iv. Accelerating Construction Schedule by Building One Entrance Instead of Two
142. Intuitively, the initial reaction is that building one entrance instead of two necessarily accelerates the MTAs construction schedule for the North Entrance on the order of at least 2 to 1, and fundamental civil engineering and construction bid and contract analysis more than bears this out. 143. The amount of direct time savings in building this Limited Portion of phase one of four phases of the SAS is significant: at least 11 months (one-entrance takes approximately 6 months to build; two entrances takes nearly 3 times as long to build or 17 months). Moreover, the MTACCs express contractual rights to downscale the agencys two planned entrances to one without further delay are significant. This means that work for the one entrance could be extended by more than a year, due to the shortened schedule duration to build one entrance, and can be done without suspending the rest of SAS project activities, or affecting the critical path for the scheduled completion of the balance of the greater than 99% order of magnitude of costs for entire phase one of the SAS. According to the MTA, the latest schedule for completion is still, at minimum, approximately four years away in December 2016. 17
17 The FTA is far less sanguine than the MTA about the ultimate completion date for Phase One of the SAS. After completing their own independent analysis regarding the length of time required to complete the SAS, the federal 46 144. Further, a primarily mined approach as opposed to an above ground, top down, cut and cover construction approach affords the further opportunity to accelerate building on the order of two to one. This is so because under local law above ground work may only proceed 12 hours a day while below ground mined work, which is the vast majority of the work involved in the One-Entrance, Corner Solution may go forward with continuous 24/7 shifts. v. Eliminating Speeding Hazard of 12-foot, Highway-Size Traffic Lanes and Misalignment of 86 th Street in Violation of New York City Department of Transportation Policies and Guidelines
145. The 86 th Street Communitys One-Entrance, Corner Solution eliminates the speeding hazard and the misalignment of 86 th Street traffic lanes between Second and First Avenues and associated adverse impacts in violation of NYC DOT and New York City policies and guidelines created by the MTAs Two-Entrance, Midblock Scheme in the following material respects. 146. First, under the MTAs plan there is only a 6-foot sidewalk bump-out proposed instead of a full 10-foot width that would coincide with the replacement of the 10 foot parking lane on 86 th Street. The direct consequence of the MTA aggressively truncating the extent of the sidewalk bump-out area for pedestrian use from 10 to 6 feet or by 40% is to create oversize 12- foot traffic lanes for vehicles next to the planned north entrance for 86 th Street. A new 48 foot wide roadway is being created between Second and First Avenues (four 12 foot lanes, two on the north and two on the south side of 86 th Street, where once there was 40 foot of roadway for vehicles traversing (four 10 foot lanes). This is two feet wider than the standard width of traffic lanes for streets in New York City as NYC DOT Manhattan Borough Commissioner Margaret Forgione points out: 12-foot travel lanes are overly wide, two feet wider than normal streets,
agency concluded that a more realistic end date is February 2018 based in part on the history of delays for construction of the project beginning in 2007. 47 resulting in the kind of driving you would expect to see on the F.D.R. It encourages people to speedit feels wide open. 18
147. Commissioner Forgiones comments reflect the policy and guidelines set forth in the NYC DOT Street Design Manual (at times, the Street Design Manual). The Street Design Manual provides in pertinent part: At over a quarter of the citys land area, streets are a critical part of the New York Citys infrastructure. They provide the bulk of its public space and have wide-ranging impacts on both its environmental health and the quality of life of its neighborhoods. Accordingly, it is the policy of the NYC DOT that the following goals and principles be adhered to when designing city streets.
148. The predominant roadway design (streets with sidewalks) generally emphasizes motor vehicle access and flow, but leaves significant flexibility to calm traffic and enhance the public realm. To this end the NYC DOT design policy is to [m]inimize roadway width and maximize sidewalk (and planting strip, if applicable) width maximized to the greatest extent possible. Augmenting the NYC DOT Design Manual in this regard is the City of New Yorks Active Design Guidelines (2010 ed.). These guidelines specifically complement the NYC DOT Design Manual and are endorsed by the New York Chapter of the American Institute of Architects. 149. The essential purpose of the Active Design Guidelines is to implement environmental design policies that promote public health and well-being. The Active Design Guidelines address all who have a role in the design and construction of the built environment including project sponsors such as government agencies. Project Sponsors are encouraged to incorporate at least some strategies into every project and should meet initially to set goals and to assess which potential active design strategies can be incorporated in the
18 See Kia Gregory, Changes Planned to Calm Flow of Traffic on Harlems Boulevard of Death, available at http://query.nytimes.com/gst/fullpage.html?res=950DEFD8123DF931A35754C0A9649D8B63 (February 27, 2013). 48 project. 150. The Active Design Guidelines provide in relevant part: Objective Promote walking and improve the overall pedestrian experience through traffic calming measures. Slowing traffic helps to maintain the human scale and paceof city streets.
Strategies Design roads to be the minimum width and to have the minimum number of lanes practical. Minimize road width to reduce traffic speeds and pedestrian crossing distances. Shorter crossing distances are especially beneficial to the elderly and people with physical disabilities, who may require more time to cross the street.
Incorporate street additions that have been shown to effectively calm traffic, such as curb extensions.
151. In order for the MTA not to place itself in direct conflict with the foregoing plainly articulated design policies and standards by the City of New York and NYC DOT, never previously evaluated in an EIS, the last thing that the agency should be proposing and the FTA should have any part of in approving, is expanding the 86 th Street roadway to have 12 foot lanes, and shortening the extent of the sidewalk curb extension to 6 feet instead of the full 10 feet of available parking lane. Wider sidewalks and narrower roadways are safer for pedestrians, especially the elderly and people with physical disabilities. They also support the traffic calming effect which discourages vehicles from speeding. Last, extending the curb to 10 instead of 6 feet offers an important greening and planting opportunity, for the 86 th Street Community, and expanded, non-congested sidewalk space for people to enjoy. 152. It is no answer for the Agencies to say that NYC DOT previously approved a curb extension limited to 6 feet by letter, dated May 18, 2007, dating back to the first of what is now a total of 10 years of construction for Phase One of the four phases of the SAS, based on the MTAs latest projections. The DOT Letter pre-dates the new and significant change in policy 49 and guidelines under the NYC DOT Design Guidelines of 2009 and the NYCs Active Design Guidelines of 2010 by more than two to three years. Further, the DOT Letter is careful to reserve the rights of the city agency regarding no further commentsat this time and the right to submit revised comments. 153. There is therefore no reasonable basis to believe that City of New York and NYC DOT would do anything other than act to approve a design, such as the 86 th Street Communitys new one-entrance, northeast corner solution, that is directly in keeping with, and supports implementation of the design policies and guidelines explicitly set forth in New York Citys Active Design Guidelines and the NYC DOT Guidelines (collectively, the NYC Design Guidelines). 154. Underscoring that that the City of New York would have every interest to implement the plain standards specified in the NYC Design Guidelines with respect to replacing the entire 10 foot length of the parking lane in question instead of merely 6 feet of it, are some recent examples of NYC DOT approvals. They include eliminating the parking lanes on both sides of Broadway to build a new subway entrance for the station at West 96 th Street, eliminating the parking lane on the west side of 72 nd Street and all three moving lanes to build the new subway entrance at Broadway and West 72 nd Street. 155. Second, the 12-foot traffic lanes planned by the MTA between Second and First Avenues on 86 th Street, would put this heavily-trafficked cross-town street out of alignment with the rest of 86 th Street, which otherwise has 10-foot traffic lanes spanning the entire cross-town distance of 86 th Street from East End Avenue through the Upper West Side. The plain safety hazard this presents is the disorientation to drivers that results from rapidly going from typical 10 foot traffic lanes to 20% larger ones, 12 foot lanes between Second and First Avenues 50 immediately back to 20% smaller, 10 foot traffic lanes when traveling west of Second Avenue. Bad or heavy weather conditions would contribute aggravating circumstances to this driver disorientation, exacerbating the risk posed by this hazard for drivers and pedestrians alike. 156. It makes no sense for the Agencies to maintain that they require 12 foot instead of 10 foot lanes between Second and First Avenues because of the width of MTA buses. This is not an issue for these same buses when traveling the rest of the entire cross-town length of 86 th
Street. 157. Furthermore, the standard width for MTA buses is 8 6 wide. The widest cars are 6 6 wide. Therefore, under the 86 th Street Communitys One-Entrance, Corner Solution, where the design provides for two moving lanes, 20 feet to the center line of the 86 th Street roadway, together the bus and such a car take up to 15 feet of width. This still leaves 5 feet of clearance width for the moving vehicles. Even if there are two buses lined up at a Second Avenue traffic light, there is still 3 feet of clearance. At any rate, there is no demonstrable need for oversized 12 foot lanes at this point of 86 th Street between Second and First Avenues because of traffic volume. At this point 86 th Street only picks up a few blocks to the east and dead ends at East End Avenue, Carl Shurz Park. vi. Cost Savings Conservatively Estimated in the Tens of Millions
158. Tens of millions of cost savings can be realized over the short and long-term , and is a particularly significant opportunity that the FTT and MTA should be seizing given the history of cost overruns and delays experienced from the beginning for phase one of the SAS 19 and the
19 When tunneling for Phase One of the SAS first began in earnest in 2007, the MTA officials said that the line would open this year, 2013, at a cost of $3.8 billion. The latest cost is about $4.5 billion despite the historic downturn in the economy since 2008 which gave the MTA the opportunity to competitively bid the project at substantially reduced construction costs. Completion according to the MTA is not expected at the earliest until approximately more four years later in December 2016. 51 MTAs recently announced policy that the agency is in an era of cost-containment andcontrol unlike anything in its history, and in 2012 and beyond, well continue to slash costs while looking for creative ways to bring in revenue. 20
159. The long-term maintenance and operating cost savings by building the 86 th Street Communitys one entrance with three escalators instead of the MTAs planned two entrances that need to be taken into account and evaluated for the 100-year useful life of the SAS are based on many fundamental transportation planning considerations. They include the following seventeen specific categories of long-term maintenance and operational costs: (1) Extra electrical cost to run a heavy duty, extra wide, high demand escalator descending and rising 32.5 feet needs to be operating 24/7 under the New York City Building Code
(2) Maintaining and servicing escalator every one and half to two months each year based on a recent study and report by the MTAs oversight agency, The Office of the MTA Inspector General. This includes replacement of parts to keep the extra escalator in good working order
(3) Tightening handrails and keeping them in synch to prevent a falling accident by a passenger
(4) Periodically running the escalators alternatively up and down to keep the
The FTA based on independent analysis does not share the MTAs optimism regarding meeting the agencys latest self-imposed deadline of December 2016 and estimate of final costs. By letter dated June 18, 2010, from FTA Commissioner Peter Rogoff to Hon. Christopher J. Dodd, the then Chairman of the Committee on Banking, Housing and Urban Affairs, the FTA after conducting its own independent risk analysis projected the completion date at February 2018 and that costs were projected at the time to be approximately $5 billion regarding amending the federal funding agreement for the SAS. Mr. Rogoff concludes, Clearly, however, the news regarding the cost overruns and schedule delays is grim Most importantly, I want to assure you that not a single penny of additional Federal Section 5309 New Starts dollars will be used to fund these delays and cost overruns. Further independent financial analysis is even more critical of the MTA than the FTA is. In a recent financial news report, dated August 26, 2012, Bloomberg news reported that U.S Taxpayers are gouged on mass transit costs and agrees with the FTA that the ultimate price tag for the SAS will likely be $5 billion when inevitable amendments to construction contracts for added costs such as change orders for unanticipated field conditions and other additional work not part of the original bid contracts are taken into account. The article concludes that American taxpayers will shell out many times what their counterparts in developed cities in Europe and Asia would pay and that in the case of the SAS it is five times as much. 20 See editorial by former Chairman and CEO for the MTA, Joseph J. Lhota in the New York Post, posted online June 18, 2012. 52 parts from breaking down prematurely and the added cost of using MTA Personnel to do so
(5) Every 20 to 25 years each escalator will need to be overhauled and modernized to replace major parts such as the motor, belts, chains, worn out treads, and related equipment
(6) Replacement of steel trusses that support the escalator due to fatigue approximately every 50 years which entail considerable cost
(7) An extra entrance will require shoveling snow and ice in the winter to prevent an accident
(8) An extra entrance will periodically require replacement and cleaning of enclosure glazing materials and granite base because of wear and tear and vandalism
(9) The metal structure of the extra entrance will need to be painted every five to seven years to prevent deterioration
(10) The roof glazing of the additional entrance will periodically require fixing leaks and clogged drainage
(11) Lighting will periodically need to be replaced over the escalators
(12) Maintaining the fire suppression, ventilation smoke removal and alarm systems
(13) Periodic Cleaning of the wall finishes and extra landing area floor finishes with floor scrubbers and power washers
(14) Periodically updating signage and communication systems
(15) Closing of the additional entrance in the event of electrical blackout, strike or other emergency
(16) Additional security policing for the extra entrance
(17) Periodically inspecting and testing fire stand pipe
vii. Mitigating the Above-Ground Blasting Hazard
160. It is hard to imagine a more graphic example of the inherent dangers of blasting, especially combined with the adverse impacts of top to bottom cut and cover construction (See 53 Section G(ii) above), than the above-ground effects of the blasting that occurred on August 21, 2012 captured in photographs by an engineer visiting New York City. A similar incident was reported in connection with the building of the entrance at the southeast corner of 72 nd Street a few weeks earlier and was under investigation at the time the larger explosion occurred on the northwest corner of 72 nd Street. 161. While thankfully there were no fatalities or serious injuries reported, there were still significant above-ground effects, including the adverse impacts of shutting down at least one local business after the New York City Department of Buildings issued a vacate order as a result of damages the business sustained by the MTA blast, and construction debris and dust billowing eight stories high into the air. 162. While the MTA never publicly released the results of the reported investigation regarding the earlier blasting incident regarding the building of the entrance for the southeast corner, it did publicly release a copy of its report for the August 21 Blast on September 13, 2012. The report is revealing for two reasons. 163. First, it underscores how inherently dangerous the nature of blasting is. There were at least two levels of human error which led to the August 21 Blast. Not only did the agencys contractor for the building of the entrance default in its obligations to follow New York City FDNY blasting protocols, but the agencys construction manager was determined to be at fault supervising the builder as well. 164. Second, the MTA response has been to implement corrective actions at no doubt considerable taxpayer expense to mitigate the blasting hazard by hiring a safety consultant, reorganizing and strengthening the construction managers ability to inspect and monitor blasting activitiesthe same construction manager found at fault under the MTAs internal investigation. 54 Aside from calling into question the wisdom of rewarding the same construction manager previously found at fault with more work to inspect and monitor blasting activities of the MTAs contractors, the larger, overarching point to be made here is that while new and significant corrective measures are certainly required, it is far better to substantially mitigate the need to have to take them in the first place. 165. Under the One-Entrance, Corner Solution the amount of soil and bedrock from cut and cover excavation is reduced on a scale of 5 to 1, from 300,000 to 60,000 cubic feet. Therefore, aside from substantial mitigation of the scale of the blasting hazard, there is further mitigation achieved. Any blasting for the predominant mining work is underground where effects of any blasting would be entirely or largely diffused and kept below ground without imperiling the safety of the 86 th Street Community above ground. viii. Mitigation of Structural Hazards to Pool and Greater Residential Towers, and Related Conflict with Local Law Regarding Suspending Required Essential Services to Tenants Under New York City Rent Stabilization Code 166. Further outsized, significant adverse impacts created by building the MTAs Two- Entrance, Midblock Scheme in the sidewalk in front of Yorkshire Towers are that the Agencies are required to the come as close as 5 feet to the buildings south foundation wall. On the other side of this wall is one to the largest pools in New York City, containing over 80,000 gallons of water. The original construction of the pool dates back over 42 years ago to 1970. 167. Any loads or stresses that can be mitigated to reduce the risk of the pool structure from cracking and causing leakage and potential flooding, because of the extensive cut and cover construction and blasting required to build the MTAs Two-Entrance, Midblock Scheme needs to be pursued. Water escaping from the pool can lead to soil erosion, and water becoming trapped in the foundation. This puts not only the structural integrity of the buildings two residential 55 towers at risk, but the MTAs planned SAS excavations in close proximity to Yorkshire Towers as well. 168. Like the inherently dangerous, above-ground blasting hazard generally, even costly mitigation measures such as building a large underground shoring wall extending the entire 270- foot length of the extensive cut and cover excavation for the MTAs two midblock entrances provide no assurances that serious risks to the pool structure and ultimately the greater building, especially considering its size, are eliminated. As with the blasting hazard, the decidedly stronger mitigation measures for the Agencies to be taking are to eliminate or substantially reduce the extent of these structural hazards in this first instance as achieved under the 86 th Street Communitys One-Entrance, Corner Solution. 169. One aggressive mitigation measure that the MTA could potentially consider in building the two entrance midblock scheme, but never studied or evaluated in any EIS, is to empty the pool of water for the next four years of planned construction, or for a substantial period of this time as a precaution. However, this leads to yet further adverse impacts. 170. Since the majority of the tenants in Yorkshire Towers qualify for rent-stabilization status, they have a right to use the pool as an essential service as a matter of right under local law. Upon the MTA being required to shut down the pool for any length of time, these tenants would be entitled to compensation under local law for the loss of this service. The extent of this adverse impact has never been studied or taken into account by the Agencies. Moreover, it is important to emphasize that for many residents, such as the elderly and those with physical disabilities, the pool does far more than promote general health and well-being in accordance with the City of New Yorks Active Design Guidelines; it has important therapeutic and rehabilitative value as well. 56
ix. Mitigating Jaywalking Safety Hazard in Accordance with MTA NYCTs New Design Guidelines
171. One of the last things the MTA and FTA should be encouraging is jaywalking. As the Agencies acknowledge, it is illegal and dangerous to jaywalk, especially on a heavily- trafficked major cross town street like 86 th Street, as is expected with the siting of the eastern most kiosk as far as 270 east of the SA Building line. However, the Agencies cavalierly dismiss this as a concern because they believe most ridership will be coming from the corners of Second Avenue and First Avenue (SEA at 5-25). 21 In marked contrast, the 86 th Street Communitys One-Entrance, Corner Solution substantially mitigates this hazard by placing its one entrance at the northeast corner where it belongs in accordance with the MTA NYCT standards set forth in the New Design Guidelines. The New Design Guidelines provide, in relevant part, that it is preferred for entrances to be sited at corners, whenever possible instead of midblock locations, to encourage crossing at traffic-regulated street corners. x. Increasing Ambulance and FDNY Response Times
172. Building one entrance at the corner instead of the MTAs planned two entrances flanking east and west of the circular driveway to the main entrance of Yorkshire Towers, presents an important opportunity to decrease ambulance and FDNY response times for residents in emergencies by, among other things, not eliminating the important drive-through feature of the circular driveway that leads to the front entrance of the building, and creating a large construction work zone in front of the building by digging a 300,000 cubic foot trench required to build two midblock entrances during the approximately next four years of construction
21 See Section G (xiii) below: Agencies conclusions regarding projected ridership do not withstand outside, independent scientific and transportation engineering planning scrutiny and analysis. 57 projected by the MTA. 173. The MTA acknowledges under its two entrance plan that the best it could do to mitigate the adverse impact of eliminating the drive-through circular driveway that leads to, and exits from, the buildings main entrance during construction, is to create a staging area on the street in the work zone in proximity to the cut and cover trench of 300,000 cubic feet in connection with yet another unstudied, outsize impact never evaluated in an EIS: third party interference with ongoing safety faade repair and improvement program contracts and construction work mandated by local law (See section G(xi) below). The scale of the adverse impacts regarding ambulance and FDNY response times is especially significant for an apartment building like Yorkshire Towers with over 2,000 residents many of whom are elderly or are young families with children. xi. Elimination of Third Party Interference by MTA with Ongoing Faade Repair and Improvement Safety Program Mandated Under Local Law and Associated Adverse Impacts of Community Disruption, Delay and Increased Costs
174. Further outsized adverse impacts of building two entrances in front of Yorkshire Towers, is that the Agencies never took into account or planned for the MTAs Two-Entrance, Midblock Scheme directly conflicting with building-wide repair and improvements at Yorkshire Towers mandated under New York Citys Faade Inspection and Safety Program (FISP). Sidewalk bridges to complete this new and significant work have been in place pursuant to plans approved by the NYC Department of Buildings (DOB) shortly after it was first permitted last September and overlap the same sidewalk site where the MTA would commence excavation for the two midblock entrances. 175. In light of this conflict with local law by the MTA, a discussion about whether to go forward at this point with building the MTAs two entrances overlapping the same site is 58 academic unless the MTA interferes as a third party in the ongoing professional and construction contracts to complete the ongoing FISP project at Yorkshire Towers, which is presently not scheduled for completion until the third or fourth quarter of 2014. 176. Notwithstanding that the safety of the 86 th Street Community, as the MTA professes, is a number one priority, and the direct conflict with local safety law that the Agencies never studied or evaluated in an EIS, the MTA has asked Yorkshire Towers to sign a third party agreement authorizing interference by the agency with the prior, ongoing mandated local law FISP project by Yorkshire Towers to the end of halting work for this safety work, and jumping ahead to begin excavations required for building of the two planned entrances (the MTA Third Party Agreement). 177. However, the MTA Third Party Agreement creates only further associated adverse impacts for the 86 th Street Community that is new and significant. These include added interference costs for the professionals and contractors for the FISP project and the extra costs by MTA contractors who would be building the two entrances causing delays to the completion of the prior ongoing FISP project and the related adverse impacts of shutting down the circular driveway to and from the main entrance for over 2,000 residents. 178. Instead of offering to interfere with, delay and increase the costs of the completion of the ongoing FISP project and delaying and increasing the cut and cover construction costs of building two entrances, the Agencies can seize the important opportunity to avoid these and related adverse impacts by going forward with the 86 th Street Communitys One Entrance, Northeast Corner Solution. 179. The limited area where cut and cover construction from the surface is required under the one-entrance solution can be done last while the MTA builds the underground mezzanine 59 starting from the 86 th Street Station cavern to the ancillary spaces and the ADA elevator. This is underground work that would have to be done in any event whether leading to the 86 th Street Communitys one entrance at the northeast corner or the MTAs two entrances. It can be coordinated without impacting or delaying the completion of the current above ground compliance with FISP local law work while at the same time without delaying completion of the construction of the 86 th Street Communitys one entrance solution while staying within the most current Contract B schedule in the second half of 2014 for the build-out of entire 86 th Street Station, including the station cavern, one entrance for the south entrance for the station at the northeast corner of 83 rd Street and the 86 th Street Communitys one entrance plan for the north entrance at 86 th Street. The essential reasons for this are twofold. 180. It takes six months to build one corner entrance instead of two entrances, which takes 17 months, and the predominantly mined underground work for the 86 th Street Communitys one entrance solution can be done together with the rest of the underground project activities for the build-out of 86 th Street Station on a 24/7 basis while above ground cut and cover construction and blasting associated with building the MTAs two entrances is generally limited to 50% of that time for compliance with FDNY blasting protocols and other local law requirements. (See Section G(iv) above). xii. Improving Air Quality
181. The extent to which construction dust generated by building the SAS negatively impacts the Communitys air quality, commonly known as the Second Avenue Cough, has been well-publicized. Independent of whether any serious health effects are ultimately proven, or health conditions are merely exacerbated by breathing in this dust, it is plainly an adverse impact for the MTA to generate, and for people to have to breath in, any construction dust at all in the 60 first place. In this regard, it is a decided improvement to mitigate the scale of this adverse impact by substantially reducing the amount of surface, cut and cover, dust generated by excavating soil and bedrock being released into the air from 300,000 to 60,000 cubic feet under the 86 th Street Communitys primarily underground mined One-Entrance, Corner Solution. 182. The MTAs approach thus far has been limited to adding the expense and delay involved in using air-filtration systems. The MTA has never maintained, nor could they that the air filters completely eliminate the construction dust problem: at best they can help mitigate the extent of it. However, when the use the air filters are combined with eliminating substantial volumes of dust that would otherwise be released into the air, air quality for the 86 th Street Community generally, and particularly in front of the single largest residential building impacted by the SAS, Yorkshire Towers, cannot help but significantly improve. 183. Air quality is also substantially improved under the 86 th Street Communitys One- Entrance, Corner Solution by reducing the pollution that idling trucks generate when removing on a scale of 5 to 1the much larger area of top down cut and cover excavation of soil and bedrock compared to a primarily mined approach. xiii. Meeting and Exceeding Standards for Accommodating Projected Ridership (Passenger Convenience)
184. The other basic question raised by MTACC President Michael Horodiceanu with the President of the Tenants Association, Doron Gopstein, at the meeting of January 5, 2012 is how does the 86 th Street Community One-Entrance, Corner Solution compare to the Two-Entrance Midblock Scheme in terms of accommodating passenger convenience. 185. A preliminary point to be made regarding the one-entrance, northeast corner solution more than adequately accommodating projected ridership is the parallel design siting of the north and south entrances for the 86 th Street Subway Station. The south entrance was 61 designed to be at a parallel location to the north entrance. It is a one-entrance, three-escalator design located in a building at the northeast corner of 83 rd Street and Second Avenue. The north entrance was also designed to be a one-entrance, three escalator solution inside a building, Yorkshire Towers at the northeast corner of 86 th Street. 186. Projected ridership volumes for the south entrance during a.m. peak hours are projected at 2,945 entering and 979 exiting. These are greater than the a.m. peak projections for the north entrance: 2,900 entering and 700 exiting (SEA, at S-3). The ridership volumes for the parallel south entrance for the 86 th Street Station were never studied or evaluated in the FEIS, or a limited scope SEIS, and compared to the ridership volumes for the parallel north entrance. 187. Since ridership volumes for the south entrance are greater than the volumes for the north entrance, it would be at best inconsistent and arbitrary for the Agencies to say that the 86 th
Street Communitys northeast corner solution for the north entrance is not at least as good, if not better than the same design solution for the parallel south entrance being built at 83 rd Street regarding adequately accommodating projected ridership. 188. Furthermore, the south entrance at 83 rd Street has a much larger catchment area with longer walking distances than the north entrance at 86 th Street. The next entrance to the 96 th
Street Station is at 94 rd Street, only eight blocks away, compared to the next entrance at the 72 nd
Street station which is 11 blocks away from the 83 rd Street entrance. There is therefore no reasonable basis for the Agencies to have placed disproportionate and selective emphasis on passenger convenience as the justification for having two entrances for the north entrance for 86 th Street, one at the midblock, while finding that one 83 rd Street entrance at the northeast corner is sufficient to meet projected passenger demand. This is especially so because, the 86 th
Street entrance has the benefit of an intermodal bus connection for MTA projected ridership, 62 while the 83 rd Street entrance does not. 189. Of larger significance regarding whether the one-entrance, northeast corner solution better accommodates projected ridership is that the Agencies arrive at a conclusion that 68% of projected ridership for the north entrance will use the second eastern most midblock kiosk, (SEA at S-4), without the benefit of any study that could independently withstand scientific and transportation planning engineering scrutiny and analysis. 22
190. Faced with the inability to determine the validity of the 68% conclusion under fundamental transportation planning engineering standards independently, because of the inherent limitations on the face of the data and information furnished in the SEA, 23 Dr. Lutin conducted new and independent study to test whether there was any reasonable, scientific basis to continue to rely upon it. What he discovered is that the Agencies have it backwards. The predominant percentage of projected ridership, 69%, would find it more convenient to access the North Entrance by using 86 th Street Communitys new one-entrance, three escalator, northeast corner design as compared to virtually the other way around under the 68% figure that the Agencies are relying upon for the easternmost, midblock kiosk. 191. In marked contrast to the outdated and incomplete data regarding accommodating projected ridership that appears in the SEA, the new study and analysis completed by Dr. Lutin was more comprehensive, using a block-by-block analysis and including a recent field survey of the construction site. Dr. Lutins studies were also new and significant from a basic methodology
22 Supporting the conclusion reached by Dr. Lutin in his new study and analysis demonstrating that 69% of projected ridership find it more convenient to access the North Entrance under the 86 th Street Communitys one-entrance, three-escalator, northeast corner solution, is the Agencies conclusion in the FONSI at 10 which states that the MTAs Two-Entrance Scheme will bring additional pedestriansbut this number will not differ noticeably from the No Action Alternative. This is the same one-entrance, three escalator design sited at the northeast corner, previously approved by the Agencies for the North Entrance to the 86 th Street Station (FEIS at 5F-5), and which was the subject of the SAS Entrances Study. See also Section G(xiii) above. 23 See Section C regarding CEQ Regulations above at 46-47. 63 point of view, since they took into account updated 2010 census data compared to the outdated 2000 census data relied upon by the Agencies, as well as riders with trip origins and destinations in all four quadrants of the stations catchment area: that is, riders accessing and exiting the north entrance from all four directions, northwest, southwest, southeast as well as the northeast, to which the Agencies mistakenly limited their focus on the face of the SEA. 192. Moreover, Dr. Lutin demonstrates through the report he prepared for the MTACC and FTA Technical Meetings that the One-Entrance, Corner Solution constitutes a significant improvement with respect to accommodating projected ridership over the MTAs Two-Entrance, Midblock Scheme in at least eleven separate and material ways in addition to the two respects discussed above. xiv. Promoting Economic Development on Second Avenue
193. The 86 th Street Communitys one-entrance, three-escalator, northeast corner solution encourages passengers to walk down Second Avenue from the northeast quadrant catchment area rather than down 86 th Street in front of Yorkshire Towers. Additional pedestrian traffic benefits retail stores on the avenue and promotes its future economic development. This is an important benefit because it helps redress the continuing adverse impact of lost business that the last five years of construction has caused to Upper East Side retail stores on Second Avenue with at least approximately four more years still to go. xv. Reduction of Surveillance and Monitoring Requirements
194. A single station entry point as the 86 th Street Communitys One-Entrance, Corner Solution reduces surveillance and monitoring requirements. It is a mistake for the Agencies to squander this important opportunity, especially from the point of view of local policing and Homeland security considerations, which is important to New York City, generally, and 64 particularly for the 86 th Street Community, including the single largest residential building impacted by the SAS, Yorkshire Towers. xvi. Mitigating Severe Storm Hazard of Northeasters 195. One of the specific placement considerations that the New Design Guidelines take into account in siting new subway entrances is the adverse impact of prevailing winds to protect pedestrians against the hazard of severe storms.. The importance of this factor was brought home by the recent severe storm, Hurricane Sandy in late October 2012. It flooded many lines of the subway system, including the 86 th Street Station of the Lexington Avenue line, which is designed to alleviate overcrowding on the SAS.. The adverse impacts of Hurricane Sandy were then further compounded by another Northeaster which soon followed on November 7, 2012. 196. In planning for new realities of severe storms, Governor Andrew M. Cuomo perhaps summarized it the best: 100-year storms seem to hit New York every two years now. For us to sit here today and say this is a once-in-a-generation and its not going to happen again, I think would be short-sighted, he said. I think we need to anticipate more of these extreme weather type of situations in the future and we have to take that into consideration in reforming, modifying, our infrastructure. 24 To this end, the One-Entrance, Northeast Corner Solution mitigates the increased frequency of severe storm hazards that the 86 th Street Community must face in two important respects. 197. First, by downscaling the building of two entrances to one, the amount of surface penetrations involved in over-building and removing 300,000 cubic feet of soil and rock instead of 60,000 cubic feet and having its one entrance directed away from harms way, that is oriented toward Second Avenue instead of into the prevailing winds of Northeasters as planned under 24 Josh Dzieza, Hurricane Sandys Lesson for Flood-Proofing a Subway, The Daily Beast (2012), available at http://www.thedailybeast.com/articles/2012/11/04/hurricane-sandy-s-lesson-for-flood-proofing-a-subway.html. 65 the MTAs second easternmost kiosk, the extent of the exposure to flooding and associated costs involved in remediating this condition are at minimum substantially reduced on a scale of roughly 2 to 1. 198. Second, by placing two entrances opposite each other under the MTAs plan, there is the risk of creating a wind-tunnel effect during Northeasters with associated negative pressure forces. This adverse impact allows wind to travel at Northeaster-force velocities through the large open air square area to the midblock entrance and into the station and coming out of the other large open air area at the entry point to the MTAs corner entrance. This generally puts any passenger at risk of getting blown away when trying to enter or exit the station. Further, the wind tunnel effect would be especially destabilizing for any passenger who is vulnerable to losing their balance when entering or exiting a subway entrance and stepping unto or off an escalator such as the elderly and disabled. In decided contrast, the One-Entrance, Northeast Corner Solution presents the important opportunity to mitigate this adverse impact substantially by having the back of the one entrance together with the protection of the large kiosk measuring 41- foot long, approximately 20-foot wide and 16-foot high oriented toward Second Avenue, buffeting the prevailing winds of Northeasters instead of oriented directly into them as the MTAs easternmost midblock kiosk oriented towards First Avenue and the east does. 199. Significantly, despite recent events which underscore the severity of the risks posed by severe storms, the Agencies have never taken into account and studied this important consideration under their Two-Entrance, Midblock Scheme in any EIS and how it can be mitigated under the 86 th Street Communitys One Entrance, Corner Solution in accordance with the New Design Guidelines.
66 H. The 86 th Street Communitys One-Entrance, Northeast Corner Solution Meets Each of the MTAs Stated Goals and Objectives as Well
200. In addition to meeting and exceeding environmental review standards in at minimum sixteen new and significant respects when compared to the MTAs Two-Entrance Midblock Scheme (See Section G, above), the 86 th Street Communitys One-Entrance, Corner Solution meets each of the MTAs stated goals and objectives for subway entrances and satisfies the minimum requirements in the SEA for alternatives to the No Action alternative as well (SEA at S-6-7): (1) Entrances must be large enough to accommodate the projected ridership anticipated at the north end of each station. (See Section G(ii) above).
(2) Entrance locations should be sited as to be constructible in accordance with good engineering practice (See accompanying declarations of civil engineer, Peter S. Schneidkraut, P.E; transportation planning engineer, Jerome M. Lutin, Ph.D., P.E., AICP; and geotechnical and underground engineer, Ingo H.R. Fox, PE, MSc, DIC).
(3) Maintain overall Second Avenue Subway project construction schedule. (See Section G(iv) above).
201. The 86 th Street Communitys One Corner Entrance also meets the MTAs stated goals and objectives: entrances must be located at the north end of the 72nd Street and the 86th Street Stations at locations that allow for a connection to the stations mezzanines without major redesign of the stations. 202. Minimal redesign is involved with the 86 th Street Communitys One-Entrance, Corner Solution for a number of reasons. It involves a minor design variation of enlarging the MTAs corner entrance, from two to three escalators, widening the sidewalk, removing the Yorkshire Tower planter and non-weight bearing masonry wall, if necessary, and extending the escalators down further to a landing to allow for adequate rock cover. The midblock entrance could be eliminated and the second bank of escalators to the mezzanine could be shortened to the 67 mezzanine. The northeast corner location has already been approved in the FEIS; the Food Emporium Alternative, for which a set of design drawings have already have been completed by DHA. 25
203. In addition the Design Team has furnished a complete set of illustrative concept drawings at the MTACC and FTA technical meetings for the One-Entrance, Corner Solution, which is in close proximity to the Food Emporium location on the northeast corner of 86 th Street and Second Avenue (See Section F above). Therefore, it would be a simple task for even junior level designers and engineers from AECOM to build on the existing body of work and complete the minimal redesign involved in the limited change in location and connections to the mezzanine levels. 26 Given the extensive international credentials of the firm, and their ongoing work for Phase One of the SAS, they certainly have more than sufficient resources and the ability to do so in as short order as the FTA has said that limited scope supplemental environmental review has the potential to be completed, approximately 30 days. 27
204. Moreover, the minimal redesign involved in the 86 th Street Communitys one- entrance, three escalator, northeast corner solution is, if anything, less involved than the redesign that resulted in the MTA changing the location of the only other midblock entrance that the agency has planned to go forward with for the entire four phases of the SAS project, to a five-
25 See fn 2 above. 26 See also discussion in Section G(xi) above. 27 See Id. It is no answer for the MTA to say that redesign would take at least several months because they would need to rebid design services when the agency continues to use AECOM for services of precisely this nature regarding changes to the SAS. However, even if this were not so, for the sake of discussion, the MTA would still have at least two ways to expedite the minimal redesign involved in the 86 th Street Communitys One-Entrance, Corner Solution. First, the MTA could exercise rights under the agencys existing contract with its builder to complete the redesign on a design/build basis which does not require bidding and saves time by redesigning as construction is underway as the MTA has done in the past. Second, MTA NYCT could also choose to expedite the minimal redesign involved through use of the agencys more than qualified in-house architectural and engineering departments. 68 elevator, one entrance solution on the southeast corner of 72 nd Street. This involved an analogous federal environmental case brought by the 72 nd Street Community in which the MTA NYCT consulted with me as former lead architect for the SAS entrances to help expedite the change from a midblock to a corner location design solution. 28 The redesign from a midblock to a corner entrance involved in the 72 nd Street case involved building acquisition and tenant relocation. The 86 th Street Communitys One-Entrance, Corner Solution, in marked contrast, does not. CLAIM FOR RELIEF (Violation of NEPA and APA) 205. Defendants have refused or been unwilling to furnish documented environmental analysis in response to the new, extensive Design Submittals prepared on behalf of the 86 th
Street Community, the authorities and calculations upon which they are based, and the presentations made regarding them at subsequent MTA and FTA technical meetings, that begins to demonstrate why the Defendants should not be going forward with implementing the 86 th
Street Communitys, One-Entrance Corner Solution without further delay. 206. The One-Entrance, Corner Solution meets and exceeds environmental review standards in at minimum sixteen new and significant respects when the beneficial effects realized and adverse impacts mitigated are studied evaluated, and compared to the MTAs Two-Entrance Midblock Scheme. This includes the core value of pedestrian and vehicular safety for the 86 th
Street Community, which the MTA regularly emphasizes is the agencys number one priority.
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28 See fn. 7 above. 69 207. By failing to prepare a Limited Scope SEIS under the new and significant information and circumstances presented by the 86 th Street Community that fully studies, evaluates and compares the One-Entrance, Corner Solution, to the Two-Entrance, Midblock Scheme, Defendants have violated NEPA and its implementing regulations, abused their discretion, and acted arbitrarily and capriciously in violation of APA. 208. Plaintiffs have no adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that judgment issue pursuant to the National Environmental Policy Act, 42 U.S.C. 4231, et seq.(NEPA); the Council of Environmental Quality implementing NEPA regulations under 40 C.F.R. 1500.1 et seq; and United States Department of Transportation implementing NEPA regulation under subparagraph (f)(3) of 23 C.F.R. 771.130, as codified under 23 U.S.C. 139(l)(2) governing the issuance of Limited Scope SIESs for public transportation capital projects, and the Administrative Procedure Act 5 U.S.C. 706: (1) Declaring that Defendants failure to prepare a Limited Scope SEIS evaluating the 86 th Street Communitys One-Entrance, Corner Solution violates NEPA and APA; (2) Directing Defendants to prepare a Limited Scope SEIS evaluating the 86 th Street Communitys One-Entrance, Corner Solution; (3) Enjoining the Defendants, their employees, agents and contractors from taking any steps to commence, accelerate, or proceed with the limited portion of the entire SAS project, pertaining to, or in furtherance of the construction of the north entrance to the 86 th Street station, the Two-Entrance, Midblock Scheme without suspension of the far greater SAS project activities not directly affected, unless and 1mtil the Defendants fully comply with the requimments of NEPA andAPA;and (4) Granting such other and further relief as is just and proper. Dated: New York, New York March I5, 2013 70
By: e_tcj . Jos h J. Cec elli Joseph P. Leo Two Wall Street New York, New York I 0005 (2I2) 227-4848 iceccarelli@ceCWl.COlll Jeffrey E. Glen Rene F. Hertzog ANDERSON KILL & OLICK, P.C. I25I Avenue of the Americas New York, New York I 0020 (2I2) 278-IOOO j glen@andersonk:11l.com rhertzog(a),andersonkill.com Attorneys for Plaintiffs Yorkshire Towers Company L.P. and Yorkshire Towers Tenants Association