Home L Train Shutdown A deep dive on the West Village lawsuit over the L train shutdown plans

A deep dive on the West Village lawsuit over the L train shutdown plans

by Benjamin Kabak

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A group of West Village residents has sued DOT and the MTA over the L train shutdown mitigation plans. Vehicle restrictions and a busway on 14th Street seem to be a central focus of their legal ire.

With just under a year to go until the much-heralded L train shutdown, Manhattanites are growing restless. They’re not, however, concerned with the transit apocalypse that may be headed 14th Street’s way, and they don’t seem to believe, as many transit advocates do, that DOT and the MTA’s mitigation plan isn’t robust enough. Rather, with a combination of trumped-up NIMBY-esque concerns over traffic, bike lanes and bus lanes and some last-minute seemingly bad-faith arguments over ADA compliance, a group of West Village residents has sued DOT, the MTA and the Federal Transit Administration over the shutdown.

Over the past few months, as DOT and the MTA increased the pace of public presentations regarding the looming 2019 L Train shutdown, it seemed clear that a lawsuit was in the offering. Led by attorney Arthur Schwartz, who has variously put himself out there as (and seeming blurred the lines among being) a lawyer for a group of block associations, a resident, a homeowner and even the Democratic District Leader for some of the areas affected by the L train shutdown, various residents started making your typical NIMBY noises against the two-way bike lane planned for 13th St. and the temporary busway planned for 14th St. They raised concerns, not backed by numbers, of increased traffic on side streets and business Armageddon brought on by delivery vehicles being restricted to avenues. It’s been the typical litany of complaints safe streets and bus lane advocates have heard for years, and it seemed practically provincial coming from a wealthy group of self-proclaimed progressives living in the uber-gentrified transit-rich West Village.

Last week, the controversy boiled over when Schwartz filed his suit. It’s a lengthy complaint that relies on the argument that the various parties are in violation of state and federal environmental review laws. Schwartz alleges that the scope of the planned mitigation — a shutdown of the tunnel coupled with vehicles restrictions, pedestrianized streets and a two-way bike lane — along with its geographic proximity to a landmarked neighborhood requires at least an environmental assessment and perhaps a full Environmental Impact Statement. In light of recent bad press the MTA has received over its alleged flouting of ADA requirements, the plaintiffs tacked on allegations that the shutdown work itself is in violation of the ADA. (The complaint is available here as a PDF if you wish to read it.)

The ADA concerns are seemingly the easiest to address. In fact, the L train mitigation plan includes significant ADA accessibility upgrades with both the 1st and Bedford Avenue stations set to become fully accessible with the addition of new elevators and with Union Square set for an escalator to the station mezzanine. (Access to the L at Union Square is already accessible except for the transfer between the L and 4/5/6, but that is a function of the track layout and IRT platform positioning.) No ADA work is scheduled for 6th Ave. or 3rd Ave., but 3rd Ave. will receive platform edge doors as part of a pilot. The complaint alleges that stairway renovations without accessibility upgrades violate the ADA, but even amidst what many feel are rampant MTA ADA violations, that is a tenuous argument at best and one made in bad faith to stack claims at worst. Refurbishing stairways by itself isn’t generally enough to trigger an ADA violation.

The meat of the complaint revolves around the contention, as I mentioned, that DOT and the MTA are in violation of local and federal environmental review laws and additionally that the FTA is in violation of federal law if it has not required the proper environmental assessments. Here, the suit strays onto slightly firmer ground, but only slightly and only very narrowly. The bike lanes are easy; they are specifically exempted from federal environmental review requirements. In subsequent comments, Schwartz tried to claim the bike lane is one piece in an overall mitigation plan, the totality of which is subject to environmental review requirements, but the complaint on its face makes no such allegation. (Considering how easy it is to dismiss the complaint over the bike lane, you would think Schwartz would be careful here, but he fell back on the tired anti-bike trope of calling the pro-bike planners at NYC DOT zealots” during his comments earlier this week. Been there; done that.)

So the key legal question is a narrow one: Is a prohibition on most vehicles in favor of bus lane on a non-24/7 basis that is designed to be a part of a comprehensive mitigation plan for a temporary shutdown of the L train subject to environmental review laws? The FTA’s website on the topic provides some guidance but no definitive answer. DOT and the MTA’s planned bus way is a reallocation of existing space and not what the FTA generally considers to be new construction. Furthermore, the FTA itself has indicated that an EA or an EIS isn’t required, and courts often give significant leeway to agencies in interpreting their own regulations.

Schwartz’s complaint restates significant portions of the city, state and federal laws at play, and he details the dialogue to date over the shutdown plans. He doesn’t convincingly argue why the FTA doesn’t deserve deference or why the temporary non-24/7 bus lane requires these environmental assessments. Instead, the complaint draws conclusions — “closing 14th Street to vehicular traffic will cause horrific traffic jams” on nearby side streets — that likely wouldn’t stand up to scrutiny in litigation, but it’s not clear DOT and the MTA can win on an outright motion to dismiss. Even though we know the busway is a watered down plan and even though we all know a mitigation plan that doesn’t further limit vehicular access to the affected area will be far far worse for Schwartz and his plaintiffs, the law may still require some level of environmental review. I’m still working on reaching out to environmental law lawyers I know in the hopes of a more definitive answer.

But legal considerations aren’t the only elements at play here. Schwartz’s law firm is called Advocates for Justice, but it’s not clearly whose justice he’s interested in. One element is, as always, who gets to make decisions on streets and transit that impact everyone. Schwartz claims he’s suing on behalf of “residents of Williamsburg and west-central Brooklyn” but none of them are named plaintiffs. They also have the most to lose when the L train is shut down, but as we saw years ago with the demise of the 34th St. Transitway, those constituents aren’t often asked to the table in high-stakes legal discussions over a project fate.

Furthermore, Schwartz’s comments last week betrayed certain prejudices. He claimed that the MTA and DOT should have chosen the longer shutdown options on the table. Completely ignoring the MTA’s concerns that dust from the construction would make train operations through the Canarsie Tunnel unsafe for passengers during a piecemeal shutdown, a five-year plan that knocks out service on nights and weekends would be far more disruptive to a line that sees heavy ridership late at night and during the weekends and is a key conduit for lower income workers who need to commute in off hours. A total shutdown will be bad enough for 15 months, but five years of these disruptions would hurt those who can least afford it (and need transit justice more than the West Village does).

My biggest fear, however, with this lawsuit isn’t its potential success but rather the potential for settlement. To make this go away before the project timeline is in jeopardy, DOT and the MTA could agree to drop certain elements of the plan. The residents made clear they want the bike lane to disappear and want mixed-use traffic on 14th St. I’m sure either of those would be enough of a carrot to get them to drop the suit, but eliminating any part of a plan that’s already been watered down based on the trumped-up concerns from the very same residents who are now suing would be extremely harmful to hundreds of thousands of transit riders who don’t have the luxury of living in one of Manhattan’s most exclusive ZIP codes.

For its part, DOT says the suit is without merit. The MTA, however, issued a more guarded statement. “We do not comment on pending litigation,” Jon Weinstein, agency spokesman, said to me. “The repairs to the Sandy-damaged Canarsie Tunnel are desperately needed to ensure the tunnel’s structural integrity so we can continue to provide safe and reliable subway service to hundreds of thousands of New Yorkers who depend on the L train every day. We are working with our partners at NYC DOT to craft a thorough and robust mitigation plan.”

Meanwhile, over at Streetsblog, Ben Fried urges the agency and the MTA to fight hard on the transit elements of the plan and perhaps agree to additional ADA upgrades. Despite the protestations from residents that DOT has ignored their concerns, the plans aren’t as robust as transit advocates wanted, and any further movement in response to this lawsuit would set a bad precedent for future transit projects the city should implement. No retreat, baby, no surrender.

As I browsed the case file this weekend, though, pondering over how much this whole thing stinks, one filing from Schwartz caught my eye. In a subsequent letter to the court late last week when Schwartz and his clients erroneously believed that planned repaving of 13th St. meant that work on the bike lane was set to begin, Schwartz requested a conference in advance of potentially filing an injunction. The letter is impressive audacious as Schwartz seems to recognize the problems his suit may cause. “There is,” the lawyer writes, “clearly a need for expedited discovery in this case; although the shutdown is planned for April 2019, lengthy litigation, which could lead to a broad injunction and delays, is not in the public interest.” So I pose these questions: Who is in the “public” Schwartz refers to and what are their interests? Exactly what part of this suit is in the public interest after all?

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Jonathan F April 9, 2018 - 8:24 am

From now on DOT and MTA should initially release a maximalist plan. In this case 24/7 HOV on the bridge, plus full length busway from about 6am-midnight, at the least.
Anyone with a modicum of political acumen should have expected the NIMBYs and general obstructionists would be out in full force. Make it so people who don’t follow transit issues on a regular basis see the Schwartz’ as the ones who are being inflexible.
As for the ADA issues, that really was own goal by the MTA. There is no excuse for them not to have made every station compliant, barring physical issues.

redbike April 9, 2018 - 9:50 am

Electeds on the Nov 2018 ballot (e.g.: NY Assembly Member Deborah Glick) oppose DOT’s announced 14th Street mitigation plan for the L train shutdown. That’s the news. The bad news is that at this moment, Glick faces no primary opponent.

Jimmy Snoogans April 11, 2018 - 4:30 pm

Problem is, Glick represents the interests of her constituency very well. Greenwich Village, Hudson Square, Tribeca. The moneyed elite of Lower Manhattan.

SEAN April 9, 2018 - 10:10 am

As I was reading this, I’m reminded of the legal garbage that went on over the 86th street station when the 2nd Avenue subway was under construction. In fact I walked passed the co-op that was at the hart of the suit just this past Saturday & as I looked around I could see NO reason why there was any legal action taken against the MTA beyond plain obstructionism.

Stephen Bauman April 9, 2018 - 11:42 am

the MTA and DOT should have chosen the longer shutdown options on the table. Completely ignoring the MTA’s concerns that dust from the construction would make train operations through the Canarsie Tunnel unsafe for passengers during a piecemeal shutdown,

Many industrial processes would not exist, were it not for effective dust containment procedures. These procedures cannot be scaled down economically. Thus, they have not been employed in short length tunnel repairs.

The MTA insisted that the tunnel rehab use tunnel repair technologies with which it was familiar – but scaled up in length. This precluded using other procedures that are more appropriate to the scale of this project.

N.B. if dust could be contained, then the one tunnel at a time option would have permitted through trains between the 8th Ave and Canarsie stations. The MTA’s one tunnel at a time option had a service gap between the Bedford Ave and Lorimer St stations.

Brooklynite April 9, 2018 - 6:54 pm

As was discussed at length when the two shutdown proposals were being debated, there were definitely ways to maintain through service. My preferred alternative would have trains run in pairs, the first nonstop from Lorimer to 6th Av and the second nonstop from Lorimer to USQ, where they would reverse and proceed back to Lorimer. By my back of the envelope calculations this would give about 50% capacity – one of these pairs would cover the single track section in about twelve minutes.

The MTA’s one tunnel at a time approach judged single-track through operations too operationally fragile, so it enforced a gap between the mainline and shuttle services to prevent overcrowding of the shuttle (or, cynically, to get the proposal shot down).

Stephen Bauman April 9, 2018 - 11:33 pm

By my back of the envelope calculations this would give about 50% capacity – one of these pairs would cover the single track section in about twelve minutes.

The MTA also proposed the most wasteful single track operation. They could have maintained 12 tph operation.

The key is to operate trains at 40 tph and to run 6 trains before changing direction. Manhattan bound the first train would terminate at 8th Ave, the second at 6th Ave and the third at Union Sq. The 4th, 5th and 6th trains terminate similarly but wrong rail. Trains bound for Brooklyn would terminate at Rockaway Pkwy, E 105 St and New Lots Ave in a similar fashion.

Six trains would leave at Lorimer between hh:00:00 to hh:07:30 (40 tph). Travel time from Lorimer to Union Sq is 07:30. This means the last Manhattan bound train would arrive at hh:15:00. Six Brooklyn bound trains would leave Union Sq at hh:15:00 and continue until hh:22:30. The last train would arrive at Lorimer at hh:30:00 at which time the Manhattan bound trains would re-cycle. This gives an effective rate of 12 tph or 60% of the 20 tph max service level presently provided. It would take 18 trainsets to provide such continuous service, as opposed to the 24 trainsets currently required for maximum service.

Brooklynite April 10, 2018 - 1:19 am

It seems to me that the issue with this proposal is the crowding that would build up during the 22.5 minute gap in service. The termination at different stations would help, but there just wouldn’t be enough space in the stations or on the platforms (especially on the Manhattan end!) to have twenty minutes worth of people build up, and then start boarding trains 90sec apart. When the traction power limitations and general inability to run 40tph are taken into account, this seems infeasible imho.

aestrivex April 11, 2018 - 1:22 pm

Fwiw the gap in service until the next train comes is only 21 minutes since it there is a 90 second delay between trains. The gap until the next train leaves is 22.5 minutes, but at that time passengers will at least be able to get on the train to alleviate space on the platform.

Also, this plan would require incredibly precisely perfect signaling to not run late.

J Adlai April 9, 2018 - 7:50 pm

The death of the one tunnel at a time proposal was not dust related. The dust issue was a concern with running trains through after a weekend shutdown; every weekend.

The one tunnel at a time proposal died because the timeline was 3 years of really poor service instead of 1.5ish years of no service.

Walt Gekko April 10, 2018 - 10:40 am

What to me this is really about is they want the 1st-8th Avenue section remaining open and running during the shutdown.

As I originally noted a year ago on this, if this is what they want, this is how I would do it:

Eight sets of four-car trains would be brought over in advance of the tunnel shutdown with a maximum of three in use at any one time (for obvious reasons, with access to take trains back to Brooklyn severely limited requires extra sets to be in place at all times). One track from 1st Avenue to just west of 3rd Avenue would be closed at all times and used for train storage while the portion west of the crossover would be double-tracked. Every 6-8 weeks, one of the tunnels is opened to diesel trains that would come in and take out the sets in use for maintenance while entirely new sets of four-car trains are brought in to replace those being taken back (this would be alternated so each tunnel would only be opened ONCE every 3-4 months for this purpose). This would continue in that matter until one tunnel is completely finished at which point the shuttle would continue, but LIMITED through service between Brooklyn and Manhattan can run as well until both tunnels are finished.

It might take a little longer this way, but doing so would allow the 14th Street crosstown portion of the line to continue and get rid of a lot of the concerns of many there, especially those concerned about motorists from New Jersey who can’t or won’t use PATH or NJT to go to Manhattan and insist on driving clog up the streets there.

Jimmy Snoogans April 11, 2018 - 4:42 pm

Or you could take a bus crosstown. If those of us who live off the L line can add 20-40 extra minutes on our commute, those in Manhattan can add 5 minutes (if that).

Duke87 April 10, 2018 - 11:10 pm

This is a great example of why federal environmental laws surrounding construction badly need to be thrown out and rewritten from scratch. As they currently exist, they serve to give people with deep pockets a way of obstructing anything they don’t like by dragging it through the courts more than they serve to actually protect the environment.

smartone April 17, 2018 - 3:12 pm

seems to me the only legitmate complaint he has is making two way 13th street bike lane permanent
putting it temporary is one thing
but making it permanent is a bit much considering there was no neighborhood response to proposal to make it permanent


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