Monday, November 15, 2010

EDC Illegally Stonewalls Disclosure on Van Wyck Ramps

It is now approaching a year since Willets Point United and its traffic maven Brian Ketcham blew the whistle on a fraud that was about to be committed by EDC over the application to build ramps off of the Van Wyck Expressway to accommodate. We covered this fraudulent attempt to submit inaccurate traffic data, and as we said at the time, citing a report in Crain's: "The original environmental impact statement, or EIS, showed the massive Willets Point project would generate heavy traffic, but a recent report on the proposed ramps showed a much sunnier picture. The ramp study—an “access modification report,” or AMR, which is technical documentation to support federal and state decisions on whether to approve the ramps—is being redone after Mr. Ketcham used traffic data from the environmental impact statement to demonstrate that the ramps would make a bad situation worse. The entire redevelopment, with 9 million buildable square feet, is projected to generate 80,000 vehicle trips daily."

The exposure of EDC's traffic consultant double dipping, forced NYS DOT-the immediate arbiter of the ramp application-to insist that EDC revise its phony AMR: "In the Crain's article what really stands out is the following statement from our BFF Dave Lombino: "We will be submitting a revised draft in the upcoming weeks that is responsive to the comments and issues raised by state DOT and the Federal Highway Administration, as well as those from Willets Point opponents,” said David Lombino, a spokesman for the Bloomberg administration’s Economic Development Corp., the lead agency on Willets Point."

Words to live by-or to die for. Now we know that, "upcoming weeks," is a rather amorphous term, but we pretty certain that forty weeks stretches the concept of upcoming beyond all recognition. What the heck is going on here-and is the delay owed to the fact that there is simply no good way to figure out how to truncate the original traffic data so that the ramps can actually be made to work?

What has transpired since last February is nothing less than a vaudeville act. The DOT, after promising transparency and cooperation with whistle blower Ketcham, circled its wagons and has refused any direct information exchange with the expert who prevented the agency from looking like a compliant horse's ass. The actions of EDC, however, are even more egregious-it has refused to give up any information on the work product that has gone into the AMR's revision-and this is after DOT promised WPU that it would have a revised AMR by no later than October 1st.

Can any one concerned with accurate and open government defend the actions of these two agencies? As WPU pointed out in its communication with both DOT and EDC:

"For many months, NYCEDC and its consultants purportedly have been engaged in the process of preparing a revised Access Modification Report ("AMR") that pertains to the proposed Van Wyck ramp project, which is an essential enabling element of the proposed Willets Point development plan. In general, an AMR consists in whole or in part of the sort of factual data and objective information that cannot be withheld pursuant to the inter-agency / intra-agency disclosure exemption, and which must be disclosed. As the AMR will later be submitted to NYSDOT for its approval, it is conceivable that NYCEDC is sharing draft AMR content with NYSDOT to obtain NYSDOT's feedback. In response to a previous records access request, NYSDOT had informed WPU that it "reasonably expects to be in a position to provide you with a 'FINAL' version of the AMR in electronic format on or about October 1, 2010". Therefore, draft materials would have to exist prior to that date, and such materials are subject to rights of access conferred by FOIL."

But WPU has got ungatz from either DOT or the NYC EDC-a stonewalling that further compels that this entire process should be opened up for an independent and public review process. But review aside, EDC is breaking the open government law-refusing to hand over documents that it is required to do under the Freedom of Information Act; a refusal that is instructive about the way this quasi-public agency goes about its business.

One incident can serve to underscore the arrogance of EDC's constructive refusal to obey the law-here's the background:

On March 10, 2010, representatives of NYCEDC, its outside consultants, NYSDOT and FHWA met with WPU, its traffic engineer Brian Ketcham and its attorney Michael Gerrard, among others, at the law office of Arnold & Porter LLP. The purpose of the meeting was for WPU to convey its findings concerning the non-viability and severe adverse traffic impacts of NYCEDC's proposed Van Wyck ramp project. The meeting served to notify NYCEDC that WPU intends to challenge any approval of, or attempt by NYCEDC to implement, the proposed Van Wyck ramp project. A recent records access request made pursuant to FOIL revealed that on March 11, 2010, the day after the meeting with WPU at Arnold & Porter, NYCEDC, NYSDOT and FHWA convened another meeting, but without WPU.

WPU then requested all of the relevant information about this follow up meeting; and in response to EDC's unresponsiveness, WPU has written the following to the agency:

"As stated within WPU's Appeal: "In view of the potential importance of this meeting to the progress of the multi-billion dollar proposed Willets Point development and project X770.44 in particular (both of which are promulgated by NYCEDC), it is simply not credible that "no documents" or records of any type that pertain to this significant meeting of key persons are kept by, or for, NYCEDC. ... [I]f NYCEDC's Denial Letter is accurate then NYCEDC possesses absolutely: No material that was presented, shared, or distributed during the meeting, including no PowerPoint slides and no hand-outs; no notes taken by anyone during the meeting; no minutes of the meeting; no record of the results of the meeting or decisions reached during it; no post-meeting communications that pertain to the meeting; no attendance sheet from the meeting. It is difficult to envision a meeting between representatives of NYCEDC, NTSDOT and FHWA, relating to aspects of a multi-billion dollar proposed project which is promulgated by NYCEDC, that would not result in any record being generated and thereafter kept by, or for, NYCEDC. Incredibly, however, that is what NYCEDC's Denial Letter would have us believe."

Secret government operating in its own interests, and desperately trying to cover up its malfeasance. And then there is the apparent forced disappearance of Michael Bergman, DOT's last honest man. Here's the background on Mr. Bergmann:

"As a result of reviewing records disclosed by NYSDOT in response to previous FOIL requests, we know that Michael Bergmann is a NYSDOT employee who persistently questioned the viability of NYCEDC's proposed Van Wyck ramp project during late 2009. Bergmann's skepticism, high standards and insistence that NYCEDC still had not addressed significant issues may have influenced NYSDOT's decision to divert from NYCEDC's schedule, by not approving the proposed Van Wyck ramp project prior to the end of 2009. Although Bergmann's contributions to NYSDOT's evaluation of the proposed Van Wyck ramp project were noteworthy and he appears to have done a remarkable job, Bergmann is altogether missing from all records that WPU has obtained that have been generated since January 1, 2010 relating to the proposed van Wyck ramp project. It is as if Bergmann has been relieved of his responsibilities concerning the proposed Van Wyck ramp project, and re-assigned by the powers-that-be to other projects. To find out what has happened to Bergmann, and why he is apparently no longer involved with evaluating the proposed Van Wyck ramp project, WPU made a records access request of NYSDOT for various records of assignments given by NYSDOT to Bergmann and projects on which Bergmann has been directed to work."

NYS DOT's reply? It promised further notification by September 9, 2010, but provided none, contrary to FOIL. Therefore, NYSDOT-joining fraternal hands with EDC-has constructively denied the request. WPU has appealed the denial of access and is awaiting NYSDOT's response.

The Willets Point development is a massive use of tax payer funds that, while forcibly removing property owners, will have a huge impact on, not only the immediate Willets Point?corona/Flushing neighborhoods, but the entire region. The proposed Van Wyck ramps are the linchpin of this development, and their ability to accommodate and mitigate thousands of daily car and truck trips is essential for the ability of this development to function smoothly-and NYC has admitted this in court papers.

Put simply, if the ramps either aren't built, or can't perform the tasks assigned to them, the entire Willets Point development becomes a collapsing house of cards. Therefore, the review of these ramps is a crucial variable in evaluating the feasibility of the entire Willets Point project.

If, however, the process is suborned by agency collusion-aided and abetted by an administration used to getting its way in spite of any perceived contradictory facts-a disaster awaits Queens County and its road and mass transit infrastructure. EDC is in dire need of an intervention-the people of Queens and the rest of NYC, including the embattled Willets Point property owners deserve no less.