Arguments continued on Friday in a hearing on the lawsuit seeking to rip out the bike path from Prospect Park West, a suit which, five years after it was filed, still will not die. On hand in the Brooklyn Supreme Court courtroom facilitating the colossally silly debate were a five-person legal team from the white-shoe law firm Gibson Dunn, five lawyers for the city, including Department of Transportation general counsel Philip Damashek, Judge Bert Bunyan, a lawyer for Councilman Brad Lander, three court clerks, one court officer, and a court reporter perched at her station, frequently prompted to read back questions such as, "Before the bike lane went in, if I were crossing Prospect Park West, I would have had to cross three lanes of car traffic traveling in one direction, as well as bike traffic traveling in one direction, correct?"
Pursuing this line of questioning was Gibson Dunn lawyer Brian Ascher, apparently seeking an admission from former Transportation Department bike and pedestrian program director Josh Benson that the replacing of a lane of car traffic from the park-side street with a two-way bike path constituted a drastic reconfiguration unlike any other in the city at the time. Benson, now transportation Bureau Chief in Stamford, Connecticut, was back on the stand for a second day in a hearing intended to determine whether the bike lane was a "trial."
Judge Bunynan threw out the lawsuit months after it was filed in 2011, saying the group of wealthy and politically connected neighbors who brought it had exceeded the statute of limitations. However, an appeals court judge revived the case in 2012, saying Bunyan needed to hold an evidentiary hearing on whether the rejiggering was presented as a trial project. Four years later, the hearing was happening, and Benson was on the stand, not managing the streets of the Connecticut city of 125,000.
"Not correct," Benson said, responding to Ascher's description of the Prospect Park West of yore. "Prior to the installation of the lane, we observed a significant amount of wrong-way bike traffic, so there was bi-directional bike traffic."
When considering the case of the Park Slope residents who once waved signs and got in shouting matches with cyclists but now do not send even a single representative to court, it's worth remembering that a redesign of Prospect Park West is something that many in the neighborhood asked for. Back in 2007, the area's Community Board 6 alerted the DOT to the problems of drivers speeding along the street and limited bike access to the park. The department found three quarters of drivers at a given time were speeding, and that sidewalk cycling was also prevalent. More than 1,300 people signed a petition calling for a two-way bike path, and department reps presented the path proposal to the community board in 2009. The board voted to approve it that year.
Gibson Dunn lawyers have nevertheless portrayed their clients, two former deputy mayors among them, as caught off guard and "lulled into a sense of complacency" by the notion that the path was not permanent, and that it could be removed subject to a review. This idea did take hold as opposition to the lane heated up in the months after and immediately before its June 2010 installation. That March, former Borough President Marty Markowitz would later claim, then-transportation commissioner Janette-Sadik-Khan told him the lane was a trial, which she denies. In April 2010, a staffer for Councilman Lander referred to the lane as a trial at a community board presentation of an updated design, and Benson maintains that he corrected him.
Park Slope Councilman Brad Lander (William Alatriste/New York City Council)
Still, the term made its way into news stories and angry letters to the DOT, many of which Benson and Sadik-Khan had to go over in excruciating detail on Thursday and Friday.
One main propagator of the notion was Lander, who was part of the original push for a bike path as a community board member. He took the stand on Friday. From his testimony, it became clear that his office send out emails and make statements to the press describing the path as a trial after Benson's purported correction that April. Pressed about a day spent handing out flyers with this erroneous information alongside then-DOT Brooklyn deputy commissioner Keith Bray, Lander wouldn't concede that Bray had read the flyers, saying, "I don't know how to answer. He was near the flyer. He was near the flyer!"
Lander testified that he had with then-DOT deputy commissioner David Woloch in late June, wherein Woloch corrected a draft letter to Sadik-Khan that described the lane that way.
"He said, 'It's not a trial, period,'" Lander recalled on the stand. "We are 'implementing the bike lane.'"
Lander changed the letter to the commissioner, but his office kept up with the misrepresentation of the project to the public. Cross-examining Lander, lawyer Georgia Winston, a partner at Gibson Dunn, asked him whether he did and why.
"We did, but much less frequently," he said. "The language from those prior emails was sometimes recycled and reused."
Lander explained that throughout his use of the term "trial," he was thinking of it not in the sense of a project with an expiration date, as the city uses it, but "the same way when you buy something the seller may not consider it a trial, but you're still learning how you feel about the product."
Lander's chief of staff told a reporter in October 2010, months after Lander says he was corrected, that "the [city] has been clear that this is a trial period." Lander said publicly that the path "should be made permanent" as late as January 2011, but he contended he was referring to the installation of concrete pedestrian islands.
The councilman explained that he kept calling the path a trial to "solicit lots and lots of feedback," but an email to a constituent, in which Lander wrote that the trial period makes it "relatively easy to defuse opponents," is probably closer to the truth.
On the stand, Lander acknowledged that he misinformed some constituents, but called it a "mistake."
"I made a mistake. Sometimes we make mistakes," he said. "I've made lots of mistakes."
Asked about why he thought the subsequent installation of concrete pedestrian islands would make the lane "more permanent," Lander got philosophical.
"Permanent is kind of a metaphysical concept. You could rip up concrete pedestrian islands today if you wanted to," he said, noting that pedestrian islands planned for Brooklyn's Fourth Avenue won't come till 2018, and that street's redesign is being evaluated as all street projects are. "I don't know what's permanent."
Outside the courtroom, Lander said "No one told me to call it" a trial, and that he believes most people shared his "common-sense understanding" of the word.
The DOT did little to dispel the idea of the path being a pilot project once it started to gain traction. But in December 2010, Sadik-Khan clarified the DOT's position, testifying to the City Council that the department does not install temporary bike-ways as a matter of course. Benson told the court Friday that the Prospect Park West path was built with federal funds for bike infrastructure that require the project to have a lifespan of at least approximately 25 years, so it couldn't have been temporary.
The path, meanwhile, has succeeded on most counts, bringing speeding down to one-fifth of drivers, tripling bike traffic, all but ending sidewalk cycling, while driver-on-driver crashes have held steady, according to Transportation Department data.
The proliferation and widespread acceptance of bike lanes since 2010 "shows how far beyond the bike-lash we have moved across the city," Lander said outside the courtroom. "The ways we have increased safety are clear to so many, as clear as it was to me back then."
The anti-Prospect Park West bike path legal team has twice declined to discuss the case. (Nathan Tempey/Gothamist)
In his argument to reopen the case, anti-lane attorney Matthew Benjamin said, "Just because the DOT didn't call the lane a pilot doesn't mean it was final and binding...It would be extraordinarily unjust to bar the public from the courthouse because a deadline was never clearly communicated."
City lawyer Mark Muschenheim countered that no public notice was required, as none would be for a new stop sign, and even if the neighbors missed the many community board meetings about the plan, they were on notice once the green paint went down.
"Most DOT projects are not pilot projects," he said. "They do not have to have in bold headlines, 'NOT A PILOT.'"
Still mysterious in all of this is the involvement Gibson Dunn, the firm that helped George W. Bush take the 2000 election in Bush v. Gore and cleared Chris Christie in an internal Bridgegate probe where lawyers kept no notes, and where some partners bill at rates of over $1,000 an hour. The firm previously donated its services pro bono, in apparent violation of city bar association standards for taking unpaid cases, but given a 2013 plea by bike lane opponent Louise Hainline for legal funds, it's not clear if it's still doing so. The legal team wouldn't talk to me outside of court, and the firm's press office did not respond to emails.
Both sides are set to file motions next week, and Hainline, Steisel, and possibly Markowitz are set to appear in court on March 14th and 15th. Plaintiffs Louise Hainline and former deputy mayor and sanitation commissioner Norm Steisel did not respond to emails seeking comment.