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MEMORANDUM OF UNDERSTANDINGJanuary 19, 2001
- between - TRANSPORTATION ALTERNATIVES, INC., BOERUM HILL ASSOCIATION, BROOKLYN HEIGHTS ASSOCIATION, INC., CARE ABOUT THE SLOPE, CARROLL GARDENS ASSOCIATION, INC., RED HOOK CIVIC ASSOCIATION, SUNSET PARK RESTORATION COMMITTEE, INC., UNITED PUERTO RICAN ORGANIZATION OF SUNSET PARK, DYKER HEIGHTS CIVIC ASSOCIATION, MATTHEWS AND RYAN MUSICAL PRODUCTS, INC. and BENJAMIN M. MESKIN (the "COMMUNITY PARTIES") - and the - NEW YORK STATE DEPARTMENT OF TRANSPORTATION ("NYSDOT") and FEDERAL HIGHWAY ADMINISTRATION ("FHWA") WHEREAS, there exists an
elevated highway in Brooklyn, New York known as the Gowanus Expressway (the
"Gowanus"), stretching between the Brooklyn-Battery Tunnel and the
Verrazano-Narrows Bridge; and WHEREAS, the process of
conducting environmental review and the preparation of an Environmental Impact
Statement ("EIS") pursuant to the National Environmental Policy Act,
42 U.S.C. § 4321, et seq. ("NEPA") to determine the environmental
impacts of alternative highway configurations, including different tunnel
alignments, to convey vehicular traffic through the area along and in the
vicinity of the Gowanus (the "Gowanus Corridor"), has commenced and is
ongoing; and WHEREAS, the parties agree,
broadly, and as described below in more detail, that the process of continuing
to prepare the EIS will include the following elements: (1) creation of a
community participation structure, featuring a Community Stakeholder Group, as
described below, which structure will enhance the exchange of information and
ideas between the communities and interested parties in the Gowanus Corridor and
the relevant governmental agencies involved in preparation of the EIS; (2) an
enhancement of the normal routes of information exchange between the
governmental agencies responsible for preparing the EIS and the public in the
preparation of the EIS regarding the Gowanus Project; (3) consideration in the
EIS process of certain specific substantive topics that the Community Parties
have identified as being of particular concern; and (4) the aforementioned
governmental funding of a technical advisor to facilitate the understanding and
comments of the Community Parties and other interested members of the public to
be provided pursuant to a Stipulation of Settlement of Transportation
Alternatives; and IT IS HEREBY AGREED, by the
parties hereto, as follows: 1. NYSDOT and FHWA will continue to prepare an EIS for the design and construction of the Gowanus Project, in accordance with NEPA, on a schedule as allowed by governmental transportation budgets approved by the legislative and executive branches of the federal and New York State governments. 2. In addition to the requirements of NEPA with respect to community input and access to information in connection with the process of preparation of the EIS, the parties agree that there will be enhanced community participation and input in the EIS process beyond that ordinarily required by NEPA. 3. As part of this enhanced EIS process, there shall be established a Community Stakeholder Group consisting of members of the communities in the Gowanus Corridor, and any constituent groups with interest in the development of the Gowanus Project. The purpose of the Community Stakeholder Group will be to organize, coordinate, facilitate and contribute to the flow of information between NYSDOT and FHWA and the affected members of the public and thereby enhance community participation and input into the enhanced EIS process. 4. Community members of the Community Stakeholder Group shall include one representative of each community group that is a party to this Memorandum of Understanding, one representative of each other member of the Gowanus Expressway Community Coalition, to the extent such coalition member is interested in participating, and one appointee of each elected government representative whose district intersects with or will be impacted by the Gowanus Project, to the extent such representative desires to make such an appointment. The right to designate such appointees may be exercised by the elected government representatives set forth in Exhibit A hereto, or their successors in office. The parties hereto will work together to ensure that any interested party shall be offered an opportunity to become a member of the Community Stakeholder Group and/or its subcommittees. 5. NYSDOT and FHWA shall designate to each of the Community Stakeholder Group subcommittees, as set forth in paragraph 7 below, a liaison with knowledge of the issues being reviewed by such subcommittee. The designated officials of governmental agencies shall endeavor to attend the meetings of the Community Stakeholder Group, as well as its subcommittees defined below. The elected officials listed in Exhibit A, or their successors, may attend meetings of the Community Stakeholder Group on an ex officio basis, if such elected officials have not opted to appoint themselves to the Community Stakeholder Group pursuant to paragraph 4 above. A designated member of the Community Stakeholder Group shall be invited to attend all meetings of the Gowanus Interagency Task Force, and the designated member and the Chair of the Community Stakeholder Group shall be provided with advance notice of such meetings at the same time and in the same manner as notice is provided to the members of the Interagency Task Force. 6. The members of the Community Stakeholder Group shall elect by majority rule a chair and two co-chairs. Additional officers or directors of the group may be selected by the chair and the two co-chairs subject to ratification by a majority of the members of the Community Stakeholder Group. The Community Stakeholder Group shall determine the dates and frequency of its meetings. The Community Parties shall determine the date of initial meeting of the Community Stakeholder Group, but in no event shall the initial meeting be scheduled more than ninety (90) days after the execution of this agreement. 7. There shall be five standing subcommittees of the Community Stakeholder Group, which shall work with the community and facilitate the exchange of information and comments between members of the community and the appropriate governmental agencies regarding substantive areas considered in the enhanced EIS Process. Specifically, there shall be a Traffic and Transportation Subcommittee, Environment and Public Health Subcommittee, Social, Economic and Business Impacts Subcommittee, Evaluation of Alternatives Subcommittee, and a Land Use, Development and Urban Design Subcommittee. The Community Stakeholder Group may authorize the designation of additional subcommittees, or the modification of the subject area of any subcommittee, as it deems necessary. Each Subcommittee shall have a chair designated by the Community Stakeholder Group. Any Community Stakeholder Group member or interested member of the public may attend and participate in any subcommittee meeting at his or her pleasure. 8. Within one month after the first meeting of the Community Stakeholder Group is held, but in no event more than four months from the date of execution of this agreement, an initial meeting between representatives of NYSDOT and FHWA and members of the Community Stakeholder Group shall be held, appropriate to the then-current stage of the environmental review and project design process. At the initial meeting, NYSDOT and FHWA shall inform the Community Stakeholder Group of the status and history of the EIS process to date, and there shall be an exchange of information and ideas between community representatives and the government officials attending the meeting concerning their respective concerns and objectives regarding the Gowanus Project. 9. Thereafter, once each month, unless NYSDOT, the FHWA and the Community Stakeholder Group agree to meet more or less frequently, representatives of NYSDOT and FHWA will meet with members of the Community Stakeholder Group to exchange ideas and information concerning the Gowanus Project and the preparation of the EIS. The parties to this Memorandum of Understanding agree that no statements made at any such meeting will form a part of the administrative record, nor shall be used by any party against any other party in any litigation, and nothing in this Memorandum of Understanding shall serve to expand the administrative record review applied by the courts in any lawsuit which may challenge the EIS or any other agency decision-making concerning the Gowanus Project. 10. The parties to this Memorandum of Understanding recognize that ultimate decision-making authority with respect to the EIS lies with NYSDOT and FHWA, except to the extent that exercise of such authority is subject to judicial review, and that the purpose of such meetings, and the information and comment exchange process outlined herein, is advisory and informational, with no binding effect on the government agencies involved. The Community Stakeholder Group may continue in existence until construction of the alternative ultimately selected is completed. 11. Members of the Community Stakeholder Group, its subcommittees and the Technical Advisor shall, upon their request and without the need for a request under the United States Freedom of Information Act, 5 U.S.C. § 552 or the New York State Freedom of Information Law, N.Y. Public Officers Law §§ 84-90, be provided with underlying documents, data and information which are available under these laws. Documents which are excluded from disclosure under the United States Freedom of Information Act pursuant to 5 U.S.C. § 552(b) shall not be made available pursuant to this section, except that interagency and intra-agency documents which are otherwise excluded pursuant to 5 U.S.C. § 552(b)(5) shall be made available to the Community Stakeholder Group, its members and subcommittees at the time those documents are transmitted or circulated beyond NYSDOT and/or FHWA, including their consultants and counsel, to other interested agencies, or other person or entity. Access to such data and information shall include, without limitation, obtaining photocopies (at the expense of the requesting party) and electronic copies. Members of the Community Stakeholder Group and its subcommittees shall also be given access to draft sections of the draft EIS ("DEIS"), as well as any pertinent background memoranda or other documents, data or information used, reviewed or considered in preparation of the EIS. In the case of draft sections of the DEIS, or portions thereof, such sections or portions shall be made available to the Community Stakeholder Group, its members and subcommittees at the time they have been transmitted or circulated beyond NYSDOT and FHWA, including their consultants, to other interested agencies, or other person or entity. Other documents that the Stakeholder Community Group, Technical Advisor and any subcontractor, shall have access to include any study, report, data compilation or memoranda prepared by a consultant to NYSDOT and/or FHWA once finalized to the point where NYSDOT and/or FHWA anctipate that such documents will no longer be changed or revised. Non-proprietary models, data, and any other documents or information referred to herein, shall be made available to the Community Stakeholder Committee if in the possession, custody or control of NYSDOT, FHWA, or their consultants. In addition, upon completion, and in any event no less than forty-five (45) days prior to the dates of their formal release to the general public, NYSDOT will provide drafts of the texts of the full DEIS and FEIS to the Community Stakeholder Group, whether or not specifically requested, and NYSDOT shall inform the Community Stakeholder Group of the formal release dates of the full DEIS and FEIS promptly upon their establishment. Any comments or suggestions submitted by the Community Stakeholder Group in writing to NYSDOT fifteen (15) days or more prior to the release date will be given consideration in the DEIS and FEIS prior to their release; provided, however, that such preliminary comment opportunity granted to the Community Stakeholder Group shall not be construed as comments requiring a response under NEPA. Likewise, the provision by NYSDOT or FHWA of such preliminary comment opportunity shall not be construed as discharging any of NYSDOT or FHWA's notice and comment obligations under NEPA. 12. The community's Technical Advisor or his or her designee shall be a member of the Tunnel Technical Advisory Panel, the expert panel assembled by NYSDOT and FHWA to provide expert advice to those agencies on tunnel construction in connection with the Gowanus Project. 13. The FHWA will provide a facilitator who will assist in trying to resolve differences between the Community Stakeholder Group and the government agencies involved in the preparation of the EIS. The facilitator shall report to FHWA. 14. The Community Stakeholder Group may continue in existence until construction of the alternative ultimately selected is completed. B. Substantive Areas of Study 15. The parties agree that the "scope" of the EIS, as that term is defined in 40 C.F.R. § 1508.25, was established in a July 1997 scoping memorandum. The parties further agree that additional alternatives and/or additional subjects of study may be considered in the EIS as those alternatives and/or subjects are raised and become apparent in the EIS development process. The parties further agree that certain substantive areas shall be studied in connection with the preparation of the EIS, as follows: a. Environmental: The EIS shall consider the effect on the environment of the alternatives studied, as required by NEPA and SEQRA. Any such study shall consider, regardless of whether or not otherwise required, the following: i. Air Quality: The study shall examine the impact of each alternative, upon emission of the following pollutants, relative to their emission at present and the National Ambient Air Quality Standards ("NAAQS") issued by the United States Environmental Protection Agency: carbon monoxide (CO), nitrogen oxides (NOx), ozone precursors, and particulate matter (PM) The examination of emissions shall not be limited to consideration of whether a pollutant violates any applicable NAAQS or other standard, but will identify on a comparative basis the projected emissions of each pollutant for each alternative considered. Study of air pollution effects of the various alternatives shall include examination of concentrated areas of localized pollution as well as regional impacts. The EIS will also compare potential emissions from tunnel alternatives utilizing state-of-the-art ventilation emissions controls with vehicular emissions from the elevated alternatives. ii. Noise: The EIS will evaluate for each alternative the anticipated change in noise and vibration levels, relative to current noise and vibration levels, during both the construction and operation phases of each alternative considered in the EIS. b. Health: The EIS will not independently collect data on health impacts. The EIS will provide information concerning the relative impacts on health, including impacts on asthma, of the changes on the emissions of the air pollutants enumerated above that each alternative considered may cause to occur, in both the construction and operational phases. The information compiled shall consist of: (i) a survey of current scientific and medical literature; (ii) comments and documentation obtained from state and federal health and environmental agencies on the health effects of these pollutants; and (iii) such comments and documentation on the health effects of these pollutants as are caused to be submitted by the Community Stakeholder Group. Submitted comments and analyses will be considered and discussed during the course of the preparation of the EIS and will be formally responded to in the EIS. In addition, the EIS will consider the relative impacts of each alternative considered on pedestrian and cyclist safety. The EIS will also evaluate the noise and vibration levels associated with each alternative. The health component of the EIS will not constitute or require an epidemiological or other original health study. c. Social and Economic Impacts: The EIS will address the relative impacts of identified alternatives on racial and ethnic minorities, low-income groups, community stability, population and business stability and exodus, potential investments and land use changes. With respect to potential effects on businesses in the corridor, the parties recognize that the Southwest Brooklyn Industrial Development Corporation ("SWBIDC") has prepared a survey on the subject, and that survey will be reviewed and considered in the preparation of the EIS. In preparing the EIS, NYSDOT will review and consider any additional studies relevant to the social and economic impact of the Gowanus Project that are conducted so that they are available prior to the completion of the DEIS and are submitted to or otherwise obtained by NYSDOT. The EIS will include an assessment of the extent to which the project alternatives would potentially result in changes in land use and density, property values, and property tax revenues. For below-ground alternatives, such assessment shall include estimates of the acreage of property currently occupied by the Gowanus, or vacant area adjacent to the Gowanus, that could be recovered for other uses. The assessment of land use changes shall consider the impact of the various project alternatives upon projections of development, recreational use, waterfront access, and tourism. The EIS will employ FHWA's Federal Community Impact Assessment model (method No. PD96036) for assessing economic impacts, or any model subsequently adopted by FHWA as a replacement for that model. d. Traffic/ Transportation: The EIS will address impacts of each alternative considered on related traffic and transportation, including, but not limited to, mass transit, rail freight operations, VMT and bicycle and pedestrian safety and access. Further, the EIS analyses of future traffic demand and traffic impacts along the Gowanus Corridor under each project alternative will factor in the present state of knowledge as to any "committed to" project, as that term is defined below. The traffic demand/traffic projection models or other recognized and approved methods of traffic analysis used in the EIS shall be designed with the capability to accommodate new projects or policies affecting Gowanus Corridor travel demand that become committed to during the course of the enhanced EIS process. In addition, traffic calming measures will be evaluated as potential mitigation for construction impacts of the alternatives considered and for post-construction operational impacts of any changes to existing entrances and exits. The EIS will further assess the viability of creating a dedicated bicycle path along the extent of the Gowanus Corridor. The EIS shall address measures to mitigate any increased isolation of the Red Hook neighborhood during construction and operation for all alternatives considered, and will consider practicable opportunities presented by the Gowanus Project to reduce Red Hook's current level of isolation. NYSDOT agrees to make its transportation consultants and their non-proprietary models, data and analyses available to the Community Stakeholder Group or its designee in order to afford the Community Stakeholder Group input into the choice and development of transportation modeling, data and analytic tools to be employed in the EIS. The cost of compiling such data, including the cost of downloading or manipulating the data for purposes of usability, shall be borne by the requesting party. e. Land Use: The EIS will address development and other land-use impacts that, in the discretion of the government agencies, are considered to be ones which may foreseeably result from implementation of the various alternatives considered. The EIS shall consider the urban design features and impacts of the various alternatives considered. f. Alternatives: The EIS will consider alternatives to the current Gowanus, including, but not limited to, above- and below-ground options. The following features will be considered in determining the alternatives to be fully analyzed in the EIS: (i) inclusion of High Occupancy Vehicle ("HOV") lanes both in addition to the existing number of traffic lanes on the Gowanus, and created from one or more of the existing lanes of regular traffic; (ii) a bus/transit lane or lanes on the highway as an alternative to an HOV lane or lanes; (iii) to the extent practicable, the potential for configuring the alternatives so that the option for a light rail line to be developed along or under the Gowanus or its replacement remains possible in the future; and (iv) consideration of a variety of connection options (entrances and exits to the highway), placement options and number of connections. In conjunction with the below-ground alternatives, the EIS shall evaluate the dedication of one or more lanes to guided-bus or light rail service. In addition, in considering below-ground options, the EIS will consider various methods of construction of such a tunnel, including boring and cut-and-cover, various alignments for the tunnel through the Gowanus Corridor, and various technologies connected with each construction technique. In calculating the costs of the various elevated alternatives, the EIS shall account for all costs associated with replacing, securing, reinforcing and supplementing, as the case may be, the columns supporting the present viaduct. The EIS shall evaluate, without limitation, practicable potential traffic, air pollution, and noise mitigation strategies for the construction and operational phases of each alternative. Notwithstanding the foregoing or any other provision hereof, the EIS need only fully analyze and carry to completion, as required by NEPA and SEQRA, those alternatives (or alternatives which represent a group) that NYSDOT and FHWA determine to be practicable and that, if implemented, would accomplish the goals and objectives of the project at a reasonably acceptable level. 16. Life Cycle Accounting: As part of the comparison of alternatives, the EIS will provide life cycle accounting costs of the various alternatives. 17. Federal Funds: The EIS' tunnel component shall be funded, in whole or in part, with available federal funds, as authorized by Congress as part of the Transportation Equity Act for the 21st Century ("TEA-21"). C. General and Miscellaneous Provisions 18. "Committed To" Project Defined: For the purposes of this agreement, a "committed to" project is one which is to be factored into the consideration of the analyses of future traffic demand and traffic impacts referenced in section 15(d) above. A "committed to" project is one which has received a permit or governmental approval or for which any applications for necessary permits or governmental approval have been submitted and are pending and which, in addition, in the professional judgment of NYSDOT and FHWA and their consultants, may have a material cognizable effect upon the vehicular use of the Gowanus, its replacement, or vehicular use in the Gowanus Corridor so as to warrant inclusion in traffic projections. In doing the traffic analyses referenced in section 15(d) above, NYSDOT, FHWA and their consultants shall affirmatively determine whether or not the following projects meet the definition of a "committed to" project: (1) the Brooklyn Commons Project planned for the Gowanus Canal area; (2) construction of waste transfer stations which NYSDOT and FHWA determine will be located so that the associated trucks would likely utilize the Gowanus and/or approaches to the Gowanus; (3) plans for the Goethals Bridge, the Staten Island Expressway, and the BQE from the Gowanus Expressway to the Kosciusko Bridge and any other highway projects which NYSDOT and FHWA determine may affect Gowanus Corridor travel demand; (4) upgrades of existing transit or rail or water freight service that may affect Gowanus Corridor travel demand; (5) introduction of new transit or rail freight service, including, without limitation, light rail on the western shore of the Hudson River, that may affect Gowanus Corridor travel demand; (6) new or upgraded ferry service with an embarkation point in Brooklyn between the Verrazano and Manhattan Bridges; (7) port development plans and proposals within the Gowanus Project area; (8) changes in transit fare pricing structures planned or implemented after 1990, and transit incentive programs arising under the Clean Air Act Amendments of 1990, ISTEA, TEA-21, or otherwise, that may affect Gowanus Corridor travel demand; (9) any parking, tolling or other congestion pricing policies that may affect Gowanus Corridor travel demand; (10) any traffic demand management measures recommended in the Downtown Brooklyn Traffic Calming Study or other Gowanus Corridor traffic-calming studies; (11) any traffic calming measures in the Gowanus Corridor; (12) any transportation project included in NYMTC's 20-year plan that may materially affect Gowanus Corridor travel demand; and (13) the proposed rail freight tunnel to connect New Jersey and Brooklyn or Staten Island. Notwithstanding the foregoing, the following shall be deemed to be "committed to" projects: (1) the implementation of the Metrocard and Transit Check programs; (2) the introduction of free Staten Island Ferry service; (3) the introduction of light rail service in Bergen County, New Jersey; and (14) restoration of subway service on the south side of the Manhattan Bridge. 19. Evolving Nature of the Gowanus EIS: The parties recognize that the preparation of the EIS will be an ongoing process, which may require consideration of alternatives, factors and issues not contemplated by the parties at this time. As a result, the agreement outlined herein is intended simply to specify certain issues or factors that are to be considered in the EIS. Alternatives, factors or issues not set forth herein may be considered, so long as those additional issues or factors are, in the professional judgment of the governmental agencies responsible for the preparation of the EIS and/or their consultants, appropriate to analyzing the environmental impacts of the design and construction of the Gowanus Project. 20. Dispute Resolution: In the event of any disagreement over the interpretation or application of this Memorandum of Understanding, the parties will attempt to resolve such disagreement informally. If a dispute is not resolved informally, the parties may agree to employ a mediator, or may use the services of the facilitator provided by FHWA. 21. No Preclusion Of Communication With Non-Parties: Nothing herein shall preclude NYSDOT or FHWA from communicating with or seeking input from members of the public, elected officials, Community Board members or other interested or affected persons not party hereto. 22. Effect of Entry Into This Memorandum of Understanding: This Memorandum of Understanding will not operate to enhance, reduce or restrict any of the parties' rights, remedies or obligations under NEPA, or any other environmental or other law, regulation or requirement. This Memorandum of Understanding shall not operate to relieve FHWA or NYSDOT from any notice and comment or other public participation requirements under any applicable legal requirements. 23. Effective Date. This Memorandum of Understanding shall be effective when signed by all of the parties or their authorized representatives. 24. Counterparts. This Memorandum of Understanding may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Dated: New York, New York TRANSPORTATION ALTERNATIVES, INC. By:
_____________________________ Date:______________________ BOERUM HILL ASSOCIATION By:
_____________________________ Date:______________________ BROOKLYN HEIGHTS ASSOCIATION, INC. By:
_____________________________ Date:______________________ CARE ABOUT THE SLOPE By:
_____________________________ Date:______________________ CARROLL GARDENS ASSOCIATION, INC. By:
_____________________________ Date:______________________ RED HOOK CIVIC ASSOCIATION By:
_____________________________ Date:______________________ SUNSET PARK RESTORATION COMMITTEE, INC. By:
_____________________________ Date:______________________ UNITED PUERTO RICAN ORGANIZATION OF SUNSET PARK By:
_____________________________ Date:______________________ DYKER HEIGHTS CIVIC ASSOCIATION By:
_____________________________ Date:______________________ MATTHEWS AND RYAN MUSICAL PRODUCTS, INC. By:
_____________________________ Date:______________________ BENJAMIN M. MESKIN By:
_____________________________ Date:______________________ NEW YORK STATE DEPARTMENT OF
TRANSPORTATION By:
_____________________________ Date:_______________________
By:
____________________________ Date:_______________________
Submitted by forrest on February 6, 2008 - 12:21. categories [ ]
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