The planned Coney Island ferry landing site (photo by the author)
Coney Islanders asked for a ferry. Instead the City is providing the community with a deadly toxic brew of lead, dioxin, mercury, PCBs, and pesticides.
At a February 12 Brooklyn Community Board 13 meeting, the New York City Economic Development Corporation made the surprise announcement that the originally proposed ferry dock at West 33rd Street on Gravesend Bay had been replaced by a new site in Kaiser Park that, when constructed, will destroy the single most environmentally sensitive and vulnerable area in all of Coney Island.
The Kaiser Park site on Coney Island Creek requires an extensive dredging project in the narrow channel adjacent to Calvert Vaux Park, the former industrial dump and landfill that is known to contain long-buried toxic materials. The City's Environmental Impact Statement (EIS), revealed that core samples drilled last fall at the channel found that "sediments in the eastern dredging area contain contaminants of concern exceeding Class C thresholds, including thresholds for arsenic, lead, mercury, pesticides, polychlorinated biphenyls [PCBs], and dioxin, which can be associated with chronic and potentially acute toxicity to aquatic life."
Class C is deadly, and the effect of these carcinogens on humans was glossed over in the EIS. Construction and operation of the ferry dock will bring these toxins to the surface. The EIS only covers impact caused during construction and ignores future impact to the community after project completion. Kaiser Park is being sacrificed.
These disturbing findings have not deterred the City's choice of the Kaiser Park fishing pier site. It turns out that the final Coney Island ferry site was not "decided by science," as officials promised. Thousands of people who signed petitions requesting a ferry were not told it would be located in Kaiser Park — they believed it would be on the ocean side.
The City's plan to move the dock to a vulnerable restored estuarine habitat with a small pier and a beach used by school children for marine education, and for kayaking and fishing, was apparently made long before the Environmental Impact Statement was released in late January 2020. The City's report describes construction impact, but not the long-term impact to the community, public parks, or the environment after completion of the project. The report also neglects to analyze the impact on Kaiser Park from automobile and foot traffic for the ferry.
Kaiser Park is the Central Park of Coney Island, a neighborhood refuge for playing and picnicking. The EIS compiled a list of the ferry's negative impacts to the park including noise: "adverse impact at Kaiser Park is unavoidable...and that no feasible and practical mitigation measures have been found." Noise and pollution impacts at the park caused by the ferry's diesel engines are being ignored.
The EDC downplays the effects of the dredging project, claiming that it will be handled in a "safe" manner, with the toxic materials removed using "Best Management Practices" for hazardous waste removal. Hazardous material removal is never perfect, and the larger problem is that buried contaminants and chemicals can migrate and leach from the adjacent sediments along Calvert Vaux Park into the low point of the newly dredged channel.
Ferries docking and turning in the narrow channel will stir up other toxins now buried under a cap of clean sand that covers the creek's bottom. No cleanup of the entire creek bottom, or mitigation of any kind for that matter, has been proposed or cited by the City's EIS report. Several years ago, hazardous material removal and remediation in a small area of Calvert Vaux Park for construction of soccer fields cost the City millions of dollars. Similar hazardous materials remain buried alongside the narrow channel that will require constant dredging for the ferry.
Of the two contested sites, the West 33rd Street site had much to recommend it. It's a straight shot from Gravesend Bay to the dock, avoiding the need to enter Coney Island Creek and according to the EIS, "does not require dredging restrictions or special handling." The 33rd Street site called for a pier with "public amenities" including benches and access for fishing. This location would have provided needed community benefits but was rejected.
EDC officials said the 33rd Street site was too exposed for a ferry, but this isn't true. The site is similar to the Bay Ridge ferry dock, which has similar exposed orientation. Skanska Construction, the multinational marine construction company building the City's ferry docks, has the engineering ability to construct any kind of dock in any kind of environment. The City just doesn't want to spend the money to do this project the right way, a decision that will prove more expensive in the long run, while jeopardizing the health of the surrounding community for years to come.
The endangered Kaiser Park location has come a long way. When I was growing up in Coney Island in the 1950s and 1960s this site was one of the most polluted parts of the creek, downwind from a now-closed sanitation department incinerator and across from the once active dump that is now Calvert Vaux Park. During the last 25 years, the site has been restored with sand dunes, native plants, a new shoreline, and a horseshoe crab spawning beach. This location is used as an outdoor schoolroom by environmental groups including the Coastal Classroom, Billion Oyster Project, New York State Marine Education Association, Coney Island Beautification Project, Coney Island History Project, and Partnerships for Parks.
Kaiser Park provides the safest public access to Coney Island Creek, a place to conduct research, monitor horseshoe crabs, and launch rowboats, kayaks, and underwater robotics. Future stewards of Coney Island Creek, mostly youth of color from the neighborhood, are being denied their classroom.
The pier and adjacent sand bar are also known as the best fishing spot for a local community of subsistence anglers. Fish caught at this location – striped bass, bluefish, and albacore – are coming from the ocean and considered safer to eat than the fish that live in the creek. All educational and recreational activities will be forced to end with the construction of the ferry dock.
The remote ferry location has made few residents happy. The amusement businesses in central Coney Island lobbied for years for an oceanfront ferry only to have it placed in the West End, far from their businesses. West End residents have expressed valid concerns about the impacts caused by thousands of seasonal visitors being stranded in their neighborhood without a viable means of transportation to or from the ferry dock. A temporary jitney has been proposed but seems impractical.
Many in the community feel the dock sites were chosen to serve the newly constructed high-rises located three blocks away. The City has offered no mitigation or increased enforcement to protect the public parks and environmentally sensitive areas surrounding the dock.
The ferry has also been touted as a "commuter line" benefitting NYCHA residents, but it actually doubles the fare to Manhattan, as most passengers would have to take the subway from the Wall Street terminal and pay an additional fare because there is no free transfer. When questioned about tourists and visitors using the ferry to get to Coney Island attractions, an EDC ferry official told me that "they'll take it once" before realizing that it's not for them.
Most New York City ferry docks are located in former industrial areas attached to hard bulkheads. Coney Island will be the only dock located at a small beach where people are now swimming, fishing, and boating. It's the only ferry line that will transit an extremely narrow channel with inherent navigational risks. The mouth of Coney Island Creek is in constant transition with drifting sands from beach nourishment on the ocean side. The proposed ferry dock at Kaiser Park fishing pier will expose the surrounding community to toxic materials in the air and water unless mitigation is implemented.
Last summer local residents held a demonstration at Kaiser Park after hearing a rumor that the City was planning to move the dock from 33rd Street to the Kaiser Park fishing pier. Officials from the EDC and Skanska Construction vehemently denied the rumors. Seventy-five local residents, most living on West 33rd Street, signed a petition demanding that the City not build the dock at the fishing pier, contradicting the City's insistence that most locals did not want the dock at West 33rd. At a February 2020 community board meeting, EDC officials could not answer a simple question of when the final decision had been made to move the dock to Kaiser Park.
The only concession made by EDC officials so far is a promise to make repairs to the fishing pier that the ferry dock will be attached to, actually a required repair as the pier is falling apart and has been condemned in the past. The representative claimed at the February meeting that people will still be able to fish there, and that the ferry would not disrupt anything. But a more truthful Skanska representative told me last July that "people will be able to fish there but they won't be catching anything."
A false narrative is being circulated, implying that community members concerned about negative impacts at Kaiser Park do not want a Coney Island ferry. Nothing is further from the truth. Coney Island desperately needs a ferry, but the project has to be done right.
This project requires an independent impact assessment, as well as remediation and mitigation to protect the long-term health and well being of the community and the Coney Island Creek estuary. These issues must be addressed before construction begins.
It’s not too late to make your voice heard, too: written comments concerning this project will be accepted until 5 p.m. on Monday, March 16.
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Charles Denson is Executive Director of the Coney Island History Project, and author of the book “Coney Island: Lost and Found.”
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Law enforcement officials have pushed for bail reform rollbacks (photo: Governor's Office)
The hyperbolic vitriol about bail reform in New York should be viewed in context – it is but one example of the ways those with entrenched power in the criminal legal system rebel against even the slightest diminution of, or threat to, their authority.
Despite a growing movement for change, police officers, prosecutors, and judges cling to their absolute power to arrest, prosecute, and adjudicate with scant concern for due process, equal protection, or basic fairness.
Law enforcement representatives went on the offensive as soon as the reality set in that bail reform meant fewer people would be held at Rikers Island and other jails. NYPD Commissioner Dermot Shea penned an op-ed decrying the bail reforms and began lobbying in Albany for reforms of the reforms before the ink in the law books was barely dry. Shea’s Chief of Department, Terence Monahan, at precinct meetings with community members predicted an outbreak of violent crime.
District Attorneys also rallied to defend their threatened prerogatives. While prosecutors are supposed to enforce the law, it seems they spend much time figuring out ways to circumvent it, particularly as it relates to the recent bail, discovery, and speedy trial reforms. Last year, Bronx District Attorney internal documents revealed trainings in techniques to overcome speedy trial rules. More recently, a presentation at the New York State Prosecutors Training Institute included ways to avoid the impact of bail reform.
Perhaps the most telling example of prosecutorial unwillingness to cede even some control has been the outcry over having to provide the accused with speedy discovery of the evidence against them. It has been reported that the new obligation to comply with that fundamental constitutional right, a rule long recognized in virtually all other states, caused several prosecutors to resign.
Complaints about bail reform and new discovery obligations are hardly the only examples of opposition to meaningful reform of the criminal legal system. The ongoing fight over public access to police officer disciplinary records is another example of organized resistance to reform. New York Civil Rights Law §50-a, known accurately as the police secrecy law, restricts public access to a police officer’s disciplinary records even when there are serious and credible allegations of misconduct or violence. Efforts to fully repeal §50-a and put New York State in line with the rest of the country are vehemently denounced by the NYPD.
Prosecutors have supported this police campaign too, in an indirect yet effective manner. Even with §50-a on the books, prosecutors have the power to address part of the problem and to avoid relying on police officers with dubious credibility. Last year, Gothamist/WNYC reporter George Joseph reported that the city’s elected District Attorneys maintain secret databases that track police officer dishonesty. In some cases, prosecutors have created “do not call” as a witness lists of certain police officers. And yet these lists had not been provided to the accused, or their lawyers, who were arrested by these very same police officers.
Prosecutors have also organized resistance against other reforms that threaten their power. Consider the bipartisan legislative effort to create a Commission on Prosecutorial Conduct to review and investigate alleged prosecutorial misconduct. The bill’s stated purpose was to provide for a more transparent and just system. Prosecutors across the state denounced from the inception the very idea of outside oversight and claimed, without any hint of irony, that it violated their due process rights.
Nor is it only DAs and the NYPD who actively fight to reject reform of the criminal legal system. The courts, too, are determined to maintain the existing distribution of power, even if it means violating laws directed at limiting their actions. Two judges recently deliberately flouted the law by setting bail against the accused in circumstances explicitly prohibited by the new bail statute.
On a broader level, mimicking law enforcement, judges have taken to airing their opinions in public, calling bail reform a threat to public safety and predicting a spike in crime. Ironically, as judges rail against the new bail laws and demand greater discretion over when and on whom they can set bail, they ignore the point that it was in large part their irresponsible exercise of judicial discretion that led to the need for bail reform in the first place. Rather than rebel against reform it would be more appropriate for the judiciary to express collective contrition for having jailed so many people who lacked enough funds to pay their way home.
The hostility to any expansion of rights for the accused is manifest not just in New York’s lower courts, but all the way up to the Court of Appeals. Professor Vincent Bonventre of Albany Law School catalogued what seems like a concerted effort by the majority of judges to reduce the number of criminal cases heard by the Court. Even more troubling than the Court’s disinterest in hearing criminal appeals is the overwhelmingly pro-prosecution voting records of most of its judges. In 2017 and 2018, excluding cases where the Court was unanimous, Judges Jenny Rivera and Rowan Wilson voted in favor of the prosecution in less than 30% of the cases, while the rest of the members of the court ruled in the prosecution’s favor between 70% and 98% of the time. In fact, one judge sided with the prosecution in 96% of the cases in 2018 and 100% of the cases in 2017.
The Court’s unsympathetic approach to the rights of the accused is reflected in individual cases even more so than in the overall number of appeals denied. Luis Alvarez was convicted of brutal crimes committed when he was 19 years old. He was sentenced to 66 2/3 years to life – in other words, to die in prison. Years later, he challenged his sentence on the grounds that his appointed appellate lawyer failed to provide basic effective assistance of counsel by neglecting to challenge his sentence as unduly harsh and excessive.
The majority of the Court was not troubled by the death by incarceration sentence imposed on a teenager, or the obvious incompetence of appellate counsel, and denied Alvarez’s motion. Judge Rivera in her dissent detailed the many defects in the appellate brief, including that it contained several one-sentence paragraphs, misspellings, grammatical and typographical errors, and lacked citations to cases in support of legal arguments. The entire brief was 20 double-spaced pages, including the table of contents, even though the trial lasted three months and yielded a 4,000-page transcript. In contrast, the prosecutors’ brief was over 175 pages.
The majority of the Court minimized the many faults Judge Rivera highlighted (though noting that the brief was “somewhat terse, could have been better drafted, and is not a model to be emulated”), and ruled that Alvarez received effective assistance of counsel.
Judge Wilson in his dissent, besides noting the “atrocious” quality of the brief, wrote about the man Alvarez had become and why it is wrong to prejudge the entire future of a teenager. Judge Wilson noted Alvarez’s positive disciplinary history in prison, his record of programmatic achievements, and his current medical condition – Alvarez’s cancer went undiagnosed until it metastasized, and he is now a paraplegic. Judge Wilson closed his dissent by asking how anyone would feel about the quality of appellate counsel if Alvarez was their son. You don’t have to be a legal scholar to know the answer to that question.
The outrage over bail reform reveals much more than outrage over bail reform. It exposes the entrenched nature of the criminal legal system as ferociously dedicated to maintaining absolute power and the status quo. While the criminal legal system is not unique among governmental entities intent on maintaining a brutal grip on power, the concerted effort to eviscerate bail reform provides clear evidence that all efforts to impose even a modicum of fairness and decency on the criminal legal system will face near pathological resistance.
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Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.
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State Legislators have an important decision to make (photo: NY Senate)
In New York State, money doesn’t only talk, it decides who does the talking, who makes the laws, whose voices matter, and who gets left out. After years of grassroots activism, New York State is a big step closer to shifting the balance of power in Albany through a new public campaign financing program, moving away from big-monied interests and toward regular New Yorkers.
A new state campaign finance system with lower contribution limits and public matching of small donations became law in December, designed by a commission appointed by Governor Cuomo and legislative leaders after years of Democratic officials like the governor talking about support for reform. But Cuomo has omitted necessary implementation funds from his proposed budget for next fiscal year, which begins April 1. Without sufficient resources to scale up, the new system of public campaign financing can’t have the impact we need for change.
The ideal reform would amplify the voices of black and other historically marginalized people by using public matching funds in electoral campaigns throughout the state. Yet Governor Cuomo’s failure to fund implementation, coupled with his support of new ballot access restrictions the commission created to hinder smaller political parties, casts serious doubt on his claims of wanting a better democracy.
When Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie release their majorities’ own one-house budget proposals this month, they must include start-up funds for public financing and then urge the governor to agree to such funding in their final adopted budget. The three leaders must assure the millions of New Yorkers who have been shut out for too long that this transformative reform is here to stay.
Public financing of elections is a matter of racial justice. Black, poor, and working-class New Yorkers cannot truly build political power and combat racism and oppression if big donors — who are overwhelmingly wealthy and white — continue to hold outsized influence. In 2018, just 100 big donors gave more to New York state candidates than all estimated 137,000 small donors combined.
Regular New Yorkers would have greater influence to counter powerful special interests with small donor public financing, which matches low private donations with public funds for candidates who choose to participate. In New York City, legislative candidates who opted into the city’s matching funds program relied more on the residents of their districts for support than candidates who did not use public financing.
The new state program would increase the campaign finance influence of constituents even more than in the city’s program. For legislative candidates, only small donations from within the district they are running to represent would be matched. That may seem like a limited pool of potential funds for a candidate, but the level of match is sizeable enough to enable someone to raise competitive sums. Even the smallest donation from a constituent will be important, as a sliding scale gives the highest match of public funds for the lowest dollars.
And private fundraising requirements to participate in the program are lower for candidates running in low-income districts, making the possibility of electing candidates of constituents’ choice even greater. Experts say these features are innovative and could be models for other parts of the country looking for alternatives to the undue influence of big donors in their elections.
We will keep fighting to improve the new program. With the proper funding and support it will be profoundly better than the old way, which perpetuated racial injustice and outsized political power for the wealthy by letting millions of dollars drown out millions of people.
There’s no time to lose to start building the program, which is set to launch in November 2022 for candidates running in the 2024 legislative and 2026 statewide elections. The State Board of Elections has requested the modest outlay of $2.7 million for this year to hire staff and build the technology needed to provide a solid foundation for the program.
The governor and legislative leaders must commit to deliver the public financing program that they promised just a few months ago. If we ever want to have real democracy in New York, political voice and representation must finally become open and equally accessible to black and brown communities in our state.
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Monifa Bandele is Senior Vice President for MomsRising.org and a member of the Leadership Team of the Movement for Black Lives Policy Table. On Twitter @monifabandele.
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