Board of Trustees Provides Summary of Legal Analysis of Third Track Poles Issue

July 8, 2020: As you may be aware, on June 4, 2020, the Board authorized the Mayor to execute an agreement with the nationally recognized environmental law firm of Beveridge and Diamond, PC to provide legal services in connection with the Village's relationship to the MTA/LIRR for certain Third Track issues including adherence to the Memorandum of Understanding (MOU) signed by the MTA/LIRR with the Village on February 27, 2018, with a focus on the installation of large utility poles along the southern corridor of the LIRR Main Line right-of-way ("ROW") within the Village, including to the north of Main Avenue and also adjacent to what is called the "Cow Pasture" or "Strawberry Field."

The Village's relationship with Beveridge and Diamond dates back to the start of the project when Garden City joined Floral Park and New Hyde Park and asked the firm to evaluate the Environmental Impact Study (EIS) prepared by the MTA/LIRR to assess the environmental impacts of the Third Track project pursuant to the State Environmental Quality Review Act (SEQRA) before construction commenced.

Based on an assessment of available information, including but not limited to the Final EIS, the MOU, public statements by MTA/LIRR and its contractor, 3TC, concerning the utility pole installation, Beveridge and Diamond identified several concerns regarding the MTA/LIRR's assessment of impacts feasibility associated with the utility pole installation under both SEQRA and the MOU. Beveridge and Diamond also assessed compliance with NYS Public Authorities Law § 1020-ii, which mandates certain procedural requirements relating to LIPA's installation of utility infrastructure, and the parameters of a potential takings constitutional claim based on the placement of several utility poles on Village property without consent or just compensation. While the Village has legitimate concerns, a litigation path that secures an outcome resulting in the relocation of the poles from the southern corridor would not be readily achieved given the legal and factual issues. In fact, the MTA/LIRR has stated publicly on several occasions that it is not going to relocate the poles. However, other forms of relief (e.g., enhanced landscape mitigation, further access to community benefit fund) are viewed as more viable, feasible outcomes that may be attainable by means other than litigation.

The Village is currently in discussions with MTA/LIRR and 3TC in relation to the development of mitigation items associated with the utility pole installation in addition to other potential community benefit measures. MTA/LIRR and 3TC should have engaged with the Village earlier, in advance of installing the utility poles. While this exercise is after the fact, a positive outcome from the current dialogue needs to be measured against likely outcomes of a litigation path. As such, the current voluntary discussions between the Village and 3TC/MTA may yield concessions that mirror reasonably attainable measures as compared to litigating these issues. The Village would still retain these rights if it is evident that the voluntary discussions do not yield the desired results. Therefore, it may be prudent to temporarily hold off on considering issuance of a default notice pending the outcome of these ongoing discussions.

In the discussions, the Village has raised numerous mitigating items with MTA/LIRR that have already borne benefits. For example, the height of the sound walls along the ballfield in Nassau Haven Park, along Main Avenue and along portions of the Cow Pasture neighborhood was increased at the Village's request and benefit many of the residents in the neighborhood who live along the tracks. The Village is also in continuous negotiations with the MTA/LIRR and 3TC to significantly enhance the original landscaping plans along the Third Track project. For example, the Village is requesting more and larger trees, shrubs and hedges and installation of irrigation in several areas to ensure that the plantings survive and thrive. We hope to finish the landscaping plan in the next few weeks and have plantings start in early fall. The MTA/LIRR has indicated it may entertain other requests from the Village.

In the view of counsel, a lawsuit against the MTA/LIRR would have a relatively low likelihood of success in terms of a litigation outcome that results in the removal of the poles, and that other relief (landscape mitigation, further access to community fund, etc.) may be attainable by means other than litigation.

The Board of Trustees continues to evaluate its options in light of the views from Beveridge and Diamond and welcomes the opportunities to discuss the foregoing with our Town of Hempstead and state-level elected officials as well as with the residents of Garden City.