Here we are again, a few days away from a court hearing that could finally put the Prospect Park West lawsuit to bed. At issue in Brooklyn Supreme Court next Wednesday will be the seemingly tangential matter of whether the redesign of Prospect Park West was designated a “trial” or “pilot” project by NYC DOT. If it was not, the plaintiffs’ case has no standing in court, because the statute of limitations ran out a few months before they filed their complaint.

Streetsblog has been reporting on this project for more than two years now, and in all that time — throughout the community board presentations, open houses, and yet more community board presentations — not once have I seen or heard someone from DOT call the PPW redesign a trial. In fact, at one of the few meetings we didn’t report on — an April 29, 2010 Community Board 6 Transportation Committee meeting — DOT bike and pedestrian director Josh Benson explicitly said the project was not a trial. So where does this “trial” idea come from?

The plaintiffs’ attorney, Jim Walden, has embarked on an extended expedition ostensibly in search of the answer — issuing FOIL requests and subpoenas to NYC DOT and City Council Member Brad Lander’s office. He recently told the press, “We believe clearly, given [Lander’s] own public statements, that the DOT told him in no uncertain terms it was a trial program, it was a trial bike lane.”

Well, after some digging, we found out who wanted the Prospect Park West bike lane to be a “trial” project, and it wasn’t DOT. It was Brooklyn Borough President Marty Markowitz.

Flash back to February 2010. Brooklyn Community Board 6 had voted in favor of the Prospect Park West bike lane the previous June. Then in October, Markowitz, with the backing of former DOT commissioner Iris Weinshall, had written to current commissioner Janette Sadik-Khan, demanding that the project be shelved indefinitely. In preparation for a March 1 meeting between Markowitz and DOT brass, Borough Hall transportation policy point man Luke DePalma sent a memo prepping the borough president [PDF]. He concluded with the following piece of coaching:

DOT still plans to implement this project.
You should restate your opposition and concerns, and insist that this bike lane, if installed, be done on a “pilot” or trial basis. This will give DOT a chance to monitor the impacts the lane might have on the traffic during the spring and summer.

So, by a count of one to zero, this memo from the borough president’s office refers to a “pilot” or “trial” project more than all the DOT presentations on PPW combined.

At the March 1 meeting, DOT informed Markowitz that the redesign was moving ahead and would be installed soon. The borough president was not pleased. As a concession, DOT told Markowitz they would not pour any concrete as part of the project in 2010.

In a May 6, 2010 email to Markowitz [PDF], prompted by a message from Brooklyn College dean Louise Hainline (before she became head of the anti-bike lane group “Neighbors for Better Bike Lanes”), DePalma described his understanding of the arrangement between the borough president and DOT:

DOT’s original plan from 2009 was to install a full build-out of the PPW bike lane with raised concrete medians, etc. Because you raised issue with the plan, DOT pledged to hold off on the full build out of the permanent structures, until a “testing” period could elapse during the summer/ fall that would illustrate that the bike lane could work without incident. Weinshall’s statement that this “temporary” installation is “bogus” is her opinion and I can’t comment on it.

I’m not naive- I realize that it is almost certain that DOT will make this bike lane permanent and that this “trial” is intended to placate opposition…

Apparently, this piece of horsetrading between DOT and Markowitz is a key underpinning of the NBBL contention that the PPW project is a “trial” or “pilot.” But the lack of concrete does not make a street redesign any less final, and conducting an evaluation after implementing a project does not make it provisional.

In a trial, the assumption is that achieving a permanent state — be it banishing cars from a park, or bringing a new pharmaceutical to market — is contingent on meeting some criteria. Here’s how DOT described the process in their 2010 report on the Midtown pedestrian plazas [PDF]:

Green Light for Midtown, the pilot project implemented by the New York City Department of Transportation in 2009, addresses a problem and opportunity that was hidden in plain sight, that of Broadway’s disruptive and dramatic diagonal path across the midtown grid…

The goals of Green Light for Midtown are to improve and maximize mobility and safety while providing additional benefits to the West Midtown community. This evaluation report uses a comprehensive set
of quantitative information to assess how well the changes achieved the project’s goals.

With PPW, the assumption has always been that the change is permanent but reversible in the event of total failure. The Kent Avenue and Grand Street protected bike lanes are made out of thermoplast and paint too. Like the Prospect Park West bike lane, they are easily reversible, and like PPW, they are not trials. DOT has also conducted evaluations of several street redesigns, including the First and Second Avenue protected bike lanes, without ever designating them trials. With those projects, as with Prospect Park West, the agency was measuring the effect of permanent changes.

In their complaint [PDF], attorneys for the bike lane opponents cite instances where Lander and members of his staff referred to the project as a “trial,” but they fail to mention that DOT’s Benson publicly corrected that perception at an April 29, 2010 community board meeting. From Benson’s sworn affidavit [PDF]:

I distinctly recall one of the representatives stating that the PPW Project would be a trial project, and I immediately corrected this publicly by stating that the PPW Project was not a trial project, but that after its installation it would be monitored with adjustments made as deemed appropriate.

The fact is that the plaintiffs received ample signals that, while representatives were tossing around the word “trial,” the city itself didn’t consider the project to be one. Hainline appears to have grasped this after conferring with Weinshall. In a May 6, 2010 email exchange with Markowitz [PDF], she wrote:

I ran into Iris Weinshall in the elevator at 9 PPW today, and she says that “temporary” is bogus (which is what you said too).

And Markowitz, in response, seemed to acknowledge that the “trial” or “pilot” language was not the city’s official designation: “only the Mayor can derail this plan…all of our local city council members support this proposal and are using the ‘pilot’ as a cover.”

Despite DOT’s public correction and Markowitz’s frank analysis, Hainline persisted in calling the project a trial. Her insistence is on display in a July, 2010 message to the NBBL email group [PDF]. Hainline forwarded an email from Community Board 6 district manager Craig Hammerman in which he referred to the PPW “formal evaluation.” But when she passed Hammerman’s message around to the group, Hainline called it a “trial.” You can distinguish her text from Hammerman’s by the different fonts:

By October, NBBL’s liaison to city government, former deputy mayor Norman Steisel, was emailing his objections to Deputy Mayor Stephen Goldsmith (and a dozen other city officials) in a message with the subject “Prospect Park West Bike Lane Trial” [PDF].

When the plaintiffs filed their lawsuit, they could not cite any instance where a DOT official called the project a trial or pilot. This is the best Walden could do:

Furthermore, Respondents stated at various times that the results of the study would be released for public scrutiny and that the bicycle lane would not become permanent until after the study data was released and reviewed. For example:

a. In her August 13, 2010 letter to New York State Assembly Member Brennan and New York City Council Member Lander, Commissioner Sadik-Khan stated an intention to present “the findings from the monitoring period at a public forum” early in 2011, where the “public [would] be encouraged to respond to this data and provide any additional input.”

b. Commissioner Sadik-Khan, in her October 22, 2010 letter to CB 6 Chairperson Bashner, promised to report back to the Board in “early 2011 to provide information” on utilization of the EBL [sic] and its impact on safety. In addition, she solicited the “counsel and guidance” of CB6 and looked forward to working with it “in a spirit of partnership and cooperation.”

c. In her November 17, 2010 letter to Steisel, Commissioner Sadik-Khan assured him that “the community process did not end when the project was implemented” and that DOT intended to “present and discuss [its] findings with members of the community following the study period.”

There’s no doubt that the people who are now suing the city wanted the Prospect Park West redesign to be a trial. But referring to it as a trial amongst themselves and to the officials they sought to sway doesn’t make it so.