Appellate Decision on FreshDirect | Reinforcing the Tale of Two Cities‏

Appellate Division Defers to Bloomberg-era Approval of FreshDirect;
South Bronx Unite Calls Decision a Disappointing Reinforcement of the Tale of Two Cities 
Claim Challenging DOT Approval of Waterfront Sublease Remains Open and Subject of April 7th Oral Argument; Group Also Considers Seeking Relief from Court of Appeals 
Further Hurdles Faced by FreshDirect Before It Can Break Ground 

Today, the Appellate Division ruled in favor of a Bloomberg-era Industrial Development Agency decision to provide $80 million in subsidies to Fresh Direct to move its trucking operation to a South Bronx waterfront flood zone without any living wage requirement and without any requirement to assess or address the environmental impact of an additional 1,500 daily diesel truck trips on the asthma-plagued community.

“This is a disappointing reinforcement of the tale of two cities,” said Mychal Johnson of South Bronx Unite. “Today, the courts told us that a 21 year old environmental impact statement is good enough for the people of the South Bronx, who suffer asthma hospitalization rates 21 times that of other New York City neighborhoods. We say it is not.”

“More than 50 organizations stand with us in opposing this project, and more than 1,000 people city-wide are boycotting this company because of its intentions for the South Bronx,” said Rev. Ruben Austria, also of South Bronx Unite who, along with eight others, was arrested last week when attempting to plant sunflowers on the proposed site in opposition to the project following a community parade of residents and religious leaders. Citing Dr. King, Rev. Austria explained, “One who breaks an unjust law openly, lovingly, and with a willingness to accept the penalty, is in reality expressing the highest respect for law.”

Gavin Kearney, lawyer for the residents and Director of the Environmental Justice Program of New York Lawyers for the Public Interest, stated “we’re surprised by the decision of the Appellate Division given the strength of our claims and will be giving serious consideration to seeking relief from the Court of Appeals.”

Still open is the legal claim challenging the approval by the New York State Department of Transportation of the sublease of public land to FreshDirect, yet another diesel truck intensive business on the South Bronx waterfront. Oral arguments will take place on April 7th at the Bronx County Supreme Court.

FreshDirect faces numerous additional hurdles before it could break ground at Harlem River Yards. For example, in order for portions of an approximately a $50 million subsidy package to be awarded by the board of the Empire State Development Corporation, the state must hold a public hearing. In a sign of how difficult that approval could be, three months ago at the behest of board member and South Bronx Congressman Serrano, the Empowerment Zone board (housed at the ESDC) denied FreshDirect $3.5 million in subsidies. In addition, zoning regulations do not allow the project to proceed as proposed, requiring a Uniform Land Use Review Procedure process to take place, along with related public hearings.

FreshDirect also faces setbacks that may impact its proposed move, including a class action lawsuit filed last week against the company by workers claiming that the company improperly withheld more than $23 million in overtime wages and tips. In addition, FreshDirect’s sole international shareholder, UK grocer Morrison’s, will sell its share in the company following an 11% drop in profits.

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