Opponents of the proposal to move grocery delivery giant Fresh Direct to a site in the South Bronx were weighing their legal options Tuesday after a state judge late last week shot down a lawsuit that aimed to block the deal, which is backed by the Bloomberg administration and Bronx Borough President Ruben Diaz, Jr.
Supporters of the plan, which would move FreshDirect's headquarters from Queens to the Bronx, argue that it will keep 2,000 jobs in New York City—and eventually bring up to a thousand additional jobs to the city.
Opponents question the value of spending $130 million in public subsidies to move jobs from one borough to another. They also say the truck traffic associated with FreshDirect—938 vehicle trips a day—is unwelcome in an area with heavy truck traffic and high asthma rates.
The opponents, led by the group South Bronx Unite!, sued to stop the move on the grounds that the city's Industrial Development Agency (IDA) had failed to follow state environmental law when it decided that the FreshDirect plan did not warrant a full environmental impact review.
To make that decision, IDA relied on environmental studies for earlier projects at or near the site of the proposed FreshDirect facility. Opponents argued that those studies were outdated, in part because the surrounding neighborhood had changed. And they took issue with the fact that IDA had based its study on the current level of truck traffic FreshDirect will bring, not the larger volume that seems likely if the company lives up to its boosters' forecast and adds 1,000 jobs in the next five years.
In her decision, Judge Maryann Brigantti-Hughes sided forcefully with the IDA. “Contrary to [the lawsuit's] assertions, the traffic data had a factual basis, and was not outdated,” she wrote in her decision, which was released Friday. Worries related to “FreshDirect's growth … are more based on speculation than fact,” she added.
In their suit, opponents had also claimed that leases associated with the project were invalid because they involved public land but a private business purpose. And they had opposed the inclusion of the FreshDirect project in a state subsidy program that is barred from funding retail businesses.
Brigantti-Hughes rejected these claims on technical grounds.
Diaz welcomed the judge's dismissal, saying in a statement, “My office has, since day one, understood that this project is crucial to the future economic health and vitality of the Bronx.” FreshDirect CEO Jason Ackerman said his company is “eager to move forward with our plans to bring thousands of jobs to the Bronx and make it easier for people to get fresh food.”
Once the judge's decision is formally served to them, opponents will have 30 days to file a notice of appeal, according to their lawyer, Gavin Kearney of New York Lawyers for the Public Interest. “My expectation is that we'll appeal it,” he says, though he notes, “Challenging [environmental findings] in the courts is a little bit of an uphill battle and when you get to the appellate level the slope becomes steeper.” While the judge's decision on the environmental review rested mainly on her view of the facts of the case, her decisions on the leases and the state subsidies involve legal interpretations that might interest a higher court.
A. Mychal Johnson, a member of the coalition opposing the deal, tells Bronx Bureau that “the deal is far from done.” According to opponents, the lawsuit is not the last hurdle for the FreshDirect deal—approvals by the IDA and by the state economic development authority are required, and land-use restrictions on a portion of the project site may require that the project go through the city's land-use review process, ULURP.
Johnson, who on Thursday learned he was the only member of Bronx Community Board 1 not named by Diaz to a new term (17 other sitting members were reappointed), added, “We are proud of what our campaign has accomplished to date – the City and State are on notice that it is unacceptable to use the South Bronx as a dumping ground for polluting businesses, like FreshDirect, and our community stands united to fight for environmental and economic equity.”
Asked about Diaz's decision not to reappoint Johnson, which South Bronx Unite characterized as an effort to silence opposition to the Fresh Direct deal, Diaz's communications director, John DeSio, said in a statement: “Community board appointments and reappointments are made at the discretion of the borough president, in consultation with the local City Council members. We have a long internal process. In the end, we make the selections based on how we believe people will represent both our office and their respective communities. This office’s community board selections have been inclusive and reflective of the areas they serve.”