September 12, 2011
High Hopes for the Harsimus Embankment: The Fight to Create an Elevated Rail-Trail in New Jersey
By Jake Lynch
Standing next to the towering walls of century-old brownstone, looking up at the mist of sunlight pouring through wild foliage above, the vision for what the Harsimus Embankment could one day become forms easily.
The Harsimus Embankment runs six
blocks through downtown Jersey City.
The passage of time has already begun the work of transforming this unused elevated railway embankment in the heart of Jersey City, N.J., into an urban oasis. From the moment the trains stopped running in the early 1990s, Mother Nature took over. Today, the embankment supports a two-story-high, 100-foot wide, six-block wilderness of Cherry trees, wildflowers and grasses. Monarch butterflies stop for milkweed on their annual migrations south to Mexico. Attracted by the nectar, pollen and insects, mockingbirds and chickadees have moved in, their chirps and whistles replacing the industrial sounds of a bygone era.
The Harsimus Stem Embankment, or Sixth Street Embankment, as it is sometimes known, was built in the early 1900s as the residents of Jersey City demanded some relief from the constant rail traffic bringing produce and cattle to Harsimus Cove and the shores of the Hudson River. Local lore has it that every now and then a condemned cow or sheep would make a last-ditch attempt at freedom, leaping from the cars and charging wild-eyed through the streets of Jersey City.
Built from quarry-cut brown sandstone ashlar, the six block-long segments of the embankment carried seven rail lines 27 feet above street level, connected by steel bridges between each block. The bridges were removed in the mid-1990s. What remains now is not only an edifice imbued with an irreplaceable local history, but also a structure uniquely suited to becoming an urban corridor of greenspace in a time and place where such opportunities are increasingly rare. New Jersey currently ranks first in the nation among states in terms of population density and is projected to be the first fully built-out state by 2050.
In 1999, the entire site was listed in the New Jersey State Register of Historic Places and declared eligible for listing in the National Register of Historic Places. It is also an official Municipal Landmark.
So when a booming real estate economy in the late 1990s began to raise questions as to the future of the embankment, a group of local preservationists, businesspeople and families came together to ensure that development of the site was appropriate to the character of this historical neighborhood. Then, in 2005 a development company purchased the embankment site, and the owners stated their intention to demolish the structure.
Mother Nature currently reigns on the top of the embankment.
"The community initially came together in response to news that the embankment might be demolished to make way for townhomes," says Stephen Gucciardo, president of the Harsimus Embankment Preservation Coalition. "Neighbors recalled childhood memories, and the friends and relatives that worked on the railroad. A local historian described the defining role of the railroads in shaping Jersey City and the region. What evolved was an appreciation for the historical significance of the structure."
What also emerged was a remarkable vision: an elevated park along the top of the embankment, a linear escape running six blocks to the shores of the Hudson River, west to east, connected by walkways above the cross streets.
The park would not only be a spectacular place for people to relax and play, but a central pathway running through the embankment park would also provide a vital connection for pedestrians and cyclists, safely above the traffic below.
Though efforts to bring the embankment vision to fruition are currently embroiled in complex legal proceedings between supporters, the city and developers, the Harsimus Embankment Preservation Coalition continues to generate support and energy throughout the region for a New Jersey cousin to the now-famous High Line in New York City.
While the embankment is considerably wider and lower to the ground than the High Line, the opportunities for smart development are the same. After visiting the embankment in 2009, Friends of the High Line co-founder Robert Hammond wrote on his blog, "I was blown away immediately... The Embankment holds an untouched beauty, and really reminded me of the feelings I had years ago in the early days of the High Line. It's another amazing opportunity for a great linear public space."
Just as the High Line would likely still be an out-of-service rail line if not for the persevering effort and lobbying of a dedicated group of citizens, a team of astute, passionate Jersey City residents has mobilized behind the embankment project, inspired by its tremendous potential for the city. According to Gucciardo, a community park and pathway is a natural fit for the structure, given the requirements of repurposing rail corridors and preserving structures. "Our city's historic preservation ordinance provided the guiding principles," he says. "It states that the structure [must] support an original or compatible use, and that there be minimal alterations. A pedestrian and bicycle greenway was the logical direction—there would be little or no impact to the landmark, and it would remain a transportation corridor."
Also, beyond the benefits of a public space for recreation and transportation, the embankment has attracted numerous supporters who envision its connection to a broader network.
The East Coast Greenway Alliance (ECGA), an influential group of planners and trails advocates, has had enormous success during the last 20 years in creating a continuous route from Maine down to Florida. They have identified the embankment as a key off-road connection from Newark east to the Hudson River waterfront. ECGA and the Jersey City Landmarks Conservancy are looking at developing a connecting trail through the historical Erie Cut and Bergen Arches, a rail cut driven deep through the rock of the Palisades in the early 1900s.
Jersey City elected officials and planning staff, too, have thrown their support behind the project. The current city administration has put an emphasis on addressing density concerns with urban greenspace to boost not only quality of life indices but also property values and tax receipts.
The embankment has also been talked about in city hall as a connection to a possible future light-rail station, the perfect connection to a recreational hub, a vibrant downtown area and non-motorized pathways throughout the region.
The Metropolitan Waterfront Alliance is one of a number of groups in the Tri-State area to endorse the idea of an embankment greenway.
"Together, the Embankment, the Hudson River Waterfront Walkway and the creation of the East Coast Greenway linking to New York to the cast and Kearney and Newark to the west could transform the nationwide perception of Jersey City from just another toll plaza to one of the most livable cities in the region and possibly nation," wrote Alliance co-founder Carter Craft in the New York Times. Others stress that park space would be preferable to housing developments in helping reduce the effects of stormwater runoff on an already pollution-stressed Hudson River.
The recreational, social economic and environmental benefits of an embankment greenway seem obvious to everyone involved. Except, that is, the current owners of the site.
Back to top
In the Courtroom
Though it is always exciting to be there for the ribbon cutting, the opening day celebration or the community dedication, these happy events are often only the epilogue of a long and challenging process to bring a great trail idea to fruition. The Harsimus Embankment is a good example of how Rails-to-Trails Conservancy's (RTC) involvement in this process goes beyond fundraising, building and promotion.
At this very moment, the plan to transform the Harsimus Embankment into a recreational space and greenway for the whole community is under consideration in the United States Court of Appeals. Though the legal intricacies make for a lengthy and convoluted story, the short version goes something like this: The six-block site of the embankment, plus two at-grade parcels of the rail right-of-way, is currently owned by New Jersey developers Steve and Victoria Hyman, who bought the site from the rail company Conrail in 2005 for about $3 million. Their stated intention was to tear down the embankment and build townhouses.
That sale, however, ignored long-established federal rail abandonment legislation that affords significant opportunities to protect and preserve rail corridors for continued and future public use as a transportation corridor—an effort to mitigate the loss of the rail line as a public asset.
RTC was one of three groups, along with Jersey City and the Embankment Coalition, to challenge the legality of the sale of the embankment to developers. The suit successfully argued to the Surface Transportation Board (STB), the regulatory agency charged with resolving rail-related disputes, that the embankment was a federally regulated rail line that could not be sold to the developers without the STB's permission.
With many millions of dollars at stake, lawyers for the developer responded with a complex series of appeals and motions, including a SLAPP suit (Strategic Lawsuit Against Public Participation), filed against RTC, RTC's lawyers and the other opponents of the sale.
A SLAPP suit is a tactic often used by developers and other private interests with substantial financial and legal resources to tie up public advocates and nonprofit groups in expensive legal proceedings. In this instance, the developer, represented in court as eight Limited Liability Companies (LLCs), alleged a range of minor violations against RTC and the other opponents.
The purpose of a SLAPP suit is to force nonprofit organizations and citizens groups to back down, unable to make fundraising keep pace with growing legal bills. And it often works. But not this time.
In July 2011, the Superior Court of New Jersey dismissed the SLAPP suit and ruled in favor of RTC, the Embankment Coalition and the city.
Design rendering of a bridge connector between two of the six
block-long segments of the embankment.
In his ruling, Judge Maurice J. Gallipoli wrote, "The federal rail abandonment legislation has been in place since 1976, giving ample notice to the LLCs of the potential risk associated with their purchase that could prove, and apparently has proven, quite troublesome."
Not surprisingly, the developers have appealed Judge Gallipoli's decision. However, the provisional dismissal of the SLAPP suit allowed RTC, Jersey City and the Embankment Coalition to continue their legal fight to preserve the embankment. The case is set to be heard by the U.S. Court of Appeals for the D.C. Circuit on October 18, 2011.
That the developer and Conrail have been called out on their deal, which was meant to circumvent a legislated process established to protect the public good in cases exactly like this one, is credit not only to the energy and vigilance of the Embankment Coalition and the people of Jersey City, but also to the legal expertise of RTC and the support of our members.
Since 1986, RTC's lawyers have argued the case for preserving rail corridors as public recreation and transportation assets at the local, national and federal levels in more than 50 cases, as well as before Congress and administrative agencies. RTC is the foremost, and often the only, legal advocate for rail-trails in the United States.
In 1990, RTC's pro bono attorneys were involved in the landmark Preseault v. the Interstate Commerce Commission case, in which the U.S. Supreme Court unanimously upheld the constitutionality of railbanking (the preservation of rail corridors for interim public use as a trail), paving the way for thousands of miles of rail-trails nationwide.
Since then, Andrea Ferster, RTC's general counsel since 1992, aided by a dedicated group of law firms doing invaluable pro bono work for RTC, has fought for the preservation and public acquisition of rail lines for the common enjoyment of the American people.
Without RTC's legal intervention on behalf of rail-trail projects, our national trails landscape would not look how it does today.
Matt Cohen, an RTC board member and attorney who lives in Seattle, points out that trail projects often encounter legal challenges. "It is not enough that Congress sought to preserve inactive rail corridors through the railbanking program," he says. "Local governments and friends-of-the-trail groups often face lawsuits from developers or property owners who have their own plans for a line. Underfunded local governments often turn to RTC's legal department for expert guidance when they are named in a lawsuit. Our success in defending trails frequently stems from key judicial precedents established through the hard work of Andrea and her volunteer lawyers."
The Paul Bunyan State Trail in Minnesota and the Armstrong Trail in Pennsylvania head a list of many trails successfully defended against lawsuits with the expert legal advocacy of Ferster and RTC's partner pro bono attorneys. It is a service we are proud to provide, and one that is funded entirely by RTC members.
"Andrea's work might not be the most visible component of the many things we do, but it is certainly among the most critical," says RTC President Keith Laughlin. "While community groups and municipalities have demonstrated time and time again they have the enthusiasm and energy to make trails projects happen, it's our job to make sure the legal framework is in place to facilitate trail development whenever and wherever possible."
RTC also provided legal expertise to clear the way for development of the High Line. With that project hailed as an social, economic and environmental success, RTC is now working to help the people of Jersey City have a say in the future of their community.
Back to top