A recent decision by a federal agency has dealt a setback to local groups hoping to turn a 1.4-mile abandoned elevated railway bed known as the 6th Street Embankment into an elevated greenway for pedestrians and cyclists.
In a 16-page ruling, the Surface Transportation Board rejected claims by the Embankment Preservation Coalition and Rails-to-Trails Conservancy that Conrail, which formerly owned the rail line known as the Harsimus Branch, illegally took steps to evade a review process that would protect the Embankment’s historic character.
The decision was just the latest in a long-running legal battle set off in 2005 when Conrail sold the Embankment for $3 million to real-estate developers Victoria and Steve Hyman. According to critics, including Jersey City, Conrail illegally sidestepped getting approval for the sale from the STB.
In the recent case, the Embankment Preservation Coalition and Rails-to-Trails Conservancy cited Conrail’s removal of rail bridges and other infrastructure and the sale of the property as evidence of Conrail’s intent to subvert the historic review process. To support their position, they submitted statements from historic preservation consultants, two historic preservation employees of the city, and a Hoboken city employee. Conrail wanted to avoid the property’s receiving historic designation, they argued, because it would diminish the commercial value of the property.
In rejecting the claim, the STB said that, given the nature of the rail line, Conrail had no reason to believe that a historical review process was required and that the company was justified in relying on its own legal department’s determination that STB approval of the abandonment and sale of the Embankment was unnecessary.
But even if STB approval and a historic review process had been required, said the Board, “Conrail could not have known, at the time the first of the bridges and related infrastructure were removed in 1994, that the Embankment would first be listed as a historic property in 1999, when it was placed on the NJ Historic Register.”
Conrail noted that in the 90s, Jersey City itself had encouraged the company to remove the bridges and had opposed placing the Embankment on the New Jersey Historic Register and National Register.
Attorney Charles Montange, who represented the Embankment Preservation Coalition and Rails-to-Trails Conservancy, called the decision an “apostasy” that would be “readily reversed.”
“The Surface Transportation Board takes the position that historic preservation does not apply to railroads” said Montange. “Although everyone knows that Conrail should have obtained an abandonment authorization for this right-of-way before they sold it to a developer, they never did. The issue is why. They thought they could get away with it.”
Montange said that Conrail’s claim that it didn’t know that STB approval was required falls qualifies as “willful blindness.”
Stephen Gucciardo, president of the Embankment Preservation Coalition was measured in his response. “We don’t agree with the ruling. The STB is choosing not to hold Conrail accountable by accepting its excuse that they just didn’t know it (The Harsimus Branch) was a rail line” that required STB approval before it could be abandoned and sold.
Meanwhile, negotiations between greenway advocates, Jersey City, Conrail, and a developer hoping to build a hotel and a residential project at Marin Boulevard have been going on for years.
In 2012, then-Jersey-City-municipal-attorney William Matsikoudis told the Wall Street Journal the city was “one step away from a settlement (of the Embankment lawsuit) that will provide a world-class amenity for the people of Jersey City.” The amenity was not to be, however. Today Matsikoudis recalls that ultimately Conrail refused to sign the agreement.
Again, in 2020 the parties pressing for a settlement were “at the one-yard line” according to Mayoral Spokesperson Kimberly Wallace-Scalcione, when without explanation Conrail once more walked away. Gucciardo was equally perplexed, telling the Jersey Journal “I think they owe everyone an explanation.”
Asked why it had chosen not to settle and for a response to the August 18 decision, a Conrail spokesperson told The Jersey City Times this morning that it “will not discuss matters that are part of ongoing legal proceedings.”
In October 2021, the Jersey City Municipal Council responded by designating the Embankment an area in need of redevelopment, allowing the city to acquire the land through condemnation. Conrail promptly sued the city arguing that, as it relates to railroads, local zoning is preempted by federal law.
While the STB has yet to rule on the central issue in the 17-year legal battle, the August 18 decision does not bode well for Embankment advocates, at least as it relates to the STB proceding. In its ruling, the STB called the groups’ evidence that Conrail knew or should have known that it needed STB approval prior to the sale “not persuasive.”
“We are considering our remaining federal remedies while we continue to pursue a settlement agreement,” said Gucciardo.