Petitioners Chatham Towers, Inc., Chatham Green, Inc., Southbridge Towers, Inc., Jeanie Chin, Danny Chen and John Ost bring this petition, pursuant to CPLR Article 78, for a judgment ordering respondents New York City Police Department, New York City Department of Design and Construction and New York City Department of City Planning to (1) subject their proposal to build a "Joint Operations Command Center" (JOC) to review under the Uniform Land Use Review Procedure (ULURP), pursuant to the Charter of the City of New York, and (2) ordering respondents to prepare an Environmental Assessment Statement (EAS) regarding the JOC, in compliance with the State Environmental Quality Review Act (SEQRA), and the City Environmental Quality Review rules (CEQR). Petitioners also move separately for discovery.

This Article 78 proceeding involves the announcement by respondents to create a $13.8 million, 22,000 square foot JOC inside an existing building at the site known as 109 Park Row, Manhattan, New York (the building), adjoining, and effectively part of respondent New York City Police Department's (NYPD) One Police Plaza complex (the project). The present building has two stories on level with One Police Plaza, and at least five stories below that level, with a bridge connecting the building with One Police Plaza.

The proposed JOC "will operate as a state-of-the-art crisis response situation room' that will enhance the NYPD's ability to respond effectively to emergency situations and important events." Respondents' Memo. of Law in Opp. to Petition, at 1). Respondents assert that certain emergency command functions already in place in One Police Plaza will be removed to the building, and enhanced.

The building formerly housed a 911 call center for the New York City Fire Department, and NYPD parking garage and storage facilities below. In 2000, the NYPD announced its intention to demolish the building and to replace it with a new nine story building on the site, but, after September 11, 2001, abandoned that plan. The new plan, following and in response to, September 11, 2001, calls for the renovation, not the demolition, of the present building.

In response to concerns voiced by petitioners that respondents were being disingenuous about the scope of the project, respondents produced, at this Court's request, an "estoppel letter" prepared by Anthony Tria, an Inspector in the Capital Construction Unit of the New York City Police Department.^[FN1] The letter states that "[t]he City does not intend to expand the size of the building at [*2]109 Park Row. Any future plan to expand the structure at 109 Park Row (including any alteration to its height, width, or footprint), will be viewed as a separate project that will comply with all legal requirements prior to the commencement of construction." Petitioners are dubious as to the sufficiency of the estoppel letter, expressing doubts that respondents would actual utilize the statutory scheme for environmental review should they actually decide to construct a larger complex.

As of filing of this petition, the NYPD had, with the assistance of respondent New York City Department of Design and Construction (DDC), commenced interior demolition, completed most of the project's design, and was expected to begin construction in early 2009. The building has remained empty since 2000, having been vacated to make way for the original construction project.

Petitioners are local residents and residential cooperative corporations located in the Chinatown area in the vicinity of the building. These parties contend that respondents are required to follow the ULURP review process, and comply with SEQRA and CEQR requirements, before they can proceed with the project. Petitioners voice concerns primarily as to the effect they expect the project will have on parking and traffic in the area.

Respondents respond that the project will not involve an influx of new employees such as might require more parking and produce traffic problems, but that the JOC will merely replace, and expand, functions currently being carried out at One Police Plaza, using existing staff in emergency situations, who will be brought over as needed from One Police Plaza. At all other times, the JOC will remain dormant, for use as needed.

SEQRA ^[FN2] and CEQR ^[FN3] subject certain projects to environmental review, to determine the effects that the project will have on the surrounding areas. [*3]

The basic purpose of SEQR is to incorporate the considerations of environmental factors into the existing planning, review and decisionmaking processes of state, regional and local government agencies at the earliest possible time. To accomplish this goal, SEQR requires that all agencies determine whether the actions the directly undertake, fund or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental review.

"Under the procedures set forth in the [SEQRA] regulations, when a developer first submits a proposal for a particular project, it is determined whether the project qualifies as a Type I, Type II or an unlisted action for purposes of SEQRA review (6 NYCRR 617.5[a][4] )." Matter of Merson v McNally, 90 NY2d 742, 750 (1997).

A Type I action carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS [environmental impact statement]' (6 NYCRR 617.4[a][1] ). A Type II action is not subject to SEQRA review because it has been determined [by DEC] not to have a significant impact on the environment or [is] otherwise precluded from environmental review under Environmental Conservation Law, article 8' (6 NYCRR 617.5[a]). Finally, all remaining actions are classified as "unlisted" actions (6 NYCRR 617.2[ak] ). Type I and unlisted actions are subject to SEQRA review, and Type I actions "are more likely to require the preparation of an EIS than Unlisted actions" (6 NYCRR 617.4[a]).

Respondents thus argue that the project in issue is a Type II action, requiring no SEQRA review. Petitioners disagree.

ULURP, as contained in the New York City Charter (NY City Charter), provides for a procedure to review proposed "use, development or improvement of real property subject to city regulation ... ." NY City Charter § 197-c (a). One of the categories subject to review, as here applicable, and as argued, is "[s]ite selection for capital projects pursuant to sections two hundred eighteen." NY City Charter § 197-c (a) (5). Although petitioners initially expended considerable energy to convince the Court that the JOC is a capital project, respondents here readily concede that it is. Thus, the parties' argument with regard to ULURP is whether or not the project involves "site selection" subject to the ULURP review process. Petitioners argue that the project involves "site selection;" respondents disagree.

"Site selection" is not defined by the NY City Charter. As an initial issue, it is settled that "site selection" does not require that the City acquire land previously in other hands.^[FN4] See Matter [*4]of Gerges v Koch, 62 NY2d 84 (1984). However, a "site selection" occurs only in the case of selection of a site " which ha[s] resulted, in some manner, in the altered use of an existing structure or property use within the community, or introduced some demonstrable change by the addition of a capital project into the community.'" Woods v City of New York, SD NY, May 7, 1996, Bartels, J., 86-CV-20123, at 6 (quoting Rychlenski v City of New York, Sup Ct, Queens County, July 29, 1987, Zelman, J., index No. 10891/97).^[FN5]

Petitioners claim that, because the building was "vacant" when respondents began the project, its "use" was as a vacant building, and so, the present alteration of the building to a JOC is enough of a change to amount to "site selection" under NY City Charter § 197-c (a) (5). This proposition is meritless, as it would make any alterations to a premises a "site selection" after a period of vacancy, no matter how long the vacancy or how minor the alteration.

This Court finds that the project does not amount to a "site selection" under (NY City Charter § 197-c (a) (5), as the interior renovation of the building as a command center, and for "ongoing administrative purposes" of the NYPD (Respondent' Memo. of Law in Opp. to Pet., at 16), does not differ sufficiently from its prior use as a 911 call center and for concomitant administrative functions. The interior renovations, change of floor plan, and addition of state-of-the-art communication facilities, to be used by NYPD personnel already in attendance at One Police Plaza, is not such an alteration as would require ULURP review. See Matter of Civic Assn. of Utopia Estates v City of New York, 258 AD2d 650 (2d Dept 1999)(expansion of existing sewer lines to add for greater capacity not site selection under ULURP); Matter of Centra/West 88th St. Neighbors v New York City Dept. of Parks and Recreation, Sup Ct, NY County, May 22nd, 1998, Tolub, J., index No. 124027/1997 (renovation of playground on existing site not site selection under ULURP);^[FN6] Community Alliance for Responsible Dev. v American Museum of Natural History Planetarium Auth., NYLJ, March 21, 1997, at 29, col 5 (Sup Ct, NY County 1997) (demolition of Hayden planetarium to build larger state-of-the-art planetarium and related exhibits on same site not site selection under ULURP);^[FN7] Matter of Silver v Koch, 137 AD2d 467 (1st Dept 1988)(mooring of a barge at a pier to use as a prison did not change the use of the pier so as to be a site selection under ULURP).

This case is readily distinguishable from Matter of Gerges v Koch (62 NY2d 84, supra), in which the City of New York Department of Correction proposed the major expansion of a detainee center from 613 beds to 1,400 beds, which would be housed partially in an already owned and operated detention center in a facility known as "the Brig," partially in new prefabricated modular buildings on Rikers Island, and partially in the expansion of existing facilities on Rikers Island. Clearly, such a significant alteration and expansion to an already existing, but much smaller, site [*5]would fall under NY City Charter § 197-c (a) (5) (as the Court of Appeals there found), unlike the present case, where no expansion of the building is planned, and no major infusion of personnel is expected. See also Matter of Greenpoint Renaissance Enterprise Corporation v City of New York, 137 AD2d 597 (2d Dept 1988)(expansion of homeless shelter from one building to three, with corresponding increase in population, required ULURP review). In conclusion, respondents are not required to comply with the ULURP review process, as the renovation and projected use of the building does not amount to "site selection."

B. SEQRA/CEQR

The issue raised under SEQRA is whether the project is a Type I or II or "unlisted" action, because a Type II action requires no SEQRA inquiry. 6 NYCRR 617.3 (f). It must be kept in mind that "[j]udicial review of a lead agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion' (CPLR 7803 [3])." Akpan v Koch, 75 NY2d 561, 570 (1990), quoting Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363 (1986). Further, courts do not interfere with an agency's exercise of discretion unless there is no rational basis for that action. Matter of Soho Alliance v New York State Liq. Auth., 32 AD3d 363 (1st Dept 2006).

In response to the estoppel letter, petitioners rather surprisingly state that "[t]aking Respondents' representations at face value, Petitioners no longer contend that the Joint Operations Command Center project, as described in the estoppel letter, may be a Type I action under SEQRA/CEQR." Pet. Response to City's Supp. Memo. of Law, at 1. They continue, however, that, "[n]onetheless, for the reasons described in Petitioners' opening memorandum and herein, the project still must be open to public review under SEQRA/CEQR and ULURP." Id. Therefore, it appears that, while conceding that the project may not be a Type I action, petitioners still contend that it is not a Type II action (i.e., that it is an unlisted action), and still requires scrutiny. Accordingly, the Court will address the issue of whether the project is a Type II action.

"Unlike Type I actions, Type II actions are deemed to present no significant adverse environmental consequences," exempting them from SEQRA. Manhattan Val. Neighbors for Permanent Hous. for Homeless v Koch, 168 AD2d 262, 263 (1st Dept 1990). Respondents claim that the renovation of the building is a Type II action under SEQRA because it involves the "replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, unless such action meets or exceeds any of the thresholds in section 617.4 of this Part."^[FN8] 6 NYCRR 617.5 (c)(2). Respondents also aver that the project amounts to "routine or continuing agency administration and management, not including new programs or major reordering of priorities that may affect the environment." 6 NYCRR 617.5 (c)(20).

The crux of petitioners' argument against a finding that the project is a Type II action, as set forth in their Reply Memorandum, is that the most previous "use" of the building is as a vacant structure. Thus, if the Court were to accept this argument, any change in a building from a vacant state, or involving an intervening vacant state, to one of active use, could not be a "rehabilitation or reconstruction of a structure or facility, in kind, on the same site." This argument is untenable. A [*6]period of inactivity is not a "use," and, in any event, the subject building is still being used, on its lower levels, for parking and storage.

The Court must then look at the most recent actual "use" of the building, as an emergency call center, as well as parking and storage. "In order to constitute replacement in kind, exact replication is not required; a replacement in kind will be effected if a new facility has a substantially similar use to the old facility." Manhattan Valley Neighbors for Permanent Hous. for Homeless, 168 AD2d at 263.^[FN9] Further enlightening, and in line with petitioners' concern that the upper stories of the building have not been used for some years, is Matter of New York City Coalition for Preserveration of Gardens v Giuliani (175 Misc 2d 644 [Sup Ct, NY County 1997 ], affd on other grounds, 246 AD2d 399 [1st Dept 1998]), in which the City proposed building separate row houses on lots which had once contained low-rise tenements, but which, in intervening years, had been used as gardens. In New York City Coalition for Preservation of Gardens, the court held that, because the lots had contained buildings "not very long ago," the "conclusion is inescapable" that the construction of replacement buildings of a different, but similar, type was a replacement "in kind, of the buildings that once existed at that very site" (id. at 652-653), thus ignoring the intervening lapse of time. Similarly, although the subject building has stood mostly vacant for a few years, it still retains its character as an administrative arm of the NYPD.^[FN10]

Other projects which have been found to be rehabilitations or renovations of existing structures "in kind," so as to qualify as Type II actions, are found in Matter of Civic Association of Utopia Estates, Inc. v City of New York (258 AD2d 650, supra) (replacement of old sewer lines with renovated and expanded lines); Matter of Centra/West 88th Street Neighbors v New York City Department of Parks and Recreation (Index. No. 124027/97, supra)(renovation and updating of existing park); and Matter of Anderberg v New York State Department of Environmental Conservation (141 Misc 2d 594 [Sup Ct, Albany County 1988)(replacement of "rustic" one-lane bridge with larger, modern, two-lane bridge).

As in those cases, the instant project involves the improvement of already existing services to accommodate the needs of the times. The building will remain a two-story above ground structure with the same outer shape, footprint and bulk. It will have interior parking facilities, and will house updated administrative and emergency facilities. Respondents represent that it will remain unused when not in operation during times of emergency or necessary other activity. The resulting facility will be a replacement "in kind" from its previous use, requiring no further environmental review.

As the Court has determined that the project is a "replacement, rehabilitation or reconstruction of a structure or facility, in kind" under 6 NYCRR 617.5 (2), there is no need to [*7]discuss whether the project falls under "routine or continuing agency administration and management" under 6 NYCRR 617.5 (20).

D. New Submissions

After submissions on this proceeding were completed, petitioners came forward with documents obtained in a Freedom of Information Act request, which include a funding request submitted by the City to the United States Department of Homeland Security's Office of Grants and Training for 2007 (Funding Request)(Letter from Petitioners to Court dated April 15, 2009 [Letter], Ex. A). This Court gave petitioners permission to present the new documents in support of their case after setting a new briefing schedule that afforded both sides with the opportunity to vet the parties' supplemental submissions. The new documents, however, do not alter the Court's analysis and conclusions.

In the Funding Request, respondents describe the current JOC at One Police plaza as "a command and control center in name only" and that its capacity for use as an Operations Center in a post-9/11 world is "negligible." In the Funding Request, respondents assert that the present JOC is "grossly inadequate in size and is neither designed nor equipped to facilitate command, control, communications and information sharing operations in the current tactical environment." Hence, respondents plead the need for an updated facility.

Based on the language of the Funding Request, petitioners argue that respondents have admitted that "no [JOC] currently exists (other than in name only)" (Letter, at 4), and that the Funding Request suggests in no uncertain terms that the project as presented "will, in fact, bring about as substantial change in use of 109 Park Row, resulting in a new City facility" requiring SEQRA, CEQR and ULURP review [emphasis in original]," which will be like "nothing the City currently has (or has ever had) in operation." Id., at 4-5.

Petitioners are essentially suggesting that the Funding Request proves that the project requires land use review, because of the magnitude of the technological advances which will be instituted. However, it would be ludicrous to expect an updated and renovated version of the old JOC to ignore the immense advances in technology which have occurred in the years intervening the creation of the old JOC. A command center built in the 21st Century will necessarily contain the highest level of technology available, while still retaining its previous function as a command center. That is, in fact, the purpose of the entire project. This Court agrees with respondents that the proposition that the renovated JOC will be a marvel of modern technology does not mean that it is not "an in kind rehabilitation of 109 Park Row," which has already been determined to be a Type II action under SEQRA (as set forth above), and not a "site selection for a capital project" under ULURP. Respondents' "Affirmation in Response" to petitioner's provision of supplemental submissions, at 3.

Petitioners' second newly presented document is a letter, dated April 10, 2009, allegedly functioning as a press release, in which the NYPD stated that the second floor of One Police Plaza would be vacated to make room for the JOC in that space, as well as in 109 Park Row. April 10, 2009 Letter, Ex. C. The JOC is currently occupying the eighth floor.

Petitioner contends that this letter shows that "the NYPD [letter] is inconsistent with the City's repeated representations in this proceeding that [t]he construction work will affect only the interior of 109 Park Row,' and that the project involves relocating the City's [JOC] (the one that exists in name only') from One Police Plaza to 109 Park Row [emphasis in original]." Petitioners' [*8]Letter, at 6-7. Thus, petitioners claim that the project will "effect a substantial change in use not only of 109 Park Row," but of One Police Plaza, and proves an undertaking of a "greater scope" than respondents have previously been willing to admit, setting for the basis of the applicable land use provisions of SEQRA, CEQR and ULURP.

Thomas Pellegrino Commanding Officer of the Facilities Management Division of the Police Department, has provided an affidavit describing his job as, among other things, supervising the movement of offices on a regular basis to accommodate the needs of the Department. Apparently, the second floor in One Police Plaza has served as an accommodation for the press and the Police Department's Community Affairs Bureau. Pellegrino maintains that the eighth floor is currently occupied by, not only the JOC, but the "Operations Division, the Watch Command and the Community Affairs Bureau," all of which will be moved to the second floor. Pellegrino claims that "the Operations Division handles not only major emergencies but the everyday citywide mission of the NYPD." Id. at 4. He maintains that the present location of both the Operations Division (which, unlike the JOC, is staffed 24/7), and the JOC, permits "Watch Command personnel ... to operate out of both their own offices and the JOC, due to their proximity." Id. at 5. Consequently, Pellegrino suggests that the placement of the Operations Division and Watch Command units (whose missions are separate from, but complementary to, that of the JOC), on the same level as the new JOC, will be eminently logical "for the sake of maintaining efficient and effective operations during emergencies." Id. This fact led to the NYPD's decision that "this office should remain close to the JOC." Id.

Raymond W. Kelly, the Commissioner of the New York City Police Department, states in his affidavit that staff in the Office of Deputy Commissioner for Public Information "apparently misapprehended certain underlying facts because both the Operations Division and the Watch Command are moving to the second floor of One Police Plaza and the JOC will only occupy 109 Park Row." Kelly Aff., at 4. He states that the letter "gave the incorrect impression that the JOC will occupy space in One Police Plaza." Id.

Petitioners have produced nothing to counter the evidence that the new JOC will not occupy any space at One Police Plaza (and have really not shown how such a move would be so momentous as to change the nature of the new JOC). Consequently, this Court finds that petitioners' submission of new documents does not change, in any particular, the analysis of this Court as stated above that the rehabilitation of 109 Park Row to house a new JOC requires no review under SEQRA, CEQR or ULURP.

As a result of the foregoing, the Court finds that the respondents did not act arbitrarily or capriciously, or irrationally or in violation of law in choosing not to undertake ULURP review and SEQRA/CEQR environmental review with regard to the project. Therefore, the petition must be denied and the proceeding dismissed. Petitioners' motion for discovery must be denied as moot.

Accordingly, it is

ADJUDGED that the petition is denied and the proceeding is dismissed; and it is further

ORDERED that petitioners' motion seeking further discovery is denied.

Dated: August 18, 2009

New York, New York [*9]

ENTER:

____________/s/_____________

J.S.C.