Petitioner Williamsburg Community Preservation Coalition (Preservation Coalition) seeks a judgment, pursuant to Article 78 of the CPLR, annulling the approval, by respondents the Planning Commission of the City of New York (CPC), the Department of City Planning of the City of New York (DCP), the Council of the City of New York (City Council), and the City of New York [*2](collectively, the City), of an application by respondent J.B.J., LLC (JBJ) to rezone 15 tax lots in the Williamsburg neighborhood of Brooklyn, and annulling, as well, the City's determination that the rezoning would have no significant impact on the environment.

The subject land comprises 15 tax lots at the eastern half of Block 2415, between South Second and South Third Streets and Kent and Wythe Avenues, in Community District 1, Brooklyn. More specifically, the lots are bounded by South Second Street to the north, South Third Street to the south, and Wythe Avenue east.JBJ owns eight of the fifteen tax lots. By an application filed with the DCP and CPC on December 19, 2006, it sought two amendments to the City's Zoning Map: to change the subject area from an M3-1 (manufacturing) zoning district to an M1-4/R6A mixed-use zoning district, and to establish a special mixed-use district (MX-8). "The existing M3-1 zoning district permits only industrial and limited commercial and community facility uses, while the proposed MX8: M1-4/R6A district would permit residential uses, as well as most commercial and community facility uses" (February 16, 2011 CPC Report and Resolution, at 9). JBJ sought these changes to the Zoning Map to permit it to build a six-story development consisting of two buildings, and featuring retail space, subterranean parking, and a total of 79 dwelling units, 18 of which are to be reserved for low-income residents under the City's Inclusionary Housing Program.^[FN1]

JBJ filed a revised application with the DCP and CPC on August 17, 2010. The DCP, acting as the CPC's lead agency, conducted a review of the application under the requirements of the State Environmental Review Act (SEQRA) (Environmental Conservation Law § 8—0101 et seq.; 6 NYCRR 617.1 et seq.), as implemented by the City Environmental Quality Review (CEQR)(43 RCNY 6—01 et seq.; 62 RCNY 5—01 et seq.). On September 13, 2010, the DCP issued a negative declaration, concluding that the "the proposed action will have no significant effect on the quality of the environment" (Negative Declaration, at 4). Pursuant to the [*3]City's Uniform Land Use Review Procedure (ULURP) (City Charter 197—c; 62 RCNY 2—01 et seq.), the application was then referred to Community Board 1 and Brooklyn Borough President.

Community Board 1 held a public hearing on October 13, 2010, and, on November 9, 2010, adopted a resolution recommending disapproval of the application and making the following additional recommendations: that the residential designation be changed to R6B; that JBJ commit to exploring alternative commercial uses; and that a deed or other restriction accompany the application to ensure the exclusion of bars and restaurants from the new development (Community Board Resolution, at 3). The Brooklyn Borough President, conversely, on December 10, 2010, recommended approval of the application with the following condition: "That prior to City Council review, the applicant provides a declaration binding the development to the filing of an affordable housing plan approved by the Department of Housing Preservation and Development" (Brooklyn Borough President Recommendation, at 3).

On January 5, 2011, the CPC held a public hearing on this application that was continued on January 26, 2011, at which 13 speakers favored the application, and three speakers opposed. The CPC approved JBJ's application by a report and resolution dated February 16, 2011 (the CPC Report). Addressing the considerations it took in reaching a decision, the CPC first addressed the change from a manufacturing to a mixed-use district, and determined that the shift would be contextually appropriate:

The [CPC] believes the residential use and the broader range of commercial and community facility uses that would be allowed under the proposed Zoning Map amendment would be in context with the commercial, community facility and residential uses already present, and planned for future development, within and around the rezoning area. The [CPC] notes that the rezoning area is at the western edge of a residential neighborhood zoned R6. A new 4-story 24-unit residential building was completed under BSA ^[FN2] variance this past year adjacent to the western boundary of the rezoning area in the existing M3-1 district. There are also two buildings with residential uses on the upper floors within the rezoning area itself; one which is non-comforming and one which was also built under BSA variance. In addition, the industrial buildings within the area have all been converted to commercial uses, including retail, restaurants, bars, and an art studio. [*4]Lastly, recent rezonings, including the City-sponsored 2005 Greenpoint-Williamsburg Rezoning and the private New Domino rezoning have rezoned nearby M3-1 and M1-2 districts to MX8 special mixed use, R6 and R8 districts in response to decreasing industrial activity and residential development pressure in the area. The [CPC] notes that the proposed MX8 special mixed use district would continue to permit light industrial uses should the property owners in the rezoning area wish to reactivate them.

The CPC then addressed nearby transportation options, and found those options adequate, as the proposed development is within a 10- to 15-minute walk of several bus lines, and two separate subway lines (id. at 10). The CPC also found other amenities in the neighborhood, such as playgrounds, parks, and commercial venues, to be adequate. Next, the CPC turned to whether buildings allowed under the new designation, such as JBJ's six-story proposed development, would fit within the context of the surrounding area; the CPC concluded that they would:

the proposed MX8:M1-2/R6A zoning district would impose bulk rules that would permit residential uses to a FAR ^[FN3] of 2.7, bonusable to 3.6 and community facility uses to a FAR of 3.0. Commercial and industrial uses would be permitted to an FAR of 2.0, which is the same FAR permitted by the existing M3-1 district. The proposed district would also limit building heights to 60 feet at the street, and 70 feet after a 15-foot setback. The existing district regulates height with a sky exposure plane that starts 60 feet above the streetline.

While the residential neighborhood to the east contains buildings between 20 and 40 feet tall, it also contains many buildings between 60 and 70 feet tall. The Esquire Shoe Polish Building, located 1 block north of the proposed rezoning area, is 150 feet tall and several other buildings on blocks to the south are between 70 and 90 feet tall. In addition, The New Domino proposal, which occupies the blocks to the south and west of the proposed rezoning area, includes buildings with streetwall heights up to 110 feet, matching the existing landmarked Domino refinery building, and overall heights up to 340 feet tall on the waterfront parcel and 148 feet tall on the upland parcel.

The [CPC] also notes that nearby zoning districts permit height and bulk equivalent to, or greater than, the proposed zoning district. These include MX8:M1-2/R6A mapped a few blocks to the north of the rezoning area, which has bulk regulations identical to the proposed district, and R6 and R8 districts mapped to the south and west as part of the New Domino project, which permit greater FAR and height. R6 and MX8: M1-2/R6 districts mapped to the north, south, and east of the rezoning area, permit lower FARs, but greater heights than the proposed zoning district. The only nearby zoning districts that permit lower density and height than the proposed district are R6B and MX8:M1-2/R6B districts which are mapped over the Grand Street corridor, which starts two blocks north of the rezoning area and extends eastward.

Therefore, in response to the concerns expressed in the Community Board 1 recommendation about the proposed density and bulk in this project, the [CPC] notes that there is ample precedent in the immediate area for the uses and bulk permitted by the proposed district, and that the bulk permitted by the proposed district is within the range of that permitted by other adjacent and nearby zoning districts

The CPC also addressed Community Board 1's recommended modification to JBJ's proposals that would prohibit bars and restaurants, and declined "to prohibit within the rezoning area commercial uses that are permitted on adjacent and nearby blocks" (id. at 11).

Finally, the CPC concluded that the zoning amendment is consistent with the City's policy of encouraging affordable housing, since the new designation would include incentives for [*6]creating affordable housing:

the proposed Zoning Text amendment is consistent with City policy as it encourages the development of affordable housing, for which there is a great need in the Williamsburg neighborhood. The Inclusionary Housing program already in effect in the area and the amendment would extend an existing adjacent Inclusionary Housing designated area to cover the rezoning area

On March 15, 2011, the City Council held a public hearing on the proposed zoning changes, and, on March 23, 2011, the City Council unanimously passed a resolution incorporating by reference the CPC's environmental determinations and considerations, approving the CPC's decision, and making the zoning change.

Petitioner commenced this Article 78 proceeding to contest the City's determinations, arguing that the amendment to an R6-A residential designation should be set aside as arbitrary and capricious, as the rezoning (1) was not part of a well-considered plan, and, thus, violated New York General City Law § 20 (25); and (2) failed to comply with the substantive requirements of SEQRA and CEQR.

The City has not violated New York General City Law § 20 (25), which grants municipalities the power to:

regulate and restrict the location of trades and industries and the location of buildings, designed for specified uses, and for said purposes to divide the city into districts and to prescribe for each such district the trades and industries that shall be excluded or subjected to special regulation and the uses for which buildings may not be erected or altered. Such regulations shall be designed to promote the public health, safety and general welfare and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the direction of building development, in accord with a well considered plan.

Generally, zoning amendments are accorded a strong presumption of validity "[b]ecause zoning is a legislative act" (Asian Ams. for Equality v Koch, 72 NY2d 121, 131 [1988]). "An amendment which has been carefully studied, prepared and considered meets the general requirement for a well-considered plan and satisfies the statutory requirement" (id. at 132.)

Petitioner argues that the subject zoning change was not [*7]well considered, as an R6-A residential designation is inappropriate for narrow streets such as South Second. However, under the City's Zoning Resolution, the residential designation for a special mixed-use district does not depend on whether the street is wide or narrow (Zoning Resolution § 123-662).

Petitioner also contends that the R6-A designation is out of context with the surrounding neighborhood, which it characterizes as being comprised of mostly three- to five-story residential buildings. The City, petitioner argues, should have followed the example it set with the Grand Street Rezoning, where the City changed, from an R6 to an R6B designation, the residential zoning of a 13-block corridor that begins two blocks north of the subject lots and extends east.

Regarding the Grand Street Rezoning, the City provides an affidavit from Steven Lenard (Lenard), an urban planner from the DCP, as well as the CPC's report for that rezoning, both of which state that an R6-B residential designation was chosen to preserve the consistent residential character on that corridor of Grand Street (Lenard Affidavit, ¶ 29; February 27, 2008 CPC Report on Grand Street Rezoning, at 5). Lenard's affidavit expounds on the contextual differences between the rezoning on Grand Street and the subject rezoning, which Lenard refers to as the Wythe Avenue Rezoning:

Grand Street is an intact corridor with a consistent built context. Most buildings along the Grand Street Corridor were built around the turn of the century and have been recognized as an architectural resource. Five blocks were recommended by the Municipal Art Society in 2005 for designation as a New York City Historic District, and three blocks along Grand Street have been recognized by the New York State Office of Parks, Recreation and Historic Preservation as eligible for listing on the State and National Registers of Historic Places. In contrast, the Rezoning Area and the remainder of Block 2415 has a varied context with predominantly ordinary 1-story mid-century industrial buildings and a new residential retail development. The purpose of the Grand Street Rezoning was to preserve and reinforce an existing low- to mid-rise context, which does not exist in and around the Rezoning Area. By contrast, the purpose of the Wythe Avenue Rezoning was to facilitate the redevelopment of an underutilized parcel in an area undergoing significant change in a way that contributes to the orderly growth and development of the neighborhood and is consistent with surrounding areas

Here, for the reasons Lenard lists, petitioner's contention [*8]that the City's rezoning was ill-considered, because it failed to follow the example of the Grand Street Rezoning, is unavailing.

In response to petitioner's more general argument that the size of JBJ's proposed development, and the heights allowed by an R6-A designation, are out of context with the surrounding neighborhood, the City submits a Building Heights map, which shows that there are several nearby buildings that are taller than the limit imposed by an R6-A designation. In his affidavit, Lenard discusses the map, and the heights of buildings in the area:

In addition to a 75-foot tall church, the 150-foot tall Esquire Shoe Polish building and the 110- to 340-foot tall buildings planned for the Domino Sugar site, there are a dozen buildings of comparable heights to those permitted by the Rezoning (60 to 70 feet) within two blocks of the Rezoning Area to the east and four taller buildings plus the Williamsburg Bridge abutment two blocks to the south

Lenard's affidavit, the Buildings Heights map, and the CPC findings make clear that the subject rezoning is compatible with the existing context of the neighborhood. Moreover, the City's submissions make it clear that the rezoning was part of a well-considered plan. Not only did the City respond to JBJ's application with a careful analysis, but its ultimate determinations were concordant with the aims of the larger 2005 Greenpoint-Williamsburg rezoning, such as facilitating the orderly growth, and relieving increased demand for market-rate and affordable housing. As such, the City has not violated New York's General City Law § 20 (25).

II.SEQRA/CEQR

The DCP determination, subsequently adopted by the CPC and the City Council, that JBJ's proposal would have no significant effect on the quality of the environment, did not violate SEQRA or CEQR, because the City took a hard look at potential environmental impacts.

Judicial review of determinations made under SEQRA, and CEQR, the rules by which the City implements SEQRA's requirements, are limited to whether the lead agency determination was "arbitrary, capricious, an abuse of discretion, or affected by an error of law," (Matter of Hells Kitchen Neighborhood Assn. v City of New York, 81 AD3d 460, 461 [1st Dept 2011]). A lead agency's determination will be upheld where it has identified relevant areas of environmental concern, taken a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination (Matter of Develop Don't Destroy (Brooklyn), Inc. v Empire State Dev. Corp., __AD3d__, 2012 NY Slip Op 02752, *3 [1st Dept 2012][citations omitted]). [*9]

Courts apply this standard contextually:

The reviewing court must employ reasonableness and common sense, tailoring the intensity of the hard look to the complexity of the environmental problems actually existing in the project under consideration. It is not the role of the court to weigh the desirability of the proposed action or to choose among alternatives, resolve disagreements among experts, or to substitute its judgment for that of the agency

Petitioner tries to overcome the small scale of JBJ's proposal by arguing that the City failed to aggregate the impact on the environment of subsequent rezonings, potentially influenced by the rezoning of the 15 subject lots. Relatedly, petitioner argues that the City should have denied the application, referred JBJ's proposed project to the BSA for a variance, and reserved any zoning amendments in the area until after it undertakes a larger study of more sweeping zoning changes.

In other words, petitioner argues that the City should have made different policy choices, and should have allocated its resources differently. However, nothing in SEQRA or CEQR requires the City to aggregate possible future zoning changes when evaluating a discrete, small-scale zoning change. Moreover, petitioner fails to submit any expert opinion that would challenge the City's determination that the rezoning would have no significant effect on the quality of the environment.

The City has followed the procedural requirements of ULURP, as well as the more substantive requirements of SEQRA and CEQR. It has taken a hard look at the impact of JBJ's proposal, including the potential impact on neighborhood character. It has also offered a reasoned elaboration for the basis of its approval of the proposal, namely, that it "facilitate[s] the redevelopment of an underutilized parcel in an area undergoing significant change in a way that contributes to the orderly growth and development of the neighborhood and is consistent with surrounding areas" (Lenard Affidavit, ¶ 56). The City, therefore, has not violated SEQRA or CEQR.

In its reply, petitioner tries to undermine the City's determinations by suggesting that the provision of affordable housing is not a foreseeable benefit of the rezoning. In support of this contention, petitioner offers an affidavit from Stephanie Eisenberg, a member of the Preservation Coalition, and the owner of the nearby Esquire Shoe Polish building. In order to contradict JBJ's representations to the City that tenants on the property are on short-term leases and aware that their tenancies [*10]may be interrupted by the proposed development, Eisenberg offers hearsay testimony as to the length of the leases for commercial tenants occupying buildings currently on one of the subject lots (Eisenberg November 10, 2011 Affidavit, ¶¶ 6-14). Petitioner surmises that it will take JBJ years before it begins building the project and that there is no guarantee that affordable housing units will ever be built on the subject lots.

This argument fails for a number of reasons. First, it is an improper attempt to cure defects of the petition by raising new facts and arguments for the first time on reply (see Hawthorne v City of New York, 44 AD3d 544, 544-545 [1st Dept 2007]). Second, it improperly relies on "surmise, conjecture and suspicion" (Marino v Parish of Trinity Church, 67 AD3d 500, 502 [1st Dept 2009] [internal quotation marks and citation omitted]). Finally, even if JBJ's proposed development were not built, or not built in a timely manner, that would not impugn the City's decision to rezone the subject lots, as zoning is a system of permissions and incentives, not commands to build (see Matter of Chinese Staff & Workers Assn. v Bloomberg, 26 Misc 3d 979, 984 [Sup Ct, NY County 2009] [referring to the Inclusionary Housing Program as "a voluntary, and pioneering program created by the City ... to encourage the development of affordable housing on privately held land"] [emphasis added]).

As the zoning changes here were made in accord with a well-considered plan, and as petitioner has failed to show that the City's determinations were arbitrary or capricious, or made through an abuse of power, error of law, or that the City failed to take a hard look at the environmental impact the changes will have, this Article 78 petition is denied.

CONCLUSIONAccordingly, it is

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed. And it is further

ORDERED that counsel for respondents shall serve a copy of this order with notice of entry within twenty (20) days of entry on counsel for petitioners.

Dated: May 9, 2012

ENTER:

Hon. Carol R. Edmead, J.S.C.

Motion sequence 001 is decided in accordance with the annexed Memorandum Decision. It is hereby

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed. And it is further

ORDERED that counsel for respondents shall serve a copy of this order with notice of entry within twenty (20) days of entry on counsel for petitioners.