In the Matter
of the Application of Residents for Reasonable Development, by its Chairman Robert
Jackman, THE HISTORIC NEIGHBORHOOD ENHANCEMENT ALLIANCE d/b/a
Defenders of the Historic Upper East Side, ROBERT JACKMAN, individually,
PATRICIA MULCAHY, ANDREW BELLO, JR., MINA GREENSTEIN, JERROLD
and ELLEN HIRSCHBERG, GEORGE ALEXIADES and GARI-SMITH
ALEXIADES, NANCY TERRELL GRACE, SARAH CHU and NEAL BIANGIARDO,
ELIZABETH ASBY And EDWARD HARTZOG, , Petitioners,
against
The City of New York, CITY COUNCIL OF THE CITY
OF NEW YORK, CITY PLANNING COMMISSION OF NEW YORK CITY, NYC
DEPARTMENT OF ADMINISTRATIVE SERVICES, BOROUGH OF
MANHATTAN BOROUGH BOARD, NEW YORK CITY ECONOMIC
DEVELOPMENT CORPORATION, MEMORIAL HOSPITAL FOR CANCER AND
ALLIED DISEASES, THE CITY UNIVERSITY OF NEW YORK and CITY
UNIVERSITY CONSTRUCTION FUND, Respondents.
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101624/13
Petitioner:
Albert K. Butzel, Esq.
Albert K. Butzel Law Offices
249 W. 34th Street, Suite 400
New York, NY 10001
(212) 643-0375
Respondents:
Maria T. Vullo, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
(212) 373-3346 Counsel for Respondents, Memorial Hospital for Cancer
and
Allied Diseases, The City University of New York, and City
University Construction Fund
Louise Lippin, Esq. and Kimberly Ong, Esq.
City of New York Law Department
100 Church Street, Room 5153
New York, NY 10007
(212) 356-2178
Counsel for City Respondents
Alexander W. Hunter Jr., J.
Two separate applications were filed in this matter under motion sequences 001 and
002. Both applications will be decided herein.
The application made by petition for a judgment pursuant to Article 78 of
the New York Civil Practice Law and Rules ("CPLR"), as well as an action for a
declaratory judgment pursuant to CPLR § 3001 and for injunctive relief pursuant to
CPLR § 6301, against respondents, the City of New York (the "City"), the City
Council of the City of New York ("City Council"), the City Planning Commission of
New York City ("CPC"), the NYC Department of Administrative Services, the Borough
of Manhattan Borough Board (the "Borough Board"), the New York City Economic
Development Corporation (the "EDC"), Memorial Hospital for Cancer and Allied
Diseases ("MSK"),[FN1]
the City University of New York ("CUNY"), and the City University Construction
Fund[FN2]
(collectively as "MSK-CUNY"), is denied.
The motion by respondents, Memorial Hospital for Cancer and Allied
Diseases, The City University of New York, and the City University Construction Fund
seeking an order dismissing the petition is granted and the proceeding is dismissed.
The petition arises out of the City's approvals of an 800,000 square foot
development project (the "Project") and the disposition of City property to support the
Project. The Project would be located adjacent to the Franklin D. Roosevelt ("FDR")
Drive between 73rd and 74th Streets on Manhattan's East Side (the "Project Site"). It
consists of two separate abutting buildings - one approximately 450 feet high which
would serve as an ambulatory facility for MSK; the other a 350 high that would house
nursing school and other facilities for CUNY. Previously, the Project Site had been
occupied by a New York City sanitation garage, which the [*2]City demolished expecting to rebuild it in place. In 2011,
the City decided to sell the Project Site citing a lack of funds needed to construct a new
garage facility and, in May of 2011, the EDC[FN3]
issued a Request For Proposals ("RFP") soliciting proposals for "the expansion or
creation of a health care, education, or scientific facility" that would finance and build a
new sanitation garage "at minimal or no cost to the City." (MSK-CUNY's Verified
Answer ¶ 26).
By July 28, 2011, the EDC received two competitive proposals - one from
the Hospital for Special Surgery to purchase the Project site for $144 million and
redevelop it into a hospital and the other jointly from MSK and CUNY to purchase the
site for $160 million. Neither proposal offered to co-develop the new sanitation garage
on the Project Site and only MSK-CUNY proposed an alternative site for the sanitation
garage.[FN4]
(Id. at ¶ 33). Ultimately, the EDC selected the
MSK-CUNY proposal and, in 2012, the City entered into a Contract of Sale (the
"contract") to sell the Project Site, subject to required zoning amendments and other
conditions.
The Project has been challenged at every administrative level of review. On
April 30, 2013, by a vote of 11 to 4, a "Task Force" established by Community Board 8
(the "Community Board") recommended disapproval of the Project.[FN5]
However, despite the recommendation against approval, on May 8, 2013, the
Community Board, by vote of 24 to 17, approved the disposition of the Project Site to
MSK-CUNY and each of the requested land use actions. By a separate vote of 23 to 20,
the Community Board also approved MSK-CUNY's proposed zoning text
amendment.[FN6]
The CPC held a public hearing to discuss the Project on July 10, 2013.[FN7]
On August 21, 2013, the CPC approved the proposed zoning actions concluding that
"since Community District 8 suffers from a lack of public open spaces but contains
parkland that requires critical improvements, the proposed text amendment permits the
community to obtain high-quality, significant public parks when funding is not otherwise
available for their design or construction." (Id. ¶ 128). That same
day, the CPC also approved the Final Environmental Impact Statement ("FEIS").
On September 16, 2013, the Subcommittee on Zoning and Franchises of the
City Council (the "Zoning Subcommittee") and Land Use Committee held a public
hearing to further discuss [*3]the Project.[FN8]
The vote was deferred in part to address issues that were raised at the hearing. On
October 3, 2013, the Zoning Subcommittee unanimously approved the Project by a vote
of 7-0 with one council member recusing herself. That same day, the Land Use
Committee held a public hearing that ended in a unanimous 13-0 vote in favor of the
Project. On October 9, 2013, based in part on the record developed by the
subcommittees, the City Council voted 45-1 to approve the project citing the Project as
"one which minimizes or avoids adverse environmental impacts to the maximum extent
practicable[.]" (Id. ¶ 149). On November 21, 2013, the Borough
Board approved the Project by a vote of 6-3 noting that "as recommended by the
Community Board, the Borough President and other elected officials, MSK-CUNY has
agreed to provide funds for the Department of Transportation to complete a
comprehensive traffic study of York Avenue between 59th and 92nd Streets."
(Id. ¶ 151). On December 18, 2013, the Mayor of the City
of New York provided his authorization approving the sale of the Project Site to
MSK-CUNY.
The petitioners filed the instant action on December 6, 2013, having
opposed the Project since its introduction to the public. They have been active in their
opposition of the MSK-CUNY proposal at every governmental meeting held throughout
the approval process. Their ranks include Residents for Reasonable Development
("RRD"), a newly-formed association of East Side residents that came together to oppose
the Project,[FN9]
the Historic Neighborhood Enhancement Alliance, a 501(c)(3) not-for-profit corporation
dedicated to "protecting the historic and residential fabric of the Upper East
Side",[FN10]
and thirteen (13) individual residents. The petitioners contend that the approvals given
by the City, including the zoning amendments and Borough Board approval of the sale of
the Project Site, violated the State Environmental Quality Review Act ("SEQRA"),
constituted illegal "spot zoning," violated the laws applicable to disposition of City
property and were otherwise illegal under the laws of the State of New York and the
City.
This court will first consider standing before moving to the merits of the
action.
In Matter of Sun-Brite Car Wash v. Bd. Of Zoning & Appeals
of Town of N. Hempstead, the Court of Appeals noted that "[s]tanding
principles, which are in the end matters of policy, should not be heavy-handed; in zoning
litigation in particular, it is desirable that land use disputes be resolved on their own
merits rather than by preclusive, restrictive standing rules." 69 NY2d 406, 413
(1987). The Court went on to state that "[t]he status of neighbor does not, however,
automatically provide the entitlement, or admission ticket, to judicial review in every
instance." Id. at 414. Petitioners are still required to establish
that their interests are arguably [*4]within the "zone of
interests" to be protected by the statute. See Id. Petitioners Robert
Jackman, Nancy Terrell Grace, Sarah Chu and Neal Biangiardo, Elizabeth Ashby and
Edward Hartzog have failed in this respect. Their generalized allegations of increased
traffic and a disruption to their community are insufficient to confer such standing. They
have not demonstrated any alleged environmental harm that is different from that
suffered by the public at large and that comes within the zone of interest protected by
SEQRA. See Matter of Barrett v. Dutchess County
Legislature, 38 AD3d 651, 654 (2d Dept. 2007).
Addressing the SEQRA contentions, the First Department has stated that
"judicial 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." Save Audubon Coal. V. City of New York, 180 AD2d
348, 355 (1st Dept. 1992) (internal citations omitted). "In assessing an agency's
compliance with the substantive mandates of the statute, the courts must review the
record to determine whether the agency identified the relevant areas of environmental
concern, took a hard look at them, and made a reasoned elaboration of the basis for its
determination." Akpan v. Koch, 75 NY2d 561, 570 (1990). The
assessment of an agency's compliance with the substantive requirements of the statute is
governed by a "rule of reason." Matter of Jackson v. New York State Urban Dev.
Corp., 67 NY2d 400, 417 (1986). The extent to which particular environmental
factors are to be considered varies with the circumstances and the nature of the particular
proposals, id., and "not every conceivable environmental impact,
mitigating measure or alternative, need be addressed in order to meet the agency's
responsibility." Matter of Neville v. Koch, 79 NY2d 416 (1992). "While
judicial review must be meaningful, the courts may not substitute their judgment for that
of the agency for it is not their role to weigh the desirability of any action or [to] choose
among alternatives.'" Akpan, supra, quoting Matter of
Jackson, supra at 416.
Turning now to the FEIS, the petitioners contend that it fails to comply with
SEQRA. Specifically, they allege that the FEIS was required to address the impact of the
replacement garage to be built at the Hunter Site, as well as the impacts of the
development at the Project Site. This court finds the two projects to be independent of
one another noting that contractual contingencies, standing alone, do not create a
geographic or environmental interrelationship between two projects. See Friends of Stanford Home v.
Town of Niskayuna, 50 AD3d 1289, 1291 (3d Dept. 2008). The evidence
has established that the Hunter Site is located fifty (50) blocks from the Project Site, the
former involving the potential construction of a sanitation garage and the latter a twin
complex housing an educational institution and hospital facility. Where, as here, projects
are independent of each other and are not part of an integrated or cumulative
development plan, the projects may be reviewed separately and are not subject to a claim
of improper segmentation. Matter of Forman v. Trustees of State Univ. of New
York, 303 AD2d 1019, 1020 (4th Dept. 2003).
The remainder of the petitioners' allegation regarding SEQRA are similarly
unavailing. The record demonstrates that the FEIS considered two alternatives to the
Project: the "No-Action [*5]Alternative" and a "No
Unmitigated Significant Adverse Impact Alternative." (See O'Brien
Aff. ¶¶ 37-39). The alternatives section of an FEIS need not identify or
discuss every conceivable alternative, including the particular alternative propounded by
the [petitioners], and need not be exhaustive, particularly where the various options lie
along a continuum of possibilities." Cnty. of Orange v. Vil. Of Kiryas Joel,
44 AD3d 765, 769 (2d Dept. 2007). This court has not found merit in any of the
remaining arguments with respect to SEQRA.
Next, petitioners' claim that this case involves "a clear cash quid pro quo
— dollars to the City buys zoning rights."[FN11]
They cite Mun. Art Soc. of New York v. City of New York, 137 Misc 2d
832 (NY Sup. Ct. 1987), in support of their proposition. However, in that case, the
court specifically noted that the funds were to "be paid to the City to be employed for
purposes other than local improvements" and went on to say "the grant of the
right to increase the bulk of a building may not be the payment of additional cash into the
City's coffers for citywide use." Id. at 838.
(emphasis added). Here, the contract provides that, if the text amendment is
approved, then MSK-CUNY will pay $11 million and any additional amounts that the
City Council may require to the Department of Parks and Recreation, which will perform
the improvements.[FN12]
Furthermore, the fourth cause of action alleging that the text amendment exceeded the
City's authority is untenable. The cases cited in petitioners' Memorandum of Law apply
to government actions taken against private landowners. Accordingly, the petitioners do
not have legal grounds to challenge the City's actions on this basis.
This court finds the remaining claims of the petitioners to be without merit. The
zoning determinations of legislative bodies are entitled to a strong presumption of
validity. See Rotterdam
Ventures, Inc. v. Town Bd. Of the Town of Rotterdam, 90 AD3d 1360,
1361-1362 (3d Dept. 2011) (citing Asian Ams. For Equality v. Koch, 72 NY2d
121, 131 [1988]). Such determinations are beyond interference from the courts
unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed
upon he who asserts it. Robert E. Kurzius, Inc. v. Incorporated Vil. Of Upper
Brookville, 51 NY2d 338, 344 (1980).
The record before this court establishes that the various City agencies
approved the zoning map amendment, special permits and text amendment and, at all
times, were apprised of the concerns and opposition surrounding the Project. Any
allegations made by petitioners with regard to the administrative process are similarly
without merit. Mere conclusions or unsubstantiated allegations will not satisfy their
burden on this application. See Janvier v. Urban Mgmt., Inc., 258 AD2d 359
(1st Dept. 1999).
Accordingly, it is hereby
ADJUDGED that the application of petitioners for an order pursuant to CPLR
Article 78, as well as an action for declaratory judgment pursuant to CPLR § 3001
and for injunctive relief [*6]pursuant to CPLR §
6301, is denied. The motion by respondents for an order dismissing the petition is
granted and the proceeding is dismissed without costs and disbursements to either
party.
Dated:July 28, 2014ENTER:
________________________
J.S.C.
Footnotes
Footnote 1:Memorial Hospital for
Cancer and Allied Diseases is a nonprofit hospital and the clinical arm of Memorial
Sloan Kettering Cancer Center, a research and educational facility.
Footnote 2:A CUNY affiliate and a
New York public benefit corporation responsible for acquiring and developing facilities
necessary for CUNY's academic programs.
Footnote 3:EDC is a not-for-profit
corporation with authority to sell property on behalf of the City.
Footnote 4:CUNY proposed to
"revest" in the City, as a site for the garage, a property at 425 East 25th Street in
Manhattan currently leased to CUNY as part of its Hunter campus (the "Hunter Site").
(See MSK-CUNY's Verified Answer ¶ 49).
Footnote 5:Mulcahy Aff. ¶
6, Pet. Ex. B.
Footnote 6:The Community Board
imposed the following two conditions to its approval (both of which were incorporated):
(i) modifying the text amendment so that a park designated for improvement was within
the Community District 8, and (ii) requiring a special permit for the 20% floor area
bonus, so as to subject the process to Community Board review, a full environmental
review, and full Uniform Land Use Review Procedure ("ULURP") public hearings.
Footnote 7:During the hearing, 40
people testified, with 25 speaking in favor and 15 in opposition of the Project.
Footnote 8:Of the 33 people who
testified during the hearing, 17 were in favor of the Project and 16 were in opposition.
Footnote 9:RRD is an
unincorporated association of Upper East Side residents formed to "oppose the
expansion of medical institutions into the Yorkville community north of East 72nd
Street." (Verified Petition ¶ 5).
Footnote 10:The Historic
Neighborhood Enhancement Alliance d/b/a Defenders of the Historic Upper East Side.
(See Pet. Memorandum of Law, p. 3).
Footnote 11:Pet.
Memorandum of Law, p. 35.
Footnote 12:See
Respondents' Tab 9 at § 4(e)(6), Tab 42 at C 130216 ZSM, pg. 30.