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IN RE: the Application of Alicia BOYD, Lashaun Ellis and Michael Hollingsworth, Petitioners, v. Laurie CUMBO, in her official capacity as New York City Councilwoman for District 35, Winston R. Von Engle, in his official capacity as Director of New York City Planning Brooklyn, the Department of City Planning of the City of New York, New York City Planning Commission, Marisa Lago, Director of Department of City Planning of City of New York and the Chair of the New York City Planning Commission, the City of New York, New York City Department of Buildings, Cornell Realty Management LLC, Carroll Development Plaza LLC, Franklin Yards LLC, and CP VI Crown Heights LLC, Respondents.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion:
Notice of Petition & Petition 1
Pet.'s Memorandum of Law in Support in Support of Petition 2
Pet.'s Brief in Support of Petitioner's Preliminary Injunction 3
Pet.'s Supplemental Affidavit in Further Support of Prelim. Inj. 4
City's Memorandum of Law in Opposition to Prelim. Inj. 5
CP VI's Memorandum of Law (section II re: Prelim. Inj.) 6
Carroll/Franklin Yards Memorandum of Law (point III re: Prelim. Inj.) 7
Answers by City, CP VI, Cornell, Carroll Development Plaza/Franklin Yards 8-11
Upon the foregoing cited papers, the decision and order on the petition, pursuant to CPLR Article 78, 3001 and 6301, is decided as follows:
OVERVIEW & PROCEDURAL HISTORY
Petitioners, who are residents of Crown Heights and local property owners, commenced this Article 78 proceeding on April 16, 2019, to annul the December 20, 2018 determination of the New York City Council approving the Franklin Avenue Rezoning. Petitioners also sought declaratory judgment, pursuant to CPLR 3001, and to enjoin respondents, pursuant to CPLR 6301, from commencing construction in the subject rezoning area.
Respondent Cornell Realty Management LLC (Cornell) submitted a Uniform Land Use Review Process (ULURP) application (No. C 180347 ZMK), a private rezoning application, dated April 13, 2018, in conjunction with an associated application (No. N 180348 ZRK), to rezone an area in Crown Heights, Brooklyn, with the intention of developing the properties at 40 Crown Street, Block 1190, Lots 29, 45 and 50, and 931 Carroll Street, Block 1188, Lot 58.
The rezoning area is approximately 300 feet wide and two and one half blocks deep. It is located on the western side of Franklin Avenue and consists of the “Northern Half Block” (Block 1188, Lots 53, 54, 55, 56, 58, portions of 35 and 44), the “Middle Blockfront” (Block 1189, Lot 31 and a portion of 60), and the “Southern Blockfront” (Block 1190, Lots 28, 29, 46, 48, 50, and a portion of 26). The Middle and Southern Blockfronts are each 300 feet wide and 262 feet long. The Northern Half Block is 300 feet wide and extends to the centerline of Block 1188. The area is bounded by Franklin Avenue to the east, Montgomery Street to the south, by a line 300 feet west of, and parallel to, Franklin Avenue, and by the centerline of Block 1188 to the north.
The proposed zoning amendment sought to rezone the area from R6A, R6A with a C1-3 overlay and R8A zoning districts to an R8X and R8X with a C2-4 overlay, and a zoning text amendment to designate Blocks 1188 and 1190 as a Mandatory Inclusionary Housing (MIH) area, pursuant to Zoning Resolution 23-154. The proposed development would include affordable housing pursuant to “Option 1” of Zoning Resolution 23-154, which requires the provision of affordable housing in the amount equivalent to at least 25% of the residential floor area within the development, priced at or below 60% of the Area Median Income (AMI), with at least 10% of the residential floor area at 40% AMI.
R8X zoning permits buildings to be developed with a residential floor area ratio (FAR) of 6.02 and to a maximum height of 150 feet, or 155 feet with qualifying ground floor retail (ZR Handbook at 104). With the MIH designation, Blocks 1188 and 1190 may be developed with a maximum FAR of 7.2 and to a maximum building height of 170 feet, or 175 feet with qualifying ground floor retail (id.). A New York City Planning Commission certification for a FRESH food store on the ground floor of a proposed development permits an additional 15,349 square feet of residential floor area (Zoning Resolution 63-30). For buildings containing a FRESH food store, the City Planning Commission may authorize modifications in height and set back requirements to allow the applicable maximum building height to be increased by up to 15 feet (Zoning Resolution 63-22). Both R6A and R8X are designated in the Zoning Resolution as Medium-Density Contextual Residence Districts and have a Dwelling Unit Factor (DUF) of 680 (Zoning Resolution 23-22).
“Site 1” (931 Carroll Street, Block 1188, Lot 58) was zoned as an R6A district with a C1-3 commercial overlay. “Site 2” (40 Crown Street, Block 1190, Lots 29, 45 and 50) was zoned as an R6A district with no commercial overlay. R6A zoning permits a maximum residential FAR of 3.0 and maximum building height of 70 feet. C1-3 zoning permits a commercial FAR of 2.0. The total lot size for Site 1 was stated as 17,632.04 square feet in the April 13 and September 20 applications and 17,703 square feet in the June 8 Revised Environmental Assessment Statement (REAS). The total lot size for Site 2 was stated as 55,985 square feet in the April 13 and September 20 applications and 55,962 square feet in the June 8 REAS.
The Department of City Planning (DCP) served as the lead agency. The City Planning Commission (CPC) issued a Revised Negative Declaration (RND) on June 11, 2018, and certified the application into ULURP review. The application was reviewed by Community Board 9 (CB 9), the Borough President, the City Planning Commission, and City Council. CB 9 held a public hearing on June 26, 2018. Brooklyn Borough President Eric Adams held public hearings on September 4 and September 27, 2018. The City Planning Commission held public hearings on September 26 and October 31, 2018. The City Council's Subcommittee on Zoning and Franchises held public hearings on November 15 and December 13, 2018. On December 13, the Subcommittee voted to approve the application for rezoning. On December 20, 2018, the full City Council passed Resolutions No. 699 and 700, approving the decision of the City Planning Commission on ULURP No. C 180347 ZMK and N 180348 ZRK upon consideration of the relevant environmental issues, including the June 11 REAS, and finding the proposed action would have no significant impact on the environment.
On April 16, 2019, the parties appeared before the Late Honorable Johnny L. Baynes, who signed petitioners' order to show cause and issued a temporary restraining order (TRO) precluding respondents from pouring concrete. Respondents Cornell and the City of New York (City) filed pre-answer motions to dismiss. On November 26, 2019, the Honorable Reginald A. Boddie issued an order clarifying the scope of the TRO. Subsequently, CP VI Crown Heights LLC (CP VI), Carroll Development Plaza LLC (Carroll) and Franklin Yards LLC (Franklin Yards) filed orders to show cause to intervene.
On February 20, 2020, the Court denied the pre-answer motions to dismiss made by the City and Cornell. CP VI, Carroll and Franklin Yards were granted leave to intervene. The parties were directed to answer and a hearing on the issue of a preliminary injunction, fixing the amount of an undertaking, and on the merits of the petition was calendared for March 23, 2020, which was adjourned due to Coronavirus restrictions.
With the November 26, 2019 TRO still in effect, on March 9, 2020, the Court issued an order amending its March 6, 2020 order and ordered “[a]ll dirt removed from the property at the 931 Carroll Street construction site shall be restored to grade forthwith, but not later than 5:00 PM, on Sunday, March 22, 2020,” providing respondents additional time to restore the dirt. The hearing on the petition, commenced on September 22, 2020, was completed on September 24, 2020.
Petitioners argued the Franklin Avenue environmental review failed to consider the reasonable worst case scenario pursuant to the City Environmental Quality Review (CEQR) guidelines, which required all known new and planned development within the designated study area to be considered as part of background development, because it did not include the Continuum project in its CEQR analysis and deemed the lots owned by NYCTA/MTA undevelopable. Petitioners further argued the approved environmental review failed to take a hard look at potential impacts on water and sewer beyond the threshold value of 400. They contend the approved environmental review was initially based on the calculation of 140 units of affordable housing assuming an average size of 1,000 square feet per unit. They argued it was subsequently changed by the developer to 680 square feet, the total number of units was expanded without expanding the number of affordable units, and there was no “hard look” at the environmental impact of the increased number of units.
The City argued petitioners were incorrect in their analysis of whether a water supply assessment was required pursuant to the CEQR Technical Manual. The City argued the Rezoning area is located in a combined sewer area, meaning the storm sewers and the sanitary sewers use the same infrastructure, and an analysis of water and sewer impacts in such area is warranted, pursuant to the CEQR Technical Manual at 13-9, only where the action would result in an incremental 400 units, defined as the number of residential units that are reasonably predicted above the future no-action scenario, or 150,000 square feet of commercial, public facility, institutional or community space. The City argued that here, the reasonable worst case development scenario (RWCDS) projected 284 incremental residential units and therefore a detailed sewer analysis was not warranted.
Kevin Kraft (Kraft) is a City Planner and the Lead Planner and Community Board liaison for CB 9. He is employed by the Department of City Planning. In his March 4, 2020 affidavit, attached to the City's answer, he concluded “the environmental review conformed to the methodology recommended in the City's CEQR Technical Manual and all applicable laws, constituted a ‘hard look’ as prescribed by SEQRA, and was rational and proper in all respects.” He averred petitioners misunderstood the purposes, goals, and effects of the Rezoning in providing new housing, including affordable housing, alleviating housing pressure, encouraging affordability, and effectively utilizing currently vacant or underused sites, with extensive transit access, for residential purposes.
He further averred that DCP, acting as lead agency on a private rezoning application, only determines an application is complete and ready for certification into ULURP when the agency is satisfied that the environmental review complies with SEQRA and CEQR, and adequately addresses potential areas of environmental concern. He stated the application was reviewed by Community Board 9, the Borough President, the City Planning Commission, and City Council and public hearings were conducted from June through December 2018, prior to the City Council's vote to approve the rezoning application on December 20, 2018.
With regard to the incremental increase in the number of units, Kraft made two arguments: 1) that petitioners incorrectly applied the net increase in dwelling units instead of incremental increase in the number of dwelling units when arguing the 400 unit threshold was exceeded which warranted a sewer review, and 2) petitioners incorrectly applied a maximum worst case development scenario as opposed to a reasonable worst case development scenario based on what is realistically and reasonably likely to be developed.
As to the calculation of the number of units, Kraft averred petitioners wrongly claimed that the With Action projections should have been calculated using the dwelling unit factor (DUF) of 680 square feet, pursuant to ZR 23-22. Kraft argued that DUF 680 provides the maximum number of dwelling units allowable in the subject zoning district, but is distinct from the number of units that are reasonably likely to be developed as part of the rezoning (emphasis in original). He averred that it would be unreasonable to assume the buildings would be built out to the maximum number of units at the smallest allowable square footage per unit and that it is typical to use a factor of 1,000 square feet for new residential development outside the borough of Manhattan.
The City further averred that the properties owned by the New York City Transit Authority (Block 1188, Lot 35, Block 1189, Lot 31 and Block 1190, Lot 26) were unlikely to be developed by 2023 because, despite a newly passed law that allows “MTA” to more easily dispose of property, these properties would require discretionary approvals under ULURP to be sold or otherwise disposed or developed, there is existing infrastructure on the sites, and there are no current plans for redevelopment. The City averred its assumptions are consistent with the CEQR Technical Manual, which guides that properties with long-standing institutional uses are unlikely to be developed.
Petitioners argued that due to improper segmentation, the REAS omitted the Continuum development project to redevelop the former Spice Factory at 960 Franklin Avenue in its analysis and therefore precluded the City from reviewing or considering the cumulative impacts of development in the subject area of Crown Heights. According to Kraft, “[s]egmentation is the division of the environmental review of an action such that various activities or stages are addressed as though they were independent, unrelated activities, needing individual determinations of significance. 6 NYCRR § 617.2 (g). This type of review violates SEQRA. 6 NYCRR § 617.3 (g)(1).” Kraft argued the Continuum project is an unrelated development project, with an ongoing environmental review process, which is not yet certified into ULURP, has not received final approvals, and which requires discretionary approvals and its own environmental review that would account for the Franklin Avenue rezoning development projects. He further averred that petitioners misunderstand the SEQRA and CEQR environmental review process.
When an amendment to the zoning law is sought in the City of New York, the application must undergo public review through Uniform Land Use Review Procedure (ULURP) and according to mandated time frames (New York City Charter §§ 197-c, 201). Key participants in the ULURP process are the Department of City Planning (DCP) and the City Planning Commission (CPC), Community Boards, the Borough Presidents, the Borough Boards, the City Council and the Mayor. DCP is responsible for certifying that the application is complete, and ready for public review through the ULURP process.
The pre-certification process involves two concurrent reviews: a land use review and an environmental review. The land use review of the application ensures that the application is complete and technically accurate. The environmental review discloses and analyzes potential impacts that the development proposal may trigger. When the application is subject to environmental review, a negative declaration (ND), conditional negative declaration (CND) or a notice of completion of a Draft Environmental Impact Statement (DEIS) must be issued before an application can be certified.
Environmental review is governed by the State Environmental Quality Review Act (SEQRA), enacted by the New York State Legislature in 1975. It is well settled that SEQRA “is a [New York State] legislative attempt to ensure that state and local agencies consider the environmental impact of their proposed actions” (Matter of Chinese Staff & Workers' Assn. v. Burden, 19 NY3d 922, 923 , citing Matter of Spitzer v. Farrell, 100 NY2d 186, 190 ). SEQRA requires all state and local government agencies to assess the environmental effects of discretionary actions before undertaking, funding, or approving the project, unless such actions fall within certain statutory or regulatory exemptions from the requirements for review. The provisions of SEQRA are found in Article 8 of the New York State Environmental Conservation Law (ECL § 8-0101). The New York State Department of Environmental Conservation (NYSDEC) has promulgated regulations, last amended in 2000, that guide the process of review (Part 617 of Title 6 of New York Codes, Rules and Regulations (6 NYCRR 617). SEQRA permits a local government to promulgate its own procedures provided they are no less protective of the environment, public participation, and judicial review than provided for by the state rules (see 6 NYCRR 617.14 [b] ).
According to the City Environmental Quality Review Technical Manual (March 2014), City Environmental Quality Review (CEQR) is New York City's process for implementing SEQRA. CEQR takes into account the special circumstances of New York City's urban environment and is the process by which agencies of the City of New York review proposed discretionary actions to identify and disclose the potential effects those actions may have on the environment. In implementing SEQRA, the CEQR process requires City agencies to assess, disclose, and mitigate to the greatest extent practicable the significant environmental consequences of their decisions to fund, directly undertake, or approve a project.
A City agency ‘is entitled to rely on the accepted methodology set forth in the [CEQR] Technical Manual” (Matter of Northern Manhattan Is Not for Sale v. City of New York, 185 AD3d 515, 520 [1st Dept 2020], citing Matter of Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan, 146 AD3d 575, 579 [1st Dept 2017], affd 30 NY3d 416 ). An agency's “initial determination ․ under SEQRA and CEQR is whether an EIS [environmental impact statement] is required, which in turn depends on whether an action may or will not have a significant effect on the environment” (Matter of Chinese Staff & Workers' Assn., 19 NY3d at 923-924 , citing Chinese Staff & Workers Assn. v. City of New York, 68 NY2d 359, 364 , citing ECL 8-0109 ; CEQR 7 [a] ). “An EIS is required if the action may include the potential for even one significant adverse environmental impact” (Matter of Barrett v. Dutchess County Legislature, 38 AD3d 651, 655 [2d Dept 2007], citing see 6 NYCRR 617.7 [a]  ). “In making its initial determination, the agency will study many of the same concerns that must be assessed in an EIS, including both long- and short-term environmental effects” (Matter of Chinese Staff & Workers' Assn., 19 NY3d at 923-924, citing Farrell, 100 NY2d at 190; Chinese Staff & Workers Assn., 68 NY2d at 364, citing ECL 8-0109  [b], CEQR 1 [g] ).
CEQR procedure (Technical Manual § 223) mandates that if, for each technical area, the lead agency determines that either the screening or detailed analyses show that no significant adverse impact on the environment would occur, it issues a Negative Declaration. A Negative Declaration describes the project and the reasons for the determination that the project would not have a significant adverse effect on the environment. Where an agency determines that an EIS is not required, it will issue a “negative declaration” (Matter of Chinese Staff & Workers' Assn, 19 NY3d at 924 , citing Farrell, 100 NY2d at 190). “Although the threshold triggering an EIS is relatively low, a negative declaration is properly issued when the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion” (Matter of Chinese Staff & Workers' Assn, 19 NY3d at 924 , citing Farrell, 100 NY2d at 190 [internal quotation marks and brackets omitted]; Chinese Staff & Workers Assn., 68 NY2d at 364-365, citing see Oak Beach Inn Corp. v. Harris, 108 AD2d 796, 797; H.O.M.E.S. v. New York State Urban Dev. Corp., 69 AD2d 222, 232 [4th Dept 1979]).
If the lead agency determines that an Unlisted action proposed by a private applicant may have a significant impact on the environment, but that any such effect can be eliminated or avoided by incorporating mitigation or specific changes in the project, then the lead agency may issue a conditional negative declaration (CND). Pursuant to SEQR regulations, CNDs are permitted only for Unlisted actions, and only where the applicant is private and not a governmental party. SEQR regulations provide for a 30-day public comment period (after publishing notice of the CND in NYSDEC's Environmental Notice Bulletin) before the CND becomes final. Pursuant to SEQR regulations, a lead agency must rescind a CND and issue a Positive Declaration requiring the preparation of a draft environmental impact statement (DEIS) if it receives substantive comments that identify potentially significant adverse environmental impacts that (i) were not previously identified and assessed; (ii) were inadequately assessed in the review; or (iii) could not be substantially mitigated by proposed mitigation measures.
Judicial review of CEQR determinations is provided for in Article 78 of the New York State Civil Practice Law and Rules (CPLR). If an agency fails to comply with CEQR, a court may invalidate that decision pursuant to Article 78 of the CPLR. A “bedrock principle of administrative law” is that judicial review of an administrative determination is limited to the “grounds invoked by the agency” (Matter of National Fuel Gas Distrib. Corp. v. Public Serv. Commn. of the State of NY, 16 NY3d 360, 368  [citations omitted]; e.g. Rodriguez v. Weiss, 149 AD3d 842, 843 [2d Dept 2017] [citations omitted] ). Consequently, “[j]udicial review of a lead agency's SEQRA [or CEQR] 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’ ” (Matter of Chinese Staff & Workers' Assn, 19 NY3d 922, 924 , citing Akpan v. Koch, 75 NY2d 561, 570 , quoting CPLR 7803 ).
In analyzing and considering the foregoing, this court may not substitute its judgment for that of the lead agency, but is required only to assure that the agency has complied with the procedural and substantive mandates of CEQRA (Plaza v. City of New York, 305 AD2d 604, 606 [2d Dept 2003]; see Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 NY2d 382 ). It is not the Court's role to weigh the desirability of any proposed action or choose among alternatives (Matter of Village of Westbury v. Department of Transp. of State of NY, 75 NY2d 62, 66 , citing Matter of Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 416 ). The Court will not search the record for a rational basis to support the agency's determination, substitute its judgment for that of the agency, or affirm the underlying determination upon a ground not invoked by the agency in the first instance (Matter of Office Bldg. Assoc., LLC v. Empire Zone Designation Bd., 95 AD3d 1402, 1404-1405 [3d Dept 2012]; see Rodriguez v. Weiss, 149 AD3d at 843). It is also not the court's role to evaluate de novo the data presented to the agency and therefore, challenges to the conclusions drawn from the data presented requiring such a substitution of judgment will likely fail (Akpan, 75 NY2d at 571). Moreover, “[t]here is no requirement that the [environmental statement] contain all the raw data supporting its analysis so long as that analysis is sufficient to allow informed consideration and comment on the issues raised” (Akpan, 75 NY2d at 573-574, citing Matter of Jackson, 67 NY2d at 423).
“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” (Matter of Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 417 ; e.g. Matter of Chinese Staff & Workers' Assn, 19 NY3d at 924; Akpan, 75 NY2d at 570; Rimler v. City of New York, 172 AD3d 868, 871 [2d Dept 2019] [citations omitted] ). Where a lead agency failed to identify the relevant areas of environmental concern, take a hard look or set forth a reasoned elaboration, the determination may be annulled (see Merson v. McNally, 90 NY2d 742, 751-752 ; see e.g. Matter of Riverkeeper, Inc. v. General Elec., 1998 WL 35394398 [Sup Ct, Westchester County 1998], affd 262 AD2d 650 [2d Dept 1999]). The hard look standard is one which is fact-oriented, and to be determined on a case-by-case basis (Matter of Riverkeeper, 1998 WL 35394398, citing Akpan, 75 NY2d at 571).
“An agency's compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals” (Akpan, 75 NY2d at 571, citing Matter of Jackson, 67 NY2d at 417). “Similarly, agencies have considerable latitude evaluating environmental effects and choosing between alternative measures” (id.). “Not every conceivable environmental impact ․ must be identified and addressed” before there has been compliance with SEQRA (Matter of Riverkeeper, 1998 WL 35394398, citing cf. Aldrich v. Pattison, 107 AD2d 258, 266 [2d Dept 1985][Reviewing sufficiency of EIS] ). “What must be required is that information be considered which would permit a reasoned conclusion” (Matter of Northern Manhattan Is Not for Sale v. City of New York, 185 AD3d 515, 518 [1st Dept 2020], citing Matter of Friends of P.S. 163, 146 AD3d at 578, quoting Coalition Against Lincoln W. v. City of New York, 94 AD2d 483, 492 [1st Dept 1983], affd 60 NY2d 805 ). “Thus, the court may only annul a determination as to the sufficiency of an environmental impact statement and the environmental consequences of the proposed project ‘if it is not rational—if it is arbitrary and capricious or unsupported by substantial evidence’ ” (Matter of Northern Manhattan Is Not for Sale, 185 AD3d at 518, citing Aldrich v. Pattison, 107 AD2d 258, 267 [2d Dept 1985], quoting Town of Hempstead v. Flacke, 82 AD2d 183, 187 [2d Dept 1981]).
“A lead agency ․ may rely upon the advice it receives from others, including consultants, if reliance is reasonable ․ and there is nothing in the record which would put in doubt the reliability of [the agency's] consultants in this case” (Matter of Stewart Park & Reserve Coalition v. New York State Department of Transportation, 157 AD2d 1, 7 [3d Dept 1990], affd 77 NY2d 970 , citing Matter of Jackson, 67 NY2d at 427). “Moreover, an [environmental assessment] and comprehensive [expert] report may demonstrate the sufficiency of a lead agency's examination, analysis and conclusion regarding the environmental effect of a proposed action” (Matter of Stewart Park & Reserve Coalition, 157 AD2d at 7, citing Matter of Soule v. Town of Colonie, 95 AD2d 979, 981 [3d Dept 1983]).
Here, DCP certified that it complied with 6 NYCRR 617.7 and 43 RCNY 6-06. It stated it reviewed the June 8 REAS and the associated ULURP applications (Nos. C 180347ZMK and N 180348ZRK), prepared by Philip Habib and Associates, which identified the following areas of environmental concern: Land Use, Zoning, and Public Policy, Socioeconomic Conditions, Community Facilities and Services, Open Space, Shadows, Historic and Cultural Resources, Urban Design/Visual Resources, Hazardous Materials, Water and Sewer Infrastructure, Solid Waste and Sanitation Services, Energy, Transportation, Air Quality, Greenhouse Gas Emissions, Noise, Public Health, Neighborhood Character, and Construction.
In issuing its Negative Declaration, on June 8, 2018, DCP certified it considered these impact categories in relation to the location of the project, the probability of occurrence, duration, irreversibility, geographic scope, and magnitude. It also certified that the project posed no potentially significant adverse impact for hazardous materials and air quality (EAS Short Form at 8). On June 11, 2018, the Environmental Assessment and Review Division of the Department of City Planning stated it completed its technical review of the June 8 REAS, which “reflects the new land use application” (ULURP Nos. C 180347ZMK and N 180348ZRK filed by Cornell on April 18, 2018). CPC issued an (E) designation (E-405) for hazardous materials and air quality for incorporation into the proposed actions at Sites 1, 2 and 3 to ensure that the proposed actions would not result in significant adverse impacts. It further determined the proposed actions would have no significant effect on the quality of the environment.
Petitioners argued DCP's review failed to satisfy the CEQR requirements and a further analysis of water and sewer infrastructure was required. Significant adverse impacts are substantial changes in environmental conditions that are considered adverse under CEQR thresholds and assessments (Technical Manual at 2-11). The Technical Manual provides, in relevant part, that preliminary infrastructure analysis would be needed if the project will exceed incremental development of 400 residential units above the No Action scenario (at Chapter 13). Here, the June 8 REAS concluded the project would result in the incremental development of 284 residential units, well below the 400 unit threshold, and therefore additional analysis was not warranted.
DCP indicated it reviewed the April 13 application and the June 8 REAS prior to issuing its Negative Declaration. The Court is perplexed by what seems an obvious discrepancy in the total buildable floor area stated in each of these documents. Although the Court is neither entitled to the data Philip Habib used to make the projections asserted in the REAS nor review the data de novo on which the applicant calculated its reasonable worst case development scenario (RWCDS) and DCP based its conclusions, there are discrepancies throughout the application and the REAS which call into question whether the decision of DCP was rational and based on the required hard look.
The as-of-right development described in the April 13 application (at 3) is as follows: The as-of-right plans for 56 Crown Street (a/k/a 40 Crown Street, Lots 29,45, and 50) were filed under DOB Job No. 321042304. The plans reflect a residential building with 209 market-rate dwelling units, comprised of 167,982.25 square feet of residential floor area. The building would rise to a height of 70 feet and seven stories. The as-of-right plans for 931 Carroll Street (Lot 58) are filed under DOB Job No. 321080833. The plans reflect a residential building with 69 dwelling units, comprised of 54,252 square feet of residential floor area. The building would rise to a height of 70 feet and seven stories.
The Without Action development scenario described in the June 8 REAS is as follows: Site 1 (931 Carroll Street) would be redeveloped with the maximum 3.0 residential FAR and consist of approximately 69,524 gross square feet with 69 dwelling units and 35 parking spaces. Site 2 (40 Crown Street) would be redeveloped with maximum 3.0 residential FAR and consist of approximately 225,821 gross square feet of residential space with 208 dwelling units and 120 parking spaces. The Without Action scenario described in the June 8 REAS was inconsistent with the Without Action scenario described in the April 13 application.
Specifically, in the June 8 REAS, the amount of gross residential square footage for development Sites 1 and 2 was stated as 69,524 and 225,821 residential square feet respectively. This is also what the June 11 Revised Negative Declaration stated. However, the residential square footage stated in the April 13 application, and also the September 20 application, was much smaller. In the April 13 application, the amount of gross residential square footage for Sites 1 and 2 was stated as 54,252 and 167,982.25 residential square feet respectively. In the September 20 revised application, the amount of gross residential square footage for Sites 1 and 2 was stated as 54,252 and 167,836 residential square feet respectively.
Since the lot sizes are constant, the difference in developable residential square footage depends on the FAR applied. As explained in CP VI's Answer, “ ‘[f]loor area ratio’ or ‘FAR’ is the multiplier used to calculate the available floor area permitted to be built on a zoning lot. The amount of permitted floor area is determined by multiplying the lot area of the zoning lot by the FAR. As an example, a zoning lot with an area of 20,000 sf with a 6.0 FAR is permitted to be developed with 120,000 sf of floor area” (CP VI Answer, Counter-Statement of Facts, at 31 n 4).
Therefore, here, for example, the No Action scenario for 40 Crown Street in the June 8 REAS (at A-11) stated the site would “be redeveloped with the maximum 3.0 residential FAR, resulting in approximately 225,821 gsf of residential building space with approximately 208 market-rate DUs and a 120-space attended accessory parking garage.” This projection is actually based on a 4.0 FAR (225,821 divided by 55,962 = 4.0). This is inconsistent with the No Action projections stated in the April 13 application which stated the maximum developable residential square footage for that lot based on a 3.0 FAR was 167,982.25 (167,982.25 divided by 55,962 = 3.00). Since the development of 208 dwelling units was consistently projected under the No Action scenarios in the April 13 application and the June 8 REAS, it is apparent that the DUF applied in the April 13 application was approximately 807 and not 1000. The same analysis applies to 931 Carroll Street and Site 3.
Notwithstanding this discrepancy, DCP did not address the fact that the buildable residential square footage stated in the No Action scenario in the April 13 application was remarkably smaller than the projected buildable residential square footage for the No Action scenario in the June 8 REAS, yet the number of dwelling units projected to be developed remained constant. DCP also accepted, without explanation, the developers' statements that they would develop the sites with two buildings that would be 157 feet or 147 feet tall and 175feet/16 stories tall, while the number of dwelling units never changed regardless of the height of the building, the FAR, or the DUF, and it accepted floor area calculations that included the additional floor area provided by the FRESH program without consideration of the additional height. Even assuming the discrepancies in floor area are attributable to whether the developers were basing projections on R8X zoning or R8X zoning with MIH and qualifying ground floor retail or FRESH certification, the record and the June 11 Revised Negative Declaration (RND) lacks any explanation as to how the number of dwelling units is static regardless of the height of the building. Neither the application, the REAS, the RND nor DCP provided any explanation as to how to reconcile these inconsistencies.
Finally, DCP accepted the applicant's reasonable worst case development scenario (RWCDS) based on a dwelling unit factor (DUF) of 1000, which respondents averred is used for new developments outside Manhattan. However, this justification is unsupported by the zoning regulations, which indicate a DUF of 680 is applicable here. This justification is also unsupported by the record. As demonstrated above, once the projected buildable square footage was corrected to the appropriate FAR for the existing zoning, as shown in the April 13 and September 20 applications, but not the June 8 REAS or June 11 RND, the DUF in the No Action scenario decreases.
Therefore, while there is merit to the argument that the maximum build out using the 680 DUF is not the “reasonably likely” scenario for calculating the RWCDS, nor is it required by the CEQR, the record does not support the contention that a 1000 DUF is reflective of what was realistically and reasonably likely for new development by these developers and on this record. Accordingly, the Court is disinclined to conclude DCP took a hard look at this issue, which was raised by petitioners throughout the public review process, or conclude that it was reasonable for DCP to rely on the data presented by Habib & Associates when these inconsistencies were obvious and consequential to whether further study was required.
Moreover, the record indicates that on November 15, 2018, Raymond Levin, who certified Cornell's application on June 8, 2018, testified before the Subcommittee on Zoning and Franchises. He testified that the total number of units to be developed under the proposed rezoning was approximately 518, of which 140 would be affordable, in 16-story buildings (transcript at 29). Mr. Levin told Chairperson Moya that “[b]oth buildings will be broken down with five percent studios, 40 percent one bedroom, 35 percent two bedroom, and 20 percent three bedrooms” (transcript at 17, 30). He further clarified for Chairperson Moya that, “․ the targeted apartment sizes are studios at 400 square feet, one bedrooms at 575 square feet, two bedrooms at 775 square feet, and three bedrooms at 950 square feet” (transcript at 21).
According to Mr. Levin, 75% of the apartments CP VI intends to develop are expected to be between 575-775 square feet and all the units are less than 1000 square feet. This is entirely inconsistent with the projections set forth in the RWCDS and the arguments made by respondents throughout this proceeding. At that hearing, Ms. Boyd raised this issue and the environmental impact, advocated for a review of the REAS to determine accuracy, and alleged gross errors and serious misrepresentations formed the basis of the determination that no environmental impact statement was required for water and sewer (transcript at 58-61, 72-73).
Further, there is the question of whether 931 Carroll Street would contain ground floor retail. The City dismissed petitioners' contention that 931 Carroll Street would contain a ground floor retail space arguing that neither developer has applied for FRESH use. In the June 8 REAS, the RWCDS projected 931 Carroll Street only as a residential building. Kraft argued that further review and environmental assessment would be required to designate 931 Carroll as a C2-4 zoning area. Kraft, at paragraph 58, page 21, of his affidavit, argued that petitioners were incorrect in believing the developer will seek to include both buildings in the FRESH program. He argued that neither developer has filed an application with CPC for participation in the FRESH program, 931 Carroll Street is not within the C2-4 overlay area, and therefore a supermarket on the ground floor would not be permitted under the zoning for the site. He concluded that even if participation in the FRESH program was being sought, it would need to go through further approval processes and environmental review.
However, the record contradicts the City's arguments here. Throughout the record, applicants stated they intended to build a 175-foot tall building at 931 Carroll Street. The R8X zoning regulation permits this height with qualifying ground floor retail (Zoning Handbook at 104). In the “Proposed Changes to Bulk Regulations” section of the April 13 and September 20 applications, the applicants indicated that R8X zoning allows a maximum residential FAR of 6.02 and 7.2 FAR with Mandatory Inclusionary Housing (MIH) designation. They further stated that,
R8X districts mapped as MIH areas permit a maximum building height of 170 feet, or 175 feet if qualifying ground floors are provided. In the future, the Applicant may apply for a New York City Planning Commission certification for a FRESH food store on the ground floor of the Proposed Development, which would allow an additional 15,349 square feet of residential floor area. Such certification would allow a maximum of 418,441 square feet of floor area [and 403,092 residential square feet] at the 40 Crown Street Development Site and an additional 16 dwelling units, 4 of which would be affordable. The C2-4 overlay would allow a commercial FAR of 2.0.
Kraft's argument that neither developer has filed an application with CPC for participation in the FRESH program is undermined by the fact that 40 Crown Street, also subject to the FRESH application requirements, was consistently described as a 175ft/16 story building containing ground floor retail pursuant to the FRESH program. The record is devoid of evidence that the rules of the FRESH program apply differently to 40 Crown Street and 931 Carroll Street. For these reasons, Kraft's argument that “it would need to go through further approval processes and environmental review” is unavailing.
Moreover, the City's argument that 931 Carroll Street is not within the C2-4 overlay area is contradicted by the June 11 RND (at page 2), which stated,
The Affected Area is located within a R6A district with a C1-3 overlay on Block 1188 ․ The existing 100-foot deep C1-3 commercial overlay on Block 1188 along Franklin Avenue would be rezoned to C2-4, and a 100-foot deep C2-4 commercial overlay would also be mapped on Block 1190 along Franklin Avenue. R8X districts permit a maximum residential FAR of 6.02 or 7.2, with affordable housing provided pursuant to the MIH program. The maximum allowable building height would be increased to 175 feet ․ C2-4 commercial overlays permit a maximum FAR of 2.0; C2-4 overlays permit a slightly wider range of uses than C1-3 overlays․
The Court is mindful that it is not within its preview to review the data on which the City based its conclusion that there would be no environmental impacts on water and sewer, nor is a court free to substitute its judgment for that of the agency on substantive matters (Akpan, 75 NY2d at 571). Rather, here, the Court need not review the data to observe that the conclusions asserted in the April 2018 application and repeated in the September 2018, and the June 8 REAS, on which DCP based its determination, were facially inconsistent. Moreover, this issue was never substantively addressed even when raised at public hearings throughout the ULURP process.
Respondents have proffered no explanation other than to reiterate that the CEQR Technical Manual requires a hard look at incremental change. This is a statement which no one disputes, but fails to establish whether the environmental impacts on water and sewer were given a hard look or that DCP's determination was rational (see Matter of Jackson, 67 NY2d at 414-415). In light of the circumstances of this case, the Court finds the agency has not given due consideration to all pertinent environmental factors (cf. Akpan, 75 NY2d at 571) and has therefore failed to satisfy SEQRA (Matter of Jackson, 67 NY2d at 416).
Although the agency averred it has identified areas of environmental concern relevant to the project and adhered to the CEQR Technical Manual in form, the agency's determination was not rational (cf. Akpan, 75 NY2d at 571, citing see H.O.M.E.S. v. New York State Urban Dev. Corp., 69 AD2d at 231; cf. Matter of Chinese Staff & Workers' Assn, 19 NY3d at 924; cf. Matter of Barrett, 38 AD3d at 655-656). DCP adopted the assertions applicant made in the June 8 REAS without regard for the obvious inconsistencies in the April 13 application which it claimed to have considered. The agency may rely on such, but only “if reliance is reasonable ․ and there is nothing in the record which would put in doubt the reliability of [the agency's] consultants in this case” (see Matter of Stewart Park & Reserve Coalition v. New York State Department of Transportation, 157 AD2d 1, 7 [3d Dept 1990], affd 77 NY2d 970 , citing Matter of Jackson, 67 NY2d at 427). Here, the record puts in doubt the reliability of the applicant's assertions and conclusions in light of the obvious inconsistencies in the applications and the REAS (see Matter of Stewart Park & Reserve Coalition v. New York State Department of Transportation, 157 AD2d 1, 7 [3d Dept 1990], affd 77 NY2d 970 , citing Matter of Jackson, 67 NY2d at 427).
Although an environmental assessment and accompanying reports may demonstrate the sufficiency of a lead agency's examination, analysis and conclusion regarding the environmental effect of a proposed action, that is not the case here (cf. Matter of Stewart Park & Reserve Coalition, 157 AD2d at 7, citing Matter of Soule v. Town of Colonie, 95 AD2d 979, 981 [3d Dept 1983]). Rather, here, the environmental assessment and accompanying applications call into question the sufficiency of the lead agency's examination, analysis and conclusion regarding the environmental effect of the proposed action. Since “[a]n EIS is required if the action may include the potential for even one significant adverse environmental impact” (Matter of Barrett, 38 AD3d at 655, citing see 6 NYCRR 617.7 [a] ; see Matter of Peterson v. Planning Bd. of the City of Poughkeepsie, 163 AD3d 577, 580 [2d Dept 2018]), and having determined the applications and REAS in this case were rife with inconsistencies and DCP failed to take a hard look at the environmental impacts on water and sewer, the Court need not address the remaining arguments of the parties to determine whether annulment is warranted. Accordingly, the Petition is granted. It is, therefore, ordered, the determination of DCP is annulled on the grounds its determination was not rational or supported by the record (see Matter of Northern Manhattan Is Not for Sale, 185 AD3d at 518, citing Aldrich v. Pattison, 107 AD2d 258, 267 [2d Dept 1985], quoting Town of Hempstead v. Flacke, 82 AD2d 183, 187 [2d Dept 1981]).
Reginald A. Boddie, J.
Response sent, thank you
Docket No: 1518/2019
Decided: December 08, 2020
Court: Supreme Court, Kings County, New York.
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