Matter of Nash Metalware Co. Inc. v Council of the City of New York
Annotate this CaseDecided on December 21, 2006
Supreme Court, New York County
In the Matter of the Application of Nash Metalware Co., Inc., Royal Engraving Co., Inc., Pinquist Tool & Die Company, Inc., Lafayette Grinding Corp., Argington Inc., and Enduro Products Corp., Petitioners, For a Judgment pursuant to Article 78 of the CPLR
against
The Council of the City of New York, The Planning Commission of the City of New York, the Department of City Planning of the City of New York, and the City of New York, Respondents.
In the Matter of the Application of Transgas Energy Systems LLC, et al., Petitioners, For a Judgment pursuant to Article 78 of the CPLR
against
The Council of the City of New York, The Planning Commission of the City of New York, the Department of City Planning of the City of New York, and the City of New York, Respondents.
400331/06
Lewis Bart Stone, J.
On May 11, 2005, following an extended process, the New York City Council (the "Council") adopted a series of resolutions (the "2005 Resolutions" ) to amend the New York City Zoning Code (the "Zoning Amendments"), to rezone a large swath of Greenpoint and Williamsburg from various industrial uses to mixed residential, commercial and recreational uses, and to effectuate other related land use changes in connection therewith.[FN1] The petitioners, for various reasons, sought, through Article 78 of the Civil Practice Law and Rules ("CPLR"), to challenge the 2005 Resolutions and set them aside by reason of alleged errors or defects in their adoption.
THIS PROCEEDING
The petitioners timely commenced two separate proceedings under CPLR Art. 78. Transgas Energy Systems, LLC, Gas Alternatives, Inc. and North 12th Street Properties LLC (collectively "Transgas") commenced one proceeding in New York County on September 1, 2005. Nash Metalware Co., Inc., Royal Engraving Co., Inc., Pinquist Tool & Dye Company, Inc., Lafayette Grinding Corp., Argington, Inc., and Endure Products Corp., (collectively the "Nash Petitioners") commenced the other proceeding in Kings County by Notice of Motion and Petition dated September 12, 2005. Both proceedings named as party respondents the Planning Commission of the City of New York, the Department of City Planning (collectively "CPC"), the Council and the City of New York. (The respondents are sometimes hereafter collectively be referred to as the "City"). Both proceedings raised similar objections as to one aspect of the process by which the Zoning Amendments were adopted and separate objections to other aspects of such process which they claim apply in their particular case. To assure an orderly and consistent resolution of this dispute, the City moved to consolidate both proceedings by Order to Show Cause, issued by this Court on October 11, 2005. [*2]Subsequently, the parties by stipulation, "so ordered" by this Court on October 18, 2005, agreed to such consolidation.
The tortuous and complicated process of amending zoning in the City is governed in part by New York Environmental Conservation Law (En. Con. L.) Art. 8, otherwise known as the New York State Environmental Quality Review Act ("SEQRA"), and the Rules of Procedure for City Environmental Quality Review, 62 Rules of the City of New York ("RCNY") §5-01, et seq., ("CEQR") and the City's Uniform Land Use Review Procedures ("ULURP") NY City Charter §197-c. Both SEQRA and CEQR effectively require government decision makers to take certain steps to assure that when considering a decision to amend the zoning code which has a possible environmental impact, that such decision identifies and reviews material environmental issues and that appropriate steps have been taken towards minimizing any adverse environmental impacts. ULURP relates to the timing of the procedural steps to be taken in enacting such amendments. Because the rezoned land is located in the City, both SEQRA and CEQR apply to the process and Petitioners challenge the 2005 Resolution under both SEQRA and CEQR.
Following the completion of briefing on the above described motions, the parties presented arguments to this Court on May 5, 10 and 15, 2006 (the "Initial Hearings") thus initially submitting the matter for decision on May 15, 2006.
The principal issue common to both proceedings is a claim that the 2005 Resolutions were faulty and thus ineffective to enact the Zoning Amendments because they failed to include the requisite environmental findings (the "Environmental Findings") that Petitioners claim are mandated by CEQR and SEQRA.
At the Initial Hearings, where this position was advanced, the City countered that the requisite Environmental Findings had been implicitly made or made by the incorporation by reference of Environmental Findings made by other City agencies. Seeking to determine what precedents existed with respect to prior Council action on other zoning amendments, the Court directed the City to submit to the Court and Petitioners prior to the final Initial Hearing, copies of the last ten Council resolutions adopting other zoning amendments. The City submitted, instead, eleven (the "Eleven Resolutions").[FN2] Each of the Eleven Resolutions [*3]expressly set forth a series of Environmental Findings of the type mandated by SEQRA and CEQR, language which was absent in the 2005 Resolution. These findings, which tracked the language of both SEQRA and CEQR were worded substantially identically in all but one of the Eleven Resolutions.
Although the City at the final Initial Hearing continued to assert that the 2005 Resolutions were nonetheless valid, the City was apparently concerned by the obvious difference between the format of the 2005 Resolutions and that of the Eleven Resolutions. This concern was evidenced by the fact that on June 13, 2006, less than 30 days after the initial submission of this matter to this Court for decision, and while this Court was in the process of writing its decision, the Council adopted Resolution 362 (the "2006 Resolutions"),[FN3] the decretal portion of [*4]which began:
"Having already considered the Final Environmental Impact Statement (FEIS), together with the Technical Memorandum, dated March 2005, and the Technical Memorandum dated May 2005, the Council restates and affirms."
It then added the same language used in the Environmental Findings of the Eleven Resolutions, modifying them only to the extent necessary to refer to specific alternatives which had been adopted as part of the 2005 Resolutions.
The City asserts that the 2006 Resolutions thus cured any prior insufficiency in the 2005 Resolutions but in the alternate maintains its position that the 2005 Resolutions were valid and effective.[FN4] Unsurprisingly, the Petitioners did not concur.
The Court, recognizing that this subsequent Council action raised many new procedural issues, not the least of which was which was whether Petitioners' challenge to the 2005 Resolutions in the consolidated proceeding was now moot because the 2006 Resolutions had superceded the 2005 Resolutions and whether Petitioners should therefore be required to commence a new proceeding, the Court directed the parties to address these issues on the record but suggested that the parties could resolve certain of them by stipulation, which the parties did, agreeing that this proceeding was deemed amended to enable the Court to consider all contentions on the merits including the propriety of the 2006 Resolutions and their impact on the controversy. The stipulation also established a new briefing, submission and oral argument schedule to address issues arising out of the adoption of the 2006 Resolutions. The stipulation was "so ordered" on July 6, 2006.
Timely submissions under this stipulation were made and supplemental arguments were heard on October 24, 2006, at which time the Court requested the parties to also address what remedy or remedies would be appropriate in the event he Court were to find that the Zoning Amendments had been improperly adopted. The parties addressed remedies in supplemental memoranda and the matter was [*5]finally submitted to the Court for decision on or about November 1, 2006.[FN5]
HISTORY OF THE ZONING CHANGE
This proceeding relates to the rezoning of about 184 blocks in Greenpoint and Williamsburgh in Brooklyn, located roughly between the East River on the west and the Brooklyn Queens Expressway on the east and the Williamsburgh Bridge on the South and McGuiness Boulevard on the north (the "Area"). The Area had been zoned for manufacturing uses for many years. Over time, as the City's economy changed, demand for manufacturing and industrial space has substantially declined, leading to substantial abandonment and under-utilization of land in the Area. At the same time, over the past quarter century, the city-wide demand for land for housing and recreation has grown. Recognizing that by rezoning the Area the City could balance this new pattern of demands, the City conducted a review and planning process for over fifteen years to develop an appropriate new plan for the Area.
As the City recognized when it determined to move on its studies, that a rezoning of the Area, as a land use decision, would require compliance with SEQRA and CEQR, it acted accordingly in an attempt to comply with such provisions. At question in this proceeding is whether the City did or whether, if it did not, the degree of non-compliance accords this Court sufficient grounds to grant Petitioners some or all of the relief they seek.
Under SEQRA, an initial decision must be made to determine to whether the proposed Zoning Amendment could result in a material adverse impact on the environment. If no material adverse effect can be foreseen, the agency must issue a statement to such effect known as a negative declaration ("Negative Declaration"). If there could be a material adverse effect, an initial decision, known as a positive declaration ("Positive Declaration") must be issued. In this case the City made a Positive Declaration.
As a result, and as required by SEQRA, State regulations promulgated under SEQRA and CEQR, the City prepared a six hundred page Environmental Impact Statement ("EIS"), to analyze the potential environmental issues and effects possibly resulting from the proposed Zoning Amendments. The EIS affords the decision making governmental bodies an appreciation of such impacts to allow consideration of alternatives, which are also set forth (as required) in the EIS. [*6]
The required contents of an EIS are set forth in detail in 6 New York Codes, Rules and Regulations ("NYCRR") Part 617 ("Part 617"). The Final EIS, dated on March 4, 2005, Respondent's Exhibit 1, was prepared by a group of environmental consultants engaged to add their expertise to the document and process.
Initially, the City proposed to rezone the entire 184 blocks of the Area to change most of the manufacturing zones to mixed residential uses. During the planning process, the City determined that the central portion or core of the Area continued to be a viable and vibrant industrial enclave with operating businesses and many employees. As a result, the City modified its initial proposal to exclude from the proposed rezoning the core of the Area (the "Donut Hole") an area of about 22 blocks where existing zoning for manufacturing uses would remain unchanged. It was this modified proposal which was the subject of the EIS and the 2005 and 2006 Resolutions. The Zoning Amendments also provided that an area generally between the Donut Hole and the East River, about the same size as the Donut Hole, which had been zoned as heavy manufacturing, be rezoned as parkland. Transgas' property lies in such area. Although the areas of the Transgas site and the Donut Hole are not small, they collectively constitute less than 25% of the entire Area.
During this extended planning process, the City consulted with many people, receiving their input and revising their plans, and made many studies, including environmental studies, and went through the various stages of the process it believed were required by law, including SEQRA and CEQR to make the changes to the zoning it had determined to be desirable. This process included the many steps required by SEQRA and CEQR to produce a final EIS from the determination of the Lead Agency, to scoping sessions, to the production of a preliminary statement, through the final EIS, the one in question here. It is the propriety of the City's compliance with the steps required by law which have been challenged by Petitioners.
PARTIES AND STANDING
The Transgas Petitioners own or control a single parcel of land (the "Transgas Site") located within the Area on the East River waterfront. This parcel, which had been used as a tank farm for the storage of petroleum products, was rezoned under the Zoning Amendments as parkland. The Nash Petitioners own or rent parcels of land, of which all but one are located in the Donut Hole. The other Nash petitioner, Enduro Products Corp, ("Enduro") owns land in that portion of the Area which was rezoned by the Zoning Amendments for somewhat different [*7]manufacturing uses at different densities than before. As the Transgas Site was rezoned, Transgas' property was directly affected by the Zoning Amendments and thus Transgas clearly has standing to challenge them. While for the same reason Enduro also has standing to challenge the Zoning Amendments, the remainder of the Nash Petitioners base their standing on the indirect impact of the Zoning Amendments on their property. While under normal CPLR Article 78 standards, only a person who is directly affected by a governmental decision has standing to challenge such decision, the Nash Petitioners assert that the class of persons who may under CPLR Art. 78 challenge the zoning change under CEQR and SEQRA is expanded to include those who are indirectly affected by them in a manner different than that of the public at large. They are correct, and thus have standing to bring this proceeding. Standing in a SEQRA challenge requires that petitioners (1) suffer an "injury in fact" that is different in kind or degree from that of the public at large and (2) the interest or injury asserted must fall within the "zone of interest" protected by SEQRA. Society of the Plastics Indus., Inc. v. County of Suffolk, 77 NY2d 761 (1991).
A property owner, such as Enduro, whose land is subject to a zoning change "has a legally cognizable interest" in assuring that the government has satisfied SEQRA before any rezoning occurs, even if that owner cannot presently demonstrate an adverse environmental effect. Har Enterprises v. Town of Brookhaven, 74 NY2d 524, (1989). Ownership of property adjacent or very close to affected property generally gives rise to a presumption of standing because it is reasonable to assume that an owner located in the immediate vicinity of a rezoned area will suffer an injury different from the community at large and thus be brought in to the zone of interest. Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead, 69 NY2d 406, (1987). Furthermore, a neighboring leaseholder appropriately has equal standing to a neighboring landowner to challenge a zoning action because a "contiguous or closely proximate property obviously can as readily affect the value and enjoyment of a leasehold as the underlying ownership interest." Id. at 415.[FN6] [*8]
Regardless of proximity, a neighboring property owner must still assert an injury or concern that falls within SEQRA's "zone of interests" - namely, that an agency action impacts "the relationship between the citizens of this State and their government." Society of the Plastics Indus., supra at 777. Although "[e]conomic injury is not itself within SEQRA's zone of interests," that economic concerns are raised "does not foreclose...standing also to raise environmental injury." Id. See also Mobil Oil Corp v. Syracuse Indus. Dev. Agency, 76 NY2d 428 (1990). SEQRA's zone of interest encompasses a wide array of environment injuries.[FN7] A project's potential impact on "population patterns or existing community character, for example, with or without a separate impact on the physical environment," falls within SEQRA's zone of interest. Chinese Staff and Workers Ass'n v. City of New York, 68 NY2d 359, 366 (1986).
Four of the Nash petitioners, Nash Metalware Co., Inc., Royal Engraving, Pinquist Tool & Die and Lafayette Grinding are fee owners of property located in the Donut Hole and Argington, Inc., is a tenant of a building there. Thus, by reason of their location, their interests are clearly "in some way different from that of the public at large." Society of the Plastics Indus. Inc., supra at 774. Argington, a tenant of property in the Donut Hole, has similarly alleged economic harm. This Court need not decide whether the quantum of economic harm to Argington meets the threshold necessary for standing or whether Argington, as a tenant, has per se standing [FN8] as the remainder of the Nash petitioners clearly have standing in such grounds to challenge the rezoning and their challenges in no way differ from Argington's.
These five Nash petitioners have not merely alleged economic injury but also set forth environment concerns within SEQRA's zone of concern. They assert that the large and complex rezoning project dramatically affects the neighborhood surrounding them and will surely have far reaching effects on the character of the [*9]neighborhood over the long term. The Court of Appeals has held that an administrative action which displaces residences or businesses, potentially shifting population patterns or altering the character or a community or neighborhood, requires an environmental review under SEQRA. Chinese Staff & Workers Assn., supra at 367. See also: Ridgewood-Bushwick Senior Citizents Council, Inc. v. Giuliani, 227 AD2d 261 (1st Dept. 1996).
The Court is satisfied that even if Argington had no standing, the remaining Nash Petitioners have adequate standing to bring this proceeding. In the end, standing principles are matters of policy and "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." Sun-Brite Car Wash, Inc., supra at 413. The City's request to dismiss the Nash petition on standing grounds is therefore denied.
THE COUNCIL RESOLUTION
The common initial challenge of both Petitioners to the 2005 Resolutions asserts that in adopting them, the Council failed to make the Environment Findings required by SEQRA. By reason of the commonality of this assertion, the separate proceedings brought by Nash and Transgas were consolidated.
SEQRA provides that:
"When an agency decides to carry or approve an action which has been the subject of an environmental impact statement, it shall make an explicit finding that the requirements of this section have been met and that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided." (En. Con. L. §8-0109(8)).
SEQRA, a State law, creates the substantive requirements for environmental reviews by a government agencies in the State including City agencies, where such reviews are required. CEQR, adopted by Local Law of the City, provides procedures for the compliance with SEQRA by City agencies. As the requirements of CEQR generally follow the provisions of SEQRA, the remainder of this Decision will reference only SEQRA.
SEQRA requires that any governmental agency in New York State making a decision on a matter for which an EIS is required make Environmental Findings, i.e. an "explicit finding" that the law has been complied with and that material adverse environmental effects as identified in the EIS have, to the extent [*10]practicable, been minimized or avoided. Where more than one agency is required to participate in a decision involving an EIS, the law does not differentiate for this purpose between the agency (or agencies) which take the laboring oar and those whose participation is lesser. The former agency or agencies are known as the "lead" agency or agencies (a "Lead Agency") and the latter as the "involved" agency or agencies (an "Involved Agency"). Here, CPC, which acted as the Lead Agency, expressly made and included Environmental Findings in their determination. Although the Petitioners dispute the completeness and sufficiency of the EIS, (an issue addressed below), Petitioners do not dispute that CPC was not the Lead Agency nor contend that CPC's Environmental Findings were by themselves faulty or inadequate. The Petitioners do, however, dispute whether the Council, which all parties concur was an Involved Agency, also made appropriate Environmental Findings. The parties also concur that as an Involved Agency, the Council was bound by SEQRA, and thus had to make Environmental Findings as part of their determination to adopt the Zoning Amendments in order to comply with law. Thus, an initial issue is presented whether in fact the 2005 Resolutions complied with SEQRA.
While the 2005 Resolutions recite that, "WHEREAS, the Council has considered the land use implications and other policy issues related to the Decision and Application; and WHEREAS, the Council has considered the relevant environmental issues" the resolutions contain no further language on the issue. The City asserts that the Environmental Findings were "implicitly made by reference to "the land use implication and other policy issues." They further assert that the Council in their 2005 Resolution did not have to reiterate or repeat the Environmental Findings made by CPC, the Lead Agency because CPC's explicit Environmental Findings were thus incorporated by reference. The petitioners disagree.
The City makes an argument of practicality. They assert that the zoning changes were subject to extensive studies by CPC, the Lead Agency, which had fully reviewed all environmental issues and had made proper Environmental Findings, that the Council was aware of such findings, and that accordingly, as a practical matter, the Council, as a legislative body, balanced the interests as a necessary predicate to their adoption of the 2005 Resolutions.
The City further asserts, as the record clearly shows that at least until May 2005 when the 2005 Resolutions were adopted, the City went to an enormous [*11]length,[FN9] at significant expense, and with great sensitivity, to rezone a large, seriously underutilized and obsolescent area of the City, to permit its utilization and development in a way which the City believes will be beneficial to its citizens and to meet their changing future needs, without a procedural fault. The City asserts that, during this process it consulted with many individuals and groups and crafted changes to the original proposal in response to comments in the manner generally substantively and procedurally contemplated by laws relating to zoning changes.
The City also contends that by reason of possible timing constraints in ULURP (which are also addressed below) in the event this Court's determination that the 2006 Resolutions are effective is set aside on appeal, the finding that the 2005 Resolutions were not effective might require the entire rezoning process to be restarted with new studies, hearings and consultations which may delay for years any actions to develop the area and create significant losses for land owners and investors who have acted in reliance of the Resolutions, as well as the loss of tax revenues from the expected increases of the value of the rezoned land (and thus assessments and real estate taxes) and the loss of access to the housing which would have been built during the period. Meanwhile, the area will be subject to years of continued deterioration and uncertainty.[FN10]
Petitioners counter by asserting that the Council, an Involved Agency was bound by the express requirements of SEQRA to make "explicit" Environmental Findings and that because the Council did not, the 2005 Resolutions were ineffectual to enact the Zoning Amendments.
The City, recognizing the difference between the Eleven Resolutions and the 2005 Resolution, has responded that the omission was a "scrivener's error"[FN11] which may be excused by this Court, citing a series of cases where other Courts have found certain noncompliance with SEQRA requirements to have been excusable. [*12]Here the City argues that in any event the Environmental Findings were no more than "incantations" or "magic words" which were inadvertently omitted by an Involved Agency, and that the "real" findings were made by CPC, the Lead Agency.
This Court rejects these arguments and concurs with Petitioners that in adopting the 2005 Resolutions, the Council did not comply with the statutory mandate of SEQRA. Accordingly, the 2005 Resolutions, standing by themselves, were ineffective to enact the zoning change. As petitioners challenged the Resolutions under CPLR Art. 78, on the grounds that the 2005 Resolutions were not in compliance with law or procedural requirements, this Court lacks equitable powers to balance such result against the many equities alleged by the City against reaching such a conclusion.
This Court reaches this conclusion through two independent routes. The first is by an analysis of those cases which have approved governmental actions subject to SEQRA notwithstanding technical non-compliance. Based on this review this Court concludes that the inadequacy of the 2005 Resolutions is not an excusable error. The second is based on the practical construction of SEQRA by the City in years of unbroken precedent for substantially similar situations. On this basis this Court also concludes that the 2005 Resolutions did not comply with SEQRA.
EXCUSABLE ERROR
The SEQRA process is not a simple procedural one, requiring various notices, reports and findings to be made over an extensive time period. This complexity is illustrated in this case where the Record, (which includes the EIS), is close to a foot thick, and where the process itself took place over several years involving many meetings, extensive consultations, the reports of various consultants and actions by several different City agencies. As there must be human participation at each step, it would be unrealistic to believe that such a proceeding would be wholly error free. From the cases cited by the City, it is clear that error may often occur in these proceedings.
Although the Article 78 standard of review of the procedural requirements of an administrative proceeding directs the Court to consider whether procedural requirements have be met, the Appellate Divisions have regularly applied a less than literal standard to this requirement in the SEQRA context.
In Rusciano & Son Corp. v. Kiernan, 300 AD2d 590 (2d Dep't 2002), the Second Department reversed a decision of Supreme Court which had set aside a [*13]Local Law of the Village of Pelham Manor, by reason of SEQRA violations. The Village had failed to either prepare an environmental assessment form or a draft environmental impact statement before acting on whether to issue a Negative Declaration, an express procedural requirement of SEQRA. In fact, the Village issued a Positive Declaration and prepared an EIS. Finding that the purpose of the SEQRA request was to prevent a Negative Declaration from being issued without appropriate consideration of issues, the Appellate Division excused the lapse because the reason for the rule did not apply.
In Save the Audubon Coalition v. City of New York, 180 AD2d 348 (1st Dept 1992), the First Department excused a lapse in a proceeding subject to SEQRA where the City failed, following the completion of the Draft EIS, to issue a Notice of Completion containing all of the content mandated by SEQRA, i.e., the date of the public hearing and the precise dates of the comment period, which notice was expressly required by CEQR. Under a separate procedural requirement which provided a superior method of notice, all such information was timely disseminated. As the petitioner also had actual notice and fully participated in the relevant hearings and comment procedure, the First Department rejected their attack on the decision for this lapse.
A similar result was reached by the Second Department in Business and Community Coalition to Save Brownsville v. New York Ctiy Dep't of Environmental Protection, 173 AD2d 586 (2d Dep't 1991). Here the lapse was that the Notice of Completion of the Draft EIS failed to state the address to which comments were to be sent, as specifically required by CEQR §10(a)(1)(iv). The Court rejected petitioners' challenge in such case as petitioners not only knew where to send the comments, but did so. The Court found the effect of the error "inconsequential."
In Town of Victory v. Flake, 101 AD2d 1016 (4th Dep't 1984), the Fourth Department addressed the failure of the Town of Victory to prepare a "Long Form" environmental analysis as required by SEQRA. Finding that in fact, the Town "conducted an independent analysis" which was the same as had been required by SEQRA, the Court dismissed the challenge.
In 680 Fifth Ave. Assoc., L.P. v. City Council of the City of New York, Index No. 107500/01 (Sup. Ct. NY Co., 2001) the Supreme Court, New York County, agreed with the City's argument made in such case that the law does not require a slavish compliance with the procedural requirements of SEQRA so as to require that Environmental Findings be expressly set forth in a City Council resolution approving a zoning change in all cases.
Although in 680 Fifth Ave., supra , the Council Resolution adopting the [*14]zoning law change failed to make the Environmental Findings, it had earlier issued a Negative Declaration, the validity of which was not challenged by the petitioners. The City argued that as such Negative Declaration obviated the requirement for an EIS, there was no need for Environmental Findings. The Court agreed and dismissed the challenge on such grounds, reasoning that because there was no material environmental impact there was nothing for Environmental Findings to address.
These cases do illustrate, as the City contends, that the Courts must apply a rule of reason to determine whether a procedural failure under SEQRA requires the Court to set aside the determination. As the Courts even countenance procedural errors in criminal proceedings, under the "harmless error" doctrine, where the very liberty and freedom of an accused may be at stake, the standard here, in a civil matter, should not impose a higher test. Thus, the "rule of reason" would at least excuse harmless errors.
In the four Appellate Division and one Supreme Court cases discussed above, the errors would have been excusable, under any harmless error analysis. In none of these cases was any principle or aim of SEQRA violated in fact. Although SEQRA itself is a procedural statute to a significant part, the procedure is imposed to assure that environmental concerns are appropriately considered in a public manner and that sentient decisions relating to potential material adverse environmental issues are made by governmental agencies following proper disclosures and opportunity for appropriate participation by affected parties. These are the core procedural concerns which are non-negotiable, even where the actual end result may represent an appropriate environmental balancing.
While the cases show that deviance from the express statutory requirements may be tolerated, the reasons given in such cases are effectively that the core principles of SEQRA remained unsullied.
Thus, it is necessary to consider whether the Council's failure to make express Environmental Findings in the 2005 Resolutions as required by SEQRA represents a violation of core SEQRA principles. The City, citing 680 Fifth Avenue, supra , effectively asserts that such findings are not such core principles. This Court disagrees. The core principle involved is that an agency making a decision where there are possible material environmental impacts, does so with full knowledge of such possibilities, and when exercising its discretion in doing so, takes responsibility for such action. While no specific formulation may be necessary, the acknowledgment and understanding of the decision makers function and action is central and core to the SEQRA process. 680 Fifth Avenue, supra , was properly decided because there was an unchallenged Negative Declaration, [*15]and thus, no relevant material adverse environmental concerns, and accordingly, there was no need for the Council to balance them or for that matter acknowledge that it had balanced them and taken responsibility for making the balance.
PRACTICAL CONSTRUCTION
As an independent ground for finding that the 2005 Resolutions did not comply with SEQRA, the Court has considered the practical construction of the SEQRA requirement for Environmental Findings by the Council over time.
While the Council in adopting the 2005 Resolution omitted the Environmental Findings, each of the Eleven Resolutions contained explicit Environmental Findings.
It is instructive to note that in ten of the Eleven Resolutions the express findings were made in identical language [FN12] which read:
"RESOLVED: Having considered the FEIS, with respect to the Application, the Council finds that:
1) The FEIS meets the requirements of 6 N.Y.C.R.R. Part 617;
2) From among the reasonable alternatives thereto, the actions to be approved are ones which minimize or avoid adverse environmental impacts to the maximum extent practicable; and
3) The adverse environmental impacts revealed in the FEIS will be minimized or avoided to the maximum extent practicable by incorporating as conditions to this approval those mitigative measures that were identified as practicable;
4) The Decision and the FEIS constitute the written statement of facts, and of social, economic and other factors and standards that form the basis of the decision, pursuant to 6 N.Y.C.R.R. §617.11(d)."
Using virtually identical language in the Eleven Resolutions has several implications. First, it indicates that the Council was no neophyte to the SEQRA process and had developed language designed specifically to comply with its statutory duties. Second, by regularly following the formulaic recitation the Council had itself made a practical construction of how the SEQRA requirements relating to Environmental Findings were to be complied in connection with zoning [*16]amendments.
Petitioners assert, however, that by creating a formulaic recitation, the Council reduced the legal requirement of compliance to the recitation of "magic words" and that such a formulaic recitation conflicts with the purpose of SEQRA to require specific findings. While perhaps annoying to a purist, all branches of government regularly invoke formulaic findings to comply with statutory or constitutional mandates, foreclosing further inquiry into their official acts. (See, e.g., where the Appellate Divisions by invocation of the term "in the interest of justice" reduces criminal sentences without further reason, or where the Governor, by issuing "messages of necessity" in formulaic languages shortens the time before proposed legislation may be considered by the Legislature (NY Const. Art. 3, §14) or where the Legislature, by invoking a formulaic "emergency" language has regularly every few years extended "wartime" rent control in the City since 1947.[FN13] SEQRA only requires the specific findings to be made, however, and does not mandate that the finder be verbally original in expressing such findings.[FN14]) That one of the Eleven Resolutions contained slightly different language was attributable to a different fact pattern as to the basis upon which such action was taken. The remainder of such resolution uses the same phrases used in the other ten.
THE 2006 RESOLUTIONS
Had the Council not adopted the 2006 Resolutions, this proceeding would, as above discussed, have had to been resolved by this Court's finding that the Zoning Amendments were a nullity because the Council failed to make explicit Environmental Findings as required by SEQRA. By adopting the 2006 Resolutions this Court must now consider whether such action was effective to adopt the zoning change, rebus sic stantibus.[FN15] [*17]
The parties' positions on this issue are, as be expected, different. The City argues that the 2006 Resolutions have cured any defect. Petitioners argue both that a "do over" cannot resurrect the faulty 2005 Resolutions, and that the 2006 Resolutions do not, by their own terms, purport to substitute for 2005 Resolutions, and in any event, the language of the 2006 Resolutions represents an attempt by the Council to tell the Court how to construe SEQRA, which is the sole province of a court, and finally that the timing of the 2006 Resolutions violated the City's time-table for zoning amendments set forth in ULURP.
This Court finds that the action of the Council in adopting the 2006 Resolutions was effective to insulate the zoning changes against Petitioners' procedural challenges under SEQRA relating to Environmental Findings.
In the 2006 Resolution the Council made it clear that the Council wished, in every way, to assure that the Zoning Amendments it believed it had adopted were to be valid.[FN16] As petitioners note correctly, the language used is somewhat fuzzy as to what procedural position the Council was taking. This fuzzy language recognized the practical bind in which the Council found itself in 2005. This proceeding was pending and had apparently been submitted for decision, with the 2005 Resolution being the Council's effective prior last word. Counsel for the Council had just submitted, at this Court's request, the Eleven Resolutions. While it was obvious that the 2005 Resolutions differed from the Eleven Resolutions by omitting the "magic words" of the Environmental Findings, it was not obvious, however, how this Court or perhaps an appellate court might treat such difference, and Counsel for the Council had already strenuously argued and submitted reasons why the 2005 Resolution was none-the-less valid. The Council was further faced with the dilemma that if it was to attempt to resolve the problem by rescinding the 2005 Resolution and passing a substitute, such action might result in this Court or an appellate court finding the Zoning Amendments invalid and rejecting the substitute as an improper "do over." Further, the City had spent years on the Zoning Amendments and looked forward to new housing, parks, development and tax income in the near future. The Council, at the time they adopted the 2006 Resolutions also could not predict how far the process may be delayed or set back if the Court were to find SEQRA violations.
Accordingly, any ambiguous formulation of the 2006 Resolutions is understandable. The Council wanted to hedge its bets procedurally to minimize [*18]the chance for an outcome adverse to what it wanted to achieve considering the predicament in which it placed itself by what it obviously recognized as its "paster's error." What the 2006 Resolution did make crystal clear was that the Council recognized and fully understood that it had to make Environmental Findings to enact the Zoning Amendments and that the Council wished and intended to do so, and further took full responsibility for doing so, but was unsure only as to whether its prior action in adopting the 2005 Resolutions was sufficient to do so. By the 2006 Resolutions the Council has fulfilled the core, non-negotiable concerns of SEQRA as it relates to environmental findings by the Council as an Involved Agency. Accordingly, under Rusciano & Son Corp., supra , Save the Audubon Coalition, supra , and Business and Community Coalition to Save Brownsville, supra , Petitioners' attack on the Zoning Amendments for this reason must fail.
Petitioners contend that this Court must to go beyond the text of the 2006 Resolution to see if the Council truly made its Environmental Findings in conformity with the requirements of SEQRA. In support of this position, Petitioners cite cases which require a decision maker in a proceeding under SEQRA to take a "hard look" before making a decision, an action which Petitioners assert did not occur as the 2006 Resolution was almost instantly adopted by the Council almost immediately following the hearing before this Court where it became apparent that the 2005 Resolutions did not contain Environmental Findings in form similar to those set forth in the Eleven Resolutions. Further, Petitioners note that there were personnel changes in the Council between the dates when the 2005 and 2006 Resolutions were passed,[FN17] so that even if there were a "hard look" by members in 2005, it would not assure that all of the members in 2006 took "hard look."
Thus, the Petitioners contend the 2006 Resolutions were not adopted following a "hard look," and in any event, the Council in 2006 was not the Council in 2005, so that the 2006 Council cannot assert what the 2005 Council meant, or that the 2005 Council took a "hard look."
An inherent problem of any analysis of the actions leading up to the adoption of a resolution by Council is that the Council is a political body. Although for the purpose of SEQRA it is also an Involved Agency, its political [*19]nature makes it different from other boards, commissions or offices or officers involved in the SEQRA process. Although, as this Court has found, the Council is bound by SEQRA to the extent it must make Environmental Findings as a condition of the validity of an action taken which is subject to SEQRA, that does not answer the question as to how far a Court may inquire into the procedures, processes and deliberations by which the Council, a legislative body, reached and set forth its determinations to make a Zoning Amendments or adopt Environmental Findings.
As former German Chancellor Otto Von Bismark wisely noted, "laws like sausages are best not observed in their making." The legislative process, unlike the process before a Court or administrative agency is inherently chaotic. The text book model of the same quorum of law makers sitting through a full debate on the issues and understanding the relevant issues before voting on the proposition before them bears little resemblance to reality. Legislators, whose sole,[FN18] but overwhelmingly important, qualification to sit is their being elected by their constituency, need not be knowledgeable, interested or even aware of certain issues presented for a zoning change. Some may be involved in what they or their constituents feel are more important matters or rely on caucuses, leadership, constituents, staff, lobbyists, the press or others to help them decide how to vote. Some may be absent for some or virtually all debate and many may not even read documentation prepared for a vote. Under legislative rules, quorums are presumed, absent a challenge, and legislators mill around and leave the floor regularly as proceedings continue.
This description of how a legislative body operates applies to legislative bodies in general, including the United States Congress, the State Legislature and the Council. It is inherent. Yet, while laws may be better not observed in their making, once they are made, within the competency of a legislative body, they are nonetheless valid and to be observed by the Courts, absent any constitutional infirmity or preemption.
What the law is and what the legislative body meant must be determined after the fact, by the Court from the official text of the actions of the body, and not from an inquiry into the unexpressed intent or non-intent of individual members of the body. While in the case of an administrative agency, such as CPC, the lead agency here, the Court, in an Article 78 proceeding may inquire in depth as to how [*20]procedural rules were followed, where a legislature is concerned, it may only read the text of the action and assume the validity of the process from the certification by the body through its clerk or other equivalent as to the due adoption of the measure.
Petitioners' attack on the 2006 Resolutions on the grounds of their form, i.e. the way they claim to be applicable, is inconsistent with Petitioners' attack on the "Boiler Plate" findings approach of the Council in the 2006 Resolutions and the Eleven Resolutions. The sum of such attacks is both that formulaic Environmental Findings are inadequate and that deviating from formulaic Environmental Findings are inadequate. Neither is true. SEQRA neither mandates nor prohibits formulaic Environmental Findings; it only requires that Environmental Findings be made. This Court's review is limited to considering whether the Environmental Findings made by the Council were adequate and have been unequivocally manifested by the text or texts issued by the Council. In this evaluation demerits may not be imposed for misspelling, bad grammar or lack of originality.
THE HARD LOOK
While SEQRA has been held to require a "hard look" by a Lead Agency before a decision subject to SEQRA may be made,[FN19] this Court must address how such requirement may be applicable to the Council in this case.
The "hard look" requirement is a judicially imposed requirement deriving from early Federal Court decisions relating to the Federal National Environmental Policy Act of 1969, 42 USCA 4332, the statute on which SEQRA was based.[FN20] [*21]This "hard look" standard has thereafter been regularly expressed, although not expressly explained. While in the physical world there is an explicit measurement of hardness found in the Moh's scale,[FN21] there is no similar test to see how "hard" the look must be under SEQRA. While the term "hard look" may be infelicitous, it recognizes the intent of the Legislature in SEQRA that its concerns that environmental issues are serious and that in making decisions which may have the potential to cause a material adverse environmental effect, they should take such concerns seriously. The "hard look" requirement is an attempt to implement such intent.
It is clear that the Legislature intended, in enacting SEQRA, that the Council, in doing its part to enact a zoning amendment, should take environmental concerns seriously. It would be absurd, however, to assume that the Legislature, being fully cognizant from its own experience, did not understand how a legislative body like the Council works, and intended to place upon the Council procedures which it knew were incapable of working.
The requirement that the Council adopt Environmental Findings fulfils this legislative intent as it requires the Council to take responsibility and make it clear to its constituents that it collectively did, even though some members may have been unaware, unknowing, uninterested or absent. Thus, to the extent "hard look" requirement is to be applied to the Council action, what they did, recognizing the nature of any legislative processes, fulfilled any such requirement.
Accordingly, this Court will not look beyond the text of the two resolutions to determine how the Council came to its conclusions or to consider which Council member was present, or voted or studied the issues. For the purpose of the "hard look," the Environmental Findings of the Council themselves suffice, as a conclusion that the "hard look" has been taken. Similarly, the Court will not look behind the scenes to observe the 2006 Resolution in its making, but will assume its conclusions to be a clear indicia of the Council's intent.
Further, it is not at all clear whether the "hard look" requirement even applied to the Council with respect to its role as an Involved Agency in the zoning change.
Whatever "hard look" means, the parties are in accord, that under case law, the Lead Agency must take a "hard look". The parties, however, are not in accord whether an agency which is only an Involved Agency must also do so. The City [*22]asserts they need not, and that there are no cases which so hold; Petitioners assert that all agencies, whether Lead and Involved, must take a "hard look" and cite Stop Polluting Orleans County, Inc., v. Crotty, 3 Misc 3d 1111(A) (Sup. Ct. Albany Co. 2004) for such proposition. Petitioners also cite 6 NYCRR §617.2(5) which stated that "the Lead Agency is also an Involved Agency,"[FN22] and argues that because the CEQR Manual requires each involved agency as well as the lead agency to adopt its own findings, involved agencies must take separate "hard looks."
The cited case does not address the issue. At question in Stop Polluting was solely whether DEC, the Lead Agency, had properly acted under SEQRA. Although DEC was also described perhaps infelicitously as an Involved Agency, no reasonable reading of this decision stands for the principle ascribed to it by the Petitioners. The remainder of the regulatory and Manual citations add nothing as to how "hard" an Involved Agency which is not a Lead Agency must "look."
For these reasons, this Court finds that the Council appropriately addressed its obligation to consider the Zoning Amendments. To the extent such action must be expressed on a "hardness" scale, this Court finds that their consideration was "hard" enough to fulfil their role under SEQRA. The 2005 and 2006 Resolutions read together clearly evidence that the Council adopted the Zoning Amendments after giving serious consideration to environmental issues and made appropriate Environmental Findings. This Court will not therefore set them aside for this reason.
INCORPORATION BY REFERENCE
The City asserts that the Council in its 2005 Resolution incorporated CPC's Environmental Findings by reference. This is at best an afterthought. The language in the 2005 Resolution is too vague, considering the core function of SEQRA with respect to the need for findings, to constitute such an incorporation. While resolution language that "we expressly adopt CPC's findings or "make findings the same as CPC" might have shown that the Council intended by such incorporation to manifest compliance with this core procedural concern, such language was absent from the 2005 Resolution. As there was no express incorporation by reference, this Court need not decide whether a true incorporation by reference, showing that the SEQRA core concern had been met, would be adequate to permit a Court to find SEQRA compliance.
[*23]To support their contention that the incorporation of findings of a Lead Agency by an Involved Agency satisfies the requirement for Environmental Findings, the City has cited Village of Pelham v. City of Mt. Vernon Indus. Dev. Agency, 302 AD2d 399 (2nd Dep't. 2004). However, in such case, the Village Council of Pelham, an Involved Agency, adopted express Environmental Findings in the preparation of their own statement, notwithstanding that, as the Second Department expressly noted, they, in order to make such Findings, relied on the determinations made by the Lead Agency.
Reliance, by an Involved Agency of the Environmental Findings of a Lead Agency as a basis for making the Involved Agency's own Environmental Findings, is different than the incorporation of Environmental Findings by reference. Village of Pelham is therefore irrelevant.
Incorporation by reference is a commonly used method in private contract law to avoiding repeating the entire matter incorporated. While sophisticated private parties may be rarely fooled by such an approach in a contract, New York has a long and strong public policy against incorporation by reference in legislation. NY Cons. Art. 3, §6 expressly prohibits incorporation of another law by reference in bills proposing State legislation.[FN23] The origin for this provision and its maintenance in the Constitution since the State's early days is based on a practical understanding of who were likely to be legislators and the broad scope of the activities of a Legislature. The purpose of Art. 3, §6 is to make it more likely that a legislator (who may not be a lawyer, or even if a lawyer may not be expert in the particular area) can appreciate what he is voting on without doing unnecessary research or having comprehensive knowledge of the area of law or endeavor to which a particular piece of legislation relates. As State legislators must regularly legislate under this stricture, the imposition of a SEQRA requirement by the State Legislature that all agencies, whether Lead Agencies or Involved Agency make independent Environmental Findings is understandable. Their intent was to assure that each agency making a decision in a SEQRA proceeding consider and balance environmental concerns when it makes its decision, and by making it, such Agency expressly say it had done so, the requirement focused the agency decision makers on their obligation to do so without the need to consider more than the resolution before them. While the constitutional prohibition of incorporation by reference expressly binds only the State Legislature, it nonetheless expresses State policy. [*24]Such policy must be taken into account in the review of the Council's action. While this Court need not decide whether an explicit and unequivocal incorporation by reference of the Environment Findings of a Lead Agency by the Council in making its own decision might meet muster under the express provisions of SEQRA under this public policy against incorporation, clearly anything less than an unequivocal incorporation, which was absent here, cannot be considered as consistent with the express language of SEQRA. This Court therefore rejects the City's assertion that the 2005 Resolution complied with SEQRA by incorporating the required Environmental Findings by reference.
ULURP ISSUES
Petitioners assert that ULURP requires this Court to ignore the 2006 Resolutions. While ULURP does impose strict time limits on the rezoning process, such time limits were designed to speed, not retard, City action on zoning changes. The ULURP procedure was a product of a City Charter Revision Commission whose proposals were adopted by the City voters at the 1975 general election. At issue at the time were the desire, on the one side, for enhanced citizen input in land use decisions and, on the other side, concerns of land owners and developers that political interference had been a factor in stalling the consideration of private zoning and land use applications to allow officials to avoid making unpopular but necessary decisions. The compromise result was ULURP which opened up the process relating to most City land use decisions to local community boards and the public, on the one hand, but required speedy action, by setting strict time limits on government actions during the process, on the other hand, to prevent decision by delay. ULURP clearly was not meant to allow anyone who objects to a decision such as the Petitioners do to delay or invoke the delay while a Court reviewed the decision to delay that decision further.
ULURP is set forth in NY City Charter §197-c which is entitled "Uniform Land use review procedure," and expressly relates to the City agency process of approvals of land use changes. Such section expressly sets forth the time within which certain actions must be taken. The Nash Petitioners make no showing that any City agency review violated any time limit of §197-c. Their objection is to the action of the Council which instead is governed by NY City Charter §197-d, entitled "Council Review." Section §197-d was also adopted by the city voters when ULURP was adopted, and sets its own time limits for action by the Council. Again, it is clear both from the legislative history and the text of §197-d that the time limits in such section also were intended to expedite council action, and not to [*25]invalidate action not taken during such time periods. Section 197-d expressly recognizes the possibility that the Council will fail to act within the statutory periods for action. Consistent with the concept that the time limits are to force quick action, rather than to delay it, §197-d(c) expressly provides that inaction by the City Council automatically approves an action taken by CPC.[FN24]
Accordingly, this Court rejects Petitioners' contention that the 2006 Resolutions were themselves invalid by reason of their being enacted in an untimely manner in violation of ULURP.
THE EIS
Where in the context of a proposed zoning action, subject to SEQRA, a Positive Declaration has been issued, an EIS must be prepared, in accordance with Part 617. As noted above, the City here prepared a six hundred page EIS. Such EIS is set forth as an Exhibit to the City's Answer to both petitions.
SEQRA, Regulations adopted under SEQRA and CEQR require an EIS to include and properly treat certain matters. Both the Nash Petitioners and the Transgas Petitioners assert that certain of this required material was omitted or improperly treated in the EIS. In these attacks, the Petitioners assert separate and distinct alleged inadequacies. The Nash Petitioners claims that the EIS did not properly address the socioeconomic effects of the Zoning Amendments might alter the character of the community, specifically, as they relate to their businesses. The Transgas Petitioners assert that the EIS failed properly to analyze the impacts of air quality by not taking into account the alleged positive impact their proposed generating facility would have on regional air quality.
As this Court determined that Petitioners have standing to complain about the zoning changes, the Court must, address these separate challenges. As "SEQRA contains no provision regarding judicial review [such review] must be guided by standards applicable to administrative proceedings generally whether a determination was made in violation of lawful procedure, was affected by an error [*26]of law or was arbitrary or capricious or an abused discretion.'" Jackson v. NY Urban Dev. Corp., 67 NY2d 400, 416 (1986). It is under this standard that the Court must consider Petitioners' claims.
CONSIDERATION OF IMPACT ON BUSINESS
The Nash Petitioners assert that the EIS was defective in that it failed to consider the impact of the Zoning Amendment on the economics of businesses both in the Donut Hole and nearby, and the potential displacement of such businesses. They assert that, the City had wrongfully concluded in the EIS that "the Rezoning would not cause significant adverse environmental impacts in the area of business displacement," and with the result that a "detailed analysis" which would otherwise be required under CEQR guidelines was not needed.
The Nash Petitioners further claim that the City's analysis which led to such conclusion was based on "general and secondary information," such as City records and data from the US Census, New York State Department of Labor, local real estate firms and the New York Times. They next claim that such assessment was inadequate as it "did not present even a cursory picture of the real and service needs of the businesses in the Donut Hole, which the Nash petitioners assert include "reliance on the area's transportation network, employee base, and their sensitivities to residential pressures." They posit that the City should have made a building-by-building survey and interviewed public officials and trade associations and "selected businesses identified in the field survey" prior to making such determination.
The Nash petitioners further assert that had such study been conducted, the City would have learned that "manufacturers in the zone would be unable to expand sufficiently their business...have already received substantial offers to sell their properties, would have serious difficulty relocating, depend[ed] upon being located in the [Donut Hole] due to their transportation and employment needs, and are affected by the current traffic regulations and enforcement thereof." They conclude finally by asserting that the Zoning Amendments were faulty because they left manufacturers in the Donut Hole with the same zoning they had before, thus denying them the ability to expand their businesses by failing to provide them with additional FAR and height to justify investment for new facilities.
En. Con. L. §8 105(b) defines "environment" to include "existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character." The Court of Appeals has held that these issues, sometimes referred to as socioeconomic issues, are, accordingly, "environmental [*27]concerns" within the meaning of SEQRA. Chinese Staff & Workers Ass'n v. City of New York, 68 NY2d 359 (1986). In Chinese Staff & Workers Ass'n, the City had issued a "conditional" Negative Declaration, in connection with a proposed high rise luxury condominium to be built on an empty lot in Chinatown in Manhattan, which required city approval and thus was subject to SEQRA. After the developer adopted the CPC's conditions and the Board of Estimate subsequently approved a permit for the building, the petitioners sought to overturn the permit on the grounds that the CPC, the Lead Agency, in considering the application for the approval, failed to consider whether the introduction of luxury housing in Chinatown would "accelerate the displacement of low-income residents or businesses or alter the character of the community." The City contended that such "social or economic effects" were not "environmental, and accordingly that CPC, did not have to consider such issues in making its determination to issue a Negative Declaration." The Court of Appeals found such concerns to be "environmental" and, as the City had not considered them when making its decision to issue the Negative Declaration, set aside the grant of the permit.
Here, there could be no failure of the City to take into account community character when it made a Negative Declaration as a Positive Declaration was issued. Thus, the issue which led to the setting aside of the City's actions in Chinese Staff & Workers Assn., is absent here. See, also, Rusciano & Son Corp. v. Kiernan, supra .
As the City made a Positive Declaration, attention must then shift to the EIS process to determine whether "community or neighborhood character" was appropriately considered in the EIS. As the Court of Appeals holding in Chinese Staff & Workers Ass'n. was expressly limited to finding that these non physical issues raised had to be considered, and that the refusal to consider them, was a violation, the correct inquiry here is whether the City's process did appropriately consider them not that it reached any particular conclusion, unless such conclusion itself was arbitrary or capricious.
Chapter 3 of the EIS expressly considered "socioeconomic conditions" stating
"This chapter examines the potential effects of the proposed action on the socioeconomic conditions in the study area, including population and housing characteristics, economic activity, and the commercial real estate market. In accordance with the guidelines presented in the City Environmental Quality Review (CEQR) Technical Manual, this chapter evaluates five specific factors that could create substantial socioeconomic impacts in an area, including: (1) direct displacement of residential population; (2) direct displacement of existing [*28]businesses; (3) indirect displacement of residential population; (4) indirect displacement of businesses; or (5) adverse effects on specific industries not necessarily tied to a project site or area."
Chapter 3 continued for 60 text pages together with additional maps, photographs and graphs. Thus the EIS expressly addressed the socioeconomic issues, unlike the case in Chinese Staff & Workers, supra .
While the Court of Appeals in Chinese Staff & Workers required the socioeconomic issues to be considered under SEQRA, no particular guidelines were provided as to how such issues were to be considered, or to what standard of review a Court must apply in the event of a dispute whether such consideration had been appropriate. Such lack of explication is unsurprising. By finding "socioeconomic issues" to be considered under the rubric of environmental concerns, the Court of Appeals implicitly indicated that the standards and scope of review as to the appropriateness of their consideration should be no different from the standards of review and the scope of any review of other environmental concern.
Thus, the scope of review provisions in CPLR §7803(3) must be applied to the claims of the Nash Petitioners. In considering the "socioeconomic issues," the CPC, as Lead Agency, followed the procedural steps set forth in SEQRA, viz conducting scoping sessions, preparing a preliminary EIS, holding hearings, considering suggestions made, preparing the final EIS and approving zoning changes based on the EIS. The objections made by the Nash Petitioners do not question these procedures, but instead object to the decisions made by CPC as it proceeded along the route. Such a challenge is not foreclosed merely because "socioeconomic issues" were addressed by the EIS. SEQRA requires the EIS to address such issues appropriately and meaningfully. Thus, the Court must turn to whether the Nash Petitioners have shown that the CPC acted arbitrarily or capriciously in addressing such issues.
The Nash Petitioners zero in on the portion of the process between the scoping sessions and the preparation of the Draft EIS. It was during this period that the CPC made the decision to exclude consideration of these "socioeconomic issues."
The Nash Petitioners' specific objections relate to CPC's factual conclusion after considering the "sociological issues" in the EIS, that the socioeconomic issues would in fact not present a material adverse environmental impact, thus excluding the sociological issues as environmental concerns. They also object to the methodologies of the study by which data in the EIS was obtained (the use of [*29]"general and secondary information") the inadequacy of the study EIS ("it did not present even a cursory picture of the real and serious needs of the business") and that the City did not address problems of relocation and expansion by reason of inadequate incentives for on-site expansion.
The City asserts, to the contrary that CPC properly researched, analyzed and considered all issues relating to these concerns, in the preparation of the Draft EIS.
While this dispute must be resolved by this Court determining, in accordance with the usual review standards under CPLR §7803(c), whether petitioners have established that the CPC decision was arbitrary or capricious, or in violation of proper procedures. The Nash Petitioners' Petition does not expressly follow these rubrics. Their argument instead is basically both that they disagree with the conclusion reached in the EIS and that the material in the EIS, upon which such conclusion was based, was improperly or incorrectly considered.
Both objections, if factually sustainable, would be the basis for relief under Article 78 review. The procedure used to prepare the EIS cannot violate mandated procedures or rely on improper methodology of information collection. The Nash Petitioners assert that CPC, in compiling the EIS erred in this respect.
The Nash Petitioners' first assertion in this area is that CPC's study of facts relied on "secondary sources," and it was improper to do so. However, Petitioners do not show where SEQRA Regulation under SEQRA, CEQR or any case law expressly mandate that information be ascertained in any particular manner or that any information source be proscribed in particular or that secondary sources in general may not be used. Absent any such mandate, this Court must determine whether the Nash Petitioners have established that the methodologies selected by the preparers of the EIS in this area were arbitrary or capricious. This Court finds that Nash Petitioners have not.
The use of data by CPC from the City records or from the US Bureau of the Census and the New York State Department of Labor can hardly be said to be arbitrary and capricious, as implied by the Nash Petitioners. To the contrary, not using or ignoring such data might be. Such data is complied in principal part pursuant to the legal obligation such governmental agencies to compile, maintain and provide accurate data. It certainly is neither arbitrary nor capricious for CPC to have concluded that such data, compiled at a time when both the governmental agencies compiling the data and the data collection itself were made for purposes unrelated to the proposed zoning change, would be more likely to be accurate than testimony at scoping sessions or other data collected for the express purpose of considering a proposed zoning change, where the suppliers of data had no obligation to report and could be aware of the use to which their information may [*30]be put and could be tempted to slant their reports to advance their own interest in that process.
The Nash Petitioners further object to CPC using data from certain local realtors compiled from their current listings to ascertain asking rents and asking real estate prices in the Area. While information from realtors as to current listings is in a sense secondary, there is hardly a better methodology to ascertain asking prices for realty or space in an area as government agencies rarely track asking prices.[FN25]
Realtors are in the business of selling and leasing real estate and their listing records are made and maintained by them for the purpose of their business in the ordinary course of their businesses. Thus, for certain purposes, such records may well be admissible in even a criminal proceeding under CPLR rules applicable to business records. Further, as listing information supplied by owners to realtors is supplied for the purpose of selling or renting properties, CPC could have reasonably determined that such owners would be unlikely to supply incorrect listing information, and therefore such records would quite likely be more accurate as to actual asking prices than a survey conducted by a governmental agency. Accordingly, using realtor's information is neither arbitrary nor capricious. While a small sample size or a biased selection of realtors might result in inaccurate data, the Nash Petitioners offer no showing that there was any problem of sample size or bias, and the record shows no such problem. The Nash Petitioners also object to the use of the New York Times as a source on the basis that it was also a secondary source. While newspapers are generally secondary sources, and their articles are filtered through the minds and biases of their reporters and editors, the Nash Petitioners have not indicated what information was supposedly gleaned from the Times or the extent to such information was questionable, filtered or opinion. On the other hand, the very existence of a newspaper report may be a relevant fact. The Nash Petitioners have not set forth in specific which allegedly improper newspaper reports were used and accordingly cannot meet their burden of proof to show impropriety in this area. Thus, this Court cannot find the use of such material to be arbitrary or capricious. Interestingly, the Nash Petitioners themselves propose that the City should have interviewed local public officials and trade associations, who are no less secondary sources with respect to facts and subject to the same objections as to their accuracy and bias as are newspapers. [*31]
Nash's proposal that a building-by-building survey was needed before CPC made any preliminary decision is unreasonable on two grounds. First, it ignores the reality that sampling, using a statistically significant number of exemplars, properly chosen, is neither arbitrary nor capricious as an appropriate survey method where the number of items to be considered is large. If not in violation of an express provision of law, statistical sampling is a wholly appropriate basis on which to study a matter under SEQRA, as well as being far less expensive, time consuming and less intrusive to the public. Second, the Nash Petitioners basically and absurdly proposes that a full study of the issue be completed before any preliminary determination be made whether the City was or was not required or appropriate to study such issue in the first place.
While the Nash Petitioners decry the decision to exclude from study the "concerns" of the Nash Petitioners, they also aver that they raised these concerns at public hearing, Nash makes no showing that the other data reviewed by the City in making its decision was flawed or inadequate or how the decision was arbitrary or capricious except for not accepting their views. A generic to a decision not wholly to ones liking objection is an inadequate basis to support an Article 78 challenge.
The remainder of the issues raised by the Nash Petitioners are without merit. Thus, there is no basis to set aside the City's decision to exclude from the EIS the issues the Nash Petitioners claim affect them.
The Nash Petitioners have listed items "which the City would have learned had they conducted a proper survey." Whether or not the City would have learned such facts, such "facts" are either internally inconsistent or clearly irrelevant.
One assertion is that some of the Nash Petitioners have received offers for their property. Was the offer too low (in which case the concerned petitioner could simply reject it) or too high (and is that a complaint or even a showing of an adverse impact?), or even just right. No law prevents bona fide offers from being made to a property owner. No offer requires the offeree to sell, or prevents a manufacturer who owns his building from continuing his use or terminates a tenant's right to continued occupancy and use of the premises through the end of the term of its lease, (including any option periods agreed to by the parties) unless the tenant had expressly agreed to vacate upon sale under the terms of his lease, in which event the tenant had fully assumed such risk and should not be heard to complain. As no change in ownership or tenancy affects the manufacturing use restrictions on the properties owned or leased by the Nash petitioners, there can be no "forcing out" by any person other than the same users who could have at all times previously been located in such areas, i.e. manufacturers and ancillary users.
The Nash Petitioners complain of the lack of possible expansion space, but [*32]have proffered no evidence of aggregate planned expansions by the present industrial owners and tenants in the Area or in the Donut Hole which could not be accommodated. The City moved to rezone the Area because they observed the trend of shrinking demand in the Area for manufacturing space over time, a fact well documented in public records. Such history belies the Nash Petitioners complaint that there will be no room left to expand in the Area. Although the City found industrial activity in the Donut Hole to be continuing, any expectation of expansion out of the Donut Hole to the surrounding Area is also belied by the actual observance of continued shrinkage and abandonment in the Area. Further, by increasing the density of manufacturing uses permitted in the portion of the Area adjacent to the Donut Hole, the Zoning Amendments themselves provide for some expansion. Accordingly, this Court cannot find that Zoning Amendments arbitrarily or capriciously failed to provide more manufacturing expansion possibilities.
The Nash Petitioners also claim they would have serious difficulties in relocating their businesses. As the Zoning Amendments do not change the manufacturing zoning for their locations, no Nash petitioner must relocate by reason of the Zoning Amendments. The Nash petitioners who are property owners will never have to relocate unless they decide to do so voluntarily. As they do not have to vacate, any problems derived by their own decision to vacate voluntarily is no different than problems of a voluntary relocation faced by other manufacturers in general. Under Society of Plastics accordingly, the Nash Petitioners would therefore have no standing to complain about such relocation issue. For the sole Nash Petitioner which is a tenant, its relocation problem at the end of its lease will be no different than those problems it faced before the zoning change. It had no certainty that its landlord would renew its lease, instead of recapturing the rented space itself or for a different user.
Based on the litany of woes expressed by the Nash Petitioners as to the diminution of the desirability of properties in the Donut Hole and the rezoned manufacturing areas for manufacturing businesses, it is not clear that rents would increase anyway. Under the economic rules of the market, rent would only increase if such space became desirable to other manufacturing tenants who would outbid the renting Nash Petitioner who wished to rent expansion space. All Nash Petitioners allege their costs of doing business will increase due to their inability to lure workers, and from existing parking and code enforcement. To the extent such costs did increase as a result of the Zoning Amendments, the rental market for space in the manufacturing areas will be depressed as manufacturers seeing such [*33]increased labor costs will avoid moving into such area making it more likely that a tenant could renew at a favorable rate, thus ameliorating relocation concerns. Their next complaint that the new Zoning Amendments stifle on-site expansion is not cognizable. The rezoned portions of the Area outside of the Donut Hole do provide for expansion by density increases under the Zoning Amendments. In the Donut Hole, any problems of on-site expansion is unaffected by the Zoning Amendments. To the extent any owner feels the zoning is a hardship, such owner is free to pursue a variance, whether or not such variance was sought under the new or the old zoning.[FN26] The Nash Petitioners' complaints about "existing parking and code enforcement" has nothing to do with the Zoning Amendments. As such enforcement is "existing," there is no basis for this Court to consider such an issue in this case.
Thus, as these specific complaints are neither related to zoning nor SEQRA
concerns, the Court will ignore them in considering the issues raised by the parties.
SEQRA requires that an EIS must make available to decision makers in-depth studies of any potential material adverse environmental effects of the proposed action. Here, conceding the issues raised by the Nash petitioners would, under Chinese Staff be "environmental," the City's EIS, did consider such issues and found that the zoning change would not have a potentially materially adverse effect with respect to them. The SEQRA process implicitly recognizes that not all concerns defined as "environmental" will in any particular case necessarily result in a potential materially adverse impact by any actual proposed governmental action. SEQRA does not therefore assume that in any particular preliminary determination related to an action subject to SEQRA all potential areas of environmental interest must be studied and included in that particular EIS.[FN27] The Nash Petitioners acknowledge this two step process, but assert that the action of the City which resulted in a decision not to study the impact on existing manufacturers was taken improperly as such determination was based on "general and secondary [*34]information" and that the City should have, instead, made a building-by-building survey and interviewed public officials and trade associations, and "selected businesses identified in the field survey." As discussed above, the Nash Petitioners cannot prevail on this assertion.[FN28]
AIR QUALITY CLAIMS
Chapter 18 of the EIS addresses Air Quality issues at the Area in thirty four pages of text.
Transgas (but not the Nash Petitioners) challenges the adequacy of the EIS by asserting that the EIS failed to take into account the "fact" that were the Transgas generating facility built, such facility would, as a more modern facility, produce energy in a more efficient and cleaner manner than other existing generating facilities. As a result, Transgas asserts, energy from such plant would supplant energy produced from older, less efficient and dirtier plants and would thus reduce air pollution created in meeting energy demands of the region. Transgas is correct that the EIS does not address the possible impact of Transgas proposed facility. While the EIS recited that it addressed both existing and potential power plants under CEQR Technical Manual requirements that it assess any action that could result in the location of residential development within 1000 feet of a large emission source such as a power plant, the EIS expressly limited its analysis of potential power plants in such section to those which have been already permitted. The City's response is essentially that its decision to exclude non-permitted generating plants in the EIS was neither arbitrary nor capricious. [*35]This Court agrees.
Assuming the validity of Transgas' assertion that the building of a new energy plant improves air quality in general,[FN29] Transgas' argument here raises questions as to the extent a decision maker may limit its scope of inquiry into a particular environmental issue based on whether a plant had been permitted. Without a permit no plant may be built at such site, and the decision to issue a permit is a governmental decision beyond the control of the City.
A somewhat analogous situation was addressed recently in Matter of C/S 12th Ave. LLC v. City of New York, 32 AD3d 1 (1st Dept. 2006) which considered the City's recent rezoning of the west side of Manhattan. In that process, the proposed rezoned area was near to but did not encompass that portion of the rail yards south of the Javitz Convention Center. The Petitioners who objected to the zoning on SEQRA grounds asserted that the EIS had failed to take into account the added environmental impact of the potential construction of the football stadium proposed for such adjacent site, and which stadium site had been included in an earlier version of the rezoning, but which was later excluded. As the State Public Authorities Control Board declined subsequently to authorize public authority financing of such project, the stadium is a practical dead letter. The First Department dismissed a challenge to the zoning on the ground that the City improperly determined as it moved through the SEQRA process, to ignore possibilities which were speculative and required additional governmental consideration (and SEQRA review) for their occurrence. While the proposed west side stadium was located outside of the area rezoned in such case, the Transgas proposed generating facility is located inside the Area. However, the same factors apply, and the Court's finding in Matter C/S 12th Ave LLC. that the stadium was not the center-piece of the west side zoning is similar to the situation here where the proposed generating facility is not the center-piece of the Area rezoning.
To impose upon a City SEQRA review, the need to consider every possible governmental action by a higher government level to authorize some project with [*36]the area being considered, is to encourage a never-ending review. Both the State and Federal Government have broad powers to overrule city actions in many areas including but not limited to the location of power plants, post office facilities, military bases and airports. At any time, proposals are "floated" for a wide array of possible projects the overwhelming majority of which will never be built. To require the inclusion of such "blue sky" possibilities would merely add to the arsenal of an opponent of change to conjure some possible (but unrealistic) Federal or State project for the area in question to provide a basis for attack or controversy to prevent a governmental action. Thus, it was neither arbitrary nor capricious for the City to have limited its review of power plants to existing and permitted facilities.
PUBLIC SERVICE LAW ART. X ISSUES.
Transgas also claims the Zoning Amendments violate New York Public Service Law ("PSL") Article X.
Prior to the 2005 Resolutions, Transgas acquired an interest, through options, in the Transgas Property with the view to constructing a one megawatt plus electric generating facility. Subsequently, on December 24, 2002, pursuant to PSL Art. X, Transgas filed an application on with the New York State Board of Electric Generation Siting and the Environment (the "Siting Board") for a Certificate of Environmental Compatibility and Public Need ("Certificate") to permit it to construct such facility. Under PSL Article X, the issuance of a Certificate by the Siting Board is a prerequisite for the construction of any sizeable electric generating facility in the State, and the proposed facility was clearly within such definition.
Article X provides a comprehensive "one stop" siting mechanism for the Siting Board to determine whether a Certificate may be issued for a proposed electric generating facility at a particular proposed site, after considering and balancing all statutorily relevant interests in a single proceeding. Article X was designed to provide a single forum to resolve and balance interests and objections and to foreclose single issue objectants, including local governments, which in a spirit of NIMBY (Not In My Back Yard) often act to prevent adequate power supplies to be available for the citizens of the State or force power plants to be located where they may incur unnecessary additional costs to the rate paying public or present a more adverse environmental impact rather than at locations where the externalized costs of such plants may be properly balanced. To balance these externalities, Article X provides for the supercession of local impediments and an expedited appeal process, directly to the Appellate Division, and a removal from [*37]other courts and State and local agencies of all jurisdiction to consider issues properly before the Siting Board or which may, on appeal from the Siting Board, be before the Appellate Division.
Transgas also asserts that both Resolutions must be voided, at least to the extent that they purport to rezone Transgas' parcel so as to prevent Transgas from proceeding to construct its proposed power plant.
While Transgas has not received its Certificate from the Siting Board, it asserts that it is vigorously proceeding to obtain such certificate. The City, as it has the right, has been opposing Transgas' proposal.[FN30] After a series of initial hearings before hearing examiners, and the negotiation of specific issues, the hearing examiners recommended, on April 1, 2004, that the application be denied. Transgas appealed this recommendation to the Siting Board and offered a series of changes and concessions to its application, and subsequently, on September 15, 2004 the Siting Board issued an order finding Transgas' initial application inappropriate, but authorized Transgas, if it notified the Siting Board within 20 days and filed an amendment meeting the Siting Boards objection, it could continue with the application. Transgas submitted such amendment to its application and its amended application is apparently still sub judice before the Siting Board. As of this date, without a final decision on Transgas' application for a Certificate of Necessity, Transgas' proposal is neither assured nor foreclosed. While the pre-existing zoning would have permitted such construction, the Zoning Amendments do not allow Transgas to construct any generating facility on such site. However, any grant of a Certificate of Necessity would effectively annul such result.
The Zoning Amendments rezoned Transgas' site as a park. Under law, its pre-existing use (as a fuel storage tank form) may be maintained but any new use would have to comply with the Zoning Amendments.
The City on July 19, 2006, commenced a proceeding under the Eminent Domain Procedure Law ("EDPL") to condemn Transgas' site for a park. Transgas countered with an action to enjoin the City from proceeding to condemn the site, claiming that the City was attempting to circumvent and forestall Transgas' application under Article X by seizing its site.
Perspicaciously guessing, on the basis of the City's objections to Transgas' [*38]proposal filed with the Siting Board, that the City might attempt such a tactic, Transgas organized an affiliate, TESC, under New York Transportation Corporation Law ("TCL")[FN31] to commence a condemnation proceeding under TCL §33, making the initial publications and holding the hearings as required under such section. The City parried by commencing yet another proceeding in the Appellate Division, Second Department, under the New York Eminent Domain Proceedings Law ("EDPL") §207 to enjoin TESC from acquiring the Transgas Site by condemnation, seeking a preliminary injunction against Transgas and TESC. TESC riposted by commencing a proceeding in Supreme Court, Kings County on October 24, 2005, also under the EDPL §204, to file a map to complete its acquisition of the site. On November 4, 2005, the Second Department denied the City's motion for a preliminary injunction. During the pendency of these cases before the Second Department, Transgas commenced this proceeding on September 2, 2005.
Following the City's action to condemn its site Transgas responded by cross-moving to dismiss the City's condemnation action. After issue was joined in such condemnation action, the Supreme Court, Kings County (per Gerges, J.), In re Application of City of New York (Bushwick Inlet Part 1), Index No. 22246/05 December 14, 2005, after considering Article X and its predecessor, PSL Art. VII and their legislative histories, found that it lacked jurisdiction to decide many of the issues raised, citing PSL §171 which expressly removes the jurisdiction of all Courts other than the Appellate Division or the Court of Appeals "to hear or determine any matter, case or controversy concerning any matter which was or could have been determined in a proceeding under this article or to stop or delay the construction or operation of a major electric generating facility [FN32] except to enforce compliance with this article or the terms and conditions issued thereunder."
Further, Justice Gerges also noted that the City was also barred from proceeding in its condemnation proceeding while the Siting Board was considering the matter, citing PSL §172(1), which states:
"Notwithstanding any other provision of law, no state agency, municipality [*39]or any agency thereof 2005, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed."
As a result, Justice Gerges stayed the City's condemnation proceeding pending a determination by the Siting Board.
This Court concurs with Justice Gerges' decision reasoning in Bushwick Inlet Phase I and will apply the same principles here. As Transgas' application for a Certificate of Necessity is still pending before the Siting Board which has the power to preempt local laws to the extent it finds them violative of the thrust of PLS Art. X, (including the Zoning Amendments here) this Court has no jurisdiction to intervene, either by finding for or against the City or whether either Resolution interferes with Transgas' plan to construct its proposed power facility. The Siting Board will initially make that determination, subject to an appeal by any adversely affected person to the Appellate Division and perhaps the Court of Appeals, which have the sole jurisdiction to consider such issues.
Subsequently, in Matter of City of New York v. Transgas Energy Services Corp.,AD3d, 824 NYS2d 138 (2nd Dept. 2006), the Second Department annulled the map filed by TESC holding:
"where a party has applied for permission to construct and operate a major electric generating facility pursuant to PSL [Pub. Serv. L.], Article X, it may not commence a condemnation proceeding pursuant to the EDPL unless and until it receives a certificate of environmental compatibility and public need from the Siting Board and the determination of the Siting Board supersedes and obviates a determination and findings made pursuant to EDPL, Article 2. Therefore TESC's determination and findings are void, as a matter of law."
As Justice Gerges stayed the City's condemnation proceeding of the Transgas site, and as the Second Department has now stayed Transgas cross condemnation of such site, no further action need be taken by this Court to maintain the status quo.
As the status quo is maintained, Transgas' argument that this Court must act to prevent a circumvention or usurping of the Siting Board's role, has been rendered moot. The Zoning Amendments will not impact the Siting Board's determination by either reason of law or of fact. If the Siting Board decides that Transgas' generating facility is proper for the Transgas site, it will do so and the zoning will be irrelevant. The staying of both condemnation actions until the [*40]Siting Board's decision is issued means that there will be no practical physical change to the site until that time, thus preventing any "facts on the ground" from influencing any decision of the Siting Board.
Transgas' citation to Consolidated Edison Co. Of New York, Inc. v. Town of Red Hook, 60 NY2d 99 (1983) does not change this conclusion. In that case, the Town of Red Hook had adopted a measure designed to prevent Con Edison from building a power generating plant in Red Hook shortly after learning of Con Edison's plans to do so, but before Con Edison filed its application with the Siting Board. As a result, the Supreme Court had presumptive jurisdiction, as a Court of general jurisdiction, to resolve the controversy, as there was no proceeding Article X pending before the Siting Board. Here, an application to the Siting Board is pending and it is that pending application which deprives this Court of jurisdiction on the matter, leaving any determination of the controversy to be rendered by the Siting Board and thereafter by the Appellate Division.
Finally, because jurisdiction is removed from localities under Art. X to consider a proposed plant, the decision to exclude the proposed, uncertificated plant, in considering air quality issues may not only have been not arbitrary and capricious but would make review by CPC presumptuous and withdraw from this Court the power to consider such issue. PSL §171. The Legislature has determined that the Transgas project, including all environmental issues are to be determined under Art. X. This is consistent with the goal of SEQRA to subject decisions which may have a material adverse environment effect to a balanced governmental review. This Court has no basis to assume that such project will not receive appropriate review in such forum. However, considering both SEQRA and Art. X together, it is clear that neither CPC, the Council not this Court are to be involved in environmental issues as they relate to the Transgas proposal.
By declining to consider Transgas' arguments related to their proposed utility project on the grounds that Article X refers all such matters to the Appellate Division where a Sitting Board proceeding is pending, this Court does not, as it cannot, determine any merits of Transgas arguments to the extent they invoke aspects of their proposed power generating facility including but not limited to its positive or negative environmental impacts. All other objections of the Transgas Petitioners to the Zoning Amendments have been considered and rejected in this Judgment and Order.
Accordingly, it is adjudged that both petitions be and they hereby are Dismissed.
This is the Decision and Judgment of the Court.
[*41]
DATED:DECEMBER 21, 2006
NEW YORK, NEW YORK
Hon. Lewis Bart Stone
Justice of the Supreme Court
Footnotes
Footnote 1: Resolutions 962, 963, 964, 965, 966, 967.
Footnote 2: The Eleven Resolutions were, Resolutions 586 (September 9, 2004), 573 (September 9, 2004), 600 (September 28, 2004), 630 (October 13, 2004), 642 (October 13, 2004), 684 (November 23, 2004), 782 (January 19, 2005), 1003 (May 25, 2005), 1058 (June 23, 2005), 1158 (September 15, 2005), and 29 (February 1, 2006).
Footnote 3: The "Whereas" clauses of the 2006 Resolution explain the Council's intent in adopting such Resolution. Among such clauses were:
"WHEREAS, on May 11, 2005, the Council passed Resolutions No. 962, 963, 964, 965, 966 and 967 (the "Resolutions");
WHEREAS, the Resolutions stated that the Council considered the land use implications and other policy issues relating to the Decisions and Applications;
WHEREAS, the Resolutions stated that the Council considered the relevant environmental issues;
WHEREAS, each of the Resolutions recited the history of the environmental review process undertaken by the Department of City Planning and the City Planning Commission pursuant to SEQRA/CEQR, including the development of the Final Environmental Impact Statement (the "FEIS");
WHEREAS, Resolution No. 962 (L.U. 424), approving Decision No. N 050110(A) ZRK stated the approval was made "on the basis of the Decision and Application";
WHEREAS, the Resolutions were subsequently challenged in the matter of TransGas Energy Systems LLC, et. al. v. City Council, et. al., Index No. 112360/05 (Sup. Ct. NY County) and in the matter of Nash Metalware et. al. V. City County, et. al., Index No. 400331/06 (Sup. Ct. NY County), on the grounds that the Resolutions failed to include a Findings Statement made pursuant to SEQRA/CEQR;
WHEREAS, the Council believes that the Resolutions are procedurally and substantively sufficient to meet the requirements of SEQRA/CEQR;
WEHREAS, the Council received, reviewed and considered the FEIS, with respect to the Applications, along with the Technical Memorandum dated March 2005, with respect to the proposed modification, and the Technical Memorandum dated May 2005 and approved the City Planning Decisions;
WHEREAS, the Council thereby adopted and incorporated the City Planning Commission's Findings Statement in Decision No. N050110(A) ZRK;
WHEREAS, the Council wishes to eliminate any perceived ambiguity in the Resolutions."
Footnote 4: The City has maintained this position throughout the proceeding.
Footnote 5: As this Court has found the Zoning Amendments to be validly adopted, it need not address the issue of appropriate remedies.
Footnote 6: The rule that any lessee of a property located in close proximity to an area whose zoning has been changed has the same presumption of standing as an owner of property so located appears problematic but has apparently not been challenged or discussed in a New York decision. While the Sun-Brite court said "a leaseholder may, however, have the same standing," (Id. at 414) it also said "Sun-Brite's status as a tenant is therefore not an impediment." In fact, Sun-Brite was a long term lessee. Although a long-term lessee's rights to contest zoning changes to a nearby area can neither be gainsaid nor distinguished from the rights a fee owner, as a long-term lessee's interest, as well as legally being (as is any lessee's interest) an interest in real estate, represents an economic interest which may well be effected by the zoning change. The same cannot be said for granting such a presumption of standing to a short-term lessee, whose economic interest in the land and its future is not material.
Footnote 7: ECL 8-0105(6) and CEQR 1(f) define the term "environment" as "the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character."
Footnote 8: See footnote 6.
Footnote 9: Of course, whether the City went far enough to comply with the law governing the requirements for an EIS are separate objections of Petitioners and will be addressed below.
Footnote 10: As well as present an issue of public safety as has been illustrated by a recent major conflagration in an abandoned industrial building in the area allegedly caused by a homeless man.
Footnote 11: Later, recognizing how resolutions are actually prepared by a legislative staff by "cutting and pasting" of precedents, this "error" was sometimes characterized at the hearing as a "paster's error." While both "scrivener's" and "paster's" have probably been replaced by computers, the old terms represent their functional equivalent in the new technology.
Footnote 12:Resolution 1058 of June 23, 2006 sets forth the Environmental Findings in somewhat different language.
Footnote 13: See, E.g. Laws 1946, C. 274, Laws 1947, C. 704, Laws 1948, c. 698, Laws 1949, C. 591, Laws 1950, C. 250, and twenty eight other subsequent laws.
Footnote 14: As many zoning changes are litigated, there is a benefit in not being too creative with language so as to give opponents an additional litigation opportunities to argue that the differently expressed findings were wrong or insufficient, as there had been no Court precedent determining such finding language to be acceptable.
Footnote 15: The resolution of this issue does not affect the other issues raised by petitioners in their challenges to the zoning changes, not relating to the Council Resolutions. They are discussed below.
Footnote 16: The Whereas Clauses express reference to the issue raised by Petitioners in this very law suit which is cited by name cannot make this any more clear. See Footnote 3.
Footnote 17: The Court may take judicial notice that the 2005 Resolutions were adopted prior to the Citywide election of 2005 and the 2006 Resolutions were adopted after such election and after the newly elected members had been sworn and that there was a significant turnover in Council membership at the election, driven in part by term limits.
Footnote 18: Other than citizenship, age, residence and similar non-relevant qualifications to act on environmental issues.
Footnote 19: See e.g., Jackson v. NY Urban Dev. Corp., 67 NY2d 400 (1986)
Footnote 20: See Natural Resources Defense Council, Inc. V. Morton, 458 F.2d 827 (DC Cir. 1972). In this case the DC Circuit derived the concept from earlier Federal Communications Commission cases where decisions of the FCC were challenged on the grounds that it had summarily dismissed applications without giving them serious consideration. Natural Resources Defense Council's language was then imported into New York jurisprudence relating to SEQRA by Lincoln West, Inc., v. City of New York, 94 AD2d 483 (1st Dept. 1983), aff'd, 60 NY2d 805
(1983) which in turn was followed by the Court of Appeals in Jackson v. NY Urban Dev. Corp, 67 NY2d 400 (1986). The United States Supreme Court in Kleppe v. Sierra Club, 427 US 390 (1975) also expressly followed National Defense Council, supra . Kleppe was cited by the Second Department in Aldrich v. Patterson, 107 AD2d 258 (2nd Dept. 1985) which in turn was followed with approval by the Court of Appeals in Jackson, supra . In none of these cases is the term "hard look" defined, except to the extent the earlier FCC cases and National Defense Council has implied that the standard means that the agency must not treat the matter in a trivial or superficial way.
Footnote 21: The Moh's scale defines hardness of minerals on a scale of 1 to 10, with talc being 1 and diamond being 10, with other specific minerals defining the intermediate levels.
Footnote 22: However, it is also clear that not every Involved Agency is a Lead Agency. They have different roles.
Footnote 23: Other than tax legislation in which portions of the Federal Internal Revenue Code may be incorporated by reference. NY Cons. Art. 3, §22.
Footnote 24: The authorization by law of Zoning Changes in the event of Council failure to approve, disapprove or modify a CPC determination within the Charter time limit is some further evidence as to the relative importance placed by law on Environmental Findings by the Council, an Involved Agency. If the Council had not acted, the Charter provides that Zoning Amendments would have become effective. As there would be no Council determination in such a scenario, the Council would not have been required under SEQRA to make Environmental Findings.
Footnote 25: Assuming that there was a reasonable selection of the sample of realtors.
Footnote 26: This Court agreed with Petitioner's observation that a hardship variance may not be granted. However, the failure to grant such a variance may be well caused by there being in fact no hardship, or that the hardship was self inflicted, or for other valid grounds.
Footnote 27: Or for that matter, whether there are any potentially material adverse environmental concerns, in which case, it would be appropriate to issue a "Negative Declaration" and act without preparing an EIS.
Footnote 28: The initial City intention was to rezone the entire Area, possibly including mixed residential uses in the Donut Hole. At that time, at least some of the Nash Petitioners apparently backed the change. When the City's studies determined that manufacturing in the Donut Hole seemed to be healthy, they dropped their intent to rezone the Donut Hole, recognizing that rezoning could encourage landowners in the Donut Hole to eliminate manufacturing uses. From the Nash Petitioners' affidavits, it is apparent that much of their objections is that the City did not rezone the Donut Hole to give them the opportunity to build with a greater density on their site and/or to add residential uses to capture the economic benefits of doing so. In this sense, the primary objection of the Nash Petitioners is that the Zoning Amendments did not rezone their land. As SEQRA is designed to protect the existing environment from changes which may materially adversely affect it, it would have been useless to have opposed the Zoning Amendments on this basis. Accordingly, their attack is on the procedural issues set forth above, hoping that if the Zoning Amendments are set aside, a substituted or new process may accord them the "better" zoning they seek.
Footnote 29: The logic of this argument is unassailable, at least where a new fossil fuel generating facility replaces another. Under the Draft Air Permits issued by the State Department of Environmental Conservation, new generating plants must use the "lowest achievable emissions technologies." Transgas, in support, submitted copies of its own air quality analysis submitted with its Article X application. However, to the extent from that the local grid may draw power from the proposed plant, displacing power from nuclear or hydro generating facilities in the region, air quality in the region would suffer. Whatever other problems nuclear or hydro generating facilities may have they cause far less air pollution than fossil fuel plants.
Footnote 30: Any municipality may participate in the Article X siting procedure to assert its own interests or views. Recognizing that such views may be parochial and not in the best interest of the people of the State as distinct from the people of the complaining municipality, the Siting Board may consider but is not bound by any municipality's assertions.
Footnote 31: The TCR authorizes corporations organized under such law to condemn property necessary for their purposes.
Footnote 32: Defined as an "electric generating facility with a generating capacity of eighty thousand kilowatts or more" PSL §160(2). As Transgas' proposal is for a Megawatt plus size plant, it is clearly within this definition.
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