Union Sq. Community Coalition v New York City Dept. of Parks & Recreation

[*1] Union Sq. Community Coalition v New York City Dept. of Parks & Recreation 2009 NY Slip Op 50641(U) [23 Misc 3d 1109(A)] Decided on March 27, 2009 Supreme Court, New York County Solomon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2009
Supreme Court, New York County

Union Square Community Coalition, Carol Greitzer, Geoffrey Croft, Margaret Gonzales, Marjorie Berk, Edith Shanker, and Louise Dankberg, For judgement pursuant to Article 78 and section 3001 of the Civil Practice Law and Rules, Petitioners,

against

New York City Department of Parks and Recreation, Adrian Benepe, in his Official Capacity as Commissioner of the New York City Department of Parks and Recreation, the City of New York, New York City Department of Buildings, and Union Square Partnership, Respondents.



105578/08



Petitioners were represented by Reed Super, Esq., 116 John St, Suite 3100, NY, NY 10038, 212-791-1881

City Respondents were represented by Ramin Pejan, Esq., Assistant Corp Counsel, NYC Law Dept, 100 Church St, NY, NY 10007, 212-788-1586

Respondent Union Square Partnership was represented by Eric Seiler, Esq., of Friedman, Kaplan, Seiler & Adelman, LLP, 1633 Broadway, NY, NY 10019, 212-883-1100

Justice Solomon can be reached at (646) 386-3181; her address is New York State Supreme Court, 60 Centre Street, Room 647, New York, NY 10007.

Jane S. Solomon, J.

Motion sequence numbers 003 and 004 are consolidated herein for disposition. The background of this matter was set forth in the Decision and Order of motion sequence number 001 (see Union Square Community Coalition v New York City Dept. of Parks and Recreation, Index No. 105578/08, filed May 7, 2008), and will be repeated herein only to the extent [*2]necessary to address the pending motions.

Union Square Park, established in 1839, is a 3.593-acre National Historic Landmark located between 14th and 17th Street at the confluence of Broadway, 4th Avenue, Park Avenue South, and University Place, in New York, New York (the Park). This petition involves the plans of the respondents (Respondents) to improve the Park (the Project), including the renovation of its historic pavilion (the Pavilion), and the construction of a comfort station adjacent to the Pavilion with a connected basement. Petitioners do not object to the Project in general, but only to specific facets that touch upon the moving of a seasonal, private, commercial restaurant, which operated south of the Pavilion from 1994 to 2007 under the name Luna Park, largely into the Pavilion (the Restaurant, or the Restaurant Initiative).

Petitioners seek a judgment and order, pursuant to CPLR Article 78, and CPLR 3001 and 6301 declaring that: (i) the Restaurant Initiative would entail unlawful dedication of parkland in violation of the Public Trust Doctrine, and an alienation of parkland requiring legislative approval (first cause of action); (ii) the Restaurant would be in violation of SEQRA (the State Environmental Quality Review Act) due to the failure of Respondents to prepare an EIS (Environmental Impact Statement) or an EAF (Environmental Assessment Form) (second cause of action); (iii) Respondents failed to obtain, as required, a zoning amendment for the Restaurant, in violation of § 11-13 of the New York City Zoning Resolution (third cause of action); and (iv) Respondents failed to comply with ULURP (Uniform Land Use Review Procedure), which is applicable to the restaurant, in violation of §§ 197-c, 197-d, 200, and 201 of the New York City Charter (fourth cause of action).

In motion sequence number 003, Respondent Union Square Partnership, moves, pursuant to CPLR 7804 (f) and 3211 (a) (7), to dismiss the petition on a point of law, or for failure to state a cause of action upon which relief can be granted. In motion sequence number 004, the remaining Respondents (herein sometimes referred to, together with the Union Square Partnership, as "the City") also move, pursuant to the same CPLR provisions, to dismiss the petition; and Petitioners cross-move for summary judgment, pursuant to CPLR 3212.

Respondents, by the submission of detailed facts and arguments (Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782 [4th Dept 2000]), and numerous affidavits in evidentiary support (Nonnon v City of New York, 9 NY3d 825, 827 [2007]), have deliberately charted a course for summary determination (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 319-320 [1st Dept 1987]). In any event, as no triable issues of fact have been raised upon these submissions, the court will summarily determine the matter as described below. CPLR 409 (b).

Public Trust Doctrine/Alienation of Park Land (First Cause of Action)

With more than one quarter of its land dedicated to parks, New York City has staunchly maintained that "[a] park is a pleasure ground set apart for recreation of the public, to promote its health and enjoyment ... [and] no objects, however worthy ... which have no connection with park purposes, should be permitted to encroach upon it without legislative authority plainly conferred ... ." Williams v Gallatin 229 NY 248, 253 (1920); accord Friends of Van Cortlandt Park v City of New York, 95 NY2d 623, 630 (2001). Petitioners maintain that this Public Trust Doctrine would be violated by diverting the use of the Park Pavilion from unspecified park purposes to [*3]non-public use as the Restaurant. See Matter of Angiolillo v Town of Greenburgh, 290 AD2d 1, 10 (2nd Dept 2001), lv denied 98 NY2d 602 (2002) (public trust doctrine restricts any alienation of dedicated parkland owned by a municipality without specific approval by the legislature).

Petitioners suggest that the City is urging a "blanket rule that all restaurants are consistent with park purposes at all times and ... the Parks Commissioner has carte blanche to establish a private commercial restaurant in any City park whenever he so chooses." For purposes of this proceeding, the court does not, and need not, interpret the City's argument so broadly. The operation of a seasonal restaurant in this Park is not a new use, but a modification of an existing use. Compare Village of Croton-On-Hudson v Westchester County, 38 AD2d 979, 980 (2nd Dept), affd 30 NY2d 959 (1972) ("we think the long-continued use of the land for park purposes constitutes a dedication and acceptance by implication"); see also 81 NY Jur 2d, Parks, Recreation, and Historic Preservation § 37.

It is undisputed that the area south of the Pavilion, occupied seasonally by Luna Park in the period from 1994 to 2007, has been used as a restaurant. As such, there is no need of a "blanket rule" to determine that a restaurant at this location serves a public purpose. Rather, the renewal of a permit for Luna Park to operate at this location for the thirteen years prior to undertaking the renovation is an indication that an eating establishment in this Park, at this location, is consistent with public purposes. Indeed, a reason for situating a restaurant in the Pavilion is that the outside area Luna Park had used is being converted for use as an expanded playground.

The New York City Charter vests the Parks Commissioner with broad power to: (i) "maintain buildings and structures now or hereafter erected or established in any park, square, public place or playground under his or her jurisdiction" (NY City Charter § 533 [a] [6]); (ii) "prepare plans for the establishment and improvement of" the parks (id., § 533 [a] [2]); and (iii) "establish and enforce rules and regulations for the use ... of public parks" (id., § 533 [a] [9]). Thus, the Charter vests the Commissioner with the power to renovate the Pavilion and construct a comfort station for the Restaurant Initiative.

Petitioners point to a series of cases allegedly indicating that the Restaurant Initiative will lead to an alienation of the Park's land. However, none of those cases indicate that the Restaurant would be an inappropriate use of the Park's land, nor do they address, as is the case here, the renovation of an existing structure to include the Restaurant. See Gushee v New York, 42 App Div 37, 40-41, 45-46 (1st Dept 1899) (executing a contract by which City grants the privilege of maintaining a restaurant in a public-park building is an allowable private, and not a governmental, function); Williams v Hylan, 126 Misc 807, 809-810 (Sup Ct, NY County), affd 217 App Div 727 (1st Dept 1926) (erection of new structures with irrevocable estate or interest in the park land is enjoined); Blank v Browne, 217 App Div 624, 628 (2nd Dept 1926) (where city does not lose control of parkland, and may oust licensee on a moment's notice, there is no alienation of the city's property under the Public Trust Doctrine); 795 Fifth Ave. Corp. v City of New York, 40 Misc 2d 183, 185-187 (Sup Ct, NY County 1963) (construction of a new pavilion, if not suited to park purposes, is subject to judicial review).

SEQRA EIS and/or EAF Requirements (Second Cause of Action)

In the second cause of action, Petitioners claim that under SEQRA (the State [*4]Environmental Quality Review Act), Respondents were required to prepare an EIS (Environmental Impact Statement) or an EAF (Environmental Assessment Form), and have failed to do either. SEQRA requires that governmental agencies consider, and prepare an EIS or EAF for, any non-exempt actions that may have a significant effect on the environment. 6 NYCRR § 617.1; ECL §§ 8-0105(2)-(3), 8-0109(2); see also Chinese Staff and Workers Assn. v City of New York, 68 NY2d 359, 364-65 (1986). Exempt, or "Type II," actions include "construction or expansion of a ... facility involving less than 4,000 square feet of gross floor area and not involving a change in zoning or a use variance" (6 NYCRR § 617.5 [c] [7]), and "rehabilitation ... of a structure or facility, in kind, on the same site" (6 NYCRR § 617.5 [c] [2]) (Type II Action).

The City maintains that the renovation of the Pavilion, and construction of an adjacent comfort station with basement is not subject to SEQRA, under the Type II Action exemption. Petitioners argue that the meaning of the 6 NYCRR § 617.5 (c) (7) is that the square footage of the Pavilion is to be added to the square footage of the proposed connected comfort station, and the total must be under 4000 square feet in order to qualify for the exemption. This interpretation does not fit the plain meaning of the regulation. The regulation is meant to equally apply to a construction or an expansion of 4000 square feet. If either the construction or the expansion itself is greater than 4000 square feet, an EIS would be required.

Petitioners' argue that not aggregating the square footage of the resulting structure to determine whether the threshold has been exceeded would result in preposterous outcomes; for example, a developer could attach a 3000-square foot hospital to the Empire State Building without an EIS. This argument is misplaced. First, the regulation explicitly excludes matters involving zoning change or variance. Second, it is apparent that this very possibility, i.e. potential improper segmentation of projects in order to avoid having to comply with SEQRA, was considered and voluntarily hazarded by the Department of Environmental Conservation (DEC) in formulating the regulation. See DEC Final Generic Environmental Impact Statement on the Proposed Amendments to the State Environmental Quality Review Act (SEQRA) Regulations, 6 NYCRR Part 617, at 26 (discussing whether the wording of the regulation may lead to segmentation). Finally, it is apparent that the DEC meant for thresholds given in this section to apply to new construction and expansion, and not to related renovations or existing structures. See id. at 17 (thresholds under 617.4 apply to the new construction or expansion "which is the subject of the application"), and 28 (threshold for 617.5 [c] [7] is for new construction); see also Ginsberg and Weinberg, Environmental Law and Regulation in New York, § 4:5, at 280 (limitation applies to the new construction of small facilities); Gerrard, Ruzow, and Weinberg, Environmental Impact Review in New York, § 2.01 (3) (b), at 2-10 to 2-11 (as small construction projects are generally subject to negative declarations, the purpose of provision is to allow construction or expansion of 4000 square feet or fewer to be handled at the local site plan review level).

Here, the proposed new construction is 2550 square feet. The Project is subject to designation as, and has been designated, a Type II Action. Therefore, it is exempt from further SEQRA requirements, including the filing of an EIS or an EAF.

Violation of the New York City Zoning Resolution § 11-13 (Third Cause of Action) [*5]

Petitioners argue that Respondents failed to obtain, as required, a zoning amendment, in violation of § 11-13 of the New York City Zoning Resolution. That section provides that, "[i]n the event that a public park or portion thereof is sold, transferred, exchanged, or in any other manner relinquished from the control of the Commissioner of Parks and Recreation, no building permit shall be issued, nor shall any use be permitted on such former public park or portion thereof, until a zoning amendment designating a zoning district therefor has been adopted by the City Planning Commission and has become effective after submission to the City Council in accordance with the provisions of Section 75-00."

The Petitioners base this cause of action on the City's work permit application for the Pavilion, which proposes Zoning Use Group 6 (Group 6 includes eating and drinking establishments). Petitioners maintain that the application gives rise to an obligation to obtain a zoning amendment for the Pavilion. This argument is unavailing. The plain language of the provision Petitioners cite is that "[d]istrict designations indicated on zoning maps do not apply to

public parks." NYC Zoning Resolution § 11-13. No amendment is required unless there is a relinquishment of control of the Park or Pavilion. There is no indication that the City has relinquished control of the Park or Pavilion as of this proceeding.

Moreover, although there are indications that the City plans to create a concession in the Pavilion, no such final determination has been made. Matter of Town of Coeymans v City of Albany, 237 AD2d 856, 857 (3rd Dept), lv denied 90 NY2d 803 (1997); see also CPLR § 7801 (1). Should a concession agreement come to pass that relinquishes control of the Pavilion, a zoning amendment may then be required. In the meantime, the claim is unripe at best, and without basis at worst. See Employers' Fire Ins. Co. v Klemons, 229 AD2d 513, 514 (2nd Dept 1996) ("[i]f a decision rendered by the court might ultimately prove to have no effect on the substantial rights of either party the complaint should be dismissed") (citation and internal quotation marks omitted).

ULURP Compliance (New York City Charter Violations) (Fourth Cause of Action).

Petitioners also argue that Respondents failed to comply with ULURP (Uniform Land Use Review Procedure) rules, and violated §§ 197-c, 197-d, 200, and 201 of the New York City Charter. This cause of action rests on three propositions. First, Petitioners maintain that the proposed Restaurant requires an EIS, and is thus a "major concession" under section 374 of the Charter and 62 RCNY § 7-01. However, as herein determined, the Project is a Type II Action which is exempt from the SEQRA/EIS process.

Second, Petitioners assert that ULURP review is necessary for the zoning change that the Parks Department proposed on its work permit. However, as no zoning change has actually been made (or, as noted above, may ever come to pass), and no concession actually has been granted, what Petitioners seek is an improper advisory opinion. New York Pub. Interest Research Group v Carey, 42 NY2d 527, 530-531 (1977) ("courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass") (citation omitted); Siegel, NY Prac § 436 (genuine dispute, or "actual controversy" is indispensable to action for declaratory judgment). Petitioners do not show an actual ULURP violation to date, and therefore a declaration of no violation is appropriate. [*6]

Finally, Petitioners similarly argue that the Restaurant will be a use exceeding the threshold of 62 RCNY § 7-02 (h), without qualifying for an exception under 62 RCNY § 7-03. There being no actual concession agreement, this claim is without foundation, and the City has not violated Uniform Land Use Review Procedure rules, or sections 197-c, 197-d, 200, and 201 of the New York City Charter.

Conclusion

An issue is ripe for judicial review in an Article 78 proceeding only after a determination is final. Town of Coeymans, 237 AD2d at 857; CPLR § 7801(1). The Court of Appeals, in Stop-The-Barge v Cahill (1 NY3d 218, 223 [2003]), established that Article 78 judicial review requires a sufficient predicate beyond preliminary steps in the decision-making process, and a showing that the injury purportedly inflicted by the agency may not be prevented or significantly ameliorated by further administrative action.

This decision, and the declarations below, address the issues pertaining to the present status of the project. It should be noted that the petition relies heavily upon the claim that, through the Restaurant Initiative, the City will enter into a concession agreement that alienates park land, relinquishes control of the Pavilion, and potentially exceeds applicable statutory thresholds. That specific claim is not ripe because a final determination for use of the Pavilion is subject to further administrative process. Accordingly, it hereby is

ORDERED that the motion of respondent Union Square Partnership to dismiss the petition (motion sequence number 003) is granted; and it is further

ORDERED that the motion of respondents New York City Department of Parks and Recreation, Adrian Benepe (in his Official Capacity as Commissioner of the New York City Department of Parks and Recreation), the City of New York, and the New York City Department of Buildings to dismiss the petition (motion sequence number 004) is granted; and it is further

ORDERED that the cross motion of petitioners Union Square Community Coalition, Carol Greitzer, Geoffrey Croft, Margaret Gonzales, Marjorie Berk, Edith Shanker, and Louise Dankberg for summary judgment on the petition for a declaratory judgment (motion sequence number 004) is granted to the extent described below; and it is further

ADJUDGED and DECLARED that:

Final determinations to date with respect to the proposed construction, conversion and use of the Pavilion in Union Square Park do not constitute an alienation of park land; and

The proposed renovation of the Pavilion in Union Square Park, and the construction of an adjacent comfort station, is subject to designation as a "Type II" action under the State Environmental Quality Review Act (SEQRA) (6 NYCRR § 617.5), and is exempt from further SEQRA requirements, including the preparation of an Environmental Impact Statement or an Environmental Assessment Form; and

The planning of a seasonal restaurant is not a violation of NYC Zoning Resolution § 11-13; and

Respondents have not violated Uniform Land Use Review Procedure rules, or sections 197-c, [*7]197-d, 200, and 201 of the New York City Charter.

This constitutes the decision, order and judgment of the Court.

Dated: March, 2009

ENTER:

_____________________________

J.S.C.