Matter of City of New York
Annotate this CaseDecided on November 10, 2004
Supreme Court, Kings County
In the Matter of the Application of the City of New York relative to acquiring title in fee simple, where not heretofore acquired for the Action No. 1 Sanitation Garage Brooklyn District 3 and 3a
Marcy Housing Tenants Association, et al., Plaintiffs, - against -
against
The City of New York, et al., Defendants.
37905/03
Abraham Gerges, J.
In these actions involving the proposed condemnation of certain property for the purpose of constructing a municipal sanitation garage, the City of New York (the City) moves for an order striking the amended verified answers of respondents 60 Nostrand Avenue LLC (60 Nostrand) and Congregation Adas Yereim (the Congregation)(collectively referred to as respondents), based upon their alleged failure to set forth a meritorious defense (Index No. 37905/03)(Action No. 1 or the Condemnation Action). In a related action (Index No. 8828/04)(Action No. 2 or the Community Action), plaintiffs Marcy Housing Tenants Association (the Tenants Association), Yeshiva Bnei Shimon Yisroel (Yeshiva), Hygrade Glove & Safety Company (Hygrade), AM & G Waterproofing, LLC (AM&G), Tuv-Tam Corp. (Tuv-Tam), Golden Flow Dairy (Golden Flow), Flushing Management, LLC (Flushing), Aaron Rottenberg and Samuel Rottenberg (collectively referred to as the plaintiffs) move for an order preliminarily enjoining the defendants New York City Department of Sanitation (DOS), New York City Department of City Planning (DOP) and the City (collectively referred to as the City defendants): (1) from expending any further monies in connection with the construction of Brooklyn Community District (CD) 3/3A Garage (the Project) at Block 1718, Lots 1 and 15 (the Site); (2) from proceeding in the acquisition of the Site, and (3) from taking any further action in the Project to construct the sanitation garage. The City cross-moves for an order, pursuant to CPLR 3211 (a) (5) and (a) (7) and 7804 (f), dismissing the amended verified complaint and petition in Action No. 2 on the grounds that it fails to state a cause of action and that it is barred by the Statute of Limitations. The two actions are consolidated only for the purpose of the disposition of [*2]the above motions and cross motion and the same decision will be entered in each action.[FN1]
The Proceedings
The instant dispute concerns the proposed construction of a sanitation garage on the 2.46 acre Site, which is bounded by Warsoff Place, Park Avenue, Nostrand Avenue and Flushing Avenue in Brooklyn, and the condemnation of the property upon which it will be built. Lot 1, 60 Nostrand Avenue, in the southern portion of the Site, is owned by 60 Nostrand and is currently occupied by the Monroe Bus Company (the Bus Company)[FN2]; the company recently constructed a new garage to house 20 buses and 10 cars. Lot 15, 48 Sandford Street/Warsoff Place, in the northern portion of the site, is currently vacant, is owned by the Congregation, and was allegedly intended to be developed as a residential dwelling and a yeshiva.
By notice of petition and petition filed on October 10, 2003, the City commenced the Condemnation Action seeking to acquire title to the Site. By verified amended answers dated December 18, 2003, 60 Nostrand and the Congregation interposed 11 affirmative defenses.
Plaintiffs commenced the Community Action on March 26, 2004, simultaneously with the filing of the order to show cause seeking a temporary restraining order. The Tenants Association is an organization representing the tenants of Marcy Houses, a housing development operated by the New York City Housing Authority, which consists of 1,705 units and over 5,000 tenants and is located approximately 400 feet from the Project. Yeshiva operates a religious school directly opposite the Site, approximately 25 feet away.[FN3] Several businesses located within one block of the Project are also joined as plaintiffs, including Hygrade, which sells industrial safety products and employs approximately 50 people; AM&G, which sells home improvement products and employs approximately 300 people; Tuv-Tam, which supplies products to nursing homes and employs approximately 75 people; and Golden Flow, which delivers dairy products from an upstate dairy. Flushing operates two residential buildings in the area, one of which has 69 apartment units and the other of which has 12 units. Aaron Rottenberg and Samuel Rottenberg are residents of the community who live one block from the Project; Samuel attends the Yeshiva.
Following oral argument on March 31, 2004, the court denied plaintiffs' application for a temporary restraining order and the parties agreed to a schedule for the submission of additional papers. By order dated July 22, 2004, on the consent of the parties, plaintiffs were granted leave [*3]to serve an amended complaint and petition.[FN4]
Facts
As is required pursuant to the Uniform Land Use Review Procedure as set forth in the New York City Charter § 197 - c (the ULURP),[FN5] DOS and the Department of Citywide Administrative Services (DCAS) filed an application on June 20, 2000 with the New York City Planning Commission (CPC) for site selection and acquisition of the property for use as a garage serving CD 3 (application no. 000648PCK)(the Application). The Application indicated that the currently utilized sanitation facilities were undersized; that the new facility will have 12 employees on-site and 54 off-site between 7:00 AM and 3:00 PM, and 18 additional employees on other shifts; that it will house 70 vehicles [FN6]; and that it will have 50 additional parking spaces. The narrative annexed to the application form indicated that the Project will be sufficient to store 75 vehicles and that a 123 space enclosed accessory parking area will occupy the second floor; that the facility will include a six bay mechanic's area, an internal vehicle wash area, and office and personnel space; and that access will be gained from Sandford Street. The Application designated the Project as Type I pursuant to the New York State Environmental Quality Review Act (SEQRA) and the New York City Environmental Quality Review procedures (CEQR)[FN7] and [*4]further explained that the new facility was needed to enhance service in CD 3 and to relocate the burden that had been placed on CD 1. The Application also identified and discussed the surrounding uses of property, with specific mention made of the Bus Company and Marcy Houses.
In connection with the filing, the City defendants caused HydroQual, Inc., to analyze the effect that the Project will have on traffic, air and noise in the area (the HydroQual Study). In its report dated February 2001, HydroQual reviewed the purpose to be served by the Project, the existing facilities, and the current conditions in the area.[FN8] In addressing traffic concerns, HydroQual noted that all DOS vehicles will que on internal driveways when refueling, that automatic traffic recorders were placed at 14 intersections for a one-week period, that field studies were conducted in November 1998 and April 1999, and that DOS planned to employ the same 65 persons currently employed in the facilities serving CD 3. After considering future traffic conditions with and without the Project, including the projected uses and schedules for the DOS vehicles to be housed there, HydroQual concluded that no significant traffic impacts will be experienced as a result of the proposed Project.
In addressing air quality, in reliance upon the CEQR Technical Manual, HydroQual determined that none of the intersections within the study area will exceed the criterion of 100 induced vehicle trips during any hour, so that there will be no significant impact on air quality after implementation of the proposed Project. After discussing both the PM2.5 and the PM10 standards utilized to measure air quality, and emphasizing that the proposed action involves the relocation of an existing garage, so that the effect on traffic will be primarily one of a redistribution of truck traffic that is already on the road, HydroQual concluded that the Project will not result in any significant impact on air quality.
In addressing noise, HydroQual applied the L10 standard set forth in the CEQR Technical Manual and the four categories of noise acceptability established by the City's Department of Environmental Protection. After calculating future noise levels both with and without the Project throughout the affected area, the Study found noise levels in the immediate vicinity of the sanitation garage were expected to increase sufficiently to require
a more rigorous review in accordance with the Traffic Noise Model developed by the Federal [*5]Highway Administration. After monitoring receptor sites that were subsequently located at 113 Sanford Street and at 18 Warsoff Place (the Yeshiva), HydroQual determined that the incremental noise from the Project will be within acceptable limits and that the Project will not result in a significant noise impact.
In addition, DOS, working with DCAS, prepared and filed an "Analysis Under the Criteria for the Location of City Facilities, Relocation of the Department of Sanitation Brooklyn Community District 3/3A Garage" (the Relocation Analysis), which was filed with CPC on July 16, 2001. The report noted that since 1945, DOS maintained the sanitation garage for CD 3 in CD 1, at 306 Rutledge Street; since 1973, DOS also occupied the adjacent Brooklyn 3A Broom Depot, located at 314-320 Rutledge Street, and an open parking area at 307 Rutledge Street. DOS contended that construction of a new sanitation garage was necessary because the buildings currently used were in poor condition and could not accommodate the operations and vehicles assigned to District 3, and that, as a result, DOS vehicles were being stored on local streets. In addition, the report noted that the current garage is located on a narrow street, adjacent to a six-story apartment building and a supermarket; several schools, both public and private, are located one block away. Further, the report indicated that the neighborhood in which the facilities are currently located have changed dramatically over the past 50 years, with the uses immediately to the west and south being residential.
As is also relevant here, the Relocation Analysis specifically noted all existing uses within a 400 foot radius of the Project, including the Yeshiva, Marcy Houses and the Bus Company. The report also indicated that the facility will not significantly affect traffic or the character of the neighborhood; that the sanitation garage is an accepted use for the Site, as zoned; that the Site is sufficiently large to store all of the DOS equipment assigned to CD 3; that the Borough President recognized the need for the new facility, but neither he nor the Community Board proposed a suitable alternative site; and that while District 1 houses four DOS garages, a marine transfer station and dozens of private transfer stations, CD 3 houses no major DOS facilities. The report thus concluded that in view of the limited availability of manufacturing zoned sites in CD 3, the proposed Site is the only property within the District that can provide a cost-effective delivery of services.
In July 2001, DOS prepared an Environmental Assessment Statement (the EAS) for the Project, which described the need for a new facility so as to "provide residential refuse collection, street cleaning, recycling and street salting/plowing services" to CD 3. It also described the sanitation garage currently in use and the area surrounding the Project, with specific reference made to Marcy Houses and the Yeshiva, and indicated that the Project will involve 75 DOS vehicles, 123 cars owned by employees and 126 workers and will operate 24 hours per day, seven days per week. It further noted that the facility will include seven underground storage tanks for gasoline, methanol, motor oil and hydraulic fluids; that the sanitation garage is expected to be constructed between April 2002 and April 2005; that the
Site is zoned for industrial uses; that the Project will create no substantial socioeconomic changes within the area; that access will be gained from Warsoff Place, although another entrance/exit will be located on Nostrand Avenue; that the Project will not add substantial vehicular traffic to the area; and that air quality will not be significantly affected. [*6]Following these reviews, a Negative Declaration was issued on July 20, 2001.[FN9] The Negative Declaration noted that the Site is appropriately zoned for use as a sanitation garage, which will house personnel and equipment, including 75 DOS vehicle parking spaces on the first floor and 123 accessory parking spaces for DOS personnel on the second floor, six mechanic's repair bays, an internal vehicle wash area, office space, and lockers, so that the facility will be large enough to house all of the DOS equipment used in CD 3. It further noted that the sanitation garage will operate 24 hours a day, seven days a week, between 6:00 AM and 3:00 PM; that after relocation of the garage into CD 3, DOS trucks will be expected to use the same routes as they currently did, so that there will be no change in the generation of traffic; and that all access will be from Sandford Street/Warsoff Place, away from the residential zone.
In addition, CPC certified the Application as complete and referred it to Community Board 3 and to the Brooklyn Borough President in accordance with Article 3 of the ULURP. On September 10, 2001, Community Board 3 held a public hearing on the Project and by a vote of 31 to 0, with 0 abstentions, adopted a resolution recommending approval of the Application. The minutes of that hearing reveal that Dan Klein, Director of Real Estate for DOS, gave a brief presentation with regard to the Project, informing the audience that traffic will not increase; that the sanitation garage will operate 24 hours a day, 7 days a week, with the bulk of the operations being on the day shift; and that 36 collection trucks, 4 salt spreaders, 14 mechanical brooms and 12 other smaller pieces of equipment are expected to utilize the facility.
After reviewing the Project, the office of the Brooklyn Borough President issued a recommendation on November 14, 2001 approving the Project, subject to several conditions: (1) DOS to provide doors along the Nostrand Avenue and Park Avenue sides of the building for use in emergency situations; (2) DOS to address traffic concerns by working with the Department of Transportation and CD 3 to reverse the direction of traffic on Warsoff Place, switching the main exit and fueling station to the middle of the block, keeping the building set back on Park Avenue, and providing a queing lane for the fueling station; (3) DOS to provide plantings and a decorative fence along Nostrand Avenue; and (4) DOS to supply an enforcement plan to prohibit vehicles owned by DOS and by its personnel from parking on area streets and sidewalks.
On November 7, 2001, CPC scheduled a public hearing for November 21, 2001. After the hearing, by resolution dated December 5, 2001, CPC reviewed the above discussed procedures, reports and applications and approved the Project. The Resolution specifically noted the use of near-by property for residential purposes, including Marcy Houses, and the location of the Yeshiva. The Resolution further reviewed the need for the new facility; the size, character and operating expectations for the sanitation garage; the Application; the EAS; the Negative Declaration; the Community Board hearing and approval; and the Borough President's recommendations.
In addition, the Resolution summarized the proceedings of the November 21, 2001 [*7]hearing, noting that an attorney for the owners of the Site spoke in opposition to the Project on the grounds that a viable business, the Bus Company, was located there; that the Congregation had previously filed an application with the Board of Standards and Appeals to build a school on the property; and that there were inconsistencies in the environmental review process. A representative for the Bus Company opposed the Project on the grounds that Warsoff Street is too narrow for the operations of DOS and that the Bus Company will have to close its business if the Application were approved. A representative from an environmental firm also spoke in opposition to the Project on behalf of the owners, citing alleged deficiencies in the environmental analysis. Finally, teachers from the Yeshiva opposed the Project because of concerns regarding noise, traffic and air quality and their potential impact on the children's classroom.
The CPC Resolution indicated that the Project was nonetheless approved, noting that the use of the property as a sanitation garage was appropriate, since the Site is zoned M1-2, which allows for such use, and that the area is predominantly developed with manufacturing and warehouse buildings. The Resolution further noted that the current facility was not located in CD 3 and that it is too small, resulting in the parking of DOS vehicles on nearby streets. While the Resolution specifically recognized the proximity of the school to the Site, it noted that the use of the curb cut on Sandford Street will minimize any impact on the Yeshiva.
The Community Action
In their amended complaint and petition, plaintiffs seek: (1) a permanent injunction barring the City from condemning the Site and constructing and operating the proposed sanitation garage, premised upon claims of public nuisance and an alleged violation of General Municipal Law § 51, on the grounds that the City defendants' approval of the Project was illegal, fraudulent and an abuse of discretion as a result of misrepresentations in the Application and in the approval process, including the lack of sufficient funds to build the sanitation garage; the unrealistic representation with regard to the completion date and the conclusion that no significant impact on traffic, air quality and noise will be generated; alleged inconsistencies in the Application, the EAS and the CPC Resolution with regard to the number of employees and the amount of traffic that will be utilizing the facility;[FN10] the failure to properly consider the impact of the Project on the neighborhood and the near-by school; the use of the PM10 standard to measure the impact on air quality, although DOS knew that the more stringent standard of PM2.5 was being implemented; the failure of DOS to consider more appropriate locations; the failure of DOS to consider the claim that the presence of garbage trucks, which will be housed and cleaned in the facility, will cause odors and attract pests in the area; and the alleged failure to give Marcy Houses and/or the Tenants Association notice of the application procedure; (2) a judgment declaring that the EAS prepared with regard to the Project is stale and invalid, so that a new EAS must be prepared; negating the Negative Declaration on the ground that the Project is a "Type I project" that requires an EIS; declaring that DOS must apply its Final Rule Governing Siting, [*8]Hours of Operation, Engineering Reports, and Transportation Plans for Solid Waste Transfer Stations (Oct 14, 1998, § 4-31 [b] [1])(the Siting Rule), which provides that a solid waste facility cannot be located within 400 feet of a school, park or residence; declaring that the EAS prepared by DOS is invalid because it did not measure air quality utilizing a standard of PM2.5; declaring that DOS must prepare a new and more accurate time line for the Project before progressing with construction; declaring that DOS has to prepare a new budget or budget requests for the Project and allocate the funds necessary for acquisition and construction based on current financial conditions; and declaring that the proposed use of the Site for a sanitation garage is no longer compatible with the area; and (3) a judgment pursuant to CPLR article 78 annulling and setting aside the Negative Declaration and the CPC Resolution based upon the above summarized misrepresentations, the alleged failure of the City defendants to provide notice of the approval proceedings to plaintiffs and the failure of CPC to conduct a site inspection prior to issuing its approval of the Project.
After oral argument, in further support of their position, plaintiffs submitted an affirmation from counsel in which they argue that the Siting Rule for the construction of solid waste facilities should be applied to the subject Project, since the sanitation garage "is almost identical (in operations, purpose and impact) to other solid waste facilities." This conclusion is premised upon counsel's allegation that garbage will be stored in trucks at the garage until a later shift comes on duty to take the waste to a private transfer station, thereby generating odors and attracting vermin. Counsel further asserts that inasmuch as the neighborhood changed since the HydroQual Study and the EAS were issued, the City defendants are obligated to incorporate the changes and update these documents pursuant to 6 NYCRR 617. Plaintiffs also submit a recording of the end of the public hearing before CPC on November 21, 2001, wherein the CPC Chairperson is heard to announce that a visit to the Site would be undertaken. Plaintiffs accordingly conclude that since no Site visit was conducted, the proceedings before CPC were never concluded and the hearing was not closed. In the alternative, plaintiffs argue that since notice that the CPC Resolution was adopted was not provided to the Brooklyn Borough President or to CD 3, as is required pursuant to 62 RCNY § 2- 06 (g) (4),[FN11] the Project was never properly approved, their challenges are accordingly not time-barred and the approval process must be commenced again. [*9]
In further support of their assertion that the character of the neighborhood has changed significantly since the EAS was prepared, plaintiffs also submit a second affidavit from Aaron Follman, an officer of Hygrade, in which he asserts that based upon his review of the New York City Department of Buildings monthly statistical reports, vacant lots have been cleared, an additional 2,751 housing units have been constructed in a two to seven block radius of the Project since the Fall of 2001 and another 2,000 units are planned.[FN12] Follman further alleges that countless new service establishments, including restaurants, stores and three new schools have replaced manufacturing sites during this gentrification process, so that the character of the area has become more residential. In addition, on May 9, 2001, 11 blocks were re-zoned to allow for residential use, on which he estimates that no fewer than 25 new housing developments will be constructed.[FN13] Finally, Follman alleges that when no site inspection was conducted by CPC, community residents believed that the project had been abandoned and, in fact, various City officials so informed him and other community representatives.
Robert A. Lo Pinto, a licensed professional engineer, also submits a second affidavit in which he opines that it was inappropriate for DOS to act as the lead agency and that the agency would not have closed the environmental review process if it had been proposed by a private applicant. Lo Pinto further asserts that DOS' use of the 1993 CEQR Manual in preparing its EAS was improper, since the City defendants "must have known" that an amended manual, which was stricter and more comprehensive, was being revised; by memo dated December 24, 2001, DOS required that all CEQR applications be prepared in accordance with the 2001 Manual. Lo Pinto further argues that since DOS knew that implementation of the more restrictive manual, which requires the use of an air quality standard of PM2.5 instead of PM10, was imminent, DOS "should have deferred the sanitation garage application (its own) for the few months to allow the submission to comply with the 2001 CEQR Manual and new standards for its own analysis," particularly since the DOS Commissioner allegedly admitted, in testimony in another case, that a sizable number of garbage trucks do not comply with the PM2.5 standard.[FN14]
In addition, Lo Pinto is of the opinion that the HydroQual Study, which is dated February 2001, improperly utilized a 1998/99 date.[FN15] He further asserts that the Study is fatally flawed for numerous additional reasons, including his claims that it did not take into account the Borough President's plan to use only the entrance/exit on Warsoff Place; it failed to place an automatic traffic recorder on Warsoff Place to measure traffic; it failed to consider that trucks filled with garbage will sit in the sanitation garage for hours until the next shift of employees arrives to take the garbage to a private transfer station; it improperly counted the number of trips to and from the [*10]Sanitation Garage, so that the amount of traffic and the air quality were not properly assessed; it failed to consider that trucks will que up on Warsoff Place, waiting to refuel; and it failed to consider that the sanitation garage was a stationary source of air pollution.
In reply, the City defendants made their cross motion seeking dismissal of the amended complaint and petition. In support thereof, the City defendants argue that plaintiffs' challenges to the SEQRA/CEQR process, to the ULURP and to the Negative Declaration are time barred by the applicable four-month Statute of Limitations. In the alternative, the City defendants argue that plaintiffs fail to assert any claim upon which the desired relief may be granted.
The City defendants also submit an affidavit from Laurence Parnes, the deputy director of DOP, in which he summarizes the steps required to be taken in order to procure approval of the Project under the ULURP and the actions taken by the City defendants to comply with the provisions thereof. Parnes also avers that "[i]t is the long standing policy practice and procedure of the City Planning Commission staff to notify the affected Borough President of any ULURP approval rendered pursuant to Charter § 197 - d" and notes that the CPC Resolution clearly states that "it is filed with the Office of the Speaker, City Council, and the Borough President of Brooklyn in accordance with Section 197 - d of the New York City Charter;" a copy of the transmittal letter to the Speaker of the City Council is annexed to the papers.
In an affidavit from Nelson M. Stoute, the Chairperson of the Environmental Protection and Sanitation Committee for CD3 since September 10, 2001 and a member of Community Board 3 since June 5, 2000, Stoute summarizes his involvement in and knowledge of the approval process. More specifically, Stoute alleges that at the September 10, 2001 meeting of CD 3, a brief presentation with regard to the project was made and the Board unanimously voted to approve the Application. At the October 1, 2001 meeting, Stoute announced that the Brooklyn Borough President was going to hold a public hearing in his office on October 4, 2001 to address the Application. Stoute also alleges that he spoke in favor of the Project at CPC's public hearing on November 21, 2001 and that as a member of Community Board 3, he kept the Board apprized of the progress on the Project.
The City defendants also annex copies of print outs dated September 26, 2001 from the New York State Department of Environmental Conservation website that published notice of the Negative Declaration. In addition, they provide copies of those portions of the City Record for November 7, 8, 9, 13, 14, 15, 16, 19, 20 and 21, 2001 which published notice of CPC's public hearing on the Project, along with proof of publication in the Comprehensive City Planning Calendar on November 7 and December 5, 2001.
In opposition, plaintiffs submit a letter from Klein, to Andrew S. Lynn, as the executive director of the DOP, dated December 14, 1994 (the Klein Letter).[FN16] Therein, in commenting on ten alternative sites for the relocation of the sanitation garage, Klein stated that the Site is an "[u]ndeveloped 60,000 square foot site located across the street from Marcy Housing. CD 3 [*11]rejected site because of perceived impact on neighboring residential zones."
The Condemnation Proceeding
With respect to the Condemnation Proceeding, the City moves to strike respondents' amended answers and for a judgment transferring title of the Site to it in fee simple, arguing that all of the affirmative defenses raised are without merit. In its answer, the Congregation seeks dismissal of the petition on the grounds that: (1) the City did not serve the petition upon the holder of a long term lease; (2) although the cost of the Project is expected to exceed $57,000,000, only $8,500,000 was budgeted in the 2003 fiscal budget, so that the DOS has insufficient funds for construction; (3) the City failed to meet CPC's deadline of pre-certification and failed to follow the procedures required under ULURP; (4) the City did not accurately disclose the proposed uses of the Site or the environmental impact of the Project; (5) the City improperly issued a Negative Declaration in order to avoid preparing and issuing an EIS, and hence avoided the need to disclose the impact of the Project on a school directly across the street, on traffic patterns, and on air quality; ignored that the surrounding area had been approved for re-zoning; and knowingly withheld information; (6) the City seeks to vest itself with 10,612 square feet of property that will not be used in connection with the Project, so that the taking violates respondent's due process rights; (7) the statutory scheme under which the property is sought violates the New York State constitution; (8) the City failed to provide notice and to conduct hearings as required pursuant to the Eminent Domain Proceedings Law (EDPL); (9) the City failed to give sufficient notice of the Project to affected persons, so that the public was denied the opportunity to review and comment on the Project; (10) the City failed to follow City, state, and federal laws, rules, regulations and requirements; and (11) by reason of the above, respondent's due process rights have been violated.
The affirmative defenses interposed by 60 Nostrand are essentially identical to those pleaded by the Congregation. 60 Nostrand further asserts, however, that the City should be estopped from taking the property that it owns because it acquired said property from the Economic Development Agency (EDA) and was required to use the property for a business. Accordingly, after the acquisition, it mortgaged the property and invested more than $5 million in improvements, including the construction of a 30,000 square foot building that cost several million dollars. Further, the taking of the property will require it to relocate, its 50 employees will lose their jobs and the community will lose the bus transportation upon which it relies.
In opposition to the City's motion, respondents incorporate all of the arguments raised by plaintiffs in the Community Action. In addition, they argue that the City should not be permitted to take the subject property, since just prior to commencement of the Condemnation Action, CPC allegedly approved a zoning change for the area permitting the construction of 70 residential units in the area, contingent upon the execution of a long term lease with the owner of the Nostrand Avenue property. In addition, respondents contend that the taking was improperly motivated by ethnic concerns, since it is designed to ensure that the Hasidic section of Williamsburg does not overtake the Hispanic section. In this regard, respondents argue that a local assemblyman interfered with the ULURP process behind the scenes, to ensure that all opposition to the racial segregation that will result would fail. Finally, the respondents note that the proposal to condemn the land was voted down twice during the past 15 years. Thus, [*12]according to respondents, the City's motivation in taking the property must be examined and respondents should be permitted to conduct discovery before the City is permitted to take title, so that respondents may further explore their claim of bad faith.
Respondents' SEQRA/CEQR Challenges
In addressing respondents' contentions, it is first recognized that "[i]n 1991 the New York State Legislature amended the scope of judicial review under EDPL 207 to include review of compliance with SEQRA" (East Thirteenth St. Community Assn. v New York State Urban Dev., 84 NY2d 287, 296 [1994], motion to amend denied 84 NY2d 974 [1994], citing EDPL 207 [C] [3], as amended by L 1991, ch 356). Thus, respondents properly interposed their SEQRA/CEQR challenges in the Condemnation Proceeding. Inasmuch as respondents adopted the papers and arguments made by plaintiffs in the Community Action, the arguments advanced by both are substantially identical as they pertain to the challenges of the SEQRA/CEQR and ULURP process and both will accordingly be addressed together.
The City Defendants' Claim that the
SEQRA/CEQR and ULURP Challenges are Time Barred
The court agrees with the City defendants' contention that the plaintiffs'/respondents' challenges to the SEQRA/CEQR and the ULURP procedures are time-barred, since the claims were not interposed within four months of issuance of the Negative Declaration or the final approval of the CPC Resolution.
The Law
It is well established that where a complaint concerns noncompliance with SEQRA, the four-month Statute of Limitations that governs CPLR article 78 proceedings applies (Young v Board of Trustees of the Village of Blasdell, 89 NY2d 846, 848 [1996], citing Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]; accord Village of Pelham v City of Mount Vernon Indus. Dev. Agency, 302 AD2d 399 [2003], lv denied 100 NY2d 505 [2003]; Concerned Port Residents Committee v Incorporated Village of Sands Point, 291 AD2d 494 [2002]; Mule v Hawthorne Cedar Knolls Union Free School Dist., 290 AD2d 698 [2002]). The Statute of Limitations begins to run when an administrative agency's "decision-making process with respect to the project was complete and petitioners became aggrieved by the SEQRA violation of which they complain" (Young, 89 NY2d at 849, quoting 6 NYCRR 617.2 [b] [2]), or "'when the agency adopts plans committing itself to a course of action which may affect the environment'" (Lighthouse Hill Civic Assn. v City of New York, 275 AD2d 322, 324 [2000], lv denied 95 NY2d 768 [2000], quoting Matter of Monteiro v Town of Colonie, 158 AD2d 246, 249 [1990]).
Thus, as a general rule, the four-month Statute of Limitations begins to run when a Negative Declaration becomes final (Stop-The-Barge v Cahill, 1 NY3d 218, 223-224 [2003]). There is also authority, however, to support the finding that when a SEQRA determination is subject to ULURP review, the Statute of Limitations begins to run upon the expiration of a 20-day period for "call-up" to the City Council [FN17] (see Throggs Neck Resident Council v Cahill, [*13]290 AD2d 324 [2002]; see also Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480, 480-481 [1988][petitioners' claims, based on an alleged failure to follow the procedural requirements of the ULURP and SEQRA, were time barred under circumstances where the proceeding was not commenced within four months of the resolution approving the site selection and zoning map change, which was the culmination of the allegedly illegal procedures that the petitioners sought to review and which resolution was then final and binding on them]; see generally Gach v City of Long Beach, 218 AD2d 801 [1995][the four-month period of limitation under CPLR 217 was triggered on the date on which the City Council adopted the resolution which awarded the subject beach concession rental]).
Discussion
Herein, the Negative Declaration was issued on July 20, 2001; CPC passed its Resolution approving the Application on December 5, 2001; the CPC Resolution was filed with the City Council on December 6, 2001; and the City Council's 20-day "call-up" period expired on December 26, 2001. Applying the above discussed principles, the Statute of Limitations expired, at the very latest, four months thereafter, on April 26, 2002. Respondents interposed their answers seeking to challenge the SEQRA/CEQR and ULURP proceedings on November 7, 2003 and November 12, 2003 and plaintiffs did not commence the Community Action until March 26, 2004. Accordingly, the challenges as raised by both plaintiffs and respondents were not commenced within the applicable four-month Statute of Limitations and are time-barred, even if the latest permissible date from which to start the running of the Statute of Limitations, or December 26, 2001, is applied to all phases of the SEQRA/CEQR and the ULURP review process.
Plaintiffs'/Respondents' Attempt to Extend
the Statute of Limitations is Unpersuasive
In so holding, the court finds that the arguments raised by plaintiffs/respondents in an attempt to establish that the Statute of Limitations does not bar the instant action are without [*14]merit. In this regard, the assertion that ULURP approval was rushed through in the wake of the terror attacks on September 11, 2001, so that the public was "deprived of the opportunity to participate in the environmental review procedure" is specious. Although the approval process was in its final stages at the time of the attacks, the process had been started years before, with the preparation of the HydroQual Study, the Relocation Analysis and the filing of the Application. Moreover, plaintiffs/respondents cannot convincingly argue that the events of September 11, 2001 should excuse their failure to interpose their challenges to the administrative procedures until late 2003 and early 2004, well over two years later.
Similarly, the failure of the Commission to make a Site inspection will not serve to toll the Statute of Limitations. Most significant in this regard is that SEQRA/CEQR and the ULURP do not require that CPC conduct a site inspection during the approval process. Further, plaintiffs'/respondents' claim that the Chairperson's comments at the November 21, 2001 public hearing with regard to conducting a site inspection obligated the Commission to do so cannot withstand scrutiny. The recording of the relevant portion of the hearing submitted to the court reveals that the Chairperson unequivocally stated that the matter was closed and that additional filings could be made within ten days; the next matter on the calendar was then called. The Chairperson then commented that "I think that we will make a visit;" he did not state that the matter was reopened or that the final approval would await a site visit. Hence, it will not be concluded that the Chairperson extended the closing date on the matter or created any other confusion.
In addition, plaintiffs'/respondents' claim that the City defendants should be equitably estopped from proceeding on the Project because they relied upon both the Chairperson's representation that a Site visit would be conducted and the statements of certain City officials to community residents that the Project had been abandoned must also fail. As a threshold issue, it is well settled that estoppel is generally unavailable against a municipality or governmental entity (see e.g. Gelbard v Board of Zoning Appeals, 238 AD2d 419, 420 [1997], citing Matter of Parkview Assocs. v City of New York, 71 NY2d 274 [1988], cert denied 488 US 801 [1988]; Matter of Gross v New York City Health & Hosps., 122 AD2d 793 [1986]). Moreover, even if this were not the case, plaintiffs/respondents have failed to demonstrate entitlement to invoke the equitable doctrine:
"A defendant may be estopped from pleading the Statute of Limitations where a plaintiff was induced by fraud, misrepresentation, or deception to refrain from timely commencing an action (Simcuski v Saeli, 44 NY2d 442, 448-449; Phelps v Greco, 177 AD2d 559; Ramsay v Bassett Hosp., 113 AD2d 149, 153). . . . Equitable estoppel will not toll a limitations statute, however, where a plaintiff possesses '"timely knowledge" sufficient to place him or her under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable Statute of Limitations' (McIvor v Di Benedetto, 121 AD2d 519, 520)."
(Gleason v Spota, 194 AD2d 764, 765 [1993]).
Herein, plaintiffs/respondents fail to allege and/or establish that the Chairperson's [*15]statement with regard to a Site inspection, or that the comments that were allegedly made by City officials regarding the abandonment of the Project, were intended to induce them to delay commencing a timely proceeding by fraud, misrepresentation, or deception.[FN18] Moreover, neither plaintiffs nor respondents offer any explanation or reason for their failure to inquire as to why no Site inspection was made or if the matter would remain open until an inspection was conducted.
It must therefore be concluded that although plaintiffs/respondents were put on notice that they had a duty to inquire as to whether the Project had been approved, they failed to make any inquiry into the matter. Accordingly, plaintiffs'/respondents' reliance upon equitable estoppel must fail (see generally Mosher v Town of Southport Zoning Bd. of Appeals, 5 AD3d 840, 841 [2004][petitioners' claim of estoppel as premised upon their assertion that their counsel was told by the Town Clerk's office that the Zoning Board of Appeal's decision would not become final and binding until the minutes of the meeting were approved at the next month's meeting must fail, since petitioners did not allege that the Board engaged in fraud, deceit or misrepresentation in order to induce petitioners to delay commencement of this proceeding]; Green Harbour Homeowners' Assn. v Town of Lake George Planning Bd., 1 AD3d 744, 746 [2003][petitioner's attempts to stop respondent Planning Board from asserting a Statute of Limitations defense were unavailing, since there was no allegation that the Board engaged in any fraud, misrepresentation or deception upon which petitioner relied]).
In addition, plaintiffs'/respondents' claim that the Statute of Limitations did not begin to run because the CPC Resolution was not filed with the City Council, the Borough President or the Community Board is also without merit. As discussed above, the CPC Resolution recites that it was filed with the City Council and the Borough President and a copy of the transmittal letter to the City Council has been produced. Stoute also alleges that he kept the Community Board apprized of the progress on the Project.[FN19]
Plaintiffs/Respondents Fail to Set Forth a
Viable SEQRA/CEQR Claim
In the alternative, even if plaintiffs'/respondents' claims are not dismissed as time barred, the City defendants argue that plaintiffs/respondents fail to set forth any basis that is sufficient to entitle them to a judgment setting aside the approval of the Project or the condemnation of the [*16]Site. The court agrees.
Negative Declaration
In contending that the City defendants improperly issued a Negative Declaration, plaintiffs/respondents argue that DOS improperly concluded that the Project will not have a significant impact on the environment, and, as a result, they should now be required to prepare an EIS. These contentions are insufficient to entitle plaintiffs/respondents to the relief demanded.
As a threshold issue, it must be recognized that not all projects that are subject to SEQRA/CEQR review require the preparation of an EIS. Instead, it is settled that:
"[i]nquiry starts with an assessment of the action and a determination of whether it 'may have a significant effect' on the environment. If it might, an EIS is required. If the agency determines that the proposed action will not have a significant effect on the environment it issues a 'negative declaration' (see, 6 NYCRR 617.2 [y]; 17 NYCRR 15.6 [b])."
(Westbury v Department of Transp., 75 NY2d 62, 68 [1989]). Further, while the SEQRA regulations provide that a Type I action, such as that proposed herein, carries the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS, the fact that a project is so designated does not compel the conclusion that an EAS must be prepared (see generally Incorporated Vil. of Poquott v Cahill, ___ AD3d ___, 2004 NY App Div LEXIS 11971 [2004]). Instead, action taken by the lead agency may overcome the presumption that a Type I project will have a significant adverse effect on the environment, particularly where the agency sufficiently articulates the bases of its determination (see id.; accord Friends of Port Chester Parks v Logan, 305 AD2d 676, 677 [2003], citing 6 NYCRR 617.4 [a] [1]).[FN20]
In addressing the arguments raised by plaintiffs/respondents, the court must also be cognizant of the standard of review to be applied to challenges made to the SEQRA/CEQR and the ULURP review process. In addressing such review, it has been recognized that:
"SEQRA contains no provision regarding judicial review, which 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 of law or was arbitrary and capricious or an abuse of discretion' (CPLR 7803[3]; see, Matter of City of Schenectady v Flacke,100 AD2d 49, 353, lv denied 63 NY2d 603; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862). In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the [*17]desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively."
(Matter of Jackson v New York State Urban Dev., 67 NY2d 400, 416 [1986]). Thus, it is well established that in reviewing a determination made pursuant to SEQRA, "'it is not the role of the court to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the agency'" (Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating, 291 AD2d 40, 54 [2001], lv denied 97 NY2d 613 [2002], lv denied 98 NY2d 608 [2002], quoting Matter of Fisher v Giuliani, 280 AD2d 13, 19-20 [2001]; accord Matter of Merson v McNally, 90 NY2d 742, 752 [1997]). From this it follows that the role of the court is not to make de novo environmental determinations, but to review the actions of the appropriate administrative agencies to insure compliance with the provisions of SEQRA (see generally Stryckers Bay Neighborhood Council v City of New York, 144 AD2d 283 [1988][it was error for the court to order respondents to prepare an EIS absent an administrative determination that the subject project would have a significant impact on the environment, since courts must limit their review to whether the appropriate agencies identified the relevant areas of concern, took a "hard look" at them and made a "reasoned elaboration" of the basis of their determination]; Aldrich v Pattison, 107 AD2d 258, 267 [1985][the "hard look" standard of review for SEQRA determinations does not authorize the court to conduct a detailed de novo analysis of every environmental impact of, or alternative to, a proposed project which was included in, or omitted from, an EIS]).
Thus, "[i]n analyzing a SEQRA determination, a court is required to sustain an agency's negative declaration unless the court concludes that it '"was affected by an error of law or was arbitrary and capricious or an abuse of discretion"'" (Fisher, 280 AD2d at 19, quoting Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363 [1986], quoting CPLR 7803 [3]). "Although the threshold triggering an EIS is relatively low, a 'negative declaration is properly issued when the agenc[y] ha[s] made a thorough investigation of the problems involved and reasonably exercised [its] discretion'" (Spitzer v Farrell, 100 NY2d 186, 190 [2003], quoting Chinese Staff & Workers Assn., 68 NY2d at 364). "'Nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence'" (City of Rye v Korff, 249 AD2d 470, 472 [1998], lv denied 92 NY2d 808 [1998], quoting Matter of Jackson, 67 NY2d at 417; see generally Har Enter. v Brookhaven, 74 NY2d 524, 528-530 [1989]).
Applying the above general principles to DOS' determination to issue a Negative Declaration, the court concludes that the agency took the requisite "hard look" at the Project and its potential effects on the environment and the area in which the sanitation garage is to be built. In this regard, the court notes that although plaintiffs/respondents find it objectionable that DOS was designated to act as the lead agency, they point to no authority to support their assertion that this designation was not permissible under SEQRA/CEQR. Further, the Relocation Analysis considered other possible locations for the sanitation garage and the HydroQual Study comprehensively analyzed the effects that the Project will have on traffic, air quality and noise in [*18]accordance with applicable standards. Based upon this analysis, the DOS determination that the Project will not result in any significant impacts cannot be characterized as arbitrary or capricious.
The Opinion of Plaintiffs'/Respondents' Expert
In so holding, it is recognized that Lo Pinto's attack on the HydroQual Study is not backed by any empirical studies or evidence. Indeed, even if such evidence were presented, "challenges to the conclusions drawn [by the lead agency] from the data presented requiring . . . a substitution of judgment [by the court] will likely fail and . . . differing conclusions reached by other experts concerning the potential adverse environmental impacts are insufficient to annul an agency's determination" (Roosevelt Islanders for Responsible Southtown Dev., 291 AD2d at 55, citing Akpan, 75 NY2d at 571; Matter of Orchards Assocs. v Planning Bd., 114 AD2d 850, 852 [1985], appeal dismissed 68 NY2d 808 [1986]).[FN21] In addition, a careful review of the HydroQual Study reveals that many of the arguments raised by Lo Pinto cannot withstand scrutiny, since the Study specifically addressed and negated many of the objections raised by him. For example, the Study used automatic traffic recorders at certain intersections, conducted field studies and addressed the issue of vehicle queing, albeit not in a manner that Lo Pinto opines was appropriate. Further, the use of 1998/1999 traffic data was permissible pursuant to the governing CEQR regulations. Thus, plaintiffs'/respondents' claim that the City defendants may not properly rely upon the HydroQual Study is without merit (see generally Finger v DelFino, 275 AD2d 745 [2000], lv denied 96 NY2d 703 [2001][the environmental review conducted with respect to the two proposed unlisted actions, including a comprehensive traffic study, satisfied the substantive requirements of SEQRA]; River Ctr. v Dormitory Auth., 275 AD2d 683 [2000], lv denied 96 NY2d 703 [2001][petitioner's disagreement with respondent's assessment of the project's impact on traffic conditions, which was based on nothing more than petitioner's own selective evaluation of the public hearing testimony of several persons, was not an adequate basis for challenging the reasonableness of respondent's assessment]; cf. Munash v Town Bd., 297 AD2d 345 [2002][Town Board failed to identify the relevant areas of environmental concern and failed to take the requisite "hard look" at such concerns prior to issuing a Negative Declaration where the facts revealed that the Board had received a report from a privately-retained consultant indicating that the proposed development may have a significant impact on the subject ecosystem, which encompassed rare, endangered, and threatened animal and plant species, but issued its determination before its expert completed her report]).
Alternative Sites
Similarly, plaintiffs/respondents cannot obtain relief premised upon their contention that [*19]the Project should be placed in another location.
As is significant in reaching this determination, it is clear that "[a]lthough an environmental impact statement (EIS) prepared under SEQRA must include a detailed statement setting forth 'alternatives to the proposed action' (ECL 8-0109 [2] [d]), an EIS is not required where, as here, a negative declaration is issued by the Planning Board" (Fuss v Hannibal Town Planning Bd., 295 AD2d 921, 922 [2002], citing Matter of Village of Westbury, 75 NY2d at 68). Thus, since the the City defendants determined that an EIS was not needed, even if they did not consider alternative sites for the sanitation garage, their alleged failure would not serve to invalidate the approval process (see generally Broadway Schenectady Entertainment v County of Schenectady, 288 AD2d 672, 673 [2001][court would not annul County's determination to acquire property for use as a community policing center premised upon petitioner's claim that the County had other available sites]; Neptune Assocs. v Consolidated Edison Co., 125 AD2d 473, 475 [1986][court declined to set aside respondent's determination to acquire land by eminent domain in order to construct a new operations center premised upon petitioner's claim that other sites were available and adequate to meet the respondent's needs, since the selection of a particular site was properly a matter for the condemning authority rather than the court and the record revealed that respondent undertook a lengthy study of more than 40 available sites]).
Nonetheless, in its Relocation Analysis, DOS considered other locations and determined that the Site is the only property which will allow for a more cost-effective delivery of services to CD 3 (Relocation Analysis, pp 4-5).
Designation as a Transfer Station
Plaintiffs'/respondents' contention that the Siting Rule governing the location of solid waste transfer stations should be applied to the sanitation garage at issue herein is unpersuasive.
Pursuant to 6 NYCRR 360-1.2 [b] [172], a transfer station is defined as:
"a solid waste management facility [FN22] . . . where solid waste is received for the purpose of subsequent transfer to another solid waste management facility for further processing, treating, transfer or disposal. Transfer of solid waste from vehicle to vehicle for the [*20]purpose of consolidating loads, as part of the initial collection process, is not considered a transfer station provided the transfer activity occurs along the collection route where the point of transfer changes from day to day."
Similarly, Administrative Code of the City of New York § 16-130 (a) (5) "defines a 'non-putrescible solid waste transfer station' as 'any structure, building or other premises . . . at which only non-putrescible solid waste is received for the purpose of subsequent transfer to another location, regardless of whether such non-putrescible waste is subject to any processing or reduction in volume at such structure, building or premises'" (Amstel Recycling & Concrete v City of New York, 7 AD3d 326, 327 [2004]).
The Project at issue herein contemplates the construction of a garage where garbage trucks and other DOS vehicles will be housed while not in use. The proposed sanitation garage is therefore not a facility where solid waste will be transferred to containers or be sorted to be taken to other facilities. Hence, since the Project does not contemplate the construction of a solid waste transfer station, a use which clearly contemplates the accumulation of waste at the location, siting regulations pertaining to such facilities are inapplicable to the Project.
PM2.5 versus PM10
Under the facts of this case, DOS was not obligated to utilize the more stringent PM2.5 standard in analyzing the effect that the Project is expected to have on air quality.
In so holding, the court relies upon Spitzer v Farrell (100 NY2d 186), a case in which the Attorney General contended that DOS should have examined the effect of PM2.5 emissions in evaluating its plan to transfer solid waste to New Jersey. Therein, the court held that:
"DOS identified the relevant environmental concernthe impact of the diesel garbage trucks on air qualityand based its study on PM10 emissions. When the negative declaration was issued, there was no technologically feasible methodology to determine the impact of PM2.5 emissions (see Matter of Mirant Bolwine, LLC., [NY St Dept Envtl Conservation, March 30, 2001]). Furthermore, EPA had previously determined that PM10 NAAQS could be used as a surrogate to study PM2.5 until new protocols could be calculated and implemented. When DOS issued its negative declaration in 1999, EPA had not yet completed the necessary studies or corrected the technological problems in determining the presence of PM2.5. Based on the scientific information available at that time, DOS rationally conducted a study of particulate matter emissions based on PM10 without further specific reference to PM2.5."[*21]
(id. at 191).
In the instant case, the HydroQual Study was issued in February 2001; the EAS, which relied upon the findings therein, was issued in July 2001; the Negative Declaration was issued on July 20, 2001; and the PM2.5 standard was not implemented until December 24, 2001. Thus, in accordance with the rationale set forth in the Spitzer case (id.), since all of the City defendants' studies and findings predated the mandatory implementation of the more stringent PM2.5 standard, DOS properly analyzed the potential impact of the Project on air quality in the area of the Project in accordance with the then prevailing standard of PM10.
Modifications to the Project
Plaintiffs'/respondents' contention that the modifications made to the Project in response to the Borough President's concerns require the preparation of a supplemental EAS is also without merit.
In the first instance, in so arguing, plaintiffs'/respondents' reliance upon 6 NYCRR 617 is misplaced, since that regulation does not require a lead agency to prepare a supplemental EIS.[FN23] Thus, it has been said that:
"While strict compliance with prescribed procedures is required, nothing in SEQRA or its regulations expressly calls for issuance of a SEIS. Indeed, a supplemental statement is not even mentioned. However, an agency making a final decision about a project must make findings that the environmental concerns of the act have been considered and satisfied (6 NYCRR 617.9 [c]; see also, 21 NYCRR 4200.12 [b] ), and from this it may reasonably be inferred that an agency must prepare a SEIS if environmentally significant modifications are made after issuance of a FEIS (cf. Glen Head- Glenwood Landing Civ. Council v Town of Oyster Bay, 88 AD2d [*22]484, 494; Sierra Club v United States Army Corps of Engrs., 701 F 2d 1011, 1036-1037, supra ). . . . Just as no public hearings are required in the case of a negative declaration, so nothing in the statute requires that the hearing process be reinstituted as to modifications which will not have a significant effect on the environment."
(Jackson, 67 NY2d at 429 - 430). Further, "[a]s stated by the Court of Appeals in Matter of Merson v McNally, 90 NY2d 742, '[m]odifications made to a project during the review process should not necessarily be characterized as impermissible "conditions" [and] the mere circumstance that modifications may have been made to a proposal is an insufficient basis to nullify a negative declaration otherwise properly issued'" (Waste Mgt. v Doherty, 267 AD2d 464, 465 [1999], quoting Matter of Merson, 90 NY2d at 755-756).
In addressing this argument, it must also be recognized that in making any determination, "[t]he EIS process necessarily ages data. A requirement of constant updating, followed by further review and comment periods, would render the administrative process perpetual and subvert its legitimate objectives" (Jackson, 67 NY2d at 425; see generally Wilder v New York State Urban Dev., 154 AD2d 261 [1989], appeal denied 75 NY2d 709 [1990]). Nonetheless, an agency must prepare a supplemental EIS if environmentally significant modifications are made after issuance of an EIS (see e.g. Village of Pelham, 302 AD2d at 399; Coalition for Responsible Planning v Koch, 148 AD2d 230, 234 [1989], appeal denied 75 NY2d 704 [1990], citing Matter of Jackson, 67 NY2d at 429-430). Finally, as is also relevant here, it has been held that:
"where a developer works with the lead agency and other reviewing agencies in public and, as a result of that open consultation, incorporates changes in the project which mitigate the potential environmental impacts, a negative declaration may be appropriateprovided that such declaration is not the product of closed-door negotiations or of the developer's compliance with conditions unilaterally imposed by the lead agency."
(Village of Tarrytown v Planning Bd., 292 AD2d 617, 619-620 [2002], citing Matter of Merson, 90 NY2d at 755-756; Waste Mgt., 267 AD2d at 464).
Herein, DOS issued a Negative Declaration which determined that the Project will not cause a significant environmental impact. That the Project was thereafter modified to address the Borough President's concerns by relocating doors, by seeking to mitigate traffic concerns, by requiring fencing and plantings, and by seeking to prevent DOS vehicles and those of its employees from parking on neighborhood streets and sidewalks does not compel the conclusion that the modifications to the Project will significantly impact on the environment and therefore require the preparation of a revised EAS or of an EIS. Indeed, inasmuch as DOS determined that the Project itself did not significantly impact on the environment, it is patently unreasonable to hold that these relatively minor changes will cause a significant impact on the environment.
Moreover, the alleged modifications to the Project were made during the public review process, in open negotiations, and were before CPC when final approval was given. Hence, the [*23]court declines to find that these modifications require the re-commencement of the SEQRA/CEQR proceeding or the preparation of an EIS (see generally Village of Tarrytown v Planning Bd., 292 AD2d 617). Indeed, in City of Rye (249 AD2d at 471), it was held that traffic modifications that were ultimately required upon approval of the project were the product of extensive study and review, in which the public was given ample opportunity to comment, did not serve as a basis for invalidating the agency's SEQRA determination.
Plaintiffs'/respondents' repeated contention that the change in the days of operation, in the number of employees working at the facility and in the number of trips to and from the facility require invalidation of the review procedures is also unpersuasive. In this regard, the Application, the HydroQual Study, the EAS, the Negative Declaration, and the CPC Resolution refer generally to the hours of operation and the number of employees and vehicles. Further, throughout the review process, as discussed in detail above, the City defendants represented the Project as employing multiple shifts and operating around the clock, utilizing figures that were essentially consistent. Moreover, plaintiffs'/respondents' contention that the precise number of vehicles, vehicle trips and employees has changed is premised upon their own unsubstantiated calculations and speculation, and thus is unpersuasive.[FN24]
As is also relevant to this determination, EDPL 401 (A) (2) provides that "[t]he condemnor may commence proceedings under this article to acquire the property necessary for the proposed public project up to three years after conclusion of the later of . . . the date of the order or completion of the procedure that constitutes the basis of exemption under section two hundred six." EDPL 401 (B) goes on to provide that "[i]f the condemnor has not commenced the proceedings under this article to acquire the property prior to the expiration of such three year period the project shall be deemed abandoned, and thereafter, before commencing proceedings under this article the condemnor must again comply with the provisions of article two." Application of these provisions therefore compels the conclusion that since the City commenced the instant Condemnation Proceeding within three years of the final approval of the Project in accordance with SEQRA/CEQR and the ULURP, as contemplated by the EDPL, the notice and hearing provisions presumptively remain valid and the City need not begin the approval process again (see generally 250 W. 41st St. Realty v New York State Urban Dev., 277 AD2d 47 [2000], appeal denied 96 NY2d 705 [2001]).
In the alternative, as was noted above, the SEQRA/CEQR and the ULURP review became final no later than December 26, 2001; none of the complained of modifications are claimed to post date the final date of approval. Thus, any proceeding to challenge the modifications would have had to be commenced no later than four months after December 26, 2001, when the City Council's "call up" period ended and the determination became final, so that the claims regarding any modification to the Project as raised herein are also time barred (see generally Village of Pelham, 302 AD2d at 400 [petitioners' contention that a supplemental EIS [*24]was required was time-barred, as the petitioners failed to request an SEIS within four months of the adoption by the IDA of its Findings Statement]).
Plaintiffs'/Respondents' Claim of
Incompatibility with the Neighborhood
Plaintiffs'/respondents' contention that the proposed use of the Site as a sanitation garage is not compatible with the current use of property in the area, which is argued to have become more residential since the review process was undertaken, similarly does not provide a basis upon which relief may be granted.
While SEQRA/CEQR and the ULURP processes are intended to promote inquiry into the potential environmental impact of a proposed project in its early stages (see generally Coalition for Future of Stony Brook Vil. v Reilly, 299 AD2d 481 [2002]), as was discussed in detail above, the determinations made thereunder are legislative in nature and judicial review is limited to whether the determination at issue is arbitrary or capricious. Inasmuch as the court is not authorized to substitute its views for those of the agencies involved in making their determination, there is certainly no authority that would allow the court to substitute the views of parties opposed to the Project for those of the agencies.
Plaintiffs'/respondents' reliance upon the Klein Letter to establish that the Site is inappropriate for the Project is also without merit, since the letter is irrelevant to a determination of the issues now before the court. In the first instance, neither the findings of CD 3 nor the opinions of Klein in 1994 are binding upon subsequent proceedings or findings of the City defendants. In so holding, the court also notes that in arguing that the City defendants should be required to re-commence the SEQRA/CEQR and the ULURP process anew, plaintiffs/respondents argue that the HydroQual Study is stale because it is based upon data gathered in 1998 and 1999 and that the neighborhood has changed significantly since 2001. In like fashion, it must be concluded that the considerations and conclusions set forth in a letter written in December 1994, which were apparently not acted upon, have changed over the years and are no longer of any import.
Cost of the Project
Plaintiffs'/respondents' claims that the City did not budget sufficient funds for the Project and that the City does not have sufficient funds to allow it to construct the sanitation garage similarly fail to entitle them to relief.
In this regard, it must be noted that plaintiffs'/respondents' estimates of cost are set forth in conclusory fashion, without any support, as are their claims with regard to the amount of money that has been budgeted for the Project. Further, the amount of money that will be necessary to build the sanitation garage is not addressed in the SEQRA/CEQR or the ULURP proceedings, so that there is no administrative determination to be reviewed by the court. More significantly, plaintiffs/respondents fail to point to any statutory or case law precedent that authorizes the court to enjoin a municipal project on the ground that community groups belief that it is too costly or that insufficient funds have been appropriated (see generally Matter of Byrne, 101 AD2d 701, 701-702 [1984][court held that the proposed acquisition of certain real property for development of a safe boat refuge would serve a public use, benefit or purpose, despite the fact that Federal funding had not yet been appropriated for the project, where EISs [*25]had been filed and State funds had been committed for property acquisition and construction]).
Plaintiffs'/Respondents' Claim that the City Defendants
Improperly Noticed and Conducted the Public Hearings
Plaintiffs'/respondents' assertions that they were not notified of the public hearings and of CPC's approval of the Project, and that said hearings were improperly conducted, are without merit.
As is relevant herein, the approval process for the acquisition of the Site was conducted in accordance with the ULURP (see New York City Charter, § 197-c [11]). Pursuant to EDPL 206 (A), a condemnor is exempt from compliance with the provisions of article 2 of the EDPL when: "pursuant to other state, federal, or local law or regulation it considers and submits factors similar to those enumerated in subdivision (B) of section two hundred four, to a state, federal or local governmental agency, board or commission before proceeding with the acquisition and obtains a license, a permit, a certificate of public convenience or necessity or other similar approval from such agency, board, or commission."
Pursuant to the ULURP rules, notice of hearings before a Community Board is to be made by publication in the City Record for five days immediately preceding and including the date of the public hearing, by publication in the Comprehensive City Planning Calendar, and on notice to the applicant (ULURP § 2-03 [c]). Similarly, notice of hearings before CPC is to be made by publication in the City Record for ten days immediately preceding and including the date of the public hearing; by publication in the Comprehensive City Planning Calendar; by mailing notice to the concerned community board, Borough President, and borough board; and for all actions resulting in the acquisition of property by the City, by notifying the owner or owners of the property by mail to the last known address as shown on the City tax records no later than five days prior to the date of the hearing (ULURP § 2 - 06 [d]).
Applying the above provisions of law to the facts of this case, the City defendants properly relied upon the approval procedure set forth in the ULUPR in lieu of the notice and hearing provisions in the EDPL, since the ULURP considers factors similar to those that must be considered in accordance with the EDPL (see Matter of City of New York [Lemon Creek/Sandy Brook and Waringin Ltd.], Kings County Index No. 2760/95 [1995]; see generally Rockland County Sewer Dist. No. 1 v J & J Dodge, 213 AD2d 409 [1995][the condemnor county sewer district was exempt from the public hearing requirements of article 2 of the EDPL where, pursuant to another state law, the condemnor considered and submitted factors similar to those enumerated in the EDPL to a state agency before proceeding; the initial determination of whether a condemnor is exempt from compliance with the public hearing requirement of the EDPL should be raised in the proceeding that the condemnor must commence in supreme court for permission to acquire property and to file an acquisition map]).
From this it follows that plaintiffs'/respondents' claim that despite the City's compliance with the ULURP, it was still required to publish its findings pursuant to EDPL 204, is without [*26]merit. As quoted above, compliance with local regulations exempts a condemnor from compliance with "this article," i.e. article 2. Thus, since the publication requirements of EDPL 204 are part of article 2, the City defendants' compliance with the provisions of the ULURP exempt them from the need to comply with EDPL 204.
Further, since none of the plaintiffs are owners of the property that is being acquired herein, they were not entitled to be individually notified of the hearings or determinations, since the general notice provisions of Charter § 197 - c are controlling. In response to the plaintiffs'/respondents' allegations of inadequate notice, the City defendants provided proof of publication of the CPC hearing in both the City Record and the Comprehensive Planning Calendar, which accordingly establishes compliance with the ULURP. In so holding, it is noted that in interpreting the notice provisions of the ULURP as they pertain to zoning changes, which similarly provide for publication in the City Record and in the Comprehensive City Planning Calendar, the Court of Appeals held that the "publication provided for by the supplementing provisions of ULURP meets [the] standard of reasonableness" (Lai Chun Chan Jin v Board of Estimate, 62 NY2d 900, 902 [1984]).
Respondents' claim that they were not properly noticed is similarly lacking in merit. As discussed above, the City defendants substantially complied with the publication requirements of the ULURP. Although the rules require that property owners in a condemnation proceeding be provided with notice of the CPC hearing by mail, respondents' claim that they did not receive notice is unpersuasive in view of the fact that they appeared at the CPC hearing and spoke in opposition to the Project.
Further, the ULURP requires only that the required hearings be legislative type hearings, without sworn testimony or strict rules of evidence (see ULURP § § 2 -03 [d] [2] and 2 - 06 [f] [2]). Thus, since the ULURP does not mandate that public hearings be conducted in any particular manner, plaintiffs'/respondents' claim that the City defendants improperly conducted public meetings, instead of public hearings, is also unpersuasive. In this regard, it must also be noted that ULURP § 2-03 (d) (4) states that "[t]he minutes of a meeting at which a public hearing was held shall include a record of the individual members present," which clearly implies that a public hearing will take place at a public meeting. Accordingly, plaintiffs'/respondents' claims that the City defendants improperly noticed and conducted the public hearing are without merit.[FN25]
Public Nuisance
Plaintiffs/respondents have similarly failed to establish that they are entitled to any relief premised upon their claim that the sanitation garage will constitute a public nuisance.
[*27]Statute of Limitations
As a threshold issue, the court finds that plaintiffs'/respondents' cause of action as premised upon a claim of public nuisance is not time-barred, since CPLR 214 (4) provides a three-year Statute of Limitations for an action to recover damages for an injury to property (see generally Kearney v Atlantic Cement Co., 33 AD2d 848, 849 [1969]). Moreover, a public nuisance is a continuing harm. The wrong is not, therefore, referable exclusively to the day when the original tort was committed, so that damages are recoverable to the extent that they are sustained during the three years immediately prior to the commencement of the action (see e.g. Stanton v Town of Southold, 266 AD2d 277, 279 [1999]; State v General Elec. Co., 199 AD2d 595, 598 [1993], citing CPLR 214 [4]; Kulpa v Stewart's Ice Cream, 144 AD2d 205, 207 [1988]). Further, under the appropriate circumstances, an injured party may properly seek injunctive relief to abate a nuisance (see e.g. Kearney, 33 AD2d at 849).
Private Action for Public Nuisance
"A public nuisance has been defined as an act or omission which obstructs or causes damage to the public in the exercise of rights common to all" (New York Trap Rock v Clarkstown, 299 NY 77, 80 [1949], citing Prosser on Torts, p 566; Salmond on Torts [9th ed.], p 229; 21 Halsbury's Laws of England, pp 508-510, 531). More specifically, "[a] public nuisance 'consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all . . . in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons'" (Wheeler v Lebanon Valley Auto Racing, 303 AD2d 791, 792 [2003], lv denied 100 NY2d 507 [2003], quoting Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 568 [1977], rearg denied 42 NY2d 1102 [1977]).
"Although an individual cannot institute an action for public nuisance as such, he may maintain an action when he suffers special damage from a public nuisance" (Copart Indus., 41 NY2d at 568, citing Restatement of Torts, notes preceding § 822, p 217; Wakeman v Wilbur, 147 NY 657, 663-664 [1895]). As a general rule, however, only "one who suffers damage or injury, beyond that of the general inconvenience to the public at large, may recover for such nuisance in damages or obtain [an] injunction to prevent its continuance" (Wall St. Garage Parking v New York Stock Exch., ___ AD3d ___ , 781 NYS2d 324 {10 AD3d 223} [2004], citing Graceland v Consolidated Laundries, 7 AD2d 89, 91 [1958], affd 6 N Y 2d 900 [1959]). Thus, "where the claimed injury is 'common to the entire community,' a private right of action is barred" (Wheeler, 303 AD2d at 794, quoting Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 334-335 [1983]). "'[T]he harm suffered must be 'of a different kind from that suffered by other persons exercising the same public right'" (Pearlman v Simons, 276 AD2d 762, 763 [2000], quoting Burns Jackson Miller Summit & Spitzes, 59 NY2d at 334, quoting Restatement [Second] of Torts § 821C, comment b). "This principle recognizes the necessity of guarding against the multiplicity of lawsuits that would follow if everyone were permitted to seek redress for a wrong common to the public" (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 292 [2001], citing Restatement [Second] of Torts § 821C, comment a; Prosser, Private Action for Public Nuisance, 52 Va L Rev 997, 1007 [1966]).
In addressing plaintiffs'/respondents' claim of public nuisance, the court must also recognize that inasmuch as plaintiffs/respondents are seeking to challenge and enjoin the [*28]construction and operation of a sanitation garage in an area that is zoned for such use, "[a] person who elects to live in a business center . . . must expect the noise and confusion incident to trade and commerce" (De File v Hudson Republican, 151 Misc 256, 258 [1934]; see also Peck v Newburgh Light, Heat & Power Co., 132 App Div 82, 85-86 [1909][since plaintiff came to the quarter of the town where business had long been maintained, he was bound to recognize the conditions and the incidents thereof]; cf. Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 216 [1967], rearg denied 20 NY2d 970 [1967][one who suffers special damages as the result of a violation of a zoning ordinance may obtain an injunction to prevent its continuance and damages]). Thus, although a use which fully complies with a zoning ordinance may be enjoined as a nuisance, the plaintiff assumes a heavy burden of proof (Little Joseph Realty v Babylon, 41 NY2d 738, 744 [1977]).
Herein, plaintiffs/respondents complain that the proposed sanitation garage will effect the quality of life and create a nuisance by, inter alia, increasing the amount of traffic, noise and air pollution in the area. Since the damages complained of are identical to those that will be suffered by everyone living in or doing business in the vicinity of the proposed sanitation garage, the court finds that plaintiffs/respondents cannot establish that they will suffer a special injury sufficient to allow them to maintain a cause of action premised upon public nuisance (see e.g. Burns Jackson Miller Summit & Spitzer, 59 NY2d at 335 [the economic loss which resulted from a transit strike was not recoverable in a private action for public nuisance because the class included all members of the public who were affected by the strike]; Wall St. Garage Parking, 781 NYS2d 324 [a parking garage owner was not likely to prevail on its claim that the New York Stock Exchange's closure of intersections in the surrounding area to thwart attacks by vehicles carrying explosive devices amounted to a public nuisance, so that the owner was not entitled to preliminary injunctive relief where, inter alia, the owner did not demonstrate special injury beyond disruption experienced by the community as a whole]; Concerned Citizens of Cedar Heights-Woodchuck Hill Rd. v DeWitt Fish & Game Club, 302 AD2d 938, 939 [2003], lv denied 100 NY2d 502 [2003][plaintiffs failed to allege an injury different from that suffered by other residents in their community arising from the use of defendant's property as a shooting range, so that the court properly granted defendant's motion insofar as it sought summary judgment dismissing the causes of action alleging public nuisance]).
Speculative Nature of Damages
In the alternative, plaintiffs'/respondents' claim of nuisance is too speculative in nature to entitle them to any relief.
In a similar case in which the court denied plaintiffs a permanent injunction restraining defendants from constructing and operating a bus maintenance facility, the court held that plaintiffs failed to prove that the construction and operation of the facility would constitute a nuisance on account of noise, traffic hazards, fire protection aspects and pollution of neighboring properties, reasoning that:
"Those seeking to enjoin the legal use of another's property on the ground of nuisance have the burden of establishing 'by clear evidence' (County of Sullivan v Filippo, 64 Misc2d 533, 554) that such use has or actually will result in a nuisance (Board of Educ. of Cent. School Dist. No. 3 v County of Westchester, 34 Misc2d 795, [*29]798, affd 18 AD2d 966; State of New York v Wright Hepburn Webster Gallery, 64 Misc2d 423, 425, affd 37 AD2d 698; Metropolitan Life Ins. Co. v Moldoff, 187 Misc 458, 460, affd 272 App Div 1039; Heaton v Packer, 131 App Div 812, 814). A mere possibility is not sufficient. 'A court of equity will lend its aid to enjoin a threatened public nuisance wherever it clearly appears that the acts sought to be restrained will necessarily result in the creation or maintenance of a nuisance (Altschul v Ludwig, 216 NY 459, 468; People v Vanderbilt, 26 NY 287, 293).' (City of Yonkers v DYL & DYL Development Corp., 67 Misc2d 704, 706; emphasis in original)."
(Durand v Board of Cooperative Educ. Servs., 70 Misc2d 429, 433 [1972], affd 41 AD2d 803 [1973]). Thus, the court "may not enjoin the maintenance and operation of [an alleged nuisance] based upon plaintiffs' uncertain apprehensions, conjectural injuries, and mere speculation that a facility . . . will be maintained in such a manner as to constitute a nuisance" (Spring-Gar Community Civic Assoc. v Homes for Homeless, 135 Misc2d 689, 694 [1987], citing 42 NY Jur, Nuisance, § 54; accord State v Waterloo Stock Car Raceway, 96 Misc2d 350, 356 [1978][a public nuisance must be established by clear evidence before a preventive remedy will be granted]).
In this case, plaintiffs/respondents have failed to establish by clear and convincing evidence that the construction and operation of the sanitation garage will necessarily result in a public nuisance. In this regard, it is emphasized that plaintiffs'/respondents' assertions that garbage trucks filled with garbage will be parked in the sanitation garage for long periods of time until the next shift arrives, which will allegedly result in odors being generated and pests being attracted, is lacking in evidentiary support. Although plaintiffs/respondents assert that the HydroQual Study so states at pages 20 through 28, as does the EAS, the court's review of these documents fails to reveal any support for such a finding and the conclusion was emphatically denied by the City defendants at oral argument on September 13, 2004. Similarly, plaintiffs'/respondents' claims are purely speculative in nature, since the sanitation garage has not yet been built (cf. State v Ferro, 189 AD2d 1018, 1020 [1993][plaintiffs met their burden as the proponent of the motion for summary judgment on their public nuisance claim by submitting evidence of emissions of hydrogen sulfide gases into the air from defendants' site, which adversely affected the health of area residents exposed to those emissions, and evidence of leachate containing PCBs at the site, which threatened to contaminate a nearby stream]). That plaintiffs/respondents are not entitled to the injunctive relief that they seek is also supported by the fact that they offer no proof that their properties will suffer a diminution in value, another requisite for the granting of an injunction against an alleged nuisance, whether public or private (Durand, 70 Misc2d at 437, citing Graceland, 7 AD2d at 91).
Requirement of the Least Restrictive Relief
Finally, in seeking to abate a public nuisance, it is well settled that less restrictive alternatives should be pursued first:
"We note that a court of equity has an obligation to go no further [*30]than absolutely necessary to protect the rights of the complaining parties (Russell v Nostrandt Athletic Club, 240 NY 681; 42 NY Jur, Nuisance, § 57; cf Boomer v Atlantic Cement Co., 26 NY2d 219). The injunction must be framed as narrowly as possible and if a restriction less burdensome than an outright ban is reasonable, the less burdensome restriction should be imposed."
(Antinelli v Toner, 74 AD2d 996, 997 [1980]). From this it follows that:
"'injunctions restraining the carrying on of a legitimate and lawful business should go no further than is absolutely necessary to protect the rights of the parties seeking such injunction. When a person is engaged in carrying on such business he should not be absolutely prohibited from doing so, unless it appears that the carrying on of such business will necessarily produce the injury complained of. If it can be conducted in such a way as not to constitute a nuisance, then it should be permitted to be continued in that manner' (Chamberlain v Douglas, 24 App Div 582)."
(Saal v South B. R. Co., 122 App Div 364, 372-373 [1907]).
Thus, before the court issues an injunction prohibiting the construction and operation of the sanitation garage, it must first issue more specific orders, changes and regulations to abate the nuisance (id.; see generally People ex rel. Arcara v Cloud Books, 68 NY2d 553 [1986][a municipality cannot close an adult establishment based upon allegations of illegal sexual conduct occurring on its premises unless the City could demonstrate that less restrictive measures to eliminate the prohibited sexual activity, including arresting the offenders or injunctive relief, prove unavailing]; McCarty v Natural Carbonic Gas Co., 189 NY 40, 50-51 [1907][an order enjoining defendant from burning soft coal on its premises was too broad because it was unlimited as to time or circumstances; if defendant, by the use of some means, could burn the coal in its factory without injury to the plaintiff, it could not lawfully be deprived of that right]; City of New York v 56-01 Queens Blvd., 172 Misc2d 642, 646 [1997][the closing of an establishment was appropriate where the management suggested no further measures that might be taken to correct the situation, so that there was no form of action less restrictive than the closing of the establishment which might have allowed it to continue while protecting the public against the public nuisance]; Modugno v Merritt-Chapman Scott, 17 Misc2d 679 [1959][in an action that sought to permanently restrain defendant from engaging in any construction work on the Throggs Neck Bridge between the hours of 6:00 AM and 7:00 PM, the court permitted pile driving between the hours of 7:00 AM and 6:00 PM weekdays]).
Accordingly, in the event that the sanitation garage is operated in such a manner that it creates a nuisance, far less restrictive alternatives are available to abate the alleged problems. For example, DOS could be enjoined from parking vehicles loaded with garbage and/or any unwashed vehicles at the facility beyond a specified length of time; operating the facility beyond specified hours; having more than a specified number of vehicles or employees assigned to the facility; and/or exceeding specified noise, traffic or pollution levels. Hence, [*31]plaintiffs/respondents are not entitled to an order temporarily or permanently enjoining the City defendants from constructing and/or operating the subject sanitation garage.
Taxpayer's Action
Plaintiffs'/respondents' claim brought under General Municipal Law § 51, alleging that the SEQRA/CEQR and the ULURP approval process was tainted with illegality and fraud, must also fail.
Statute of Limitations
As a threshold issue, the court rejects the City defendants' assertion that the claim is governed by the four-month Statute of Limitations applicable to article 78 proceedings. The court instead holds that the cause of action is governed by a three-year statute of limitations for "actions to recover upon a liability, penalty or forfeiture created or imposed by statute . . . " (CPLR 214[2]; Hartnett v New York City Tr. Auth., 86 NY2d 438 [1995]; Charleson v City of Long Beach, 297 AD2d 775 [2002]; Shechtman v Sverdrup & Parcel Consultants, 226 AD2d 268 [1996]). The claim is therefore not time-barred, particularly since the condemned property has not yet been acquired and construction of the sanitation garage has yet to begin, so that the alleged acts of waste have not yet occurred.
The Law
General Municipal Law § 51 allows a taxpayer to maintain an action against:
"officers, agents, commissioners and other persons acting, or who have acted, for or on behalf of any public corporation to prevent any illegal official act; to prevent waste or injury to any property, funds, or estate of a public corporation; and to compel restitution of such property, funds, or estate."
(Duffy v Longo, 207 AD2d 860, 863 [1994], appeal dismissed 86 NY2d 779 [1995], citing Altschul v Ludwig, 216 NY 459, 463 [1916]). Because General Municipal Law § 51 "is in derogation of the common law, it is subject to the general rule that it is circumscribed and not amenable to judicial extension" (Duffy, 207 AD2d at 863).
Further, "[a] taxpayer's suit is not a vehicle for correcting technical or procedural irregularities by governmental bodies or for reviewing determinations supposedly made in violation of law" (Beresford Apts. v City of New York, 238 AD2d 218, 219 [1997], lv denied 89 NY2d 815 [1997], citing Fisher v Biderman, 154 AD2d 155, 159-160 [1990], lv denied 76 NY2d 702 [1990]). Rather, in order to establish a valid cause of action:
"the plaintiffs must plead and prove that 'the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes' (Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016, quoting Kaskel v Impellitteri, 306 NY 73, 79, cert denied 347 US 934; see also, Korn v Gulotta, 72 NY2d 363). Although the statute itself is written in the disjunctive, apparently permitting a suit to prevent either an illegal act or waste, the controlling cases interpreting the statute have required that both elements be present (see, Korn v Gulotta, supra ; Kadish v [*32]Roosevelt Raceway Assocs., 183 AD2d 874; Starburst Realty Corp. v City of New York, 125 AD2d 148)."
(Murtha v Incorporated Village of Island Park, 202 AD2d 650, 650 - 651 [1994]).
Stated differently, "[a] taxpayer action pursuant to General Municipal Law § 51 against a public official does not lie unless the official conduct complained of, in addition to being illegal, involves fraud, collusion, or personal gain" (Hill v Giuliani, 249 AD2d 28, 28 [1998]). Thus, it has been said that:
"[T]he terms 'waste' and 'injury' used in this statute comprehended only illegal, wrongful or dishonest official acts, and were not intended to subject the official action of boards, officers or municipal bodies acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident or based on errors of judgment, to the supervision of the judicial tribunals. . . . Whatever evils may exist in the government of cities that are due to mistakes, errors of judgment or the lack of intelligent appreciation of official duty, must necessarily be temporary, compaired [sic] with the mischief and inconvenience which judicial supervision, in all cases, would ultimately produce."
(Talcott v Buffalo, 125 NY 280, 286-288 [1891]).
Discussion
Herein, plaintiffs/respondents are not arguing that the City defendants acted illegally, wrongfully or dishonestly in the sense that they approved the use of public funds for an entirely illegal purpose. Instead, they are claiming that the City defendants improperly, unwisely and/or incompletely conducted the SEQRA/CEQR and the ULURP review process. In accordance with the above general principles of law, such errors in judgment are not actionable pursuant to General Municipal Law § 51 (see generally Mesivta of Forest Hills Inst., 58 NY2d at 1016 [the actions of defendant board of education in failing to specify reasons for approving the reacquisition and remodeling of a former school building and the cost thereof in detail, as required pursuant to the Education Law, did not constitute the fraud or illegality necessary to support a taxpayer action pursuant to General Municipal Law § 51]; Herzog v Town of Thompson, 216 AD2d 801 [1995][a taxpayers action pursuant to General Municipal Law § 51 could not be maintained to contest an erroneous determination that an expansion of a sewer system was needed where the determination was based upon readings from a malfunctioning meter]).
Objections to the Condemnation Proceeding
Plaintiffs Lack Standing to Challenge
the Condemnation Proceeding
As a threshold issue, the court finds that plaintiffs lack standing to object to the taking pursuant to article 2 of the Eminent Domain Procedure Law. In an analogous proceeding [*33]commenced pursuant to EDPL article 2 to review a determination of the respondent fire district to condemn certain real property, made after a hearing, the court held that "[a]s noncondemnees, the petitioners are entitled to nothing more under EDPL 207 than a properly-conducted hearing held on proper notice. Such a hearing was held and therefore the petitioners lack standing under the EDPL" (Hugh Gassner Fire Co. v South Spring Valley Fire Dist., 294 AD2d 502, 502 [2002], citing Matter of East Thirteenth St. Community Assoc., 84 NY2d 287).
It remains necessary, however, for the court to address the issues raised by respondents in the Condemnation Proceeding, as owners of the Site.
Failure to Serve the Holder(s)
of the Long Term Lease(s)
Respondents cannot succeed on their claim that the Condemnation Proceeding was improperly commenced because the City did not serve lessees of the Site.[FN26] In the first instance, tenants who are not condemnees do not have standing to challenge the condemnation (see East Thirteenth St. Community Assn., 84 NY2d at 298). In addition, none of the tenants filed an answer in the proceeding, so that they are not parties herein.
More significantly, however, the City properly commenced the proceeding in accordance with EDPL 402 (B) (2), which provides that:
"The condemnor shall, at least twenty days prior to the return date of the petition, serve a notice of the time, place and object of the proceeding upon the owner of record of the property to be acquired, as the same appears from the record of the office in which the acquisition map is to be filed. Said notice shall contain a copy of that portion of the proposed acquisition map affecting the owner's property. Service shall be made pursuant to the civil practice law and rules or by registered or certified mail, return receipt requested. If service is made by mail it shall be sent to the last known address of the owner . . ."
Thus, in accordance with this provision, the City was not obligated to serve any tenants with the petition or to otherwise advise them of the commencement of the proceeding.
Scope of Review
In addressing respondents' objections to the proceeding, the court first notes that judicial review of property taken by eminent domain is limited by statute:
"Section 207 of the Eminent Domain Procedure Law limits [*34]the scope of our review to whether: (1) the condemnation proceedings were constitutional; (2) the proposed acquisition is within the statutory jurisdiction of the condemnor; (3) the condemnor's determination and findings were made in accordance with relevant provisions of the Eminent Domain Procedure Law and the Environmental Conservation Law; and (4) the proposed acquisition will serve a public use, benefit or purpose (Pizzuti v Metropolitan Tr. Auth., 67 NY2d 1039, 1041; Matter of Congregation Gates of Prayer of Far Rockaway v New York City School Constr. Auth., 286 AD2d 439)."
(W. 41st St. Realty v New York State Urban Dev., 298 AD2d 1, 3 [ 2002]; accord Haberman v City of Long Beach, 307 AD2d 313, 314 [2003], appeal dismissed 1 NY3d 535 [2003], lv denied 3 NY3d 601 [2004]). The objections raised by respondents must accordingly be addressed within this framework.
Use of the Site for a Sanitation Garage
The term public use is "broadly defined to encompass any use which contributes to the health, safety, general welfare, convenience or prosperity of the community" (Matter of Byrne, 101 AD2d at 702; accord Vitucci v New York City Sch. Constr. Auth., 289 AD2d 479 [2001], lv denied 98 NY2d 609 [2002]). "It is the established law by numerous decisions of this court that in the exercise of the power of eminent domain the opinion of the legislature or the tribunal upon which is conferred power to determine the questions of necessity or expediency in the acquirement of private property for public use is political, not judicial, in its nature" (Matter of City of New York [Ely Ave.], 217 NY 45, 57 [1916], rearg denied 217 NY 665 [1916][citations omitted]). "It is well settled that whether or not a proposed condemnation is for a public purpose is a judicial question; but legislative findings in this respect are entitled to great weight" (Denihan Enters. v O'Dwyer, 302 NY 451, 457 [1951][citations omitted]). "'[W]here an agency has found a public purpose which a petitioner disputes, the agency's finding is regarded as "well-nigh conclusive", not a question of fact for de novo determination'" (Greenwich Assocs. v Metropolitan Transp. Auth., 152 AD2d 216, 221 [1989], quoting Matter of Jackson, 67 NY2d at 425, quoting Berman v Parker, 348 US 26, 32-33 [1954]).
Accordingly, the use of the Site as a sanitation garage is clearly a permissible public use (see generally Denihan Enters., 302 NY at 458 [the court would not question the legality of the concept that private property may be condemned for parking motor vehicles when the public was primarily served in the taking of such vehicles from the streets to relieve traffic congestion]; In re Fisher, 287 AD2d 262, 263 [2001][condemnation of property by respondent New York State Urban Development Corporation to expand the New York Stock Exchange's facilities, premised upon a finding of substantial public benefit from increased tax revenues, economic development and job opportunities, as well as preservation and enhancement of the city's prestigious position as a worldwide financial center, was supported by a rational basis and constituted an acceptable public use]; Salvation Army v Central Islip Fire Dist., 230 AD2d 841 [1996][acquisition of property to be used to provide parking for firefighters, whose firehouse was located across the street, served a public purpose that entitled respondent to take the property by eminent domain]; [*35]Greenwich Associates v Metropolitan Transp. Auth.,152 AD2d 216 [1989], appeal dismissed Regency-Lexington Partners v Metropolitan Transp. Auth., 75 NY2d 865 [1990][transit authority's acquisition of property to improve the railroad's ability to handle deliveries, to reduce pedestrian and vehicular congestion around the terminal, to reduce deliveries by hand-push vehicles and to eliminate the necessity of moving waste through public areas of the terminal served a public purpose as required by State and Federal Constitutions]).
Respondents' Claim that Excessive
Property is Being Taken
Respondents' claim that the City intends to condemn 10,612.10 square feet of property that will not be used in connection with the Project is insufficient to entitle them to relief. In the first instance, although respondents assert that their conclusion it premised upon the City's "submissions," they fail to identify what facts, reports, site plans, or permits they relied upon in so concluding. Moreover, throughout the SEQRA/CEQR and the ULURP procedure, the City has maintained that the Site will be used for the construction of a new sanitation garage, with no mention of any private or inappropriate use (see generally De Matteis v Hempstead, 286 App Div 1025, 1026 [1955], appeal denied 286 App Div 1104 [1955][complaint alleging that the subject condemnation was for the private benefit of neighboring property owners was properly dismissed, since it appeared from the face of the acts that the taking was for the expressed purpose]).
The City Defendants' Alleged Improper
Motivation for Selecting the Site
Respondents' claim that the Project approvals must be set aside because the choice of the Site was the result of improper motivation on the part of some of the individual participants of the involved City agencies and bodies also must fail.
As a general principle, it must be recognized that "'[c]ourts are not at liberty to sit in judgment upon an imputation that improper motives may have influenced an exercise of . . . a discretionary sovereign power'" (Thomas v Wells, 288 NY 155, 157 [1942][citations omitted]; accord Long Sault Dev. Co. v Kennedy, 212 NY 1, 25 [1914][if a legislative act can be upheld upon any view of public expediency, the court must assume such view was the legislative intent, and not annul it, since the courts cannot impute to the legislature dishonest or undisclosed intentions or designs contradictory to those expressed]).
Further, it is well established that once the court determines that property is condemned for a permissible public use, the court will not inquire into the motives of the governmental agencies and elected representatives behind the selection of the Site in the absence of specific, substantiated acts of wrongdoing or misfeasance. In this regard, the court notes that:
"In 2 Lewis on Eminent Domain (3d ed. § 606) it is said: 'Whether it may be shown, by way of defense, that the proceedings are not instituted in good faith for the purpose alleged in the petition, but for some ulterior purpose, for which the petitioner could not condemn, admits of some doubt. If the petition or instrument of appropriation shows that the property is wanted for a purpose [*36]which is a public use within the constitution and for a purpose within the statute conferring authority, it would seem the better rule that any inquiry into the secret purposes or intentions of the appropriator should be precluded.'"
(In re Public Service Complaint., 217 NY 61, 69-70 [1916]; see also McCabe v New York, 213 NY 468, 480-481 [1915][the court declined to annul a determination by the board of estimate and apportionment to discontinue certain streets that existed only as map streets, since the court presumes that such conclusion was reached in the exercise of careful judgment and courts cannot impute to the legislature any other than public motives by their acts if a given act of legislation was not forbidden by express words or listen to a suggestion that the professed motives for passing it were not the real ones]; Broadway Schenectady Entertainment, 288 AD2d at 673 [court would not annul the county's determination to acquire property for use as a community policing center premised upon petitioner's proof that the county acted in bad faith because of the "suspicious timing" in that it made its determination shortly after petitioner's announced intention to open an adult bookstore there; the court was not inclined to look behind the County Legislature's stated reason for acquiring the property, since courts are traditionally loathe to inquire into the true motives of a legislative body's passage of particular legislation]; Alexander's Department Stores v New York State Thruway Auth., 283 App Div 665 [1954][petition was properly dismissed where appellants sought to have the action of the respondents in taking land for a connection of the thruway system annulled and directing the respondents to select some other route, since no illegal acts of the respondents were set forth and petitioners presented nothing to warrant a finding of corrupt motive or bad faith]; Hicks Dev. v Lawrence, 282 App Div 1048, 1048-1049 [1953], affd 306 NY 922 [1954][article 78 proceeding to annul a resolution adopted for the acquisition of property for park and recreational purposes was properly dismissed, since the resolution was legislative in character, expressed the purposes for which the property was to be acquired, those purposes were public, and the village had the power to acquire by condemnation property for such purposes; courts accept as fact that which is expressed in an act to be the legislative purpose unless from the face of the act or from facts which may be judicially noticed it is made to appear that the taking is not for the expressed purpose]; In re Peck, 231 App Div 99, 100 [1930], affd 256 NY 669 [1931][the court declined to set aside a local ordinance restricting the location of an entrance or exit to a gasoline station, since the enactment was a legislative act that showed that the general purposes served by it were entirely reasonable and in furtherance of the public welfare, so that respondents' contention that the ordinance was passed in bad faith and with sinister, discriminatory and improper motives, had no legal merit]).
Due Process Violations
Respondents' conclusory assertions that the City defendants' failed to comply with the requirements of the EDPL; failed to give proper notice of the Project; and failed to follow City, State and Federal laws, rules, regulations and requirements, so that their due process rights were violated, is also dismissed as specious.
In the first instance, as was discussed in detail above in regard to the Community Action, pursuant to EDPL 206 (A), the City is exempt from compliance with the notice provisions of the [*37]EDPL by virtue of its implementation of and compliance with the local ULURP. Further, public hearings were held as required by the ULURP. In addition, the City defendants submitted documentary evidence that establishes that the commencement of the Condemnation Proceeding was also published in the City Record on October 17, 20, 21, 22, 23, 24, 27, 28, 29, 30 and 31, 2003. Thus, as was determined in dismissing plaintiffs'/respondents' challenge to the SEQRA/CEQR and the ULURP approval process, the City defendants are in compliance with the procedures therein set forth (see generally Lai Chun Chan Jin, 62 NY2d at 902 ) and any challenges to the other alleged improprieties are time-barred.[FN27]
Further, in rejecting respondents' assertions that they were denied due process, it is significant that, as discussed above, their representatives appeared at the CPC public hearing and spoke in opposition to the Project. Also significant is the fact that the CPC Resolution specifically noted the objections raised by the objectors, thereby establishing that respondents' arguments were considered and determined to be lacking in merit, since CPC nonetheless chose to approve the Project. Thus, as was held above, respondents' challenges to the SEQRA/CEQR and the ULUPR process are also lacking in merit.
In so holding, the court notes that respondents' have failed to particularize their remaining claims that the procedures followed by the City defendants are unconstitutional or deprived them of their due process rights. Accordingly, respondents' due process claims are dismissed (see generally Waldo's v Johnson City, 74 NY2d 718, 722 [1989][petitioner's mere allegations of bad faith did not justify the judicial creation of an additional due process hearing, since petitioner was free to present any evidence to undermine the bona fides of the legislative body's decision-making process at the public hearing]; De Matteis, 286 App Div 1025 [court rejected plaintiff's contentions that the statute was illegal because of its failure to provide for personal service of the notice to condemn or the condemnation petition on a property owner, holding that the statute was not invalid merely because no provision was made for personal service of notice of the proceedings on the property owner]).
EDC's Transfer of the Property to Respondent
Similarly, respondent cannot succeed in challenging the City defendants' determination to take the Site by arguing that the City is estopped from so doing because respondent acquired the property from the EDA and it was required to use the site for a business.
In the first instance, respondent does not allege that EDA represented that the property would not be subject to a taking by eminent domain or that respondent's use of the property would continue indefinitely. Moreover, as was discussed above, estoppel cannot be invoked against a municipality. Further, although respondent argues that it invested money in the premises after the property was acquired, its position is no different than that of any other property owner who invests money to improve property that is subsequently condemned. In rejecting this argument, the court also notes that respondent will be compensated for the property condemned, since it is well settled that a property owner must be paid just and fair compensation for any property taken by exercise of the power of eminent domain (see County of Suffolk v [*38]Kalimnios, 275 AD2d 455, 455 [2000], citing Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280 [1994]; see also Zappavigna v State,186 AD2d 557 [1992]). Finally, respondent points to no authority that would serve to preclude the City defendants from taking property by eminent domain that was previously conveyed by the EDA.
Plaintiffs'/Respondents' Demand for an Injunction
In view of the determination that plaintiffs lack standing to challenge the eminent domain proceeding, their application for an injunction staying the condemnation of the Site must be denied on the same ground (see Hugh Gassner Fire Co., 294 AD2d 502, 502; see generally Santulli v Drybka, 196 AD2d 862, 863 [1993][the court's issuance of a preliminary injunction was improper because the plaintiffs, who lacked standing to bring the instant action, did not demonstrate a likelihood of ultimate success on the merits]). Even were this not the case, since the City defendants' motion to dismiss the plaintiffs' complaint and to strike respondents' answers have been granted, that branch of the parties' demand for a preliminary injunction must be denied as moot.
In the alternative, neither plaintiffs nor respondents have demonstrated entitlement to a temporary restraining order enjoining the City defendants from condemning the Site or proceeding with the Project. In this regard, it is well settled that in order "to obtain the drastic remedy of a preliminary injunction, a movant must demonstrate (1) a likelihood or probability of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a a balance of the equities in favor of granting the injunction" (Peterson v Corbin, 275 AD2d 35, 37 [2000], lv dismissed 95 NY2d 919 [2000], citing Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]; W.T. Grant Co. v Srogi, 52 NY2d 496 [1981]). "'Preliminary injunctive relief is a drastic remedy which will not be granted "unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant"'" (Peterson, 275 AD2d at 37, quoting Nalitt v City of New York, 138 AD2d 580, 581 [1988], quoting First Natl. Bank v Highland Hardwoods, 98 AD2d 924, 926 [1983]). Thus, "[a] movant's burden of proof on a motion for a preliminary injunction is particularly high" (Council of City of New York v Giuliani, 248 AD2d 1, 4 [1998], lv to appeal dismissed in part, denied in part 92 NY2d 938 [1998]).
As discussed in full above, neither plaintiffs nor respondents have demonstrated a likelihood that they will succeed in establishing the merits of any of their claims. Similarly, plaintiffs/respondents have failed to demonstrate that they will suffer irreparable harm if the Project goes forward, since their alleged claims of injury are speculative in nature; the complained of injuries cannot possibly occur until after the sanitation garage is constructed and in operation; and if any nuisances are created, the situation can be addressed by means far less restrictive than enjoining construction and operation in totality. Finally, the equities tip in favor of the City, which is obligated to provide sanitation services for its residents and finds itself in need of a facility that is larger and in better condition than that which is currently in use. Further, the City has made the determination that the facility should be located in the CD that it serves, has considered and rejected other potential sites, and has properly followed the procedures required by SEQRA/CEQR, the ULURP and the EDPL.
Conclusion
The court fully appreciates the plaintiffs' concerns, since the presence of a sanitation [*39]facility on the Site will not enhance the aesthetic appeal of the neighborhood, nor will its construction contribute to the gentrification of the area. As is discussed in detail above, however, the court is without authority to weigh the desirability of having the sanitation garage located in any specific community or to choose among alternative locations. Instead, once it is determined that the City defendants' actions complied with SEQRA/CEQR and the ULURP, as was found here, the court's authority ends. Nonetheless, the parties are urged to meet to consider proposed alternative locations for the sanitation garage in an effort to amicably resolve their differences, so that the construction and operation of a new garage will have the support of the community and the need for further court intervention will be avoided.
For the above discussed reasons, however, the City's motion to strike respondents' amended answers is granted, as is the City defendants' cross motion to dismiss the complaint in the Community Action. Plaintiffs'/respondents' demand for a preliminary injunction is denied. The City's petition to acquire the Site in the Condemnation Proceeding is granted.
The City is directed to settle an order authorizing the filing of the acquisition map and vesting title to the subject property in the Condemnation Proceeding under Index No. 37905/03 and a separate order dismissing the Community Action under Index No. 8828/04, both to be settled on notice to plaintiffs/respondents.
J. S. C.
Footnotes
Footnote 1: Consolidation is necessary because the parties incorporated the papers that they filed into all of the pending demands for relief.
Footnote 2: One of the affirmations in opposition to the City's motion to strike is submitted by Joseph Fruend, as an officer of both 60 Nostrand and the Bus Company. It therefore appears that the two entities are related, although no details regarding the relationship are offered.
Footnote 3: Prior to the approval of the Project, the Congregation had an application pending before the New York City Board of Standards and Appeals for a special permit to construct a residential dwelling and a school on part of the site. The City defendants opposed the application because of the plans to construct the sanitation garage and the application was accordingly withdrawn on February 12, 2002.
Footnote 4: The amended pleading is apparently so styled because it adds a demand for relief pursuant to CPLR article 78.
Footnote 5: As is relevant here, New York City Charter § 197-c (a) (11) provides that:
"Except as otherwise provided in this charter, applications by any person or agency for changes, approvals, contracts, consents, permits or authorization thereof, respecting the use, development or improvement of real property subject to city regulation shall be reviewed pursuant to a uniform review procedure in the following categories:
"Acquisition by the city of real property (other than the acquisition of office space for office use or a building for office use), including acquisition by purchase, condemnation, exchange or lease and including the acquisition of land under water pursuant to section sixteen hundred two, chapter fifteen, and other applicable provisions of law."
Footnote 6: The vehicles will include 36 collection trucks, 4 spreaders, 3 front end loaders, 14 mechanical brooms, 2 vans, 1 fork lift, 7 passenger cars and 2 dump trucks.
Footnote 7: As explained in 27th Street Block Association v Dormitory Authority of State of New York (302 AD2d 155):
"SEQRA requires all state and local governmental agencies to determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment (6 NYCRR § 617.1). CEQR, which implements SEQRA in the City of New York, requires City agencies to assess the environmental consequences of their decisions to fund, approve or directly undertake an action (See Akpan v Koch, 75 NY2d 561, 567; Rules of the City of New York (RCNY), Title 62 §§ 5-01 et seq.)"
(id. at 157, n 1).
Footnote 8: Although the pages of the Study are not numbered, it appears to be a comprehensive analyses that consists of hundreds of pages, including extensive appendices that explain the basis upon which the conclusions are premised.
Footnote 9: A Negative Declaration is a Notice of Determination of Nonsignificance, which ends the SEQRA review process (6 NYCRR 617.6 [b] [3] [ii] and [iii], 617.7 [a][2] ) as to the environmental aspects of the project, so that preparation of an Environmental Impact Statement (an EIS) is not required (see 27th Street Block Assoc., 302 AD2d at 158).
Footnote 10: In this regard, plaintiffs assert that the CPC Resolution is in conflict with the EAS and the Negative Declaration in that the Resolution stated that the garage will operate only Monday through Saturday, instead of 24 hours a day, 7 days a week; that there will be three shifts of 54 employees, for a total of 162 workers, instead of 126; and that the facility will involve 365 vehicular trips a day, instead of 120 trips previously identified in the EAS.
Footnote 11: 62 RCNY § 2 - 06 (g) (4) provides that:
"The City Planning Commission shall file copies of its decision with the affected Borough President and with the City Council. All filings with the Council shall include all associated community board, Borough President or borough board recommendations. The Commission shall mail a copy of any decision to the applicant and to the community board or community boards, and borough board to which the application was referred. Filings with the City Council and Borough President shall be completed within the Commission's sixty (60) day time period."
Footnote 12: Although Follman alleges that the reports are available on the internet, he does not attach copies of the reports that support these figures.
Footnote 13: No details, building permits or plans are provided to substantiate this estimate.
Footnote 14: The other case is not identified and no transcript of the Commissioner's testimony is provided.
Footnote 15: Lo Pinto does admit, however, that both the 1993 and the 2001 CEQR Manuals allow the use of data up to three years old.
Footnote 16: Consideration of this communication, which was brought to the attention of the court by letter dated September 22, 2004, well after the date established for the parties' last submissions, was objected to by the City defendants. Inasmuch as the City defendants were afforded the opportunity to respond to the submission, and in the interest of addressing all issues raised by the parties, the letter will be considered.
Footnote 17: As is relevant here, New York City Charter § 197 - d (b) provides that the City Council can review:
"[A]ny other decision of the city planning commission to approve or approve with modifications a matter described in subdivision a of section one hundred ninety-seven-c, if within twenty days of the filing of such decision pursuant to subdivision a of this section, the council resolves by the majority vote of all the council members to review the decision of the commission."
As is also relevant, § 197 - d (c) provides that:
"[i]f, within the time period provided for in this subdivision . . . the council fails to act or fails to act by the required vote on a decision of the city planning commission subject to council review pursuant to subdivision b of this section, the council shall be deemed to have approved the decision of the commission."
Footnote 18: The court recognizes that plaintiffs argue that they were not given notice of the public hearing in the first instance. As is more fully discussed hereinafter, however, since notice of the CPC public hearing was published in accordance with the ULURP, plaintiffs are charged with knowledge that the hearing was conducted; respondents' representatives were present at the hearing and spoke in opposition to the Project, which establishes that respondents undeniably had actual notice of the hearing.
Footnote 19: Although no proof has been produced that the CPC Resolution was sent to the Borough President, the Resolution states that it was. Moreover, any objections to this alleged procedural irregularity should have been raised in a timely commenced article 78 proceeding, or within four months after the determination became final, as should any other claims with regard to the City defendants' alleged determinations to improperly close the matter or to approve the Project.
Footnote 20: Also significant in this regard is that 6 NYCRR 617.3 (c) provides that an application for agency funding or approval of a Type I Project will not be complete until a negative declaration has been issued or until an EIS has been accepted.
Footnote 21: Although not controlling herein because of the City defendants' acquisition of additional property for the Project and the construction of a new garage, it is also significant to note that a portion of the Site is currently utilized as a garage for buses, a use similar in nature to the proposed use of the property as a garage for DOS vehicles . In this regard, courts have repeatedly held that a building's change in use, in and of itself, does not constitute an "action" under SEQRA or CEQR unless the change has significant environmental impact (see Plaza v City of New York, 305 AD2d 604, 606 [2003], citing Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 92 AD2d 897 [1983], affd 59 NY2d 999 [1983]).
Footnote 22: Pursuant to 6 NYCRR 360-1.2 (b) (158), a solid waste management facility is defined as:
"any facility employed beyond the initial solid waste collection process and managing solid waste, including but not limited to: storage areas or facilities; transfer stations; rail-haul or barge-haul facilities; landfills; disposal facilities; solid waste incinerators; refuse-derived fuel processing facilities; pyrolysis facilities; C&D debris processing facilities; land application facilities; composting facilities; surface impoundments; used oil storage, reprocessing, and rerefining facilities; recyclables handling and recovery facilities; waste tire storage facilities; and regulated medical waste treatment facilities. The term includes all structures, appurtenances, and improvements on the land used for the management or disposal of solid waste."
Footnote 23: As is relevant here, 6 NYCRR 617.9 (a) (7) provides:
"(7) Supplemental EISs.
"(i) The lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from:
"(a) changes proposed for the project;
"(b) newly discovered information; or
"(c) a change in circumstances related to the project.
"(ii) The decision to require preparation of a supplemental EIS, in the case of newly discovered information, must be based upon the following criteria:
"(a) the importance and relevance of the information; and
"(b) the present state of the information in the EIS."
Footnote 24: The court also notes that it would be counterintuitive to conclude that anyone involved in the review proceedings, including plaintiffs and/or respondents, believed that the number of employees, vehicles and shifts for a sanitation garage expected to service CD 3 for many years into the future will remain constant, since the City and community undoubtedly will expect DOS to modify its service to respond to the needs of the area that the sanitation garage serves.
Footnote 25: Inasmuch as the City defendants do not attach proof of publication of the Community Board hearing, it must be presumed that proper publication was not made. The court declines to hold, however, that this omission has the effect of indefinitely tolling the four-month Statute of Limitations in which to challenge the SEQRA/CEQR and the ULURP process. Instead, since the ensuing proceedings were in compliance with the ULURP, to succeed on a challenge to the City defendants' failure to publish notice of the Community Board hearing in accordance with the Charter, plaintiffs should have raised the claim in a timely commenced article 78 proceeding.
Footnote 26: In so arguing, it is not clear if respondents are referring to the Bus Company or to parties who allegedly entered into a long term lease with respondent(s) for the purpose of providing parking for a proposed development. The identity of the tenant is irrelevant, however, inasmuch as the court holds that no tenant is entitled to notice pursuant to the EDPL.
Footnote 27: As discussed above, although respondents can raise the issue of noncompliance with SEQRA in the Condemnation Action, the court must still be cognizant of and apply the appropriate Statute of Limitations (see East Thirteenth St. Community Assn., 84 NY2d at 297).
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