Matter of Wall St. Garage Parking Corp. v Lower Manhattan Dev. Corp.
Annotate this CaseDecided on November 3, 2004
Supreme Court, New York County
In the Matter of Wall Street Garage Parking Corp., Petitioner,
against
Lower Manhattan Development Corporation, Respondent.
108432/2004
Walter B. Tolub, J.
By this application, petitioner seeks an order from this court enjoining and prohibiting the respondent, the Lower Manhattan Development Corporation (LMDC) from implementing the proposed New York Stock Exchange Security and Streetscape Improvements (NYSE SSI Plan), which calls for the installation and construction of permanent barriers and other structures for the purpose of obstructing, blocking or closing any ingress or egress to or from public streets in the vicinity of the New York Stock Exchange (NYSE). Petitioner also seeks an order from this court prohibiting any and all improvements or changes, including those involving traffic patterns, until the LMDC complies with any applicable laws and procedures.
The instant application [FN1] arises out of the post-September 11, 2001 creation of the NYSE "secure zone", a restricted segment of New York City streets surrounding the NYSE. Created by the New York Police Department (NYPD) in conjunction with the NYSE, the "secure zone" plan called for the closures of public street intersections located at Wall Street and Broadway; Nassau Street and Pine Street; Wall Street and William Street; William Street and Exchange Place; Broad Street and Beaver Street; Beaver Street and New Street; and Broadway and Exchange Place. Access to these streets is currently only granted to authorized vehicles, and any vehicle [*2]entering the zone must additionally consent to searches by security personnel.[FN2]
Petitioner's business is situated at 45 Wall Street, with entrance and exit ramps located on Exchange Place between William Street and Broad Street. The New York Stock Exchange, Inc. (NYSE), which is at the center of this litigation, operates offices located at 11 Wall Street, 18 Broad Street, 20 Broad Street and 30 Broad Street. The LMDC is a subsidiary of the New York State Urban Development Corporation doing business as Empire State Development Corporation, a political subdivision and public benefit corporation of the State of New York.
History
In the days and months following the events of September 11, 2001, the LMDC was created to coordinate the remembrance, rebuilding, and revitalization of Lower Manhattan. Funded through a Community Development Block Grant (CDBG) from the US Department of Housing and Urban Development (HUD), LMDC "provides assistance for properties and businesses damaged by, and for economic revitalization related to, the September 11, 2001 terrorist attacks on New York City" (Memorandum of Law in Opposition to the Motion, p. 3). LMDC is also a participant in both the planning and funding of the installation of "more visually appealing and more effective security equipment and an improved streetscape plan (Id.).[FN3]
In response to concerns expressed by local businesses, residents, civic organizations, and a multitude of New York City agencies including the NYPD, the LMDC turned part of its focus to the Financial District and the NYSE "secure zone", conducting discussions to ascertain the community's concerns. LMDC contends that it participated in numerous meetings with local property owners, businesses and others to discuss various issues, specifically focusing on ways to improve access and making the area more attractive while preserving and enhancing necessary security.
The LMDC Improvements project ("the project") was borne out of these meetings. Created by the LMDC, various New York City agencies, and the NYPD, the project sought to include elements such as "cobblestones and decorative paving; specially designed sculptures; benches, and other street furniture; interpretive elements such as the demarcation of the landmark street plan of New Amsterdam and Colonial New York; fixed and retractable bollards; retractable vehicular barriers; and guard stations" (Id. at 5). Funding for the project was provided by the LMDC, through the New York City Department of Small Business Services (Id.).
Funding in place, the Economic Development Corporation (EDC), on behalf of the City, retained the necessary consultants to design and implement the improvements set forth in the project. In furtherance of the project, the EDC further consulted with NYPD, the Department of City Planning (DCP), the Department of Transportation (DOT), and the New York Fire Department (FDNY).
In accordance with both the National Environmental Policy Act 42 U.S.C. 5304 ("NEPA") and the New York State Environmental Quality Review Act ("SEQRA"), LMDC, [*3]serving as lead agency, initiated an environmental review.[FN4] With respect to the requirements under SEQRA, on November 4, 2003, LMDC sent a "lead agency" letter to nine federal, state and New York City "involved" or "interested" agencies.[FN5] This letter, in pertinent part stated:
Your agency has been identified as a potentially cooperating/involved/interested agency for the review and approval of the Proposed Action. If your agency consents to LMDC's serving as the lead agency for this Proposed Acction under NEPA and SEQRA, please so indicate by signing this letter and returning it .... If we have not heard from you to the contrary by December 4, 2003, your consent will be assumed (Certified Administrative Record, Exhibit 1).
LMDC received no objections from any of the contacted agencies, and assumed status as lead agency under applicable federal (NEPA) and state (SEQRA) statutes. On January 22, 2004, LMDC issued several documents, including an Environmental Assessment Form (EAF), an Environmental Assessment (EA), a Notice of Intent to Request Release of Funds and Finding of No Significant Impact (NOI/FONSI) under NEPA, and a Determination of Non-Significance ("Negative Declaration") under SEQRA (Certified Record, Exhibits 3-5). The NOI/FONSI was published in the New York Post on January 22, 2004 (Certified Record, Exhibits 6-7) and distributed to the community [FN6] on January 30, 2004 (Certified Record, Exhibits 8-9). The Negative Declaration was published in the New York State Department of Environmental Conservation's Environmental on February 4, 2004 (Certified Record, Exhibit 11), and on February 18, 2004, LMDC submitted a Request for Release of Funds and Certification to HUD (Certified Record, Exhibit 15). Shortly after approved construction commenced, the instant litigation ensued.
Discussion
Standing
Inasmuch as respondent has challenged petitioner's standing, as a threshold matter, this court must address the issue of whether petitioner may bring this action, as it would obviate the need for further discussion.
In challenging an administrative action, the generally accepted rule in this State, is that said challenge turns on "a showing that the action will have a harmful effect on the challenger and that the interest to be asserted is within the zone of interest to be protected by the statute" [*4](Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 687 [1966]). A successful challenge to an administrative action therefore requires a showing by petitioner "(1) that they will suffer an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interest sought to be protected or promoted by the statute under which the governmental action was taken" (Nature's Trees, Inc. v. County of Suffolk, 293 AD2d 543, 544 [2nd Dept 2002]).
When the action challenged involves an asserted violation under SEQRA, the challenger is faced with an additional requirement: they must demonstrate that they stand to suffer an injury that is environmental and not solely economic in nature should the agency decision be upheld (Id. at 687; See also, Mobil Oil Corp. v. Syracuse Industrial Dev. Agency, 76 NY2d 428 [1990]), as economic injury is not, by itself, within the zone of interest which SEQRA seeks to protect (Vinnie Montes Waste Sys. v. Town of Oyster Bay, 199 AD2d 493 [2nd Dept 1993]). As such, for the purpose of determining standing, "the zone of interests, or concerns of SEQRA encompasses the impact of agency action on the relationship between the citizens of this State and their environment. Only those who can demonstrate legally cognizable injury to that relationship can challenge administrative action under SEQRA" (Society of the Plastics Industry, Inc., v. County of Suffolk, 77 NY2d 761, 777 [1991]).
This court has reviewed the submissions accompanying this application, and concludes that although petitioner has suffered an economic injury, there has not been an environmental injury, which is a required element in asserting a challenge to an agency determination alleging a violation of SEQRA. Inasmuch as petitioner has failed to demonstrate standing to bring this application, the matter must be, and is, dismissed.
This memorandum opinion constitutes the decision and order of the Court.
Dated: November 3, 2004____________________________
HON. WALTER B. TOLUB, J.S.C.
Footnotes
Footnote 1: For a more comprehensive history of the creation and implementation of the "secure zone" surrounding the NYSE area, see, Wall Street Garage Parking Corp. v New York Stock Exchange, Inc., 3 Misc 3d 1014, 1017 [Sup Ct. NY Co. 2004], rev'd , 781 NYS2d 324, 326 [1st Dept 2004]).
Footnote 2: The perimeter of the NYSE secure zone has in the most recent past been monitored by a combination of NYSE security staff, and members of the NYPD.
Footnote 3: Current barricades include the use of concrete barriers, pickup trucks weighted with sand, and metal fences.
Footnote 4: LMDC served as lead agency pursuant to NEPA 42 U.S.C. 5304(g), as they were the recipient of the CDBG. LMDC lead agency status under SEQRA was contemplated by Executive Order No. 128, 9 NYCRR 5.128 [June 16, 2003] (Verified Answer of Respondents at ¶ 50).
Footnote 5: The recipients of this letter included The US Department of Housing and Urban Development, The New York State Office of Parks, Recreation, and Historical Preservation, The City Planning Commission, The New York City Department of Transportation, The New York City Fire Department, The New York City Police Department, The New York City Economic Development Corporation, The Landmarks Preservation Commission, and The New York City Art Commission (Certified Administrative Record, Ex. 1).
Footnote 6: Over 36 entities were contacted with this information.
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