Hell's Kitchen Neighborhood Assn. v New York City Dept. of City Planning

[*1] Hell's Kitchen Neighborhood Assn. v New York City Dept. of City Planning 2004 NY Slip Op 51849(U) Decided on September 21, 2004 Supreme Court, New York County Cahn, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 21, 2004
Supreme Court, New York County

HELL'S KITCHEN NEIGHBORHOOD ASSOCIATION, MARTIN TREAT, CIARA DISETA, META BRUNZEMA, DANA TURNER, DANIEL GUTMAN, RUDOLF SAMANDAROV, and MADISON SQUARE GARDEN, L.P., Petitioners, For Judgment Pursuant to CPLR Article 78,

against

NEW YORK CITY DEPARTMENT OF CITY PLANNING, NEW YORK CITY PLANNING COMMISSION, THE CITY OF NEW YORK, and NEW YORK METROPOLITAN TRANSPORTATION AUTHORITY, Respondents.



112368/04

Herman Cahn, J.

Petitioners move for an order preliminarily enjoining respondents from holding public hearings, including the hearing scheduled to be held on September 23, 2004, pursuant to the Uniform Land Use Review Procedure (ULURP) of the Rules of the City of New York (City) and the State and City environmental quality review laws.

The hearings concern a proposed major construction project entitled the "No. 7 Subway Extension - Hudson Yards Rezoning and Development Program" (Project).

Respondent Metropolitan Transportation Authority (MTA) cross-moves for an order, pursuant to CPLR 3211 (a) and 7804 (f), to dismiss the proceeding on the grounds that (1) petitioners' claims are not ripe, and (2) petitioners failed to exhaust their administrative remedies.

The City cross-moves for dismissal on the grounds that (1) the court does not have subject matter jurisdiction because the claims are not ripe, and petitioners failed to exhaust their administrative remedies, and (2) the petition fails to state a cause of action.

Because of exigent circumstances the public hearing scheduled for September 23, 2004 this decision and order will dispose of only the motion for preliminary injunctive relief. A determination as to the cross motions will be set forth in a subsequent written decision.

BACKGROUND

The Project [*2]

Petitioners seek to stay the administrative approval process that the Project is presently undergoing until respondents submit a proper "Draft Environmental Impact Statement" (DEIS).[FN1] They contend that the DEIS that respondents have submitted is inadequate and incomplete.

A DEIS is the initial statement that either a project's applicant, or the lead agency overseeing a construction project or other activity that may affect the environment, prepares and circulates for review and comment (6 NYCRR 617.2 [n]). Subsequent to the issuance of a DEIS, and the appropriate agency's receipt of comments, the agencies will issue a Final Environmental Impact Statement (FEIS). Thereafter, the agencies and the public are afforded an opportunity to submit additional comments, after which the lead agency must issue its "written findings statement" (6 NYCRR 617.11 [a]). Here, the agency that is most concerned is the Department of City Planning - City Planning Commission.

The DEIS at issue has been prepared pursuant to the State Environmental Quality Review Act (SEQRA), Article 8 of the Environmental Conservation Law (ECL), and its implementing regulations (6 NYCRR part 617), and the City Environmental Quality Review (CEQR) requirements, as established in Executive Order No. 91, 1977, and as set forth in its implementing rules and procedures, Title 62, Chapter 5, of the Rules of the City of New York (DEIS, at 3-1). The DEIS consists of seven volumes and more than 4,000 pages.

The DEIS purports to assess the effects of the Project on "land use, zoning, and public policy; socioeconomic conditions; community facilities and services; open space and recreational facilities; shadows; architectural historic resources; archaeological resources; urban design and visual resources; neighborhood character; natural resources; hazardous materials; Waterfront Revitalization Program; infrastructure; solid waste and sanitation services; energy; traffic and parking; transit and pedestrians; air quality; noise and vibration; construction; public health; unavoidable adverse impacts; growth; and commitments of resources" (id. at ES-1).

The MTA and the City's Planning Commission (CPC) are the Project's co-lead agencies under SEQRA and CEQR. A lead agency is an involved agency principally responsible for undertaking, funding, and approving an action covered by SEQRA/CEQR, and, therefore, responsible for determining whether an EIS is required, and for the preparation and filing of the statement if one is required (6 NYCRR 617.2 [u]). As part of the Project, the MTA and the City's Department of City Planning (DCP) propose to promote the transit-oriented redevelopment of the "Hudson Yards" area, generally encompassing the area bounded by West 43rd Street on the north, Hudson River Park on the west, West 28th and West 30th Streets on the south, and Seventh and Eight Avenues on the east (DEIS at ES-1).

The Project contains the following specific proposals: (1) the implementation of zoning and land use actions to enable the development of 28 million square feet of commercial space, 12,600 residential units, a new midblock boulevard between Tenth and Eleventh Avenues, and significant open spaces, (2) extension of the No. 7 Subway Line from Times Square to a new [*3]terminus at Eleventh Avenue and West 34th Street, (3) expansion of the Jacob K. Javits Convention Center north to 42nd Street, including construction of a new Convention Center hotel, and (4) development by the New York State Urban Development Corporation d/b/a Empire State Development Corporation of a new sports stadium, i.e. a multi-use facility for sports, entertainment, and exposition uses on a platform to be constructed over the MTA Long Island Railroad's John D. Caemmerer West Side Yard between Eleventh and Twelfth Avenues from West 30th to West 33rd Streets. The proposed stadium would provide a venue for a variety of sports, exhibition, and entertainment events, and it would also become the home stadium for the New York Jets football team (id. at ES-17).

According to the DEIS, the Project is designed to realize significant benefits to the City and State, including the first phase of an expanded Convention Center and Convention Center hotel, the new multi-use facility, new commercial and residential buildings, significant new open spaces that reinforce existing residential neighborhoods, and expanded public views of the Hudson River (id. at ES-1). The agencies describe the Project as a comprehensive effort to realize the development potential of the Hudson Yards area, as well as to expand, and improve the competitiveness of existing resources, such as the Convention Center. The proposed No. 7 Subway extension is designed to help realize this purpose. The Project hails the Hudson Yards' large amount of underutilized area as a unique opportunity, because of its proximity to the midtown business district, combined with its potential to support major transit improvements (id. at ES 2-3).

Administrative Action

SEQRA provides that the legislative intent is "that all agencies which regulate activities of individuals, corporations, and public agencies which are found to affect the quality of the environment shall regulate such activities so that due consideration is given to preventing environmental damage" (ECL § 8-0103 [9]). SEQRA requires all agencies (or applicants) to prepare an EIS on any action that they propose or approve that may have a significant effect on the environment (ECL § 8-0109 [2]). ECL § 8-0109 [2] provides that the EIS is to include a detailed statement setting forth the following: "(a) a description of the proposed action and its environmental setting;(b) the environmental impact of the proposed action including short-term and long-term effects;(c) any adverse environmental effects which cannot be avoided should the proposal be implemented;(d) alternatives to the proposed action;(e) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;(f) mitigation measures proposed to minimize the environmental impact;[*4]

(g) the growth-inducing aspects of the proposed action, where applicable and significant; (h) effects of the proposed action on the use and conservation of energy resources, where applicable and significant, provided that in the case of an electric generating facility, the statement shall include a demonstration that the facility will satisfy electric generating capacity needs or other electric systems needs in a manner reasonably consistent with the most recent state energy plan;(i) [See, also, par. (i) below.] effects of proposed action on solid waste management where applicable and significant; and(i) [See, also, par. (i) above.] effects of any proposed action on, and its consistency with, the comprehensive management plan of the special groundwater protection area program, as implemented by the commissioner pursuant to article fifty-five of this chapter; and(j) such other information consistent with the purposes of this article as may be prescribed in guidelines issued by the commissioner pursuant to section 8-0113 of this chapter."

(Brackets in original.)

The regulations enacted to implement the provisions of SEQRA are contained in 6 NYCRR 617.1 et seq. 6 NYCRR 617.9 (a) (2) provides that the lead agency will use the final written scope, if any, and the standards contained in the section to determine whether to accept the draft EIS as adequate with respect to its scope and content for the purpose of commencing public review. Scoping is defined as the process by which the lead agency identifies the potentially significant adverse impacts related to the proposed action that are to be addressed in the DEIS, including the content and level of detail of the analysis, the range of alternatives, the mitigation measures needed, and the identification of nonrelevant issues (6 NYCRR 617.2 [af]). The determination is to be made in accordance with the standards in that section within 45 days of receipt of the DEIS. If the DEIS is determined to be inadequate, the lead agency must identify in writing the claimed deficiencies and provide this information to the project sponsor (6 NYCRR 617.9 [a] [2] [i]).

In addition to SEQRA/CEQR review, the Project is also subject to review by City agencies and elected officials. Under the ULURP, established by the City Charter, sections

197-c, 197-d, and 200, the Project is subject to agency review. The DCP is responsible for certifying that the application is complete, and the CPC must hold a public hearing before it approves the application, and its decision is subject to review by the City Council.

The DCP prepared an "Environmental Assessment Statement" on February 10, 2003, concluding that the proposed action (i.e., the Project) had the potential for a significant adverse environmental impact. On April 21, 2003, the co-lead agencies issued a "Positive Declaration for the Proposed Action," determining that, because of the potential for a significant adverse impact on the environment, an EIS would be required. The agencies issued a "Draft Scoping Document" on April 30, 2003 (DEIS at ES-1). [*5]

On June 5, 2003, a public scoping hearing was held, and, on May 28, 2004, the agencies issued a final scoping document, upon which the agencies prepared the DEIS. On June 21, 2004, the co-lead agencies issued a "Notice of Completion" that the DEIS was ready for public review, and scheduled the September 23, 2004 public hearing. At the hearing, the co-lead agencies will hear comments from interested members of the public, including elected officials, civic and community groups, and businesses. Speakers are allowed to submit written testimony before the hearing, at the hearing, or within a 10-day comment period thereafter. Following the hearing, the co-lead agencies will consider the comments, and if they determine that the environmental impacts have been sufficiently addressed to allow SEQRA review to proceed, a final EIS will be prepared and reviewed by them (Affidavit of Samuel Hornick, sworn to September 7, 2004, ¶¶ 37, 36). Pursuant to 6 NYCRR 617.9 (a) (8), the final EIS must include a response to all substantive comments. Prior to the co-lead agencies' decision, they are required to afford the agencies and the public a reasonable time period (not less than 10 calendar days) in which to consider the final EIS, before issuing its written findings statement (6 NYCRR 617.11).

Petition/Response

Petitioners claim that the DEIS which was filed is deficient, and that this will, in effect, prevent them from participating at a meaningful hearing, because the DEIS provides the only official basis for public comment on the environmental impacts of the Project. They claim that the DEIS lacks so much important information that it cannot be deemed adequate for commencing public review. They claim further that the DEIS postpones for at least several months disclosure of critical analyses and mitigation measures regarding many of the environmental impacts most important to petitioners and the public.

Petitioners argue that by accepting a flawed DEIS, respondents have acted in a manner that is arbitrary and capricious. They assert that the action is only about government's obligation to comply with the law in making fundamentally important land-use and environmental decisions by following a process that protects the public's right to informed and meaningful participation.

Petitioners also claim that they will be irreparably harmed because unless the "clock is stopped during the pendency of this action," the decision makers and public will be left with incomplete information, and the review process now underway represents petitioners' only opportunity to consider the Project's potential impact. They argue that the only way to prevent this is to stay the SEQRA/ULURP process until respondents submit an adequate DEIS.

Respondents contend that: (1) the matter is not ripe for judicial review because the acceptance of the DEIS and certification of completeness are intermediate steps in the SEQRA process, and there has not been any final administrative determination; (2) SEQRA and CEQR provide an administrative process for addressing petitioners' concerns with the DEIS, and petitioners have the right to submit their comments to the agencies at the hearing about the alleged deficiencies in the DEIS; and (3) the challenged intermediate determinations are discretionary.

Respondents also contend that the process must be completed by November 23, 2004, and that any interruption of either the SEQRA/CEQR process or the ULURP process will likely make it impossible to complete the Project on time.

[*6]DISCUSSION

Petitioners' motion for a preliminary injunction is denied. Petitioners have not demonstrated a likelihood of success on the merits as to their assertion that the matter is presently justiciable. Consideration of the matter is barred by the doctrines of ripeness (Matter of New York State Inspection, Sec. and Law Enforcement Empls. v Cuomo (64 NY2d 233, 239 [1984]) and failure to exhaust administrative remedies (Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136 [1995]). Petitioners have also not demonstrated irreparable harm.

Ripeness pertains to the administrative action that produces the alleged harm to the complaining party; the focus is on the challenged action's finality and effect, and whether the harm from it may be prevented by administrative means available to the petitioners. The focus of the exhaustion requirement is not the challenged action itself, but whether administrative procedures are available to review the action, and whether the complaining party exhausted those procedures (Church of St. Paul and St. Andrew v Barwick, 67 NY2d 510, 521, cert denied 479 US 985 [1986]).

For an agency action to be ripe for review (1) the action must impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process that inflicts an actual injury, and (2) there must be a finding that the apparent harm inflicted by the action may not be prevented or significantly ameliorated by further administrative action, or by steps available to the complaining party (Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]; Matter of Essex County v Zagata, 91 NY2d 447 [1998]). Neither of these requirements is met here. Petitioners' reliance upon Matter of Gordon v Rush (100 NY2d 236, supra) and Matter of Stop-The-Barge v Cahill (1 NY3d 218 [2003]) for the proposition that their challenge to the DEIS is presently justiciable is unconvincing.

The SEQRA action at issue in Matter of Gordon v Rush, supra, resulted from storms occurring during the winter of 1992-93 that caused substantial erosion to beaches in the Town of Southampton, New York. A group of oceanfront property owners requested permission to install shore-hardening structures to prevent further erosion. The Department of Environmental Conservation (DEC), acting as lead agency in a coordinated SEQRA review, issued a negative declaration, finding that an EIS was not required, because there would be no significant impact on the environment. The property owners group then submitted an amended application that was eventually handled by the Town's Coastal Erosion Hazard Board of Review, which declared itself lead agency to conduct its own SEQRA review. The Board of Review then issued a positive declaration, finding that the proposed structures could have significant effects on the environment, and required the owners to prepare a DEIS. The owners then commenced an Article 78 proceeding, challenging this determination (Matter of Gordon v Rush, 100 NY2d at 241-42).

The Court of Appeals held that the Board of Review's action in issuing a positive declaration constituted a final administrative action, ripe for review, because the action, if implemented, would cause actual injury to the property owners through the expenditure of a considerable amount of time and expense (id. at 242). On the merits, the Court found that the Board of Review was bound by DEC's negative declaration, and it therefore acted outside the scope of its authority when it decided to conduct its own SEQRA review and issued its positive [*7]declaration (id. at 243).

In Matter of Stop-The-Barge v Cahill (1 NY3d 218, supra), a predecessor of New York City Energy LLC (NYCE) submitted an environmental assessment statement to the DEP to obtain permits to install a power generator on a floating barge. DEP, the lead agency for purposes of conducting a coordinated SEQRA review, issued a conditional negative declaration concluding that the project posed no significant adverse environmental impact, and, therefore, required no EIS. Petitioners therein offered no comments, and the declaration became final, concluding SEQRA review.

Simultaneously, NYCE applied to the DEC for an air permit pursuant to ECL, Article 19. After a 30-day public comment period, and a legislative hearing, DEC determined that an adjudicatory hearing was unnecessary, and it issued a permit for the facility. Thereupon, petitioners commenced an Article 78 proceeding, contending that DEP's issuance of the conditional negative declaration and DEC's issuance of the air permit were arbitrary and capricious in violation of SEQRA. Respondent DEC and DEP argued that the challenges were time-barred.

The Court of Appeals held that the issuance of the conditional negative declaration constituted final agency action for purposes of judicial review of the SEQRA claim. It found that the agency reached a definitive position when the public comment period ended because, at that point, its SEQRA review ended. Moreover, it determined that the issuance of the conditional negative declaration resulted in actual injury, because the declaration essentially gave the developer the ability to proceed with the project without the need to prepare an EIS (id. at 223).

Here, petitioners have not suffered injury. Respondents have not issued final approval permitting construction to proceed, as occurred in Matter of Stop-The-Barge v Cahill. Petitioners' attempt to equate their claimed injury the amount of information available to them at the hearing with the injuries occurring in those cases is unpersuasive. The holding of the public hearing will not "impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process that inflicts an actual injury" (Gordon v Rush, 100 NY2d at 242; cf. Matter of Electrical Inspectors v Village of Lynbrook, 293 AD2d 537 [2d Dept 2002] [petitioner suffered actual and concrete injury in that the Village denied it the opportunity to act as the Village's inspection firm]; Matter of Dozier v New York City, 130 AD2d 128 [2d Dept 1987] [petitioners suffered actual, concrete injury by virtue of their suspensions without pay]).

The fact that petitioners are dissatisfied that the hearing is proceeding as scheduled does not constitute an actual, concrete injury (see Matter of Wal-Mart Stores v Campbell, 238 AD2d 831 [3d Dept 1997] [mere fact petitioner may have to endure the review process is not an actual injury]). The EIS process is designed as a cooperative venture, the intent being that the agency have the benefit of public comment before issuing a final EIS and approving a project (Jackson v New York State Urban Dev. Corp., 67 NY2d 400 [1986]). If and when final approval is granted, if petitioners believe themselves to be aggrieved, the agency action would be subject to judicial review.

Even assuming that there was apparent harm inflicted by the action, petitioners have not shown that it could not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. Petitioners can present their comments about the [*8]DEIS to the lead agencies at the public hearing, including their assertion that the mitigation proposals contained therein are inadequate to address all of the problems presented by the Project. Thus, petitioners have failed to exhaust their administrative remedies (cf. Matter of Essex County v Zagata, 91 NY2d at 454). Petitioners argue in their reply papers that this doctrine is inapplicable because there is no administrative avenue open to them to raise their claim. That is not so, as they may participate in the public hearing, and lodge their objections at that time.

To the extent that petitioners are not persuaded by the DEIS that respondents will be able to adequately resolve all of the environmental problems caused by the Project, they can, pursuant to applicable regulations, present those concerns at the hearing. If, after the hearing, respondents do not present or approve a sufficiently detailed Final Environmental Impact Statement (FEIS), petitioners may seek relief from the court. However, ultimately, the decisions as to how to respond to the various problems which will undoubtedly be raised by a project of this size, is one left to the Executive and Legislative branches. The court's function is merely to assure that the statutory and regulatory dictates have been fairly complied with. This function comes into play after the decision making agencies have had an opportunity to fully consider the DEIS and issued the FEIS and subsequent final written determination.

A balancing of the equities favors respondents, because granting the petition could adversely impact on the review process which is subject to specific time-limits.

Accordingly, it is

ORDERED that the motion for a preliminary injunction is denied.

Dated:September 21, 2004

ENTER:

______/s/_________

J.S.C. Footnotes

Footnote 1:Petitioners refer to the document at issue as a "Draft Environmental Impact Statement," whereas respondents refer to it as a "Draft Generic Environmental Impact Statement" (DGEIS) and the document itself is so-titled. 6 NYCRR 617.10 provides that a DGEIS "may be broader, and more general than site or project EISs," but the parties do not address the distinction between the two types of documents. The court will refer to the document as DEIS.