Matter of Coalition Against Lincoln W. Inc. v Weinshall

[*1] Matter of Coalition Against Lincoln W. Inc. v Weinshall 2004 NY Slip Op 51887(U) Decided on October 8, 2004 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2004
Supreme Court, New York County

IN THE MATTER OF THE Coalition Against Lincoln West, Inc. d/b/a COALITION FOR A LIVABLE WEST SIDE; MADELINE F. POLAYES, individually and as PRESIDENT OF THE COALITION AGAINST LINCOLN WEST, INC. d/b/a COALITION FOR A LIVABLE WEST SIDE; CONGRESSMAN JERROLD L. NADLER; NEW YORK STATE SENATOR ERIC T. SCHNEIDERMAN; NEW YORK STATE ASSEMBLY MEMBER SCOTT STRINGER; NEW YORK STATE ASSEMBLY MEMBER DANIEL O'DONNELL; NEW YORK CITY COUNCIL MEMBER GALE A. BREWER; WEST SIDE FEDERATION OF NEIGHBORHOOD and BLOCK ASSOCIATIONS; FAR WEST 74TH STREET BLOCK ASSOCIATION; ASSOCIATION OF TENANTS OF LINCOLN TOWERS, INC.; 205 WEST END AVENUE HOWARD HOUSE OWNERS' CORP.; 260 APARTMENT CORP.; ELEVEN RIVERSIDE DRIVE CORPORATION; 160 RIVERSIDE DRIVE CORPORATION; 321 WEST 78TH STREET CORPORATION; SHERMAN SQUARE REALTY CORPORATION; SEXTON CONDOMINIUM BOARD; and 450 TENANTS' CORP., Petitioners, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules

against

Iris Weinshall, as COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION; and HUDSON WATERFRONT ASSOCIATES, Respondents.



105675/04

Doris Ling-Cohan, J.

Petitioners, consisting of individuals, community not-for-profit organizations representing residents, cooperative apartments and tenant associations, and five community elected officials, bring this petition, pursuant to Article 78 of the CPLR, for a judgment:

(1) nullifying and vacating the approval granted by respondent New York City Department of Transportation (NYCDOT) permitting the closure of the 72nd Street exit ramp of the Joe DiMaggio Highway (New York State route 9A, previously known as the "Miller Highway"; also [*2]known as the "West Side Highway") and implementing the West End Avenue Improvement Plan; (2) seeking an injunction prohibiting any further construction, demolition or other work that would result in the closure of the 72nd Street exit ramp until such time as the NYCDOT has fully complied with the New York State Environmental Quality Review Act (SEQRA) and the New York City Environmental Quality Review Procedures (CEQR); and (3) awarding to petitioners the costs and disbursements of the proceeding.

It is undisputed that, prior to October 11, 1992, developer Penn Yards Associates, an affiliate of the Trump Organization, purchased 74 contiguous acres on the west side of Manhattan, running from West 59th Street up to West 72nd Street along the Hudson River. Respondent Hudson Waterfront Associates [FN1] (Hudson Waterfront) proposed to develop the 74-acres as a mixed-development project called Riverside South Development (RSD). The proposal included the construction of residential apartments, office space, a studio complex for film and television production, and a 21.5 acre waterfront park. As part of the project, Hudson Waterfront proposed constructing a new, two-way, north-south extension of Riverside Drive, called Riverside Boulevard, which would run through the development and connect the development on the northern end to West 70th, West 71st and West 72nd Streets. Its connection to West 72nd Street would necessitate the closure, and elimination, of the West 72nd Street exit from the West Side Highway. As a result, motorists seeking to exit at 72nd Street would be redirected to either the 59th Street or the 79th Street exits. It is undisputed that the closure of the 72nd Street exit would result in increased traffic on West End Avenue; therefore, Hudson Waterfront proposed that the existing traffic/parking pattern on West End Avenue between 79th Street and 72nd Street be altered, by eliminating all parking on both sides of the street, and creating a six - lane thoroughfare, with three lanes in each direction. The entire project spawned considerable protest and a series of lawsuits by the affected community which sought to minimize the effects RSD brings to their neighborhood. The community's concerns include a variety of safety issues, as well as increased noise and air pollution stemming from the redirection of traffic onto West End Avenue, resulting from the closing of the 72nd Street exit ramp.

Statutory and Regulatory Framework

In 1975, the New York State Legislature enacted SEQRA in an effort to balance social and economic goals with environmental concerns, and to ensure that the appropriate state and local agencies examine environmental ramifications of proposed land-use projects prior to granting approval. See ECL 8-0103(7); 6 NYCRR 617.1(d). CEQR is the means by which SEQRA is implemented in the City of New York (NYC). "The Legislature has...declared that 'to the fullest extent possible', environmental factors should be considered in reaching decisions on proposed projects." Williamsburg Around the Bridge Block Assn. v Giuliani, 223 AD2d 64, 69 (1st Dept 1996) (citations omitted).

It is often said that the "heart" of SEQRA is the Environmental Impact Statement (EIS). Jackson v New York State Urban Dev. Corp, 67 NY2d 400, 415 (1986). "The threshold at which the requirement that an EIS be prepared is triggered is relatively low; it need only be [*3]demonstrated that the action may have a significant effect on the environment." Chinese Staff and Workers Assn. v City of New York, 68 NY2d 359, 364-5 (1986); Williamsburg Around the Bridge Block Assn. v Giuliani, 223 AD2d at 71. As the City concedes the necessity of an EIS, which it claims was satisfied by the 1992 EIS, such issue is not in dispute.

SEQRA lays out the procedure for formulating an EIS, its content and provides for public input. See Jackson v. New York State Urban Dev. Corp., 67 NY2d at 415. As explained by the Court of Appeals: "Procedurally, once an agency determines that an EIS is required, it must prepare or cause to be prepared a Draft EIS (DEIS)...[which] must then be filed with the Commissioner of Environmental Conservation and copies must be made available to interested persons on request (ECL 8- 0109 [4]; 6 NYCRR 617.8 [b], [c]; 617.10 [d], [e]). If the agency determines that there is sufficient interest and that it would aid decision-making or provide an efficient forum for public comment, the agency should hold a public hearing on notice (6 NYCRR 617.8 [d]; 617.10 [f]). Whether or not a hearing is held, an agency must provide for a comment period on the DEIS of at least 30 days (6 NYCRR 617.8 [c]). Unless the agency withdraws the proposed action or determines that it will not have a significant effect on the environment, the agency must prepare a FEIS 45 days after the close of any hearing or 60 days after the filing of the DEIS, whichever occurs later (6 NYCRR 617.8 [e]), with filing and distribution in the same manner as a DEIS (6 NYCRR 617.8 [f]; 617.10 [g], [h]), and at least 10 days for public consideration (6 NYCRR 617.9 [a]). Finally, before approving an action that has been the subject of a FEIS, an agency must consider the FEIS, make written findings that the requirements of SEQRA have been met, and prepare a written statement of the facts and conclusions relied on in the FEIS or comments (6 NYCRR 617.9 [c], [d]). "

Id. at 415-16.

Thus, public input is a necessary and important component of the SEQRA process.

"A key element in the environmental review process is the public review and comments" [Coalition for Responsible Planning, Inc. v Koch, 148 AD2d 230, 234 (1st Dept 1989 ) lv denied 75 NY2d 704 (1990)], which would draw "on the reservoir of public information and expertise which SEQRA intends to tap". Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474, 482 (2nd Dept 1981) lv dismissed 56 NY2d 508 (1982), 56 NY2d 985 (1983 ).

" '[A]n EIS is meant to be more than a mere disclosure device. Its purpose is, inter alia, "to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment, and to solicit comments which will assist the agency in the decision making process in determining the environmental consequences of the proposed action"...The EIS must be "made available to the public prior to acting on the proposal which is the subject of the environmental impact statement"...' "

Holmes v Brookhaven Town Planning Bd., 137 AD2d 601,603 ( 2nd Dept 1988)(citations omitted).

Environmental Conservation Law (ECL) Section 8-0109 (2) provides, in relevant part: All agencies...shall prepare, or cause to be prepared...an environmental impact [*4]statement on any action they propose or approve which may have a significant effect on the environment. Such a statement shall 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;...(f) mitigation measures proposed to minimize the environmental impact .

Furthermore, the Court of Appeals has held that, substantively, SEQRA and applicable regulations list general categories of information that must be analyzed in an EIS: "an EIS must set forth a description of the proposed action, including its environmental impact and any unavoidable adverse environmental effects (ECL 8-0109 [2] [a]-[c]; 6 NYCRR 617.14 [f] [1]-[4]); alternatives to the proposed action (ECL 8-0109 [2] [d]), including a "no-action alternative" (6 NYCRR 617.14 [f] [5]); and mitigation measures proposed to minimize the environmental impact (ECL 8- 0109 [2] [f]; 6 NYCRR 617.14 [f] [7]). In addition, SEQRA requires agencies to 'act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects' (ECL 8-0109 [1]). An agency may not approve an action unless it makes 'an explicit finding that the requirements of [SEQRA] have been met and that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided' (ECL 8-0109 [8];see,6 NYCRR 617.9 [c] [2] [i]), and that, 'consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which were identified as practicable' (6 NYCRR 617.9 [c] [2] [ii])."

Jackson v New York State Urban Dev. Corp., 67 NY2d at 416. [FN2]

Anything less than "strict compliance" in drafting the environmental review "offers [the proponent of a proposed project] an incentive to cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment". King v Saratoga County Board of Supervisors, 89 NY2d 341, 347-48 (1996).

As SEQRA contains no guidance regarding judicial review, this court must be guided by the 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 also Matter of Gernatt Asphalt Products, Inc. v Town of Sardinia, 87 NY2d 668 (1996). [*5]

Discussion

The co-lead agencies on the RSD project, the New York City Department of Environmental Protection (DEP) and the Department of City Planning (City Planning), made a preliminary determination that the project would have a significant effect on the environment. Accordingly, Hudson Waterfront prepared both an EIS and, ultimately, a final EIS (FEIS) with respect to the RSD, and on October 11, 1992, the DEP and City Planning issued a Notice of Completion for the RSD FEIS. On October 26, 1992, the RSD was also approved by the City Planning Commission and soon thereafter, approval for the development was given by the City Council, and construction began. As of this motion, the RSD is still under construction and the exit ramp is still open.

Petitioners collectively seek an order nullifying and vacating the approval granted by NYCDOT on the grounds that such approval was improper in that respondents did not fulfill their legislative and regulatory responsibilities by failing to consider the specific environmental effects of closing the West 72nd Street exit ramp, and that NYCDOT's finding of adequate consideration and compliance with SEQRA/CEQR, are unsupported by the FEIS, or any supplemental EIS, and therefore, void.

Respondents maintain that the NYCDOT's finding, that the environmental review contained in the1992 FEIS adequately analyzed all relevant areas of environmental concern, complied fully with SEQRA/CEQR requirements. In addition, respondents point out that the technical analysis, requested by NYCDOT, and prepared by Hudson Waterfront in 2003, fails to reveal any potential, significant, adverse impacts to traffic, air quality or noise conditions stemming from the ramp closure that were not previously disclosed in the 1992 FEIS.

The parties' chief dispute is whether the 1992 FEIS satisfied the requirements of SEQRA/CEQR with respect to the proposed ramp closure. The Court of Appeals provides the following guidance with respect to the instant petition: "In a statutory scheme whose purpose is that the agency decisionmakers focus attention on, and mitigate, environmental consequences, it is the role of the court not to weigh the desirability of proposed action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively. Substantively, the courts in this limited adjudicative function must assure that the agency has identified the relevant areas of environmental concern, taken a 'hard look' at them, and made a reasoned elaboration of the basis for its determination. An agency's responsibility under SEQRA must be viewed in light of a 'rule of reason'; not every conceivable environmental impact, mitigating measure or alternative, need be addressed in order to meet the agency's responsibility."

Neville v Koch, 79 NY2d 416, 424-25 (1992)(emphasis in original).

An examination of the submitted documents reveals that the 1992 FEIS contains detailed analyses as to many aspects of environmental concern. Such environmental analyses generally focused on sewage infrastructures; mass transit concerns; differences in noise levels and air quality resulting from the lowering of the (currently elevated) Miller Highway; shadows and changes in sunlight created by the project's development; increased rush hour traffic generated on [*6]the highway, both northbound and southbound, as a result of the RSD; and the impact on waterfront views if changes are, or are not, made to the Miller Highway.

References made to the planned closure of the exit ramp in the 1992 FEIS, which consists of approximately 570 pages, are few, but include the following:

If the Miller Highway is relocated inboard on the project site, the new highway would run between 72nd Street and 59th Street, partly beneath the extension of Riverside Drive, proposed as part of the project. The existing elevated highway would be demolished. Details concerning alternatives, schedules, and construction staging for relocation of the Miller Highway are not yet available. A general description of the relocation of the highway and its effects follows:... After completion of this at-grade segment, the next phase of the highway relocation would be north of 70th Street, including the connection to the Henry Judson Parkway in Riverside park. This phase of construction would involve detouring traffic . . . The northbound exit ramp at 72nd Street would be permanently closed. This section of construction would also require some construction in Riverside Park, to connect the new, lower highway to the Henry Hudson Parkway. This would involve lowering the parkway by about 8 feet at 72nd Street, sloped up to meet existing grade at 75th Street . . . The pedestrian walkway at 73rd Street might also be temporarily closed. When construction is completed, the park and walkway would be reopened. The highway would be permanently lowered in elevation, and the arched substructure of the highway at 72nd Street would be removed.

(Respondents' Exhibit H, FEIS, at S - 49)(emphasis supplied).

While reference is made to the West 72nd Street exit ramp, in this and a few other sections of the FEIS, a thorough and exhaustive review of the 1992 FEIS fails to reveal that any identification was made of areas of environmental concern that are specifically related to the 72nd Street exit ramp's closure, let alone the requisite "hard look" by the agency. Neville v Koch, 79 NY2d at 425. The FEIS not only fails to analyze the environmental impact of the proposed closure of the exit ramp, but the drafters of the FEIS specifically stated that the closure of the ramp required discretionary approval action of its own, in the section of the FEIS dealing with required discretionary City, State and Federal agency approval actions [S12-14]. In that section, they explicitly concede this failing, at S-14:

"Approval would be required from NYSDOT for the closing of the northbound exit ramp from the Miller Highway at 72nd Street. It should also be noted that the analyses presented in this section are all based on the assumption that the city and/or state approvals necessary to close the Miller Highway northbound exit ramp at 72nd Street will be obtained. The closure of this ramp is not certain because it must undergo a discretionary approval action of its own. Should this action not be approved by relevant agencies and the closure of this ramp not possible, the project would have to be redesigned and undergo a new review process."

(Respondents' Exhibit H, at S-14) [FN3]. [*7]

In fact, this cautionary language is repeated in substantial form at S-38, with the drafters again emphasizing: "[s]hould this action not be approved by relevant agencies and the closure of the ramp not be possible, the project would have to be redesigned and undergo a new CEQR review process." Thus, respondents' claim, that the time has passed to raise complaints as to any inadequacies which were present in the 1992 RSD EIS (as it relates to the 72nd Street ramp), must fail as the EIS made clear that the process for the separate discretionary approval on the closure of the ramp would take place in the future.

The drafters' words are unambiguous, and respondents fail to state, or make reference to, any section of the FEIS where such separate discretionary approval was given for the closure of the ramp; nor do they specify where such environmental analysis relating to the ramp closure can be found. Respondents repeatedly assert that since the FEIS was drafted in 1992: (1) there have been no additional and/or significant changes in the projected environmental impact due to this project; and (2) NYCDOT's approval of the ramp closure in 2004 was in compliance with all applicable SEQRA/CEQR requirements as NYCDOT, in consultation with DCP and DEP, based its review on the environmental record presented in the 1992 FEIS, as validated by the technical analyses prepared by the developer's traffic consultant in 2003 [FN4]. Respondents' assertions, however, are unsupported by the submitted record. Moreover, the inadequacy of the 1992 FEIS, as it relates to the 72nd Street exit ramp, cannot be remedied retroactively, by the drafting of a mere technical analysis in 2003, 11 years later, which also fails to comply with the requirements of SEQRA/CEQR; nor can one or more private meetings with a few representatives of petitioners substitute for mandated "public review and comments" as respondents have "only allowed limited participation and scrutiny". Williamsburg Around The Block Assn. v Giuliani, 223 AD2d at 73-74. SEQRA demands erring on the side of the meticulous preparation of an environmental impact statement, with strict, not merely substantial, compliance with its terms. King v Saratoga County Board of Supervisors, 89 NY2d at 347-48.

Finally, respondents attempt to shift the responsibility of proposing alternatives to the exit ramp closure to petitioners. This also contradicts the specific terms of the statute, which provides that it is the lead agencies which must prepare an EIS which includes a reasonable range of alternatives [see ECL 8-0109(4); ECL 8-0109(2); Town of Dryden v Thompkins County Bd. of Representatives, 78 NY2d 331, 333-34 (1991) ] , including a "no action" alternative, to the proposed action. Jackson v NYS Urban Development Corp., 67 NY2d at 416 (1986); 6 NYCRR617.9 (b)(5). In fact, the 1992 EIS assumed that the 72nd Street exit ramp would be closed, so it did not address any "alternatives" much less a "no action" alternative.[FN5] Given respondents' failure to comply with the provision of SEQRA and CEQR the approval given to close the 72nd Street exit ramp is rendered null and void. See Chinese Staff and Workers Assn. v City of New York, 68 NY2d at 369. [*8]

In accordance with the above decision, it is ORDERED and ADJUDGED that the petition is granted, with costs and disbursements to petitioners to be taxed by the Judgment Clerk upon the presentation of a proper bill of costs, to the extent that: (1) the approval granted by respondent NYCDOT permitting the closure of the 72nd Street exit ramp on the West Side Highway is null and void;(2) the matter is remanded to respondent NYCDOT for appropriate environmental review of the proposed closure of the 72nd Street exit on the West Side Highway which strictly complies with the terms set forth in SEQRA/CEQR; and(3) an injunction is granted prohibiting any further construction, demolition or other work that would result in the closure of the West 72nd Street exit ramp until such time as the NYCDOT has fully complied with SEQRA/ CEQR.

This constitutes the decision, order and judgment of the court, which petitioners shall serve upon respondents with notice of entry within 30 days.

Dated:October 8, 2004ENTER:

____________________________

Doris Ling-Cohan, J.S.C. C:\htformat\f5188750.txt Footnotes

Footnote 1:Hudson Waterfront Associates is also known as Trump New World Project Management Ltd./Hudson Waterfront Associates LP.

Footnote 2: The correct citation for the provision on "no-action alternative" is 6 NYCRR 617.9(b)(5)(v).

Footnote 3: It is undisputed that the relevant agency is not NYSDOT but NYCDOT.

Footnote 4: Respondents frequently refer to a "review," without specifying whether the review is in reference to the FEIS, or to the technical analysis, or both.

Footnote 5: Absent in the EIS is, inter alia, any consideration or analysis of traffic if the ramp were left open, or consideration of other design alternatives to meet the traffic needs of the project rather than the closing of the ramp itself.