Matter of Municipal Art Socy. of NY Inc. v New York State Convention Ctr. Dev. Corp.

[*1] Matter of Municipal Art Socy. of NY Inc. v New York State Convention Ctr. Dev. Corp. 2007 NY Slip Op 51031(U) [15 Misc 3d 1138(A)] Decided on May 21, 2007 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2007
Supreme Court, New York County

In the Matter of the Application of Municipal Art Society of New York, Inc., CHRISTIE BERTHET, META BRUNZEMA, VERA LIGHTSTONE, KATHLEEN TREAT, and HELL'S KITCHEN NEIGHBORHOOD ASSOCIATION, Petitioners, For Judgment Pursuant to Article 78

against

New York State Convention Center Development Corporation, NEW YORK STATE URBAN DEVELOPMENT CORPORATION a/k/a EMPIRE STATE DEVELOPMENT CORPORATION, and NEW YORK STATE CONVENTION CENTER OPERATING CORPORATION, Respondents.



106245/06

Michael D. Stallman, J.

In this CPLR Article 78 proceeding, petitioners challenge the determination by the respondent agencies that they can implement the proposed expansion of the Jacob K. Javits Convention Center (Javits Center) and development of its surroundings, without preparing a "Supplemental Environmental Impact Statement (SEIS)," pursuant to the State Environmental Quality Review Act (SEQRA).

The petition (Sequence No. 001) and respondents' motions (Sequence Nos. 002 and 003) are consolidated for disposition. In Motion Sequence Number 002, respondents New York State Convention Center Development Corporation (CCDC) and New York State Urban Development Corporation a/k/a Empire State Development Corporation (ESDC) move for an order dismissing the amended petition as against them.

In Motion Sequence Number 003, respondent New York State Convention Center Operating Corporation (CCOC) moves for an order dismissing the petition as against it.

Factual Background and Allegations

As set forth in the amended verified petition, petitioners include (1) Municipal Art Society (MAS), a not-for-profit corporation that advocates sound city planning, architectural and neighborhood preservation, and excellence in urban design and public art; (2) Hell's Kitchen [*2]Neighborhood Association (HKNA), a not-for-profit corporation that seeks to improve the quality of life of the Hell's Kitchen neighborhood, which includes the area from West 34th Street to West 59th Street, and from Eighth Avenue west to the Hudson River, focusing on health and safety; (3) Christine Berthet, a neighborhood resident; (4) Meta Brunzema, a neighborhood resident of a loft space; (5) Vera Lightstone, a neighborhood resident who maintains an art studio in her loft; and (6) Kathleen Treat, a neighborhood resident and a member of MAS and the board chair of HKNA.

Respondent CCOC is a public benefit corporation, and is responsible for the operation and maintenance of the Javits Center. Respondent CCDC is responsible for site acquisition, design, development, and construction of the expansion to the Javits Center. Respondents ESDC is a corporate governmental agency of State of New York, and it has a 50% interest in CCDC.

In 2004, the Metropolitan Transportation Authority (MTA) and the City's Planning Commission (CPC), as co-lead agencies, sought to promote a transit-oriented redevelopment of the "Hudson Yards" area, which generally encompasses 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 Eighth Avenues on the east (Original Project). The proponents of the Original Project described it as a comprehensive effort to realize the development potential of the Hudson Yards area, and to expand, maintain, and improve the competitiveness of existing resources, such as the Javits Center, and they contended that an extension of the No. 7 Subway Line would help realize this purpose (see Matter of Hell's Kitchen Neighborhood Assn. v New York City Dept. of City Planning, 6 Misc 3d 1031(A), 2004 WL 3218419 [Sup Ct, NY County 2004]).

Specifically, the Original Project contained the following proposals: (1) 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 terminus at Eleventh Avenue and West 34th Street; (3) expansion of the Javits Center northward to West 42nd Street, combined with the construction of a new Convention Center hotel; and (4) development by ESDC of a new 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 Rail Yard between Eleventh and Twelfth Avenues from West 30th to West 33rd Streets. The proposed multi-use facility was anticipated to provide a venue for a variety of sports, exhibition, and entertainment events, and it was intended to become the home stadium for the New York Jets football team (see id.).

According to SEQRA, all agencies that regulate activities of individuals, corporations, and public agencies, that are found to affect the quality of the environment, are to regulate such activities so that due consideration is given to preventing environmental damage (Environmental Conservation Law [ECL] § 8-0103 [9]). SEQRA requires the preparation of an Environmental Impact Statement (EIS) on any action that the applicant proposes or approves that may have a significant effect on the environment (ECL § 8-0109 [2]), as does the City Environmental Quality Review (CEQR) (62 RCNY § 6-08).

The MTA and the CPC prepared a final "generic" EIS (FGEIS) as co-lead agencies under SEQRA, Article 8 of the ECL, and CEQR requirements, as established in Executive Order No. 90, 1977, and as set forth in its implementing rules and procedures, Title 62, Chapter 5, of the Rules of the City of New York (FGEIS, Vol. 1, at 3-1). Department of Environmental Conservation regulations permit a generic EIS to be used which may be broader and more general than site or [*3]project specific EISs (6 NYCRR 617.10 [a]; Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 318 [2006]). Although the MTA and CPC prepared the FGEIS for the Original Project, respondents are relying on it in part for SEQRA purposes for the project at issue here.

The FGEIS consists of eight volumes, containing 8,300 pages of text, figures, and technical appendices, including responses to public comments received on the draft generic EIS (DGEIS). Volume One chapters include Purpose; Description; Analytical Framework; Land Use; Zoning and Public Policy; Socioeconomic Conditions; Community Facilities and Services; and Open Space and Recreation Facilities. Volume Two chapters include Shadows; Architectural Historic Resources; Archeological Resources; Urban Design and Visual Resources; Neighborhood Character; Natural Resources; and Hazardous Materials. Volume Three chapters include Waterfront Revitalization Program; Infrastructure; Solid Waste and Sanitation Services; Energy; and Traffic and Parking. Volume Four chapters include Transit and Pedestrians; Air Quality; Noise and Vibration; Construction Impacts; Public Health; Unavoidable Adverse Impacts; Alternatives; Growth-Inducing Aspects of the Proposed Action; and Irreversible and Irretrievable Commitments of Resources. Volumes Five through Seven consist of technical appendices containing proposed zoning text and map amendments, and documentation of the analyses performed regarding the categories examined as set forth in the prior volumes. Volume Eight contains the written comments and responses to the comments and a transcript of the DGEIS Public Hearing held on September 23, 2004.

The FGEIS assesses the future conditions for two separate years: 2010, representing the projected first full year of operation of the No. 7 subway extension, "Phase I" of the Javits Center expansion, and the multi-use facility; and 2025, representing the substantial build-out by that date of the balance of the privately developed office space, residences, retail, and related uses permitted by the rezoning (FGEIS, Vol. 1, at 3-20). The FGEIS also assesses the future of the area without the proposed action for the same analysis years, 2010 and 2025 (FGEIS, Vol. 1, at 3-22). Construction impacts are assessed for two years: year 2006, at which point construction activities for the proposed No. 7 Subway Extension and other large-scale elements of the Original Project, including "Phase I" of the Convention Center expansion and the multi-use facility would be under way; and year 2017, at which point substantial real estate development allowed under the proposed rezoning would be underway (FGEIS, Vol. 1, at 3-21).

The proponents abandoned the plan to construct a stadium (i.e., the multi-use facility) when, on June 6, 2005, the Public Authorities Control Board did not vote unanimously to approve the proposal. In Matter of Hell's Kitchen Neighborhood Assn., Justice Cahn exercised discretion to grant petitioners' request for discontinuance of the action, over respondents' objection, finding that continuation in the face of elimination of the most prominent proposed element of the FGEIS and the whole Hudson Yards development plan the stadium would constitute an ill-advised use of the court's compulsory power (Matter of Hell's Kitchen Neighborhood Assn. v New York City Dept. of City Planning, NYLJ, December 7, 2005, at 18, col 3). However, as described in Matter of C/S 12th Ave. LLC v City of New York (32 AD3d 1 [1st Dept 2006]), while arguably the stadium was the most controversial element of the Original Project, it was not the Original Project's centerpiece (id. at 8).

The present plan at issue in this proceeding is known as the "Jacob K. Javits Convention Center Expansion and Renovation Civic Project and Land Use Improvement Project" (Project). According to CCDC's "General Project Plan Phase I," dated July 18, 2006 (GPP), the principal [*4]elements of the Project include: (1) the renovation and expansion of the Convention Center; (2) the creation of a multi-level combination truck security screening, marshaling, and loading facility on the site located along Twelfth Avenue south of West 40th Street; (3) the creation of a Convention Center hotel on the site located between Eleventh Avenue and Hudson Boulevard from West 35th to West 36th Streets; and (4) commercial and residential development of the block bounded by West 34th Street, Eleventh Avenue, West 33rd Street, and Twelfth Avenue. ESDC is the lead agency for the environmental review of the Project (GPP, at 1).

According to the GPP, the existing Javits Center is in need of repair, lacks a sufficient amount of prime exhibition space, including an inadequate amount of contiguous space, to attract the largest conventions and trade shows. Because of the strong attraction of New York as a convention, trade show, and event destination, the Javits Center operates at near or full capacity and has been forced to turn away business. Additionally, the Javits Center has no "headquarters" hotel at or near it, and event exhibitors prefer a hotel that is directly connected to or immediately adjacent to a convention center (id. at 2-5).

In connection with the Project, AKRF, Inc. prepared a "Technical Memorandum," dated July 11, 2006, which examined the potential environmental effects associated with the proposed modifications to the expansion and renovation of the Convention Center and changes in background conditions to determine whether these factors may cause any potential significant adverse environmental impacts that the FGEIS had not previously identified. The Technical Memorandum concluded that they would not, and therefore, that ESDC was not required to prepare a supplemental EIS (SEIS) in connection with its review and consideration of the proposed modifications. At a meeting held on May 17, 2006, CCOC approved the plans and design of the Project. As set forth in its findings statement dated July 18, 2006 (Findings Statement), ESDC, as lead agency, approved the Project.

This proceeding challenges ESDC's determination and findings. The amended petition seeks a judgment pursuant to Article 78 of the CPLR: (1) annulling and vacating the determination that no SEIS is needed for the Javits Center expansion and associated development; annulling and vacating ESDC's Findings Statement; annulling and vacating the Project's approval that was based on the Findings Statement; (2) enjoining respondents from granting any approvals for the Convention Center expansion until they have complied with SEQRA; (3) enjoining respondents from beginning any construction in connection with the Project; and (4) awarding petitioners costs and disbursements.

Petitioners argue that the decision not to require a supplemental EIS was arbitrary and capricious because (1) there have been numerous changes to the Javits Center proposal, to the planned uses nearby, and to the underlying factual circumstances since the prior lead agencies completed the FGEIS for the Original Project, and (2) the Project will have at least one, or perhaps more, significant adverse environmental impacts, thereby triggering both prongs of the mandatory supplementation requirement of 6 NYCRR 617.10 (d) (4).

Petitioners contend that respondents' conclusion that no SEIS is necessary has several flaws, the most glaring of which are the following: (1) the revised plan eliminates a proposed park adjacent and integral to the stadium that the Original Project planned for the full block bounded by West 33rd and West 34th Streets and Eleventh and Twelfth Avenues (33/34 Site), and proposes instead to build a mixed-use development with 2.2 million square feet; (2) respondents allegedly assume that the site [*5]originally planned for a stadium will now remain an undeveloped, open rail yard, even though all relevant State and City officials acknowledge a likely future development at that location of approximately 6.8 million square feet; and (3) the determination is based on an analysis that found that the revised plan's traffic congestion impacts were serious enough to require mitigation, a normal trigger for an EIS.

According to petitioners, the Technical Memorandum improperly determined that an SEIS was not needed although: (1) the Project includes a major private development on the 33/34 Site. Instead of a park, the block will have a 50-story residential tower, a 45-story residential tower, and a 46-story office building with an adjacent trading floor building and parking for 500 cars; (2) the Project switches the location of the truck marshaling facility for the Javits Center from an underground facility on the south side at West 34th Street to an aboveground, multi-level facility on the north side between West 39th and West 40th Streets; (3) the Project switches the location of a hotel for the Convention Center from the northwest corner of West 41st Street and Eleventh Avenue to the east side of Eleventh Avenue at West 35th Street; and (4) it limits the northern expansion of the Javits Center to West 40th Street, rather than West 41st Street, and, instead, adds additional floors.

Petitioners now argue that respondents failed to take a "hard look" at the potential environmental impacts, and that they impermissibly segmented the overall action, so as to be arbitrary and capricious and contrary to SEQRA, thereby meriting annulment of the determination that an SEIS was not required. For their part, respondents seek dismissal of the petition on procedural and substantive grounds. Respondent CCOC argues that the amended petition does not contain any allegations of wrongdoing on its part, and that it is not a necessary party.

I.

As a preliminary matter, respondents argue that the Court should dismiss the amended petition on various procedural grounds, including standing, statute of limitations, res judicata and exhaustion of administrative remedies.

Standing

Respondents argue that petitioners do not have standing to challenge the lead agency's SEQRA determination because they fail to demonstrate, or even plead, any cognizable environmental injury that is different from that that may be suffered by the general public. Respondents contend that petitioners do not allege that they are immediately adjacent to the Javits Center; instead, they reside in the Javits Center's general neighborhood, which, they argue, is not sufficient to confer standing.

To have standing to challenge any administrative action, a petitioner must show injury in fact as aa result of the action, and that the petitioner asserts an interest that arguably is within the zone of interest that applicable law aims to protect (Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433 [1990]; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 412, rearg denied 70 NY2d 694 [1987]). The petitioner must have a legally cognizable interest that the agency determination will affect (Matter of Mobil Oil Corp., 76 NY2d at 433). In land use matters, the petitioner must show that he or she would suffer direct harm and injury that, in some way, differs from that of the public at large (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 [1991]). "To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature" (Matter of Mobil Oil Corp., 76 NY2d at 433). The amended petition's [*6]allegations satisfy these requirements.

Petitioner Berthet resides at 348 West 38th Street, New York, New York, where she has lived for the past 25 years, and where she maintains a family-owned record business. According to Berthet, her home and office overlook West 37th Street and Ninth Avenue, the location of one of the most congested access ramps to the Lincoln Tunnel. She alleges that, on a daily basis, she is affected by emissions arising from the massive gridlocks of motor vehicles at this intersection. Petitioner Brunzema resides in a loft space at 459 West 35th Street, between Ninth and Tenth Avenues. She claims that, her daily routine requires her to cross the entrance to the Lincoln Tunnel, which is usually heavily congested, with heavy emissions of noxious and polluting gases. Petitioner Treat, who resides at 400 West 43rd Street, at the corner of Ninth Avenue, alleges similar difficulties that she faces given the proximity of her apartment to a major route access to the Lincoln Tunnel. Petitioner Lightstone resides at 347 West 39th Street and maintains an art studio in her loft. At age 75, she finds that walking in her congested neighborhood subjects her to dangerous traffic and associated emissions, and that it is often impossible for her to cross the street.

In the context of zoning, aggrievement may be inferred from the close proximity of the petitioners' property to the area of administrative action, and it permits an inference that the challenger possesses an interest different from other members of the community at large. (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668 [1996]; Matter of Stephens v Gordon, 202 AD2d 437 [2d Dept 1994]). In such circumstances, a petitioner need not show actual injury (Cremosa Food Co. v Petrone, 304 AD2d 606 [2d Dept 2003]).

Irrespective of whether this rule extends to the context presented here,[FN1] petitioners have standing because they allege that that the close proximity to the subject area will cause them to be exposed to hazardous air emissions, excessive vehicle traffic, and an undue increase in noise, thereby alleging environmental harm different from that suffered by the public at large (Matter of Long Is. Contractors' Assn. v Town of Riverhead, 17 AD3d 590, 594 [2d Dept 2005]). On this pre-answer motion to dismiss, petitioners are entitled to the benefit of all reasonable inferences, including the inference that the expansion of the Convention Center, and the development of the surrounding community will increase traffic in the Lincoln Tunnel area, with its accompanying adverse environmental effects. To adopt respondents' attempt to minimize the potential environmental impact on these petitioners would violate the Court of Appeals' direction that principles of standing not be applied in a "heavy-handed" manner (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 413).

As for MAS and HKNA, they must demonstrate: (1) that one or more of their members has standing to sue; (2) that the interests advanced are sufficiently germane to petitioners' purposes to satisfy the Court that these petitioners are appropriate representatives of those interests; and (3) that the participation of the individual members is not required to assert this claim or to afford petitioners complete relief (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, supra; see also Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 330 [1998]). As is [*7]the case with the individual petitioners, discussed above, MAS and HKNA meet these requirements.

Petitioner Treat is a member of MAS which purports to advocate for sound city planning, architectural and neighborhood preservation, and excellence in urban design and public art and she is the board chair of HKNA, a not-for-profit corporation with a stated mission of seeking to improve the quality of life (with a focus on community health and safety) of the Hell's Kitchen area. Many of its nearly 300 members allegedly live within the area that the Convention Center expansion would most likely affect.

Statute of Limitations

Respondents argue that the amended petition is untimely, inasmuch as petitioners' challenge to the Technical Memorandum is, in actuality, a challenge to the validity of the FGEIS. According to respondents, petitioners contend that the Technical Memorandum should have included an analysis of impacts of PM2.5 ( fine particulate matter) from existing stationary sources and a security analysis of the Project (discussed in detail below), and, therefore, the absence of an analysis of these considerations in the Technical Memorandum is really a complaint about the FGEIS, which also omitted such analysis. The statute of limitations for an Article 78 proceeding challenging a municipality's compliance with SEQRA is four months (see e.g. Matter of Metropolitan Museum Historic Dist. Coalition v De Montebello, 20 AD3d 28, 33 [1st Dept 2005]), which began to run when the lead agencies took final action on the FGEIS. Respondents argue further that merely because an approval from another agency is required or a subsequent determination is made as to whether an SEIS is required does not toll that four-month period.

This argument is unpersuasive as applied here. Although the proceeding could, perhaps, be construed as a challenge to the sufficiency of the FGEIS, it is primarily a challenge based, in part, upon the FGEIS, but only in conjunction with the proposed modification to the Original Project and the resulting Technical Memorandum. Where an agency's determination commits the agency to a definite course of future conduct, such determination constitutes an action within the meaning of SEQRA, and, at the same time, a final action for statute of limitations purposes (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202 [1987]; Matter of Jones v Amicone, 27 AD3d 465, 468 [2d Dept 2006]). That final action here follows from the completion of the Technical Memorandum, the Findings Statement, and the conclusions contained therein, and respondents' adoption of those findings, and not the FGEIS.

Res Judicata

Respondents argue that the doctrine of res judicata bars HKNA and Brunzema's claims that the Technical Memorandum should have included a PM2.5 air quality analysis and a security analysis because they were petitioners in the proceeding entitled Matter of Hell's Kitchen Neighborhood Association Proceeding, et al. v New York City Department of City Planning, et al. (Supreme Court, New York County, Index No. 117957/04), which petitioners voluntarily withdrew prior to an adjudication on the merits. By decision dated September 28, 2005, the court (Cahn, J.) ordered the withdrawal of the special proceeding with prejudice.

This argument has the same flaw as the statute of limitations argument, addressed above. Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if the claim is based upon different theories or the claim is seeking a different remedy (Schwartzreich v E.P.C. Carting Co., 246 AD2d 439 [1st Dept 1998]). Here, however, the challenge is not to the FGEIS, the subject matter of the prior proceeding, but to [*8]the determination at issue here, that respondents are not required to prepare an SEIS. Petitioners could not have raised that issue in the prior proceeding, thereby making res judicata inapplicable (Benjamin v Morgan Guar. Trust Co. of NY, 163 AD2d 135, 137 [1st Dept 1990]).

Exhaustion of Administrative Remedies

As a final procedural argument, respondents assert that, because petitioners failed to raise their security or air quality concerns or tender their consultant's traffic analysis during the public comment period, they are barred from raising those concerns and relying on their consultants' traffic analysis for the first time in this proceeding. The record indicates, however, that petitioners did participate during the public comment period, and that they raised these concerns therein (see Paget Affirm., Ex R-H [letter dated June 14, 2006 from Arnold Porter LLP, on behalf of petitioners]).

To the extent that respondents argue that these comments should have been raised during the administrative proceeding of the Original Project, the argument fails because petitioners are challenging the Technical Memorandum, not the sufficiency of the FGEIS.

II.

Respondents argue that they properly determined that an SEIS was not required under SEQRA because the proposed modifications do not have the potential to generate any significant adverse environmental impacts that the FGEIS had not previously identified.

On this motion to dismiss the Article 78 proceeding, viewing the claims in a light most favorable to petitioner, the Court must examine the claims and documentary evidence to determine if petitioners set forth a valid claim for Article 78 relief. The Court must limit its review to deciding whether there is a basis for petitioners to claim that the determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary or capricious or an abuse of discretion. The court's role is not to weigh the desirability of any proposed actions or choose among alternatives, but only to insure that respondents have satisfied substantive and procedural requirements of SEQRA and its implementing regulations (Matter of Village of Westbury v Department of Transp. of State of NY, 75 NY2d 62, 66 [1989]; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d at 3).

SEQRA does not set forth specific standards for judicial review, and so review of SEQRA determines must be guided by standards applicable to administrative proceedings generally (CPLR 7803 [3]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416 [1986]). In its review, the court must (1) determine whether the agency procedures were lawful and (2) determine from the record whether the agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination (id. at 417). A "rule of reason" governs the judicial inquiry, and the agency need not identify and address every conceivable environmental impact before a final EIS will satisfy SEQRA's substantive requirements (id.; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601 [2d Dept], appeal denied 72 NY2d 807 [1988]).

The purpose of an SEIS is to account for new information bearing on matters of environmental concern not available at the time of the original environmental review (6 NYCRR 617.9 [a] [7]; Matter of Coalition Against Lincoln W., Inc. v Weinshall, 21 AD3d 215, 223 [1st Dept], lv denied 5 NY3d 715 [2005]). Merely because a project has changed, however, does not necessarily give rise to the need for the preparation of an SEIS. An SEIS is required only if environmentally significant modifications are made after the issuance of an EIS (Matter of C/S 12th Ave. LLC v City [*9]of New York, 32 AD3d at 3). Moreover, the decision that an SEIS is not necessary does not require a hearing or public comment (Matter of Coalition Against Lincoln W., Inc. v Weinshall, 21 AD3d at 223).

As a preliminary matter, petitioners argue that the procedure for approval of the Project was procedurally flawed because CCOC approved the Project without making its own, independent findings. They contend that CCOC's status as a participant in the Project (with responsibility for the operation and maintenance of the Javits Center) required it to conduct its own environmental findings, albeit it is not the Project's lead agency.

Irrespective of the merits of this assertion (which does not appear to be meritorious)[FN2], it is not properly before the Court, because petitioners failed to raise it during the administrative proceedings. Applying the doctrine of exhaustion of administrative remedies, courts generally refuse to review a determination on environmental matters based on evidence or arguments that were not presented during the proceedings before the agency (Matter of Miller v Kozakiewicz, 300 AD2d 399, 400 [2d Dept 2002]; Matter of Atkinson v Division of Hous. & Community Renewal, 280 AD2d 326 [1st Dept 2001]). Moreover, petitioners failed to raise this issue in the amended petition. Instead, they raised it for the first time in opposition to respondents' motion (see Matter of Town of Pleasant Val. v Town of Poughkeepsie Planning Bd., 289 AD2d 583 [2d Dept 2001] [assertion raised for first time in memorandum of law served after service of respondents' answers], lv denied 98 NY2d 602 [2002]).

Petitioners also argue that an SEIS is required, because the new proposal for the 33/34 Site, consisting of construction of nonresidential facilities of more than 240,000 square feet, will presumptively have an adverse environmental effect (citing 6 NYCRR 617.4 [b] [6] [v]).[FN3] The FGEIS analyzed the environmental issues of this portion of the Project in detail, albeit in the Original Project whereby the commercial development was slated for the West 35th/West 36th Street block rather than the 33/34 Site (Reply Affidavit of Debra C. Allee, sworn to November 16, 2006, ¶¶ 2-4).

Petitioners also argue that respondents will make changes at five intersections to accommodate increased traffic from the new expansion plan. Brian Ketcham, a licensed professional engineer in New York, states that he analyzed traffic at three intersections using traffic volumes from the Technical Memorandum that show that the proposed modifications will cause significant impacts. For example, the traffic impacts at the intersection near to the 33/34 Site will effectively be those of a 2.2 million square foot development, thereby requiring an SEIS.

In the FGEIS, the agencies detailed the mitigating measures that they intend to implement in response to anticipated increased traffic, including customary measures such as signal retiming, elimination of parking at intersection approaches, lane channelization, and additional measures such [*10]as elimination of curb extensions at corner "bulb outs" along Route 9A (Twelfth Avenue), restrictions on turn movements, the deployment of NYPD Traffic Control Officers, dedicated traffic lanes and signal timing adjustments for pedestrians on West 33rd Street between Eighth and Eleventh Avenues and on West 30th Street between Tenth and Twelfth Avenues, and the construction of new pedestrian overpasses at Route 9A and West 33rd and 39th Streets (see Chapter 19, Traffic and Parking Analysis).

As a practical matter, these types of mitigation measures, thoroughly analyzed in the FGEIS, are adaptable to the proposed modifications to the Original Plan. Respondents are not challenging the adequacy of the FGEIS which has been judicially declared valid under the requirements of SEQRA (Matter of C/S 12th Ave. LLC v City of New York (32 AD3d at 3). As stated by the Court of Appeals: "[A] court must examine whether the proposed mitigating measures, incorporated as part of an open and deliberative process, negated the project's potential adverse effects. Under such circumstances, the proposal, as revised, could still result in a determination of nonsignificance and the issuance of a valid negative declaration" (Matter of Merson v McNally, 90 NY2d 742, 753 [1997]). Such is the case here.

Petitioners also argue that respondents improperly segmented portions of the overall action in that the Javits Center expansion, and the development of the West Side Rail Yard, are part of the same interdependent plan for the development of the far west side of midtown Manhattan. Thus, they contend, respondents cannot postpone the consideration of the impacts of development of the West Side Rail Yard until a later date.

Segmentation is defined in SEQRA as the "division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance" (6 NYCRR 617.2 [ag]). Segmentation is the dividing for environmental review of an action in such a way that the various segments are addressed as though they were independent and unrelated activities, and it is contrary to the intent of SEQRA, and is disfavored (Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d 20 [3d Dept], lv denied 92 NY2d 808 [1998]). Segmentation is to be avoided so as to insure that interrelated projects, the overall effect of which is environmentally significant, are not fractionalized into smaller, less significant actions (Stewart Park Reserve Coalition, Inc. (SPARC) v Slater, 352 F3d 545, 554 [2d Cir 2003]; see also Matter of Maidman v Incorporated Vil. of Sands Point, 291 AD2d 499 [2d Dept 2002]).

Here, respondents have neither proposed nor developed any specific plans for the development of the West Side Rail Yard, although the City does intend that the West Side Rail Yard be developed in the future. The agencies involved abandoned the specific plan developed to date, namely, construction of the multi-use facility (Technical Memorandum, at 15). Until the lead agencies prepare an EIS, and they undertake environmental review, there is no way to know with reasonable certainty aspects such as the allowable uses of the area, whether affordable housing would be mandated, the maximum permitted floor area ratio, and the physical layout of a proposed redevelopment (see Affidavit of Daniel L. Doctoroff, Deputy Mayor for Economic Development and Rebuilding, sworn to September 28, 2006). The agency is required to consider only reasonable, non-speculative possibilities of environmental impact (Matter of Fisher v Giuliani, 280 AD2d 13, 21 [1st Dept 2001]). Thus, although preliminary steps in the planning of the West Side Rail Yard redevelopment have been undertaken, an EIS is not now required because the agencies have not [*11]actually formulated and proposed a specific project plan for its development (Matter of Programming & Sys. v New York State Urban Dev. Corp., 61 NY2d 738, 739 [1984]).

Moreover, that an FGEIS has already been prepared that relates to an environmental review of the present proposal will not exempt future action from further scrutiny, because environmental review may be separately undertaken when the additional plans have actually been formulated (see River Ctr. v Dormitory Auth. of State of NY, 275 AD2d 683 [1st Dept 2000], lv denied 96 NY2d 703 [2001]). If and when the planning process for the future development of the West Side Rail Yard is completed, the ultimate plan will be subject to extensive environmental review in its own right, including environmental review under SEQRA and CEQR, as well as the public review process mandated by the City's Uniform Land Use Review Procedure (Allee Aff. ¶ 56).[FN4]

Furthermore, the utility of the present proposal renovation and expansion of the Javits Center, creation of a multi-level combination truck security screening, marshaling, and loading facility, the creation of a Convention Center hotel, and the 33/34 Site development does not depend upon any subsequent development of the West Side Rail Yard. The planning of the Javits Center expansion proceeded on a track separate and apart from any potential development of the West Side Rail Yard (see Shatz Aff.). Indeed, the Original Project contemplated expansion of the Javits Center and the construction of a new Convention Center hotel, together with the construction of the multi-use facility (stadium) at the West Side Rail Yard, and yet the abandonment of the stadium plan did not prevent the Javits Center plan from going forward. Thus, the Project is not dependent upon any particular plan of development of that area. Hence, the challenged plan does not constitute segmentation, because it has an independent utility and is not illogical when viewed in isolation (Stewart Park Reserve Coalition, Inc. (SPARC) v Slater, 352 F3d at 559]).

Petitioners argue that impacts from emissions of fine particulate matter (PM2.5) are of such health and environmental significance that they must be addressed in an SEIS. Instead, they argue, respondents have not analyzed the impact of PM2.5 emissions on buildings and their occupants. They assert that emissions from a smokestack at a Con Edison facility located at West 59th Street, and the Quill Bus Depot, which, unlike in the Original Project, will not be relocated, will cause significant impacts on the users of the proposed Hudson Yards residential and commercial buildings.[FN5] The FGEIS assumed that no Hudson Yards buildings, other than the convention center hotel, would be constructed near the Quill Bus Depot by 2010, and that the bus depot would subsequently be moved. Thus, because the proposed modifications leave the Quill Bus Depot at its present location, its emissions will impact nearby Hudson Yards project buildings constructed by 2025. Petitioners conclude that because the FGEIS analyzed emissions using a cumulative impact procedure for all project buildings, the Technical Memorandum should have applied the same procedure examining [*12]PM2.5 impacts and including emissions from the West 59th Street Con Edison station, the Quill Bus Depot, and the proposed 33/34 Site commercial building (see Gutman Aff.).

Petitioners fail to establish that the Air Quality analysis in Volume III of the FGEIS (the adequacy of which they do not challenge), combined with the analysis in the Technical Memorandum, are insufficient as a matter of law, and require an SEIS in this regard. Although petitioners' expert, Gutman, opines that respondents should have conducted an analysis of PM2.5 impacts from existing stationary sources, petitioners offer no authority that such type of analysis is mandated under the circumstances presented. Petitioners cite Matter of UPROSE v Power Auth. of State of NY (285 AD2d 603 [2d Dept 2001]), but there the Court held only that a PM2.5 impacts analysis was required for the proposed purchase and installation of 11 gas-powered turbine generators for use at various sites. In fact, the Department of Environmental Protection requires a PM2.5 analysis of only mobile source emissions at intersections and from facilities that vent mobile sources of diesel emissions (Lee Reply Aff. ¶ 4).

Moreover, petitioners challenge the alleged failure of the Technical Memorandum to conduct the same air quality analysis as that of FGEIS, yet the FGEIS did not analyze emissions from stationary sources (id., ¶ 5). Furthermore, according to respondents' expert, a separate analysis of PM2.5 emissions would be inconsequential, because PM2.5, like ozone, is a product of multiple emission sources, man-made and natural, and no regulatory or environmental purpose would be served by attempting to isolate the construction from two sources among many existing stationary sources (Lee Aff. ¶ 12). It is not the role of the court to resolve disagreements among experts where they are subject to reasonable disagreement (see Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40, 54-55 [1st Dept 2001], lv denied 97 NY2d 613 [2002] [differing conclusions rendered by other experts concerning potential adverse environmental impacts are insufficient to annul an agency's determination]; Fisher v Giuliani, 280 AD2d 13, supra).

Petitioners argue that there will be impacts on security caused by the movement of the truck marshaling yard from the 33/34 Site to a location that sits directly atop the Lincoln Tunnel, and that this is a significant change since the publication of the FGEIS. They assert that "in the post-September 11 world," grave risks are posed by having a facility for large trucks located directly atop such critical infrastructure, and, in support, they cite 6 NYCRR 617.9 (b) (6) which pertains to "foreseeable catastrophic impacts to the environment."

Security is an important consideration that city planning should always address. However, this proceeding is a challenge under SEQRA, the fundamental policy of which is to inject environmental considerations directly into governmental decision making (Matter of Merson v McNally, 90 NY2d at 750), as well as to consider social and economic factors (Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d at 51). Nothing in 6 NYCRR 617.9 indicates that SEQRA requires an analysis of security concerns. Indeed, 6 NYCRR 617.9 pertains to environmental impacts that can be reasonably anticipated, and it expressly refers to considerations such as "solid waste management," "groundwater protection," and "conservation of energy" (6 NYCRR 617.9 [a] [5]). The security concern raised by petitioners the location of a truck facility does not involve the use, production, or management of any inherently dangerous material that might otherwise bring security within the scope of environmental considerations.

Petitioners assert that changes in the visual appearance of the area surrounding the Javits Center will be dramatic, and, thus, the visual and aesthetic impacts should be addressed in an SEIS. [*13]They note that the height of the building will double, and its footprint will be extended to the north, resulting in a blank hulk of approximately 15 stories and a half-mile in length.

This argument misses the mark. The Technical Memorandum concludes that the Project will not result in any additional significant adverse impacts to urban design or visual resources not previously identified in the FGEIS (Technical Memorandum, at 29-32). Petitioners have not shown otherwise. Volume II of the FGEIS discusses in depth "neighborhood character," including land use, street layout, scale, type and style of development, historic features, patterns and volumes of traffic, noise levels, and other physical or social characteristics that help to distinguish the community, and the impact that a major development will have on the community (FGEIS, Vol. II, at 12-1 to 12-46).

Petitioners also argue that the diminution of the area's open space should be fully examined in an SEIS. They contend that the new expansion plan removes two of the key open space resources that formed part of the Hudson Yards program the full block park on the 33/34 Site and the five-acre green roof on the Convention Center and it adds population to the area and backtracks on one of the four major goals of the Original Project itself. They do not contend, however, that the amount of open space to be realized under the proposed modification will result in less open space than now exists. They assert only that the proposed modification envisions less open space than anticipated in the Original Project. Thus, this is not an adverse impact that requires the preparation of an SEIS. Because the FGEIS identified and analyzed a reasonable range of alternatives, judicial inquiry is at an end (Matter of Halperin v City of New Rochelle, 24 AD3d 768, 777 [2d Dept 2005], lv dismissed 7 NY3d 708 [2006] [context of zoning]).

The cases cited by petitioners in urging that an SEIS is required involve far different circumstances. For example, in Matter of Doremus v Town of Oyster Bay (274 AD2d 390 [2d Dept 2000]), the court determined that in the more than 10 years since the examination of the FGEIS submitted in connection with the prior rezoning application, significant changes in circumstances transpired. In 1987, the subject property was designated part of the Long Island Special Groundwater Protection Area, and the property was included in the 1992 Long Island Comprehensive Special Groundwater Protection Area Plan. ECL § 8-0109 (9) requires an EIS for any action with a significant impact on a special groundwater protection area. In 1995, the New York State Open Space Conservation Plan included the property on its list of unique open space resources, which protected the Long Island groundwater aquifer system. The Court held, therefore, that under these circumstances, the Town Board could not have met its obligation under SEQRA without requiring an SEIS to analyze the proposed rezoning in light of the change in circumstances since 1985. Petitioners have not identified a change in the circumstances to the site itself (as opposed to modifications to the plan) as was the case in Matter of Doremus v Town of Oyster Bay.

Petitioners' other arguments similarly lack merit.

CONCLUSION

In conclusion, the amended petition is dismissed because the documentary evidence conclusively disposes of the claims of the Article 78 petition. The record establishes that respondents identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for their determination, thereby satisfying their obligations under SEQRA (Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1, supra; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 415). Petitioners have not tendered [*14]sufficient evidence contradicting the documentary evidence, which conclusively establishes that ESDC did not act arbitrarily or capriciously when it determined that the Project will not result in any significant adverse environmental impacts not previously addressed in the earlier FGEIS, and that respondents therefore should have prepared an SEIS.

Accordingly, it is

ORDERED and ADJUDGED that the motions (002 and 003) are granted in favor of respondents, and the amended petition (001) is denied, and the proceeding is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and judgment of this Court.

Dated: May 21, 2007ENTER:

New York, New York

s/

_________________________

J.S.C. Footnotes

Footnote 1: The Project anticipates the overriding of a New York City zoning resolution for the development of the 33/34 Site to permit residential and public open space uses, as well as commercial development at a greater density than currently allowed in the M2-M3 district (Technical Memorandum, at 9).

Footnote 2: The lead agency has primary responsibility for vetting the project (Akpan v Koch, 152 AD2d 113 [1st Dept 1989], affd 75 NY2d 561 [1990]).

Footnote 3: That section provides that actions that are likely to require an EIS include the expansion of existing nonresidential facilities by more than 50 percent in a city, town or village having a population of more than 150,000 persons, of a facility with more than 240,000 square feet of gross floor area.

Footnote 4: Debra C. Allee is a founder of and consultant to AKRF, the entity that prepared the Technical Memorandum.

Footnote 5: In the Original Project, the Quill Bus Depot, located between West 40th and West 41st Streets and Eleventh and Twelfth Avenues, was to be relocated to a below-grade space on the north side of West 30th Street between Tenth and Twelfth Avenues, underneath the multi-use facility, so as to accommodate the northward expansion of the Convention Center to West 41st Street (FGEIS, at ES-16).