Fetman v Burden

[*1] Fetman v Burden 2007 NY Slip Op 51779(U) [16 Misc 3d 1141(A)] Decided on July 10, 2007 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2007
Supreme Court, Kings County

Jacob Fetman, Petitioner,

against

Amanda M. Burden, Commissioner of New York City Department of City Planning, et ano., Defendants.



23319/06

David I. Schmidt, J.

Petitioner, Jacob Fetman brings this application for a judgment, pursuant to CPLR Article 78, reversing and annulling the zoning amendment of respondents, Amanda M. Burden, Commissioner of the New York City Department of City Planning, the New York City Department of City Planning (DCP) and the City of New York, which in pertinent part rezoned the easterly side of Ocean Avenue between Avenues L and M, including petitioner's premises at 1737-1739 and 1741-1743 Ocean Avenue, from an R6 district to an R5B district.

Background

This proceeding stems from DCP's October 7, 2005 application to amend about 80 blocks of the Midwood portion of the Brooklyn zoning map.[FN1] DCP's application expressed concern about recent construction projects in that area [FN2] being out of scale and out of character with neighborhood buildings. Hence, the amendment sought to "preserve the predominant low-density character found throughout Midwood and ensure that future residential development within these areas would be in keeping with its surrounding context." [*2]

DCP's application, filed October 11, 2005 in its central intake office,[FN3] triggered both the City's Uniform Land-Use Review Procedure (ULURP), codified in New York City Charter § 197-c et seq.,[FN4] and the City Environmental Quality Review (CEQR), codified in Title 43, Chapter 6 and Title 62, Chapter 5 including Appendix A of the Rules of the City of New York (RCNY).[FN5] The resulting approval of DCP's overall application, as modified during the process recounted within, and as highlighted by petitioner, resulted in different residential zoning for the east and west sides of Ocean Avenue between Avenues L and M. The approved amendment changed the east side of this block, where petitioner owns property at 1737-1739 and 1741-1743 Ocean Avenue, from an R6 district to an R5B district, as DCP had initially proposed, and changed the west side of the block [*3]from an R6 to an R6A district,[FN6] pursuant to the City Council's modification of DCP's R5B proposal for the block's westerly side.The ULURP History Herein

(a)

The affected community board, Brooklyn Community Board 14, the Brooklyn Borough President, the City Planning Commission (CPC) and the City Council had each reviewed and assessed DCP's application. Community Board 14 had provided a November 22, 2005 notice to community residents following receipt of DCP's proposed rezoning amendment and conducted a December 7, 2005 public hearing about the application. It shortly thereafter issued a December 13, 2005 recommendation to adopt the zoning map amendment on "condition that the Department of City Planning and the City Planning Commission consider the concerns stated at the Board's public hearing . . . insofar as these concerns do not jeopardize the integrity of the proposed changes."[FN7]

(b)

The Brooklyn Borough President's Office, itself held a December 13, 2005 public hearing regarding DCP's proposed rezoning amendment.[FN8] It subsequently issued a January 6, 2006 [*4]recommendation that made some modifications, though none specifically concerning Ocean Avenue between Avenues L and M, and approved DCP's application with the modifications.[FN9]

(c)

The City Planning Commission (CPC), following Community Board 14's action, had published requisite notice in the City Record beginning December 22, 2005 of its own public hearing on January 11, 2006.[FN10] That hearing, where the record shows that community residents testified and submitted letters, information and petitions, resulted in CPC's unanimously adopted February 22, 2006 resolution approving the rezoning application with some of the Borough President's recommendations.[FN11]

(d)

The CPC, as required, filed its February 22, 2006 decision with the New York City Council (City Council)[FN12] on February 27, 2006 for the City Council's needed review and action.[FN13] The City [*5]Council then gave notice, beginning March 22, 2006 in the City Record, and held a once-postponed public hearing on April 3, 2006 pursuant to City Charter § 197-d (c).[FN14] That hearing, where the record also shows that community residents testified and submitted letters, information and petitions, resulted in the April 5, 2006 unanimous vote of the City Council's Subcommittee on Zoning and Franchises to recommend approval of the CPC resolution with a modification to "chang[e] the west side of Ocean Avenue between Avenue L and Avenue M, that was previously zoned R5B in the application[,] to R6A."

The City Council's Committee on Land Use also unanimously voted that same day to approve the CPC resolution with the same modification and filed it with the CPC as required.[FN15] CPC responded in writing, also that same day, that the "modification raises no land use or environmental issue requiring further review."[FN16]

Consequently, the City Council could then act and passed Resolution No. 258 approving CPC's resolution with the aforementioned modification."[FN17] The City Council thus timely acted on April 5, 2006 regarding CPC's February 22, 2006 decision that CPC had filed on February 27, [*6]2006.[FN18] The Mayor thereafter filed no written disapproval regarding adoption of Resolution No. 258.[FN19]

The Environmental Review

CEQR procedures resulted in designating DCP as the "lead agency"[FN20] to make the

threshold determination whether its application required environmental review.[FN21]Here, DCP first determined that its zoning amendment application constituted a Type I action,[FN22] i.e., an action subject to environmental review considering that potential environmental consequences could occur from the proposed zoning amendment.[FN23] [*7]

Hence, DCP's Environmental Assessment and Review Division on behalf of the City Planning Commission prepared a 47-page Environmental Assessment Statement (EAS) to determine whether the proposed zoning amendment may significantly affect the environment.[FN24] The DCP Environmental Assessment and Review Division, as approved by the CPC, subsequently concluded that the proposed Midwood rezoning "will have no significant effect on the quality of the environment." A supporting statement summarized that the determination "is based on an environmental assessment which finds that no significant effects on the environment which would require an Environmental Impact Statement are foreseeable." That wide-ranging assessment considered the impact regarding at least 18 areas of environmental concern including projected development, community facilities, school enrollment, open space, shadows, archeological, architectural and visual resources, neighborhood character, hazardous materials, water supply and wastewater treatment, traffic, parking, air quality, noise, sanitation and overall public health. The above conclusions therefore resulted in issuance of a Negative Declaration.[FN25]

The previously mentioned portion of the Midwood rezoning amendment changing the easterly side of Ocean Avenue between Avenues L and M from an R6 to an R5B district, after emerging from these ULURP and CEQR determinations, has spawned this proceeding.

[*8]The Parties' Positions

Petitioner's Position

Petitioner claims that the April 5, 2006 zoning map amendment impermissibly downzoned or spot zoned his property at 1737-1739 and 1741-1743 Ocean Avenue while some of his neighbors' properties were upzoned to an R6A zoning district. He argues that respondents failed to follow mandatory review processes and other required procedures for adopting a zoning amendment and failed to give proper notice of the proposed amendment.

Respondents' Position

Respondents claim that they followed proper procedures and provided lawful notice in approving the zoning map amendment. They also view the zoning map amendment as a rational, not an arbitrary action under applicable principles guiding judicial review of zoning enactments.

Discussion

(a)

The Court of Appeals addressed petitioner's concern about personally receiving notice of the zoning amendment by explaining in Lai Chun Chan Jin v Board of Estimate (62 NY2d 900, 902 [1984]) that "[t]he general rule is that a public notice that complies with the provisions of the statute will be upheld even though arguably a better method could be devised." Provisions receive approval, the court observed, where "notice is given in any form that is reasonably adapted to inform the public generally that the application will be heard" (id.) (internal citation and internal quotation marks omitted). It found that "the publication provided for by the supplementing provisions of ULURP meets this standard of reasonableness" (id.). The decision thus implicitly recognizes that City Charter §§ 197-c and 197-d require no individualized notice to affected property owners, only substantial compliance with ULURP's publication requirements, as shown here throughout the application's procedural history detailed above.

The four public hearings before the Community Board, the Borough President, the City Planning Commission and the City Council, following publication of various notices, thus provided the opportunity for public input to discuss the rezoning application. The City Council's ensuing modification changing the proposed zoning on the west side of Ocean Avenue from an R5B to an R6A zoning district required no additional ULURP or environmental review, according to CPC's controlling determination upon referral from the City Council. The modification occurred during the public review process and "Section 197-d (d) does not provide for a public hearing on notice in connection with the Commission's consideration of proposed modifications filed by the Council" (Falbros Realty v Michetti, 216 AD2d 191, 192 [1995])

The appellate decision further recounted that "in dealing with ULURP, the Charter is quite specific in mandating what actions require a public hearing and when in the process such a hearing must be held . . . Accordingly, it must be inferred that where, as in 197-d (d), the New York City Charter is silent, no public hearing is required" (id.at 193).

(b) (1)

The Court of Appeals has instructed reviewing courts that "[d]ecision[s] as to how a community shall be zoned or rezoned, as to how various properties shall be classified or reclassified rests with the local legislative body; its judgment and determination will be conclusive, beyond interference from the courts unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed upon he who asserts it" (Robert E. Kurzius, Inc. v Incorporated Vil. of [*9]Upper Brookville, 51 NY2d 338, 344 [1980], cert denied 450 US 1042 [1981] quoting Rodgers v Village of Tarrytown, 302 NY 115, 121 [1951]).

In addition, "[z]oning legislation is tested . . . by whether it accords with a well-considered plan for the development of the community . . . A[] [zoning ordinance] amendment which has been carefully studied, prepared and considered meets the general requirement for a well-considered plan and . . . [t]he court will not pass upon its wisdom" (Asian Ams. for Equality v Koch, 72 NY2d 121, 131, 132 [1988]). "If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control" (Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d at 344 in part quoting Village of Euclid v Ambler Realty Co., 272 US 365, 388 [1926] [internal quotation marks omitted]; see also Stringfellow's of NY v City of New York, 91 NY2d 382, 396 [1998] ["even if the validity of a provision is fairly debatable,' the municipality's judgment as to its necessity must control"] [internal citation omitted]).

Here, DCP's rezoning application cites concerns about recent Midwood construction projects, described as out of scale and out of character with neighborhood buildings, and seeks to retain "the predominant low-density character found throughout Midwood." Preserving a neighborhood's character represents a valid zoning objective (see Trustees of Union Coll. in Town of Schenectady in State of NY v Members of Schenectady City Council, 91 NY2d 161, 165 [1987] ["Unquestionably, municipalities can enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city'" citing Penn Cent. Transp. Co. v New York City, 438 US 104, 129 [1978], reh denied 439 US 883 [1978]; Adler v Deegan, 251 NY 467, 485 [1929] [Cardozo, CJ., concurring], rearg denied 252 NY 574 [1929], remittitur amended 252 NY 615 [1930]["(a) zoning resolution in many of its features is distinctively a city affair, a concern of the locality, affecting, as it does, the density of population, the growth of city life, and the course of city values").

DCP's approved application changing the east side area of Ocean Avenue between Avenues L and M from an R6 to an R5B district resulted from a thorough review which, as the application states, found that "97.4 percent of the buildings within the area proposed for R5B, comply with the district height limits." The review also showed that "78.7 percent of the buildings within the areas proposed for an R5B district comply with the maximum FAR [FN26] of 1.35 [for that district]. In addition, an R5B district allows for the multi-family residences along the block. Consequently, Ocean Avenue's east side between Avenues L and M emerged from ULURP as part of the carefully studied, planned and considered zoning amendment regarding the Midwood area and thus qualifies as a rational, well-considered plan whose legislative authorization properly merits judicial respect (Asian Ams for Equality v Koch, 72 NY2d at 132).

(b) (2)[*10]

The CEQR analysis herein equally warrants approval. The Court of Appeals has instructed that a "negative declaration is properly issued when the agenc[y] ha[s] made a thorough investigation of the problems involved and reasonably exercised [its] discretion" (Matter of Spitzer v Farrell, 100 NY2d 186, 190 [2003]). Hence, judicial review only involves "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.) (internal citations omitted).

Here, DCP identified at least 18 separate areas of environmental concern, as earlier enumerated, took the requisite hard look and rationally concluded that the Midwood rezoning plan "will have no significant effect on the quality of the environment." DCP's Environmental Assessment and Review Division, prepared an Environmental Assessment Statement utilizing the CEQR Technical Manual, referenced various studies such as New York City Department of Education and DCP enrollment projections and conducted screening analyses concerning hazardous materials, air quality and noise. The studies and screening analyses contained in the 47-page Environmental Assessment Statement demonstrates a "reasoned elaboration" supporting the determination and, as the Appellate Division, Second Department held in Matter of Barrett v Dutchess County Legislature (38 AD3d 651, 656 [2007]) and in Matter of Wertheim v Albertson Water Dist. (207 AD2d 896, 898 [1994]) "the issuance of the negative declaration was a proper exercise of discretion" (internal citation omitted).

(c)

Petitioner's other arguments regarding the rezoned easterly side of Ocean Avenue between Avenues L and M also lack merit. Petitioner in this regard "failed to establish that the challenged amendment constitutes illegal spot zoning, which is defined as the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners" (Matter of Miller v Kozakiewicz, 289 AD2d 494, 495 [2001] [internal citation and internal quotation marks omitted]). Here, too, as the Appellate Division, Second Department recognized in Matter of Miller v Kozakiewicz, "the new zoning classifications were consistent with the prior classifications" (id.). Indeed, the Appellate Division, Second Department has further rejected spot zoning claims where, as here, "[t]he rezoning at issue did not allow for a use which was different than that allowed in the surrounding area and was in conformity with the comprehensive plan . . ." (Matter of Terrace Manor Civic Assn. v Town of N. Hempstead, 301 AD2d 534, 534 [2003]).

The easterly side of Ocean Avenue between Avenues L and M contains mostly low-rise buildings and low-density homes even though some apartment buildings exist on that side. A dentist's office, for example, occupies the first floor of a two-story home in a row of at least six two-story homes along the easterly side and low-rise structures sandwich a six-story building on this side of the block.[FN27] Hence, the zoning amendment for this easterly side of Ocean Avenue between Avenues L and M represents a rational effort to preserve the relatively low-density character of this side in contrast with the westerly side where apartment buildings indisputably predominate. The easterly side's R5B zoning designation still allows petitioner to develop his vacant lot as a [*11]community facility (ZR §§ 22-13 and 22-14). Impermissible spot zoning thus fails to apply herein considering that the downzoning to an R5B district on the easterly side proceeded pursuant to DCP's Midwood rezoning plan and not for the benefit of a sole property owner to the detriment of other owners.

The westerly side of Ocean Avenue between Avenues L and M presents its own characteristics, as mentioned, and provides an inappropriate comparative basis for evaluating the easterly side's rezoning. Determining the rationality or arbitrariness of the westerly side's rezoning therefore emerges as extraneous to the propriety of the easterly side's rezoning. The westerly side's R6A designation resulting from the City Council's modification, in any event, also represents a rational zoning choice in imposing both a height limit of 60 feet (with an additional ten feet permitted with a ten foot set back) (ZR § 23-633 [d]) and a FAR of 3.0 for all residential buildings and community facilities in such district (ZR §§ 23-145, 24-11 and 24-111). Such restrictions represent an effort to preserve the westerly side's character.

(d)

Petitioner further errs in referencing the westerly side's designation and then seeking judicial assistance in his reply papers "to re-zone the area in which his property sits to an R6A or R7A [district]."[FN28] Case law repeatedly recognizes that petitioner's request would involve impermissible judicial interference in the exercise of legislative discretion (see Matter of Wolff v Town/Village of Harrison, 30 AD3d 432, 433 [2006] ["amendment of a zoning ordinance isa purely legislative function"] [internal citations omitted]). Indeed, the Court of Appeals has held regarding substantive zoning challenges, as here, that "an article 78 proceeding is unavailable to challenge the validity of a legislative act such as a zoning ordinance" (Matter of Save the Pine Bush v City of Albany, 70 NY3d 193, 202 [1987] [internal citations omitted]). The additionally requested judicial involvement to redesignate the area of petitioner's property would improperly incur on the legislatively-structured public and environmental review process detailed above.

Instead, evaluating the alleged arbitrariness of the Midwood rezoning amendment represented the proper judicial function herein. Such evaluation has found the claimed arbitrariness wanting, and the legislative determination reflected in this rezoning still controls, as discussed above, even if "fairly debatable" (Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d at 344). Accordingly, it is

ORDERED and ADJUDGED that the petition to reverse and annul the zoning amendment herein which in pertinent part rezoned the easterly side of Ocean Avenue between Avenues L and M, including petitioner's premises at 1737-1739 and 1741-1743 Ocean Aevnue, from an R6 district to an R5B district is denied and the proceeding is dismissed.

This constitutes the decision, order and judgment of the court.

E N T E R, [*12]

J. S. C. Footnotes

Footnote 1: New York City Charter (City Charter) § 201 (a) authorizes such DCP applicationby pertinently providing that "[a]pplications for changes in the zoning resolution may be filedby . . . the mayor . . ."

Footnote 2:The application describes the proposed rezoning area as "generally bounded by Avenue H on the north, Nostrand Avenue on the east, Avenue P and Kings Highway on the south and Coney Island Avenue on the west."

Footnote 3:City Charter § 197-c (b) pertinently provides that "[t]he following documents shall be filed with the department of city planning: (1) applications under this section . . ." (See also 62 RCNY § 2-02 [a] providing that "[a] request for any action [subject to the City's uniform land use review procedure] shall be submitted to the Department of City Planning, Central Intake Room" and 62 RCNY § 2-02 [c] providing that "[a] request for an amendment to the Zoning Map . . . by the Mayor . . . shall be filed with the Department [of City Planning]").

Footnote 4:City Charter § 201 (a) provides in this regard that "[a]ll such applications involving changes in the designations of zoning districts under the zoning resolution shall be subject to review and approval pursuant to section one hundred ninety-seven-c and one hundred ninety-seven-d."

City Charter § 197-c (a), in turn, pertinently provides that "applications by any . . . agency for changes . . . respecting the use, development or improvement of real property subject to city regulation shall be reviewed pursuant to a uniform review procedure in the following categories: (3) [d]esignations of zoning districts under the zoning resolution, including conversion fromone land use to another land use, pursuant to sections two hundred and two hundred one . . ." (See also 62 RCNY § 2-01 [c] making the land use review procedure applicable to "conversion from one land use to another land use pursuant to Charter §§ 200 and 201").

Footnote 5:Mayoral Executive Order No. 91 of 1977, authorizing CEQR and appearing beforeeach RCNY reference cited above, recognized in its third paragraph that the State Environmental Quality Review Act (SEQRA), codified as Article 8 of New York State Environmental Conservation Law (ECL), has authorized local governments to adopt environmental quality review procedures, see ECL § 8-0113 (3). The Executive Order's fourth paragraph concurrently recognized that such local environmental quality review procedures "are intended to be integrated into existing agency procedures, including the Uniform Land Use Review procedure contained in § 197-c of Chapter 8 of the City Charter . . ."

Footnote 6:The New York City Zoning Resolution, § 11-12 establishes numerous districts including the R5B, R6 and R6A districts, all general residence districts. § 12-10 of the zoning resolution provides in this regard that "[e]ach zoning district is designated by a letter indicating the general land use classification[,] R for Residential, C for Commercial and M for Manufacturing followed by one or two numbers and, sometimes, a letter suffix. In residence districts, generally, the higher the first number, the greater the density permitted and the larger the building . . . Letter suffixes have been added to the designations of certain districts (such as R10A) to indicate contextual counterparts that seek to maintain existing neighborhood characteristics or building scale."

Footnote 7:These actions complied with New York City Charter § 197-c (e) which provides that "[e]ach affected community board shall, not later than 60 days after receipt of an application that has been certified pursuant to subdivision c of this section, (1) notify the public of the application . . . and (2) . . . conduct a public hearing thereon and prepare and submit a written recommendation directly to the city planning commission and to the affected borough president" (See also 62 RCNY § 2-03 for companion rules implementing this provision).

Footnote 8:The ULURP process required no public hearing by the Borough President's Office in view of the community board's action (see City Charter § 197-c [f]), but New York City Charter § 82 (5) provides that "[t]he president of a borough shall . . . [h]ave power to hold public hearings on matters of public interest." Paragraph 17 of petitioner's verified answer to the amended petition asserts that "[n]otice of the public hearing was published in the City Record, placed on the Borough President's web site, and mailed to local elected officials, the community board, and civic associations." A distribution list accompanies the Borough President's public hearing notice annexed to respondents' verified answer.

Footnote 9:This recommendation action complied with City Charter § 197-c (g) which providesthat "[n]ot later than thirty days after the filing of a recommendation . . . with the borough president by all affected community boards . . . the borough president shall submit a written recommendation or waiver thereof to the city planning commission" (See also 62 RCNY§ 2-04 for companion rules implementing this provision).

Footnote 10:Such action complied with City Charter §§ 197-c (h) and 197-c (k) which provide, respectively, that "[t]he commission shall conduct a public hearing on all applications that are subject to review and approval by the commission pursuant to this section"; and "[n]otice of any hearing on an application by the city planning commission shall be published in the City Record at least ten days immediately prior to the date of the hearing, and a copy of the notice shall be mailed to all community boards or borough boards affected by the application." A copy of the Comprehensive City Planning Calendar for January 11, 2006 reflecting the Midwood rezoning application in fact appears at http://www.nyc.gov/htm/dcp/pdf/luproc/dispo/011106cal.pdf (See also 62 RCNY § 2-06 [a] and [d] [1], [2] and [3] for companion rules implementing these provisions).

Footnote 11:CPC's act of adopting a resolution complied with City Charter § 197-c (h) which pertinently provides that "[n]ot later than sixty days after expiration of time allowed for the filing of a recommendation or waiver with the city planning commission by a borough president, the commission shall approve, approve with modifications, or disapprove the application" (See also 62 RCNY § 2-06 [a] and [g] for companion rules implementing this provision).

Footnote 12:See City Charter § 197-d (a) which provides that "[t]he city planning commission shall file with the council . . . a copy of its decisions to approve or approve with modifications (1) all matters described in subdivision a of section one hundred ninety-seven-c . . ."

Footnote 13:See City Charter § 197-d (b) which provides that "[t]he following decisions filed with the council pursuant to subdivision a of this section, shall be subject to review and action by the council: (1) any decision of the city planning commission to approve or approve with modifications a matter described in paragraph three . . . of subdivision a of section one hundred ninety-seven-c [, which here concerns zoning district designations] . . ." (see fn 4, second paragraph).

Footnote 14:That section pertinently provides that "[w]ithin fifty days of filing with the council pursuant to subdivision a of this section of any decision of the city planning commission (seefn 12) which pursuant to subdivision b of this section is subject to review by the council (seefn 13), the council shall hold a public hearing, after giving public notice not less than five days in advance of such hearing . . ."

Footnote 15:See City Charter 197-d (d) which pertinently provides that "[p]rior to approving a decision of the commission with modifications, the council shall file the text of any such proposed modifications with the commission."

Footnote 16:Such response fulfilled CPC's additional ULURP obligation (see City Charter§ 197-d [d] which pertinently provides that "[w]ithin fifteen days of such [City Council]filing, the commission shall file with the council a written statement indicating whether such proposed modifications are of such significance that additional review of environmental issues or additional review pursuant to section one hundred ninety-seven-c is required."

Footnote 17:See City Charter § 197-d (d) which further pertinently provides that "[t]he council may thereafter [i.e., after the CPC's response regarding a City Council modification] approve such proposed modifications . . ."

Footnote 18:See City Charter § 197-d (c) and § 197-c (d) which respectively provide in this regard that "[t]he council, within such fifty days [i.e., within fifty days of the filing of CPC's initial, reviewable decision] shall take final action on the decision" and that "[t]he time period for council action shall be tolled during such fifteen-day period [for the CPC to determine if the City Council's proposed modification requires additional review]."

Footnote 19:See City Charter § 197-d (e) which pertinently provides that "[a]ctions of the council pursuant to this section shall be final unless the mayor within five days of receiving a filing with respect to such an action of the council files with the council a written disapproval of the action."

Footnote 20:See 62 RCNY § 5-01 which provides in part that for some ULURP applications, "the city agency applicant, the agency that will generally be involved with ensuring programmatic implementation of the action, is the lead agency."

See also, more specifically,62 RCNY § 5-03 (b) (3) (i) which pertinently provides that "[f]or actions that involve zoning map or text changes (Charter §200 and/or 201) . . . [i]f the only approval subject to ULURP or to Charter § 200 or 201 is a zoning map or text change, the City Planning Commission shall be the lead agency."

However, see also 62 RCNY § 5-03 (i) which pertinently provides that "[l]ead agency status may be transferred from the lead agency, at its discretion, to an involved agency that agrees to become the lead agency." 62 RCNY § 5-03 (c) (3) defines "involved agency" as "any agency that has jurisdiction to fund, approve or directly undertake an action pursuant to any provision of law . . ."

Footnote 21:See 62 RCNY § 5-05 (a) which pertinently provides that "[i]n case of any action for which a lead agency is prescribed by § 5-03 of these rules . . . only such lead agency may determine that such action, considered in its entirety, requires environmental review, and such determination shall be binding upon the city. . ."

Footnote 22:See 6 NYCRR § 617.4 (b) (2), (3) and (9), as here relevant, which allows treating an applicant's zoning change application as a Type I action.

Footnote 23:See 6 NYCRR § 617.4 (a) (1) which pertinently provides that "a Type I action carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS [i.e., an Environmental Impact Statement]."

Footnote 24:See 62 RCNY § 5-05 (b) (1) which pertinently provides that "[a]fter the determination that an action requires environmental review, the lead agency shall . . . complete or cause to be completed the standardized environmental assessment statement . . . Such statement shall provide guidance in determining whether the action may have a significant effect on the environment."

See also 62 RCNY § 6-07 (a) (1) which provides that "[i]n making their determination, the lead agencies shall employ the Environmental Assessment Form, apply the criteria contained in § 6-06 and consider the lists of actions contained in § 6-15 of this chapter."

Footnote 25:See 62 RCNY § 6-07 (b) (1) authorizing a Negative Declaration where the leadagency determines "the action will not have a significant effect on the environment . . .";see also 62 RCNY § 6-07 (b) (2) authorizing a Conditional Negative Declaration where thelead agency determines that "the action will not have a significant effect on the environment if the applicant modifies its proposed action in accordance with conditions or alternatives designed to avoid adverse environmental impacts; and 62 RCNY § 6-07 (b) (3) authorizing a Notice of Determination [i.e., a positive declaration] where the lead agency determines that "the action may have a significant effect on the environment . . . "

The Notice of Determination, in turn, triggers a request for a draft EIS (see 62 RCNY§ 6-07 [3] [v]) and the need for a final EIS (see 62 RCNY § 6-12 [a] providing that "[n]ofinal decision to carry out or approve an action which may have a significant effect on the environment shall be made until after the filing and consideration of a final EIS"). The extensive requirements for a draft or final EIS include identifying unavoidable adverse environmental effects and discussing both alternatives to the proposed action with their comparative impacts and effects and proposed mitigation measures to minimize the proposed action's adverse environmental impacts (see 62 RCNY § 6-09 [d] [3], [5] and [7]).

Footnote 26:"FAR [or "floor area ratio"] is comprised of total floor area within the building divided by the total area of the lot containing the building. Since residential areas have lower FAR, more lot is required to build larger buildings. Such concerns restrict physical development within a neighborhood . . . One way to control the size of a building is to limit its overall volume through FAR limits" (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 105 [1997] [emphasis in original] [internal citations and internal quotation marks omitted]).

Footnote 27:Even petitioner's papers, while highlighting the total number of living units on the easterly side, acknowledges that the easterly side contains more one and two-family homes than any other type structures.

Footnote 28:Petitioner reasserts this request in paragraph 8 and the wherefore clause of his counsel's affirmation in reply after having withdrawn his original petition for that relief following a cross motion to dismiss for seeking "to compel Respondents to perform a non-ministerial and legislative act." A November 30, 2006 so-ordered stipulation formalized the agreement for withdrawing the petition and cross motion and for deeming the amended petition, which no longer contained this prayer for relief, as served and filed.