Matter of Save Coney Is. Inc. v City of New York

[*1] Matter of Save Coney Is. Inc. v City of New York 2010 NY Slip Op 50839(U) [27 Misc 3d 1221(A)] Decided on May 6, 2010 Supreme Court, New York County Rakower, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 4, 2010; it will not be published in the printed Official Reports.

Decided on May 6, 2010
Supreme Court, New York County

In the Matter of the Application of Save Coney Island, Inc., Bruce Handy, Ruth Magwood, Jenny Mcgowan, Angie Pontani and Amos Wengler, Petitioners,

against

The City of New York, New York City Council and New York City Planning Commission, Respondents.



116672/09



Appearances of Counsel:

Petitioners:

Urban Environmental Law Center

By: Reed W. Super and Albert K. Butzel

Respondents:

Corporation Counsel of the City of New York

By: Sarah Kogel-Smucker, Chris Reo, and Haley Stein

Eileen A. Rakower, J.

Petitioners Save Coney Island, Inc., Bruce Handy, Ruth Magwood, Jenny McGowan, Angie Pontani, and Amos Wengler (collectively "Petitioners") bring this proceeding pursuant to Article 78 and §§3001 and 6301 of the CPLR against Respondents City of New York ("City"), the New York City Council ("City Council"), and the New York City Planning Commission ("CPC") (collectively "Respondents") in connection with the City's rezoning of approximately 47 acres of land in the area of Brooklyn known as Coney Island. Petitioners allege that the City's rezoning plan (hereinafter referred to as "the Rezoning Plan" or "the Plan") was effected in violation of the State Environmental Quality Review Act ("SEQRA"), as well as provisions of the General Cities Law and New York City Administrative Code governing the adoption of zoning ordinances and amendments thereto.

According to the Petition, Save Coney Island, Inc. is a volunteer grassroots community organization founded in 2008 to participate in then-ongoing discussions regarding the future of Coney Island. Save Coney Island describes itself as an advocate for both the revitalization of Coney Island as a world class amusement district, and for the renewal and improvement of the area for its inhabitants. To that end, Save Coney Island disseminates information about the redevelopment of [*2]Coney Island, facilitates discussions about the area's future, and organizes events and rallies to further its position. The individually named Petitioners are individuals who reside and/or work in Coney Island and claim that they will be adversely affected by the Rezoning Plan.

It is undisputed by the parties that Coney Island was, and remains one of the world's most famous amusement areas since its emergence toward the end of the 19th century. The area saw a number of rides and various attractions come and go and, throughout its illustrious history, Coney Island remained the predominant place for City residents, rich and poor alike, to escape both the summer heat and the rigors of urban life. Petitioner's note, however, that after World War II, the popularity of Coney Island as a destination began to decline due to a number of factors. Such factors included the widespread introduction of air conditioning into residential homes, which removed the impetus for many to escape to the ocean. In addition, both the creation of the Robert Moses' parkways and rising automobile ownership afforded many New Yorkers the opportunity to visit less crowded beaches and parkland on Long Island, such as Jones Beach State Park. Petitioners note that Coney Island suffered from additional problems, including fires, gang activity, and citywide economic decline during the 1970s.

Despite its postwar decline, Coney Island remains a popular destination, with iconic attractions such as the Cyclone, Deno's Wonder Wheel Amusement Park, Child's Restaurant, Nathan's Famous [a company that operates a chain of fast food restaurants specializing in hot dogs], the Riegelmann Boardwalk and the beach. In addition, Keyspan Park, a small baseball stadium which hosts the Brooklyn Cyclones baseball organization (which is affiliated with the New York Mets), now stands at the western end of the amusement area. Petitioners also note that more recent events, such as the annual Mermaid Parade and the Nathan's Hot Dog Eating Contest, have one again drawn national attention to Coney Island.

Still, there is a view that Coney Island has lost much of the splendor of decades past. Purnima Kapur, Director of DCP's Brooklyn Office, states in an affidavit submitted by Respondents that "decades of decline and neglect, as well as outdated zoning, have transformed a once vibrant destination into one that is typified by a high number of vacant lots, underutilized properties and an ever shrinking amusement area." Further, Kapur states that, although a home to approximately 50,000 people, Coney Island "lacks many basic services and amenities, such as grocery stores, bookstores, and clothing stores," and "faces one of the highest unemployment rates in the city."

Contributing to this problem, according to Kapur, are outdated zoning regulations which have been in place since the 1960s that limit the ability of private developers to construct amusement, residential, and commercial uses in the area. Largely zoned as a C7 district, much of the Coney Island area is restricted to uses befitting an open amusement park (i.e., Ferris wheels, rides, games of chance, and large-scale, and open and enclosed entertainment facilities such as skating rinks and baseball stadiums), while prohibiting "complementary entertainment uses", such as sit-down restaurants (without entertainment) and hotels. This has created a situation in which Coney Island's draw as a tourist and/or visitor attraction is largely limited to warm-weather months and consequently, discourages new commercial and residential development, leaving area residents [*3]with limited and seasonal employment opportunities.

In light of the challenges facing the Coney Island area, in 2003, Mayor Michael Bloomberg, the City Council, and Brooklyn Borough President Marty Markowitz established the Coney Island Development Corporation ("CIDC") in an effort to restore Coney Island to its rightful status as one the world's premier amusement districts, while providing a vibrant community for residents and visitors alike. In 2005, after collaboration between the City, the New York City Economic Development Corporation ("EDC"), community groups, elected officials, area residents, planning experts and local businesses, Mayor Bloomberg announced the Coney Island Strategic Plan ("Strategic Plan"). The Strategic Plan identified several key objectives: the strengthening of Coney Island's amusement area; the creation of a year-round, mixed-use destination centered around the neighborhood's historic landmarks; and the creation of new economic and employment opportunities.

For the next two years, the City, NYCEDC and CIDC officials met with various stakeholders and amusement industry leaders, and studied regional amusement parks in an attempt to ascertain what measures could be taken to ensure that their efforts to rehabilitate Coney Island would prove successful. In 2007, these efforts resulted in Mayor Bloomberg's unveiling of the Coney Island Rezoning Plan. The Rezoning Plan identified the following objectives: (1) developing a 27-acre year-round amusement and entertainment district with open and enclosed, eating and drinking establishments, hotels and small scale complementary retail directly adjacent to the amusement park; (2) mapping a portion of the 27-acre amusement and entertainment district as parkland to become the centerpiece thereof; and (3) facilitating neighborhood revitalization through the development of vacant and underutilized land for housing, including affordable housing, and local retail, providing services and job opportunities for local residents.

The City's environmental review pursuant to SEQRA and CEQR (the City's counterpart which contains substantially identical provisions) began in 2007. On September 21, 2007, the Office of the Deputy Mayor of Economic Development ("ODM") was designated the "lead agency" of the Plan (see 6 NYCRR §617.6(b); 62 RCNY §5-03). Since the Rezoning Plan constitutes an action that is subject to SEQRA, ODM prepared an Environmental Assessment Statement ("EAS"), which is utilized to identify and assess areas in which the action may create significant environmental impacts based upon criteria set forth is SEQRA and CEQR (see 6 NYCRR §617.6(a); 62 RCNY §5-05). Upon review of the EAS for the Rezoning Plan, ODM determined that the Plan had the potential for significant adverse environmental impacts, thus necessitating the preparation of an Environmental Impact Statement ("EIS") (see 6 NYCRR §617.7(a); 62 RCNY §5-05). Accordingly, ODM issued a Positive Declaration and a Notice of Intent to Prepare a Draft Environmental Impact Statement ("DEIS").

As the first step in the process of preparing a DEIS, on January 11, 2008, ODM issued a Draft Scope of Work ("Draft Scope") to focus the EIS on potential significant adverse environmental impacts and to eliminate consideration of irrelevant or insignificant impacts (see 6 [*4]NYCRR §617.8; 62 RCNY §5-07). The Draft Scope envisioned that under the Plan, approximately 15 acres located between Keyspan Park and the Cylone roller coaster would be mapped as parkland and would function as the centerpiece of the 27-acre amusement and entertainment district.

A public meeting discussing the Draft Scope was held on February 13, 2008, wherein the City received public comments on the Draft Scope. On May 22, 2008, after considering comments received at the public hearing, ODM issued a Revised Draft Scope, which reduced the overall park area within the 27-acre amusement and entertainment district to approximately 9.39 acres. ODM made this reduction, according to Respondents, in order to "encourage a better balance of indoor and outdoor amusement and entertainment uses in Coney Island while maintaining the same permitted mix of uses, in order to spur the development of other entertainment-related uses and hotels that would complement the boardwalk-fronting open amusement park." Petitioners, however, claim that the reduction in parkland for the amusement and entertainment district was purely to accommodate Thor Equities, which recently acquired approximately 10 acres of land within the amusement district, including several acres of land within the Draft Scope's contemplated 15 acres of parkland.

After a second public meeting on June 24, 2008, and after considering more comments from the public, ODM issued a Final Scope of Work ("Final Scope") on January 9, 2009.

ODM then prepared a DEIS, and on January 16, 2009, issued a Notice of Completion for the DEIS. Thereafter, the DEIS underwent public review and comment. A public hearing on the DEIS was held pursuant to SEQRA/CEQR [FN1] on May 6, 2009. Following the hearing, ODM prepared a Final Environmental Impact Statement ("FEIS"), which contained revisions to the DEIS. According to Respondents, these revisions were based on further technical analysis in response to, in part, testimony from the public hearing and through written comments. On June 5, 2009, ODM issued a Notice of Completion for the FEIS.

On June 17, 2009, CPC approved the Rezoning Plan and approved the FEIS. On July 20 and 21, 2009, the City Council's Subcommittee on Zoning and Franchise held a public hearing on the Rezoning Plan. The City Council's Land Use Committee recommended minor modifications to the Plan by a vote of 15-2-0. After discussing the modifications, CPC sent a letter approving the modifications to the City Council on July 22, 2009. On July 29, 2009, the City Council approved the Rezoning Plan by a vote of 44-2-1. The instant Petition ensued.

Petitioners seek an Order (1) declaring the City Council's approval of the Rezoning Plan invalid on the grounds (a) that the Plan's FEIS failed to meet the requirements of SEQRA/CEQR, [*5]and (b) the Plan exceeds the City's statutory authority to enact zoning ordinances; (2) enjoining the City and its agencies from implementing the Rezoning Plan; and (3) costs and disbursements in this proceeding.

Petitioners submit a Verified Petition; a Memorandum of Law; and a binder of exhibits lettered A-R. Respondents submit a Verified Answer containing the Kapur affidavit, noted above, and the affidavit of Robert R. Kulikowski, Ph.D., Director of the New York City Office of Environmental Coordination. Respondents also submit three volumes of exhibits numbered 1-28. One of those exhibits is the FEIS. Petitioners submit a Reply Memorandum of Law to Respondents' submissions.

Turning first to Petitioners' challenge under SEQRA, the Court's role is well settled, as stated by the First Department in Coalition Against Lincoln West v. Weinshall, 21 AD3d 215, 222 (1st Dept. 2005):

Judicial review of a lead agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination "was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3] . . .)' (Akpan v Koch, 75 NY2d 561, 570, 554 NE2d 53, 555 NYS2d 16 [1990]). In applying this standard of review, it is not the role of the court to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the agency' (Matter of Fisher v Giuliani, 280 AD2d 13, 19-20, 720 NYS2d 50 [2001]). Judicial review is limited to a determination as to whether the lead 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' ([]Jackson [v. New York State Dev. Corp.], 67 NY2d at 417).

The First Department has observed that, when assessing the substantive adequacy of an environmental impact statement, a reviewing court's power is "extremely limited" (Develop Don't Destroy Brooklyn v. Urban Development Corp., 2009 NY Slip Op 1359, *3 [1st Dept. 2009]).

Petitioners attack the FEIS on several different grounds. The Court will address each ground individually.

Park Alienation

The Rezoning Plan calls for the mapping of approximately 9 acres of land as parkland, which is to become the centerpiece of the amusement and entertainment district. In turn, the City plans to demap 9.3 acres of existing parkland that is presently occupied by the Abe Stark Rink and asphalt parking lots adjacent to KeySpan Park. In the place of the demapped parkland, the Plan calls for residential development (including affordable housing under the City's Inclusionary Housing Program), local retail uses, food stores and supermarkets, and entertainment-related uses along the [*6]Boardwalk. To the immediate west of these stores along the Boardwalk, the Plan also creates a 1.4 acre park, which will be known as Highland View Park.

Petitioners contend that the FEIS is inadequate with respect to this portion of the Plan because the demapping of this existing parkland depends upon the approval of the State Legislature which, as of this date, has not been granted.[FN2] Petitioners state that, with no assurance of the legislation's approval forthcoming, "it was improper for the [FEIS] to take credit for the benefits of the new housing when there was no assurance it could be built," citing Save the Pine Bush v. Common Council of the City of Albany, 188 AD2d 969 [3rd Dept. 1992], and Chelsea Neighborhood Association v. United States Postal Service, 389 F. Supp. 1171 [S.D.NY 1975]).

Both cases are distinguishable. In Save the Pine Bush, prior decisions of the Third Department and Court of Appeals had established that the preservation of the subject Pine Bush Ecology and survival of the Karner Blue Butterfly depended on a minimum acreage of 2,000 acres (188 AD2d at 970). However, the City of Albany approved the challenged zoning amendments when only 1,700 acres had been acquired, stating that it had plans to increase the acreage to the requisite level (id. at 971). In upholding the judgment of the Supreme Court annulling the city's determination and declaring the Zoning Code amendments null and void, the Third Department observed that the city's EIS failed to address "[t]he probability, likelihood or expectation of acquiring the necessary acreage" (id. at 971). Thus, "[t]he determinations lack[ed] a reasoned elaboration concerning the manner in which the necessary 2,000 acres would be acquired... which was an environmental concern that had to be addressed as it was essential to perpetuate the Pine Bush Ecology and the Karner Blue Butterfly" (id.).

Chelsea Neighborhood Association involved the proposed construction of a vehicle maintenance facility by the United States Post Office in the Manhattan neighborhood of Chelsea. Above the facility, a housing project of approximately 860 units was to be constructed for moderate/low income families and senior citizens. The facility and the proposed housing were considered a "structurally integrated" project. The proposed housing above the facility was "cited [by the relevant EIS] as one of the primary benefits to be derived from the construction of the [facility]," and was a "major factor in the rejection of other alternatives" (389 F. Supp.at 1175, 1180). The Southern District found that the defendants' environmental review under NEPA (the federal counterpart to SEQRA) was insufficient, based on the EIS's "failure to fully disclose to all interested parties the very real possibility that the housing may not and cannot be built" due to the potentially prohibitive cost of the "extensive acoustical treatment" necessary for the coexistence of the residential units and the facility (id. at 1180-1181). [*7]

The Rezoning Plan at issue herein differs significantly from the cases relied on by Petitioners. Unlike Save the Pine Bush, while the demapping of the existing parkland area encompassing the KeySpan parking lot and the Abe Stark rink pursuant to approval to the State Legislature is envisioned by the Rezoning Plan, the demapping of this particular area is not absolutely essential to the project. Moreover, and in contrast with Chelsea Neighborhood Association, the FEIS at issue discloses the fact that approval from the State Legislature is required in order to effectuate the proposed demapping of existing parkland and mapping of new parkland, and sets forth a "No Demapping and Mapping Action Alternative" in Part E of Section 23 of the FEIS. There, the FEIS states that if the anticipated mapping/demapping were not to occur, the amusement and entertainment district "would be similar to that text developed under the proposed actions." However, this scenario "would provide fewer amenities compared with the proposed actions and falls short of achieving the ultimate goal of providing for a year round amusement and entertainment destination."

As for housing, the FEIS states that the no demapping/mapping scenario would still further the City's initiatives for housing by providing affordable housing, and that 20% of developed housing would be affordable housing in either case. However, the FEIS notes that while 2,408 units would be developed pursuant to the Plan, only 888 units would developed under the no demapping/mapping scenario. In fact, the FEIS's analysis concludes that, while the no demapping/mapping scenario would have a lesser likelihood of economically revitalizing Coney Island to the extent sought by the City, it would actually have fewer significant adverse impacts on the environment than the Plan as proposed, since there would be significantly less development of the area.

Accordingly, the Court finds that the FEIS identified the consequences of failure to obtain approval from the State Legislature, took a "hard look" at the potential ramifications, and offered a reasonable elaboration for its conclusion that failure to obtain legislation for parkland alienation would not result in significant adverse impacts to the environment.

Alternatives

Petitioners contend that the FEIS is also deficient for its failure to adequately consider and respond to an alternative advanced by RCLCo, a real estate advisory firm that was retained by MAS - the Municipal Art Society of New York. RCLCo's report opines that outdoor park space of at least 25 acres is required in Coney Island East (contrasted with the Plan's 9 acres of parkland) in order to establish a viable, revitalized Coney Island amusement and entertainment district. Petitioners further claim that, the FEIS's analysis of a 15 acre parkland alternative "was simply a series of unsupported generalizations and suppositions."

With respect to RCLCo's proposal of a 25-acre outdoor park dominating Coney East, Petitioners note that the only mention by the FEIS of this proposal is contained in two responses to comments suggesting that 25 acres should be set aside as parkland rather than the proposed 9 acres. [*8]One of the responses states as follows:

The rezoning will create a 27-acre mixed use entertainment and amusement district that includes an approximately 9-acre open amusement area adjacent to the Boardwalk. Together with Steeplechase Plaza and the Cyclone roller coaster that sit on parkland, the amusement park will be about 12.4 acres. This amusement park is proposed to be mapped as parkland, and thus will be preserved in perpetuity. The remainder of the 27 acres could accommodate a range of amusement-related uses, such as indoor amusement facilities, limited amusement-related retail, and hotels....

The response to the other comment (which briefly asserted that the RCLCo plan was the only realistic plan for the future of Coney Island), was "Comment noted."

Respondents state that, contrary to Petitioners' assertions, Respondents considered four alternatives: the required No Action Alternative (see 6 NYCRR §617.9(b)(5)(v); a Lesser Density Alternative, a 15-acre mapped amusement parkland alternative and a no demapping/mapping alternative (already discussed in detail above). This analysis is contained in Chapter 23 of the FEIS. With respect to the no action alternative, the FEIS noted that, with little investment and no preservation or development of amusement uses, the City's objectives of revitalizing the Coney Island area will not be achieved, as there is "no anticipated reinvestment in the active amusement uses," given recent development trends.

According to the FEIS, the Lesser Density Alternative was devised in order to "consider an alternative that could reduce or eliminate significant adverse impacts while still meeting some or all of the goals and objectives of the proposed actions." The Lesser Density Alternative does this by including the same mapping and demapping actions as the original Plan (including the 9-acres of parkland along the Boardwalk in Coney East), but would not create a Special Coney Island District. Although there would be certain changes to the existing zoning, the FEIS's projections indicate that "[w]ithout the Special Coney Island District and significant revision of the underlying C7 use and bulk regulations, a broader range of enclosed amusement and entertainment uses and hotels would not be permitted in Coney East, thereby limiting the potential for this area to become a year-round amusement and entertainment destination." Additionally, the FEIS finds that the Lesser Density Alternative "would not achieve densities typically associated with successful market response for using floor area bonuses to generate affordable housing."

The 15-acre mapped amusement parkland alternative is similar to the plan originally set forth in the Draft Scope. Like the Rezoning Plan, this alternative would create a Special Coney Island District, albeit with different zoning designations for some of the subdistricts therein. It would contain the same 9 acres of parkland along the Boardwalk in Coney East. However, there would be additional acreage of parkland to the north. The FEIS determined that [*9]

The 15-Acre Mapped Amusement Parkland Alternative is less likely to achieve the goals and objectives established for the proposed Coney Island Rezoning. Most notably, with less land available in Coney East dedicated to private investment in the development of enclosed amusement, restaurants and entertainment uses, it would be less likely that the district would grow to realize its full potential as a year-round destination. Further, because there would be less land available in Coney East for private development under this alternative, the footprints for private development would be smaller compared with the proposed actions. With smaller footprints, it is possible that redevelopment would be less economically viable compared with larger footprints under the proposed actions, and could possibly hinder the area's redevelopment into a year-round destination. Under this alternative, the amusement district is likely to be more seasonal than with the proposed actions because many of the uses that are so vital in making Coney Island a year-round destination would be precluded.

Finally, as noted above, the FEIS considered the No Demapping/Mapping Alternative and found that the lesser development as envisioned therein would be less likely to achieve the City's objective of revitalizing the Coney Island area.

The Court finds that FEIS has sufficiently explored alternatives to the Rezoning Plan, and offered a reasoned elaboration for its conclusion that the Rezoning Plan is the best plan through which the City's objectives can be attained. SEQRA requires that an EIS address "alternatives to the proposed action" (ECL §8-0109(2)(d)). However, an agency's obligation to discuss alternatives to the proposed action is governed by the rule of reason. An agency need not discuss every conceivable alternative; so long as the agency considers a "reasonable range of alternatives", that is enough to satisfy the requirements of SEQRA (see Dryden v. Tompkins County Bd. of Representatives, 78 NY2d 331, 333-34 [1991]; County of Orange v. Kiryas Joel, 2007 NY Slip Op 7699, *4 [2nd Dept. 2007]). The FEIS was not required to analyze the 25-acre mapped parkland alternative advanced by RCLCo and endorsed by Petitioners. In its evaluation of the 15-Acre Mapped Parkland Alternative, the FEIS concluded that a larger parkland area would allow for fewer enclosed amusement, restaurants and entertainment uses, and that this would diminish the likelihood of revitalizing Coney Island as a year-round destination.

Having made such a conclusion, the FEIS was not required to analyze RCLCo's proposed 25-acre parkland alternative, which would allocate even more parkland and, consequently, allow for less of the uses which the City anticipates will attract the visitors on a year-round basis (see County of Orange at *4) ("The alternatives section of an FEIS need not identify or discuss every conceivable alternative, including the particular alternatives propounded by the [petitioner], and need not be exhaustive, particularly where the various options lie along a continuum of possibilities."). In addition, the Court notes that Petitioners fail to explain how their preferred alternative would have less of an impact on the environment, other than to predict that (1) the Rezoning Plan will be a failure due to the smaller amount of parkland; and (2) as a consequence, the area "could... lie fallow for many years, continuing or even worsening the current conditions and possibly infecting the surrounding areas of Coney Island." However, it is well settled that the Courts [*10]are to refrain from second-guessing the economic projections contained in an environmental impact statement, absent "compelling evidence of a sham transaction or that financial sponsors are unwilling or unable to fulfill their obligations," circumstances which are not present here (Coalition Against Lincoln West at 473) (citing Nixbot Realty Assocs. v. New York State Urban Dev. Corp., 193 AD2d 381 [1st Dept. 1993]; lv denied 82 N.Y.2d 659 [1993]).

Visual Resources

Petitioners allege that the FEIS fails to adequately discuss the plan to allow for the construction of hotel towers of up to 27 stories on the south side of Surf Avenue, which Petitioners allege will create a visual obstacle for visitors to Coney Island and would have the effect of "privatizing" the amusement area behind them. Petitioners allege that the FEIS "at best provide[s] a confused and inconsistent analysis of these concerns" which ignores the Plan's negative impact on Coney Island's visual resources. Petitioners also contend that the FEIS's failure to include a rendering of the hotel towers to illustrate their effects on views toward the ocean renders the FEIS insufficient.

With respect to the hotel towers, the FEIS noted that "[b]ulk regulations would limit development to only one tower per bock on the south side of Surf Avenue, with towers located at the corners of blocks so as not to eliminate views of the historic amusement visual resources" (the Parachute Jump, the Cyclone, the Wonder Wheel, Coney Island Beach and the Atlantic Ocean). The FEIS further addressed the visual impacts of the Rezoning Plan on Surf Avenue as follows

Views along the Surf Avenue view corridor would change due to the added bulk and density of new developments along the avenue. Although numerous tall buildings would line the avenue, this would not result in any significant adverse impacts. Existing views of the Cyclone along Surf Avenue are limited to its immediate vicinity (there are no views west of West 12th Street), and under the proposed zoning maximum building heights in the Coney East subdistrict would decrease between West 12th and 10th Streets in order to preserve existing views to this visual resource. Further, the southwest corner of West 10th Street and Surf Avenue would be angled in order to preserve existing views east on Surf Avenue to the Cyclone. Views of the Wonder Wheel along Surf Avenue would be somewhat obstructed by new development where there are existing views over vacant or open lots and over one-story buildings, but existing views of the Wonder Wheel along the avenue are already obstructed where there are low-rise buildings. Under the proposed zoning, there would continue to be prominent views of the Wonder Wheel south on Jones Walk from Surf Avenue, and West 10th and West 12th Streets would also continue to provide views of the visual resource. Further, the restricted tower locations on the south side of Surf Avenue and the height and bulk regulations on the Coney East development sites would preserve existing views of the Wonder Wheel from the Stillwell Avenue Station and the elevated subway tracks. In addition, the proposed Wonder Wheel Way would create a new east-west corridor to the Wonder Wheel.

Review of the FEIS's treatment of the visual impacts of the Rezoning Plan compels the [*11]conclusion that the FEIS took a hard look at the visual impacts of the Rezoning Plan's Surf Avenue hotels, and offered a reasonable elaboration for its finding that the hotels would not result in significant adverse impacts to the surrounding areas. The FEIS explains that the hotel towers envisioned by the Rezoning Plan are positioned so as not to block key views of Coney Island and its landmarks. As for Petitioners' claim that the FEIS is deficient due to failure to provide an artist's rendering of the towers, Petitioners cite no authority for the proposition that such renderings are mandated. In any event, the FEIS contains numerous top-down renderings to the Rezoning Plan which include the Surf Avenue Hotel Towers, and allow the Court to find that the FEIS's conclusion that the towers will minimally detract from views of Coney Island is rationally based.

Open Space

Petitioners next contend that the FEIS failed to accurately describe the negative impacts of the Rezoning Plan with respect to open space. Petitioners assert that the FEIS fails to take into account the effect of the Plan's demapping of 9 acres of existing parkland. It is not enough that the existing parkland is currently used as parking for KeySpan Park, say Petitioners, because "the nine acres could at any time be converted to active and/or passive park space." "Once demapped," Petitioners continue, "they would lose their protected status...." In addition, Petitioners allege that the FEIS "fail[s] to treat as an adverse impact the fact that the development permitted by the Rezoning would exacerbate a shortage of active open space that already exists in the Coney Island Community but will be made significantly worse by the new development."

The Court finds that the FEIS took the requisite hard look at the issue of the Plan's anticipated impact on open spaces, and offered a reasonable elaboration for its conclusion that the Rezoning Plan would not create any adverse impacts on open space. Chapter 5 of the FEIS addresses the Rezoning Plan's potential impacts on open spaces in the Coney Island area. The FEIS's assessment of potential impacts on open space was conducted pursuant to the CEQR Technical Manual, and included both a quantitative and a qualitative analysis of the proposed actions using a reasonable worst-case development scenario ("RWCDS"). The FEIS identified two study areas: a non-residential study area based on a quarter-mile distance from the rezoning area, and a residential study area based on a half-mile distance from the rezoning area. These distances are based on the distance the average person is assumed to be wiling to walk to reach a neighborhood open space, and it is assumed that non-residents (i.e., area workers) are willing to travel a shorter distance to access a neighborhood open space. The FEIS also differentiates between active open spaces (spaces for jogging, field sports, and children's active play) and passive open spaces (spaces for sunbathing, reading, etc.). The FEIS used guideline values set by DCP to inform its quantitative analysis with respect to what is generally considered adequate open space for residents and non-residents [FN3]. However, the FEIS states that DCP does not provide guidance as to an appropriate amount of acreage per person with respect to visitors. Nevertheless, the FEIS calculates open space ratios that include visitor populations for informational purposes. [*12]

The quantitative analysis in the FEIS projected that, under the Plan, the total passive open space ratio for residents and non-residents would decrease, but would remain substantially higher than DCP guidelines, while active open space ratios would decline and remain below DCP guidelines [FN4]. When the anticipated number of visitors were factored into the analysis, passive open space ratios in both the non-residential and residential study areas dropped sharply, but still remained (just) above the open space ratios set forth by DCP for residents and non-residents (excluding visitors).

Qualitatively, the FEIS noted that, inside the residential study area, the beach (not counted in the quantitative analysis) is available for various active uses. Additionally, the FEIS notes that there are three public parks (Kaiser, Six Diamonds, and Calvert Vaux Parks) totaling 143 acres just outside the residential study area which "offer a broad range of active recreational opportunities of which many residents in the study area would likely take advantage." Consequently, the FEIS concluded that the Plan would not result in any significant adverse impacts on open space; and based on the foregoing, that determination is entitled to deference from the Court.

Historic Resources

Next, Petitioners claim that the FEIS's assessment of the effect of the Rezoning Plan on Coney Island's historical resources is insufficient on two grounds: first, Petitioners again fault the FEIS for failing to acknowledge the adverse impact the hotel towers will have on views of the historic Cyclone and Wonder Wheel attractions; and second, Petitioners claim that the FEIS improperly omits several sites which Petitioners claim should have been recognized for their historic significance. Petitioners acknowledge that the New York City Landmarks Preservation Commission ("LPC") conducted an analysis as to which sites were either existing or potential landmarks. However, they claim that the authors of the [F]EIS should have consulted with the New York State Office of Historic Preservation ("SHPO") before making their determinations.

Chapter 7 of the FEIS deals with historic resources. There, it was explained that LPC compiled an inventory of officially recognized ("designated and eligible") architectural resources. In identifying architectural resources for SEQRA/CEQR review, LPC adopted the criteria set forth in Title 36, Part 63 of the Code of Federal Regulations. In addition, the FEIS explained that "LPC designates historically significant properties in the City as [New York City Landmarks] and/or Historic Districts, following the criteria provided in the Local Laws of the City of New York, New York City Charter, Administrative Code, Title 25, Chapter 3."

The FEIS identified ten sites for SEQRA/CEQR review. Four sites - the Parachute Jump, the Cyclone, the Wonder Wheel and Child's Restaurant on the Riegelmann Boardwalk - are listed as [*13]federal, State or City landmarks. LPC determined that six other sites were potentially eligible for City, State, or federal listing - Child's Restaurant on Surf Avenue, Nathan's Famous, Astro Tower and Rocket, Shore Theater, row houses along West 20th Street and the Our Lady of Solace Roman Catholic Church and Shrine, Convent and School. After reviewing the potential effects of the Rezoning Plan on these architectural resources, the FEIS determined that "the proposed actions could result in significant adverse direct impacts to one architectural resource: Nathan's Famous..., which is located on a potential development site and could be redeveloped under the RWCDS." The FEIS also noted that development on Surf Avenue could potentially diminish the visual prominence of the Shore Theater. However, the FEIS concluded that there would be no adverse impacts on the remaining architectural resources.

The Court finds that the FEIS sufficiently addressed the Plan's potential impacts to Coney Island's historic resources in and near the rezoning area, and reasonably determined that, aside from the unavoidable impacts to Nathan's Famous and (to a lesser degree) the Shore Theater, the Rezoning Plan was unlikely to cause significant adverse impacts to Coney Island's historical resources. While Petitioners insist that SHPO should have been consulted while determining eligible potential architectural resources, Respondents' analysis was conducted pursuant to the CEQR Technical Manual, and utilized Federal and State criteria. Since the methodology employed in identifying historical resources was a reliable and sound one, it is not the place of the Court to insist upon a different one (see Landmark West! v. Burden, 2004 NY Slip Op 50331U, *5 [Sup. Ct. NY Cty. 2004]).

Natural Resources

The area covered by the Rezoning Plan lies within the 100-year floodplain, which means that there is a 1% annual chance of flooding. Petitioners claim that the FEIS fails to adequately consider that fact, and how the proposed development will exacerbate the effects of any flooding in the area as previously vacant areas are developed and thus rendered incapable of absorbing part of the flooding. Instead, Petitioners assert, the FEIS improperly defers necessary evaluations of the Plan vis-a-vis the floodplain to a later date.

In Chapter 10 (titled "Natural Resources"), the FEIS finds that the Rezoning Project "would not exacerbate flooding conditions within this portion of Coney Island." The FEIS notes that "[t]he floodplain within and adjacent to the project site is affected by coastal flooding, which is influenced by astronomic tide and meteorological forces... and, therefore, would not be affected by projected development within this portion of the project site." The FEIS further notes that "[a]ny development that would occur within the project site would be consistent with the New York City Building Code (Title 27, Subchapter 4, Article 10) which requires that residential buildings have a finished floor elevation at or above the 100-year floodplain." In addition, the FEIS notes that the proposed mapped streets in the Plan will be constructed at elevations closer to the 100-year floodplain, which will in turn require that the grading of existing streets be raised to meet the elevation of the proposed new streets. This, the FEIS states, will "enable ground-floor commercial space to be located close to, or at, the 100-year floodplain elevation." [*14]

Petitioners state that the FEIS fails to address "some of the most important implications following from the fact that the rezoned area falls entirely within the 100-year flood plain," referring to Comment 8-4 in Chapter 7 of the FEIS. This comment notes that "[b]ecause of existing conditions, not all streets can be raised to the new elevation." The response to this comment is that "[t]his issue is currently under review by the CPC. Any CPC modifications related to this issue will be the subject of further environmental review." Petitioners' contend that this improperly defers issues which need to be addressed in an EIS.

However, this comment did not address potential flooding of the area due to existing streets which would not be regraded, but rather raised the issue of accessibility issues posed by the height differential between the sidewalk and ground-floor retail (which would be at or above the base floodplain).

The "review by the CPC" that was ongoing at the time of the FEIS's drafting culminated in a CEQR Technical Memorandum dated June 15, 2009. The Technical Memorandum outlined modifications to the Plan which were designed to induce development of internal ramps, stairs, and ADA accessible lifts; and minimize their visual impacts. The Technical Memorandum concluded that these modifications "would not result in any new significant adverse impacts not already identified in the FEIS."

The First Department has observed that

The mere fact that a project has changed does not necessarily give rise to the need for the preparation of a supplemental EIS (SEIS). An SEIS is required only if environmentally significant modifications are made after issuance of an FEIS (see Matter of Jackson, 67 NY2d at 429-430). However, whether or not a modification is significant' is for the agency to decide, after identifying the relevant areas of concern, again taking a hard look' at the potential impacts, and making a reasoned elaboration for the basis of its determination (id.)

(C/S 12th Ave. LLC v. City of New York, 2006 NY Slip Op 4172, *5-6 [1st Dept. 2006]).

Here, the FEIS demonstrates that the issue of flooding was identified, the requisite hard look taken, and a reasonable elaboration for that determination provided. As for the minor modifications set forth in the Technical Manual, Petitioners do not contest the conclusions reached therein, but rather, contend that said conclusions were required to be made part of the Plan's FEIS. That is not the case.

Infrastructure

Finally, Petitioners attack the sufficiency of the FEIS's discussion of the Plan's impact on [*15]infrastructure, contained in Chapter 13. Specifically, Petitioners allege that the FEIS fails to address the feasibility of the Plan's gradual infrastructure improvements, given the economic climate, and further fails to provide contingency plans in the event that "development goes forward without some or all of the infrastructure improvements. .

As stated in the FEIS,

The FEIS infrastructure analysis examines short-term development opportunities based on the proposed rezoning and existing infrastructure, interim development potential based on the proposed rezoning and incremental infrastructure improvements within the rezoning area, and long-term development potential based on the proposed rezoning after the construction of the area-wide infrastructure improvements according to an amended drainage plan (ADP).[FN5]

In the short term, the FEIS states that temporary amusements such as mobile carnival rides, games, and food stalls could be set up in the Coney East subdistrict on an immediate interim basis. These amusements would not result in increased sanitary or storm flow being directed to existing sewer infrastructure. Thus, the FEIS anticipates that no sewer connections or upgrades would be necessary.

As for interim infrastructure improvements, the FEIS would allow for infrastructure improvements on a case-by-case basis prior to construction of the approved ADP. The FEIS states that

Interim infrastructure improvement would support potential development sites within the rezoning area provided that the adjacent sanitary sewer, and any downstream segment, have adequate capacity to accommodate wastewater flows from these developments and developed site storm flow would not exacerbate conditions of downstream storm sewers.

Furthermore, while the standard practice of the New York City Department of Buildings is to permit an applicant for a proposed development to self-certify a site connection application for a sewer hookup, the Rezoning Plan requires that developers complete a site-specific analysis to be submitted for review and approval by the Department of Environmental Protection prior to certification of a site connection application. Where existing infrastructure is inadequate for the proposed project, the [*16]developer is required to make the necessary infrastructure improvements before obtaining permission to proceed.

The FEIS states than an ADP is currently being developed and is expected to be completed within the year. According to the Kulikowski affidavit, an ADP includes analysis and mapping of the existing drainage network to determine the ability of the system to handle wet and dry weather flows for existing and future conditions, and a resizing of individual sewer segments for future conditions if needed. According to the FEIS, long-term infrastructure development will be implemented in a phasing plan pursuant to the ADP. The FEIS concludes that "With the appropriate phasing of development, adequate interim measures and sewers constructed according to the ADP, the sanitary and stormwater sewage generated from the proposed actions in 2019 would not cause any significant adverse impacts on the sewer infrastructure systems."

Based on the foregoing, the Court finds that the FEIS's analysis of the Plan's impact on infrastructure satisfies SEQRA/CEQR review. The FEIS has identified the Plan's would-be impact on existing infrastructure and has set forth a reasonable plan of action which provides that infrastructure is upgraded concurrently with development under the Rezoning Plan and that increased demands never exceed capacity. While Petitioners' claim that this analysis - like others in the FEIS - amounts to "wishful thinking" and will not be economically feasible, it is not the Court's place, as noted earlier, to second-guess economic projections contained in an EIS absent evidence that the project is a sham (see Coalition Against Lincoln West at 473). Moreover, the Court notes that, according to the Kulikowski affidavit, $137 million have already been committed to implementation of the ADP.

In sum, the Court finds that the FEIS complies with the requirements of SEQRA and CEQR. Accordingly, the City Council's approval of the Rezoning Plan did not violate SEQRA or CEQR.

Turning to Petitioners' second argument, Petitioners claim that the City Council's approval of the Rezoning Plan exceeded the City's legal authority to enact zoning regulations, contending that the proposed rezoning is not rationally based, does not accord with a "well-considered plan," and was adopted in service of private interests rather than in the public interest.

General City Law §20(25) empowers the City to enact zoning regulations which are "designed to promote the public health, safety and general welfare... in accord with a well considered plan." The Court of Appeals has held that a zoning amendment satisfies the statutory requirement of a well considered plan when it has been carefully studied, prepared and considered, and when it is adopted for a legitimate governmental purpose (see Asian Americans for Equality v. Koch, 72 NY2d 121, 131-32 [1988]; Akpan at 576). "The essential purpose of this requirement is to guard against ad hoc zoning legislation affecting the land of a few without proper regards to the needs or design of the community as a whole'" (C/S 12th Ave. LLC at *5) (quoting Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 685 [1996]). The burden facing a party challenging a [*17]municipality's zoning regulation is substantial. The party must demonstrate that the regulation is arbitrary and irrational; and so long as its validity is even "fairly debatable," the Court is obligated to uphold it (see Asian Americans at 132; Peck Slip Assocs. v. New York City Council, 2006 NY Slip Op 1114, *1 [1st Dept. 2006]).

Here, review of the record compels the conclusion that the Rezoning Plan is in accord with a well considered plan, and is thus a legitimate exercise of the City's statutory authority pursuant to General City Law §20(25). While Petitioners allege that the Plan was adopted to benefit "the private interests of Thor Equities and a few other property owners in the area," they fail to meet the heavy burden of demonstrating that the Plan amounts to nothing more than "special interest, irrational ad hocery" (Peck Slip Assocs. at *1) (citation omitted). Further, and to the contrary, the record indicates that the Rezoning Plan is reasonably related to the (undisputed) legitimate governmental purpose of revitalizing the Coney Island economy, while restoring Coney Island to its iconic status as a world-renowned amusement center and destination for visitors both near and far.

Wherefore it is hereby

ORDERED and ADJUDGED that the petition 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 order of the court. All other relief requested is denied

Dated: May 6, 2010______________________________

EILEEN A. RAKOWER, J.S.C. Footnotes

Footnote 1:This was actually a combined public hearing on the Rezoning Plan's DEIS, as well as its respective application pursuant to the City's Uniform Land Use Review Procedure ("ULURP").

Footnote 2:To date, that legislation authorizing the alienation of this area as parkland has been introduced in both the State Assembly (Bill No. A-9478) and State Senate (Bill No. S-6278); however, the legislation has yet to be passed and signed into law.

Footnote 3:DCP's calculations for the non-residential study area do not include active open spaces, as it is assumed that non-residents only use passive open spaces.

Footnote 4:The active open space ratio is projected to be 1.704 acres per 1,000 people in 2019 without the proposed actions; under the plan, it is projected to be 1.527. DCP guidelines provide a recommended ratio of 2.0.

Footnote 5:The Kulikowski affidavit explains that "[t]he City maintains a drainage plan' for the proper sewer and drainage in the City that describes the location, course, size and grade of each sewer and drain for sewerage districts as well as the size and location of stormwater and wastewater conveyance and treatment facilities within these districts. When such drainage plan is updated to reflect changes based on anticipated changes in zoning, etc. it is termed an Amended Drainage Plan ("ADP").