Matter of Dumbo Neighborhood Found. Inc. v City of New York

[*1] Matter of Dumbo Neighborhood Found. Inc. v City of New York 2010 NY Slip Op 51935(U) [29 Misc 3d 1221(A)] Decided on October 25, 2010 Supreme Court, Kings County Martin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2010
Supreme Court, Kings County

In the Matter of Dumbo Neighborhood Foundation, Inc., GUS SHEHA, and BARRY SILVERSTEIN, Plaintiff(s), For a Judgment Pursuant to Article 78 of the CPLR and Declaratory Judgment

against

The City of New York, NEW YORK CITY DEPARTMENT OF CITY PLANNING, CITY PLANNING COMMISSION, NEW YORK CITY COUNCIL, DEPARTMENT OF EDUCATION, SCHOOL CONSTRUCTION AUTHORITY and TWO TREES MANAGEMENT CO., LLC., Defendant(s).



25643/09

Larry D. Martin, J.

Petitioners DUMBO Neighborhood Foundation Inc., Gus Sheha and Barry Silverstein, seek judicial review, under article 78 of the CPLR, of an order issued by respondents, The City of New York, New York City Department of City Planning, City Planning Commission, New York City Council, Department of Education, School Construction Authority where respondents (collectively "the City"), after review of the proposed project approved the construction of a 281,450 square foot new building ("the Dock Street Project") located in the DUMBO neighborhood of Brooklyn by the owner of the site, respondent Two Trees Management Co. LLC ("Two Trees").

Petitioners seek to annul the approvals made by "the City" dated June 10, 2009. The three related actions are as follows: (1) An amendment to Map 12d of the Zoning Maps contained in the Zoning Resolution of the City of New York ("ZR"), identified by City Respondents as application CO90181ZMK ("the Amendment"); (2) the grant of a special permit, pursuant to ZR § 74-512, to allow a 465 space public parking garage in the Dock Street Project, identified by City Respondents as application C090183ZSK [*2]("Parking Garage Special Permit")' and (3) the grant of a special permit, pursuant to ZR § 74-743 to waive certain bulk regulations related to height and setback, rear yard, inner court and the minimum distance between legally required windows and side lot line, identified by the "the City" as application C090184ZSK ("the Bulk permit").

For the reasons discussed below the petitioners' request for relief is denied.

FACTS AND PROCEDURAL HISTORY

DUMBO, which stands for "Down Under the Manhattan Bridge Overpass" is the neighborhood in the Borough of Brooklyn which is located along the East River, north of the Brooklyn Bridge, and beneath the Brooklyn approach towards the Manhattan Bridge. The area was first settled when it was the Brooklyn terminal for East River ferries circa 19th century. After the construction of the Brooklyn Bridge was completed in 1883, the DUMBO neighborhood saw an influx of new construction. The majority of the buildings in the DUMBO neighborhood were loft-styled manufacturing and warehouse buildings. As so many of these buildings were developed from the late 19th into the early 20th century, this neighborhood has long been known for its unique architectural style.

The present day DUMBO community contains a range of businesses and uses including, light manufacturing, residential buildings, open space, offices, retail spaces, as well as surface area parking. In addition, the Brooklyn and Manhattan Bridges, and the Brooklyn Queens Expressway, continue to play an important role in defining the area's character as they have in the past. In 2004, the Two Trees proposed to develop a new mixed-use building on the current project site, Zone Lot A, which according to the petitioners was known as "38 Water Street." The 2004 proposed project had a design different than the current Dock Street project. Petitioners allege that the 2004 proposal encountered strong opposition from local citizens, their representatives, and many local community interest organizations. As a result, Two Trees did not pursue, and subsequently withdrew its application.

The 2008 project, Dock Street project, represents the most recent development project, by Two Trees for a new mixed-use building bounded by Water, Dock and Front Streets in the DUMBO neighborhood. The Dock Street project is designed to provide 325 rental apartments, with 65 of the 325 apartments set aside for low income tenants. The DUMBO project would also include a new public middle school to accommodate the community of School District 13, parking for visitors to Brooklyn Bridge Park, and small, local retail shops on Water and Front Streets. The development project would be confined within three zoned boundaries where the new construction would take place: "Zone Lot A", "Zone Lot B", and "Zone Lot C". Zone Lot A consists of the western end of block bounded by Dock, Water, Main, and Front Streets, and is known on the Tax Map of the City of New York, Kings County, as Block 36, Lot 1 (21-29 Front Street), Lot 3 (38-52 Water Street), Lot 14 (56 Water Street), and Lot 49, 52, & 53 (35-43 Front Street). Zoning Lot A, which is also referred to in the petitioners' moving papers as the "Development Site," is currently comprised of a parking lot and two low rise structures, which would be demolished.

Zoning Lot B refers to the area adjoining to Zoning Lot A. Zoning Lot B is known [*3]on the Tax Map of the City of New York, Kings County, as Block 36, Lot 15 (64 Water Street), Lot 16 (66 Water Street), and Lot 40 (47 Front Street). Zoning Lot B, which is referred to in the petitioners' moving papers as the "Abutting Properties" is currently comprised of a parking lot and two four-story masonry buildings, which according to the respondents, would be preserved. Zoning Lot C is known on the Tax Map of the City of New York, Kings County, as Block 26, Lot 33 (16 main Street) and Lot 38 (85 Water Street). Zoning Lot C is currently comprised of two masonry buildings, recently converted to mixed, commercial/residential and commercial use buildings. The respondents' position is that the three zones (A, B, C) constitute a General Large Scale Development Area pursuant to Zoning Resolution ("ZR") §12-10. A General Large Scale Development has or will have an area of at least 1.5 acres contiguous to one another or would be contiguous but for the a separation by a street; and is designated as a tract of land all of which is to be used, developed or enlarged as a unit; under single fee, alternate or separate ownership.

Two Trees initially proposed to develop on Zoning Lot A, an 18-story (184 feet high) structure. However, the proposed new building is a 9-story (96-feet high) mixed use-building. The new building is to be comprised of: (i) a 238,987 square foot residential component consisting of approximately 323 rental apartments, with approximately 20% of the apartments for families with low to moderate incomes; (ii) a 12,733 square foot retail component; (iii) a 45,772 square foot community facility component, designed to accommodate a 300-seat public middle school and (iv) a 104,247 square foot, 465-space attended parking garage.

DUMBO is well known for being a culturally unique community. Respondent Two Trees avers that their plans for the DUMBO project will accommodate new and existing artistic groups located within the neighborhood. Two Trees has offered various art groups and retailers low-rent or no-rent space that it owns throughout the DUMBO neighborhood. In 2001, the St. Ann's arts group was forced to leave the church in Brooklyn Heights where it had been housed for almost 20 years. Two Trees offered them no-rent space in a building on Zoning Lot A. Also Two Trees filed separate plans with the Department of Buildings in 2008 and 2009 to authorize the space on Zoning Lot C (Tax Block 26, Lot 33) for Public Assembly, and obtained a Use Group 6 Eating and Drinking Establishment. On August 5, 2008 Galapagos Art Space, a well-established Brooklyn not-for-profit arts venue, was relocated to that building on Zoning Lot C.

In order to proceed with the proposed project Respondent Two Trees was required to address certain zoning restrictions and permit issues; in response, Two Trees requested the following land use actions:

A zoning map change to rezone the west portion of the block bounded by Water, Front, Dock and Main Streets (including, predominantly, Zoning Lot A and part of Zoning Lot B) from an M1-2 light manufacturing district, to a mixed-us M1-2/r8, extending the MX-2 district to the western edge of DUMBO.

A special permit for the GLSD Area to modify the height and setback regulations and permit the [*4]New Building to rise above its maximum base height of 85 feet without setting back, and to modify the required rear yard requirement, the minimum distance of an inner court, and the minimum distance between legally required windows and a side lot line.

A special permit to construct and operate a public parking garage with more than 150 parking spaces (thereby increasing available parking to 465 total parking spaces), and to allow approximately 37,599 square feet of floor space located on the basement levels of the New Building to be exempted from the calculation of floor area for the New Building.

On November 17, 2008 the three related applications which request the DUMBO project actions were certified as complete by the City Planning Commission. These are the three actions being contested by the petitioners on the ground that these waivers and amendments were improperly granted. The City Planning Commission is responsible for: "the conduct of planning relating to the orderly growth and development of the City, including adequate and appropriate resources for the housing, business, industry, transportation, distribution, recreation, culture, and comfort of the immediate community. In April 22, 2009, for each of the DUMBO project actions contained in the 2008 application; Municipal respondent City Planning Commission approved the Amendment, Parking Garage Special Permit, and Bulk Special Permit sought by Two Trees. On June 10, 2009, Respondent City Council of the City of New York adopted the Dock Street DUMBO actions as law.

In addition, in order for the DUMBO project to obtain final approval, it was subject to a review process pursuant to the New York City Environment Quality Review ("CEQR"), as well as a review under the New York City Uniform Land Use Review Procedures ("ULURP"). Pursuant to CEQR, in Executive Order No. 91 of 1997, as set forth in Rules and Procedures, Title 62, Chapter 5 of Rules of the City of New York, " when a project requires discretionary action, it must go through the CEQR process."

The CEQR process examines project's potential for adverse environmental impacts, including vehicular traffic and public transportation, air quality, hazardous materials, historic preservations, natural resources, shadows, and noise. The ULURP is a public review process which is structured to allow members of the public to review and comment on proposed actions that may impact various aspects of the relevant community which, in the instant case, is the DUMBO community. The City's approval of these actions and the Dock Street Project are challenged by petitioners in the within action.

PARTIES' CONTENTIONS

Standing

The petitioners in this case are a small neighborhood-based advocacy group, with several members (including those named separately as petitioners) residing within 1,000 feet of the site of the proposed building. The petitioners allege that they will be affected by the proposed new building and the impacts caused by the challenged land use approvals. The alleged impacts which would be attributable to the Dock Street project include: increased traffic, increased shadows, blocked views, increased demand for transit, changes to neighborhood character, increased demands on infrastructure, [*5]increased demands for municipal services, increased noise and air pollution, and impacts created by construction; all of which, according to the petitioners, would be exacerbated by the close proximity of parties' residences to the site of the proposed new building. The petitioners named in the law suit are Gus Sheha, who resides at 42 Main St. 10F Brooklyn NY 11201, and Barry W. Silverstein residing at 70 Washington Street, PH-G, Brooklyn NY 11201.

The respondents contend that the petitioners do not have standing. They argue that petitioners' conclusory allegations in the petition are not sufficient to demonstrate their standing to bring the within action,

General Large Scale Development determination ("GLSD")

Petitioners allege that the development site and Zoning Lots A, B and C do not meet the requirements of a General Large Scale Development. A GLSD is a development or enlargement other than a large-scale residential development or a large-scale community facility development. A general large scale development may be located in any commercial or manufacturing district on a tract of land containing a single zoning lot or two or more zoning lots that are contiguous or would be contiguous but for their separation by a street or a street intersection. The designated tract of land (a) has or will have an area of at least 1.5 acres; and (b) is designated as a tract, all of which is to be used, developed or enlarged as a unit. Such tract may include any land occupied by buildings existing at the time an application is submitted to the city planning commission under the provisions of Article VII, Chapter 4, provided that such form an integral part of the GLSD. The petitioners contend that Zoning Lots B and C are not being developed or enlarged, because there is no new building being built on those lots. Also Lots A, B and C would not be used as integral parts, and rather are separate lots that the respondents are attempting to qualify as one unit to satisfy the Zoning Resolutions § 12-10's definition of a GLSD.

Respondents contend that although they will not be erecting new buildings on Zoning Lots B and C, the petitioners ignore a very important term in the definition of a GLSD, which is the "use" in the " use, develop or enlarge" portion of ZR's definition of a GLSD. Respondents allege that the use of the existing buildings on Zoning Lot B and C are integral to the construction of the new building on Zoning Lot A. Respondents allege that the 2008 proposals submitted by Two Trees demonstrate that the requested GLSD modifications for Zoning Lots B and C, would allow the construction of the new building on Zoning Lot A; allegedly in a manner "that is respectful to the late 19th century early 20th century buildings that dominate the DUMBO neighborhood.

Waterfront Regulations & Environmental Impacts of the DUMBO Project

The Waterfront Regulations are special regulations in the New City Zoning Resolution that apply to property along the City's waterfront. The Regulations recognize the unique characteristics of the public waterfront. They require certain open space, formal access to such open space and compliance with special ministerial procedures in order to demonstrate and document compliance. ZR § 123-10 in the Waterfront Regulations states that the provisions of the Mixed-Use Zoning District regulations apply to all development within the Special Mixed Use District, and that such regulations shall control in the event of any conflict with other zoning regulations.

[*6]Petitioners contend that the City failed to recognize, when granting the respondents the right to build the new building on Zone Lot A, that part of the GLSD was located partially within a waterfront block. Petitioners further allege that had this been recognized, a determination as to the applicability of the ZR § 62-00 (Special Regulations Applying in the Waterfront Area; hereinafter referred to as the "Waterfront Regulations"), or compliance with the same would have been made. Petitioners assert that the Waterfront Regulations require consideration of specific provisions, as well as certification of compliance for these provisions, and certification was never obtained by the respondents.

Respondents contend that in the instant case the waterfront regulation does not apply. Further, the respondents contend that the petitioners' analysis of the waterfront regulations and its applicability to the DUMBO Project is incomplete. Respondents detail a 5 step process found in, New York City's Zoning Resolutions, for the applicability of the Waterfront regulations to DUMBO project. Respondents allege that an examination of the 5 step process under the instant facts and circumstances demonstrates that the waterfront regulations do not apply to the Dock Street Project.

Petitioners also argue that the respondents' revised Environmental Assessment Statement (the "EAS") is insufficient and does not justify their conclusion that there would be no potential for significant adverse impacts caused by the project. An EAS is a smaller shorter document compared to an Environmental Impact Statement ("EIS"). An EIS under United States environmental law is a document required by the National Environmental Policy Act for federal government agency actions that significantly affect the quality of the human environment.[FN1] Petitioners allege that the EAS is insufficient because it only considers the impacts of the Dock Street Project—not the rezoning itself. Petitioners in support of their allegation refer to the 2004 "38 Water Street Project" which according the petitioners was considerably smaller and at which time respondents used an EIS. The EAS, according the petitioners ,does not consider the alternative potential developments made possible by the rezoning nor the corresponding potentially significant adverse impacts of the same. Therefore, the respondents failed to take a "hard look" at the potential for significant adverse impacts, such as a traffic analysis of the combined effects of the proposed 300 seat middle school proposed to be included in the project.

Respondents contend that the Dock Street project fully complied with State Environmental Quality Review/City Environmental Quality Review. Respondents further contend that the EAS and Revised EAS, and the Negative Declaration and Revised Negative Declarations, demonstrate that CPC, as lead agency, took the requisite "hard look" at the project's potential to result in significant adverse impacts, including those related to traffic, the proposed middle school and the visual and historic context of the Brooklyn Bridge.

Site Selection of the new Middle School

Petitioners allege that the siting of the new middle school in DUMBO is completely irrational, given that the nearest middle school to the neighborhood is just over a half [*7]mile east of the Development Site, which is only at 56% capacity. Petitioners add that the next nearest school, where the overflow of students would go if the closest middle school were overcapacity, is only at 28% capacity. Petitioners allege that the placement of another school in Cooperative School District (CSD) 13 is illogical, given that the other two neighboring schools within the area are underutilized. Petitioners assert that the assessment of the placement of a new middle school goes beyond the agency's technical expertise, and is unreasonable.

Respondents contend that the petitioners have not set forth any legal basis for their challenge for a need for a new public school in school district 13. Respondents further allege that the petitioners have no interest or stake in the management of the City's educational system; such decisions are uniquely within the authority of the executive and legislative branches of governments.

In support of their contentions, respondents discuss two processes used when deciding the placement of a new school. First, the School Construction Authority (SCA), Five-Year Capital Plan, as approved by the City Council and Mayor, identifies the need for a new school and allocates capital funding for the construction project. Second, SCA must undertake the site selection process as set forth in section 1731 of the Public Authorities Law. Respondents argue that New York Public Authorities Law § 17-37 et seq. provides the exclusive authority for the School Construction Authority to determine whether a public school needs too be created and that the City Council's approval is in the appropriate location, and the petitioners do not offer any analysis to support a finding that the SCA acted contrary to its statutory authority under the Public Authorities Law.

DISCUSSION

In an Article 78 proceeding, the function of the court is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see, Matter of Pell v. Board of Educ., 34 NY2d 222, 230-231 [1974]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact" (Pell, 34 NY2d at 231). A rational basis exists where the determination is supported "by proof sufficient to satisfy a reasonable [person] of all the facts necessary to be proved in order to authorize the determination" (Ador Realty, LLC v. Division of Housing and Community Renewal, 25 AD3d 128, 139-140 [225], quoting Pell, 34 NY2d at 231]). A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious or contrary to law (see, Matter of Brockport Cent. School Dist. v. New York State and Local Employees' Retirement Sys, 270 AD2d 706, 707-708 [2008]). Further, in an Article 78 review of administrative sanctions, "the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law" (see, Featherstone v. Franco, 95 NY2d 550, 54 [2001]).

Standing

The petitioners are required to establish that they have sustained an injury-in-fact that is in some way different from that of the public at large and an injury that falls within the zone of interest protected by SEQR (see, Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761[1991]). An injury in fact may rise from the existence of a presumption established by the allegations demonstrating close proximity to the subject [*8]property or, in the absence of such a presumption, the existence of an actual or specific injury. (Matter of Powers v. DeGroodt, 43 AD3d 509 [2007]).

The petitioners in this case are a small neighborhood-based advocacy group, with several members residing within 1,000 feet of the site of the proposed building. The impacts of the Dock Street Project, as stated by the petitioners are as follows: increased demand for transit, increased noise and air pollution and the impacts created by general construction. Petitioners state that the injuries listed are exacerbated by the proximity of their residences to the site of the proposed new building, and the court is compelled to agree. In the Matter of Save the Pine Bush, Inc. et al v. Common Council of City of Albany, et al., 13 NY3d 297 (2009), an article 78 proceeding challenging the SEQR review by the Albany Common Council (The City) of a hotel developer's rezoning of a small lot in Albany, New York, as the first in a proposed hotel developer's rezoning application. The property was not within the Albany Pine Bush Preserve but was situated near protected areas, including the Karner Blue Butterfly habitat area known as Butterfly Hill. The City, as the lead agency, required the preparation of an Environmental Impact Statement. Similar to the instant case, the petitioners in Save the Pine Bush alleged that the Common Council failed to adequately evaluate the environmental impact of the individuals and species in the area. In Save the Pine Bush, in order for the petitioners to establish standing to bring the article 78 proceeding, the individual petitioners alleged that due to the fact they live near the proposed hotel site and that they "use the Pine Bush for recreation and to study and enjoy the unique habitat found there", they have standing. The Court in that case declared that the evidence that the individual petitioners regularly used the Pine Bush preserves and that at least one petitioner resided in "sufficient proximity" to the Preserve to facilitate that use was sufficient evidence to establish standing. Where a proposed project will harm the petitioners' use and enjoyment of public resources-such as lakes or public parks-the petitioners must demonstrate that an alleged SEQRA violation will result in their suffering that harm to a greater degree that the rest of the public due to , "for example, the proximity of their property to the affected site." (Matter of Saratoga Lake Protection & Improvement Dist. v. Department of Pub. Works of City of Saratoga Springs, 46 AD3d at 982-983 [1997]).

In the instant case the petitioners reside 1000 feet from the Dock Street Project, they use and enjoy all the resources within the immediate area on a daily basis, thus but for their unquestionable close proximity to the project site the injuries they will suffer would be exacerbated. Therefore, the petitioners' injuries are distinct from those who do not live as close to the project site, in sum the public at large. The court finds that the petitioners have standing to bring the instant article 78 proceeding.

GLSD designation

A rational basis exists where the determination is supported "by proof sufficient to satisfy a reasonable [person] of all the facts necessary to be proved in order to authorize the determination" (Ador Realty, LLC v. Division of Housing and Community Renewal, 25 AD3d 128, 139-140 [225], quoting Pell, 34 NY2d at 231]). The petitioners argue that the three zoning lots A, B and C do not satisfy the requirements of a GLSD and therefore special permit ZR § 74-74, which is a special permit waiving the height and bulk restrictions contained in mixed use district zoning regulations, was granted [*9]without rational basis. The court must decide whether the respondents determination " totally lacked reason or was affected by an error of law." Pell v. Mayor of Syracuse, 34 NYS2d 222, 356 NYS2d 833 (1974). A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious or contrary to law (see, Matter of Brockport Cent. School Dist. v. New York State Local Employees' Retirement Sys., 270 Ad2d 706, 707-708 [2008]).

According to the NYC Zoning Glossary found on NYC.gov a "Large Scale Development is a development generally involving several zoning lots planned as a unit; special regulations allow for flexibility, particularly in the distribution of floor area without regard to lot lines, in order to achieve a superior site plan." The definition of a general large scale development, according to ZR § 12-10, is a large scale development which may be located in any commercial or manufacturing district on a tract of land containing a single zoning lot or two or more zoning lots that are contiguous or would be contiguous but for their separation by a street, which such tract of land (a) has or will have an area of at least 1.5 acres; and (b) is designated as a tract, all of which is to be used, developed or enlarged as a unit. In addition, the GLSD may include any land occupied by buildings existing at the time an application is submitted to the city, provided that such form an integral part of the general large scale development.

There is no dispute between the parties that Zoning Lots A, B and C satisfy the first requirement of a GLSD which is "two or more zoning lots that would be contiguous but for their separation by a street or a street intersection, which collectively have amount to an area of at least 1.5 acres." ZR §12-10. The court is compelled to agree, Zoning Lots A, B and C are all contiguous but for the separation of Lot C to Lots A and B at Water Street. The acreage amount for all three tracts of land, if considered a GLSD would amount to 1.61 acres; 45,742 square feet on Zoning Lot A, 17, 880 square feet on Zoning Lot B, and 6,661 square feet on Zoning Lot C.

The court must now determine whether the three tracts were planned and intended to be used, developed or enlarged as a unit. The only Lot that will on which a new building will be erected is Zoning Lot A. However, there have been necessary conversions made to Zoning Lots B and C to have the proposed building on Zoning Lot A built. A major concern for both parties appears to be maintaining the integrity of the architectural layout of the DUMBO neighborhood. The respondents in order to develop Zoning Lot A without impacting the DUMBO Historic District designation, and as a conversion of "use" under the City's Zoning Regulations, subdivided Lot 14, within Zoning Lot B into two separate lots: Lot 14 and Lot 15. Lot 14 was used as part of the development site on Zoning Lot A, while subdivided Lot 15 could be maintained as a mixed use, historic building within Zoning Lot B. In addition, as a component of the CPC's approval of the GLSD Special Permit, there were three light and air easements that have been recorded against Lots 15, 16 and 40 on Zoning Lot B's existing buildings, thus granting Zoning Lot A protected access to light and air over the existing buildings located on Zoning Lot B. This action was taken in accordance with (New York City law: Multiple Dwelling [26-37] Light and Air); which requires that living spaces be adequately exposed to light and air. If respondent Two Trees were granted the approval for the proposed building without the Light and Air easement on Zoning Lot B, then Two [*10]Trees would then be able to build a large building on Zoning lot B, blocking the light and air necessary for the proposed building on Zoning Lot A. Therefore, the GLSD Special Permit waiver relating to the distance between the buildings would not have been granted by the CPC, but for the Light and Air Easements on Zoning Lot B.

Also, Lot 16 (within Zoning Lot B) consists of an existing building with an open space behind the building; as a part of the proposed development of Zoning Lot A, the open space was needed for the entry to the proposed new parking garage. Locating the parking garage entrance on a portion of Zoning Lot B would allow a majority of the floor frontage on Zoning Lot A to be devoted to retail space. The open space behind the building located on Zoning Lot B, complied with suggestions of the DCP staff concerning street frontage requirements, but also allowed the parking garage entrance to be located on the one-way portion of Front Street, minimizing potential traffic conflicts. With respect to Zoning Lot C, which consists of Lot 33 and Lot 38, plans were filed with the NYC Department of Buildings to convert the building on Lot 33 from a commercial building to a Public Assembly space, "Use Group 6 Eating and Drinking Establishment." The purpose would be to allow the Galapagos Art Space to lawfully occupy the building on Zoning Lot C; Galapagos Art Space is a recently converted stable building specifically for the use of the Galapagos Art Space. In addition to constituting actual "development" on Zoning Lot C, Lot 33 also plays an important role in the GLSD Area itself. The improvement on Lot 33 balances the construct of the DUMBO area with regard to the proposed construction on Zoning Lot A. The placement of the converted stable building and the rotation of the taller portion of the proposed building to the eastern lot line enable the New Building to align into the row of case concrete Gair Warehouse, along the waterfront on an east/west axis, essentially maintaining the neighborhood context the petitioners contend they want to shield. Further, the drawing currently attached to the GLSD Restrictive Declaration identifies the improvements proposed for Zoning Lot A, which are the bulk, building height, and location of the existing buildings on Zoning Lots B and C, which are restricted from development without prior CPC approval in the future, but for those constraints, the CPC could not guarantee that the bulk and height permitted on Zoning Lot A would not later be matched on Zoning Lots B or C. The GLSD restrictive Declaration gives the CPC a role in approving in any enlargement or replacement of the improvements on Zoning Lots A, B and C at any time in the future.

The Court finds that Zoning Lots A, B and C were planned and intended to be used together to construct the "Dock Street Project;" conversions plabbed on Lots B and C not only to ensure that a new building could be built on Lot A, but also to make certain the architectural integrity of the DUMBO neighborhood remains. The planned use of each lot illustrates that each zoning lot is in fact integral to the construction of the new building proposed to be built on Zoning Lot A. The City Planning Commission's very purpose is to promote strategic growth and development in the City. Each year the CPC reviews more than 500 land use applications for actions such as zoning changes and disposition of City property. The court finds no reason to disturb their determination on the instant issue. According to the definition of a GLSD, the respondents have zoning lots that are contiguous but for the separation of a street, each zoning lot in sum amount to at least 1.5 acres. In addition, each zoning lot has [*11]plays an integral part in the construction of the project, therefore each Zoning Lot is being used as a part of a whole, thus all three lots were planned and intended to be used as a unit. The existing buildings all have a use in the contemplation of the Dock Street Project as a whole, all while taking into account the unique character of the DUMBO neighborhood. In addition, the existence of the GLSD Declarations restricting any developments, on the three zoning lots, without CPC review defeats any allegation that the CPC was arbitrary and capricious in their determinations. The court finds that the CPC in their determination were not arbitrary and capricious and that they have a rational basis for declaring the Dock Street Project a GLSD.

EAS/EIS designation & Waterfront Zoning

In reviewing the agency's determination as to the potential of environmental impacts, a court may not substitute its judgment for that of the agency, weigh the desirability of a proposed action, or choose among alternatives. Merson v. McNally, 90 NY2d 742, 751 (1997); Akpan v. Koch, 75 NY2d 561, 570 (1990). Rather, a court must limit its review to whether the agency's determination was arbitrary, capricious, or an abuse of discretion, or affected by an error of law. Akpan, 75 NY2d at 570.

An environmental impact statement under United States environmental law is a document required by the National Environmental Policy Act for federal government agency actions "significantly affecting the quality of the human environment." The National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321-4347. A tool for decision making, an EIS describes the positive and negative environmental effects of proposed agency action and cites alternative actions. An EIS should be created in a timely manner as soon as the agency is planning development or is presented with a proposal for development. Id. However, not all actions require a full EIS. If the action may or may not cause a significant impact the agency can first prepare a smaller, shorter document called an Environmental Assessment (EAS), the finding of the EAS determines whether an EIS is required. Id. If the EAS indicates that no significant impact is likely, then the agency can release a finding of no significant impact and carry on with the proposed action. (See, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); "Part 1502—Environmental Impact Statement" U.S. Council on Environmental Quality).

Respondents used an EAS for the Dock Street Project. The EAS looked into potential impacts on historic, architectural, aesthetic resources, pollution, traffic, as well as the existing neighborhood character. The respondents were required to take a "hard look" at environmental impacts of the proposed project. The EAS and Revised EAS, and the Negative Declaration and Revised Negative Declaration are evidence alone that the agencies in charge took the requisite hard look' at the environmental impacts of the project. In response to the Negative Declarations received on November 17, 2008 the respondents reduced the height of the new building. In addition, they intend to use the open space behind the existing building on Zoning Lot B, in order to mitigate the flow of traffic. This is evidence that the respondents did in fact take a hard look at the potential environmental impacts of the project. The respondents' attempt to maintain the juxtaposition of smaller buildings to taller buildings (which is a notable characteristic of the DUMBO neighborhood) and pushing the proposed new building on to the point furthest from the Brooklyn Bridge, are examples of the agency's taking a [*12] hard-look' at the environmental impact as well as the quality of living for the residents in that area.

Regarding the proposed middle school, it is without question the environmental impact of the proposed middle school was reviewed and considered. The Revised EAS assessed the project with and without the middle school, analyzed the amount of waste that would be generated by the school on a weekly basis, analyzed the school's effect on traffic; vehicular, transit, and pedestrian, as well as the middle school's impacts to land use, zoning, and public policy. The revised EAS also took a hard look' at the potential traffic, high accident locations, and the impacts associated with the parking garage and school. The Traffic and Parking section of the Revised EAS, explains how the Dock Street Project is in an area with low traffic and pedestrian volumes, and it has been noted that no intersections within the traffic study area have been identified as high accident locations. The EAS goes on to analyze the garage exit and its design with proper sight lines to minimize potential conflicts between departing vehicles and pedestrians, as well as the installation of a flashing light and ringing bell to both visually and audibly alert pedestrians to the presence of an existing vehicle. The respondents took the requisite hard look' to satisfy SEQRA/CEQRA interest in the environmental impact of the project. The respondents not only took a hard look' at the environmental and safety implications of the project but the aesthetic impact as well. Therefore, the Court finds that the Environmental Assessment Statement was sufficient to assess the environmental impacts of the proposed project, and SEQR/CEQR's determination to allow Two Trees to continue with the proposed project was not arbitrary and capricious.

With respect to petitioners' argument concerning the project being subject to the waterfront regulations and the respondents disregard of this regulations being arbitrary and capricious, the Court finds that the Water Front regulations do not apply to the Dock Street Project. In the instant case because Zoning Lot C is adjacent to water then all three Zoning Lots would be subject to the Waterfront regulations, However, the fifth step reviews whether the requirements in the Waterfront Regulations apply and conflict with the proposed building form on Zoning Lot A, the lot on which construction is to take place. Step 5 of the five step review process states as follows: Review Section 62-132 and determine whether the requirements contained in the special bulk Waterfront Regulations are applicable to the proposed construction in question. If so, the Special Bulk Waterfront Regulations must be satisfied. If not, the Special Mixed Use District (MX-@) regulations are still applicable and must be satisfied.The Zoning lot that is adjacent to the water is not the Zoning lot that will host construction of the new building, therefore under the fifth step of the Zoning Resolution; the Dock Street Project would not be subject to the Waterfront Regulations. The agencies in charge of reviewing these regulations appear, on this record, to have gone through each step to ensure all zoning restrictions were addressed. Therefore, the court finds that respondents' determination was not an arbitrary and capricious review of the applicable zoning restrictions.

Site Selection & need for a Middle School in CSD 13

The court cannot agree with Petitioners' contention that there is no need for a middle school in Cooperating School District 13 (CSD 13) and SCA did not conduct a proper site selection process. The new overall policy adopted by Department of [*13]Education (DOE) and SCA, seeks to identify areas of current or future localized demand within the larger community school districts. Therefore, while schools in CSD 13 are generally under-capacity, the growing local area will undoubtedly need a new local school. The need for a new school in north Brooklyn area was identified by SCA and DOE, as well as a 2008 report by the New York City Comptroller, a report which reached the same conclusions as the two agencies (SCA & DOE) who are responsible for choosing the site of a new school for areas in need. The court finds no evidence that the city agencies arbitrarily reviewed present and future needs of the residents in CSD 13. The 2010-2014 Capital Plan acknowledges that District 13 "contains a substantial surplus of space given current enrollment demands but is projected to need a new school building in the DUMBO/Navy Yard/Fort Greene area primarily due to projected housing growth." The SCA and DOE decided it would be, not just beneficial but necessary, to place a new middle school at the Dock Street Project due to the increased residential growth projected for the next five years.

In Section 1731 of the Public Authorities Law requires the SCA to engage in a site selection process before constructing any new school facility. See generally, New York State Public Authorities Law § 1731. This site selection process requires SCA to file a copy of the site plan of the planned facility to the city board, the city planning commission and the community school board and community board of district 13. Within this plan is a description of the recommended site and any alternatives with rationale as to why the alternatives were not selected. In addition to the requirements mentioned above, the SCA must also publicize notice of the proposed site plan in a newspaper of general circulation and host a local community board hearing concerning the site plan and development which relate to the use of educational facility and its impact on the immediate neighborhood. Based on the record the SCA has complied with the requirements of the Public Authorities Law. The respondents submitted the proposed site plan to the necessary entities. The respondents published notice in the New York Post and the City Record. The site plan included analyses of the alternate sites at neighboring schools with explanation as to why those schools were not chosen for expansion. For example, the record indicates that PS 8, a middle school with in CSD 13, would not be a viable option because it cannot support a K-8 expansion. PS 8 is already using trailers to accommodate students and faculty, and the school presently supports K-5. Further, the respondents held a joint public hearing on December 17, 2008 to discuss the new school site plan and its implications. On May 21, 2009 SCA submitted the proposed site plan to the mayor and City Council for review in order to coordinate the council's review of the middles school siting with the ULURP. The respondents have followed and have satisfied the requirements listed to Section 1731 of the Public Authorities Law, and for all the reasons stated above the court finds the municipal respondents decision to place a new middle school in CSD 13 a calculated and reasonable one.

Conclusion

The court concludes that the neither respondents' decisions or nor the methods they employed to move forward with the proposed project were arbitrary, capricious or an abuse of discretion. Accordingly the petitioners' motion to annul approvals made by the City is denied. The court denies petitioners' request for discovery as moot. The [*14]petition is hereby dismissed.

This constitutes the decision and order of the court.

.E N T E R,

J. S. C. Footnotes

Footnote 1: The National Environmental Policy Act of 1969, as amended, 42 USC Sections 4321-4347(enacted 1970-01) from Council on Environmental Quality.