Matter of Chelsea Bus. & Prop. Owners' Assoc., LLC v City of New York

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Matter of Chelsea Bus. & Prop. Owners' Assoc., LLC v City of New York 2011 NY Slip Op 32669(U) October 14, 2011 Supreme Court, New York County Docket Number: 113194/10 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 1011412011 [* 1] .. . . [* 2] SUPREME COURT OF 1.1-E STATE OF NEW YORK COUNTY OF NEW Y O N : PART 1 1 X ----~~___________---_____1______________------------~~ ~--~~----------------- In the Matter of the Application of CHELSEA BTJSINESS & PROPERTY OWNERS ASSOCIATION, LLC, d/b/a C1 IE1,SEA FLATIRON COA I .I TION, Petitioner, INDEX NO. 113194/10 For an Order Pursuant to Article 78 of the Civil Practicc Law and Rules -against 1 1 IE CITY OF NEW YORK; SETH DIAMOND, Commissioner for the Department of Homcless Services for the City of NewYork ( DHS ); GEORGE NASHAK, Dcputy Commissioncr for Adult Services for DHS; ROBERT D. LTMANDRI, Commissioner for the Department of Buildings of the City ol New York ( D0B j; FATMA AMER, P I . , First Deputy Commissioner for DOH; JAMES P. COLGA I E, R.A., Assistant Commissioner to Technical Affairs and Code Devclopment for DOB; Vl lO MUSTACIUOLO, Deputy Commissioner for the Departmcnt of Housing, Preservation & Development of the City of New York; BOWERY RESIDENTS COMMITTEE, INC.; 127 WEST 25 I LLC; and DANIEL SHAVOLIAN, - In this Article 78 proceeding, petitioner Chelsea Business & Property Owners ~ Association, ILC, d/b/a Chelsca Flatiron Coalition ( CFC ) challenges Board of Standards and Appeals (cbHSA j Resolution 189-1O-A, adoptcd April 5,201 1 and published in Mattcr of Chelsea Bus. & Prop. Owncrs, for 127 W. 25t LI,C, Bulletin of thc New York City Bd. of Stds. & Appcals, vol. 96, No. 15, at 238-47 (April 13, 201 1j ( Kcsolution ). I hc appeal to BSA challenged a final determination letter from the Manhattan Borough Commissioner of the 1 [* 3] Department of Buildings ( DOB j, dated Scpteinber 9,2010, which refused CFC s rcqucst to revoke DOB Permit No. 120288054, issued to rcspondcnt Bowery Residents Committee ( BRC ), a lessee/not-for-prof~t transitional housing and service provider, for thc conversion of a 12-story building at 127-13 1 West 2Sh Street in Manhattan into a homelcss shcltcr and offices (the Building or proposed facility ). Specifically, the appeal to BSA challenged DOB s usc classifications lor the proposed facilities in the Building, as Use Group 5 transient hotcl and Use Group 6 professional office. Pursuant to the Zoning Iicsolution of the City of Ncw York ( ZR j both uscs are permitted as of right in the M l - 6 light manufacturing zoning district in which the Building is located. CFC asserted that the proper use classification is IJse Group 3 non-profit institution with sleeping accommodations or Usc Group 3 health relatcd facility. CFC also claimed that the portion of the Building designated as Use Group 6 could qualify, alternatively, as Usc Group 4 ambulatory diagnostic or treatinent health care facility. CFC argues that Use Groups 3 and 4 are prohibited in an M 1-6 zoning district. C K now seeks revocation o l the approvals and permits for the Building, claiming that, with respect to the Use Group 5 designation, thc Resolution was arbitrary and capricious, and -ZR 6 41-1 1; sce also New York City Dept. of City Planning Zoning Map, Section Sec 8d (http://www.nyc.gov/htrhl/dcp/pdf/zone/map8d.pdf). According to the petition, CFC is comprised of dozens of members who own property or reside in close proximity to the proposed i acility. ZR 5 4 1- 1 1 dcfines M 1 zoning districts as dcsigned lor ... manufacturing and related uscs, providing a buf fer betwecn Residence (or Commercial) Districts and other industrial uses which involve morc objectionable influences, and with certain exccptions, 1 n]ew residcntial development is excluded froin these districts ,.. both to protect residences from an undesirable environment and to ensure the reservation of adequatc areas lor industrial development. 2 [* 4] that it violates the ZK, Administrative Code of the City of New York ( Administrative the Code ), relcvant case law and BSA prccedent, constituting an error of law and abuse of discretion. CFC s Amended Pctition does not challenge BSA s designation of a portion of thc Building as Use Group 6 uiider the ZR. CFC also seeks to: 1 ) enjoin the occupancy and opcration of BRC s 100,000 square foot facility, housing a 32-bcd dctoxificatioii unit, and a 96bed Reception Centcr and a 200-bed shelter for the horncless, pending compliance with all laws, rules and regulations; 2) compel the City to submit thc proposed kcility to IJLURP review in accordance with New York City Charter (5 197-c; and 3) enjoin occupancy and operation ofthe proposed facility unless and until it complics with the Administrative Codc Ij 2 1-312 restriction on shelters exceeding 200 beds. By notice of motion dated July 28,201 1, the City Council of thc City of New York ( City Council ) moved to intervene, and, on consent of the parties, as to the issuc of Statc preemption with respect to size limitations of shelters, intervention was granted. Respondents reservcd the right to object to intervcntion as to other issues raised by the City Council.2 I. BACKGROUND This proceeding involves the renovation and USC of the Building by BRC. BRC s Executivc Director, Lawrencc Roscnblatt submits an affidavit cxplaiiiing that BRC is an organization that partners with the City and the State of New York in an elfort to help horncless individuals successfully transition from the streets through various forms of shelter, incorporating supportive services that enable homeless individuals to transition to permanent housing. Founded in 1971 by lodgers olBowery flop houses, BRC has grown into a leading 2A b r i e h g schedule was set with final submissions due on August 19,201 1 3 [* 5] provider oP housing and services to New York s iiccdicst individuals. Through a continuum of twenty-seven individually comprehcnsivc and collaborative programs located throughout the City, BRC assists homeless individuals by providing accommodations, services and programs in an effect to end New York s homclcss crisis. The proposcd facility will be located in a 12-story building at 127 Wcst 25thStreet in Chelsea. According to Rosenblatt, the renovations arc designed to implement residential and non-rcsidcntial programs which are to be operated by BRC and located within the Building with the primary goal that the renovatcd Building is to function as a vertical campus. In addition, the Ruilding will scrvc as RRC s new headquarters and will house all its adininistrativc offices. Certain portions 01 Building are dedicated to rcsidcntial programs, and other portions to nonthe residential programs, professional olfkes related to the non-residential programs and BRC s staff and administrativc officcs. At DOB s request, a fire wall separates the residential and nonresidential portions of thc Building. The residential programs include a 96-bed Reception Center, a 32-bcd detoxification lacility called the Chemical Dependency Crisis Center ( CDCC ), and a 200-bed homeless shelter. Specifically, the Keccption Center is short-term housing, described by BRC as a transitional residence offered in the city lor homeless individuals who have been diagnosed with one or more severe and persistent mental illness, inany of wlioin havc a history of substance abuse and arc mcdically fragile. According to HKC s Program Ikscriptiotis, the goals of thc Reception Ccntcr arc to provide psychiatric and mcdical stabilization along with therapeutic and case managcmcnt scrviccs with thc aim of placing its clients in appropriate, supportivc housing 4 [* 6] within nine months. The Reception Center is licensed by thc Ncw York State Office of Temporary and Disability Assistance ( OTDA ) and is to be located on the fourth and fifth floors of thc Building. I hcReccption Center currently operates as a 77-bed Reception Center at 324 Lafayette Street, and is funded by the Ilcpartment of Homeless Services of the City of New York ( DHS ), pursuant to an agreemcnt with BRC. DHS and BRC plan to amend thcir current contract to account for the expansion to 96 beds and the rclocation to the Building. RRC explains that the Rcception Center welcomcs walk-in, and clicnts need not be referred by DIIS, and whilc clients are encouraged to participate in day treatment programs in and outside the Building, they are not required lo attend such programs. Rosenblatt describes the CDCC as offering short term transitional accommodations to men and worncn in need of dctoxification fYom substance abuse, as well as those in imminent risk of relapse . . . [and] serves both the homeless and non-homeless individuals. The CDCC, which is to be locatcd on the third floor, is also moving to the Building from 324 Lafayette Street and seeks to expand from a 24-bed program to a 32-bed program. According to City respondent^,^ CDCC is licensed by thc New York Statc Office of Alcoholism and Substance Abuse Serviccs ( OASAS ) and funding for thc program is provided primarily by the New York City Department of Hcalth and Mental Hygiene ( DOH ). Rosenblatt explains that like clients 3CFC raiscs issues relatcd to transiency and the length of stay of-clients at the programs which are discussed below. 4sl he following respondents answered the Anicnded Petition together, and arc referred to collectively as City respondents : the City of New York; BSA; Seth Diamond, as Commissioner for DI-IS;George Nashak, Deputy Coinmissioner for Adult Services for DHS; Kobert LiMandri, Coininissioncr for the DOR; Fatina h e r , First Deputy Commissioner for DOB; and James Colgate, Assistant Commissioner of I echnicalAffairs and Codc Development for DOB. 5 [* 7] of the Reception Center, clients in the CDCC are encouraged, although not requircd, to participate in programs including therapy, substancc abuse education and self-help programs. According to BKC, the 200-bed shelter will scrve homeless men and women of all ages who have a history of mental illncss and who are seeking to attain or maintain stability in their mental health. Locatcd on floors six through nine ofthc Building, the shelter will bc operated pursuant to HKC s contract with DHS and is liccnscd by OTDA. Rosenblatt statcs that clients will also be encouraged, although not required, to participate in day treatment programs inside and outside the Building. In the non-residential portion of the Building, BRC will house the Fred Cooper Substance Abusc Service Center ( SASC ), and a Continuing Day Treatment program ( CUT ). Both programs will operate on the tenth floor of the Building. According to HKC, the SASC is an out-patient program that will serve people with alcohol and substance abuse problems who are homeless or marginally housed, and also clients dually diagnosed with mental illness and substance abuse. Roscnblatt states that the SASC is licensed undcr the State Mental Hygiene Law and is funded by DOH and Medicaid; the CD I program is licensed under the New York State Office of Mental Health ( OMH ) and is funded by Medicaid. BKC s Program Descriptions statcs that thc CD r program will work with clients who Iiavc a long history of. mental illness, many of whom are dually diagnoscd with chemical addictions, providing onsite psychiatric treatment and medication management, case management, assistancc with entitlements and housing, and rehabilitation activities. Rosenblatt states that both programs are open to anyonc sccking thcir scrvices, whether or not they are clients of BRC s Shcltcr, Rcccption Center or CUCC. 6 [* 8] The Amciided Petition allcges that two additional programs, Home-Based Case Management and the Metropolitan Apartment programs, will be locatcd on the cleventh floor of the Building. According to BRC s Program Descriptions, thc Home-Based Case Management program receives funding from Medicaid, DO1I and HKA s Adult Protective Serviccs division, and will offer comprehensive case management services to individuals diagnosed with a serious and persistent mental illness, many with a history of homelessncss and/or substancc abuse. BRC s Program Descriptions state that the Metropolitan Apartment program is funded by OMH and Medicaid, and is a transitional housing program targeting formerly homeless clients who are either mentally ill or dually diagnosed as mentally ill and chemically addicted, with a mission to provide a safk and suppodive environment where residents partakc of rehabilitation interventions that will assist them in the attainment of their work, social and community living goals. In addition, h o d serviccs will be provided at the Building, and, as previously stated, BRC s headquarters and administrativc offices will be located in the Building on the twelfth floor. According to Rosenblatt, the portion of the Building uscd for residential purposes and designated Use Group 5 by DOR will provide living and sleeping accommodations on a temporary basis, and will be uscd for transient occupancy, containing beds, loungc areas, eating areas and some meeting rooms. Rosenblatt also states that thc non-rcsidential portion of the Building designated IJsc Group 6 will be used primarily fbr staff-mcetings, counseling and Rosenblatt s affjdavit states there will be two non-residcntial programs, the SASC and the CDT program at the proposed facility. 7 [* 9] rclated professional services to clicnts in the CDT and SASC programs, administrative services, and executive o[fices. Hc cxplains that thc Use Group 5 and Use Group 6 portions of the Building are designed to bc splitting the space on portions of floors 3 through 9; floors 10 through 12 will be used entirely as Use Group 6 professional offices; the first floor will consist of a Use Group 5 accessory use kitclicn and Use Group 6 retdoffice spacc; and the second floor will consist of a Usc Group 5 accessory use cafeteria. Rosenblatt furthcr explains that the Use Group 5 portion of the Building will have one common entrance on West 2Sh Street, and the Use Group 6 portion will have a separate entrance. In addition, the IJse Group 5 portion of the Building wi I1 operate year-round, 24-hours daily, including 24-hour staff services, such as daily housekeeping, telephone and laundry serviccs provided by BRC personnel. As indicated abovc, while residential clients will be encouraged to participate in the programs, to access the programs they need to exit the residential portion ofthe building and enter the non-residential portion through its separatc entrance. Moreover, BRC s shelter clients can participate in programs outside the Building. Certain [acts and thc procedural history of this proceeding wcrc stated in detail in this court s previous decisions in this proceeding: Matter of Chelsea Busincss & Property Owners Association, LLC v. City ofNew York, 30 Misc 3d 1213(A) (Sup Ct, NY Co, January 10,201 l), (BRC s motion for a stay of CPC s motion for injunctive relief); and Matter of Chelsea Business & Property Owners Association, I,LC v. City ofNew York, 201 1 NY Slip Op 31946 (Sup Ct, N Y Co, July 8, 201 1) (CFC s motion for a preliminary injunction). Therefore, the court presumes familiarity with such facts and procedural history. [* 10] 11. ZONING RESOLUTION BSA and DOR are responsiblc for administering and enforcing the zoning resolution (New York City Charter $5 643, 666 [7]), and their interpretation must thereforc be given great weight and judicial deferencc, so long as thc interpretation is neither irrational, unreasonable nor inconsistent with the governing statute. Appelbaum v Deutsch, 66 NY2d 975, 977-78 (1985) (citation ornittcd); see also 129 East 82nd St. Owners Corn. v Board of Standards and Appeals of City of New York, 244 AD2d 213 (1 Dept 1997); CPLR $7803. As stated by the Court of Appeals, Uludicial rcview of local zoning decisions is limited, and such decisions should be sustained when supported by a rational basis, regardlcss of whether, in close cases, a court would have, or should have, dccided the matter differently. Thc judicial responsibility is to review zoning decisions but not, abscnt proof ol arbitrary and unreasonablc action, to make them. Mattcr of Cowan v Kern, 4 1 NY2d 591, 599 ( I 977); see also Matter of Pcll v Board of Educ. of Union Frcc School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 NY2d 222, 231 (1974). A determination that is consistent with [the agency s] own rules and prcccdents establishes a rational basis lor the determination. Matter of Peckhain v C alORero, 12 NY3d 424, 43 1 (2009). However, [a] decision of an administrative agency which neither adheres to its own prior prccedent nor indicates its reasons for reaching a dirferent rcsult on essentially the samc facts is arbitrary and capricious and mandatcs reversal, even if thcre may othenvisc be evidence in the record sufficient to support the determination. 1,wblinskiy v Srinivasan, 65 AD3d 1237, 1239 (2 d Dept 2009) (interior quotation marks and citations omitted). While an agency s rational construction is entitled to deference when it applies its special expertise in a 9 [* 11] particular field to interpret statutory language, deference to an agency s interpretation is not rcquired where the question is one of pure legal interpretation of statutory terms. Mattcr of Karitan Dcv. Corn. v. Silva, 9 1 NY2d 98, 102-103 (1 997) (internal quotation marks and citations omitted). [ Wlhere the statutory languagc is clear and unambiguous, the court should construe it so as to givc effect to the plain meaning of the words used. Id at 107 (emphasis in original) (citations omittcd). However, cvcn in situations where an agcncy applies special expertise, a determination that runs counter to the clear wording of a statutory provision is given little weight. u. (citations omitted). [T]he fundamental rule in construing any statute, or in this case ... the City s Zoning Rcsolution, is to ascertain and give effect to the intention oi the legislative body, hcre the New York City Council. City of New York v Stringidlow s of N.Y., 253 AD2d 110, 115-116 (lst Dept 1999). Thc City Council s intent is controlling and is ascertained from the words and language used in the statutc and iP the language thereof is unambiguous and the words plain and clear, there is no occasion to rcsort to other mcans OC interpretation. at 116. The City Council s intent must be given force and effect, and [olnly when words ol the statute are ambiguous or obscure may courts go outsidc the statute in an endeavor to ascertain their true meaning. Id. A. BSA S RESOLUTION AND USE GROUP DETERMINATION Here, BSA concludcd that the proposed uses of the residential and non-residential portions of the Building werc konsistent with a Use Group 5 transient hotcl and Use Group 6 professional office under the ZR. ZR tj 12-10 defines transient hotel as follows: 10 [* 12] A itransicnthotcl is a #building# or part of a #building# in which: (a) living or slccping accommodations are used primarily for transient occupancy, and may bc rented on a daily basis: (b) bhc or more common entrances servc all such living or sleeping units; and (c) twenty-four hour dcsk service is provided, in addition to one or more of the following services: housekeeping, tclephone, or bellhop service, or the furiiishing or laundering of linens. Pcrmitted #accessory uses# includc rcstaurants, cocktail lounges, public banquet halls, ballrooms, or meeting rooms.6 -- BSA found that ZR $12-10 is clear and unambiguous and that the proposed use of thc building meets the three criteria of thc definition . . . in that, as presented by RRC, it (1) provides sleeping accommodations uscd primarily for transient occupancy, (2) has a common entrance to serve the sleeping accommodations, and (3) provides 24-hour dcsk service, housekeeping, telephone, and lincn laundcring. BSA determined that, because thc statute is unambiguous, the Board does not find that it is nccessary or appropriate to consult sources outside of the ZR for clarity. CFC challengcs on various grounds, BSA s conclusion that the residential portion of the proposed facility is properly classified within Use Group 5 as a transient hotel, and asserts that thc proposcd facility s proper classification is as a coinmunity facility undcr Use Group 3. In the subjcct zoning district, a [Jsc Group 5 transient hotel is permitted as of right, while a IJse Group 3 community facility requires a special permit, CFC s argumcnts are addressed below. Initially, CFC asserts that HSA s Resolution ignores the clear and common meaning of the term hotel. Spccifically, CFC argues that as commonly understood, a hotel does not According to the ZR, words in the text surroundcd by thc numbcr sign or italicized are to be interprctcd in accordancc with the provisions set forth in the ZR. 11 [* 13] provide the typcs of medical and social services to be provided at thc non-residential portion of the proposed facility, and that New York State statutes and regulations govcrning thc proposed facility also indicate it is not a hotel. CFC refcrs to statutes and regulations cross-rcferenced in the ZR, such as the Adrninistrativc Code, thc Multiple Dwelling I a w ( MDL ), the New York State Hospital Code, and the Housing Maintenance Code ( HMC ). CFC s arguments are without merit, as they ignore the plain languagc of.ZR 15 12-10, which clearly and exprcssly designates the criteria for a transient hotel. See I ovs R lJs v. Silva, 89 NY2d 41 1,420 (1996). For the reasons discussed below, the court finds that BSA had a rational basis for its conclusion that the definitional criteria in ZR $ 12-10 controls the determination as lo whcther the rcsidential portion of thc Building is a transient hotel under the ZR. The words and language used in the criteria for determining whether a building is a transicnt hotel uiidcr the ZR are clear and unambiguous. BSA s Rcsolution was based upon the job application, approved plans, and inlormation providcd by BRC to DOB, indicating that the sleeping accommodations on floors 3 through 9 of the Building would be made available on a daily basis, and that the homeless clients would not remain in the same dwelling space for more than 30 days at a time. BSA also relied on the amendcd plans indicating that 24-hour desk service would bc provided on the ground floor for thc entrance to the Use Group 5 portion of the Building, and also at the third floor interior entrance to the USCGroup 5 slecping accommodations, and that laundry services would be provided at the cellar level. The amended plans further indicatc that the Building would be served by two separate entrances, including a common entrance to the eastern portion of the Building with an elevator that would exclusively 12 [* 14] serve the living or sleeping units of the Use Group 5 Transicnt Hotel, and an entrance at the western portion of thc Building with an elevator that would exclusively serve the Usc Group 6 profcssional offices. Thus, since the record satisfics the statutory criteria, BSA had a rational basis for concluding that thc rcsidential portion of the proposcd facility is a transient hotcl within the meaning of ZR 6 12-10. The court also concludes that BSA was not required to look outside the ZR and apply what CFC argues is the commonly understood meaning of the tern1 hotcl. As explained by BSA, although it recognized there may bc some ambiguity to the concept of hotcl, since the ZR has defined hotel, for zoning purposes, and the casc at issue concerns a zoning matter, the ZR is the best and only resource lor the meaning of the term for zoning purposes. BSA s conclusion is consistent with its conclusion in Matter of Soho Alliance Community Group, RSA Resolution 247-07-A, where it found that a condominium hotel was a transient hotel under ZR 5 12-10 cvcn though it differed from traditional concepts of a hotel, sincc thc hotel permitted its clients to own units and to occupy units for up to 20 consecutive days. Morcovcr, HSA propcrly found that CFC s attempt to apply definitions from common experience or other statutes, would dcfcat the distinct purposes of individual statutes. & Amelbaum, 66 NY2d at 977 (BSA not rcquircd blindly to import definitions from statutes with varying purposes). As explained by DOB and as argued by respondents, the other laws cited by CFC serve different purposes than thc ZR. Spccitically, thc ZR govcrns land use in New York City. On the other hand, the MDL was enacted to ensure the establishment and maintenance of proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards (MDL §2), and the HMC was enacted to establish minimum standards of health and 13 [* 15] safety, fire, protcction, light, ventilation, clcanliness, repair and maintenance, and occupancy in dwcllings (Adniin Code 5 27-2002 ). As argued by City respondents, for these reasons there is not a perfect correlation between thc IJse Group designations in the ZR, and the definitions in the MDL and HMC. The court, thercfore, concludes that BSA s refusal to consult statutes and regulations outside the ZR, or to apply a differing common meaning of the word hotel was not irrational, unreasonable, or inconsistcnt with the governing statutc. See Matter of Cowan, 41 NY2d at 23 1. NY2d at 599; 3 4 Contrary to CFC s argument, Fischer v l aub, I27 Misc2d 5 18 (App I erm, lStDept 1984), does not rcquirc a different result, as that casc is distinguishable on its facts. Fischer did not involve an analysis of thc dcfinition of transicnt hotel under the ZR, but rather an analysis of whether an adult care facility was a hotel so as to qualify as a multiple dwelling subject to Rent Stabilization Laws. The Appellate Term, First Department concluded thc premises was not a hotel, because it was not a multiple dwelling under thc MDL. Notably, Fischer highlights the fact that certain premises may meet the delinition of a transient hotel for zoning purposcs under the ZR, but not the definition of hote1 under other statutory schemes, such as the MDL or the Administrative Code. CFC also argues that the Department of Housing Preservation and Development s approval of rooming units in the residential portion of the Building is inconsistent with its Use Group 5 designation as a transient liotcl. CFC relies on the delinition of rooming units in ZR 12-10, and on I IMC 27-2004(a)(15) which excludes rooming units in a Class B Hotel. Spccifically, CFC argues that as section 27-2004(a)( 15) cxcludcs rooming units in a Class B hotel, and sincc rooming units have been approved in the Building, the Building cannot be 14 5 [* 16] properly designated under the ZR within Use Group 5 as a transient hotel. This argument is without mcrit. As stated above, the ZR and HMC have different and distinct purposes, and different definitions arid classitications. Under the circumstances here, RSA had a rational basis for its conclusion that the creation of rooming units for purposes of the I IMC, does not disturb its dcsignation as a TJse Group 5 traiisicnt hotel. For similar rcasons, the courts rejccts CFC s argument that the Building cannot be a Use Group 5 transient hotel as it has been classified under the MDI, as a lodging house lor purposcs of the certiGcate of occupancy. As explained by DOB, the Building s classification as a lodging house under MDL requires that it comply with fire and safety requirements under MDL (j 66, as opposed to the less stringent requirements applicable to hotels under MDL 5 67. CFC further argues that the permittcd accessory uses in ZR 4 12-10, which includc restaurants, cocktail lounges, public banquet halls, ballrooms, or mecting rooms, demonstrates a legislative intent to create a use group designation for hotel as the term is commonly undcrstood. However, as BSA determincd, the definition in section 12-10, docs not exclude other accessory uses, such as facilities like BRC s proposed facility hcre. Moreover, CFC fails to identify any provision in the ZR cvincing an express legislative intent that homeless shelters fall within another use group, or any prohibition against their inclusion under Usc Group 5. Therefore, BSA providcd a rational basis for its Use Group 5 designation, having considered the permitted accessory uscs identilied in ZR tj 12-10. CFC also challenges BSA s analysis of transiency, an issue that BSA defer[rcd] to DOB to cnforcc. BSA found that it was reasonablc for DOB to accept BRC s representations that its clients in the CDCC, the Reception Center and the Shelter would not stay in the sarnc 15 [* 17] space for greater than 30 days, CFC relies on statements in BRC s Program Descriptions that stays at the Rcception Center would be up to nine months. However, since BRC s representations to L)OB post-date the Program Descriptions, RSA had a rational basis lor accepting BRC s representations. BSA also concluded that BRC will be able to comply with this representation and its contract with DHS, as the contract docs not require BRC to allow stays of nine months or longer. Thus, BSA s conclusion that RRC will bc able to comply with the zoning requirements as well as its contract with DI IS, has a rational basis. Moreover, the ZR does not define the word transient. See e . ~Matter of Soho Alliance Cominunity Group, BSA . Resolution 247-07-A, adoptcd May 6,2008 (ZR is silent concerning the specific paramcters of a transicnt occupancy). BSA s conclusion concerning transiency and its determination to defer to DOB to trcat ccrtificatc of occupancy violations as an enforcement issue, are rational and supported by New York law, as a prohibition based on a possible future illegal use would be arbitrary and capricious. Mattcr of DiMilia v Bennett, 149 AD2d 592, 593 (2ndDept 1989). B. CLASSIFICATION AS A COMMUNITY FACILITY UNDER USE GROUP 3 CFC argues that thc Building should be designated a community facility, speciflcally, a Use Group 3 non-prof3 institution with sleeping accommodations, under ZR (j 22-1 3(A), due to the fundamentally integrated nature of the sleeping accommodations and the other services provided at the facility by BRC. CFC further argues that the firewall, separate entrances and elevators bctwccn the residential and non-rcsidential portions of the Building do not convcrt it from a Use Group 3 community facility to a Use Group 5 transient hotel and TJse Group 6 professional offkes; that BSA ignored its own precedent in classifying the Building as Use Group 5 ; and that BSA failed to addrcss the integratcd nature of the services and sleeping 16 [* 18] accommodations. In response, BRC asscrts, that its rcsidential programs are aimed in the first instance at providing transicnt shelter to its homeless clients, and also to assist them in finding permanent housing. According to BRC, the programs are complementary to thc provision of shelter, and sharing a building will provide access by BRC s clients to thc programs, and will allow BRC to take advantage of the benefits and efliciencies associated with housing both in the same location. BRC further asserts that the programs are independent of one another and not fundamentally integrated as CFC argues. As previously stated, a Use Group 3 noli-protlt institution with sleeping accommodations is not permitted as of right in the subject M1-6 zoning district. Use Group 3 consists of various types of community facilities, onc of which includcs philanthropic or non-profit institutions with sleeping accommodations. In support of its argumcnt that thc Huilding qualifies as a community facility under this definition, CFC relies on BRC s status as a not-for-profit corporation whose mission is to provide housing and nonresidential programs to homelcss men and women, especially those suffering from mental illncss or drug and alcohol addiction. According to CFC, BRC s provision of beds, sheltcr, safety and oversight arc the fuiidameiital lion-profit services of a hornclcss shelter. As to BRC s programs in the Building, CFC relics on HRC s 2009 annual report and claims that the high lcvel of integrated, comprchcnsive care provided to clients in the residential portion of the Building by the medical and social service programs in its nonresidential portion, establishes the relationship between the sleeping accommodations and RRC s philanthropic purpose of Iiclping mcntally ill and alcohol and substance addicted homeless break the cycle of homclessness and achieve stability through on-site, coordinatcd alcohol and drug rehabilitation, medical and mental health treatment, and financial, lifc and career skill 17 [* 19] training. CFC argues that its interpretation of the language of the ZR is supported by countless BSA resolutions and several court decisions that label similar social service lacilities as Use Group 3 non-proiit institutions with slccping accommodations. In support of its proposed Use Group 3 designation, CFC rclics in part upon Manton v Ncw York City Board of Standards & Appeals, 117 Misc2d 255 (Sup Ct, Queens Co 1982) and two BSA rcsolutions: Matter of Yh & IOth St., LLC, Bulletin of the New York City Hd. of Stds. & Appeals, vol. 90, Nos. 42-43, at 694-700 (adopted Oct. 18, 2005, published Oct. 27,2005) (Yfh & 1 Olh St. Casc ); and Mattcr of Forest Hills Student Residences, Bulletin of the New York City Bd. of Stds. & Appeals, vol. 92, No. 24, at 482-86 (adopted June 19,2007, published June 28,2007) ( Youth Hostel C a ~ e ) . ~ Manton. the issue before the court was whether thc subject ZR was In unconstitutionally void for vagueness and over breadth; not, as argued by CFC, whethcr thcre was a nexus between the philanthropic purpose of drug rehabilitation and the provision of sleeping accommodations. CFC citcs thc gth& 1Ot St. Case for the proposition that institutional nianagemcnt and control of the facility is rclcvant to a dcsignation of community facility under 7T11e additional cases and BSA resolutions relied upon by CFC do not involvc applications ior designation as Use Group 5 transient hotels, but rather, applications for zoning variances for properties dcsignated as Use Group 3, including uses that combined homeless shelters and social service programs not permitted as ofright. See Homes for Homeless. Inc. v Board Q f Standards dz Appeals of City of New York, 24 AD3d 340 (1 Dept 2005), & 7 NY3d 822 (2006); Manton v New York City Board of Standard & Appeals, 1 17 Misc 2d 255 (Sup Ct, Qucens Co 1982); BSA Resolution No. 299-08-BZ, Dec. 15,2009; BSA Resolution No. 210-08BZ, Oct. 20,2009; BSA Resolution No. 26-09-BZ, Junc 16, 2009; BSA Resolution No. 48-09-A, May 12,2009; BSA Iiesolution No. 7-00-B7,, Sept. 1 1,2007; BSA Resolution No. 257-02-BZ, Feb. 1 1, 2003; RSA Resolution No. 193-02-BZ, Dec. 17,2002; BSA Resolution No. 196-02-BZ, Nov. 19,2002; and BSA Resolution No. 69-02-A, Oct. 1,2002. I Icrc, BRC did not seek a variance lor a Use Group 3 designation and, therefore, the resolutions cited by CFC are distinguishable on their facts. [* 20] Use Group 3. While such control may be a factor to bc considered, it is not dispositive of the issue as to whether the residential portion of the Building is properly classifled as a transient hotel. The Youth Hostel Case, however, is relevant to this issue, and is cited by both CFC and BRC. In the Youth Hostel Case, Forest Hills Student Residences (FHSR) was thc not-for-profit lessee of certain premises, converted for use as a youth hostel in Queens, New York. FHSR provided, among other scrviccs, sleeping accommodations, immigration counseling, English as a second languagc instruction, and educational film screenings, On appcal, BSA affirmed DOB s h a 1 determination that the premises were properly classificd a USC Group 5 transient hotel, rather than a IJse Group 3 non-profit institution with sleeping accommodations. RSA concluded that the ZR 6 22- 13 does not unambiguously require that any philanthropic or non-profit institution that provides sleeping accommodations is necessarily a Conimuiiity Facility falling within Use Group 3, and that the primary purpose of a philanthropic or non-profit institution with sleeping accommodations properly classified within Use Group 3 cannot be the provision of sleeping accommodations. BSA further concluded that the sleeping accommodations provided by [FHSR] are either its primary purpose or, if its primary purpose is educational or cultural, that they have no necessary relationship to such purpose(s), and that Fl ISR has failed to demonstrate the required nexus between its philanthropic purposc and thc provision of slccping accomniodations. CFC argues that the Youth Hostel Case stands for the proposition that a l acility is Use Group 3 non-profit institution with sleeping accommodations where there is a clear nexus between the non-profit purpose and the provision of sleeping accommodations. CFC asserts that 19 [* 21] since there is a clear nexus between BRC s non-profit purpose and its sleeping accommodations, the proposed facility is a Use Group 3 community facility. BRC, on the other hand, cites thc Youth Hostel Case lor the proposition that the primary purpose of a Use Group 3 non-profit institution with sleeping accoininodations cannot be the provision of such sleeping accommodations. BKC argues that since the primarily purpose of thc rcsidential portion of the proposed facility is to provide sleeping accommodations, the proposed lacility caiinot bc classified as a Use Group 3 community facility. Although BSA found that for a facility to be classified under Usc Group 3, it must bc shown that there is a clear nexus between the facility s philanthropic purpose and sleeping accommodations, it did not find that thc ZK unambiguously requires a Use Group 3 classifkition where a non-profit institution provides sleeping accommodations. As BSA concluded here, the Youth Hostel Case does not establish that a facility with social services prograins that have a clear nexus to the sleeping accommodations could not be a use Group 5 Transient Hotel. In the instant Resolution, BSA s carefully worded determination, states that it is reasonable to conclude that IJse Group 6 Professional Offices or Ambulatory Diagnostic and Treatment Care Facility. , . inay be able to exist in the Building with sleeping accommodations and not ncccssitate a change in use classification from USC Group 5 to Usc Group 3. RSA explicitly limited its conclusion to the facts of BRC s Building and its prograins for occupancy that it submitted to DOB. The Resolution shows that DOB considered BRC s amended plans indicating that separate entranccs and separate elcvators serve thc slccping accommodations and professional olfices where the medical and social service programs will be located, and that the residential and non-residential portions of the Building will be separated by fire-rated walls 20 [* 22] equipped with alarmcd, fireproofed and self-closing doors. DOB s submissions to BSA further show that DOB considered BRC s representations that the residential and non-residential programs will not only be physically separated, but that they will be operated independently of onc another and that while the social service programs are available to BRC s residential clients, such clients are not requircd to participate in thc programs as a condition of shelter, and that these programs are open to the general public. Although the primary purpose of the residential portion of the Building designated as Use Group 5 is the provision of sleeping accommodations, as one of BRC s stated purposes is to transition honicless clients, inany with mental health and substance abuse problems, into permancnt housing, it cannot be said that there is no relationship between the sleeping accommodations and the social service programs dcsigned to implement such transition.R However, an analysis of thc naturc and character of the programs in relation to the sleeping accommodations shows that this relationship is defined and circumscribed by the configuration of the Building, and the operation of the programs independent of, and distinct from, the provision of slecping accommodations. Specifically, the programs arc scparately operated with separate operating budgets, and operate under separate contracts with various agencics, and are scparately licensed. Furthermore, thc naturc of thc rclationship is circumscribed by the separation of the residcntial and non-residential portions of the Building, thc separate entrances and elevators, the fircwall, the lack o l a requirement that residential clients participate in the programs, and the fact that the social service programs are open to thc general public. Based on the nature of the This is also apparcnt with respect to the operation of the C1)CC which provides medical supervision and monitoring of its clients. 21 [* 23] relationship, and as thc Youth 1 Iostel Case did not establish that a facility with a nexus between social service programs and accommodations must bc a IJse Group 3 community I acility, the court finds that thc uses in the residential and non-residential portions of thc Building are not fundamentally integrated so as to warrant a dctermination that BSA s conclusions lacked a rational basis. For these reasons, BSA s Resolution is not inconsistent with the Youth Hostel Case, and this is not an instance of RSA failing to adhere[] to its own prior precedent. Lvublinskiv, 65 AD3d at 1239. Nor is BSA s Use Group 5 classification arbitrary and capricious, based on BSA s prior classification as Use Group 3 of similar facilities and shelters, which CFC asserts offered accommodations and programs 01 the same type as thosc to be offered at the proposed facility. As respondents point to resolutions where BSA classiiied shelters, including BRC s Reception Center at 324 Lafayettc Strcct, as IJse Group 5 , precedent supports both classifications. Citing the preamble of various Use Group sections in the ZR, CFC argues that the Use Group 3 designation controls because it is more restrictive than the Use Group 5 designation. CFC points to thc preamble of ZR 0 42-00 which provides that, [wlhenever a #use# is specifically listed in a IJse Group and also could be coiistrucd to be incorporated within a morc inclusive #use# listing, either in the same or another Use Group, the more specific listing shall control. CFC also cites the preamble to ZR $ 1 1-22: Whenever any provision of this Resolution and any other provisions of law, whether set I orth in this Resolution or in any other law, ordinancc or resolution of any kind, impose overlapping or 9 Respondents also submit the transcript froin the hcaring bcfore BSA on March 1,201 1, where DOB cited 1921 Jerome Avenue in the Bronx and 3 17 Bowery as instances of homeless shelters designated as IJse Group 5 transient hotels. 22 [* 24] contradictory regulations over the #usc# of land, or over the #use# or #bulk# o l #buildings or other structures#, or contain any restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards or rcquircmcnts shall govcrn. BSA rationally concluded that thc prcamblcs do not apply to thc qucstion of how to classify a use such as a shelter which is not listed in the ZR. Transient hotel is explicitly defined in ZR (j I 2-1 0, while a homeless shelter is not, and thus, this not a case of ovcrlapping or contradictory provisions. In any event, BSA s statement that it was not persuaded that Use Group 3 could not be objectively determined as more or less restrictive than Use Group 5 , is supported by its referencc to tlic Youth Hostel Case, where a Use Group 5 transient hotel was deemed more restrictive than a USC Group 3 community facility, as the hotel was not permitted in the zoning district at issue. Moreover, the record indicates BRC argued that a Use Group 5 designation may be more restrictive since it is permitted in commercial and manufacturing zoning districts, while a Use Group 3 facility is perniitted in residential districts. CFC also argues that under the ZR, thc Building cannot not be classified under both Use Group 3 and [Jse Group 5. Specifically, CFC argues that dual classification undermines the purposes of the %K, and renders the use groups superfluous and meaningless. Significantly, BSA did not find that the Building could bc classified as either Use Group 3 or 5 , but rather, expressly limited its dcterinination lo whether DOB appropriately approvcd thc proposed facility as a Use Group 5 transicnt hotel, thereby undermining CFC s assertion. Additionally, BSA expressly stated that it does not address the question of whether all homeless shelters and social service programs function identically and should be classificd as such 23 . , . and that other similar facilities [* 25] may operate differently in terms of length of stay or the relationship between programming and sleeping accommodations and may bc appropriatcly classified in a different group. That BSA appropriately considered only the issue as to the Building s Use Group 5 classification is rellected in DOB s procedures. As DOB stated at the March 1, 201 1 hearing, I tlhe applicant comes to [DOB] with a proposed use, and DOR rcvicws thc applicant s plans and information to dctcrminc whether the applicant s proposed use conforms with its proposed use group. Thus, the issue is not whether the Building is most specifically and accurately captured in thc ZR s IUSC Group] 3 ... dcsignation, as is argued by C K , but rather, whether BSA rationally concluded that DOH S IJse Group 5 designation, as proposed by BRC, was proper. Moreover, BSA properly relied on 1 117 Misc.2d at 256, to support its conclusion that it need only consider IJse Group 5 . BSA cited Manton for the proposition that any use which properly falls within a use group listing is permitted in a zoning district where such use is permitted as a matter of right and neither IIOB nor the Board has discretionary authority to refuse permission. Therefore, it was not irrational for BSA to conclude that it need not consider whether the Building could also be classified as a IJse Group 3 community facility. Nor was it irrational for BSA to conclude that CFC s reliance upon cases interpreting the appropriateness of Use Group 3 classification of similar uses was misplaced. CFC argues in the alternative that the Building should be classilied as a Use Group 3 health-related facility under ZR lj 2213(A). Rascd on this court s coiiclusion that BSA was not required to consider whethcr thc Building could be classified under a Use Group other than Use Group 5 , the court need not coiisidcr this argument. However, even if that argument were considered, it is without merit. %R 5 22-1 3(A) includcs, among community facilities, 24 [* 26] health-related facilities as defined in Section 10 NYCRR 700.2(a) of the New York State Hospital Code. Section 700.2(a)(4), in turn, defines health-relatcd facility as: a facility, institution, intermediate care facility, or a separatc or distinct part thereol, providing therein lodging, board and social and physical carc, including but not limitcd to the recording of health information, dietary supervision and supervised hygienic services incident to such carc to six or more residcnts not related to thc operator by marriage or by blood within the third degree of consanguinity. IJnder section 700.2(~)(9), health-rclated facility resident is a person who, bccause of social, a physical, developmental or mental condition, requires institutional care and services above the level ofroom and board in ordcr to sccure basic serviccs necessary to function, but who does not require the inpatient care and services provided by a hospital or skilled nursing facility. CFC s argument, and evidence related thereto, was beforc BSA in the underlying procecding. The rccord does not establish that BRC s clients require institutional care to secure basic services neccssary to function. Indeed, CFC concedes that residcnts of health-related ~acilitics typically stay in the facilitics for extended periods of time, which is at odds with thc transient nature of the instant accommodations. Thus, thc provisions of ZR (j 22-13(A) relating to a health-related facility are not applicable. Bascd upon the foregoing, the Court finds that CFC has failed to cstablish a meritorious basis for vacating BSA s resolution. 1 1 ULURP REVIEW 1. Under City Charter 5 1974, ULURP review is required where the City action falls within one of the categories specified in thc section. & Ferrer v. Dinkins, 18 AD2d 89 (1 Dept 1996). CFC argues that IJI.UW review is required undcr three separate categories: 1 ) section 197-c 25 [* 27] (a)(4) as a special permit within thc City Planning Commission s jurisdiction under the ZR; 2) section 197-c (a)( 11) as an acquisition by the City of real property pursuant to lease; and 3) section 5 197-c (a)@)as a housing and urban renewal plan pursuant to city, state and federal housing law. As to the first category, CFC argues that the Building should have been designated Use Group 3 and, if were, a special permit would have been required, since Use Group 3 is not a pcrmitted usc as of right in tlic subject M1-6 zoning district, thereby subjecting it to IJLURP review. For the reasons discussed above, the Building was properly designated Usc Group 5 and Use Group 6 which are permitted as of right in the M1-6 zoning district, so there was no need for BRC to seek a special permit. Thcrcforc, Charter 15 197-c(a)(4) does not apply. Nor docs thc contract bctween BRC and DHS illustrate that BRC is a pass-through lcsscc, thcrcby triggering ULURP rcview under Charter 15 I97-c(a)( 1 1). Crucial to any determination that there is a lease is a ilnding that the City s occupancy of tlic land is the functional cquivalcnt of a landowncr s, lacking only the actual transfer of title. Ferrer, 21 8 AD2d at 93-94. [ l lhe pertinent focus of a review question is on the nature oi the land use, and whether or not the City s interests will so predominate the use ol the land, to the exclusion of the owner s, that thc cffcct on the community will be the same as if the City had taken title to the land. Id,at 94. The central distinguishing characteristic of a lease is the surrender of absolutc posscssion and control of property to anothcr party for an agrccd upoi~-rcnt. Mattcr of Davis v Ilinkins, 206 AD2d 365, 366 (2ndDept 1994) (citing Feder v Caliwira, 8 NY2d 400 [1960]). ln order for an agreement, oral or written, to be enforceable as a lease, all the essential terms must be agreed upon, including the area to be leased, the duration of the lease, and the price to be paid. 26 [* 28] at 366-67. lf any 01. thesc essential terms are missing and are not otherwise discernible by objective mcans, a lease has not been created. Id at 367. The City respondents rely on Matter of Plaza v City ofNew York, 305 AD2d 604 (2 ld Dept 2003), in which DHS entercd into an agreement with the Doe Fund, a not-for-profit entity, to renovate a vacate building, and operate a homeless shclter and transitional residence. The contract gave DHS approval authority over various aspccts of the renovation work, established minimum requirements for the shelter s operation, and made Dl IS the only referral sourcc for homeless clients. I hc Appellate Division held that the contract was not a lcase subject to ULURP rcview, reasoning that it was L mercIy agreement by which the Doe Fund will acquire, an renovate, and operate a transitional residencc for homeless men, and that thc contract did not constitute the surrcnder of absolute possession and control 01 property to another for an agreed-upon rent. at 605-606. To support its argument that the contract between DHS and BRC is an acquisition of property by lease, CFC points to various provisions in the contract, including the requirements that BRC operate thc shelter as part of the City s homeless service system in accordance with DHS policies and procedures, accept all homeless adults referred to it by DHS, operate at an average of 95% of shelter capacity, and permit access by a court-appointed monitoring agency. CFC also points to contract provisions compensating BRC for its services, including the payment of $7.2 million annually and up to $76.1 million over the entirc contract, and DHS s acknowlcdgrnent that as the lease provides for annual increases in rcnt over the leasc t c m , the operating budget include sufficient funds to cover such increases. 27 [* 29] CFC further asserts that the contract term is from Septembcr 1,2010 through June 30, 2021, with two fivc-ycar rcnewal terms at DHS s option; the contract may bc terminated only by DHS; the parties may aniend the contract in the event of a change in the needs of the City and the purposes for which the Shelter shall be used ; the contract requires BRC to consult with, and receive written approval from DHS be&ore making any structural changes; and DI IS must also approve changes to any major program component, changes to the levcl of paid or unpaid staff which may affect thc continuing ability of the program to operate efficiently, and thc selection of the Director of the Shelter, the Director of Social Services and the maintenance superintendcnt. CPC also relies on tlic lcasc between BRC and 127 West 25Ih M,C, and conditions related to funding by various New York City agencies, From this, CFC argues that DHS has complete control over the proposed frtcility at the Building. The court docs not agrcc. Rather, the court finds that the contract does not establish Dl-lS7s control ovcr the premises so as to constitute occupancy or control that is the functional equivalent of a landowner s. Ferrer, 2 18 AD2d at 94. Significantly, the lease is between BRC and 127 West 25 hLLC, and DHS is not a signatory on the lease, nor does it have any obligations under the lease. The lease term exceeds the length of thc contract and its renewals. BRC bears the risk under the lease for the rent, and the risks related to the renovations and interior construction. While DI IS must approve structural changes, approval cannot be equated with the right of a landowner to makc such changes. Moreover, under the contract, BKC, not DHS, operates and manages the shelter, and provides ancillary services rclated thereto. Indeed, the h t sentence under article 2 states that the purpose of the contract is for BRC to operate an emergency shelter for homcless adults. 28 [* 30] BRC is responsible lor the facility and its day-to-day opcrations, including supcrvising the shelter programs and residents, developing shelter rules and regulations for the residents, providing case management services and hcalth and drug counseling, admitting and discharging residents, handling cmcrgencies, feeding residents, keeping records, and cnsuring that the facility complics with all applicable laws. BRC is also responsible for the prevcntativc, daily, corrcctivc, intcrior, exterior, structural and cmergency maintenance of the Shelter. Notably, the contract provisions cited by CFC as cvidence of DHS s complete control arc identical to the provisions in the contract at issue in Matter of Plaza, which the Court found was neither a lease nor the functional cquivalent of a lease. Matter of-Plaza, 305 AD2d at 605. Here, as in Matter o l Plaza, DHS is not responsible for management and maintenance of the shelter, but rathcr, that responsibility at all times residcs with the BRC as the lessee. In short, the provisions cited by CFC definc the naturc and quality of the services BRC is required to providc, and do not implicate issues of I~IlS s occupancy of, or control over, the premiscs. Accordingly, DHS cannot be construed as a lcssee undcr section 197-c(a)( 1 1) of the Chartcr and, thcrefore, the proposed facility is not subject to ULURP review as an acquisition ofreal property by lease. Nor is the proposed f acility subject to UI,URP review on the grounds that the contract is a housing plan within the meaning olCharter (j 197-c(a)(8). Citing the five-year plan to rclicve homelessness codificd in Administrative Code (j 21 -308, CFC argues that all actions takcn and money spcnt by DHS in combating honiclcssness are pursuant to statutorily-required plans. CFC also relics on DHS Deputy Commissioner Nashak s statements that the contract with Bowery Residents is part olDHS s plan to meet projected needs, and that the proposed facility is necessary to meet the City s legal obligation to provide shelter to the honielcss. According to 29 [* 31] CFC, the facility was Fashioned in response to an open-ended request for proposals with costs reimbursed by DHS. CFC s argument that the contract for the shelter is part of a housing plan as intended by Charter tj 197-c(a)(8) is not supportcd by proof. Dcputy Cornmissioncr Nashak s statements rcflect policy rather than a specific plan. While the purpose of the contract is to provide sheltcr to the homeless and this purpose is consistent with the City s obligation to provide such shelter, absent proof that the contract is part of an actual housing and urban renewal plan, there is no reasonablc basis to find that ULURP review is required under section 197-c(aj(8jn See West 97IhWest 9SthSts. Block Assn. v Volunteers o f h . of Greater N.Y., 190 AD2d 303 (1 Dept 1993). IV. SHELTER SIZE LTMlTS CFC argucs that the proposed facility violates Administrative Code 5 21-3 12(2j(b), which states that [nlo shcltcr for adults shall be operated with a census of more than two hundred persons. Administrative Code 5 2 1-312( 1) defines LLcensus the actual number of persons as receiving shelter at a shclter for adults. CFC asserts that thc proposcd facility violates the statutory size limits on shelters, since it will shelter more than 200 rcsidents through a combination of programs all run by the same provider in the samc building, including 96 beds in the Reception Center, 32 detoxification beds in the CDCC, and 200 sliclter beds for homeless residents, for a total of 328 beds. Rcspondcnts counter that the only shelter for adults that will bc housed in the proposed facility is the 200-bed shelter, as the CDCC program is a chemical dependency detoxification facility and the Reception Center is an intakc program that does not receive clients from DHS. In the alternative, respondents argue that that the proposed facility complies with restrictions on shelter size, as it 30 [* 32] qualifies as a permissible exception under section 21 -3 15(a)(6) of the Administrative Code. First, as to the 32-bcds in the CDCC dctoxitication facility, although BRC refers to that facility as an inpatient unit with 32 beds, the primarily focus of that facility, as stated in BRC s Program Descriptions, is the provision of supportive medically monitorized detoxification serviccs. The court, therefore, concludes that the CIICC is not a shcltcr within the meaning of Administrative Code tj 21 -3 12(b), since the clients of that facility will reccive support for addiction, and not specifically shelter, thereby serving a mission distinct horn that of a shelter. Notably, the CDCC accepts both homeless and non-homeless persons. As to the 96-beds in the Reception Center, the court concludes that the clients of that Center will be receiving shelter for purposes of Section 21 -3 12(a)( 1). I he record establishcs that the primary purpose ol the Reception Center is to provide transient housing to homeless men and women, and that the Reception Center and thc 200-bed shelter are situated in same residential portion of the proposed facility which is contained in one building. The court rejects the arguments by BRC that the shelter and the Reception Center are to be considered separate for size limitation purposcs. BRC s argument would render the size limits of the Adininistrativc Code meaninglcss, in violation of. basic principles of statutory construction. See Kocovich v. Consolidated Edision Co., 78 NY2d 509 (1991); Canal Carting- Inc. v. City ofNew York Business Intemity Commission, 66 AD3d 609 ( lStDept 2009), lv app den 14 NY3d 710 (2010). Moreover, this conclusion is consistent with the lcgislative history of section 21-3 12(a)(I), which City respondents additionally argue that size limitation imposed by the Administrative Code is prc-empted by State law. As previously noted, the City Council s motion to intervene was granted on consent limited to the issue of precrnption. However, because the proposed facility falls under thc Camp 1,aGuardia Exception, the court need not consider the preemption issues raised by City respondents. 31 [* 33] shows that the size limitation was enacted to ensure the health and safety of shelter residcnts and to minimize the impact on thc community. For these reasons, the 96 bcds in the Reception Center shall bc combincd with the 200 shelter beds lor a total of296 beds, which exceeds the 200bed statutory limit. Notwithstanding this conclusion, thc court finds that thc proposed facility is permitted under Administrative Code 5 2 1-315(a)(6), which creates an exception to the 200-bed limit for a grandfathered shelter, defined as a shelter for adults that operates with a pcrrnitted census in cxccss of two hundrcd pcrsons pursuant to subdivision b of section 2 1-3 12 of this code. A grandfathered shelter that is closed may be replaced pursuant to several specificd provisions, including section 21-3 15(a)(6), which states that the Camp LaGuardia Shelter operating with a census of one thousand seventeen persons . . . may be replaced with two shelters cach with a maximum census of four hundred persons ( Camp LaCiuardia Exception ). In reaching this conclusion, the court rejccts tlic arguments of the City Council that the proposed facility does not qualify under the Camp LaGuardia exception, as the Camp LaGuardia shelter closed four years ago and there is no immediate need to shelter large number of homeless, and the exception violates the spirit of the law. The court relies on the legislative history submitted by CFC as exhibit 75 (testimony of Mary Brosnahan, Executive Director of the Coalition for the Homeless, before the City Council s Committee on General Welhre, March 22, 1999); exhibit 76 (testimony of Steven Banks of the Legal Aid Society s Homeless Rights Project, before the City Council s Committce on General Welfare, October 30, 1998); exhibit 77 (testimony of Manhattan Borough President C. Virginia Fields, belore the City Council s Committec on Gcncral Welfare, October 30, 1998), and exhibit 78 (letter from New York State Assembly to City Council Spcakcr Pctcr Vallonc, dated Octobcr 6, 1998). 32 [* 34] While CFC argues that DI IS may not unilaterally invoke the Camp LaGuardia Exception without the City Council s approval, CFC cites no legal authority to support its argument. The City Council, in turn, argucs that the City respondents fail to even assert that Camp LaGuardia has not alrcady bcen replaced, and that at a minimum they must affirm that the City has not opened two other shelters exceeding 200 bcds. When the court heard arguments on July 22, 201 1, the City respondents represented that there is no procedure and no process . . , that the city needs to take to invoke the [Camp LaGuardia] exception, if that were to become necessary. The City rcspondcnts also represented that they are certain that the exception of Camp LaGuardia has not been invoked, and that they can provide more facts if. necessary. Indccd, thcy subsequently provided additional factual support, by submitting an affidavit from Dl IS Dcputy Commissioner Nashak dated August 19, 201 1. That affidavit, which was submitted in opposition to thc City Council s motion to intervene, conlirms that DHS has not previously invoked an exception to the 200-bed limit on shelter capacity undcr Administrative Code tj 21 -3 15(a)(6). I hus, since no basis exists for concluding that thc City respondcnts arc not acting in good faith in invoking the statutory authority of thc Camp LaCiuardia Exccption, thcy are cntitlcd to invokc that exception. Contrary to CFC s argumcnt, thc invocation of thc Camp LaGuardia Exccption does not automatically sub.jcct thc proposcd facility to mandatory U L U R P rcvicw pursuant to Administrativc Codc (j 21 -3 15(b). Scction 21 -3 15(b) states that [elach new shelter which replaces a shelter listed in subdivision a of this section shall comply with applicable statutes, laws, rules and regulations, including, but not limited to section 197-c of the New York city charter, which, as discussed above, refers to ULURP (emphasis added). By its clear and express 33 [* 35] terms, section 21-3 15(b) simply requires ULURP review if U L U W is "applicable," and, as this court has determined above, LI1,URP is not applicable to the proposed facility. 'I Eased upon the forcgoing, pctitioner has hiled to make a sufficient showing so as to be entitled to Article 78 relief, and the amended petition is dcnied and dismissed. Accordingly, it is ORDERED AND ADJUDGED that the amcnded petition is denicd and the proc ceding is dismissed. Dated: October ff ,201 1 ENTER: A /J. S. C. "CFC additionally objects that DHS did not registered its contracts with the Comptroller. In response tu this objection, City respondents assert that the contract was rcgistered with the Comptroller on May 6,201 1, and provide supporting documentary proof, which CFC does not controvert. Hence, the court kinds that the registration requirement has been satisfied. As to the Reception Center contract, City respondents submit that DHS is in the process of amending that contract and only after the amended contract is registered with the Comptroller, will DHS permit BRC to open the Reception Center. 34

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