Matter of Brooklyn Hgts. Assn. Inc. v New York State Urban Dev. Corp.Annotate this Case
Decided on February 15, 2018
Supreme Court, New York County
In the Matter of the Application of Brooklyn Heights Association, Inc., Petitioner, For a Judgment Pursuant to Article 78 and 3001 of the Civil Practice Law and Rules,
New York State Urban Development Corporation d/b/a Empire State Development, Brooklyn Bridge Park Development Corporation, and Brooklyn Bridge Park Corporation d/b/a Brooklyn Bridge Park, Respondents, and RAL Development Services LLC, Oliver's Real Estate Group LLC d/b/a Oliver's Realty Group, Landing A Associates LLC, and Landing B Associates LLC, Interested Party-Respondents.
Richard F. Ziegler & Matthew J. Wilkins
Jenner & Block, LLP
919 Third Avenue, NY, NY 10022
David Paget & Jonathan Kalmuss-Katz
Sive, Paget & Riesel, P.C.
560 Lexington Avenue, NY, NY 10022
for Respondents New York State Urban Development Corporation d/b/a Empire State Development and Brooklyn Bridge Park Development Corporation
New York City Law Department/Office of the Corporation Counsel
100 Church St., NY, NY 10007
For Respondent Brooklyn Bridge Park Corporation Simon Wynn
Empire State Development (in house counsel)
633 Third Ave, NY, NY 10017
For Respondent Empire State Development
Richard G. Leland & Jamie Shyman
666 Fifth Ave, 20th Floor, NY, NY 10103
For Interested Party Respondents
Carmen Victoria St. George, J.
In this Article 78 proceeding, petitioner Brooklyn Heights Association, Inc. (BHA) challenges the June 7, 2016 determination of respondent Brooklyn Bridge Park Corporation (BBPC) which authorized a private commercial real estate development at Pier 6 of Brooklyn Bridge Park (the Park). The other respondents are New York State Urban Development Corporation, doing business as Empire State Development (ESD), and Brooklyn Bridge Park Development Corporation (BBPDC), which is a subsidiary of ESD. The interested party-respondents are RAL Development Services, LLC (RAL), Oliver's Real Estate Group LLC doing business as Oliver's Realty Group (Oliver's), Landing A Associates LLC, and Landing B Associates LLC (collectively, the Developers). RAL and Oliver's won the contract to develop the site, and all party-respondents are involved in its construction.
BHA argues that respondents 1) bypassed legal restrictions, 2) ignored their own procedural guidelines, 3) based their decision on misinformation which BBPC management provided, 4) improperly failed to prepare a supplemental Environmental Impact Statement (SEIS), which would have reassessed the financial need for such tall buildings to sustain the Park and the impact on the overcrowded elementary schools in the community, along with other changed circumstances, 5) ignored a critical mandate to approve development only to the extent needed to support the park, 6) did not obtain the requisite modification to the General Project Plan (GPP), including the addition of permission to construct affordable housing and the addition of three floors of mechanicals on the building on Parcel B, and 7) did not provide the Brooklyn Bridge Park Community Advisory Council (Community Advisory Council) with all the documents and other information it requested. BHA alleges that respondents acted in violation of the law and rendered an arbitrary and capricious decision. As a result, it seeks an annulment of the June 7, 2016 decision, and an order directing ESD to require BBPC to comply with the portion of the GPP which only allows development to the extent necessary. In addition, petitioner seeks damages including attorney's fees under CPLR § 7806 and CPLR § 8601(a).
For the reasons set forth herein, this Court denies this Article 78 petition and dismisses the proceedings.
Background and Critical Documents
I. Creation of the Park.
Brooklyn Bridge Park sits on 85 acres along 1.3 miles along the East River waterfront and was built on abandoned, deteriorated docklands which belonged to the Port Authority of New York City (Port Authority). Initially, Port Authority announced its intention to sell the piers to commercial developers, but there was strong community commitment to the redevelopment of [*2]this area in such a way as to maximize its public benefit and enjoyment, and this suggestion garnered government support. In 1992, the Downtown Brooklyn Waterfront Local Development Corporation (Local Development Corporation)[FN1] issued "13 Guiding Principles" (Guiding Principles) relating to this proposed redevelopment. As is relevant here, guiding principle (1) (b) states that "a public entity which holds title to the site" would implement the plan. Guiding Principal 2 provides that professional groups and business, labor, civic and education leaders should be involved in discussions about the development. Guiding Principle 8 (b), upon which petitioner BHA relies heavily, states that "[t]he site shall have only so much commercial development in a park-like setting as is necessary to enliven the area, to provide security and to finance ongoing operations." Subsection (c) adds that all resulting revenues "shall be committed to the operation and maintenance of dedicated park and open space and contribute to capital development costs."
As Guiding Principle 8 suggests, a critical aspect of the Park's development has been the requirement that it, rather than the State or the City, provide the funding for the Park's development and maintenance. On May 2, 2002, Governor George Pataki and New York City Mayor Michael Bloomberg signed a Memorandum of Understanding (the MOU) which envisioned the Park as financially self-sufficient. The MOU specified that a minimum of 80% of the Park area would be developed as open space parkland and governed by the State and City laws for park properties. The MOU also created BBPDC as a subsidiary of ESD, and charged it "with developing a general project plan (GPP)." It acknowledged that the project triggered the need for an environmental study under the State Environmental Quality Review Act (SEQRA) (codified at Environmental Conservation Law [ECL] §§ 8-0101 — 8-0117), and that ESD, as the lead agency, would preside over the review (See ECL § 8-0111 ). It articulated the desire for "extensive public input," including "consultation with an advisory board or local community groups," and noted that there would be a public review process as specified in the Urban Development Corporation Act.
On July 26, 2005, BBPDC produced its draft GPP. ESD and BBPDC approved a modified version of the plan on January 18, 2006. The GPP stressed the need for public recreational open spaces in Brooklyn and for "educational, cultural, recreational, community, municipal, public service or other civic facilities." The GPP stated that its goal was "to maximize parkland while creating an appropriate income stream for park maintenance" and it stressed that although the MOU allowed for up to 20% of the acreage to be developed for income-generating purposes, only 10% of the acreage would be used to generate income. It noted that the developers would make upfront and recurring payments to BBPDC rather than pay this money in taxes. The document reiterated that ESD would serve as the lead agency.
The development at issue here is at Pier 6. Atlantic Avenue, which leads to Pier 6, serves as "the southern gateway to the park." There are two lots, Parcels A and B, reserved for development. The GPP sets forth two options for the buildings on these parcels. The option that BBPC ultimately adopted reads as follows:One building would be approximately 315 feet in height and have up to 290 units; the other building would be approximately 155 feet in height and could contain up to 140 [*3]units. This building could possibly include a ground floor retail use.
As Justice Lawrence S. Knipel noted in Save the View Now v Brooklyn Bridge Park Corp. (2015 NY Slip Op 31047 [U] [Sup Ct, Kings County 2015], *5, aff'd, 156 AD3d 928 [2nd Dept 2017]), the GPP "is completely silent . . . as to how the height is to be measured." The decision noted the respondents' widely disseminated position that the mechanicals and other rooftop equipment were not included in the building measurement, and stated that the Brooklyn Bridge Park Community Advisory Council "appear[s] to have accepted rooftop mechanicals, but took the position that they should be as inconspicuous as possible" (Id. at 6-7 [internal quotation marks omitted]).[FN2]
There have been several modifications to the GPP. One such modification created respondent the Brooklyn Bridge Park Corporation (BBPC) and gave it broad-based powers regarding the governance of the Park, including the power to sign ground leases and sub-leases for both Park parcels and development parcels. Further, BBPDC transferred title of any properties it owned to BBPC. The modification added that "BBPDC will assign or transfer to BBPC, or enter such other agreements with BBPC as necessary, to ensure that all. . . agreements currently in effect. . . continue in effect and all funds currently held by or for BBPDC are controlled by BBPC." In addition, the modification noted that ESD, on behalf of its subsidiary BBPDC, already had served as lead agency for the environmental review and had adopted the Final Environmental Impact Statement (FEIS). The board of BBPC also created the Brooklyn Bridge Park Community Advisory Council, which serves as a liaison between the community and BBPC.
II. SEQRA and Subsequent Litigation.
The State laws that govern a SEQRA review are codified in the Environmental Conservation Law (ECL) §§ 8-0101 — 8-0117. Under SEQRA, "[a]ny construction project that requires state agency approval . . . 'which may have a significant effect on the environment,' must go through a full SEQRA assessment to make sure that it is undertaken in a way that minimizes damage to the environment and public health" (Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, 30 NY3d 416, __  [P.S. 163] [quoting ECL 8-0109 § (1)]). New York City agencies must comply with the City Environmental Quality Review (CEQR) laws (Rules of the City of New York §§ 5-01—5-11, 6-01—6-15). The City published a City Environmental Quality Review Technical Manual (technical manual), which provides guidelines for the environmental analysis (See Chinese Staff and Workers Association v Burden, 88 AD3d 425, 429-30 [1st Dept 2011] [Technical Manual contains the "accepted methodology"], aff'd, 19 NY3d 922 ).
It is not disputed that the Brooklyn Bridge Park project was an action which required an environmental review. ESD prepared a Draft Environmental Impact Statement, and, following public comment, issued an FEIS.[FN3] Among other things, the environmental review addressed the proposed development at Pier 6. Chapter 4 includes a discussion of elementary schools. When the FEIS was prepared, the most recent enrollment and capacity figures were for the 2003-2004 school year. The FEIS noted that the elementary schools in the school district at issue here [*4]operated at 68% capacity. Without the project, the FEIS estimated that elementary school capacity would be at 67% by 2012. With the project, the estimate was 75% capacity for the district. Chapter 20 of the FEIS discusses alternatives to the development, and the impact of each on the various areas an EIS must review. It evaluated the impact of a no-action alternative; a reduced-density alternative; the modified design alternative; and, in response to community concerns, a modified Pier 6 residential building design alternatives which retained the square footage but changed or redistributed the height of the buildings. It also considered whether any design would eliminate the adverse impact on historic resources, traffic, and noise, and concluded that no feasible park design would achieve this goal. Chapter 24 includes the responses to 446 comments that were made concerning the Draft EIS. BHA points to the repeated assurances by respondents that if "less development is needed to support the park's maintenance and operations, then less development will be incorporated into the final park plan" (Chapter 24, Response to Comment 79; accord, Response to Comment 80; Response to Comment 116; and Response to Comment 117).
The FEIS findings statement summarizes the conclusions reached in each prong of the analysis. It indicates that BBPDC would develop the designated parcels at Pier 6 in accordance with one of the two options provided in the GPP. It states that "a relatively small portion of the park would contain revenue generating development" (Findings Statement, II [B], at p. 6). It states that the project's goal is "to create the smallest program that could prudently support the annual maintenance and operations of the park" (Id. III., at p. 14). Regarding 360 Furman Street, which is located between Piers 5 and 6, it states, as is relevant here, that "[u]p to two stories could be added to the building's main roof, increasing the main roof height from 146 to 169 feet (230 feet to the mechanicals)" (Id.). The findings statement notes that although the footprint and height of the proposed structures might vary somewhat, they could not be developed beyond the specified limitations without further environmental review. It concludes that SEQRA's requirements were satisfied by the review, that the proposed action minimizes or avoids adverse environmental impacts to the extent practicable, and that mitigative measures would be implemented to achieve this minimization or avoidance of adverse impacts.
An Article 78 proceeding ensued in Kings County which challenged the approval of the Brooklyn Bridge Park project. The court rejected the petitioners' challenges to the FEIS (Brooklyn Bridge Park Legal Defense Fund, Inc. v New York State Urban Development Corp., 14 Misc 3d 515, 525-27 [Sup. Ct. Kings County 2006] [Legal Defense Fund], aff'd, 50 AD3d 1029 [2nd Dept], lv denied, 10 NY3d 714 )). The court found that the respondents took "a hard look at the anticipated environmental impacts of the proposed project in the FEIS, which fully analyzed, among other things, . . . consideration of community facilities, neighborhood character, . . . and . . . alternatives" (Id. at 525). The court concluded that "[u]nderlying all of petitioners' arguments is a fundamental disagreement with respondents' determination to make the Brooklyn Bridge Park Project self-sustaining" and that their position reflected "a disagreement of philosophy, not law" (Id. at 527). The Second Department affirmed the trial court's decision (Brooklyn Bridge Park Legal Defense Fund, Inc. v State Urban Development Corp., 50 AD3d 1029 [2nd Dept], lv denied, 10 NY3d 714 ). After the Legal Defense Fund litigation and appeal, development of the Park commenced. Pier 6 contains the last two developmental parcels.
III. The RFP and Selection Process.
On May 13, 2014, BBPC released its Request for Proposals (RFP). The RFP indicated [*5]that on Parcel A, a developer could build a cooperative or condominium with up to 290 residential units and a maximum height of 315 feet; and on Parcel B, a building which contains up to 140 residential units and has a maximum height of 155 feet was permissible. In addition, the RFP stated that all proposals had to include plans for 130,000 gross square feet of "affordable housing," moderate-to-middle income housing for households with incomes between 80% and 165% of the average median income for the area. BBPC stated that it would not consider proposals that did not comply with the GPP, although it would consider variances from the GPP. It also indicated that ESD remained the lead agency and would study the accepted proposal to confirm that it was compliant with SEQRA. Among other things, the RFP required that applicants as well as their principal officers, owners, and senior managers file a Doing Business with the City data form. It stated that proposals would not be considered until this form was filed. Fourteen applicants, including RAL, submitted proposals for the development (Aff. of BBPC President Regina Myer, ¶ 35). The parties agree that RAL filed a Doing Business Data form at that time but that its partner, Oliver's, did not. BBPC selected RAL as the developer for the two buildings on March 18, 2015, contingent on approval by BBPC's board. There was no public announcement at the time.
While this was ongoing, various community groups commenced an Article 78 proceeding which challenged the RFP (People for Green Space Foundation, Inc. v New York State Urban Development Corporation, Index No. 10480/2014 [Sup Ct Kings County] [Green Space]).[FN4] The petition argued that due to the numerous changes in the neighborhood since the issuance of the FEIS, a supplemental EIS (SEIS) was necessary. The petition also sought an annulment of the RFP due to the addition of the affordable housing units and stated that a modification of the GPP was necessary to allow for affordable housing and clarify that the maximum height limits included the mechanicals and other structures on the roof. The parties signed a stipulation of settlement around May 27, 2015. The stipulation stated that BBPC would ask ESD and BBPDC to consider modifications to the GPP enabling BBPC to consider the inclusion of affordable housing units and making the height limits include mechanicals and other structures on the roof. The stipulation did not require the preparation of an SEIS. On June 30, 2015, after BBPC acquired board approval, it publicly announced the contract award. In addition, ESD and BBPDC issued an announcement for a July 30, 2015 public hearing concerning the proposed modification.
IV. Technical Memorandum and Updated Memorandum.
Under SEQRA, a lead agency has the discretion to determine whether changes in the scope of the project, new information, or a change in the underlying circumstances necessitate the issuance of an SEIS (Riverkeeper, Inc. v Planning Board of Town of Southeast, 9 NY3d 219, 231  [citing 6 NYCRR § 617.9]). Notwithstanding this discretion, the agency must first review "the environmental issues . . . and must make an independent judgment that they would not create significant environmental impact" (Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Board, 153 AD3d 823, 828 [2nd Dept 2017] [citations and internal quotation marks omitted]). Moreover, if specified changes occur which will have a significant adverse environmental impact, the agency must determine whether a supplemental EIS (SEIS) is needed. The agency reaches this decision in reliance on a technical memorandum which assesses the impact of the changes. Here, respondents' consultant, AKRF, Incorporated (the consultant), [*6]prepared a technical memorandum in 2014 which concluded an SEIS was not warranted (See Coalition Against Lincoln West, Inc. v Weinshall, 21 AD3d 315 [1st Dept 2005] [discussing the technical memorandum in that case]). The memorandum noted that elementary schools in 2014 operated at 98.14% capacity. It projected that in the sub-district, enrollment would grow from 3,279 students to 4,697 students, at a capacity of 140.59%, and that the development project would increase this number by around 3.74%. As the CEQR Technical Manual methodology states that a change must be greater than 5% to create a significant adverse impact, the memorandum concluded that this increase in population did not warrant an SEIS.
In June 2015, the consultant provided an update to the 2014 memorandum. The update considered, among other things, the addition of affordable housing units. It also considered the proposed modification to the GPP, which, as is relevant here, would have made the maximum building heights of 315 feet and 155 feet include the mechanicals and other rooftop structures. It concluded that these changes did not warrant the issuance of an SEIS as they were not sufficient to alter the prior analyses.
In a June 6, 2016 letter to Regina Myer, president of BBPC, concluded that a modification to the plan was unnecessary. It stated that because residential buildings were permitted and there was no prohibition against the inclusion of affordable housing units in these buildings, their inclusion was not violative of the GPP. The letter further noted that ESD and BBPDC had transferred their entire interest in and control of the project at Pier 6 to BBPC. An updated technical memorandum was generated the same day to reflect this determination. It noted that"[a]lthough not required by the existing GPP, the Pier 6 Project reviewed in the Technical Memorandum specified that the heights of both buildings would be inclusive of permanent structures and equipment. This change effectively lowered the heights of each of the buildings by three floors . . . . The revision to the Pier 6 Project would. . . add back three floors to the Parcel B building, resulting in a height of approximately 155 feet, exclusive of permanent structures and equipment . . . . (Technical Memorandum Update dated June 6, 2016, at 2)."
The update noted that although the height of the Parcel B building had increased, the number of residential units in the two buildings had been reduced from 430 to 300. It noted that the completion year had changed from 2018 to 2019. It also evaluated changed circumstances, such as new data on school population and the addition of 383 elementary school seats. This increase in enrollment would result in an increased enrollment of 2.5%, from 135.01% to 137.51%. As this improved on the earlier utilization rate, the update concludes that the change did not necessitate an SEIS. It reached the same conclusion regarding the overall impact of the modifications to the project. The decision not to conduct a further environmental review was met with opposition by numerous elected officials and community groups, including the Brooklyn Bridge Park Community Advisory Council. This and other community concerns are evident in letters to respondents from the Advisory Council and from BHA, among others, discussing their problems with the project and their proposed solutions, as well as in Chapter 24 of the FEIS, which includes comments and responses to the draft EIS.
On June 7, 2016, the BBPC's board of directors met to vote on the development project for Pier 6. The board members relied on materials which BBPC management provided to them, including a financial model update and the report on the Park's financial model by its outside consultant, Barbara Denham (the Denham Report). The Denham report evaluated the ongoing [*7]costs and additional maintenance projects, and considered the revenue Brooklyn Bridge Park already generated through the other development parcels and concessions from vendors. Denham noted that rather than fortifying the pilings which support the piers on an as-needed basis, BBPC had opted to use a "preventative maintenance approach," using "epoxy as a sealant to prevent shipworms from eating into the wood" and cutting off oxygen to any existing worms (Denham Report, at *6).[FN5] This choice would necessitate an immediate influx of funds. In estimating the value of the new apartments, the report used the Department of Finance system of comparing the building to comparable rental buildings. The report determined that without the Pier 6 project, BBPC "will run a negative cash balance" (Id. at 20), and that this deficit would occur regardless of whether BBPC implemented the preventative maintenance plan.
On June 7, 2016, the BBPC Board voted to authorize the project. On July 7, 2016, BHA commenced this proceeding.[FN6] The government respondents answer the petition separately, essentially admitting some of the factual allegations but presenting objections to certain parts of the petition's characterizations, and denying any procedural wrongdoing or legal culpability. Collectively, they submit a memorandum of law which stresses the extremely deferential standard of review which applies to Article 78 proceedings. They also respond to the allegations against them. Only the fourth cause of action, which relates to RAL's purported failure to register on the Doing Business with the City database, involves the interested party-respondents (RAL). Therefore, RAL's argument is limited to this issue.
The Article 78 Petition
I. Challenges under Urban Development Corporation Act and the GPP
Under the New York State Urban Development Corporation Act §§ 6251 et. seq. (McKinney's Uncons Laws of NY T. 16, ch 24, subch 1 [Urban Development Corporation Act (UDCA) § 16, as added by L. 1968, ch 174, § 1, as amended]), before a project begins, the New York State Urban Development Corporation (see UDCA § 6254 ) must file a GPP (Id. at § 6366 ). Changes to the plan require a modification to the GPP. As the development of Brooklyn Bridge Park is a civic project within the meaning of the Act (Id. at § 6253 ), the requirements set forth in the Act and the requisite GPP are binding upon respondents. Citing Frick v Bahou (56 NY2d 777, 778 ) and Guitierrez v Rhea, 105 AD3d 481, 485 [1st Dept 2013]), BHA states respondents' violations of their own rules and their decision to proceed without modifying the GPP mandate annulment of the June 7, 2016 decision.
A. There is Insufficient Financial Need to Support the Pier 6 Development Project.
The petition asserts that the GPP for Brooklyn Bridge Park is subject to the Guiding Principles, including that "[t]he site shall have only so much commercial development in a park-like setting as is necessary to enliven the area, to provide security and to finance ongoing operations." BHA states the buildings at Parcel A and Parcel B are not financially necessary — certainly not to the extent claimed by respondents. BHA argues that a modification to the GPP is required if respondents are to consider other factors. As such modification was not obtained, BHA states, [*8]the approval of the project must be nullified.
In support, BHA points to the mercurial rise in the real estate values in Brooklyn Heights. Petitioner alleges that the Park's revenue [FN7] has increased proportionately. BHA argues that because of the changed financial circumstances in the neighborhood over the past ten years, the developers of the earlier Park projects have enjoyed a "financial bonanza" (Petition ¶ 86), and it is "highly likely" (Id. ¶ 91) that BBPC collects higher-than-anticipated ground rent from the existing developers. It alleges that the development at Pier 1 grossly exceeds its previously anticipated size and thus will bring in additional revenue. It states that the inclusion of affordable housing units — which, BHA alleges, take up around 25% of the square footage of the buildings — amounts to a concession that respondents do not need to construct buildings of the height and size of those projected for Parcels A and B. As such, BHA states, the development as conceived does not comply with the mandate in Guiding Principle 8.
BHA further argues that BBPC underestimated its financial resources because it misapplied the Department of Finance's analytical model. In assessing the value of cooperative and condominium buildings, the Department of Finance compares the building not to comparable condominiums or cooperatives but to comparable rental buildings. It states that due to BBPC's flawed calculations, its average valuation of the rental buildings of $134 per square foot, is far below the Department's valuation, $185.80 per square foot.[FN8] It points to The Real Deal and Street Easy to bolster its position that the financial projections and resulting analysis was deeply flawed.
For further support, BHA relies on a report that financial consultant Rosin & Associates prepared for People For Green Space Foundation Inc. in connection with the Green Space lawsuit (the Rosin report). The Rosin report states that BBPC has underestimated the revenues its various development parcels will generate by 66%. BHA states that BBPC relies on the report of Barbara Byrne Denham (the Denham report), which improperly utilizes a macro-economic analysis and disregards current financial real estate valuations. It states that the Denham report employs "a known artifact of [the Department of Finance's] valuation process" (Petitioner's Mem. of Law, p. 12), the inclusion of older rental buildings which contain rent-regulated apartments. To make things worse, the Rosin report states, the Denham report ignores newly constructed buildings which better reflect market rents. Another flaw, BHA says, was BBPC's decision to provide projected valuations of the buildings on the other parcels before actual valuations were available. Thus, the BBPC board's vote rested on the misleading data in the report, and it should be nullified (relying on Matter of Council of Trade Waste Associations v City of New York, 179 AD2d 413 [1st Dept], lv denied, 79 NY2d 755 ).
In what BHA describes as a calculated effort to justify the need for the large developments at Parcels A and B, BBPC has stated it needs cash immediately to commence its preventative maintenance plan for the piers. BHA argues that the preventative maintenance plan is unnecessary and even unsound. It states that preventative maintenance work would be [*9]performed on pilings that do not need it, thus throwing out years of their useful life. Further, it points out that BBPC stated at its June 7, 2016 board meeting that it could commence the work at any point over the next few years. It argues that this means the need for the preventative work is not immediate.
Moreover, BHA states, BBPC could fund the work through the issuance of municipal bonds and phase in the preventative maintenance work over time. BHA contends that once the preventative maintenance work is complete BBPC would have a huge cash flow with which to cover the debt. It states that the Office of Management and Budget's statement that BBPC could not financially support this model is irrational as it did not rely on any data or methodology. The Denham report also rejects the idea of issuing municipal bonds, but BHA states the report's reasoning is flawed. By spreading out the cost of the work over time, BHA states, BBPC would not place the entire financial burden entirely on the Pier 6 developments.
BHA argues that BBPC violated its legal duty in that it did not obtain a modification of the GPP to allow BBPC to include affordable housing in Parcel B. It points out that affordable housing is not expressly authorized in the plan, and as the affordable housing units will not generate significant income, their inclusion is also in conflict with the mandate that the development of the parcels will be limited to what is necessary to sustain the Park financially. It further argues that the height limitations in the GPP included the mechanicals and that a modification was required for Parcel B to exceed the maximum height. Finally, it contends that because BBPC presented this allegedly misleading information to the board, the board's approval was tainted and must be annulled.
In opposition, respondents argue that BHA's challenges to the development under the GPP lack merit. Under an Article 78 proceeding, they note, a petitioner can only challenge a determination as violative of a lawful procedure, the result of a legal error, or was arbitrary and capricious and constituted an abuse of discretion (CPLR § 7803; see South Bronx Unite! v New York City Industrial Development Agency, 115 AD3d 607, 609 [1st Dept 2007]). They contend that their determination was rational, lawful, and the result of careful consideration.
According to respondents, a modification to the GPP was unnecessary. They challenge BHA's argument that the development must be limited to what is strictly necessary to support the Park, and argue that Guiding Principle 8, relating to financial need, does not impose a requirement but expresses an intention. Relying on the affidavit of BBPC board member Martin Connor, who was a signatory to the Thirteen Guiding Principles, they argue that these principles "reflected general concepts that the signatories, and local community they represented, thought could form a basis for continued discussion and planning" (Connor Aff. ¶ 7). Connor states that BBPC is not "required to maximize revenue from each development cite and minimize development to the exclusion of all other goals" (Id. ¶ 5). The affidavit further explains that after the publications of the principles there was more than a decade of additional plans and compromises, and that there have been multiple deviations when circumstances warranted it. Connor notes that, among other things, the Guiding Principles initially envisioned a smaller footprint for the Park (see id. ¶ 8), and expressed a preference for commercial rather than residential uses (See id. ¶ 9). They point out that other development parcels contain components, such as St. Ann's Warehouse, a nonprofit theater company, which benefit the public without providing significant financial support. Similarly, they argue, there is an affordable housing crisis in the borough. Accordingly, the continue, they have the discretion to respond to that crisis by including an affordable housing component in the building located at Parcel B even though it [*10]does not maximize the financial benefit.
Respondents acknowledge that, as BHA states, they sought a modification of the GPP on these issues. Through the affidavit of BBPC president Regina Myer, however, they argue that this was, in fact, a request for a confirmation that no such modification was required. They point to the response to their request — in the form of the June 6, 2016 letter from EDC to BBPC — and note that EDP ultimately reached this conclusion. The letter stated that because there was no prohibition against placing affordable housing units in the development parcels, their inclusion did not represent a deviation from the GPP. Respondents contend that the development at Parcel B does not violate the height restriction because the limitation is exclusive of mechanicals and other equipment placed on the roof of the building and that, therefore, no modification is required on that ground as well.[FN9]
Furthermore, they state that there is financial need for the development "to secure the Park's financial future" (Government Respondent's Mem. of Law in Opp. [Mem. in Opp.], at p. 22). They utilized a detailed financial analysis which projected the Park's needs for the next fifty years, and they employed independent experts who vetted the review and found that the analysis relied on "reasonably conservative assumptions that minimize risk and account for an unpredictable and volatile real estate market" (Id. [citing Aff. of David Lowin, Vice President for Real Estate for BPPC in Support of Respondents (Lowin Aff.) ¶ 10]). They reject BHA's position that their 50-year financial plan is inaccurate because it ignores the current flourishing real estate market. Instead, they contend, their financial plan is accurate because it considers not just the flourishing market but its past, present, and future volatility. They rely on the Denham report, which described the risks and uncertainty associated with the Park's future revenue and concluded that the development of the Pier 6 parcels is necessary regardless of the type of maritime maintenance BBPC ultimately employs. The Lowin affidavit notes that the Denham Report was "rigorously reviewed by the [BBPC] Board's Audit and Finance Committee" (Lowin Report, ¶ 17), and that in response Denham refined the report's conclusions. They further note that Denham met with the Community Advisory Council and provided detailed responses to the group's concerns. They argue that it is BHA, rather than respondents, which improperly applies the Department of Finance methodology and state that the Department of Finance confirmed that BHA's Rosin Report used an incorrect method of valuation. They state that, contrary to BHA's position, they did not select as comparables buildings with artificially low tax values. They suggest that, instead, BHA cherry-picked its own comparables.
Regardless of the methodology, respondents claim, "disagreements about the amount of [BBPC's] PILOT revenue in the future do not obviate [BBPC's] need for the upfront payment from the Pier 6 development to fund the Park's maritime maintenance program" (Mem. in Opp. At pp. 37-38). In addition, respondents argue that their decision to opt for preventative maintenance with respect to the pilings is rational, based on independent review, and within respondents' area of expertise (citing Hempstead v Flacke, 82 AD2d 183, 187-88 [2nd Dept [*11]1981]; see Peckham v Calogero, 12 NY3d 424, 431  ["courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise"]). They submit the affidavit of Kirk Riden, the Project Manager and Supervisor for CH2M Hill Companies, Ltd. (CH2M Hill), the engineer who oversees the maritime services for the Park. The Riden affidavit explains the reasons for the decay of the pilings and the reasons CH2M Hill concluded that preventative maintenance was the most efficient and cost-effective way to proceed. They note that, as Riden explains, since the preventative maintenance approach requires an extremely large bulk purchase of epoxy, CH2M Hill obtained a substantial additional discount. It is claimed that this therefore increases the financial prudence of this approach. In addition, the Riden affidavit rejects BHA's expert's conclusion to the contrary and states that the more stable pilings will not lose years of their useful life, as BHA's expert opines, but instead will extend them. They argue that in opposing the preventative maintenance approach, BHA ignores many of the plan's benefits, including the risk of escalating costs in the future and the decreases in both environmental impacts and disruptions to use of the Park. Furthermore, citing Ball v New York State Department of Environmental Conservation (35 AD3d 732, 733 [2nd Dept 2006]), respondents point out that they are entitled to rely on their expert, even if BHA's expert disagrees (Accord Brooklyn Bridge Park Legal Defense Fund, Inc., 50 AD3d at 1030-31).
Respondents also assert that BHA asks this Court to exceed its powers by second-guessing respondents' budgeting decisions. Citing Wein v Carey (41 NY2d 498, 505 ), they state that a court can intervene in the government's budget "only in the narrowest of instances" (see Maron v Silver, 14 NY3d 230, 261  [quoting Wein]) and that such circumstances do not exist here. The argue that BBPC did not under-report its revenue, as BHA contents, and that BHA's position reflects a distorted view of the Park's finances. They acknowledge that BHA correctly noted two data entry errors in the Park finances, but contend that this results in only a 1.85% increase in the annual budget and, as such, does not alter any of respondents' conclusions. They reject BHA's suggestions that they delay preventative maintenance for ten years and that they fund the work through the issuance of municipal bonds rather than through development at Pier 6. The suggested delay, they claim, is unreasonably risky and likely would require BBPC to undertake more expensive repair measures in the future. They fully considered debt-financing and received input from the Office of Management and Budget, the New York City Comptroller, and the Denham report, and determined it was financially imprudent and would "compound debt for the Park" (Mem. in Opp., at p. 45 [citing Lowin Aff. ¶ 134]). Without resolving the issue, they question BHA's position that BBPC has the legal authority to issue tax-exempt bonds. They state that, regardless of whether BHA is correct, BBPC reached a rational conclusion that they should not do so. The same arguments as to fiscal prudence, they state, militate against ESD-issued bonds as well.
Among other things, and in addition to reiterating its original arguments, BHA replies that respondents' financial error of nearly $300 million over the course of 50 years is substantial and that BBPC provided its financial model — which, allegedly, is riddled with errors — too late for timely review. It contends that its support for St. Ann's Warehouse and other community projects is distinguishable because these are "modest amenities" which do not significantly impact on the financials of the related development parcels (BHA's Corrected Reply Mem. of Law, at pp. 22-23).
B. Height of Building at Parcel B.
BHA further argues that the height limitations in the GPP included the mechanicals and that a [*12]modification was required for Parcel B to exceed the maximum height. They point to the fact that Parcel A building height includes the mechanicals, and note that BBPC's request for a modification included a request allowing the height restriction on Parcel B to be exclusive of the mechanicals. Respondents counter that a modification was not necessary. They state that the height restriction was not intended to include the mechanicals. In support, they cite to Save the View Now. Although the lawsuit was dismissed based on the expiration of the statute of limitations, the court noted the parties' dispute over how to measure the building's height. He pointed out that one of the plaintiff's experts "concede[d] that rooftop structures are usually permitted to exceed height caps" (Save the View Now, 2015 NY Slip Op 31047 [U], *10), and that defendant's architect's statement that both the city's zoning code and "the prevailing methodology in the industry for measuring building height" excludes mechanicals" was unrebutted (Id., *11). The court concluded that BBPC utilized the appropriate methodology. Although these statements are not binding, respondents urge this Court to apply the reasoning that underpins them.
C. BHA did not Collaborate with the Community Advisory Council and Other Groups.
Furthermore, BHA states, under UDCA § 6266 (1), respondents were required to "work closely, consult and cooperate with local elected officials and community leaders." It also notes that, under the Amended & Restated By-Laws of Brooklyn Bridge Park Corporation § 1201, BBPC was required to establish the Community Advisory Council. According to BHA, respondents have violated this precept. For one thing, the Advisory Council, itself, and local elected officials have clamored for the release of financial information, including BBPC's methodology, and BBPC has refused to comply. In addition, BBPC disregarded the Advisory Council's request that BBPC not enter into a contract with any developer until it provided this information to the Advisory Council for consideration and response. Also, BHA states that respondents irrationally and in violation of their legal mandates ignored BHA's efforts and suggestions, such as the alternative to preventative maintenance and the issuance of municipal bonds.
Respondents initially challenge this argument based on BHA's lack of standing. Under General Associations Law § 12 and CPLR § 1025, they state, to the extent that this proceeding seeks the enforcement of a right of the Advisory Council should be brought by the Advisory Council's president or treasurer.[FN10] Aside from this threshold issue, they contend that there is no viable cause of action. They quote the statement of purpose in the Council's By-Laws [FN11] :The [Advisory Council] has been established to provide advice to the [Brooklyn Bridge Park] Corporation. It is anticipated that the Corporation will provide the Advisory Council with information on a timely basis on major aspects of its policies and operations affecting Brooklyn Bridge Park (the "Park") to enable the Advisory Council to properly fulfill its advisory role to the Corporation. The Advisory Council will invite and consider commentary from the public and the Corporation and provide recommendations to the [*13]Board of Directors [of BBPC] on such major aspects of its policies and operations affecting the Park.
Respondents that this statement envisions a collaborative process by which BBPC provides the Advisory Council with pertinent information and the Advisory Council provides BBPC with thoughtful suggestions reflective of community and other concerns, there is no mandated list of documents BBPC must provide and no mandate that BBPC adopt the Advisory Council's recommendations. They cite Develop Don't Destroy (Brooklyn) v Urban Development Corporation (2008 NY Slip Op 30104 [U] [Sup Ct, NY County 2008] [Develop Don't Destroy I], aff'd, 59 AD3d 312 [1st Dept 2009] [Develop Don't Destroy Brooklyn I]), which involved a challenge to the Atlantic Yards Terminal development, for the proposition that there is no mandate regarding the constitution of the Advisory Council. Further, respondents argue that they fully satisfied their duty in that they apprised the Advisory Council of all its major decisions, made "numerous" presentations to the Advisory Council, solicited comments and suggestions from the Council and considered them as well. They note that BBPC staff attended Council meetings and answered Council questions. They acknowledge that, like BHA, the Council opposes the project, but contend that they are not bound by the Advisory Council's preferences. The affidavit of Regina Myer also describes the Council and community involvement.
In reply, BHA argues that its standing to challenge the BBPC's approval of the contract gives it standing to challenge BBPC's lack of collaboration with the Advisory Council. It cites the Council's By-Laws, which state it should receive timely information concerning the Park's policies and operations. It refers to the reply affidavit of Advisory Council co-chair Lucy Koteen, which states that she would have advised against approving the project had she known that the height "would increase significantly from what we had been told in 2014" (Koteen Aff., ¶ 25).
D. Requirement that RAL and Oliver Register with Doing Business with The City database
BHA also alleges that BBPC contracted with RAL despite the latter's failure to file a Doing Business disclosure form. It concedes that RAL ultimately filed such a form, but asserts that it only did so a year after BBPC selected it for this contract. It contends that this violates the terms of the RPP. As this filing is required under Local Law 34 (see N.Y.C. Administrative Code § 3-702.20 [setting forth definition of the database and describing the requirements), BHA contends that BBPC violated this provision as well. In support, BHA submits the affidavit of Amanda E. Factor, a paralegal at the law firm representing BHA. She asserts that she searched the database for RAL and Oliver's, along with the managing partner of Oliver's and eleven executives affiliated with RAL. She states that she found listings for RAL and five of the eleven RAL executives, but did not find any listings for the remaining individuals or for Oliver's and its managing partner. BHA further notes that RAL and one of its lobbyists each made donations of $10,000 to Mayor DiBlasio's Campaign for One New York, and it suggests this may indicate some impropriety with respect to the contract award.
Respondents raise two challenges to this cause of action. First, they note that the four-month statute of limitations applies to Article 78 proceedings (CPLR 217 ). Citing Council of City of New York v Giuliani (5 AD3d 330, 331 [1st Dept 2004]) and Acme American Refrigeration, Inc. v New York City Department of Education (34 Misc 3d 393 [Sup Ct NY County 2011]), among other cases, they argue that the statutory period commenced on June 30, 2015, when BBPC issued the press release which announced the award of the contract to RAL [*14]and Oliver's, rather than when the BBPC board approved the final contract. They note that the Factor affidavit acknowledges that BHA did not search the Doing Business database until June 6, 2016, nearly a year later. Second, respondents argue that BHA lacks standing to challenge the RFP selection process. Citing In re City Club of New York, Inc. v Hudson River Park Trust, Inc. (142 AD3d 803, 804 [1st Dept 2016]), they contend that BHA lacks standing to challenge the bid process or award because it "never alleged before the [A]rticle 78 court that [it] had the wherewithal to submit a plausible competing bid or that, having suitable resources and expertise, they would have done so." It further alleges, under Transactive Corp. v New York State Dept. of Social Services (92 NY2d 579, 587 ), BHA has no standing because it sustained no injury-in-fact. Respondents additionally rely on the statements by Regina Myer that BBPC was unaware of whether RAL or other of the applicants' contributions, if any, to the Campaign for One New York, and that there is no allegation that Oliver contributed to the Campaign.
RAL and the other interested party-respondents (RAL) also oppose this prong of BHA's motion. In addition to the arguments regarding the timeliness of the challenge and BHA's standing, RAL contends that, contrary to BHA's position, it filed a Doing Business Data form in a timely fashion and included the form in its application it filed in response to the RFP. The RFP was publicized in May of 2014. In support, RAL submits a copy of its Doing Business Data form, which was certified on July 21, 2014, the same date Robert A. Levine, RAL's president and CEO, contends RAL submitted its proposal (See Aff. of Robert A. Levine, ¶ 4). In addition, to show that RAL regularly complies with this requirement, it has submitted copies of Doing Business Data forms which it has provided as part of its response to more recent RFPs. As for BHA's suggestion of impropriety, RAL argues that it made a $10,000 donation to the Campaign for One New York after the contract had been awarded, that its lobbyist represented 212 lobbying clients when it made its contribution, and that another RPF applicant, Toll Brothers, contributed $25,000 to the Campaign for One New York during this same period.[FN12]
In reply, BHA stresses that Oliver's never registered with the Doing Business Database, and that there is no justifiable excuse for this failure. It states that it has standing to challenge this aspect of the project review and approval procedure because the allegedly fatal deviation is one facet of its Article 78 challenge to the decision. It distinguishes the cases upon which respondents rely, arguing that unlike the petitioners in those cases, BHA has a stake in the outcome of the bidding process and an asserted injury which is distinct from that of the general public. It contends that the challenge is timely because the claim when BBPC approved the project rather than when it announced the contract. In support, it emphasizes that the June 30, 2015 press release which announced the selection of RAL and Oliver's used language which made clear that there was no final approval of the plan. For example, the subtitle of the release stated that BBPC planned to "seek approval" of the venture, and the first paragraph states that the project would go forward "[i]f approved." It cites Matter of Acme American Refrigeration, Inc. v New York City Department of Education (34 Misc 3d 392, 398 [Sup Ct NY County 2011]) and Boston Culinary Group, Inc. v New York State Olympic Regional Development Authority (18 AD3d 1103, 1104 [3rd Dept 2005] [Boston Culinary]) for the propositions that this, a challenge [*15]to a bid, is distinguishable from a challenge to the bid solicitation process, and that the cause of action here accrued when "the award was made and petitioner was so advised" (Boston Culinary, 18 AD3d at 1104).
II. Challenges Under SEQRA
A. Changed Financial Circumstances of the Neighborhood Triggers Need for SEIS.
Under 6 NYCRR § 617.9 (a) (7) (i), a lead agency "may require a supplemental EIS, limited to the specific adverse environmental impacts not adequately addressed or inadequately addressed in the EIS" due to changes to the project, new information, or a change in circumstances impacting the project. BHA alleges that ESD and BBPC did not comply with SEQRA because they failed to prepare an SEIS which reflected changed circumstances that were related to the development. It states that an SEIS was necessary to evaluate feasible alternatives that were not available when the FEIS was issued ten years earlier (citing Develop Don't Destroy (Brooklyn), Inc. v Empire State Development Corp., 33 Misc 3d 330, 342, 346-47 [Sup Ct NY County 2011] [Develop Don't Destroy II], aff'd, 94 AD3d 508 [1st Dept 2012] [Develop Don't Destroy Brooklyn II). BHA states that BBPC's increased financial strength is a change in circumstances within the meaning of 6 NYCRR § 617.9 (a) (7) (i). It contends that this created a duty to consider smaller projects as an alternative to the luxury developments — for example, to reconsider the reduced density alternative the FEIS had rejected as financially unfeasible or the alternatives of either deferring or canceling the project at Pier 6.
In opposition, respondents argue that it was reasonable to decide an SEIS was not necessary. It notes that 6 NYCRR § 617.9 (a) (7) (i) only requires an SEIS where the new information or the change in circumstances or in the scope of the project creates "significant adverse environmental impacts" (citing Riverkeeper, 9 NY3d at 231; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1 [1st Dept 2006]). According to respondents, the changed financial circumstances in Brooklyn Heights is not the type of change requiring an SEIS, because "the relevant inquiry is not whether the circumstances have changed or new alternatives are available but rather whether changed circumstances might result in significant adverse impacts that were not adequately addressed in an FEIS" (Government Respondents' Mem. of Law in Opposition to the Amended Verified Petition [Mem. in Opp.], at pp. 75-76). As the technical manual "analyzed project changes, new information, and changed circumstances" before it reached its conclusion, respondents state, the decision must be upheld (Id., at p. 76). Otherwise, they state, this Court would be endorsing "a cycle of 'constant updating, followed by further review and comment periods, [which] would render the administrative process perpetual and subvert its legitimate objectives" (Id., at p. 76 [quoting Jackson v New York State Urban Development Corp., 67 NY2d 400, 425 (1986)]).
Respondents additionally challenge BHA's claim that the technical report did not take the requisite hard look because it did not consider new or newly-attainable alternatives to the project. They claim, in response, that BHA has confused the issue. New or newly-attainable alternatives must be considered only if an EIS or SEIS is undertaken, they state, but such review need not be considered for the agency's determination of whether an EIS or SEIS is needed. Moreover, they state, BHA has not pointed to any cases in which the existence of new or newly-attainable alternatives necessitated the promulgation of an SEIS. They distinguish Develop Don't Destroy II, on which BHA relies, arguing that the petition was not granted because of the failure to consider new alternatives or mitigating factors. Instead, the court found that agency should have prepared an SEIS because the project would take twenty-five rather than ten years to build [*16]and this would have a significant impact on the environment. They state that Matter of Halperin v City of New Rochelle (24 AD3d 768, 777 [2nd Dept 2005], lv dismissed, 6 NY3d 890, lv dismissed, 7 NY3d 708 ) resoundingly rejects BHA's argument.
In reply, BHA reiterates that the change in financial circumstances is sufficient to trigger the need for an SEIS. It cites Mobil Oil Corp. v City of Syracuse Industrial Development Agency (224 AD2d 15, 22 [4th Dept 1996]) for the principle that the intentionally broad phrase "change in circumstances" creates a "catch-all" provision. It rejects respondents' position that an SEIS is necessary only when there is a new or increase adverse impact. It points out that, under Environmental Conservation Law 8-109 (2) (d), an environmental impact statement must consider alternatives to the project. It states that the consideration of such alternatives is central to the SEQRA analysis. It argues that the decision in Develop Don't Destroy Brooklyn II (94 AD3d at 511) supports its position on this issue. Citing several cases involving the construction of statutes, they argue that where a law or regulation is unambiguous the Court need not interpret it further, and that a rule or law should be interpreted in a way that is consistent with its purpose. Its states that respondents' reliance on Halperin is misplaced and, in addition, the discussion by the court in that case is inconsistent and otherwise flawed.
B. Change in Elementary School Population Necessitates Preparation of SEIS.
Another changed circumstance, BHA states, is the great increase in the local elementary school population since 2005 — from an estimated 75% capacity to a predicted 108.34% capacity in the district. As petitioner notes, the area which includes the Park is even more crowded than the district overall. The technical memorandum's decision that this increase in population did not necessitate the promulgation of an SEIS, according to BHA, is arbitrary and capricious. Under the guidelines in the CEQR Technical Manual, there is a significant adverse impact to school population only if the proposed project increases the population by more than 5%. BHA states that the CEQR Technical Manual provides guidance but that its guidelines are not mandatory and that, in light of the exceptional overcrowding in the district, it was irrational of BBPC to adhere to it. In addition, BHA argues, it was irrational for the technical memorandum to consider the increase in population to the school district, as this impermissibly segments the Park project. Instead, according to BHA, the report should have considered the residential development in the Park area in its entirety. Under a proper review, it asserts, the sub-district population increases by over 7.56% percent with the proposed project and thus warranted an SEIS. BHA also states that the technical memorandum improperly considered the increased population of the Pier 6 buildings alone, rather than including the additional elementary school population which results from three other residential developments in the Park. It contends that this is tantamount to segmentation, which is "the division of the environmental review of an action such that various activities or stages are addressed as though they were independent, unrelated activities, needing individual determinations of significance" (Saratoga Springs Preservation Foundation v Boff, 110 AD3d 1326, 1328 [3rd Dept 2013] [citing 6 NYCRR 617.2 (ag)]). This segmentation, it contends, is impermissible because, BHA asserts, the memorandum provides a segmented analysis "to avoid the detailed review called for under SEQRA" (Id.).
In opposition, respondents contend that the technical memorandum takes the requisite hard look at the Pier 6 development's impact on the elementary school population. They note that the report thoroughly evaluates the projected increase in population with and without the project, and rationally concludes that, utilizing the Technical Manual's methodology for assessing school population, the projected increase in elementary school population is not so significant as to [*17]require an SEIS. Respondents argue that the reliance on the CEQR Technical Manual both here and throughout the technical memorandum is rational, and they point out that this source has been utilized by lead agencies in numerous cases including Chinese Staff (See also Hand v Hospital for Special Surgery, 34 Misc 3d 1212 [A], 2012 NY Slip Op 50060 [U], *9 [Sup Ct NY County 2012] [acknowledging that the CEQR Technical Manual as setting forth the "accepted methodology"]). They claim that in arguing to the contrary, BHA has confused the issue. New or newly-attainable alternatives must be considered only if an EIS or SEIS is undertaken, they state, but such review need not be considered for the agency's determination of whether an EIS or SEIS is needed. Moreover, they state, BHA has not pointed to any cases in which the existence of new or newly-attainable alternatives necessitated the promulgation of an SEIS. They state that Matter of Halperin v City of New Rochelle (24 AD3d 768, 777 [2nd Dept 2005], lv dismissed, 6 NY3d 890, lv dismissed, 7 NY3d 708 ) resoundingly rejected BHA's argument.
Respondents additionally dispute BHA's positions that, notwithstanding the Technical Manual, BBPC should have considered the increased population in the area near the Park rather than in the entire sub-district or that it should have evaluated the impact differently because the elementary schools currently operate at over 100% capacity. They claim that the suggested approach is at odds with the principles set forth in the Technical Manual and in prevailing caselaw. They point out that it is the New York City Department of Education's job to tackle the issues of school overcrowding and limited resources. They indicate that the Department of Education has already proposed changes which will increase the number of available student seats. Respondents further argue that the memorandum did not segment its review by focusing on the increase in the student population due to the Pier 6 project rather than on all residential developments at the Park. They note that the FEIS included the impact of the entire project on the school population, and state that this is all that SEQRA requires. BBPC was not required to revisit the issue of the population increase due to the entire project when the pertinent change is limited to the Pier 6 project. They point out that all the cases on which BHA relies involve segmentation involve determinations agencies made at the initial evaluation stage. They state that any challenges to the overall evaluation of the school population increase should have been raised in response to the FEIS, not the technical memorandum. It contrasts the case of Matter of Long Island Pine Barrens Society v Town Board of Town of Riverhead (290 AD2d 448 [2nd Dept 2002]), in which the EIS considered the environmental impact of a golf course rather than that of the residential golf development which was the subject of the review. Here, they point out, a comprehensive review already has been conducted.
BHA contests respondents' argument. It continues to assert that the Technical Manual is "solely advisory" and should not take the place of a "thoughtful environmental analysis" (Reply Mem., at p. 57). Moreover, it contends, the Technical Manual does not intend for the 5% rule to apply where the utilization rate is below 100% without the project and over 100% with the project (Citing Technical Manual, 6-14, § 410). Here, where the elementary schools already are over capacity, the manual's 5% rule does not apply. It alleges that an SEIS is needed because the FEIS did not contemplate that the schools would become overcrowded.
C. Technical Memorandum Should Have Been Supervised by ESD, not BBPC.
BHA's final major challenge to respondents' determination is that ESD rather than BBPC should have conducted the environmental review at issue. It points out that under 6 NYCRR § 617.2 (u), the lead agency is "principally responsible for undertaking, funding or approving an action, and therefore responsible for determining whether an environmental impact statement is [*18]required . . . ." It argues that this responsibility is nondelegable (See Croton Watershed Clean Water Coalition Inc. v Planning Bd. of Town of Southeast, Covington Management Co., 5 Misc 3d 1010 [A], 2004 NY Slip Op 51312 [U], at *8 [Sup Ct Westchester County 2004] [citing Matter of Coca-Cola Bottling Co. of New York v Board of Estimate of City of New York, 72 NY2d 674, 682-83 (1988)]). It notes that the 2010 modification to the GPP reiterated that ESD would continue as lead agency.
Initially, respondents argue that BHA lacks standing to raise this issue. In support, they cite to Incorporated Village of Poquott v Cahill (11 AD3d 536, 539 [2nd Dept 2004], leave dismissed, leave denied, 5 NY3d 819 ) and King v County of Saratoga Industrial Development Agency (208 AD2d 194, 201 [3rd Dept 1994], leave denied, 85 NY2d 890 ), both of which involved challenges to the lead agency that had been selected. They urge that this Court apply the same principle here.
Even if the Court considers the challenge, they continue, the substance of BHA's argument lacks merit. They point out that the 2010 modification to the GPP transferred all decision-making power to BBPC and that, as a result, ESD relinquished its responsibility for undertaking and approving further transactions. As this was not the case in 2005, it was appropriate for ESD, as lead agency, to undertake the initial environmental review and approve the FEIS, respondents continue. Moreover, despite the transfer of power to BBPC in 2010, it properly considered the technical manual and update as they arose under the FEIS. Respondents state that after it issued its 2016 decision that a modification to the GPP to include affordable housing was unnecessary, it concluded its responsibility with respect to the project, enabling BBPC to move forward with the development approval process. The statement in the June 2016 letter to Regina Myers that ESD and BBPDC had transferred their control of the project to BBPC essentially acknowledged that BBPC was now the lead agency. They state that at this point BBPC informed ESD that it was assuming the role of lead agency and that it would oversee the final update to the technical memorandum. They argue that the statement in the 2010 modification to the GPP that ESD would continue as lead agency is not dispositive because it conflicts with the prevailing laws and rules governing SEQRA review. They reject the remainder of BHA's arguments on this issue.
In reply, BHA first contends that it has standing. In essence, BHA indicates, it is not challenging whether BBPC would have been a proper lead agency, but is alleging that the approval of the Pier 6 project violated lawful procedure because, inter alia, the agency that conducted the review was not properly appointed. As it has standing to allege such violation, BHA states, then this argument is appropriate. It states that the communications between ESD and BBPC were ineffective to change the lead agency, and that BBPC's failure to disclose the purported change the day of the meeting at which the Board voted to approve the project renders that vote ineffectual. Moreover, it alleges that because the 2010 GPP modification stated ESD would continue as lead agency, a further modification to the GPP was required. They state that the final technical memorandum update was defective as it does not identify the agency which conducted the review, and that even if lead agency, BBPC did not make a final determination regarding the necessity of an SEIS, instead delegating its nondelegable duty to make that decision to whoever prepared the technical memorandum update.
"The applicable judicial standard for reviewing an agency's substantive determinations on environmental matters is that standard of review typically applied to other Article 78 proceedings. The courts will overturn an agency's determinations only when they are arbitrary and capricious or unsupported by substantial evidence" (Jackson v New York State Urban Development Corp., 110 AD2d 304, 307 [1st Dept 1985], aff'd 60 NY2d 400 ; see Friends of P.S., Inc., 146 AD3d at 577). Thus, petitioner's challenges to respondents' compliance with the Urban Development Corporation Act are governed by a rational basis standard (See, e.g., Develop Don't Destroy (Brooklyn) II, 59 AD3d at 322; Develop Don't Destroy II, 33 Misc 3d at 340-41), and the same is true of their challenges to the SEQRA process (See Chinese Staff & Workers' Association v Burden, 19 NY3d 922, 924 ). Courts limit their review to the question of whether respondents "identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination" (South Bronx Unite!, 115 AD3d at 610 [upholding respondent's determination that SEIS was not required]; see Spitzer v Farrell, 100 NY2d 186, 190 ).
Agencies also have considerable discretion in conducting their evaluations and may choose which of the conflicting expert evidence they find to be most persuasive (Brooklyn Bridge Park Legal Defense Fund, 50 AD3d at 1031). This same discretion exists with respect to their decision not to undertake a supplemental environmental review (See Riverkeeper v Planning Board of Town of Southeast (9 NY3d 219, 231-32 ; Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Board, 153 AD3d 823, 827 [2nd Dept 2017] [determining that agency failed to take a "hard look"]).
I. Challenges under Urban Development Corporation Act and GPP.[FN14]
A. Financial Need.
"[F]rom the project's very inception in the '13 Guiding Principles' endorsed by Brooklyn's Borough President and area federal, state and city legislators. . . commercial nonpark uses were contemplated as a means of sustaining the proposed Brooklyn Bridge Park" (Legal Defense Fund, 14 Misc 3d at 523] [citing Guiding Principle 8]). Simultaneously, Guiding Principle 8 contemplates that respondents will limit such uses to those which are financially necessary to maintain the Park. Due to this restriction and the concomitant desire to maximize Park acreage and public usage, there are strict limitations on the acreage available for commercial development and on the heights of the buildings to be developed. With the notable exception of the mechanicals on the Parcel B development, BHA does not dispute that the development at Pier 6 complies with the restrictions. Petitioner contends that respondents are further restricted, however, in that they must reduce the height or footprint of a proposed building when Park finances permit it. The Court rejects this argument. Respondents are entitled to consider the future financial needs of the Park and potential fluctuations in the economy in their financial analysis, and to make conservative projections to ensure future financial stability in a worst-case scenario. Having conducted this analysis, they have determined that the money from the project as it stands will secures its financial future. Although petitioner disputes respondents' evaluative [*19]methods, this is not a sufficient basis to overturn respondents' calculations (See Saratoga Lake Protection and Improvement District v Department of Public Works of the City of Saratoga Springs, 46 AD3d 979, 987-88 [3rd Dept 2007] [upholding as rational respondent's cost analysis, which assumed the need to purchase 100% of the city's water needs although petitioner contended that respondent should have considered the cost of purchasing the water on an as-needed basis], lv denied, 10 NY3d 706 ). Even if petitioner "dispute[s] the accuracy of the factors cited in the study," this Court cannot conclude that BBPC was irrational in its acceptance of the analysis (Akpan v Koch, 75 NY2d 561, 573 ).
In deciding to undertake a preventative maintenance program, respondents relied on the conclusion of their expert, Kurt Riden of CC2M. Agencies "may rely on consultants to conduct the analyses that support their environmental review . . . [and] [t]he choice between conflicting expert testimony rests in the discretion of the administrative agency (Matter of Friends of P.S. 163, 146 AD3d at 578 [regarding methodology with respect to noise levels]). The Riden Affidavit shows that the decision on this issue is rational and supported by substantial research and analysis, including the consideration of alternatives. Once respondents reached the determination that the project is sound and fiscally prudent, they rationally concluded that the need to pay for it exists. Petitioner's arguments to the contrary merely suggest a disagreement with respondents' expert. They have not supported their charge that the preventative maintenance project was contrived simply to justify the financial need for the development at Pier 6.
The Denham Report's reliance on the Department of Finance methodology was not irrational. Petitioner's contentions — that the report's failure to consider newly constructed buildings which better reflect market rents is irrational, and that it relied on projected valuations of the buildings on the other parcels rather than await actual valuations — are not sufficient to support a contrary conclusion. Instead, they reflect a disagreement with respondents' expert. This does not rise to the level sufficient to show irrationality by respondents.[FN15]
B. Height of Parcel B Building did not require a modification.
The Court finds that the height of Parcel B — 155 feet plus the mechanicals — is not violative of the GPP. On this issue, Save the View Now provides guidance. As indicated earlier, one of the plaintiff's experts "concede[d] that rooftop structures are usually permitted to exceed height caps" (Save the View Now, 2015 NY Slip Op 31047 [U], *10), and defendant's architect's statement that both the city's zoning code and "the prevailing methodology in the industry for measuring building height" excludes mechanicals" was unrebutted (Id., *11). Although these statements do not bind this Court, as the case was disposed on other grounds, Justice Knipel, who authored the decision, also presided over Green Space, another challenge related to the [*20]Brooklyn Bridge Park development. His familiarity with the issues surrounding Brooklyn Bridge Park makes his analysis particularly persuasive. Petitioner expressed its disagreement with the reasoning in Save the View Now and noted the decision was on appeal. The fact that the decision was being appealed is of no import, as the petition was dismissed as untimely. Since the oral argument of this matter, moreover, the Second Department affirmed the ruling in Save the View Now (Save the View Now v Brooklyn Bridge Park Corporation, 156 AD3d 928 [2nd Dept 2017]).
As a further argument, BHA points out that respondents sought a modification to the GPP in 2015 which would have made the heights of the buildings at Parcels A and B inclusive of all mechanicals. This militates in favor of respondents' position, however: if the building heights were intended to include the mechanicals, then there would have been no need to apply for a modification. As ESD did not modify the plan to further limit the height of the building, respondents were free to allow Parcel B to measure 155 feet plus the three stories of mechanicals. The Court also notes that in discussing the building located at 360 Furman Street, between Piers 5 and 6, the GPP states that "[u]p to two stories could be added to the building's main roof, increasing the main roof height from 146 to 169 feet (230 feet to the mechanicals)" (GPP, p. 12). This also shows that the GPP's height descriptions and limitations were considered exclusive of the mechanicals.
C. Collaboration with Community Advisory Council.
The Urban Development Corporation Act gives ESD broad powers and discretion (see Unconsol. Laws § 6255) but requires it to "work closely, consult and cooperate with local elected officials and community leaders" (Unconsol. Laws § 6266 ). Among other things, the Act mandates the creation of a community advisory committee, public hearings, and discussions about the project (See Waybro Corp. v Board of Estimate of City of New York, 67 NY2d 349, 357 ). Although the Urban Development Corporation Act envisions strong community involvement, a "Community Board's role in the review process is merely advisory," and in general are "the means whereby those who live or work in an area affected by a proposal . . . are advised of pending proposals and given the opportunity to make known their views" (Greenberg v City of New York, 38 AD3d 245, 250 [1st Dept 2007] [citations and quotation marks omitted]).
The Court concludes that respondents fulfilled their obligation to involve the Advisory Council in the decision-making process. The submissions before the Court, including excerpts from various public hearing transcripts, emails between the council and respondents, and reports to the council about the project, reveal that there has been a great deal of community involvement. Respondents also made numerous presentations to the Advisory Council and heard its concerns and statements, and took public comments to which they responded.
D. Registration Requirement for RAL and Oliver.
Initially, the Court addresses the threshold issues of petitioner's the timeliness of the claim and petitioner's standing to contest it. First, the Court concludes that the challenge is timely (see Acme Refrigeration v New York City Department of Education, 34 Misc 3d 392 [Sup Ct NY County 2011]). An earlier challenge, before the project was finally approved, would have been premature (See Matter of Eadie v Town Board of Town of North Greenbush, 7 NY3d 306, 316 ; North Country Citizens for Responsible Growth, Inc. v Town of Potsdam Planning Board, 39 AD3d 1098, 1103 [3rd Dept 2007]).
Nevertheless, the claim must fail. The Court concludes that, as respondents argue, BHA lacks standing to assert the challenge. The Court finds BHA's position that it is not suing Oliver's [*21]for its purported failure to register,[FN16] but is challenging respondents' approval of a contract when one of the signatories had not registered, compelling. The First Department, however, has made clear that a petitioner does not have standing to object to the bidding process if it "never alleged before the article 78 court that [it] had the wherewithal to submit a plausible competing bid or that, having suitable resources and expertise, [it] would have done so" (In re City Club of New York, Inc., 142 AD3d at 804).
Even if the Court were to reach a contrary conclusion, it would determine that there is no merit to BHA's contention that Oliver's failure to register — a failure respondents concede (see Myer Aff. paragraph whatever) — invalidates the decision to contract with Oliver. The City of New York website states that the government will not enter into contracts with entities which have not registered on the database and that entities must register regardless of whether they have made or intend to make contributions to a political campaign. Although it is troubling that respondents either were unaware of or ignored this fact, it is not fatal to the contract. Petitioner has submitted no evidence and pointed to no caselaw supporting a contrary conclusion. Instead, Oliver's may be subject to fines based on its failure to file — something that is handled internally by the appropriate City departments.
II. Challenges Under SEQRA.
A. Changed Financial Circumstances of the Neighborhood and SEIS.
In reviewing the determination that there is no need for a supplemental EIS, courts apply the same measure of deference applicable under SEQRA generally (Riverkeeper, 9 NY3d at 232). Utilizing this standard, the Court finds that respondents fully complied with SEQRA. They were not required to consider the booming Brooklyn Heights economy and real estate values as a "change in circumstances related to the project" (6 §NYCRR 617.9 [a]  [i] [c]). In part, this is because the "newly discovered information 'must be based upon . . . (a) the importance and relevance of the information; and (b) the present state of the information in the EIS" (Shapiro v Planning Board of Town of Ramapo, 155 AD3d 741, 744 [2nd Dept 2017] [quoting Riverkeeper, 9 NY3d at 231).
Here, the financial condition of the neighborhood was not part of the initial SEQRA review; instead, the financial need for the project was analyzed under the UDCA and the GPP. As Edward Applebome, senior vice president of AKRF, Inc., the consulting firm which prepared the technical memorandum, states, "changed circumstances are only relevant under SEQRA to the extent that they result in significant adverse environmental impacts that were not adequately studied in the FEIS" (Applebome Aff. ¶ 29). As the finances are not within the scope of a SEQRA review, these changes "do not provide a basis for the preparation of an SEIS" (Id.) Furthermore, SEQRA does not require respondents to consider additional alternatives to the Pier 6 project in light of these types of changes (See Halperin, 24 AD3d at 777 [SEIS was not required to evaluate an alternative that was now more easily available]; see also Committee to Stop Airport Expansion v Wilkinson, 126 AD3d 788, 789 [2nd Dept 2015]). Even in the initial review, the lead agency need not consider every possible alternative or even a petitioner's preferred alternative (See Residents for Reasonable Development v City of New York, 128 AD3d 609, 609 [1st Dept 2015]).
B. Change in Elementary School Population.
The Court also concludes that the technical memorandum rationally applied the methodology set forth in the CEQR Technical Manual. CEQR guidelines are habitually used and it was not irrational to follow them here (see Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 146 AD3d 576, 580 [1st Dept], aff'd, 30 NY3d 416, __ ) — even if, as petitioner argues, the guidelines are not mandatory. Furthermore, BHA's position that the memorandum should have subdivided the district and focused on the area directly impacted by the development is unavailing. Though there is merit to its position that this would have enhanced respondents' review, it was not irrational for them to follow the Technical Manual's Guidelines.
The technical memorandum was not irrational in finding that because the project increased the elementary school population by less that 5%, an SEIS was not necessary. BHA argues that this 5% threshold does not apply here because the student population is already over capacity. According to BHA, the rule is applied only when the added student population from the project is what pushes the population over capacity. BHA does not cite to any other method of evaluation when the student population exceeds student seating capacity when the technical memorandum is prepared, however, and it was not irrational to apply the same methodology. In addition, the technical memorandum did not have to revisit the population prior to the development on any of the parcels, as the FEIS already made that evaluation (See Municipal Art Soc. Of New York, Inc. v New York State Convention Center Development Corp., 15 Misc 3d 1138 [A], 2007 NY Slip Op 51031 [U], at *13 [Sup Ct NY County 2007] [in dismissing petition, court noted that technical memorandum properly evaluated whether the project would "result in any additional significant adverse impacts. . . not previously identified in the (FEIS)"]). For similar reasons, it was rational for the technical memorandum to consider the student population at the time of the study rather than in 2005, the year the FEIS was prepared.
C. Lead Agency Change.
Finally, under the prevailing caselaw, BHA lacks standing to challenge the change in lead agency. As the Second Department held in Incorporated Village of Poquott v Cahill (11 AD3d 536, 539 [2nd Dept 2004], lv dismissed in part, denied in part, 5 NY3d 819 ) and the Third Department pointed out in King v County of Saratoga Industrial Development Agency (208 AD2d 194, 201 [3rd Dept], leave denied, 85 NY2d 809 ), "a challenge [to the selection of a lead agency] may only be commenced by another 'involved' agency" (King, 208 AD2d at 201 [citing 6 NYCRR 617.6]). Even if this Court reached a contrary determination, however (see Residents of Bergen Believe in the Environment and Democracy, Inc. v County of Monroe (159 AD2d 81, 83 [4th Dept 1990]), it would reject BHA's substantive arguments. ESD was entitled to relinquish its role as the lead agency for the project and BBPC was entitled to assume the mantle in its stead. As respondents point out, the change is logical because of the 2010 modification to the GPP acknowledged that BBPC had taken on all the powers and responsibilities of ESD and BBPDC. The lead agency is defined as "an involved agency principally responsible for undertaking, funding or approving an action" (6 NYCRR 617.2 [u]; see ECL §8-0111). An agency which lacks such authority should not serve as the lead agency (See River Center, LLC v Dormitory Authority of State of New York, 275 AD2d 683, 683 [1st Dept 2000] [dicta] [citing ECL § 8-0111], lv denied, 96 NY2d 703 ; Advocates for Prattsburgh, Inc. v Steuben County Indus. Development Agency, 18 Misc 3d 1126 [A], 2007 NY Slip Op 52532 [U], at *1). Accordingly, the prevailing law provides that "lead agency may be transferred from the lead agency, at its discretion, to an involved agency that agrees to become [*22]the lead agency" (CEQR § 5-03 [i]). The only other guidelines in this provision is that the transferee must satisfy the same criteria as the original lead agency, including that it must have the greater degree of responsibility with respect to the project and that it will provide the greater level of funding for the project, and that the new lead agency and other involved agencies receive timely notice of the transfer (Id.). Moreover, an unofficial transfer of agency status has been accepted by the Supreme Court of this county (Cf. Committee for Environmentally Sound Development v City of New York, 190 Misc 2d 359, 373 [Sup Ct NY County 2001] [acknowledging that "although not technically denominated as such, the City took on the responsibilities of a lead agency (from Metropolitan Transit Authority), and with it, the obligation to make certain that [the developer] abides by the limitations contained in the. . . FEIS]).
All parties have submitted many volumes of documents and made valiant and well-reasoned arguments. The Court has read through all documents submitted, considered what the parties have argued and the materials and caselaw to which they refer, and singled out the critical arguments. A failure to discuss an argument, such as the increased traffic and noise, or the closure of the loop road or to discuss BHA's supplemental reply does not indicate that the Court overlooked any of this material.[FN17] The Court has also considered affidavits from community members. Though BHA submits affidavits by individuals with personal knowledge of the Advisory Council's positions and of the promulgation of the GPP, the respondents also submitted affidavits and affirmations by parties involved in the process.
BHA, through its experts, have provided rational alternatives to the analyses of respondents' experts. This is not a reason to nullify respondents' determinations, however. It simply means that respondents had more than one acceptable path to take in their review of this complex and multi-part project (See Troy Sand & Gravel Co., Inc. v Fleming, 156 AD3d 1295, 1299-1300 [3rd Dept 2017]). A court "may not substitute [its] judgment for that of the agency for it is not their role to weight the desirability of any action or [to] choose among alternatives" (Riverkeeper, 9 NY3d 219). For all the reasons set forth above, it is
ORDERED that the petition is dismissed. The Clerk is directed to enter judgment accordingly.
Dated: February 15, 2018
CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes
Footnote 1:The Court notes that while the Local Development Corporation issued the Guiding Principles in 1992, the GPP indicates that this entity was created in 1998. Elsewhere it appears the Brooklyn Bridge Park Coalition drafted the Guiding Principles.
Footnote 2: Save the View Now involved a challenge to the project as it pertained to the Cold Storage Building, and was dismissed based on expiration of the statute of limitations.
Footnote 3:See https://www.brooklynbridgepark.org/pages/Final-Environmental-Impact-Statement-FEIS
Footnote 4:BHA was not part of this litigation.
Footnote 5:This would only be possible for those pilings which were not structurally damaged. Those which had sustained damage would be fortified with poured concrete (Aff. of Kirk Riden [Riden Aff.] at ¶ 20 [noting that "preventative maintenance repairs are . . . installed on structural elements that do not exhibit significant deterioration"]; id. at ¶ 27).
Footnote 6:See infra at pp. 1-2 for a summary of the petition's challenges.
Footnote 7:Among other things, BBPC receives one-time payments under the development contracts and ongoing charges from rent for the ground leases with developers and payments the developers make to BBPC in lieu of taxes, including real estate taxes. A significant source of income is the Payment In Lieu Of Taxes (PILOT payments) developers make to BBPC.
Footnote 8:BHA's valuations are significantly higher.
Footnote 9: Furthermore, they argue, as a not-for-profit corporation BBPC's financial and other determinations enjoy the protection of the business judgment rule (citing Matter of Levandusky v One Fifth Ave Apartment Corp., 75 NY2d 530 ). The Court need not discuss the business judgment rule as an analysis under the general principles governing Article 78 reviews is sufficient and, in fact, provides the agency with similar discretion.
Footnote 10:Several cases, including Concerned Citizens of Albany-Shaker Road v New York (140 AD2d 842 [3rd Dept 1988]), to which respondents cite, indicate that this is a curable defect. Those cases, however, involve situations in which the unincorporated association sues on its own behalf, or in which the treasurer or president sues on behalf of the association but does not state that he or she is the treasurer or the president (Gianunzio v Kelly, 90 AD2d 623 [1st Dept 1982]).
Footnote 11:The Court has excerpted a longer passage.
Footnote 12:RAL's attorney's affirmation refers the Court to the Campaign's donor list, which was available at http://littlesis.org/org/183407/Campaign_for_One_New York/donors. The Court notes that this link has since expired.
Footnote 13: As the Court has provided a detailed discussion of the arguments above, it will not reiterate them in their entirety here.
Footnote 14:These challenges overlap with those asserted under SEQRA.
Footnote 15:The parties debate whether the Advisory Council and BHA's endorsement or rejection of St. Ann's Warehouse and other Park projects which did not bring maximal remuneration render BHA's current position about affordable housing disingenuous. This debate misses the point. The purpose of this proceeding is not to decide the extent to which the parties have taken contradictory positions in the past. Nor is it to decide whether BHA has endorsed nonremunerative uses of the development parcels or whether there is an unarticulated ulterior motive to BHA's current position. Instead, this Article 78 proceeding is to determine whether the challenged decision by the respondents was arbitrary, violative of the law, or an overextension of their power. BHA's motives do not impact the legality of respondents' actions.
Footnote 16:Based on the documentation that RAL produced, petitioner now concedes that RAL filed the proper paperwork. It argues that
Footnote 17:Some of these arguments were raised in connection with the application for a temporary restraining order or preliminary injunction, which Justice Lucy Billings decided.