Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
COALITION v. CITY OF N.Y.
July 10, 1991
COALITION AGAINST COLUMBUS CENTER, SELMA ARNOLD, ROSS GRAHAM, AL HEHN, COLUMBUS CENTER TRAVEL, LTD. AND COALITION AGAINST LINCOLN WEST, INC., PLAINTIFFS,
THE CITY OF NEW YORK, THE BOARD OF ESTIMATE OF THE CITY OF NEW YORK, THE DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, THE METROPOLITAN TRANSPORTATION AGENCY, THE TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, THE NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY AND COLISEUM ASSOCIATES, DEFENDANTS.
The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
This case challenges, from a variety of environmental and
regulatory standpoints, the proposed building of "Columbus
Center" (the "Project"), a 2.1 million square foot mixed-use
redevelopment project involving retail, office, cinema,
residential and parking garage space near Columbus Circle in
Manhattan. Presently before the Court are defendants' joint
motion for summary judgment and plaintiffs' cross-motion for
partial summary judgment.
Plaintiffs are a group of coalitions, individual neighbors
and local businesses which oppose the construction of Columbus
Center. Some of the individuals are board members of nearby
Community Boards and others are officers of the Tenants'
Associations of local buildings.
Defendant Triborough Bridge and Tunnel Authority ("TBTA"), is
the seller of the Project site, for itself and on behalf of
defendant City of New York ("the City" or "NYC"). Defendant New
York City Industrial Development Agency ("NYC IDA") is a public
benefit corporation which is participating in the financing of
the project. Defendant New York City Board of Estimate approves
all dispositions of the City's real estate interests and
amendments to its urban renewal plans. Other defendant City
agencies are the Department of Housing Preservation and
Development ("HPD") and defendant Metropolitan Transit
Authority*fn2 (the parent agency of TBTA). Defendant Boston
Properties is the developer, acting through defendant Coliseum
The City acquired the site just west of Columbus Circle in
1953 by condemnation under the Columbus Circle Slum Clearance
Plan, pursuant to General Municipal Law § 72-k then in force.
The TBTA purchased rights to use and occupancy in consideration
of approximately two million dollars. In 1956 the TBTA
constructed, and has since operated an office building and the
New York Coliseum, a convention center, on the site. When these
facilities were rendered obsolete in the early 1980s by the
construction of the Jacob Javits Convention Center, the City
and TBTA agreed in 1984 to sell the Coliseum site. The City
sought proposals for private purchase and redevelopment of the
site pursuant to a study by the City Department of City
Planning which recommended overhauling the zoning regulations
of the Midtown area to increase the permitted density. City
Planning Commission, Midtown Zoning, March 1982 (attached as
Exhibit 8 to Affidavit of Frederick S. Harris, dated October 5,
1989 (hereinafter "Harris Aff."), annexed to Defendants'
Memorandum of Law in Support
of Motion to Dismiss or for Summary Judgment ("Def. Mem. I")),
at 27. The TBTA was designated the "lead agency" to carry out
the required environmental studies under the State
Environmental Quality Review Act ("SEQRA"), including a draft
Environmental Impact Statement ("DEIS") and final Environmental
Impact Statement ("FEIS").
After receiving fifteen proposals for development of the
site, TBTA accepted Boston Properties' proposal.*fn3 The
agreement among the parties (hereinafter the "New Purchase
Agreement") provides, inter alia, that NYC IDA will be the
owner of the commercial portion of the project, and will issue
certain tax exempt bonds to Coliseum Associates for financing.
The gross purchase price, i.e., not including the benefit
package provided through NYC IDA, is approximately $338
million. The proceeds are to be applied toward capital and
operating programs of the City's transit system.
The project has been challenged in several other lawsuits and
has been scaled down twice.*fn4 The revised terms are embodied
in the New Purchase Agreement (hereinafter "the Agreement").
Presently, these plaintiffs challenge the project on six
grounds, two federal plus four pendent state claims: (1)
alleged violations of the Federal Clean Air Act, 42 U.S.C. § 7401
et seq.; (2) Article 78 proceeding against alleged
violations of the New York City Zoning Resolution, Article 1,
Ch. 3 and 6 NYCRR Part 203; (3) alleged violation of NYC IDA
Mandate, § 917 of New York State General Municipal Law; (4)
alleged violation of NYC IDA internal regulations and policies;
(5) alleged conflict of interest in violation of § 73 of State
Public Officers Law; and (6) Federal Housing Act and HUD
The relief plaintiffs seek is a declaration that the New
Purchase Agreement is null and void and a declaration that the
five resolutions of the Board of Estimate, two TBTA resolutions
and one NYC IDA resolution approving, enabling, or financing
the sale are void. Additionally, as to the Clean Air Act claim,
plaintiffs seek an injunction against defendants from taking
any steps in furtherance of the project until (1) a revised
Environmental Impact Statement is prepared to show how carbon
monoxide violations will be avoided; (2) the project is revised
to eliminate changes to the parking garage until a special
permit is obtained; and (3) a permit for that garage is granted
by the New York State Commissioner of DEC. Complaint at 35-38.
Plaintiffs also seek costs and attorneys' fees.
There has been little if any discovery in this case. However,
the parties agree that there are no contested factual issues as
to the first three causes of action, and that at least these
can be resolved on summary judgment motions alone.
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Rule 56(c). In
testing whether the movant has met this burden, the Court must
resolve all ambiguities against the movant. Lopez v. S.B.
Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994,
8 L.Ed.2d 176 (1962)).
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. Adickes v.
S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970). The movant may discharge this burden by
demonstrating to the Court that there is an absence of evidence
to support the non-moving party's case on which that party
would have the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d
265 (1986).*fn5 The non-moving party then has the burden of
coming forward with "specific facts showing that there is a
genuine issue for trial." Rule 56(e). The non-movant must "do
more than simply show that there is some metaphysical doubt as
to the material facts." Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). Speculation, conclusory allegations and
mere denials are not enough to raise genuine issues of fact. To
avoid summary judgment, enough evidence must favor the
non-moving party's case such that a jury could return a verdict
in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (interpreting the
I. Federal Clean Air Act Claim.
The Clean Air Act ("CAA") is comprehensive federal
environmental law that calls upon the United States
Environmental Protection Agency (hereinafter "EPA") to
promulgate national ambient air quality standards ("NAAQS") for
various pollutants. See 42 U.S.C. § 7409 et seq. The
individual states determine how to achieve and maintain these
standards by devising a State Implementation Plan ("SIP"). Id.
at § 7410. The EPA enforces compliance, but the CAA also
authorizes citizen suits under certain circumstances. Id. §
7604. In order for citizens properly to allege a CAA violation,
they must allege that the City has specifically "repudiated" or
"failed to fulfill" any part of its SIP commitment. Wilder v.
Thomas, 659 F. Supp. 1500, 1507 (S.D.N.Y. 1987), aff'd,
854 F.2d 605, 610 (2d Cir. 1988).
In this citizen suit, plaintiffs allege violation of the
Clean Air Act ("CAA") by repudiation or failure to fulfill
three different undertakings in the New York State SIP.
A. The City's Commitment to Mitigate Violations and
Exacerbations of the Carbon Monoxide Standard
1. Presence of Violations, Exceedences or Exacerbations
The portion of the current New York State SIP, dated January
1984, that relates to control of carbon monoxide and
hydro-carbons in New York City, provides, in relevant part:
To further ensure that the carbon monoxide
standard is attained in New York City, if an EIS
for a project proposal identifies a violation or
exacerbation of the carbon monoxide standard, then
the City commits to assure that mitigating
measures will be implemented by the project
sponsor or City, so as to provide for attainment
of the standard by December 31, 1987 and
maintenance of it thereafter.
New York State Air Quality Implementation Plan, § 3.6(A)
(attached to Harris Aff. as Exhibit 15).*fn6
The carbon monoxide standard relevant to the present case is
the requirement that the concentration of carbon monoxide in
the air shall not exceed a level of 9 parts per million (ppm)
over an 8-hour period more than once a year. Complaint ¶ 82.
According to the Final EIS prepared for this Project, of ten
test sites near the Project, the maximum level of 9 ppm will be
exceeded at one site and reached but not exceeded at two other
sites.*fn7 Id. ¶ 83; FEIS Table II.H-7 (attached as Exhibit 16
to Harris Aff.). At the test site where the standard will be
exceeded, the East 59th Street site, the carbon monoxide level
would reach 13.3 ppm if the Project were built, but will reach
12.9 ppm even without it. FEIS Table II.H-7. The Complaint
charges that required mitigation measures are omitted at these
three sites, in violation of the SIP. Complaint ¶ 87(a).
Although it is true that the carbon monoxide level at many
surrounding test sites will be increased as a result of the
building of Columbus Center, defendants correctly point out,
and plaintiffs appear to have conceded,*fn8 that the two sites
at which 9 ppm has been reached but not exceeded cannot be
considered a NAAQS violation under prevailing regulations.
See 40 C.F.R. § 50.8(a)(1) (9 ppm eight hour level "not to be
As to the East 59th Street test site, which the FEIS predicts
will exceed air quality standards both with and without the
Project, there is some dispute about whether Project has a
legally cognizable impact on the eight-hour carbon monoxide
concentration. The carbon monoxide concentration is calculated
to one decimal place and EPA regulations call for comparisons
to be made "in terms of integers with fractional parts of 0.5
or greater rounding up." 40 C.F.R. § 50.8(d). Performing the
prescribed rounding for comparison purposes, the "without the
project" figure of 12.9 ppm rounds up to 13 ppm, and the "with
the project" figure of 13.3 ppm rounds down to 13 ppm. Under
the rounding procedure authorized by 40 C.F.R. § 50.8(d), then,
the carbon monoxide level at the East 59th Street site is 13
ppm in either case. The Court must conclude that under this
method of calculation the Project has no legally cognizable
effect on carbon monoxide emissions at that site.
Defendants point out that the same result would obtain under
the State Environmental Quality Review Act ("SEQRA"), which
allows for a fluctuation of plus-or-minus .5 ppm before the
project is deemed to be out of compliance (the "de minimis
rule"). Department of Environmental Conservation Air Guide No.
23 — Indirect Sources of Air Contamination (Guidelines for
Addressing Indirect Sources), dated
June 8, 1989 (attached to Harris Aff. as Exh. 17), at 6;
see also Department of Environmental Conservation Policy
Memorandum 78-AIR-30, dated October 5, 1978 (attached to Harris
Aff. as Exh. 18). Under SEQRA's de minimis rule, a .4 ppm
difference in the carbon monoxide level with and without the
Project, such as that found at the East 59th Street test site,
would not be legally cognizable. Plaintiffs challenge this de
minimis approach (Complaint ¶¶ 84, 87(a)).
The Court acknowledges plaintiffs' concern about the de
minimis allowance in that the level of carbon monoxide at the
test sites may creep up by increments of .4 ppm or less,
without any particular project having to accept responsibility
as a direct cause of the problem. On the other hand, de minimis
rules have been upheld in several contexts because they provide
a way of correcting for the inherent limitations of measuring
instruments and predictive models. See, e.g., Connecticut Fund
for the Environment, Inc. v. EPA, 696 F.2d 147, 163-65 (2d Cir.
1982) and 696 F.2d 169, 177 (2d Cir. 1982); California Air
Resources Board v. EPA, 774 F.2d 1437, 1443 (9th Cir. 1985);
Air Pollution Control Dist. v. EPA, 739 F.2d 1071, 1092 (6th
Cir. 1984); Alabama Power Co. v. Costle, 636 F.2d 323, 360
(D.C. Cir. 1979).
2. Fulfillment of Commitment to Combat Exceedences
Plaintiffs' strongest argument in favor of their claim to
enjoin the Project under the CAA is that the EPA requires that
new projects must mitigate existing carbon monoxide violations,
even those carbon monoxide violations not of the project's own
making. U.S. EPA Notice of Proposed Disapproval of the State of
New York's Revised SIP, dated September 12, 1988 (attached as
Exh. F to Pl.Mem. I) ("the SIP commitment does not make [a]
distinction between project-caused and nonproject caused CO
violations"). The appropriate remedy for a failure of this
Project to provide for the mitigation of existing carbon
monoxide violations, according to plaintiffs, is halting the
Project. Pl.Mem. I at 26-27 & n. 9; see 42 U.S.C. § 7604(a)
(Court may issue orders enforcing emission standards under the
Defendants acknowledge that § 3.6(A) of the SIP "requires
[the City] to commit to assure that attainment measures will be
implemented not only for exceedences caused by the Project but
also for exceedences not caused by the Project which are
revealed through the EIS process." Def. Mem. III at 4. However,
they contend that the existence of a City area-wide control
program is sufficient to demonstrate the City's continuing
commitment under the SIP to assure the implementation of
mitigation measures for NAAQS violations disclosed in the
project EIS. The Court will therefore direct its inquiry into
the City's general efforts to combat exceedences not caused by
the Project which are revealed through the EIS process. See
Atlantic Terminal Urban Renewal Area Coalition v. New York City
Dept. of Environmental Protection (hereinafter "ATURA"),
740 F. Supp. 989, 991 (S.D.N.Y. 1990).
In discussing the Project's conformance with this commitment,
the Coliseum EIS relies entirely upon a city-wide carbon
monoxide control study sponsored by the City Department of
Transportation, entitled Relief of Traffic Congestion and Air
Pollution (hereinafter "ROTCAP") (also known as the Traffic
Congestion and Pollution Relief Study, or "Traffic CPR").*fn9
FEIS at II.H-18
This study, ongoing since 1988, is part of the City's area-wide
program to address carbon monoxide problem areas, or
"hotspots".*fn10 Thus the Court must assess whether the FEIS,
and the Traffic CPR Study it cites, represent a "reasonable
attempt by the City to achieve the NAAQS as soon as possible,"
ATURA, 740 F. Supp. at 998, or whether instead the FEIS and
Traffic CPR are so deficient in this respect as to constitute a
repudiation or failure to fulfill the SIP commitment. Wilder,
659 F. Supp. at 1507.
a. Operative Date for Attaining NAAQS
Before resolving the issue of whether the Traffic CPR study
cited in the Final EIS satisfies New York's SIP commitment to
meet NAAQS for carbon monoxide, the Court must first resolve
the question it reserved ante, n. 7, of the date by which NAAQS
must be attained in light of the 1990 CAA amendments. The
State's 1984 SIP committed to implement measures to attain
NAAQS by December 1987 and maintain it thereafter. In December
1987, the City and State, not in compliance, agreed to
implement measures necessary to ensure that carbon monoxide
standards would be attained by August 31, 1988 and maintained
thereafter. They failed to make this deadline as well.
In 1990 this Court found, in another CAA lawsuit challenging
a different building project in New York City, that the
December 1987 NAAQS attainment date has given way to a de facto
extension by the EPA. ATURA, 740 F. Supp. at 997. In light of
legislation then pending in Congress which would have the
effect of extending the deadline for NAAQS compliance, the
ATURA Court found in an exercise of its equitable discretion
that the City's failure to meet the December 31, ...