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District 4 Presidents' Council v. Franchise and Concession Review Committee of City of New York

Other Lower Courts

January 30, 2008

District 4 Presidents' Council, the Citywide Council on High Schools, Eugenia Simmons-Taylor, Marcia Ortiz & Matthew Washington, Petitioners,
v.
The Franchise and Concession Review Committee of the City of New York, Michael R. Bloomberg, Mayor, Anthony Crowell, Special Counsel to Mayor Michael R. Bloomberg, William C. Thompson, Jr., Comptroller of the City Of New York, Mark Page, Director of the New York City Office of Management and Budget, Scott Stringer, President, Borough of Manhattan, Each in His Official Capacity as Member of the Franchise And Concession Review Committee of the City of New York, the New York City Department of Parks and Recreation & the City of New York, Respondents.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Shirley W. Kornreich, J.

Motion Sequences 001, 002 and 003 are hereby consolidated for disposition.

In this Article 78 proceeding, petitioners challenge a February 14, 2007 award by respondent the Franchise Concession Review Committee (FCRC) of the City of New York (City). The concession agreement, entitled "Randall's Island Sports Fields Improvement Project Agreement" (Concession), provided for the construction and operation of sports fields on parkland at Randall's Island. Petitioners claim that the Concession was a "major concession" within the meaning of the City Charter (Charter) 374(b) and its implementing regulations, 62 RCNY §§7-01 through 7-03, and should have triggered review under the City's Uniform Land Use Review Procedure (ULURP), §§197-c and 197-d of the Charter, a process that was not followed. Also before the court are motions by petitioners to amend the petition to add two new claims (Motion Seq. 002) and requesting disclosure (Motion Seq. 003).

I. Factual Background

The terms of the Concession are contained in an agreement between Randall's Island Sports Foundation (RISF), a not-for-profit corporation, the Randall's Island Fields Group, LLC (School Group), comprised of twenty private schools, and the City acting through the New York City Department of Parks and Recreation (Parks). Under the Concession, the City agreed to allocate $65,194,452.00 in its budget during the years 2006 through 2009 to pay for the construction of new sports fields on at least 12.5 acres on Randall's Island and the reconfiguration and improvement of the existing 36 sports fields and adjacent land. Respondents' Answer, verified on August 15, 2007, admitted that 12.5 acres of the land to be developed included "the Central Fields, which is currently used for parking, and ...Sunken Garden Fields, which has been unused and strewn with garbage and other debris." Answer, 60 and fn. 7. In the section of the Concession entitled "Grant of Concession," RISF is granted the right to:

upgrade and develop the Sports Fields and to use, operate, manage and maintain the Sports Fields during the period ("Concession Period") beginning on the date that upon which 75% of the Sports Fields are Substantially Complete ("Commencement Date"), and ending on the twentieth anniversary of the Commencement Date.

Concession 2.01.

Moreover, the Concession provides that RISF will give the School Group a sub-concession. In consideration of yearly payments, the School Group will receive annual permits for twenty years enabling it to use two-thirds of the Randall's Island playing fields during the peak after-school hours of 3 p.m. to 6 p.m. during the twenty- week school year (after school ). Other users, including the public schools, will be permitted to use the remaining one-third of the sports fields after school during the twenty years. The School Group will pay RISF $2,630,000.00 per year over those twenty years, and RISF will be obligated to use $400,000.00 of this amount annually to defray maintenance expenses. The yearly balance of $2,230,000.00 will be paid to the City. The Concession is dated as of June 27, 2007, but provided that its term commences April 1, 2007 and ends at the end of the "Concession Period." Concession, 2.02(a) and title page. Hence, the City is to finance construction costs of more than $65,000,000.00 in 2006 through 2009 and will receive $44,600,000.00 from the School Group over twenty years, beginning when 75% of the fields are substantially complete.

II. Discussion

A. ULURP

Section 374 of the Charter prescribes procedures that must be followed when a City agency approves a concession. [1] FCRC approval of a concession award is mandatory and, if the concession is major, it must be reviewed under ULURP. ULURP provides:

a. No city agency shall grant a concession without either complying with the procedures established by the franchise and concession review committee or obtaining the approval of the committee prior to granting the concession.

b. The city planning commission shall adopt rules that either list major concessions or establish a procedure for determining whether a concession is a major concession. A "major concession" shall mean a concession that has significant land use impacts and implications, as determined by the commission, or for which the preparation of an environmental impact statement is required by law. All major concessions shall be subject to review and approval pursuant to section one hundred ninety-seven-c and section one hundred ninety-seven-d. Charter, 374.

Section 197-c of the Charter requires that certain categories of applications for "approvals, contracts, consents, permits or the authorization thereof respecting the use, development or improvement of real property subject to city regulation" shall be reviewed pursuant to ULURP. One of the categories is a major concession under 374. Charter 197-c(a)(6).

Pursuant to 374(b), the City Planning Commission adopted regulations defining the term "major concession." 62 RCNY 7-01 et seq. Section 7-01 provides that a concession is ...


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