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Windsor Owners Corp. v. City Council of City of New York

January 15, 2009

IN THE MATTER OF THE APPLICATION OF WINDSOR OWNERS CORPORATION, PETITIONER, FOR A JUDGMENT UNDER ARTICLE 78 AND RULE § 3001 OF THE NEW YORK CIVIL PRACTICE LAW AND RULES
v.
THE CITY COUNCIL OF THE CITY OF NEW YORK, NEW YORK CITY PLANNING COMMISSION AND EAST RIVER REALTY COMPANY AND SHELDON H. SOLOW, RESPONDENTS.



The opinion of the court was delivered by: James A. Yates, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Pursuant to CPLR Article 78, Petitioner challenges the City Planning Commission's January 28, 2008 determination, and the City Council's March 26, 2008 decision approving plans for development in Manhattan. The City Respondents granted zoning text amendments, zoning map amendments, and special permits to Co-Respondent, East River Realty Company (ERRC). ERRC seeks to develop the former*fn1 Consolidated Edison (Con Edison) site along First Avenue in Manhattan.

Windsor contends the City violated the Open Meetings Law (Public Officers Law § 100 et seq.) during its December 5, 2007 public hearing on ERRC's development proposal. It also argues the ERRC proposal was modified substantially, warranting a new public hearing. Windsor seeks judgment (1) annulling the January 28, 2008 and March 26, 2008 resolutions, (2) remanding the determinations for de novo review, and (3) directing ERRC to provide certain monies for past expenses and a fund for future damages and indemnification.

For the following reasons, the petition is denied, pursuant to the Open Meetings Law (Public Officers Law § 100 et seq.), New York City Charter § 197-c, and 62 RCNY § 2-06 (c).

Background

In 2005, ERRC acquired four tracts of land from Con Edison in mid-town Manhattan. The properties are Con Edison's former sites for steam and electrical plants, along First Avenue, between East 35th and 41st Streets. The land is now vacant. ERRC intends to transform this former industrial site into a residential and commercial development.

A. The Development

The development on two sites would total 9.7 acres containing approximately five million zoning square feet of floor area. It would consist of six residential towers totaling approximately 3.5 million square feet and 4137 new dwelling units. The development would also include one commercial tower of approximately 1.37 million square feet, over 70,000 square feet of retail space, 1557 parking spaces, 4.8 acres of open space, and a new public school.

To accomplish this goal, the land needs to be re-zoned from its former manufacturing designation to new designations allowing commercial and residential development. ERRC, therefore, applied to the New York City Planning Commission (Commission) to amend the City's Zoning Resolution and Zoning Map. ERRC also sought special permits and certifications.

B. Land Use and Environmental Reviews

ERRC's applications were subject to environmental review under the New York City Charter's Uniform Land Use Review Procedure (ULURP), the State Environmental Quality Review Act (Environmental Conservation Law § 8-0101 et seq. [SEQRA]), the State's regulations under SEQRA (6 NYCRR part 617), and the City's rules and procedures for implementing SEQRA, entitled City Environmental Quality Review (Executive Order No. 91 [62 RCNY 5-01 et seq.]).

The Commission acted as the lead agency and performed the environmental analysis of the development. It needed to determine whether an environmental impact statement (EIS) was necessary, to ensure its completeness, and to conduct public review. On January 20, 2006, the Commission defined the subjects for study in the draft supplemental EIS (DSEIS). It held public meetings on this draft scope of work on March 28, 2006, and May 16, 2006. ERRC's consultants then prepared a comprehensive DSEIS. On August 14, 2006, the Commission issued its final scope of work. The City's Department of City Planning (DCP) certified the applications, including the DSEIS, as complete on August 27, 2007.

The DCP then referred the applications and DSEIS to the Manhattan Community Board No. 6 (CB 6) and Manhattan Borough President. CB 6 held a public hearing on September 20, 2007, and recommended conditional disapproval. On November 2, 2007, CB 6 and the Borough President received ERRC's modified applications. The Borough President also recommended conditional disapproval on November 28, 2007.

On December 5, 2007, at 10 A.M., the Commission held a public hearing on the applications and DSEIS in Spector Hall at 22 Reade Street. Approximately a hundred people attended the hearing. Those who could not fit into the hall sat in the building's lobby, which was equipped with a video broadcast where they could view and listen to the proceedings. About fifty people spoke at the hearing, and all who wished to testify had the opportunity.

ERRC prepared a final supplemental EIS (FSEIS) after receiving oral and written public comments. The Commission accepted it and issued a notice of completion on January 18, 2008. The FSEIS included possible alternatives to the Project, including a plan proposed by CB6 pursuant to New York City Charter § 197-a. On January 28, 2008, the Commission approved the ERRC applications and the CB 6 197-a plan, both with a number of changes.

The City Council (Council) then reviewed the Commission's findings. On February 25, 2008, the Council held a public hearing on those findings. On March 12, 2008, the Council's Land Use Committee held a public meeting. It proposed modifications, and remanded the matter to the Commission on March 14, 2008. On March 17, 2008, the Commission held a public meeting to consider whether the modifications raised environmental issues requiring further review. On March 24, 2008 The Commission determined it did not. Two days later, on March 26, 2008, the Council approved the Commission's findings as modified.

C. The Final Determinations

The final determinations re-zoned the sites. Previously, the sites allowed industrial uses and prohibited residential uses. Under the final determinations, the sites allowed high-density residential, commercial, and community facility uses. The City also granted special ...


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