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Collier Realty LLC v. Bloomberg

April 16, 2009


The opinion of the court was delivered by: Nicholas Figueroa, 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.

Petitioners seek a judgment, pursuant to CPLR 78, annulling amendments to the zoning map and zoning text (collectively, the Re-zoning) covering five distinct neighborhoods ("the Five Neighborhoods") in Far Rockaway, Queens. The challenged amendments, which revise the New York City Zoning Resolution of 1961 (the "Resolution"), were approved by the City Counsel on August 14, 2008. Petitioners, five real estate development companies, own a total of nine vacant lots within the re-zoned area.

The Re-zoning affects all or a portion of approximately 280 blocks (covering roughly 5900 tax lots) on the Rockaway Peninsula separating Jamaica Bay from the Atlantic Ocean. Zoning in the area had been largely unchanged since the Resolution was adopted some fifty years earlier. The Resolution encouraged construction of high-rise buildings and high density developments near the oceanfront, and various subsidy programs had acted as a further spur to such projects there and elsewhere on the peninsula. Nevertheless, in the half-century since the Resolution was put into effect, the Five Neighborhoods remained for the most part what they had been at the end of World War II, i.e., dominated by low-density and low-rise housing, with the relatively few single-use and multi-use commercial buildings mostly located on the area's broader streets.

In the decades since the Resolution was adopted, however, development in the Rockaways had prompted calls by residents for more restrictive zoning to assure that the essential character of the area's neighborhoods would be preserved. In the same period, there was also increasing community pressure for re-zoning to permit limited-purpose commercial establishments within residential zones to serve the residents' needs. At the same time, changing socio-economic factors contributed to a rising demand for modest relaxation of the Resolution's restrictions on the size of the footprints of houses in certain areas.

Eventually, formal applications to amend the zoning map and zoning text were prepared by the Queens office of the Department of City Planning (DCP) in light of some two years of studies and discussions with numerous civic groups and their consultants, elected officials, and developers. The applications were filed on April 16, 2008. An Environmental Assessment Statement ("EAS") was issued by the DCP on April 18, 2008, and a Negative Declaration (to the effect that the proposed amendments would not have a substantially adverse effect on the environment) was issued by the CPC on April 21, 2008.

The Re-zoning applications were referred to Queens Community Board No.14 and the Borough President, for their review and recommendations to the CPC. In May and June 2008, public hearings on the application were held by the Community Board, the Borough President, and the CPC pursuant to the mandates of ULURP. In response to comments from the public, as well as to account for certain modifications of the original proposal, the DCP issued a revised EAS, which it forwarded to the Community Board, the Borough President, and the City Council on or about July 21, 2008. The CPC also issued a revised Negative Declaration, dated July 23, 2008. Notice of both revised documents was published in the Bulletin of the Department of Environmental Conservation on August 6, 2008. The revised documents were forwarded to the Community Board, Borough President, and City Council on or about August 13, 2008. Public hearings on the proposed amendments were held before Council committees on August 12, 2008, and August 13, 2008. On August 14, 2008, the Council approved the Re-zoning.

As a threshold matter, respondents question petitioners' standing to challenge the Re-zoning.

Certain principles of standing are well established. Petitioners have standing to bring an Article 78 proceeding only if the challenged agency action has caused them an "injury in fact" (Transactive Corp. v New York State Dep't of Soc. Servs., 92 NY2d 579, 587) to an interest that the pertinent statutes were intended to protect (NY State Ass'n of Nurse Anesthetists v Novello, 2 NY3d 207, 211). Moreover, where land use is in question, the injury claimed by petitioners must be different from the harm to which the public at large is exposed (The Society of Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761, 774-75). Furthermore, in a SEQRA case, given that statute's purpose, the alleged injury must be to an environmental interest rather than solely to an economic interest (Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433), although the fact that petitioners also have an economic stake does not per se negate their standing (see The Society of Plastics Industry, Inc. v County of Suffolk, supra; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 400, 415).

It is observed that petitioners' pleading does not expressly claim that the Rezoning's alleged "adverse effect" on their lots is environmental in nature. But, as indicated above, those lots are located within the area subject to the Re-zoning. Accordingly, respondents' citations to rulings denying standing where petitioners have not expressly claimed environmental harm and own land near (i.e., outside) a subject area are inapposite. By contrast, the present Article 78 application is precisely the type for which the petitioners have standing because, as persons with interests directly affected by the challenged action, they are "presumptively aggrieved ... and do not have to plead special damages or in-fact injury" (Mobil Oil Corporation v Syracuse Industrial Development Agency, supra; Har Enterprises v Town of Brookhaven, 74 NY2d 524). Accordingly, it is concluded that petitioners have standing.

It remains to be decided, however, whether petitioners' challenge to the Re-zoning has merit. The premise of such challenge is that the Re-zoning falls short of the requirements of the State Environmental Quality Review Act (SEQRA) (Article 8 of the State Environmental Conversation Law), and the regulations thereunder, as well as the regulations promulgated pursuant to the Executive Order entitled "City Environmental Quality Review" (CEQR) (title 62, chapter 5, of the Rules of the City of New York), and the Uniform Land Use Review Procedure set forth in several sections of the City Charter. Accordingly, the petition must be evaluated by reference to the applicable statutory and regulatory mandates, as discussed below.

Petitioners maintain that the process by which the Re-zoning was vetted and approved fell short of the applicable mandates. In evaluating such an argument, a court must keep in mind that the procedural requirements of SEQRA demand strict compliance (King v Saratoga Board of Supervisors, 89 NY2d 341, 347).

With exceptions not relevant here, the DPC as "lead" agency is required to assess, disclose to the public, and mitigate any harmful environmental consequences of action that it proposes to undertake, fund, or approve (6 NYCRR 617.2[u]). If such action is in the "Type 1" category, within the meaning of section 617.4 of the general regulations, it "carries with it the presumption that it is likely to have a significant adverse impact on the environment" (6 NYCRR 617.4[a][1]). Accordingly, "there is a relatively low threshold that must be met to require the issuance of a positive declaration under SEQRA," Scenic Hudson, Inc. v. Town of Fishkill, 258 AD2d 654, 655. A "positive declaration" is a document acknowledging that proposed agency action may have a significant effect on the environment and therefore requires a vetting process, including inter alia the preparation of an Environmental Impact Statement (EIS), that is more intensive and protracted than would otherwise be the case.

DCP does not dispute that the zoning amendments at issue fall within the Type 1 category, since they involve "adoption of changes in the allowable uses within any zoning district, affecting 25 or more acres" (6 NYCRR 617.4[b][3]). As indicated above, however, the CPC, on the basis of the original EAS, issued a ...

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