Young/Sommer LLC, Albany, NY (Jeffrey S. Baker and Allyson M.
Phillips of counsel), for appellants.
Sive,
Paget & Riesel, P.C., New York, NY (David Paget, Steven
Barshov, and Jonathan Kalmuss-Katz of counsel), for
respondents Brooklyn Bridge Park Corporation, New York State
Urban Development Corporation, doing business as Empire State
Development Corporation, and Brooklyn Bridge Park Development
Corporation, and Zachary W. Carter, Corporation Counsel, New
York, NY (Richard Dearing, Michael Pastor, and Elina Druker
of counsel), for respondents City of New York and Brooklyn
Bridge Park Corporation (one brief filed).
Herrick, Feinstein LLP, New York, NY (Scott E. Mollen, Avery
S. Mehlman, and Adam J. Stein of counsel), for respondents
Toll Brothers Real Estate, Inc., and Starwood Mortgage
Capital, LLC.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeals
from two orders of the Supreme Court, Kings County (Lawrence
Knipel, J.), dated June 10, 2015, and September 21, 2015,
respectively. The order dated June 10, 2015, denied the
plaintiffs' motion to preliminarily enjoin certain
construction allegedly in violation of applicable height
limitations. The order dated September 21, 2015, insofar as
appealed from, upon renewal of the plaintiffs' motion to
preliminarily enjoin certain construction, adhered to the
original determination denying that motion, granted the
defendants' separate motions pursuant to CPLR 3211(a)(5)
to dismiss the complaint insofar as asserted against each of
them as untimely, and denied that branch of the
plaintiffs' cross motion which was for leave to amend the
complaint.
ORDERED
that the appeal from the order dated June 10, 2015, is
dismissed, as that order was superseded by so much of the
order dated September 21, 2015, as was made upon renewal; and
it is further, ORDERED that the order dated September 21,
2015, is affirmed insofar as appealed from; and it is
further, ORDERED that one bill of costs is awarded to the
defendants appearing separately and filing separate briefs.
These
appeals involve the development of buildings upland of Pier 1
in Brooklyn Bridge Park containing a hotel, restaurant, and
residential units. In 2005, Brooklyn Bridge Park Development
Corporation (hereinafter BBPD) and Empire State Development
Corporation (hereinafter ESD) adopted a General Project Plan
for the park which would override local zoning regulations.
They conducted an environmental review of the plan under the
State Environmental Quality Review Act (ECL art 8;
hereinafter SEQRA), during which community members expressed
concern that the new development not block the existing views
of the Brooklyn Bridge roadbed from the Brooklyn Promenade.
The final environmental impact statement (hereinafter FEIS)
limited the northern building to a height of 100 feet, and
the southern building to a height of 55 feet. The northern
building would be substantially similar in height to the
existing Cold Storage buildings it would replace and would
not significantly block existing views of the Brooklyn Bridge
from the Brooklyn Promenade. The FEIS provided that
"[a]ny required parapet and mechanical equipment would
be included in the proposed building envelope." BBPD and
ESD approved the plan and thereafter adopted a Modified
General Project Plan (hereinafter MGPP), which stated that
"[t]he residential and hotel uses would be located in
two buildings, one of approximately 55 feet and one of
approximately 100 feet in height."
Brooklyn
Bridge Park Corporation (hereinafter BBP) was established to
assume responsibility for the planning, construction,
maintenance, and operation of the park. In July 2010, the
City of New York, ESD, BBPD, and BBP entered into a project
agreement. In 2011, BBP released a request for proposals to
solicit designs for the buildings. In response to developer
questions concerning the height limitations of the MGPP, BBP
issued an amendment to the request for proposals, stating
that the height limitations would be measured from the base
plane and "[t]he height attributed to rooftop mechanical
equipment and other Permitted Obstructions will be treated in
a manner consistent with the NYC Zoning Resolution, "
which generally allows certain permitted obstructions such as
bulkheads and mechanical equipment to penetrate maximum
height limits. Design proposals were received and community
comments were received thereon. On June 19, 2012, the BBP
Board selected a developer and approved the execution of
development leases. Presentations of the working designs were
made to community groups which showed various rooftop
structures extending over the height limitations of the MGPP.
Following Hurricane Sandy in October 2012, the designs were
amended to reflect a higher base plane. Measurement of the
buildings was made from the new base plane, thereby raising
the height of the buildings an additional approximate four
feet.
Building
plans were filed with the Department of Buildings
(hereinafter DOB) in March 2013, which showed a
30.1-foot-tall bulkhead on the northern hotel building. Final
plans were thereafter submitted to BBP for review. BBP
purportedly approved the northern building design plans on
July 30, 2013, and ESD purportedly approved them on September
12, 2013. After consultation with ESD, BBP purportedly
approved final plans for the southern building on December 4,
2013. Building permits were issued by DOB between December 2,
2013, and June 12, 2014. Construction commenced in July 2013.
In September 2013, the project architect presented the final
designs to community groups, although revised plans were
filed with the DOB thereafter. On September 10, 2014, the
northern hotel building reached its maximum height. Around
this time, members of the community began to object that the
height of the northern hotel building violated the MGPP and
was obstructing the view of the roadbed of the Brooklyn
Bridge from the Brooklyn Promenade. In response, BBP took the
position that construction complied with the height
limitations of the MGPP. In late December 2014, the plaintiff
Save the View Now was formed. Over the next few months, it
met and corresponded with BBP concerning the height
limitations, seeking to halt construction of the hotel. As a
result, BBP submitted the plans for the southern building to
DOB to review for compliance with the Scenic View District.
However, it did not take any action with respect to the
height limitations of the MGPP, and adhered to its position
that the buildings were in compliance with the height
limitations.
On or
about April 21, 2015, the plaintiffs commenced this action
seeking a judgment declaring, inter alia, that the buildings
were being constructed in excess of their height limitations
in violation of the MGPP, permanently enjoining construction
of any portion of the buildings that violated the MGPP, and
directing the defendants to remove any parts of the buildings
which violated the MGPP. The plaintiffs moved for a
preliminary injunction halting any construction in excess of
the height limitations, as measured from the sidewalk. In an
order dated June 10, 2015, the Supreme Court denied the
plaintiffs' motion, determining, among other things, that
the action was untimely commenced. The defendants thereafter
separately moved pursuant to CPLR 3211(a)(5) to dismiss the
complaint insofar as asserted against each of them as
untimely. The plaintiffs cross-moved for leave to renew their
motion for a preliminarily injunction and for leave to amend
the complaint. In an order dated September 21, 2015, the
court granted leave to renew and, upon renewal, adhered to
its original determination denying their motion for a
preliminary injunction. The court granted the defendants'
motions to dismiss the complaint as untimely, and denied that
branch of the plaintiffs' cross motion which was for
leave to amend the complaint. The plaintiffs appeal.
An
action for a declaratory judgment is generally governed by a
six-year statute of limitations (see CPLR 213[1]).
However, where a declaratory judgment action involves claims
that could have been made in another proceeding for which a
specific limitation period is provided, the action is subject
to the shorter limitations period (see Solnick v
Whalen, 49 N.Y.2d 224, 229-230; Town of Hempstead v
AJM Capital II, LLC, 130 A.D.3d 607, 608). Where an
action could have been brought pursuant to CPLR article 78,
the four-month statute of limitations applicable to such
proceedings applies (see CPLR 217[1]; Matter of
Banos v Rhea, 25 N.Y.3d 266, 276; Lenihan v City of
New York, 58 N.Y.2d 679, 682; Matter of Sutherland v
New York State Dept. of Envtl. Conservation, 122 A.D.3d
759).
A
proceeding pursuant to CPLR article 78 may be brought to
review a determination of a public body or officer which is
"final and binding upon the petitioner" (CPLR
217[1]; see CPLR 7801[1]). There are two
requirements for fixing the time when agency action is final
and binding upon the petitioner: "First, the agency must
have reached a definitive position on the issue that inflicts
actual, concrete injury and second, the injury inflicted may
not be prevented or significantly ameliorated by further
administrative action or by steps available to the
complaining party" (Matter of Best Payphones, Inc. v
Department of Info. Tech. & Telecom. of City of
N.Y., 5 N.Y.3d 30, 34). A determination is final and the
statute of limitations begins to run when the agency's
"definitive position on the issue [becomes] readily
ascertainable" to the complaining party (Matter of
Riverkeeper, Inc. v Crotty, 28 A.D.3d 957, 962; see
New York State Assn. of Counties v Axelrod, 78 N.Y.2d
158, 165; Matter of School Adm'rs. Assn. of N.Y.
State v New York State Dept. of Civ. Serv., 124 A.D.3d
1174, 1176-1777), so that the petitioner knew or should have
known that it was aggrieved (see Matter of Zimmerman v
Planning Bd. of Town of Schodack, 294 A.D.2d 776, 777;
McComb v Town of Greenville, 163 A.D.2d 369).
Here,
the Supreme Court properly determined that this action could
have been brought as a proceeding pursuant to CPLR article 78
to review BBP's and ESD's approval of construction
allegedly in violation of the MGPP (see CPLR
7803[3]; Matter of Valachovic v Constantino, 137
A.D.2d 945, 946). Although the plaintiffs are correct that
the defendants failed to submit proof establishing the dates
of the relevant approvals of construction which incorporated
rooftop structures over the height limitations listed in the
MGPP and measurement of building height from the revised base
plane following Hurricane Sandy, or that the public was
notified of these approvals, the approval of construction
allegedly in excess of the height limitations in the MGPP was
readily ascertainable by the plaintiffs, at the latest, by
September 10, 2014, when the northern building reached its
maximum height (see Matter of Zimmerman v Planning Bd. of
Town of Schodack, 294 A.D.2d at 777). Further, the
plaintiffs failed to establish that the defendants should be
estopped from asserting the statute of limitations as a
defense (see Zumpano v Quinn, 6 N.Y.3d 666,
673-674). The communications between the plaintiffs and BBP
were insufficient to justify an estoppel, since the
government defendants did not lull the plaintiffs into
believing that they would take any action with regard to the
height limitations of the MGPP such that the plaintiffs'
claims would be resolved without the need for litigation
(see Terry v Long Is. R.R., 207 A.D.2d 881, 882;
cf. Roscigno v Town of Mount Kisko, 210 A.D.2d 573,
574). Accordingly, this action, commenced seven months later,
was untimely (see CPLR 217[1]; Solnick v
Whalen, 49 N.Y.2d at 233). Therefore, the Supreme Court
properly granted the defendants' motions to dismiss the
complaint as untimely, denied that branch of the
plaintiffs' cross motion which was for leave to amend the
complaint (see Calamari v Panos, 131 A.D.3d 1088,
1091), and, upon renewal, adhered to its original
determination denying the plaintiffs' motion to
preliminarily enjoin certain construction (see CPLR
6301; Aetna Ins. Co. v Capasso, 75 N.Y.2d 860, 862).
The
references by the City and BBP in their brief to matter that
is dehors the record have not been considered by this ...