Neville v. Koch
| Decision Date | 05 May 1992 |
| Parties | , 593 N.E.2d 256 In the Matter of Gricel NEVILLE et al., Appellants, v. Edward I. KOCH, as Mayor of the City of New York and Chairperson of the Board of Estimate of the City of New York, et al., Respondents, and Silverstein Properties, Inc. et al., Intervenors-Respondents. |
| Court | New York Court of Appeals Court of Appeals |
The agency "action" triggering the Environmental Impact Statement (EIS) in issue on this appeal is a legislative act--New York City's proposed rezoning of a full City block located on West 42nd Street (the Site), from medium-density manufacturing to high-density commercial and residential. Petitioners' challenge calls upon us to answer two questions. First, where at the time of rezoning there were no actual projects yet proposed for the Site and SEQRA review was premised on hypothetical uses, was it proper to approve the rezoning unconditionally, or should it have been subject to further review based on later specific projects? Second, was the review adequate with respect to offsite displacement? 1
We conclude that the City's environmental review in both respects satisfied SEQRA, and that the Appellate Division order approving the rezoning should be affirmed.
Presently a grade-level, 600-car parking lot, the Site is part of the Special Clinton District, a designation created in 1974 in response to community concern over several major projected developments in the area (see, N.Y. City Zoning Resolution § 96.00 et seq.). The 1974 Zoning Resolution creating the special district was intended to preserve the character of the core residential area while promoting the most desirable land use and protecting the City's tax revenues, by directing future development to underutilized sites at the community's perimeter (see, "The Special Clinton District: Planning and Zoning Study," at 1 [1985]; see also, Asian Ams. for Equality v. Koch, 72 N.Y.2d 121, 129, 531 N.Y.S.2d 782, 527 N.E.2d 265 [special districts]; Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 419, 503 N.Y.S.2d 298, 494 N.E.2d 429).
To accomplish these goals, the district--bounded by Eighth to Twelfth Avenues and 41st to 58th Streets--was subdivided into five areas: preservation, perimeter, mixed use, excluded and "other." The Site was initially located in the district's "other" area, governed by the underlying zoning designation M2-3 (medium-density manufacturing), and later included in the "perimeter" area.
In 1984, while the Jacob Javits Convention Center--just two blocks south of the Special Clinton District--was under construction, the Department of City Planning (DCP) issued a study entitled "The Convention Center Area: Recommendations for Land Use, Zoning and Development," designed to identify land use and development strategies that would support the Convention Center and complement current area land uses. Included in this report was a recommendation that the Site be rezoned from M2-3 to C6-4 (high-density commercial and residential) to allow "mixed-use development at substantially increased density." Rezoning would complete the "42nd Street Corridor," an area along 42nd Street running from the East River to the Hudson River, zoned C6-4 or other designation authorizing development of equal or greater density.
After DCP's recommended rezoning, Silverstein Properties, Inc. 2 acquired the Site and formulated plans for a 1,600-unit residential development, but changes in the real estate market caused it to abandon the proposal. Silverstein had no actual project in April 1988, when it applied for rezoning from M2-3 to C6-4.
Under the City's environmental review procedure, DCP and the Department of Environmental Protection (DEP) act as co-lead agencies. The agencies worked with Silverstein's experts in preparing a 700-page Draft Environmental Impact Statement (DEIS).
The Site's M2-3 zoning classification entitled the owner to construct a medium manufacturing facility with a floor area ratio (FAR) of two (see, N.Y. City Zoning Resolution § 41-12). 3 A C6-4 classification allows a wide range of retail, commercial, amusement, residential and mixed uses (see, N.Y. City Zoning Resolution § 31-16). If rezoned from M2-3 to C6-4, the Site would have a 10 FAR minimum, with a 12 FAR maximum available if the owner met certain bonus requirements. The rezoning would also entitle Silverstein to receive a building permit "as of right" for any of the C6-4 uses approved in the Zoning Resolution. 4
When the action subject to environmental review is a rezoning, the City as a matter of policy requires that the EIS include analysis of a project reflecting what the City considers a reasonable full build-out of the allowable floor area. According to the City, this procedure is followed even where the applicant proposes a project that is less dense than allowed as-of-right under the requested zoning. In that event, a conceptual project using the maximum allowable zoning square feet is treated as the project, with the actual proposal viewed as an alternative. In that manner, the City seeks to insure that the full range of what it considers reasonable as-of-right development is subject to environmental review.
Following this policy, DCP and DEP elected to study the environmental impact of four hypothetical "worst case" scenarios. The four conceptual programs described in the EIS comprise two basic designs: a two-tower office plan and a four-tower residential plan, with each plan studied at 10 and 12 FAR levels.
The DEIS addressed the impact the hypothetical projects would have on land use, zoning and neighborhood characteristics; urban design; demographics, economics and secondary displacement; community resources; open space and recreational facilities; waterfront revitalization; transportation; air quality; noise; utilities; and energy resources. In addition to the four full-build hypothetical projects, DCP and DEP included five alternatives showing particular impacts as well as a "no build" hypothetical. Finally, the DEIS included recommended mitigation measures, and discussed irretrievable commitments of resources.
In November 1988, DCP and DEP issued a Notice of Completion of the DEIS and made copies available to the public (6 NYCRR 617.10[c], [d]. Community resistance to the proposed rezoning was voiced at public hearings held in January and February 1989; the EIS was then expanded to respond to public comments, particularly with respect to offsite displacement. A Notice of Completion of the Final Environmental Impact Statement (FEIS) (6 NYCRR 617.10[f] followed several months later. The EIS concluded that "[n]o project allowed in the C6-4 zone would have impacts greater than those discussed in the EIS for the worst case developments."
Although acting to assist the Board of Estimate in the review process, the DCP and DEP had no decisionmaking authority. Rather, the Board of Estimate--at that time charged with responsibility as lead agency--had final authority with respect to use, development and improvement of City land, including changes in the Zoning Resolution (see, Akpan v. Koch, 75 N.Y.2d 561, 574-575, 555 N.Y.S.2d 16, 554 N.E.2d 53; Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 532 N.E.2d 1261).
Prior to final determination by the Board of Estimate, Silverstein agreed to a "Restrictive Declaration" imposing certain design restrictions on any future project and obligating it to cooperate in proposed mitigation measures; the owner was also limited to the development bonuses available in the Special Clinton District's "perimeter" area. In an "Easement and License" agreement, Silverstein granted the City an easement over a portion of the Site for use as a new right-turn lane from Twelfth Avenue onto 42nd Street. On May 4, 1989, at a public hearing before the Board of Estimate, it was revealed that the Manhattan Borough President had secured an additional restriction governing a stepdown in height approaching Twelfth Avenue for any project on the Site, to ensure that development remained consistent with the City's planned westside roadway and esplanade as well as its general plan for development of the waterfront area.
At the close of the hearing--four years after inception of the environmental review process--the Board of Estimate resolved unanimously to approve the rezoning. As the resolution recites, the actions approved were the ones that minimized or avoided adverse environmental impacts to the maximum extent practicable, and the adverse impacts revealed in the EIS would be minimized or avoided by incorporating as conditions to the decision the mitigation measures identified as practicable (see, 6 NYCRR 617.9[c][3], [4].
Petitioners, seven Clinton residents and the owner of a small business in the area, brought this CPLR article 78 proceeding challenging the Board of Estimate's action. Supreme Court rejected their challenge, concluding that the Board of Estimate had taken the required "hard look" at the potential impact of the rezoning on secondary displacement as well as other environmental concerns required by SEQRA. While refusing to invalidate the action, the court held that no future construction could take place on the Site "that is in any way different from the four conceptual 'worst case' scenarios set forth in the EIS, other than similar projects smaller in size, unless and until the...
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