Akpan v. Koch
| Decision Date | 05 April 1990 |
| Citation | 555 N.Y.S.2d 16,554 N.E.2d 53,75 N.Y.2d 561 |
| Parties | , 554 N.E.2d 53 Vernice AKPAN, et al., Appellants, v. Edward I. KOCH, as Mayor of the City of New York and as Chairperson of the Board of Estimate of the City of New York, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Plaintiffs argue on this appeal that the Board of Estimate of the City of New York, the "lead" agency for the purposes of the State Environmental Quality Review Act (SEQRA) failed to take a "sufficiently hard" look at the environmental impact of a proposed urban renewal project known as the Atlantic Terminal Project. Specifically, they contend that the Board of Estimate (BOE) failed to properly evaluate the secondary displacement of local residents which plaintiffs assert will result from approval of the project. The record demonstrates, however, that this issue was extensively examined and given a "hard look" such that the BOE was able to and did make a reasoned elaboration of the proposed project's impact upon the secondary displacement of local residents. Accordingly, the mandates of the statute have been satisfied and we therefore affirm the order of the Appellate Division.
The Atlantic Terminal Urban Renewal Area and the Brooklyn Center Urban Renewal Area were created by the City of New York in 1968 and 1970, respectively. The original urban renewal plan called for the removal of structurally unsound buildings and the construction of new housing units as well as parks and other community facilities. According to the original plan, 2,400 new housing units were to be constructed, including 1,000 units earmarked for low-income residents. Only 806 units have been constructed to date, which include only 300 units for low-income residents. The Atlantic Terminal Project (ATP), was planned in 1978 and is located on a 24-acre site which overlaps both these urban renewal areas. The ATP site is located on mostly vacant land near the Long Island Railroad Terminal in Brooklyn.
In 1985, the City, acting through the New York City Public Development Corporation, entered into a sole source agreement with defendant Rose Associates, a private developer, to develop the ATP site. The Rose proposal for the ATP site includes a mix of commercial and residential uses. When complete, the ATP is to contain 4.5 million square feet of commercial space including two large office towers, movie theaters, a supermarket and parking garages. The residential component of the ATP is to contain 641 units of condominium type housing, which is earmarked for families with annual incomes ranging from $25,000 to $48,000. The housing is to be constructed with the New York City Housing Partnership, a nonprofit organization which will apply for Federal subsidies for 273 of the 641 units. In addition, Rose estimates that another 182 units will be eligible for State subsidies under New York State's Affordable Home Ownership Program. The plan does not, however, provide for the construction of any housing targeted for low-income residents.
As required by the City's Uniform Land Use Review Procedure (New York City Charter § 197-c), several levels of municipal approval were required before the plan could be implemented. Applications were duly made by the Public Development Corporation, the Department of Housing Preservation and Development and Rose Associates for various zoning changes, including special permits and amendments to the urban renewal plan, the City map and the zoning map. Since the ATP would also impact upon the environment, final approval of the project also depended upon the results of the preparation of an environmental review and the issuance of impact statements in compliance with SEQRA and the City Environmental Quality Review Act (CEQR). In accordance with CEQR, which implements SEQRA in the City of New York, the Department of Environmental Protection (DEP) and the Department of City Planning (DCP) were designated the "co-lead" agencies concerning the ATP, with responsibility for the preparation of the necessary environmental impact statements (see, Mayoral Executive Order No. 91 § 1 [k] [Aug. 24, 1977].
Thereafter, DEP and DCP supervised the preparation of a draft environmental impact statement (DEIS). The issue of secondary displacement was raised at the preliminary "scoping" hearing, and although the issue was not expressly addressed in the DEIS, the statement did contain demographic data demonstrating a trend of "gentrification" already in progress in the neighborhood. On July 9, 1986, after a notice had been published in the New York Post, a public hearing on the DEIS was held by the City Planning Commission (CPC). After the hearing, the period for public comments remained open through July 21, 1986. At the hearing and in the subsequent public comment period, several questions, comments and opinions were raised as to the effect of the ATP on low-income housing in the surrounding area, particularly, the possibility of the secondary displacement of these residents. A draft response to these comments, prepared by outside consultants for inclusion in the final environmental impact statement (FEIS), concluded that the ATP would not cause any significant secondary displacement. Rather than merely accepting this conclusion, DCP ordered that additional information be gathered on the issue of secondary displacement. In response, outside consultants made a further inquiry and analyzed relevant data from the City's computer data bank. These consultants informed DCP that, according to the 1980 census data, the ATP study area contained 2,850 dwelling units in three-to-five-family homes and an additional 4,907 single-room occupancy (SRO) units. The census data indicated that 80% of the housing in the study area was not vulnerable to secondary displacement, either because it was protected by rent stabilization (buildings with six or more units) or because it consisted of owner-occupied one- and two-family homes. The consultants indicated, however, that not all the remaining 20% were vulnerable to secondary displacement because of a variety of factors, including (1) a 13% vacancy rate, (2) tenants in occupancy since the late 1960's were protected by rent control, (3) the likelihood that some of the buildings had already been upgraded over the past 10 years, thus precluding their occupancy by low- and moderate-income tenants, (4) virtually all the SRO units were protected by the City moratorium on the conversion or demolition of such housing then in effect, 1 and (5) in any event, a current survey of the area revealed that only 44% of the SRO units identified in the 1980 census data were in fact used as such. In addition, DCP personnel conducted an independent block-by-block survey of the study area and further confirmed that the ATP would not have a significant impact on the secondary displacement already in progress there.
Thereafter DCP and DEP concluded that the ATP would not have a significant impact on secondary displacement and, on August 8, 1986, issued a final notice of completion of the FEIS. In addition to the demographic data demonstrating the established trend toward redevelopment and higher rents in the study area, the FEIS included a "Response to Comments" chapter which expressly addressed the issue of secondary displacement. In its response to the comments regarding the issue of secondary displacement the FEIS evaluates the problem and concludes that the ATP "would not be reversing or modifying established land use and development trends" and therefore that the ATP would "not be responsible for triggering significant secondary displacement." The DEP and DCP then circulated the FEIS to the City BOE and other agencies. On August 18, 1986, the CPC approved the ATP and recommended approval by the BOE. Following another public hearing which extensively addressed the issue of secondary displacement, on October 9, 1986, the BOE approved the ATP, as well as the FEIS, zoning changes, amendments to the urban renewal plan, and the conveyance of land pertaining to it.
Plaintiffs commenced this action for declaratory and injunctive relief, seeking to annul the BOE's October 9, 1986 approval of the ATP. Supreme Court granted defendants' motion for summary judgment and dismissed the complaint in its entirety. A divided Appellate Division affirmed, 152 A.D.2d 113, 547 N.Y.S.2d 852, and plaintiffs appeal to this court as of right (see, CPLR 5601 [a].
On this appeal, plaintiffs argue that the proper lead agency, the BOE, failed to comply with both the substantive and procedural requirements of SEQRA. They contend that the BOE failed to comport with the substantive requirements of SEQRA because the agency failed to take a "hard look" at the proposed project's impact on secondary displacement and consequently failed to undertake a "reasoned elaboration" of the issue. Plaintiffs also assert a procedural violation of SEQRA, contending that the BOE improperly delegated its decision-making authority to the DEP and the DCP. Additionally, as an independent basis for reversal, plaintiffs urge that approval of the ATP was not given in accordance with a comprehensive plan for the City of New York (see, Udell v. Haas, 21 N.Y.2d 463, 469, 288 N.Y.S.2d 888, 235 N.E.2d 897).
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