Akpan v. Koch

• Decision Date: 21 November 1989
• Citation: 547 N.Y.S.2d 852,152 A.D.2d 113
• Parties: Vernice AKPAN, Elva Jiminez, Joan Pleune, Ruth Young, Alice Evans, Edith Brown and 467 Pacific Street Tenants' Association, Plaintiffs-Appellants, v. Edward I. KOCH, in his capacities as Mayor of The City of New York and as Chairperson of the Board of Estimate of the City of New York; the Board of Estimate of the City of New York; Harvey Schultz, in his capacity as the Commissioner of the New York City Department of Environmental Protection; Sylvia Deutsch, in her capacities as Director of the New York City Department of City Planning and as Chairperson of the New York City Planning Commission; The New York City Planning Commission; Roger Altman, in his capacity as Chairperson of the New York City Public Development Corporation; Paul A. Crotty, in his capacity as the Commissioner of the New York City Department of Housing Preservation and Development; and Rose Associates, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 852

547 N.Y.S.2d 852

152 A.D.2d 113

Vernice AKPAN, Elva Jiminez, Joan Pleune, Ruth Young, Alice Evans, Edith Brown and 467 Pacific Street Tenants' Association, Plaintiffs-Appellants, v. Edward I. KOCH, in his capacities as Mayor of The City of New York and as Chairperson of the Board of Estimate of the City of New York; the Board of Estimate of the City of New York; Harvey Schultz, in his capacity as the Commissioner of the New York City Department of Environmental Protection Sylvia Deutsch, in her capacities as Director of the New York City Department of City Planning and as Chairperson of the New York City Planning Commission; The New York City Planning Commission; Roger Altman, in his capacity as Chairperson of the New York City Public Development Corporation; Paul A. Crotty, in his capacity as the Commissioner of the New York City Department of Housing Preservation and Development; and Rose Associates Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Nov. 21, 1989.

Roger Juan Maldonado, of counsel (John C. Gray, Jr., Jane Greengold Stevens, Raun J. Rasmussen, Russell Engler, Brooklyn, and Andrew Scherer, New York City, with him on the brief; Brooklyn Legal Services Corp. B. and Community Action for Legal Services, attorneys) for plaintiffs-appellants.

Dana Martine Robbins, of counsel (Larry A. Sonnenshein with her on the brief; Peter L. Zimroth, New York City, attorney) for the Municipal defendants-respondents.

Richard C. Seltzer and Stanley N. Alpert, of counsel (Kaye, Scholer, Fierman, Hays & Handler, New York City, attorneys) for defendant-respondent Rose Associates.

Mitchell S. Bernard and William W. Buzbee, New York City, attorneys for Natural Resources Defense Council, as amicus curiae.

Before MURPHY, P.J., and KUPFERMAN, SULLIVAN, ROSS and SMITH, JJ.

ROSS, Justice.

In order to revitalize downtown Brooklyn, the City of New York (City) created the Atlantic Terminal Urban Renewal Area and the Brooklyn Center Urban Renewal Area, in 1968 and 1970, respectively. The Atlantic Terminal Project (ATP), which was planned in 1978, overlaps both of those renewal areas, and, is located on approximately 24 acres of mostly vacant land, near the Long Island Railroad Terminal on Atlantic Avenue. Thereafter, in 1985, the City, acting through the New York City Public Development Corporation, entered into a sole source agreement with a private builder, Rose Associates (Rose), to develop this land.

The proposal, for the twenty-four acre ATP site, includes a mix of residential and commercial uses. When complete, the ATP is to contain, inter alia, 4.5 million square feet of commercial space, two large office towers, movie theaters, a supermarket, and, parking garages. Furthermore, the residential component of the ATP is to contain 641 units of condominium type housing, which is earmarked for families and individuals, whose annual income ranges from $25,000.00 to $48,000.00. This housing is to be constructed in conjunction with the New York City Housing Partnership (Partnership), a nonprofit organization, and, the Partnership is to apply for Urban Development Action grants to provide federal subsidies for 273 of the 641 units. Moreover, it is anticipated that another 182 units will be eligible for State subsidies, under New York State's Affordable Home Program.

On June 18, 1986, Community Board Number 2 recommended approval of the ATP.

A review of the environmental impact of the proposed ATP was commenced by the City, pursuant to the New York State Environmental Quality Review Act (SEQRA), which is found in the Environmental Conservation Law (ECL) § 8-0101 et seq., and, Mayoral Executive Order No. 91, dated August 24, 1977, which is also referred to as the New York City Environmental Quality Review (CEQR). CEQR implements SEQRA in the City of New York. According to the provisions of CEQR, the Department of Environmental Protection (DEP), and, the Department of City Planning (DCP), were designated as co-lead agencies concerning the ATP, with responsibility for preparation of the necessary Environmental Impact Statements.

Thereafter, the DEP and DCP, as the co-lead agencies, supervised the preparation, in accordance with the requirements of SEQRA, of a Draft Environmental Impact Statement (DEIS), and, on June 25, 1986, a notice, of a public hearing by the City Planning Commission (CPC), to be held on July 9, 1986, to consider the DEIS, was published in the New York Post. Although this public hearing was held on July 9, the period for public comments remained open through July 21, 1986. At the public hearing, several comments and opinions were raised as to the effect of the ATP on low income housing in the surrounding area, and, therefore, in order to address that concern, the CPC ordered additional surveys to be included in the Final Environmental Impact Statement (FEIS). Subsequently, the DEP and DCP issued, on August 8, 1986, a final notice of completion of the FEIS.

On October 9, 1986, following another public hearing, the Board of Estimate (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.

We recently stated, in Coalition for Responsible Planning, Inc. et al v. Koch, et al, 148 A.D.2d 230, 543 N.Y.S.2d 653 (1st Dept. June 1989), that "SEQRA does not require that every conceivable alternative must be considered before an (sic) FEIS will be considered acceptable and the degree of detail with which each alternative must be discussed will, of course, vary with the circumstances and nature of each proposal ( Webster Assoc. v. Town of Webster, 59 N.Y.2d 220, 228 [464 N.Y.S.2d 431, 451 N.E.2d 189 (1983) ]; Lincoln West v. City of New York, 94 A.D.2d 483, 491, [465 N.Y.S.2d 170 (1983) ], aff'd 60 N.Y.2d 805 [469 N.Y.S.2d 689, 457 N.E.2d 795] ..." (see, 148 A.D.2d at 235, 543 N.Y.S.2d at 656 of the opinion in Coalition for Responsible Planning, Inc. et al v. Koch, et al, supra ).

Subsequently, by summons and verified complaint, the plaintiffs, who are collectively a coalition of residents, who reside in downtown Brooklyn, near the proposed ATP, commenced, in February 1987, in the Supreme Court, New York County, an action, against various City officials and agencies, and, Rose, for declaratory and injunctive relief to annul the BOE's approval of the ATP. Our examination of the complaint indicates that, in substance, it alleges: BOE's approval violated the SEQRA, in that the lead agency is required to be the one which has the ultimate decision making power over the project; the defendants failed to consider the secondary displacement effect of the ATP on the low income residents of the surrounding areas, since the ATP will generate a significant number of new jobs, which will cause a rise in rent levels, due to the competition between the newly employed workers and existing low income residents for the scarce housing; the ATP will accelerate the displacement of low income residents, by resulting in a general rise in real estate values; the FEIS did not consider the effect of the ATP on low income families, who live in one and two family dwellings, which are not protected by either rent control or rent stabilization; and, the City defendants failed in their affirmative duty, under the New York State Constitution and statutes, to provide low income housing.

After joinder of issue, the defendants moved for summary judgment.

In a well reasoned opinion, the IAS Court granted that motion, and, dismissed the complaint. We agree.

The plaintiffs contend that the defendants' failure, in plaintiffs' opinion, to adequately provide for the housing needs of the low income residents of the ATP area, automatically means that no plan of the defendant City officials and agencies can ever be deemed to be well-considered. We reject that contention, since it is simply not the law. In Asian Ams. For Equality v. Koch, 128 A.D.2d 99, 118, 514 N.Y.S.2d 939 (1st Dept.1987), aff'd 72 N.Y.2d 121, 531 N.Y.S.2d 782, 527 N.E.2d 265 (1988), we held that when municipal authorities adopted zoning changes, as a result "of a well-considered plan that took many factors into consideration, including the needs of the low income residents of the area, and, such plan was properly adopted", those zoning changes met the demands of the law. To put it another way, there is no affirmative obligation imposed upon municipal authorities to provide for the housing needs of low income residents, which obligation is over and above that of properly adopting a well-considered plan, which meets, inter alia, environmental requirements, as enacted by the Legislature.

We endorse the position that the need for low income housing should be addressed by government, but the law does not mandate the same. In our system of government, based upon a separation of powers, the judicial role is clearly defined. Therefore, "it is not for us--as a court--to substitute our judgment for that of the Legislature ... (see Matter of Voelckers v. Guelli, 58 N.Y.2d 170, 177 [460 N.Y.S.2d 8, 446 N.E.2d 764] [1983] ..." (Asian Ams. For Equality v. Koch, supra at 117-118, 514 N.Y.S.2d 939)).

It is well-established law that a Court's review of administrative actions is strictly limited to a determination as to whether such action is arbitrary and capricious or an abuse of discretion (see, Chinese Staff and Workers v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499, 502 N.E.2d 176 (1986); and, Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429 (1986)).

The defendants' action, under SEQRA, "must be viewed in light of a rule of reason" (Jackson v. New York State Urban Dev. Corp., supra at 417, 503 N.Y.S.2d 298, 494 N.E.2d 429). The BOE has wide latitude in concluding which alternative to accept, and mere disagreement with the plan promulgated does not make its action arbitrary, capricious, unsupported by substantial...