Battery Park City Neighborhood Ass'n v. Battery Park City Auth.

• Decision Date: 08 February 2023
• Docket Number: Index No. 160624/2022,Motion Seq. No. 002
• Citation: 2023 NY Slip Op 30433 (U)
• Parties: BATTERY PARK CITY NEIGHBORHOOD ASSOCIATION, J. KELLY MCGOWAN Plaintiff, v. BATTERY PARK CITY AUTHORITY, Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 30433(U)

BATTERY PARK CITY NEIGHBORHOOD ASSOCIATION, J. KELLY MCGOWANPlaintiff, v. BATTERY PARK CITY AUTHORITY, Defendant.

Index No. 160624/2022, Motion Seq. No. 002

Supreme Court, New York County

February 8, 2023

Unpublished Opinion

MOTION DATE 02/03/2023

PRESENT: HON. SABRINA KRAUS, Justice

DECISION + ORDER ON MOTION

SABRINA KRAUS, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 62, 63, 64, 65, 66, 67, 68, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 were read on this motion to/for INJUNCTION/RESTRAINING ORDER .

BACKGROUND

Petitioners in this Article 78 proceeding are the Battery Park City Neighborhood Association(BPCNA) a grassroots neighborhood organization and J. Kelly McGowan, a resident of Battery Park City.

RespondentBattery Park City Authority(BPCA) is a New York State public benefit corporation whose mission is to plan, create, coordinate, and sustain Battery Park City, a 92-acre neighborhood on the west side of lower Manhattan.

In response to Superstorm Sandy, both the City of New York and BPCA began evaluating ways to improve Lower Manhattan's resilience to future storm events.

This proceeding was commenced because the parties disagree on BPCA's proposed plan for a southern portion of Battery Park City, specifically Wagner Park.

PENDING APPLICATION FOR RELIEF

On February 3, 2023, Petitioners moved for an order, pursuant to CPLR 6301, preliminarily enjoining and restraining, BPCA from undertaking the planned Wagner Park portion of the South Battery Park City Resiliency Project or conducting any construction on Wagner Park, other than routine maintenance, during the pendency of these Article 78 proceedings.

The motion was fully briefed on submitted to the court on that date and the court reserved decision.The court held a brief conference with the parties on the record on February 8, 2023, in which the parties expressed they had stipulated to extend Respondent's time to answer the petition until after a decision on the motion.The parties agreed no TRO was necessary, as Respondent stipulated to refrain from commencing work affecting Wagner Park pending an order on the motion.

For the reasons stated below, the motion is denied.

ALLEGED FACTS

Among the parks within Battery Park City is Wagner Park, comprised of 3.5 acres along the waterfront.Superstorm Sandy, which devastated New York in October 2012, significantly impacted Battery Park City, resulting in over $10M of damage for which BPCA was responsible.Wagner Park fared comparatively well in that storm due to its slope and relative elevation at its high point, however Respondent alleges that coastal modeling demonstrates that the Park would not fare as well in the face of the projected severity of future storms over the coming decades.

In response to Superstorm Sandy, both the City of New York and BPCA began evaluating ways to improve lower Manhattan's resilience to future storm events.New York City's plans for lower Manhattan were developed through the Lower Manhattan Coastal Resiliency (LMCR) Study.Planning and design for what would ultimately become the current South Battery Park City Resiliency(SBPCR) Project began in 2015.

The parties disagree as to the level of input BPCA has given the community in developing these plans.

Three potential alignments were identified for the section of the Project that runs through Wagner Park: one that ran along the water's edge, one that ran inland, and one that ran through the Park along the edge of the relieving platform that forms the waterfront esplanade.The waterfront edge alignment (Alternative 2 in the Final Environmental Impact Statement [FEIS]) was rejected because it would physically separate the Park and the community from the waterfront and would present engineering challenges.

The inland alignment also known as Alternative 1 in the FEIS, which Petitioners supported, would have involved the placement of a flood barrier along the north side of the Wagner Park lawn, leaving most of Wagner Park on the "water side" of the barrier.

BPCA rejected this alternative because it argues it would leave the majority of Wagner Park vulnerable to flooding in the 2050's 100-year storm, and the alignment would depend on many mechanical gates to be deployed in advance of a storm, which presents significant operational and reliability concerns.Finally, the existing Pavilion would have to be demolished and rebuilt to incorporate a flood barrier into its design, which BPCA asserts is undesirable for a variety of reasons.

BPCA has advanced the design of the alignment that would bury a flood wall beneath the Park (Alternative 3 in the FEIS).

Wagner Park would be elevated 10 to 12 feet, and the buried floodwall would be constructed beneath the raised park.The Project would also require the demolition of the existing Pavilion building within Wagner Park, to be replaced by a new pavilion to be constructed further inland.One of the critical aspects of the design was the calculation of the design flood elevation that must be achieved to provide the necessary flood risk reduction for the design storm.This is another area where the parties disagree with Petitioner arguing the data relied upon by Respondent is inaccurate and that said level of protection is unwarranted.

In September 2021, BPCA commenced its New York State Environmental Quality Review Act (SEQRA) review of the SBPCR Project.The Draft EIS (DEIS) issued in May 2022 sets forth the alternatives analysis undertaken by BPCA and provides analyses of the potential environmental impacts of the Project.After affording the public an opportunity to review and provide comments on the DEIS, BPCA prepared written responses to the comments received and published the FEIS in September 2022.The SEQRA process culminated in the adoption of a SEQRA Findings Statement in October 2022.

Shortly after this, Petitioners proposed an alternative 1a that would combine floodwalls and deployable measures to be surgically threaded through the Park.BPCA rejected this alternative arguing it was too risky and lacking in engineering details.

Petitioners argue Alternative 1a has several benefits including that placing the floodwall farthest from the river provides maximum inland protection from flooding with minimal disruption to the existing park; and the park can largely stay open during construction; and both the views to the water and the Statue of Liberty will be preserved.

DISCUSSION

"A party seeking a preliminary injunction must clearly demonstrate (1) the likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the injunction is not issued; and (3) a balance of the equities in the movant's favor."U.S. Re Companies, Inc v. Scheerer, 41 A.D.3d 152, 154(1st Dep't2007).This "extraordinary" and "drastic" remedy, 1234 Broadway LLC v. W. Side SRO Law Project, 86 A.D.3d 18, 23(1st Dep't2011), "should not be granted unless the right thereto is plain from the undisputed facts and there is a clear showing of necessity and justification,"O'Hara v. Corporate Audit Co., Inc., 161 A.D.2d 309, 310(1st Dep't1990).As the moving party, Petitioners bear the "particularly high" burden of establishing each necessary element for injunctive relief.Council of the City of N.Y. v. Giuliani, 248 A.D.2d 1, 4(1st Dep't1998).

Petitioners Have Not Established a Likelihood of Success on The Merits

To establish a likelihood of success on the merits, Petitioners "[a]re required to 'demonstrate a clear right to relief which is "plain from the undisputed facts.'"Mosseri v. Fried, 289 A.D.2d 545 545-46(2d Dep't2001).Petitioners' failure to satisfy this requirement requires the denial of Petitioners' request for a preliminary injunction.SeeEljay Jrs., Inc. v. Rahda Exports, 99 A.D.2d 408, 409(1st Dep't1984).

"SEQRA ensures that agency decision-makers-enlightened by public comment where appropriate-will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices."In re Jackson v. N.Y.S. Urban Dev. Corp., 67 N.Y.2d 400, 414-15(1986).Central to SEQRA is the Environmental Impact Statement (EIS) process.In re Town of Henrietta v. Dep't of Envtl. Conservation, 76 A.D.2d 215, 220(4th Dep't1980).SEQRA prescribes both the procedure that must be followed for formulating an EIS, as well as its substantive content, but SEQRA does not require an agency to act in a particular manner or to reach a particular result.SeeAldrich v. Pattison, 107 A.D.2d 258, 266-67(2d Dep't1985).

As recognized by the Court of Appeals, "it is not the role of the courts to weigh the desirability of an action or choose among alternatives but to assure that the agency itself has satisfied SEQRA, procedurally and substantively."In re Jackson, 67 N.Y.2d at 416.Judicial review of an agency's determination is therefore limited to an assessment of "'whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination.'"In re Friends of P.S. 163, Inc. v. Jewish Home Lifecare Manhattan, 30 N.Y.3d 416, 430(2017).Because "[i]t is not the province of the courts to second-guess thoughtful agency decision making . . . an agency decision should be annulled only if it is arbitrary, capricious or...