Brooklyn Heights Ass'n, Inc. v. N.Y.S. Urban Dev. Corp.
| Decision Date | 15 February 2018 |
| Docket Number | 155641/2016 |
| Citation | 97 N.Y.S.3d 55 (Table),58 Misc.3d 1222 (A) |
| Parties | In the Matter of the Application of BROOKLYN HEIGHTS ASSOCIATION, INC., Petitioner, For a Judgment Pursuant to Article 78 and 3001 of the Civil Practice Law and Rules, v. NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a Empire State Development, Brooklyn Bridge Park Development Corporation, and Brooklyn Bridge Park Corporation d/b/a Brooklyn Bridge Park, Respondents, and RAL Development Services LLC, Oliver's Real Estate Group LLC d/b/a Oliver's Realty Group, Landing A Associates LLC, and Landing B Associates LLC, Interested Party–Respondents. |
| Court | New York Supreme Court |
Richard F. Ziegler & Matthew J. Wilkins, Jenner & Block, LLP, 919 Third Avenue, NY, NY 10022, For Petitioner
David Paget & Jonathan Kalmuss–Katz, Sive, Paget & Riesel, P.C., 560 Lexington Avenue, NY, NY 10022, for Respondents New York State Urban Development Corporation d/b/a Empire State Development and Brooklyn Bridge Park Development Corporation
Haley Stein, New York City Law Department/Office of the Corporation Counsel, 100 Church St., NY, NY 10007, For Respondent Brooklyn Bridge Park Corporation Simon Wynn
Empire State Development (in house counsel), 633 Third Ave, NY, NY 10017, For Respondent Empire State Development
Richard G. Leland & Jamie Shyman, Akerman, LLP, 666 Fifth Ave, 20th Floor, NY, NY 10103, For Interested Party Respondents
Carmen Victoria St. George, J.
In this Article 78 proceeding, petitioner Brooklyn Heights Association, Inc. (BHA) challenges the June 7, 2016 determination of respondent Brooklyn Bridge Park Corporation (BBPC) which authorized a private commercial real estate development at Pier 6 of Brooklyn Bridge Park (the Park). The other respondents are New York State Urban Development Corporation, doing business as Empire State Development (ESD), and Brooklyn Bridge Park Development Corporation (BBPDC), which is a subsidiary of ESD. The interested party-respondents are RAL Development Services, LLC (RAL), Oliver's Real Estate Group LLC doing business as Oliver's Realty Group (Oliver's), Landing A Associates LLC, and Landing B Associates LLC (collectively, the Developers). RAL and Oliver's won the contract to develop the site, and all party-respondents are involved in its construction.
BHA argues that respondents 1) bypassed legal restrictions, 2) ignored their own procedural guidelines, 3) based their decision on misinformation which BBPC management provided, 4) improperly failed to prepare a supplemental Environmental Impact Statement (SEIS), which would have reassessed the financial need for such tall buildings to sustain the Park and the impact on the overcrowded elementary schools in the community, along with other changed circumstances, 5) ignored a critical mandate to approve development only to the extent needed to support the park, 6) did not obtain the requisite modification to the General Project Plan (GPP), including the addition of permission to construct affordable housing and the addition of three floors of mechanicals on the building on Parcel B, and 7) did not provide the Brooklyn Bridge Park Community Advisory Council (Community Advisory Council) with all the documents and other information it requested. BHA alleges that respondents acted in violation of the law and rendered an arbitrary and capricious decision. As a result, it seeks an annulment of the June 7, 2016 decision, and an order directing ESD to require BBPC to comply with the portion of the GPP which only allows development to the extent necessary. In addition, petitioner seeks damages including attorney's fees under CPLR § 7806 and CPLR § 8601(a).
For the reasons set forth herein, this Court denies this Article 78 petition and dismisses the proceedings.
Brooklyn Bridge Park sits on 85 acres along 1.3 miles along the East River waterfront and was built on abandoned, deteriorated docklands which belonged to the Port Authority of New York City (Port Authority). Initially, Port Authority announced its intention to sell the piers to commercial developers, but there was strong community commitment to the redevelopment of this area in such a way as to maximize its public benefit and enjoyment, and this suggestion garnered government support. In 1992, the Downtown Brooklyn Waterfront Local Development Corporation (Local Development Corporation)1 issued "13 Guiding Principles" (Guiding Principles) relating to this proposed redevelopment. As is relevant here, guiding principle (1) (b) states that "a public entity which holds title to the site" would implement the plan. Guiding Principal 2 provides that professional groups and business, labor, civic and education leaders should be involved in discussions about the development. Guiding Principle 8 (b), upon which petitioner BHA relies heavily, states that "[t]he site shall have only so much commercial development in a park-like setting as is necessary to enliven the area, to provide security and to finance ongoing operations." Subsection (c) adds that all resulting revenues "shall be committed to the operation and maintenance of dedicated park and open space and contribute to capital development costs."
As Guiding Principle 8 suggests, a critical aspect of the Park's development has been the requirement that it, rather than the State or the City, provide the funding for the Park's development and maintenance. On May 2, 2002, Governor George Pataki and New York City Mayor Michael Bloomberg signed a Memorandum of Understanding (the MOU) which envisioned the Park as financially self-sufficient. The MOU specified that a minimum of 80% of the Park area would be developed as open space parkland and governed by the State and City laws for park properties. The MOU also created BBPDC as a subsidiary of ESD, and charged it "with developing a general project plan (GPP)." It acknowledged that the project triggered the need for an environmental study under the State Environmental Quality Review Act (SEQRA) (codified at Environmental Conservation Law [ECL] §§ 8–0101 — 8–0117 ), and that ESD, as the lead agency, would preside over the review (See ECL § 8–0111 [6 ] ). It articulated the desire for "extensive public input," including "consultation with an advisory board or local community groups," and noted that there would be a public review process as specified in the Urban Development Corporation Act.
On July 26, 2005, BBPDC produced its draft GPP. ESD and BBPDC approved a modified version of the plan on January 18, 2006. The GPP stressed the need for public recreational open spaces in Brooklyn and for "educational, cultural, recreational, community, municipal, public service or other civic facilities." The GPP stated that its goal was "to maximize parkland while creating an appropriate income stream for park maintenance" and it stressed that although the MOU allowed for up to 20% of the acreage to be developed for income-generating purposes, only 10% of the acreage would be used to generate income. It noted that the developers would make upfront and recurring payments to BBPDC rather than pay this money in taxes. The document reiterated that ESD would serve as the lead agency.
The development at issue here is at Pier 6. Atlantic Avenue, which leads to Pier 6, serves as "the southern gateway to the park." There are two lots, Parcels A and B, reserved for development. The GPP sets forth two options for the buildings on these parcels. The option that BBPC ultimately adopted reads as follows:
One building would be approximately 315 feet in height and have up to 290 units; the other building would be approximately 155 feet in height and could contain up to 140 units. This building could possibly include a ground floor retail use.
As Justice Lawrence S. Knipel noted in Save the View Now v. Brooklyn Bridge Park Corp. (2015 NY Slip Op 31047 [U] [Sup Ct, Kings County 2015], *5, aff'd , 156 AD3d 928 [2nd Dept 2017] ), the GPP "is completely silent ... as to how the height is to be measured." The decision noted the respondents' widely disseminated position that the mechanicals and other rooftop equipment were not included in the building measurement, and stated that the Brooklyn Bridge Park Community Advisory Council "appear[s] to have accepted rooftop mechanicals, but took the position that they should be as inconspicuous as possible" (Id. at 6–7 [internal quotation marks omitted] ).2
There have been several modifications to the GPP. One such modification created respondent the Brooklyn Bridge Park Corporation (BBPC) and gave it broad-based powers regarding the governance of the Park, including the power to sign ground leases and sub-leases for both Park parcels and development parcels. Further, BBPDC transferred title of any properties it owned to BBPC. The modification added that "BBPDC will assign or transfer to BBPC, or enter such other agreements with BBPC as necessary, to ensure that all... agreements currently in effect... continue in effect and all funds currently held by or for BBPDC are controlled by BBPC." In addition, the modification noted that ESD, on behalf of its subsidiary BBPDC, already had served as lead agency for the environmental review and had adopted the Final Environmental Impact Statement (FEIS). The board of BBPC also created the Brooklyn Bridge Park Community Advisory Council, which serves as a liaison between the community and BBPC.
The State laws that govern a SEQRA review are codified in the Environmental Conservation Law (ECL) §§ 8–0101 — 8–0117. Under SEQRA, "[a]ny construction project that requires state agency approval ... ‘which may have a significant effect on the environment,’ must go through a full SEQRA assessment to make sure that it is undertaken in a way that minimizes damage to the environment and public health" ( Matter of Friends of P.S. 163, Inc. v. Jewish Home Lifecare , 30 NY3d 416, –––– [2017] [...
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