ENVIRONMENTALLY SOUND v. NYC

• Citation: 737 N.Y.S.2d 792,190 Misc.2d 359
• Court: United States State Supreme Court (New York)
• Decision Date: 10 December 2001
• Parties: In the Matter of COMMITTEE FOR ENVIRONMENTALLY SOUND DEVELOPMENT, INC., et al., Petitioners,<BR>v.<BR>CITY OF NEW YORK et al., Respondents.

190 Misc.2d 359

737 N.Y.S.2d 792

In the Matter of COMMITTEE FOR ENVIRONMENTALLY SOUND DEVELOPMENT, INC., et al., Petitioners,

v.CITY OF NEW YORK et al., Respondents.

December 10, 2001.

Michael D. Hess, Corporation Counsel, Brooklyn (Christopher F. Reo of counsel), for City of New York and others, respondents.

Robinson Silverman Pearce Aronsohn & Berman L. L. P., New York City (Herbert Teitelbaum of counsel), for Metropolitan Transportation Authority and another, respondents.

Paul, Hastings, Janofsky & Walker L. L. P., New York City (Steven Johnson of counsel), for Columbus Centre, L. L. C., respondent.

Windels Marx Lane & Mittendorf, L. L. P., New York City (James J. Periconi of counsel), for petitioners.

OPINION OF THE COURT

ROSALYN RICHTER, J.

In this CPLR article 78 proceeding, petitioners, who consist of a community environmental group and individual community members, seek to enjoin further construction of the AOL-Time Warner development project located at Columbus Circle (the project). This project, when completed, will provide the headquarters and studios for AOL-Time Warner, three separate performance venues for jazz at Lincoln Center, retail shops and restaurants, residential apartments and a hotel. Petitioners seek an order halting construction until one of the respondents herein examines the environmental impact of alleged changes in the project's size that petitioners claim were made in violation of size restrictions imposed as a result of a 1997 environmental review. In the alternative, petitioners seek an order requiring the project developer to downsize the project so that it falls within the size limitations reflected in the 1997 study. Petitioners also contend that additional environmental reviews are mandated by imminent, but not yet enacted, changes in federal law concerning carbon monoxide standards for the New York City area. In addition to requesting a stay of construction, petitioners also seek to stay, modify or annul building and construction permits which have been previously approved and issued for the project.

Respondents in this action are the developer of the project, Columbus Centre, L. L. C., (Columbus), Mayor Rudolph Giuliani, the City of New York (the City) and the New York City Department of Buildings (Buildings Department) (collectively the City respondents), and the Metropolitan Transportation Authority (MTA) and its affiliate, the Triborough Bridge and Tunnel Authority (TBTA) (collectively the Authority respondents).^[1] Each of the respondents has moved to dismiss the petition on multiple grounds. Additionally, the City respondents have moved for summary judgment. For the reasons discussed herein, the Authority respondents' motion to dismiss is granted in whole, the City respondents' and Columbus' motions to dismiss are granted in part, denied in part and held in abeyance in part pending a factual hearing, and the City respondents' motion for summary judgment is held in abeyance.

The background for this litigation stems back to 1952 when, pursuant to the Columbus Circle Redevelopment Plan, New York City acquired the area bounded by West 58th Street, West 60th Street, Ninth Avenue and Columbus Circle.^[2] A year later, the City conveyed the property to the TBTA. After the sale, the TBTA constructed the New York Coliseum on the site and operated it as a convention center. In 1985, the City and the TBTA closed the Coliseum and entered into an agreement to sell the site to Boston Properties, which had been selected to redevelop the property. The prospective sale was challenged for several years in a number of lawsuits brought in both state and federal court.^[3] In February 1989, pursuant to the State Environmental Quality Review Act, Environmental Conservation Law § 8-0101 et seq. (SEQRA), a final environmental impact statement (the 1989 FEIS) was issued relating to a proposed project for the site. In May 1989, the New York City Board of Estimate approved the development of a project which conformed to the 1989 FEIS. Despite this approval, the property was never transferred to Boston Properties and the site was never developed.

In December 1993, the City, the Authority respondents and the Transit Authority entered into a memorandum of agreement which required the City's consent to any subsequent sale or lease of the Coliseum site and gave the Mayor the power to review and consent to the site's future redevelopment. In May 1996, a supplemental memorandum of agreement provided that the Authority respondents could not designate an end user of the site without prior written approval from the City. This agreement also declared that the City has a continuing interest in having any use of the site to be consistent with the City's economic development planning and financial goals.

In July 1996, the TBTA, with the consent of the City, issued a request for proposals (RFP) which called for the development of a project different from the proposed development analyzed in the 1989 FEIS. The RFP required that the new project conform to certain urban design guidelines (the design guidelines) which, among other restrictions, limited the allowable "floor area" of any project built on the site to 2.1 million zoning square feet.^[4] Due to the fact that the new project differed from the earlier one analyzed in the 1989 FEIS, the TBTA, as "lead agency" under SEQRA, decided to prepare a supplemental environmental impact statement (SEIS). After issuing a draft SEIS and receiving comments from the public, the TBTA issued a final SEIS in July 1997 (the 1997 FSEIS). As an "involved agency" under SEQRA, the City participated in the environmental review leading up to the issuance of the 1997 FSEIS.

The 1997 FSEIS presented a comprehensive analysis of the environmental impacts of four different types of "worst-case" development scenarios, each with a maximum floor area of 2.1 million zoning square feet. The analysis focused on environmental impacts such as traffic and transportation, solid waste and energy, air quality and shadows cast by the proposed projects. The FSEIS also included an analysis of five project proposals that had been submitted in response to the RFP by entities interested in acquiring the site, including a proposal by respondent Columbus. In addition, as a result of the SEIS process, the Authority respondents added a further design guideline which, among other things, required that retail use of the site be limited to 975,000 gross square feet. In late July 1997, shortly after completion of the FSEIS, the Authority respondents adopted a statement of findings, as required by SEQRA (the SEQRA Findings), approving the sale of the site for redevelopment under the RFP. The SEQRA Findings made clear that any future development on the site must abide by the 2.1 million and 975,000 square footage limits set by the design guidelines.

Subsequent to the Authority respondents' adoption of the SEQRA Findings, the 1996 RFP was amended to add a Jazz Theater associated with Lincoln Center. Each of the five potential developers, including Columbus, submitted revised proposals which included, among other things, the Jazz Theater. Recognizing that SEQRA regulations would require the preparation of yet another SEIS if the revised proposals would result in significant adverse environmental impacts which were not adequately addressed in the 1989 FEIS and the 1997 FSEIS, the TBTA, as lead agency, proceeded to take a "hard look" at the environmental impacts of the new proposals. In July 1998, the TBTA concluded that the revised proposals did not reveal any unaddressed adverse environmental impacts such as would require the preparation of another SEIS. Accordingly, the Authority respondents approved a resolution reconfirming the SEQRA Findings.

The City, through the Office of the Mayor, conducted its own review of the revised proposals as well as a review of the TBTA's conclusion that another SEIS was not required. In a notice of findings dated July 28, 1998, and signed by Randy L. Levine, Deputy Mayor for Economic Development, Planning and Administration, the Office of the Mayor adopted written findings concerning the proposed modifications to the project. Those findings concurred with the TBTA's position that the modifications did not change the conclusions reached in the 1997 FSEIS and would not result in significant unaddressed environmental impacts.

On July 29, 1998, Columbus was chosen as the developer of the site and executed a sales agreement with the City and the TBTA to purchase the property. The sales agreement required that Columbus execute an instrument of undertakings, waivers, covenants and restrictions (the Covenant) that would require its adherence to the square footage limitations mandated by the design guidelines and the findings of the 1997 FSEIS. The Covenant contains provisions explicitly limiting the size of the entire project to 2.1 million zoning square feet,^[5] the size of commercial retail, eating and drinking and theater space to 500,000 zoning square feet and the size of the Jazz Theater to 100,000 zoning square feet. The Covenant, however, sets no limit on the overall gross square footage of the project. The City of New York is given the exclusive authority to enforce the Covenant, including the restrictions concerning the permissible square footage of the project. The Covenant specifically states that it is not enforceable by any other person or entity.^[6]

In November 1998, petitioners Committee for Environmentally Sound Development, Inc. (the Committee) and John Bunch, among others, brought an article 78 proceeding against most of the same respondents here seeking to block the proposed sale. The petitioners argued that the project did not comply with the uniform land use review procedure (ULURP), that the 1997 FSEIS did not comply with SEQRA's requirements and that the addition of the Jazz Theater required the preparation of an additional SEIS. The action was dismissed on...