Hart Island Committee v. Koch

• Decision Date: 06 November 1987
• Citation: 520 N.Y.S.2d 977,137 Misc.2d 521
• Parties: In the Matter of the HART ISLAND COMMITTEE, Plaintiff, v. Honorable Edward I. KOCH, Mayor of the City of New York, Richard J. Koehler, Commissioner of the Department of Corrections of the City of New York, Monte Kurs, Deputy Commissioner of the Division of Public Structures of the Department of General Services of the City of New York, Defendants.
• Court: New York Supreme Court

Page 977

520 N.Y.S.2d 977

137 Misc.2d 521

In the Matter of the HART ISLAND COMMITTEE, Plaintiff, v. Honorable Edward I. KOCH, Mayor of the City of New York Richard J. Koehler, Commissioner of the Department of Corrections of the City of New York, Monte Kurs, Deputy Commissioner of the Division of Public Structures of the Department of General Services of the City of New York, Defendants.

Supreme Court, New York County IAS Part 22.

Nov. 6, 1987.

Huber, Lawrence & Abell, New York City, for plaintiff.

Peter L. Zimroth, New York City, for defendants.

EDWARD H. LEHNER, Justice.

This is a motion for a preliminary injunction by a committee of City Island organizations, (Chamber of Commerce, Civic Association, Preservation Association and American Legion Post) to enjoin construction by the City of New York of a correctional facility on Hart Island. This island lies within the city, approximately one third of a mile from City Island in Long Island Sound, and is reached by ferry from a dock on City Island. City Island is reached from the Bronx mainland by a two lane bridge.

The bases for plaintiff's application are the following: 1) defendants have failed to file an Environmental Impact Statement ("EIS") prior to commencing construction, in violation of the State Environmental Quality Review Act ("SEQRA") and the City Environmental Quality Review Procedure ("CEQR"); 2) defendants have failed to comply with the City Uniform Land Use Review Procedure ("ULURP"); 3) defendants are operating a septic system in violation of the federal Clean Water Act of 1977 (33 U.S.C. §§ 1251, et seq.) and Article 17 of the State Environmental Conservation Law ("ECL"), and 4) defendants are carrying out construction in a tidal wetlands zone without a permit in violation of ECL Article 25.

The instant application is supported by various affidavits, but a complaint has not as yet been filed, which failure the defendants assert is a fatal defect in the application.

FACTS

Section 9-103 (formerly § 623(1)-2.0) of the Administrative Code of the City of New York provides that the "lands and buildings on Hart's Island shall be utilized for the segregation of prisoners transferred thereto by the commissioner of correction." The Department of Correction (the "Department") has housed inmates on the island since 1895 with the exception of three periods (1950-1954; 1966-1982, when Phoenix During the periods when prisoners were not housed on Hart Island, inmates worked there to handle burials at Potter's Field, an area on the island where unclaimed bodies are buried. Currently the Department houses 60 inmates on the island who do work on burials and cleaning.

House operated a drug rehabilitation center at the Department's facilities; and July-September 1986).

On March 26, 1987, the Board of Estimate passed both Resolution No. 58, which called for the "expansion and reopening of several modular dormitories on Hart Island" and appropriated monies therefor; and Resolution No. 73, which authorized the Department of General Services to enter into contracts (with limited competitive bidding) for the purchase and installation of four modular housing buildings of 100 beds each on the island. The latter resolution further called for the renovation of existing structures, as well as the installation and connection of utility services and improvements on the dock and waterfront necessary for the operation and occupancy of the buildings.

Although the City has not complied with ULURP, nor filed an EIS, the Mayor held a "Town Hall" meeting in the area on June 24, 1987 to explain the City's plans, and city officials have been in contact with the community board for the area.

Some of the commitments made by defendants are as follows: only the "lowest risk" prisoners, with less than 120 days remaining on their sentences, will be assigned to Hart Island; all visits to inmates will take place at the Bronx House of Detention; only two buses per day will be used to transport prisoners for such visits; and a Department shuttle bus will transport personnel to the ferry dock from a parking area on the Bronx mainland.

FAILURE TO SERVE A COMPLAINT

Defendants assert that "when the basis for the requested preliminary injunction is the same as the basis for the underlying action, a complaint must be submitted in support of the preliminary injunction motion", and cite Seplow v. Century Operating Corp., 56 A.D.2d 515, 391 N.Y.S.2d 124 in support. The essence of the holding in that case was that where the basis for the injunction is the "nature of the plaintiff's action", a complaint is required. However, here if injunctive relief were to lie, it would not be based on the nature of the action (i.e., an action seeking a permanent injunction under the second alternative ground set forth in CPLR 6301), but rather on the assertion that defendants were performing acts in violation of plaintiff's rights. Hence, the failure to serve a complaint is of no consequen in the consideration of this motion. See: Somerset Railroad Corporation v. Graham, 89 A.D.2d 819, 453 N.Y.S.2d 527; Fairfield Presidential Associates v. Pollins, 85 A.D.2d 653, 445 N.Y.S.2d 229; Taylor v. Eli Haddad Corp., 118 Misc.2d 253, 460 N.Y.S.2d 886; Siegel, New York Practice, § 329.

SEQRA

SEQRA was enacted by the legislature in 1975. The policy goals and procedures set forth therein are summarized by the Court of Appeals in Jackson v. New York State Urban Development Corporation, 67 N.Y.2d 400, 414, 503 N.Y.S.2d 298, 494 N.E.2d 429.

CEQR was promulgated by the Mayor as Executive Order 91 issued in August 1977 to implement SEQRA in the City of New York, and its provisions closely parallel the state law.

A basic determination under SEQRA and CEQR is whether an EIS is required in connection with a proposed project, the resolution of which depends on whether the project "may have a significant effect on the environment." ECL § 8-0109(2).

Here the defendants claim an exemption from filing an EIS prior to the commencement of any work under the "limited and temporary" emergency provision set forth in 6 NYCRR 617.2(q)(4), which reads as follows:

"Emergency actions which are immediately necessary on a limited and temporary A similar emergency provision is contained in CEQR.

basis for the protection or preservation of life, health, property or natural resources, provided that such actions are directly related to the emergency and are performed to cause the least change or disturbance, practicable under the circumstances, to the environment. Any decision to fund, approve or directly undertake other activities after the emergency has expired is fully subject to the review procedures of this Part."

Defendants represent that a statement is being prepared "which will enable the lead agencies to determine if the project has a significant environmental impact" requiring the preparation of an EIS.

The emergency claimed here is the overcrowding in the City prisons which in 1983 caused Federal Judge Morris Lasker to direct the release of over 600 detainees. The City asserts that since 1983 it has added 4,911 prison beds, and expects to add over 7,000 beds by 1993. In recent months Judge Lasker temporarily permitted the City to house sentenced inmates in cells under the minimum State standard of 60 square feet per person.

There is no question that the shortage of prison beds has created, and continues to create, a crisis for the City of New York, which can be said to be an emergency. It is clearly not the type of emergency that will result in imminent disaster if action is not taken forthwith. However, the creation of prison space to handle the increasing numbers of persons detained and sentenced for imprisonment in City prisons requires action, with some dispatch, to comply with the prisoners' constitutional rights and avoid another forced release of inmates.

In two cases reaching the Court of Appeals, correction officials were permitted under the aforesaid emergency regulation to commence construction prior to the filing of an EIS.

In Board of Visitors--Marcy Psychiatric Center v. Coughlin, 60 N.Y.2d 14, 466 N.Y.S.2d 668, 453 N.E.2d 1085, the court permitted renovation of a mental institution to permit its use as a correctional facility. The court noted that no action was being taken that would be irrevocable and no prisoners were to be transferred until the SEQRA process was complete. In that case the Corrections Commissioner determined that the renovation would have an impact on the environment and issued a "positive declaration" that an EIS would be issued. In commenting on the emergency regulation the court said (P. 20, 466 N.Y.S.2d 668, 453 N.E.2d 1085):

"Concededly the case now before us does not present the classic example where immediate action is required to meet an emergency in which the effect of the action may be immediately realized. There is apparently no quick solution which will immediately eliminate the problems of overcrowded jails. But that does not mean that there is no crisis or that there is no need to take immediate action to lay the foundation for a program which may provide relief in the near future. State officials confronted with an ever increasing influx of inmates into a prison system, already filled to well over 100% of capacity, can hardly be said to be acting irrationally if they conclude that some action must be taken immediately to avert in the future the violence which has occurred in the past.

Neither can it be said that the decision to take immediate...