Jackson v. New York State Urban Development Corp.

• Decision Date: 22 October 1985
• Citation: 110 A.D.2d 304,494 N.Y.S.2d 700
• Parties: In the Matter of the Application of Fannie Mae JACKSON and Larry F. Flower, Petitioners-Respondents-Appellants, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules annulling the Resolution, Determinations and Findings made with respect to the 42nd Street Development Project, v. The NEW YORK STATE URBAN DEVELOPMENT CORPORATION and the Times Square Redevelopment Corporation, Respondents-Appellants-Respondents. In the Matter of the Application of Imre J. ROSENTHAL, Stephen Rosenthal, Leonard Clark, Stephen F. Wilder, Robert Neuwirth and Lori Jean Saigh, Petitioners Respondents Appellants, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules annulling the Determination and Findings made with respect to the 42nd Street Development Project, v. The NEW YORK STATE URBAN DEVELOPMENT CORPORATION, Respondent-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 700

494 N.Y.S.2d 700

110 A.D.2d 304

In the Matter of the Application of Fannie Mae JACKSON and

Larry F. Flower, Petitioners-Respondents-Appellants,

for a judgment pursuant to Article 78 of the Civil Practice

Law and Rules annulling the Resolution,

Determinations and Findings made with

respect to the 42nd Street

Development Project, v. The NEW YORK STATE URBAN DEVELOPMENT CORPORATION and the

Times Square Redevelopment Corporation,

Respondents-Appellants-Respondents.

In the Matter of the Application of Imre J. ROSENTHAL,

Stephen Rosenthal, Leonard Clark, Stephen F.

Wilder, Robert Neuwirth and Lori Jean

Saigh,

Petitioners

Respondents

Appellants,

for a judgment pursuant to Article 78 of the Civil Practice

Law and Rules annulling the Determination and

Findings made with respect to the 42nd

Street Development Project, v. The NEW YORK STATE URBAN DEVELOPMENT CORPORATION,

Respondent-Appellant-Respondent.

Supreme Court, Appellate Division,

First Department.

Oct. 22, 1985.

Stephen L. Kass, Stephen J. Ritchin and Carol A. Buckler, New York City, of counsel (Berle, Kass & Case) for respondents-appellants-respondents.

Wayne G. Hawley, New York City, of counsel (Jonathan A. Weiss and Norman Siegel, with him on brief; Legal Services for the Elderly and MFY Legal Services, Inc.) for petitioners Jackson and Flower.

Norman Dorsen and LeBoeuf, Lamb, Leiby & MacRae, New York City, for petitioners Rosenthal. Warshaw Burstein Cohen Schlesinger & Kuh, New York City, for petitioner Leonard Clark.

Lankenau, Kovner & Bickford, New York City, for petitioners Wilder, Neuwirth and Saigh.

Before SANDLER, J.P., and CARRO, ASCH, MILONAS and KASSAL, JJ.

CARRO, Justice.

These are cross-appeals from a judgment (denominated an order and judgment) of the Supreme Court, New York County (Robert E. White, J.), entered July 12, 1985, in two consolidated Article 78 proceedings, which determined the extent of respondent-appellant New York State Urban Development Corporation's (UDC) compliance with relevant statutes in analyzing the environmental impact of its proposed 42nd Street Development Project (the Project). Respondent-appellant UDC appeals from so much of the judgment as held that the UDC was arbitrary and capricious in approving the project without specifically considering its potential impact on the New York City Water Tunnel No. 1 (water tunnel) and in not submitting to public scrutiny various changes in the building plan of the hotel portion of the Project. It also appeals from so much of the judgment as vacated UDC's approval of the Project, remanded the matter to UDC with directions to prepare an amended environmental impact statement assessing the Project's impact on the water tunnel, enjoined UDC from proceeding with the Project until such was completed, and enjoined UDC from making any changes in the Project without first submitting such changes to public scrutiny.

Petitioners-cross-appellants Rosenthal et al. appeal from so much of the judgment as dismissed their challenges to the UDC's analysis of the Project's impact on traffic, air quality and archaeological sites and their claims of certain procedural defects in UDC's environmental review of the Project's impact. Petitioners-cross-appellants Fannie Mae Jackson and Larry F. Flower appeal from so much of the judgment as dismissed in its entirety their petition, which sought to compel UDC to adopt more effective measures to mitigate the impact the Project will have an increased gentrification in the Clinton neighborhood and to conduct a specific study of the Project's impact on Clinton's elderly citizens.

Before addressing the merits of these various claims it is appropriate to provide some background information on the relevant statutes in this case. In 1968, the New York State Urban Development Corporation Act (UDCA) was enacted for the express purposes of promoting a vigorous and growing economy, ameliorating blighted and deteriorating areas throughout the State, and supplying adequate and safe dwelling accommodations for families of low income. McKinney's Unconsolidated Laws, § 6251 et seq. Toward this end a corporate governmental agency, the UDC, was created and endowed with broad powers to plan and implement projects which will achieve these goals. In cooperation with the City of New York, a project was planned to rehabilitate and develop approximately 13 acres of blighted, crime-ridden, and under-developed land on West 42nd Street near Times Square. The Project proposes to replace the area's present structures with four high-rise office towers, a hotel and a wholesale merchandise mart, to renovate eight theaters and to modernize the Times Square subway station. The Project's aim is to eliminate the blight, crime and decay that have so long marked the area and to restore the area as an entertainment and commercial center, thus increasing the area's economic contribution to the City.

In undertaking this project UDC was required to comply not only with the UDCA but also with the New York State Historic Preservation Act of 1980 (SHPA) (Parks, Recreation and Historic Preservation Law, Article 14), the New York State Eminent Domain Procedure Law (EDPL) and, most importantly, the State Environmental Quality Review Act (SEQRA) (ECL § 8-0101 et seq. ) SEQRA and its implementing regulations delineate procedures whereby the agency proposing a project incorporates into its planning, review and decision-making process the consideration of the project's environmental impact at the earliest stage possible so as to minimize to the greatest degree possible any adverse environmental consequences. Aldrich v. Pattison, 107 A.D.2d 258, 263, 486 N.Y.S.2d 23. These procedures first require the agency to determine whether the project would have a significant effect on the environment and if so, to prepare a draft environmental impact statement (DEIS) on the project's anticipated environmental effects. This DEIS is circulated and a public hearing held on it. The agency then prepares and circulates a final environmental impact statement (FEIS) which reflects the public's comments. On the basis of the FEIS, the agency is then to make specific environmental findings before approving the project.

As to its substance, the purposes of the FEIS is

to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action.

ECL § 8-0109(2). The Act broadly defines "[e]nvironment" to include "land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character." ECL § 8-0105(6).

The Act also takes a hard stand on the state or local agencies' obligations to mitigate adverse effects, requiring that they

use all practicable means to realize the policies and goals set forth in this article, and ... choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process.

ECL § 8-0109(1).

It is apparent that the role of the FEIS is not merely to serve as a disclosure statement of the environmental impact of a project, but, more importantly, it serves as "an aid in an agency's decision making process to evaluate and balance the competing factors[,]" Matter of Town of Henrietta v. Dept. of Environmental Conservation, 76 A.D.2d 215, 222, 430 N.Y.S.2d 440, and an aid in choosing those alternatives which, consistent with the goals of the project, to the maximum extent practicable minimize the adverse environmental effects.

To effectuate the statute's language of administering the State's policies "to the fullest extent possible" (ECL § 8-0103[6] ), the courts of this State have required literal compliance with the procedural requirements of SEQRA. Aldrich v. Pattison, supra, 107 A.D.2d at 264, 486 N.Y.S.2d 23; Matter of Environmental Defense Fund, Inc., et al. v. Flacke, 96 A.D.2d 862 at 862, 465 N.Y.S.2d 759; Matter of Rye Town/King Civic Assn. v. Town of Rye, 82 A.D.2d 474, 480, 442 N.Y.S.2d 67, appeals dismissed, 55 N.Y.2d 747, lv. app. dismissed as untimely, 56 N.Y.2d 985, 453 N.Y.S.2d 682, 439 N.E.2d 397.

The applicable judicial standard for reviewing an agency's substantive determinations on environmental matters is that standard of review typically applied to other Article 78 proceedings. The courts will overturn an agency's determinations only when they are arbitrary and capricious or unsupported by substantial evidence. Aldrich v. Pattison, supra, 107 A.D.2d at 267, 486 N.Y.S.2d 23; Matter of Environmental Defense Fund v. Flacke, supra, 96 A.D.2d at 862, 465 N.Y.S.2d 759; Town of Hempstead v. Flacke, 82 A.D.2d 183, 187, 441 N.Y.S.2d 487. This standard of review also incorporates the general rule of giving deference to the exercise of reasonable discretion by administrative agencies and does not permit the court to determine the merits of the project. However, the court is obliged to determine whether the agency has complied with the applicable law, identified the relevant areas of environmental concern, taken a "hard look" at them and made a reasoned elaboration of the basis for its determinations. See Aldrich v. Pattison, supra, 107 A.D.2d at 265, 486 N.Y.S.2d 23, and cases cited therein. So long as the agency has taken this "hard look," the court will not substitute its own determinations and thereby intervene in the area of discretion granted the agencies. Coalition against Lincoln West, Inc., et al v. City of New York, 94 A.D.2d 483, 492, 465 N.Y.S.2d 170, quoting National Resources Defense Council v. Morton...