Waybro Corp. v. Board of Estimate of City of New York
| Decision Date | 08 May 1986 |
| Citation | 67 N.Y.2d 349,493 N.E.2d 931,502 N.Y.S.2d 707 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | , 493 N.E.2d 931 In the Matter of WAYBRO CORPORATION, Appellant, and Clinton Coalition of Concern et al., Intervenors-Appellants, v. BOARD OF ESTIMATE OF the CITY OF NEW YORK et al., Respondents. In the Matter of ROSENTHAL & ROSENTHAL, INC., et al., Appellants, v. BOARD OF ESTIMATE OF the CITY OF NEW YORK et al., Respondents. |
The provisions of the Uniform Land Use Review Procedure (ULURP; New York City Charter § 197-c) respecting the use, development or improvement of real property subject to city regulation are not applicable to a redevelopment project carried out under the New York State Urban Development Corporation Act (). Special Term, therefore, properly dismissed the article 78 petitions in two proceedings brought to invalidate the November 9, 1984 resolution of the Board of Estimate approving the Times Square Redevelopment Project and authorizing the Mayor to enter into agreements in relation thereto with the Urban Development Corporation (UDC) and designated developers, and to stay the making of or performance under such agreements until ULURP has been complied with. The order of the Appellate Division 114 A.D.2d 1054, 495 N.Y.S.2d 549 affirming Special Term's judgments of dismissal should, therefore, be affirmed, with costs.
A description of the Times Square Redevelopment Project, its history and the procedures in relation to it under the State Environmental Quality Review Act and the Eminent Domain Procedure Law is set forth in Matter of Jackson & Flowers v. New York State Urban Dev. Corp. (67 N.Y.2d ----, --- N.Y.S.2d ----, --- N.E.2d ---- [decided herewith] ) and need not be here repeated. The proceedings involved in this appeal are predicated on the concept that ULURP remains applicable and that the city cannot validly contract with respect to the project without first complying with ULURP.
The first proceeding, brought within a week after adoption of the Board of Estimate resolution, was instituted by Waybro Corporation, which owns a building at 210 West 43rd Street within the project area and, therefore, subject to condemnation. The second was instituted by Rosenthal & Rosenthal, Inc., the occupant, and Broadway 41st Street Realty Corporation, the owner of a building at 1451 Broadway, likewise within the project area and subject to condemnation. The proceedings have been consolidated on consent. Both petitioners contend that the project is within the types of land use activity to which ULURP applies and that, therefore, the development plan and Board resolution should have been submitted to Community Board No. 5, whose district includes the project area. The Board of Estimate and other city officials named as respondents, the UDC and its subsidiary Times Square Redevelopment Corporation denied that the project is within ULURP, set forth the procedures followed in relation to the project which, it was argued in the briefs, constituted substantial compliance with ULURP in any event, and pleaded that when UDC or its subsidiary undertakes a project in cooperation with a municipality compliance with local laws such as ULURP is not required. Special Term, concluding that the UDC's "override power" made compliance with ULURP unnecessary, dismissed the petitions without reaching the other issues and the Appellate Division affirmed, without opinion.
The thrust of petitioners' argument as to the compliance with ULURP is that the UDC Act only relieves UDC and its subsidiary of the necessity of complying with local laws, but does not affect the obligation of the city as an active participant in the project to do so. The argument is based upon provisions of the June 27, 1980 Memorandum of Understanding between the city and UDC and the Board of Estimate resolution. The memorandum outlines the parties' intention "to cooperate in the preparation and implementation of a plan for the redevelopment of the area around 42nd Street in Manhattan," states that the area's redevelopment "can best be carried out by cooperation between the City and UDC" and characterizes the project as a "joint effort." Under it the city agreed to identify goals and priorities and the parties agreed to act jointly in preparing a development program and selecting qualified developers. Implementation of the development program was, however, to be the responsibility of UDC, which agreed to exercise its statutory powers in carrying it out. The memorandum provided for eventual submission of the development program by the Mayor to the Board of Estimate for its approval.
That approval was given in the November 9, 1984 resolution. The resolution recited that the project "is in the best interest of the City in that it will remove blight and physical, economic and social decay", that "in cooperation and after consultation with the City" pursuant to section 16 of the UDC Act "the City desires that UDC undertake the Project" and that "UDC is undertaking the Project as a land use improvement project as defined" in the UDC Act. Its operative paragraphs adopted and concurred in the UDC findings with respect to the project, in its own findings determined that the project would "be feasible only if undertaken by UDC in accordance with the UDC Act," and authorized the execution on behalf of the city of contracts with the UDC and developers, provided they contain provisions deeding a presently vested future interest to the city to become absolute at the option of either the city or the UDC upon completion of improvements on a site, upon termination of a lease or upon transfer of UDC's interest in a site without the city's consent. Included in those conditions were that rents payable under the leases be assigned, subject to reimbursement of UDC expenses, to the city; that the city have the right as third-party beneficiary to enforce UDC's rights under any agreement; and that UDC consult with the Mayor prior to exercising its powers of condemnation or its superseding of the building code or zoning or other city regulation in connection with the project.
We conclude that, notwithstanding the city's presently vested future interest and its substantial role in the planning and implementation of the project, ULURP is not applicable to the city's participation in the project and need not be complied with. We, therefore, affirm.
ULURP requires that upon the filing of proposals for land use activity of specified types with the Department of City Planning the proposal be forwarded to the appropriate Community Board (New York City Charter § 197-c[c] ). A Community Board is composed of not more than 50 persons who reside or have a business, professional or other significant interest in the particular Community District (New York City Charter § 2800). Community Districts coincide as far as possible with the historic communities from which the city has developed (New York City Charter § 2701[b][1] ). The Board is authorized to hold hearings, prepare plans for the improvement and development of its district and cooperate with and advise city agencies and officials (New York City Charter § 2800[d] ).
Upon receipt of a land use proposal a Community Board has 60 days within which to conduct a public hearing and submit its written recommendations to the City Planning Commission. Not later than 60 days thereafter the Commission must reach its own conclusion on the proposal...
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