December 13, 2013
On November 11, 2013, in a unanimous decision, the New York State Supreme Court Appellate Division, Second Department, affirmed the dismissal of an Article 78 Special Proceeding which had challenged the approvals for Tuxedo Reserve, a large scale mixed-use development of more than 1,000 residential units and in excess of 100,000 square feet of non-residential uses in Orange County, New York. Sive, Paget & Riesel represented the developer through both the development review process and the litigation, with Steven Barshov serving as lead counsel.
In May 2012, the New York State Supreme Court, Westchester County dismissed the challenge to the project’s environmental review and local land use approvals, finding that the Petitioners lacked standing and failed to state a claim on which relief can be granted. On appeal, Petitioners argued that their proximity to the project’s boundaries supported a presumption of standing. The Appellate Division rejected this argument, holding that the presumption of standing based on proximity must be predicated on distance to the structures or areas being developed, not merely to the closest point on the perimeter of the 2400-acre Tuxedo Reserve property.
The decision clarifies an important limitation on presumptive standing that is especially significant in relation to large scale developments, especially those, like Tuxedo Reserve, with substantial conservation buffers around the perimeter of the project. For more information on the project and the Court’s latest decision, contact Steven Barshov.
June 3, 2013
Fresh Direct, the direct delivery retail grocer, has proposed relocating its operations from Long Island City to the Harlem River Yards and occupying space originally intended for the New York Wholesale Flower Market. A coalition of community groups challenged the project’s approvals, alleging violations of the State Environmental Quality Review Act (“SEQRA”) and challenging the constitutionality of the sublease by Harlem River Yards Ventures, Inc. (“HRYV”) to Fresh Direct, as well as the overlease between HRYV and the New York State Department of Transportation (“NYSDOT”). On May 24, 2013, Bronx Supreme Court Justice Mary Ann Brigantti-Hughes dismissed the hybrid petition-complaint in its entirety and denied the challenger’s motion for leave to amend. Sive, Paget & Riesel represented HRYV in the litigation.
The decision upheld the environmental review undertaken by the lead agency, the New York City Industrial Development Agency (“NYCIDA”), and concluded that the NYCIDA had appropriately issued a negative declaration after taking the required “hard look” at the Project’s environmental impacts. In particular, the Court sustained the NYCIDA’s determination that no supplemental environmental impact statement (“SEIS”) was required because Fresh Direct’s projected traffic impacts would be no greater than those which would have been generated by the previously approved wholesale flower market. The Court also held that the extant EIS, which dated from 1993, was not required to be supplemented, in part, because the relevant traffic data had been updated in the environmental assessment relied upon by the NYCIDA. Given an increasing number of lawsuits demanding preparation of an SEIS due to the passage of time, it is noteworthy that the Court adhered to the rule that the mere passage of time alone is not a sufficient basis for securing such relief.
The constitutional attack against the overlease was dismissed as time barred. The attack on the HRYV – Fresh Direct sublease, while timely, was dismissed for failure to plead any legally cognizable claim against the over-landlord, NYSDOT. Leave to amend was denied as futile.
For further information, contact Steven Barshov, who was lead counsel for HRYV.
April 26, 2013
The New NY Bridge Project crossed the finish line in its pre-construction permitting process yesterday, securing federal permits from both the U.S. Army Corps of Engineers and the U.S. Coast Guard. A replacement for the aging Tappan Zee Bridge, the New NY Bridge Project will traverse the Hudson River and connect Rockland and Westchester Counties.
The Army Corps issued individual permits for the bridge under Section 404 of the Clean Water Act (for discharge of fill into navigable waters of the United States) and Section 10 of the Rivers and Harbors Act (for dredging and other in-water construction work). The Coast Guard bridge construction permit was issued pursuant to the General Bridge Act of 1946.
Issuance of these permits allows construction of the new bridge to begin. Construction of temporary work platforms is expected to commence within a matter of weeks. Dredging for the project will begin in August 2013.
Sive, Paget & Riesel has served as principal environmental counsel to the Thruway Authority and the State of New York throughout the planning and review of the New NY Bridge project at all levels of government. The firm’s involvement with the project reflects Sive, Paget & Riesel’s recognized expertise and experience with major transportation and infrastructure projects and with the navigation of the labyrinth of required reviews, permits and approvals. The firm also currently represents the Port Authority of New York and New Jersey on the Bayonne Bridge and Goethals Bridge projects. For more information on the New NY Bridge project or the environmental review and permitting of other major infrastructure and development projects, contact David Paget or Mark Chertok.
April 12, 2013
On April 9, 2013, the New York City Council unanimously approved a proposal to redevelop the historic Pier 57 within Hudson River Park, at the foot of West 15th Street in Manhattan. This followed approval by the City Planning Commission in March, and the environmental review of the project by the Hudson River Park Trust (“HRPT”) and other agencies, through the preparation of an environmental impact statement (“EIS”). SPR is serving as HRPT’s environmental counsel for the Pier 57 redevelopment, continuing the Firm’s representation of Hudson River Park since its establishment in the 1990s.
Pier 57, which was constructed in the early 1950s and comprises three underwater caissons, a head house and a pier shed, is listed on the State and National Registers of Historic Places. It has been vacant since the 1990s. Developer Youngwoo & Associates proposes to lease the Pier from HRPT in order to redevelop it with an urban marketplace (using repurposed shipping containers for small food- and design-oriented retail businesses), restaurants, a large rooftop open space, and public circulation space around the perimeter of the pier. The project may also include cultural space, an educational facility, and a marina.
SPR principals David Paget and Elizabeth Knauer have been advising HRPT regarding all environmental aspects of the project, including preparation of the EIS, consultation with the State Historic Preservation Office, and obtaining environmental permits for work that will be needed within the Hudson River. This representation is the latest example of the firm’s longstanding work on major New York City waterfront developments, dating back to the South Street Seaport and Battery Park City projects and continuing with more recent projects such as Queens West, Brooklyn Bridge Park, the redevelopment of the Battery Maritime Building and Pier A in lower Manhattan, the Whole Foods store and Domino Sugar Refinery redevelopment in Brooklyn, and the proposed expansion of the New York Container Terminal in Staten Island.
March 28, 2013
Two significant milestones were reached yesterday on the New NY Bridge/Tappan Zee Hudson River Crossing project, which will replace the aging Tappan Zee Bridge connecting Westchester and Rockland Counties. First, the New York State Department of Environmental Conservation (“DEC”) issued combined permits under state Environmental Conservation Law Article 25 (concerning activities on tidal wetlands), Article 11 (concerning incidental taking of endangered or threatened species) and Article 15 (water quality certification under Section 401 of the Clean Water Act). Second, the New York State Thruway Authority and DEC announced that they had signed an agreement with the environmental groups Riverkeeper and Scenic Hudson that would avoid those organizations’ potential legal challenges to the federal and state environmental review and permits for the project. Sive, Paget & Riesel has served as principal environmental counsel to the Thruway Authority and the State of New York throughout the planning and review of the project at all levels of government.
The issuance of the Section 401 water quality certification by DEC allows the remaining federal permits for the project to move forward. Project permits from the Army Corps of Engineers and the Coast Guard are anticipated in the upcoming weeks. The first construction barges for the project arrived at the project site this week to begin geotechnical investigations for bridge piles; construction of temporary work platforms for the bridge is expected to begin in early May. These initial steps represent the beginning of a five-year construction process for the new bridge.
The New NY Bridge project is being built using an innovative design-build process, and is believed to be the largest such transportation project in the United States. It is also the first such project in New York State under the recently enacted legislation authorizing design-build projects. The project has involved a labyrinth of environmental reviews, approvals and permitting processes, including the intersection of the National Environmental Policy Act (NEPA) and the State Environmental Quality Review Act (SEQRA), parkland review under Section 4(f) of the Department of Transportation Act, historic review under Section 106 of the National Historic Preservation Act, consultation under the Endangered Species Act, Essential Fish Habitat review, various Executive Orders respecting wetlands and environmental justice, and Clean Air Act conformity determinations by the Army Corps of Engineers and Coast Guard, among others.
Sive, Paget & Riesel’s involvement with the New NY Bridge project reflects the firm’s recognized expertise and experience with major transportation and infrastructure projects and the navigation of the dizzying complex of required reviews. The firm also currently represents the Port Authority of New York and New Jersey on the Bayonne Bridge and Goethals Bridge projects. For more information on the New NY Bridge project or the environmental review and permitting of other major infrastructure and development projects, contact David Paget or Mark Chertok.
October 17, 2012
On October 10, 2012, the Lightstone Group (“Lightstone”) received conditional approval from Community Board 6 for its proposal to construct 700 apartments, community facilities, commercial space and a waterfront front esplanade along the Gowanus Canal. Sive, Paget & Riesel is serving as environmental counsel for Lightstone’s redevelopment project, which will occupy two city blocks to the west of the Canal.
The key environmental issues were the environmental remediation of the Site, the Site’s relationship to the Gowanus Canal Superfund Site, reconstruction of the historic bulkhead, planning for projected sea level rise, and the avoidance of significant adverse impacts on combined sewer overflows into the Canal.
David Yudelson, a partner at Sive Paget & Riesel, has been working cooperatively with federal, state and local agencies to address these issues. In addition, Mr. Yudelson has been working with the United States Environmental Protection Agency (“EPA”) on an agreement to dovetail the proposed redevelopment with the forthcoming Gowanus Canal Superfund remedy, which EPA is anticipated to propose over the coming months.
Mr. Yudelson and Sive, Paget & Riesel have been representing a number of prospective purchasers, owners, developers respecting these issues on other properties on the Gowanus Canal since 1996, including Gowanus Green, Toll Brothers, Woodenbridge LLC, Whole Foods, and MCIZ. The Firm is also representing potentially responsible parties with respect to the Superfund cleanup of the Canal. For further information, please contact David Yudelson at firstname.lastname@example.org or 917-295-6449.
March 22, 2011
Mayor Michael R. Bloomberg and City Council Speaker Christine C. Quinn recently released a sweeping plan to revitalize and capitalize on New York City’s 520 miles of shoreline. In addition to a three-year action agenda to complete 130 already-funded projects, it also provides specific plans and goals for various waterfront areas throughout the City.
The plan focuses not only on waterfront access and redevelopment of waterfront sites, but also improving water quality, restoring and enhancing waterfront habitats, and improving coordination between governmental agencies with overlapping jurisdiction over waterways and waterfront sites – one of the major stumbling blocks that has stood in the way of effective action. The plan also recognizes the need to consider and address the potential impacts of climate change and sea level rise in waterfront projects.
To advance these goals, the plan identifies site-specific projects in 22 reaches of the City’s waterways, and identifies several additional waterfront redevelopment sites. The plan also includes specific steps that should be taken to implement NYHarborWay, the Bloomberg Administration’s initiative to make New York Harbor a major recreational destination, and to connect Brooklyn Bridge Park, Governors Island, Hudson River Park, The Battery, Ellis Island, Statue Liberty Island, the East River Esplanade and Liberty State Park by ferry and/or bike greenways.
SPR has successfully guided many major waterfront projects to completion, and the plan includes several current projects on which SPR has served or currently serves as counsel, including: completion of Brooklyn Bridge Park, the redevelopment of the Admiral’s Row site at the Brooklyn Navy Yard, redevelopment of the former Domino Sugar factory in Williamsburg, the proposed expansion of the New York Container Terminal on Staten Island, the next phase of development of Arverne by the Sea in the Rockaways, redevelopment of the Battery Maritime Building in Lower Manhattan, and redevelopment of Pier A in Battery Park.
The City will track the progress of its various waterfront initiatives on its website on an ongoing basis. The plan and the updates can be accessed here.
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