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.
October 10, 2013
On October 4, 2013, Justice Cynthia Kern of New York County Supreme Court rendered a decision dismissing a State Environmental Quality Review Act (“SEQRA”) challenge to the City Point project currently under construction in Downtown Brooklyn. In the case, a community organization and a number of labor unions were seeking to enjoin further construction of this billion-dollar project, which will include retail and market-rate and affordable housing. Their principal allegation was that New York City, which is leasing the property to the developers, should have supplemented the prior environmental review conducted for the project to analyze the potential socioeconomic impacts on the community of below-prevailing wages being paid to project construction workers.
Justice Kern dismissed the proceeding in its entirety. She first held that the petitioners lacked standing because the injuries they claimed were economic in nature, and therefore not within SEQRA’s zone of interests, and/or that the petitioners had not alleged any injuries they would suffer that were different than the community at large. Justice Kern re-affirmed prior authority that SEQRA does not provide a general right of action to all citizens, and noted that there is no precedent for the notion that low construction wages are an environmental impact recognized under SEQRA. Justice Kern further held that the claims were barred by the four-month statute of limitations applying to Article 78 proceedings, because the 2007 lease for the property allowed for wages as low as minimum wage to be paid to construction workers, and the petitioners manifestly knew at least by October 2012 that the project was not paying prevailing wages, as they had written to the developers complaining of that fact at the time. (The proceeding was commenced in May 2013.)
SPR attorneys David Paget, Elizabeth Knauer and Adam Stolorow represented the developer respondents: Acadia Realty Trust, Albee Development LLC, Washington Square Partners, Inc. and BFC Partners Development LLC.
For more information about this case or SEQRA review and litigation, please contact David Paget or Elizabeth Knauer.
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 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.
November 21, 2012
On November 20, 2012, a New York appellate court unanimously affirmed the environmental review for the proposed redevelopment of the former Domino Sugar refinery in Williamsburg, Brooklyn, clearing the way for a new mixed-use development on the vacant East River site. Sive, Paget & Riesel successfully represented the project applicant in both the lower court proceedings and the appeal, and in the environmental review process.
The Appellate Division, First Department rejected arguments that the New York City Planning Commission and City Council had violated the State Environmental Quality Review Act (“SEQRA”) by failing to take a hard look at the Project’s environmental impacts. While the challengers had claimed that the Project site’s rezoning and other approvals were based upon a false promise to provide 30 percent affordable housing, the Court found that “the fact that respondent developer’s 30% affordable housing figure was a mere goal, rather than a binding commitment, was adequately disclosed to the public.” It further held that “the Project minimized or avoided adverse environment impacts to the greatest extent possible,” and that the government approvals were justified based upon the Project’s broad range of objectives and goals, including the creation of “physical and visual access to the waterfront,” “publicly accessible open space” and an “economically integrated mixed of residential, retail/commercial, and community facility uses with a high quality design.”
For more information on the Court’s decision, contact David Paget or Jennifer Coghlan.
August 3, 2012
The New York State Department of Environmental Conservation (“DEC”) has proposed significant revisions to the regulations that implement the State Environmental Quality Review Act (“SEQRA” or “SEQR” ), including changes to types of government actions that trigger or are exempt from the preparation of an environmental impact statement (“EIS”). DEC is accepting comments on its draft scope for the Generic Environmental Impact Statement (“GEIS”) on the proposed amendments until August 10, 2012.
The proposed amendments are noteworthy in several respects. First, DEC has proposed a new requirement that all EIS’s include a public scoping process (scoping is not mandatory under existing DEC regulations, but is required within New York City under the City Environmental Quality Review (“CEQR”) process). The proposed amendments also allow for the electronic filing of EIS’s, extend the time-frame for filing a Final EIS once a Draft EIS has been filed (up to 180 days), and identify circumstances in which an EIS will be deemed complete on the basis of the Draft EIS.
According to DEC, the proposed amendments seek to “streamline the SEQR process without sacrificing meaningful environmental review.” Thus, certain categories of unlisted actions which today may require an EIS would be added to the “Type II” list and categorically exempt from further SEQRA review. On the other hand, DEC proposed expanding certain classes of “Type I” actions, which are presumed to require the preparation of an EIS. The Type I and Type II lists are critical to project applicants and government decision-makers, since preparation of an EIS requires a considerable commitment of time and resources but provides for and informs greater opportunity for public input on proposed actions.
In particular, for Type I actions:
- For proposed residential subdivisions, the amendments will considerably reduce the number of residential units that will trigger the Type I threshold.
- The amendments lower the threshold for the number of new parking spaces that will trigger the preparation of an EIS for an action.
- For unlisted actions occurring in or next to historic resources, Type I thresholds will no longer be triggered automatically, but must exceed 25 percent of any threshold in the Type I list, such as acreage disturbed by or housing units created by residential development (6 NYCRR § 617.4).
For Type II actions, the proposed amendments would:
- Add new Type II actions to encourage development in urban areas versus development in greenfields and to encourage green infrastructure projects;
- Add new Type II actions to encourage the installation of solar energy arrays;
- Add a new Type II action that allows for the sale, lease or transfer of property for any Type II action;
- Add a new Type II action for minor subdivisions;
- Add a new Type II action to make the disposition of land by auction a Type II action; and
- Add a new Type II action to encourage the renovation and reuse of existing structures.
The proposed amendments are still in draft form and are not yet scheduled to take effect. Following the conclusion of its environmental review, DEC will issue proposed regulations for public comment. The full text of the draft scope for the GEIS is available here. For more information on the regulatory amendments and the SEQRA process, contact Mark Chertok or David Yudelson.
DEC will accept comments on the draft scope by e-mail at email@example.com (include the subject line “Comments on Part 617 Draft Scope”) or by letter addressed to:
Division of Environmental Permits & Pollution Prevention
New York State Department of Environmental Conservation
Albany, New York 12233-1750
March 9, 2012
On March 5, a court dismissed a lawsuit challenging one of the largest proposed developments in the New York metropolitan area outside of New York City. Tuxedo Reserve is a proposed planned community of almost 1,200 residential units and over 100,000 square feet of non-residential development in Tuxedo, New York. The project would preserve approximately three-quarters of the approximately 2,400 acres owned by the developer, a subsidiary of the New York City-based Related Companies. Tuxedo Reserve was issued amended approvals for its planned integrated development in 2010. Those amended approvals were challenged by a few local residents and two local environmental organizations. They claimed, among other allegations, that the amended approvals were issued in violation of the State Environmental Quality Review Act (SEQRA). The March 5 decision dismissed the 12-count lawsuit in its entirety for lack of standing and failure to state a claim upon which relief could be granted.
The court found that none of the petitioners had standing to sue. The decision held that the rebuttable presumption of harm arising from alleged proximity to a project site’s boundaries was offset by the presence of a significant conservation buffer that the developer plans to create along the perimeter of the project site. The court held that because that conservation buffer is designed to insulate the petitioners from the potential adverse impacts of the project, it rebuts the presumption that the plaintiffs’ proximity to the project forces them to suffer an injury different from that which would be endured by any other member of the general public.
The court also dismissed all of the non-SEQRA claims, holding that the Town Board had not violated the Open Meetings Law, had not acted unethically, and had not engaged in contract or spot zoning. The decision paves the way for this new planned community to move forward. The developer, Tuxedo Reserve Owner LLC, was represented by SPR both in the litigation and in the proceedings before the Town.
For additional information about this case or other land use matters, contact Steven Barshov.
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