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 depprmt@gw.dec.state.ny.us (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
625 Broadway
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.
May 25, 2011
On Tuesday, May 24, a New York State Supreme Court judge rejected a legal challenge to the redevelopment of the former Domino Sugar refinery in Williamsburg, Brooklyn, clearing the way for the transformative, mixed-use project to begin construction as early as next year. David Paget and Jennifer Coghlan of Sive, Paget & Riesel, P.C. successfully defended the project on behalf of its developer, an affiliate of CPC Resources, Inc.
Ruling from the bench following oral argument, Judge Eileen A. Rakower upheld the State Environmental Quality Review Act (“SEQRA”) analysis and municipal approvals for the project. The Court rejected claims that the City Council and City Planning Commission had been misled about the developer’s plans and upheld their decision not to compel disclosure about project financing, citing longstanding SEQRA precedent that such disclosure is not required absent “compelling evidence of a sham transaction or that financial sponsors are unwilling or unable to fulfill their obligations.”
The “New Domino” project, which is anticipated to break ground in 2012, will convert a vacant, formerly industrial site along the East River into an integrated development containing open space, community facilities, and commercial and residential properties, including a substantial affordable housing component. It would provide waterfront access on site for the first time in over a century, while preserving many of the former refinery’s historic structures, including the iconic “Domino Sugar” sign.
For more information about the recent decision, contact David Paget or Jennifer Coghlan.
November 24, 2010
Earlier this month, the New York State Sea Level Rise Task Force (“Task Force”) released a draft report assessing the climate-related threat to coastal communities and recommending a series of policy changes (“Draft Report”). The state legislature commissioned the Task Force in 2007, bringing together state agency representatives, county and local government officials, and other public and private stakeholders to “protect[] New York’s remaining coastal ecosystems and natural habitats, and increas[e] coastal community resilience in the face of sea level rise.” The Draft Report is open for public comment until Dec. 12, 2010, and is scheduled to be finalized by Jan. 1, 2011.
The Draft Report contains nine findings concerning the projected impacts of sea level rise and 14 policy recommendations for state legislators and executive agencies to prepare for and protect against those risks. This post focuses on the recommendations related to the State Environmental Quality Review Act (“SEQRA”), the New York law requiring state and local governments to consider the potential significant adverse environmental impacts of their actions.
The SEQRA recommendations primarily relate to actions undertaken within newly-proposed “coastal risk management zones,” which would require an amendment to SEQRA or its implementing regulations. The Task Force suggests that such zones should be established and include those areas that FEMA has already identified as “coastal high hazard areas” or “areas of moderate wave action” on Flood Insurance Rate Maps (Draft Report, at 54).
SEQRA regulations currently categorize actions as Type I (those that presumptively have significant adverse impacts and are more likely to require preparation of a full Environmental Impact Statement), Type II (those determined not to have significant adverse impact or otherwise precluded from SEQRA review) and Unlisted. Under one proposal, the Task Force recommends that all Unlisted Actions undertaken within a coastal risk management zone be added to the Type I list (Draft Report at 61). Alternatively, the Draft Report suggests amending the criteria for environmental significance in the SEQRA regulations to expressly incorporate sea-level rise related impacts (Draft Report at 61; 6 NYCRR 617.7(c)).
Neither of these recommendations, however, addresses the technical issues of how the environmental significance of sea level rise on a proposed project should be measured. Moreover, the classification of all actions occurring within a coastal risk management zone as Type 1 may be inconsistent with existing SEQRA guidance which anticipates that the significance of sea level rise and other global warming impacts on a project would be assessed “on a case-by-case basis” — with no bright line test imposed based on project location.[1] This recommendation could also sweep in minor discretionary actions, such as wetland permits for single lots, that are not the type or scale of government action typically considered Type I.
Finally, the Task Force makes a commonsense recommendation that DEC’s short and long Environmental Assessment Forms (“EAF”) – used to determine the potential significance of an action’s environmental impacts – be revised to “require[e] an evaluation of risks to and from the project based on the risk of sea level rise and coastal hazards … and other related effects of sea level rise” (Draft Report at 61). The long EAF currently asks, “Is [the proposed] project or any portion of project located in a 100 year flood plain,” though sea level rise is projected to expand the areas of New York traditionally considered at risk of serious flooding.
For additional information on the consideration of climate-related impacts under SEQRA or the National Environmental Policy Act (“NEPA”), contact Steven Russo.
[1] DEC, Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements, July 15, 2009, at 4, 5.
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