MICHAEL D. STALLMAN, J.
This Article 78 proceeding (recalendared as Motion Sequence 003)
In Motion Sequence 002, petitioners seek an order, pursuant to CPLR 7804 (h), for a hearing to determine whether respondent HSS has failed to comply with Zoning Resolution (ZR) § 74-682.
Petitioners had also sought an order: (1) enjoining the issuance of building permits by the Department of Buildings (DOB) based upon respondents' alleged failure to comply with ZR § 74-682, and a so-ordered stipulation issued in this proceeding; and (2) amending the petition, pursuant to CPLR 7804 and 3025 (b), granting petitioners leave to add DOB as a necessary party. By stipulation dated September 22, 2011, petitioners withdrew these portions of motion 002, based upon HSS's representations that it has not applied, and will not apply, to DOB for building permits to expand its facilities until this Court issues its determination in this proceeding.
Respondents the New York City Council (City Council) and the New York City Planning Commission (CPC) (together, Municipal Respondents) cross-move for dismissal of the petition or, in the alternative, for dismissal of the ninth cause of action pursuant to CPLR 3211 (a) (1) (defense founded upon documentary evidence); CPLR 3211 (a) (7) (failure to state a cause of action), and CPLR 7804 (f) (objections in point of law); or for summary judgment pursuant to CPLR 3212. The ninth cause of action alleges that the infringement upon the "FDR Esplanade Park constitutes unlawful Park Alienation."
Petitioner Joel Hand is a resident and unit owner in the Edgewater Cooperative (named in the caption as The Edgewater Apartments Inc.), which is itself a petitioner, located at 530 East 72nd Street, New York County. Petitioner Sarah Dudley Plimpton is a resident of 520 East 72nd Street, in New York County (Petition ¶¶ 9-10). Petitioners allege that they "will be aggrieved due to the deleterious and negative environmental impacts," described in the petition (id. ¶ 11).
Respondent HSS is an orthopedic and rheumatology hospital situated in the East 70's in New York County (Petition ¶ 12; HSS Answer ¶¶ 111-113). Respondent CPC served as lead agency to conduct the environmental review on HSS's private land use application and, in October 2008, respondent City Council, passed resolutions approving the application.
HSS's facilities are bounded by East 70th Street, East 72nd Street, York Avenue, and the FDR Drive in Manhattan's Community District 8 (Affidavit of Robert Dobruskin, Director of the Environmental Assessment and Review Division of the City's Department of City Planning (DCP), sworn to March 4, 2009 [Dobruskin Aff.], ¶ 4). HSS consists of several buildings: the East Wing Building (East Wing), HSS's main hospital building, located at 535 East 70th Street; the West Wing Building (West Wing), located immediately west of the East Wing at the eastern end of the block bounded by York Avenue, East 70th Street, East 71st Street, and the FDR Drive; the Caspary Research Building, located directly north of the West Wing Building across East 71st Street; and the Belaire Building, which is northwest of the Caspary Building.
The East Wing is an eight-story structure built on a platform above the FDR Drive that primarily consists of operating rooms and patient beds. It rises to a height of 100 feet above the FDR Drive and then sets back and rises one more floor to a height of 115 feet. The East Wing was built in the mid-1990's and contains approximately 110,000 square feet of floor area distributed over the eight floors (Affidavit of Adam Wolff, deputy director of the Manhattan Office of DCP, sworn to March 4, 2009 [Wolff Aff.], ¶¶ 14-15; CPC Report for Application No. C 060333 ZSM, dated August 11, 2008 [CPC Report], at 3). The West Wing Building is the original hospital building containing approximately 250,000 square feet of floor area (CPC Report at 3; Wolff Aff. ¶ 16).
The project entails the addition of 137,869 square feet of new construction, including (1) a three-story addition to the East Wing (51,000 of floor area), and (2) a new 12-story building, known as the "River Building" (86,869 square feet of floor area), to be constructed on a platform over the FDR Drive between East 71st Street and the midblock line between East 71st and East 72nd Streets. The platform requires the construction of support columns within the sidewalk at the west edge of the FDR Drive and east of the roadway of the FDR Drive within the area known as the "East River Esplanade" (Esplanade) (Dobruskin Aff. ¶ 7). The Esplanade is a pathway running along the Manhattan shore of the East River, designated as the "Manhattan Waterfront Greenway." The relevant area of the Esplanade is between East 70th and East 72nd Streets and is part of the Esplanade known as the "Bobby Wagner Walk," which extends from East 63rd Street to East 125th Street (Affirmation of Alessandro G. Olivieri, Esq., General Counsel of the City's Department of Parks and Recreation, dated March 4, 2009, ¶ 7).
The project entails setting back the River Building 25 feet from the East River bulkhead, with the support columns for the platform and the structural bracing extending to the Esplanade, where four V-Shaped columns will be threaded in between two portions of the East 71st Street pedestrian overpass (CPC Report, at 7).
HSS maintains that it has a pressing need for additional modern and efficient space for patients and physicians to accommodate current needs, as well as anticipated increases in the number of surgeries performed. According to Louis A. Shapiro, the chief executive officer of HSS, in recent years the number of surgeries that HSS has performed has grown significantly, HSS is operating very close to capacity, and the volume of patients seeking HSS's services is increasing (Affidavit of Louis A. Shapiro, sworn to March 4, 2009 [Shapiro Aff.], ¶¶ 8-11). HSS applied for, and received from the New York State Department of Health (DOH), a "Certificate of Need" allowing it to increase the number of beds, operating rooms, and other facilities necessary to fulfill the patient community's ever-increasing needs. The project is intended to complete the expansion approved by DOH in November 2006 (id. ¶ 10).
As described in the Final Environmental Impact Statement (FEIS), dated August 1, 2008, prepared pursuant to the State Environmental Quality Review Act (SEQRA), Article 8 of the Environmental Conservation Law (ECL), and its implementing regulations (6 NYCRR part 617), and the City Environmental Quality Review (CEQR) (62 RCNY 5-01 et seq.), the proposed addition to the HSS campus would allow HSS to expand operating room capacity, inpatient beds, ambulatory surgery, diagnostic imaging services, sports medicine rehabilitation, and physician offices to meet these increases in the number of surgeries performed and to continue its role as a leading teaching and research facility specializing in orthopedics" (FEIS, at xiii).
HSS asserts that the site of the proposed new River Building is a perfect location for the expansion project, because of its proximity to the remainder of the HSS campus, affording it the ability to share resources and connect to operating and other HSS services so as to provide "comprehensive treatment from diagnosis to surgery to rehabilitation" (FEIS, at ES-xiii).
From the petitioners' viewpoint, however, the location is not perfect, because of the project's "geographic virtually unique location in a crowded and congested residentially zoned district, on a waterfront with legislative and contractual protections and bordering and encroaching upon parkland" (Petitioners' Memorandum of Law, at 18). The project borders upon the Esplanade, which petitioners claim, will be adversely affected by the Project.
The project is subject to SEQRA, which provides that the legislative intent is "that all agencies which regulate activities of individuals, corporations, and public agencies which are found to affect the quality of the environment shall regulate such activities so that due consideration is given to preventing environmental damage" (Environmental Conservation Law § 8-0103 [9]). SEQRA requires preparation of an Environmental Impact Statement (EIS) for government actions that may have a significant effect on the environment (ECL § 8-0109 [2]).
In addition to the SEQRA/CEQR review, the project is also subject to review by City agencies and elected officials under the City's Uniform Land Use Review Procedure (ULURP), established by the City Charter, sections 197-c, 197-d, and 200. DCP advises City officials, including respondent City Council, regarding the City's physical planning and public improvement projects. DCP also serves as staff to CPC, which has responsibility for orderly growth, changes to zoning, and other significant land actions, and CPC approval is subject to ULURP (Dobruskin Aff. ¶ 3).
The project also falls within the Waterfront Revitalization Program (WRP), the City's principal coastal zone management tool, adopted in 1982, and revised in 1999. WRP provides a framework for evaluating the consistency of all discretionary actions in the coastal zone with the City's policies for development and use of the waterfront (FEIS, at 12-1).
CPC serves as lead agency on HSS's private land use application, and DCP serves as staff to CPC regarding the preparation of the environmental review (Dobruskin Aff. ¶ 18). In support of the expansion project, HSS submitted applications to CPC: (1) to amend ZR § 74-682 to allow for off-street loading requirements to be calculated for the entire HSS campus without regard to zoning lot lines; (2) for special permits pursuant to ZR § 74-682 to develop the River Building and build the three-story addition to the East Wing; (3) to "amend the City Map in order to eliminate, discontinue, and close portions of the FDR Drive and related volumes for the placement of structural columns for the River Building"; and (4) for certifications pursuant to an agreement entered into in 1973 (Stipulation of Settlement, entered into among petitioners and respondents, dated June 23, 2009 [2009 Stipulation], at 1-2).
Based on its review of the initial environmental study that HSS submitted, called the Environmental Assessment Statement and a "draft scope of work" (for agency and public comment to determine the issues to be addressed and methodologies followed in the draft EIS), CPC determined that the project may have a significant adverse impact on the environment, and it issued a "Positive Declaration" requiring the preparation of an EIS (Dobruskin Aff. ¶¶ 19-20). "Scoping" is defined as the process by which the lead agency identifies the potentially significant adverse impacts related to the proposed action that are to be addressed in the draft EIS, including the content and level of detail of the analysis, the range of alternatives, the mitigation measures needed, and the identification of nonrelevant issues (6 NYCRR 617.2 [af]).
A public scoping meeting was held on January 30, 2007 on the draft scope of work to receive public comment on the issues to be addressed in the draft EIS (Dobruskin Aff. ¶ 21). HSS prepared a draft EIS with guidance by Dobruskin and CPC staff, to ensure that the analyses were conducted in accordance with CEQR Technical Manual guidelines. On April 4, 2008, CPC issued a notice of completion of the draft EIS, and a public hearing was held on July 2, 2008. Following the hearing, HSS prepared an FEIS under CPC review and supervision, addressing the comments received at the public hearing and written comments received 10 days thereafter (id. ¶¶ 22-23).
On August 1, 2008, CPC issued a "Notice of Completion" of the FEIS, followed by an August 8, 2008 Errata that, according to Dobruskin, corrected minor errors to the open space analysis in the FEIS, but which did not alter any of the original conclusions from the FEIS (id. ¶ 24). On August 11, 2008, CPC approved the application (Exhibit 41 to Table of Administrative Record, Volume III), and the City Council, on October 7, 2008, passed resolutions approving the application (Exhibit 38 to Table of Administrative Record, Volume II).
The project site is located in an R-9 zoning district, which is a general residence district allowing residential use and community facility use, with a maximum floor area ratio (FAR) of 10.0 for community facility use and 7.52 for residential use (FEIS, at ES-xii). ZR § 74-682, which was amended as part of the project on October 7, 2008, provides, in part:
To grant this special permit, the CPC must find:
Legislation in 1971 authorized the City to close and discontinue air space above a certain defined plane over the FDR Drive between East 62nd Street and the midblock line between East 71st and East 72nd Streets to convey such air space to HSS, Rockefeller University, and New York Hospital (now known as New York-Presbyterian Hospital). These three institutions implemented the legislation through a 1973 Agreement between them and the City, which defined the conditions by which each could develop air space above the FDR Drive and over streets (Wolff Aff. ¶ 9; see also FEIS, at ES-x). The 1973 agreement was amended in 1983 and 1993 to be consistent with the City's new waterfront goals (Wolff Aff. ¶ 12).
Petitioners contend that the proposed expansion of HSS violates (1) SEQRA, CEQR, and ULURP; (2) the City's zoning rules and related agreements; (3) the WRP; and (4) the common law public trust doctrine. Petitioners allege that the FEIS (1) failed to address, analyze, and take a hard look at the project's statutory, regulatory, and contractual violations, thereby breaching respondents' affirmative duty under applicable environmental laws; (2) failed to take a hard look at the circumstance of the project's unique location in a crowded and congested residentially zoned district, on a waterfront, and bordering and encroaching upon parkland; (3) failed to look at applicable provisions of the ZR that the project would violate; (4) did not accurately assess the impact of the project on the use of, and access to, the Esplanade, the view corridors of the waterfront, the non-conforming loading berths' impact on traffic, safety, noise, and congestion, and the adverse effects that the proposed bulk and positioning of the project would create as set forth in a study prepared by petitioners' consultant, Environmental Simulation Center, all of which rendered the FEIS legally defective. Petitioners also claim that the project will result in an unlawful alienation of parkland in violation of the public trust doctrine, because installation of the support columns for the new 12-story building will cause the closure of the Esplanade for at least four to six months.
The petition contains the following nine causes of action: (1) the failure to develop a site plan and consider the project in relation to the existing buildings in the community was arbitrary and capricious; (2) the failure to maintain loading berths violates ZR § 74-682 and constitutes a nuisance; (3) ULURP approval in absence of ZR compliance was unlawful and arbitrary and an abuse of discretion; (4) approval of the zoning text amendment constitutes unlawful "spot zoning"; (5) failure to consider the Belaire Building's non-conforming use is a zoning violation, resulting in the unlawful transfer of air rights; (6) the failure to take a hard look at significant areas of environmental concern violates SEQRA; (7) the failure to comply with the WRP was an illegal and arbitrary abuse of discretion; (8) the project's impact on the Esplanade is a breach of the 1973 agreement by which the City conveyed portions of the air space above the FDR Drive to HSS; and (9) the infringement upon the Esplanade constitutes the unlawful alienation of parkland.
The petition is dated December 5, 2008. By the 2009 Stipulation (dated June 23, 2009; so ordered July 9, 2009), the proceeding was marked off the calendar, based upon HSS's representation that, between the date of the 2009 Stipulation and June 1, 2011, it would make "good faith efforts to locate and purchase or lease an alternative site for its proposed new River Building," within the parameters of "good faith" detailed in the 2009 Stipulation. In the 2009 Stipulation, petitioners also agreed to withdraw, with prejudice, any claims that they have asserted, or may have asserted, regarding the proposed and approved three-floor expansion of the East Wing, and they waived any objection to HSS's commencement of construction of that expansion.
Apparently, HSS was unsuccessful in locating an alternate site, and, in June 2011, HSS and petitioners agreed that the proceeding should be restored to the active calendar. By notice of motion dated July 26, 2011, petitioner moved inter alia to amend the petition to add the Department of Buildings, to enjoin the issuance of permits and for a hearing. By stipulation of September 22, 2011, the request for amendment and injunctive relief were withdrawn, given the hospital's representation that no permits would be sought before this Court decided the Article 78 proceeding. Counsel also agreed to a supplemental briefing schedule as to whether a hearing was required and, as to the issue of alienation of parkland, in light of Powell v City of New York, (85 A.D.3d 429, 431 [1st Dept], lv denied 17 N.Y.3d 715 [2011]), decided after the proceeding was marked off the calendar by the 2009 Stipulation. After conference with the Court on November 3, 2011, the petition and motions were submitted for determination.
By this proceeding, petitioners seek to enjoin implementation of the project, and seek an order directing respondents to prepare an FEIS that addresses, analyzes, and takes a hard look at all of the relevant environmental factors.
As a preliminary matter, respondents argue that petitioners do not have standing to bring this Article 78 proceeding.
"[T]o qualify for standing to raise a SEQRA challenge, a party must demonstrate (1) an injury in fact, i.e., an injury that is different from that of the public at large, and (2) that the alleged injury falls within the zone of interest sought to be promoted or protected by the statute" (Matter of Stevens v Gordon, 202 A.D.2d 437, 438 [2nd Dept 1994] citing Society of Plastics Indus. v County of Suffolk, 77 N.Y.2d 761 [1991]). Because the petitioners' premises are in close proximity to the project, they "may be presumed to be adversely affected by a SEQRA violation and need not allege a specific harm" (Matter of Stevens v Gordon, 202 AD2d at 438, citations omitted; see also Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 N.Y.2d 668, 687 [1996] [aggrievement may be inferred from the close proximity and it "permits an inference that the challenger possesses an interest different from other members of the community"]). Respondents correctly challenge The Edgewater Apartments Inc.'s standing, because it does not even claim that it will be aggrieved by the project; it only alleges that one of the petitioners, Hand, lives in the building.
Judicial review of a SEQRA claim is to be considered by standards applicable to administrative proceedings generally; i.e., "whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . ." (CPLR 7803 [3]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 416). Additionally, judicial review of an agency determination under SEQRA is limited to "whether the agency identified the relevant areas of environmental concern, took a hard look' at them, and made a reasoned elaboration' of the basis for its determination" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231-32 [2007], quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417).
To ensure the "laudable goal" of placing environmental concerns alongside economic interests in the land-use decision-making processes, the "Legislature created an elaborate procedural framework requiring parties to consider the environmental ramifications of their actions as early as possible' and to the fullest extent possible'" (Matter of King v Saratoga County Bd. of Supervisors, 89 N.Y.2d 341, 347 [1996] [citations omitted]).
In Point I of their memorandum of law, petitioners outline this procedural framework, and the requirements of SEQRA and CEQR that must be adhered to before an application such as that of HSS's can be approved. Nevertheless, petitioners do not contend that respondents failed to comply with the requisite procedures, and review of the three volumes that comprise the "Table of Administrative Records" demonstrates that respondents diligently complied with the requisite regulatory procedures. This is significant because judicial review is limited to determining whether the agency's determination violated lawful procedures, was affected by an error of law, or was arbitrary and capricious. The Court is persuaded that the Municipal respondents satisfied the procedural (as well as substantive) requirements of SEQRA and its implementing regulations (Matter of Village of Westbury v Department of Transp. of State of New York, 75 N.Y.2d 62 [1989]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222 [1974]).
Petitioners effectively contend that, even if respondents purportedly followed the procedural formalities of the environmental regulations, the FEIS failed to take the necessary hard look at the applicable provisions of the ZR that the project allegedly violates, and also failed to take a hard look at applicable land use regulations pertaining to parkland and the waterfront. Allegedly, the failure to disclose, review, and mitigate those issues precluded meaningful public participation in the land use proceedings that led to final approval of the project, and, allegedly, this constitutes a substantial violation of SEQRA and is the basis for the petition.
This contention is not convincing. It is apparent from the record that CPC and DCP identified the relevant areas of environmental concern, took the requisite hard look at them, and made a "reasoned elaboration" of the basis for their determination. The FEIS contains 27 chapters including: (1) executive summary; (2) land use, zoning, and public policy; (3) socioeconomic condition; (4) community facilities; (5) open space; (6) shadows; (7) historic resource; (8) urban design and visual resources; (9) neighborhood character; (10) natural resources; (11) hazardous materials; (12) WRP; (13) infrastructure; (14) solid waste; (15) energy; (16) traffic and parking; (17) transit and pedestrians; (18) air quality; (19) noise; (20) construction impacts; (21) public health; (22) mitigation measures; (23) irretrievable and irreversible commitments of resources; (24) alternatives to the proposed project; (25) unavoidable significant adverse impacts; (26) growth-inducing aspects; and (27) responses to comments. The FEIS also includes 21 Tables and 54 Figures, and contains more than 300 pages with Appendices totaling close to 3,000 pages.
To be sure, it is not merely the amount of paper produced by the participating agencies, but the quality of the analysis. However, "[i]n assessing whether an agency has met its substantive SEQRA obligations, the appropriate judicial focus is not upon the agency's ultimate judgments but upon the deliberative process by which they were reached, and the touchstone is reasonableness" (Matter of Develop Don't Destroy (Brooklyn) v Urban Dev. Corp., 59 A.D.3d 312, 316 [1st Dept], lv denied 13 N.Y.3d 713 (2009), rearg denied 14 N.Y.3d 748 [2010]).
For each category, the FEIS examines, among other things, existing conditions, the "future" without the project, and the "future" with the proposed project. And in so doing, the FEIS analysis is not conclusory. For example, in the chapter on "Neighborhood Character," the FEIS states that the project would support the existing neighborhood character by supporting major land use of the area, namely, medical facilities, and that construction of the River Building and the three-story addition to the East Wing would not significantly change the neighborhood character. The FEIS then provides specific examples of the ways in which the construction will cause some temporary disruptions in the use of the Esplanade, and creates some burdens in the neighborhood, and it evaluates the extent of the disruptions and the manner in which they will be addressed. As for hazardous materials, it recognizes the potential to encounter contaminated fill material during excavation activities for the support columns, which could affect the neighborhood, but deems the implementation of a Department of Environmental Protection-approved "Remedial Action Plan" and "Construction Health and Safety Pan" adequate to avoid any significant adverse impacts.
As another example, concerning pedestrians, the FEIS calculates that the project would generate a total of 464 employees and 1,038 inpatients/outpatients/visitors during a 24-hour period for all modes: auto, taxi, subway, bus, walking, and other (FEIS, at 17-12). It contains detailed facts and figures regarding no build and project-generated conditions at am, midday, and pm 15-minute peak periods, and concludes, based on the CEQR Technical Manual's standards, that no significant impacts for the sidewalks, corners, or crosswalks would result from the project (FEIS, at 17-16).
Concerning the category "Shadows," the FEIS notes, again in accordance with the CEQR Technical Manual, that the incremental shadows cast by the project would fall during the same hours as the existing shadows (lasting 2 hours 35 minutes), but would cover a larger area of the Esplanade consisting of asphalt paving used for cycling, walking, and running. Minimal grass would be covered and no benches are present along this portion of the Esplanade. Thus, it concludes that the shadows falling in the open spaces on the equinoxes March 21 and September 21 would have no significant adverse impacts because shadows already exist and they would be for an insignificant amount of time (FEIS, at 6-2, 6-3).
The Municipal Respondents' determination that the project will have no significant adverse effect on the environment is the product of an adequate objective environmental review, including a thorough participatory public process, thorough studies by City planning officials, and in accordance with accepted methodology, as set forth in the CEQR Technical Manual, the environmental categories listed in the CEQR Technical Manual
It is undisputed that the Municipal Respondents were required to make a finding, pursuant to ZR § 74-682, of whether the project, in relation to existing buildings in the area and the location and distribution of new bulk, results in a "good site plan." Petitioners argue that respondents failed to develop a good site plan, because they failed to consider the impacts on the neighborhood character, residential view corridors, conformity with zoning rules and regulations, utilization of the Esplanade, the area at the end of East 72nd Street known as the 72nd Street Overlook, traffic congestion, access to air rights and light for community residents, open space and stability of residential development. Petitioners argue that the failure to consider these impacts of the project on the neighborhood rendered the FEIS legally defective.
An evaluation of whether the project entails a good site plan begins with recognition that the proposed expansion is part of the completion of a construction program for HSS and two other institutions (Rockefeller University and New York-Presbyterian Hospital) created almost 40 years ago. In 1973, the City and the three institutions entered into a detailed agreement which provided the specifics for expansion. Over time, all three institutions have expanded by building new facilities on platforms over the FDR Drive, which expansion was contemplated by the amendments to the 1973 agreement (see Wolff Aff. ¶ 12).
CPC was required to make findings that the project would not substantially interfere with the vehicular and pedestrian use of the FDR Drive or local streets, all federal and state requirements governing the FDR Drive were satisfied, and the project would be in accordance with the 1973 agreement, as amended. Only then would construction be permitted in the air space over the FDR Drive and the placement of support columns in the FDR Drive in the location of the Esplanade in connection with a change to the City map be approved (Wolff Aff. ¶¶ 34-35).
The CPC Report found that the project constituted a good site plan in that "the modification of lot coverage requirements would increase lot coverage on the zoning lot by less than 1% and would allow for the construction of a covered pedestrian bridge that would physically connect the third floor of the East Wing Building to the River Building, improving internal circulation within the hospital and allowing for the movement of employees, patients, and materials without having to cross East 71st Street, a busy street that provides egress from the FDR Drive" (CPC Report, at 18). After detailing the reasons for its findings as for the River Building, the CPC Report concludes that, "as a whole, the proposed design of the River Building results in an appropriate balance between the needs of the hospital and the impact on adjacent property" (CPC Report, at 19). As for traffic, as noted in the CPC Report, the DOT "has reviewed the proposed plans for the proposed River Building over the FDR Drive, including the placement of columns on either side of the FDR Drive and the need for temporary lane closures or diversions, and has determined that such temporary changes in traffic patterns would not substantially interfere with vehicular use of the FDR Drive" (CPC Report, at 22).
The planning rationale was to encourage development to the east of the institutions' existing campuses to shield those community facilities from the residential growth to the west. HSS deems expansion at the present site important, because HSS is an integrated facility where the departments are interdependent and work together. HSS explains that expansion delays are having an adverse economic impact on HSS, and expansion will create opportunities for significant employment in the City's construction and health care sectors (Shaprio Aff. ¶¶ 14-17).
As discussed above, the FEIS considered the very impacts cited by petitioners, namely, neighborhood character, residential view corridors, conformity with zoning rules and regulations, utilization of the Esplanade, the area at the end of East 72nd Street, known as the 72nd Street Overlook, traffic congestion, access to air rights and light for community residents, open space, and stability of residential development.
The project entails a zoning text amendment to ZR § 74-682 that permits CPC to modify off-street loading requirements of the River Building, provided findings show the adequacy of the loading facilities to serve loading needs, while not adversely impacting the movement of pedestrians and vehicles (CPC Report, at 2, 11). HSS's application seeks approval to aggregate the floor area generating loading requirements in the hospital's two zoning lots, and to supplement two existing loading berths with the additional facilities on East 70th Street.
Regulation of loading berths is significant because, as noted by petitioners, inadequate loading facilities could create a nuisance in that trucks servicing HSS would idle, park, and make deliveries in the neighboring residential streets if they are unable to access HSS's available loading berths. It is clear from CPC's resolutions approving HSS's application, adopted on August 11, 2008, that traffic congestion and the loading berths were major areas of concern to the members of CPC.
Petitioners contend that HSS is violating the terms of a previously-granted 1992 special permit which contained a self-certification that allowed for the construction of the East Wing. HSS certified that it had four existing loading berths on East 71st Street although it actually had no conforming loading berths. HSS maintains four purported loading berths: (1) one is inoperable because it is encumbered by a permanently-installed trash compactor; (2) the two purported westernmost loading berths (on East 71st Street) do not constitute a single loading berth on this heavily traveled thoroughfare; and (3) the purported fourth loading berth is eight feet, less than the required 12-foot clearance, the entrance is blocked, and the berth is inoperable because of steel poles bolted into a steel plate.
Notwithstanding these assertions, CPC determined that the proposed text amendment that allows HSS to utilize existing loading berths within the HSS campus as part of its special permit application under ZR § 74-682 is appropriate (CPC Report, at 18). This is based, in part, on the fact that the HSS buildings on the north and south side of East 71st Street are functionally and physically connected to each other (CPC Report, at 17-18). Respondents assert that by viewing the HSS campus as a whole, two loading berths would be required under the ZR (FEIS, at 27-4).
CPC noted that, in addition to the two loading berths on the south side of East 71st Street, HSS also has an adjacent storage area for waste on East 71st Street, and a loading area on the north side of East 70th Street, which accesses the storage facilities of the East Wing (CPC Report, at 19). CPC also noted that HSS has agreed to relocate an emergency generator located adjacent to the East Wing storage facilities on the north side of East 70th Street to allow for a dedicated loading area that can accommodate increased loading activity, which would be accessible to uses within the River Building through the existing and proposed covered pedestrian bridges over East 71st Street. Thus, materials could move between the River Building and the East Wing and West Wing without having to cross 71St Street at grade (CPC Report, at 19-20).
CPC also states that the expansion would result in a relatively small number of additional truck trips, because the type of supplies needed are already being used by and delivered to the Hospital (CPC Report, at 20). CPC also acknowledges representations that HSS has made about staffing and scheduling so as to minimize potential conflicts between the Hospital's current loading activity and vehicles exiting the FDR Drive onto East 71st Street (CPC Report, at 20-21).
Respondents' explanation as to the functionality of the interconnected buildings and the impact that has on the number of required loading berths is reasonable. In addition, as discussed above, HSS has two additional loading areas besides the two loading berths, and HSS has made representations as to the manner in which it intends to utilize the loading facilities so as to reduce the potential adverse impacts (see e.g. FEIS, at Exhibit 18 [letter from Lisa Goldstein, Executive Vice President and COO of HSS to CPC]; FEIS Exhibit 28, at 143-44 [testimony of Deborah M. Sale, HSS Executive Vice President]; FEIS Exhibit 28, at 186-89 [testimony of Eric Arsman, Senior Vice President of Sam Schwartz Engineering, which reviewed plans for the River Building at HSS's request]; Wolff Aff. ¶¶ 90-91).
Petitioners also argue that the size requirements for the loading berths have not been met. Two of the existing loading berths (berths two and three) measure only 9 ½ feet in width with a depth of only 20 feet. Also, the fourth berth (located on East 70th Street) has an entrance height of only 8 feet, less than the required 12 feet. ZR § 25-74 (Size of required berths) provides that in the R9 zoning district, all required off-street loading berths must have the following minimum dimensions for hospitals and related facilities: length 33 feet, width 12 feet, and vertical clearance 12 feet.
According to respondents, at the time that the West Wing was built, the zoning regulations governing loading berths in effect at that time permitted two adjoining berths with no columns in between to measure 10 feet wide. Thus, the loading berths built at the time of construction of the West Wing are grandfathered and need not comply with the current requirements of ZR § 25-74 (Wolff Aff. at 47; City of New York v 330 Cont., LLC, 60 A.D.3d 226, 234 [1st Dept 2009]; ZR § 52-11 [providing for the continuation of non-conforming use]). Respondents assert that HSS's plans show the width is "+/- 20 feet" which complies with the old regulations (id. at 93). Petitioners counter that the berths, taken together, measure 19 feet, not the required 20 feet. This does not create an issue of fact, because these loading berths have been operating for decades, and even by petitioners' measurements, there is substantial compliance with the regulations. Hence, petitioners' reference to a 20-year old 1992 self-certification that permitted the construction of the East Wing is inconsequential.
Furthermore, as discussed above, the Municipal Respondents have determined that the loading berths serving the expanded HSS satisfies the requirements of the ZR concerning: (1) adequacy to serve the requirements of the institution; (2) accessibility to all of HSS's uses without the need to cross any street at grade; and (3) the location, so as not to adversely affect the movement of pedestrians or vehicles on the streets within or surrounding such institution (see CPC Report, at 19-21).
Petitioners object to the impact that they claim the project will have upon their use and access to the waterfront areas. Specifically, the "hulking mass" of the proposed 12-story River Building would impede and impair the public's ability to view the Queensborough Bridge from the 72nd Street Overlook, eliminating the existing view of the bridge. Petitioners allege that the FEIS failed to take a hard look or mitigate (1) impairment of existing physical, visual, and recreational access to the waterfront, (2) impairment of and visual access to historical scenic resources, and (3) incompatibility of the project's design with existing scenic elements such as landmarks.
The claim that the FEIS did not take the requisite hard look is belied by a review of Section 12 of the FEIS. The FEIS outlines the WRP"s 10 polices, and examines the impact of the project on each one. Petitioners' complaint mainly falls under policies eight and nine which pertain to preserving the public's physical, visual, and recreational access to the waterfront and protect scenic resources that contribute to the visual quality of the City's coastal area.
The FEIS states that some visual access to the waterfront would be partially blocked (1) by the support columns for the River Building when standing under the ramp to the public pedestrian bridge and (2) looking north from atop the public pedestrian bridge where it crosses the FDR Drive and when looking south from the 72nd Street Overlook, but concludes that the project would not have a substantial adverse impact on the existing waterfront resources. Certain views are already obstructed, and the additional visual impairments would be incremental, the view looking in all directions from the eastern end of the pedestrian bridge would be preserved, and the bridge would continue to provide access to the Esplanade (see FEIS, at 27-21).
According to Wilbur Woods, director of the Waterfront and Open Space Division of DCP, the project would not hinder any of the WRP policies, including policy number eight, because the project's design preserved views of the East River from East 71st Street, notwithstanding that the proposed pedestrian bridge would partially block the view of the sky looking east. The bridge would be located near and nearly parallel to the existing bridge, which minimizes the additional reduction in the view of the sky. Views of the water along this "visual corridor" (as defined in the CEQR Technical Manual) would be preserved (Affidavit of Wilbur Woods, sworn to March 4, 2009 [Woods Aff.], ¶ 20).
Respondents reason that the incremental obstruction of the views from the Esplanade would be not significant because (1) the structural bracing of the V-Columns is open and minimally reduces obstruction to views; (2) the minimal loss of views can be offset by similar views at other nearby locations; and (3) the surrounding "built fabric" would be improved through the replacement of an open stretch of the FDR with an architecturally distinguished building, built in accordance with the 1973 agreement, as amended (Woods Aff. ¶ 21). The Municipal Respondents made a "reasoned elaboration" for the basis of their determination (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417).
Petitioners assert that the installation of the support columns for the River Building will cause the closure of the Esplanade for at least four to six months, perhaps longer. Petitioners assert that this will result in the alienation of parkland in violation of the public trust doctrine. Respondents argue that: (1) the Esplanade is not mapped as parkland, (2) even if it were, the project will not result in a violation of the public trust doctrine, and (3) the 1971 legislation constitutes express legislative approval.
The public trust doctrine provides that "parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes" (Friends of Van Cortlandt Park v City of New York, 95 N.Y.2d 623, 630 [2001], citing Williams v Gallatin, 229 N.Y. 248 [1920]). As was found to be the case in Powell v City of New York (85 A.D.3d 429, 431[1st Dept], lv denied 17 N.Y.3d 715 [2011]), which was decided after the parties in this proceeding submitted their legal memoranda, the walkway along the East River (Bobby Wagner Walk) is not parkland. The Esplanade was never mapped as a park (Affirmation of Alison McCabe, at 7).
Even if it were deemed parkland, legislative approval is not required because the project will not "substantially interfere with access to or use of the facilities," and the construction is anticipated to last for less than one year (Powell v City of New York, 85 AD3d at 431). Also, completion of the project will not cause the elimination of the park-like activities noted by petitioners such as biking, walking, and jogging. Even during the period of construction, HSS has represented that it will limit the closure to four to six months, and make the Esplanade open on weekends when possible, and safety permitting (FEIS, at 20-5).
Petitioners argue that the construction above the FDR Drive and its impact upon the Esplanade and neighboring protected land uses would violate the 1973 and 1993 agreements. It cites the 1993 agreement that "prohibits construction that would penetrate, occupy, or obstruct' the wider of either (a) the area between the eastern most edge of the FDR and the pierhead-bulkhead line, or (b) within 25 feet west of the pierhead bulkhead line (1993 amendment, ¶ 13)."
Paragraph 13 provides an exception, however, for "the placement therein of support columns, connecting girders and structural bracing that are found to be necessary and appropriate for permitted construction in their respective Spaces," provided that CPC finds that such structures do not "substantially (i) interfere with pedestrian use and enjoyment of the FDR Drive Existing Walkway, (ii) restrict light and air to the FDR Existing Walkway, (iii) detract from the visual quality of the waterfront area, and (iv) imped[e] vehicular traffic use of the FDR Drive, East 63rd, East 70th or East 71st Streets" (FEIS at 27-21).
Petitioners also argue that ZR § 74-682 establishes that the project cannot use unused floor area from that portion of an adjoining zoning lot not within demapped air space. Allegedly, HSS is improperly using 34,595 feet of unused floor areas from the adjacent Belaire Building, and that would only be proper if the Belaire Building was designated a "community facility." Instead, petitioners claim, it is being used as a transient hotel which renders it ineligible to transfer air rights to HSS for this project.
Petitioners' assertion fails to account for a "zoning lot and declaration agreement," pursuant to which there was a merger between the Belaire Building's zoning lot and the rest of the HSS zoning lot so that they would be treated a single zoning lot (Wolf Aff. ¶¶ 102-108; FEIS, Exhibit 44 ["Amended and Restated Zoning Lot Description and Ownership Statement," dated as of February 14, 2006]). Furthermore, as explained by Wolff, the so-called "transient hotel" is actually family and staff visiting units. This does not create a factual issue, because, as explained by Wolff, and without rebuttal by petitioners, any unlawful use may be enforced by DOB, but would not affect the FAR permitted on the zoning lot pursuant to the ZR (Wolff Aff. ¶ 110).
As for the fourth cause of action in the petition alleging unlawful "spot zoning," illegal spot zoning is defined as "the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners" (Matter of Miller v Kozakiewicz, 289 A.D.2d 494 [2d Dept 2001] [internal quotation marks and citation omitted]). Petitioners do not assert this claim in their memoranda of law, the petition does not explain the basis for the claim, and that the project entails unlawful spot zoning is not apparent to the Court.
Finally, as for petitioners' motion seeking a hearing to allow them to present evidence to demonstrate that the existing loading berths at the HSS are non-conforming and non-compliant, that request is denied as moot for the reasons stated above. Moreover, in the 2009 Stipulation, the parties agreed that, should the proceeding be restored to the calendar, it shall be "deemed submitted to the Court at such time on original pleadings and memoranda heretofore submitted to the Court, it being the Parties' express understanding and agreement that, should the Proceeding be restored to the Court's calendar, no further pleadings, affidavits or memoranda shall be submitted unless specifically ordered by the Court." Notwithstanding this agreement, the motion for a hearing enabled the parties to make additional submissions, none of which indicates the necessity for a hearing.
For the reasons discussed above, the petition is denied, the proceeding is dismissed, and the motion for a hearing is denied. The petition must be dismissed because the determination by the Municipal Respondents was not affected by an error of law, was neither arbitrary nor capricious, and it did not constitute an abuse of discretion (CPLR 7803 [3]; Akpan v Koch, 75 N.Y.2d 561, 570, mot to amend denied, 76 N.Y.2d 846 [1990]; Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 416 [1986]). The FEIS thoroughly addressed and analyzed all of the relevant environmental factors. The agency review constituted the requisite "hard look." Its methodology was sound and its conclusion had a rational basis.
Accordingly, it is
ORDERED that motion 002 is denied; and it is further
ORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed; and it is further
ORDERED that the cross motion is denied; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This constitutes the decision, order, and judgment of this Court.
