Opinion
INDEX NO. 514122/2019
07-31-2020
HYGRADE GLOVE AND SAFETY COMPANY, YESHIVA B'NAI SHIMON YISROEL, NEIGHBORS ALLIANCE FOR SAFE ENVIRONMENT, INC., PETITIONERS, SEEKING A DETERMINATION THROUGH AN ARTICLE 78 PROCEEDING THAT THE LATEST REDESIGN OF THE NYC DEPARTMENT OF SANITATION GARAGE "BROOKLYN COMMUNITY DISTRICT 3 GARAGE"(OR "BROOKLYN 3/3A GARAGE") BY THE NYC DEPARTMENT OF SANITATION AS "LEAD AGENCY" AND AS CONTAINED IN A FEBRUARY 28, 2019 TECHNICAL MEMORANDUM/SEAS AND ASSOCIATED DRAWINGS, ETC. IS ARBITRARY AND/OR CAPRICIOUS, AND INVALID AS A MATTER OF LAW AND SHOULD BE ANNULLED, v. THE CITY OF NEW YORK AND ITS DEPARTMENT OF SANITATION, RESPONDENTS.
NYSCEF DOC. NO. 94 At an IAS Term, Part 22 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 31th day of July, 2020. PRESENT: HON. ROSEMARIE MONTALBANO, Justice. Mot. Seq. Nos. 1 and 2 The following e-filed papers read herein:
| NYCEF Doc # | |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion andAffidavits (Affirmations) Annexed | 1-7 11-15, 29 |
| Opposing Affidavits (Affirmations) | 34-54 16-21, 56-76 |
| Reply Affidavits(Affirmations) | 79-89 22-27 |
| Memoranda of Law | 55-78 77 |
Upon the foregoing papers, by a notice of petition dated June 25, 2019, petitioners Hygrade Glove and Safety Company (Hygrade), Yeshiva B'nai Shimon Yisroel (the Yeshiva), and Neighbors Alliance for Safe Environment, Inc. (Neighbors Alliance) (collectively, petitioners) move, under motion sequence number one, for an order, pursuant to CPLR 7803 (3), granting the petition and determining that the Technical Memorandum issued by the New York City Department of Sanitation (the DSNY) and the "hard look" taken by the DSNY, as the lead agency, in the matter of the proposed Brooklyn Community District 3 Sanitation Garage (the BK3 Garage) was a determination made in violation of law and/or lawful procedure, was affected by error of law, or was arbitrary and capricious or an abuse of discretion, and is invalid and a legal nullity. Petitioners further move, by order to show cause signed on July 20, 2019, under motion sequence number two, for an order, pursuant to CPLR 7805, staying any and all work, construction, or other activity for the BK3 Garage project, including but not limited to site remediation in accordance with a certain site mitigation plan and/or a contract with MPCC Corp., under or pursuant to an award letter dated March 1, 2019 for the construction of the BK3 Garage, pending the final outcome of the instant litigation.
The temporary restraining order sought in this order to show cause was denied.
Facts and Procedural Background
The construction in Community District 3 (CD3) of a new sanitation garage was first proposed in 2000 due to the absence of a sanitation garage in that district. The purpose of the BK3 Garage is to enable the DSNY to assure its efficiency in maintaining timely service delivery, including refuse and recycling collection, street cleaning, Sanitation Code enforcement, and winter emergency response to CD3.
The site for the BK3 Garage is located on Block 1718, Lot 1 (the site), which is approximately 2.46 acres, and is in north central Brooklyn. The site is south of Flushing Avenue, and is bounded by Nostrand Avenue to the east, Park Avenue to the south, and Sandford Street/Warsoff Place to the west. The site is located in an M1-2 zoning district, which permits as-of-right industrial uses. The BK3 Garage is to be a 211,678 square-foot structure with a cellar that will house all DSNY personnel and equipment used in providing sanitation services to CD3, as well as parking spaces for the DSNY's vehicles and staff.
Prior to selecting the site as the location for the BK3 Garage project and acquiring the property for the site, the DSNY was obligated to submit the BK3 Garage project to the City's Uniform Land Use Review procedure (ULURP), a standardized public review procedure mandated by section 197-c of the New York City Charter for certain types of City land use applications, and to assess the potential adverse environmental impacts of the BK3 Garage under the State Environmental Quality Review Act (SEQRA) (see Environmental Conservation Law § 8-0101 et seq.) and its local City counterpart, the Rules of the City of New York governing City Environmental Quality Review (CEQR) (see 62 RCNY 5-01 et seq.). Pursuant to SEQRA and CEQR, State and local agencies are required to assess potential significant adverse environmental impacts of discretionary actions before undertaking, funding, or approving such actions, unless they fall within statutory or regulatory exemptions (6 NYCRR 617.9). The relevant CEQR provisions are substantively the same as those under SEQRA (62 RCNY 5-01).
If the lead agency finds that the action is subject to SEQRA, it performs an initial review called an Environmental Assessment Statement (EAS). The purpose of an EAS is to identify and consider the areas in which the action may create significant environmental impacts based on the criteria articulated in SEQRA (6 NYCRR 617.6 [a]; 62 RCNY 5-02 [b] [2]). After reviewing the EAS, the lead agency must issue a "determination of significance." If the lead agency finds that the action may have one or more potential significant adverse impacts on the environment, the lead agency issues a positive declaration. When a positive declaration is issued, an Environmental Impact Statement (EIS) is required (see 6 NYCRR 617.7 [a] [1]). In that case, certification into the City's ULURP occurs after issuance of the draft EIS. On the other hand, if the lead agency finds that the action will not have the potential for a significant adverse impact on the environment, it issues a negative declaration determining that an EIS is not required, ending the environmental review process (see 6 NYCRR 617.12; 62 RCNY 5-03, 5-05). In that case, certification into the City's ULURP occurs after the issuance of a negative declaration.
On June 20, 2000, the DSNY and the Department of Citywide Administrative Services filed a ULURP application with the Department of City Planning (the DCP) for public facility site selection and property acquisition of the site for use as a garage. For purposes of the SEQRA/CEQR review, the DSNY was designated as the lead agency. The DSNY's environmental review included the preparation of an EAS in 2001 in support of the DSNY's design and site selection for the BK3 Garage. The DSNY was guided by the CEQR Technical Manual, which is a set of guidelines used to ensure consistency in the City's review process and the authoritative guidance for conducting environmental reviews in the City. In July 2001, the DSNY, with assistance from the DSNY's consultant and the City's expert agencies, completed the EAS (the 2001 EAS), which analyzed the BK3 Garage project's potential environmental impacts upon, among other things, traffic, air quality, noise, and neighborhood character. The 2001 EAS concluded that the BK3 Garage would not have the potential to cause any significant adverse environmental impacts. Following the preparation of the 2001 EAS, the DSNY issued a negative declaration on July 20, 2001, determining that the BK3 Garage project would not have a significant adverse impact on the environment and, therefore, that an EIS was not required. On July 23, 2001, the DCP certified the ULURP application for the BK3 Garage as complete.
On September 10, 2001, Brooklyn Community Board 3 considered and unanimously recommended approval of the ULURP application. Thereafter, on or about November 14, 2001, the then Brooklyn Borough President Howard Golden also recommended approval of the ULURP application. On November 21, 2001, the City Planning Commission (the CPC) held a public hearing on the ULURP application, and on December 5, 2001, the CPC voted to approve the ULURP application. On December 6, 2001, the CPC notified the City Council of its approval of the ULURP application. The City Council did not call the application for a vote and the ULURP application was, therefore, deemed approved.
On October 10, 2003, after obtaining approval by the CPC and the City Council of the ULURP application for the selection of the site for the BK3 Garage, the City commenced a condemnation proceeding to acquire title to the site, and the City ultimately took title to the site in December 2004. In 2007, the City's Office of Management and Budget completed a value engineering review of the BK3 Garage to ensure that it had a cost effective design.
Design work on the BK3 Garage and the plans for its construction, however, paused in 2008 due to an economic downturn and serious fiscal issues which were confronting the City at that time. Eight years later, in 2016, funding for the BK3 Garage project was restored, and design work for the BK3 Garage project was resumed.
In the interim, the City allowed the site's tenant, Monroe Bus Company, to continue using much of the site for bus parking and maintenance under a month-to-month tenancy. Starting in 2013, another month-to-month tenant, Central United Talmudical Academy, was allowed to park school buses on part of the site. In 2016, the City gave the tenants two years' notice to vacate the site. Following lengthy legal proceedings by the City against Monroe Bus Company, which had ceased paying rent in 2018, Monroe Bus Company left the site as of June 28, 2019.
On May 18, 2018, the Public Design Commission (the PDC) issued final approval for the BK3 Garage design. After final approval by the PDC, the DSNY initiated the contract procurement process for the construction of the BK3 Garage. On March 1, 2019, following a competitive bidding process by sealed bids, the DSNY awarded a contract in the amount of $169,373,773 to MPCC Corp. to construct the BK3 Garage. On July 1, 2019, site preparation activities for the construction of the BK3 Garage began, and they presently remain underway.
Prior to awarding the contract for the construction of the BK3 Garage to MPCC Corp., the DSNY prepared an updated environmental analysis for the BK3 Garage, which was included in a Technical Memorandum, dated February 28, 2019. In the Technical Memorandum, which is 20 pages long with approximately 200 pages of supporting appendices, the DSNY considered, in detail, new information, including the change in the build year for the BK3 Garage, certain proposed changes to the BK3 Garage site plan, changes to legal requirements, updated guidelines for performing an environmental review, and changes to the neighborhood study area, in order to determine whether the BK3 Garage, as updated, would have the potential for a significant adverse impact to the environment and thereby change the conclusion of the 2001 EAS and negative declaration so as to warrant the preparation of a draft EIS.
Like the 2001 EAS, the Technical Memorandum describes the existing conditions in the area surrounding the BK3 Garage and compares the future "With Action" condition (i.e., building the BK3 Garage) with the "Future Without the Action" or "No Action" condition (i.e., the continued operation of a bus storage and maintenance facility at the site) to assess the potential incremental impacts attributable to the BK3 Garage. In this regard, the Technical Memorandum notes that the BK3 Garage is being built in an industrial M1-2 zoning district and on a site that had been used as a bus storage, maintenance, and refueling depot for more than two decades. At the time of the 2001 EAS, Monroe Bus Company, who, as noted above, was the former tenant, occupied a two-story bus garage with offices on the second floor, which conducted fueling operations with an underground diesel storage tank and dispenser. Monroe Bus Company and Central United Talmudical Academy, who, as previously noted, was the other former occupant of the site, had used the site for parking and maintenance with approximately 180 vehicles, mostly buses with some automobiles and trucks, arriving and departing from a driveway on Warsoff Place.
The Yeshiva has its private religious school at 18 Warsoff Place, which is across from the BK3 Garage site. The Yeshiva continues to operate as a non-conforming use, pursuant to a 1997 special permit, which requires it to maintain noise-attenuating windows and to provide staff to monitor students entering and leaving buses on Warsoff Place because of the existing potential for conflicts with vehicles in this industrial area.
The Technical Memorandum describes and analyzes various minor modifications and improvements to the BK3 Garage design since the 2001 EAS. As set forth in the Technical Memorandum, the final design for the BK3 Garage reduces the bulk and height of the building by relocating space for employee parking to a cellar and incorporates environmentally sustainable design elements, such as a roof with solar panels, with the goal of attaining at least Leadership in Energy Environmental Design (LEED) Silver status. There will be no outdoor storage of the DSNY's trucks or equipment, and all employee parking will be accommodated inside the BK3 Garage. Vehicular access to the BK3 Garage, including employee access, will still be by way of Warsoff Place, and, therefore, away from the neighboring residential district and the Marcy Houses to the east of Nostrand Avenue. While the original design of BK3 Garage included three curb cuts (entry or exit driveways) of 75, 85, and 100-foot width on Warsoff Place, the final design has now reduced vehicle access to two curb cuts of 56-feet 9-inches and 63-feet 9-inches in order to reduce the total area of infringed physical space where pedestrians may need to cross the driveways. There have also been changes in the traffic regulations since 2001, which, along with the changes in the curb cuts, are stated to make the BK3 Garage safer from a pedestrian and traffic standpoint, as compared to the design analyzed in the 2001 EAS.
As noted in its website, LEED is a green building rating system.
The Technical Memorandum, as supported by its appendices, identifies and elaborates upon areas of potential conflict and considers them in detail. Following this detailed consideration, the Technical Memorandum sets forth that the DSNY, as the lead agency, concludes that the new information with respect to the proposed BK3 Garage project does not alter the conclusion of the 2001 EAS and negative declaration finding that there was no potential for a significant adverse impact to the environment from the proposed BK3 Garage project, and, therefore, the preparation of a draft EIS was not warranted.
Petitioners consist of Hygrade, the Yeshiva, and Neighbors Alliance. Hygrade has a business and offices at 30 Warsoff Place. As discussed above, the Yeshiva has its private religious school located at 18 Warsoff Place. Neighbors Alliance is a not-for-profit corporation with offices on Flushing Avenue, directly across from the intersection of Flushing Avenue and Warsoff Place.
On March 26, 2004, Hygrade and the Yeshiva, along with others, previously filed an action, under index No. 8828/04, challenging the negative declaration in the 2001 EAS (the prior action) (see Matter of City of New York, 5 Misc 3d 1014[A], 2004 NY Slip Op 51375[U] [Sup Ct, Kings County 2004], appeal dismissed 32 AD3d 1031 [2d Dept 2006], lv denied 7 NY3d 921 [2006]). In the prior action, petitioners and others sought a permanent injunction barring the City from condemning the site and preventing the construction of the BK3 Garage, as well as a judgment declaring that the 2001 EAS for the BK3 Garage project was invalid and vacating the DSNY's negative declaration. Petitioners claimed that the approval of the BK3 Garage project was illegal, fraudulent, and an abuse of discretion as a result of alleged misrepresentations in the DSNY's application and in the approval process. Specifically, petitioners claimed that the 2001 EAS used inaccurate counts of the number of employees and the amount of traffic that would be utilizing the BK3 Garage and failed to properly consider the impact of the BK3 Garage on the neighborhood and the Yeshiva. Justice Abraham Gerges dismissed the petition, finding that the DSNY had met its obligations under SEQRA by taking the requisite hard look at the BK3 Garage and its potential impacts on the environment, and that the DSNY's determination that the BK3 Garage project would not result in any significant environmental impacts was not arbitrary or capricious. Justice Gerges, in the prior action, also denied petitioners' demand for a preliminary injunction.
There has also been other related litigation between petitioners and respondents regarding the BK3 Garage project. Presently, a declaratory judgment action has been filed by petitioners, under index number 528164/19, and respondents' motion to dismiss that action is the subject of a decision and order rendered by the court in that case.
On June 26, 2019, petitioners filed their instant petition and notice of petition against respondents the City of New York (the City) and the DSNY (collectively, respondents), contending that the DSNY's environmental review of the updated BK3 Garage design violates SEQRA and CEQR, and that the BK3 Garage also does not comply with local laws. On July 25, 2019, petitioners filed their instant order to show cause for a stay of the BK3 Garage project.
On September 25, 2019, DSNY filed its answer to the petition. The DSNY asserts that petitioners' claims are without any basis in fact or support in law. The DSNY maintains that it, in the Technical Memorandum, in accordance with legal requirements, identified areas of potential impact, took a hard look at those areas, and reasonably determined prior to awarding the contract to MPCC Corp. to construct the BK3 Garage that it would have no significant adverse environmental impacts and that the new information did not alter its conclusion based on the 2001 EAS to issue a negative declaration for the BK3 Garage project.
Discussion
"SEQRA gives the lead agency the discretion to determine whether changes in the scope of the project, new information, or a change in the underlying circumstances necessitate the issuance of a [supplemental EIS]" (Matter of Ordonez v City of New York, 60 Misc 3d 1213[A], 2018 NY Slip Op 51093[U], *2 [Sup Ct, NY County 2018]; see also Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231 [2007], citing 6 NYCRR 617.9). In making this determination, the lead agency is required to review "the environmental issues . . . and must make an independent judgment that they would not create [a] significant environmental impact" (Matter of Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Bd., 153 AD3d 823, 828 [2d Dept 2017] [citations and internal quotation marks omitted]).
"Since [p]roject modifications may occur after the conclusion of the environmental review process, technical memoranda are used to analyze whether the conclusions in the completed environmental review would be affected by the proposed modifications" (Matter of Rimler v City of New York, 53 Misc 3d 1212[A], 2016 NY Slip Op 51627[U], *7 [Sup Ct, Kings County 2016], affd 172 AD3d 868 [2d Dept 2019]). "In such an analysis, a technical memorandum examines the increment between the project as originally proposed and the project with the newly proposed modifications" (id.). The lead agency will thus reach its decision in reliance on the "technical memorandum which assesses the impact of the changes" (Matter of Ordonez, 2018 NY Slip Op 51093[U], *2; see also Matter of Kellner v City of N.Y. Dept. of Sanitation, 107 AD3d 529, 529-530 [1st Dept 2013]). A hearing or a public comment period is not required in response to the technical memorandum (see Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 429 [1986]; Matter of Coalition Against Lincoln W., Inc. v Weinshall, 21 AD3d 215, 223 [1st Dept 2005], lv denied 5 NY3d 715 [2005]; Matter of Ordonez, 2018 NY Slip Op 51093[U], *2).
A court's review of a lead agency's SEQRA findings is afforded considerable deference as "'"it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively"'" (Matter of River St. Realty Corp. v City of New Rochelle, 181 AD3d 676, 679 [2d Dept 2020], quoting Matter of Bonacker Prop., LLC v Village of E. Hampton Bd. of Trustees, 168 AD3d 928, 931 [2019], lv denied 33 NY3d 904 [2019], quoting Matter of Jackson, 67 NY2d at 416). "The court's role is not to second-guess the agency's determination" (Matter of Brunner v Town of Schodack Planning Bd., 178 AD3d 1181, 1183 [3d Dept 2019]). A court "may not substitute [its] judgment for that of the agency" (Matter of Riverkeeper, Inc., 9 NY3d at 232; see also Matter of Keil v Greenway Heritage Conservancy for Hudson Riv. Val., Inc., 184 AD3d 1048 [3d Dept 2020]).
"Judicial review of an agency determination under SEQRA [and CEQR] 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., 9 NY3d at 231-232, quoting Matter of Jackson, 67 NY2d at 417 [internal quotation marks omitted]; see also Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688 [1996]; Akpan v Koch, 75 NY2d 561, 570 [1990]; Favre v Planning Bd. of the Town of Highlands, ___ AD3d ___, 2020 NY Slip Op 03779, *2 [2d Dept 2020]; Matter of River St. Realty Corp., 181 AD3d at 679; Matter of Rimler v City of New York, 172 AD3d 868, 871 [2d Dept 2019]; Matter of Star Prop. Holding, LLC v Town of Islip, 164 AD3d 799, 801 [2d Dept 2018]). SEQRA and CEQR allow an administrative agency "considerable latitude in evaluating the environmental impacts" of a proposed project since they do "not require [the] agency to act in any particular manner" nor do they require that the agency reach any "particular substantive results" (Aldrich v Pattison, 107 AD2d 258, 267 [2d Dept 1985]; see also Matter of Rimler, 2016 NY Slip Op 51627[U], *18).
This standard of review also applies to a lead agency's determination as to whether changes in the scope of the project, new information, or a change in the underlying circumstances necessitate the issuance of a supplemental EIS (see Matter of Riverkeeper, Inc., 9 NY3d at 231; Matter of Brooklyn Hgts. Assn., Inc. v New York State Urban Dev. Corp., 58 Misc 3d 1222[A], 2018 NY Slip Op 50211[U], *18 [Sup Ct, NY County 2018]). While here, an EAS, rather than an EIS, was issued, the lead agency similarly considered whether an EIS would now be necessary, rendering the same standard applicable (see generally Matter of Riverkeeper, Inc., 9 NY3d at 231-232; Matter of Favre v Planning Bd. of Town of Highlands, ___ AD3d ___, 2020 NY Slip Op 03779, *2 [2d Dept 2020]; Matter of South Bronx Unite! v New York City Indus. Dev. Agency, 115 AD3d 607, 610 [1st Dept 2014], lv denied 24 NY3d 908 [2014]; Matter of Brooklyn Hgts. Assn., Inc., 2018 NY Slip Op 50211[U], *18).
In their petition, petitioners challenge the findings in the Technical Memorandum. They contend that the DSNY did not take a hard look using reasoned elaboration analysis in its Technical Memorandum when it found that no change in its negative declaration was required. The petition asserts 11 causes of action, namely, a first cause of action regarding narrower curb cuts to the entrance and exit to the BK3 Garage, a second cause of action alleging that there was no empirical evidence about safety, a third cause of action alleging the use of erroneous or incomplete information about replacement trips and parking, a fourth cause of action alleging the use of erroneous information about dangerous intersections, a fifth cause of action alleging the failure to use complete information with respect to all 14 intersections, a sixth cause of action alleging that there was no reasoned elaboration about the fueling island in the BK3 Garage and traffic congestion, a seventh cause of action alleging that there was a failure to comply with the 2014 CEQR Technical Manual because of the HDR Traffic Study's use of a 2000 Highway Capacity Study instead of the 2010 Highway Capacity Study to measure urban traffic conditions, an eighth cause of action alleging that there was no reasoned elaboration and a lack of empirical evidence that adding one to two seconds to traffic lights mitigates traffic congestion, a ninth cause of action alleging a failure to strictly comply with the 2014 CEQR Technical Manual regarding replacement parking, a tenth cause of action alleging a failure to fully comply with Local Law 84 of 2013 (LL 84/2013) regarding energy savings and air quality, and an eleventh cause of action alleging a failure to comply with Local Law 22 of 2017 (LL 22/2017), the Percent for Arts Program.
HDR was formerly known as Henningson, Durham and Richardson, Inc., an engineering company.
In support of their petition, petitioners submit a report by their expert engineer, Steven Schneider, P.E. (Mr. Schneider), the principal of Schneider Engineering, PLLC, dated June 20, 2019, who was retained to analyze and review the traffic impacts indicated in the Technical Memorandum for the proposed BK3 Garage. Mr. Schneider opines that there are major concerns with the future traffic impacts of the BK3 Garage, which were not considered and supported. He specifies that these concerns include: unconventional garage egress placement because the entrance is on the southerly side of Warsoff Place and the exit is on the northerly side of Warsoff Place; the fueling station layout in the BK3 Garage could cause bottlenecking at times when trucks are fueling up, which could cause congestion and queueing on Warsoff Place; effects of reduced parking in the BK3 Garage for the DSNY staff's passenger vehicles; effects of reduced parking on Warsoff Place and Flushing Avenue; no evidence or a study supporting the conclusion that smaller curb cuts would require the DSNY drivers to be more cautious in making turns; the lack of a discussion in an HDR 2019 updated traffic impact study dated February 27, 2019 (which was annexed as appendix 8 to the Technical Memorandum) as to how to mitigate high accident rates; the issue of pedestrian safety due to new vehicle and truck traffic imposed by the BK3 Garage; no evidence that the addition of one to two seconds to the cycles of traffic signals will improve levels of services at intersections; and the 2019 HDR Study's failure to use the latest version of the Highway Capacity Manual to perform its intersection analysis. Mr. Schneider asserts that these issues must be reevaluated as soon as possible.
Petitioners also annex the affidavit of another expert engineer, Robert Lo Pinto, P.E. (Mr. Lo Pinto), a professional engineer with Walden Associates. Mr. Lo Pinto asserts that the DSNY did not provide for on-site parking to replace lost spaces for the vehicles involved in garage activity in the latest redesign of the BK3 Garage. He states that there is also no basis for the DSNY's conclusion that the fueling island will not create a traffic impact. He further states that there is no empirical evidence that the narrower curb cuts will result in greater pedestrian and vehicle safety because the drivers will have to slow down and be more careful to make the 90 degree turn from narrow Warsoff Place into the BK3 Garage. He sets forth that if narrower curb cuts resulted in greater safety, they would have been narrower in the original design. He also sets forth that because the BK3 Garage's exit and entrance that were part of the earlier designs are now reversed, this creates greater traffic on Warsoff Place without making any mitigation for this. In addition, Mr. Lo Pinto questions where the 40 yellow school buses and 40 private cars of the school bus drivers will park now that Monroe Bus Company has been evicted from the site. He also Criticizes the fact that the air quality measuring device in place to ascertain potentially hazardous levels of contaminants will only have measurements taken at grade level and not on the second floor where the Yeshiva's students have classes diagonally across from the northmost portion of the site.
Petitioners, following service of respondents' opposition papers, have submitted a supplemental reply expert report by Mr. Schneider, dated October 18, 2019. Mr. Schneider, in his reply expert report, focuses on the claims made by petitioners with respect to the curb cuts, the fueling island, on-site and on-street parking, pedestrian safety, and mitigation for traffic congestion.
In opposition, respondents have submitted the affidavit of Steven Brautigam (Mr. Brautigam), the assistant commissioner for environmental affairs in the DSNY bureau of legal affairs, dated September 25, 2019, and the affidavit of Naim Rasheed, the assistant commissioner of the division of transportation planning and management of the New York City Department of Transportation (the NYCDOT), dated September 25, 2019. These affidavits address petitioners' claims that the DSNY did not take the requisite hard look at the relevant areas of environmental concern, used incomplete or erroneous information, or utilized improper methodologies in the Technical Memorandum's transportation analysis, including pedestrian safety, traffic, and parking.
Respondents have also submitted the affirmation of David Sugarman, an agency attorney in the bureau of legal affairs at the DSNY, who states that construction of the BK3 Garage project should be permitted to move forward and that postponing it would cause the DSNY to suffer considerable financial loss.
Mr. Brautigam asserts that contrary to petitioners' claims, the Technical Memorandum analyzed each of these sub-technical areas, referred to by petitioners, in an appropriate degree of detail, consistent with guidance set forth in the CEQR Technical Manual. He sets forth that the DSNY took the requisite hard look at the BK3 Garage's potential impacts and reasonably found that the BK3 Garage still would not have the potential for significant adverse impacts.
With respect to petitioners' claim that the DSNY did not take a hard look at potential impacts to pedestrian safety and that the Technical Memorandum should have found significant impacts and discussed mitigation measures, Mr. Brautigam explains that the DSNY conducted a thorough vehicle and pedestrian safety analysis following the methodology in the CEQR Technical Manual and reasonably concluded that the BK3 Garage would not have the potential for significant adverse impacts to pedestrian safety. He specifies that the DSNY, in consultation with the traffic experts at the NYCDOT and with support from traffic consultant HDR, identified a total of 23 intersections in the study area of the BK3 Garage, and followed guidance in the CEQR Technical Manual to determine whether any were high crash locations warranting further study. He notes, citing to the CEQR Technical Manual at 16-49, that the CEQR Technical Manual defines a "high crash location" as one with 48 or more total reportable and non-reportable crashes or five or more pedestrian/bicyclist injury crashes occurring in any consecutive 12-month period. Mr. Brautigam points out that Mr. Schneider misinterprets the CEQR Technical Manual's guidance with respect to what constitutes a "high crash location" since he claims that a "high crash location" is any intersection that has experienced five or more accidents in a 12-month period, whereas the Technical Manual defines a "high crash location" as one with five or more pedestrian/bicyclist crashes in a 12-month period (not five or more total crashes) or 48 or more total crashes.
Mr. Schneider, in his reply expert affidavit, concedes that the CEQR Technical Manual defines a "high crash location" as one with five or more pedestrian/bicyclist accidents within a 12-month period or 48 or more crashes. He states that a different manual, the Manual on Uniform Traffic Design, defines a "high crash location" as having five or more total accidents within a 12-month period. However, as noted above, the CEQR Technical Manual is the authoritative guidance for conducting environmental reviews in the City (see Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 30 NY3d 416, 427 [2017], rearg denied 1 NY3d 929 [2018]; Matter of Ordonez, 2018 NY Slip Op 51093[U], *4; Matter of Rimler, 2016 NY Slip Op 51627[U], *18; Matter of Board of Mgrs. of the Plaza Condominium v New York City Dept. of Transp., 43 Misc 3d 1219[A], 2014 NY Slip Op 50718[U], *4-5 [Sup Ct, NY County 2014], affd 131 AD3d 419 [1st Dept 2015]; Matter of Landmark West! v Burden, 3 Misc 3d 1102[A], 2004 NY Slip Op 50331[U], *5 [Sup Ct, NY County 2004], affd sub nom. Landmark WestA v Burden, 15 AD3d 308 [1st Dept 2005], lv denied 5 NY3d 713 [2005]). Thus, Mr. Schneider's use of a different manual with a higher standard does not render the conclusion of the Technical Memorandum arbitrary or capricious.
Mr. Brautigam further points out that pursuant to the CEQR Technical Manual, the existence of a "high crash location" by itself is not an impact, and that a significant adverse impact exists only where a project would be reasonably expected to exacerbate preexisting safety conditions at a "high crash location." Mr. Brautigam explains that the DSNY, using the threshold in the CEQR Technical Manual, identified for further study two high crash locations that had each experienced more than five pedestrian/cyclist collisions in a 12-month period, i.e., the intersection of Bedford and Flushing Avenues and the intersection of Nostrand and Myrtle Avenues, and that the remaining intersections in the study area, including intersections crossing Warsoff Place, were screened out of the need for further analysis. Mr. Brautigam refers to Mr. Rasheed's affidavit, in which Mr. Rasheed specifies, in detail, how the DSNY and the NYCDOT took the requisite hard look at crash data for the two intersections of Bedford and Flushing Avenues and Nostrand and Myrtle Avenues, and reasonably concluded, based on the types of crashes that occurred at those locations, the occurrence of the collisions outside the DSNY's principal operating times, and recent improvements to pedestrian conditions, that the BK3 Garage would not reasonably be expected to exacerbate safety conditions at these intersections.
The analysis in the Technical Memorandum reasonably relied upon well established and widely used methodologies in the CEQR Technical Manual in conducting the pedestrian safety analysis and identifying no significant adverse pedestrian impacts. As to environmental reviews conducted in New York, courts have uniformly upheld analyses conducted pursuant to the CEQR Technical Manual's recommended methodologies as compliant with SEQRA and CEQR (see Matter of Board of Mgrs. of the Plaza Condominium v New York City Dept. of Transp., 131 AD3d 419, 420 [1st Dept 2015]; Matter of Chinese Staff & Workers' Assn. v Burden, 88 AD3d 425, 439 [1st Dept 2011], affd 19 NY3d 922 [2012]; Matter of Coalition Against Lincoln W., Inc., 21 AD3d at 223; Matter of Rimler, 2016 NY Slip Op 51627[U], *18). Inasmuch as an EAS prepared consistent with guidance in the CEQR Technical Manual demonstrates compliance with SEQRA and CEQR, no further analysis in this area was warranted (see Matter of Rimler, 2016 NY Slip Op 51627[U], *20).
Petitioners, in support of their petition, also complain that the modifications to the design of the BK3 Garage include the DSNY's narrowing of curb cuts for the entry into the BK3 Garage and for the exit from the BK3 Garage, both on the 23-foot wide Warsoff Place. Mr. Schneider notes that in the Technical Memorandum, the DSNY, relying on a Memorandum from the NYCDOT dated February 25, 2019, states that the narrower curb cuts will not result in greater danger for pedestrian conflicts, meaning injuries to pedestrians from cars or trucks hitting them. Mr. Schneider further notes that the DSNY, in the Technical Memorandum, also states that because of narrower curb cuts, DSNY drivers will have to exercise more caution as they make a 90 degree left turn from Warsoff Place into the BK3 Garage and then the same type of turn as they exit the BK3 Garage back onto Warsoff Place. Petitioners contend that the Technical Memorandum and its attached documents do not provide a reasoned elaboration or an empirical basis for this conclusion.
Petitioners' claim, however, is belied by the Technical Memorandum which explains why the BK3 Garage design reduced the number and width of curb cuts on Warsoff Place as recommended by the NYCDOT, which is the City's agency with expertise in pedestrian and traffic safety. The DSNY reasonably concluded that the BK3 Garage design and its curb cuts would not have the potential to adversely impact pedestrian safety.
Specifically, Mr. Brautigam, in his affidavit, sets forth that the DSNY requested that the NYCDOT review the updated design for the proposed curb cuts. In addition, Mr. Rasheed sets forth how the NYCDOT applied its extensive field experience implementing traffic projects in New York City and the national guidance it relies upon to determine that narrower curb cuts are safer for pedestrians. Mr. Rasheed points out that in the NYCDOT's experience and as noted in guidance, the greater the width of a curb cut (driveway), the larger the spatial area in which conflicts between crossing pedestrians and existing vehicles may arise. Mr. Rasheed further points out that, in contrast, the narrower curb cuts (the width of which the NYCDOT reviewed to ensure that the driveways are wide enough for the DSNY vehicles to turn but no wider than reasonably necessary) encourage drivers to reduce speed as they approach and leave the BK3 Garage. This rationale is explained both in the Technical Memorandum, as well as in the memorandum from the NYCDOT to the DSNY dated February 25, 2019. Thus, the DSNY, in consultation with the NYCDOT, identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination (see Matter of Riverkeeper, Inc., 9 NY3d at 231-232, Matter of Jackson, 67 NY2d at 417; Matter of Coalition Against Lincoln W., Inc., 21 AD3d at 222).
Petitioners also contend that the DSNY did not adequately examine the negative impacts on pedestrians, including the Yeshiva's students and teachers. They assert that the Yeshiva's school is a "sensitive land use," pursuant to the CEQR Technical Manual, which deserves a more detailed safety impact analysis. While there is a special zoning permit for the Yeshiva's school, petitioners claim that this should not relieve the DSNY from examining pedestrian safety impacts.
Petitioners, in making this argument, however, ignore the pedestrian safety analysis conducted in the Technical Memorandum and the improvements to the BK3 Garage design from a pedestrian safety standpoint on Warsoff Place. As previously discussed, the updated design of the BK3 Garage design provides for one fewer driveway on Warsoff Place and the two curb cuts for entry and exit to the BK3 Garage have been narrowed, which, according to the NYCDOT's expertise, reduces the potential for conflict between vehicles and pedestrians. Furthermore, the DSNY conducted a pedestrian safety analysis, consistent with the guidance in the CEQR Technical Manual, and found that none of the intersections with Warsoff Place surrounding the BK3 Garage were high crash locations that warranted further study. Additionally, the DSNY, at page 12 of the Technical Memorandum. appropriately analyzed the potential impacts from the BK3 Garage, as compared to the No Action condition of the continued operation of a bus depot on the site with similar large vehicle traffic. Thus, contrary to petitioners' contentions, the DSNY, in consultation with the NYCDOT, identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination with respect to pedestrian safety, including that of the Yeshiva's students and teachers (see Matter of Riverkeeper, Inc., 9 NY3d at 231-232; Matter of Jackson, 67 NY2d at 417; Matter of Coalition Against Lincoln W., Inc., 21 AD3d at 222).
Petitioners also focus on their claim that the location of a fueling island inside the entrance of the BK3 Garage will cause traffic congestion. They contend that the Technical Memorandum does not adequately elaborate upon its conclusion that the location of the fueling island would not cause the impact of traffic congestion and that the DSNY's conclusion is irrational.
As shown in the Technical Memorandum, at Appendix 3, page 1 (PDC Final Submission, Site Context Plan), the fueling island will be a gas station-like island at the BK3 Garage entrance with two pumps in separate entrance lanes, which enables returning trucks to enter the BK3 Garage even when a vehicle is refueling in the other lane. Thus, contrary to petitioners' speculation, there will be no blockage causing vehicles to back up onto Warsoff Place.
Petitioners argue that there is no rational basis for the DSNY's conclusion that refueling can be staggered, and that the DSNY was required to show an evidentiary basis that refueling could be staggered. However, based on the DSNY's experience with garage operations in CD3, the Technical Memorandum, on page 3, specifically sets forth that "[a]s in the 2001 EAS, trucks would return staggered over several hours and would be refueled either upon their return or later in the day, thereby avoiding the development of a truck queue on Warsoff Place." Respondents have also annexed, as exhibit J, sample fueling records from January 2019 for vehicles at the current, temporary garages serving CD3, which show that vehicles refuel at various times across the workday. While petitioners argue that these fueling records are incomplete because they are a partial fueling record for six days, this argument is unavailing since they were intended as a sampling to show the staggering of refueling. In addition, as explained by Mr. Brautigam, the DSNY employees stationed at the BK3 Garage will have the ability to refuel trucks parked within the BK3 Garage at any time during daily operations without the trucks needing to leave the BK3 Garage, thereby avoiding the need for additional trips. Petitioners' contention that there can be no staggering is wholly speculative and unsupported.
Furthermore, the traffic study, as set forth in appendix 8, page 32, in the Technical Memorandum, found that even during the peak hour, the traffic generated by the BK3 Garage would not have a significant adverse impact on traffic at Warsoff Place or at the intersection of Warsoff Place and Franklin Avenue. Thus, the DSNY's design for fueling at the BK3 Garage was rational and the DSNY has shown that, in the Technical Memorandum, it took the requisite hard look at the potential impacts to traffic from the fueling island at the BK3 Garage. Therefore, the DSNY's conclusion in this regard must be upheld (see Matter of Riverkeeper, Inc., 9 NY3d at 231-232; Matter of Jackson, 67 NY2d at 417; Matter of Coalition Against Lincoln W., Inc., 21 AD3d at 222).
Petitioners additionally claim that the DSNY selectively did a study and analysis of only six of the original intersections analyzed in the 2001 EAS. As explained in the Technical Memorandum, however, the DSNY used the methodologies in the CEQR Technical Manual to conduct a multi-level screening analysis to determine which intersections near the BK3 Garage warranted a more in-depth study. The DSNY, in consultation with the NYCDOT, performed the traffic analysis following the guidance in the CEQR Technical Manual, and the DSNY actually identified 21 intersections in the traffic study. The DSNY then determined that only three intersections would be expected to experience more than 50 additional peak-hour vehicle trips as a result of the BK3 Garage project, thereby warranting further analysis. In order to ensure a conservative analysis of potential traffic impacts attributable to the BK3 Garage, the NYCDOT recommended that the DSNY study three additional intersections surrounding the BK3 Garage site, for a total of six intersections. As to these six intersections, following the methodology in the CEQR Technical Manual and in consultation with the NYCDOT, the DSNY modeled and analyzed the potential impact of the incremental traffic from the BK3 Garage on the traffic level of service at the intersections, and reasonably concluded that the BK3 Garage would not have a significant adverse traffic impact. Thus, contrary to petitioners' argument, this traffic analysis was rationally based and supported.
With respect to on-site and On-street parking, petitioners assert that the BK3 Garage is not designed for on-site parking of the DSNY's trucks, vehicles, and equipment, and the private cars for the DSNY's employees who drive to the BK3 Garage daily and by shifts. Petitioners state that the City is removing on-street parking on Warsoff Place and on Flushing Avenue (to create a right turn lane onto Warsoff Place). Petitioners have submitted Mr. Lo Pinto's affidavit in an effort to show that on-street parking spaces are already in demand, which exceed parking space availability on Warsoff Place. They claim that the DSNY has failed to provide sufficient on-site parking in the BK3 Garage for the DSNY's vehicles and the DSNY's employees' vehicles. Petitioners contend that this lack of parking spaces will create traffic congestion due to the introduction of more than 100 vehicles of all types trying to park in or for the BK3 Garage when there are already not enough parking spaces. However, while petitioners claim that the updated design for the BK3 Garage results in a loss of parking because there are fewer parking spaces within the BK3 Garage in the updated design than there were in the design evaluated in the 2001 EAS, there is, as shown by respondents, only a minor reduction in the number of parking spaces from the original to the final BK3 Garage design. The Technical Memorandum, on page 3, specifies that "[a]s in the original plan, there would be no outside storage of DSNY trucks or equipment, and all employee parking would be accommodated inside the facility." As explained by Mr. Brautigam, by relocating the DSNY's employees' parking to the cellar level and eliminating a third floor for the vast majority of the facility, the updated BK3 Garage design has less bulk and height than the original design for the BK3 Garage. As described in the Technical Memorandum, the BK3 Garage includes interior parking which accommodates the entire fleet of the DSNY's equipment, including collection vehicles, snow plows, and the DSNY's sedans, as well as 80 parking spaces for the DSNY's employees' vehicles. While petitioners complain that there is not an individual parking space for each DSNY employee in the BK3 Garage, this does not render the BK3 Garage's design irrational or require a detailed analysis of the BK3 Garage's potential impacts on neighborhood street parking. "A 'rule of reason' . . . is applicable not only to an agency's judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation" (Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297, 308 [2009] [internal citation omitted]).
The traffic study conservatively studied the peak hour traffic on the busiest day (i.e., Tuesday), the sole day of the week when the BK3 Garage will provide both garbage and recycling collection services (Technical Memorandum at Appendix 8, Appendix A). The traffic study showed that the maximum number of employee cars would be parked in the BK3 Garage only during a three-hour period from 5:30 a.m. to 8:30 a.m. In addition, as explained by Mr. Brautigam, as shifts change and the DSNY trucks and small vehicles depart the BK3 Garage for their collection routes and other duties, additional parking spaces become available and can accommodate employee cars, if necessary.
Therefore, the DSNY rationally found that the BK3 Garage, as redesigned, would satisfy its parking needs and reasonably concluded that significant impacts related to parking were not anticipated from the BK3 Garage so that a detailed parking analysis was not warranted. "To be 'thorough,' an investigation need not entail 'every conceivable environmental impact, mitigating measure or alternative'" (Matter of Chinese Staff & Workers' Assn., 88 AD3d at 433, quoting Matter of Neville v Koch, 79 NY2d 416, 425 [1992]; see also Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 146 AD3d 576, 578 [1st Dept 2017], affd 30 NY3d 416 [2017]). "It is neither arbitrary and capricious nor a violation of environmental laws for a lead agency to ignore speculative environmental consequences which might arise" (Matter of Chinese Staff & Workers' Assn., 88 AD3d at 433 [internal quotation marks and citation omitted]). Thus, contrary to petitioners' arguments, the DSNY identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination with respect to potential parking impacts (see Matter of Riverkeeper, Inc., 9 NY3d at 231-232; Matter of Jackson, 67 NY2d at 417; Matter of Coalition Against Lincoln W., Inc., 21 AD3d at 222).
Petitioners, however, emphasize that Mr. Brautigam, in his affidavit, points out that if needed, additional parking spaces could be made available by restriping of the cellar parking area. Petitioners state that the architect for the BK3 Garage, Dattner Architects, made no provision anywhere in the latest approved BK3 Garage design plans for more floor space than needed to allow any such restriping. Petitioners further state that since this proposal is being made after the project was approved, it is legally not part of the record on this CEQR review. Petitioners attempt to rely on Mr. Brautigam's statement regarding restriping as a basis to show that the Technical Memorandum's conclusion was irrational. However, while Mr. Brautigam volunteers this possibility as additional assurance that the need for parking will be accommodated, this does not render the analysis in the Technical Memorandum irrational since it stands on its own (see Matter of Chinese Staff & Workers' Assn., 88 AD3d at 439).
Petitioners further contend that the DSNY did not take a hard look at the potential impact of the BK3 Garage on street parking and did not account for private buses having to park at another location in the immediate vicinity of the site. However, following guidance in the CEQR Technical Manual, the DSNY reasonably determined that no detailed parking analysis was necessary because the BK3 Garage project is not expected to require street parking for the DSNY's vehicles. Moreover, the DSNY rationally assumed that when operation of the BK3 Garage would commence at the site, the Monroe Bus Company and any others that parked private buses at the site would no longer store these buses there. SEQRA and CEQR do not require a lead agency to find and evaluate an alternate site in the immediate vicinity for a displaced vehicle storage lot that has lost its lease. Rather, it is the responsibility of the Monroe Bus Company and others to find alternative locations to store and service their vehicles. In fact, the Monroe Bus Company and others have not been permitted to park vehicles on the site since July 1, 2019, when the DSNY took control of the site.
Petitioners also assert that the "mitigations" discussed in the Technical Memorandum for traffic congestion on Flushing Avenue of adding one, two, or three seconds to traffic lights was not reasonably elaborated. They claim that there is nothing in the Technical Memorandum showing that adding seconds to traffic lights or how many added seconds will mitigate the traffic congestion adverse impact.
As noted by respondents, however, signal timing adjustments are commonly incorporated into projects like the BK3 Garage that result in additional traffic trips, Consistent with the CEQR Technical Manual. As explained in Mr. Rasheed's affidavit, the CEQR Technical Manual sets a recommended threshold for determining whether additional traffic from a project is significant for SEQRA purposes, and recognizes signal timing adjustments as an effective, reasonable, and easy to implement tool for both reducing the potential traffic impacts of a project and avoiding a potential significant adverse impact. The NYCDOT, which, as previously noted, is the City agency with extensive traffic expertise, reviewed the minor one- to three-second signal timing adjustments at three intersections surrounding the BK3 Garage, and concluded that with these adjustments the incremental traffic added by the BK3 Garage would not have any potential for a significant adverse impact. Mr. Schneider, in his reply affidavit, concedes that the one to three-second signal timing adjustment "is a typical method to improve the operations at an intersection." He claims, however, that there is no evidence that these signal timing changes will allow for any improvements. The DSNY, though, explained the signal timing and the traffic analysis in detail in the Technical Memorandum at appendix 8, page 45. Thus, contrary to petitioners' argument, the DSNY's conclusion was supported by reasonable elaboration (see Matter of Riverkeeper, Inc., 9 NY3d at 231-232, Matter of Jackson, 67 NY2d at 417; Matter of Cathedral Church of St. John the Divine v Dormitory Auth. of State of N.Y., 224 AD2d 95, 102-103 [3d Dept 1996], lv denied 89 NY2d 802 [1996]).
Petitioners also argue that the DSNY and the NYCDOT's use of the 2000 Highway Capacity Manual in conducting the traffic analysis in the Technical Memorandum constituted a failure to strictly comply with the CEQR Technical Manual due to the availability of a more recent 2010 version of the Highway Capacity Manual. However, petitioners' allegation that the CEQR Technical Manual requires use of the 2010 Highway Capacity Manual quotes from the CEQR Technical Manual's guidance for a pedestrian traffic study, as opposed to the section on methodologies for conducting a vehicle traffic study (see CEQR Technical Manual § 363.3). In the vehicle traffic section of the CEQR Technical Manual, the guidance states that the Highway Capacity Manual is continually being updated, and it is recommended the lead agency contact [the NYC]DOT to ascertain the most appropriate approved version of the Highway Capacity Software (HCS) for use." As stated by Mr. Brautigam and Mr. Rasheed, following this guidance, the DSNY consulted the NYCDOT, which recommended using the 2000 Highway Capacity Manual to conduct the traffic study consistent with the NYCDOT policy. The traffic study was conducted using the 2000 Highway Capacity Manual and using modeling software called SYNCHRO, which incorporates the updates from the 2010 Highway Capacity Manual that are relevant to traffic studies in the City, such as queuing calculations. Thus, inasmuch as the DSNY conducted the traffic study consistent with the CEQR Technical Manual's guidance and consulted with the NYCDOT, which has expertise in traffic modeling, the use of the 2000 Highway Capacity Manual was reasonable and did not lack a rational basis (see Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 146 AD3d at 578; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 770 [2d Dept 2005], lv dismissed 6 NY3d 890 [2006], lv denied 7 NY3d 708 [2006]).
Petitioners additionally argue that the DSNY's design of the BK3 Garage is irrational in that it does not comply with LL 84/2013, which, subsequent to the 2001 EAS, adopted OneNYC, generally known as the City's plan for environmental sustainability, as part of the City's public policy. Petitioners base their claim of a lack of compliance on the fact that the BK3 Garage includes a fueling island and because the DSNY's fleet of sanitation trucks does not run on natural gas. This argument must be rejected. Mr. Brautigam points out that there is no commitment by the City to convert vehicles to natural gas. Moreover, OneNYC and LL84/2013 do not establish requirements that are legally enforceable by private citizens.
Mr. Brautigam also points out that the City is continuously improving its sustainability, and with respect to the DSNY vehicle fleet, the DSNY has met every vehicle emissions standard set by federal or local law. As set forth on page 8 of the Technical Memorandum, Local Law 86 of 2005 (LL86/2005) "requires that building projects receiving more than a specified amount of City funding achieve a LEED rating level of Certified or Silver and/or reductions in energy cost and potable water use." The Technical Memorandum sets forth that the BK3 Garage project "will comply with LL86/2005 and incorporate environmentally sustainable design elements with the goal of attaining a minimum of Silver status," and be in accordance with OneNYC. The enhancements in the sustainability of the BK3 Garage design are described in the Technical Memorandum.
In addition, as described on page 10 of the Technical Memorandum, with respect to the DSNY's vehicle fleet, the DSNY's diesel trucks are more than 90 percent cleaner than they were at the time the fleet was reviewed in the 2001 EAS. The Technical Memorandum sets forth that pursuant to Local Law 73 of 2013, the DSNY's fleet has "greatly reduced its emissions of particulates and nitrogen oxides and reduced its fuel use as compared with the fleet in 2001." In addition, the Technical Memorandum sets forth that the BK3 Garage will be equipped with electric vehicle charging stations to accommodate the DSNY's all-electric sedan fleet. The Technical Memorandum notes that there is an "environmentally beneficial change with respect to the project's air emissions since the 2001 EAS." Thus, the Technical Memorandum's finding that the BK3 Garage project had a sustainable design and that the Changes to the BK3 Garage project would not result in a significant adverse impact to air quality is rationally based, is not arbitrary and capricious, and contains sufficient information to support the DSNY's determination that the proposed project would not have a significant effect upon the environment (see Matter of Balsam Lake Anglers Club v Department of Envtl. Conservation, 199 AD2d 852, 855 [3d Dept 1993], appeal withdrawn 83 NY2d 907 [1994]).
Petitioners further claim that the DSNY failed to follow applicable local law in that it did not comply with LL 22/2017, the Percent for Art Law. Petitioners note that a requirement was established in New York City Charter § 224 that eligible capital projects shall include works of art. Petitioners assert that effective in 2018, New York City Charter § 224 requires that all capital projects with public access include a minimum of a $500,000 budget line for a public art project, consistent with the Percent for Art Program administered by the New York City Department of Cultural Affairs. They contend that since no public art was included in the budget in the design of the BK3 Garage project, this invalidates it and that the awarded contract to MPCC Corp. must, therefore, be declared null and void.
An "eligible project" for purposes of the Percent for Art Law, however, is defined as follows:
"[A] capital project for which capital funds are appropriated by the city, and which involves the construction or substantial reconstruction of a city-owned building or structure, the intended use of which requires that it be accessible to the public generally or to members of the public participating in, requiring or receiving programs, services or benefits provided thereat. Buildings or structures within this category include, but shall not be limited to, office buildings, buildings designed for recreational purposes, police precinct houses, fire houses, schools, prisons and detention centers, hospitals and clinics, passenger terminals, shelters, libraries, community centers and court buildings" (43 RCNY 2-01 [emphasis added]).
As respondents point out, the BK3 Garage project is an industrial facility to which the public will not have access and, therefore, it does not meet the definition of an "eligible project" pursuant to the Percent for Art Law. Petitioners nevertheless claim that the BK3 Garage project is an "eligible project" due to the fact that it provides for district offices in the Park Avenue facing section of the project. Petitioners state that there are pedestrian entry doors on Park Avenue, an interior hallway off these doors with sanitation district offices (i.e., a general office, an office for the district manager, and an office for the BK3 Garage's manager), and executive offices.
The BK3 Garage, however, is not an office building. While these offices are planned for the DSNY's employees, they are not "accessible to the public generally or to members of the public participating in, requiring or receiving programs, services or benefits provided thereat." The BK3 Garage is not primarily an office building and is not open to the public for public participation.
Petitioners further assert that there are at least two new sanitation garages which include public art in the Percent for Art Program, namely one in the Bronx Community District 6 and one in Staten Island Community Districts 1 and 3. They also assert that the DSNY's 59th Street Marine Transfer Station, in its renovation, included a Percent for Art Program installation. Petitioners contend that this indicates that the BK3 Garage project was also required to include public art. However, the mere fact that these projects included public art, whereas the DSNY did not consider including public art in the BK3 Garage project, does not render the DSNY's finding of no adverse environmental impact illegal or irrational. The lack of public art "did not have the potential to have new, additional, or increased significant adverse environmental impacts" (Matter of South Bronx Unite! v New York City Indus. Dev. Agency, 115 AD3d at 609). Thus, the absence of the inclusion of public art in the BK3 Garage project does not trigger the need for an EIS or provide a basis to set aside the DSNY's determination in its Technical Memorandum (see id. at 610).
In summary, the court concludes that the DSNY's Technical Memorandum for the BK3 Garage and its determination therein that an EIS was not required was not arbitrary, capricious, an abuse of discretion, or affected by error of law. The Technical Memorandum, as required, took a hard look at areas of environmental concern and contained reasoned elaborations of its conclusions. The court has considered any remaining contentions of petitioners and finds them to be without merit.
Thus, the petition must be denied. In view of this determination, petitioners' motion for an order, under motion sequence number two, pursuant to CPLR 7805, staying any and all work, construction, or other activity for the BK3 Garage project, including but not limited to site remediation in accordance with a site mitigation plan and/or the contract with MPCC Corp. for the construction of the BK3 Garage, pending the final outcome of this instant litigation, is rendered moot.
Conclusion
Accordingly, the petition is denied and this proceeding is dismissed on the merits. In view of this determination, petitioners' motion for a stay is denied as moot.
This constitutes the decision, order, and judgment of the court.
ENTER,
/s/
J. S. C.