Akpan v. Koch

152 A.D.2d 113, 547 N.Y.S.2d 852, 1989 N.Y. App. Div. LEXIS 14337

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1989
• Status: Published

Opinions

OPINION OF THE COURT

Ross, J.

In order to revitalize downtown Brooklyn, the City of New York (City) created the Atlantic Terminal Urban Renewal Area and the Brooklyn Center Urban Renewal Area, in 1968 and 1970, respectively. The Atlantic Terminal Project (ATP), which was planned in 1978, overlaps both of those renewal areas, and is located on approximately 24 acres of mostly vacant land, near the Long Island Railroad Terminal on Atlantic Avenue. Thereafter, in 1985, the City, acting through the New York City Public Development Corporation, entered into a sole source agreement with a private builder, Rose Associates (Rose), to develop this land.

The proposal, for the 24-acre ATP site, includes a mix of residential and commercial uses. When complete, the ATP is to contain, inter alia, 4.5 million square feet of commercial space, two large office towers, movie theaters, a supermarket, and parking garages. Furthermore, the residential component of the ATP is to contain 641 units of condominium-type housing which is earmarked for families and individuals whose annual income ranges from $25,000 to $48,000. This housing is to be constructed in conjunction with the New York City Housing Partnership (Partnership), a nonprofit organization, and the Partnership is to apply for Urban Development Action grants to provide Federal subsidies for 273 of the 641 units. Moreover, it is anticipated that another 182 units will be eligible for State subsidies under New York State’s Affordable Home Program.

On June 18, 1986, Community Board Number 2 recommended approval of the ATP.

A review of the environmental impact of the proposed ATP was commenced by the City, pursuant to the New York State Environmental Quality Review Act (SEQRA), which is found in ECL 8-0101 et seg. and Mayoral Executive Order No. 91, dated August 24, 1977, which is also referred to as the New York City Environmental Quality Review (CEQR). CEQR implements SEQRA in the City of New York. According to the provisions of CEQR, the Department of Environmental Protection (DEP), and the Department of City Planning (DCP), were designated as colead agencies concerning the ATP, with responsibility for preparation of the necessary environmental impact statements.

Thereafter, the DEP and DCP, as the colead agencies, supervised the preparation, in accordance with the requirements of SEQRA, of a draft environmental impact statement (DEIS), and on June 25, 1986, a notice of a public hearing by the City Planning Commission (CPC), to be held on July 9, 1986, to consider the DEIS, was published in the New York Post. Although this public hearing was held on July 9, the period for public comments remained open through July 21, 1986. At the public hearing, several comments and opinions were raised as to the effect of the ATP on low-income housing in the surrounding area, and, therefore, in order to address that concern, the CPC ordered additional surveys to be included in the final environmental impact statement (FEIS). Subsequently, the DEP and DCP issued, on August 8, 1986, a final notice of completion of the FEIS.

On October 9, 1986, following another public hearing, the Board of Estimate (BOE) approved the ATP, as well as the FEIS, zoning changes, amendments to the urban renewal plan, and the conveyance of land pertaining to it.

We recently stated, in Coalition for Responsible Planning v Koch (148 AD2d 230, 235 [1st Dept, June 27, 1989]), that "SEQRA does not require that every conceivable alternative must be considered before an FEIS will be considered acceptable and the degree of detail with which each alternative must be discussed will, of course, vary with the circumstances and nature of each proposal. (Webster Assocs. v Town of Webster, [59 NY2d 220,] 228; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 491, affd 60 NY2d 805.)”

Subsequently, by summons and verified complaint, the plaintiffs, who are collectively a coalition of residents who reside in downtown Brooklyn near the proposed ATP, commenced, in February 1987, in the Supreme Court, New York County, an action against various City officials and agencies and Rose for declaratory and injunctive relief to annul the BOE’s approval of the ATP. Our examination of the complaint indicates that, in substance, it alleges: BOE’s approval violated the SEQRA, in that the lead agency is required to be the one which has the ultimate decision-making power over the project; the defendants failed to consider the secondary displacement effect of the ATP on the low-income residents of the surrounding areas, since the ATP will generate a significant number of new jobs, which will cause a rise in rent levels, due to the competition between the newly employed workers and existing low-income residents for the scarce housing; the ATP will accelerate the displacement of low-income residents, by resulting in a general rise in real estate values; the FEIS did not consider the effect of the ATP on low-income families, who live in one- or two-family dwellings, which are not protected by either rent control or rent stabilization; and the City defendants failed in their affirmative duty, under the New York State Constitution and statutes, to provide low-income housing.

After joinder of issue, the defendants moved for summary judgment.

In a well-reasoned opinion, the IAS court granted that motion, and dismissed the complaint. We agree.

The plaintiffs contend that the defendants’ failure, in plaintiffs’ opinion, to adequately provide for the housing needs of the low-income residents of the ATP area, automatically means that no plan of the defendant City officials and agencies can ever be deemed to be well considered. We reject that contention, since it is simply not the law. In Asian Ams. For Equality v Koch (128 AD2d 99, 118 [1st Dept 1987], affd 72 NY2d 121 [1988]), we held that when municipal authorities adopted zoning changes, as a result "of a well-considered plan that took many factors into consideration, including the needs of the low-income residents of the area, and such plan was properly adopted”, those zoning changes met the demands of the law. To put it another way, there is no affirmative obligation imposed upon municipal authorities to provide for the housing needs of low-income residents, which obligation is over and above that of properly adopting a well-considered plan, which meets, inter alia, environmental requirements, as enacted by the Legislature.

We endorse the position that the need for low-income housing should be addressed by government, but the law does not mandate the same. In our system of government, based upon a separation of powers, the judicial role is clearly defined. Therefore, "[i]t is not for us—as a court—to substitute our judgment for that of the Legislature * * * (see, Matter of Voelckers v Guelli, 58 NY2d 170, 177 [1983]).” (Asian Ams. For Equality v Koch, supra, at 118.)

It is well-established law that a court’s review of administrative actions is strictly limited to a determination as to whether such action is arbitrary and capricious or an abuse of discretion (see, Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359 [1986]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 [1986]).

The defendants’ action, under SEQRA, "must be viewed in light of a rule of reason” (Matter of Jackson v New York State Urban Dev. Corp., supra, at 417). The BOE has wide latitude in concluding which alternative to accept, and mere disagreement with the plan promulgated does not make its action arbitrary, capricious, unsupported by substantial evidence or irrational.

The Court of Appeals in Matter of Jackson v New York State Urban Dev. Corp. (supra, at 417) held: "[A court’s] inquiry is tempered in two respects. First, an agency’s substantive obligations under SEQRA must be viewed in light of a rule of reason. 'Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before a FEIS will satisfy the substantive requirements of SEQRA’ (Aldrich v Pattison, 107 AD2d 258, 266 * * *; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 491, affd 60 NY2d 805 * * *). The degree of detail with which each factor must be discussed obviously will vary with the circumstances and nature of the proposal (see, Webster Assoc. v Town of Webster, 59 NY2d 220, 228). Second, the Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives (see, e.g., ECL 8-0109 [8]). Nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency’s choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence (Aldrich v Pattison, 107 AD2d 258, 267, supra; see also, Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, 435 US 519, 555).”

It is not the role of this court 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 Jackson v New York State Urban Dev. Corp., supra, at 417).

When we apply the standard of judicial review, discussed supra, to the ATP, we find that defendant City officials and agencies did not abuse their discretion or act arbitrarily or capriciously, since their approval was as a result "of a well-considered plan that took many factors into consideration, including the needs of the low-income residents of the area, and such plan was properly adopted” (Asian Ams. For Equality v Koch, supra, 128 AD2d, at 118). In this connection, we adopt the finding of the IAS court that "The housing component of the ATP plan provides for subsidized housing for an element of the community which also requires consideration— the moderate income family”.

Respectfully, we disagree with the dissent, which finds that the defendant City officials and agencies did not pay sufficient attention to the issue of the secondary displacement effects of the ATP on surrounding areas. Once more, we adopt the finding of the IAS court, which states, in pertinent part: "defendants contend that when they reviewed the DEIS and determined that additional information on secondary displacement was required, they conducted a survey of the area and also introduced new computer generated data. Defendants contend that 80% of the residents in the ATP area are protected by either rent control or rent stabilization and as a result, will not be threatened with displacement as a result of the ATP. As to the remainder of the residents living in one and two family homes, defendants contend that since these homes are likely to be owner-occupied, the residents of these homes will also not be affected by the ATP”.

Although the plaintiffs and the dissent contend that defendants failed to identify and address the secondary displacement issue as a "relevant area of environmental concern”, the record is to the contrary. The fact that defendants concluded that the significance of the secondary displacement was minimal, does not mean defendants did not consider secondary, and long-term effects of this project and the potential impact on the surrounding community (Chinese Staff & Workers Assn. v City of New York, supra). SEQRA does not require an agency to impose every conceivable mitigation measure or any particular one (Matter of Jackson v New York State Urban Dev. Corp., supra, at 422).

The dissent argues that defendants did not take a "hard look” at the possibility of secondary displacement. But the record indicates that this was considered in the FEIS, and defendants concluded that the secondary displacement would not be significant. The fact that plaintiffs disagree with the conclusion reached, does not prove that defendants did not take a "hard look” (Matter of Jackson v New York State Urban Dev. Corp., supra, at 422). Further, the BOE received evidence that well in excess of 80% of the residents would not be affected by any secondary displacement. This total consists of about 60% protected by rent laws, and the remainder being owner-occupied one- and two-family homes.

Based upon our review of the record, we find nothing wrong with the use by the BOE and CPC, which were the ultimate decision-makers concerning the ATP, of the lead agencies, DEP and DCP, as investigative arms, since those agencies had the technical expertise necessary to prepare a DEIS and FEIS. In pertinent part, the Court of Appeals stated, in Matter of Jackson v New York State Urban Dev. Corp. (supra, at 427), "Nothing in SEQRA bars an agency [who has the ultimate decision-making authority] from relying upon information or advice received from others, including consultants or other agencies, provided that the reliance was reasonable under the circumstances”.

Following our hearing of this appeal, the Court of Appeals decided Matter of Coca-Cola Bottling Co. v Board of Estimate (72 NY2d 674 [1988]). The primary issue decided in Matter of Coca-Cola Bottling Co. v Board of Estimate (supra) was whether the BOE properly determined if a recycling business, which is located on a site in Bronx County, had an environmental impact on the surrounding area. In that case, the Court of Appeals held that the BOE procedure, in approving the subject recycling business, violated SEQRA, since the BOE, in substance, relied on a conditional negative determination made by DEP, which meant that no environmental impact statement (EIS) was required, and, accordingly, none was prepared by DEP for BOE to review.

Our examination of Chief Judge Wachtler’s opinion, for a unanimous court, in Matter of Coca-Cola Bottling Co. v Board of Estimate (supra) indicates that the BOE procedure, in carrying out its duty under SEQRA in that case, was exactly contrary to the procedure it followed in the instant case, where, as mentioned supra, a DEIS and a FEIS were prepared.

Significantly, in Matter of Coca-Cola Bottling Co. v Board of Estimate (supra, at 681), there was a specific factual finding by the trial court that the DEP, and not the BOE, had made the required final environmental impact determination, and we affirmed that finding (Matter of Coca-Cola Bottling Co. v Board of Estimate, 135 AD2d 404 [1987]). In the case before us, the IAS court specifically found the BOE made the final determination as to the environmental impact of the ATP. Moreover, we adopt the IAS court finding that "[t]he DEIS and FEIS were ultimately reviewed by the relevant decision-making authorities * * *. In the case at Bar, the DCP and the DEP [merely] functioned as experts for the Board of Estimate”.

In other words, in Matter of Coca-Cola Bottling Co. v Board of Estimate (supra), the BOE violated the spirit of SEQRA by failing to promulgate a final policy decision to permit the project to proceed, but rather permitted the final determination to be made by another agency (DEP). In the case before us, the BOE did make the final determination, as required by statutory and case law. In Matter of Coca-Cola Bottling Co. v Board of Estimate (supra), the Board of Estimate insulated itself from consideration of the environmental factors to be considered. Here, the Board of Estimate carried out its responsibility as required by SEQRA, and made the final policy decision to go forward with the project.

Finally, in Matter of Coca-Cola Bottling Co. v Board of Estimate (supra, at 682-683), the Court of Appeals held: "To be sure, the lead agency under SEQRA is likely to be nonexpert in environmental matters, and will often need to draw on others. The statute and regulations not only provide for this, but strongly encourage it (see, ECL 8-0109 [3]; 6 NYCRR 617.3 [i]; 6 NYCRR 617.4 [c]). Of particular interest here, the regulations specifically advise agencies to 'seek the advice and assistance of other agencies’ regarding 'recommendations on the significance or nonsignificance of actions’ (6 NYCRR 617.4 [c] [2]). Nevertheless, the final determination on this issue must remain with the lead agency principally responsible for approving the project”.

In view of our analysis supra, we find that the dissent’s reliance on Matter of Coca-Cola Bottling Co. v Board of Estimate (supra) to support its contention that the BOE improperly approved the ATP is misplaced, since the facts in Matter of Coca-Cola Bottling Co. v Board of Estimate (supra) indicate the procedure used therein by the BOE was entirely different from the procedure used herein.

This court finds little fault with the dissent’s compassionate analysis of the social implications of so massive a project. However, a court is very limited in what it can do relative to "social implications”, when controlling statutory or case law may be to the contrary, and the governmental action taken is not arbitrary, capricious or irrational.

We have considered the other contentions of the plaintiffs, and find them to be without merit.

Accordingly, order, Supreme Court, New York County (David B. Saxe, J.), entered May 16, 1988, which granted defendants’ motion for summary judgment, and dismissed the complaint in its entirety, is affirmed, without costs.