Tudor City Ass'n v. City of New York

225 A.D.2d 367, 639 N.Y.2d 28, 639 N.Y.S.2d 28, 1996 N.Y. App. Div. LEXIS 2212

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1996
• Status: Published

Opinion

On appeal, petitioners claim that the failure to assess the financial feasibility of the project, and the failure to finally commit to a specific site for placement of the maintenance and storage facility that would otherwise have been subjected to the environmental review undertaken in the final environmental impact statement (FEIS) effectively segmented the environmental review process. With respect to the former claim, financial feasibility of a project, particularly when public funding is involved, is not an appropriate subject of review in an environmental impact statement, absent a demonstration, not the case here, that that financial mechanism is a sham (see, Matter of Nixbot Realty Assocs. v New York State Urban Dev. Corp., 193 AD2d 381, lv denied 82 NY2d 659), and its omission does not invalidate the environmental review. With respect to the latter claim, utilizing a rule of reason (Matter of Neville v Koch, 79 NY2d 416, 427), we cannot conclude that in intent or in effect the methodology employed segments the environmental review within the prohibition of 6 NYCRR 617.3 (k). Since the final site decision will require the involvement of the franchisee, who has not yet been selected, it follows that final site selection was not possible at the time the FEIS was prepared. Further, since each of six potentially alternative sites was identified and analyzed in the FEIS, it cannot be claimed that this environmental analysis was omitted ab initio. Finally, considering the basic function of the FEIS to put the public on notice of environmentally significant actions, to explain anticipated impacts and potential mitigation thereof, and to invite the public’s participation, it cannot be said that the necessarily preliminary analysis of the facility’s impacts provided in this case effectively segmented the environmental review by minimizing the impacts of the project in toto. Concur— Wallach, J. P., Ross, Nardelli and Williams, JJ.