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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK
In the Matter of the Application of .
THE COUNCIL OF THE CITY OF NEW YORK, and
MANHATTAN BOROUGH PRESIDENT GALE A.
BREWER,
Petitioners-Complainants,
Index No.
For Judgment Pursuant to Article 78 and §§ 3001 and
6301 of the Civil Practice Law and Rules Assigned to Justice
- against-
VERIFIED ARTICLE 78 &THE DEPARTMENT OF CITY PLANNING OF THE DECLARATORY JUDGMENT
CITY OF NEW YORK, NEW YORK CITY PLANNING PETITION-COMPLAINT
COMMISSION, NEW YORK CITY DEPARTMENT OF
BUILDINGS, THE CITY OF NEW YORK, and
MARISA LAGO, Director of Department of City
Planning of the City of New York and Chair for the New
York City Planning Commission,
Respondents-Defendants.
Petitioners-Complainants Council of City of New York ("City Council") and Manhattan
Borough President Gale A. Brewer (hereinafter "Petitioners"), for their verified Petition-
Complaint, pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), and CPLR §
3001 against Defendants-Respondents the Department of City Plaññing of the City of New York
("DCP"), the New York City Planning Commission ("CPC"), the City of New York ("City"),
Marisa Lago, Director of DCP and Chair of CPC, and the New York City Department of Buildings
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("DOB") (hereinafter "Respondents") allege in this hybrid Article 78 and plenary action as
follows:
PRELIMINARY STATEMENT
1. This matter arises out of CPC's December 5, 2018 approval of three modifications
to the 1972 Two Bridges Large Scale Residential Development ("Two Bridges LSRD") permit:
• Site 4 (4A/4B) (247 Cherry Street M 180507 (C) ZSM);
• Site 5 (260 South Street, M 180505 (A) ZSM); and
• Site 6A (259 Clinton Street M 180506, (B) ZSM), NI80498 ZCM).1
2. CPC has approved these modifications as a purported "minormodification"
to an
existing special permit that governs development in the Two Bridges LSRD special permit,
attempting to improperly and irrevocably circumvent the City Council and Borough President's
statutory roles in the review of land use applications, as required pursuant to the New York City
Charter ("City Charter").
3. As expressed in more detail below, the projects involve three skyscrapers in the
historic Two Bridges neighborhood, over 2.5 million estimated gross square feet of space and the
addition of over 2,700 dwelling units all on a single city block that currently only has 1,357
authorized dwelling units. If allowed, the skyscrapers themselves - an 80 story tower, a set of twin
towers of 69 stories each, and one 63 story tower on one block - will forever alter the Two Bridges
Neighborhood and the New York City skyline.
4. Despite the obvious magniNde of the proposed modifications and the clear
requirements under the City Charter for these projects to be submitted and reviewed as requests
I See CPC Commissinn Reports approving the proposed modifications, annexed to the Smith Affiñriatier. as
Exhibits A, B, and C respectively.
2
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for new permits, the DCP and the CPC, controlled by mayoral appointees, attempt to wholly
circumvent the appropriate process, to the detriment of the communities they are tasked with
serving.
5. Such developments are required to be completed with the consultation and advice
of the uonununity, including the New York City Council, the Borough President and the
Community Board pursuant to the Uniform Land Use Review Procedure ("ULURP").2 Such
developinouts also require the ultimate approval of the City Council. In contravention of their
duties under applicable law and regulations, the Respondents failed to allow the process to occur.
6. Aside from the clear and incoñtrovertible statutory requirements mandating the
application of ULURP, DCP's claim that this application, which includes the addition of more
than 2,700 dwelling units in three skyscrapers on a single block, is simply a "minormodification"
is nothing short of irrational, arbitrary and capricious and is incorrect as a matter of law.
PARTIES
7. Petitioner-Complainant Council of City of New York was established by the New
York State Constitution (Article IX). The Charter of the City of New York ("Charter") sets forth
the powers and respansibilities of the City Council, "the legislative bodyof" New York City.
Charter § 21. The City Council is responsible for oversight of all city agencies, including their
performance and management. See Charter of the City of New York, Ch. 2. Pursuant to ULURP,
the Council has the power to make the final decision on all appliestions. City Charter § 197-c.
ULURP does not restrict the City Council's oversight function. Instead, after holding a public
hearing, the Council has plenary authority to approve, approve with modifications or disapprove
the decision of CPC. Charter §§ 197-d (b)(3), 197-d (c).
2Here, the projects were referred to the Cerrr±y Board, but not as part of ULURP.
3
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8. Petitioñer-Compkinant Manhattan Borough President Gale A. Brewer has served
as Manhattan Borough President since 2014. As Borough President, she is responsible for advising
the Mayor and the City Council on borough-wide con-wum, commenting on land-use matters in
the borough, advocating for the borough in the municipãi budget process, and appointing members
of Manhattan's 12 Community Boards. One of the central responsibilities of the Mãñhattañ
Borough President's office is its City Charter-mandated role in the city's land-use process. The
Charter requires the Borough President to have a planning office to plan for the growth,
improvement and development of the borough and to review and make recommendations on
applications and proposals for the use and development of land. Specifically, in the ULURP
process, applications certified by CPC come to the Borough President for a thirty day review and
the Borough President later submits a written recommendation. This recommendation comes after
the Community Board's review and recommendation and before final action by the City Planning
Commission and the City Council. This gives the Borough President the opportunity to review
the land use and environmental impacts of projects in light of community concerñs and work to
mediate between applicants and the community if those concerns conflict.
9. Respondcat DCP is an agency of the City responsible for land use and
environmental review, preparing plans and policies, and in the context of this case, provided staff
assistance to CPC.
10. Respandent Marisa Lago is the Director of the New York City Department of City
Planning and Chair of the City Planning Commission and has served in these positions since March
2017. She was appointed by New York City Mayor Bill de Blasio in January of 2017. The
Commissioner is sued herein in her official capacity and, upon information and belief, acted in
such capacity at all times relevant hereto.
4
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11. Respondent DOB is an agency of the City that, among other things, enforces the
city's building codes and zoning reg»latiuns, and issues b~~'Ming permits and licenses.
12. Respondent City of New York is a»iuriicipal corporation organized and ~»«i~g
under the laws of the State of New York.
JURISDICTION AND VENUE
13. This Court has jurisdiction pursuant to C.P.L.R. $ 3001.
14. This Court also has jurisdiction pursuant to C.P.L.R. $$ 7801-7806, to review
actions by bodies or o%cers who have failed to perform a duty enjoined upon them by law and
who have made a determination in violation of lawful procedure.
15. Venue is properly in New York County pursuant to N.Y. C.P.L.R. 8 504(3) &
506(b), because claims are asserted against a City -gcncy and ofticer for actions taken in New
York County and because the agency's and o%cer's principal offices are in New York County.
FACTS
A. ULURP and the A ro riate Roles of the Ci Council and the Borou h President
16. In 1975, ULURP was established in the City Charter in an attempt to further
democratize land-use decision making and move away from the previous model of top-down
pl~-.aiirig. ULURP provides certainty in the land use review process by establishing a predictable
timetable and a single procedure for the review of certain actions. ULURP also provides a
transparent process and a vehicle for public participation in the City's significant land use
decisions and defines a role in the process for the Community Boards, the Borough Boards, the
Borough Presidents, CPC, the City Council and the Mayor.
5
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17. In 1977, the City Environmental Quality Review Process ("CEQR") was
established soon after as another method intended to promote decision-making in the public
interest and to protect the environment.
18. The 1989 Charter was adopted by the City's voters on November 7, 1989, and came
into force and effect in 1990. The 1989 revisions greatly expanded and clarified the role the City
Council plays in ULURP.
19. In fact, throughout its many debates and deliberations in the spring and summer of
1989, the Charter Revision Commission ("Schwarz Commission") wrestled with defining the role
of the newly-empõwcred Council in land use decisions As evidenced by the Schwarz
Commission's various recommendations and proposals for Charter revision, and especially the
many hours of public hearings and meetings during which these proposals were debated and
developed, this assignment of authority was in no way predetermiñed and, in fact, evolved
significantly over the course of the Schwarz Commission.3
20. More specifically, when the Schwarz Commission began its deliberations,
Chairmañ Schwarz was adamant that the Council should not be involved in specific and local land
use determinations. He argued that the City's legislative body should only be involved in sweeping,
Citywide matters of zoning and development, and should leave specific determinations to technical
executive agencies like CPC DCP.4
21. In contrast, multiple other commissioners argued that the newly-expanded and
cmpowored Council, as the City's representative arm and most effective check on the Mayor, was
3See the Chair's Recommendatiêñs for Charter Revision, dated April 24, 1989; Summary of Revised Prope=!s, datedJune 1989; Summary of Prdimi=ry Proposals, dated Summer 1989; and Miñütes of Hearings of New York CityCharter Revision Commishn, dated April 24th, May 13th, and May 15th, stiached to the Smith Affirmation
collectively as Exhibit D.4 Id.
6
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exactly the body that should be involved in decisions that impacted the lives and neighborhoods
of New York's citizens.5 In essence, the Council was the City's most effective mechanism for
public influence and involvement in land use decision-making. Over the course of several months
in the summer of 1989, Chairman Schwarz gradually evolved to support hiscolleagues' position
that the Council should be more directly involved in land use decisions, and the final Charter
revision proposals reflect thisevolution.6
22. Moreover, the rules pursuant to ULURP, as amended within the 1989 Charter,
provide for community and public input to better enable the City Council to exercise effective
oversight over covered land-use matters, not to divest the City Council of review and oversight
authority.
23. ULURP does not restrict the City Council's oversight function, and the City
Council is not limited in what factors or information it can consider. Instead, after holding a public
hearing, the Council has plenary authority to approve, approve with modifications or disapprove
the decision of CPC. Charter 197-d(b)(3), 197(d(c).
24. Additionally, the Borough President has a formal role under ULURP, pursuant to
Charter 197-c. After consideration of a ULURP application by the Commüñity Board and prior to
votes by the CPC and City Council, the Borough President has a thirty day review period to
consider the application and then submit a written recommendation. Charter 197-c.
B. Historical Developme::ts in the Two Bridges Neighborhood
5Id.'Id. See Record of Motions, Votes and Consensus of New York City Charter Revision Cemmit , dated June 21stand June 26, 1989, attached to the Smith Affirmation as Exhibit E.
7
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25. The Urban Renewal Law authorizes the City of New York to acquire sites in an
"Urban RenewalArea"
for redevelopment in accordance with an "Urban RenewalPlan."
More
than 150 urban renewal areas have been established in New York City since 1949.
26. In January 1961, the Two Bridges neighborhood, located in Manhattan's Lower
East Side and bounded by the Manhattan Bridge and the Brooklyn Bridge, was designated as an
urban renewal area ("Two Bridges URA"). The primary focus was to create predominantly
middle-income housing and improve affordability and diversity in and around the Two Bridges
Neighborhood.7
27. Development in the Two Bridges URA was governed by the Two Bridges Urban
Reñewal Plan ("Two Bridges URP"), which was approved by the City Plaññing Commission on
May 11, 1967 and by the Board of Estimate on June 9,1967.8
28. Over the years, the Two Bridges URP was amended and the Two Bridges URA was
developed with the Two Bridges URP expiring in June 2007. The goals of the plan included
eliminating blight and restoring the residential character of the area; providing well-designed low,
moderate, and middle income housing; providing convcñicnt recreational, commercial, and
community facility uses; achieving high quality urban design, architecture, street and open space
elements; and strengthening the City's tax base by encouraging development and employment
opportunities in thearea.'
7 See City Planning Commission Report CP-16479 annexed to the Smith Affirmatiers as Exhibit F at page 724.8 In 1975, the Board of Estimate had the role that is now possessed by the City Council.' The Two Bridges Urban Renewal Plan, which imposed caps on floor area, signincantly limited the floor areaütherwise allowed under the C6-4 zoning, which was then 10-12 FAR, (dependin¡; on the use developed, and theinclusion of the plaza bonus). Parcel 4A's floor area was capped at 5.0; Parcel 4B's floor area was capped at 10.0;Parcel 5's floor area was capped at 4.4; and Parcel 6A's floor area was capped at 3.70. The goals of the Urban RenewalPlan were to climinate blight and restore the residential character of the area, to provide well-designed low, moderateand middle income housing, and providing convenient recreational, commercial and cc--My facility uses, amongother goals. See City Planning Commission Report 19779, annexed to the Smith Affirmation as Exhibit G. Thesefloor area caps were consistent with the cer::±y's request in 1960 that a less dense zone be applied to this area.
8
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29. In May 1972, in furtherance of the goals of the urban renewal area, the Two Bridges
Large Scale Residential Development ("Two Bridges LSRD") was approved by CPC (Cal. #43)
and the Board of Estimate (Cal. #208), and was last amended on August 23,2013."
Generally,
the purpose of LSRDs are to allow "greater flexibility for the purpose of securing better site
planning for development of vacantland"
as well as to "encourage harmonious designs
incorporating a variety of building types and variations in the siting of buildings."HLSRDs, such
as the Two Bridges LSRD, may be granted waivers from certain requirements and provisions of
the Zoning Resolution. For example, in 1995, a special permit and authorization pursuant to the
LSRD provisions of the Zoning Resolution waived the "standard minimum distance between
buildings provisions of ZR Section 23-711, which normally required a 40 foot distance. Instead,
a distance of30"
was approved, facilitating the development of the 21 story building on Site 4.
An authorization waiving height and setback rules was also granted at that time.12. These
discretionary zoning waivers facilitate the development of buildings, and in ceñüection with the
grant of such waivers, the CPC and Council must to approve a project, at a minimum, find that the
project promotes better site planning and community planning. D
30. With respect to variations of applicable regulations within an LSRD, Article VII,
Chapter 8 of the Zoning Resolution governs the conditions under which an authorization or special
permit may berequested.14
Most new developments within an LSRD must either be authorized
by or be sanctioned by a special permit, which requires approval through the ULURP process."
¹° See City Planning Cassis;a Report CPC 21885 annexed to the Smith Affirmation as Exhibit H.H See ZR-78-01.32 See City "laññing Commission Report C950078 ZSM, annexed to the Smith Affirmation as Exhibit 1.D See ZR §§ 78-313 (Findings) (a) and 78-01 (General Purposes).14See ZR S §§ 78-041 (Authorization by Cc==ission) and 78-042 (Special Permits)B Charter 197-c (a)(4).
9
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31. The Two Bridges LSRD includes six Parcels (Sites 4A, 4B, 5, 6A, 6B, and 7) and
contains a total lot area of 371,l 54 square feet.
32. Since 1961, the LSRD has been zoned as C6-4 (which generally permits a wide
range of high-density commercial uses, and does not carry a height restriction) and the underlying
zoning regulations permit a "Maximum FloorArea"
("FAR") of 12.
33. Significantly, the history of actions relating to the Two Bridges URA and LSRD
shows an intent to preserve the neighborhood scale. In fact, the tallest building included in the Two
Bridges LSRD was 27 stories, with other residential buildings in the Two Bridges LSRD standing
at 26, 21, 19, 10, and 3 stories. Also, there are only 1,357 authorized dwellings and a total of 1.6
million square feet included in the LSRD, which has a built residential FAR of 4.33.
34. Until the instant actions, the maximum building height authorized in the Two
Bridges LSRD of 240 feet has kept the area in line with the nearby residential stock (outside of the
LSRD), composed primarily ofNYCHA developments, such as the LaGuardia Houses (16 stories),
and the Rutgers Houses (20 stories).
35. This intent also was evident in a 1995 modification to the Two Bridges LSRD.
This modification was approved by the City Planning Commission and Council to facilitate the
construction of a 21-story mixed income residence, with 197 rental units and one superintendent's
unit and community facility and commercial spaces, on Site 4B. Significant in the 1995
modification, the CPC report stated,
"The Commissionfinds that the proposed modifications also allow for a reduced
height in the building, by approximately four floors. At 21 stories, the building
"' A numerical height cap (in terms of number of feet) does not exist in this zoning district; heights are governed byother zoning rules.
10
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should translate well into the prevailing surrounding context qf 16-storv to 26-
storv residentialstructures and not adversely efect [sic] adjacent properties."
36. In 2013, an application that DCP determined to be a "minormodification"
application, was approved by the City PlanningCommission.38 This proposed project, referred to
as the Healthcare Chaplaincy application (the "HCC application"), consisted of a single 17 story
building, a palliative care facility, with only 183,700 zoning square feet ("ZSF") and only an
increase to the built FAR of that parcel by 1.23. In support of the project, the HCC application
stated,
[t]he proposed development would not unduly increase the bulk qf the LSRD or
surrounding area; the total floor area of Parcel 5 following the addition qf the
New Building would be only 57% of the potential floor area under permitted
current zoning. In addition, the proposed prqject would not adversely affect any
other zoning lots outside the New Building Site by restricting access to light and
air, by adversely afecting air quality or by creating trafic congestion.
Therefore, the prior findings will be unafected by the addition qf the proposedproject."
Additionally, the application specifically showed that it met the intent
qf Article Vil, Chapter 8, which describes the purpose qf LSRDs.
The proposed project was never constructed.5
C. Current Proposed Deve!:p-:nts: Three Skyscrapers in the Two Bridges LSRD
37. In 2016, three private developers submitted pre-application materials to DCP for
projects that they characterize as"minor"
modifications to the 1972 Two Bridges LSRD permit.20
As detailed below, the proposals request the approval for increasing existing floor area and lot
coverage beyond what is currently permitted for the three projects and the relocation of 103
" See Exhibit I.
38See application for M 120183 ZSM and M 950078 (A) ZSM., annexed to the Smith Affirmation as EXHIBIT J ." ld.20 See application for M 180505(A) ZSM, also known as M 180506(B) ZSM, M 180507(C) ZSM, annexed to theSmith Affirmation as Exhibit K.
11
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existing parkingspaces.2'
Conveniently, DCP has improperly designated these modifications as
"minor", which would exempt these projects from the entirety of the ULURP process and deprive
the Council of its oversight and regulatory role over these projects and the Borough President of
her role to review and make recommendations. Projects of this magnitude are required to undergo
the full battery of hearings and oversight that ULURP provides.
38. An objective analysis of the approved proposals reveals the enormity of the
purported "minor modifications."22 The proposed buildings are massive, particularly when the
context ofthe neighborhood is considered. The three projects contain over 2.5 million gross square
feet (gsf) of space and contain space for 2,755 units distributed over three skyscrapers.
Construction of these projects would lead to a massive footprint of four towers (one of the
buildings has two towers with a shared base) rising above the relatively low-lying neighborhood
of Two Bridges. They include:
• 247 Cherry Street, Site 4 (Parcel 4A/Parcel 4B)- a single tower 1,008 feet in height,
80-stories, 501,518 square feet, and 660 dwelling units plus 10 senior units relocated
from an existing building;
• 260 South Street, Site 5 (Parcel 5) - two towers of 798 feet/69 stories and 748 feet/62
stories, 1,244,960 square feet, and 1,350 dwelling units;
• 259 Clinton Street, Site 6A (Parcel 6A)- 730 feet in height, 63-stories, 672,266
square feet, and 765 dwellingunits.23
39. The potential impacts to the Two Bridges LSRD caused by three skyscrapers cannot
be overstated. These proposed "minormodifications"
will triple the number of available units in
21See Two Bridges Projects FEIS atS-3, available at hups: /wwwl.nyc.gov/site plannine applicants,env-
review/two-bridges.page.22 See FEIS at S-1.23See Illustrative Renderings of the Proposed Projects from the FEIS - Figures S-9, 1-18 and S-8, annexed
collectively to the Smith Affirmation as Exhibit L.
12
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the Two Bridges LSRD (adding over 2,700), and the tallest currently standing building in Two
Bridges will increase from approximately 27 stories to over 80 stories.24 The skyscraper proposed
for Parcel 4A/4B would cantilever over the neighboring HUD-sponsored affordable senior housing
and senior center, which would lose ten units of senior housing (which currently house 19 residents
in those units).25 The FEIS indicates a commitment to"relocate"
these units, but the effect even of
relocation is that seniors in these units will need to move at least once, and possibly twice (once
out of their unit into temporary acwasussedations, and once more into replacement units). The
Council and the Borough President have a right and an obligation to review changes to a
neighborhood of this magnitude - ones that will alter the nature and character of Two Bridges
permanently.
40. This purported "minormodification"
is on the same order of magnitude in terms of
dwelling units added in the following neighborhood rezonings, that all went through ULURP:
• East Harlem Rezoning dwelling units projected: 2,682 units;
• Jerome Rezoning dwelling units projected: 3,228 units;
• Downtown Far Rockaway Rezoning dwelling units projected: 3,l 17 units;
• Inwood Rezoning: 3,908 units.
41. Furthermore, Flushing West, a proposed rezcaing that did not move forward, would
have added 938 units and this action would still have been subject to ULURP.26
42. Each of these neighborhood rezonings mentioned above went through extensive
pre-ULURP public engagement processes and the City committed to the City Council between
$125 and $190 million of City capital and expense dollars, in addition to what had already been
24 FEIS at 18-4.
26 Please see the Techice! Memos for the East Harlem Rezeni::g, Jerome Rezoning, Dowñ:awñ Far RockawayRezoning, Inwood Rezoning, and Flushing West Rezoning aññcxed colicctively hereto as Exhibit M.
13
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plaññed for the neighborhoods, on programs and capital projects to support the rezonings and
mitigateimpacts.27
D. Elected Officials Oppose Contemplated Action
43. On June 22, 2016, in response to the significance of the purported "minor
modifications,"Manhattan Borough President Gale A. Brewer, Council Member Margaret Chin,
Council Member Rosie Mendez, State Senator Daniel Squadron, Assemblywoman Alice Cancel,
and Congresswoman Nydia Velazquez sent a letter urging Director Weisbrod to process the
applications as "majormodifications,"
which would trigger a new ULURP action.28
44. In the June 22, 2016 letter, the elected officials argued that the proposed
developments "will necessarily have a significant impact upon the surrounding areas, will
fundamentally change the LSRD site plan by occupying the large scale's open spaces, and will
irrevocably change the relationships of the existing buildings to oneanother."
The elected officials
added:
While these findings technically pertain to the existing buildings which were the
subjects of the original waivers. the proposed addition of the new buildings to
the site plan would dramatically af]cct the balance struck by the CPC and the
City Council in the grant of the original LSRD approvals. I'he scale of this
change requires us to re-evaluate the findings.
45. On August 11, 2016, Carl Weisbrod, the Director of DCP at the time, responded to
the June 22, 2016 letter sent by the city and state elected officials. In the letter, Director Weisbrod
acknowledged that the development contemplated "is significant when each proposed
development is considered individually, and that the potential impacts to the surrounding
27 Id.28 Letter from Council Members Margaret Chin and Rosie Mendez, Manhattan Borough President Gail A. Brewer,State Senator Daniel Squadron, State Assemb: ÿwaman Alice Cancel, and Congresswoman Nydia Velazquez, to Carl
Weisbrod, Director of City Planning (.Iune 22, 2016) annexed to the Smith Affirmaticii as Exhibit N.
l 4
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neighborhood require unique consideration when the three proposed projects are assessed
cumulatively,"yet summarily rejected the idea that a special permit was in fact
required.29In the
letter, former director Weisbrod cited Section 2-06(g)(5)(ii) of the ULURP Rules to conclude that
a special permit is not necessary because the modification is a"minor"
modification, because it
would allegedly not "require any new waivers or zening actions or increase the extent of previously
granted waivers. In his letter, former Director Weisbrod added that:
"although these proposals will not be reviewed as major modifications, the
Department of City Planning is conunitted to working with you closely as we
review the applications Jor these developments. We are requiring the
completion of an Environmental Impact Statement (EIS) in conjunction with
these applications, and are pleased that the applicants have agreed to a
coordinated review of the proposals. to ensure that both any cumulative and
project-specific potential impacts are idendfied and addressed through the
public process mandated byCEQR."³"
E. Determination that the Proposed Applications Are Minor Medificaticias Is Improper
46. DCP's determination that the proposed modifications were"minor"
and that
ULURP was not required effectively limited the input of local residents, community advocates,
elected officials, and all other stakeholders to the hearings mandated by the environmental review
process under the City Environmental Quality Review act (CEQR). Depriving the City Council,
the Community Board and the Borough President of their roles under ULURP has excised critical
opportunities for additional public comment and engagement but also deprived the City Council
and Borough President of their mandated role in the process overall.
47. The fact that an Environmental Impact Statement ("EIS") was required, and that
the projects were of such scale, render the modification major and should trigger new special
29See Letter from CPC Director Carl Weisbrod annexed to the Smith Affirmation as Exhibit O.30 Id.
15
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permits, reasons for DCP to have determined that the modifications were "major"and thus should
have triggered new special permits, requiring ULURP. As further discussed in the Causes of
Action below, the Charter and the Rules of the City ofNew York already establish, for concessions
that when an EIS is required, the action is considered"major"
and requires ULURP. Specifically,
Section 374(b) of the City Charter states that a "majorconcession"
shall mean a concession that
has significant land use impacts and implications, as determined by the commission, or for
which the preparation of an environmental impact statement is required by law. It further
states that "[a]ll major concessions shall be subject to review and approval pursuant to section
one hundred ninety-seven-c and section one hundredninety-seven-d."
The rules promulgated by
CPC pursuant to the City Administrative Procedure Act (CAPA) as required by such section
(hereinafter "Major Concession Rules") are consistent with the Charter's medate.3' 62 RCNY
provides in pertinent part as follows:
§ 7-01. [Concession Subject to ULURP and Council Review.]A ecñcession shall be considered a major concession and therefore subject to §§ 197-c and
197-d of the Charter only if:
(a) it has been determined pursuant to City Envirownental Quality Review to require an
Environmental Impact Statement, or
(b) except as provided in § 7-03, the concession will cause one or more of the thresholds
set forth in § 7-02 to be exceeded.
48. The Commission, in its discretion, promulgated additional rules that consider
projects with substantially less square footage than is proposed here "major". For example, they
require even a use for which a new building of over 20,000 square feet will be constructed on non-
parkland to trigger ULURP. This is a fraction of the 2.5 million square feet being constructed
pursuant to the purported minor modifications. The fact that the Department and Commission
have applied 62 RCNY 2-06 to this process, when it clearly applies to pr0jects in the midst of
31 "The city ;!:r!:;; cc·-ission shall adopt rules that either list major concessions or establish a procedurefor determining whether a concession is a major concession." Charter Section 374(b).
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ULURP, instead of the criteria for the Major Concession Rules (as an example) which apply to
determinations prior to the procesing of an application, is arbitrary andcapricious.32 There is
no logical distinction between a concession, which involves the private use of City-owned
property, and the private property at issue here, in terms of the importance of public review for all
of the affected stakeholders.
49. There are several examples of projects (which do not involve concessions) that
DCP determined, prior to the processing of an application, were major modifications requiring a
new ULURP, thus, it is also irrational that projects of this scale could be treated as minor.
50. Examples of recent projects (which do not involve concessions) that DCP has
determined prior to the processing of the application were major modifications requiring a new
ULURP, include The Wheel (C 150447 ZSR) and 134-01 20"' Ave Queens (C 190095
ZSQ).33 These major modifications, as compared to the minor modification projects, had only
incremental changes, and demonstrate the irrationality of DCP's policy of importing the provisions
32§ 7-02. [Major Concession Defined; Specific Uses, Thresholds e.g. Marinas, Spectator Sport Use, Parks.]
A concession shall be considered a major concession if it will cause one or more of the thresholds given for thespecific uses listed below to be exceeded:
(a) marinas with over 200 slips;(b) a permanent performance or spectator sport use with over 2,500 seats;
(c) for parklands in or adjacent to Community Districts subject to the coiñprehassive off-street parking regulations,contained in Article I, Chapter 3 of the Zoning Resolution of the City of New York, accessory parking lots with over150 spaces and, for all other areas, accessory parking lots with over 250 parking spaces on parklands;(d) a use for which a new building of over 20,000 square feet of gross floor area will be constructed when such
building will be located on property other than parkland;(e) a use for which a new building of more than 15,000 square feet of gross floor area will be constructed when such
building will be located on parkland;
(f) an open use which occupies more than 42,000 square feet of open space other than parkland;
(g) an open use which occupies over 30,000 square feet of a separate parcel of parkland;
(h) a use which in total occupics more than 2,500 square feet of floor area or open space and more than 15 percent ofthe total square footage of a separate parcel of land that is improved for park purposes, including passive and active
recreational use, or that was improved for such purposes at any time during the preceding year; or
(i) a concession comprised of two or more components, no one of which exceeds threshe!ds set forth in paragraphs
(a) through (h) above, where at least two of such elements each exceed 85 percent of any applicable threshold setforth in such paragraphs.
33See the DCP Applications for both of these projects annexed collectively hereto as Exhibit P.
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of 62 RCNY2-06 to the question of whether a project should undergo ULURP. Such comparison
makes evident that treating the Two Bridges Projects in this way, when the aforesaid changes to
the Wheel and the 20* Ave. Queens project were treated as"major"
(triggering a new ULURP)
was an abuse of discretion by respondents DCP and CPC.
51. Regarding The Wheel, the original project, which underweñt ULURP for special
permits under application number Cl30317 ZSR, facilitated the development of a625'
observation
wheel and a related terminal building and parking lot on the Staten Island waterfront. The
modified project sought to allow design changes necessary to convert the Wheel's parking
component from three levels to four levels, maintaining identical parking capacity with a smaller
footprint. In addition, the requests were to convert the parking facility from enclosed to
useñclosed, to scale back the approved decking over the MTA railroad right of way, and to reduce
the amount of floor area within the terminal building It is irrational that a project modified to
have a smaller footprint and reduced floor area triggered a full ULURP review, but that the Minor
Modification Projects did not.
52. Similarly, 134-01 20th Ave Queens is currently undergoing a full ULURP under
application number C 190095 ZSQ for a modification to a special permit to allow certain retail
uses in a new location. The proposed enlargement to the building will not even alter the existing
building footprint, but a full ULURP is being required. The enlargement will increase the second
floor of an existing building to include an additional 10.000 square feet of commercial floor
area. From a use and bulk standpoint, this modification is trivial when compared to the Minor
Modification projects which involve extensive ground disturbance for enormous building
footprints and 2.5 million square feet of floor area.
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53. 62 RCNY 7-03, also promulgated by CPC, provides that for concessions that are
st major concessions, the existence of an EIS requirement is paramount and trumps the rule's
specification that they are otherwise "minor."34This demonstrates that CPC considers the
existence of an EIS of such importance that even a carousel, or underground pipes, would require
ULURP, if an EIS is required.
54. DCP's reading is plainly incorrect on other grounds as well. In fact, Section 2-
06(g)(5)(ii) is part of a rule entitled "Review of CouncilModifications,"
which clearly only applies
to modifications made by the Council during its review of a pending ULURP application. The
plain reading also is reflected in the language itself. For example, the rule clearly references and
considers the context occurring within the ULURP process. See, e.g., Section 2-06(g)(5)(ii) ("the
Commission shall receive from the City Council during its fifty (50) day period for review the text
34§ 7-03. [Concessions That are not Major Concessions.]
Netwithstanding any other provision of these rules the following shall not be considered major concessions unlessan EIS is required:
(a) A concession for any use which will be operated for 30 days or less;(b) A concession which is or directly furthers an active recreational use and would be available to the general publicon a non-discriminatory basis, with or without a fee, including but not limited to the following:
(1) a seasonal covering of recreational facilities,(2) a carousel, or
(3) a use iñReded for active participation sports including playing fields or sports courts (e.g., tennis, volleyball,handball, softball), skating rinks, playgrounds, and practice facilities (e.g., batting cages, golf driving ranges,miniature golf); provided that the area eccupied by such recreational use does not exceed both 15 acres and 50percent of a separate parcel of land;(c) Reuse of former amusement park lands for amusement or recreational purposes;(d) Any renewal, reissuance, extension, amendment of an existing concession or issuance of a new concession whichcontinues a curiestly existing use or which permits a use which existed lawfully on the preperty at any point in the
preceding two years, whether operated by a private or public entity, provided that any extension or amendment orthe enme!:tive effect of any amendments or extensions made over any five year period does not includemodifications which when added to the existing concession, cause any threshold of § 7-02 to be exceeded andincrease the size of an existing concession by ten percent or more;(e) A concession for which authorization to use a different procedure was granted or attained, or which is operatedunder an agreement executed, prior to the effective date of this major concession rule;
(f) A concession for lines, cables, conduits or underground pipes not used for the transport of people;(g) A concession on wharf property or waterfront property primarily for purposes of "waterfront commerce" or in"furtherance of navigation" as such terms are defined in the New York City Charter;(h) A concession on wharf property for purposes other than "waterfront commerce" or in "furtherance ofnavigation" which is granted pursuant to § 1301.2(h) of the City Charter; or
(i) A concession for an open air market which operates two (2) or fewer days per week, or, if a green market, three
(3) or fewer days per week.
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of any proposed modification to the Commissioner's prior approval of an action. Upon receipt the
Commission shall have fifteen (15) days to review and to determine...").
55. The criteria referenced by Chair Weisbrod in Section 2-06(g)(5)(ii) are also
incorporated by reference in Section 2-06(c) of the commission's rules "Modification of
application."The structure of this rule - and indeed the structure of Section 2-06 in its entirety -
clearly applies to applications during their pendency of the review process. This provision clearly
intends to allow the CPC to modify a ULURP application when it comes before the Commission
for a vote. Indeed it specifically refers to applications that come before the commission during the
ULURP process whether one of the actions listed in Charter Section 197-c or Sections 200 or 201
- all of which are reviewed pursuant to the ULURP process.
56. Considering the above, the rule cannot be credibly read to give the Co==inion
authority to make changs to a defunct application because it was approved through the City's
then-land use process decades ago.
57. In fact, it is clear that the City Charter does not allow for this modification to go
forward without a new special use permit, as there is no mention at all in the City Charter of minor
modifications after final project approval pursuant to ULURP. Charter 197-c, 197-d.
58. There is no authority or rational basis for DCP to import a rule that applies to
projects in a certain phase of the ULURP process and purport to apply it as dispositive to a project
that is seeking a new discretionary approval as a means of avoiding the ULURP process.
59. DCP's attempt to use a rule clearly intended to apply during the pendency of a
ULURP action to amend a land use action approved in 1967, also violates the City Charter's
Administrative Procedure Act (Charter Chapter 45).
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60. Specifically, pursuant to CAPA Section 1041(5), a"rule"
is defined as "the whole
or part of any statement or communication of general applicability that implemcats or applies law
or policy or prescribes the procedural requirement of anagency..."
61. The rule at issue is meant to impicmcat the ULURP provisions of the Charter,
which state, that "the city planning commission shall establish rules providing guidelines,
minimum standards, and procedural requirements for community boards, borough presidents,
borough boards and the commission in the exercise of their duties and responsibilities pursuant to
this section, (2) minimum standards for certification of applications pursuant to subdivision c of
this section, and (3) specific time periods for review of applications pursuant to this section prior
tocertification."
See Charter § 197-c.
62. Thus, the commission has authority to prescribe rules for the commission's review
of applications between filing and certification, the standards for certification and the conduct of
the steps during the ULURP process. Nothing in the Charter or city law gives the CPC authority
promulgate rules to reopen a completed ULURP application and modify it.
63. In two cases, the minor modification was upheld but both cases involved the exact
opposite of the current circumstance. In both cases the modifications were made to applications
for projects currently undergoing the ULURP process. And significantly, in both cases, the core
projects they were modifying did eventually go through ULURP and were voted on and approved
by the City Council. In Matter of Windsor Owners Corp. v. City Council, 878 NYS2d 545 (S. Ct.
NY Cnty 2009), the court upheld the CPC modification to the ULURP application pursuant to
Section 2-06 but noted that it was a minor modification because "the modifications reduced the
project's size andscale."
In Windsor, the City Council's Land Use Committee had suggested
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modifications to the core project as part of the ULURP process, which were then approved by
CPC; later, the modified core project was approved by the City Council. Id.
64. Similarly, in Matter of Glick v. Harvey, the Court stated that the modifications at
issue - which were minor modifications made to the larger core project undergoing ULURP-
similarly reduced the height and square fõõtage and eliminated certain compoñénts of the core
project. See Glick v. Harvey, 121 A.D.3d 498, 499, 994 N.Y.S.2d 118, 119(2014), aff'd, 25 N.Y.3d
1175, 36 N.E.3d 640 (2015), aff'd. Like Windsor, the City Council approved the modified core
project at the conclusion of the ULURP process. Id.
65. Here, the exact opposite is true. CPC seeks to pervert this rule to quadruple existing
maximum heights in the LSRD and triple the number of residences without Council or Borough
President review and do all this decades after the completion of the original actions authorizing
the LSRD under the guise of a "minormodification."
F. DCP'S Rule Failed to Comply with CAPA, and Therefore Its Approval Using It Does Not
Carry the Force and Effect of Law
66. The Petitioners do not concede that DCP had the power to promulgate such a rule
under CAPA. Additionally, even if the Projects were properly a minor modification, DCP's
definition of what constitutes major and minor modifications did not comply with CAPA;
consequently its decision here utilizing the rule is null and void. CAPA governs the promulgation
of local rules. Rules are defined to include "the whole or part of any statement or communication
of general applicability that implements or applies law orpolicy." N.Y.C. Charter § 1041(5).
a. CPC's Criteria for What Constitutes Major or Minor Modifications Is a Rule
67. ULURP Rules Section 2-06(g)(5)(ii) were properly promulgated and comply with
CAPA, but DCP's separate, staff-created determination to apply this rule to new projects not
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already in ULURP, did not. CPC's criteria regarding major or minor modifications is a rule and
therefore subject to CAPA for several reasons.
68. First it constitutes a "fixed, generalprinciple"
that is applied without "regard to
other facts andcircumstances"
relevant to the regulatory scheme of the statute it administers.
Council of City of New York v. Department of Homeless Services, 980 N.Y.S. 2d 621 (2013).
69. As a preliminary matter, DCP does not use any discretion when utilizing its own
criteria, which appear only in the Weisbrod letter and on the DCP website.35 Neither the criteria
cited in the Weisbrod letter nor the Charter defines what a major or minor modification actually is
and DCP relies on its own criteria. DCP removes its discretion by using its criteria in conjunction
with Section 2-06(g)(5)(ii), which seersiñgly mandates its use: "the Commission shall consider
whether the proposedmodifications..."
See ULURP Rules, Section 2-06(g)(5)(ii).
70. In this way, DCP is bound to consider its own criteria - whether the proposed
modification would require new waivers or zoning actions or increase the extent of any previously
granted waivers. The criteria as written do not allow for any discretion regarding modifications -
they are seemingly major or minor based on this discrete set of factors.
71. DCP's implementation of this rule bears strong similarity to the rule in Council of
City of New York v. Department of Homeless Services. There, the Court of Appeals upheld
Council's challenge to the mm±t·3ry eligibility precedure enacted by the Department of Homeless
Services, as it "dictated a specific result in particular circumstances without regard to other
circumstances relevant to a regulatoryscheme."
See Council of City of New York, 980 N.Y.S. 2d
622; see also 439 E. 88 Owners Corp. v. Tax Commission, 307 AD2d 203, 203 (1st Dep't
2003); see Delesus v. Roberts, 296 AD2d 307, 310 (1st Dep't 2002). Here, by the definitions and
35See "Step 3: Preparation of Land Use and Erivismsete: Applications," available athttps:/ wwwl.nve.uov/site'plannine/applicams/applicant-portal/Mep3-non-ulwp-em-followup.page.
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usage of DCP s own criteria, there is no consideration of other factors in deteraiairiirib wowie«ier a
Project is major or minor just the conditions mentioned there.
72. Cons~«ently, as these criteria are properly a rule, DCP was required to fulfill their
obligations under CAPA s procedural requirements before they could be used in the current non-
ULURP circumstances (even assuming, —.-z«~iso, that DCP had the authority to do so). Under
CAPA $ I042, the agency promulgating the rule must publish it in its entirety in the City Record
along with a draft statement of the rule's purpose, a notice of a public hearing (if such heariiag, is
to be conducted), and other pertinent information. Here, upon information and belief, DCP never
followed any of these requir~«ienLs under CAPA for their major or minor modification criteria,
and therefore violated CAPA. Accordingly, since DCP's rule was not promulgated according to
CAPA's strict requirements, including those for notice, comnicnt, public «ecu irlg aild puuaicuLion,
it does not carry the "force and effect oflaw."
Singh v. Taxi & 5! «!~ ~!!!e Conrnr'n of City of New
Yor k, 282 A.D.2d 368, 368, 723 N.Y.S.2d 476, 478 (2001).
73. In the instant case, DCP did not even attempt to comply with CAPA requirements
for this rule, and consequently, as the rule was the basis for their conclusion that the proposed
projects were minor modifications, that decision is null and void.
G. Institutional Dia.~ ———with DCP and CPC Was Unavailin
74. On May 25, 2017, both Council Member Chin and Borough President Brewer
testified regarding the public scoping meeting for the Projects, which included as exhibits a survey
ofhundreds of Two Bridges residents reflecting their wishes and concerns, as well as the continued
reminder that the projects were properly subject to ULURP.
"MBP Brewer and CM Chin Co.—...—..—;.:-,dated May 25, 2017, annexed to the Smith AAirmation as Exhibit Q..
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75. On January 17, 2018, to address these very serious concerns, Council Member Chin
and Borough President Brewer filed a proposed zoning text amendment, which would clarify that
large, out of scope development proposals in the Two Bridges LSRD are not "minor
modifications"which can be made outside of ULURP. The City Council also passed Local Law
234, which would allow Ber0ügh Presidents and the Land Use Committee of the City Council to
exempt their applications from DCP's pre-filing and meeting requirements, because time was of
the essence.37 Despite amendments to the Chin/Brewer text amendment application on August 2,
2018 to address concerns raised by DCP, DCP has nevertheless refused to advance the application
to public review.38
76. On October 17, 2018, a public hearing on the DEIS was conducted, and elected
officials once again voiced their opposition to the inappropriate circumvention of ULURP through
these purported minor modifications.39 The October 17, 2018 DEIS hearing was well attended,
and public testimony lasted for nearly seven hours with 103 speakerstestifying.40
77. On November 23, 2018 (the Friday after Thanksgiving), the Final Environmental
Impact Statement (FEIS) was issued - a highly technical document nearly 700 pages long- less
than two weeks before the scheduled CPC vote on December 5,2018.41 Borough President Brewer
and Council Member Margaret Chin respõñded to the issuance of the FEIS in a letter dated
November 30, 2018, and reiterated their concerns regarding the projects as they "have had limited
37See Local Law 234; Zoning Text Amendment P2018M03040.38See Letter from Director Lago to CM Chin and BP Brewer, dated December3, 2018 attached to the SmithAffirmation as Exhibit R.39 The lengthy DEIS was also originally released near the end of June 2018, mere weeks before the CommuñityBoard was going to on vacation; the hearing was pushed back to October 17, 2018 after outcry from the ccrr±y.See Warekar, Two Bridges Skyscrapers to Begin Public Review as Locals, Pols Call for More Time, June 25, 2018,CURBED NY, available at https://nv.curbed.com/2018/6/25/l7500744/two-bridges-environmental-impact-
skyscrapers-lower-east-side.® See Warekar, T. Locals Denounce Two Bridges Towers at City Planning Hearing, October 17, 2018, CURBED
NY, available at https://ny.curbed.com/2018/10/17/17989442/lower-east-side-skyscrapers-public-opposition.4' See generally FE18, available at https://www1.nvc.gov/site/plannine/applicants/env-review/two-bridges.pace.
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to no information provided to [them] by the Department or the development team on these projects
other than what is publiclyavailable."42
Moreover, given the size of the project and the limited
amount of time to review the FEIS, they urged the CPC to "delay the vote on the minor
modification until after the public hearing for [their proposed zoning textamendment.]"
78. In respense, given the narrow timeline between the publishing of the FEIS and the
ultimate CPC vote on the approval, City Council Speaker Corey Johnson sent a letter to Director
Lago and the Commissioners of the City Planning Commission, informing them that the decision
designating the proposed projects as a "minormodification"
was contrary to the intent and letter
of the New York CityCharter.43 The letter urged the CPC to disapprove the application, or at least
delay the vote to provide time for the Council and the CPC to discuss the application. Chair Lago
respanded on the same day and reiterated their prior position that "the Department is not able to
requireULURP."44
79. Despite repeated attempts by Petitioners to inform DCP and CPC of their flawed
approach to development in the LSRD, they approved the requested proposals on December 5,
2018.45
80. Moreover, despite Commissioner Lago's assertions during the public heariñg, the
problems with the process highlighted previously by Council Member Chin, Borough President
Brewer and members of the public were expressed by some of the three City Plaññing
Commissioners who voted no - particularly, Commissioners Levin and De La Uz. In sum and
42See Letter from Council Member Chin and Borough President Brewer, dated November 30, 2018, annexed to theSmith Affirmation as Exhibit S.43 See Letter from Speaker Corey Johnson to Chair Lago, dated December 3, 2018, annexed to the SmithAffirmation as Exhibit T.44 See Letter from Marisa Lago to Borough President Brewer, Council Member Chin, Senator Kavanaugh, AssemblyMember Niou, and Congresswoman Velazquez, dated December 3, 2018, annexed to the Smith Affirmation asExhibit U.45 See Exhibits A, B, and C.
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substance, they overall expressed the opinion that the actions taken here do not conform to the
1972 resolution, nor are the projects themselves properly a minor modification. Commissioner de
La Uz, after noting that the Projects include thousands of units and unmitigatable impacts, stated
that public trust in government is at an all-time low, and actions like this would further erode that
trust. Commissioner Levin noted that the legal situation was not as"straightforward"
as Chair
Lago characterized. Commissioner Rampershad, who also voted in the negative, observed that
there was insufficient time to properly digest all the materials and their implications.
81. In light of the institutional injury to the City Council and the violation of the City
Charter caused by CPC's approval of this development as a "minormodification"
of the Special
Permit, Corey Johnson, the Speaker of the City Council authorized the instant litigation.
82. In light of the institutional injury to the Borough President and the abrogation of
her role in the Charter-mandated ULURP process caused by CPC's approval of these projects as
"minormodifications"
in violation of ULURP, Manhattan Borough President Gale A. Brewer
authorized the instant litigation.
83. Though environmental review was conducted for the projects, it is not a substitute
for the oversight and opportunity for notice and comment that ULURP provides. The robust
ULURP process for these projects would have involved the required hearings and vote with
Manhattan Community Board 3, review from Borough President Brewer, public hearings with
CPC, and then consideration and an eventual vote from the City Council and eventually, the
Mayor.® A handful of public hearings does not - and cannot - stand in for the oversight and
comment that ULURP provides, which provides space for the review and ultimate action from an
institution that represents all New Yorkers: the City Council.
® See generaHy ULURP Rules.
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FIRST CAUSE OF ACTION
(Declaratory Judgment)
84. Petitioners repeat and reallege the preceding paragraphs as though fully set forth
herein.
85. An administrative agency only has the powers granted it by statute. While courts
may defer to an agency's exercise of expertise, it may not countenance action exercised in excess
of statutory authority.
86. Respondents DCP, CPC and Lago (the "City Planning Respondents") have acted
outside of the law and the authority given to them by the City Charter by issuing a modification
on an application that was required to be submitted as a new special permit. In fact, the City
PlanningRespondents'
decision improperly circumvents the clear requirements of the City
Charter. See Charter at 197-c and 197-d.
87. The City PlanningRespondents'
rationale for this determination relies exclusively
on a gross misinterpretation of Section 2-06(g)(5)(ii) of the ULURP Rules. Section 2-06(g)(5)(ii)
does not belong in the approval process for changes to an LSRD, but clearly only applies to
modifications made by the Council during its review of a pending ULURP application.
88. As the City Council is deprived of its right to take up the application for a vote, its
role in this entire process has been usurped. Further, as the Borough President is deprived of her
right to review the applications as part of the ULURP process, her role has been usurped as well.
The City PlãññingRespondents'
therefore have no justification for their actions, and have
improperly exceeded their authority under the City Charter by intruding on the domain of the
Council and the Borough President.
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89. Consequently, as they have exceeded their authority and have acted ultra vires,
their action has no legal force and effect and should be nullified.
SECOND CAUSE OF ACTION
(Article 78)
90. Petitioners repeat and reallege the preceding paragraphs as though fully set forth
herein.
91. Even if the City Planning Respondents did have the power to make a determination
on the Two Bridges LSRD application, the City Planning Respondents abused their discretion in
approving this project as a minor modification, as the decision was arbitrary and capricious and
incorrect as a matter of law. Further, because the DCP and CPC acted outside of their legal
authority by approving the Projects as minor modifications, their approval was conducted outside
of their jurisdiction.
92. The City Respondents erred in determining that these proposed developments were
a "minormodification."
The proposed projects are not even remotely similar to what was
previously approved by the Board of Estimate and built on these sites and do not meet the findings
previously set in prior approvals.
93. Moreover, the proposed projects will necessarily have a significant impact on the
fiñdiñgs that were set forth for the original Two Bridges LSRD approval.
94. The City PlaññingRespr·ñdêñts'
position that the proposed developments are
"minor"because they require no new findings, as they state that the propased buildings would not
require any additional height or setback waivers, is purely irrational, as the additions require three
enormous towers that fundamentally and undeniably alter the nature of the original Two Bridges
LSRD.
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95. Moreover, earlier waivers may no longer be appropriate given the proposed site
plan modifications, which is precisely why this project is a major modification and should go
through ULURP.
96. The projects in their entirety are going to have impacts on at least some of these
areas, as admitted in the FEIS (particularly traffic and shadows). The FEIS explicitly stated that
the projects will have significant adverse impacts on public elementary schools, publicly funded
child care facilities, open space, shadows, transportation (traffic, transit, and pedestrians), and
construction (traffic and noise).47 As noted above, one of the skyscrapers will be cantilevered over
a senior center, which will require that 10 senior apartments will need to be "relocated."48
97. Substantively, it is wholly unreasonable to consider this a minor modification, as it
will triple the number of units in the LSRD. The tallest building will go from 240 feet to 1008 feet
in height. It can hardly be said that the addition of three massive towers containing nearly 3,000
units of housing could reduce the size of the LSRD as a project. It will quadruple existing
maximum heights in the LSRD.
98. The rules the CPC itself promulgates link the designation of"major"
with whether
an environmental review has been conducted. Concessions, which involve the grant made by a
City agency for the private use of City-owned property- are considered major if it has been
determined pursuant to the City Environmental Quality Review to require an environmental impact
statement. See ULURP Rules § 7-01 (a). See also Charter § 374 (defining a major concecsion as
one "that has significant land use impacts and implications, as determined by the commiccion, or
for which the preparation of an environmental impact statement is required by law.") The CPC
See FEIS Executive Summary at S-1 to S-49.
See id.
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rules promulgated regarding major concessions have other conditions that would render a
concession major, but whether an EIS was conducted is outcome-determinative. See ULURP Rules
g 7-03("
Notwithstanding any other provision of these rules the following shall not be considered
major concessions unless an EIS is required...").
99. Therefore, that an FEIS has been conducted for this project indicates that this was
a major, not minor modification and the DCP and CPC's decisions were both arbitrary and
capricious.
THIRD CAUSE OF ACTION
(Declaratory Judgment)
100. Petitioners repeat and reallege the preceding paragraphs as though fully set forth
herein.
101. DCP's criteria utilized for defining major and minor modifications constitutes a
rule not properiy promulgated to the City b~~i~istrative Procedure Act.
102. The failure to follow the requiromen.s of CAPA for the utilization of this rule for
the Two Bridges "minormodification"
project is therefore null and void.
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RE UEST FOR RELIEF
WHEREFORE, Petitioners respectfully request this Court issue a juug~ment pursuant to Article
78 and Article 3001:
A. Annulling and vacating CPC's December 5, 2018 decision to approve the purported "minormodifications"
to the existing Two Bridges Large Scale Residential Development;
B. Enioinin~ Respondent DCP from send!n~ to Respondent DOB approval letters related to
the purported "minormodifications"
to the existing Two Bridges Large Scale Residential
Development;
C. Declaring DCP's decision that ULURP review was not required pursuant to 62 RCNYSection 2-06 was illegal and made outside the scope of DCP's authority pursuant to CityCharter Section 197-c and in violation of City Charter sections 197-c and 197-d;
D. Enioinin~ DOB from issuing the building permits that would facilitate the development of
the proposed buildings in connection with the purported "minormodifications"
approved
by the CPC on December 5, 2018;
E. Granting Judgment to Petitioners on each of their claims;
F. Temporarily restraining and pre>~~i~~rily and pe»immanently enjoining the Responuents
from taking any action in furtherance of the commencement of construction related to
CPC's December 5, 2018 vote to approve the purported "minormodifications"
to the
existing Two Bridges Large Scale Residential Developiiien., including but not limited to,
permitting, conducting, authorizing, or continuing any construction work at the Project
sites; and
G. Awarding Petitioners such other and further relief that this Court deems just and proper.
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Dated: New York, New York
December 6, 2018
Jason A. Otaño
General Counsel of the Council of the City Of
New York
Attorneys for Petitioner-Complainants
Council of theCityofNewYork
Peter R. Lattanzio
Peter S. Torre
Serena Longley250 Broadway, 15th Floor
New York, New York 10007
(212) 788-9131
Adele Bartlett, General Counsel, and
James W. Caras, Special Advisor for Legal
Affairs and Land Use to
Gale A. Brewer, Manliattaii Borough
President
Attorneys for Petitioner-Complainant
Manhattan Borough President Gale A.
Brewer
1 Centre Street, 19th Floor
New York, NY 10007
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VERIFICATION
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
RAJINDER MANN, being duly sworn, hereby states that he currently serves as the
Director of Land Use for the New York City Council, that he has read and reviewed the entirety
of the within Petition, and that, upon information and belief based upon his own review and
knowledge of the pertinent materials and records, as well as conversations with Council staff
familiar with said pertinent materials and records, can attest that Paragraphs 1-7, 9-12, 16-102 of
the within Petition are true and accurate to his knowledge.
RAJINDER MANN
Sworn to before me this6d'
day of December, 2018.
(RARY PUBLIC
Benjamin Joel SmithNotary Public, State of New York
No. 025M6312062Qualified in New York Coun
Commission Expires Sep. 22 2 8
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VERIFICATION
STATE OF NEW YORK ): SS.:
COUNTY OF NEW YORK )
JAMES W. CARAS, ESQ., being duly sworn, hereby states that he currently serves as
the Special Advisor on Legal Affairs and Land Use for the Manhattan Borough President, that he
has read and reviewed the entirety of the within Petition, and that, upon information and belief
based upon his own review and knowledge of the pertinent materials and records, as well as
conversations with staff of the Office of the Manhattan Borough President and the New York City
Council familiar with said pertinent materials and records, can attest that Paragraphs 1-6, 8-18, 22-
50, 53-77, 79-80, and 82-102 of the within Petition are true and accurate to his knowledge.
JAMES W. CARAS
Sworn to before me this6th
day of December, 2018.
TARY PUBLIC
Benjamin Joel SmB
Natagy Public, State of New Yoth
No. 02SM6312062
Quaged in New York
Won Expires Sep.
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