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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x PEOPLE FOR GREEN SPACE FOUNDATION, INC., : Index No.: LORI SCHOMP and JOSEPH MERZ ( ) :

Petitioners, : For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules : -against- : NEW YORK STATE URBAN DEVELOPMENT CORPORATION, doing business as, EMPIRE STATE : DEVELOPMENT COPORATION AND BROOKLYN BRIDGE PARK DEVELOPMENT CORPORATION, : Respondents. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

PETITIONERS’ MEMORANDUM IN SUPPORT OF PETITION AND PRELIMINARY INJUNCTION

ABRAMS, FENSTERMAN, FENSTERMAN EISMAN, FORMATO, FERRARA & WOLF, LLP Frank V. Carone, Esq. 1 Metrotech Center, Suite 1704 Brooklyn, New York 11201 (718) 215-5300 Attorneys for Petitioners People For Green Space Foundation, Inc., Lori Schomp and Joseph Merz

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TABLE OF CONTENTS

PAGE PRELIMINARY STATEMENT………………………………………………………3 FACTS…………………………………………………………………………….….…4 ARGUMENT……………………………………………………….…………………..7

I. PETITIONERS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION……………………………………...7

II. PETITIONERS ARE LIKELY TO PREVAIL ON THE MERITS OF THE PETITION…………………………………………………………………....8

A. ESDC Violated SEQRA by Failing to Prepare a Supplemental

EIS………………………………………………………………………..8

1. A Supplemental Environmental Impact Statement is Required Due to Change in Circumstances…………………………………………12

a. Superstorm Sandy………………………………….….….12 b. Increased Vehicular and Pedestrian Traffic...…………….13

2. A Supplemental EIS Is Required Due to Newly Discovered Information………….……………………………………………15

a. Change in Park Finances.…………………………....……15

b. School Overcrowding…….....……………………….……19

B. ESDC Has Violated the UDCA Because the RFP Contains an Impermissible Alteration to the Project Inconsistent with the GPP…………………….…….21

III. PETITIONERS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE

RELIEF………………………………………………………………………..24

IV. THE BALANCE OF EQUITIES TILTS IN PETITIONERS’ FAVOR……...25

CONCLUSION………………………………………………………………………..…26

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PRELIMINARY STATEMENT

Petitioners submit this Memorandum of Law in support of their Petition, an application

for a temporary restraining order and for a preliminary injunction seeking: (a) a declaration that

Respondents New York State Urban Development Corporation d/b/a the Empire State

Development Corporation (“ESDC”) and Brooklyn Bridge Park Development Corporation

(“BBPDC”) acted in a manner that is arbitrary, capricious, an abuse of discretion and in violation

of law; (b) enjoining Respondents from accepting or approving or taking any other actions

concerning proposals submitted in response to a Request for Proposal (“RFP”) dated May 13,

2014 concerning development of Pier 6 in Brooklyn Bridge Park; (c) annulling the RFP; (d)

directing Respondents to prepare or cause to be prepared a Supplemental Environmental Impact

Statement (“Supplemental EIS”); (e) awarding Petitioners costs and reasonable attorneys’ fees;

and (f) granting such other and further relief as the Court may deem just, proper and equitable.

Brooklyn Bridge Park was designed to be a financially self-sustaining entity with as

minimal development in the Park as necessary to support its budget for maintenance and

operations. However, the RFP requires developers to include affordable housing which

substantially alters the Project without performing a proper environmental review and without

abiding by the requisite administrative procedures.

First, ESDC’s actions violate the State Environmental Quality Review Act (“SEQRA”),

N.Y. Environmental Conservation Law §8-0109, by failing to analyze the changes in

circumstances and newly discovered information concerning Brooklyn Bridge Park in a

Supplemental EIS before releasing its RFP. N.Y. Comp. Codes R. & Regs. tit. 6, § 617.9.

(1996). Since the Final Environmental Impact Statement (“FEIS”) was issued in 2005, Brooklyn

Bridge Park has experienced significant changes in circumstances and new information

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discovered, including the occurrence of Superstorm Sandy, significantly increased vehicular and

pedestrian traffic, a change in Park finances, and overcrowding in neighborhood schools.

According to SEQRA, the ESDC is required to review the significant adverse impacts of these

changes on the Project area in a Supplemental EIS before issuance of a RFP.

Second, ESDC, which is subject to the Urban Development Corporation Act (“UDCA”),

violated the UDCA by altering the Project by including affordable housing without modifying

the GPP. N.Y. Unconsol. Law § 6266 (McKinney 1990). The Project contemplates as minimal

development in the Park as financially possible. ESDC was therefore required to follow the

required notice and comment procedure set out in the UDCA before altering the Project Plan.

FACTS

The original Brooklyn Bridge Park Development Corporation was established in 1998 by

Downtown Brooklyn’s elected officials and funded by the State of New York. (See Illustrative

Master Plan (“IMP”), “Exhibit A”, Page 2). The corporation developed an Illustrative Master

Plan (“IMP”) in 2000, which set forth a vision for a financially self-sustaining park along the

Brooklyn waterfront providing recreational and cultural opportunities, “subject to any

refinements thereto arising from the completion of the planning and environmental review

processes for the Project.” (See Memorandum of Understanding (“MOU”), “Exhibit B”, Page

3). The IMP was heavily influenced by the Thirteen Guiding Principles, which include the

Principle of “Develop[ing] a Fiscally Prudent Plan.” (See Thirteen Guiding Principles, “Exhibit

C”, Page 2). This Principle states that “[t]he site shall have only so much commercial

development in a park-like setting as is necessary to enliven the area, to provide security and to

finance ongoing operations.” (“Exhibit C”, Page 2).

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On May 2, 2002, then Governor George Pataki and then Mayor Michael Bloomberg

signed a Memorandum of Understanding (“MOU”) providing for the creation of what is now

known as the Brooklyn Bridge Park Development Corporation (“BBPDC”) to plan, design, and

build Brooklyn Bridge Park. (“Exhibit B”, Page 3). BBPDC is a subsidiary of ESDC. (“Exhibit

B”, Page 3).

The two parties to the MOU agreed that the IMP’s provisions would guide the Project.

(“Exhibit B”, Page 3). The MOU states that not less than 80% of the Project would be reserved

as open space and would be dedicated as parkland, and the MOU requires that all revenue

derived from appropriate commercial activities in the Project area be used exclusively for the

maintenance and operation of the Project. (“Exhibit B”, Page 3).

The GPP, adopted July 26, 2005, notes that the MOU “requires that the park be

financially self-sustaining.” (See General Project Plan (“GPP”), “Exhibit D”, Page 5). To

accomplish this mandate, the GPP included a plan for revenue-generating developments in the

Park to provide funding. (“Exhibit D”, Page 5). This funding analysis was included in the FEIS,

dated December 2005, prepared before the GPP was formally adopted in its modified form on

December 18, 2006. (See FEIS, “Exhibit E”, Page F-1). The FEIS states that the “proposed

project would introduce . . . market rate housing units” to accommodate the financially self-

sustaining mandate. (“Exhibit Z”, Page 4-7)

Although ESDC was committed to having a financially self-sustaining park, the ESDC

was also committed to minimal Park development. In 2007, the ESDC submitted a Brief to the

Appellate Division in Brooklyn Bridge Park Legal Def. Fund v. New York State Urban Dev.

Corp., 856 N.Y.S.2d 235 (2d Dep’t 2008), and announced its commitment to “building the

minimum development necessary” to cover the Park’s maintenance and operation needs. (See

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Brief for Respondents-Respondent, dated May 30, 2007 (“ESDC Brief”), “Exhibit F”, Page 15).

ESDC also promised that if market conditions allowed for less development to support the Park’s

needs, the development program would be reduced accordingly. (“Exhibit F”, Page 16).

On May 13, 2014, BBPDC released an RFP for development at Pier 6, requiring

proposals to be submitted by July 21, 2014. (See RFP, “Exhibit G”, Page 1). According to the

RFP, each of the two development parcels on Pier 6 consists of approximately 9,880 square feet

of vacant land. (“Exhibit G”, Page 5). Parcel A has a maximum build height of 315 feet and

Parcel B has a maximum build height of 155 feet. (“Exhibit G”, Page 9). In total, the Pier 6

parcels consist of approximately 4,643,600 square feet. Although the RFP requires developers to

submit proposals that abide by the GPP requirements, the RFP also requires that approximately

130,000 gross square feet of the Pier 6 parcels (approximately 30% of the apartments) be

allocated for affordable housing. (“Exhibit G”, Page 9).

The RFP was the first time in the history of the Project that inclusion of affordable

housing was required. Yet, BBPDC provided no rationale whatsoever in the RFP or subsequent

documents for the new affordable housing mandate.

Affordable housing would provide little to no revenue to the Park, such that its inclusion

in the Pier 6 development directly conflicts with the Project’s objective of having as minimal

development as necessary to fund the Park. The allocation of 30% of Pier 6’s development to

uses generating little or no revenue indicates that the Park can afford to have less development to

support its financial needs.

Even if the affordable housing units actually generate revenue, these units would still

provide much less revenue than the market rate apartment units the FEIS contemplated. Since

the affordable housing units would be sold or rented at a much lower rate than the market rate

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apartment units, Brooklyn Bridge Park would be losing the maximum revenue potential from

these apartments. Moreover, more units of affordable housing would be necessary to generate

the same amount of revenue that market rate units would generate. The construction of more

apartments than financially necessary in Pier 6 violates the Project’s objective of minimal

development and is inconsistent with the GPP.

ARGUMENT

I. PETITIONERS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

CPLR § 6301 provides in relevant part: “A temporary restraining order may be granted

pending a hearing for a preliminary injunction where it appears that immediate and irreparable

injury, loss or damage will result unless the defendant is restrained before the hearing can be

had.” CPLR § 6313 also provides that “[i]f, on a motion, for a preliminary injunction, the

plaintiff shall show that immediate and irreparable injury, loss or damage will result unless the

defendant is restrained before a hearing can be had, a temporary restraining order may be granted

without notice.” Yonkers Racing Corp. v. Catskill Regional Off-Track Betting Corp., 143

A.D.2d 345, 346, 532 N.Y.S.2d 407, 408 (2d Dep’t 1988) recognized that a temporary

restraining order is “premised on a demonstration that ‘immediate and irreparably injury, loss or

damage will result unless the [other party] is restrained before the hearing can be held’.”

It is well settled that in order to be entitled to a preliminary injunction, a movant must

clearly demonstrate (1) the likelihood of ultimate success on the merits, (2) irreparable injury

absent a granting of the preliminary injunction, and (3) a balancing of the equities in the

movant’s favor. E.g., Doe v. Axelrod, 73 N.Y.2d 748, 750, 532 N.E.2d 1272, 1273 (N.Y. 1988);

McVay v. Wing, 303 A.D.2d 727, 758 N.Y.S.2d 88 (2d Dep’t 2003); MacIntyre v. Metropolitan

Life Ins. Co., 221 A.D.2d 602, 634 N.Y.S.2d 180, 180-81 (2d Dep’t 1995).

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“A preliminary injunction is a provisional remedy; its function is not to determine the

ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on

the merits.” Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 69 A.D.3d

212, 889 N.Y.S.2d 793 (4th Dep’t 2009). “In ruling on a motion for a preliminary injunction, the

courts must weigh the interests of the general public as well as the interests of the parties to the

litigation.” Id. at 223. Once the RFP is completed and proposals are in, the community will be

hard pressed to stop the momentum and will be forced to litigate with the developer and their

press teams, et al. Essentially, the RFP completion will render the developer of Site A and B for

Pier 6 a fait accompli before the requisite Supplemental EIS is prepared and GPP is modified.

Additionally, contractors, developers, and all parties involved would be irreparably

harmed based on their reliance on the illegitimate parameters set forth in the RFP. Specifically,

the RFP improperly includes the mandate of affordable housing. The Respondents further failed

to adequately address various adverse environmental impacts in a Supplemental EIS before

issuing the RFP. The RFP is therefore misleading and would result in irreparable harm to

anyone submitting a response thereto since the affordable housing component is contrary to the

GPP and in violation of the UDCA.

Indeed, bidders are relying, to their detriment, on this inappropriate scheme when

composing proposals for submission. The proposals will be for a building that is drastically and

materially different than what the GPP requires. As such, the contractors and developers would

be irreparably harmed unless the RFP is stayed.

II. PETITIONERS ARE LIKELY TO PREVAIL ON THE MERITS OF THE PETITION

A. ESDC Violated SEQRA by Failing to Prepare a Supplemental EIS

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According to the GPP, ESDC is the lead agency of the Project and is subject to SEQRA

for environmental review of the Project’s impacts. (“Exhibit D”, Page 16). The standard of duty

for a lead agency under SEQRA, and the standard of review for the Courts, is well established:

courts may, first, review the agency procedures to determine whether they were lawful. Second, we may review the record to determine 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. Court review, while supervisory only, insures that the agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process.

Jackson v. New York State Urban Dev. Corp., 503 N.Y.S.2d 298 (N.Y. 1986).

Once a project has obtained its necessary approvals and the lead agency has issued its

statement of findings, the SEQRA process is completed. Id. However, when there are changes

proposed to the project and new or amended approvals are necessary, the obligations of the lead

agency under SEQRA are revived and the agency may not approve the project again without

fulfilling its SEQRA obligations, as the amended approval is an “action” under SEQRA. 6

N.Y.C.C.R.R. § 617.2.

The SEQRA regulations recognize that in certain circumstances changes to the project,

changes in circumstances or material new information may require the preparation of a

Supplemental Environmental Impact Statement (“Supplemental EIS”). The regulations state:

Supplemental EIS’s. (i) The lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: [a] changes proposed for the project; or [b] newly discovered information; or [c] a change in circumstances related to the project. [ii] The decision to require preparation of a supplemental EIS, in the case of newly discovered information, must be based upon the following criteria:

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[a] the importance and relevance of the information; and [b] the present state of the information in the EIS. [iii] If a supplement is required, it will be subject to the full procedures of this Part. 6 N.Y.C.C.R.R. § 617.9.

Although SEQRA does not define changes in circumstances, “the purpose of a

[Supplemental EIS] is to account for new information bearing on matters of environmental

concern not available at the time of the original environmental review.” Coalition Against

Lincoln West, Inc. v. Weinshall, 21 A.D.3d 215, 799 N.Y.S.2d 205 (1st Dep’t 2005); Municipal

Art Soc. of New York, Inc. v. New York State Convention Center Development Corp., 15 Misc.3d

1138(A) (N.Y. Sup. Ct. 2007). In lieu of a Supplemental EIS, agencies often prepare a

“Technical Memorandum” to examine and address potential environmental effects associated

with “proposed modifications . . . and changes in background conditions.” Jackson, 67 N.Y.2d

400, 423; Coalition Against Lincoln West, Inc., 21 A.D. 3d 215, 219; Municipal Art Soc. of New

York Inc., 841 N.Y.S.2d 821, 827.

In Develop Don’t Destroy (Brooklyn), Inc. v. Empire State Development Corp., 914

N.Y.S.2d 572 (N.Y. Sup. Ct. 2010) the court held that the UDC erred in not taking a “hard look”

at impacts of delays in project construction and not providing a reasoned elaboration for its

determination. The shift from a 10-year construction period to a 25-year construction period was

a “changed circumstance” in the Project that the UDC should have evaluated. Id. at 628.

The Brooklyn Bridge Park Project’s FEIS was prepared in 2005. (“Exhibit E”, Page 1).

Edward Applebome, one of the project directors for the FEIS, followed the guidelines of the

2001 City Environmental Quality Review (“CEQR”) Technical Manual to conduct the

environmental review of the Project. (See Affidavit of Edward Applebome in Support of Cross-

Motion to Dismiss Petition, dated June 28, 2006 (“Applebome Aff.”), “Exhibit H”, Page 3).

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(Applebome prepared the FEIS in accordance with the CEQR Manual because it is standard

practice for projects located in New York City to conduct such review. (“Exhibit H”, Page 3).

According to the 2001 and 2014 CEQR Technical Manuals, “Build Year” is defined as

“the year when the action would be substantially operational, since this is when the action’s

effects would be felt, and when mitigation of project impacts would have to be in place.” (See

City Environmental Quality Review Manual, dated 2001 (“2001 CEQR Manual”), “Exhibit I”,

Page 2-4); City Environmental Quality Review Manual, dated 2014 (“2014 CEQR Manual”),

“Exhibit J”, Page 2-4). (Applebome estimated the Project’s Build Year to be 2012 and

conducted his analyses accordingly. (“Exhibit H”, Page 4). However, it is clear that the analyses

based off the 2012 estimated year of completion are outdated and have been rendered obsolete.

As of 2014, two years after the estimated year of completion, the Project is not even

remotely close to being considered “substantially operational.” In fact, only one of the five

proposed developments in Brooklyn Bridge Park is completed and three other developments are

still undergoing construction. (“Exhibit G, Pages 10-11). Meanwhile, the RFP for development

on Pier 6 was only released in May 2014 and there has yet to be any construction on Pier 6.

(“Exhibit G, Page 1).

Moreover, since 2005, Brooklyn Bridge Park has experienced significant changes in

circumstances and new information discovered which change the entire complexion of the

Project. These changes and newly discovered information include, but are not limited to, the

effect of Superstorm Sandy, substantially increased vehicular and pedestrian traffic, a change in

Park finances, and the overcrowding of schools. Each of these issues has resulted in significant

environmental impacts in and around Brooklyn Bridge Park. Yet, ESDC has failed to prepare a

Supplemental EIS or a Technical Memorandum to address these significant adverse

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environmental impacts. Therefore, the RFP process must be stayed until these impacts are

properly evaluated in a Supplemental EIS.

1. A Supplemental EIS is Required Due to Changes in Circumstances

a. Superstorm Sandy

Since the FEIS was published in 2005, Pier 6 has experienced a dramatic increase in

flood risk. According to FEMA’s revised New York City flood map, Pier 6 development sites

went from having a 0.2% risk of catastrophic flood activity to a 1% annual risk. (See FEMA

Flood Map, “Exhibit K”). An area with a 1% Annual Chance of Flood (“ACF”) is considered by

FEMA to be a High Risk Area. (“Exhibit K”).

This five-fold increase demonstrates the transition of Pier 6 from a Low Risk Area to a

High Risk flood area. The Pier 6 area is also categorized by FEMA as an “AE Zone” which is

considered a high-risk flood area with a capacity for damage and destruction to buildings.

(“Exhibit K”). Accordingly, there is a Federal flood insurance mandate for that area. (“Exhibit

K”). FEMA has also provided construction guidelines for such flood zones, and the RFP only

recommends, but surprisingly does not require, proposals to consider flood resiliency measures.

(“Exhibit G”, Page 5).

Moreover, according to New York City’s Climate Resilience Deliverables Report, sea

levels are likely to rise 1-2 feet and could rise by more than 2.5 feet, in addition to the 1 foot rise

that has already occurred since 1900. (See New York City’s Climate Resilience Deliverables

Report (“CRD Report”), “Exhibit L”, Page 6). As sea levels rise, they increase the chances of

extreme floods by today’s standards. (See Climate Central’s New York and the Surging Sea

Report (“CC Report”), “Exhibit M”, Page 17).

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Sandy produced a storm surge of 9 feet. (“Exhibit M”, Page 17). Assuming a 2 foot sea

level rise, the annual chance of extreme flooding would increase from 1% to 10%, over ten times

today’s estimate. (“Exhibit M”, Page 17). Sandy, which flooded Pier 6 and is now designated

as a 100 year flood, would become a 10 year flood. (“Exhibit M”, Page 17). With a 2 foot level

sea rise and a storm comparable to Superstorm Sandy, Pier 6 would experience significant

flooding. (See Sea Surge Map – 8 feet (“SS 8”), “Exhibit N”; Sea Surge Map – 10 feet (“SS

10”), “Exhibit O”). Obviously, if flooding comparable to Sandy could recur every 10 years, it

would be folly not to evaluate the potential impact in a Supplemental EIS prior to receiving RFP

responses from developers.

Unlike Hurricane Floyd in Riverkeeper, Inc. v. Planning Bd. Of Town of Southeast, 9

N.Y.3d 219, 233, 851 N.Y.S.2d 76, 82, 881 N.E.2d 172, 178 (N.Y. 2007), Superstorm Sandy is a

change of circumstances that has caused significant adverse impacts as demonstrated by the five-

fold increase of flood risk to the Pier 6 area and the designation of Pier 1 as an evacuation flood

zone by FEMA. Therefore, the effects of Superstorm Sandy on Brooklyn Bridge Park require

preparation of a Supplemental EIS.

b. Increased Vehicular and Pedestrian Traffic

The FEIS analyzed the proposed traffic impacts associated with the proposed Park and on

site commercial and residential uses on the downtown Brooklyn waterfront. (See FEIS, Chapter

14: Traffic and Parking (“FEIS, Ch. 14”), “Exhibit P”; FEIS, Chapter 15: Transit and Pedestrians

(“FEIS, Ch. 15”), “Exhibit Q”). According to the FEIS, the Project would generate a net total of

3,132 person trips in the weekday AM peak hour, compared to 8,040, 7,175 and 9,189 new trips

during the weekday midday, PM and Sunday midday peak hours, respectively. (“Exhibit P”,

Page 14-1).

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The FEIS also stated that there would likely be no new significant traffic or parking

impacts in the AM peak hour not already disclosed for the other peak hours when project-

generated demand would be substantially greater. (“Exhibit P”, Page 14-1). The Project would

generate demand for an estimated 1,282 parking spaces in the weekday midday and 1,497 spaces

in the Sunday midday. (“Exhibit P”, Page 14-45).

As for the subway and pedestrian impact, the FEIS stated that the Project would generate

an estimated 989 subway trips during the weekday midday peak hour, 1,558 trips during the

5:00-6:00PM peak hour and 1,375 trips during the Sunday 2:00-3:00PM peak hour. (“Exhibit

Q”, Page 15-2). The FEIS also estimated that four of the area’s subway stations or station

complexes (York Street, High Street, Clark Street, Borough Hall/Court Street) would only

experience a peak hour demand in excess of 200 persons per hour in either the PM or Sunday

peak hours, or both. (“Exhibit Q”, Page 15-2). Additionally, the FEIS stated that significant

adverse pedestrian impacts were not expected to occur at sidewalks along the principal

pedestrian access corridors serving the proposed project area. (“Exhibit Q”, Page 15-35).

However, these estimates conducted in the 2005 FEIS are completely outdated and are no

longer reliable. For instance, the estimates severely underestimated the traffic impact on the

surrounding neighborhood even without the proposed Project. Traffic in the surrounding

neighborhood has also drastically increased as a result of the Atlantic Yards Project.

Moreover, pedestrian traffic has also drastically increased beyond what the FEIS

anticipated. The FEIS expected the Park to generate approximately “27,000 trips during a

typical summer Sunday and 15,000 trips during a typical summer weekday.” (See FEIS,

Appendix B, “Exhibit R”, Page 1).

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However, the actual numbers have turned out to be much higher. Nancy Webster,

Executive Director of the Brooklyn Bridge Park Conservancy, stated that while Brooklyn Bridge

Park has yet to carry out a visitor count in 2014, “roughly 100,000 people visited [the Park] each

Saturday and Sunday [in 2013].” (See Mary Frost, Mayor de Blasio re-nominates Regina Myer

president Brooklyn Bridge Park Corp, “Exhibit S”).

On the topic of the 2014 visitor count, Webster stated that “while [Brooklyn Bridge Park]

[hasn’t] counted, the numbers feel higher.” (“Exhibit S”). These numbers demonstrate that the

FEIS drastically understated the number of visitors and pedestrians of Brooklyn Bridge Park,

even without the Pier 6 development.

In view of the aforementioned, ESDC should be required to prepare a Supplemental EIS

to include evaluations on vehicular and pedestrian traffic as well as a recalculation of the

Project’s “Build Year.”

2. A Supplemental EIS is Required Due to Newly Discovered Information

a. Change in Park Finances

The Park’s maintenance and operations budget proposal is $15.2 million, as calculated by

Singe Nielsen, an agent of the Respondents, in 2004. (See Affidavit of Signe Nielsen, for

Respondents, In Support of Cross-Motion to Dismiss Petition and in Opposition to Petition,

dated July 30, 2006 (“Nielsen Aff.”), “Exhibit T”, Page 3). Since its inception, Brooklyn Bridge

Park was meant to be financially self-sustaining and developments were to be constructed

according to the Park’s need for revenue. (“Exhibit C”; “Exhibit A”; “Exhibit B”). Respondents

previously conceded in Brooklyn Bridge Park Legal Def. Fund v. New York State Urban Dev.

Corp., that the development program would be reduced depending on market conditions:

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BBPDC has committed to building the minimum development necessary to cover the park's maintenance and operations needs. Accordingly, the plan analyzed in the FEIS and described in the GPP represents the maximum build-out that would occur as part of the Project. If, once requests for proposals are issued for the development components, it becomes clear that market conditions will allow for less development to support the park's needs, the development program will be reduced accordingly.

(“Exhibit F”, Pages 15-16)(Emphasis added).

BBPDC’s statements supporting minimal development in Brooklyn Bridge Park are also

included in the FEIS. The FEIS analyzed the necessary development of the Park and

acknowledged that market conditions may impact the size of development:

“The final step in the [development] analysis was to create the smallest program that could prudently support the annual maintenance and operations of the park . . . it should be noted that the revenue analysis was completed in late 2004 and all assumptions, including land values, construction costs, and financial assumptions, are based on data available at that time.”

(See FEIS, Chapter 1, “Exhibit U”, Page 1-15).

“The development program contained in the proposed plan represents the minimal level of development that is required to prudently support the annual maintenance and operations of the park based on the analysis undertaken in 2004 . . . development may be smaller, if market conditions permit it, because the value of land and other factors may well be different from those assumed in this analysis.”

(“Exhibit U”, Page 1-18)(Emphasis added).

Since Brooklyn Bridge Park is financially self-sustaining, revenues from its development

sites as well as other Park revenues provide the Park with funding to cover its expenses. To date,

the Park has four active real estate development projects: 1 Brooklyn Bridge Park, Pier 1

Development (“Pierhouse”), John Street development, and Empire Stores. (“Exhibit G”, Pages

10-11).

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Once these four projects and the Pier 6 project are completed, Brooklyn Bridge Park is

estimated to cost $12 million per year to operate and maintain, with an approximate $210 million

in total to cover one-time maritime infrastructure repair expenses related to the Park’s waterfront

piers. (See Pier 6 Development Sites RFP Update, dated April 10, 2014 (“RFP Update”),

“Exhibit V”, Page 4). The Park projects that revenue from the four development sites awarded to

date will cover 92% of annual operating expenses (approximately $11 million of the $12 million

project annual budget upon completion) and 38% of maritime expenses (approximately $80

million of $210 million in projected expense over the next 50 years). (“Exhibit V”, Page 5).

Revenue from the Pier 6 development sites is expected to cover the remainder of the operating

and maritime expenses. (“Exhibit V”, Page 5).

Pier 6 is one of the most valuable development sites in Brooklyn and the condominium

prices in Brooklyn Bridge Park are rapidly increasing. Since the 2005 FEIS, there have been

dramatic increases in real estate prices and land value in Brooklyn Bridge Park. The Pier 1 and

Pier 6 development sites were projected to sell for $750 and $725 per square foot in the FEIS in

2005. (See FEIS, App. C., “Exhibit W”, Page 3). However, according to the Wall Street

Journal, prices for the Pierhouse development site of Pier 1 have been raised six times since

launch and are “25% higher than the developer projected last fall.” (See Josh Barbanel,

Brooklyn Park Condos Sizzle, “Exhibit X”, Page 1). The condominium units have sold at an

“unusually fast pace” at an average price of $1,800 per square foot, a record for Brooklyn.

(“Exhibit X”, Page 1).

Obviously, the projected estimates of $750 or $725 per square foot are far below the

current $1,800 per square foot sale price in Brooklyn Bridge Park. This difference in sales price

implies that the potential revenue from these two developments sites is much more than what

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was projected in the 2005 FEIS. Meanwhile, the annual maintenance and operations budget has

only modestly increased since 2005. According to Appendix C of the 2005 FEIS, the annual

budget was $15.2 million, while the BBP Financial Model Update in October 2013 stated that

the projected expenses would be $16 million. (“Exhibit W”, Page 56); (See BBP Financial

Model Update, dated October 21, 2013 (“BBP FMP”), “Exhibit Y”, Page 4).

If the Park meets its funding threshold through property taxes of the existing four

development projects and market conditions thereby allow for less development to support the

Park’s needs, the Pier 6 housing development must be reduced or may even be unnecessary.

Furthermore, BBPDC’s inclusion of affordable housing in the Pier 6 development

scheme contributes to the idea that the Park’s budget for maintenance and operations can be met

without total completion of the proposed Pier 6 development plan. BBPDC mandated that

130,000 gross square feet (approximately 30% of the apartments) be allocated to affordable

housing. (“Exhibit G”, Page 9). Assuming a sale price of $1,800 (the market value of square

footage in Brooklyn Bridge Park) and a 15% loss factor to calculate net saleable square feet, the

Park could be foregoing almost $200 million in revenue in order to accommodate affordable

housing. This is clearly illogical and BBPDC has failed to provide any rationale for the

inclusion of this less than profitable housing scheme in the RFP.

If Brooklyn Bridge Park can afford to forego millions of dollars by including affordable

housing in the Pier 6 development, then Brooklyn Bridge Park has enough funding to reduce

development on Pier 6 instead of injecting affordable housing into a scheme that only

contemplates a self-sustaining Park of minimal development. See ESDC Brief, at 16.

Because these finances are a change in circumstance and an example of newly discovered

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information since the FEIS in 2005, the Park’s finances should be evaluated in a Supplemental

EIS to determine the necessity of Pier 6’s development.

b. School Overcrowding

Chapter 4 of the FEIS evaluated the effects the Project would have on community

facilities, such as schools. (See FEIS, Chapter 4, “Exhibit Z”). The FEIS concluded that the

proposed project would not have significant adverse impacts on community facilities. (“Exhibit

Z”, Page 4-1). The FEIS stated “even with the student-age population generated by the proposed

project, there would be sufficient capacity in the public school system to accommodate this

added demand.” (“Exhibit Z”, Page 4-1).

The Brooklyn Bridge Park project site lies within the boundaries of Region 2 of

Community School District 13 (“CSD 13”). (“Exhibit Z”, Page 4-2). According to the

Department of Education’s (“DOE”) enrollment and capacity figures from the 2003-2004 school

year, the elementary schools in this Region were operating at approximately 65% capacity.

(“Exhibit Z”, Page 4-2).

According to the FEIS, all of the children living in the proposed residential buildings on

the project site would be zoned to attend public schools in CSD 13. (“Exhibit Z”, Page 4-7).

Even with the estimated additional 327 elementary school students from the Project, the FEIS

calculated that elementary schools in Region 2 of CSD 13 would only operate at 75% capacity in

2012. (“Exhibit Z”, Page 4-7).

However, according to the New York State School Construction Authority, the

elementary schools listed in the FEIS are, in fact, operating over capacity and overcrowded. (See

New York State School Construction Authority, 2012-2013 Enrollment, Capacity and Utilization

Report (“NYSSCA Report 2012”), “Exhibit 1”, Pages 60-61); New York State School

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Construction Authority, 2013-2014 Enrollment, Capacity and Utilization Report, Book One

(“NYSSCA Report 2013”), “Exhibit 2”, Pages 94-95).

P.S. 8 and P.S. 46 are two elementary schools listed in the FEIS that are operating over

capacity. For example, in the 2012-2013 school year, P.S. 8 operated at 119% capacity while

P.S. 46 operated at 103% capacity. (“Exhibit 1”, Pages 60-61). Overall, the schools listed in the

FEIS for CSD 13 operated at 90% capacity in the 2012-2013 school year. (“Exhibit 1”, Pages

60-61). This 15% difference in operational capacity demonstrates that the FEIS drastically

underestimated the significant adverse impact the Project has on schools.

Furthermore, the Project continues to have an increasingly significant adverse impact on

surrounding schools. For example, in the 2013-2014 school year, P.S. 8 operated at 142%

capacity while P.S. 46 operated at 103% capacity. (“Exhibit 2”, Pages 94-95). Overall, the

schools listed in the FEIS for CSD 13 operated at 95% capacity in the 2013-2014 school year

and were significantly overcrowded. (“Exhibit 2”, Pages 94-95).

Even though the Project currently has only one completed development, the significant

overcrowding of schools demonstrates that the Project already has a significant adverse impact

on surrounding schools in addition to the significant adverse impact from population increases in

the surrounding neighborhood. Moreover, the three developments currently undergoing

construction have yet to contribute more elementary school students into this already

overcrowded school system. (“Exhibit G”, Pages 10-11). It follows that the Project would

continue to have a significant adverse impact on school capacity, even without the inclusion of

the Pier 6 development.

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The overcrowding of schools is newly discovered information that has arisen since the

FEIS was executed in 2005 and therefore the Project’s significant adverse impact on community

facilities should be reevaluated in a Supplemental EIS.

In sum, given the effect of Superstorm Sandy, the substantial increase in vehicular and

pedestrian traffic, the change in Park finances, and the increase in school overcrowding,

Petitioners have demonstrated that ESDC “failed to identify the areas of environmental concern”

and “did not take a hard look at them.” 825 N.Y.S.2d at 356. Therefore, ESDC must prepare or

cause a Supplemental EIS to be prepared to analyze these changed circumstances and this newly

acquired information before proceeding with the Pier 6 development.

B. ESDC Has Violated The UDCA Because the RFP Contains an Impermissible Alteration to the Project Inconsistent with the GPP

The determination to release the RFP was arbitrary and capricious, affected by an error in

law and an abuse of discretion because the inclusion of affordable housing is an impermissible

alteration to the Project and a violation of the UDCA.

The UDCA of 1968 created the UDC for the purpose of improving New York State’s

economy through various development projects. N.Y. Unconsol. Law § 6252. UDC, doing

business now as ESDC, is subject to the provisions of the UDCA. Id. at § 6262. BBPDC, as a

subsidiary of ESDC, is also subject to the provisions of the UDCA. (“Exhibit D”, Page 2).

According to the UDCA, ESDC must provide notice and opportunity for comment on

proposed changes to the Project Plan “before commencing the . . . alteration or improvement of

any project.” N.Y. Unconsol. Law § 6266(2). After providing notice to the community of these

proposed changes, the corporation must conduct a public hearing pursuant to such notice and “if

any substantive negative testimony or comment is received at such public hearing, the

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corporation may, after due consideration of such testimony and comment, affirm, modify, or

withdraw the plan.” Id.

As conceded by ESDC in Develop Don’t Destroy Brooklyn v. Empire State Dev. Corp.,

914 N.Y.S.2d 572, “In practice . . . when the need for modification arises, ESDC adopts

amendments to the GPP to incorporate the relevant modifications; and thereafter affirms a

modified GPP, following the statutory public hearing process for the initial adoption of such a

plan.” (See Respondents’ Memorandum of Law, dated November 12, 2009 (“ESDC MOL”),

“Exhibit 3”, Page 7).

The GPP never contemplated affordable housing. The GPP has only previously

contemplated revenue-generating commercial or residential developments in the Park.

As noted by the 2006 GPP:

[A] need of the Project is to include program components that are appropriate commercial uses that can generate sufficient funds to support the annual maintenance and operations of the Project.

(“Exhibit D”, Page 2).

The cost of operations, maintenance and upkeep would be paid out of the revenues received from appropriate commercial activities and residential projects located within the Project.

(“Exhibit D”, Page 3).

[T]he MOU requires the Project to be self-sufficient by providing for its own ongoing maintenance and operations. Therefore, appropriate commercial revenue producing activities would be located within the Project to support its annual maintenance and operations.

(“Exhibit D”, Page 5).

The 2002 MOU . . . outlining conditions for the creation and operation of the Project, requires that the park be financially self-sustaining, that is, that the park’s annual operation and maintenance budget be provided by revenue generated from within the Project.

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(“Exhibit D”, Page 12).

This revenue-generating commercial and residential mandate must be considered in light

of the BBPDC’s promises to have as minimal development as necessary to fund the Park.

(“Exhibit F”, Page 16; “Exhibit U”, Page 1-18).

The GPP lacks any mention whatsoever of affordable housing units. In fact, the only

kind of housing units the FEIS analyzed is market rate housing units. (“Exhibit Z”, Pages 4-1

and 4-7). Since affordable housing units would, at best, be below market rate, this inclusion of

affordable housing in the development of Pier 6 would be an alteration to the Project that is

subject to the notice and comment procedure outlined in the UDCA. Enjoining the BBPDC from

accepting or approving Pier 6 proposals until formally modifying the GPP is the appropriate

remedy under the UDCA.

The UDCA implicitly grants municipalities the power to require a development

corporation to perform Project work according to the Project Plan provisions and the power to

subject said corporation to penalties when the corporation does not act in accordance with the

terms of the Project Plan. N.Y. Unconsol. Law § 6266(3). Enjoining the BBPDC from

accepting or approving Pier 6 proposals that include affordable housing would also be an

appropriate penalty “incidental to the proper enforcement” of the project plan, since the plan

makes no mention of including affordable housing in Brooklyn Bridge Park. Id.

Moreover, ESDC provided no rationale whatsoever for the inclusion of affordable

housing in the Pier 6 development. Petitioners strongly object to BBPDC’s attempts to bypass

the administrative review process by sneaking in this significant alteration in the later stages of

the Project and not providing a basis, let alone a justifiable basis, for its inclusion. Accordingly,

Petitioners respectfully request that BBPDC be directed to act in conformance with the

requirements of the UDCA and hold a duly noticed public hearing on such proposed

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modifications and to provide an opportunity for the general public to submit oral and written

comments on the inclusion of affordable housing in Brooklyn Bridge Park.

III. PETITIONERS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF

Irreparable injury, for purposes of equity, has been held to mean any injury for which

money damages are insufficient. E.g., Walsh v. Design Concepts, Ltd., 221 A.D.2d 454, 455, 633

N.Y.S.2d 579, 580 (2d Dep’t 1995); Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186

A.D.2d 631, 633, 588 N.Y.S.2d 424, 426 (2d Dep’t 1992).

Petitioners would be irreparably harmed by construction of a development based on the

illegitimate parameters set forth in the RFP. Specifically, the RFP improperly includes the

mandate of affordable housing, and the Respondents failed to adequately address adverse

environmental impacts in a Supplemental EIS before releasing the RFP.

Absent injunctive relief, the planning and construction of Pier 6 would commence

according to the illegitimate parameters of the RFP. Petitioners would be subjected to an

unnecessarily oversized development on Pier 6. Respondents made promises that only as much

development as financially necessary would be constructed. (“Exhibit F”, Pages 15-16). As

frequent users of the Park and advocates for green space, Petitioners would be harmed by the

unnecessary overdevelopment of the Park and the unnecessary reduction of the Park’s natural

resources.

Moreover, Petitioners would be harmed by the Pier 6 development’s adverse

environmental impacts on the surrounding neighborhood that were not adequately addressed in a

Supplemental EIS. Respondents have not analyzed the changed circumstances and newly

discovered information relating to the Project since the 2005 FEIS and have not even attempted

to mitigate these significant adverse environmental impacts accordingly. Petitioners will be

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irreparably harmed by the unnecessary increase in vehicular and pedestrian traffic and the

unnecessary increase of students into a school region that is already experiencing significant

school overcrowding.

As such, Petitioners would be irreparably harmed absent injunctive relief.

IV. THE BALANCE OF EQUITIES TILTS IN PETITIONERS’ FAVOR

A balancing of the equities requires that the motion be granted if the irreparable injury to

be sustained by plaintiff is more burdensome than the harm caused to defendants through

imposition of the injunction. E.g., Fischer v. Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 836 (2d

Dep’t 1990); Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 70 A.D.2d

1021, 418 N.Y.S.2d 216 (3d Dep’t 1979).

A preliminary injunction has been held to be warranted in a case in which irreparable

harm to the plaintiff was debatable, but the balance of equities was in plaintiff’s favor; plaintiff

made a strong showing on the merits that the injunction would merely maintain the status quo.

See Danae Art International Inc. v. Stallone, 163 A.D.2d 81 (1st Dep’t 1990).

Essentially, the purpose of a preliminary injunction is to maintain the status quo pending

ultimate determination. See Walker Memorial Baptist Church v. Saunders, 285 N.Y 462, 474;

Bachman v. Harrington, 184 N.Y. 458, 464. That is the basis of the instant proceeding.

If the injunction were granted, Respondents would merely be required to abide by the

governing law (SEQRA and UDCA), and be delayed in the construction of the Pier 6

development.

Respondents’ inconvenience is far outweighed by the irreparable harm Petitioners will

suffer if an injunction is not granted. If the injunction were not granted, the planning and

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construction of Pier 6 according to the illegitimate parameters of the RFP would proceed and it

will become increasingly more difficult to “undo” once the process moves forward.

Since the Pier 6 development is still only in the RFP phase and construction has yet to

begin, the preliminary injunction would maintain the status quo until Petitioners’ claims can

ultimately be decided. See, Fischer, 168 A.D.2d 599; Nassau Roofing & Sheet Metal Co., 70

A.D.2d 1021; Walker Memorial Baptist Church, 285 N.Y 462; Bachman, 184 N.Y. 458.

CONCLUSION

For all of the foregoing reasons, Petitioners’ application and petition should be granted in

its entirety.

ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA & WOLF, LLP

By: ______________________

Frank V. Carone

Attorneys for Petitioners 1 MetroTech Center, Suite 1704 Brooklyn, New York 11201 (718) 215-5300