Professional Documents
Culture Documents
452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
BREWER,
Petitioners-Complainants,
Index No.
- against-
Planning of the City of New York and Chair for the New
York City Planning Commission,
Respondents-Defendants.
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
1 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
("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:
ZCM).1
• Site 6A (259 Clinton Street M 180506, (B) ZSM), NI80498
modification"
2. CPC has approved these modifications as a purported "minor 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
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
towers of 69 stories and one 63 story tower on one block - will forever alter the Two Bridges
each,
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
2 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
("ULURP").2
Community Board pursuant to the Uniform Land Use Review Procedure 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
modification"
than 2,700 dwelling units in three skyscrapers on a single block, is simply a "minor
is nothing short of irrational, arbitrary and capricious and is incorrect as a matter of law.
PARTIES
York State Constitution (Article IX). The Charter of the City of New York ("Charter") sets forth
of"
the powers and respansibilities of the City Council, "the legislative body 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
3 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
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
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
4 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
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
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
5 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
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
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
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
Commission.3
significantly over the course of the Schwarz
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
DCP.4
executive agencies like CPC
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
3
See the Chair's Recommendatiêñs for Charter Revision, dated April 24, 1989; Summary of Revised Prope=!s, dated
June 1989; Summary of Prdimi=ry Proposals, dated Summer 1989; and Miñütes of Hearings of New York City
Charter Revision Commishn, dated April 24th, May 13th, and May 15th, stiached to the Smith Affirmation
collectively as Exhibit D.
4
Id.
6 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
exactly the body that should be involved in decisions that impacted the lives and neighborhoods
citizens.5
of New York's 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
colleagues'
in the summer of 1989, Chairman Schwarz gradually evolved to support his position
that the Council should be more directly involved in land use decisions, and the final Charter
evolution.6
revision proposals reflect this
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
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.
5Id.
'Id. See Record of Motions, Votes and Consensus of New York City Charter Revision Cemmit , dated June 21st
and June 26, 1989, attached to the Smith Affirmation as Exhibit E.
7 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
25. The Urban Renewal Law authorizes the City of New York to acquire sites in an
Area" Plan."
"Urban Renewal for redevelopment in accordance with an "Urban Renewal 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
1967.8
May 11, 1967 and by the Board of Estimate on June 9,
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
area.'
opportunities in the
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 area
ütherwise allowed under the C6-4 zoning, which was then 10-12
FAR, (dependin¡; on the use developed, and the
inclusion 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 Renewal
Plan were to climinate blight and restore the residential character of the area, to provide well-designed low, moderate
and middle income housing, and providing convenient recreational, commercial and cc--My facility uses, among
other goals. See City Planning Commission Report 19779, annexed to the Smith Affirmation as Exhibit G. These
floor area caps were consistent with the cer::±y's request in 1960 that a less dense zone be applied to this area.
8 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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)
2013."
and the Board of Estimate (Cal. #208), and was last amended on August 23, Generally,
the purpose of LSRDs are to allow "greater flexibility for the purpose of securing better site
land"
planning for development of vacant as well as to "encourage harmonious designs
buildings."H
incorporating a variety of building types and variations in the siting of LSRDs, 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,
30"
a distance of 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
D
project promotes better site planning and community planning.
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
requested.14
permit may be Most new developments within an LSRD must either be authorized
process."
by or be sanctioned by a special permit, which requires approval through the ULURP
¹° See
City Planning Cassis;a Report CPC 21885 annexed to the Smith Affirmation as Exhibit H.
H See ZR-78-01.
32 See Commission Report C950078 ZSM, annexed to the Smith Affirmation as Exhibit
City "laññing 1.
D See ZR and
§§ 78-313 (Findings) (a) 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 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
31. The Two Bridges LSRD includes six Parcels (Sites 4A, 4B, 5, 6A, 6B, and 7) and
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
Area"
zoning regulations permit a "Maximum Floor ("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),
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
"
The Commissionfinds that the proposed modifications also allow for a reduced
"'
A numerical height cap (in terms of number of feet) does not exist in this zoning district; heights are governed by
other zoning rules.
10
10 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
should translate well into the prevailing surrounding context qf 16-storv to 26-
"
storv residentialstructures and not adversely efect [sic] adjacent properties.
modification"
36. In 2013, an application that DCP determined to be a "minor
Commission.38
application, was approved by the City Planning 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
Therefore, the prior findings will be unafected by the addition qf the proposed
project."
Additionally, the application specifically showed that it met the intent
constructed.5
The proposed project was never
37. In 2016, three private developers submitted pre-application materials to DCP for
"minor" permit.20
projects that they characterize as modifications to the 1972 Two Bridges LSRD
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.
38
See 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 the
Smith Affirmation as Exhibit K.
11
11 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
spaces.2'
existing parking 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
38. An objective analysis of the approved proposals reveals the enormity of the
modifications."22
purported "minor 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
80-stories, 501,518 square feet, and 660 dwelling units plus 10 senior units relocated
• 260 South Site 5 (Parcel - two towers of 798 feet/69 stories and 748 feet/62
Street, 5)
39. The potential impacts to the Two Bridges LSRD caused by three skyscrapers cannot
modifications"
be overstated. These proposed "minor will triple the number of available units in
12
12 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
the Two Bridges LSRD (adding over 2,700), and the tallest currently standing building in Two
stories.24
Bridges will increase from approximately 27 stories to over 80 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
units).25 "relocate"
in those The FEIS indicates a commitment to 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.
modification"
40. This purported "minor is on the same order of magnitude in terms of
dwelling units added in the following neighborhood rezonings, that all went through ULURP:
41. Furthermore, Flushing West, a proposed rezcaing that did not move forward, would
ULURP.26
have added 938 units and this action would still have been subject to
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 Rockaway
Rezoning, Inwood Rezoning, and Flushing West Rezoning aññcxed colicctively hereto as Exhibit M.
13
13 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
plaññed for the neighborhoods, on programs and capital projects to support the rezonings and
impacts.27
mitigate
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
modifications," action.28
applications as "major which would trigger a new ULURP
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
another."
irrevocably change the relationships of the existing buildings to one 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
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 Chin and Rosie Mendez, Manhattan Borough President Gail A. Brewer,
from Council Members Margaret
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.
l4
14 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
neighborhood require unique consideration when the three proposed projects are assessed
cumulatively," required.29
yet summarily rejected the idea that a special permit was in fact In the
letter, former director Weisbrod cited Section 2-06(g)(5)(ii) of the ULURP Rules to conclude that
"minor"
a special permit is not necessary because the modification is a modification, because it
would allegedly not "require any new waivers or zening actions or increase the extent of previously
these applications, and are pleased that the applicants have agreed to a
coordinated review of the proposals. to ensure that both any cumulative and
"minor"
46. DCP's determination that the proposed modifications were 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
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
29 Affirmation
See Letter from CPC Director Carl Weisbrod annexed to the Smith as Exhibit O.
30 Id.
15
15 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
"major"
permits, reasons for DCP to have determined that the modifications were 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
"major"
that when an EIS is required, the action is considered and requires ULURP. Specifically,
concession"
Section 374(b) of the City Charter states that a "major shall mean a concession that
has significant land use impacts and implications, as determined by the commission, or for
states that "[a]ll major concessions shall be subject to review and approval pursuant to section
ninety-seven-d."
one hundred ninety-seven-c and section one hundred The rules promulgated by
CPC pursuant to the City Administrative Procedure Act (CAPA) as required by such section
medate.3'
(hereinafter "Major Concession Rules") are consistent with the Charter's 62 RCNY
(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 cc·-ission
city ;!:r!:;; shall adopt rules that either list major concessions or establish a procedure
concession."
for determining whether a concession is a major Charter Section 374(b).
16
16 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
ULURP, instead of the criteria for the Major Concession Rules (as an example) which apply to
capricious.32
determinations prior to the procesing of an application, is arbitrary and 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
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
20"'
ULURP, include The Wheel (C 150447 ZSR) and 134-01 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 the
specific 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 over
150 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 of
the 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 set
forth in such paragraphs.
33See the DCP Applications for both of these projects annexed collectively hereto as Exhibit P.
17
17 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
20* "major"
the Wheel and the Ave. Queens project were treated as (triggering a new ULURP)
51. Regarding The Wheel, the original project, which underweñt ULURP for special
625'
permits under application number Cl30317 ZSR, facilitated the development of a 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
20th
52. Similarly, 134-01 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
18
18 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
"minor."34
specification that they are otherwise This demonstrates that CPC considers the
existence of an EIS of such importance that even a carousel, or underground pipes, would require
Modifications,"
06(g)(5)(ii) is part of a rule entitled "Review of Council 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 unless
an 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 public
on 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 sportsincluding 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 50
percent 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 which
continues 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 or
the enme!:tive effect
of any amendments or extensions made over any five year period does not include
modifications when added to the existing concession,
which cause any threshold of § 7-02 to be exceeded and
increase 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 operated
under 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;
commerce"
(g) A concession on wharf property or waterfront property primarily for purposes of "waterfront or in
navigation"
"furtherance of as such terms are defined in the New York City Charter;
commerce"
(h) A concession on wharf property for purposes other than "waterfront or in "furtherance of
navigation"
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.
19
19 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
of any proposed modification to the Commissioner's prior approval of an action. Upon receipt the
55. The criteria referenced by Chair Weisbrod in Section 2-06(g)(5)(ii) are also
application." - and -
The structure of this rule 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
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
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
20
20 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
"rule"
60. Specifically, pursuant to CAPA Section 1041(5), a is defined as "the whole
or part of any statement or communication of general applicability that implemcats or applies law
agency..."
or policy or prescribes the procedural requirement of an
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,
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
certification."
to 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
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
scale."
project's size and In Windsor, the City Council's Land Use Committee had suggested
21
21 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
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
modification."
the LSRD under the guise of a "minor
F. DCP'S Rule Failed to Comply with CAPA, and Therefore Its Approval Using It Does Not
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
policy."
of general applicability that implements or applies law or N.Y.C. Charter § 1041(5).
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
22
22 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
already in ULURP, did not. CPC's criteria regarding major or minor modifications is a rule and
principle"
68. First it constitutes a "fixed, general that is applied without "regard to
circumstances"
other facts and 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
website.35
criteria, which appear only in the Weisbrod letter and on the DCP 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
modifications..."
whether the proposed See ULURP Rules, Section 2-06(g)(5)(ii).
70. In this DCP is bound to consider its own criteria - whether the proposed
way,
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 discretion modifications -
any regarding
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
scheme."
circumstances relevant to a regulatory 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
35 See Applications,"
"Step 3: Preparation of Land Use and Erivismsete: available at
https:/ wwwl.nve.uov/site'plannine/applicams/applicant-portal/Mep3-non-ulwp-em-followup.page.
23
23 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
usage of DCP s own criteria, there is no consideration of other factors in deteraiairiirib wowie«ier a
72. Cons~«ently, as these criteria are properly a rule, DCP was required to fulfill their
obligations under CAPA s procedural requirements before could be used in the current non-
they
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,
law."
it does not carry the "force and effect of 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
——
—
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
24
24 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
essence.37
the 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
review.38
to public
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
modifications.39
these purported minor The October 17, 2018 DEIS hearing was well attended,
testifying.40
and public testimony lasted for nearly seven hours with 103 speakers
77. On November 23, 2018 (the Friday after Thanksgiving), the Final Environmental
Impact Statement was issued - a highly technical document 700 pages - less
(FEIS) nearly long
2018.41
than two weeks before the scheduled CPC vote on December 5, 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
25
25 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
to no information provided to [them] by the Department or the development team on these projects
available."42
other than what is publicly 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
amendment.]"
modification until after the public hearing for [their proposed zoning text
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
modification"
designating the proposed projects as a "minor was contrary to the intent and letter
Charter.43
of the New York City 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
ULURP."44
require
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
42 from
See Letter Council Member Chin and Borough President Brewer, dated November 30, 2018, annexed to the
Smith Affirmation as Exhibit S.
43 See Letter from
Speaker Corey Johnson to Chair Lago, dated December 3, 2018, annexed to the Smith
Affirmation as Exhibit T.
44
See Letter from Marisa Lago to Borough President Brewer, Council Member Chin, Senator Kavanaugh, Assembly
Member Niou, and Congresswoman Velazquez, dated December 3, 2018, annexed to the Smith Affirmation as
Exhibit U.
45
See Exhibits A, B, and C.
26
26 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
"straightforward"
trust. Commissioner Levin noted that the legal situation was not as 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
modification"
Charter caused by CPC's approval of this development as a "minor 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
modifications"
"minor in violation of ULURP, Manhattan Borough President Gale A. Brewer
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
®
See generaHy ULURP Rules.
27
27 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
(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
Respondents'
Planning decision improperly circumvents the clear requirements of the City
Respondents'
87. The City Planning rationale for this determination relies exclusively
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.
Respondents'
The City Plãññing therefore have no justification for their actions, and have
improperly exceeded their authority under the City Charter by intruding on the domain of the
28
28 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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.
(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
modification."
a "minor 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
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.
Respr·ñdêñts'
94. The City Plaññing 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.
29
29 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
noise).47
construction (traffic and As noted above, one of the skyscrapers will be cantilevered over
"relocated."48
a senior center, which will require that 10 senior apartments will need to be
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
"major"
98. The rules the CPC itself promulgates link the designation of with whether
an environmental review has been conducted. Concessions, which involve the grant made by a
for the private use of City-owned - are considered major if it has been
City agency property
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 id.
30
30 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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
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.
(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
102. The failure to follow the requiromen.s of CAPA for the utilization of this rule for
modification"
the Two Bridges "minor project is therefore null and void.
31
31 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
WHEREFORE, Petitioners respectfully request this Court issue a juug~ment pursuant to Article
A. Annulling and vacating CPC's December 5, 2018 decision to approve the purported "minor
modifications"
to the existing Two Bridges Large Scale Residential Development;
B. Enioinin~ Respondent DCP from send!n~ to Respondent DOB approval letters related to
modifications"
the purported "minor to the existing Two Bridges Large Scale Residential
Development;
C. Declaring DCP's decision that ULURP review was not required pursuant to 62 RCNY
Section 2-06 was illegal and made outside the scope of DCP's authority pursuant to City
Charter Section 197-c and in violation of City Charter sections 197-c and 197-d;
D. Enioinin~ DOB from the permits that would facilitate the development of
issuing building
modifications"
the proposed buildings in connection with the purported "minor approved
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.
32
32 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
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 Longley
250 Broadway, 15th Floor
New York, New York 10007
(212) 788-9131
33
33 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
VERIFICATION
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
RAJINDER MANN
(RARY PUBLIC
34 of 35
FILED: NEW YORK COUNTY CLERK 12/07/2018 02:29 AM INDEX NO. 452302/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/07/2018
VERIFICATION
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 can attest that Paragraphs 22-
records, 1-6, 8-18,
50, 53-77, 79-80, and 82-102 of the within Petition are true and accurate to his knowledge.
JAMES W. CARAS
TARY PUBLIC
35 of 35