Posted by: Patricia Salkin | April 21, 2012

NY Appellate Courts Upholds Environmental Review of Proposed Rezoning

The  City Council approved a proposed rezoning intended to preserve the neighborhood character, create opportunity for affordable housing, support local retailers while protecting the residential character, and impose building height restrictions.  The Department of City Planning (“DCP”) performed an environmental review of the proposal and prepared an Environmental Assessment Statement (“EAS”) opining that the rezoning would not negatively impact the environment.  The petitioners challenge the DCP’s declaration, arguing that their environmental review was insufficient.  The lower court held that the DCP’s environmental review was adequate and denied the petition to annul the decision.  The petitioners appealed.

The appellate division begins by explaining that its role as a reviewing court is to determine whether DCP’s decision was “made in accordance with lawful procedure” and that the determination was not arbitrary and capricious nor an abuse of discretion.  The court ultimately holds that DCP has met its burden.  Specifically, using the methods proscribed by the technical manual, DCP considered what development would occur over a ten year period with and without the rezoning.  DCP considered only lots of at least 5000 square feet and excluded schools and churches, buildings of six or more residential units, buildings under construction, and historical landmarks.  Ultimately, the DCP concluded that there would only be an increase of seventy-five dwellings with the rezoning than without.  Under the manual, as long as the increase is less than 200 units, the DCP need not conduct further review.  Thus, the DCP issued its EAS finding no problems with the rezoning.

The petitioners challenge various aspects of DCP’s exclusions for its study.  First, petitioners argue that lots under 5000 square feet should not have been excluded because there are new developments on smaller lots.  The DCP argues, and the court agrees, that the majority of these smaller buildings either did not maximize development rights or were part of a mixed-use regulation that is no longer available.  Second, the petitioners argue that DCP should not have excluded buildings with six or more residential units.  DCP argues, and the court agrees, that these were excluded because many are within rent regulation rules and are, thus, legally unlikely to be demolished.

The court next reiterates that its main role is to decide whether the agency’s investigation was thorough and its conclusion reasonable.  Although the petitioners argue that DCS’s arguments supplementing the EAS should not have been considered, the court finds that these supportive affidavits are available to explain the conclusions by EAS.

Finally, the petitioners argue that EAS has failed to consider socioeconomic impacts and the impact on neighborhood character.  The court finds that under the manual, once EAS concluded the increase from the proposed rezoning was only seventy-five, they did not need to consider socioeconomic impacts in-depth.  The manual also discusses specific factors to consider for neighborhood character.  The court finds that the DCP analyzed these factors in the EAS and properly found that the rezoning actually decreased the potential development by imposing building height limits.  Thus, the court holds that the DCP’s assessments were proper and not an abuse of their discretion.

Chinese Staff & Workers’ Ass’n v. Burden, 88 A.D.3d 425 (1st Dep’t 09/08/2011)

The opinion can be accessed at:

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