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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK

In the Matter of the Application of .

THE COUNCIL OF THE CITY OF NEW YORK, and

MANHATTAN BOROUGH PRESIDENT GALE A.

BREWER,

Petitioners-Complainants,

Index No.

For Judgment Pursuant to Article 78 and §§ 3001 and

6301 of the Civil Practice Law and Rules Assigned to Justice

- against-

VERIFIED ARTICLE 78 &


THE DEPARTMENT OF CITY PLANNING OF THE DECLARATORY JUDGMENT
CITY OF NEW YORK, NEW YORK CITY PLANNING PETITION-COMPLAINT

COMMISSION, NEW YORK CITY DEPARTMENT OF

BUILDINGS, THE CITY OF NEW YORK, and

MARISA LAGO, Director of Department of City

Planning of the City of New York and Chair for the New
York City Planning Commission,

Respondents-Defendants.

Petitioners-Complainants Council of City of New York ("City Council") and Manhattan

Borough President Gale A. Brewer (hereinafter for their verified Petition-


"Petitioners"),

Complaint, pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), and CPLR §

3001 against Defendants-Respondents the Department of City Plaññing of the City of New York

("DCP"), the New York City Planning Commission ("CPC"), the City of New York ("City"),

Marisa Lago, Director of DCP and Chair of CPC, and the New York City Department of Buildings

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("DOB") (hereinafter "Respondents") allege in this hybrid Article 78 and plenary action as

follows:

PRELIMINARY STATEMENT

1. This matter arises out of CPC's December 5, 2018 approval of three modifications

to the 1972 Two Bridges Large Scale Residential Development ("Two Bridges LSRD") permit:

• Site 4 (4A/4B) (247 Cherry Street M 180507 (C) ZSM);

• Site 5 (260 South Street, M 180505 (A) ZSM); and

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

Charter ("City Charter").

3. As expressed in more detail below, the projects involve three skyscrapers in the

historic Two Bridges neighborhood, over 2.5 million estimated gross square feet of space and the

addition of over 2,700 dwelling units all on a single city block that currently only has 1,357

authorized units. If allowed, the skyscrapers themselves - an 80 a set of twin


dwelling story tower,

towers of 69 stories and one 63 story tower on one block - will forever alter the Two Bridges
each,

Neighborhood and the New York City skyline.

4. Despite the obvious magniNde of the proposed modifications and the clear

requirements under the City Charter for these projects to be submitted and reviewed as requests

I See CPC Commissinn


Reports approving the proposed modifications, annexed to the Smith Affiñriatier. as
Exhibits A, B, and C respectively.

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for new permits, the DCP and the CPC, controlled by mayoral appointees, attempt to wholly

circumvent the appropriate process, to the detriment of the communities they are tasked with

serving.

5. Such developments are required to be completed with the consultation and advice

of the uonununity, including the New York City Council, the Borough President and the

("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

7. Petitioner-Complainant Council of City of New York was established by the New

York State Constitution (Article IX). The Charter of the City of New York ("Charter") sets forth

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

the decision of CPC. Charter §§ 197-d (b)(3), 197-d (c).

2 were referred to the Cerrr±y


Here, the projects Board, but not as part of ULURP.

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8. Petitioñer-Compkinant Manhattan Borough President Gale A. Brewer has served

as Manhattan Borough President since 2014. As Borough President, she is responsible for advising

the Mayor and the City Council on borough-wide con-wum, commenting on land-use matters in

the borough, advocating for the borough in the municipãi budget process, and appointing members

of Manhattan's 12 Community Boards. One of the central responsibilities of the Mãñhattañ

Borough President's office is its City Charter-mandated role in the city's land-use process. The

Charter requires the Borough President to have a planning office to plan for the growth,

improvement and development of the borough and to review and make recommendations on

applications and proposals for the use and development of land. Specifically, in the ULURP

process, applications certified by CPC come to the Borough President for a thirty day review and

the Borough President later submits a written recommendation. This recommendation comes after

the Community Board's review and recommendation and before final action by the City Planning

Commission and the City Council. This gives the Borough President the opportunity to review

the land use and environmental impacts of projects in light of community concerñs and work to

mediate between applicants and the community if those concerns conflict.

9. Respondcat DCP is an agency of the City responsible for land use and

environmental review, preparing plans and policies, and in the context of this case, provided staff

assistance to CPC.

10. Respandent Marisa Lago is the Director of the New York City Department of City

Planning and Chair of the City Planning Commission and has served in these positions since March

2017. She was appointed by New York City Mayor Bill de Blasio in January of 2017. The

Commissioner is sued herein in her official capacity and, upon information and belief, acted in

such capacity at all times relevant hereto.

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11. Respondent DOB is an agency of the City that, among other things, enforces the

city's building codes and zoning reg»latiuns, and issues b~~'Ming permits and licenses.

12. Respondent City of New York is a»iuriicipal corporation organized and ~»«i~g

under the laws of the State of New York.

JURISDICTION AND VENUE

13. This Court has jurisdiction pursuant to C.P.L.R. $ 3001.

14. This Court also has jurisdiction pursuant to C.P.L.R. $$ 7801-7806, to review

actions by bodies or o%cers who have failed to perform a duty enjoined upon them by law and

who have made a determination in violation of lawful procedure.

15. Venue is properly in New York County pursuant to N.Y. C.P.L.R. 8 504(3) &

506(b), because claims are asserted against a City -gcncy and ofticer for actions taken in New

York County and because the agency's and o%cer's principal offices are in New York County.

FACTS

A. ULURP and the A ro riate Roles of the Ci Council and the Borou h President

16. In 1975, ULURP was established in the City Charter in an attempt to further

democratize land-use decision making and move away from the previous model of top-down

pl~-.aiirig. ULURP provides certainty in the land use review process by establishing a predictable

timetable and a single procedure for the review of certain actions. ULURP also provides a

transparent process and a vehicle for public participation in the City's significant land use

decisions and defines a role in the process for the Community Boards, the Borough Boards, the

Borough Presidents, CPC, the City Council and the Mayor.

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17. In 1977, the City Environmental Quality Review Process ("CEQR") was

established soon after as another method intended to promote decision-making in the public

interest and to protect the environment.

18. The 1989 Charter was adopted by the City's voters on November 7, 1989, and came

into force and effect in 1990. The 1989 revisions greatly expanded and clarified the role the City

Council plays in ULURP.

19. In fact, throughout its many debates and deliberations in the spring and summer of

1989, the Charter Revision Commission ("Schwarz Commission") wrestled with defining the role

of the newly-empõwcred Council in land use decisions As evidenced by the Schwarz

Commission's various recommendations and proposals for Charter revision, and especially the

many hours of public hearings and meetings during which these proposals were debated and

developed, this assignment of authority was in no way predetermiñed and, in fact, evolved

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.

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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

the decision of CPC. Charter 197-d(b)(3), 197(d(c).

24. Additionally, the Borough President has a formal role under ULURP, pursuant to

Charter 197-c. After consideration of a ULURP application by the Commüñity Board and prior to

votes by the CPC and City Council, the Borough President has a thirty day review period to

consider the application and then submit a written recommendation. Charter 197-c.

B. Historical Developme::ts in the Two Bridges Neighborhood

5Id.
'Id. See Record of Motions, Votes and Consensus of New York City Charter Revision Cemmit , dated June 21st
and June 26, 1989, attached to the Smith Affirmation as Exhibit E.

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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.

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29. In May 1972, in furtherance of the goals of the urban renewal area, the Two Bridges

Large Scale Residential Development ("Two Bridges LSRD") was approved by CPC (Cal. #43)

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).

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31. The Two Bridges LSRD includes six Parcels (Sites 4A, 4B, 5, 6A, 6B, and 7) and

contains a total lot area of 371,l 54 square feet.

32. Since 1961, the LSRD has been zoned as C6-4 (which generally permits a wide

range of high-density commercial uses, and does not carry a height restriction) and the underlying

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),

and the Rutgers Houses (20 stories).

35. This intent also was evident in a 1995 modification to the Two Bridges LSRD.

This modification was approved by the City Planning Commission and Council to facilitate the

construction of a 21-story mixed income residence, with 197 rental units and one superintendent's

unit and community facility and commercial spaces, on Site 4B. Significant in the 1995

modification, the CPC report stated,

"
The Commissionfinds that the proposed modifications also allow for a reduced

height in the building, by approximately four floors. At 21 stories, the building

"'
A numerical height cap (in terms of number of feet) does not exist in this zoning district; heights are governed by
other zoning rules.

10

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should translate well into the prevailing surrounding context qf 16-storv to 26-
"
storv residentialstructures and not adversely efect [sic] adjacent properties.

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

air, by adversely afecting air quality or by creating trafic congestion.

Therefore, the prior findings will be unafected by the addition qf the proposed
project."
Additionally, the application specifically showed that it met the intent

qf Article Vil, Chapter 8, which describes the purpose qf LSRDs.

constructed.5
The proposed project was never

C. Current Proposed Deve!:p-:nts: Three Skyscrapers in the Two Bridges LSRD

37. In 2016, three private developers submitted pre-application materials to DCP for

"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.

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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

the full battery of hearings and oversight that ULURP provides.

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

of Two Bridges. They include:

• 247 Site 4 (Parcel 4A/Parcel - a single tower 1,008 feet in height,


Cherry Street, 4B)

80-stories, 501,518 square feet, and 660 dwelling units plus 10 senior units relocated

from an existing building;

• 260 South Site 5 (Parcel - two towers of 798 feet/69 stories and 748 feet/62
Street, 5)

stories, 1,244,960 square feet, and 1,350 dwelling units;

• 259 Clinton Site 6A (Parcel - 730 feet in 672,266


Street, 6A) height, 63-stories,
units.23
square feet, and 765 dwelling

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

21 See Two Bridges Projects FEIS available at hups: /wwwl.nyc.gov/site applicants,env-


atS-3, plannine
review/two-bridges.page.
22 See FEIS at S-1.
23 See Illustrative Renderings of the Proposed Projects from the FEIS - Figures 1-18 and S-8, annexed
S-9,
collectively to the Smith Affirmation as Exhibit L.

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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:

• East Harlem units projected: 2,682 units;


Rezoning dwelling

• Jerome units projected: 3,228 units;


Rezoning dwelling

• Downtown Far units projected: 3,l 17 units;


Rockaway Rezoning dwelling

• Inwood Rezoning: 3,908 units.

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

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plaññed for the neighborhoods, on programs and capital projects to support the rezonings and

impacts.27
mitigate

D. Elected Officials Oppose Contemplated Action

43. On June 22, 2016, in response to the significance of the purported "minor

modifications,"
Manhattan Borough President Gale A. Brewer, Council Member Margaret Chin,

Council Member Rosie Mendez, State Senator Daniel Squadron, Assemblywoman Alice Cancel,

and Congresswoman Nydia Velazquez sent a letter urging Director Weisbrod to process the

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

change requires us to re-evaluate the findings.

45. On August 11, 2016, Carl Weisbrod, the Director of DCP at the time, responded to

the June 22, 2016 letter sent by the city and state elected officials. In the letter, Director Weisbrod

acknowledged that the development contemplated "is significant when each proposed

development is considered individually, and that the potential impacts to the surrounding

27 Id.
28 Letter 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

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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

granted waivers. In his letter, former Director Weisbrod added that:

"although these proposals will not be reviewed as major modifications, the

Department of City Planning is conunitted to working with you closely as we

review the applications Jor these developments. We are requiring the

completion of an Environmental Impact Statement (EIS) in conjunction with

these applications, and are pleased that the applicants have agreed to a

coordinated review of the proposals. to ensure that both any cumulative and

project-specific potential impacts are idendfied and addressed through the


CEQR."³"
public process mandated by

E. Determination that the Proposed Applications Are Minor Medificaticias Is Improper

"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

and Borough President of their mandated role in the process overall.

47. The fact that an Environmental Impact Statement ("EIS") was required, and that

the projects were of such scale, render the modification major and should trigger new special

29 Affirmation
See Letter from CPC Director Carl Weisbrod annexed to the Smith as Exhibit O.
30 Id.

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"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

which the preparation of an environmental impact statement is required by law. It further

states that "[a]ll major concessions shall be subject to review and approval pursuant to section

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

provides in pertinent part as follows:

§ 7-01. [Concession Subject to ULURP and Council Review.]


A ecñcession shall be considered a major concession and therefore subject to §§ 197-c and
197-d of the Charter only if:

(a) it has been determined pursuant to City Envirownental Quality Review to require an
Environmental Impact Statement, or

(b) except as provided in § 7-03, the concession will cause one or more of the thresholds
set forth in § 7-02 to be exceeded.

48. The Commission, in its discretion, promulgated additional rules that consider

projects with substantially less square footage than is proposed here "major". For example, they

require even a use for which a new building of over 20,000 square feet will be constructed on non-

parkland to trigger ULURP. This is a fraction of the 2.5 million square feet being constructed

pursuant to the purported minor modifications. The fact that the Department and Commission

have applied 62 RCNY 2-06 to this process, when it clearly applies to pr0jects in the midst of

31 "The 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).

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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

of the affected stakeholders.

49. There are several examples of projects (which do not involve concessions) that

DCP determined, prior to the processing of an application, were major modifications requiring a

new ULURP, thus, it is also irrational that projects of this scale could be treated as minor.

50. Examples of recent projects (which do not involve concessions) that DCP has

determined prior to the processing of the application were major modifications requiring a new

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.

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of 62 RCNY2-06 to the question of whether a project should undergo ULURP. Such comparison

makes evident that treating the Two Bridges Projects in this way, when the aforesaid changes to

20* "major"
the Wheel and the Ave. Queens project were treated as (triggering a new ULURP)

was an abuse of discretion by respondents DCP and CPC.

51. Regarding The Wheel, the original project, which underweñt ULURP for special

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

Modification Projects did not.

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

footprints and 2.5 million square feet of floor area.

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53. 62 RCNY 7-03, also promulgated by CPC, provides that for concessions that are

st major concessions, the existence of an EIS requirement is paramount and trumps the rule's

"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

ULURP, if an EIS is required.

54. DCP's is plainly incorrect on other grounds as well. In Section 2-


reading fact,

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.

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of any proposed modification to the Commissioner's prior approval of an action. Upon receipt the

Commission shall have fifteen (15) days to review and to determine...").

55. The criteria referenced by Chair Weisbrod in Section 2-06(g)(5)(ii) are also

incorporated by reference in Section 2-06(c) of the commission's rules "Modification of

application." - 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

- all of which are reviewed pursuant to the ULURP process.

56. Considering the above, the rule cannot be credibly read to give the Co==inion

authority to make changs to a defunct application because it was approved through the City's

then-land use process decades ago.

57. In fact, it is clear that the City Charter does not allow for this modification to go

forward without a new special use permit, as there is no mention at all in the City Charter of minor

modifications after final project approval pursuant to ULURP. Charter 197-c, 197-d.

58. There is no authority or rational basis for DCP to import a rule that applies to

projects in a certain phase of the ULURP process and purport to apply it as dispositive to a project

that is seeking a new discretionary approval as a means of avoiding the ULURP process.

59. DCP's attempt to use a rule clearly intended to apply during the pendency of a

ULURP action to amend a land use action approved in 1967, also violates the City Charter's

Administrative Procedure Act (Charter Chapter 45).

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"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,

minimum standards, and procedural requirements for boards, borough presidents,


community

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

promulgate rules to reopen a completed ULURP application and modify it.

63. In two cases, the minor modification was upheld but both cases involved the exact

opposite of the current circumstance. In both cases the modifications were made to applications

for projects currently undergoing the ULURP process. And significantly, in both cases, the core

projects they were modifying did eventually go through ULURP and were voted on and approved

by the City Council. In Matter of Windsor Owners Corp. v. City Council, 878 NYS2d 545 (S. Ct.

NY Cnty 2009), the court upheld the CPC modification to the ULURP application pursuant to

Section 2-06 but noted that it was a minor modification because "the modifications reduced the

scale."
project's size and In Windsor, the City Council's Land Use Committee had suggested

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modifications to the core project as part of the ULURP process, which were then approved by

CPC; later, the modified core project was approved by the City Council. Id.

64. Similarly, in Matter of Glick v. Harvey, the Court stated that the modifications at

issue - which were minor modifications made to the larger core project undergoing
ULURP-

similarly reduced the height and square fõõtage and eliminated certain compoñénts of the core

project. See Glick v. Harvey, 121 A.D.3d 498, 499, 994 N.Y.S.2d 118, 119(2014), aff'd, 25 N.Y.3d

1175, 36 N.E.3d 640 (2015), aff'd. Like Windsor, the City Council approved the modified core

project at the conclusion of the ULURP process. Id.

65. Here, the exact opposite is true. CPC seeks to pervert this rule to quadruple existing

maximum heights in the LSRD and triple the number of residences without Council or Borough

President review and do all this decades after the completion of the original actions authorizing

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

Carry the Force and Effect of Law

66. The Petitioners do not concede that DCP had the power to promulgate such a rule

under CAPA. Additionally, even if the Projects were properly a minor modification, DCP's

definition of what constitutes major and minor modifications did not comply with CAPA;

consequently its decision here utilizing the rule is null and void. CAPA governs the promulgation

of local rules. Rules are defined to include "the whole or part of any statement or communication

policy."
of general applicability that implements or applies law or N.Y.C. Charter § 1041(5).

a. CPC's Criteria for What Constitutes Major or Minor Modifications Is a Rule

67. ULURP Rules Section 2-06(g)(5)(ii) were properly promulgated and comply with

CAPA, but DCP's separate, staff-created determination to apply this rule to new projects not

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already in ULURP, did not. CPC's criteria regarding major or minor modifications is a rule and

therefore subject to CAPA for several reasons.

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

Services, as it "dictated a specific result in particular circumstances without regard to other

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.

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usage of DCP s own criteria, there is no consideration of other factors in deteraiairiirib wowie«ier a

Project is major or minor just the conditions mentioned there.

72. Cons~«ently, as these criteria are properly a rule, DCP was required to fulfill their

obligations under CAPA s procedural requirements before 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

projects were minor modifications, that decision is null and void.

——
—
G. Institutional Dia.~ with DCP and CPC Was Unavailin

74. On May 25, 2017, both Council Member Chin and Borough President Brewer

testified regarding the public scoping meeting for the Projects, which included as exhibits a survey

ofhundreds of Two Bridges residents reflecting their wishes and concerns, as well as the continued

reminder that the projects were properly subject to ULURP.

"MBP Brewer and CM Chin dated May


Co.—...—..—;.:-, 25, 2017, annexed to the Smith AAirmation as Exhibit Q..

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75. On January 17, 2018, to address these very serious concerns, Council Member Chin

and Borough President Brewer filed a proposed zoning text amendment, which would clarify that

large, out of scope development proposals in the Two Bridges LSRD are not "minor

modifications"
which can be made outside of ULURP. The City Council also passed Local Law

234, which would allow Ber0ügh Presidents and the Land Use Committee of the City Council to

exempt their applications from DCP's pre-filing and meeting requirements, because time was of

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

37 See Local Law 234; Zoning Text Amendment P2018M03040.


38 Lago to CM Chin and BP Brewer, dated December3,
See Letter from Director 2018 attached to the Smith
Affirmation as Exhibit R.
39
The lengthy DEIS was also originally released near the end of June 2018, mere weeks before the Commuñity
Board was going to on vacation; the hearing was pushed back to October 17, 2018 after outcry from the ccrr±y.
See Warekar, Two Bridges Skyscrapers to Begin Public Review as Locals, Pols Call for More Time, June 25, 2018,
CURBED NY, available at https://nv.curbed.com/2018/6/25/l7500744/two-bridges-environmental-impact-
skyscrapers-lower-east-side.
®
See Warekar, T. Locals Denounce Two Bridges Towers at City Planning Hearing, October 17, 2018, CURBED
NY, available at https://ny.curbed.com/2018/10/17/17989442/lower-east-side-skyscrapers-public-opposition.
4'
See generally FE18, available at https://www1.nvc.gov/site/plannine/applicants/env-review/two-bridges.pace.

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to no information provided to [them] by the Department or the development team on these projects

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

Commissioners who voted no - Commissioners Levin and De La Uz. In sum and


particularly,

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.

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substance, they overall expressed the opinion that the actions taken here do not conform to the

1972 resolution, nor are the projects themselves properly a minor modification. Commissioner de

La Uz, after noting that the Projects include thousands of units and unmitigatable impacts, stated

that public trust in government is at an all-time low, and actions like this would further erode that

"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

authorized the instant litigation.

83. Though environmental review was conducted for the projects, it is not a substitute

for the oversight and opportunity for notice and comment that ULURP provides. The robust

ULURP process for these projects would have involved the required hearings and vote with

Manhattan Community Board 3, review from Borough President Brewer, public hearings with

CPC, and then consideration and an eventual vote from the City Council and eventually, the

Mayor.® - -
A handful of public hearings does not and cannot stand in for the oversight and

comment that ULURP provides, which provides space for the review and ultimate action from an

institution that represents all New Yorkers: the City Council.

®
See generaHy ULURP Rules.

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FIRST CAUSE OF ACTION

(Declaratory Judgment)

84. Petitioners repeat and reallege the preceding paragraphs as though fully set forth

herein.

85. An administrative agency only has the powers granted it by statute. While courts

may defer to an agency's exercise of expertise, it may not countenance action exercised in excess

of statutory authority.

86. Respondents DCP, CPC and Lago (the "City Planning Respondents") have acted

outside of the law and the authority given to them by the City Charter by issuing a modification

on an application that was required to be submitted as a new special permit. In fact, the City

Respondents'
Planning decision improperly circumvents the clear requirements of the City

Charter. See Charter at 197-c and 197-d.

Respondents'
87. The City Planning rationale for this determination relies exclusively

on a gross misinterpretation of Section 2-06(g)(5)(ii) of the ULURP Rules. Section 2-06(g)(5)(ii)

does not belong in the approval process for changes to an LSRD, but clearly only applies to

modifications made by the Council during its review of a pending ULURP application.

88. As the City Council is deprived of its right to take up the application for a vote, its

role in this entire process has been usurped. Further, as the Borough President is deprived of her

right to review the applications as part of the ULURP process, her role has been usurped as well.

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

Council and the Borough President.

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89. Consequently, as they have exceeded their authority and have acted ultra vires,

their action has no legal force and effect and should be nullified.

SECOND CAUSE OF ACTION

(Article 78)

90. Petitioners repeat and reallege the preceding paragraphs as though fully set forth

herein.

91. Even if the City Planning Respondents did have the power to make a determination

on the Two Bridges LSRD application, the City Planning Respondents abused their discretion in

approving this project as a minor modification, as the decision was arbitrary and capricious and

incorrect as a matter of law. Further, because the DCP and CPC acted outside of their legal

authority by approving the Projects as minor modifications, their approval was conducted outside

of their jurisdiction.

92. The City Respondents erred in determining that these proposed developments were

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

previously set in prior approvals.

93. Moreover, the proposed projects will necessarily have a significant impact on the

fiñdiñgs that were set forth for the original Two Bridges LSRD approval.

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.

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95. Moreover, earlier waivers may no longer be appropriate given the proposed site

plan modifications, which is precisely why this project is a major modification and should go

through ULURP.

96. The projects in their entirety are going to have impacts on at least some of these

areas, as admitted in the FEIS (particularly traffic and shadows). The FEIS explicitly stated that

the projects will have significant adverse impacts on public elementary schools, publicly funded

child care facilities, open space, shadows, transportation (traffic, transit, and pedestrians), and

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

97. Substantively, it is wholly unreasonable to consider this a minor modification, as it

will triple the number of units in the LSRD. The tallest building will go from 240 feet to 1008 feet

in height. It can hardly be said that the addition of three massive towers containing nearly 3,000

units of housing could reduce the size of the LSRD as a project. It will quadruple existing

maximum heights in the LSRD.

"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 FEIS Executive Summary at S-1 to S-49.

See id.

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rules promulgated regarding major concessions have other conditions that would render a

concession major, but whether an EIS was conducted is outcome-determinative. See ULURP Rules

("
g 7-03 Notwithstanding any other provision of these rules the following shall not be considered

major concessions unless an EIS is required...").

99. Therefore, that an FEIS has been conducted for this project indicates that this was

a major, not minor modification and the DCP and CPC's decisions were both arbitrary and

capricious.

THIRD CAUSE OF ACTION

(Declaratory Judgment)
100. Petitioners repeat and reallege the preceding paragraphs as though fully set forth

herein.

101. DCP's criteria utilized for defining major and minor modifications constitutes a

rule not properiy promulgated to the City b~~i~istrative Procedure Act.

102. The failure to follow the requiromen.s of CAPA for the utilization of this rule for

modification"
the Two Bridges "minor project is therefore null and void.

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RE UEST FOR RELIEF

WHEREFORE, Petitioners respectfully request this Court issue a juug~ment pursuant to Article

78 and Article 3001:

A. Annulling and vacating CPC's December 5, 2018 decision to approve the purported "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

by the CPC on December 5, 2018;

E. Granting Judgment to Petitioners on each of their claims;

F. Temporarily restraining and pre>~~i~~rily and pe»immanently enjoining the Responuents


from taking any action in furtherance of the commencement of construction related to
modifications"
CPC's December 5, 2018 vote to approve the purported "minor to the

existing Two Bridges Large Scale Residential Developiiien., including but not limited to,
permitting, conducting, authorizing, or continuing any construction work at the Project

sites; and

G. Awarding Petitioners such other and further relief that this Court deems just and proper.

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Dated: New York, New York

December 6, 2018

Jason A. Otaño
General Counsel of the Council of the City Of

New York
Attorneys for Petitioner-Complainants

Council of theCityofNewYork

Peter R. Lattanzio
Peter S. Torre
Serena Longley
250 Broadway, 15th Floor
New York, New York 10007

(212) 788-9131

Adele Bartlett, General Counsel, and


James W. Caras, Special Advisor for Legal
Affairs and Land Use to

Gale A. Brewer, Manliattaii Borough


President

Attorneys for Petitioner-Complainant


Manhattan Borough President Gale A.
Brewer
1 Centre Street, 19th Floor
New York, NY 10007

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VERIFICATION

STATE OF NEW YORK )


: SS.:

COUNTY OF NEW YORK )

RAJINDER MANN, being duly sworn, hereby states that he currently serves as the

Director of Land Use for the New York City Council, that he has read and reviewed the entirety

of the within Petition, and that, upon information and belief based upon his own review and

knowledge of the pertinent materials and records, as well as conversations with Council staff

familiar with said pertinent materials and records, can attest that Paragraphs 1-7, 9-12, 16-102 of

the within Petition are true and accurate to his knowledge.

RAJINDER MANN

Sworn to before me this


6d'
day of December, 2018.

(RARY PUBLIC

Benjamin Joel Smith


Notary Public, State of New York
No. 025M6312062
Qualified in New York Coun
8
Commission Expires Sep. 22 2

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VERIFICATION

STATE OF NEW YORK )


: SS.:
COUNTY OF NEW YORK )

JAMES W. CARAS, ESQ., being duly sworn, hereby states that he currently serves as

the Special Advisor on Legal Affairs and Land Use for the Manhattan Borough President, that he

has read and reviewed the entirety of the within Petition, and that, upon information and belief

based upon his own review and knowledge of the pertinent materials and records, as well as

conversations with staff of the Office of the Manhattan Borough President and the New York City

Council familiar with said pertinent materials and 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

Sworn to before me this


6th
day of December, 2018.

TARY PUBLIC

Benjamin Joel SmB


State of New Yoth
Natagy Public,
02SM6312062
No.
Quaged in New York
Won Expires Sep.

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