Article 78 Petition

On 2/13/2020, NUBC along with five other petitioners representing diverse and
important voices in our communities, filed an Article 78 petition in New York Supreme
Court against New York City, Mayor De Blasio, City Council and other defendants for
violating multiple provisions in the NYC’s Uniform Land Use Review Procedure law
(ULURP), NYC’s Environmental Quality Review Act (CEQRA), and the NYS
Environmental Quality Review Act (SEQRA), as well as provisions in the NYC Charter,
in their approval of the 124-125 White Street Jail.  The petitioners included a senior who
has lived with her family in Chinatown for almost 50 years, a well-known small business
owner who services the Chinatown community, a 4th generation resident, community
activist, and small business owner of Chinatown, an award-winning non-profit
organization that has served the downtown community for almost 50 years, and a non-
profit organization that has served the Native American community in NYC since 1969.  
Each of these petitioners laid out the devastating health, and socio-economic impacts
the building of this jail will have on the Chinatown and surrounding communities, and
how the City should be held accountable for violating multiple laws in ignoring these
impacts and the voices who will suffer the most from these impacts. 
 
On 9/13/2020, Judge John Kelley ruled in favor of the petitioners.  His 35 page decision
specified how the City had violated multiple provisions of the law, including:
 
1)            Violation of CEQRA/SEQRA for changing the site of the new jail from 80
Centre Street to 124-125 White Street after the mandatory scoping process with done
on 80 Centre Street, and no re-scoping was done on 124-125 White Street.
2)            Violation of CEQRA/SEQRA for not taking a “hard look” at the public health
impacts of the project.
3)            Violation of ULURP and CEQRA/SEQRA for not providing sufficient
information regarding the design of the project and thus inadequately assessing the
traffic impacts and congestion on the surrounding neighborhoods.
4)            Violation of CEQRA/SEQRA for failing to provide alternatives to the 124-125
White Street site, other than “no action/no building.”
5)            Violation of SEQRA for failing to obtain the findings of the lead agencies on
the project prior to approval of the project.
 
Included in Judge Kelley’s decision was an injunction which prevented the City from
conducting any physical activity at the site for the project.
 
The City Appeal to the 1st Department, Appellate Court
On 11/9/2020, the City filed an appeal with the 1st Department, Appellate Court.  
NUBC and the petitioners responded to such appeal and oral argument before the 1st
Department was heard on 2/24/2021.
 
On 3/30/2021, the 1st Department, Appellate Court issued their decision.  They
reversed Judge Kelley’s decision and found in favor of the City.  What the petitioners
find most striking in their decision of 3 pages is the following statement by the Appellate
Court:  “We are mindful that the SEQRA process requires strict, not substantial,
compliance... As earlier noted, this case involved a unique situation, in which two
possible sites were known to the affected communities and the selection of the alternate
site flowed from community participation in the underlying process.”
 
Petitioners’ Appeal to the NYS Court of Appeals
NUBC and the other petitioner have determined to move forward to seek an appeal of
the 1st Department, Appellate Court decision.   We are looking for the Court Appeals,
the highest court in NYS to agree to hear our case and to find for the petitioners,
reinstate Judge Kelley’s decision (at least in part) and stop the new White Street jail
from moving forward.    Yesterday (4/30/2021), the petitioners have filed with the
1st Department, Appellate Decision their first motion for leave to appeal to see if
the 1st Department will agree to send our case to the Court of Appeal.  If they say
“no,” the petitioners will go directly to he Court of Appeals directly to as for an appeal.
 
Based upon the statistics, the chances of a case being heard by the Court of Appeals is
not high.  However, the petitioners believe this case is of utmost importance to not only
the communities directly affected by the new jail at 124-125 White Street, but by all
communities not only in this City but across the New York State.  If the Appellate
Court’s decision is allowed to stand, we believe it will set precedent for the City and any
other local or state government agency to ignore the rules that were created to protect
the communities and neighborhoods from environmental impacts of any development. 
    
NUBC and the other petitioners have engaged specialized counsel to represent
themselves in this appeal, Robert S. Smith of Friedman Kaplan.  Mr. Smith is a former
judge of the Court of Appeals, serving 11 years on the bench, and since his retirement
from the bench has represented multiple appellants in both NYS Court of Appeals and
Appellate Court cases.   Here is his profile:   https://www.fklaw.com/attorneys-Robert-
Smith.html   
 
Ongoing Activity at the 124-125 White Street Site
With Judge Kelley’s decision overturned, his injunction preventing any physical activity
to be taken at the 124-125 White Street site relating to the implementation of the new
jail is no longer in effect.  This means the City can move forward at any point to start
demolishing, drilling, and constructing, et. al. We know that these past couple of
weekends they have been conducting boring tests at the site.  This leaves our
communities highly vulnerable to all of the dangers specified in our petition,  even
though the legal process has not been exhausted.   Petitioners’ counsel will be looking
into legal options on this issue as well, including requesting that Judge Kelley’s
injunction remain during these proceedings.
 
Fundraising
The financial burden to cover these legal proceedings has been great.  NUBC is greatly
appreciative to all of the community members have donated to help cover the cost of
this lawsuit.  NUBC welcomes additional donations to help keep this lawsuit
going.  https://www.nubcdonate.com/