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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x In the Matter of the Application of SENIORS FOR SAFETY,

an unincorporated association, by and in the name of its President, Lois Carswell, and NEIGHBORS FOR BETTER BIKE LANES, an unincorporated association, by and in the name of its President, Louise Hainline, Petitioners, For Judgment Pursuant to CPLR Article 78 -againstNEW YORK CITY DEPARTMENT OF TRANSPORTATION, and JANETTE SADIK-KHAN, COMMISSIONER OF TRANSPORTATION, in her official capacity, Respondents. x RESPONDENTS MEMORANDUM OF LAW IN OPPOSITION TO THE PETITION MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street New York, New York 10007 (212) 442-0573 GABRIEL TAUSSIG ROBIN BINDER MARK W. MUSCHENHEJM KAREN B. SELVIN AMANDA C. GOAD OF COUNSEL. June 3, 2011

Index No. 52 10/1 1 (13ui1yai, J.)

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KiNGS x

In the Matter of the Application of SENIORS FOR SAFETY, an unincorporated association, by and in the name of its President, Lois Carswell, and NEIGHBORS FOR BETTER BIKE LANES, an unincorporated association. by and in the name of its President. Louise Hainline. Petitioners. For a Judgment Pursuant to CPLR Article 78 -againstNEW YORK CITY DEPARTMENT OF TRANSPORTATION, and JANETTE SADIK-KHAN, COMMISSIONER OF TRANSPORTATION, in her official capacity, Respondents. x
RESPONDENTS MEMORANDUM OF LAW IN OPPOSITION TO THE PETITION Respondents the New York City Department of Transportation (DOT) and Janette Sadik-Khan, Commissioner of Transportation, by their attorney, Michael A. Cardozo,

Index No. 5210/11 J.)

Corporation Counsel of the City of New York, submit this memorandum of law in opposition to the amended petition.
PRELIMINARY STATEMENT This Article 78 proceeding stems from the June 2010 installation of the Prospect

Park West (PPW) Bicycle Path and Traffic Calming Project (PPW Project). In response to a
request from the local Community Board, DOT removed one lane of traffic on PPW and replaced it with a two-way bicycle path, protected by a lane of parked cars. The PPW Project

simultaneously accomplished three things. The bicycle path facilitated access to Prospect Park
by permitting bicyclists to safely and legally ride to Prospect Park entrances on Grand Army Plaza. 3 Street and Bartel Pritchard Square. The bicycle path also significantly reduced the unusually high incidence of bicyclists riding on the PPW sidewalks. And third. the removal of

one traffic lane made PPW safer for all concerned (pedestrians, motorists and bicyclists) since it minimized the opportunity for motor vehicles to speed on PPW) Petitioners, two unincorporated associations led by individuals who live on PPW. commenced this proceeding in March 2011. months after the expiration of the Article 78 statute of limitations (which began to run at the latest when the PPW Project was installed). Consequently, petitioners claims relating to the PPW Project are time-barred. Even if petitioners claims were not time-barred, they would still fail. To start, petitioners claim that DOTs determination to install the PPW Project was arbitrary and irrational is unfounded. As set forth in detail below and in the accompanying Answer and

affidavits, DOT s determination was a rational exercise of its discretionary authority to design and maintain public roads pursuant to New York City Charter

2903. DOTs determination to

install the PPW Project (which was presented to the community on numerous occasions, and revised in response to its concerns) was based on an analysis of PPW and the surrounding area; that analysis showed, among other things, that PPW had problems with excessive motor vehicle

A map that details the various components of the PPW Project is included as DOT Ex. A. Exhibits cited as DOT Ex. are either annexed to the respondents Verified Answer and Affidavits of Joshua Benson. Penny Jackson. Jared Knowles, and Naim Rasheed, or are included in an accompanying volume of additional exhibits. Exhibits designated Am. Pet. Ex. are attached to the Affirmation of Jim Walden filed in support of the amended petition.

speeding and bicycles traveling on its sidewalks, and that alternative locations would not address these problems. Since there was a rational basis for DOTs determination, this claim fails. Petitioners State Environmental Quality Review Act (SEQRA) claims are also both unfounded. DOT has rationally determined that installation of a bike lane or bike path is among the types of actions that are exempted from requirements to perform environmental review, including any obligation to generate written environmental analysis, under SEQRAs implementing regulations. And Petitioners claim premised on the Citys Landmark Preservation Law fails since the PPW Project is not located within either the Park Slope Historic District or the Prospect Park Scenic Landmark.
FACTUAL BACKGROUND

DOTs Installation of Bike Lanes and Bike Paths Throughout New York City In 1997, DOT and the Department of City Planning jointly issued the Bicycle Master Plan (Bike Master Plan), a comprehensive strategy for promoting safe bicycling in New York City. See Affidavit of Naim Rasheed, sworn to June 3. 2011 (Rasheed Aff), at Since then, DOT has installed numerous bikeways around the five boroughs. See jci. at
5,2

6.

Where conditions and resources permit, DOT has installed Class I bike paths, which are

DOT identified PPW as a possible location for a bike lane or bike path in its map of Brooklyn in the Bike Master Plan. See DOT Ex. B (Bike Master Plan). While petitioners contend that a traditional one-way bike [lane] was planned for PPW (Am. Pet., at 13), the Bike Master Plan shows no such thing. Id. In fact, the Bike Master Plan did not provide any specifics as to the design of particular bike lanes or bike paths on particular streets, but rather highlighted streets that would be needed to create a citywide network of routes between major destinations and residential areas. The Bike Master Plan specifically noted that each potential bike lane and bike path needed to be studied in detail to develop an appropriate design, and also noted the availability of two-way bike path designs. DOT Ex. B, at 10, 42-44 & 61.

physically separated from motor vehicle traffic for enhanced safety. Benson, sworn to on June 3, 201 1 (Benson Aff.), at 2, fn 2.

Affidavit of Joshua W.

PPW Before the June 2010 Installation of the PPW Project PPW before the installation of the PPW Project was widely considered to have excessive speeding. Benson Aff., at 4. See also DOT Ex. C (Community Board 6 Letter dated 7/13/09 to DOT Brooklyn Borough Commissioner: we have been seeking relief from speeding traffic along the Prospect Park West corridor for some time now). Specifically, in pre installation radar readings, nearly 75 percent of the vehicles traveling on PPW broke the 30 miles per hour (mph) speed limit; in contrast, radar readings taken at the same time one block west, on
th 8

Avenue (a two-traffic lane roadway) showed that the average vehicle speed was ten mph See DOT Ex. D, at 7 (PPW Bicycle Path and Traffic Calming Update,

less than on PPW.

Evaluation Summary and Raw Data, January 2011 (DOT Evaluation); Am. Pet. Ex. 7, at 2. The excessive speeding on PPW was due in large part to the fact that PPW had excess capacity; essentially, given its traffic volume, PPW had an extra traffic lane. 3 Pre

installation traffic volume counts showed that the average number of vehicles on all of the traffic lanes of PPW did not exceed 1,100 vehicles per hour. See DOT Ex. D, at 8 (DOT Evaluation). However, DOTs extensive experience has shown that for roadways such as PPW, 600 vehicles per hour per lane is the typical volume of vehicles; PPW excess capacity was thus more than 700

The 110-year-old Park Slope Civic Council stated: we believe that the excess capacity on Prospect Park West leads to speeding and creates a dangerous condition for the many users seeking to access [Prospect] park. DOT Ex. E (4/20/10 Park Slope Civic Council Letter to DOT Brooklyn Borough Commissioner).

vehicles per hour. Benson All., at

5. This excess capacity on PPW permitted vehicles to easily

exceed the speed limit, and to also weave through lanes of traffic, neither of which is safe. 4 PPW was also used by bicyclists. Although bicyclists older than 13 are prohibited from riding on sidewalks (1ew York City Administrative Code

19-176), prior to the

installation of the PPW Project an unusually high number of bicyclists nonetheless did so (primarily on the east sidewalk of PPW, the Prospect Park side). Benson Aff, at

6.

During a

pre-installation weekend day count, 20 percent of bicyclists rode on the sidewalk, and during a similar weekday count, 46 percent of bicyclists did so. DOT Ex. D, at 5 & 6 (DOT Evaluation). Indeed. DOT s Director of Bicycle and Pedestrian Programs, Joshua Benson, affirms that he does not recall seeing such high percentages of sidewalk bicyclists in any of the other bike lane or bike path projects he has worked on. Benson Aff., at

6.

The Community and Design Process that Led to the Installation of the PPW Project The installation of the PPW Project stemmed from a June 2007 letter request by the local Community Board. In June of that year, Community Board 6 voted in favor of a Traffic Calming Plan for
th 9

Street that included the elimination of one traffic lane in each direction and

the addition of west- and east-bound bike lanes. While the east-bound lane facilitated access to Prospect Park, that lane ended at PPW, and bicyclists were then forced to ride on PPW (with its excessive speeding), illegally ride (if they were over 13 years of age) on the sidewalk adjacent to PPW, or illegally ride into Prospect Park on its pedestrian walkway. Indeed, other than three
th Petitioners insinuate that while DOT monitored 8 Avenue at three additional times (in Jul and November 2007 and September 2008). DOT did not similarly monitor PPW during those times for some untoward purpose. Petitioners insinuation is wrong, Specifically, DOT th monitored 8 Avenue at three additional times (between July 2007 and September 2008) as part of the development of signal timing schemes for two lane one-way corridors throughout the City. Benson Aff., at 5. fn 6.

entrances on PPW where bicyclists can ride into Prospect Park. this conundrum existed for a!]
east-bound streets that ended at PPW. See Benson Aff, at 9. Addressing this conundrum, the Community Boards June 20. 2007 letter requested that DOT evaluate traffic calming measures on PPW, including the possible installation of a one-way or two-was Class I bicycle path on the

eastside of PPW. DOT Ex. F (emphasis added). 5 In accordance with the Community Boards request. DOT began the process of 6 considering modifications to PPW. After conducting site visits and analyzing PPW and the surrounding area, DOT concluded that reconfiguring PPW by eliminating one traffic lane and adding a two-way bike path would address several community concerns. First, eliminating one lane of traffic would remove the excess capacity on PPW, thereby minimizing the opportunity to speed and weave among three traffic lanes. Second, adding a bike path would facilitate access to Prospect Park by permitting bicyclists traveling east bound on
9111

Street and other side streets to

safely and legally ride to Prospect Park entrances on Grand Army Plaza, 3 Street and Bartel Pritchard Square. And third, it was anticipated that adding a bike path would significantly

reduce the incidence of bicyclists riding on the PPW sidewalks. Benson Aff.. at 1 9. Bikeways include bicycle paths, which are physically separated from traffic lanes (and are sometimes known as Class I bike paths ), bicycle lanes, which are directly next to a traffic lane (and are sometimes known as Class II bike lanes), and bicycle routes, which share a motor vehicle lane. See Benson Aff., at 2, fn. 1: DOT Ex. B. The New York City Charter directs DOT, through its Commissioner, to establish. determine. control, install, and maintain the design, type, size, and location of any and all signs, signals, marking, and similar devices,., for guiding, directing, or otherwise regulating and controlling vehicular and pedestrian traffic in the streets. .roads.. .and other public ways of the city. NYC Charter. 2903(a)(2). Similarly, section 2903(b) provides, among other things. that the commissioner shall have charge and control of the following functions relating to the construction, maintenance and repair of public roads, streets ...: (1) regulating, grading. curbing. flagging and guttering of streets, including marginal streets and places. and the laying of crosswalks; (2) designing, constructing and repairing of public roads, streets
.
. .

In reaching its determination to add a bike path on PPW. DOT also considered alternative locations, including 8 Avenue. While
th 8

Avenue has two northbound traffic lanes

that bicyclists can ride on, it has numerous intersections that increase the potential lbr conflicts and crashes among motorists and bicyclists, thereby decreasing the desirability and use by bicyclists. Moreover.
th 8

Avenue does not connect directly with Prospect Park entrances.

meaning a more circuitous route to and from Prospect Park would be required. Benson AfT, at

10.
DOT also considered and rejected Park Drive, a roadway located within Prospect Park. Park Drive does not provide the connectivity to the street network that a PPW bike path would (since bicyclists could only access Park Drive in three locations), and it is also an indirect (and thus inconvenient) route for local trips. Moreover, Park Drives two traffic lanes are used by motor vehicles at certain times, and there is insufficient space to add an unprotected bike lane going against the flow of traffic while at the same time providing for the existing walking/running lane, bike lane and two traffic lanes. Benson Aff., at

11.

In considering the Community Boards request, DOT took into account the American Association of State Highway and Transportation Officials (AASHTO) Guide for the Development of Bicycle Facilities (AASHTO Guide). Specifically, the AASHTO Guide section relevant to Shared Use Paths is applicable, since the PPW Project is functionally equivalent to such a path. DOT Ex. H, at 33-59. The PPW Project operates as a distinct lane from the roadway. separated by a barrier (the row of parked cars and the buffer area) and there are no full intersections on the corridor, only two driveways and T intersections on the opposite side of the street from the bike path. The applicability of this section of the AASFITO Guide. and petitioners misplaced reliance on another section of the guide. is set forth in

extensive detail in the accompanying Affidavit of Joshua Benson. DOTs Director of Bicycle and Pedestrian Programs. Benson Aff. at ( 13-15. On April 16, 2009, DOT presented its proposal for the PPW Project to the Community Board 6 Transportation Committee. Benson Aff.. at

16. The DOT presentation

noted that the volume of traffic on PPW did not warrant three traffic lanes, that motor vehicles sped and engaged in reckless driving, and that the three traffic lanes resulted in long pedestrian crossings. The DOT presentation also noted that while the Park Slope neighborhood had a high volume of bicyclists, PPW was an uncomfortable cycling environment, and that bicyclists were traveling on the PPW sidewalks. DOT Ex. G (4/16/09 DOT Presentation on PPW Bicycle Path and Traffic Calming). The DOT presentation outlined the proposed changes to PPW: a seven-foot wide parking lane on the west side of PPW, two ten-foot wide traffic lanes, an eight-foot wide parking lane, a four-foot buffer and a ten-foot two-way bike path, together with appropriate signage and

road and sidewalk markings.

These changes would benefit all users of PPW. Motorists

would have fewer opportunities to speed, pedestrians would have fewer bicycles on the sidewalk and reduced crossing distances, and bicyclists would have dedicated lanes with a sufficient space to avoid accidents involving motorists suddenly opening doors. The Community Board 6

Transportation Committee unanimously supported the proposal. Benson Aff., at

17.

On May 13, 2009, Community Board 6 voted in favor of the DOT proposal. but also asked that installation of the PPW Project be delayed until September 2009 so that DOT Petitioners also contend that DOT did not prepare a pedestrian safety action plan in accordance with a Federal Highway Administration document titled How to Develop a Pedestrian Safety Action Plan. Am. Pet.. at 8 1-83. That contention is also misplaced. and addressed in detail in the Benson Affidavit, at paragraphs 13 and 22 and footnote 14, See also DOT Ex. T.

could respond to concerns relating to pedestrian crossings. Street cleaning, Storm water run off and loading and unloading issues for those using Prospect Park. Community Board 6 Letter to DOT Brooklyn Borough Commissioner). In response to these community concerns, DOT modified its proposal by adding flashing yellow warning beacons for bicyclists at intersections with traffic signals, adding daytime loading zones at four locations, and deciding to color the bike path green to highlight it for pedestrian crossing and for enhanced legibility of the design to motorists. DOT also DOT Ex. C (713109

modified the widths of the parking, traffic, and buffer lanes, and the bike path. Specifically, DOT provided for a wider parking lane (by one foot) on the west side of PPW, wider traffic lanes (by one foot each), a narrower buffer lane (by one foot) and a narrower bike path (by two feet). Thus, the width of each parking lane and each traffic lane was identical to the width of each parking lane and each traffic lane prior to installation of the PPW Project. Benson Aff.. at 8

19.

On April 12, 2010, DOT presented its revised proposal to a community Open House sponsored by City Council Members Steve Levin and Brad Lander, Community Board 6 and DOT; more than one hundred people attended. DOT Ex. I. And on April 29, 2010, DOT again presented its revised proposal, this time to the Community Board 6 Transportation 9 Committee, DOT Ex. J.

In addition to addressing these community concerns, DOT also takes into consideration (and consults if warranted) the concerns of the New York City Fire and Police Departments. Benson Aff., at 20. Contrary to the petitioners claims (Am. Pet., at 14). the PPW Project was not installed on a trial basis. DOT s Director of Bicycle and Pedestrian Programs publicly stated as much during the April 2010 meeting of the Transportation Committee of Community Board 6. Benson Aff., Continued...

The June 2010 Installation of the PPW Project In June 2010 the PPW Project was installed. One traffic lane was eliminated.

replaced by a new east side parking lane. In place of the old east side parking lane. an eight-foot wide two-way bicycle path was demarcated with green paint, and next to the bicycle path a three-foot wide parking lane buffer was demarcated with white-striped thermoplastic pavement markings To facilitate the flow of vehicle traffic, traffic signals along the corridor were

retimed to turn green in a faster progression and the traffic signal splits (the percentage that a traffic signal is green fbr one axis of an intersection in comparison to the other axis) were modified to provide longer green traffic signals for PPW, at the expense of the side streets. At each of the pedestrian or vehicle crossings that had traffic lights, flashing yellow warning beacons directed towards bicyclists were installed. Benson Aff., at

J 23.

Signs requiring cyclists to yield to pedestrians at each crosswalk were also installed. In addition, pedestrian islands flush with the roadway were designated at each of the pedestrian crossings, and warning signs were designated that alerted pedestrians to Look both ways before crossing. Pavement markings at each crosswalk were installed for pedestrians with a Look word message and double arrow to call attention to the two-way bicycle traffic.

at 21. Moreover, unlike other DOT projects that are identified in DOT documents as being trial or pilot projects, the PPW Project was not so identified. Benson Aff. at 22; DOT Ex. L. Petitioners incorrectly attempt to claim that the PPW Project is unique or experimental. Am. Pet., at 1 et seq.. In fact. there are at least six other similar two-way bike paths in New York City, one each on Kent Avenue, Williamsburg Street West, Flushing Avenue, Tillarv Street in Brooklyn, one running alongside the West Side Highway for about five miles and one along South Street in Manhattan. Benson Aff., at 23, fn 17. These were the first PPW traffic signal adjustments since the March 2007 adjustments. See Benson Aff., at 23.
0

Bicycle guide signs were also installed. On the western edge of PPW, new loading zones were 2 designated to reduce the incidence of double parking. Benson Aff.. at 24. Following the June 2010 installation, DOT added flexible delineators at pedestrian islands. white striping to loading zones. and added loading zones in two locations and designated a no-standing zone in one location. These enhancements were completed by October 8. 2010. Benson Aff.. at

25.

The Evaluation of the PPW Project after the June 2010 Installation After the PPW Project was installed in June 2010, DOT conducted an evaluation 3 to ascertain the effectiveness of this project. Benson Aff., at 26 & DOT Ex. D. While this post-installation evaluation has no bearing on the legal issue at hand
--

whether DOTs
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determination to install the PPW Project was a rational exercise of its discretionary authority

the evaluation (based on the underlying raw data) shows that DOTs determination was 4 appropriate.

During the same month that the PPW Project was installed, the presidents of the two petitioner organizations, Lois Carswell and Louise Hainline, both sent c-mails to various City officials complaining about the PPW Project. DOT Ex. M. And the following month Hainline sought (and subsequently received) documents from DOT related to PPW. Am. Pet. Ex. 28. In addition to posting this evaluation on its website, in October and December 2010, DOT released preliminary results of its evaluation. DOT Exs. N and 0. And on January 20, 2011, DOT appeared before the Community Board 6 Transportation Committee to present its evaluation. DOT Ex. P. While petitioners claim that they have collected post-installation evidence they have conducted interviews, gathered data, and filmed PPW (Am. Pet., at 47) they failed to include any of this purported evidence in their moving papers (which included an affirmation with 62 exhibits). Nor can petitioners submit this purported evidence with their reply papers. See, Citlights at Queens Landing v. NYC Dept of Env. Protection, 62 A.D.3d 871. 872 (2d Dept 2009) (in an Article 78 proceeding, Supreme Court correctly declined to consider evidence improperly submitted for the first time in reply papers). Cf Sullivan v. American Airlines. Inc., 80 A.D.3d 600. 601 (2d Dept 2011) (Evidence submitted by the defendants for
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12

Continued...

The evaluation shows that the installation of the PPW Project was a resounding success. The incidence of speeding declined precipitously. Previously nearly three of every fur vehicles exceeded the speed limit on PPW. DOT Ex. D, at 7. In stark contrast. after the PPW Project was installed, only one in five vehicles exceeded the speed limit. Id. Similar to the dramatic decline in speeding. bicyclists riding on the sidewalk also declined precipitously, from 20 percent to four percent on weekend days, and from 46 percent to three percent on weekdays. 6 the first time in their reply papers cannot be considered for the purpose of establishing their prima facie entitlement to summary judgment.), Petitioners attempt to question the validity of DOTs data relating to the reduction of speeding on PPW. See Am. Pet. at J 67-68. That attempt fails. As explained in extensive detail in the Benson Affidavit, the results presented in the DOT Evaluation discussed the radar readings on th th PPW between 5 and 6 Streets, which is almost exactly in the middle of the PPW corridor and provides the best indicator of how the PPW corridor is performing. DOT Ex. A. Moreover, the th 5 t1 6 Street location had the highest recorded speeds from the March 2009 radar readings, and thus the speeding problem was most acute at that location. DOT Ex. D; Benson Aff., at 29. DOT did not report data from the other two locations for two distinct reasons. First, the other locations are at opposite ends of the PPW corridor, and thus speeds at those locations are influenced by Grand Army Plaza and Bartel Pritchard Square. DOT Ex. A. Second, for these other locations DOT did not have complete data match sets. Benson Aff., at 29. In any event, the data match sets DOT did have for these locations all showed a decline in speeding after installation of the PPW Project. Benson Aff., at 29; DOT Ex. D.
-

Petitioners take issue with the several components of the methodology used by DOT to perform these comparisons, arguing that the pre-installation weekday count was low due to weather conditions, and that the post-installation counts were questionable since they were not taken in the exact same location as the pre-installation counts. Am. Pet., at ! 66: Affidavit of Eric R. Fox, sworn to on March 7, 2011 (Fox Aff.), at 27 & 30. While the pre-installation weekday count may have been low due to weather conditions, there is no question that the number of bicyclists riding on the sidewalk has decreased significantly. For instance, the pre installation weekend day count for bicyclists on the sidewalk was 1 58 in comparison to between 71 and 51 bicyclists on the sidewalk during the four post-installation counts. DOT Ex. D. at 6 and accompanying pages. Moreover, this figure is even more significant when considering that bicycle usage of PPW (on the sidewalks, bike path and Street) more than doubled after the installation of the PPW Project. Id. And while the before and after counting locations were not in identical spots, that is insignificant Since the two locations are right next to each other. and there is no break. such as a park entrance. in the bike path between 3rd and 5th Streets. Benson Aff..at27, fn23.

16

I)OT Ex. D. at 5 & 6. And the PPW Project facilitated access to Prospect Park by permitting bicyclists to safely and legally ride either north or south on PPW to Prospect Park entrances on Grand Army Plaza, 3 Street and Bartel Pritchard Square.
The data on crashes also indicates the success of the traffic calming efforts that

resulted from the installation of the PPW Project. Comparing the crash data for the last six months of 2010 with the last six months of the three prior years (thereby accounting for seasonal variations) shows that crashes declined from an average of 29.7 to 25, that the number of injuries from crashes declined from an average of 6.3 to 5, and that the number of crashes involving injuries declined from 5.3 to 2. Petitioners, and their purported expert, accountant Eric Fox, take issue with 8 DOTs use of three-year averages in its crash analysis. Am. Pet., at

62; Fox Aff., at J 7-17.

Petitioners, however, fail to square their assertions with the accepted industry practice of using three years worth of data when performing before and after crash comparisons. Benson Aff., 9

Comparing the crash data for the nine months between July 2010 and March 2011 with the same nine month period for the three years before the PPW Project was installed shows that crashes declined from an average of 43.3 to 34, that the number of injuries from crashes declined from an average of 8.7 to 6, and the number of crashes involving injuries declined from an average of 7.3 to 3. Benson Aff., at 35; DOT Ex. W. Fox apparently has no educational or professional experience as a traffic planner or traffic engineer, nor does he appear to have any educational or professional experience in analyzing traffic data, roadway designs or traffic control methods. Fox Aff.. at 3-6 & Ex. 1 thereto. Petitioners also take issue with DOTs standard practice (see. g, Benson Aff., at 33 & fn 30 (DOT Midtown Evaluation Report) of using cross street data when evaluating a corridor, such as the PPW Project on the PPW corridor. Am. Pet., at 34. In performing crash evaluations, DOT uses NYPD crash data that codes all crashes with both the street that the accident occurred on (known as the on street), as well as the cross street. Benson Aff., at 33. When an accident occurs at an intersection, the police officer filling out the accident report could indicate either street that forms the intersection as the on street and the other street as the cross street. Thus. in analyzing the PPW crash data, DOT used all crashes (both before and after the Continued...
8

at

32.

For instance. Chapter 2 of the Federal Highway Adrninistrations Highway Safety

Improvement Program Manual states: Typically a minimum of three years of crash data is used for analysis. DOT Ex, S, at 2-12. Three years of data is preferable since crash experience can
vary at a location from year to year. so it is important that more than one year of data is used for

2 the analysis.

N For this reason, DOT typically uses three years of before-crash data when

evaluating traffic improvements (and indeed, used three-year data in April 2009 when it originally presented the PPW Project plan to the Community Board). DOT Ex. 0; Benson Aff., at 32. also DOTs January 2010 Green Light for Midtown Evaluation Report (DOT

Midtown Evaluation Report), at 2930.21 And even if there were any validity to petitioners criticisms of DOTs use of three-year-average data, the most relevant indicator involving injuries
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crashes

dropped by 50 percent between 2009 and 2010, and dropped by 33 percent

in the same period if side street crashes are omitted. DOT Ex. D; Benson Aff., at Aff., at

34; Fox

22.

Such a drop is not surprising given that speeding on PPW has dropped

dramatically, and that crashes at higher speeds are associated with more severe injuries. See

PPW Project installation) where PPW was identified as the on street as well as all crashes where PPW was identified as the cross street (and a side street was listed as the on street). Moreover, DOT reasonably used this cross street data since the vast majority of all crashes occur at intersections. Benson Aff., at 33. The data from 2010 contained such a statistical anomaly. which the petitioners and their expert fail to address in any manner whatsoever. Specifically, while there were only two crashes involving injuries in the last six months of 2010. one of those crashes resulted in injuries to four individuals. In contrast, for the 100-plus crashes that occurred during the same six month period between 2007 and 2010, only three other crashes resulted in more than one injured individual, and each of those three only involved two injured individuals. DOT Ex. D, at 63-64 (DOT 1/11 Evaluation). Available at: littp: : ww.n\ c .govfhtml/dot;do\iloads pdf hroadw a
2 20

report final 201 Oweh2 .pdf.

14

DOT Ex. 17. at 26 (\YC Pedestrian Sattv Stud and Action Plan) (A pedestrian struck at 40

mph is ftur times more likely to die than one struck at 30 mph: a pedestrian struck at 30 mph is six times more likely to die than one struck at 20 mph. (citations omitted)). Finally, while the PPW Project accomplished its three goals. it should also be noted that neither the volume of vehicles using PPW nor the time it took such vehicles to travel the PPW corridor declined in any perceptible manner. For instance, the number of vehicles using PPW essentially remained stable after the PPW Project was implemented; during the morning and afternoon rush hour there was a slight increase of vehicles at PPW and Carroll Street, and a slight decrease of vehicles at PPW and
th 11

Street. Benson Aff. at

30. And the

average time required to travel the PPW corridor actually decreased by seven seconds. Moreover, PPW continued to provide the shortest travel time through Park Slope when compared to
th 7

and

th 8

Avenues. Id.
ARGUMENT POINT I ASIDE FROM THE FOIL CLAIM, THE PETITION IS TIME-BARRED UNDER THE FOUR-MONTH STATUTE OF LIMITATIONS APPLICABLE TO CPLR ARTICLE 78 PROCEEDINGS.

Petitioners seek CPLR Article 78 relief in this proceeding.

Am, Pet,

8 &

Wherefore clause. Petitioners claims, however, are time barred since petitioners did not start this Article 78 proceeding until March 2011. more than eight months after the PPW Project was installed. Since Article 78 claims must be asserted within four months of the contested

governmental action, the petition is time barred and this proceeding must be dismissed. The statute of limitations governing an Article 78 proceeding is set forth in CPLR

217(1), which provides that [ujnless a shorter time is provided

in the law authorizing the

proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding added). See also Davis v. Westchester County Personnel Office CPLR

217 (emphasis

75 A.D.2d 600 (2d Dept

1980). A challenged determination is final and binding when it has its impact upon the petitioner who is thereby aggrieved. Edmead v. McGuire, 67 N.Y.2d 714, 716 (1986). For transportation projects such as DOTs PPW Project, the four-month statute of limitations begins to run at the very latest when the actual onsite work begins. Gerson v. City of New York. 2008 N.Y. Misc. LEXIS 10131. **2324 (Sup. Ct. NY. Co., Aug. 4,2008), if not earlier when implementation of the project becomes imminent. Cohen v. State of N.Y., 2 A.D. 3d 522. 524 (2d Dept 2003); Villella v. Dept of Trans., 142 A.D.2d 46, 49 (4th Dept 1988). In Cohen, petitioners challenged a New York State Department of Transportation (State DOT) project, claiming among other things that the State DOT determination to install a noise barrier was based on a flawed study. proceeding
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The Second Department held that the petitioners Article 78


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commenced several weeks before installation was scheduled to begin

was

nonetheless time barred since the State DOTs construction contract had been awarded more than four months before the petitioners commenced their proceeding. Cohen, 2 A.D.3d at 524-525. Similarly, in Villella, State DOT advertised bids to replace various signs along an interstate highway; nearly six months later several tourist-related businesses near the interstate commenced an Article 78 proceeding challenging the State DOT project, essentially arguing that the project would cause a diversion of traffic that would negatively affect their.,. businesses. Strong public policy considerations support strict enforcement of the statute of limitations in cases of claims against a municipality. Indeed. New York State General City Law 20(5) specifically prohibits a municipality from waiving the defense of the statute of limitations. See also Farrell v. City of N.Y., 197 Misc. 1059 (Sup. Ct,, App. Term. 1st Dept 1950).
2

142 A.D.2d at 47. The Court held that the Article 78 proceeding was time barred, and noted that
even it it was possible that the pe1itioners might not have been aware of the proiects implementation until the letting of bids was publicS the proceeding was still time barred since it was not commenced within four months of the advertisement of the bids. And in Gerson, the Court held that petitioners Article 78 proceeding challenging a multi-phase street reconstruction project was time-barred since it was brought more than four months after the actual onsite construction began, which was the very latest date that the statute of limitations began to run.

2008 N.Y. Misc. LEXIS 10131. **23.24 With regard to Petitioners SEQRA/CEQR claims, the June 2010 installation of the PPW Project was a project.. .or physical activity. .directly undertaken by DOT. and
.

therefore constituted an action as defined in the SEQRA regulations.

See 6 NYCRR

23 617.2(b)(1). Accordingly, the statute of limitations period for SEQRA/CEQR challenges to

the PPW Project (like all other Article 78 challenges) began running in June 2010 at the latest, and expired by the end of October. See also Save the Pine Bush v. City of Albany, 70 N.Y.2d
193, 203 (1987) (rejecting SEQRA challenge to a rezoning enacted more than four months prior

to filing, in part because ECL 8-0109 requires consideration of potential environmental impacts at the earliest possible time); Lai Chun Chan Jun v. Bd. of Estimate of the City of N.Y.. 101
A.D,2d 97 (1st Dept), affd 62 N.Y.2d 900 (1984) (rejecting CEQR elements of challenge to a decision that had occurred more than four months prior to the raising of the CEQR claim).

The installation of the PPW Project also commit[ted DOT]... to a definite course of future decisions about maintenance and ongoing operation of the lane. thus also constituting an action under SEQRA. See 6 NYCRR 617.2(b)(2).

23

Here, petitioners did not commence this proceeding within four months of DOTs

determination to implement the PPW Project. or even within four months of June 2010. when
petitioners concede the PPW Project was substantially constructed. Am, Pet., at 91. See 24 also Verified Answer, at

12 & Benson Aff.. at

23 (PPW Project was substantially completed

by June 30. 2010). Assuming arguendo that June 30, 2010 was the start date for the running of the statute of limitations, an Article 78 petition challenging the DOT determination would have had to be filed by the end of October 2010. As petitioners failed to do so. the are now clearly time-barred from challenging DOT s decision to install the PPW Project. In an apparent effort to skirt the statute of limitations, petitioners attempt to characterize the PPW Project as experimental or as a trial. and thus presumably contend that the June 2010 installation of the PPW Project was not a final agency determination that started the four-month clock. Petitioners, however, cite to no DOT public (or even private) statements

that the PPW Project was installed for a trial period or that it was experimental.

Instead,

petitioners cite to the statements of non-DOT-affiliated individuals. Am. Pet. at } 44. Far more pertinent is the statement of DOTs Director of Bicycle and Pedestrian Programs. who publicly stated at an April 2010 Community Board 6 Transportation Committee meeting that the PPW Project was a permanent measure, and not a trial measure. Benson Aff., at

21.

Indeed, unlike

other DOT projects, the PPW Project was not (and never was) identified as a pilot or trial project. Benson Aff., at

22;

DOT Ex. L. See also DOT Ex. K (DOT Ex. K (2/9/09 City Press

Release Mayor Bloomberg and Commissioner Sadik-Khan Announce Pilot Green Light for

And petitioners were clearly aggrieved in June 2010 when the PPW Project was installed. since at that time the presidents of the two petitioner organizations sent c-mails to City officials complaining about the PPW Project. DOT Ex. M.

24

Midtown Program to Reduce Congestion). There is no factual basis for the experimental or irial denomination, and petitioners have not identified any action DOT undertook during the four months prior to the filing of this proceeding that would be appropriately subject to an Article 78 challenge at this time. And while petitioners do not appear to be challenging them. DOTs minor enhancements to the PPW Project following its installation in June 2010 did not reset or pause the four-month statute of limitations clock. Benson Aff.

25 (describing PPW Project

enhancements, which were in any event completed by early October 201 1): Douglaston & Little Neck Coalition v, Sexton, 145 A.D.2d 480, 480-81 (2d Dept 1988) (challenge to siting of sanitation garage was time-barred because it was filed more than four months after approval of garage, notwithstanding subsequent incidental or technological changes to the garage plans); Monteiro v. Town of Colonie, 158 A.D.2d 246, 50 (3d Dept 1990) the time to complain of SEQRA violations was within four months of the concept approval of the... proposal for expanding a shopping mall, despite changes to the mall plans that had occurred within four months of filing). Since the four-month statute of limitations to challenge DOTs installation of the PPW Project expired months before the commencement of this Article 78 proceeding. the petition must be dismissed in its entirety.

POINT II RESPONDENTS DECISION TO iNSTALL THE PPW PROJECT ON PROSPECT PARK WEST WAS IN ALL RESPECTS RATIONAL. REASONABLE, AND IN ACCORDANCE WITH THE LAW.

Even if the petition were not time-barred under the applicable statute of limitations, DOTs determination to install the PPW Project in June of 2010 was properly made with regard to all of the relevant facts and applicable law. A. Applicable Standard. Administrative agencies enjoy broad discretionary power when making determinations on matters they are empowered to decide. Section 7803 of the CPLR provides for very limited judicial review of administrative actions. proceeding, CPLR Section 7803 states in part: The only questions that may be raised in a proceeding under this article are: 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed;
***

As is relevant to the instant

The arbitrary and capricious standard is not a demanding one. Essentially, it requires only that the administrative agency determination be reasonable and supported by the record taken as a whole, With regard to whether a determination can be deemed arbitrary or capricious, the Court of Appeals stated in Pell v. Board of Education. 34 N.Y.2d 222, 231 (1974): The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified.. and whether the administrative action is without foundation in fact. (1 N.Y. Jur.,

Administrative Law. 184. p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. In reviewing the rationality of an agencys determination, the court does not examine the facts tie novo to reach an independent determination
.

Marsh v. Hanlev. 50 A. D.2d

687 (3d Dept 1975). Indeed, the court may not substitute its own judgment of the evidence for that of the administrative agency. but should review the whole record to determine whether there exists a rational basis to support the findings upon which the agencys determination is predicated. Purdv v. Kreisberg. 47 N.Y.2d 354. 358 (1979). See also Flacke v. Onondaga

Landfill Sys.. 69 N,Y.2d 355, 363 (1987); 300 Gramatan Ave. Assocs. v. State Div. of Human Rights. 45 N.Y.2d 176, 182 (1978); Pell v. Bd. of Educ., 34 N.Y.2d at 231: Cohen v. State of

New York, 2 A.D.3d 522, 525 (2d Dept 2003). If the acts of the administrative agency find ample support in the record, its determination is conclusive. See Cohen v. State of New York, 2 A.D.3d at 525. Similarly. in reviewing administrative determinations, a court may not overturn an agencys decision merely because it would have reached a contrary conclusion (1 N.Y. Jur.,
Administrative Law, 197, pp. 643-648). Sullivan County Harness Racing Assoc. v. Glasser,

30 N.Y.2d 269, 278 (1972).

In reviewing an administrative determination that turns on the

exercise of discretion, the courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary or capricious. Pell, 34 N.Y.2d at 230-3 1; see also Cohen v. State of N.Y., 2 A.D.3d at 525: Schatz v. Dept of Consumer Affairs, 177 A,D.2d 324. 326 (1st Dept 1991). Thus, the question before the Court in an Article 78 proceeding is to determine, upon the proof before the administrative agency, whether the determination had a rational basis in the record or was arbitrary and capricious. Disposition of the proceeding is limited to the and record adduced before the agency when the administrative determination was rendered.
21

Fanelli v. N.Y. City Conciliation & Appeals Bd.. 90 A,D.2d 756. 757 (1st Dept 1982) (emphasis added), fflg Lcyjne v. NY. State Li uorAllth., 23 N.Y.2d 863 (1969). If the challenged

determination was rational. based upon the information before the administrative body at the time the challenged decision was rendered, then that determination must be upheld.
Moreover, an agency exercising its statutory authority is presumed to have

developed an expertise and judgment that requires the courts to accept the agency judgment, if not unreasonable. Lnbrook v. N.Y. State Public Employment Relations Bd., 48 N.Y.2d 398, 404 (1979). When matters of specialized knowledge or judgment are entrusted to an agency or board, the Court may not substitute its own judgment. Antell v. Bd. of Ed., 21 Misc. 2d 119, 125, (Sup. Ct. N.Y. Co., Special Term, 1959), affd, 10 A.D.2d 699 (1st Dept 1960). Thus, a presumption of regularity attends to the action of the [agency], and it is incumbent upon the petitioner to overcome that presumption and establish the action to have been without reasonable foundation. Kayfield Constr. Corp. v. Morris, 15 A.D.2d 373, 379 (1st Dept 1962). See also Bauman & Sons Buses, Inc. v. Patchogue-Medford Union Free Sch. Dist., 231 A.D.2d 566 (2d Dept 1996); Miller v. Greene County, 40 A.D.2d 738 (3d Dept 1972). Finally, the

determinations of an administrative agency interpreting and administering statutes and regulations should be accorded great weight. Forest Hills Tenants Assoc. v. Joy, 91 A.D.2d 912 (1st Dept 1983), afPd, 59 N.Y.2d 1007 (1983).
B. DOTs Determination to Install the PPW Project was a Rational Exercise of its Discretionary Authority.

DOTs determination to install the PPW Project was a rational exercise of its discretionary authority to design public roads pursuant to New York City Charter

2903. The

installation of the PPW Project addressed several community concerns that had been highlighted in the June 2007 Community Board 6 letter. DOT Ex. F. The installation of the PPW Project

was a traffic calming project that was accomplished by eliminating one lane of traffic, thereby removing the excess capacity on PPW and minimizing the opportunity to speed and weave among three traffic lanes. In addition. adding the bike path facilitated access to Prospect Park by permitting bicyclists traveling east-bound on
th 9

Street and other side streets to safely and legally


rd 3

ride either north or south on PPW to Prospect Park entrances on Grand Army Plaza.

Street

and Bartel Pritchard Square. Finally, adding the bike path significantly reduced the incidence of bicyclists riding on the PPW sidewalks. DOTs determination was based on an analysis of PPW and the surrounding area. That analysis showed, among other things, that PPW had excessive motor vehicle speeding and bicycles traveling on sidewalks. DOT also evaluated Park Drive and
thi 8

Avenue as potential

bike lane locations and concluded that these locations would have significant disadvantages compared to PPW. Benson Aff.. at

4-6,

10 & 11.

This evidence, together with DOTs site observations and anecdotal evidence, is 2 clearly sufficient to sustain DOTs determination to install the PPW Project in June 2010. See Transportation Alternatives, Inc. v. Gotbaum. 199 A.D.2d 53 (1st Dept 1993) (Parks Department regulation setting a speed limit for bicyclists was upheld on Article 78 review as it was supported by police accident statistics and anecdotal evidence, and further, petitioners failed to show that agencys methodology was irrational). Moreover, the determination by DOT,

whose personnel have extensive experience in urban planning and the assessment and evaluation See. g. Benson Aff.. at 9; DOT Ex. C (Community Board 6 Letter dated 7/13/09 to DOT Brooklyn Borough Commissioner: we have been seeking relief from speeding traffic along the Prospect Park West corridor for some time now); DOT Ex. E (4/20/10 Park Slope Civic Council Letter to DOT Brooklyn Borough Commissioner: we believe that the excess capacity on Prospect Park West leads to speeding and creates a dangerous condition for the many users seeking to access [Prospect] park).
25

23

of various types of traffic calming measures throughout the City of New York, was based on sound methodology and was consistent with the AASHTO Guide. Benson Aff., at 13. DOTs determination, which was presented to the community on numerous occasions
--

and revised in response to community concerns (Benson Aff. 19)

--

clearly

involves a discretionary determination within the expertise of DOT that must be afftrded great weight and judicial deference. See Flacke v. Onondaga Landfill Sys,. Inc.. 69 N.Y.2d 355, 363 (1 987). Since there was a rational basis for I)OTs determination, the petition should be denied. Pell. 34 N.Y.2d at 230-31
,27

Finally, although the post-installation data on PPW has no bearing on whether the DOT determination to install the PPW Project was a rational exercise of its discretionary 28 authority, as set forth in detail in the Benson Affidavit, paragraphs 26 34, the post-installation
-

Petitioners also cite to several Penal Law provisions in an attempt to bolster their claim. Putting aside that an Article 78 proceeding is an inappropriate forum to assert Penal Law violations, the record clearly establishes that there is no factual basis for these outlandish claims. To the extent that petitioners seek mandamus relief, petitioners fail to state a cause of action for mandamus. Mandamus is an extraordinary remedy used to compel performance by an administrative body or officer of a duty positively required by law. See Hamptons Hosp. & Med. Ctr., Inc. v. Moore, 52 N.Y.2d 88 (1981). The mandamus remedy is available only where there is a clear and absolute right to the relief sought, and the body or officer whose duty it is to enforce such right has refused to perfbrm such duty. See Brusco v. Braun, 84 N.Y.2d 674, 679 (1994); County of Fulton v. State of N.Y., 76 N.Y.2d 675, 678 (1990); Lisa v. Bd. of Educ., 83 A.D.2d 949-50 (2d Dept 1981). Mandamus is not available where, as here, petitioners seek to compel DOT to exercise its discretion in a particular manner remove or modify the PPW Project because an absolute right to such relief cannot be established. See Brusco. 84 N.Y.2d at 679; County of Fulton, 76 N.Y.2d at 678.
--

26

27

--

As the Court of Appeals holds, for a court to consider evidentiarv submissions as to circumstances after the [government agencyj made its determination would violate [a] fundamental tenet of CPLR Article 78 review namely, that judicial review of administrative determinations is confined to the facts and record adduced before the agency. Featherstone v. Franco, 95 N.Y.2d 550. 554 (2000) (citations and internal quotations omitted). See also Kelly v. Safir, 96 N.Y.2d 32, 39 (2001) (lower court erred when it relied on submissions that post-dated Continued...
--

28

24

DOT evaluation (and its underlying data) support the finding that the DOT determination was
appropriate. The incidence

of speeding declined while the percentage of bicyclists riding on the

sidewalk similarly declined. In addition. neither the volume of vehicles using PP\V nor the time
it

took such vehicles to travel the PPW corridor declined in any perceptible manner. The data on

crashes also indicated the success of the traffic calming efforts that resulted from the installation of the PPW Project. Benson Aff., at 29 } 27-30 & DOT Ex. D.
POINT III PETITIONERS CLAIM THAT DOT FAILED TO PERFORM REQUIRED SEQRA REVIEW MUST FAIL.

Petitioners allege that DOT violated SEQRA (and its City counterpart, CEQR) 3 by failing to submit [the PPW Projectj to any environmental reviews and/or by failing to document its determination that the Lane was exempt from SEQRA. Am. Pet. at

J 142, 147-

150. These claims are not only time-barred, but also erroneous. DOT fully complied with the requirements of SEQRA, reasonably determining that the PPW Bicycle Lane was a Type II action exempt from environmental review. See 6 NYCRR

617.5.

the agency determination); Salvatore v. NYS Div. of Human Rights, 118 A,D.2d 715, 716 (2d Dept 1986) (matters which occur after the making of an administrative determination are not properly included in the record before a reviewing court). For these reasons, even if one assumes arguendo that DOT did not make a determination to make the PPW Project permanent until January 2011, that determination was nevertheless appropriate, and neither arbitrary and capricious or lacking a reasonable basis. The City Environmental Quality Review Procedure (CEQR), set forth at Title 62, Chapter 5 of the Rules of the City of New York, implements SEQRA by establishing procedures and additional substantive requirements for environmental reviews undertaken by City agencies. CEQR uses the same detinition of a Type II action set forth in SEQRA. and imposes no additional procedural requirements for Type II actions undertaken by City agencies. so the analysis herein focuses solely on SEQRA. See 62 RCNY 5-01 .
29

A.

Standard of Review for SEQRA Determinations.

SEQRA requires agencies to identify and assess the potential environmental


effects of certain proposed actions before funding, approving, or undertaking such an action. 6

NYCRR

617.1, 617.3. Agencies have considerable latitude

in evaluating the potential

environmental impacts of a proposed action since SEQRA does not require an agency to act in a particular manner, or reach a particular result. See, g Coalition Against Lincoln West. Inc. v. , 1 City of N.Y., 94 A.D.2d 483, 492 (1st Dept 1983). In evaluating an agencys environmental review of an action, a court may not substitute its judgment for that of an agency, weigh the desirability of an action, or choose among alternatives. See Jackson v. N.Y.S. Urban Dev. Co., 67 N.Y.2d 400, 417 (1986). The Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects... Id. A court must limit its review to whether the agencys SEQRA determination was arbitrary, capricious, an abuse of discretion, or affected by an error of law. Akpan v. Koch, 75 N.Y.2d 561, 570 (1990). This arbitrary and capricious standard is applicable to judicial review of Type II determinations. Comm. to Stop Airport Expansion v. Town Bd. of E. Hampton, 2 A.D.3d 850 (2d Dept 2003), app. den. 2 N.Y.3d 703 (2004) (affirming Towns classification of the repaving of an aircraft parking apron as a Type II action).
B. SEQRA Regulations.

The SEQRA implementing regulations establish three different categories of actions funded, approved, or undertaken by agencies: Type I actions are presumed to have

significant adverse environmental impacts; Type IT actions have been previously determined not to have a significant impact on the environment or are otherwise precluded from environmental review. Actions that are not classified as either Type I or Type II list are treated as Unlisted actions and thus require further inquiry by the agency to determine whether they are likely to
26

result in significant adverse environmental impacts. 6 NYCRR

617.4. 617.5, 617.2(ak). No 6 NYCRR

environmental review is required under SEQRA of a Type II action. (exempting Type 11 actions from review). 6 NYCRR

617.5(a)

617.3(f) (confirming that jn]o SEQRA

determination of significance. ETS or findings statement is required for Type II actions); 6 NYCRR

617,6(a)(lXi) (If the action is a Type II action, the agency has no further

responsibilities under this Part.) The regulations classify 37 categories of actions as Type II actions that are not subject to environmental review. 6 NYCRR

617.5(c)(l)-(37); 475

Ninth Ave. Assocs. LLC v. Bloomberg. 2 Misc. 3d 597, 600-01 (Sup. Ci. N.Y. Co. 2003) (reviewing SEQRA classifications of actions and the bases for them). C. The PPW Project is a Type II Action and Therefore Exempt from Environmental Review.

DOT reasonably classified the PPW Project as a Type II action for SEQRA
purposes. Based on the scope and nature of the project, the PPW Project falls within two Type II categories: it is a traffic control device as well as an instance of routine or continuing agency administration and management. See 6 NYCRR

617.5(c)(16) and

(20). DOTs classification

of the PPW Project as a Type II action was a reasonable exercise of discretion, not affected by an error of law, and neither arbitrary nor capricious. (a) Installation of Traffic Control Devices.

The PPW Project was properly classified as a Type II installation of traffic


control devices on existing streets, roads and highways. See 6 NYCRR

617.5(c)(16). The

term traffic control device is defined in the New York State Vehicle and Traffic Law as [a]ll signs. signals. markings, and devices
. . .

erected by authority of a public body or official having

jurisdiction for the purpose of regulating. warning or guiding traffic and is not defined in SEQRA/CEQR. Vehicle and Traffic Law

153; ECL

8-0101; 6 NYCRR Part 617. In 475

Ninth Avenue Associates LLC v. I3loomberc. the court held that installation of a sidewalk barricade erected to prevent pedestrians from crossing a Lincoln Tunnel ramp was a Type II action under SEQRA/CEQR. The barricade was installed via a Type II action because it fell within the Vehicle and Traffic laws definition of traffic control device and thus within the Type 11 category for installation of traffic control devices. 2 Misc. 3d at 601-02. Similarly, the PPW Project consists of pavement markings. signage, and traffic signals, each of which falls squarely within the definition of traffic control device in the Vehicle and Traffic Law. See Vehicle and Traffic Law two-wa

153; see also Vecchio v. Griffin, 143 A.D.2d 1003 (2d Dept 1988) (conversion of

street to one-way street upheld as Type II instalIation of traffic control devices);

Rasheed Aff., 9-10.


(b) Routine Agency Administration.

Installation of the PPW Project also constituted routine or continuing agency administration and management, not including new programs or major reordering of priorities that may affect the environment. See 6 NYCRR

617.5(c)(20). This Type II category allows

agencies to undertake their core functions and responsibilities without having to engage in timeconsuming and resource-intensive environmental review. See We Stay/Nos Ouedamos Cmte. v. N.Y. City Dept of Citywide Admin. Servs 240 A.D.2d 302 (1st Dept 1997) (affirming Citys classification of the sale of a courthouse as Type II routine administration); Tullv v. Harris. 119 A.D.2d 7, 12 (4th Dept 1986) (affirming that towns addition of fluoride into drinking water constitutes routine administration); Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 146 Misc. 2d 500, 509 (Sup. Ct. N.Y. Co. 1989) and Coalition, Inc.. 1989 N.Y. Misc, LEXIS 913, *5*8 (Sup. Ct. N.Y. Co. 1989) (Citys funding of homeless shelters qualifies as routine administration): Huggins v. New York, 126 Misc. 2d 908, 912-13 (Sup. Ct. N.Y. Co. 1984) (amending regulation to govern vendor activities qualifies as
28

routine administration); and Markowitz v. Bloomberg. 2 Misc. 3d 558. 568 (Sup. Ct. Kings Co. 2003) (closing of firehouses and relocation of FDNY units constitutes routine administration). The New York City Charter directs DOT. through its Commissioner. to establish. determine, control, install, and maintain the design. type. size. and location of any and all signs, signals. marking, and similar devices. .for guiding, directing, or otherwise regulating and controlling vehicular and pedestrian traffic in the streets., ,roads.. and other public ways of
.

the city. NYC Charter,

2903(a)(2).

As part of this core agency mission, DOT routinely

installs, modifies, enhances, and updates markings, signals, and safety measures on City streets. Rasheed Aff.,

12. Here, DOT adjusted the configuration of an existing street to provide a

designated safe pathway for bicycles, and applied signs, signals, and markings accordingly. The purpose of the routine and continuing Type II category is to ensure that agencies such as DOT can undertake basic activities like this unhampered by strictures of environmental review. Courts have consistently held that the routine activity Type II exemptions are not limited to day-to-day
.
. .

activities. See, g, Matter of Hopkins, 99 Misc. 2d 216, 217-18 (Sup.

Ct. Onondaga Co. 1979) (school boards decision to close school was a routine activity of an educational institution and thus, a Type IT action, without regard to whether school closure was being extensively implemented). It is significant that the PPW Project did not constitute a new program. Its installation was merely one instance of a longstanding DOT program of expanding and enhancing the Citys network of designated bike lanes and bike paths. as set forth in the 1997 Bicycle Master Plan. See Rasheed Aff., 5. Moreover, a routine activity such as the installation

of a protected bike path does not blossom into a non-routine activity when the activity is extensively implemented by the agency or when a project will result in a change from the

29

status quo. \V. 97thW.

th 98

Sts. Block Assn v. Volunteers of America of Greater N.Y.. 190

A.D.2d 303. 307-08 (1st Dept 1993) (decision to include mentally ill patients in housing project. although perhaps changing the character of the building, was routine and Type II); see also Markowitz, 2 Misc. 3d at 568) (Citys closing six firehouses as opposed to one did not

render action any less routine); F. Side Coalition v. Bd. of Estimate of the City of N.Y., 1989 N.Y. Misc. LEXIS 913. *5*8 (Sup. Ct. N.Y. Co. 1989) (upholding the designation of a social service center for homeless persons as Type 11 routine or continuing agency administration where numerous such centers existed). B. Petitioners Misconstrue the SEQRA Regulations. Petitioners argument that the PPW Project should have been classified as a Type I rather than a Type II action rests on their misreading of the SEQRA regulations. Petitioners claim that [a}s an action occurring within a Historic District that is listed on the National Register. the construction and implementation of the EBL [sic] is a Type I action under SEQR and CEQR. Am. Pet., at 140. However, the SEQRA regulations specify that any Unlisted action occurring in or contiguous to a historic district listed on the National Register of Historic Places is classified as a Type I action. 6 NYCRR

617.4(b)(9); see also Am. Pet., at 118. The

PPW Project is a Type II action, not an Unlisted action, so this provision is irrelevant. See also Anderberg v. N.Y. State Dept of Envtl. Cons.. 141 Misc. 2d 594. 598 (Sup. Ct. Albany Co.

1988) (upholding classification of bridge replacement adjacent to historic landmark as a Type II action for SEQRA purposes. because as a Type II action it was not an Unlisted action and 6 NYCRR 3 617.4(b)(9) did not apply).

See also crbefg, 141 Misc. 2d at 598 & Assoc. for Prot, of Adirondacks Inc. v. Town Bd. of the Town of Tupper Lake, 17 Misc.3d 1122A, *4*5 (Sup. Ct. Franklin Co. 2007) (both

Continued...

POINT IV PETITIONERS CLAIM THAT DOT WAS REQUIRED TO DOCUMENT ITS TYPE II DETERMINATION MUST FAIL.

Petitioners contend erroneously that DOT was required to memorialize in writing its determination that the PPW Project was a Type II action and thus not subject to further environmental review. In fact, City agencies have discretion under SEQRA to decide whether individual Type 11 determinations will be recorded in
4Titing,

and DOTs decision not to

generate such a writing with regard to the PPW Project was both rational and legal. DOT determined, prior to its installation of the PPW Project, that the creation of a protected bicycle path on an existing street is a Type II action for SEQRA purposes, such that further environmental review is not required for any such path. See Point III supra; Rasheed Aff., J 10-1 1. 6 NYCRR Making this determination fulfilled DOTs duty under the SEQRA regulations.

617.6(a)(1)

(.

.an agency.. .must.. .[d]etermine whether the action is subject to

SEQR. If the action is a Type II action, the agency has no further responsibilities under this Part); cf. London v. Art Commn of the City of N.Y., 190 A.D.2d 557. 559 (1993) (holding that Parks Department neglected to ascertain whether demolition and replacement of historic structure in Central Park was a Type II action subject to SEQRA, where Parks Department appeared to have treated the action as Type II merely because it occurred inside a park without

noting that a prior version of the SEQRA regulations deemed y action occurring in or contiguous to a historic district or site a Type I action, but that the regulation has since been revised to encompass only Type II actions); cE Town of Bedford v. White. 204 A.D.2d 557, 559 (l994)(rejecting classification of traffic signal project as Type II action, based on New York State Department of Transportations separate set of criteria for classifying its own projects as Type II actions that calls for assessment of whether the action will affect an historic district. an element not present in the SEQRA regulations applicable here).

regard to the substantive nature of the action); see N.Y.. 175 Misc. 2d 779. 781-83 (Sup. Ci. Queens Co. 1998), affd. 258 A.D.2d 650)(noting, in upholding City agencys decision not to prepare a formal Type II memo for a sewer upgrade project. that the London court did not rule as a blanket measure that such a formal review is required in each instance of making a Type II determination), DOTs practice of not generating a
writing to confirm

the Type II nature of every

Type II action it undertakes is rational and appropriate. In light of the huge number of traffic control devices that DOT installs or replaces each year on its 12,000 lane-miles of streets, DOT has reasonably elected not to generate a writing classifying every such task as a Type II action for SEQRA purposes. See Rasheed Aff., 12. Petitioners cite the CEOR Technical Manual as purported authority for their claim

that DOT

was

required to generate written documentation of its Type II determination.

However, the CEOR Technical Manual is merely a guidance document, and its recommendations are not legally binding on anyone. See CEQR Technical Manual, Introduction, at 1 (The CEOR Technical Manual.. .provides guidance for city agencies.. .in the procedures and substance of the Citys Environmental Quality Review process.) Thus, petitioners claim that DOT
was

required to provide formal written

documentation of its Type II determination for the PPW Project lacks legal support and must be dismissed.

POINT V THE INSTALLATION OF THE PPW PROJECT DOES NOT IMPLICATE THE JURISDICTION OF THE LANDMARKS PRESERVATION COMMISSION.

Petitioners also claim that prior to the installation of the PPW Project I)OT had to refer this project to the Citys Landmarks Preservation Commission (LPC). Petitioners base their claim on the mistaken belief that the PPW Project is located within a historic district or scenic landmark (Am. Pet, at 158
-

164): since the PPW Project is in neither, their claim fails.

As set forth in precise detail in the affidavit of Jared Knowles, a Deputy Director in the Preservation Department at LPC, the PPW Project is located on PPW adjacent to the eastern-most curb. While the PPW Project is bracketed by the Prospect Park Scenic Landmark on the east and the Park Slope Historic District on the west. the PPW Project is not within either boundary. Affidavit of Jared Knowles, sworn to on June 3. 2011, at consequently fails. 32
POINT VI PETITIONERS FOIL CLAIM FAILS.

10. Petitioners claim

Finally, petitioners assert a claim separate and distinct from their claims related to DOTs installation of the PPW Project.
32

Am. Pet. 178

180.

Specifically, one of the

While there are some small signs and flashing beacons associated with the PPW Project that were installed on poles in the sidewalk directly adjacent to the PPW Project. within the boundary of the Prospect Park Scenic Landmark, the LPC does not review DOTs placement or content of such traffic control devices (or, for that matter, the placement or content of, for instance, no standing signs, one way signs or yield signs located in other historic districts and scenic landmarks). Knowles Aff., at 9. LPCs decision not to do so is well within its authority. See. Lvnbrook v. N.Y. State Public Employment Relations Bd.. 48 N.Y.2d 398. 404 (1979) (agency charged with implementing the law is presumed to have developed an expertise and judgment that requires the courts to accept the agency judgment if not unreasonable).

petitioners, Neighbors for Better Bike Lanes (NBBL), sought documents from DOT pursuant to the New York Freedom of Information Law, Public Officers Law

84. et seq. (FOIL).

DOT Ex. BB. The FOIL claim is unrelated to petitioners claims about the PPW Project since NBBL (like the public at large) has a right, pursuant to the FOIL statute. to seek records from a governmental agency. The standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is [notj enhanced
...

because he is also a

litigant or potential litigant. Matter of John P. v. Whalen, 54 N.Y.2d 89, 99 (1981) (citations omitted, emphasis added). 33 Petitioners claim that DOTs response than 2.900 pages of documents
---

which included the production of more

to the NBBLs FOIL request was inadequate. Petitioners are

wrong. To start, as set forth in detail in the accompanying affidavit of Penny Jackson. DOTs FOIL Records Access Officer, DOT performed a comprehensive search in response to NBBLs 19 distinct and broad requests that sought documents relating to the PPW Project. See Affidavit of Penny Jackson, sworn to on June 2, 2011 (Jackson Aff.), at

4. See also Am. Pet.

103 (NBBL, through counsel, submitted a FOIL request from DOT seeking documents containing any data collected, reviewed, analyzed, or prepared in relation to the {PPW Project] both before and after implementation). DOTs search (which included searching its computer system for potentially responsive c-mails) required the review of thousands of pages of documents. Jackson Aff., at

5. Upon completion of this review, DOT issued its determination

in which it stated that it was producing responsive records to all of the 19 distinct requests except numbers 1(a), 11, 12 and 17. DOT also produced more than 1,600 pages of responsive

Since the FOiL claims stems from the NBBL FOIL request, the other petitioner Seniors for Safety, does not have standing to assert this claim.

documents. including hundreds of pages of letters and c-mails from both DOT and non-DOT individuals, documents relating to comments received by the DOT Commissionefs

Correspondence Unit via 3 11 or the internet, documents relating to its data collection efforts. including accident reports, DOTs public presentations (which were also available on DOTs website), and DOTs project summary sheet for the PPW Project. Jackson Aff., at 6: DOT Ex.
CC.

Not satisfied with DOTs determination. NBBL administratively appealed: this appeal clarified that the documents sought by NBBL relating to methodology included records reflecting the method or plans for collecting
...

data or who collected it. DOT Ex. B13 (Gibson

Dunn 2/25/11 Letter to DOT, at 2). Based on this clarification, DOT produced more than 1,200 pages of additional responsive documents, including solicitation and contract documents relating to the methodology DOT used in evaluating the PPW Project. Jackson Aff.. at 7; DOT Ex. DD. (It should also be noted that in addition to the documents produced to NBBL in response to its FOIL request, DOT also produced nearly two hundred additional pages in response to a Data Request form submitted by Louise Hainline, the president of NBBL; these documents included summaries of accident statistics. See Am. Pet. Exs. 9
-

13, 28.)

The Jackson Affidavit establishes that DOT undertook a diligent search for documents responsive to the NBBL FOIL request. See Qavyam v. New York City Police Dept,
227 A.D.2d 188. 189 (1st Dept. 1996); Ahlers v. Dillon, 143 A.D.2d 225, 226 (2d Dept 1988);

see also Penningion v. McMahon. 234 A.D,2d 624 (3d Dept 1996). appeal denied, 89 N.Y.2d 816 (1997); Smith v. Capasso. 200 A.D.2d 502 (1st Dept 1994): Calvin K. v. Dc Francesco, 200 A.D.2d 619 (2d Dept), app. den., 83 N.Y.2d 756 (1994), Specifically, based on the contents of the request (that NBBL was seeking records relating to the bicycle lane on Prospect Park

West between Union Street and Bartel Pritchard Square), DOTs FOIL Lnit contacted the 34 Bicycle Program at DOT (which was responsible for the PPW Project) which provided the names of those at DOT responsible for the PPW Project. Potentially responsive documents were provided by both the Bicycle Program and the DOT Brooklyn Borough Commissioners office. Jackson Aff., at

5. DOTs Information Technology and Telecom Division also conduced a

search of c-mails of the DOT personnel identified as responsible for the PPW Project. Jackson Aff., at

5. In addition, DOTs Commissioners Correspondence Unit, which responds to

correspondence sent to the DOT Commissioner as well as submissions to DOT received via the internet or the 311 system, also conducted a search of responsive records. Jackson AfT., at 5.

Petitioners make a variety of allegations about the purported inadequacy of DOTs production of, all told, more than 3,000 documents relating to the PPW Project. For instance, petitioners claim that DOT did not produce any data on emergency response times, either pre- or post-installation. Am. Pet.

109. Petitioners claim is wrong; included in the

DOT Evaluation is data on traffic volumes (i.e. the number of cars using PPW) before and after the PPW Project installation, as well as data on the time that it took to travel the PPW corridor. DOT Ex. D, at

8 & 10. These both have an effect on the ability of emergency and non
Petitioners also claim that DOT did not

emergency vehicles to traverse the PPW corridor.

produce any studies it conducted before implementing the [PPW Project]. Am. Pet.

113.

Again petitioners apparently ignore the DOT Evaluation that lists the various data that DOT

DOT Ex. BB (Gibson Dunn 11/12/10 Letter to DOT, at 1).

36

collected before installation of the PPW Project. DOT Ex. D. See also DOT Ex. G (DOT 4/09 3 presentation that identifies pre-installation traffic volumes and traffic speeds). Petitioners also assert that DOTs description of the documents it withheld in whole or in part was inadequate: that claim also fails. In its March 2011 appeal determination, DOT explicitly set forth the types of documents withheld in whole or in part, and the applicable privilege. For instance. I)OT withheld certain documents pursuant to FOIL

89(2)(b). and

explained the type of documents that it was withholding in whole or in part: The documents withheld or redacted pursuant to this exemption consisted employee of correspondence, emails, draft planning documents and presentations that were deliberative in nature and did not contain final agency determinations, statistical or factual tabulations or data. DOT Ex. BB. Examples of the type of documents withheld are set forth in the Jackson Affidavit, paragraph 8
-

9. This level of detail provided by DOT was sufficient; indeed, DOT was not v.

required to itemize or identify each document that it withheld in whole or in part. Nab Sullivan, 125 A.D.2d 311,312 (2d Dept 1986).

Finally, petitioners complain about a recent FOIL request that they sent to New York City Councilmember Brad Lander, who is not even a party named in this proceeding. Am. Pet. I 118
-

120; Am. Pet. Ex. 55. For that reason alone, their claim as to that FOIL request

fails. More importantly, as the petitioners note, Councilmember Lander had not yet responded to this FOIL request. Am. Pet. 1120; Am. Pet. Ex. 56. If petitioners are not in the future satisfied with the determination to their FOIL request. petitioners will then be able to administratively

Given DOTs extensive experience developing bicycle routes. DOT did not conduct a formal pre-installation engineering study. Benson Aff.. at 12. fn 13.

appeal that determination; and only after their administrative appeal is decided may petitioners seek relief from a court, See N.Y. Public Officers Law

89(a)&(b). Consequently, even if all

the parties to this dispute were actually before the Court, any claim relating to this FOIL request is premature since petitioners have not yet exhausted their administrative remedies. $g

rneL,,yKleai, 48 N.Y.2d 486 (1979); Slater v. Gallman. 38 N.Y.2d 1, 4 (1977) (petitioners failure to pursue [its] administrative remedies is, of course, fatal to its claim.). See also People cx rd Cotton v. Rodriquez, 123 A.D.2d 338, 339 (2d Dept 1986) ([B]y having failed to exhaust its administrative remedies, the petitioner is barred from seeking relief under CPLR [A]rticle 78.) (citations omitted). CONCLUSION For the above-stated reasons, respondents respectfully request that the Court deny the petition and dismiss this proceeding in its entirety. Dated: New York, New York June3,2011 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street New York, New York 10007 (212) 44:

W. MUSCHENHEIM Assistant Corporation Counsel

38