Matter of Ortiz v Cooper Union for Advancement of Science & Art NY Slip Op 51733(U) Decided on August 8, Supreme Court, New York County

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1 [*1] Matter of Ortiz v Cooper Union for Advancement of Science & Art 2003 NY Slip Op 51733(U) Decided on August 8, 2003 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on August 8, 2003 Supreme Court, New York County In the Matter of the application of Roberto Ortiz-Arroyo, Stefa Charczenko, Mara Spiegel and Myron Surmach against The Cooper Union for the Advancement of Science and Art, City of New York, City Planning Commission and New York City Council /02 Sheila Abdus-Salaam, J. This is an Article 78 petition commenced by four residents who live "in close proximity to Cooper Union" (Petition, 10-13) challenging a determination by the City Planning Commission ("CPC") to approve the application of The Cooper Union for the Advancement of Science and Art ("Cooper Union") for a special permit to implement a general large-scale development ("GLSD") plan pursuant to Zoning Resolution section Cooper Union sought approval for the GLSD so that it could redevelop three sites on the Cooper Union campus that currently are the primary buildings used by the school for academic purposes. Those buildings are 51 Astor Place, which currently houses the [*2]Engineering Building; the Foundation Building (located on the south side of Astor Place between Third and Fourth Avenues), which currently houses the Architecture School, the Great Hall and administrative

2 offices; and the Abram S. Hewitt Building (located on Third Avenue between East 6th and 7th Streets), which currently houses the Art School. The application for a special permit was to "allow the distribution of community facility and commercial floor area without regard to zoning lot and district boundary lines, and modification of height and setback regulations in a General Large-Scale Development, known as the Cooper Union redevelopment plan."(september 3, 2002, CPC Decision and Report, p.1). The redevelopment plan would "facilitate a new consolidated academic building on a site located on Third Avenue between East 6th and 7th streets (the Hewitt Building site), and a commercial building on a site located on Astor Place between Third and Fourth avenues (the Engineering Building site)."(id.) Cooper Union's original application for a special permit for this plan was filed on March 25, 2002, and on July 1, 2002, it "filed a modification to the certified special permit application, proposing a reduction in the amount of floor area distributed and additional height and setback waivers on the Engineering Building site."(id.) In addition to the special permit application, Cooper Union made applications for an amendment to the Zoning Map to rezone an existing C6-1 District to a C6-3 District [FN1], to modify "a previous disposition of City-owned property to remove a restriction limiting the use of property consisting of the former bed of Stuyvesant Street to educational use" and to modify "a previous disposition of City-owned property to remove restriction limiting use of property to educational or philanthropic purposes."(id., p. 2). As was noted by the CPC in its September 3, 2002 Decision and Report, Cooper Union is a private, tuition-free school that was established in It has 950 students and offers degrees in architecture, art and engineering. (Decision and Report, p. 2-3). The project, which includes the redevelopment of two sites, would replace the Engineering Building built in 1959 "with a predominantly commercial building including space for Cooper Union on the first and second floors and below-grade, and retail uses to be located on the ground floor."(decision and Report, p. 5-6). The Hewitt Building would be replaced with a consolidated academic facility with ground floor space. "The project would include a total of 439,308 square feet of new floor area including 291,070 square feet of commercial space and 148,238 square feet of academic space for Cooper Union."(Decision and Order, p. 6). [FN2] [*3] A Draft Environmental Impact Statement ("DEIS") was issued on March 29, 2002 by environmental planning firm Allee King Rosen & Fleming, Inc.("AKRF"). According to AKRF's Vice President Linh Do, the DEIS was prepared in accordance with the

3 methodologies contained in the City Environmental Quality Review Technical Manual ("CEQR"), and the DEIS assessed the potential for the Cooper Union GSLD plan to result in significant adverse impacts on numerous environmental areas including land use, open space and recreational facilities, urban design and visual resources, traffic and parking, transit and pedestrians, noise and neighborhood character (January 17, 2003 Do affidavit, 9). The DEIS concluded that development of the original program, when compared with what could be developed with no discretionary approvals, would not result in any potential significant adverse impact in any of the environmental areas except for significant pedestrian impacts during peak hours at two locations. The DEIS identified measures to mitigate the pedestrian conditions at those locations (the widening of two crosswalks). After Cooper Union submitted a modified special permit application on July 1, 2002, a technical assessment of the proposed program modifications was done and it was concluded that the findings reached in the DEIS still applied. The technical assessment was incorporated into the Final Environmental Impact Statement ("FEIS") which was issued on August 23, The FEIS, as did the DEIS, "concluded that the modified plan would not increase the number of Cooper Union students, faculty and administration staff, and that the increase in the number of workers coming to the area compared to the 'no action' scenario would not exceed the 610 employees estimated in the DEIS for the larger, original plan. Accordingly, the FEIS concluded that the reduction in the proposed project would not result in any significant impact on the demand for community facilities and services."(do affidavit, 18). Subsequent to the issuance of the Notice of Completion for the FEIS, the plan for the project was further reduced in that the 51 Astor Place site was reduced from a maximum FAR of 8.9 to a FAR of 7.5. This revised plan for 51 Astor Place is similar to one of the plans for the site that was included in an alternative analysis contained in the FEIS (Do affidavit, 19). A second technical assessment was done concerning this modification, and that August 30, 2002 Technical Assessment concluded that there would be no new or different impacts than those disclosed in the FEIS for both the original and modified plans (id., 20). The CPC granted the special permit application and the City Council, pursuant to Section 197-d (b) (1) of the City Charter, passed a series of resolutions approving the CPC decision.

4 The amended petition challenging respondent's determination to approve the special permit application contains two causes of action. The first cause of action alleges that "[t]he failure of respondents to account for or provide a rationale for their failure to include a public facilities component in the GSLD was an arbitrary and capricious abuse of discretion in violation of lawful procedure."(amended petition, 67). The second cause of [*4]action alleges that "[t]he approval by the municipal respondents of the ULURP [The Uniform Land Use Review Procedure] application in this proceeding, was an arbitrary and capricious abuse of discretion by virtue of the City's ownership of Hewitt Building. Cooper Union is not the fee owner of the entire tract of land that is the subject of this GSLD special permit application, therefore, the ULURP certification herein is a nullity."(amended petition, 69). Regarding the first cause of action, petitioners claim that "[t]he increased square footage, height, density and change of use of the Engineering Building and Hewitt Building will have a significant impact upon the traffic, public facilities servicing the area, congestion, community resources, demographics, historical character, light, air and aesthetics of the neighborhood"(amended petition, 43, emphasis in the original), and that the CPC failed to require Cooper Union to include plans in the GSLD to increase public facilities. In opposition to the amended petition, respondents assert that Zoning Resolution (b) (5) requires that the applicant submit a plan for additional public facilities only when the CPC has determined that the GSLD requires significant addition to existing public facilities, and the CPC determined that there would be no significant impact on public facilities in connection with this GSLD. As for the basis of that determination, respondents point to the finding included in the FEIS, that there would be no significant adverse impact on environmental areas other than pedestrian crossings. Respondent CPC also notes that petitioners did not submit any substantive challenge to the findings of the FEIS during the SEQR review process, nor have they offered such proof in support of this proceeding. As is pointed out by respondent Cooper Union, although petitioners allege that the FEIS forecasts an increase of 609 employees to the community, resulting in an additional demand for water and disposal of solid waste, petitioners fail to acknowledge that the DEIS and FEIS assessed these effects and determined that there was adequate capacity to meet these increased demands. The determination of the City respondents regarding environmental review issues may only be annulled if it is not rational, and "[a] flexible standard of review, allowing considerable latitude for the exercise of discretion by the responsible administrative agency or governmental body, is particularly appropriate for the assessment of the environmental

5 consequences of a project, which frequently involves technical and scientific issues more properly entrusted to the expertise of an agency, rather than to a court of general jurisdiction."(aldrich v. Pattison, 107 AD2d 258, 267; see also Chinese Staff & Workers Assn. v. City of New York, 68 NY2d 359, ). Petitioners have failed to demonstrate that the City respondents' determination should be disturbed. Nor have petitioners demonstrated any merit to their second cause of action which addresses the ownership of the Hewitt Building. As is pointed out by respondents, the City of New York is the fee owner of the land under that building, and it has executed a "waiver of declaration" as a "party in interest"(zoning Resolution 12-10(d)). Respondents note that Zoning Resolution provides that "actual ownership"of a parcel includes "alternate ownership arrangements" that allow a parcel to be included in a GSLD application as long as there is consent by all "parties-in-interest", or a waiver of their [*5]rights. There is no dispute that Cooper Union, and the City, the only "parties-in-interest" complied with alternate ownership arrangement procedures set forth in the Zoning Resolution. Petitioners' motion for leave to amend its amended petition to add a third cause of action alleging that respondents failed to consider the environmental impact of a proposed 22 story mixed use building at 26 Astor Place, and that the failure to consider the cumulative effect of the related projects violated SEQRA, is denied. In his affirmation in support of the motion to amend the petition, counsel refers to a December 23, 2002 application that was filed by Cooper Union with the New York City Board of Standards and Appeals to develop a 22-story mixed use building located at 26 Astor Place, which is currently a public parking lot. He asserts that "[n]othwithstanding that this development has been in the planning stage for five years, the development was intentionally omitted from the FEIS considered by the New York City Council in approving the Zoning Map Change and GSLD on October 23, 2002"(Lester affirmation, 10); that the City Council could therefore not consider the land use implications of this development as it impacted upon the GLSD, and that "[t]he omission of this development from the FEIS constitutes impermissible segmentation in violation of the New York State Environmental Review Act ("SEQRA")***"(id. 12). In opposition to this motion for leave to amend, respondents have demonstrated the lack of merit to this proposed new claim. Firstly, although petitioners claim that the development

6 of the parking lot location was intentionally omitted from the FEIS, as is pointed out by respondents, both the DEIS and the FEIS addressed the development of the 26 Astor Place site. The DEIS notes that "[t]he future use of this site has not yet been determined, and Cooper Union has issued a Request for Proposals for this site. The potential development options include either an approximately 146,371-gsf commercial building, a 143,176-gsf combined commercial and residential building, a 159,696-gsf hotel with a plaza, or a 135,959- gsf community facility building. Depending on the development selected for the site, a Board of Standard and Appeals action may be sought to permit retail, hotel or residential use in the area of the site currently zoned M1-5, which encompasses 4,544 square feet of the 17,729 - square-foot total lot area. Although the site is adjacent to the project area, it lies outside the GSLD plan boundaries and is not part of the proposed development."(executive Summary, p. S-9). Additionally, Chapter 17 of the FEIS addressed and analyzed, at length, the alternatives for redevelopment of 26 Astor Place. Thus, there is no basis for petitioners' claim that the development of this site was intentionally omitted from the FEIS. Nor have petitioners demonstrated that there is any merit to their claim that SEQRA has been violated in that there has been a division, or segmentation of the environmental review for various stages of a plan or of integrated, complementary plans (see generally Village of Westbury v. Department of Transp., 75 NY2d 62, 69). Both the DEIS and the FEIS treated the development of 26 Astor Place as separate and apart from the GLSD. As is pointed out by Cooper Union, the separate projects are in no way dependent on one another, and unlike the GSLD, the development of 26 Astor Place does not contemplate any educational or other use by Cooper Union. The GSLD plan and the plan for 26 Astor Place appear to be distinct and to have independent utility from one [*6]another. Thus, there has been no showing by petitioners that there is merit to their claim that SEQRA has been violated. In view of petitioners' failure to make some showing that the proposed new claim has merit, the motion for leave to amend is denied (see Mansell v. City of New York, 304 AD2d 381; Morgan v. Prospect Park Associates Holdings, L.P., 251 AD2d 306). Accordingly, the petition is denied. ADJUDGED that this proceeding is dismissed. Dated ENTER:

7 J.S.C. Check one: FINAL DISPOSITION NON-FINAL DISPOSITION Footnotes Footnote 1:The C6-1 zoning district allows a maximum residential floor area ratio (FAR) of 3.44, commercial FAR of 6.0 and community facility FAR of 6.5. The C6-3 zoning district allows a residential FAR of 7.5, commercial FAR of 6.0 and community facility FAR of (CPC Decision and Order, p. 4). Footnote 2:The original redevelopment plan included a total amount of 479,308 square feet of new floor area. However, the modified application, which was submitted "to respond to issues raised by the Joint Community Board 2 and 3 Cooper Union Task Force, Community Board 3, and the Borough President", reflects an overall reduction of 40,000 square feet. (Decision and Report, p. 6).