Opinion
Index No. 080170/15
03-28-2016
In the Matter of the Application of LIOR AZULAY and LEOR FRIEDMAN Petitioner(s), For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules and for Other Relief, v. THE CITY OF NEW YORK, THE CITY PLANNING COMMISSION OF THE CITY OF NEW YORK, THE DEPARTMENT OF CITY PLANNING OF THE CITY OF NEW YORK, GGP STATEN ISLAND MALL, LLC, MACY'S RETAIL HOLDINGS, INC., and J.C. PENNEY CORPORATION, INC., Respondent(s).
DECISION AND ORDER Motion No. 4089-001
The following papers numbered 1 to 7 were fully submitted on the 14th day of January, 2016.
| PapersNumbered | |
| Notice of Amended Verified Petition and Amended Verified Petition by LIORAZULAY and LEIO FRIEDMAN, with Memorandum of Law and Exhibits(dated November 2, 2015) | 1,2 |
|---|---|
| Verified Answer by Respondents THE CITY OF NEW YORK, THE CITY PLANNINGCOMMISSION OF THE CITY OF NEW YORK, and THE DEPARTMENT OFCITY PLANNING OF THE CITY OF NEW YORK, with SupportingPapers, Memorandum of Law, and Exhibits(dated December 18, 2015) | 3,4 |
| Verified Answer by Respondents GGP STATEN ISLAND MALL, LLC, MACY'SRETAIL HOLDINGS, INC., and J.C. PENNEY CORPORATION, INC.,with Supporting Papers, Memorandum of Law, and Exhibits(dated December 18, 2015) | 5,6 |
|---|---|
| Reply Affirmation of Petitioners, with Memorandum of Law,and Exhibits(dated January 11 and 12, 2016) | 7 |
In a proceeding pursuant to CPLR Article 78, petitioners seek to vacate and annul certain zoning approvals granted by THE CITY PLANNING COMMISSION OF THE CITY OF NEW YORK, enabling the proposed expansion of the Staten Island Mall.
The application is denied and the proceeding is dismissed.
In the instant proceeding, petitioners LIOR AZULAY and LEOR FRIEDMAN (hereinafter "petitioners"), seek to overturn a determination by THE CITY PLANNING COMMISSION OF THE CITY OF NEW YORK (hereinafter, the Commission), which granted two zoning applications by the non-municipal respondents, in effect, authorizing the proposed expansion of the Staten Island Mall by (1) permitting a reduction in the number of available accessory parking spaces, and (2) allowing the construction of a multilevel parking facility to replace most of the accessory parking spaces to be eliminated as part of the proposed expansion. According to petitioners, the authorizations granted by the Commission substantially increasing the size of the Mall, while simultaneously decreasing the total number of available parking spaces, was arbitrary and capricious, devoid of a rational basis, and an abuse of discretion under CPLR 7803(3).
By way of background, the proponents of expansion, respondents GGP STATEN ISLAND MALL, LLC, MACY'S RETAIL HOLDINGS, INC., and J.C. PENNEY CORPORATION, INC. (hereinafter, "the developers"), have put forth a plan for the addition of approximately 426,576 square feet of, e.g., retail space, to the Staten Island Mall, which is located at 2655 Richmond Avenue on Staten Island. As approved, the plan would allow for (1) an expansion of the existing Macy's Department Store, (2) the construction of both a cinema and a supermarket; and (3) an enlargement of the existing common, service and receiving areas. In order to make room for the above expansion, the developers propose to remove approximately 1780 of the existing parking spaces (a purported 30 percent decrease in available accessory parking), and construct a multi-level parking facility with a capacity of 1413 parking spaces to replace most but not all of the parking that would be lost in the expansion. As a result, petitioners maintain that the proposed project will result in a 35 percent increase in the size of the Mall from 1,228,814 gross square feet of retail space to 1,655,390 gross square feet, while reducing by 367 the number of accessory parking spaces available to shoppers. According to petitioners, this proposal not only fails to comply with the applicable zoning regulations, but would replace only 79.5 percent of the 1780 parking spaces to be lost to expansion. As a result, the approved plan will create a substantially larger Mall with less available parking than at present. According to petitioners, this reduction in available accessory parking for a 35 percent larger Mall is, e.g., irrational.
The Staten Island Mall is located in a C4-1 zoning district and is designated, for zoning purposes, as a "regional commercial center in an outlying area". Under the present zoning resolution, a multilevel parking structure in C4-1 zoning district must meet certain parameters, among them, that the parking facility contain a minimum number of parking spaces relative to the gross square feet of commercial space (ZR §36-21), and that those parking spaces be located and arranged so as to provide for the adequate flow of traffic (ZR §36-023).
With regard to available parking, ZR §36-21 requires (1) at least one accessory parking space for every 150 square feet of floor area devoted to retail/service use; (2) at least one accessory parking space for every 100 square feet of floor area ear-marked for supermarket uses; and (3) at least one accessory parking space for every four cinema seats. Thus, under ZR §36-21, the proposed expansion would require a total of 10,438 accessory parking spaces. However, the developers maintain that the availability of only 5,477 parking spaces (a 47.5 percent reduction from the amount of parking required under ZR §36-21), will be sufficient. In this regard, reliance is placed on ZR §36-023, which provides that a developer may receive an exemption from the minimum parking requirement with the approval of the City Planning Commission, provided that the Commission finds that the applicant can demonstrate the adequacy of the number of available parking spaces in its proposal. As a result, the planned expansion could not go forward without the Planning Commission having found that a total of 5,477 accessory parking spaces is sufficient to service the expanded Mall, a finding which petitioners claim is unsustainable.
With regard to the issue of "traffic flow", ZR §36-023 also requires that the available accessory parking be developed in a manner that will allow for an adequate flow of traffic, i.e., that the layout of the new parking facility be arranged and located in relation to the intended uses to provide adequate ingress, egress and circulation relative to the abutting streets or uses. Thus, it is claimed that the above exemption also requires the Commission to find that the proposed new parking structure and the spaces available therein will not obstruct, e.g., traffic circulation in the adjacent area, a conclusion that petitioners again challenge as irrational, arbitrary and capricious.
Finally, petitioners contend that before deciding on whether or not to grant the subject authorizations, the City was bound by various regulations, including the State Environmental Quality Review Act (hereinafter SEQRA) and, more specifically, New York City's Environmental Quality Review protocol (CEQR), which sets forth the process for implementing SEQRA within the City of New York (hereinafter, The City). Until the lead agency has fully complied with the procedures required by the foregoing, petitioners maintain that the Commission and the City are prohibited from taking any discretionary action that may have a significant adverse impact on the environment.
ECL 8-0101, et seq., see also 6 NYCRR Part 617.
62 RCNY §§5-01, et seq.
Relative to the current application, petitioners appear to be focused on (1) the availability of sufficient parking at the expanded Mall, (2) its effect on traffic and air quality; and (3) the adequacy of the Environmental Impact Statement (EIS) required by CEQR and relied upon by the Commission. In brief, petitioners argue that it has allowed the developers a 47.5 percent deviation from the minimum parking requirements set forth in ZR §36-21, and that the foreseeable increase in the number of shoppers and their vehicles visiting the expanded Mall will, of necessity, overwhelm the reduced available parking given the size of the exemption granted under ZR §36-023. According to the petitioners, additional traffic congestion will diminish the air quality in the surrounding area, to the detriment of neighborhood residents. Petitioners, who live, respectively, within one-tenth and 2.5 miles of the Staten Island Mall, further argue that they will suffer direct harm from the substantial increase in exhaust fumes, traffic and pedestrian congestion that is sure to follow the proposed expansion.
In support of, e.g., vacatur, petitioners rely, in pertinent part, on the expert affidavit of an engineer, Paul B. Going, who opines that the City's adoption of the Environmental Impact Statements (EIS) prepared by the developers constitutes a violation of its obligations under SEQRA and/or CEQR. In this regard, it is claimed that the developers' EIS (1) suffers from flawed methodology; (2) is lacking in sufficient analysis; (3) fails to take the required "hard look" at the potential adverse environmental impact of the project; and (4) improperly concludes, based on this flawed EIS, that no additional analysis is required into the effect of this proposed expansion on the environment. In so doing, he alleges that the Commission arbitrarily and capriciously approved the project and granted the zoning authorizations without a rational basis.
Relative to the approval process, the preparation of an initial or "Draft" EIS (DEIS) is intended to provide, e.g, the lead agency, with (1) detailed information about the effect which the proposed action is likely to have on the environment, (2) a list of ways in which such adverse effects might be minimized, and (3) tender alternative suggestions to the contemplated action in a manner sufficient to inform its decision on whether or not to approve a proposal. More particularly, it has been suggested that the DEIS should include, inter alia, a complete description of the proposed action, the foreseeable environmental impact thereof; any adverse environmental effects which cannot be avoided if the proposal is implemented, alternatives to the proposed action; and any measures that might be taken to minimize those adverse environmental impacts. Once the DEIS is approved and completed, a Final EIS (FEIS) can be prepared.
Here, petitioners contend that the Commission failed to comply with the substantive requirements of the CEQR protocol in reaching its decision to grant authorizations to expand the Mall, by adopting and approving the DEIS prepared by the developers, which, as indicated above, is claimed to be founded on flaws in, e.g., methodology, the selection of data collection dates and practices, and inaccurate analyses of the data collected. As opined by petitioner's expert, unreliable data leads to unreliable testing and analysis and, ultimately, to flawed conclusions.
A similar argument is made with respect to the Commission's adoption and approval of the FEIS prepared by the developers.
Pertinent to these criticisms, the expert noted that much of the parking data collected by the proponents of expansion took place in the weeks immediately following Hurricane Sandy, which would have atypically affected the normal parking utilization data and patterns of use for the Staten Island Mall. In addition, he claims that the days of the week chosen to survey parking utilization were unreliable, as they did not include the busiest days of the week, such as Friday and Saturday. Purportedly, the data, which was collected on Wednesday, Thursday and Saturday, was therefore unrepresentative. Moreover, the analysis thereof in the developers' DEIS is claimed to omit the SEQRA and/or CEQR requirement of a "reasonable worst case development scenario", which is intended to provide the decision-makers with more accurate data on foreseeable adverse environmental impacts. Also flawed, according to petitioners' expert, was the failure to consider "peak" parking utilization at the Mall. As opined, any determination based on an "average" car count is unreliable and unrepresentative of the sufficiency of parking capacity during, e.g., holiday periods, when a shortage of available parking is more likely to manifest itself in the form of delays and traffic congestion in the Mall and surrounding area, purportedly resulting in a significant negative impact on air quality in the adjacent areas. Accordingly, it is claimed that the developers' failure to consider "peak" parking utilization rendered the Commission's acceptance of the adequacy of the planned reduction in available parking formulated by the developers fatally flawed, as it underestimates the need for additional parking during peak utilization periods such as holidays. As a result, the developers' analysis of the parking necessary once expansion is complete is alleged to be unreliable. Additional criticisms are leveled at the developers' use of aerial photography and trip generation counts and projections, which are claimed to be invalid for purposes of calculating parking utilization.
Finally, petitioners' expert challenges the conclusion reached in their FEIS that a detailed analysis of available bus service was not warranted. To the contrary, he maintains that (1) the trip generation numbers used to determine projected bus trips to the Mall were underestimated, (2) the data collection performed was "skewed", as it was not restricted to buses entering and exiting the Mall, and (3) the matrix used to provide trip projections was unreliably based on a 1999 Environmental Assessment Statement used for a different shopping center, i.e., the expansion of the Hylan Plaza Shopping Center. According to the expert, the Hylan Plaza Shopping Center and the Staten Island Mall are very different commercial locations with very different needs, problems and characteristics.
In conclusion, he opines that a bus service analysis should have been conducted because it is foreseeable that the planned expansion will generate additional one-way bus trips to the Mall, which petitioners' projections demonstrated could easily require 142 or more additional one-way bus trips on Saturdays during peak hours. Also questioned is the "assumption" in the FEIS that the four existing Saturday bus routes would absorb the expected increase in patronage equally. According to petitioners' expert, without surveys and the collection and analysis of rider ship data, the assumption that the proposed expansion will have no significant impact on bus service is baseless. For all of these reasons, petitioners argue that the zoning approvals granted in this case were unwarranted and inappropriate.
In opposition, the developers argue the Commission granted their application permitting a reduction in the number of additional parking spaces required post-enlargement under ZR §36-023 only after an extensive environmental review and approval of their draft FEIS, wherein the impact of the proposed enlargement on the environment was fully considered, as were the transportation and parking needs to be generated by the planned expansion.
Moreover, the developers attack petitioners' application as nothing more than an inappropriate, last-minute and desperate plea for judicial intervention. In this regard, they argue that these petitioners never voiced their concerns during the extensive public hearings and environmental review processes that preceded the approval of their application. Consequently, they maintain that petitioners may not now be heard to voice objections which they never raised during the administrative and other proceedings during which public opinion, both positive and negative, was solicited, aired and evaluated.
The developers further argue that petitioners similarly eschewed multiple opportunities to voice their concerns regarding the methodology employed in the preparation of the environmental review statements. In support, the developers rely on a plethora of cases holding that, e.g., public concerns regarding environmental and/or zoning changes must be raised during the administrative process, including the pursuit of any available administrative appeals, before petitioning the courts for relief (see CPLR 7801[1]; see Miller v. Kozakiewicz, 300 AD2d 399, 400; Matter of Village of Tarrytown v. Planning Bd. of Vil of Sleepy Hollow, 292 AD2d 617, 620). Only in this manner, can agencies reliably exercise their expertise in evaluating and/or addressing public concerns regarding matters that are pending before them. In addition, it is claimed that, for much the same reasons, petitioners should not now be heard to challenge the procedures employed in this case, including (1) the preparation of the Draft and Final Environmental Impact Statements, (2) observance of the protocols set forth in the CEQR Technical Manual, and (3) their adherence to the regulations regarding, inter alia, the environmental consequences of the proposed action, under SEQRA and/or CEQR. As the Court of Appeals has explained: "[t]he EIS process is designed as a cooperative venture, the intent being that an agency have the benefit of public comment before issuing a FEIS and approving a project .... [When viewed thusly,] permitting a party to raise a new issue after issuance of [,e.g.,] the FEIS or approval [of a project] .... has [great] potential for turning [such] cooperation into [an] ambush" (Matter of Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 427). As if determined to prove the opinion in Matter of Jackson correct, notwithstanding petitioners' failure to avail themselves of the extensive public review process during which they had multiple opportunities to voice, in particular, their environmental concerns, it was not until the FEIS had been adopted and the authorizations granted, that petitioners raised objection to the environmental review process underlying the conclusions reached. In this connection, the developers argue that to sanction this irregular procedure would allow petitioners and their like-minded brethren, to subvert the entire public review process, delay the decision-making, and increase the cost of compliance with, e.g., SEQRA, to the detriment of the City, the project's sponsors and, ultimately, the public at large.
In addition, the developers note that the environmental review performed in this case was properly conducted in accordance with SEQRA and/or CEQR, as well as the regulations implementing such. More specifically, they note that procedurally, the lead agency, the City's Department of City Planning (DCP), was properly cast in the role of coordinating the environmental review of the proposed expansion of the Mall and identifying any adverse environmental consequence that might result from that expansion. In order to facilitate the review, the developers engaged AKRF, INC. and Philip Habib Associates (PHA), as environmental consultants to work closely with the DCP and the City's Department of Transportation (DOT) to collect and analyze the data required
Here, in strict compliance with the CEQR Technical Manual, an Environmental Assessment Statement (EAS) was initially prepared, and following a "Positive Declaration" thereon, an Environmental Impact Statement (EIS) was prepared by the developers (1) describing any adverse environmental impacts identified in the EAS; (2) indicating the measures that could be taken in an effort to mitigate or minimize those impacts; (3) setting forth any alternatives to the proposed action, and (4) outlining the likely environmental impacts of any viable alternatives. Moreover, prior to the EIS being drafted, a Draft "Scope of Work" was prepared as required by CEQR, and presented to the public, in which the topics to be addressed in the EIS were identified, the methods of analysis to be used were disclosed, and possible alternatives to mitigate or eliminate any significant adverse environmental impacts attributable to the proposal were posited. In this case, a public meeting was held for this purpose on July 24, 2014. However, petitioners did not attend, and the agency did not receive any public comments, whether positive or negative.
Subsequently, a Draft Environmental Impact Statement (DEIS) was prepared by the developers in consultation with the DCP and DOT, that was also made available for public inspection. During this phase, Philip Habib Associates (PHA), the developers' environmental consultant, handled the data collection, analysis and drafting of the DEIS, which contained a comprehensive environmental review as required by the CEQR Technical Manual. Based thereon, the parking and public transportation alternatives were analyzed, after which the conclusion was reached that the proposed expansion would provide sufficient parking, and that sufficient bus service would be available during post-expansion peak periods to adequately serve the public. Additionally, the accuracy of these conclusions was confirmed via supplemental data collection and analysis that was performed during 2012 and 2013.
In further support, the developers note that after the DCP reported completion of the DEIS, another public hearing was noticed; a Community Board Hearing was held on their application, and a positive vote was recorded in favor of expansion. Again, neither of the petitioners attended either hearing. Following this additional opportunity for participation by the public, comments and clarifications were received and adopted, after which a Final Environmental Impact Statement (FEIS) was prepared. A Notice of Completion was subsequently issued, and another public hearing was held at which the Commission's Statement of Findings was released and adopted. According to the developers, the Commission found that the proposed action was consistent with its social, economic and other essential considerations; avoided or minimized the adverse environmental impacts of expansion to the maximum extent practicable; and was rational and well reasoned.
Having thus demonstrated their statutory compliance, the developers note that petitioners' disagreement with the conclusions reached in no way proved that the respondents did not take the required "hard look" at the evidence before rendering a decision, nor is this a sufficient reason to disregard the governmental agency's expertise in rendering a determination.
The developers also note that the court's role in reviewing agency action under CPLR 7803(3), is not to determine whether the agency was correct, but rather to determine whether the action taken by the agency was irrational, arbitrary or capricious. More to the point, in litigation challenging a determination made under, e.g., SEQRA and/or CEQR, the issues reserved for judicial review are limited to determining whether a lead agency: (1) identified the relevant areas of environmental concern, (2) took a "hard look" at those areas, and (3) made a reasonable elaboration of the basis for its determination (see Dryden v. Matter of Town of Tompkins County Bd. of Representatives, 78 NY2d 331, 333; cf. CPLR 7803[3]).
Here, the developers again argue that the relevant areas of environmental concern were properly identified, a hard look was taken at these areas of concern, and the basis of the determination was reasonably elaborated in the FEIS adopted and approved by the Commission. More particularly, in compliance with the CEQR Technical Manual, the utilization of available parking spaces was assessed and a traffic pattern established for the Mall during normal business hours. As a result, a baseline number was created, allowing additional counts of vehicular traffic to be made for purposes of comparison. According to the developers, all of the data was collected on the "peak days" identified by petitioners' expert, and evaluated in accordance with the methods set forth in the CEQR Manual, which was also used in projecting the expected increase in the demand for parking following the proposed enlargement. Additional data was obtained by their environmental consultants from approved outside sources, which, when taken together the results of their manual count and evaluated as set forth in the Manual, led to the conclusion that the post-expansion on-site parking would be sufficient to accommodate the projected needs of a larger mall, with no significant adverse impact on the environment.
In addition, similar data was collected and analyzed by their environmental consultants with regard to bus service, which properly included previously-accepted data from environmental review documents prepared for other, similar projects throughout the City with similar travel characteristics. Here, again, although the projected data demonstrated that Mall expansion would result in increased bus trips during peak hours, the projected increase was expected to be evenly distributed among the four bus routes servicing the Mall, and that the anticipated increase in rider ship would not exceed the maximum number of riders per bus. Thus, it was concluded that no further analysis was warranted.
Finally, the developers at bar stress that the only disagreement between their consultants and petitioners' experts concerns the methodologies used and conclusions reached by the DCP. However, there is no proof that petitioners' expert made any independent studies to refute the DCP's well-reasoned and rational findings. In the absence of same, the opinions and conclusions reached by petitioners' expert are claimed to be speculative in nature and entitled to little evidentiary weight.
On the question of standing, the developers maintain that petitioners have failed to demonstrate that they will be exposed to any direct environmental injury that (1) is different from that of the public at large, and (2) comes within SEQRA's protected zone of interest. Not only are petitioners' generalized, unsupported arguments regarding traffic congestion and inadequate parking insufficient to establish standing, but the allegation of proximity by at least one of the petitioners, who claims to live 2.5 miles from the Mall, is insufficient to bring said individual within the relevant zone of interest.
In its opposition papers, the City maintains that petitioners are barred from raising their concerns for the first time in a court of law, because any objections to an agency's determination must first be raised on administrative appeal. Accordingly, it is claimed that petitioners have failed to exhaust their administrative remedies (see CPLR 7801[1]). In addition, the City notes that petitioners had multiple opportunities to challenge the issues now brought before this Court, but failed to do so. As a result, they cannot now be heard to raise concerns which should have been raised during the lengthy public environmental review process.
In addition, the City notes that it is well settled that judicial review of an agency's compliance with SEQRA and/or CEQR is quite limited (see Dryden v. Matter of Town of Tompkins County Bd. of Representatives, 78 NY2d at 333), as it is (1) barred from substituting its judgment for that of an agency; (2) re-assessing the desirability of the action approved; or (3) selecting an alternative course of action. In brief, administrative agencies have been accorded considerable latitude under SEQRA to evaluate, e.g., any adverse environmental effects and to choose among alternatives. Moreover, it notes that not every conceivable environmental impact, mitigating measure or alternative must be addressed in the DEIS or FEIS in order to satisfy the agency's statutory responsibility. The City further argues that any challenge based on a disagreement with the methodologies or conclusions reached by a reviewing agency must be raised through competent evidence, such as empirical studies, and must be so significant as to render the agency's determination unsustainable. Here, no such evidence has been adduced. Neither has it been shown that the FEIS prepared by the developers and adopted and approved by the Commission fails to comply with any of the procedural and substantive requirements under SEQRA and/or CEQR, as memorialized in the CEQR Technical Manual. As therein provided, the relevant agencies identified and assessed the potential environmental effects of and/or alternatives to, the proposed action before, e.g., approving same. Thus, the City contends that its environmental review clearly met the "hard look" standard ingrained in the pertinent case law; and that the FEIS thoroughly and properly relied appropriately on the methodologies set forth in the CEQR Technical Manual for analyzing the data collected.
Apropos the individual petitioners, the City argues that LEOR FRIEDMAN lacks standing to bring this petition, since he lives 2.5 miles from the Mall and cannot demonstrate that he will suffer any direct, specific environmental injury that is different from the hardships, if any, suffered by the public at large. In any event, geographical proximity to the Mall is alone insufficient to confer standing in a case of this nature.
Finally, the City claims that petitioners have failed to establish that the information which they seek to obtain through additional discovery is material or necessary to support their challenge. In any event, the documents requested by petitioners were provided expeditiously in response to their FOIL requests, thereby negating any claim of delay. Hence, dismissal is unwarranted based on the timing of the exchange of documents.
In Article 78 proceedings, "the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact ... [and has] no right to review the facts generally as to [the] weight of evidence, beyond seeing to it that [it] is substantial" (Cohen and Karger, Power of the New York Court of Appeals, §108, p 460 [internal quotation marks omitted]; 1 NY Jur., Administrative Law, §§177, 185). Neither may the courts interfere with an exercise of discretion by an administrative agency, so long as a rational basis for the exercise of its discretion, or the action complained of is contrary to law, arbitrary or capricious (see CPLR 7803[3]; cf. Matter of Colton v. Berman, 21 NY2d 322, 329).
The substantial evidence standard applies solely to matters in which an evidentiary hearing is required (see CPLR 7803[4]), and is therefore inapplicable to the case at bar (cf. CPLR 7803[3]).
As previously observed, it has been held that judicial review of the lead agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination "was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803[3]; Akpan v. Koch, 75 NY2d 561, 570). In applying this standard of review, it is not the role of the court to weigh the desirability of the proposed action; to choose among alternatives; to resolve disagreements among experts; or to substitute its judgment for that of the agency (see Matter of Fisher v. Giuliani, 280 AD2d 13, 19-20). Rather, in assessing an agency's compliance with the substantive mandates of the statute, judicial review is limited to a determination of whether the lead agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination (see Akpan v. Koch, 75 NY2d at 570; Jackson v. New York State Dev. Corp., 67 NY2d at 417).
It is the opinion of this Court that the proof before it indicates that respondents conducted an extensive environmental review of the potential impacts of the enlargement of the Staten Island Mall, as mandated by SEQRA and CEQR, including both its anticipated effect on parking and public transportation. Thus, there is extensive evidence indicating that the relevant areas of environmental concern, e.g., the expansion's impact on available parking and bus service, were specifically identified by the lead agency, and that copious data was collected and analyzed in accordance with, inter alia, the procedures required under SEQRA as set forth in the CEQR Technical Manual. Moreover, it has been demonstrated to the satisfaction of this Court, that the conclusions reached - each of which was adequately supported by data analysis - provide a rational basis for the City's conclusion that on-site parking at the Mall will be adequate to accommodate the planned expansion, and will not result in any significant adverse environmental impact. While petitioners' expert disagrees with the methods used to obtain and analyze this data, it is not the role of the Court in proceedings such as this, to resolve technical disagreements among experts (see Matter of Chinese Staff & Workers' Assn. v. Burden, , 88 AD3d 425, 429). More importantly, however, the opinions expressed by petitioners' expert do not appear to be based on any contradictory empirical studies, as opposed to his personal disagreement with the methods utilized by respondents.
Similarly with regard to the issue of bus service, the information respecting the utilization of public transport to access the Mall was obtained from existing bus service data generated by the MTA, as well as the data available from other similar projects undertaken throughout the City. Pertinently, the use of such data is both sanctioned and in accordance with the regulations set forth in the CEQR Technical Manual. Based on this data, the projections made regarding the effect of the proposed expansion on public transportation support the conclusion that no significant adverse impacts on bus service will result. Again, there is no proof that the analysis conducted by respondents was irrational, fatally flawed, or the product of the failure to take a hard look at the evidence (see Matter of Jackson v. New York State Urban Dev. Corp., 67 NY2d at 417-418). On the other hand, the contrary opinions of petitioners' expert are conclusory in nature, and insufficient to rebut the findings of respondents' environmental consultants. In short, petitioners' disagreement is lacking in evidentiary support.
In brief, the claims made by these petitioners are based on their lack of a clear understanding of the purpose of the FEIS, and their disagreement with the conclusions reached. However, the FEIS in issue was thorough and comprehensive, and included an extensive review of the anticipated effect of the proposed expansion on transportation, including analyses of the volume of vehicular traffic, parking conditions, and the adequacy of public transportation, all of which was supported by an extensive array of data collected during peak shopping periods for two consecutive years. Among the data relied upon were traffic counts, aerial photos and surveys, including data collected following Hurricane Sandy, which turned out to be substantially similar to that collected one year later. Accordingly, petitioners' claim that this data was misleading has been substantially rebutted. Moreover, the empirical data collected at bar was analyzed in accordance with the methodologies contained in the CEQR Technical Manual, thereby providing the City with a rational basis for its findings. In response, the petitioners have presented this Court with no evidence that would invalidate the data collection methodologies used or analyses performed in reaching the conclusions elaborated in the FEIS.
On the issue of standing, it is the opinion of this Court that petitioners have failed to demonstrate that they have a legal right to maintain this proceeding. In particular, there is no proof that they will suffer any sort of injury separate and apart from the public at large insofar as the expansion of the Mall is concerned (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 769, 772-779). Neither is any claim that they live in close proximity to the Mall sufficient, by itself, to establish standing under SEQRA (id.; see Matter of Gernatt Asphalt Prods, v. Town of Sardinia, 87 NY2d 668, 687-688).
Finally, it is worth repeating that petitioners had multiple opportunities to participate in the review and comment process prior to the approval of the developers' request for expansion, as multiple public hearings that were held prior to the granting of final approval. Having failed to avail themselves of the opportunity to do so, petitioners may not now be heard for the first time to assert their objections (see Aldrich v. Pattison, 107 AD2d 258, 268).
Accordingly, it is
ORDERED that the petition is denied and the proceeding is dismissed; and it is further
ORDERED that the Clerk enter judgment in accordance herewith.
ENTER,
/s/ Philip G. Minardo
J.S.C. Dated: March 28, 2016