Opinion
Index No.: 14159/2012
12-10-2012
In the Matter of the Application of CONEY-BRIGHTON BOARDWALK ALLIANCE, an unincorporated association, ROBERT BURSTEIN, IDA SANOFF, ARLENE BRENNER, BRUNILDA FIGUEROA, FRIENDS OF THE BOARDWALK and TODD DOBRIN, Petitioners, For Judgment Pursuant to Article 78 and Section 3001 of the Civil Practice Law and Rules v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Respondent.
At an IAS Term, Part 38 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 10th day of December 2012 PRESENT:
HON. ,
Justice.
DECISION & ORDER
Recitation, as required by C.P.L.R. 2219(a), of the papers considered on the review of this motion
+---------------------------------------------------------------------------------------+ ¦PAPERS ¦NUMBERED ¦ +--------------------------------------------------------------+------------------------¦ ¦Notice of Petition, Verified Petition and Affidavits Annexed ¦1, 2, 3, 4, 5, 6, 7, 8 ¦ +--------------------------------------------------------------+------------------------¦ ¦Answering Affidavits ¦9 ¦ +--------------------------------------------------------------+------------------------¦ ¦Amended Verified Answer ¦10 ¦ +--------------------------------------------------------------+------------------------¦ ¦Memorandums of Law ¦11, 12, 13 ¦ +---------------------------------------------------------------------------------------+
Upon the foregoing cited papers, the Decision/Order on the petition is as follows:
Petitioners commenced this hybrid proceeding pursuant to Article 78 of the Civil Practice Law and Rules seeking to prevent the respondent from implementing their project to repair and replace a section of the Riegelmann Boardwalk in the Coney Island section of Brooklyn without an environmental impact statement. In the alternative, petitioners seek a declaration pursuant to C.P.L.R. §3001 that their decision to proceed without the environmental impact statement was arbitrary and capricious.
The History of Riegelmann Boardwalk
The project at issue is the proposed reconstruction of a section of the Riegelmann Boardwalk between Brighton 15th Street and Coney Island Avenue, in the Coney Island section of Brooklyn. The area of Coney Island is a peninsula on the southern border of Brooklyn, surrounded on the west by Sea Gate, and Brighton and Manhattan Beaches to the east.
Coney Island comprises approximately three miles of beach and sand. The City of New York acquired title to the beachfront property in order to improve the beach and construct a boardwalk. In 1921, the City of New York commenced a $3,000,000.00 beach improvement and boardwalk construction. In connection therewith, 1,700,000 cubic yards of sand were added to the beachfront, adding another 2,500,000 million square feet of beach area. This initial boardwalk, completed in 1923, was 14 feet high and 80 feet wide stretching from West 37th Street to Ocean Parkway.
The respondent, New York City Department of Parks and Recreation ("Parks"), assumed responsibility for maintaining the beach and boardwalk in 1938. By 1941, respondent extended the boardwalk east to Brighton Beach. It now spans 2.7 miles and derives its name from Brooklyn Borough President Edward J. Riegelmann.
The boardwalk has been reconstructed throughout the years. Originally, the boardwalk was composed of long leaf yellow pine flooring. Then when repairs were needed, the yellow pine was replaced with Douglas fir from the 1950's to 1970's. By the mid-1970's, tropical hardwoods became the norm until recently. Although tropical hardwoods are more durable, they are difficult and costly to maintain because the wooden substructure and decking are prone to rotting, warping, cracking, splintering or loosening. In order to repair the wooden substructure, the decking must be removed and ultimately replaced even if its not in disrepair. Respondent maintains that these facts need to be considered in connection with modern day concerns. First, the boardwalk must be of such a nature so as to permit emergency and maintenance vehicles to drive on the boardwalk. Second, the long term budgetary considerations for repair and replacement in light of ever increasing costs must be considered.
The use of tropical hardwoods, not just by respondent, has contributed to deforestation at the rate of 0.2% a year which, in turn, accounts for 15 to 20 percent of the world's annual man-made greenhouse gas emissions. Therefore, in an effort to balance environmental considerations against the need for tropical hardwoods as whole and not just with respect to the Riegelmann Boardwalk, Mayor Bloomberg announced a policy that the City of New York would reduce their use of tropical hardwoods by 20%. To that end, Mayor Bloomberg announced that the City of New York as one of the single largest consumers of tropical hardwoods in the United States, would use domestic wood, recycled plastic lumber and other materials with respect to construction projects. In fact, the boardwalks citywide account for the largest single use of tropical hardwoods in the City.
The project at issue seeks to replace only 56,000 square feet of the Riegelmann Boardwalk which is 50 feet wide and extends from Brighton 15th Street to Coney Island Avenue. The project would replace the timber substructure with a concrete substructure and the decking would be replaced with high-friction recycle plastic lumber on each side of a concrete carriage lane for emergency vehicles. The footprint of the reconstructed boardwalk, as well as the use thereof, would remain the same.
When considering suitable materials for the replacement of the boardwalk, Parks alleges that there were three main criteria to be considered, i.e., longevity, availability and slip resistance. After an evaluation of various materials, only concrete and recycled plastic lumber exceeded the minimum threshold levels for all three criteria. Another consideration taken into account was the continuing availability and supply of wood alternatives.
The Factual History
It is not disputed that sections of the boardwalk have severely deteriorated and in need of repair and replacement. It has been the Parks' practice throughout the years to replace the sections most in need of repair and replacement. These repairs are performed as funding becomes available. In an effort to maintain transparency in government, Parks seeks input from the Community. Here, input was elicited from Community Board 13, the district where this section of the boardwalk is located.
Initially, Parks planned to replace this section of the boardwalk with an all concrete substructure and concrete pavers. However, after listening to the community's concerns at a meeting with Community Board 13 on October 27, 2010, Parks decided to investigate alternatives to the all concrete boardwalk.
The revised project was presented to Community Board 13 on March 21, 2011. This project included the all concrete substructure and a decking consisting high-friction recycled plastic lumber, placed at a 45-degree angle on each side of a 16-foot concrete carriage lane that would run down the center of the boardwalk. The recycled plastic lumber would extend 17 feet on each side of the carriage lane. The Community Board expressed further concerns and the plan was once again revised. The carriage lane was reduced to a width of 12 feet, with the recycled plastic lumber increased to 19 feet wide on each side of the carriage lane. This further revised plan was presented to Brooklyn Community Board 13 by the Parks and Recreation Committee on May 9, 2011. Thereafter, it was presented to the full Community Board on May 24, 2011 and was rejected by a vote of 21 to 7.
Despite this rejection, Parks elected to go forward with the project subject to approval by the New York City Design Commission. On August 9, 2011, the Commissioner of the New York City Department of Parks and Recreation, Adrian Benepe, made the final determination on behalf of Parks and submitted an application for review and approval by the Design Commission. The Design Commission requires the Commissioner of Parks final approval to verify that all internal agency [Parks] approvals are obtained first.
The Design Commission is responsible for reviewing permanent works of architecture and landscape architecture on or over City owned property. The Design Commission is composed of 11 volunteer members, including an architect, landscape architect, painter and sculptor. Other volunteer members include representatives from the Brooklyn Museum, the Metropolitan Museum of Art and the New York Public Library. These members review, among other things, the construction, renovation or restoration of buildings, and the creation or rehabilitation of parks and playgrounds.
Before receiving approval, projects submitted to the Design Commission must be scheduled for a public meeting or hearing. The Design Commission notifies the public and interested parties of the meeting and its agenda. Therefore, once the Design Commission Committee issued its preliminary approval on September 12, 2011, the project was placed on the consent agenda for a full Design Commission public meeting on October 3, 2011. The public was notified by posting notice of the meeting on the Design Commission's website as well as publication in The City Record. On October 3, 2011, the petitioners and others requested to be heard and in response thereto, Parks withdrew the project from the consent agenda and rescheduled it for a public hearing on October 24, 2011.
At the October 24, 2011 public meeting, the Design Commission did not accept or reject the project, but rather adjourned it for further consideration. The Design Commission issued a certificate directing that Parks address five issues in connection with the project. These five issues were as follows: 1) the installation, condition and maintenance of the existing portion of the concrete boardwalk, including drainage; 2) the durability of recycled plastic lumber, including installation methods, in similar salt water environments; 3) slip resistence of the recycled plastic lumber; 4) clarifying the need for vehicles to access the boardwalk and possible alternatives; and 5) confirming the lack of available alternative woods to tropical hardwoods. The project was next scheduled for a full meeting on March 12, 2012. Although the Design Commission adjourned the meeting and requested clarification of these five issues, it did not require either the submission of a new application with revised plans for the project or an environmental impact statement in accordance with City and State Environmental Quality Review regulations.
Thereafter on March 12, 2012, the full Design Commission Committee issued a unanimous preliminary approval with six conditions. These conditions were as follows: 1) monitor the installation of the high friction coefficient recycled plastic lumber and report the findings to the commission; 2) continue to work with manufacturers to increase the recycled friction coefficient and develop alternative sustainable materials; 3) continue to pursue Black Locust wood, including exploring setting up its own Black Locust farm; 4) narrow the concrete lane from 12' to 10'; 5) study moving the concrete lane inboard, and submit an alternative design for committee review; and 6) test potential wood alternatives on this section of the boardwalk. The petitioners attended this meeting as well as the October 24, 2011 meeting.
The approval process by the Design Commission Committee is an ongoing process. Therefore, to obtain final approval, Parks must address the six conditions and submit construction drawings and material samples when it is 90% complete. Parks may only begin to solicit bids for the project only after the Design Commission Committee grants final approval. To date, final approval has not been issued by the Design Commission. A final review was conducted by the Design Commission on June 4, 2012. After this review, the only outstanding conditions are numbers "4" and "5," the width and design of the concrete lane.
An environmental review was not performed by Parks prior to the Commissioner signing the application for submission of the project to the Design Commission, nor did the Design Commission direct respondents to conduct an environmental review at any time.
Petitioners' Contentions
The petitioners contend that respondent's plans to replace the Riegelmann Boardwalk are subject to environmental review pursuant to the Environmental Quality Review Act (Environmental Conservation Law §8-0101, et seq. - "SEQRA") together with Title 6 of the New York Code, Rules and Regulations (6 N.Y.C.R.R. §617, et seq.); and the New York City Environmental Quality Review (Executive Order 91 and Title 62 of the Rules of the City of New York 62 R.C.N.Y. §5-01, et seq. - collectively "CEQR").
Further, the petitioners are concerned that the Riegelmann Boardwalk project is one part of a long range plan to replace the entire boardwalk (approximately one million square feet) with recycled plastic lumber and concrete. This alleged long range plan is of great concern to the petitioners for two reasons. First, the Riegelmann Boardwalk and Coney Island Beach are enduring symbols of New York City and the famous Coney Island. Second, petitioners contend that respondent failed to take into consideration the environmental impact on this coastal area.
Therefore, respondent arbitrarily and capriciously decided to first, classify the Riegelmann Boardwalk project as one not subject to environmental review, and second, not conduct a review of the aesthetic impact of recycled plastic lumber and concrete.
Respondents' Contentions
The respondent argues that an environmental review was not necessary since the Riegelmann Boardwalk Project only involves maintenance or repair involving no substantial changes to an existing structure or facility and/or the replacement, rehabilitation or reconstruction of a structure or facility on the same site. As such, the project comes within the several exemptions from environmental review.
Respondents also argue that an injunction should not be issued since petitioners cannot meet the necessary criteria. First, they cannot establish a likelihood on the merits since the petition is barred by the applicable statute of limitations. Second, there is an absence of imminent or irreparable harm. Third, equity dictates if the project is delayed, Parks will need to relinquish the grant money in the amount of $7,400,000.00 for the rehabilitation of the deteriorating boardwalk. Moreover, the petitioners' alleged atheistic harm is outweighed by the environmental impact of deforestation.
Finally, respondents argue that appellants' request for information pursuant to the Freedom of Information Law is an improper attempt to obtain discovery in an Article 78 proceeding.
The State Environmental Quality Review Act and City Environmental Quality Review
The State Environmental Quality Review Act (Environmental Conservation Law §8-0101, et seq. - "SEQRA") and its implementing regulations (6 N.Y.C.R.R. 617) establish a procedural framework designed to incorporate the consideration of environmental factors into the existing planning, review and decision-making process of State, regional and local government agencies at the earliest possible time so as to minimize the adverse environmental consequences of any project that is approved. Aldrich v. Pattison, 107 A.D.2d 258, 263, 486 N.Y.S.2d 23, 27 (2d Dept., 1985).
As early as possible in the review process, the lead agency having the principal responsibility for implementing a project must determine whether it is a Type I project and, therefore, an environmental impact statement should be prepared with reference to the proposal. (Id. and 6 N.Y.C.R.R. §617.6[a][1][i]). However, if it is determined that the project is exempt from an environmental impact statement, the agency has no further environmental review responsibilities. (6 N.Y.C.R.R. §617.6[a][1][i]). However, the review process does not necessarily terminate at this juncture if the implementing agency must submit the project to another agency for funding or approval to implement the project. These agencies are effectively "co-lead" agencies with separate SEQRA responsibilities to make an environmental review determination. See, Akpan v. Koch, 75 N.Y.2d 561, 554 N.E.2d 53, 555 N.Y.S.2d 16 (1990).
The implementing agency must make an environmental determination as early as possible in their formulation of an action it proposes to undertake, whereas the approval agency must do so as soon as it receives an application for approval. 6 N.Y.C.R.R. §617.6[a][1][i] and see, Akpan v. Koch, 75 N.Y.2d 561, 554 N.E.2d 53, 555 N.Y.S.2d 16 (1990). In that regard, the approval or funding agency must review and issue their own administrative determination with respect to the necessity for or adequacy of an environmental impact study by the implementing agency; this separate determination is subject to an independent Article 78 review. Akpan v. Koch, supra.
The City of New York and its governmental agencies are also governed by Chapter 5 of Title 62 of the Rules of the City of New York, The Rules of Procedure for City Environmental Quality Review (CEQR). On the local level, the lead agency is defined as "the agency principally responsible for environmental review." 62 R.C.N.Y. §5-02(e). Further, the criteria pursuant to 62 R.C.N.Y. §5-03(h) for determining the lead agency include, but are not limited to the following:
(i) the agency that will have the greater degree of responsibility for planning and implementing the action;
(ii) the agency that will be involved for a longer duration;
(iii) the agency that has the greater capability for providing the most thorough environmental assessment;
Although an agency may not be a lead agency pursuant to 62 R.C.N.Y. §5-02(e), the agency may be an "involved agency" for the purposes of environmental review. An involved agency is one that, "has jurisdiction to fund, approve or directly undertake an action pursuant to any provision of law, including but not limited to the Charter or any local law or resolution." 62 R.C.N.Y. §5-02(e). Pursuant to 62 R.C.N.Y. §5-05, a threshold determination must be made with respect to whether an action requires environmental review by the single lead agency (62 R.C.N.Y. §5-05[a][1]) or, in the case where agreement among involved agencies is necessary for selection of a lead agency, by an agency that could be the lead agency for a particular action (62 R.C.N.Y. §5-05[a][2] and see, 6 N.Y.C.R.R. §617.2[r]&[s]). Once the lead agency makes the determination that an action is exempt from environmental review (a Type II action) pursuant to CEQR and SEQRA, an affirmative declaration of that determination (formal or informal) is not procedurally required by CEQR or SEQRA. 62 R.C.N.Y. §5-05(a)(3) and see, 6 N.Y.C.R.R. §617.6(a)(1)(i).
A Type II project is one that, among other things, does not have a significant adverse impact on the environment based on the criteria contained in §617.7(c) (6 N.Y.C.R.R. §617.5[b][1]); the maintenance or repair involves no substantial changes in an existing structure or facility (6 N.Y.C.R.R. §617.5[c][1]); involves the replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site unless such action meets or exceeds any of the thresholds in §617.4 (6 N.Y.C.R.R. §617.5[c][2]); or involves the routine or continuing agency administration and management, not including new programs or major re-ordering of priorities that may affect the environment (6 N.Y.C.R.R. §617.5[c][20]).
The criteria in 6 N.Y.C.R.R. §617.7(c) include a substantial adverse change in existing air quality, ground or surface water quality or quantity or a substantial increase in potential for erosion, flooding, leaching or drainage problems (6 N.Y.C.R.R. §617.7[c][1][i]), the impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or of existing community or neighborhood character (§6 N.Y.C.R.R. 617.7[c][1][v]). Essentially, all listed Type II projects are subject to the criteria of 6 N.Y.C.R.R. §617.7(c) so as to prevent public or private entities from escaping the scrutiny associated with a Type I environmental impact review by classifying an action as Type II.
The evidence submitted demonstrates that respondent was the lead implementing agency with the greater degree of responsibility for planning and implementing the action and would be the agency involved for the longer if not the total duration of the project. (62 R.C.N.Y. §5-03[h], subdivisions [1]&[i] and 6 N.Y.C.R.R. §617.6[a][1][i]). There is no evidence to suggest that after final approval was obtained from the Design Commission, that this agency would continue to be involved in the implementation and completion of the project. Moreover, respondent was the agency that has the greater capability for providing the most thorough environmental assessment (62 R.C.N.Y. §5-03[h][iii]) since they were involved with the other environmental issues associated with the project, i.e., deforestation.
The evidence also demonstrates that project also involved the routine or continuing agency administration and management. The project did not include any new programs or the major re-ordering of priorities that may affect the environment (6 N.Y.C.R.R. §617.5[c][20]). Since the early 1900's, respondent routinely and systematically replaced the boardwalk on as needed basis.
Therefore, once respondent made the determination that the Riegelmann Project was exempt from environmental review, an affirmative determination (formal or informal) was not required by law. 62 R.C.N.Y. §5-05(a)(3) and see, 6 N.Y.C.R.R. §617.6(a)(1)(i). At that point, the Design Commission, as an approval lead agency, was obligated to determine whether an environmental review was necessary upon receipt of the respondent's application for approval of the Riegelmann Project. (62 R.C.N.Y. §5-05[a][2], 6 N.Y.C.R.R. §617.2[r]&[s], and 6 N.Y.C.R.R. §617.6[a][1][i]). However, as the Design Commission is not a party to this petition, the Court is foreclosed from reviewing what, if any, procedural steps they undertook to comply with SEQRA or CEQR upon receipt of the application for approval.
Turning now to whether the classification by respondent was arbitrary and capricious, the petitioners have not met their burden of proof. First, the evidence submitted demonstrates that the Riegelmann Boardwalk project does not involve substantial changes to the existing structure. The footprint of the boardwalk will remain the same and the substructure will be replaced with artificial materials. Second, it is a replacement or repair of the structure in kind albeit with artificial materials in addition to natural wood. Groarke v. Board of Education of Rockville Centre Union Free School District, 63 A.D.3d 935, 880 N.Y.S.2d 535 (2d Dept., 2009). See, also, 6 N.Y.C.R.R. §617.5[c][1] and 6 N.Y.C.R.R. §617.5[c][20]. Last, the project does not come within the scrutiny imposed by §617.7(c).
Without expert testimony, petitioners cannot establish a substantial adverse change in existing air quality, ground or surface water quality or quantity or a substantial increase in potential for erosion, flooding, leaching or drainage problems in accordance with 6 N.Y.C.R.R. §617.7[c][1][i]. Next, artificial materials do not per se constitute an impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or of existing community or neighborhood character in accordance with §6 N.Y.C.R.R. 617.7[c][1][v]. See, Groarke v. Board of Education of Rockville Centre Union Free School District, 63 A.D.3d 935, 880 N.Y.S.2d 535 (2d Dept., 2009) (The total replacement an athletic field with artificial turf, together with new lighting and bleachers, does not constitute a Type I project subject to environmental review).
Based upon the foregoing, the Court concludes that the repair and replacement of the Riegelmann Boardwalk are a Type II action as defined by SEQRA and CEQR and exempt from environmental review.
Next assuming arguendo that the project was a Type I action, the Court must also determine whether this proceeding is barred by the statute of limitations. To do so, the Court must determine the point when respondent's administrative decision became final and binding and thus had an impact upon petitioners. Monteiro v. Town of Colonie, 158 A.D.2d 246, 249, 558 N.Y.S.2d 730, 732 (3d Dept., 1990).
With respect to SEQRA determinations, the statute of limitations begins to run when an agency adopts a final plan thereby committing itself to a course of action which may affect the environment. It is at this point that the agency's plans have gone beyond the tentative proposal stage and become a specific project plan for development. Id. Therefore, legislative policy favors environmental review and resolution of challenges thereto at the earliest possible time. See, Monteiro v. Town of Colonie, 158 A.D.2d 246, 249; Long Island Pine Barrens Society, Inc. v. Planning Board of the Town of Brookhaven, 78 N.Y.2d 608, 614, 578 N.Y.S.2d 466, 470, 585 N.E.2d 778, 782 (1991); and 6 N.Y.C.R.R. §617.6[a][1][i]. Otherwise, if SEQRA challenges were allowed to be postponed until final approval rather than preliminary approval, which is subject to design or other issues unrelated to SEQRA, the environmental status of an entire project would be undetermined even though a developer and municipality invested time and money throughout the project. See Long Island Pine Barrens Society, Inc. v. Planning Board of the Town of Brookhaven, 78 N.Y.2d 608, 578 N.Y.S.2d 466, 585 N.E.2d 778 (1991).
An agency's determination is final only if the purported harm cannot be prevented or rectified by further administrative action or remedy available to the complaining party. Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 223, 771 N.Y.S.2d 40, 42 803 N.E.2d 361, 363 (2003). Therefore, the Court must determine when the only respondent to this proceeding, New York City Department of Parks and Recreation, made a final administrative decision with respect to the Riegelmann Boardwalk Project.
As stated above, the respondent's determination became final on August 9, 2011 when the Commissioner of Parks submitted the plans and application for review and approval to the Design Commission, a co-lead agency with the authority to review Parks' project application inclusive of the Type II determination, and approve the project. See, Akpan v. Koch, 75 N.Y.2d 561, 575, 554 N.E.2d 53, 60, 555 N.Y.S.2d 16, 23 (1990). The factual history elicited from each party revealed that after months of revising the plans in response to the community board's concerns, the application and final plans without an environmental impact statement were approved by the Commissioner of Parks and submitted to the Design Commission.
It was at this point that any further internal administrative action by Parks would not have rendered the final determination by the Commissioner of Parks moot or academic since the period for public comment conducted by the respondent had come to an end as did any SEQRA or CEQA period by them. See, Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 223, 771 N.Y.S.2d 40, 42 803 N.E.2d 361, 363 (2003). Again, respondent was not required to make a formal or informal declaration that the project was being classified as Type II. 62 R.C.N.Y. §5-05(a)(3) and see, 6 N.Y.C.R.R. §617.6(a)(1)(i). Thus, the Type II determination was implicit in the administrative decision of the Commissioner of Parks on August 9, 2011 when the project was approved and the signed application submitted to the Design Commission for approval to proceed with the project.
Since a declaration was not required and assuming the statute of limitations was tolled pending notice to the petitioners that it was being placed on the consent agenda without an environmental impact statement, the petitioners sustained a definitive concrete injury vis-a-vis respondent no later than October 3, 2011 when they attended the Design Commission public meeting. By attending this meeting, and the subsequent meeting on October 24, 2011, the petitioners were on notice (within four months from August 9, 2011) that the project was listed on the "consent agenda" without an environmental impact statement. This constituted the requisite notice that Parks had proceeded beyond the proposal stage and became a specific plan for development without an environmental impact statement. Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 223, 771 N.Y.S.2d 40, 42 803 N.E.2d 361, 363 (2003) and Monteiro v. Town of Colonie, 158 A.D.2d 246, 249.
The petitioners cannot dispute that they were given notice of the filing of the application and attended the public meetings. The fact that the petitioners may not have fully understood either the procedural nature of these meetings or that respondents' filing of the application with the Design Commission signaled a final determination on behalf of Parks, cannot extend the statute of limitations. Therefore, petitioners cannot dispute that as of October 3, 2011, all further administrative determinations, approvals of any kind, and any public hearings were conducted by the Design Commission and not respondent.
It is noted that an attorney, "Harry Burstein" attended the meeting on October 3, 2011 and signed the attendance sheet a few lines above the petitioner "Robert Burstein" as being present for the "Riegelmann Boardwalk" project.
As a co-lead agency, the Design Commission's preliminary approval of the project relying upon respondent's determination that an environmental impact statement was not required constituted a separate administrative decision by a separate and independent agency, (See, See, Akpan v. Koch, 75 N.Y.2d 561, 575, 554 N.E.2d 53, 60, 555 N.Y.S.2d 16, 23 (1990) and 6 N.Y.C.R.R. 617.6[1]&[2]), which is beyond review by this Court. Therefore, this Court cannot impute the Design Commission's determination on March 12, 2012 to respondent. Nor can the Court construe the determination so as to impose any obligation upon respondent to prepare a formal or informal Type II declaration that is not otherwise required. 62 R.C.N.Y. §5-05(a)(3) and see, 6 N.Y.C.R.R. §617.6(a)(1)(i).
It is noted that petitioner have not proffered sufficient evidence to establish that the Riegelmann Boardwalk is part of a common overall or long term plan of development which required environmental consideration. See, Halperin v. City of New Rochelle, 24 A.D.3d 768, 776, 809 N.Y.S.2d 98, 108 (2d Dept., 2005) and 6 N.Y.C.R.R. 617.7(c)(2). The F.O.I.L. request seeking information from January 2011 through the present was dated more than two months after the approval by the Design Commission on March 12, 2012. This, coupled with the fact that the statute of limitations expired as to respondent prior to March 12, 2012, renders this request moot.
Since the statute of limitations expired as to the respondent prior to March 12, 2012 and petitioners did not include the Design Commission as a co-respondent, this Article 78 proceeding must be denied as untimely. See, Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 222-223, 771 N.Y.S.2d 40, 42 803 N.E.2d 361, 363 (2003).
Finally, the petition must also be denied because petitioners cannot commence a declaratory judgment action seeking a review of this same determination by respondent on the grounds that it was arbitrary and capricious. Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943, 512 N.E.2d 526 (1987) and Lai Chun Chan Jin v. Board of Estimate, 101 A.D.2d 97, 474 N.Y.S.2d 504 (1st Dept., 1984), appeal dismissed 63 N.Y.2d 675 (1984). Otherwise, the petitioners would be able to circumvent and avoid the four-month statute of limitations (C.P.L.R. §217) with respect to a special proceeding (C.P.L.R.§7801, §7803[3]) seeking review of SEQRA and CEQR. Lai Chun Chan Jin v. Board of Estimate, 101 A.D.2d 97, 99, 474 N.Y.S.2d 504, 506 (1st Dept., 1984), appeal dismissed 63 N.Y.2d 675 (1984).
Since the Court concludes that the Riegelmann Boardwalk project is a Type II action as defined by SEQRA and CEQR and exempt from environmental review and that the petition is barred by the applicable statute of limitations, petitioners remaining contentions are without merit. The petition is denied in its entirety.