Opinion
23921/2011
11-22-2011
Ocean Hill Residents Association, MARINO ABREU, BERNADETTE MITCHELL, VAL A. HENRY, LEONARD P. HARRISON and EARTHA STEVENS, Petitioners, v. The City of New York, ("NYC"); SETH DIAMOND, Commissioner for the Department of Homeless Services for NYC ("DHS"); GEORGE NASHAK, Deputy Commissioner for Adult Services for DHS; ROBERT D. LIMANDRI, Commissioner for the Department of Buildings of NYC ("DOB"); FATMA AMER, P.E., First Deputy Commissioner of DOB; JAMES P. COLGATE, RA, Assistant Commissioner to Technical Affairs and Code Development for DOB; VITO MUSTACIUOLO, Deputy Commissioner for te Department of Housing Preservation and Development for NYC ("HPD"); 1424 HERKIMER STREET DEVELOPMENT, LLC; HERKIMER HOLDINGS, LLC; TRIBORO CAPITAL, LLC; CAMBA, INC; JOHN VENTIS; SHIMMIE HORN; and XYZ CORP.;*, Respondents.
Ocean Hill Residents Association Tane Waterman & Wurtzel, P.C. Stewart Wurzel, Esq. Defendants Attorney Attorney for Herkimer Holdings, LLC / Triboro Capital, LLC. / 1424 Herkimer Street Development, LLc Cox Padmore Skolnik & Shakarchy, LLP Solomon Borg, Esq. Camba in House Attorney Kathleen Masters, Esq. The City of New York Attorney Office of the Corporation Counsel, General Litigation Division
Ocean Hill Residents Association
Tane Waterman & Wurtzel, P.C.
Stewart Wurzel, Esq.
Defendants Attorney
Attorney for Herkimer Holdings, LLC / Triboro Capital, LLC. / 1424 Herkimer Street Development, LLc
Cox Padmore Skolnik & Shakarchy, LLP
Solomon Borg, Esq.
Camba in House Attorney
Kathleen Masters, Esq.
The City of New York Attorney
Office of the Corporation Counsel, General Litigation Division
, J.
Petitioners OCEAN HILL RESIDENTS ASSOCIATION, MARINO ABREU, BERNADETTE MITCHELL, VAL A. HENRY, LEONARD P. HARRISON and EARTHA STEVENS, (hereinafter "Petitioners"), move this Court by Order to Show Cause for an Order granting a preliminary and permanent injunction; enjoining Respondents from constructing a shelter facility at 1424 Herkimer Street, in the Ocean Hill neighborhood of Brooklyn; compelling the Respondents to make the contract related to the construction of the shelter public; and finding that a determination made by the DEPARTMENT OF BUILDINGS of the CITY of NEW YORK regarding the proposed placement of the shelter was arbitrary and capricious, pursuant to Article 78 of the CPLR.
Upon reading the Order to Show Cause of PETITIONERS, by their attorney Andrew Stern, Esq., dated October 28, 2011, together with the petition pursuant to Article 78 of the CPLR dated September 15, 2011, and all exhibits annexed thereto; the Memorandum of Law of Stewart Wertzel, Esq., attorney for Petitioners, dated September 16, 2011; the Affidavit of Shimmie Horn in Opposition to the Petition and Request for Injunction, dated October 24, 2011, and all exhibits annexed thereto; the CITY Respondents' Verified Answer of October 25th, 2001, by their attorney Haley Stein, Esq., Assistant Corporation Counsel, and all exhibits annexed thereto; the CITY Respondents' Memorandum of Law in Opposition to Petitioners' Motion for a Preliminary Injunction and In Support of CITY Respondents' Verified Answer to the Petition, dated October 25, 2011; the Verified Answer of Respondent CAMBA, by Kathleen Masters, Esq., attorney for CAMBA, dated October 25, 2011; the Affidavit in Opposition to the Order to Show Cause of Joanne M. Oplustil, Director of CAMBA, dated October 25, 2011; the Fair Share Review submitted by CITY Respondents, dated October 31, 2011; the Memorandum of Law in Reply and Further Support of Petition and Order to Show Cause, of Andrew Stern, Esq., dated November 4, 2011, and all exhibits annexed thereto; the Sur-Reply of Haley Stein, Esq., dated November 7, 2001; and after argument of counsel and due deliberation thereon, that portion of Petitioners' Order to show cause seeking a preliminary injunction is denied and that portion seeking other and further relief is granted to the extent of granting Petitioner's leave to conduct expedited disclosure for the reasons set forth below.
FACTS and PROCEDURAL HISTORY
This Article 78 petition seeks a preliminary and permanent injunction to the construction of a shelter facility at the address of 1424 Herkimer Street in the Brooklyn neighborhood of Ocean Hill, (hereinafter "the site").
The Petitioners are OCEAN HILL RESIDENTS, an unincorporated association of residents in the Ocean Hill Neighborhood, BERNADETTE MITCHELL, VAL A. HENRY, LEONARD P. HARRISON and EARTHA STEVENS, individual residents, and MARION ABREU, the owner of a business located on Herkimer Street, (hereinafter, collectively, "Petitioners").
The Respondents who have appeared in response to the petition are THE CITY OF NEW YORK; SETH DIAMOND, Commissioner of the Department of Homeless Services of the City of New York, ("DHS"), George Nashak, DHS' Deputy Commissioner for Adult Services; ROBERT D. LiMANDRI, Commissioner of the City's Department of Buildings, ("DOB"), FATMA AMER, PE, former First Deputy Commissioner of DOB; JAMES P. COLGATE, RA, DOB's Assistant Commissioner for Technical Affairs and Code Development; and VITO MUSTACIUOLO, Deputy Commissioner for the City's Department of Housing Preservation and Development ("HPD"), (hereinafter, collectively "CITY" or "CITY Respondents"); CAMBA, INC., ("CAMBA"), and 1424 HERKIMER STREET DEVELOPMENT LLC; HERKIMER HOLDINGS, LLC; TRIBORO CAPITAL LLC; JOHN VENTIS and SHIMMIE HORN.
Respondent CAMBA is a non-profit organization with its principal place of business in Brooklyn, New York. CAMBA is a community based organization which provides a variety of services to the Brooklyn community, including employment, education, health related, housing, legal, social, business development and youth services.
Respondent 1424 HERKIMER STREET DEVELOPMENT, LLC is a domestic limited liability company, registered to do business in the state of New York, and is the owner of the property at which the shelter will operate.
Respondent HERKIMER HOLDINGS, LLC is a fictitious entity which appears on permits to the DOB for the property located at 1424 Herkimer Street.
Respondent TRIBORO CAPITAL, LLC is a domestic limited liability company, registered to do business in the state of New York.
Respondent JOHN VENTIS is an individual doing business in the State of New York through 1424 HERKIMER STREET DEVELOPMENT, LLC; HERKIMER HOLDINGS, LLC and TRIBORO CAPITAL, LLC.
Respondent SHIMMIE HORN is an individual doing business in the State of New York through 1424 HERKIMER STREET DEVELOPMENT, LLC; HERKIMER HOLDINGS, LLC and TRIBORO CAPITAL, LLC.
Respondent XYZ CORP. is a name of the unknown entity facilitating the creation of the proposed shelter to be located at 1424 Herkimer Street.
The CITY Respondents have entered into a contract with CAMBA for CAMBA to provide services to a shelter which will be located at 1424 Herkimer Street in the Ocean Hill section of Brooklyn, located in Community District 16.
The CITY states that it entered into contract negotiations with CAMBA to operate the shelter, and on December 20, 2010, CAMBA notified Community Board 16 of its intention to obtain the contract to operate a 200 bed shelter, to be located at 1424 Herkimer Street, in Ocean Hill, Brooklyn.
On March 15, 2011, George Berger & Associates, a company which provides engineering services and acting as the filing representative for HERKIMER STREET DEVELOPMENT, LLC, submitted a job application to DOB to renovate and convert the building, a vacant warehouse, to a transient hotel. The application was approved on March 28, 2011.
The shelter facility would occupy four floors and the basement of a rehabilitated 40,000 square foot building. There will be a single entrance to the building which will have 19 dorm room s holding 10 to 13 beds each. The building will also contain dining, laundry and recreation space, as well as offices occupied by social services providers.
The building is located on a 9,604 square foot parcel in the Ocean Hill/Broadway Junction neighborhood of Brooklyn, at 1424 Herkimer Street, at the southwest corner of Herkimer and Sackman Streets. It is zoned for M1-2 manufacturing, and has been renovated for use as a shelter.
On May 26, 2011, DHS Commissioner Seth Diamond met with Council Member Erik Dilan to discuss the proposed shelter. Also on May 26, 2011, CAMBA's Executive Director, Joanne M. Oplustil attended a community board meeting to present on the proposed shelter site and discuss community concerns. State Assembly Member William Boyland, Jr., as well as a representative from Congresswoman Yvette Clark's office, were also present.
On June 5, 2011, DHS Commissioner Seth Diamond and a representative of the Mayor's Office met with the residents of the 1400 Herkimer Block Association to tour the community. DHS states it held a Public Hearing on July 28, 2011.
Council Member Dilan submitted a written statement to be presented at the public hearing, opposing the placement of the shelter. The statement cited an over saturation in the district, and citing the fact that the shelter would abut a residential neighborhood. Community members testified in opposition to the shelter, basing their opposition in part on the facts that there are many other shelters in the community. The residents testified that the shelters and other social service facilities have resulted in loitering and an increase in crime, a decrease in property value, and they testified as to concerns that this shelter would be proximate to a children's park and school, posing a threat to the community's children.
Joanne Oplustil of CAMBA responded by acknowledging the community's concerns. She stated that CAMBA would create a community advisory board with which CAMBA would meet regularly, and that it would take steps to ensure the community's concerns about security as a result of the facility were not realized.
DHS states that after carefully considering the concerns of the community, in part by comparing them to the concerns of other communities in which the City has proposed to place shelters, it concluded that "the institution of effective security measures" and other quality assurance controls would "avert any potential negative impacts".
A Fair Share review was conducted by DHS and the report issued October 31, 2011.
The application to move forward with the development of the site was submitted to the Comptroller's Office for approval on November 1, 2011. The contract was registered on November 10, 2011.
The Petitioners filed this Article 78 proceeding seeking to enjoin the Respondents from operating the shelter. Petitioners move for a preliminary injunction to bar Respondents from opening the shelter.
POSITIONS
Petitioners seek a preliminary injunction against the Respondents, enjoining them from opening the proposed shelter located at 1424 Herkimer Street alleging the Respondents failed to adhere to the processes required by the City Charter to ensure assessment of potential negative impacts to the community and the environment.
At issue is whether the review of the project was properly conducted so as to consider the concerns and rights of the community; specifically, whether there was a need for the project to be considered under the Uniform Land Use Review Procedure (ULURP), whether the project is in compliance with the zoning regulations which apply to the site, whether the CITY conducted an Environmental Review pursuant to SEQRA/CEQR, and whether the NYC Fair Share Criteria were properly considered and whether the decision to site the shelter was rationally based on the Criteria.
CAMBA joins in Respondent CITY's positions.
Respondent SHIMMIE HORN and 1424 HERKIMER STREET DEVELOPMENT LLC oppose the petition and the motion for preliminary injunction.
DISCUSSION
To obtain the drastic remedy of a preliminary injunction, a movant must demonstrate (1) a likelihood or probability of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a balance of the equities in favor of granting the injunction. Peterson v Corbin, 275 AD2d 35, 713 N.Y.S.2d 361 (2nd Dept 2000); Aetna Ins. Co. v Capasso, 75 NY2d 860, 552 N.Y.S.2d 918 (1990); W.T. Grant Co. v Srogi, 52 NY2d 496, 438 N.Y.S.2d 761(1981).
At this point, Petitioners have failed to demonstrate a likelihood of success on the merits.
Uniform Land Use Review Procedure (ULURP)
Petitioners argue the CITY was required to submit the proposed shelter through the ULURP process and failed to do so. They argue that a ULURP review is required because the use of the property at Herkimer Street constitutes a site selection for a capital project, and because the CITY's arrangement for running the shelter constitutes a de facto lease with the owner of the property.
Respondents argue that no ULURP review is required as the contract between DHS and CAMBA for the operation of the shelter will not include a lease which is subject to ULURP. They state that because the CAMBA will lease the property directly from the owner and not from the City, it is not subject to ULURP review. Respondents cite Ferrer v. Dinkins, 218 AD2d 89, 635 NYS2d 965 (1st Dept 1996) in support of this proposition. They further state that because the funding for the shelter will come from DHS' expense budget and will not be a capital asset of the City, no ULURP is required.
ULURP was established as part of the City Charter to require a standardized procedure whereby applications affecting the land use of the city would be publicly reviewed, and established mandated time frames within which application review must take place. Participants in the ULURP process include the Department of City Planning (DCP) and the City Planning Commission (CPC), Community Boards, the Borough Presidents, the Borough Boards, the City Council and the Mayor.
Section 197-c of the City Charter enumerates twelve categories of land use actions that are subject to ULURP. The opening and operating of homeless shelters are not necessarily subject to ULURP. It is only when the CITY takes an action within one of the categories enumerated in section 197-c in connection with a shelter that it must be reviewed pursuant to ULURP. Ferrer v Dinkins, 218 AD2d 89, 635 N.Y.S.2d 965 (1st Dept 1996); Lucia Plaza v. The City of New York, Index No.36317/2000 (Kings Sup 2001); Community Planning Bd. No. 4 (Manhattan) v Homes for the Homeless, 158 Misc 2d 184, 600 N.Y.S.2d 619 (N.Y.Sup.1993).
The relevant categories in this case are subsection (5) which covers site selection for capital projects, and subsection (11), which covers acquisition by the city of real property , including by lease.
The Courts have held that the Uniform Land Use Review Procedure would apply if the City were the lessee of the site or if it is determined that the shelter is a capital project. City Charter §197-c. See Matter of Gerges v. Koch, 62 NY2d 84, 464 476 NYS2d 73 (1984); Ferrer v. Dinkins, 218 AD2d 89, 635 NYS2d 965 (1st Dept 1996).
Petitioners contend that the CITY's contract with CAMBA to operate the shelter constitutes a site selection for a capital project.
Section 210 of the charter defines a capital project as, among other projects, a "physical public betterment or improvement which could be classified as a capital asset under generally accepted accounting principals for municipalities" or "any project allowed to be financed by the local finance law". NYC Charter §210(a) and (e).
Respondents have represented to the Court that the funding for the site comes from the CITY's operating budget, and not from the capital budget. At this point Petitioners have presented no evidence that the shelter is a capital asset under generally accepted municipal accounting rules, that the CITY has expended funds from its capital budget on the shelter, or that the shelter is eligible to be funded by the local finance law.
Without such evidence, Petitioners have not demonstrated the likelihood of success on its claim that the placement of the shelter at 1424 Herkimer Street is subject to ULURP review, as a site selection for a capital project pursuant to section 197-c(a)(5) of the City Charter.
Petitioners further argue that the relationships and obligations of the parties may constitute a defacto lease by the CITY, which would trigger ULURP review under section 197-c(a)(11) of the City Charter.
In the Matter of the Application of Chelsea Business and Property Owners Association, LLC dba Chelsea Flatiron Coalition v The City of New York, et al, (Index #113194/2010), the Supreme Court of New York County undertook an analysis of whether certain agreements between the CITY, private shelter operators, and their landlords amounted to the CITY having such control over the premises so as to be the functional equivalent of a lease.
The Court held that in order to bring the shelter within section 197-c(a)(11), the agreement must give the CITY exclusive control of the premises "so as to constitute occupancy and or control that is the functional equivalent of a landowner's." Matter of the Application of Chelsea Business and Property Owners Association, LLC dba Chelsea Flatiron Coalition v The City of New York, et al, (Index #113194/2010), citing Ferrer v. Dinkins, 218 AD2d 89, 635 NYS2d 965 (1st Dept 1996).
At this point, Petitioners have offered very limited evidence of the relationships and responsibilities between the parties. They have not shown that they are of a sufficient nature to establish that there is a defacto lease between the CITY and the owner of the shelter property. Accordingly the Petitioners have failed to demonstrate likelihood of success on the merits on their claim that the shelter is subject to ULURP review as mandated by section 197-c(a)(11) of the City Charter.
State Environmental Quality Review/ City Environmental Quality Review
Petitioners argue that Respondents failed to conduct an environmental review as required by the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR) regulations.
However, DHS did conduct an environmental review and prepared an Environmental Assessment Statement (EAS).
DHS classified the shelter as an "unlisted" action which required the completion of an EAS to determine whether the proposed action would have any significant negative impacts on the community, If the Assessment found negative impacts thena full Environmental Impact Statement (EIS) would have to be done. Based on the findings in the EAS, DHS issued a Negative Declaration on July 27, 2011, which declared that no further environmental review was required.
The EAS which was prepared for DHS was completed in June of 2011. The EAS examined the environmental impacts required to be analyzed under CEQR. Petitioners, apparently under the belief that no environmental review was done, do not address the adequacy of the EAS or basis for issuing the negative declaration.
Thus, Petitioners have failed to show a likelihood that they will prevail on their SEQRA/CEQR claims.
Zoning Claims
Petitioners claim that the proposed shelter is a non profit institution with sleeping accommodations which is not a permitted use at the site pursuant to the NYC Zoning Resolution. The City contends that a homeless shelter fits within the definition of a transient hotel, which is a permitted use.
The site is located in an M1-2 zoning district and use group 5, which includes transient shelters, is permitted in an M1-2 district. Use group 3, which includes non-profit institutions with sleeping accommodations, is not permitted in an M1-2 district.
However, the Court need not reach the Petitioners' zoning claims as they are premature because Petitioners have failed to exhaust their administrative remedies. The New York City Charter provides that the Department of Buildings interprets and enforces the zoning resolution as it relates to buildings. NYC Charter § 643. The Charter further provides that the Board of Standards and Appeals is empowered to hear appeals from determinations of the Commissioner of the Department of Buildings. NYC Charter §§ 648, 666(6)(a).
Petitioners must first appeal a decision of the Department of Buildings to the BSA before resorting to the courts. Matter of Wilkins v Babbar, 294 AD2d 186, 742 NYS2d 224, (1st Dept 2002); Koultukis v Phillips, 285 AD2d 433, 728 NYS2d 440 (1st Dept. 2001); Weissman v City of New York, 96 AD2d 454, 464 NYS2d 764.
While Petitioners argue that the Department of Buildings has not made a determination which can be appealed, Petitioners can seek a determination from the Commissioner of the Department of Buildings that the shelter is not permitted under the zoning resolution and appeal that determination. Alternatively, they can appeal the issuance of a certificate of occupancy for the shelter.
Fair Share Criteria
Petitioners originally argued in their petition that the City failed to conduct an analysis under the City's Fair Share Criteria as required by Section 203 of the New York City Charter. In its opposition to the Order to Show Cause the City conceded that the shelter is subject to the Fair Share Criteria and stated they were conducting a Fair Share review. The City, completed the review after this proceeding was commenced. The City sent the Fair Share review to the Mayor on October 31, 2011.
After receiving a copy of the Fair Share Review, Petitioners submitted a Reply Memorandum of Law which raised substantive challenges to the review. The City submitted a sur-reply in the form of a letter to the Court dated November 7, 2011, in which it objected to Petitioners raising substantive challenges to the Fair Share Review for the first time in their reply.
While the substantive objections were not raised until the Petitioners' reply, they could not have been raised earlier because the City had not yet completed the Fair Share Review. In this case there is no unfair prejudice to the Respondents in considering Petitioners' claims as to the adequacy of the review as part of this motion for a preliminary injunction.
The Petitioners raised the issue of the Fair Share Criteria in the original petition and the City responded by stating that they were conducting a review. Implicit in the City's statement is a representation that the review would meet the requirements of the Criteria.
The Petitioners have adequate grounds to amend their Petition to include substantive challenges to the now completed Fair Share analysis. There would be no useful purpose served in requiring Petitioners to file a new motion for a preliminary injunction, especially in light of the imminent opening of the shelter.
The City chose not to complete their Fair Share Review until October 31st, one day before it submitted the contract to the Comptroller, even though the site had been selected almost a year before. Further, the City was allowed to submit a sur-reply to the Petitioners' objection to the Fair Share Review.
Section 203 of the New York City Charter required the City Planning Commission to adopt rules establishing criteria for the location, expansion, reduction, or closing of City Facilities. The New York City Planning Commission did adopt Criteria which are embodied in the New York City Rules and Regulations. 62 RC.NY § Appx. A to Title 62.
The City contends that the Criteria are not regulations but only guidelines, citing Comm. Planning Board No 4 v Homes for the Homeless, 158 Misc 2d 184, 600 NYS2d 619 (NY Sup. 1993) and Tribeca Community Assn., v New York City Dept. Of Sanitation, 2010 NY Slip Op 30037U, 2010 WL 151534.
The Court in Tribeca Community Assn., v New York City Dept. Of Sanitation,
stated "Courts have reiterated, as stated in the preface to the Fair Share Criteria, that the Fair Share Criteria are not regulations, but merely criteria intended to guide the location of city facilities." Id.
However, the preface to the Criteria does not state that the Criteria are not regulations. The preface reads only , "These Criteria are intended to guide the siting of city facilities, as provided by Section 203 of the City Charter." 62 RC.NY § Appx. A to Title 62.
More significantly, the Criteria were enacted as part of the Rules and Regulations of the City of New York, pursuant to the mandate of the City Charter.
Some confusion may stem from the fact that the Criteria do not require specific siting outcomes, but require that the City consider enumerated criteria in making siting decisions. The City has discretion to give some of the Criteria more weight then others in a particular case. However, the agency must consider all the applicable criteria and this requirement to consider the criteria has the force of law. 62 RC.NY § Appx. A to Title 62. Article 4.1 and 6.1
The Criteria require that the Fair Share Review Statement submitted to the Mayor describe the agencies' consideration and application of the relevant sections of the Criteria and state the reasons for any inconsistencies. 62 RC.NY § Appx. A to Title 62 Article 9.1.
While some deviation from the Criteria guidelines in making the siting decision is allowable, a flagrant disregard of the Criteria could give rise to a cause of action. Comm. Planning Board No 4 v Homes for the Homeless, 158 Misc 2d 184, 600 NYS2d 619 (NY Sup. 1993).
Petitioners claim that the City did not adequately consider the required Criteria and that there was not a rational basis to depart from the Criteria in approving the shelter at this location.
The City has established an Open Ended Request for Proposals (RFP) Process through which non-profit organizations can offer their services as shelter operators. Under this process, the nonprofit organization locates a site and enters into a development or leasing agreement with the private owner of the building or site. After a review of the non profit's proposal, and a determination that the proposed site would be a suitable location for a shelter, the City enters into a separate agreement with the non-profit organization to operate the shelter.
The City states that this Open Ended RFP process is necessary to enable the City to comply with its legal mandate to provide shelter to all homeless persons on an immediate basis, particularly in light of the increasing homeless population in the City.
Petitioners argue that the City's Open Ended RFP process for establishing shelters creates incentives to locate shelters disproportionately in low income areas. They contend that sites can be acquired at less cost in low income neighborhoods thus reducing the costs to both the developer or landlord, as well as, to the non-profit operator to whom the acquisition and development costs would be passed on through their lease. Petitioners contend that relying on private parties to choose the shelter sites necessarily results an over concentration of shelters in low income neighborhood such as Ocean Hill. They state that five shelters have been built in Community District 16 in the last five years.
The City's use of an Open Ended RFP process in which private parties present shelter sites to the City does not relieve it of the requirement to comply with the Fair Share Criteria. The Fair Share Criteria require the City to consider alternate sites at which to locate the shelter.
Article 4.1[c] of the Criteria requires the City to consider, "
Suitability of the site to provide cost-effective delivery of the intended services. Consideration of sites shall include properties not under city ownership unless the agency provides a written explanation of why it is not reasonable to do so in this instance." 62 RC.NY § Appx. A to Title 62 Article 4.1 [c].
Article 6.53[a] of the Criteria require the City to consider,
"Whether the facility, in combination with other similar city and non-city facilities within a defined area surrounding the site (approximately a half-mile radius, adjusted for significant physical boundaries), would have a significant cumulative negative impact on neighborhood character."62 RC.NY § Appx. A to Title 62 Article 6.53[a]
Article 6.53[c] of the Criteria requires the City to consider,
"Whether any alternative sites actively considered by the sponsoring agency or identified pursuant to Section 204(f) of the Charter which are in community districts with lower ratios of residential facility beds to population than the citywide average would add significantly to the cost of constructing or operating the facility or would impair service delivery. "62 RC.NY § Appx. A to Title 62 Article 6.53 [c].
In the Fair Share Analysis submitted to the Mayor, the City did not consider alternate sites. On page 15 of the Analysis, under the section entitled Consideration of Alternate Sites, the City states "Neither DHS (Department of Homeless Services) nor its providers target community districts to bring on new capacity. As with Brooklyn Community District 16, we are limited by what buildings are offered to us for shelter use at any particular point in time."
The City's decision to adopt an Open Ended RFP process does not relieve it of its obligation to consider alternate sites to those proposed by private parties. The City's contention that they are limited by what buildings are offered by private parties is a self imposed limitation that can not be a basis to avoid its obligations under the City Charter.
The failure to consider alternate sites for the shelter proposed by CAMBA is a violation of 62 RC.NY § Appx. A to Title 62 Articles 4.1 (c), and 6.53(c).
The more complicated issue raised by Petitioners is whether the City has failed to adequately consider the over concentration of shelters in Community District 16.
Petitioners submit a printout from a City website that shows 13 DHS facilities totaling 1402 beds in Community District 16. Petitioners add that five shelters have been built in Community District 16 in the last five years.
Petitioners contend that the concentration of shelters in Community District 16 far exceeds that of other community districts and that this over concentration has a negative impact on the community.
The City contends that there are only 10 shelters in Community District 16 and that only 5 five of them are within half-mile radius of the shelter, with all but one are more than 400 feet from the proposed shelter.
The City does acknowledge that Community District 16 does have a higher ratio of beds to population than the citywide average and ranks sixth out of a total of 59 Community Districts citywide for the number of beds in all residential facilities.
However, the City contends that its determination that the proposed Herkimer Street shelter would not contribute to a concentration of facilities that would adversely affect the community has a rational basis.
The City states that the shelter will be limited to two hundred beds and that the residents will receive social services, including mental health services, meals, laundry and recreational activities on site, thus reducing the need for residents to leave the building. It cites a safety and security plan that CAMBA has developed for the shelter, which include security on a 24 hour, 7 day a week basis, as well as metal detectors and baggage search at the entrance to the shelter, door alarms, and a close circuit recording system to monitor the common areas and exterior of the building. The shelter will have a nightly curfew and residents will be required to sign for their bed each night. Visitors will not be permitted except by prearrangement through the social services staff and will be escorted by the staff to and from their destination. CAMBA will also have a staff of 60 working in three shifts so that the shelter will be staffed 24 hours a day.
The City concluded that because of the proposed staffing, monitoring and security, the shelter would not contribute to a concentration of facilities that would adversely affect the community.
Petitioners counter that the adverse impacts of an over concentration of shelters can not, in reality, be eliminated. They argue that the fact that the City and CAMBA focus to such an extent on security is an implicit acknowledgment of the adverse impacts that will result from the shelter.
Petitioners also cite a photo on Google of a 200 bed shelter run by CAMBA located 2 blocks from the proposed shelter, which they claim shows residents loitering in front of the shelter without supervision.
Petitioners further contend that the objection is not to the proposed shelter by itself, but the creation of an additional shelter in a community already overburdened with more than its fair share of shelters.
Among the purposes of the Fair Share Criteria is to "further the fair distribution among communities of the burdens and benefits associated with city facilities, consistent with community needs for services and efficient and cost effective delivery of services and with due regard for the social impacts of such facilities upon the areas surrounding the sites," New York City Charter § 203, and to "Lessen disparities among communities in the level of responsibility each bears for facilities serving citywide or regional needs;" 62 RC.NY § Appx. A to Title 62 Article 2[f] .
The Criteria are designed to achieve this purpose by requiring the City and its agencies to consider specific criteria in deciding where to place facilities, such as the impact of an over concentration of facilities in a neighborhood, and to consider alternative sites in less burdened communities.
Article 9.1 of the Fair Share Criteria requires the City to articulate how they have applied the Criteria in making their siting decision and to state the reasons for any inconsistencies between the Criteria and the siting decision.
The City is given discretion as to what weight it gives particular criteria in a given case and not all of the criteria have to be met. However, implicit in requirements of the Criteria is that siting must be based on an honest analysis of the Criteria, and that any departure from the Criteria must have a rational basis.
For example, it may be that there are no feasible alternate sites in areas with a lower bed to population ratio, for the proposed shelter. However, the City's obligation is to show that it looked at alternate sites and that its determination that there were no suitable alternate sites or that the proposed site was the most suitable in light of all of the Criteria, had a rational and factual basis.
The printout of shelters grouped by community districts submitted by Petitioners shows that there are no shelters in Community District 10, (which includes Bay Ridge Dyker Heights and Fort Hamilton), Community District 11 (which includes Bath Beach, Bensonhurst, Gravesend, and Mapleton) and Community District 12 (which includes Borough Park, Kensington, and Ocean Parkway). At oral argument, Respondents contended that there were no suitable sites in those community districts because they were largely residential. Whether this is in fact the case, can only be determined after a factual hearing.
While Petitioners have articulated a valid cause of action based on the Fair Share Criteria, they have not at this early stage of the proceeding demonstrated a probability of success on the merits. At this stage there insufficient evidence as to whether the City gave honest consideration the Criteria, whether there are suitable alternate sites outside of Community District 16, how the Open Ended RFP process is actually administered by the City and whether that process has promoted or resulted in the over concentration of shelters in low income communities.
A more fully developed factual record is necessary to determine whether there was a rational basis to locate the proposed shelter at 1424 Herkimer Street, despite the over concentration of shelters in that community.
Disclosure
For this reason, Petitioners are entitled to have disclosure in this matter. Disclosure is needed because there is information which is material and necessary for Petitioners to prove their claims which is solely in the possession of the Respondents. Stop BHOD v City of New York, 23 Misc 3d 1136(A), 881 NYS2d 367, 2009 WL 692080, (NY Sup. Kings Co. 2009); Matter of Pignato v City of Rochester, 288 AD2d 825, 732 NYS2d 302, (4th Dept. 2001).
Specifically, information as to how sites for shelters are selected, including what role the City plays in selecting or encouraging private providers to select certain sites, is information necessary to Petitioners' claims and is in the exclusive possession of Respondents.
Further, the terms of the RFP and financial arrangements between the City and the private providers, as well as the reasons behind the terms, are material to Petitioners' argument that the RFP process creates incentives to concentrate the shelters in low income areas. Also, to what extent the City requires private providers to consider alternate sites is information material to Petitioners' claims, as well as the comparative cost effectiveness of the City acquiring sites for shelters by purchase or eminent domain.
Additionally, Petitioners are entitled to disclosure as to whether any capital funds were used in connection with developing or operating the shelter, and as to whether any capital improvements will become an asset of the City, in order to establish their claim that the shelter may be a capital project subject to ULURP.
Similarly, disclosure of any agreements and or understandings between the City CAMBA and the owner of the property concerning control of the property is material to Petitioners establishing that in this case, that the City's interest will so predominate the use of the property, that the arrangement between the City, CAMBA and the landlord may constitute the functional equivalent of a lease.
By reason of the foregoing Petitioners have not sustained their burden for a preliminary injunction as they have not established a probability of success on the merits, but have demonstrated a need for disclosure in order to establish their claims.
WHEREFORE, that portion of Petitioners' motion seeking a preliminary injunction is denied and Petitioners' application for expedited disclosure is granted; and it is hereby Ordered that Petitioners are granted leave to conduct expedited disclosure. The Petition is adjourned until January 19, 2012, as a control date.
This constitutes the decision and order of the court.
ENTER :
JSC