Opinion
112127/04.
Decided October 8, 2004.
Petitioners bring this proceeding pursuant to CPLR Article 78, for issuance of an order (a) annulling and setting aside the Negative Declaration issued on August 9, 2004, (b) requiring a Supplemental Environmental Impact Statement; and (c) for issuance of a temporary restraining order and a preliminary injunction enjoining respondents from any demolition, clearing or alteration of the subject area.
History
Kreischer Hill is an undeveloped, city-owned 130 acre parcel in Staten Island; the area is home to a wide variety of flora and fauna.
The city has expressed interest in developing the land since at least 1992. Currently, plans exist in various stages of finality for a retail complex ("Bricktown"), a park with space for active and passive recreation ("Fairview Park"), MTA bus depot, a senior retirement village, a family activity and garden center and a parcel for the Department of Education.
The State Environmental Quality Review Act ("SEQRA") and the City Environmental Quality Review ("CEQR") require the state and municipal governments to assess the consequences before undertaking actions that might cause environmental damage.
After commissioning an environmental review of the Fairview Park project, the New York City Department of Parks and Recreation ("Parks Department") issued an Environmental Assessment Statement ("EAS") on August 2, 2004, purporting to analyze the impact of Fairview Park.
On August 9, 2004 the Parks Department issued a Negative Declaration allowing the development to move forward.
Discussion
I. Standing
Organizations and associations lack standing in the absence of three requirements: at least one member of the organization must have standing, the association must be an appropriate representative of the interest it asserts, and the asserted claim and appropriate relief must not require the active participation of the member with standing. Individual standing demands an injury in fact distinct from the general populace; this injury must also fall within the "zone of interest" protected by the statute in question. See, Soc'y of Plastics Indus. v. County of Suffolk, 77 NY2d 761 (NY, 1991). Thus, the touchstone for standing to bring an action for a SEQRA violation is an environmental injury different from that of the public at large.
NRDC member Richard Buegler, one of the petitioners herein is a regular visitor to Kreischer Hill, whose motivation for his outings include appreciation of its unique environment. Respondents argue that, because NRDC presented a member whose residence is several miles from Kreischer Hill, standing cannot be maintained. Physical proximity is not, however, a dispositive factor in establishing injury in fact. Quality of life issues, such as use and enjoyment of a park, can sustain standing. ( See, Matter of Duke Benedict v. Town of Southeast, 253 AD2d 877 (App.Div. 2nd Dept. 1998) ; Matter of Steele v. Town of Salem Planning Bd., 200 AD2d 870, 872 (App.Div. 3rd Dept. 1994) and Committee to Preserve Brighton Beach Manhattan Beach, Inc. V. Planning Comm'n, 259 AD2d 26 (App.Div. 1st Dept. 1999). Mr. Buegler has a cognizable injury in fact and is within the zone of protection provided by SEQRA.
SEQRA's broad definition of "environment" and petitioners' allegations of environmental harm, establish petitioner Natural Resources Defense Council Inc.'s standing to challenge the Parks Department's compliance with SEQRA ( see, Matter of Niagara Recycling v. Town Bd., 83 AD2d 335, 341, affd 56 NY2d 859; see also, Webster Assocs. v. Town of Webster, 112 Misc2d 396, 400-402).])) Industrial Liaison Committee of Niagara Falls Area Chamber of Commerce v. Williams, 131 AD2d 205, 210 (NY App. Div., 1987) See also, Committee to Preserve Brighton Beach Manhattan Beach, Inc. v. Planning Comm'n, 259 AD2d 26, 33 (NY App. Div., 1999)
"Standing principles, which are in the end matters of policy, should not be heavy-handed . . . it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules." See, Committee to Preserve Brighton Beach Manhattan Beach, Inc. v. Planning Comm'n, at 33, cited herein. Barring the courtroom door by draconian application of standing requirements to colorable claims against state actors serves neither the public interest nor, ultimately, those of its servants in government.
II. Improper Segmentation
Petitioners contend that the EAS was improperly segmented. The practice of improperly dividing a single project into separate projects to evade consideration of their cumulative effects under SEQRA is known as segmentation. See City of Buffalo v. New York State Dep't of Env. Conservation, 707 NYS2d 606, 612 (N.Y.S. Sup. 2000). SEQRA's regulations define segmentation as the "division of the environmental review of an action such that various activities or stages are addressed under this Part [the regulations] as though they were independent, unrelated activities, needing individual determinations of significance." 6 NYCRR § 617.2. The Court of Appeals in the case of In the Matter of Save the Pine Bush, Inc., et al v. City of Albany et al, 70 NY2d 193, 200 (1987) held that ". . . when an action with potential adverse effects on the environment is part of an integrated project designed to balance conflicting environmental goals within a subsection of a municipality that is ecologically unique, the potential cumulative impact of other proposed or pending projects must be considered pursuant to SEQRA before the action may be approved."
Respondents counter petitioners' contentions with the argument that the city's intention to develop the area does not tie unrelated projects together in a master plan; relying on Long Island Pine Barrens Soc., Inc. V. Planning Bd. Of Brookhaven, 80 NY2d 500, 509 (NY 1992), for the proposition that a common geographical base and a general government policy do not provide a strong enough link to require cumulative review. However, that case differed from the instant action in that it addressed government approval of 242 unrelated building and development permits spread over a 100,000 acre area.
Respondents also argue that cumulative review is necessary only if the component projects of a plan are interdependent; if each plan has independent, uncontingent utility, then separate review is permissible. See Stewart Park Reserve Coalition, Inc. V. Slater, 352 F.3d 545, 560 (2d Cir. 2003). Respondents' additional reliance here on Concerned Citizens for the Environment v. Zagata, 243 AD2d 20, 22 (N.Y.App.Div. 1998) is misplaced. In that case, the Court held that ". . . segmented review is permissible where the lead agency believes that it is warranted under the circumstances, provided that the agency clearly states its reasons therefor and demonstrates that such review is no less protective of the environment. Additionally, the related actions must be identified and discussed to the fullest extent possible." In contrast to the facts of Zagata, the Parks Department did not consider any of the other projects being planned for Kreischer Hill in its EAS. The Parks Department never gave any explanation as to why segmentation was permissible and no less protective of the environment.
Respondents further argue that, as a matter of policy and law, segmentation does not exist where future actions are speculative. See Vill. Of Tarrytown v. Planning Bd., 292 AD2d 617, 621 (NY App. Div. 2003) (in neighboring village, which comprised segmentated parcel, planning commission placed indefinite moratorium on any new building). Petitioners have, however, sufficiently established that a long range plan, one that is not speculative, existed for the development of Kreischer Hill at the time of the issuance of the EAS. The August 2, 2004 EAS itself acknowledges that there is a long-range plan for developing Kreischer Hill. The Section entitled "Project Background and Existing Conditions" begins, "The proposed mapped park is part of a large development plan covering 135 acres in southwest Staten Island . . . Preliminary plans would divide the area as follows: approximately 40 acres for a retail complex; 42 acres for the NYC Department of Parks and Recreation; 15 acres for the Department of Education; 10 acres for a senior retirement village, and the remainder allotted for a family activity garden center and an MTA bus depot."
In addition, petitioners' exhibits include a news article about the Kreischer Hill development, and Staten Island Borough President James Molinaro is quoted as saying: "Everyone is satisfied that they are getting their piece of it, whether it's the schools, parks or family center". The article includes a map of the area divided into project components (ie., Bricktown, Fairview Park, etc.).
Obviously, surrounding development introduces additional possibilities for adverse environmental effects nearby Fairview Park; those affects are properly considered in a cumulative review process.
In sum, the environmental effects of the City's long-range plan were not considered in the Environmental Assessment statement issued on August 2, 2004, nor were they addressed in the Negative Declaration issued on August 9, 2004.
Conclusion
Because the environmental impact of the full long-range plan has not been considered, a comprehensive Environmental Assessment statement is required to determine the impact of Fairview Park in conjunction with Bricktown and the other proposed development projects.
The temporary restraining order is lifted, and petitioners' request for a preliminary injunction is granted. The Negative Declaration issued on August 9, 2004 is vacated. Respondents are directed to issue a Comprehensive Environmental Assessment Statement.
This is the Decision and Order of the Court.