MEMo of Law in Opp to PI Motion - fInal - (# Legal 2896883)

8/3/2019 MEMo of Law in Opp to PI Motion - fInal - (# Legal 2896883)

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113194 It)

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SLPREME CO RI OF [HF S [Al F OF NF\ YO RKCOLN1Y O[ NL\\ YORKIn the Matter of the Apphcation ofCIIELSE:\ BLSI\ESS & PROPERTY OWNERS\SSOCL\ [ION, FEC, d ha CI IELSEA FL1 [iRONCOALI liON,

Petitioner.For an Order Pursuant to Article 78 of the Civil Practice Lawand Ru les

-a gal nstfilE CITY OF NEW YORK: SETH DIAMOND.Commissioner for the Department of Homeless Services of theCity of New York (DHS); GEORGE NASIIAK, DeputyComm issioner for Adult Services for DHS: ROBERT D.LIMANDRI. Commissioner for the Department of Buildingsof the City of New York (DOB); FA [MA AMER, RE,, FirstDeputy Commissioner for DOB; JAMES P. COLGA FE, R.A.,Assistant Commissioner to Technical Affairs and CodeDeelopment for DOB ; VITO MLSTACILOI.O. [)eputyCommissioner for the Department of i-lou sing . Preseration &Development of the City of New Yo rk. BOWERYRESIDENTS COMMI i-TEE. INC.: 127 WEST 25th LLC : andDANIEL SIJAVOLIAN,

Respondents.

MUNICIPAL RESPONDENTS MEMORANDUM OFLAW IN OPPOSITION TO PETITIONERS MOTIONFOR A PRELIMINARY INJUNCTION

JIICff4EL A. CARDOZOCorporation Coun sd oJ the City of yew Yorklttornejfor Defendants100 Church Street.\ei Yj rk, V Y J000(.1 ( .iii,ie/. Chriiopher KingTel : (.12j S-1235.iJattcr Ao 20J0-03996


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TABLE OF CONTENTS

PaEeFABLE OF AUTHORITIES iiiPREL IMINARY STATEMENT 2STATEMENT OF FACTS 5

A. The Proposed 200-Bed DHS Shelter at the Sit e 6B. Contract Ieviejivs 7C. SEQRA/CEQR , Fair Share Review s 8

ARGUMENTPETITIONER HAS FAILED TO SAT ISFY THEREQU IREMENTS FOR A PRELIM INARYINJUNCT ION CONCERN ING ITS REMAININGCLAIMS AGAINST MUNICIPALRESPONDENTS 9I. PETITIONER HAS FAILED TO

DEMONSTRATE IRREPARABLE INJURYAS A RESULT OF THE LACK OF ANYREQUIRED LAND USE ANDENVIRONMENTAL REVIEWS 10II. PETITIONER IS UNLIKELY TO SUCCEEDON THE MERITS OF ITS REMAININGUNDERLYING LEGAL CLAIMS 13

A. CFC Has No Standing to Sue 13B. CFCs SEQRA/CEQR and Fair ShareClaims and Its Claim ConcerningComptroller Regis tration of the BRCContract arc Unripe 14C. Petitioner is Not Likely to Succeed On theMeri ts of Its (JLURP Claim 16D. Pe titioner is Not Like ly to Succeed On theMerits of its Administrative Claim Under

New York City Administrative Code 21-312 19


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Page

Ill. TI lIE I3.\1.ACF OF JEQLITIFS TIPSDECIDEDLY IN FAVOR OFRESPONDENTS. 20CONCLUSION. 22


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TABLE OF AUTHORiTIESCasesAbbott Labs. v. Gardner,387 U.S. 136(1967) 15Aetna Ins. Ca v. Capasso,75 N.Y.2d 860 (1990) 9Brandt v. Bartlett,52 A.D.2d 272 (3d Dept 1976) 9In the Mailer ofCamp Scatico v. Columbia County Dep t ofHealth,277 A.D.2d 689 (3d Dept 2000) IIChester Civic ImprovementAss ii Inc. v. NY. City Transit Auth.,122 A.D.2d 715 (1st 1)eit 1986) 9Chwch ofSt Paul & St Andrew v. Barwlcat67 N.Y.2d 510(1986) 14, 15Duty Bd 3 v. Stare.101 Misc. 2d 189 (Sup. Ct. QueensCty. 1979) 12Only. Planning Ba. No. 4 v. Homesfor the Homeless.600 N.Y.S.2d 619 (Sup. Ct. N.Y. Cty. 1993) 17, 19Council of the City ofWY. v. Giuliani.93 t4.Y.2d 60 (1999) 12County ofOrange v. Village ofKiryas Joel,44 A.D.3d 765 (2d 2007) 12Davis v. Dinkins,206 A.D.2d 365 (2d Dept 1994) 17Doclgertown Homeowners Assn v. City qfsV.1.235 A.D.2d 538 (2d Dept 1997) 10Doe v. Axelroct73 N.Y.2d 44(1988) 9East 13th St. Homesteaders Coalition v. Lower East Side Coalition Hous. Deit,230 A.D.2d 622 (1st 1996) 9

III


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Cases PagesFerrer v. Dinkins.

218 A.D.2d 89 (1st Dept 1996)lv. denied. 88 N.Y.2d 801. 16

(Jo/Lien v. Steam heat, inc.,216 A.D.2d 440 (2d Dep t 1995). 10Greentree at Murrai lull Condo v. Good Shepherd Episcopal Church,146 Misc. 2d 500 (Sup.Ct. N.Y. Cty 1989) 10Matter ofHearst Corp. v, Clyne,

5ONY 2d 707(1980) 16Kane v. Walsh,295 N.Y. 198 (1946) 11Lucia Plaza v. City u/N. 1.305 A.D.2d 604 (2d Dept 2003) 17. 18. 19. 21N. I State Inspection. Securiiy & Law En/orcement Employees v. Cuomo,

64N.Y.2d233(1984) 15Nassau RoofIng & Sheet Metal Co. v. [:cilitie.s Dcv. Corp..70 A.D.2d 1021 (3d Dept 1979) IINbhd. in the Nineties v. City of.V I,

901 N.Y.S.2d 900 (Sup. Ct. N.Y. Cty . 2009) 17, 18. 19Putter v. City ofN I27 A,D,3d 250 (1st Dept 2006) 11Santulli v. Drybka,

196 A.D.2d 862 (2d Dept 1993) 13Matter of Save the Pine Bush, Inc. v Common Council u/the City ofAlhani.13 N.Y.3d 297 (2009) 13Silver v. Dinkins,

158 Misc.2d 550 (Sup. Ct. N.Y. Ctv. 1993) 12.Soc v Of Plastics Indus. v. County of Suffolk,77N.Y.2d761(1991 13Spit:er v. Farrell,

294 \ 0 2d lt Dp t 2002) 12


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Cases PagesStarhurst Realty Corp v Citj 01 New York,125 AD2d 148 (1st Dept 1987) 16State of N Y v Fine,

72 N.Y2d 967 (1988) 9Stop BIJOD v City of New York,2009 WL 692080 (Sup. CL Kings Cty. Mar. 13. 2009).. , 12ill ofSkaneateles v Bd. of Educ180 Misc2d 591 Sup. Ct . Albany Cty. 1999) 15

W 97th- W 98th St. Block Ass 11 v Volunteers ofAmerica of Greater New York.153 Misc2d 321 (Sup. Ct. NY, Cty . 1991)190A.D.2d 303 (1st Dept . 1993) 23

Young v Bd of Trustees oft/ic Village of Blasdell,221 AD.2d 975 (4th Dept 1995)affd, 89 N,Y. 2d 846 (1996) .,.,.,.........,.. ..,..,. 13, 15

Statutes62 R.CN,Y. Appx. A, 9.1 17New York City Administrative Code 21-315(6) 20NY. Civ. Prac. L. & R. 7803(1) 12NY. Civ. Prac, L. & R. 7803(3) ,...,........,........,..,.,.,..,..,.,,,, 12New York City Administrathe Code 21-312 ,,...,,.,,.,,..,,,, 19New York City Charter 5New York City Charter 612 5New York City Charter 16New York City Charter 203 2New York City Charter 204 2New York City Charter 197-c(a)(1 I) 17New York City Charter 197-c(a)(5) 18New York City Charter 218.. 18


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Statutes PagesNew York City Charter 197-ca8) 1$


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SI. PREME COF RI OF I I IF S I.\ I F OF NEW YORKCOI. N I Y OF NEW YORK

In the Matter of the Application of Index No , 113194 10CI IELSFA IWSINESS & PROPER I Y OWNERS Justice MaddenASSOCIATION, EEC, d b a ChELSEA FLA1 IRONCOALITION. lAS Part 11

Petitioner,Fo r an Order Pursuant to Article 78 of the Civ il PracticeLaw and Rules

-againstTIlE CITY OF NEW YORK; SETh DIAMOND,Commissioner f or the Department of Homeless Services ofthe City of New York (HDhlS); GEORGE NASHAK,Deputy Commissioner for Adult Services for DIIS;ROBER F D. LIMANDRL Commissioner for theDepartment of Buildings of the City of New York(DOB); FA FM AMER, P.E.. F irst DeputyCommissioner for 1)08: JAMES P. COLGA FE, R.A..Assistant Commissioner to Fechnical Affairs and CodeDcelopment for 1)08: VI IO MLS FACItOLO. DeputyCommissioner for the Department of I lousing, Preser ation& Development of th e City ofNe York. 130 WERYRESIDENTS COMMITTEE. INC.; 127 WESF 25th LLC:and DANIEL SIIAVOLIAN,

Respondents.x

MUNICIPAL RESPONDENTS MEMORANDUMOF LAW IN OPPOSITION TO PETITIONERSMOTION FOR A PRELIMINARY INJLNCTION

Respondents the City of New York, Seth Diamond, Commissioner of theI)eparrment of Ilomeless Serices of th e C ity of New York (DhIS); George Nashak, 1)eputy(ommissi ncr I r OIlS \dult Sers ices: Robert 1) 1 imandri, Commissioner f th 1)epirtment


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of Buildings of the Cit of New York (IX)13): I a/ma Amer. PF , First Deputy Commissionerof DOB; James P. Colgate. Assistant Commissioner of Fechnical Affairs and CodeDevelopment for DOB; Vito Mustaciuolo, Deputy Commissioner of the Department of housing,Preservation & Development of the City of New York (IIPD) (collectively th e C ity orMunicipal Respondents) respectfully submit this memorandum of law in opposition toPetitioner Chelsea/Flatiron Coalitions (CFC) Motion for a Preliminary Injunction in theabove-captioned Article 78 proceeding.

PRELIMINARY STATEMENTCFC, an indeterminate number of business and property owners in the Chelsea

section of Manhattan, seeks to prevent DEIS from proceeding with plans to finalize a contractwith co-respondent BRC to operate a temporary emergency shelter for up to 200 single men (theShelter) in an existing building located at 127 West 27 Street (the Site). In so doing,Petitioner seeks to prohibit BRC from using tha t building to shelter homeless New Yorkers andprovide th em with other vital counseling services (which they need to obtain s table hous ingarrangements in the community) that wil l a lso be housed on the Site (the project).

Petitioner commenced this Article 78 Petition by Order to Show Cause datedOctober 8, 2010. In its Pet it ion, CFC raises a litany of claims against Municipal Respondents.Petitioner alleges, among other things, th at DOB violated the N ew York City Zoning Resolutionand Administrative Code in issuing a building renoation permit to BRC , th at DIIS, which isproviding f tinding for certain aspects of the BRC project, violated the City Charter by failing toconduct required reviews under the Citys Uniform Land Use Review (iLURP) procedures.the Fair Share Criteria promulgated pursuant to Sections 203 and 204 of the City Charter, and theState Environmental Quality Review Act and its City counterpart, the City EnvironmentalQuality Review pr cedure ( SFQRVCFQR) Petitioner als) alleges t ha t the proposed project


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violates the :\dministritive Codes limits on the maximum size ot homeless shelters. SeeVeritied Petition at 2-4. CLC a ls o seeks a preliminar injunction preventin construction atthe building s ite and use of the proposed facility pending compliance by th e C ity with the NewYork Cit\ Zoning Resolution, the City Charter and Administrative Code and SEQRA/CEQR,compelling DIIS to pertbrm these reviews and compelling DIIS to register its contract with theNew York City Comptroller pursuant to the New York City Charter.

On or about October 25, 2010, Co-Respondent BRC moved, by Order to ShowCause, for a stay of this proceeding on the ground that Petitioners claims were unripe. BRCcontended that CFC failed to exhaust its administrative remedies before the Board of Standardsand Appeals (BSA) and that, therefore, Petitioners claims concerning DOBs issuance ofbuildings permits for the Project are unripe until th e 13S\ completes its ow n review of thepermits pursuant to its statutory mandate. Similarly. I3RC also argued that CFCs other claimsconcerning the Citys tilure to conduct required reviews under ULLRP. SLQRACEQR or theCharters Fair Share Criteria were also unripe because th ere has been no relevant City actionmandating such reviews See BRCs Reply Memorandum of Law its Support of its StayProceed ings. at 1 8.

By Decision and Order dated January 10. 2011 (Decision). this Court grantedBRCs motion in part and denied it in part. Specilically. the Court granted BRCs motion withrespect to all of CFCs claims concerning the 1)013 permit and stayed those claims pending aflnal BSA determination as to those permits. 1-lowever. the Court declined to stay CFCs otherclaims. holding that the record as insufficiently developed for the Court to decide BRCs staymotion and directed the parties to address these issues in connection \ith CFCs motion tbr a


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preliminary injunction. In accordance with the Courts directise. the City addresses, on thismotion. all of CI Cs claims other than those related to the issuance of buildings permits

.\s explained further below, CFCs remaining claims against the City, concerningDIIS obligation to conduct Fair Share and SEQRA CFQR reie. and its c la im tha t DIIS isrequired to register its contract with E3RC ith the New York City Comptroller. are moot orunripe. DIIS has actually commenced Fair Sha re a nd SEQRAEQR reviews for the E3RCproject, but these reiews are not y et comple te . S imi la rly, DIIS seeks to submit its contract sithBRC to the Comptroller for registration, but has not yet completed all of the procedural stepsrequired before it may do so. CFCs ULLRP and Administratie Code claims are also meritlessand do not proide any basis for a preliminary injunction. On the contrary. DEIS funding of thehomeless shelter portion of the project is not subject to U LURP under the City Charte r, N ordoes the proposed BRC project entail any violation of the i\dministrative Codes limitations onthe sue of homeless shelters.

Equally important, it is highly unlikely that CFC vill succeed on the merits of itslegal claims because neither CFC nor any of its members has standing to sue. Indeed, CFCsvoluminous petition is devoid of any explanation of how CFC, or any of its members. will beharmed by Respondents conduct . Because Petitioner has completely failed to demonstrate thatit vill be injured in any way, much less that any such injury would be irreparable, it is notentitled to the drastic remedy of a preliminary injunction. Indeed, homeless New Yorkers are thetrue target of this motion that seeks to prevent them from receiving temporary emergency shelter,which the City is under a legal and moral obligation to provide.


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STATEMENT OF FAC[SIn the City of New York. homeless individuals and f,rnilies have a right to

shelter, and DIIS is charged with the responsibility to shelter them and assist them in findingpermanent housing as expeditiously as possible. See New York City Charter 610, 612.Under the terms of a 1981 consent decree stemming from the state court litigation in Callahan v,Care, (the Decree). the City is required to provide temporary shelter to all homeless menand women who seek it. See City Exhibit (Ex.) A. In accordance with this legal mandate,DIIS must and does) shelter single homeless men and women 23 hours a day, 7 days a week,365 days a year. In accordance with the Charter and consistent with the Agencys mission - toprevent homelessness wherever possible and provide short-term emergency shelter and rehousing support whenever needed -- DH S collaborates with hundreds of shelter providers, suchas I3RC. and other not-for-profit organizations, to meet the needs of homeless New Yorkers.Nashak All, 9-10.

In todays difficult economY, DIIS faces unprecedented shelter demand. InDecember, 2010, for example. the average daily census of single adults in the DIIS sheltersystem was 8,511 an increase of 22% as compared to the average daily census in December,2009. Since June 2010. OHS has seen an increase in the number of single homeless adultsseeking shelter that is unprecedented in recent history. Over I , 100 new clients entered thes stern each month in July. August. and September. Prior to this period. DFIS had no t seen 1. 100or more new entrants in any month during the previous five years . Moreover. eiven the trends

2 Municipal Respondents also respectfully refer the Cou to the accompa.nyng affidavit of George NashakNashak Aff.), sworn to on January 24, 2011. fbr a complete and accurate s.tatement of maeeri.ai facts,nless otherwise noted, all exhibits referenced herein are attached to the Nashak A IT.


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that DIIS has obsered oer the pas t yea r. 1)115 projects an ongoing increase in demand forshelter among single adults in the spring and summer of 2011. Nashak Aff, l1-14A. The Proposed 200-Bed 1)115 Shelter at the Site

As part of its plan to meet proiected needs , DHS is currently procuring a contractwith BRC to operate a 200-bed shelter at the Site, BRC has been a leader in proiding shelterand related services to homeless men and women since it opened its doors in the Bowery almost40 years ago and with other highly respected not-for-profit providers, has contributed to nationalrecognition of the Citys shelter system. Pursuant to existing contracts with DIIS. BRC currentlyoperates 4 shelters that provide short-term emergency housing and related services to 399 peopleeach day. These shelters often partner with other BRC programs, for counseling people with ahistory of drug addiction or mental illness. DIIS has a significant need for shelters that linkmentally-ill and dru g and a lcohol dependent homeless people to supportixe housing or otherhousing options outside of shelter that will allow them to rema in s tably housed in thecommuni ty . Nashak Aff., 16-17.

In addition to the 1)1 IS- funded 200-bed homeless shelter, BRC a lso intends tooperate other programs at the project site, including a New York State Office of Mental Health(OMII)- and Medicaid-funded case management program for per sons with men ta l illness; anOMH-licensed Continuing Day Frea tment Program for ongoing outpatient mental health ser icesfunded by Medicaid and the New York City Department of Health and Mental Hygiene(DOHMH); a Medicaid and DOIIMH-funded Substance Abuse Services Center that islicensed by the New York State Office of Alcoholism and Substance Abuse Services (OASAS):and the Chemical Dependency Cris is Center , a 32-bed detoxification program for indhidualswith alcohol or substance abuse addiction that will be licensed by OAS \S and funded through acombination t I)O1l\I1I ard federal funds.


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I )I IS support s the co-location of these programs in the same building as theShelter because shelter clients will hae consenient access to serices they proide. lIoweer,I)F{S will not be invoked in the funding or operation of these serices and has no plans tocontract with BRC to operate these non-shelter programs at the Site. Additionally, while BRChas stated its intention to moe 77 of its existing reception beds (currently located at its 324Lafayette Street fbcility) to the Site, no final agreement between 1)115 and BRC has been reachedwith respect to these beds. Mnrener, these beds are no t 1)115 shelter beds and are not p art ofDIIS 200-bed shelter planned for the Site. See Nashak Aff, 1 21 -23.B. Contract Reviews

BRC submitted a proposal to operate a 200-bed shelter at th e S ite and, upon [MISreiew of the proposal, t he Agency entered into contract negotiations with BRC to operate theShelter. BRC a lso provided notice to Manhattan Community Board 4 of its intention to apply toDIIS to operate this program. Upon completion of contract negotiations, pursuant to the CitysProcurement Policy Board (PPB) Rules, DIIS submitted the proposed contract to the Office ofManagement and Budget (0MB), the Mayors Office of Contract Ser ices (MOCS), and theLaw Department for review. In accordance with th e PPB Rules, the contract was a lso the subjectof a public hearing on held on Noember 4, 2010 at which Petitioners counsel and otherstestified. Nashak Aff,, E 24-29

0MB and the Law Department have already approved the contract. Review ofthe contract by MOCS is ongoing and is expected to be completed within t he nex t se era! weeks.Nasak All. Afler the contract is approed by \4OCS, it must then be submitted to the Sta teFinancial Control Board for approval. While DIIS a lso mus t submit the contract to the ewYork City Comptroller for registration pursuant to the PPB Rules (and fully intends to do SO), itsill do so only after completi n of tnese procurement steps and upon completion of thc


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SEQR;\ CEQR and Fair Share Reviews required for the BRC contract. Ihe contract will not hesigned by t he C ity until it is submitted to the Comptroller and \ ill not take lecal effect until theComptroller registers it. \as hak AlE, 24-28C. SEQRA/CEQR, Fair Share Reviews

I)IIS is also in the process of performing review of the E3RC project pursuant toSEQRA;CEQR an d the City Charters Fair Share Review Criteria. DFIS staff has classified theproposed shelter at th e S ite as an Unlisted action for purposes of SEQRA/CEQR. DHS hasarranged for an outside consultant to prepare an Environmental Assessment Statement analyzingthe BRC projects potential for significant adverse environmental impacts in the relevant impactcategories specified in the SEQRA/CEQR implementing regulations and the New York CityCEQR iCchnical Manual, DHS will make this Environmental Assessment Statement publiclyavailable before it submits any contract for this facility to the Comptroller for registration. IfDIIS determines that the f ti cil ity does have the potential to cause significant adverseenvironmental impacts, it will perform additional environmental review, including an assessmentof measures to mitigate impacts, before it submits the contract to the Comptroller for registration.SEQR\ CEQR review of the BRC project is underway and is expected to be completed withinthe next four to six weeks. Nashak Aff.. 25-28

DIIS has a ls o commenced the preparation of an analysis under the Charters FairShare Criteria, which will address issues such as the ability of the proposed site to deliverservices etlicientlv and whether similar facilities are already concentrated in the CommunityDistrict where the Shelter is to he located. DI-IS will disseminate its written Fair Share analysisto local elected officials and governmental bodies, as specified in the Eair Share Criteria, beforeit submits any contract for this facility to the Comptroller for registration. Further, if otherrequjred procedural steps are satisfactorily completed, DHS will, consistent with the Fair Share


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Criteria. offer to meet with the local community board to discuss any concerns about the siting ofthe proposed facility. lair Share reiew of the E3RC project is expected to he completed at thesame time as DIIS SEQR CEQR resiew. Nashak All., 30-31.

ARGUMENTPETITIONER hAS FAILED TO SATISFYTHE REQUIREMENTS FOR APRELIMINARY INJUNCTIONCONCERNING ITS REMAINING CLAIMSAGAINST MUNICIPAL RESPONDENTS

Interim injunetie relief is a drastic and extraordinary remedy to be granted onlyhere the moving party has demonstrated a clear right to such relief See (hester CivicImprovement Ass n Inc. vV Y City Trant Auth., 122 AD2d 715, 717 (1st Dept 1986). It iswell established that the drastic remedy of a preliminary injunction is no t to be granted unless ac lear righ t to the relief demanded is established under the undisputed facts upon the moingpapers, and that the burden of shoing such an undisputed right is on the person seeking suchrelief Brandt v. BartleU, 52 A.D.2d 272, 275 (3d D ept 1976); s ee also East 13th St.Homesteaders Coalition v. LoMer East Side Coalition lIons, Dcv, 230 AD2d 622, 623 (1stDept 1996).

Injunctise relief may be granted only where the moving par ty has established allof the following: (1) it is ultimately likely to succeed on the merits; (2) that it will sufferirreparable injury if the preliminary injunction is not granted; and (3) on balance, the equitiesfavor granting the preliminary injunctionSee State o/ v v Fine, 72 NY.2d 967, 968-69(1988); see also Aetna Ins, Co v Capasso, 75 NY2d 860 , 862 (1990). Petitioner bears theburden of prosing these elements by at fida it and other competent prooL with eidentiarydetaiL Do e v Jxlrod, 73 NY.2d 44 , 45 (1988). CR has fai led to meet its burden of


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sa tisfying any of these elem ents, much less all three of them and, therefore, Peti tioners requestmust be denied.I. PETITIONER HAS FAILED TO DEMONSTRATE IRREPARABLE IN JURY AS

A RESULT OF THE LACK OF ANY REQUIRED LAND USE ANDENVIRONMENTAL REVIEWSCit alleges that BRCs ongoing renovation work -- authorized pursuant to DOB

permi ts--constitu tes irreparable injury that warrants a prelimina ry injun ction. However, as theseallegations concern DOB determinations, they are stayed pursuant to the Cour ts January 10,2011 , Decision and need not be addressed here. Nonetheless, it is wo rth noting that, in decidingBRCs stay motion, the Court has already considered CFC s claim that it would be irreparab lyharmed by BRCs ongoing renovation work and rejected it. See Decision at 7-8. The City willno t belabor the Court with a repeat of those arguments here.

Petitioner also seeks a preliminary injunction preventing the use of theproposed facility for the homele ss she lte r and BRCs other programs. However. CFC prov idesutterly no explanation of how it would be harmed by such use . Moreover, New York courts haveheld tha t the actual use of land does not constitu te irreparable harm for purposes of a pre lim inaryinjunction, even where such a use is alleged to be unlawful. Dodgeriown Homeowners Ass n, v.city of New York. 235 A.D.2d 538, 539 (2d Dept 1997) (vacating prelim inary injunctionpreventing use of bu ilding as a homeless she lter pending required ULIJRP review) ; Green tree atMurray Hill condo. v. Good Shepherd Episc opal church, 146 Misc.2d 500 (Sup. Ct., N.Y . Cty1989) (denying prelim inary injunction preventing use of a church for a hom eless shelter pendingcompliance with applicable environm ental and zoning laws, where petitioners were notirreparably injured from such use); Golden v. Steam HeaL Inc., 216 A.D.2d 440 (2d Dept 1995)(reversing grant of a prelimina ry injunction where plaint iffs failed to demonstratc that use ofproperty as adult en terta inment establishmeni would cause them irreparab le injury). As these

10


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ca ses make clea r, there is no basis thr the Court to prelim inar ily enjoin use or occup ancy of the1icility for in tended purpose of providing shelter for homeless Ne Yorkers and other services .

CFC also claims tha t DHS is legally mandated to perfbrm LLURP. Fa ir Shareanalysis, and SEQRArCEQR review fbr the project and tha t DIlS failure to perfbrm thesereviews itself constitutes irr eparab le ha rm warranting emergency relief from this Court. SeeMemorandum of Law in Support of Preliminary lnunction and Verifie d Pe tition (Pet. Mern .)at I 1. CFC is wrong. CFC is no t and will be no t harmed by any such alleged failure . As for theSEQRACEQR and Fair Share reviews that CFC seek s, DHS is currently in the process ofperforming the se reviews and will not fin alize any contract with BRC for the project until the sereviews are complete. Thus, there is no failure to fo llow these review s or resulting harm as CFCclaims. With respect to ULURP (and as fur ther explained below in Poin t IL), CFCs claim thatDIIS contract with BRC is subject to LL[RP is incorrect. 1 he I3RC contract is not a lease anddoes not fall within any other category of City ac tio n sub ject to ULURP rev iew; accordingly,CFC is not harmed by the absence of ULURP review because none is requ ired .

Even assuming ULURP review is required, CFC is not irreparably injuredbecause it has an adequate remedy at law in the form of its underlying Article 78 proceeding.Kane v Walsh , 295 N.Y. 198 (1946 ) (preliminary injunction denied where ac t sought to beenjoined could he dealt wi th by a mandamus proceeding under Article 78 of the CPLR): to theMatter of Camp Scarico v. Columbia County Dep 1 of Health, 277 A.D.2d 689 (3d Dept 2000)(preliminar injunction staying administrative hearing denied where plaintiff had adequateremedy at law in the form of an Article 78 proceeding in the na ture of certiorari); NassauRoo fIng Sheet Metal Co. v Facilities Dcv. Corp 70 A.D.2d 1021 (3d Dept 1979)(preliminary injunction preventing agency from disqualifyin g contr ac tor denied wh ere Article 78PR Led1r oa l i pros ide mas ant th ll mLa r of rJit t it c t as


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.\.D3d 250 (1St Dept 2006) preliminarx injunction directing Planning Commission to vote onplaintitis development proec1 was improper where injunction effectively granted the ultimaterelief sought h plaintiffs).

Similarly, there is no question that this Court has ample authority to providecomplete relief on Petitioners underlying Article 78 claims. As CFC itself recites in its petition,this Court has the power to vacate any DOB permits under CPL R 7803(3) if it finds that they areaffected by an error of law, arbitrary and capricious or an abuse of discretion, and tocompel any environmental and land use reviews that it decides are required fo r th e BRC projectunder CPLR 7803(1). See Spitzer v. Farrell, 294 A.D.2d 257 (1st Dept 2002) (nullifyingnegative declaration and directing the consideration of air quality impacts); County of Orange v.Village of Kiryas Joel, 44 A.D.3d 765 (2d Dept 2007) (remitting case to Village Board forpreparation of an EIS); Council of the City ofNY v. (iiuliani. 93 N.Y.2d 60 (1999) (upholdingannulment of sub-lease from New York City Health and Hospitals Corporation to private partytb r failure to perform ULLRP review); Silver v. Dinkins. 158 \lisc.2d 550 (Sup. CL N.Y. Ctv.1993) (nullifying Citys selection of sites for ehicle fueling facilities for failure to comply withthe Fair Share Criteria). Thus, contrary to Petitioners claim, the Citys alleged failure toconduct any of these reviews does not constitute h arm p er se and there is no basis for the Courtto i ssue any preliminary injunction on these grounds.

Fhe two cases relied upon b CFC. Stop BHOD v Cdv o/:Vew York, 2009 WL 692080 (Sup Ct. Kings Cty Mar.V 2009) tnd C ni &a 3 Sr u 101 \Ibc d 59 iSp Ct Qan Ci\ l991 do not pros de am. ba to theCourt to issue a preliminary injunction based on the Citys alleged failure to conduct environmental review of theDO B permits. In Stop BHOD, the Court issued a preliminary injunction based upon its determination that thereould be irreparable harm if the City ssere allowed to proceed with a significant expansion of an extstingjail. Herethere is no coimtruction by the City and no new or expanded structures Moreover, in Cmty. [3d. 3 the Court basedits issuance of a preliminary injunction on the respondents admitted failure to follow statutory requirementsgoverning prior notice tor a hearing. The relevant law in that case specificall\ required the issuance of an injunctionand in the event of such a Idilure and the Court based its injuncticm on the statute, In this cas e, the re a re no specificrequirements for an in junction and CFC does not allege that it was deprived of Jegally mandated notice of a hearing..


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II. PETITIONER IS UNLIKELY TO SUCCEED ON THE MERITS OF ITSREMAINING UNDERLY ING LEGAL CLAIMSIn addition to its now-stayed claims against DOB, CFC raises a litany of alleged

other offenses that DHS has comm itted by proceedin g with its proposed contract with BRC. Asfurther explained below, CFC is not likely to succeed on the merits of any of these claims a s theyare eithe r unripe for review or just plain wwng. Equally imp ortant, CFCs petition. at its core, isfatally flawed because Petitioner fails to ev en allege that CFC or any of its members has standingto ch allen ge Respondents actions.

A. CFC Has No Standing to SueNew York courts have long held that for standing purposes, a petitioner in a land

use or zoning matter atmust show that it would suffer direc t harm , injury that is in some waydiffe rent from that of the public at large and, in cases involving environm ental harm, must alsoallege direct injury to the use and enjoyment of the affected natu ral resources. See Soc> of

Plastics India. v. County of Suffolk, 77 N.Y.2d 761, 772-74 , (1991); Matter of Save the PineBusk Inc. v Common Council of ihe City ofAlbany, 13 N.Y.3d 297, 305 (2009) (gene ralizedinteres t in the env ironment could not confe r standing to challenge environm ental injury).Additionally , courts have held that where private part ies seek to enjo in a use that violates zoninglaws, they must al lege and prove special damages, Le.. the complained zoning vio lationsubs tantial ly injures their pro perty rights. Cf San tulli v. Drybka, 1% A.D.2d 862, 863 (2dDept 1993) (in order to maintain private action to enjoin zoning violation, plaintiffs mustestabli sh standing by demonstrating through specific detailed evid ence that they suffered adiminution of value of their property).

As the States highest court has held, stand ing is no t to be assumed; it is anindispensable element of the verified pleadings. See Matter of Su re the Pine Bush. .cupra. 13

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N.Y.3d at 306 (2009) (standin g req uiremen ts are not mere plead ing requirements hut rather anindispensable part of the plaintiffs case and therefore each element must be supported in thesame way as any other matter on \hich the plaintiff bears the burden of proof). As the Court ofAppeals further held,[pjlaintiffs must not only allege, bu t if the issue is disputed must prove,that their injury is real and differen t from the in jury most members of the public face. Id.

CFCs petition. which simply states in conclusor fashion tha t Petitioner hasstanding because its members consist of area businesses and property owners (se e Pet. at 10),falls far short of the specific pleading requirements required for legal standing. indeed. CFCsvoluminous 124-page pleading is devoid of any description of how it or any of its individualmembers may be injured by Respondents conduct. Because Petitioner has utterly failed toallege that it will suffer in jury that is different in kind from injury to the public at large, it lacksstanding to sue. Therefore. CFC is not like ly to succeed on the merits of any of its legal claimsand is accordingly not entitled to the extraordinary remedy of a preliminary injunction.

B. CFCs SEQRAICEQR and Fair Share Claims and Its ClaimConcerning Comptroller Registration of the BRC Contract areUnripe

CFC argues that even if its zoning claim is unripe on exhaustion ground s, itsrem aining claims against DHS und er IJLURP, SEQRA/CEQR. the Cha rters Fair Share Criteriaand the Administrative Code should be heard by this Cour t because there is no administrativeappeal process available under these las. Pet .Mem. at l3.Error! Bookmark not defined. fn5. Fiowever, CFCs SEQRA/CEQR and Fair Sha re claims are plainly unripe as there has bee nno final ac tion on the part of DHS concerning these reviews or its contract with I3RC and .therefore . no final agency ac tion tha t would trigger judicial review.

An atencv action is final, or ripe for judicial rev iew , when the decision-maker hascome to a detnitive pos ition that has caused an actual. concrete injury to the petitioner.


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(hurch of Si. Paul & Si. Andrew i. Burii /ck. 67 \.Y.2d 510. 5 19 (1986> challene toLandmarks Preservation Commissions landmark designation not ripe, where building owner hadnot made any application to the Commission fo r building alterations); Young v. Bcl, of iruslees ofthe VIII. of BIusdeli, 221 A.I).2d 975. 977 4th Dep t 1995). at/tI, 89 N.Y.2d 846 G996)(challenge to agencys SEQRA determination concerning a so lid waste transfer station not ripe ,where plans had not yet been approved); Viii. of Skaneateies v, Bd. of Educ,, 180 Misc.2d 591,595 (Sup. Ct. Albany Cty. 1999) (challenge to Board of Educations proposal to construct a busgarage not ripe where permits had not been issued by the Department of Transportation).Moreover, the alleged ha rm must no t be contingent on ftuture events that may or may not com e topass. .V I State inspection. SecurTh & Law Enfircement Employees v. Cuomo. 64 N.Y.2d 233 .240 (1984) (challenge to State Department of Correctional Services plan to clo se a pris on notripe where prisoners had not yet been relocated to other faci lities).

As the Court of Appeals has reasoned, the requirement of linalitv or ripenessserves to conserve judicia l machinery for problems which are rea l and present or imminent, notto squander it on abstract or hypothetical or remote problems, (hurch of St. Paul & Si, Andrew ,67 N.Y.2d at 518 (internal quotations and citations omitted). Moreover, limiting cour ts to thereview of issues that are ripe for rev iew promotes judicial economy. Village of Skaneateles. 1 80Misc.2d at 595. These requirements also protect the administrative process from premature andunnecessary judicial interference. See Abbot t Labs . v. Gardner. 387 U.S. 136, 148-3 9 1967).Petitioners are aggrieved only hen the agency commits to a delinite course of futu redecisions regarding the challenged agency action, Young v Rd. 0,1 Trustees, 89 N.Y .2d at 849,not determinations that are contingent and conditional. .V I State In.peciion, Security & LawEnfrcemcni Employees, supru. 64 N.Y.2d at 240.


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I Icre, there has been no final action by Dl IS. Ihe contract providing tbr Cityfunding of the shelter portion of the BRC project is still in the process of being reviewed, and itis not ye t final. Nashak Aft.. J 25-26. DHS is also currently in the process of conductingSEQRA/CEQR and Fair Share reviews of the BRC project. but these reviews are also not yetcomplete and need not be completed until review of the funding contract is complete and thecontract is submitted to the Comptrollers office for registration. which is not expected to occurfor several weeks at the earliest Moreover, while DFIS will submit a final contract to theComptroller for registration, it cannot do so until these other steps are taken. Nashak Aff., J 25,30, 31 . Without a final agency action, the Court cannot evaluate whether a controversy exists orwhether the Petitioner will suffer a concrete injury as result of DHSs conduct. Thus, CFCsSEQRA/CEQR and Fair Share claims and its claims concerning registration of the contract areunripe and should not be heard b the Court.

C. Petitioner is Not Likely to Succeed on the Merits of Its ULURP ClaimPetitioners contention that the City must perform ULURP for its funding of the

Shelter that will be located on the site is baseless as a matter of law. The City Charter, at section197-c, sets forth twelve specific categories of land use actions that are subject to ULURP. AsUL[RP review is only required for projects in these twelve categories, and none of thecategories apply to the proposed shelter at issue here. ULURP review is no t required. See. e.g...Starbiirst Realti Corp. v. City ot .Vew York. 125 A.D.2d 148, 158(1st Dept 1987) (rejecting

Additionally, it should be noted that CFC is not cha!1nging the adequacy of any reviews but merely seeking tocompel them to be conducted by the City. Pet at 124. Given that the City has, in fact, already conducting thesereviews. (ECs claims in this regard are moot. See t!uncr of 1-learsi (orp (7vne, 50 NY 2d 70 , 714 (1980)action for nJuncnon compelling Jsc!osure of transcripts rendered moot here transcript had airead\ beenprovded). Sm larly moot s CEC, demand that the F3RC contract be made publcly ava iable as t wa s madeubilci aaLble prier tO hearines on :he pror.osed contract Nashak \tf., r 75


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ULURP claim where type ol action at issue was no t specifically enumerated in the Charter assubject to ULURP).

Courts have repeatedly held that City land use actions, including theestablishment of homeless shelters, are not subject to ULURP if they do no t fall within one of theCharter-specified categories. See Ferrer v. Dinkins, 218 A.D.2d 89, 90-95 (1st Dept 1996), lv .denied, 88 N.Y.2d 801 (placement of homeless families in a shelter was not an action subject toULURP); see also Lucia Plaza v. City of N. K, 305 A.D.2d 604, 605-6 (2d Dept 2003) (noULURP required for a long-term contract between OHS and a nonprofit service provider,pursuant to which the provider acquired, renovated, and operated a homeless shelter); CmtyPlanning BcL No. 4 it Homes for the Homeless, 600 N.Y.S.2d 619 (Sup. Ct. N.Y. Cty. 1993)(homeless shelter no t subject to ULIJRP because it did not constitute any of the types of land useprojects subject to ULURP, and the statute is inapplicable to all other actions); see also 62R.C.N.Y. Appx. A, 9.1, Attachment B (Temporary housing and Transitional housingincluded among examples of types of City thcilities not subject to the Uniform Land UseReview Procedure); Nbhd. in the Nineties i Cl(yofNi, 901 N.Y.S.2d 900 (Sup. CL N.Y. Cty.2009) (rejecting claim that zoning variance granted to single-room-occupancy residential facilitywas subject to ULURP).

CFC argues that the homeless shelter must be reviewed under ULURP becauseDHS contracting with BRC to operate it will constitute the Citys acquiring real property bylease. See Charter, I 97-c(a)( 11). This is patently wrong. The proposed contract betweenBRC and OHS is demonstrably no t a lease of real property. See Nashak Aft, 33, Ex. E (copyof contract). BRC, not OHS o r any other City entity, entered into a lease of the Site with thebuildings owner several months ago. Id. DHS is not a party to this lease and will not take anyproperty interest in the Site or the Shelter, even if it is successful in entering into a long-term

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contract with BRC to refer clients to the Shelter and prov ide funding for its operation. 11 Nordoes Pe titioner off any factual support nor is the re anyfor its contention that the arrangementbetween DHS and BRC will be a pass-through and that the BRC lease of the property and thewholly separate DLIS-L3RC contract should not be taken at face value. Accord ingly, this projectdoes not fit within the le ase category of actions subject to LJLURP. See, e.g., Lucia Plaza ,supra, 305 A.D.2d at 605-6, see also Davis v. Dink ins, 206 A.D.2d 365, 368 (2d Dept 1994)(ho lding that contract for operat ion of homeless she lter did not constitute lease of real propertysubject to ULIJRP even where City had contracted directly with owner of premises).

Additionally, DHS role in funding the Shelter is not a si te selection fur a Citycapital projec t pursuant to section 218 [of the Charter l and is there fore subject to IJLURP. SeeCharter, I l97-c(aXS) . The Shelte r is not a City capital project, as the renovation workassociated with configur ing it for sheltering home less people and BRC s other programs is beingperformed by BRC, not DHS or any other City entity. See Nashak Aft., 34. More importantly,the City is not expending any capital funds in conjunction si th the Shelter . It! Petitionersallegation tha t prov isions in the proposed contract w hereby DHS will compensate BRC for someof the costs of furnitu re and equipment render the Shelter a capital project (Pet. at 47) ismisguid ed. The funds in question will come from DHS expense budget, no t its capital budgetlet; see also .Vbhcl in the Nineties. supra. at 1l (obse rving, in rejecting ULURP claim, that theonly capital proje cts sub ject to this prov ision would be projects in which the City takes anownership position); Lucia Plaza, supra, 305 A.D.2d at 605 (rejec ting ULURP claim shereCitys contract with nonprof it called for City payment of certa in startup costs).

Finally. CFC contends tha t DHS plan s to assist in finding the Shelter constitute ahousing and urban renewal plan [orJ. . .project pursuant to Ci ty, State, or Federal law andtherefore are subject to UL tJRP. See Charter. l97-c (a)(8). Th is cla im has no basis in reality.

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Contracting to fund a homeless shelte r is not making or implementing a housing plan. See IV.9?&W . 9t St. Block Ass n. supra. 190 A.D.2d at 309 (the referral of the hom eless to, and thepro vision of necessary service s at, one SRO hardly constitutes the type of plan envis ioned bythe ULURP scheme sin ce the dispu ted contrac ts do not involve the use of real property norcontemplate any general housing strategy). Petitioners at tempt to charac teriz e the MayorsFive-Year Plan for combating homelessness as a City law triggering this provision is simi larlyunavailing; the Mayors Five-Year Plan is a statement of pol icy goals and strategies, not a legallybind ing document or a basis fur housing and urban renewal plans. See Nashak Aff.. 35.

Courts rep eatedly have rejected attempts to shoehorn pro jects that do notconstitute land use ac tions sub ject to ULURP into the enumerated ULURP categories and CFC sattempted shoe-horning should also be rejected here. See, e.g., Lucia Plaza, supra Nbhci in theNineties, supra; Cmty Planning Bit Na 4, supra. DHS funding of the Shelte r is not sub ject toULURP review, and. therefore, Petitioner is not likely to succeed on the merits of its ULURPclaim.

D. Petitioner Is Not Likely to Succeed on the Merits of Its AdministrativeClaim under New York City AdminIstrative Code 21-312Next on CFCs laundry list of cla ims against the Municipal Respondents is its

claim tha t the BRC facility violate s New York City Adm inistra tive Code Section 21-3 12, in thatit will constitute a shelter housing more than 200 homeless adults. This claim is meritless.Pursuant to the contract between DIN and BRC, the only shelte r th at will be housed in BRCsnew facility will be the new 200-bed Shelter. While othe r programs will also occupy thebuilding, these fac ilities are not shelters but detox ifica tion, chemical dependency and mentalhealth counseling and case management facilities as well as administrative offices and acafeteria. None of these facilities, except the detoxification facility, will even have beds, and all

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will be available to all of BRCs clients whether or not they are sheltered in the facility. SeeNashak AIr., 21. BRC has s tated its int ention to move ex isting reception beds to the Site, butthese plans are not final and are not part of any con tract w ith DHS. Nashak AlT, 123.

In any event, CFCs claim ignores the fact that Administrative Code Section 21-315(6) permits the City to operate two shelters housin g up to four hundred persons each asreplacements for Camp LaGuardia, DHS 1.000 bed mens shelter in upstate New York thatclosed in 2007. Nashak AlT., 35. Thus, even if DHS were to succeed in fina lizing a contr actwith BRC to operate a shelter at the Site, and even if BRC were to execute its stated plan ofmoving part of its other program s to the Site, and even if the additional beds associated withthose programs were trea ted as shelter for this purpose, the new BRC facility would not b e invio lation of the Administr at ive Code because it would not exceed 400 beds and would thereforebe permissible as rep lacem ent capacity for Camp LaGuard ia under Section 21-315(6). For thesereasons, CFC is not likely to succeed on the merits of its Administrative Code cla im and the re isno basis for the Court to issue a prelimina ry injunction on that ground.

III. THE BALANCE OF EQUITIES TIPS DEC IDEDLY IN FAVOR OFRESPONDENTSWhere, as here , the balance of the equitie s favors Municipal Respondents, a

preliminary injunction should not be granted. It is beyond dispute that the City of New York,through DM5, has a lega l and moral obligation to provide housing and services to its homelesspopulation. Moreover, DHS cu rrently has a critical need for she lte r capacity to which it can referhomeless men seeking shelter, which the BRC facil ity is intended to meet. In addition, theprocess of securing a contract with a socia l services provide r typically takes six to nine months tocomplete. Nashak All.. 39-40

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If the C ourt were to enjoin Dl IS efforts to fina liz e its contract \\ith I3RC faroperation of a shelter at the Site, or use of the site for temporary emergency sh elte r, DI-IS abilityto ful fil l its leg al mandate would he seriously imp eded. Th e le ngt hy lead time re qui red to secureadditional shelter units to meet each homeless New York ers immediate demand far sheltermeans tha t a sudd en inte rru ptio n of progress toward the use of the Site as a shelte r wouldsig nificantl y and ne ga tiv ely im pact DIIS operations. Id. at

Even if the Co urt were to dete rm in e that CF Cs legal claim s have me rit, whichthey do not, it should not grant injunctive relief. Blocking BRC from use of the Site wo uld beun fhir and unjust, given the dem onstrated need for shelter am ong hom eles s New Yorker s.Moreover, as described above , Petitioner has failed to de m ons trate that it wou ld be harmed byany of Respondents conduct. See Po in t IA.,supra. Thus, the balance of equities tips decidedlyin Favor of Respondents and injunctive relief sh oul d he denied. See Matter of Lucia Plaza v. Citiof.\ Y..supra (preliminary injunction preventing City from renovation of a va cant building foruse as a homeless shelter den ie d given City s lega l mandate to provide homeless shelter); W9_ if . 9N St. Block Ass ii v, lolzgnteers of America of Greater Vew York, 153 M isc .2d 32 1(S up . Ct. N.Y. Cty. 1991)(preliminary injunction preventing occupancy of low income res idenceby persons in need of help is not equitable).


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CONC I. U S IONFor the foregoing reasons, the Municipal Respondents respectfu lly request that

the Court deny Petitioners motion for a preliminary injunction.Dated: \Jev York. New YorkJanuary 25. 2011

MICHAEL A. CARDOZOCorporation Counsel of theCity of New YorkAttorney for the Municipal Respondents100 Church Street, yNew York, Iew \ ork 1000(212) 78j

By:

OK ounse l:Amanda Goadhaley Stein

STOPHER GENE KINGAssistant Corporation CounselEnvironmental Law Division


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IN


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SUPREME COURT OF ti-IF SfAFE OF NEW YORKCOUNTY OF NEW YORK PART IiIn the Matter of the Application ofCHELSEA BUSINESS & PROPERTY OWNERS INDEX NO. 113194/10\SSOCIAflON, LLC, dfb/a CHELSEA FLATIRONCOALITION,

PetitionerFor an Order Pursuant to Article 78 of the CivilPractice Law and Rules

-against-THE CITY OF NEW YORK; SET}I DIAMOND.Commissioner for the Department of Homeless Servicesfor the City ofNew York (DHS); GEORGE NASHAK,Deputy Commissioner for Adult Services for DHS: ROBERT0. LIMANDRI, Commissioner for the Department ofBuildings of the City of New York (008); FATMA AMER,PE., First Deputy Commissioner for DOB; JAMES P.COLGATE, R.A., Assistant Commissioner to TechnicalAffairs and Code Development for DOB; VITOMUSTACIUOLO, Deputy Commissioner for the Departmentof Housing, Preservation & Development of the City of NewYork; BOWERY RESIDENTS COMMITTEE, INC.;127 WEST 25 LLC; and DANIEL SHAVOJiAN,

Respondents.x

JOAN A. MADDEN, J.:Respondent Bowery Residents Committee, Inc. (Bowery Residents) seeks a stay of themotion of petitioner Chelsea Busiress & Preper-ty Owners Association, LLC, d/b/a Chelsea

Flatiron Coalition (Chelsea Coalitiorf) for a preliminary ard permanent injunction, and a stayof the underlying Article 18 proceedhw in which Cheisea Caahtion challenges, inter alia, the


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Department of Buildings (DOR) issuance of ertain building crmits. Bovery Residentsseeks a stay on the grounds that Chelsea Coalition has failed to exhaust its administrativeremedies before the Board of Standards and Appeals (BSA) and that BSAs determination mayrender this proceeding moot. Chelsea Coalition opposes a stay arguing that exhaustion is riotrequired where, as here, the issues before BSA relate solely to questions of law, or where theadministrative remedy canno t offer complete relief against irreparable harm created by thechallenged acts. Chelsea Coalition further argues that the court should reservejudgment pendinga hearing on the preliminary injunction, and if a stay is granted, it should only apply to the claim sbased on the D013 permits and zoning issues, and riot to the other relief sought.

In the Petition, Chelsea Coalition seeks an order: (1) revoking Bowery Residentsconstruction permits on the grounds that the DOB failed to enforce certain prov isions of theZoning Resolution of the City of New York (ZR) and of the Administrative Code of the CIty ofNew York, and, that DOBs determinations are arbitrary and capricious; (2) compellingrespondent Department ofHomeless Services (DHS) to submit its cont ract with RoweryResidents regarding the proposed facility to the Comptroller for registration; (3) compelling DHSto conduct a Fair Share review in accordance with Charter 203; (4) compelling the City tosubmit the proposed facility to Uniform Land Use Review Procedures (ULURP) in accordancewith Charter 197-c; (5) compelling DHS to conduct environmental reviews under the StateEnvironmental Quality Review Act (SEQRA) and City Environmental Quality Review

Bowery Residents also sought a stay of a prev ious brieng schedule in connection withhe request for a preliminary injunction which schedule this court vacated in an interim orderated November 29. 2010.


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CFQR); t6) preliminril and ermanertly enjoining DOB from issuing any constructionpermits br work on the proposed facility until compliance with ad applicable laws has beendemonstrated: and (7) preliminarily and permanently enjoining DOB from issuing any certificateof occupancy for the proposed facility or permitting occupancy of the proposed facility untilcompliance with all applicable laws has been demonstrated.

This proceeding involves the renovation of a building located at 127 West 25 Street inChelsea. The renovations are pursuant to a lease between the landlord and Bowery Residents,which provides accommodations and other services to the homeless. According to Bower)Residents, the renovations are to implement programs to be located within the premises,including a Reception Center and a 200-bed shelter. In his affidavit, Lawrence Rosenblatt, theExecutive Director of l3owery Residents, states that the primary goal of the renovation is toprovide temporary, transitional accommodations to New York Citys neediest homelessindividuals and to help them find permanent housing. However, as explained at oral argumentby counsel for Bowery Residents, the plan envisions an integrated campus, in which part of thepremises will be used for providing ancillary services to its temporary residents, many of whomhave substance abuse and mental health issues, and part of the premises will be used forprofessional offices for Bowery Residents staff These services include intake assessments,physical and mental evaluations, and certain treatment and counseling from physicians, nursesand other providers. Lawrence Rosenblatt describes these services as ancillary health relatedcomponents [that] are secondary to and merely supportive of... [thej primary purpose. .. [and]the overwhelming majority of stair at the Chelsea facility will be employed in non-medicalfunctions.


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Chelcea Coalition conteads that the DOB in app roving permits tbr the proposed facilityimproperly designa ted the prem ises a transien t hotel a hen in real ity it is a communityaci1 ity. In support of this contention , Che lsea Coa lition argues that the proposed fac ility Mu bea 328-bed, 100,000 square tbot in-patient and ou t-patient drug and alco hol rehabilitation faci lityand hom eless she lte r for the mentally ill. Chelsea asserts that the proposed facility is acommunity facility under the ZR such as a non-profit institution with steepingaccommodations,. a health-related facil ity , a domiciliary care facility and/or diagnostic ortre atm ent health care facility. Chelsea Coalition con tends that the DOB approved the permitsby imprope rly de sign ating the proposed facility as a Use Group 5 tran sien t hotel and Use Group 6professional offices. Acco rding to Che lsea Coalitio n, wh ile a hotel and profes sional offices arepermitted uses in the area under the ZR, a communi ty facility such as the health care and socialservices facil ity at issue here, is not.

In SuppOrt of its contention that the proposed facility is no t a transien t ho tel with in themean ing of the ZR and is in fact a comm unity facility, Chelsea Coalition points out that thefacility will not be open to the general pub lic, that medica l and counse ling services will bepro vided , and that the plans include nurses statio ns and examining rooms. Specif ically, Che lseaCoalition asser ts that half the building wilt be devoted to providing medical and va rious socia lservice s, and that the other half xviIi be used for a homeless shelter. Chelsea Coa lition also po intsto four sets of plans Bowery Resid ents has subm itted in connectio n with the ren ova tions , three toDOll and one see to the New York State Office of Alcoholism and Sub stance Abu se Serv ices

In support, the Petition points to Zon ing Regulatio ns 22-13 and 22-l-, and Fischer vj 127 Misc .2d 518 . 525-26 (App Term. i Dept 198a).


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(OASAS). Chelsea Coalition concnds that Bowerv Residents submitted different sets of plansto different aencies, ard as in example, points out that the pian.s submitted to OASAS detailnurses statiors and examining rooms, whi!e those submitted to DOB do not.

Chelsea Coalition argues that the determination as to whether the DOB properly issuedpermits and whether the proposed facility is a community facility are questions of law which dorot require exhaus tion of administrative remedies. Chelsea ftirther argues that a communityfacility implicates community oriented processes, such as environmental reviews pursuan t toCEQR and SEQRA, and reviews under fair share laws and ULURP . Chelse a Coalition arguesthat continued construction without such reviews results in irreparable harm as it deprives thecommunity of input into governmen tal decision making provided for under the regulatoryschemes of these laws.

In support of its motion, Bowery Residen ts contends tha t the DOB properly issued thepermits and tha t different plans result from evolution of the plans for the project, as it works withind ividual agencies to address thei r specific concerns and area s of responsibilities. For example,Bowery Residents alleges that plans submitted to OASAS detail nu rsing stations as it is theagency which approves operating cer tification for providing such services . E3owery Residentsalso contends that the parties dispute certain facts and the relevance of the facts as to whether theproposed facility is a community based facility. Bowery Residents points to the disa greemen t ofthe parties as to the relevance of the duration of stay of its clients and the relevance of thepercentage of admini strative, management , medical and other staff to DOBs determinations, Asto the claims in the Petition that the propo sed facility is a community facility md continuedconstruction wil deprive the commun ity of inpu t into governmental decisionmaking under


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CEQR and SEQRA, and lair share and ULLRP reviews, Eowery Residents dees not argue thatthese claim s are unripe based on failure to exhaust administrative remedies. Rather. it arguesthat the claims are unripe as there has been no rele ant City action to mandate reviews underCEQR, SEQRA, ULURP or fair share review laws. In support of this argument. BoweryResidents asserts that the DHS has not entered into a contract with it, and }3owery Residents isrenovating the buildin g pursuant to its lease with a private party, and using its own and otherprivately obtained funds.

As to whether exhaustion of administrative remedies before the BSA is required, theCourt of Appeals

has freque ntly recognized that the BSA is co m pr ised of experts inland use and planning, and that its int erp ret ation of the ZoningReso lutio ns is ent it le d to deference. So long as its inte rpreta tion isneither irrational, unreasonable nor in consi ste nt with the governingstatute, it will be upheld. Of course, this pr in cipl e does not apply topurely legal determinations; where the question is one of pure legalinte rpr eta tio n of statutory terms, deference to the BSA is notrequired. However, when applying its special expe rtise in aparticu lar field to interpret statutory language, an agencysrationale construction is entitled to deference.New York Botanical Garden v Board ofStandurclc and Appeals of the City ofNew York, 91N Y 2d 413, 419 (1 998) [internal citations and quot ati ons omitted].

Here, at this stage of the proceedings and on the record before this court. it cannot be saidthat the DOD det erm ination s at issue, are questions ofpure legal in ter pre tat io ns of sta tutoryterms. Rather, the legal analysis is fact driven and requires. inter alia, an intricate analysis ofcriteria for evaluating and categori7ing use within the cont extu al framework of the ZR. Asidentified by the parties, 3ome of the factors involved in this analysis are the cjnfiguration of the


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premises in rclaion to its stated purpose or intended use, percentages of diftreat categories ofstaff detinitions related to use and EISA precedent. Issues of this nature and complexity shouldbe presented in the first instance to EISA, the administrative body with the necessary expertise toconsider the underlying merits. JVeissman v City ofVew York. 96 AD2d 454, 456 (1 Dept), appdism 60 NY2d 815 (1983) (ten ement owner& failure to exhaust administrat ive remedies throughreview before EISA dispositive where EISA had the necessary expertise and primary jurisdictionto consider complex issues involving the interpretation of zoning resolutions).

[he court rejects Chelsea Coal itions argument that a stay should not be granted as EISAcannot grant complete relief against the irreparable harm it alleges has been created by DOBsissuance of the permits. Specifically , the relief Chelsea Coalition argues that the EISA cannotgrant is injunctive relief barring the construction. Chelsea Coalition points to Lesron Junior, Inc.v. Feinberg, 13 AD2d 90 (l Dept 1961), in support of this argument. The court concludes thatthe facts in this action which involve renovation of an existing build ing, are distinguishable fromthose in Lesron vhere the issues involved new construction. In Lecron, the court foundirreparable harm on the grounds tha t EISA could not grant plaintiffs an injunction against theerection of an illega l structure where the construction involved a 16-story tower buildingallegedly being built in violation of both the Multiple Dwelling Law and the ZR, and whichtower would obstruc t the light and air of the adjoining bui lding. Here, the construction involvesinterior renovations of an ex ist ing building, arid it cannot be said that interior renovations mayresult in harm comparable to that resuiting from the erection of a new building. The fact that therenovations may include replacem en t of much of the interior infrastructure incuding the HVAC,electrical and fire systems, and the replacement of all floors, the roof and the basement such that


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they may fairly be charac teriz ed as a gut renovation, does no t change this conclusion.l3ased on these conclusions, the court grants Bowery Residents motion for a stay on the

grounds tha t Chelsea Coalition has failed to exhaust its adm inis trat ive remedies, to the extent ofstaying the claims relating to DOBs determinations including the permits it issued in connectionwith the construction at the bu ilding.

As to Chelsea Coalition s claims that the community is deprived of input intogovernmental decision-making under CEQR and SEQRA, and that reviews are reaui red underULURP and fair share laws, the stay is denied. The record is insufficiently developed for adetermination of the issues raised with respect to these claims. Significantly, while the Cityrespondents par ticipated to some extent in oral arguments on this motion, it did not submitpapers. The issues related to these claims will be considered in connection with Che lseaCoalitions motion fo r a prel imina ry injunction and the court is setting a briefing schedule and adate for oral argument as indicated below.Acco rd ingly , it isORDERED that the motion of respondent Bowery Residents Committee, Inc. is granted

only to the ex tent that the claims related to the Departm ent of Buildings determinations arestayed until further order of this court or a determination by the Board of Standards and Appeals,and the motion is denied as to the remaining claims: and it is further

ORDERED that wi thin 15 days of the date of this order, respondents shall serve and tileopposition to petitioners motion for a preliminary injunction as to the claims unrelated to thedeterm inations of the Department of Buildings: and it is further

ORDERED that petitiurer shad erve and file reply papers, if any, within seea days of


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receipt of the opposition papers: and it is furtherORDERED that all papers are to be ficd th the Cl erk of Part ii Room 351); and it is

furtherORDERED that the parties shall appear for oral argument on February 7, 2011 at 3:30

pm, in Part 11, Room 351 60 Centre Street; and it is fur therORDERED that at oral argument respondent F3owery Residents Committee , Inc. shall

inf orm the court and petitioner of the status of the construction and the expected date ofoccupancy, and the City respondents sha ll info rm the court and petitioner of the status of relevantcontracts and reviews.

Dated: January 10, 201 1 ENTER:

1. S. C.HON. ANA.MADDEN

1 .1.

Documents

MEMo of Law in Opp to PI Motion - fInal - (# Legal 2896883)