Description: SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK - CIVIL TERM - PART: 44
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COALITION TO REVITALIZE OUR WATERFRONT NOW, JOHN McGETTRICK, MICHAEL IHNE, SUSAN PEEBLES, JOSEPH BERNARDO and CHERYL STEWART,
Petitioners-Plaintiffs,
-against-
CITY OF NEW YORK, NEW YORK CITY PLANNING COMMISSION, AMANDA BURDEN as Chair of the New York City Planning Commission, NEW YORK CITY DEPARTMENT OF CITY PLANNING, NEW YORK CITY COUNCIL, IKEA PROPERTY, INC., and UNITED STATES DREDGING CORPORATION,
Respondents-Defendants
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Index No. 101955/05
111 Centre Street
New York, N.Y.
May 26, 2005
ORAL ARGUMENT
B E F O R E:
HONORABLE KAREN SMITH,
Justice
A P P E A R A N C E S:
URBAN ENVIRONMENTAL LAW CENTER
Attorneys for the Plaintiffs-Petitioners
475 Park Avenue South, 16th Floor
New York, N.Y. 10016
BY: ANTONIA BRYSON, ESQ.
NEW YORK CITY LAW DEPARTMENT
OFFICE OF THE CORPORATION COUNSEL
Attorneys for the City Defendants-Respondents
100 Church Street
New York, N.Y. 10007
BY: DANIEL GREENE, ESQ.
Senior Counsel
AVE MARIA BRENNAN, ESQ.
Senior Counsel
and CHRISTOPHER REO, ESQ.
Senior Counsel
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2 (Appearances continued:)
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WACHTEL & MASYR, LLP
Attorneys for the Defendants-Respondents
Ikea Property, Inc., and United States Dredging Corp.
110 East 59th Street
New York, N.Y. 10022
BY: KAREN BINDER, ESQ.
and ANNE F. McCAUGHEY, ESQ.
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ALAN F. BOWIN, CSR, RMR, CRR
Official Court Reporter
13 * * *
14 THE COURT: All right, petitioner,
15 you're up first.
16 MS. BRYSON: Good morning, your Honor.
17 My name is Antonia Bryson and I'm here representing
18 the plaintiffs.
19 I'll just give you a few introductory
20 sentences, setting up the case and then I'll get
21 right to the questions that your Honor set forth
22 before we commenced this oral argument.
23 We are here because we feel that the
24 rezoning of the Red Hook waterfront to allow a
25 mammoth Ikea store was a completely irrational act on
26 the part of the City Council and the City Planning
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2 Commission, both because the zoning is completely
3 improper and inconsistent with the surrounding area
4 and because the environmental review that was done,
5 in fact, was completely inadequate. And your Honor
6 is capable of overturning that, and I will explain
7 how that will go forward.
8 I know personal impressions are not
9 relevant here, but if your Honor has ever been to
10 Ikea in Elizabeth, New Jersey or to the Red Hook --
11 and to the Red Hook waterfront and traveled on the
12 Gowanus Expressway, you will understand why this is a
13 completely inappropriate site for this Ikea store.
14 The traffic will have to travel dozens of
15 blocks through very narrow local streets in order to
16 reach the store after it has exited from the Gowanus
17 Expressway.
18 And the neighborhood itself is industrial
19 and residential and contains no large commercial,
20 except for a new Fairway, which is now going to be
21 opening fairly distant from this site.
22 And if you look at Exhibit 3, which is a
23 color map setting forth -- which gives you a very
24 nice graphic representation of the land uses in
25 the Red Hook peninsula, you will see the entire
26 waterfront perimeter is industrial land. There are
ALAN F. BOWIN, CSR, RMR, CRR
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2 some very large parks which the Ikea traffic is going
3 to have to travel through, and the core center is all
4 residential.
5 Now, that map does not give you the scale
6 of the Ikea, which is also very -- excuse me -- of
7 Red Hook, which is very low-rise. There are very --
8 there are no tall buildings, no buildings over a
9 couple of stories in Red Hook, and some of the
10 streets are still cobblestone; cobblestone streets
11 are going to have to be removed for the Ikea.
12 So we want to give you an idea of the
13 setting in which this is taking place.
14 Now, you mentioned, before the oral
15 argument, that the plaintiffs have a high burden to
16 overcome with respect to the standard for overturning
17 an environmental impact statement, and we don't
18 dispute that. The "hard-look" standard is a very
19 difficult standard, but we would urge, your Honor,
20 that it doesn't mean that you can never overturn an
21 environmental impact statement; and indeed, although
22 cases have rarely done so, it must be the law, if
23 there is such a standard, that you can meet that
24 standard.
25 And the case of Aldrich versus
26 Pattison and Jackson, although they didn't overturn
ALAN F. BOWIN, CSR, RMR, CRR
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2 environmental impact statements, went through careful
3 analyses of the kinds of things the Court can look
4 at.
5 Let me address our factual points in
6 order. You indicated that you, at least, felt that
7 with respect to the failure to analyze the highways,
8 there was a credible claim there.
9 And we certainly agree that when the
10 City's only excuse for not looking at the highway
11 analysis is, their manual didn't tell them that they
12 had to, but that they do it in other instances, and
13 no explanation as to why it's rational not to look
14 at it other than what we believe is the implicit
15 explanation that, in fact, this highway, as we've
16 shown in one of our exhibits, is already at breakdown
17 conditions right now, that that is certainly
18 irrational and can be overturned under the existing
19 standard.
20 Secondly, it is not just the failure to
21 include information which makes an environmental
22 impact statement deficient. If the statements within
23 it either ignore evidence or are totally conclusory,
24 or are irrational in not following from the evidence
25 that was presented, we submit that your Honor can
26 look at that. And that is not just a battle of
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2 experts which we are showing. We are showing that
3 they either base their conclusions on no evidence or
4 they were inconsistent with the evidence.
5 Our first has to do with the neighborhood
6 character impacts, and in that one, what we show is
7 that their own manual has three or four different
8 conditions under which traffic can have an impact on
9 neighborhood character. They only looked at one of
10 those conditions, which is whether or not there were
11 so-called "significant traffic impacts." And they
12 didn't find any, so -- and we don't dis --
13 THE COURT: Does the manual say that they
14 must address all these issues or it gives it as a
15 guideline, that these are some of the issues you must
16 address?
17 MS. BRYSON: It says, any one of these
18 criteria can demonstrate an impact on neighborhood
19 character, and they did not look at the others; they
20 only looked at one.
21 And those others plainly show there is
22 an impact on neighborhood character because this is
23 being transformed from a fairly low-level traffic
24 area into one that's going to have 6,000 cars on a
25 weekday and 11,000 cars on a weekend. It's going to
26 have the streets leading up to the Ikea significantly
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2 changed by widening them; they're going to look like
3 suburban streets, essentially. They're going to have
4 those turning lanes, where you have to get in the
5 lane if you want to turn right or left, and they're
6 going to have the parking spaces removed near the
7 corner, and they're going to have stop signs replaced
8 with traffic lights.
9 So there's going to be a big change in the
10 way people who live in that neighborhood experience
11 their neighborhood, and that's what neighborhood
12 character is about.
13 THE COURT: Stop me from -- I mean, I
14 apologize for interrupting you, but it --
15 MS. BRYSON: Please.
16 THE COURT: -- I'm just trying to
17 conceptually understand this.
18 I understand that that's their proposal,
19 but my understanding is that they considered all
20 of this and whether or not it would impact on
21 the community or not, and they came up with the
22 understanding that by doing what they're doing,
23 because of the time when people would come to
24 the store, because of the high-flow, you know,
25 transportation times, in comparison to when people
26 would not shop, that --
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2 Again, they may be totally off base, you
3 know, and doing one of these, Well, we want this
4 outcome, so this is how we get to the outcome, but
5 the papers show that they considered all of this.
6 That's what I keep coming back to, that I'm
7 getting -- except for the highway. They show that
8 they considered all this and that their conclusion
9 is, it won't greatly impact the community.
10 MS. BRYSON: Right.
11 I'm making a distinction, and it may be a
12 subtle one, but it's a very important one for the
13 community --
14 THE COURT: All right, go ahead.
15 MS. BRYSON: -- that there are two
16 different categories of what's called "impact
17 analysis" under the Environmental Impact Statement.
18 One is whether there will be a traffic impact,
19 and the way that is judged, under the normal
20 methodologies, is how long you have to wait in your
21 car in order to get through an intersection. That's
22 a traffic impact.
23 THE COURT: Which you agree that they
24 did --
25 MS. BRYSON: That's the one they concluded
26 there won't be a problem --
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2 THE COURT: Right.
3 MS. BRYSON: -- because of all these
4 things they're going to make.
5 THE COURT: Right.
6 MS. BRYSON: -- and you won't have to wait
7 significantly in your car in order to get through the
8 intersection.
9 THE COURT: Fine. And they're going
10 to change the number of minutes the light's on and
11 whatever.
12 MS. BRYSON: Correct.
13 And they're confusing and conflating that
14 with the "neighborhood character impact," which is a
15 different impact, and that has to do with whether or
16 not the character of the neighborhood, which is
17 elusive but we all know what it is if we live in
18 neighborhoods in New York City, is going to be
19 changed by this project.
20 Now, traffic is not the only thing
21 that can change a neighborhood character under
22 environmental impact analysis, but that's the one I'm
23 concentrating on here. And I'm saying that their
24 manual says that in order to assess whether the
25 character is going to be changed by the traffic, you
26 do not just look at how long you have to wait to go
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2 through the intersection; you look at other things,
3 in terms of how much the volume of traffic is going
4 to be increased.
5 That's one of their criteria and they
6 didn't look at that. They didn't say: We have X
7 number of cars going through the roadway now and
8 we're going to have 6,000 a day going through when
9 Ikea comes, and is that going to be a change in
10 neighborhood character? They did not look at that.
11 THE COURT: Now, educate me on this: The
12 neighborhood character impact, how significant is
13 that in terms of the requirements under SEQRA, the --
14 because anything that comes in, that changes things,
15 is going to impact on the neighborhood --
16 MS. BRYSON: Right.
17 THE COURT: -- and the question is a
18 matter of how much --
19 MS. BRYSON: Right.
20 THE COURT: -- what's the significance?
21 MS. BRYSON: Right.
22 THE COURT: So the question that I have
23 for you is, again, under the laws; not -- we're not
24 making some equitable argument or some --
25 I mean, you know, if it was up to me, I
26 would, you know, keep all streets cobbled and take
ALAN F. BOWIN, CSR, RMR, CRR
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