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2 eight months to do that brown-fields cleanup. And
3 then you've got their construction time frame, which
4 they've announced as 15 months. So you've got a
5 two-year time frame from the start date and you're in
6 the summer of 2004 and you haven't finished your FEI
7 yet; your Final Environmental Impact Statement yet.
8 So if you want to be conservative, which
9 they say, of course, they want to be but they don't
10 act consistently with that, and they include the
11 numbers from the passenger ship terminal, because
12 that's going to be opening in 2006, at the same time,
13 they should have revised the analysis to make it
14 clear when their traffic was going to be on the
15 streets. Because I don't think they will deny that
16 if they use the 2007 build year, their traffic
17 results are going to be substantially different.
18 THE COURT: Okay, legal question:
19 If you do a Final Environmental Impact
20 Statement in 2004 and things happen that were not
21 in the pipeline before, and they come up, assuming
22 they didn't know about it, which -- we won't even go
23 there, but then are they required, then, to just redo
24 that final impact statement?
25 MS. BRYSON: There is something called a
26 Supplemental Environmental Impact Statement, which
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2 has legal criteria for triggering one, and it's a
3 substantial change in conditions. And this might
4 also meet that criteria.
5 So --
6 THE COURT: So, you said, they did it for
7 the boats coming in but the other projects, they did
8 not do it for.
9 MS. BRYSON: Exactly.
10 THE COURT: And the other projects were,
11 again, the --
12 MS. BRYSON: The other projects are the
13 opening of a marine transfer station, which is a
14 garbage transfer station, which generates a lot of
15 traffic trips --
16 THE COURT: Right.
17 MS. BRYSON: -- and which is also a City
18 project, which the City, doing this statement, is
19 well aware of; and bridge reconstruction. There is
20 substantial bridge reconstruction going on in --
21 starting in 2007.
22 THE COURT: And do both those projects
23 fit the criteria that you were just talking about in
24 issuing a Supplemental FEI?
25 MS. BRYSON: Well, I would argue that they
26 do.
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2 THE COURT: Okay. All right, since
3 they --
4 MS. BRYSON: It's a --
5 I didn't bring the language with me
6 but if -- I don't have the exact language but it's
7 something like a -- it's a change in circumstances
8 but I forget whether or not -- there's an adjective
9 modifying "change."
10 It's a "significant change in
11 circumstances."
12 THE COURT: How does one define
13 "significant change"?
14 MS. BRYSON: I think that's been defined
15 in the case law; and I would certainly argue that the
16 Gowanus reconstruction here, as well as the Hamilton
17 Avenue drawbridge --
18 And I don't know if you're familiar with
19 the area but it's a huge bottleneck, when three major
20 highways in Brooklyn all intersect with one another.
21 It's the one that -- in the end of our
22 exhibits, in a reply, we put in the highway maps with
23 the colored segments which show that they're already
24 at breakdown conditions.
25 Those are going to be reconstructed and,
26 obviously, there are going to be big lane closures.
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2 And since Ikea is depending on these highways to
3 get traffic to its store, it's going to have a major
4 impact. And since the traffic analysis deals with
5 how much time it takes to get there and how clogged
6 the roads are, it's going to have -- be -- a
7 significant change and potentially give rise to a
8 significant impact.
9 THE COURT: Okay. Now, anything else in
10 the Environmental Impact Statement you think that's
11 subject to challenge, that is not just a battle of
12 the experts?
13 MS. BRYSON: I think the failure to
14 include any impact on a residential revitalization of
15 Red Hook is --
16 THE COURT: Go ahead.
17 MS. BRYSON: -- is a failure.
18 THE COURT: The failure to what, include?
19 MS. BRYSON: Yes.
20 THE COURT: I thought they did.
21 MS. BRYSON: They mentioned it in passing.
22 They didn't really --
23 It's very similar to the furniture stores.
24 The furniture stores, they actually said something
25 even though it wasn't supported by anything other
26 than subjectivity.
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2 But with respect to the residential
3 revitalization, they simply mentioned it; they
4 didn't --
5 THE COURT: Well, they mentioned it, and
6 they said that they did some analysis that led them
7 to believe that there would be no impact.
8 MS. BRYSON: Um-hmm. And they didn't say
9 what it was.
10 THE COURT: Are they required to say what
11 it is?
12 MS. BRYSON: Yes, they are.
13 THE COURT: Okay.
14 MS. BRYSON: Um-hmm.
15 THE COURT: All right, let me hear them
16 (indicating) for a few minutes.
17 All right, address these issues. Don't go
18 off on anything -- because this is what -- you know,
19 this is her (indicating) high points, so you've got
20 to address those issues.
21 MR. GREENE: Yes, your Honor.
22 Your Honor, it is evidently clear that
23 petitioners do not like this project and as you said
24 yourself, oftentimes, the value of a project will lie
25 in the eye of the beholder. However, dislike of a
26 project does not serve as an adequate basis for
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2 relief under Article 78.
3 Instead, I think your Honor identified
4 the critical question in land-use and environmental
5 review, which is whether the governmental decision-
6 maker acted rationally and within the bounds of their
7 discretion when making their decision. I think the
8 answer here is, unequivocally, "yes."
9 In order to explain why that answer is
10 "yes," if your Honor would just please allow me to
11 paint a little bit of a different picture of this
12 project than Miss Bryson just did:
13 Red Hook is a neighborhood that certainly
14 wants to move forward; however, it is saddled by a
15 large number of vacant and underutilized industrial
16 tracts that hug its waterfront. In some cases, they
17 are literally falling apart. This has led to a high
18 rate of unemployment in Red Hook, it has led to the
19 public being cut off from wide swaths of the
20 waterfront, and it has also --
21 THE COURT: I apologize for interrupting
22 you, but I'm under certain time constraints right
23 now.
24 Any more than I think her arguments, as
25 you rightly put, about, you know, how we want to keep
26 our cobblestone streets and whatever are not the
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2 basis of how I decide this, it's the same thing about
3 whether or not this is underdeveloped or industrial.
4 And the bottom line for me here is --
5 MR. GREENE: Correct.
6 THE COURT: -- did you comport with what
7 you had to do with SEQRA; did you comport with what
8 the zoning requires you to do, and the issues that
9 she raises?
10 And that's why I said, Please address
11 those issues. Because, you know, if it was
12 everything, she would have said "everything." She
13 picked the areas that she thinks you're vulnerable
14 on, and that is: the failure to address the highway,
15 the neighborhood-character impact, and that you
16 didn't look at the volume of the traffic; that you
17 really abandoned, essentially, though she didn't use
18 that word, the Waterfront Plan, and didn't put down
19 any of your reasons for why you did that.
20 That's mostly -- that's really a summation
21 of what she said, and I need to have that addressed
22 because that's going to be the basis on which I
23 decide this.
24 MR. GREENE: Yes, your Honor. Just to
25 jump right into it, then:
26 The 197-A Plan is not a mandatory
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2 document. It serves as a general policy and contains
3 proposals. Therefore, her argument that the --
4 that the City Planning Commission or any other
5 governmental decision-makers is inaccurate [sic].
6 Moreover, this project conforms with many
7 of the goals -- all of the relevant goals -- in the
8 197-A Plan. It will reinvigorate the waterfront with
9 new uses such as ferry service to and from Manhattan
10 on the weekend; there will be reconstruction of piers
11 to allow for berthing tugboats and barges. Also, the
12 infrastructure along the area that is literally
13 sliding into the water will be repaired.
14 Therefore, this project -- even though
15 this project does not need to conform with the 197-A
16 Plan, it does.
17 THE COURT: And in conforming with the
18 197-A Plan, it sounds like you're also abandoning the
19 Waterfront Plan.
20 MR. GREENE: No, your Honor, that is --
21 Actually, the Waterfront Plan -- we fully
22 conform with the Waterfront Plan.
23 Miss Bryson has attempted to characterize
24 the --
25 Because this is a commercial project
26 taking place in a significant maritime-industrial
ALAN F. BOWIN, CSR, RMR, CRR
