4/22/05 Petitioners-Plaintiffs File Reply in Ikea-Red Hook Litigation

Represented by attorney Antonia L. Bryson of the Urban Environmental Law Center, Petitioners-Plaintiffs filed a reply memorandum of law in the on-going Ikea-Red Hook litigation in the Supreme Court of the State of New York, March 22, 2005. Petitioners-Plaintiffs' memorandum addresses the remaining claims of the Respondents-Defendants.

An aside about the blog itself. After a week-long process of getting most of the material transfered and the new software running, with no new posting, this is my first post using TypePad. I used the Blogger software before and found it delightfully intuitive and aesthetically pleasing. TypePad, however, has the advantages of allowing enough space in a post for a large legal document and of providing wide sidebars. I plan to post all of the court filings of both sides in the Ikea-Red Hook matter within the next few days. Please visit this blog again.

If you have wondered whether the City might be cutting corners in approving the Ikea-Red Hook project, I think you'll find this memorandum an eye-opener.

MCG

_____________________

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------X
COALITION TO REVITALIZE OUR WATERFRONT NOW,
JOHN McGETTRICK, MICHAEL IHNE, SUSAN PEEBLES
JOSEPH BERNARDO and CHERYL STEWART,

Petitioners-Plaintiffs,

For a judgment pursuant to Article 78 of the
Civil Practice Law and Rules,

v. Index No. 05/101955

CITY OF NEW YORK, NEW YORK CITY PLANNING
COMMISSION, AMANDA M. 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.
------------------------------------------------------X

PETITIONERS’-PLAINTIFFS’ REPLY MEMORANDUM OF LAW

PRELIMINARY STATEMENT

This combined proceeding and action for a declaratory judgment, which seeks to void land use approvals and zoning changes that enable the construction of a gigantic shopping center on the waterfront in Red Hook, Brooklyn ("the Project"), and to enjoin construction of the Project, is based on two general theories. First, petitioners claim that the Final Environmental Impact Statement (FEIS) fails to truly assess the effect of the project on the environment. Second, petitioners claim that the approvals granted that allow the project to be built contravene multiple official land use plans and have no independent rationale. They were thus beyond the power of the Municipal Respondents to grant.

Respondents make the customary rebuttal to the environmental claim: that an FEIS of over one thousand pages by its very size must have taken a hard look at the issues involved. Length, however, can be used to obfuscate as well as illuminate. One can write tomes and still not address the pertinent issue, and that is exactly what happened here.

Respondents defend the consistency of the municipal approvals with official City plans by an elastic reading of those plans. If respondents’ interpretation of the plans’ provisions is acceptable, then the plans are so amorphous as to be not worth the paper they are written on. They are no longer the required rational underpinning for government land use decisions, but meaningless exercises wasting public resources.

This proceeding is not an attempt by a small group of people to impose their vision for Red Hook on the rest of the community. Many, many residents of Red Hook came forward to speak against the Project at the public hearings that were held, and many of the supporters of the Project do not live in the community. See, e.g., R. 1323, 1326, 1333, 1367-92, 1437-58, 1461-66, 1483- 1503, all statements from residents of Red Hook opposing the Project. Mayor Bloomberg himself has indicated he would not want to live near an IKEA, and the citizens of nearby Park Slope also felt that an IKEA was not compatible with their neighborhood. See Exhibits 8 and 22.

New jobs are arriving in Red Hook without IKEA. Many jobs have recently been created in the neighborhood at the new large Lowe’s Home Improvement store on its outskirts, and when the Fairway opens in the near future, there will be hundreds of new jobs there. IKEA’s commitment to providing jobs for the community extends no further than a promise to review applications for employment; there is no promise or requirement that would bind IKEA to provide a single job to a member of the community. R. 1849.

IKEA will "improve" the roads in the neighborhood by widening them to accommodate the hordes of shoppers and removing historic cobblestones from the community’s streets. It will eliminate some parking spaces and provide traffic lights at intersections that will be necessary because of increased volumes of traffic. These measures are not necessarily a boon. Its rebuilding of the decrepit piers at the waterfront, while helpful in allowing more barge-docking space, is an empty promise of future waterfront activity so long as the store itself remains in place.

Petitioners’ claims regarding the inadequacy of the Final Environmental Impact Statement (FEIS) are more than disagreements over the methods used or the results of the analyses. They go to the heart of what an EIS is intended to achieve: a fair assessment of the potential environmental consequences of the Project. Petitioners are not asking this Court to substitute its judgment for that of Municipal Respondents, but to rule invalid an assessment that failed to account for some of the most important potential consequences of the Project.

ARGUMENT

1. The Land Use Approvals Are Inconsistent with the Red Hook 197-a Plan

Respondents claim that the Project will provide jobs , economic development, and public waterfront access, and is therefore consistent with the 197-a Plan. But the 197-a Plan is a land use plan, and it matters where, and what kind of, development takes place. The Plan does not does not mention or contemplate large commercial activity on the waterfront, or anywhere else in Red Hook for that matter, and does not envisage public access at the Erie Basin. Rather, it envisages a continuation of Red Hook’s mixed residential and industrial community, with local commercial activity on existing commercial corridors playing a supporting role. The Plan seeks to foster revitalization of industrial activity, and specifies that all of the waterfront areas remain zoned for industrial use, with the exception of two areas for open space. See Affidavit of Thomas Angotti, sworn to February 7, 2005, ¶¶ 10-16 (Angotti Aff.); R. 3041-3130.

The main objectives of the Red Hook 197-a Plan are set forth on page 5 of the Plan. The second item, after the provision of more housing, is

Support the preservation and expansion of industrial and maritime activity where it is currently solidly positioned in the northwest and southeast sections of Red Hook.

R. 3055. The southeast section of Red Hook includes the Erie Basin, the Project site.

Even though the objectives on page 5 also include promoting employment opportunities for local residents and creating public access to the waterfront, it is a misreading of both the objectives and of the Plan itself to argue that a proposal is consistent with the Plan because it provides employment and access to the water when it vitiates other important objectives.

Other sections of the Plan confirm this interpretation. For example, in the "Economic Development" section of the Plan, it supports

Preservation and upgrading of the Red Hook Marine Terminal and the section of the waterfront between Erie Basin and Gowanus Creek as "Significant Maritime and Industrial Areas."

It then lists seven other economic development strategies, none of which include the promotion of large commercial stores. R. 3057-58; see also R. 3099, 3112 and 3120.

Continued heavy industrial or maritime use requires M2 or M3 zoning. R. 3070. Rezoning the Project site to M1 does not maintain the industrial waterfront zoning, despite respondents’ claim that manufacturing zoning has not been disturbed. The parcel to the north of the Project site is zoned M1 to provide an appropriate buffer between the residential areas in the core of Red Hook and the heavy industrial area at the waterfront. R. 3021, 3032, 3125. While respondents claim that rezoning the Project site to M1 is consistent with the zoning on the parcel to the north, such consistency is not the point. The zoning rationale for the area assumes heavy industry on the waterfront; to deviate from that assumption requires a new rationale for the waterfront, not consistency with the adjacent northern parcel.

2. The Red Hook 197-a Plan is the Master Plan for Red Hook

The Red Hook 197-a Plan is a comprehensive land use plan for the Red Hook area, and provides the basis for zoning decisions in the area. It is not merely a policy document. New York City Charter § 197-a; Housing Justice Campaign v. Koch, 164 A.D.2d 656 (1st Dep’t), app. denied, 78 N.Y.2d 858 (1991); Angotti Aff. ¶ 5. The meaning or effect of a provision of the New York City Charter can be elucidated, but not altered, by City rule.

According to materials prepared by the Charter Revision Commission at the time the new Section 197-a was proposed, it was adopted specifically for the purpose of providing Community Boards the power to initiate long term plans for the development and improvement of their districts. These plans were to be reviewed by the City Planning Commission, with final action taken by the Board of Estimate (replaced after the 1989 Charter Revision by the City Council). The new 197-a replaced, and was intended to substitute for, a prior provision requiring the City Planning Commission to prepare a Master Plan for the development of the City. See State Charter Revision Commission for New York City, A Comparison of Revised and Current Charter Provisions, August 5, 1975, and George Hallett, Community Board Changes Under the New City Charter, April 1976, Exhibit 16.

Apparently, the Master Plan required by the prior Charter had never been completed, and the Charter Revision Commission determined to replace the requirement with a "continuous planning model." Housing Justice Campaign v. Koch, 164 A.D.2d at 667; cf. Smith v. Elliott, 61 Misc.2d 163 (Sup. Ct. N.Y. County 1969), rev’d, 34 A.D.2d 940 (1st Dep’t 1970). This model permitted either the Mayor, the Planning Commission or any of the City’s planning districts to propose or adopt plans involving a particular district. The 1975 Commission considered section 197-a plans to be "comprehensive, albeit small-scale, land use proposals." Housing Justice Campaign, 164 A.D.2d at 668.

Thus, a Section 197-a plan has whatever force and effect a "master plan" has. Such force and effect is defined by the case law. See Petitioners’ Memorandum of Law in Support of the Petition, p. 31. While City rules and statements of the City Planning Commission itself can guide and help define its force and effect, they cannot make it less than established by the Charter.

The City may not have been required to take any action to implement the Red Hook 197-a Plan, and need not initiate any zoning actions pursuant to it. However, when it affirmatively undertakes to re-zone property covered by the Plan, it must either act consistently with the Plan or first provide its well-thought out rationale for changing it. Asian Americans for Equality v. Koch, 72. N.Y.2d 121 (1988). In this case it did neither. Rather, it acted inconsistently with the Plan while protesting that its actions are consistent.

3. The Land Use Approvals Are Inconsistent with the City’s Waterfront Plans

The City’s Comprehensive Waterfront Plan (CWP) indisputably provides that the Project site is part of a Significant Maritime and Industrial Area (SMIA), and any fair reading of its contents would reveal that an IKEA shopping mall is not an appropriate use in this area, is not consistent with either the CWP or the subsequent Waterfront Revitalization Program (WRP), and would substantially hinder the objectives of the WRP.

One of the very reasons the CWP was assembled was to account for decline in the City’s manufacturing sector and in traditional working waterfront uses. In recognition of this, the CWP assesses where industrially zoned waterfront land should be productively rezoned for other uses, and where important maritime assets should be saved and protected for essential working waterfront functions. The CWP looked at the City’s 578 miles of shoreline and judged where these essential maritime assets were. The CWP and its progeny found Erie Basin to be an essential maritime asset; many miles of shoreline elsewhere were found more appropriate for open space, residential development, etc., and were so designated in those plans. R.3182-83.

Furthermore, the CWP carefully mapped areas where public waterfront access is to be encouraged so as to re-establish the public’s connection to the waterfront, using appropriate criteria to that end. R. 3244; see also R. 3264. In Red Hook that area is from Van Brunt to Wolcott Streets, in the southwestern portion of the peninsula. R. 3272.

Nonetheless, respondents argue that it really does not matter whether a portion of the area that received the SMIA designation in the CWP is removed from maritime and industrial use, because there is still land remaining in the designated area. This belittles the significance of the CWP and is tantamount to a rejection of the plan itself. Respondents further argue that the Project will fulfill the objectives of the waterfront plans because it will repair and restore deteriorating marine infrastructure and provide water-dependent activities such as ferry service and barge docking.

IKEA’s reconstruction and restoration of failing portions of the bulkhead along the waterfront will not serve to promote water-dependent use. In fact, according to a recent communication from IKEA’s engineers, the purpose of restoring the bulkhead is to prevent a future failure that would release contaminated soils into the water, and not to fulfill Project needs or allow for water-dependent activities. The Project could be constructed without any bulkhead repair whatsoever. See Exhibit 19. Further, for 723 feet of the shoreline the bulkhead will actually be removed, not restored, and will be replaced with rip rap. See Exhibit 20.

Nor is the weekend ferry from downtown Manhattan a significant working waterfront use. The ferry will run two days of the week and carry two percent of the shoppers coming to the site. Moreover, IKEA has scrapped its plan to build a ferry dock, and plans to utilize an existing pier or bulkhead for the ferry service. See Exhibit 21. This should minimize, if not foreclose, the opportunity for other waterfront uses to take advantage of whatever docking facilities will exist.

4. The Environmental Impact Statement Failed to Take a Hard Look at the Impacts of the Project on Neighborhood Character, Traffic, Socioeconomic Character and Land Use

As explained in Petitioners’ Memorandum of Law in Support of the Petition (pp. 24-26), the judicial standard of review for invalidating an EIS is the "hard look" standard. Aldrich v. Pattison, 107 A.D.2d 258 (2d Dep’t 1985), citing H.O.M.E.S. v. New York State Urban Dev. Corp., 69 A.D.2d 222 (4th Dep’t 1979). The "hard look" standard requires a court to determine whether the agency identified the relevant areas of environmental concern, took a "hard look" at them and made a "reasoned elaboration" of the basis for its determination. Aldrich v. Pattison, 107 A.D.2d 258, 265; Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417. An agency must "meaningfully evaluate" whether there are impacts and undertake a "serious and thoughtful consideration of" any potential impacts and mitigation measures. Omni Partners, L.P. v. County of Nassau, 237 A.D.2d 440 (2d Dep’t 1997); Save the Pine Bush, Inc. v. City of Albany, 141 A.D.2d 949 (3d Dep’t 1988).

A "hard look" should not be equated with the number of pages devoted to the subject. Petitioners do not contest that respondents identified the relevant areas of concern and spent hundreds of pages explaining why there will be no significant adverse impacts from this Project. What petitioners do contest is the analyses behind that conclusion, which in a number of instances blatantly ignored important facts or issues, and in other instances used unsupported reasoning to reach the conclusion.

A. Neighborhood Character

The traffic from the Project will have a significant adverse impact on the character of the Red Hook neighborhood, and the FEIS failed properly to analyze the situation when it concluded otherwise. Respondents rely on the fact that the impacts from the additional traffic on traffic conditions will be mitigated to conclude that there will be no impact on neighborhood character. While this may sound plausible, it is not what SEQRA and CEQR require. Whether the character of the neighborhood is affected is different from whether the traffic is moving at acceptable rates of flow.

According to the 2001 CEQR Technical Manual, traffic has an effect on neighborhood character when the traffic changes substantially as a result of the action. R. 806. Substantial changes in traffic can include: changes in Level of Service to C or below (i.e. worsening the time it takes to get through an intersection); change in traffic patterns; change in roadway classifications; change in vehicle mixes; substantial increases in traffic volumes on residential streets; or significant traffic impacts, as identified in that technical analysis. R. 806-807. In other words, causing a significant impact on traffic conditions is only one of the ways in which a change in traffic can affect neighborhood character.

This Project’s traffic will produce almost all of the substantial changes identified in the CEQR Technical Manual—changes in level of service, substantial increases in volumes on residential streets, and changes in traffic patterns. R. 915, 936, 937. None of those changes was discussed in the neighborhood character section of the FEIS. The FEIS contains exactly one sentence on the impact of traffic from the Project on neighborhood character: "Although there would be increases in traffic volumes in the surrounding neighborhood, the street capacities would be sufficient to accommodate traffic from the Proposed Project with the street and signalization improvements proposed as part of the Proposed Project." R. 811.

The heavy traffic generated by IKEA will radically alter the existing neighborhood for the worse. Although his agents found otherwise, apparently the Mayor himself would find the Project a disagreeable neighbor. "If I lived there I don’t know that I would be [a supporter], quite honestly" he was quoted as saying. See Exhibit 22.

The City Council also has recognized that traffic generated by big box stores can cause unconscionable problems for local neighborhoods, even if a traffic analysis shows that the actual impacts from the traffic can be mitigated. In February 2005, it turned down an application by another big box retailer, BJ’s, for a store about one-third the size of the IKEA store and generating about one-third the traffic. That store was to have been situated near the intersection of four major highways in the Bronx. Explaining its action, a Council member stated "Anytime you have a big-box store, there is a large concern about traffic…we turned it down because we felt the impact on the community was real." See Exhibit 23.
The failure to the FEIS to acknowledge this potential impact is indefensible. See Golten Marine Co., Inc. v. N.Y. State Dept. of Envtl. Conservation, 193 A.D. 742 (2d Dep’t 1993).

B. Traffic

Respondents admit that the FEIS completely omitted any assessment of the impact of the Project on the Gowanus, Brooklyn-Queens and Prospect Expressways, relying on the fact that the CEQR Technical Manual provides no methodology for such an evaluation. This is not a reason for not doing an evaluation, methodologies exist for performing one. The Highway Capacity Manual, a recognized traffic engineer’s handbook that is relied on in the CEQR Technical Manual in other respects, contains procedures for analyzing expressways (Chapter 22), ramps (Chapter 25), and expressway weaving movements (Chapter 24). It makes common sense and traffic engineering sense to look at how a project generating thousands of vehicle trips will affect traffic on a highway, in addition to looking at how it will affect street intersections. Without such an analysis, the FEIS provides an incomplete, distorted and inadequate picture of the traffic impacts of this Project. See Affidavit of Brian T. Ketcham, sworn to April 20, 2005 (Ketcham Aff.) ¶ 6.

The major reason that such analysis is not done is that it would be difficult and prohibitively expensive to mitigate the effects of a project on one of these roads, and would inevitably doom the project. Such would likely be the case here, because the Gowanus and Brooklyn-Queens Expressways are already among the most congested highways in the United States. The segments of those highways near the IKEA Project already operate at near-breakdown conditions in the peak PM hour, when IKEA-generated traffic is likely to be heavy. The impact of adding thousands of new IKEA-bound drivers to these roads will presumably be significant. Ketcham Aff. ¶¶ 8, 9; Exhibit 24.

Respondents also rely on the CEQR Technical Manual for their claim that they need not have assessed the interaction of IKEA’s traffic with a number of extensive construction projects scheduled for Brooklyn’s roads. In fact, the CEQR Technical Manual advises an applicant to select the year that represents "the worst case environmentally." CEQR Technical Manual, p. 2-4. While choosing a build year of 2006 may have been reasonable in 2003, it was no longer reasonable at the time respondents were completing the FEIS in August 2004. At that time, respondents were admittedly capable of re-doing the analysis to include traffic from the newly announced Red Hook Passenger Cruise Ship Terminal, which was included in the FEIS. At the same time, they were undoubtedly aware that the IKEA had little chance of opening in 2006. Had their analysis been truly conservative, they would have re-run the numbers for a 2007 build year, taking into account the Hamilton Avenue Drawbridge, and the BQE and Gowanus reconstruction. Ketcham Aff. ¶10.

Furthermore, the reconstruction of the Gowanus Expressway is an ongoing project that is already underway. Publicly available documents from the New York State Department of Transportation show that such work involves lane closures on weekends, when IKEA traffic will be greatest. See Exhibit 25.
The application for BJ’s also raised concerns over how the traffic it would generate would be accommodated during a scheduled major bridge reconstruction nearby. Ketcham Aff. ¶ 9. In the case of BJ’s concerns about the bridge reconstruction proved fatal, despite the smaller scale of the project, and despite the fact that the BJ’s was scheduled to be operational prior to the reconstruction. In the case of IKEA, Municipal Respondents showed no concern, even though there will be substantially more traffic generated by the store and there are multiple reconstruction projects scheduled, not just one. Ketcham Aff. ¶11.

Respondents knew by October 2004 at the latest that IKEA would not open until 2007. See Exhibit 13. In that same month, the City publicly released its Draft Environmental Impact Statement and Solid Waste Management Plan showing that the Hamilton Avenue Marine Transfer Station would open in 2007 and would produce hundreds of vehicle trips on Hamilton Avenue. See Exhibits 11 and 12. Although the FEIS was finalized in August 2004, Municipal Respondents either were, or should have been, aware of the schedule for its own facility well prior to the official publication of the final documents, in sufficient time to include the Transfer Station traffic in their analysis.

C. Socioeconomic Impacts

The FEIS did not provide a hard look at the potential for the Project to cause socioeconomic impacts because it misinterprets data and bases many of its conclusions on subjective judgments without sufficient evidence or quantitative support. See Affidavit of Hugh F. Kelly, sworn to April 21, 2005 (Kelly Aff.). For example, it assumes that manufacturing employment declines translate pari passu into declines in industrial real estate demand, which is demonstrably untrue. Kelly Aff. ¶ 5.

In fact, the Brooklyn/Queens industrial vacancy rate is just 4.1%, ranking sixteenth in the nation (out of 130 markets in the survey), a vacancy that reflects landlord dominance and restricted tenant choice. The desirability of this market from an investor standpoint is exceptional, and the FEIS is totally misleading in its representation that tenants displaced from the Red Hook market would have little difficulty in relocating. Kelly Aff. ¶ 6.

Nor did the FEIS provide a "comprehensive analysis" of the Red Hook residential market. It devotes considerable discussion to the Red Hook public housing project and the insulation of the residents from market forces. But on the private housing side it falls back on the argument that future residential development is limited because of existing manufacturing zoning and lack of available development sites for housing. An assumption is made that the provision of some access to the waterfront through the retail site will positively affect the residential market. This is a mere assertion, without discussion of comparable projects or discussion or analysis of the impact of the IKEA Project on home price trends. Kelly Aff. ¶ 7.

The analysis of potential impact on retail business is also not rationally supported. No measurement of potential impact on the 391 existing furniture stores is made, other than the subjective judgment that the 89 furniture stores within one and a half miles will not be affected because they sell different styles of furniture. The history of large, centralized retail developments on existing "shopping street" retail establishments is not encouraging. Throughout the country, urban retail districts have seen a loss of shoppers as large retail developments such as malls, big-box centers, and "category killer" retailers like IKEA have aggressively pursued market share. In Brooklyn itself, the traditional Fulton Street shopping district was eviscerated in the wake of the development of Kings Plaza and the associated "pad" stores around Avenue U and Flatbush Avenue. Kelly Aff. ¶¶ 8-9.

5. The Project Is Opposed By Many Residents of Red Hook

This Project did not receive the overwhelming support of people and businesses that actually live in Red Hook. While the Community Board did approve it 34 to 4, the four people who voted against it all live in the community, whereas 33 of the 34 who voted for it do not. See Affidavit of Lou Sones, sworn to April 20, 2005. Many of those who voted for it have business interests associated with the Project. Id. Similarly, at the public hearing held by the Community Board about the Project, the speakers opposed who lived in Red Hook outnumbered those in favor from the neighborhood. Id. See also R. 1323, 1326, 1333, 1367-92, 1437-58, 1461-66, 1483- 1503.

CONCLUSION

For all the foregoing reasons, and for all the reasons stated in the Memorandum of Law in Support of the Verified Petition, petitioners-plaintiffs respectfully request that this Court enter a judgment: (1) annulling and vacating the EIS; (2) annulling and vacating the Findings Statements issued by the CPC and the Council; (3) annulling and vacating the CPC’s and the Council’s approval of the amendment to the Zoning Resolution and changes to the City map; (4) annulling and vacating all other approvals granted to any aspects of the project by the CPC and the Council; (5) enjoining Respondents-Defendants from constructing the project; (6) awarding Petitioners-Plaintiffs the costs and disbursements of this proceeding; and (7) granting such other and further relief as the Court deems just and proper.

Dated: New York, New York
April 22, 2005

Respectfully Submitted,

___________________________
Antonia Levine Bryson, Esq.
Attorney for Petitioners
Urban Environmental Law Center
475 Park Avenue South, 16th floor
New York, NY 10016
(212) 483-9120