50. The site is contaminated and will require remediation prior to construction of the project. Ikea will clean up the site under the jurisdiction of the New York State Department of Environmental Conservation (DEC) as part of DEC’s Brownfields Cleanup Program. As part of the Program, IKEA is eligible for substantial tax credits that will offset the cost of the cleanup and of the development of the project. See www.dec.state.ny.us/website/der/bcp/bcp.html#tc. The site is also in the Southwest Brooklyn Empire Zone, an economic development initiative of the Empire State Development Corporation. This entitles IKEA to additional New York State tax credits and other local incentives. See www.nylovesbiz.com/Tax_and_Financial_Incentives/Empire_Zones/descriptions_benefits.asp.
51. The IKEA store will be a 48 foot high royal blue structure with bright yellow signage. Exhibit 6, p. 1-6. There will be two other buildings on the site, one at the western portion, and one at the southeastern portion. The remainder of the site will include approximately 800 parking spaces in an open lot and the waterfront esplanade. The remaining 600 parking spaces will be on the ground floor of the building.
52. On information and belief, the IKEA store in Red Hook will be its first store to open in the central city, not its outskirts, and it may well be the biggest store in New York City. (The Home Depot and Costco stores in the City are typically 100- to 150,000 square feet). The Red Hook store will be comparable in size to IKEA’s store in Elizabeth, New Jersey, which is located near an exit of Interstate 95, just east of Newark International Airport, on a 61-acre site far from residential areas.
53. The Red Hook location was not IKEA’s first choice, as it had previously sought to locate a 300,000 square foot store on a site in Brooklyn near the Gowanus Canal, between Carroll Gardens and Park Slope, but was deterred by community opposition. That opposition was based on the traffic that is generated by a store as large as IKEA and the inability of the existing Brooklyn road infrastructure to handle that traffic—for the most part the same infrastructure that will support this store. IKEA had also sought to open a store in a residential neighborhood in New Rochelle, New York, but similarly withdrew that proposal in the face of objections from neighboring communities. See Exhibit 8, "IKEA Scrapping Plans for Store Amid Resistance by Neighbors," The New York Times, June 17, 2001.
E. The Environmental Impact Statement
54. Under State and City law, IKEA’s application necessitated the preparation of an environmental impact statement (EIS). The EIS is supposed to identify whether the project will cause any significant adverse effects on the environment and, if it will, to propose measures to mitigate those effects. It is also supposed to identify reasonable alternatives to the proposed project, so that the government authorities, in deciding whether to approve the project, can evaluate whether the project represents the alternative that will minimize or avoid environmental impacts to the maximum extent practicable. 6 NYCRR §§ 617.2(n), 617.9(b).
55. The IKEA EIS found there would not be significant adverse effects from the project on the socioeconomic characteristics of the neighborhood. Its analysis supporting this conclusion fails to discuss relevant data, makes unsupported assertions, and draws conclusions without quantitative justification or demonstration. It should not have been accepted by the CPC and the Council as probative as to the range of impacts to be expected, nor the intensity of those impacts. Kelly Aff. ¶ 23.
56. The induced development and socioeconomic impacts sections of the FEIS (pp. 1-7 to 1-11 and 3-1 to 3-14) reach the conclusion that this massive retail development will have no social or economic impact on the Red Hook neighborhood, neither inducing significant development of other new stores, nor affecting existing businesses, nor changing the residential trends. This is an astonishing conclusion that defies common sense.
57. In fact, the project will consume 22 acres of what was industrially zoned waterfront land that recent trends show is in increasing demand, and that employment trends show will continue to be in demand. Kelly Aff. ¶¶ 7-10. Indeed, a recent announcement by the Mayor confirms that the City believes that preserving its industrially zoned land is vitally important. Exhibit 9, New York City Economic Development Corporation, News Release, January 19, 2005. Rezoning for a heavy traffic retail use puts in jeopardy existing businesses adjacent to the site that will have difficulty co-existing with IKEA’s traffic volumes. Kelly Aff. ¶ 11. It could have a devastating impact on the almost 400 establishments in Brooklyn in the furniture and home furnishings sector. Ibid, ¶ 20. All of this was ignored or discounted in the FEIS.
58. Further, there is a positive residential redevelopment trend in the Red Hook neighborhood propelling upward movement in housing values. The evidence of the past quarter-century suggests that once such momentum is established, the trajectory of positive change can be sustained over the long-term, providing disruptive influences do not intervene. Nearby neighborhoods that have already witnessed the reversal of urban decay include Carroll Gardens, Boerum Hill, Park Slope, Prospect Heights, Ft. Greene, and Clinton Hill. No measure of the project’s potential impact – positive or negative – on this trend was even attempted in the EIS. Not a bit of analysis was produced whether other similar projects have inhibited residential redevelopment – the question that is truly germane to potential adverse impacts from the proposed IKEA. Kelly Aff. ¶ 18.
59. With respect to the traffic impacts, the EIS analysis shows that on typical Saturdays there will be almost 2,000 vehicles driving to and from the store in the peak hour, and 11,200 vehicles for the entire day; there will be about 6,000 new vehicles on a weekday. Exhibit 6, pp. 16-27, 28. In sale periods, this number will increase by 10 percent. The recommended travel route will take them down Columbia, Bay and Lorraine Streets, directly through the Red Hook Houses and the Red Hook Recreational Area. The number of vehicles driving through the local streets will be as much as ten times what it is now. Compare Exhibit 6, Figure 16-7 with Figure 16-64.
60. In order to accommodate the increase, traffic signals will be provided at five intersections that were previously unsignalized. Exhibit 6, p. 16-34. Exclusive turning lanes and some lane widening will be provided at four intersections on Columbia Street. Ibid, p. 16-35. Five intersections (Van Brunt and Coffey, Hamilton Avenue and Clinton, Clinton and Lorraine, Columbia and Lorraine, and Clinton and Bay) will either have on-street parking spaces removed to provide more moving lanes, and/or traffic lights adjusted to provide more green time for the congested direction. There will be capital improvements at three major intersections on Hamilton Avenue and at Hamilton Avenue and the Brooklyn Battery Tunnel off-ramp. Ibid, Figures 16-31 to 16-34.
61. These are noticeable changes. High volumes of traffic will become a major feature of daily life in the Red Hook community. Yet the EIS did not consider this feature to be a significant change in neighborhood character because the streets will allegedly be able to handle the volumes. "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." Exhibit 6, p. 9-6. Such a conclusion simply ignores the question.
62. Much of the traffic near the proposed IKEA already consists of trucks and school buses, both of which run on diesel fuel, and both of which emit particulate pollution. Increased waiting times at intersections will increase the emissions from these vehicles, and will have special impact on the adjacent park users, including many children. Particulate pollution can have an enhanced effect on people who are exercising. Exhibit 10, Statement from American Lung Association. Such impact was not accounted for in the EIS.
63. The EIS assumes that the project will be built and operational in 2006. Thus the analysis reviews what the impact will be of adding the project’s traffic to the traffic that will be on the roads in 2006. By choosing that year, the EIS did not have to assess what the impact would be of adding the project’s traffic to a baseline year that includes the Hamilton Avenue Waste Transfer Station, the Hamilton Avenue Drawbridge reconstruction and the Gowanus Canal Flushing Tunnel Project. Exhibit 6, p. 27-33.
64. The Hamilton Avenue Waste Transfer Station is a City-sponsored facility that will receive and process solid waste, generating 267 truck trips a day, all of which will travel—and back up on--Hamilton Avenue. Exhibit 11, New York City Department of Sanitation, Draft Environmental Impact Statement for the Solid Waste Management Plan, October 22, 2004, p. 4-99, 100; Affidavit of Brian Ketcham, sworn to February __, 2005, ¶ 10. It is located just south of the Gowanus Expressway on the eastern side of the Gowanus Canal, on the border of Red Hook, and is scheduled to be operational in 2007. Exhibit 12, New York City Department of Sanitation, Draft New Solid Waste Management Plan, October 2004, Table 3.3-2. The Hamilton Avenue Drawbridge is part of the Gowanus Expressway just north of Red Hook. During 2007 and 2008, this reconstruction will reduce the expressway by as many as two lanes in each direction, presumably sending the traffic onto Hamilton Avenue and other local routes. Exhibit 6, p. 16-33.
65. The project will not be constructed and operational by 2006. The schedule should have been known to be unrealistic at the time the FEIS was prepared, since IKEA was aware by October 1, 2004, one month after the FEIS was finalized and before the project was finally approved by the Council, that it would not meet that schedule. Exhibit 13, New York Magazine, October 1, 2004. Subsequent events have made it even clearer that sometime in 2007 is the earliest opening date. Exhibit 14, New York Daily News, January 26, 2005. The use of the erroneous 2006 date as the build year for the project masked the true impacts of project-generated traffic.
66. Failure to fully account for these developments in the future no-build condition permits the FEIS to underreport project impacts. With a low-balled no-build condition, nearby roads will appear to be operating at service levels far better (i.e., freer flowing) than would otherwise be the case. With better roadway operation, the project can claim a greater share of available capacity before it would appear to have an impact, resulting in an under-identification of significant impacts and insufficient mitigation. Ketcham Aff. _____.
67. Furthermore, with the respect to the analysis that was performed for build year 2006, the FEIS failed to adequately document existing traffic conditions on roads that will receive the project’s traffic; it failed to properly estimate traffic conditions in future years; and it underestimated the full traffic impact of the IKEA store. As a consequence, its proposed mitigation is almost certainly inadequate to fully mitigate project impacts. Ketcham Aff.
68. The FEIS completely omitted any discussion of traffic conditions on the Brooklyn-Queens or Gowanus Expressways, either before or after the project is built. This is a critical omission because these are the major arteries by which most of IKEA’s customers are expected to travel to the store. A discussion of traffic on these arteries is important for at least two reasons: (1) because worsening traffic on the expressways should itself have been considered as a potential significant impact; and (2) because the level of traffic congestion on the highways will be an important factor influencing where drivers to IKEA will exit the highway and continue their journey to the store on local streets, and whether the additional congestion will induce some local drivers not heading to IKEA to exit early and add to volumes on local streets. Ketcham Aff. ¶ 5.
69. Such additional traffic on local streets raises the substantial possibility of additional significant adverse impacts. Further, there would undoubtedly have been such impacts on the highways themselves. Ketcham Aff. ¶ 8.
70. The FEIS may also have underestimated the amount of traffic that will be generated by the project. The FEIS says that the assumptions as to how much traffic the Red Hook store will generate are based on data from the IKEA Elizabeth store, but it does not provide the data nor describe how it derived the Red Hook numbers from the Elizabeth numbers. An internal memo from IKEA’s traffic consultants indicates that they used the median of all that data to estimate their trip rates. The "median" of all the data analyzed means that 50% of daily or hourly trips are below the number used and 50% are above that number. Thus, according to its own data, half the days of the year the Red Hook IKEA will generate more trips than analyzed in the FEIS. Ketcham Aff., ¶ 15; Exhibit 15, Memorandum, Sam Schwartz to Mehdi Amjadi, IKEA Red Hook Scoping Document Back-Up Data, November 11, 2003.
71. In sum, correcting the traffic analysis in the FEIS for IKEA’s underestimation of trips to and from the store and of no-build traffic, and for its omission of impacts on the Brooklyn-Queens and Gowanus Expressways, would produce far greater project impacts. With more severe impacts at locations such as on the Brooklyn-Queens Expressway to be mitigated, it is not unreasonable to assume that the FEIS did not disclose all the significant impacts that will be produced by the project, and did not provide mitigation for all impacts to the maximum extent possible. Ketcham Aff. ¶ 15.
F. The Uniform Land Use Review Process
72. Pursuant to Sections 197-c and 201 of the New York City Charter, IKEA Property’s application for a zoning change and various special permits and authorizations was subject to the Uniform Land Use Review Process (ULURP). ULURP requires consideration and determination on the application by the affected community board, the borough president, the CPC, and, in certain circumstances, applicable here, the Council.
73. On June 9, 2004, Community Board 6 in Brooklyn voted 34 in favor, 4 against, and 2 abstaining to approve the application with conditions, which include the performance by IKEA of a follow-up traffic study and a goods movement study, and its funding of a job training center. On July 12, 2004, the Brooklyn Borough President voted to approve the application with three conditions: (1) that IKEA explore the means of providing day care services for the children of its employees; (2) that IKEA provide ongoing funding to an organization that will operate a facility in Red Hook to encourage the hiring and retention of Red Hook residents; and (3) that IKEA provide one of the accessory buildings on the project site for cultural uses. Exhibit 7.
74. The CPC held a hearing on the application on July 28, 2004, and issued its report approving all the requested actions on September 8, 2004. The CPC noted that the properties in the immediate vicinity of the project site are predominantly industrial in nature, with concentrations of residential use north and northwest of the site and parkland northeast of the site. A heavy manufacturing district hugs the waterfront to the west of the site and several blocks east to the mouth of the Gowanus Canal. Exhibit 7, p. 3. Nonetheless, the CPC found it appropriate to rezone the site to M1 because
it would allow commercial or light manufacturing development consistent with surrounding light- and heavy-manufacturing uses including the 24-hour barge use of the Erie Basin, nearby manufacturing, warehousing, distribution uses and surrounding surface parking lots. Local manufacturing, warehousing, distribution and surface parking uses typically have peak activity times on weekdays different from that of the proposed retail use, which would be most active on weekends mid-day. The proposed M1-1 district would be an appropriate buffer between heavier manufacturing uses south of the site and the residential uses a few blocks to the north.
Exhibit 7, p. 32.
75. The CPC found that the project is consistent with the 197-a Plan and the PBW because it fulfills the goals expressed in those plans of promoting economic development, improving transportation access and circulation and supporting maritime industrial use of the waterfront. According to the CPC, the waterfront esplanade would provide views to the "working waterfront of Erie Basin" consistent with the open space goals articulated in the 197-a Plan and the PBW. The development would provide 500-600 jobs, "with an emphasis on local job training and hiring consistent with the economic development goals" of the 197-a Plan. By providing a bus stop at the site, working with the Transit Authority to extend the B61 bus line, and providing free weekend ferry and shuttle bus service to the site, the project would improve transit access to the neighborhood, a goal of the 197-a Plan. The CPC found that the proposed use of the site’s piers for barge tie-up and the continuation of manufacturing zoning on the site are consistent with the SMIA designation. Exhibit 7, pp. 42-43.
76. However, a large retail establishment is not an industrial use, it shifts the character of Red Hook perceptibly towards commercialization, it does not derive any benefit from its waterfront location, its support of maritime use is miniscule compared to its impact in replacing such uses, and the improved transportation access will be only on weekends and for the benefit of the store. The CPC apparently concluded that any development that will improve the property and create jobs is better than no development. Angotti Aff. ¶ 18.
77. The CPC further found that the project would minimize or avoid adverse environmental impacts to the maximum extent practicable, and that it is consistent with WRP policies. Exhibit 7, p. 45. Having so found, the CPC granted the two special permits, and the authorization, and approved the zoning map amendment and the changes to the City map.
78. The CPC’s determinations were subject to review and action by the Council pursuant to Section 197-d(b)(1) of the New York City Charter and Section 62-722 of the ZR. On October 5, 2004, the Council held a public hearing on the determinations, and on October 13, 2004, found that the FEIS was adequate and approved the determinations.
79. In 1975, the New York State Legislature enacted the State Environmental Quality Review Act (SEQRA), Environmental Conservation Law ("ECL") Article 8. The purpose of SEQRA is to incorporate the consideration of environmental factors into the planning, review, and decision-making processes of state and local governmental agencies at the earliest possible time. To accomplish this purpose, SEQRA requires that all agencies determine whether the actions they undertake, fund, or approve may have a significant adverse impact on the environment, and if they may, to prepare an environmental impact statement ("EIS") analyzing such impacts. See ECL § 8-0103; 6 NYCRR § 617.1(c).
80. The regulations under SEQRA state: "An EIS provides a means for agencies, project sponsors and the public to systematically consider significant environmental impacts, alternatives and mitigation. An EIS facilitates the weighing of social, economic, and environmental factors early in the planning and decision-making process." 6 NYCRR § 617.2(n).
81. In 1997, the Mayor of the City of New York signed Executive Order 91, promulgating City Environmental Quality Review (CEQR) requirements as contemplated by SEQRA. Pursuant to section 192(e) of the New York City Charter, the CPC has established additional rules under CEQR. See 62 RCNY § 5-01 et seq.
Compliance with SEQRA and CEQR is mandatory: "No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQR" and CEQR. 6 NYCRR § 617.3(a); see also 62 RCNY § 6-12(a).
82. The SEQRA regulations include a list of items that "all draft EISs must include." 6 NYCRR § 617.9(b)(5). Among these are "a statement and evaluation of the potential significant adverse environmental impacts at a level of detail that reflects the severity of the impacts and the reasonable likelihood of their occurrence," id. § 617.9(b)(5)(iii), including any "reasonably related short-term and long-term impacts, cumulative impacts and other associated environmental impacts," id. § 617.9(b)(5)(iii)(a), and "a description of the mitigation measures." Id. § 617.9(b)(5)(iv); see also 62 RCNY § 6-09(d) (CEQR requirements).
83. In 1981 the New York State Legislature adopted the State’s coastal management program in the Waterfront Revitalization and Coastal Resource Act. The legislature found that
It is in the interest of the people of the state that coordinated and comprehensive policy and planning for preservation, enhancement, protection, development and the use of the state’s coastal and inland waterway resources take place to insure the proper balance between natural resources and the need to accommodate the needs of population growth and economic development.
NY Executive Law § 910. New York’s public policy for coastal areas encourages the development and use of existing ports and small harbors, including the use and maintenance of viable existing infrastructures, and the reinforcement of their role as valuable components of the state’s transportation and industrial network. Executive Law § 912 (2).
84. The State coastal management program contains 44 policies, and consistency with those policies is a key element of the program. It provides for local implementation when a municipality adopts a local waterfront revitalization program.
85. The New York City WRP was adopted in 1982 by the New York City Board of Estimate as a local 197-a plan under the New York City Charter. It incorporated the 44 State policies and added 12 local policies. Under the WRP, local discretionary land use actions must be reviewed for consistency with the policies in the WRP. An action must be found consistent with the policies and the WRP before it can be approved.
86. Pursuant to SEQRA, no State agency may make a final decision on an action that has been the subject of a final EIS and is located in the coastal area until the agency has made a written finding that the action is consistent with the applicable policies set forth in 19 NYCRR 600.5 and, to the maximum extent practicable, with the local WRP. 6 NYCRR § 617.11 (e).
87. New York City is authorized to adopt zoning ordinances pursuant to NY General City Law §§ 20 (24), (25). Zoning ordinances must be enacted in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare, and the power to enact such ordinances must not be exerted arbitrarily or unreasonably.
FIRST CAUSE OF ACTION
SEQRA AND CEQR: DEFICIENT FEIS
88. Petitioners-Plaintiffs repeat and reallege, as if set forth fully herein, the allegations contain in Paragraphs 1 through 87 hereof.
89. It was arbitrary and capricious, an abuse of lawful procedure, and a violation of SEQRA and CEQR for the CPC to approve and act upon, and for the Council to act upon, an FEIS that:
a. misrepresented the traffic impacts of the project by failing to use the proper build year, failing to account for impacts on the expressways, minimizing the number of trips using local streets, underestimating the trips generated by the IKEA store, and by otherwise understating vehicle usage and its impacts;
b. misrepresented the socioeconomic impacts of the project, by failing to properly account for its effect on the home furnishings sector in Brooklyn, failing to address its impacts on the residential revitalization of Red Hook, failing to properly assess trends in demand for industrially zoned land, and by otherwise minimizing its impacts on the socioeconomic character of Red Hook;
c. failed to account for the impacts of project traffic on neighborhood character; and
d. failed to disclose the impact of the project on land use and zoning by distorting its character and denying its blatant inconsistency with approved land use plans for the area.
SECOND CAUSE OF ACTION
90. Petitioners-Plaintiffs repeat and reallege, as if set forth fully herein, the allegations contained in Paragraphs 1 through 87 hereof.
91. The CPC and the Council amended the Zoning Resolution (ZR) with respect to the project site for the sole benefit of IKEA. The amendment classified the site inconsistently with surrounding uses and to their detriment.
92. The amendment to the ZR was illegal, arbitrary, and irrational.
THIRD CAUSE OF ACTION
93. Petitioners-Plaintiffs repeat and reallege, as if set forth fully herein, the allegations contained in Paragraphs 1 through 87 hereof.
94. The CPC’s and the Council’s amendment of the ZR was not in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare. They therefore exercised their zoning powers unreasonably, arbitrarily and capriciously.
95. The CPC’s and the Council’s amendment of the ZR contravened and violated the existing comprehensive plans for the development of Red Hook and Erie Basin. They therefore exercised their zoning powers unreasonably, arbitrarily and capriciously.
FOURTH CAUSE OF ACTION
VIOLATION OF COASTAL ZONE MANAGEMENT PLAN
96. Petitioners-Plaintiffs repeat and reallege, as if set forth fully herein, the allegations contain in Paragraphs 1 through 87 hereof.
97. The amendment to the ZR was inconsistent with numerous policies adopted by the City in its WRP. It was arbitrary and capricious for the CPC and the Council, sitting as the City Coastal Commission, to find that the amendment to the ZR was consistent with such policies.
NO PRIOR APPLICATION
98. No prior application for this or any similar relief has been made in this Court.
WHEREFORE, Petitioners-Plaintiffs request that this Court issue a judgment:
(1) annulling and vacating the FEIS;
(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
February 8, 2005
ANTONIA LEVINE BRYSON, ESQ.
475 Park Avenue South
New York, New York 10016
Telephone: (212) 483-9120
Facsimile: (212) 213-5004
Attorney for Petitioners-Plaintiffs