Save Our Parks v. City of
110836/06
SUPREME
2006 N.Y. Misc. LEXIS 2365; 236 N.Y.L.J. 35
August 15, 2006, Decided
NOTICE: [*1] THE
LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE
RELEASE OF
THE FINAL PUBLISHED VERSION.
JUDGES: Justice Cahn
OPINION BY: Cahn
OPINION: This CPLR Article 78
proceeding alleges violations of the State Environmental Quality Review
Act
(SEQRA) in connection with the approvals granted to the City of New
York (the
City) and the New York Yankees Partnership (the Yankees) to construct a
new
Yankee Stadium in the South Bronx to the north of the existing stadium
and on
portions of Macomb's Dam and John Mullaly Parks.
Petitioners move for a preliminary injunction enjoining the respondents
from
removing any mature trees located in the two parks or in or around the
footprint of the proposed new site for Yankee Stadium, CPLR 6301.
Construction,
and the necessary demolition, is scheduled to commence on August 17,
2006. Inasmuch
as this application was made to the court on August 3, 2006, it was
briefed,
heard and determined on an expedited basis. n1
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n1 The court has not considered the affidavits of Sheila R. Foster, Dr.
Jonathan A. Bradlow, and Christian DiPalermo, submitted by petitioners
as part
of their reply papers, to the extent that these affidavits offer
further
evidence and arguments in support of petitioners' claims. The court has
only
considered the reply affirmation of Jeffrey S. Baker to the extent that
he
responds to arguments raised by, or evidence offered by, respondents in
their
opposition papers. Azzopardi v. American Blower Corp., 192 A.D.2d 453,
454, 596
N.Y.S.2d 404 (1st
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- [*2]
BACKGROUND
The existing Yankee Stadium was originally built in 1923, at East 157th
Street,
River Avenue, East 161st Street and Ruppert Place in the South Bronx.
The
stadium was renovated in the mid-1970's. The Yankees assert that while
seating
capacity is sufficient, stadium operations have become severely
constrained,
and the stadium cannot comfortably handle an attendance of greater than
35,000
fans. Further, the existing stadium is not in compliance with the
Americans
with Disabilities Act of 1990 (the
Petitioners do not challenge the need for a new, more spacious modern
stadium,
and all agree that the current off-street parking is woefully
inadequate. What
might have been adequate in 1923 or during the mid-1970s, is not
adequate in
the 21st Century.
The management of the Yankees have sought the construction of a modern
stadium.
In fact, the Yankees have often stated that if plans for a new stadium
are not
soon approved, and construction started, it will seek to move the
Yankees
baseball team to another [*3] city, which would enable
immediate
construction of a new stadium to commence.
To address these concerns, the City and State of
The proposed project is for the construction of a new, state-of-the
art,
stadium and four parking garages providing a net increase of 3,315
parking
spaces over the current 6,995 off-street parking spaces. The new
stadium, and
three of the garages, are to be constructed to the north of the
existing
stadium, across
The project will replace 22.42 acres of unencumbered parkland with
24.56 acres
of replacement parkland, consisting of the Yankee Stadium site,
adjacent land
now used for parking, and waterfront property along the
Given the parkland and open space within the city which the proposed
project
would affect, the New York City Department of Parks and Recreation
(Parks
Department) acted as the lead agency, under SEQRA and the City's
Environmental
Quality Review (CEQA) regulations, in weighing the environmental
consequences
of the project. A Draft Environmental Impact Statement (DEIS) was
certified as
complete on September 23, 2005. It was distributed and made available
for public
review. Pursuant to SEQRA regulations and CEQA procedures, a joint
public
hearing on the DEIS was held on January 11, 2006, following notice to
the
public and affected public officials. Written comments on the DEIS were
accepted by the Parks Department through January 23, 2006. Substantive
comments
were then addressed in a Final Environmental Impact Statement (FEIS)
issued on
February 10, 2006. The FEIS was complex and was over 700 pages.
[*5]
Included in the FEIS, and in response to public comment on the DEIS, an
alternative plan for the specific configuration of replacement park
facilities
was developed and analyzed. The public comments on the DEIS expressed a
desire
for a contiguous park area, a concentration of ballfields closer to
certain
residential areas, and a construction schedule that would maximize
availability
of recreational facilities during construction. Changes were made to
the park
program to address these comments. First, the two community ballfields,
that
had been initially proposed for the waterfront park, were instead moved
to the
site of the existing stadium, immediately across the street from their
present
location in
The local community was given an opportunity to comment on the
proposal. Bronx
Community Board 4 recommended disapproval of the project. However, the
Bronx
Borough President was in favor of the project. The City Council
approved the
project on April 5, 2006. The project was also reviewed, and recently
approved,
by the National Parks Department.
Petitioners:
Petitioner Save Our Parks is an unincorporated
association of approximately one hundred households of people who live
and work
in the neighborhoods around
Petitioners contend that the Parks Department, as the lead agency for
the SEQRA
review, the New York City Planning Commission and the New York City
Council all
violated SEQRA in three ways.
First, petitioners argue that the FEIS did not engage in an honest
exploration
of the impact of the new stadium on the neighboring community's
parkland and
open space, natural and visual resources. In this regard, petitioners
claim
that the FEIS failed to consider the value of the parks to the local
community.
They claim that FEIS completely failed to assess the number of schools,
nineteen in all--both public and private, and schoolchildren, over
15,000
students, in the surrounding communities who lack physical education
facilities. Petitioners claim that these schools and schoolchildren
rely upon
the parks for outdoor recreational opportunities. They argue that
construction
of the new stadium will deprive the residents of recreational
facilities within
easy walking distance for at least four years, [*8] and
possibly longer.
The petitioners note that four or "five years is a very long time in
the
life of a child in a poor neighborhood, where people suffer from
childhood
asthma, obesity, diabetes, and they don't have those[other]
opportunities." Tr. at 34.
Second, Petitioners argue that the FEIS's discussion of alternatives to
the
proposed project was "superficial and disingenuous," and did not
provide the information necessary to make a rational choice between
other
options. They contend that reconstructing the existing stadium, by
utilizing a
portion of the southern section of
Third, petitioners argue that the FEIS does not properly assess and
consider
the removal of 377 mature shade trees, which represent seventy percent
of the
mature shade trees in the area, and the impact of the loss of those
trees on
the local environment and community. They further argue that the
proposed
program for replacing the lost trees is not definite, [*9]
may not
be feasible, and that there is no enforceable commitment to maintain
the sapling
trees to be planted and replace dead trees. n2
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n2 The petitioners also alleges that the FEIS did not engage in an
honest
exploration of the impact of the new stadium on the surrounding
residential
community's traffic, air quality and noise levels. See Petition PP67,
76-77.
This claim is totally unsupported and contradicted in the numerous
sections of
the FEIS where these issues are raised and analyzed in considerable
depth. See,
e.g., FEIS, Chapter 15: Parking, Chapter 17: Air Quality, and Chapter
18:
Noise.
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It is with regard to the trees, that petitioners base their request for
a
temporary injunction. Petitioners argue that irreparable harm will
occur if the
city respondents are allowed to commence destruction of the parklands
and
removal of 377 mature trees, some of which have reached a height of
forty feet.
They argue that "while you can replace buildings and restore park land,
only God can make a 75 year old tree, and [*10] that's not
something
that gets replaced by putting in a new sapling." Tr. at 10. They
further
contend that granting a preliminary injunction will result only in a
delay in
the project, which petitioners argue will still eventually get built.
Petitioners assert that if the Yankees have to relocate to another
venue, it
would be a "minor inconvenience." Petitioners see the preliminary
injunction they seek as merely maintaining the status quo until full
judicial
review can be had on their claims.
Respondents:
The basic arguments against petitioners' position is that the City
agencies
properly and in great detail analyzed the project and the objections
raised
thereto. After balancing the needs of the City against any
inconvenience and
harm to be suffered by the local community, the municipal bodies
approved the
FEIS. The City respondents argue that the plan contained in the FEIS is
fair
and that petitioners' arguments are not sufficient to permit the court
to
derail it.
The Yankees argue that a delay by judicial direction or otherwise would
cause
them serious harm, to the extent that the project might have to be
abandoned.
The Yankees have asserted that their ability to remain in the
They argue that a significant part of the financing of the new stadium,
for
which they are paying, has been planned around the issuance of bonds.
These
bonds, currently scheduled to be sold on August 16, 2006, are based on
the
costs over a thirty month construction period. The Yankees argue that
if a
preliminary injunction were issued, the construction period would
necessarily
be extended, and the cost of construction would rise twelve percent
annually.
This might add an additional $ 80,000,000 to the cost of the stadium,
which
would change the financial structure designed to fund the construction
of the
new stadium, a financial structure which was two years in development.
If this
changed, the marketability of the bonds would be put at great risk and
their
interest charges might well increase. As such, the Yankees have
asserted that
delay jeopardizes the [*12] ability to sell the bonds that
are to be
the financial source for the funding of the construction of the new
stadium.
Tr. at 12-13.
In addition to the issuance of the bonds, the Yankees contend that the
delay
would adversely impact their ability to make the payments required by
the
bonds. Tr. at 13. They assert that a delay in the schedule would result
in the
Yankees starting to play in the new stadium later in the 2009 season,
which
would increase costs by requiring multiple rents and duplicative
staffing in
multiple stadiums, as well as delaying revenues.
In addition, the court takes note of the fact that the current Yankee
Stadium
is not in compliance with the
DISCUSSION
In order to be entitled to a preliminary injunction, petitioners must
demonstrate: (1) a likelihood of success on their claims that SEQRA was
violated; (2) irreparable injury absent granting of the preliminary
injunction;
and (3) a balancing of the equities in their favor. Doe v. Axelrod, 73
N.Y.2d
748, 750, 532 N.E.2d 1272, 536 N.Y.S.2d 44 (1988); Olympic Tower
Condominium v.
Cocoziello, 306 A.D.2d 159, 160, 761 N.Y.S.2d 179 (1st
In reviewing determinations made pursuant to SEQRA, the court must
apply a
deferential standard of review, i.e., "whether, substantively,
the [*14] determination 'was affected by an error of law or
was
arbitrary and capricious or an abuse of discretion.'" Akpan v. Koch, 75
N.Y.2d 561, 570, 554 N.E.2d 53, 555 N.Y.S.2d 16 (1990). Indeed, "SEQRA
allows an administrative agency or governmental body considerable
latitude in
evaluating the environmental impacts and alternatives discussed in an
environmental impact statement to reach a determination concerning a
proposed
project." Aldrich v. Pattison, 107 A.D.2d 258, 267, 486 N.Y.S.2d 23 (2d
Dept 1985); see also Real Estate Board of New York, Inc. v. City of New
York,
157 A.D.2d 361, 363, 556 N.Y.S.2d 853 (1st Dept 1990). In assessing an
agency's
compliance with the substantive mandates of SEQRA, courts review the
administrative record to determine if 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."
In addition, the doctrine of exhaustion of administrative remedies also
applies
to FEIS challenges under SEQRA. Courts cannot review a determination on
environmental matters based upon evidence or arguments not presented
during the
proceeding before the lead agency. Aldrich v. Pattison, 107 A.D.2d at
267-68;
see also Miller v. Kozakiewicz, 300 A.D.2d 399, 400, 751 N.Y.S.2d 524
(2d
Impact on the Community's Schoolchildren:
Petitioners are barred from raising objections regarding the project's
quantitative impact on surrounding schools and schoolchildren from the
temporary loss of park amenities because they failed to raise this
argument
during the administrative review process. Although petitioners contend
that
their quantitative impact argument was raised during the comment
period, the
only reference to schools in the FEIS to which they cite is a public
comment on
the DEIS that the construction will "generate dust, pollution and noise
close to a public school, negatively affecting schoolchildren and the
elderly." FEIS 25-72. Petitioners have not shown that they, or any of
the
public, raised their current issues during the comment period. n3
Project
opponents should [*16] not be able to withhold particular
objections
during the SEQRA review process, when the public has been given the
opportunity
to be heard, and then attempt to ambush the agency with unraised
objections in
an Article 78 proceeding.
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n3 Of the present petitioners, only John Rozankowski for petitioner Save Our Parks and petitioner Frances Tejada, for the High
bridge
Community Life Center, participated in the review process (FEIS 22-2
and 22-3).
Mr. Rozankowski's comments were limited to mass transit issues (FEIS
25-62,
25-63, 25-69) and preserving the two parks (FEIS 25-78). Ms. Tejada
commented
that construction jobs were temporary and not likely to go to
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Notwithstanding the above, the court has analyzed and considered the
claim,
because of the importance of recreational facilities for students and
other
youth. The court finds that the claim lacks [*17] merit.
There is no
requirement in the CEQR Technical Manual, n4 or under SEQRA generally,
that an
environmental impact statement include an assessment of the potential
impact of
a temporary reduction in open space on any particular sector of the
population.
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n4 The CEQR Technical Manual provides guidelines to lead agencies and
private
applicants for use in environmental impact assessments in
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More important than the above, the FEIS contained a thorough analysis
of the
potential impact to the community as a whole, which necessarily
includes
schoolchildren. This analysis included a review of the decrease in the
amount
of parkland and recreational facilities available during the
construction
period for the [*18] new stadium. The FEIS describes in
detail the
existing community parks' characteristics, condition, and uses. FEIS
4-3, 4-4.
It notes that the
The court's role is not to pull apart each piece of the Parks
Department's
analyses. The fact that the FEIS did not quantify the number of
affected
schools and schoolchildren does not render their analysis legally
deficient.
Project Alternatives:
In reviewing the sufficiency of analysis of
alternatives [*19] under
SEQRA, the standard to be applied is the "rule of reason." Thus,
"not every conceivable . . . alternative must be identified and
addressed
before a FEIS will satisfy the substantive requirements of SEQRA."
Akpan, 75 N.Y.2d at 570. Provided the lead agency considers a
reasonable range
of alternatives, the "judicial inquiry is at an end." Dryden, 78
N.Y.2d at 334. Additionally, SEQRA's implementing regulations make
clear that
alternatives that do not fulfill the project's objections need not be
analyzed.
6 NYCRR § 617.9 (b) (5) (v); see also Webster Assos. v. Town of
Petitioners argue that reconstruction of the existing stadium would
only
involve taking a portion of the [*20] southern section of
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n5 The FEIS concludes, and both sides agree, that Shea Stadium is the
only
alternative venue that could accommodate a major-league baseball team.
FEIS
22-5.
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In fact, however, the FEIS considered the reconstruction alternative,
both in
Chapter 22 entitled "Alternatives" and in Chapter 25's responses to
public comments on the DEIS. FEIS 22-5 to 22-6, 25-78. The Parks
Department
determined that it was not feasible for a number of critical reasons
and/or
would not meet the goals and objectives of the project.
First, expansion beyond the footprint of the existing stadium would
encroach on
the southern portion of
Second, relocation of the Yankees to [*22] Shea Stadium was
determined to not be possible today, although it had been successfully
done in
the 1970's. FEIS 22-5. The FEIS noted that the Mets are currently
poised to
build a new stadium themselves. Their new stadium will be next to their
existing facility, which, like Yankee Stadium, is also widely
acknowledged to
be out of date. Having the two teams share Shea would greatly
exacerbate the
parking impact of the Shea Stadium project on its community during the
construction.
Areas of
Petitioners also propose delaying the reconstruction of Yankee
Stadium [*23] until Shea Stadium is rebuilt. However, this
ignores
the fact that although the City owns both Yankee and Shea Stadiums, it
is the
two teams that are each paying for their rebuilding, and, therefore,
that the
financing for each is driving the projects. Waiting for completion of
Shea Stadium's
reconstruction would require the Yankees to wait an additional four
years to
even begin their new stadium, and thus to wait eight years until their
own
reconstruction would be completed. This would not meet the Yankees'
objectives
and, thus, does not represent a reasonable alternative to the project.
In addition, the Ferrer plan was addressed in the DEIS, and responded
to in the
FEIS (at 25-79). The Ferrer plan primarily proposed improvements for
the area
surrounding Yankee Stadium, and did not specify components for the
renovation
of the stadium itself. As such, this plan lacked "sufficient detail to
permit a reasoned analysis as an alternative to the proposed project."
Petitioners also allege that relocating the stadium to a location in
the industrial
area further south was not seriously considered. However, petitioners
admit
that the Parks Department properly looked at and
eliminated [*24]
three possible sites near the existing stadium because they were too
small.
FEIS 22-3 to 22-4, Fig. 22-1; Petition P85.
Accordingly, petitioners have not demonstrated a likelihood of success
on the
merits of their claim that the FEIS's discussion of alternatives to the
project
was "superficial and disingenuous," or that the discussion fails to
provide the information necessary to make a rational choice between
these other
options.
Removal of Mature Shade Trees:
The FEIS addressed and assessed the impact of removing mature trees
from the
project area. FEIS 7-2, 9-22 to 9-24. The Parks Department estimated
that the
project would result in the preservation of 165 trees and the loss of
approximately 377 trees. The FEIS provided for the removed trees to be
replaced
in accordance with the Parks Department's "basal area tree replacement
formula." Through this methodology, the removed trees, having a basal,
or
base, area of approximately 592 square feet, would be replaced by 8,356
trees
of a 3.5-inch caliper. The replacement trees would have a total basal
area
equal to that of the trees removed.
Petitioners contend that the FEIS's determination, that removing mature
trees
on the project [*25] site would not cause significant
adverse
environmental impact, is arbitrary or capricious. However, the project
would
seek to retain mature trees wherever possible and includes a replanting
program
in accordance with the Parks' Department's basal area tree replacement
formula,
which is designed to replace the ecological value of removed trees and
is the
mitigation specifically identified in the CEQR Technical Manual.
Although there
is no doubt that a three and a half inch sapling does not provide the
shade and
other benefits of a forty foot mature tree, as petitioners' forestry
expert
contends, SEQRA does not prohibit the cutting down of mature trees.
SEQRA
merely requires state and local governments to promote efforts which
will
prevent or eliminate damage to the environment. Environmental Control
Law §§
8-0101, 0109.
According to the affidavit of a deputy director of the Parks
Department, the
City is committed to undertaking a tree replacement program in
accordance with
what was presented in the FEIS. Gunther Aff. PP18-24. The Parks
Department has
plans in place to begin planting approximately 500 to 800 trees in and
around
the communities surrounding the project area, starting [*26]
as
early as the fall of 2006. Perhaps most importantly, the court notes
that trees
themselves have no legal protection. Although communities, as a whole,
are
assessed and protected by environmental impact statements and reports,
there is
no legal bar to cutting down trees, when that is necessary to permit a
project
deemed beneficial to the City, i.e. the larger community, to proceed.
The trees
are not owed more deference than the community as a whole.
For all of the reasons stated above, petitioners fail to show the
likelihood of
success on the merits of their claim that the FEIS has not adequately
identified and carefully analyzed, and given a reasoned elaboration of
the
environmental impact issues petitioners raise herein.
Irreparable Harm:
Respondents contend that there is no irreparable harm, because the loss
of the
parkland is only temporary, there will be a net gain of 2.14 acres of
unencumbered parkland, and the loss of the trees will be ameliorated by
planting thousands of new trees in the vicinity of the project. At oral
argument, petitioners' counsel conceded that the lost parkland can be
restored.
The court also notes that respondents currently have a permit to cut
down [*27] only 170 trees, and the harm of losing mature
trees could
be ameliorated, to some extent, by the planting of replacement trees
larger
than saplings.
As mentioned above, a temporary inspection would cause respondents
irreparable
harm.
Balancing of the Equities:
A balancing of the equities clearly favors the respondents. There is a
real and
significant possibility that delaying the scheduled start of
construction will
cause significant harm to the Yankees, the City and the residents of
the
There is evidence that the entire project could become non-viable if
construction is delayed by judicial fiat. Tishman Speyer, the project's
Development Manager, avers that the construction company will not be
able to
guarantee that the new stadium will be ready for the 2009 season if
construction and preliminary site preparation do not commence on the
August 17,
2006 date, as planned. Further, the additional cost of construction due
to
delay could be great. Lon Trost, the Chief operating officer of the
Yankees,
avers that the team may leave the City if they cannot be assured that
the new
stadium will be completed by the [*28] beginning of the 2009
season.
The new stadium is needed by the 2009 season due to settlement
agreements
entered into as a result of litigation over the current stadium's
non-compliance with the
Finally, petitioners argue that the Yankees are a wealthy and highly
successful
sports franchise dedicated to staying in New York City and, as a
result, that
they are unlikely to leave the City. Petitioners also argue that a
preliminary
injunction, at this time, even if it results in a delay of the
construction,
will not prevent the Yankees from being in their new stadium by the
start of
the 2009 season. Petitioners assert that other ballparks in other
cities are
proposed [*29] to be built in less than 30 months, and,
therefore,
so too can the new Yankee Stadium be constructed in less time than the
current
schedule requires.
However, none of these arguments are availing. These unsupported and
conclusory
assertions do not obviate the potential harm alleged and documented in
respondents' opposition papers. The court also notes that although
Article 78
proceedings are governed by a four month statute of limitations, the
petitioners
waited until almost the last day of that period to move for a
preliminary
injunction. Further, the petitioners raised only the most local of
issues in
their motion, whereas all the governmental agencies involved, on the
city,
state and federal level, clearly had an obligation to look at the needs
of the
City as a whole as well as the local community in arriving at their
decision.
Underlying these objections made by petitioners to the siting or even
the need
for a new stadium, is petitioner's view that the Yankees are not
serious in the
statement that the team will necessarily move to another city, if the
new
stadium is delayed. They also disregard the Yankees claims relating to
the
rising cost that delay will cause, and the very [*30] real
possibility
that such rising cost will completely make the project unfeasible.
However, the
court is not ready to simply disregard what has been said by the
Yankees in
these regards. To do so, would be reckless at the very least. After
all, it is
very possible that the Yankees and their counsel mean what they say
when they
indicate that the Yankees will have to seek an alternative home if
construction
here is delayed.
Treatment as a Motion to Dismiss:
The Yankees, at the hearing before the court orally moved to have the
court
treat the papers submitted in opposition to the preliminary injunction
motion,
also as a motion for dismiss. Tr. at 36. The City supported the
Yankees'
motion. Petitioners opposed, arguing that they are entitled to put in
papers in
opposition to a motion to dismiss. Petitioners further argue that the
full
record, of the proceedings and the documents that were reviewed by the
City in
making their determination regarding the project, is not currently
before the
court.
The court has considered the motion, and finds that since petitioners
have not
had the opportunity to respond, the court does not have the authority
to do so.
For the foregoing reasons, it [*31] is hereby
ORDERED that petitioners' motion for a preliminary injunction is
denied; and it
is further
ORDERED that respondents' cross-motion to convert their papers in
opposition to
the preliminary judgement to a motion to dismiss is denied, without
prejudice.