In a decision dated July 11, 2018, Hon. Carmen Victoria St. George of the New York Supreme Court, New York County, dismissed in its entirety litigation challenging the legality of the City Environmental Quality Review (“CEQR”) Technical Manual and the environmental review of the Bedford Union Armory Redevelopment project (the “Project”).[1]  The CEQR Technical Manual, which is published by the New York City Mayor’s Office of Environmental Coordination, offers guidance that is widely used for projects throughout the City. The petitioners, who are local residents living in rent-stabilized apartments, brought the lawsuit against the City of New York and Bedford Courts LLC, the developer of the Project. Sive, Paget & Riesel represented respondent Bedford Courts LLC in the litigation.

The petitioners argued that the CEQR Technical Manual is not guidance, but rather constitutes a de facto rule that never went through the required notice and comment rulemaking process under the City’s Administrative Procedure Act (“CAPA”). The court rejected this argument, holding that the CEQR Technical Manual is not a rule because it does not impose “fixed, general principles” or “rigid, numerical policies” to be applied regardless of circumstances.  Instead, the Manual “repeatedly indicates that agencies should exercise discretion in the implementation of the guidelines.” The Court therefore concluded that “the publication of the manual or of its amended versions did not trigger the rulemaking requirements of CAPA.”

The Court also rejected the petitioners’ challenge to the Project, which will realize the City’s vision by revitalizing the long-vacant Armory building with a new recreation and community center offering free and low-cost programming and office space for non-profit organizations, community medical space, and 250 units of affordable housing for the Crown Heights community. The petitioners argued that the Project would indirectly displace area tenants protected by rent regulation laws, and that the Project’s environmental impact statement did not adequately assess the Project’s potential impacts on indirect displacement under the State Environmental Quality Review Act (“SEQRA”) and City Environmental Quality Review (“CEQR”). The Court rejected these arguments, holding that the environmental impact statement for the Project, which followed the guidance set forth in the CEQR Technical Manual, properly found that the Project would not have a significant adverse impact with respect to indirect residential displacement.  In holding that the respondents satisfied their obligations, Court noted that:

The goal of the City, and of the projects at hand, is to balance the interests of the communities, including those of their more impoverished members, against the interest in promoting progress, beautification, and increasing hospitals, shops, recreation centers, and other facilities which benefit neighborhoods even while gentrifying them. This Court’s role, in turn, is not to question the way in which the City, entrusted with these projects, draws the balance. Its role is only to examine whether the lead agency, on behalf of the City, considered all relevant areas of environmental concern and examined them rationally.

For more information about the Court’s recent decision, please contact David Paget or Katherine Ghilain.

[1] The decision also dismissed a related case that mounted the same challenge against the CEQR Technical Manual and similar claims against the East Harlem rezoning.