Fisher v. Giuliani

280 A.D.2d 13, 720 N.Y.S.2d 50 (App. Div. 2001)



In analyzing a New York State Environmental Quality Review Act determination, a court is required to sustain an agency's negative declaration unless the court concludes that it was affected by an error of law or was arbitrary and capricious or an abuse of discretion. Under this standard, it is not the role of the court to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the agency. Rather, the limited issue for the court's review is 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. 


Respondent department of city planning (DCP) studied traffic, development, transit, air quality, and socioeconomic effects, before it proposed all changes to the theater district, other than the discretionary floor to area ratio (FAR) changes. The studied changes expanded the right of designated theaters to transfer development rights to receiving sites anywhere within the theater district, now enlarged to be next to the residential Clinton district, provided the transferor agreed to ensure operational soundness, use, and design of the transferring theater as a legitimate theater. Petitioners, including residents of a neighboring special district, challenged the theater subdistrict zoning. A Supreme Court in New York County judgment annulled the zoning map and text changes, enjoined transfer of development rights, and directed respondents to prepare an environmental impact statement under New York State Environmental Quality Review Act (SEQRA). Respondents appealed. Judgment was modified and remanded. The judgment was affirmed that SEQRA required a conceptual study when the discretionary FAR zoning changes were adopted even if also required when the applicant sought the special permit. A SEQRA report was not needed for zone enlargement, transfer, design, and other changes; respondent DCP's negative impact declaration examined environmental consequences of those changes into a 10 year foreseeable future.




Was respondent city required to prepare an Environmental Impact Statement before implementing the changes to the New York City Zoning Resolution? 




The appeals court allowed those zoning changes without a SEQRA study since respondent DCP's negative impact declaration (that those changes had no significant impact) was not affected by error of law, arbitrary and capricious, or an abuse of discretion. However, the appeals court severed and annulled the zoning changes that authorized a discretionary grant to a developer of an additional 20 percent of FAR for development at certain sites within the enlarged theater district which bordered the Clinton district. SEQRA required at least a conceptual study when the zoning change was adopted.

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