______

113194 It) SLPREME CO RI OF [HF S [Al F OF NF\ YORK COLN1Y O[ NL\\ YORK In the Matter of the Apphcation of CIIELSE:\ BLSI\ESS & PROPERTY OWNERS \SSOCL\ [ION, FEC, d ha CI IELSEA FL [iRON \ 1 COALI liON, Petitioner. For an Order Pursuant to Article 78 of the Civil Practice Law and Rules -a gal n st filE CITY OF NEW YORK: SETH DIAMOND. Commissioner for the Department of Homeless Services of the City of New York (DHS); GEORGE NASIIAK, Deputy Comm issioner for Adult Services for DHS: ROBERT D. LIMANDRI. Commissioner for the Department of Buildings of the City of New York (DOB); FA [MA AMER, RE,, First Deputy Commissioner for DOB; JAMES P. COLGA FE, R.A., Assistant Commissioner to Technical Affairs and Code Deelopment for DOB; VITO MLSTACILOI.O. [)eputy Commissioner for the Department of i-lousing. Preseration & Development of the City of New York. BOWERY RESIDENTS COMMI i-TEE. INC.: 127 WEST 25th LLC: and DANIEL SIJAVOLIAN, Respondents.

MUNICIPAL RESPONDENTS MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS MOTION FOR A PRELIMINARY INJUNCTION

JIICff4EL A. CARDOZO Corporation Coun sd oJ the City of yew York lttornejfor Defendants 100 Church Street .\ei Yjrk, V Y J000 (.1 ( .iii,ie/. Chriiopher King Tel: (.12j S-1235 .iJattcr Ao 20J0-03996

TABLE OF CONTENTS PaEe FABLE OF AUTHORITIES PRELIMINARY STATEMENT STATEMENT OF FACTS A. The Proposed 200-Bed DHS Shelter at the Site B. Contract Ieviejivs C. SEQRA/CEQR, Fair Share Reviews ARGUMENT PETITIONER HAS FAILED TO SATISFY THE REQUIREMENTS FOR A PRELIMINARY INJUNCTION CONCERNING ITS REMAINING CLAIMS AGAINST MUNICIPAL RESPONDENTS I. PETITIONER HAS FAILED TO DEMONSTRATE IRREPARABLE INJURY AS A RESULT OF THE LACK OF ANY REQUIRED LAND USE AND ENVIRONMENTAL REVIEWS iii 2 5 6 7 8

10

II. PETITIONER IS UNLIKELY TO SUCCEED ON THE MERITS OF ITS REMAINING UNDERLYING LEGAL CLAIMS A. CFC Has No Standing to Sue B. CFCs SEQRA/CEQR and Fair Share Claims and Its Claim Concerning Comptroller Registration of the BRC Contract arc Unripe C. Petitioner is Not Likely to Succeed On the Merits of Its (JLURP Claim D. Petitioner is Not Likely to Succeed On the Merits of its Administrative Claim Under New York City Administrative Code 21312

13 13

14 16

19

Page

Ill. TI lIE I3.\1.ACF OF JEQLITIFS TIPS DECIDEDLY IN FAVOR OF RESPONDENTS.

20

CONCLUSION. 22

TABLE OF AUTHORiTIES Cases Abbott Labs. v. Gardner, 387 U.S. 136(1967)

Aetna Ins. Ca v. Capasso, 75 N.Y.2d 860 (1990)

15 9 9 II 9 14, 15 12 17, 19 12 12 17 10 9 9

Brandt v. Bartlett, 52 A.D.2d 272 (3d Dept 1976) In the Mailer ofCamp Scatico v. Columbia County Dep t ofHealth, 277 A.D.2d 689 (3d Dept 2000) Chester Civic Improvement Ass ii Inc. v. NY. City Transit Auth., 122 A.D.2d 715 (1st 1)eit 1986) Chwch ofSt Paul & St Andrew v. Barwlcat 67 N.Y.2d 510(1986) Duty Bd 3 v. Stare. 101 Misc. 2d 189 (Sup. Ct. QueensCty. 1979) Only. Planning Ba. No. 4 v. Homesfor the Homeless. 600 N.Y.S.2d 619 (Sup. Ct. N.Y. Cty. 1993) Council ofthe City ofWY. v. Giuliani. 93 t4.Y.2d 60 (1999) County ofOrange v. Village ofKiryas Joel, 44 A.D.3d 765 (2d 2007) Davis v. Dinkins, 206 A.D.2d 365 (2d Dept 1994) Doclgertown Homeowners Assn v. City qfsV. 1. 235 A.D.2d 538 (2d Dept 1997) Doe v. Axelroct 73 N.Y.2d 44(1988) East 13th St. Homesteaders Coalition v. Lower East Side Coalition Hous. Deit, 230 A.D.2d 622 (1st 1996)

III

Cases Ferrer v. Dinkins. 218 A.D.2d 89 (1st Dept 1996) lv. denied. 88 N.Y.2d 801
(Jo/Lien v.

Pages

16

Steam heat, inc., 216 A.D.2d 440 (2d Dept 1995)

10

Greentree at Murrai lull Condo v. Good Shepherd Episcopal Church, 146 Misc. 2d 500 (Sup.Ct. N.Y. Cty 1989) Matter of Hearst Corp. v, Clyne, 5ONY 2d 707(1980) Kane v. Walsh, 295 N.Y. 198 (1946) Lucia Plaza v. City u/N. 1. 305 A.D.2d 604 (2d Dept 2003) N. I State Inspection. Securiiy & Law En/orcement Employees v. Cuomo, 64N.Y.2d233(1984) Nassau RoofIng & Sheet Metal Co. v. [:cilitie.s Dcv. Corp.. 70 A.D.2d 1021 (3d Dept 1979) Nbhd. in the Nineties v. City of.V I, 901 N.Y.S.2d 900 (Sup. Ct. N.Y. Cty. 2009) Putter v. City ofN I 27 A,D,3d 250 (1st Dept 2006) Santulli v. Drybka, 196 A.D.2d 862 (2d Dept 1993) Matter ofSave the Pine Bush, Inc. v Common Council u/the City ofAlhani. 13 N.Y.3d 297 (2009) Silver v. Dinkins, 158 Misc.2d 550 (Sup. Ct. N.Y. Ctv. 1993) .Soc v Of Plastics Indus. v. County of Suffolk, 77N.Y.2d761(1991 Spit:er v. Farrell, 294 \ 0 2d

10

16

11

17. 18. 19. 21 15

II

17, 18. 19

11

13

13

12

13 12

lt Dp t 2002)

Cases
Starhurst Realty Corp v Citj 01 New York, 125 AD2d 148 (1st Dept 1987) State of N Y v Fine, 72 N.Y2d 967 (1988)

Pages

16

Stop BIJOD v City of New York, 2009 WL 692080 (Sup. CL Kings Cty. Mar. 13. 2009).. ill ofSkaneateles v Bd. of Educ 180 Misc2d 591 Sup. Ct. Albany Cty. 1999)

12

15

W 97th- W 98th St. Block Ass 11 v Volunteers ofAmerica of Greater New York. 153 Misc2d 321 (Sup. Ct. NY, Cty. 1991) 190A.D.2d 303 (1st Dept. 1993) Young v Bd of Trustees oft/ic Village of Blasdell, 221 AD.2d 975 (4th Dept 1995) affd, 89 N,Y. 2d 846 (1996)
Statutes 62 R.CN,Y. Appx. A,

23

.,.,.,.........,..

..,..,.

13, 15

9.1

17

New York City Administrative Code NY. Civ. Prac. L. & R. 7803(1) NY. Civ. Prac, L. & R. 7803(3)

21-315(6)

20 12

,...,........,........,..,.,.,..,..,.,,,,

12 19

New York City Administrathe Code New York City Charter New York City Charter New York City Charter New York City Charter New York City Charter

21-312

,,...,,.,,.,,..,,,,

612

5 16

203 204

2 2 17 18 18

New York City Charter 197-c(a)(1 I) New York City Charter

197-c(a)(5)

New York City Charter 218..

Statutes

Pages 197-ca8) 1$

New York City Charter

SI. PREME COF RI OF I I IF S I.\ I F OF NEW YORK COI. N I Y OF NEW YORK

In the Matter of the Application of CI IELSFA IWSINESS & PROPER I Y OWNERS ASSOCIATION, EEC, d b a ChELSEA FLA1 IRON COALITION. Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules -against TIlE CITY OF NEW YORK; SETh DIAMOND, Commissioner for the Department of Homeless Services of the City of New York (HDhlS); GEORGE NASHAK, Deputy Commissioner for Adult Services for DIIS; ROBER F D. LIMANDRL Commissioner for the Department of Buildings of the City of New York (DOB); FA FM AMER, P.E.. First Deputy Commissioner for 1)08: JAMES P. COLGA FE, R.A.. Assistant Commissioner to Fechnical Affairs and Code Dcelopment for 1)08: VI IO MLS FACItOLO. Deputy Commissioner for the Department of I lousing, Preser ation & Development of the City of Ne York. 130 WERY RESIDENTS COMMITTEE. INC.; 127 WESF 25th LLC: and DANIEL SIIAVOLIAN, Respondents.

Index No, 113194 10 Justice Madden lAS Part 11

x
MUNICIPAL RESPONDENTS MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS MOTION FOR A PRELIMINARY INJLNCTION Respondents the City of New York, Seth Diamond, Commissioner of the I)eparrment of Ilomeless Serices of the City of New York (DhIS); George Nashak, 1)eputy (ommissi ncr I r OIlS \dult Sers ices: Robert 1) 1 imandri, Commissioner f th 1)epirtment

of Buildings of the Cit of New York (IX)13): I a/ma Amer. PF

First Deputy Commissioner

of DOB; James P. Colgate.

Assistant Commissioner of Fechnical Affairs and Code

Development for DOB; Vito Mustaciuolo, Deputy Commissioner of the Department of housing, Preservation & Development of the City of New York (IIPD) (collectively the City or Municipal Respondents) respectfully submit this memorandum of law in opposition to Petitioner Chelsea/Flatiron Coalitions (CFC) Motion for a Preliminary Injunction in the above-captioned Article 78 proceeding.
PRELIMINARY STATEMENT

CFC, an indeterminate number of business and property owners in the Chelsea section of Manhattan, seeks to prevent DEIS from proceeding with plans to finalize a contract with co-respondent BRC to operate a temporary emergency shelter for up to 200 single men (the Shelter) in an existing building located at 127 West 27 Street (the Site). In so doing,

Petitioner seeks to prohibit BRC from using that building to shelter homeless New Yorkers and provide them with other vital counseling services (which they need to obtain stable housing arrangements in the community) that will also be housed on the Site (the project). Petitioner commenced this Article 78 Petition by Order to Show Cause dated October 8, 2010. In its Petition, CFC raises a litany of claims against Municipal Respondents. Petitioner alleges, among other things, that DOB violated the New York City Zoning Resolution and Administrative Code in issuing a building renoation permit to BRC, that DIIS, which is providing ftinding for certain aspects of the BRC project, violated the City Charter by failing to conduct required reviews under the Citys Uniform Land Use Review (iLURP) procedures. the Fair Share Criteria promulgated pursuant to Sections 203 and 204 of the City Charter, and the State Environmental Quality Review Act and its City counterpart, the City Environmental Quality Review pr cedure ( SFQRVCFQR) Petitioner als) alleges that the proposed project

violates the :\dministritive Codes limits Veritied Petition at

on

the

maximum

size ot homeless shelters. See

2-4. CLC also seeks a preliminar injunction preventin construction at

the building site and use of the proposed facility pending compliance by the City with the New York Cit\ Zoning Resolution, the City Charter and Administrative Code and SEQRA/CEQR, compelling DIIS to pertbrm these reviews and compelling DIIS to register its contract with the New York City Comptroller pursuant to the New York City Charter. On or about October 25, 2010, Co-Respondent BRC moved, by Order to Show Cause, for a stay of this proceeding on the ground that Petitioners claims
were

unripe. BRC

contended that CFC failed to exhaust its administrative remedies before the Board of Standards and Appeals (BSA) and that, therefore, Petitioners claims concerning DOBs issuance of buildings permits for the Project are unripe until the 13S\ completes its own review of the permits
pursuant

to its

statutory

mandate. Similarly. I3RC also argued that CFCs other claims

concerning the Citys tilure to conduct required reviews under ULLRP. SLQRACEQR or the Charters Fair Share Criteria were also unripe because there has been no relevant City action mandating such reviews Proceed ings. at 1 8. By Decision and Order dated January 10. 2011 (Decision). this Court granted BRCs motion in part and denied it in
part.

See BRCs Reply Memorandum of Law its Support of its Stay

Specilically. the Court granted BRCs motion with

respect to all of CFCs claims concerning the 1)013 permit and stayed those claims pending a flnal BSA determination as to those permits. 1-lowever. the Court declined to stay CFCs other claims. holding that the record as insufficiently developed for the
Court to

decide BRCs stay

motion and directed the parties to address these issues in connection \ith CFCs motion tbr a

preliminary injunction.

In accordance with the Courts directise. the City addresses, on this

motion. all of CI Cs claims other than those related to the issuance of buildings permits

.\s explained further below, CFCs remaining claims against the City, concerning DIIS obligation to conduct Fair Share and SEQRA CFQR reie. and its claim that DIIS is required to register its contract with E3RC ith the New York City Comptroller. are moot or unripe. DIIS has actually commenced Fair Share and SEQRA reviews for the E3RC CEQR 1

project, but these reiews are not yet complete. Similarly, DIIS seeks to submit its contract sith BRC to the Comptroller for registration, but has not yet completed all of the procedural steps required before it may do so. CFCs ULLRP and Administratie Code claims are also meritless and do not proide any basis for a preliminary injunction. On the contrary. DEIS funding of the homeless shelter portion of the project is not subject to U LURP under the City Charter, Nor does the proposed BRC project entail any violation of the i\dministrative Codes limitations on the sue of homeless shelters. Equally important, it is highly unlikely that CFC vill succeed on the merits of its legal claims because neither CFC nor any of its members has standing to sue. Indeed, CFCs voluminous petition is devoid of any explanation of how CFC, or any of its members. will be harmed by Respondents conduct. Because Petitioner has completely failed to demonstrate that
it vill be injured in any way, much less that any such injury would be irreparable, it is not

entitled to the drastic remedy of a preliminary injunction. Indeed, homeless New Yorkers are the true target of this motion that seeks to prevent them from receiving temporary emergency shelter, which the City is under a legal and moral obligation to provide.

STATEMENT OF FAC[S 2 In the City of New York. homeless individuals and f,rnilies have a right to shelter, and DIIS is charged with the responsibility to shelter them and assist them in finding

permanent housing as expeditiously as possible.

See New York City Charter

610, 612.

Under the terms of a 1981 consent decree stemming from the state court litigation in Callahan v,
Care, (the Decree). the City is required to provide temporary shelter to all homeless men and women who seek it. See City Exhibit (Ex.) A. In accordance with this legal mandate, DIIS must and does) shelter single homeless men and women 23 hours a day, 7 days a week, 365 days a year. In accordance with the Charter and consistent with the Agencys mission
-

to

prevent homelessness wherever possible and provide short-term emergency shelter and re housing support whenever needed
--

DHS collaborates with hundreds of shelter providers, such

as I3RC. and other not-for-profit organizations, to meet the needs of homeless New Yorkers. Nashak All, 9-10. In todays difficult economY, DIIS faces unprecedented shelter demand. In

December, 2010, for example. the average daily census of single adults in the DIIS shelter system was 8,511 2009.

an increase of 22% as compared to the average daily census in December,

Since June 2010. OHS has seen an increase in the number of single homeless adults Over I 100 new clients entered the
,

seeking shelter that is unprecedented in recent history.

s stern each month in July. August. and September. Prior to this period. DFIS had not seen 1. 100 or more new entrants in any month during the previous five years
.

Moreover. eiven the trends

Municipal Respondents also respectfully refer the Cou to the accompa.nyng affidavit of George Nashak Nashak Aff.), sworn to on January 24, 2011. fbr a complete and accurate s.tatement of maeeri.ai facts, nless otherwise noted, all exhibits referenced herein are attached to the Nashak A IT.

that DIIS has obsered oer the past year. 1)115 projects an ongoing increase in demand for shelter among single adults in the spring and summer of 2011. Nashak Aff, l1-14
A. The Proposed 200-Bed 1)115 Shelter at the Site

As part of its plan to meet proiected needs, DHS is currently procuring a contract with BRC to operate a 200-bed shelter at the Site, BRC has been a leader in proiding shelter and related services to homeless men and women since it opened its doors in the Bowery almost 40 years ago and with other highly respected not-for-profit providers, has contributed to national recognition of the Citys shelter system. Pursuant to existing contracts with DIIS. BRC currently operates 4 shelters that provide short-term emergency housing and related services to 399 people each day. These shelters often partner with other BRC programs, for counseling people with a history of drug addiction or mental illness. DIIS has a significant need for shelters that link mentally-ill and drug and alcohol dependent homeless people to supportixe housing or other housing options outside of shelter that will allow them to remain stably housed in the community. Nashak Aff.,

16-17.

In addition to the 1)1 IS-funded 200-bed homeless shelter, BRC also intends to operate other programs at the project site, including a New York State Office of Mental Health (OMII)- and Medicaid-funded case management program for persons with mental illness; an OMH-licensed Continuing Day Freatment Program for ongoing outpatient mental health ser ices funded by Medicaid and the New York City Department of Health and Mental Hygiene (DOHMH); a Medicaid and DOIIMH-funded Substance Abuse Services Center that is licensed by the New York State Office of Alcoholism and Substance Abuse Services (OASAS): and the Chemical Dependency Crisis Center, a 32-bed detoxification program for indhiduals with alcohol or substance abuse addiction that will be licensed by OAS \S and funded through a combination t I)O1l\I1I ard federal funds.

I)IIS supports the co-location of these programs in the same building as the Shelter because shelter clients will hae consenient access to serices they proide. lIoweer, I)F{S will not be invoked in the funding or operation of these serices and has no plans to contract with BRC to operate these non-shelter programs at the Site. Additionally, while BRC has stated its intention to moe 77 of its existing reception beds (currently located at its 324 Lafayette Street fbcility) to the Site, no final agreement between 1)115 and BRC has been reached with respect to these beds. Mnrener, these beds are not 1)115 shelter beds and are not part of DIIS 200-bed shelter planned for the Site. See Nashak Aff, 1 21 -23. B. Contract Reviews BRC submitted a proposal to operate a 200-bed shelter at the Site and, upon [MIS reiew of the proposal, the Agency entered into contract negotiations with BRC to operate the Shelter. BRC also provided notice to Manhattan Community Board 4 of its intention to apply to DIIS to operate this program. Upon completion of contract negotiations, pursuant to the Citys Procurement Policy Board (PPB) Rules, DIIS submitted the proposed contract to the Office of Management and Budget (0MB), the Mayors Office of Contract Ser ices (MOCS), and the Law Department for review. In accordance with the PPB Rules, the contract was also the subject of a public hearing on held on Noember 4, 2010 at which Petitioners counsel and others testified. Nashak Aff,, E 24-29 0MB and the Law Department have already approved the contract. Review of the contract by MOCS is ongoing and is expected to be completed within the next se era! weeks. Nasak All. Afler the contract is approed by \4OCS, it must then be submitted to the State

Financial Control Board for approval. While DIIS also must submit the contract to the ew York City Comptroller for registration pursuant to the PPB Rules (and fully intends to do
SO),

it

sill do so only after completi n of tnese procurement steps and upon completion of thc

SEQR;\ CEQR and Fair Share Reviews required for the BRC signed by the City until it is submitted to the Comptroller and
Comptroller registers it. \as hak AlE, 24-28

contract.

Ihe contract will not he

ill not take lecal effect until the

C.

SEQRA/CEQR, Fair Share Reviews I)IIS is also in the process of performing review of the E3RC project pursuant to

SEQRA;CEQR and the City Charters Fair Share Review Criteria. DFIS staff has classified the proposed shelter at the Site as an Unlisted action for purposes of SEQRA/CEQR. DHS has arranged for an outside consultant to prepare an Environmental Assessment Statement analyzing the BRC projects potential for significant adverse environmental impacts in the relevant impact categories specified in the SEQRA/CEQR implementing regulations and the New York City CEQR iCchnical Manual, DHS will make this Environmental Assessment Statement publicly available before it submits any contract for this facility to the Comptroller for registration. If DIIS determines that the fticility does have the potential to cause significant adverse environmental impacts, it will perform additional environmental review, including an assessment of measures to mitigate impacts, before it submits the contract to the Comptroller for registration. \ 1 SEQR CEQR review of the BRC project is underway and the next four to six weeks. Nashak Aff..

is

expected to be completed within

25-28

DIIS has also commenced the preparation of an analysis under the Charters Fair Share Criteria, which will address issues such as the ability of the proposed site to deliver services etlicientlv and whether similar facilities are already concentrated in the Community District where the Shelter is to he located. DI-IS will disseminate its written Fair Share analysis to local elected officials and governmental bodies, as specified in the Eair Share Criteria, before
it submits any contract for this facility to the Comptroller for registration.

Further, if other

requjred procedural steps are satisfactorily completed, DHS will, consistent with the Fair Share

Criteria. offer to meet with the local community board to discuss any concerns about the siting of the proposed facility. lair Share reiew of the E3RC project is expected to he completed at the same time as DIIS SEQR CEQR resiew. Nashak All.,
ARGUMENT PETITIONER hAS FAILED TO SATISFY REQUIREMENTS FOR THE A INJUNCTION PRELIMINARY CONCERNING ITS REMAINING CLAIMS AGAINST MUNICIPAL RESPONDENTS

30-31.

Interim injunetie relief is a drastic and extraordinary remedy to be granted only here the moving party has demonstrated a clear right to such relief See (hester Civic Improvement Ass n Inc. vV Y City Trant Auth., 122 AD2d 715, 717 (1st Dept 1986). It is well established that the drastic remedy of a preliminary injunction is not to be granted unless a clear right to the relief demanded is established under the undisputed facts upon the moing papers, and that the burden of shoing such an undisputed right is on the person seeking such
relief Brandt v. BartleU, 52 A.D.2d 272, 275 (3d Dept 1976); see also East 13th St.

Homesteaders Coalition v. LoMer East Side Coalition lIons, Dcv, 230 AD2d 622, 623 (1st
Dept 1996).

Injunctise relief may be granted only where the moving party has established all of the following: (1) it is ultimately likely to succeed on the merits; (2) that it will suffer

irreparable injury if the preliminary injunction is not granted; and (3) on balance, the equities favor granting the preliminary injunction See State o/
v

v Fine, 72 NY.2d 967, 968-69

(1988); see also Aetna Ins, Co v Capasso, 75 NY2d 860, 862 (1990).

Petitioner bears the

burden of prosing these elements by at fida it and other competent prooL with eidentiary
detaiL Doe v Jxlrod, 73 NY.2d 44, 45 (1988).

CR has failed to meet its burden of

satisfying any of these elements, much less all three of them and, therefore, Petitioners request

must be denied. I. PETITIONER HAS FAILED TO DEMONSTRATE IRREPARABLE INJURY AS A RESULT OF THE LACK OF ANY REQUIRED LAND USE AND ENVIRONMENTAL REVIEWS Cit alleges that BRCs ongoing renovation work
--

authorized pursuant to DOB

permits--constitutes irreparable injury that warrants a preliminary injunction. However, as these

allegations concern DOB determinations, they are stayed pursuant to the Courts January 10,
2011, Decision and need not be addressed here. Nonetheless, it is worth noting that, in deciding BRCs stay motion, the Court has already considered CFCs claim that it would be irreparably

harmed by BRCs ongoing renovation work and rejected it. See Decision at 7-8. The City will
not belabor the Court with a repeat of those arguments here. Petitioner also seeks a preliminary injunction preventing the use of the

proposed facility for the homeless shelter and BRCs other programs. However. CFC provides
utterly no explanation of how it would be harmed by such use. Moreover, New York courts have held that the actual use of land does not constitute irreparable harm for purposes of a preliminary injunction, even where such a use is alleged to be unlawful. Dodgeriown Homeowners Ass n, v.

city of New

York. 235 A.D.2d 538, 539 (2d Dept 1997) (vacating preliminary injunction

preventing use of building as a homeless shelter pending required ULIJRP review); Greentree at Murray Hill condo. v. Good Shepherd Episcopal church, 146 Misc.2d 500 (Sup. Ct., N.Y. Cty 1989) (denying preliminary injunction preventing use of a church for a homeless shelter pending compliance with applicable environmental and zoning laws, where petitioners were not irreparably injured from such use); Golden v. Steam HeaL Inc., 216 A.D.2d 440 (2d Dept 1995) (reversing grant of a preliminary injunction where plaintiffs failed to demonstratc that use of property as adult entertainment establishmeni would cause them irreparable injury). As these 10

cases make clear, there is no basis thr the Court to preliminarily enjoin use or occupancy of the
1icility for intended purpose of providing shelter for homeless Ne Yorkers and other services. CFC also claims that DHS is legally mandated to perfbrm LLURP. Fair Share these analysis, and SEQRArCEQR review fbr the project and that DIlS failure to perfbrm

reviews itself constitutes irreparable harm warranting emergency relief from this Court. See
Memorandum of Law in Support of Preliminary lnunction and Verified Petition (Pet. Mern.) at I 1. CFC is wrong. CFC is not and will be not harmed by any such alleged failure. As for the SEQRACEQR and Fair Share reviews that CFC seeks, DHS is currently in the process of performing these reviews and will not finalize any contract with BRC for the project until these reviews are complete. Thus, there is no failure to follow these reviews or resulting harm as CFC claims. With respect to ULURP (and as further explained below in Point IL), CFCs claim that DIIS contract with BRC is subject to LL[RP is incorrect. 1 he I3RC contract is not a lease and does not fall within any other category of City action subject to ULURP review; accordingly, CFC is not harmed by the absence of ULURP review because none is required. Even assuming ULURP review is required, CFC is not irreparably injured because it has an adequate remedy at law in the form of its underlying Article 78 proceeding. Kane v Walsh, 295 N.Y. 198 (1946) (preliminary injunction denied where act sought to be enjoined could he dealt with by a mandamus proceeding under Article 78 of the CPLR): to the Matter of Camp Scarico v. Columbia County Dep
1

of Health, 277 A.D.2d 689 (3d Dept 2000)

(preliminar injunction staying administrative hearing denied where plaintiff had adequate remedy at law in the form of an Article 78 proceeding in the nature of certiorari); Nassau RoofIng Sheet Metal Co. v Facilities Dcv. Corp 70 A.D.2d 1021 (3d Dept 1979)

(preliminary injunction preventing agency from disqualifying contractor denied where Article 78
PR

Led1r

oal

pros ide mas ant

th

ll mLa r of rJit

it

as

.\.D3d 250 (1St Dept 2006) preliminarx injunction directing Planning Commission to vote on plaintitis development proec1 was improper where injunction effectively granted the ultimate relief sought h plaintiffs). Similarly, there is no question that this Court has ample authority to provide complete relief on Petitioners underlying Article 78 claims. As CFC itself recites in its petition, this Court has the power to vacate any DOB permits under CPL R 7803(3) if it finds that they are affected by an error of law, arbitrary and capricious or an abuse of discretion, and to compel any environmental and land use reviews that it decides are required for the BRC project under CPLR 7803(1). See Spitzer v. Farrell, 294 A.D.2d 257 (1st Dept 2002) (nullifying

negative declaration and directing the consideration of air quality impacts); County of Orange v.

Village of Kiryas Joel, 44 A.D.3d 765 (2d Dept 2007) (remitting case to Village Board for
preparation of an EIS); Council of the City of NY v. (iiuliani. 93 N.Y.2d 60 (1999) (upholding annulment of sub-lease from New York City Health and Hospitals Corporation to private party tbr failure to perform ULLRP review); Silver v. Dinkins. 158 \lisc.2d 550 (Sup. CL N.Y. Ctv. 1993) (nullifying Citys selection of sites for ehicle fueling facilities for failure to comply with 3 the Fair Share Criteria). Thus, contrary to Petitioners claim, the Citys alleged failure to

conduct any of these reviews does not constitute harm per se and there is no basis for the Court to issue any preliminary injunction on these grounds.

Fhe two cases relied upon b CFC. Stop BHOD v Cdv o/:Vew York, 2009 WL 692080 (Sup Ct. Kings Cty Mar. Sr u 101 \Ibc d 59 iSp Ct Qan Ci\ l991 do not pros de am. ba to the V 2009) tnd C ni &a 3 Court to issue a preliminary injunction based on the Citys alleged failure to conduct environmental review of the DOB permits. In Stop BHOD, the Court issued a preliminary injunction based upon its determination that there ould be irreparable harm if the City ssere allowed to proceed with a significant expansion of an extstingjail. Here there is no coimtruction by the City and no new or expanded structures Moreover, in Cmty. [3d. 3 the Court based its issuance of a preliminary injunction on the respondents admitted failure to follow statutory requirements governing prior notice tor a hearing. The relevant law in that case specificall\ required the issuance of an injunction and in the event of such a Idilure and the Court based its injuncticm on the statute, In this case, there are no specific requirements for an injunction and CFC does not allege that it was deprived of Jegally mandated notice of a hearing..

II.

PETITIONER IS UNLIKELY TO SUCCEED ON THE MERITS OF ITS REMAINING UNDERLYING LEGAL CLAIMS In addition to its now-stayed claims against DOB, CFC raises a litany of alleged

As other offenses that DHS has committed by proceeding with its proposed contract with BRC.

further explained below, CFC is not likely to succeed on the merits of any of these claims as they
is are either unripe for review or just plain wwng. Equally important, CFCs petition. at its core, fatally flawed because Petitioner fails to even allege that CFC or any of its members has standing

to challenge Respondents actions.

A. CFC Has No Standing to Sue

New York courts have long held that for standing purposes, a petitioner in a land use or zoning matter atmust show that it would suffer direct harm, injury that is in some way different from that of the public at large and, in cases involving environmental harm, must also allege direct injury to the use and enjoyment of the affected natural resources. See Soc> of Plastics India. v. County of Suffolk, 77 N.Y.2d 761, 772-74, (1991); Matter of Save the Pine Busk Inc. v Common Council of ihe City ofAlbany, 13 N.Y.3d 297, 305 (2009) (generalized interest in the environment could not confer standing to challenge environmental injury). Additionally, courts have held that where private parties seek to enjoin a use that violates zoning laws, they must allege and prove special damages, Le.. the complained zoning violation substantially injures their property rights. Cf Santulli v. Drybka, 1% A.D.2d 862, 863 (2d Dept 1993) (in order to maintain private action to enjoin zoning violation, plaintiffs must establish standing by demonstrating through specific detailed evidence that they suffered a diminution of value of their property). As the States highest court has held, standing is not to be assumed; it is an indispensable element of the verified pleadings. See Matter of Sure the Pine Bush. .cupra. 13

13

N.Y.3d at 306 (2009) (standing requirements are not mere pleading requirements hut rather an
indispensable part of the plaintiffs case and therefore each element must be supported in the

same way as any other matter on \hich the plaintiff bears the burden of proof). As the Court of Appeals further held,[pjlaintiffs must not only allege, but if the issue is disputed must prove, that their injury is real and different from the injury most members of the public face. Id.
CFCs petition. which simply states in conclusor fashion that Petitioner has

standing because its members consist of area businesses and property owners (see Pet. at 10),
falls far short of the specific pleading requirements required for legal standing. indeed. CFCs

voluminous 124-page pleading is devoid of any description of how it or any of its individual

members may be injured by Respondents conduct.

Because Petitioner has utterly failed to

allege that it will suffer injury that is different in kind from injury to the public at large, it lacks

standing to sue. Therefore. CFC is not likely to succeed on the merits of any of its legal claims
and is accordingly not entitled to the extraordinary remedy of a preliminary injunction. B. SEQRAICEQR and Fair Share Claims and Its Claim CFCs Concerning Comptroller Registration of the BRC Contract are Unripe

CFC argues that even if its zoning claim is unripe on exhaustion grounds, its

remaining claims against DHS under IJLURP, SEQRA/CEQR. the Charters Fair Share Criteria and the Administrative Code should be heard by this Court because there is no administrative
appeal process available under these las. Pet .Mem. at l3.Error! Bookmark not defined. fn

5. Fiowever, CFCs SEQRA/CEQR and Fair Share claims are plainly unripe as there has been
no final action on the part of DHS concerning these reviews or its contract with I3RC and.

therefore. no final agency action that would trigger judicial review. An atencv action is final, or ripe for judicial review, when the decision-maker has come to a detnitive position that has caused an actual. concrete injury to the petitioner.

(hurch of Si. Paul & Si. Andrew

i.

Burii /ck. 67 \.Y.2d 510. 5 19 (1986>

challene to

building owner had Landmarks Preservation Commissions landmark designation not ripe, where v. Bcl, of iruslees of not made any application to the Commission for building alterations); Young 846 G996) the VIII. of BIusdeli, 221 A.I).2d 975. 977 4th Dept 1995). at/tI, 89 N.Y.2d not ripe, (challenge to agencys SEQRA determination concerning a solid waste transfer station 591, where plans had not yet been approved); Viii. of Skaneateies v, Bd. of Educ,, 180 Misc.2d a bus 595 (Sup. Ct. Albany Cty. 1999) (challenge to Board of Educations proposal to construct n). garage not ripe where permits had not been issued by the Department of Transportatio Moreover, the alleged harm must not be contingent on ftuture events that may or may not come to pass. .V I State inspection. SecurTh & Law Enfircement Employees v. Cuomo. 64 N.Y.2d 233. not 240 (1984) (challenge to State Department of Correctional Services plan to close a prison ripe where prisoners had not yet been relocated to other facilities). As the Court of Appeals has reasoned, the requirement of linalitv or ripeness serves to conserve judicial machinery for problems which are real and present or imminent, not to squander it on abstract or hypothetical or remote problems, (hurch of St. Paul & Si, Andrew, 67 N.Y.2d at 518 (internal quotations and citations omitted). Moreover, limiting courts to the review of issues that are ripe for review promotes judicial economy. Village of Skaneateles. 1 80 Misc.2d at 595. These requirements also protect the administrative process from premature and unnecessary judicial interference. See Abbott Labs. v. Gardner. 387 U.S. 136, 148-39 1967). Petitioners are aggrieved only hen the agency commits to a delinite course of future

decisions regarding the challenged agency action, Young v Rd. 0,1 Trustees, 89 N.Y.2d at 849, not determinations that are contingent and conditional. .V I Enfrcemcni Employees, supru. 64 N.Y.2d at 240.
State

In.peciion, Security & Law

I Icre, there has been no final action by Dl IS.

Ihe contract providing tbr City

funding of the shelter portion of the BRC project is still in the process of being reviewed, and it is not yet final. Nashak Aft.. J 25-26.
DHS is also currently in the process of conducting

SEQRA/CEQR and Fair Share reviews of the BRC project. but these reviews are also not yet

complete and need not be completed until review of the funding contract is complete and the contract is submitted to the Comptrollers office for registration. which is not expected to occur
for several weeks at the earliest Moreover, while DFIS will submit a final contract to the

Comptroller for registration, it cannot do so until these other steps are taken. Nashak Aff.,

J 25,

30, 31. Without a final agency action, the Court cannot evaluate whether a controversy exists or whether the Petitioner will suffer a concrete injury as result of DHSs conduct. Thus, CFCs SEQRA/CEQR and Fair Share claims and its claims concerning registration of the contract are unripe and should not be heard b the Court. C. Petitioner is Not Likely to Succeed on the Merits of Its ULURP Claim

Petitioners contention that the City must perform ULURP for its funding of the Shelter that will be located on the site is baseless as a matter of law. The City Charter, at section 197-c, sets forth twelve specific categories of land use actions that are subject to ULURP. As UL[RP review is only required for projects in these twelve categories, and none of the
categories apply to the proposed shelter at issue here. ULURP review is not required. See. e.g.. .Starbiirst Realti Corp. v. City ot .Vew York. 125 A.D.2d 148, 158(1st Dept 1987) (rejecting

Additionally, it should be noted that CFC is not cha!1nging the adequacy of any reviews but merely seeking to compel them to be conducted by the City. Pet at 124. Given that the City has, in fact, already conducting these (7vne, 50 NY 2d 70, 714 (1980) reviews. (ECs claims in this regard are moot. See t!uncr of 1-learsi (orp action for nJuncnon compelling Jsc!osure of transcripts rendered moot here transcript had airead\ been provded). Sm larly moot s CEC, demand that the F3RC contract be made publcly ava iable as t was made ubilci aaLble prier tO hearines on :he pror.osed contract Nashak \tf., r 75

ULURP claim where type ol action at issue was not specifically enumerated in the Charter as
subject to ULURP). Courts have repeatedly held that City land use actions, including the

establishment of homeless shelters, are not subject to ULURP if they do not fall within one of the Charter-specified categories. See Ferrer v. Dinkins, 218 A.D.2d 89, 90-95 (1st Dept 1996), lv. denied, 88 N.Y.2d 801 (placement of homeless families in a shelter was not an action subject to ULURP); see also Lucia Plaza v. City of N. K, 305 A.D.2d 604, 605-6 (2d Dept 2003) (no ULURP required for a long-term contract between OHS and a nonprofit service provider, pursuant to which the provider acquired, renovated, and operated a homeless shelter); Cmty Planning BcL No. 4
it

Homes for the Homeless, 600 N.Y.S.2d 619 (Sup. Ct. N.Y. Cty. 1993)

(homeless shelter not subject to ULIJRP because it did not constitute any of the types of land use

projects subject to ULURP, and the statute is inapplicable to all other actions); see also 62
R.C.N.Y. Appx. A,

9.1, Attachment B (Temporary housing and Transitional housing

included among examples of types of City thcilities not subject to the Uniform Land Use Review Procedure); Nbhd. in the Nineties i Cl(yofNi, 901 N.Y.S.2d 900 (Sup. CL N.Y. Cty. 2009) (rejecting claim that zoning variance granted to single-room-occupancy residential facility was subject to ULURP). CFC argues that the homeless shelter must be reviewed under ULURP because DHS contracting with BRC to operate it will constitute the Citys acquiring real property by lease. See Charter,

I 97-c(a)( 11). This is patently wrong. The proposed contract between

BRC and OHS is demonstrably not a lease of real property. See Nashak Aft, 33, Ex. E (copy of contract). BRC, not OHS or any other City entity, entered into a lease of the Site with the buildings owner several months ago. Id. DHS is not a party to this lease and will not take any

property interest in the Site or the Shelter, even if it is successful in entering into a long-term
17

contract with BRC to refer clients to the Shelter and provide funding for its operation. 11 Nor
does Petitioner off any factual support

nor is there anyfor its contention that the arrangement

between DHS and BRC will be a pass-through and that the BRC lease of the property and the
wholly separate DLIS-L3RC contract should not be taken at face value. Accordingly, this project does not fit within the lease category of actions subject to LJLURP. See, e.g., Lucia Plaza, supra, 305 A.D.2d at 605-6, see also Davis v. Dinkins, 206 A.D.2d 365, 368 (2d Dept 1994) (holding that contract for operation of homeless shelter did not constitute lease of real property subject to ULIJRP even where City had contracted directly with owner of premises). Additionally, DHS role in funding the Shelter is not a site selection fur a City

capital project pursuant to section 218 [of the Charterl and is therefore subject to IJLURP. See
Charter,

l97-c(aXS).

The Shelter is not a City capital project, as the renovation work

associated with configuring it for sheltering homeless people and BRCs other programs is being

performed by BRC, not DHS or any other City entity. See Nashak Aft., 34. More importantly,
the City is not expending any capital funds in conjunction sith the Shelter. It! Petitioners allegation that provisions in the proposed contract whereby DHS will compensate BRC for some of the costs of furniture and equipment render the Shelter a capital project (Pet. at 47) is misguided. The funds in question will come from DHS expense budget, not its capital budget let; see also .Vbhcl in the Nineties. supra. at 1l (observing, in rejecting ULURP claim, that the only capital projects subject to this provision would be projects in which the City takes an ownership position); Lucia Plaza, supra, 305 A.D.2d at 605 (rejecting ULURP claim shere Citys contract with nonprofit called for City payment of certain startup costs). Finally. CFC contends that DHS plans to assist in finding the Shelter constitute a housing and urban renewal plan [orJ. .project pursuant to City, State, or Federal law and
.

therefore are subject to ULtJRP. See Charter. l97-c(a)(8). This claim has no basis in reality. 18

See IV. Contracting to fund a homeless shelter is not making or implementing a housing plan. 9?&W.

9t St.

Block Ass n. supra. 190 A.D.2d at 309 (the referral of the homeless to, and the

provision of necessary services at, one SRO hardly constitutes the type of plan envisioned by nor the ULURP scheme since the disputed contracts do not involve the use of real property contemplate any general housing strategy). Petitioners attempt to characterize the Mayors Five-Year Plan for combating homelessness as a City law triggering this provision is similarly unavailing; the Mayors Five-Year Plan is a statement of policy goals and strategies, not a legally binding document or a basis fur housing and urban renewal plans. See Nashak Aff.. 35. Courts repeatedly have rejected attempts to shoehorn projects that do not constitute land use actions subject to ULURP into the enumerated ULURP categories and CFCs attempted shoe-horning should also be rejected here. See, e.g., Lucia Plaza, supra Nbhci in the Nineties, supra; Cmty Planning Bit Na 4, supra. DHS funding of the Shelter is not subject to ULURP review, and. therefore, Petitioner is not likely to succeed on the merits of its ULURP claim. D. Petitioner Is Not Likely to Succeed on the Merits of Its Administrative Claim under New York City AdminIstrative Code 21-312

Next on CFCs laundry list of claims against the Municipal Respondents is its claim that the BRC facility violates New York City Administrative Code Section 21-312, in that it will constitute a shelter housing more than 200 homeless adults. This claim is meritless. Pursuant to the contract between DIN and BRC, the only shelter that will be housed in BRCs new facility will be the new 200-bed Shelter. While other programs will also occupy the

building, these facilities are not shelters but detoxification, chemical dependency and mental health counseling and case management facilities as well as administrative offices and a cafeteria. None of these facilities, except the detoxification facility, will even have beds, and all

19

will be available to all of BRCs clients whether or not they are sheltered in the facility. See Nashak AIr., 21. BRC has stated its intention to move existing reception beds to the Site, but these plans are not final and are not part of any contract with DHS. Nashak AlT, 123. In any event, CFCs claim ignores the fact that Administrative Code Section 21315(6) permits the City to operate two shelters housing up to four hundred persons each as replacements for Camp LaGuardia, DHS 1.000 bed mens shelter in upstate New York that closed in 2007. Nashak AlT., 35. Thus, even if DHS were to succeed in finalizing a contract

with BRC to operate a shelter at the Site, and even if BRC were to execute its stated plan of moving part of its other programs to the Site, and even if the additional beds associated with
those programs were treated as shelter for this purpose, the new BRC facility would not be in violation of the Administrative Code because it would not exceed 400 beds and would therefore be permissible as replacement capacity for Camp LaGuardia under Section 21-315(6). For these reasons, CFC is not likely to succeed on the merits of its Administrative Code claim and there is no basis for the Court to issue a preliminary injunction on that ground. III. THE BALANCE OF EQUITIES TIPS DECIDEDLY IN FAVOR OF RESPONDENTS Where, as here, the balance of the equities favors Municipal Respondents, a

preliminary injunction should not be granted. It is beyond dispute that the City of New York,
through DM5, has a legal and moral obligation to provide housing and services to its homeless population. Moreover, DHS currently has a critical need for shelter capacity to which it can refer homeless men seeking shelter, which the BRC facility is intended to meet. In addition, the process of securing a contract with a social services provider typically takes six to nine months to complete. Nashak All.. 39-40

20

If the Court were to enjoin Dl IS efforts to finalize its contract \\ith I3RC far operation of a shelter at the Site, or use of the site for temporary emergency shelter, DI-IS ability to fulfill its legal mandate would he seriously impeded. The lengthy lead time required to secure additional shelter units to meet each homeless New Yorkers immediate demand far shelter

means that a sudden interruption of progress toward the use of the Site as a shelter would significantly and negatively impact DIIS operations. Id. at

Even if the Court were to determine that CFCs legal claims have merit, which they do not, it should not grant injunctive relief. Blocking BRC from use of the Site would be unfhir and unjust, given the demonstrated need for shelter among homeless New Yorkers. Moreover, as described above, Petitioner has failed to demonstrate that it would be harmed by
any of Respondents conduct. See Point IA.,supra. Thus, the balance of equities tips decidedly in Favor of Respondents and injunctive relief should he denied. See Matter of Lucia Plaza v. Citi
of.\ Y..s upra (preliminary injunction preventing City from renovation of a vacant building for

use as a homeless shelter denied given Citys legal mandate to provide homeless shelter); W
7 9_ if. 9N St. Block Ass
ii

v, lolzgnteers of America of Greater Vew York, 153 Misc.2d 32 1

(Sup. Ct. N.Y. Cty. 1991)(preliminary injunction preventing occupancy of low income residence by persons in need of help is not equitable).

CO NC I. U S I ON

t that For the foregoing reasons, the Municipal Respondents respectfully reques
the Court deny Petitioners motion for a preliminary injunction. Dated: \Jev York. New York January 25. 2011 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for the Municipal Respondents 100 Church Street New York, Iew \ ork 1000 (212) 78j
,

By: STOPHER GENE KING Assistant Corporation Counsel Environmental Law Division

OK ounsel: Amanda Goad haley Stein

I I!NNEE

SUPREME COURT OF ti-IF SfAFE OF NEW YORK COUNTY OF NEW YORK PART Ii In the Matter of the Application of CHELSEA BUSINESS & PROPERTY OWNERS .\SSOCIAflON, LLC, dfb/a CHELSEA FLATIRON COALITION, Petitioner For an Order Pursuant to Article 78 of the Civil Practice Law and Rules -againstTHE CITY OF NEW YORK; SET}I DIA MOND. Commissioner for the Department of Hom eless Services for the City of New York (DHS); GEOR GE NASHAK, Deputy Commissioner for Adult Services for DHS: ROBERT 0. LIMANDRI, Commissioner for the Dep artment of Buildings of the City of New York (0 08); FATMA AMER, PE., First Deputy Commissioner for DOB; JAMES P. COLGATE, R.A., Assistant Commission er to Technical Affairs and Code Development for DOB; VIT O MUSTACIUOLO, Deputy Commissioner for the Department of Housing, Preservation & Development the of City of New York; BOWERY RESIDENTS COMMITT EE, INC.; 127 WEST 25 LLC; and DANIEL SHAV OJiAN, Respondents. x JOAN A. MADDEN, J.: Respondent Bowery Residents Commit tee, Inc. (Bowery Residents) seeks a stay of the motion of petitioner Chelsea Busiress & Preper-ty Owners Association, LLC, d/b /a Chelsea Flatiron Coalition (Chelsea Coalitiorf) for a preliminary ard permanent injuncti on, and a stay of the underlying Article 18 proceedhw in which Cheisea Caahtion challenges, inte r alia, the

INDEX NO. 113194/10

Department of Buildings (DOR) issua nce of ertain building crmits. Bovery Residents seeks a stay on the grounds that Chelsea Coalition has failed to exhaust its administrativ e remedies before the Board of Standards and Appeals (BSA) and that BSAs deter mination may render this proceeding moot. Chelsea Coal ition opposes a stay arguing that exhaustion is riot required where, as here, the issues before BSA relate solely to questions of law, or where the administrative remedy cannot offer complete relief against irreparable harm created by the challenged acts. Chelsea Coalition further argu es that the court should reservejudgment pending a hearing on the preliminary injunction, and if a stay is granted, it should only apply to the claims based on the D013 permits and zoning issues, and riot to the other relief sought.

In the Petition, Chelsea Coalition seeks an orde r: (1) revoking Bowery Residents construction permits on the grounds that the DOB failed to enforce certain provisions of the Zoning Resolution of the City of New York (ZR ) and of the Administrative Code of the CIty of New York, and, that DOBs determinations are arbit rary and capricious; (2) compelling respondent Department of Homeless Services (DH S) to submit its contract with Rowery Residents regarding the proposed facility to the Comptroller for registration; (3) compelling DHS to conduct a Fair Share review in accordance with Charter 203; (4) compelling the City to submit the proposed facility to Uniform Land Use Review Procedures (ULURP) in accordance with Charter 197-c; (5) compelling DHS to conduct environmental reviews under the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review

Bowery Residents also sought a stay of a prev ious brieng schedule in connection with for a preliminary injunction which schedule this court vacated in an interim order dated November 29. 2010.
the request

CFQR); t6) preliminril and erm anertly enjoining DOB from issuing any construction permits br work on the proposed faci lity until compliance with ad applica ble laws has been demonstrated: and (7) preliminarily and permanently enjoining DOB from issuing any certificate of occupancy for the proposed faci lity or permitting occupancy of the pro posed facility until compliance with all applicable laws has been demonstrated. This proceeding involves the renovation of a building located at 127 West 25 Stre et in Chelsea. The renovations are pursua nt to a lease between the landlord and Bow ery Residents, which provides accommodations and oth er services to the homeless. According to Bower) Residents, the renovations are to implem ent programs to be located within the premis es, including a Reception Center and a 200 -bed shelter. In his affidavit, Lawrence Ros enblatt, the Executive Director of l3owery Residents, states that the primary goal of the renovation is to provide temporary, transitional accommo dations to New York Citys neediest homeles s individuals and to help them find perman ent housing. However, as explained at ora l argument by counsel for Bowery Residents, the plan env isions an integrated campus, in which par t of the premises will be used for providing anc illary services to its temporary residents, man y of whom have substance abuse and mental health issues, and part of the premises will be use d for professional offices for Bowery Residen ts staff These services include intake asse ssments, physical and mental evaluations, and cert ain treatment and counseling from physici ans, nurses and other providers. Lawrence Rosenb latt describes these services as ancillary health related components [that] are secondary to and merely supportive of... [thej primary purpose. [and] the overwhelming majority of stai r at the Chelsea facility will be employ ed in non-medical
..

functions.

Chelcea Coalition conteads that the DOB in approving permits tbr the proposed facility improperly designated the premises a transient hotel a hen in reality it is a community aci1ity. In support of this contention, Chelsea Coalition argues that the proposed facility Mu be a 328-bed, 100,000 square tbot in-patient and out-patient drug and alcohol rehabilitation facility and homeless shelter for the mentally ill. Chelsea asserts that the proposed facility is a community facility under the ZR such as a non-profit institution with steeping accommodations,. a health-related facility, a domiciliary care facility and/or diagnostic or treatment health care facility. Chelsea Coalition contends that the DOB approved the permits 2 by improperly designating the proposed facility as a Use Group 5 transient hotel and Use Group 6 professional offices. According to Chelsea Coalition, while a hotel and professional offices are permitted uses in the area under the ZR, a community facility such as the health care and social services facility at issue here, is not. In SuppOrt of its contention that the proposed facility is not a transient hotel within the meaning of the ZR and is in fact a community facility, Chelsea Coalition points out that the facility will not be open to the general public, that medical and counseling services will be provided, and that the plans include nurses stations and examining rooms. Specifically, Chelsea Coalition asserts that half the building wilt be devoted to providing medical and various social services, and that the other half xviIi be used for a homeless shelter. Chelsea Coalition also points to four sets of plans Bowery Residents has submitted in connection with the renovations, three to DOll and one see to the New York State Office of Alcoholism and Substance Abuse Services

In support, the Petition points to Zoning Regulations j 127 Misc.2d 518. 525-26 (App Term. i Dept 198a).

22-13 and 22-l-, and Fischer v

(OASAS). Chelsea Coalition concnds that Bowerv Reside nts submitted different sets of plans to different aencies, ard as in example, points out that the pian.s submitted to OASAS detail nurses statiors and examining rooms, whi!e those submitted to DOB do not. Chelsea Coalition argues that the determination as to whether the DOB properly issued permits and whether the proposed facility is a community facility are questions of law which do rot require exhaustion of administrative remedies. Chelsea ftirther argues that a community facility implicates community oriented processes, such as environment review al s pursuant to CEQR and SEQRA, and reviews under fair share laws and ULURP. Chelse a Coalition argues that continued construction without such reviews results in irreparable harm as it deprives the community of input into governmental decision making provided for under the regulat ory schemes of these laws. In support of its motion, Bowery Residents contends that the DOB properly issued the permits and that different plans result from evolution of the plans for the project, as it works with individual agencies to address their specific concerns and areas of responsibiliti es. For example, Bowery Residents alleges that plans submitted to OASAS detail nursing station s as it is the agency which approves operating certification for providing such services. E3owery Residents also contends that the parties dispute certain facts and the relevance of the facts as to whether the proposed facility is a community based facility. Bowery Residents points to the disagreement of the parties as to the relevance of the duration of stay of its clients and the relevance of the percentage of administrative, management, medical and other staff to DOBs determinations, As to the claims in the Petition that the proposed facility is a community facility md continued construction wil deprive the community of input into governmental decisio nmaking under

CEQR and SEQRA, and lair share and ULLRP reviews, Eowery Residents dees not argue that these claims are unripe based on failure to exhaust administrative remedies. Rather. it argues

that the claims are unripe as there has been no rele ant City action to mandate reviews under CEQR, SEQRA, ULURP or fair share review laws . In support of this argument. Bowery Residents asserts that the DHS has not entered into a contract with it, and }3owery Residents is renovating the building pursuant to its lease with a priva te party, and using its own and other privately obtained funds. As to whether exhaustion of administrative remedies befo re the BSA is required, the Court of Appeals has frequently recognized that the BSA is comprised of experts in land use and planning, and that its interpretation of the Zoni ng Resolutions is entitled to deference. So long as its interpreta tion is neither irrational, unreasonable nor inconsistent with the gove rning statute, it will be upheld. Of course, this principle does not appl y to purely legal determinations; where the question is one of pure legal interpretation of statutory terms, deference to the BSA is not required. However, when applying its special expertise in a particular field to interpret statutory language, an agencys rationale construction is entitled to deference. New York Botanical Garden v Board ofStandurclc and App eals of the City ofNew York, 91 NY2d 413, 419 (1998) [internal citations and quotation s omitted]. Here, at this stage of the proceedings and on the record before this court. it cannot be said that the DOD determinations at issue, are questions ofp ure legal interpretations of statutory terms. Rather, the legal analysis is fact driven and requ ires. inter alia, an intricate analysis of criteria for evaluating and categori7ing use within the contextual framework of the ZR. As
identified by the parties, 3ome of the factors involved in this analysis are the cjnfiguration of the

premises in rclaion to its stated purpose or intended use, percentages of diftreat categories of
staff detinitions related to use and EISA precedent. Issues of this nature and complex ity should

be presented in the first instance to EISA, the administrative body with the necessary expe rtise to consider the underlying merits. JVeissman v City ofVew York. 96 AD2d 454, 456 (1 Dept), app dism 60 NY2d 815 (1983) (tenement owner& failure to exhaust administrative remedies through review before EISA dispositive where EISA had the necessary expertise and primary jurisdiction to consider complex issues involving the inter pretation of zoning resolutions). [he court rejects Chelsea Coalitions argument that a stay should not be granted as EISA cannot grant complete relief against the irreparable harm it alleges has been created by DOBs issuance of the permits. Specifically, the relief Chel sea Coalition argues that the EISA cannot grant is injunctive relief barring the construction. Chel sea Coalition points to Lesron Junior, Inc. v. Feinberg, 13 AD2d 90 (l Dept 1961), in support of this argument. The court concludes that the facts in this action which involve renovation of an existing building, are distinguishable from those in Lesron vhere the issues involved new cons truction. In Lecron, the court found irreparable harm on the grounds that EISA could not grant plaintiffs an injunction against the erection of an illegal structure where the construct ion involved a 16-story tower building allegedly being built in violation of both the Mul tiple Dwelling Law and the ZR, and which tower would obstruct the light and air of the adjo ining building. Here, the construction involves interior renovations of an existing building, arid it cannot be said that interior renovations may result in harm comparable to that resuiting from the erection of a new building. The fact that the renovations may include replacement of much of the interior infrastructure incuding the HVA C, electrical and fire systems, and the replacement of all floors, the roof and the basement such that

they may fairly be characterized as a gut renovation, does not change this conclu sion. l3ased on these conclusions, the court grants Bowery Residents motion for a stay on the grounds that Chelsea Coalition has failed to exhaust its administrative remedies, to the extent of staying the claims relating to DOBs determinations including the permits it issued connec in tion with the construction at the building.
As to Chelsea Coalitions claims that the community is deprived of input into

governmental decision-making under CEQR and SEQRA, and that reviews are reaui red under ULURP and fair share laws, the stay is denied. The record is insufficiently developed for a determination of the issues raised with respect to these claims. Significantly, while the City respondents participated to some extent in oral arguments on this motion, it did not submit papers. The issues related to these claims will be considered in connection with Chelsea
Coalitions motion for a preliminary injunction and the court is setting a briefing schedule and a

date for oral argument as indicated below.

Accordingly, it is

ORDERED that the motion of respondent Bowery Residents Committee, Inc. is granted only to the extent that the claims related to the Department of Buildings determinations are stayed until further order of this court or a determination by the Board of Standards and Appea ls, and the motion is denied as to the remaining claims: and it is further ORDERED that within 15 days of the date of this order, respondents shall serve and tile opposition to petitioners motion for a preliminary injunction as to the claims unrelat ed to the determinations of the Department of Buildings: and it is further ORDERED that petitiurer shad erve and file reply papers, if any, within seea days of

receipt of the opposition papers: and it is further

ORDERED that all papers are to be ficd th the Clerk of Part ii Room 351); and it is

further
ORDERED that the parties shall appear for oral argument on February 7, 2011 at 3:30

pm, in Part 11, Room 351 60 Centre Street; and it is further ORDERED that at oral argument respondent F3owery Residents Committee, Inc. shall inform the court and petitioner of the status of the construction and the expect ed date of occupancy, and the City respondents shall inform the court and petitioner of the status of relevant contracts and reviews.

Dated: January 10, 201 1

ENTER:

1. S. C.

HON.

ANA.MADDEN
1
.1.