In Regards To Lightstone Group's 'Minor Modifications' For Gowanus Project, Brooklyn Law School Clinic Finds Department Of City Planning In Violation Of Article 78.

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363-365 Bond Street

Image of proposed development courtesy of The Lightstone Group

To read the letter in its entirety, click here

Brooklyn Law School Community Development Clinic  recently sent a letter to Amanda Burden, Chairperson of New York City's Department Of City Planning (DCP) on behalf of Friends And Residents of Greater Gowanus (FROGG) urging her agency to take no further action on the Lightstone Group's application for a modification to its previously approved special permit related to a proposed large- scale general development project at 363-365 Bond Street in Gowanus, Brooklyn.

Hoping to piggy-back on the former Toll Brothers project, which called for 447 condo units on the shores of the Gowanus Canal, Lightstone is seeking DCP's approval for variations in the base height of the project, building heights and footprints of portions of the buildings, relocation of parking entrances, changes to the location and design of the open space, and changes to the number of residential units from 447 to 700.
DCP considers these changes "minor" modification's which are subject to review and approval only by the Commission, rather than 'major' modifications, which would require the initiation of a new ULURP.

After researching the legality of this matter, Brooklyn Law School Community Development Clinic concluded that :

*DCP’s consideration and administrative approval of “minor modification” applications outside the Uniform Land Use Review Procedure1 (“ULURP”) is ultra vires and therefore null and void.

*DCP’s determination does not carry the force of law because the rule that DCP applies to evaluate proposed modifications was not adopted pursuant to the strict requirements of the City Administrative Procedure Act2 (“CAPA”). 
*DCP's failure to account for the proposed increase in floor area, a mandatory consideration under DCP's impermissible rule, "was arbitrary and capricious and in violation of applicable law. " N.Y.C.P.L.R. 7803 (3).

The findings confirm what many Gowanus area residents have been suspecting for a long time: that the DCP 'minor modification' process was flawed from the beginning and that it allowed the developer to circumvent the usual ULURP process.

Ironically, Brooklyn Law School Community Development Clinic's letter was delivered to Amanda Burden in time to be considered for DCP's deliberations on the Lightstone matter that were scheduled for Monday Oct 29th, 2012, the day Hurricane Sandy flooded the city and this proposed development site with a 14 foot storm surge. The meeting has yet to be rescheduled.

You can read the Brooklyn Law School letter in its entirety after the jump by clicking here

BLS Legal Services Corp. Community Development Clinic 

David Reiss

Director 

October 26, 2012

DirectorAmanda Burden,
New York City Department of City Planning
22 Reade Street
New York, New York 10007

Dear Ms. Burden,

We write on behalf of the Friends and Residents of Greater Gowanus (FROGG). FROGG is a not-for-profit community organization devoted to the preservation of the history and heritage of the Gowanus area in South Brooklyn. The Lightstone Group (“TLG”) submitted an application to the Department of City Planning (“DCP”) for a modification (M 090048(A) ZSK) to its previously approved special permit (C 090048 ZSK) related to a proposed large- scale general development project at 363-365 Bond St., Brooklyn, New York. DCP now seeks to approve the application based on its “determination” that the proposed modifications are “minor.” See David Karnovsky’s letter to Brad Lander (“Karnovsky Letter”), attached. FROGG vigorously opposes DCP’s approval for the following reasons:

I. DCP’s consideration and administrative approval of “minor modification” applications outside the Uniform Land Use Review Procedure1 (“ULURP”) is ultra vires and therefore null and void. 

II. DCP’s determination does not carry the force of law because the rule that DCP applies to evaluate proposed modifications was not adopted pursuant to the strict requirements of the City Administrative Procedure Act2 (“CAPA”). 

III. DCP’s failure to account for the proposed increase in floor area, a mandatory consideration under DCP’s impermissible rule, was “arbitrary and capricious and in violation of applicable law.” N.Y. C.P.L.R. 7803(3).

I. DCP’s consideration and administrative approval of “minor modification” applications outside ULURP is ultra vires and therefore null and void. 

DCP argues that a “minor modification” to a previously approved special permit does not require a new ULURP application and is not subject to City Council review. See Karnovsky Letter. Admittedly, DCP has the authority to approve “minor modifications” to special permit applications during the ULURP process.

This is apparent in Windsor Owners Corp. v. City Council of City of New York, 23 Misc.3d 490 (Sup. Ct., N.Y. Cty. 2009). There, as is proper under the ULURP rules, the City Council proposed modifications to a ULURP application and “remanded” it to the City Planning Commission (“CPC”) for review. The CPC applied the criteria set forth in 62 R.C.N.Y § 2-06(g) (5), to determine that the modifications were “minor,” meaning that the plan did not have to go through ULURP again and was not subject to additional public hearing. However, the CPC’s determination was subject to, and ultimately received, City Council approval.

The Karnovsky Letter failed to cite any legal authority that would extend Windsor’s holding to previously approved ULURP applications. If DCP relies on Section 2-06 of the ULURP rules as a textual basis for its “authority” here, such reliance is misplaced. As Windsor makes clear, that section applies to proposed modifications during the ULURP process, before the City Council makes its final decision.

In addition, even if DCP’s authority to approve “minor modifications” extended to previously approved special permits, The Karnovsky letter also failed to explain why such approval is not subject to City Council review. While it is true that not all special permit applications or modifications thereto are automatically subject to Council approval, City Council may, in any case, “take up” the application for an up or down vote. See New York City Charter §§ 197-d(b)(2)-(3) & 197-c(a)(4); 62 R.C.N.Y § 2-06(g)(5)(ii). Thus, DCP’s stated course of action -- to consider and approve TLG’s application despite the fact it is outside ULURP -- is outside the scope of its legislatively delegated authority and is therefore null and void.3 See Eastport Alliance, 13 A.D.3d at 529; Old Dock Assoc. v. Sullivan, 150 A.D.2d 695, 697 (2d Dep’t. 1989).

II. DCP’s determination does not carry the force of law because the rule that DCP applies to evaluate proposed modifications was not adopted pursuant to CAPA’s strict requirements.

Even if legislature had authorized DCP’s administrative approval mechanism, the standard by which DCP evaluates proposed modifications is a “rule” subject to CAPA4, and was not adopted in accordance with CAPA’s strict rulemaking requirements. CAPA provides the following definition:

5. "Rule" means the whole or part of any statement or communication of general applicability that (i) implements or applies law or policy, or (ii) prescribes the procedural requirements of an agency including an amendment, suspension, or repeal of any such statement or communication.
a. "Rule" shall include, but not be limited to, any statement or communication which prescribes... (iii) standards for the issuance, suspension or revocation of a license or permit...
N.Y.C. Charter § 1041 (emphasis added). 

This definition is broad by design. See Report of the New York City Charter Revision Commission: December 1986—November 1988, at 86 (Apr. 1989) (“The term “general applicability” encompasses any statement or communication that applies similarly to members of a class, regardless of the number of members in any such class....The definition is intended to be construed broadly to accommodate the act’s basic objectives.”).

New York Courts have broadly interpreted CAPA’s definition of “rule” as well. In 1700 York Assoc. v. Kaskel, 182 Misc.2d 586 (Civ. Ct., N.Y. Cty. 1999), the Court found that a city agency’s policy prohibiting the keeping of ferrets as domestic pets was a “rule” under CAPA. The agency based its policy on its interpretation of 24 R.C.N.Y. § 161.01(a), which prohibits keeping an “animal of a species which is wild, ferocious, fierce, dangerous or naturally inclined to do harm” in a residential dwelling. Finding no previous judicial interpretations of the term “general applicability” under CAPA, the Court turned to judicial interpretations under the State Administrative Procedure Act (SAPA) § 102(2)(a)(i), since the “term is used so similarly” there. Id. at 593. The court provided as follows:

A statement “of general applicability” is “a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme.” The statement need not regulate the general public; if a policy is to be “invariably applied across-the-board” to the segments of the population within its ambit “without regard to individual circumstances or mitigating factors.... [it] falls plainly within the definition of a ‘rule.’
Id. (internal citations omitted).

Since the policy in question extended “invariably across the board” to anyone who had a pet ferret, the Court concluded that this decision constituted a “rule” of “general applicability” which was not adopted pursuant to CAPA’s rulemaking requirements and was thus not entitled to the “force and effect of law.” Id. at 593-94 (quoting Schwartfigure v. Hartnett, 83 N.Y.2d 296, 301 [1994]). See Cordero v Corbisiero, 80 N.Y.2d 771, 773 (1992) (The Court of Appeals struck down the State Racing and Wagering Board’s policy of imposing one-race suspensions on horse jockeys for certain infractions, concluding it was a “rule” under SAPA because it was one “of general applicability which prescribe[d] a procedure or practice requirement of the agency.”)

The New York County Supreme Court in Callahan v. Carey, 2012 N.Y. Slip Op. 30400(U) (Trial Order), defined the contours of CAPA’s “rule” definition, including a description of the characteristics that distinguish a “rule” from an “interpretive policy” not subject to CAPA. The Court, also relying on interpretations of SAPA for guidance, explained as follows:

CAPA's rule making process is mandated when an agency establishes precepts that remove its discretion by dictating specific results in particular circumstances. Only a fixed general principle to be applied by an administrative agency, without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers, constitutes a rule or regulation that must be formally adopted. Rules are not implicated where there is the ability for ad hoc decision making or where decision makers are vested with significant discretion to independently exercise their professional judgment. Nor are rules implicated by interpretative statements, or statements of general policy, that have no legal effect.
Id. (citations omitted).

Citing the Court of Appeals, The Supreme Court acknowledged that rules are “generally broader and [have] more direct public impact than.... interpretative policies,” and there is “no clear bright line between [the two].” Id. The inquiries necessary to make the distinction, therefore, are “necessarily circumstance driven,” and “turn on matters of degree.” Id.

In that case, the procedure in question “sets forth the standards by which [the Department of Homeless Services (“DHS”)] will determine whether individuals who apply for temporary housing assistance are eligible.” Id. The policy stated that “DHS will utilize this Procedure to determine whether an applicant for THA is an eligible homeless person. This determination will be based on an assessment of whether the applicant has a viable housing option where s/he can live even on a temporary basis...” Callahan, 2012 N.Y. Slip Op. 30400(U) (emphasis in original). DHS is then required to make its determination based upon the “totality of the applicant's circumstances, with an analysis of each applicant's situation in accordance with all relevant factors including those enumerated in [the policy].” Id. Despite the ad hoc nature of the standard and its “broad language,” the court concluded the procedure was nonetheless a “rule” subject to CAPA because it applied to all applicants for temporary housing and was based on “criteria that are outcome determinative...” Id.

DCP’s criteria for determining whether proposed modifications are “minor” are those set forth in the ULURP rules governing the CPC’s authority to determine whether modifications proposed by Council during ULURP, require the initiation of a new ULURP application. The rules provide as follows:

[The City Planning Commission] shall have fifteen (15) days to review [Council’s proposed modification] and to determine: ... (ii) whether the modification requires the initiation of a new application. In making this determination, the Commission shall consider whether the proposed modification: (A) increases the height, bulk, envelope or floor area of any building or buildings, decreases open space, or alters conditions or major elements of a site plan in actions (such as a zoning special permit) which require the approval or limitation of these elements; (B) increases the lot size or geographic area to be covered by the action; (C) makes necessary additional waivers, permits, approvals, authorizations or certifications under sections of the Zoning Resolution, or other laws or regulations not previously acted upon in the application ... 

If the Commission has determined that no additional review is necessary ..., it shall so report to the Council. The Commission may also transmit any comment or recommendation with respect to the substance of the modification, and any proposed further amendment to the modification which it deems as necessary or appropriate.  

62 R.C.N.Y § 2-06(g)(5)(ii) (emphasis added). 

As case law and legislative history make clear, DCP’s informal “adoption” of these criteria to evaluate whether a proposed modification is “minor” constitutes a “rule” subject to CAPA for several reasons. First, DCP concedes that these considerations generally apply to all applications for “minor” modifications. Second, as in Callahan, the use of the word “shall” in 62 R.C.N.Y § 2-06(g)(5)(ii) removes DCP’s discretion by mandating the consideration, which necessarily renders “certain” of these criteria to be “outcome determinative.” See Callahan, 2012 N.Y. Slip Op. 30400(U). In fact, DCP’s policy has stronger characteristics of a “rule” than did the policy in Callahan, since one might argue that the policy in that case implicitly allowed some level of discretion insofar as determinations were to be based on the “totality of the applicant’s circumstances.” Id. No such language appears in 62 R.C.N.Y § 2-06(g)(5)(ii).5 Finally, CAPA’s basic goal -- “to provide an open process in agency rulemaking” -- supports finding DCP’s policy to be a “rule.” See New York City Charter Revision Commission, Summary of Final Proposals 6, 1988. Accordingly, since DCP’s rule was not promulgated according to CAPA’s strict requirements, including those for notice, comment, public hearing, and publication, it does not carry the “force and effect of law.” 1700 York Assoc., 182 Misc.2d at 586.

III. DCP’s failure to account for the proposed increase in floor area, a mandatory consideration under DCP’s impermissible rule, was “arbitrary and capricious and in violation of applicable law.” N.Y. C.P.L.R. 7803(3).

As discussed above, DCP generally considers a modification to be “minor” so long as it does not “increase the extent of any previously granted waivers of underlying use or bulk regulations” or “require new waivers or forms of approval not encompassed within the prior action.” Karnovsky Letter. These criteria are “generally those set forth in Section 2-06(g)(5)(ii) of the ULURP Rules....” Karnovsky Letter.

DCP failed to then properly apply its self-imposed, albeit impermissible, rule to TLG’s application. Specifically, 62 R.C.N.Y § 2-06(g)(5)(ii) mandates that CPC consider increases in floor area. TLG’s proposed modification does, in fact, increase the floor area of the project by 2,834 square feet. See Amanda Burden’s letter to Brooklyn Community Board 6, attached. The Windsor court explained that a modification is minor so long as it does not exceed the original plan with respect to any of the criteria under section 2-06(g)(5)(ii). 23 Misc.3d at 501. If it does exceed the original, despite whether the increase still complies with the underlying zoning restriction, it is a “significant modification” that “require[s] a new ULURP application and public hearing.” Windsor Owners Corp. 23 Misc.3d at 501. The Karnovsky letter is conspicuously silent as to this enlargement. Since consideration of all the factors in Section 2-06(g)(5)(ii) is mandatory, and since the increase in floor area constitutes a “significant modification,” DCP acted in “violation of applicable law” (“applicable” insofar as DCP conceives it, anyway). See N.Y. C.P.L.R. 7803(3).
***

For all the reasons outlined above, FROGG respectfully requests that DCP takes no further action on TLG’s application, which includes making a determination on the application at the upcoming City Planning Commission review session on Monday, October 29, 2012, as such action exceeds DCP’s statutory authority, violates CAPA, and is arbitrary and capricious in violation of applicable law.
Sincerely,

Brooklyn Law School Community Development Clinic
Grady Southard, Legal Intern
Jeffrey Ling, Legal Intern
Sarah Udashkin, Legal Intern

cc: 
City Planning Commission
David Karnovsky, Esq.
Hon. Brad Lander
Craig Hammerman, District Manager, Brooklyn Community Board 6 Purnima Kapur, Director, DCP Brooklyn office
Aline Fader, Planner, DCP Brooklyn office
Hon. Velmanette Montgomery, New York State Senator, 18th Senate District Hon. Nydia Velázquez, U.S. Representative, 12th Congressional District

1 N.Y.C. Charter §§ 197-c & -d; 62 R.C.N.Y § 2-01 et seq. 

2 N.Y.C. Charter §§ 1041 - 1046

3 Moreover, “[w]here a local land use agency acts without jurisdiction in approving or denying a site plan, special

permit, or other land use application, a challenge to such an administrative action, as ultra vires, is not subject to the 30–day limitations period” for land use determinations. Eastport Alliance v. Lofaro, 13 A.D.3d 527, 529 (2d Dep’t. 2004).

4 CAPA applies here despite N.Y.C. Charter § 1041(b)(vi), which exempts certain ULURP actions from CAPA’srequirements. If we assume that that the DCP mechanism at issue (1) is a ULURP action, and (2) that it qualifies for this exemption, DCP would exceed its scope of authority by not subjecting its determination to Council Review as ULURP would require. Thus, either CAPA applies, or DCP’s mechanism is null and void. See Eastport Alliance, 13 A.D.3d at 529.

5 Any level of “discretion” this section might seem to grant to CPC say, for example,-- based on its right to propose additional modifications that it deems “appropriate” -- would necessarily be limited by the provision’s intended context. Even if the drafters would otherwise endorse CPC’s “adoption” of this provision under these circumstances, surely they would not intend for the word “appropriate” to give CPC unfettered discretion even where there is no Council review.