| Matter of Brooklyn Bridge Park Legal Defense Fund, Inc. v New YorkState Urban Dev. Corp. |
| 2008 NY Slip Op 03641 [50 AD3d 1029] |
| April 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Brooklyn Bridge Park Legal Defense Fund, Inc., etal., Appellants, v New York State Urban Development Corporation et al.,Respondents. |
—[*1] Sive, Paget & Riesel, P.C., New York, N.Y. (David Paget, Steven Barshov, and ElizabethKnauer of counsel), for respondents New York State Urban Development Corporation, doingbusiness as Empire State Development Corporation, and Brooklyn Bridge Park DevelopmentCorporation. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Dona B.Morris, and Carrie Noteboom of counsel), for respondents Michael R. Bloomberg, as Mayor ofthe City of New York, Adrian Benepe, as Commissioner of the New York City Department ofParks and Recreation, New York City Department of Parks and Recreation, and City of NewYork. Kaplan Fox & Kilsheimer LLP, New York, N.Y. (Gregory K. Arenson and Christine M. Foxof counsel), for Sierra Club, amicus curiae.
In a proceeding pursuant to CPLR article 78 to review a determination of New York StateUrban Development Corporation, doing business as Empire State Development Corporation, andBrooklyn Bridge Park Development Corporation, dated January 18, 2006, which, inter alia,approved the General Project Plan of the Brooklyn Bridge Park Civic Project, the petitionersappeal from an order and judgment (one paper) of the Supreme Court, Kings County (Knipel, J.),dated November 27, 2006, which granted the respondents' motions to dismiss the petition, deniedas academic the petitioners' cross motion for a trial, and dismissed the proceeding.
Ordered that the order and judgment is affirmed, with one bill of costs to the [*2]respondents appearing separately and filing separate briefs.
The petitioners contend that, in approving the final environmental impact statement(hereinafter FEIS) for the Brooklyn Bridge Park Civic Project (hereinafter the Project), therespondents New York State Urban Development Corporation, doing business as Empire StateDevelopment Corporation and Brooklyn Bridge Park Development Corporation failed to takeinto account the potential traffic impacts from the proposed Atlantic Yards project.
Judicial review of a determination pursuant to the State Environmental Quality Review Act(ECL art 8, hereinafter SEQRA) is limited to whether the determination was affected by an errorof law or was arbitrary and capricious, an abuse of discretion, or a violation of lawful procedure(see CPLR 7803 [3]; Akpan v Koch, 75 NY2d 561, 570 [1990]). The reviewingcourt should determine whether the agency identified the relevant areas of environmentalconcern, took a hard look at them, and made a reasoned elaboration of the basis for itsdetermination (see Akpan v Koch, 75 NY2d at 570).
Here, contrary to the petitioners' contentions, the record indicates that the FEIS did take intoaccount the traffic expected to be generated by the Atlantic Yards project. In particular, the FEISidentified Atlantic Yards as one of the projects that was considered, and accounts for trafficassociated with Atlantic Yards in developing background conditions against which potentialimpacts of the Project are assessed. An agency may rely on consultants to conduct the analysesthat support their environmental review of proposed projects (see Matter of Jackson v NewYork State Urban Dev. Corp., 67 NY2d 400, 427-428 [1986]; Matter of Halperin v City of NewRochelle, 24 AD3d 768, 774-775 [2005]). The choice between conflicting experttestimony rests in the discretion of the administrative agency (see Matter of Ball v New York State Dept. of Envtl. Conservation, 35AD3d 732, 733 [2006]; Matter of Winston v Freshwater Wetlands Appeals Bd., 254AD2d 363, 364 [1998]).
Furthermore, the traffic analysis and conclusions were also reviewed by the New York CityDepartment of Transportation, which was provided with traffic network diagrams and data forAtlantic Yards. SEQRA does not require that the FEIS contain all of the raw data supporting itsanalysis as long as that analysis is sufficient to allow informed consideration and comment on theissues raised (see Akpan v Koch, 75 NY2d at 573-574). Here, it was sufficient that theFEIS included tables and illustrations summarizing traffic data as part of the presentation of itstraffic analysis (see Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at422-423).
We further note that a trial is not appropriate in this proceeding (see Matter of Schiff vBoard of Estimate of City of N.Y., 122 AD2d 57, 59-60 [1986]).
The petitioners further contend that provisions in the General Project Plan locatingresidential housing on development parcels within the Project site violate the public trustdoctrine. "The public trust doctrine restricts the alienation of property owned by a municipalitywhich has been dedicated for use as a public park or recreational area" (Matter of 10 EastRealty, LLC v Incorporated Vil. of Val. Stream, 49 AD3d 764, 766 [2008]). Here, however, the development parcels have not been so dedicated.Contrary to the petitioners' contentions, the public trust doctrine does not prohibit residential usesthat are merely adjacent to public parkland. Thus, the public trust doctrine was not violated inthis case. Spolzino, J.P., Miller, Dillon and Balkin, JJ., concur.