Environmental Objections and Comments on 960 Franklin Ave.
Please note: this is the full copy of the Environmental Objection that we submitted to the Department of City Planning on March 25, 2019 on the 960 Franklin Ave Rezoning.. It was performed by our Environmental Attorney Maureen Koetz.
To make this document easier to read please review the Table of Contents and click on the section that you would like to review and then click on "back to top" to come back to the Table of Contents. The in "#" notes describe more of what the section is about.
Note: DSOW means Draft Scope of Work, which is the developers' proposed Environmental Review layout regarding what they want to look at and how they want to look at it. However the City is suppose to do a more in-depth review and take into consideration the public's point of view.
Table of Content
- The Proposed Project "What the Developers Want"
- Background On 960 Franklin Ave
- 1991Contextual Rezoning - "Community Plan to Protect Brooklyn Botanic Garden (BBG) and Community.
- Positive Declaration - "There will be 16 known Negative Environmental Consequences".
- Conformance With Law - "Government Agencies Must Obey the Law".
- HPD Must Be Lead Agency Not DCP - "Developer is seeking Money from the Federal Government thus the Federal government must oversee this project, not New York City."
- Alienation of Parkland Subject to Separate action and evaluation - "(BBG) is a specialized "Park", thus the State must allow the City to give away Air and Light of BBG.
- Disclosure under SEQR and CEQR... - "Must examine Displacement in compliance with Federal Fair Housing Act."
- Disclosure of impacts or compliance interference under applicable laws. - "Must Disclose all negative environmental Impacts under all City, State and Federal Laws.
- Scope of Environmental Analysis - "All the Areas the City Must Look At"
- DSOW has improperly Segmented analysis of the 960 Franklin Ave.... - "Developer does not want to examine all of the lots being rezoned, to reduce negative impact."
- DSOW Fails to include Project Alternatives - "Fails to provide other plans that may not be so detrimental to the environment"
- DSOW fails to include Required Cumulative Impact Analysis. - "Fails to consider other rezonings that are happening in the area that will affect same resources in the community."
- Specific Analysis Areas under the CEQR (City Environmental Quality Review) manual. - "Must examine based upon CEQR manual worst case scenarios."
- Zoning. Socioeconomic and Neighborhood Condition - "Displacement, Urban Design, Neighborhood Character, Student Population, Community Facilities and Services, Shuttle Train Line impact, Financial assessment of additional financial consequences tall buildings along Shuttle Train, and Parking."
- Shadow Analysis - "Shadow, FRESH program, Worst Case Scenario calculations, Floral Calculations and their destruction, Public Housing Residences are sunlight-sensitive areas, Sun-Glare."
- Waterwaste Treatment/Drainage Basin/Clean Water Act Compliance - "City Out of Compliance with laws and Court orders, increase in Water pollution, Hook-up Moratorium"
- Noise - "Noise pollution affects on BBG Experience, Jackie Robertson Playground, School and learning"
- Solid Waste and Sanitation Services - "50 additional Tons of Waste, Can the System handle it?"
- Natural Resources - Migratory Birds death, reduction in natural animal and floral habitats, destruction of rare or endangered plants and animal species, lost of plant and animal life, reduction water supply, pollution removal, aesthetic and scenic enhancement, increase in green gas emissions etc.."
- Summary
The Letter
March 25, 2019
Olga Abinader, Acting Director
Environmental Assessment and Review Division
Office of City Planning
120 Broadway, 31st Floor, New York, NY 10271
oabinad@planning.nyc.gov
Re: Comments on the Draft Scope of Work
960 Franklin Avenue Rezoning
CEQR No. 19DCP095K
The Movement to Protect People (MTOPP) and Flower Lovers Advocating for Communities (FLAC) are filing these comments on the Draft Scope of Work (DSOW) for the 960 Franklin Ave Rezoning (CEQR No. 19DCP095K) that will analyze a series of discretionary zoning approvals requested by Applicant, Franklin Ave. Acquisition LLC, on behalf of property owners Continuum Development and Lincoln Equities.
The Proposed Project
The Applicant is seeking the four discretionary actions noted in order to facilitate the redevelopment of multiple lots in the Crown Heights South neighborhood of Brooklyn in Community Board 9 along the perimeter of the Brooklyn Botanic Garden tat includes owners and/or developers which have not been identified.
- A zoning map amendment in Section 16d of the Zoning Map to rezone portions of Blocks 1192, which include one Applicant-owned projected development site, lots 41, 46, 63, and 66 (“Development Site”) from R8A to R9D, with a C2-4 commercial overlay.
- A zoning text amendment to appendix F of the Zoning Resolution (ZR) to designate the “Development Site” as a Mandatory Inclusionary Housing (MIH).
- A LSGD special permit to waive tower coverage requirements for R9D districts, modification of Zoning Regulations for 100 percent tower coverage instead of 50 to 80 percent, and reduction of space between the five buildings being proposed. This will help facilitate taller buildings.
- A special permit to waive the parking requirements of an R9D zoning regulation, from 462 required to 180.
- Portions of Block 1192, lots 1, 40, 77 and 85 will be changed from R6A to a R9D, without the benefit of the MIH program
Pursuant to Section 5-07 of the Rules of Procedure for Environmental Review (CEQR) and 6 NYCRR 617.8 (State Environmental Quality Review), the New York City Department of City Planning (DCP), acting on behalf of the City Planning Commission (CPC) as CEQR lead agency, has determined that a Draft Environmental Impact Statement (DEIS) is to be prepared in accordance with 6 NYCRR 617.9(b) and Sections 6-08 and 6-12 of Executive Order No. 91 of 1977 as amended (City Environmental Quality Review). A public scoping meeting was held on March 12, 2019, for these 960 Franklin discretionary rezonings in the Crown Heights section of Brooklyn, New York. Controlling law and regulation invite public and interested party comments; these provisions also require these comments be reviewed, responded to, and any rational for their rejection or negation be stated.
The Movement to Protect People (MTOPP) and Flower Lovers Advocating for Communities (FLAC) includes home owners, apartment dwellers, tenants, community workers, Block Associations, gardeners, neighborhood organizers, and small business owners working to stabilize, develop, and implement a true concept of community while protecting overall quality of life. MTOPP considers the Draft Scope of Work (DSOW) to be deficient in several key areas, and provides the following comments regarding changes to, and expansion of, the DSOW necessary to conduct an Environmental Impact Statement fully compliant with Federal State, and City laws and regulations prior to any consideration or approval of the zoning changes under review.
Background
The 960 Franklin Avenue Rezoning application involves discretionary actions subject to City Planning Commission review and approval, which in turn requires review under the State Environmental Quality Review Act (Environmental Conservation Law, Article 8), State Environmental Quality Review Act Regulations (6 NYCRR § 617), Executive Order Number 91, the City of New York Rules of Procedure for City Environmental Quality Review (62 RCNY § 5.01 et seq.), and guidance outlined in City Environmental Quality Review Technical Manual. Pursuant to sections 5.03 and 5.05 of the rules of procedure for CEQR, the Department of City Planning, acting on behalf of the city planning commission, is assuming led agency status for this application and is initiating the CEQR review. The applicant also seeks discretionary actions from the New York City Department of Housing Preservation and development (HPD) and the New York City Housing Development Corporation HDC. The DSOW indicates a coordinated review is being conducted with HPD and HDC acting as involved agencies.
The New York City Department of City Planning, as lead agency, has determined that the proposed 960 Franklin Avenue Rezoning and attendant development may have a significant adverse impact on the environment and a Draft Environmental Impact Statement must be prepared. The action involves a request by the Applicant, Franklin Ave. Acquisition LLC, for a series of discretionary approvals from the New York City Agencies outlined above. The land use actions include: a zoning map amendment to change an R6A district to an R9D with a C2-4 commercial overlay; a zoning text amendment to establish a Mandatory Inclusionary Housing (MIH) area; a special permit for a Large Scale Residential Development (LSRD); and a special permit for a reduction in required parking spaces to facilitate the proposed development (Proposed Actions).
The area affected by the Proposed Actions consists of a portion of the block bound by Montgomery Street, Franklin Avenue, Sullivan Place, and Washington Avenue in the Crown Heights neighborhood of Brooklyn Community Board (CB) 9, New York. The Proposed Actions would facilitate the development of two buildings totaling more than 1.3 million gross square feet reaching 39 stories. The Proposed Action adds 1,060 dwelling units (totaling 848,418 gross square feet or gsf), 21,183 gsf for local retail uses, and 9,678 gsf for community facility uses.
The project proponents allege in the in the DSOW that based on the preliminary screening assessments outlined in the 2014 CEQR Technical Manual (and detailed in the EAS for the Proposed Actions), historic resources, natural resources and solid waste and sanitation services, don’t warrant detailed assessment, indicating the proponents and Lead Agency intend not include them (p.18). This assertion benefits from a segmented approach to the Proposed Action, and also disregards legally critical cumulative impacts that the Proponents failed to recognize or respond to in the DSOW, and is totally inaccurate and unacceptable as the comments below will establish.
1991 Contextual Rezoning
The Quality Housing Program, established in 1987 in response to public dismay over height factor buildings, sought to restore the neighborhood fabric by including street wall location provisions, maximum base heights, maximum building heights, and setbacks.
In 1991, the Project Area was rezoned as part of a Department of City Planning contextual zoning action on a 13-block area bounded by Eastern Parkway, Washington Avenue, Sullivan Place, and a line 100 feet east of Franklin Avenue (ULURP No. C910293 ZMK). The city instituted a seven-story height limit in this 13-block contextual down zoning of properties near the Brooklyn Botanic Garden, largely to protect the horticultural museum, along with its then under-construction Steinhardt Conservatory, from the shadows of large buildings. The DSOW acknowledges the Proposed Action site is still governed by Quality Housing regulations implemented under the contextual rezoning. Since then, the Brooklyn Botanic Garden has not moved, nor have its uses and requirements for light and air changed in any way, begging the question as to how this tower-inducing upzoning could be appropriate after the community and City came together in the 1991 action.
The Positive Declaration
On behalf of the City Planning Commission, the Department of City Planning Environmental Assessment and Review Division determined, pursuant to 6 NYCRR Part 617.7, that the proposed actions may have a significant effect on the quality of the environment in 16 separate categories, and require an Environmental Impact Statement (EIS). The determination was based on an Environmental Assessment Statement prepared for the proposed actions which determined the following adverse effects could occur:
- Land Use, Zoning and Public Policy – The proposed actions could result in a change to land use, zoning and public policy.
- Socioeconomic Conditions – The proposed actions would exceed the threshold of 200 units for conducting a preliminary indirect residential displacement assessment.
- Community Facilities and Services – The proposed actions would exceed the threshold for introducing 50 public elementary or intermediate or 150 high school students.
- Open Space – The proposed project is expected to introduce 2,776 additional residents, which would exceed the indirect open space analysis threshold of 200 residents.
- Shadows – The proposed actions would facilitate the development of a new structure that exceeds 50-feet when compared to existing conditions. Shadows cast by the proposed buildings could affect sunlight sensitive resources in the study area.
- Historic and Cultural Resources – The proposed actions could result in effects to historic resources in the surrounding area.
- Urban Design and Visual Resources – The proposed actions could change the urban design and visual character of the affected area.
- Hazardous Materials – The proposed actions could result in new construction and in-ground disturbance within the affected area, which has a documented history of hazardous materials conditions.
- Water and Sewer Infrastructure – The proposed actions exceed the threshold of 400 residential units, and an analysis of the proposed action’s effect on the sewage system is warranted.
- Transportation – The proposed actions could generate vehicular traffic and increase demand for parking, pedestrian traffic and subway trips.
- Air Quality – The proposed actions could have the potential to result in new emission sources and introduce new sensitive receptors.
- Greenhouse Gas Emissions – The proposed actions could generate greenhouse gas emissions. The proposed project would exceed the 350,000-square-foot development threshold.
- Noise – The proposed actions could have the potential to result in mobile and stationary sources of noise and introduce new sensitive receptors.
- Public Health – The proposed actions could result in effects related to air quality, hazardous materials or noise, and consequently public health may be affected.
- Neighborhood Character – The proposed actions could affect socioeconomic conditions, urban design and visual resources, historic and cultural resources, transportation and noise; consequently, the affected area’s neighborhood character may be affected.
- Construction – Potential significant adverse impacts related to architectural resources and transportation, air quality, noise, hazardous materials and natural resources could also result in construction impacts. The anticipated duration of construction exceeds the 24-month threshold for a detailed analysis.
The Draft Environmental Impact Statement (DEIS) to be prepared for the proposed action must identify and describe any other potential effects on the environment. These comments address the scope and sufficiency of the planned EIS, and also identify for the affected public all related issues that must be examined under applicable City, State, and Federal laws and regulations.
I. Conformance with Law
The EIS must disclose and address other key legal questions arising from the proposed zoning action that, while not a part of the sixteen formatted impact categories outlined under the CEQR Technical Manual, are equally critical components of due process in this action requiring disclosure and evaluation for both the public and lawmakers in the decision process.
A. The Designated Lead Agency is the Housing Preservation and Development Agency (HPD), not the Department of City Planning (DCP)
A Notice of Lead Agency Determination, Positive Declaration, and Environmental Assessment Statement (EAS) were all issued on February 8, 2019 by the New York City Department of City Planning (DCP), which identified itself as the designated lead agency.1 However, the DSOW states that public financing “may be sought” from city, state, and/or fedeural sorces, including United States Department of Housing and Urban Development (HUD) financing programs that are allocated by HPD, as well as new market tax credit (NMTC) transactions, or other governmental or private sources. Funding sources from New York State identified include the New York State Homes and Community Renewal (HCR). At the city level, funding may be requested in the form of tax exempt bonds financed by HDC and Housing Preservation and Development (HPD) under the Extremely Low and Low-income Affordability (ELLA) financing programs.2
This suggestion raises two key points: first, the DSOW must specify the types and sources of HUD funding the project intends to access; and second, to the extent any of the funds originate in covered programs listed in 24 CFR §58, the lead agency for the proposed project would be HPD as the Responsible Entity under HUD regulations3(HPD clearly states on its website that under 24 CFR Part 58, HPD is responsible for environmental review, decision-making, and action that would otherwise apply to actions undertaken by HUD to include project financing.4) Moreover, the use of HUD funds5 requires the environmental review process comply with the National Environmental Policy Act (NEPA), Council on Environmental Quality (CEQ) regulations in 40 CFR Parts 1500 through 1508, and applicable Federal laws, Executive Orders, and other authorities in addition to State and local legal requirements for the EIS. Funds from covered programs cannot be released without full NEPA compliance.6
The designation of HPD is also required under lead agency selection criteria in the Rules of the City of New York, since as a funding agency HPD will have the greater degree of responsibility for planning and implementing the action; be involved for a longer duration; provide for the most thorough environmental assessment (because it will include requirements under Federal NEPA); provide the greater level of funding for the action; and may be acting earlier on the proposed action (although the proponents have not provided a full account of the HPD involvement).7 Accordingly, HPD must conduct environmental reviews under the laws and rules which apply to HUD programs and policies noted above.8
The Project Requires Alienation of Parkland Subject To Separate Action and Evaluation
The DSOW acknowledges the Proposed Actions may result in significant adverse shadow impacts to the Brooklyn Botanic Garden (BBG) parklands, whose priceless living collections are a source of beauty, learning and inspiration for the community, all of New York City, and visitors from around the world. The 1991 contextual zoning that controls the area today was specifically implemented to secure the BBG parkland’s irreplaceable air and light assets from competing users, assuring sustained access to these public assets without which the BBG parklands cannot operate.
In 1897, New York State legislation reserved 39 acres for a botanic garden in Brooklyn that has since expanded to 52 acres. Courts have long recognized proper park uses as monuments and aesthetic embellishments, zoos and horticultural displays, playgrounds, and restaurants. 9 Under New York common law, a municipality holds parkland in trust for the people of the state, and the people's trust may not be diminished or infringed upon without specific authorization by statute from the state legislature. 10
New York courts have a long tradition of extending public trust protections to municipal parks by requiring specific state legislative authorization for sale, alienations, or non-park uses of the park’s assets. Air, light, and airspace are critical components of a “park,” the use of which is governed and protected no differently from use of the surface land or water within park boundaries. 11 City zoning action that transfers light and airspace from park use (open airspace with unimpeded and unaffected light corridors to plants and visitors) to development use (obstructed light corridors carrying building shadows and absorbing reflected glare) along with surface asset transfer for shadow and glare absorption constitutes an alienation that must be authorized by the State legislature. Shadow and glare absorption are permanent uses of parkland air and surface space no different from tradable development capacity or acreage, and requires state alienation approval. 12
New York law clearly recognizes the special and irreplaceable value of public park assets. As one court said nearly 150 years ago, “The process of setting up a public park is seen by the court as so long and expensive that the public investment must be protected from private interference.”13 The planned “Towers” component of the proposed action goes beyond the usual “shadow” and “reflection” 14 factors and constitute an inconsistent use of BBG parkland air, light, airspace, and surface land assets that amounts to a transfer of park assets. The EIS must therefore identify and analyzed the requirement for State alienation legislation as well as performing shadow and glare/reflectivity assessments.
Additionally, the New York City Department of Parks must be an involved Agency in the EIS process for the Proposed Action due to the significance of the adverse impacts to BBG parklands and alienation requirements.
C. Disclosure under SEQRA and CEQR requires full analysis and documentation of displacement, including City and Proponent compliance with Fair Housing Act (FHA) requirements prohibiting discriminatory effect in the displacement assessment
The positive declaration states the proposed actions would exceed the threshold of 200 units for conducting a preliminary indirect residential displacement assessment. New York statutes have defined "environment" to include, among other things, "...existing patterns of population concentration, distribution or growth, and existing community or neighborhood character" (see ECL 8-0105.6). Displacement is a recognized adverse effect on community character that creates impacts when structures are removed and replaced them with other land uses; housing becomes unaffordable for low income families; or existing housing is rehabilitated or restored in a manner that gentrifies and area resulting in higher rents and land values. Displacement can change the social fabric and demographics of the community, and is increasing recognized as having discriminatory effects. Court decisions have held that impacts upon community character must be considered in making determinations of significance even if there are no other impacts on the physical environment.
The Fair Housing Act (FHA) prohibits discrimination based on race, religion, color, national origin, sex, disability status, and familial status. The FHA broadly declares that “[i]t is the policy of the United States to provide . . . for fair housing throughout the United States” and serves as the primary vehicle to address the injustices of housing discrimination and residential segregation. To end residential segregation, the law imposes requirements that jurisdictions receiving federal housing funding bar discrimination and affirmatively further fair housing.
New York City’s obligation to affirmatively further fair housing under the Fair Housing Act (FHA) arguably bars discriminatory displacement due to gentrification. New regulations issued by HUD in April 2016 have responded to growing recognition that the harms caused by gentrification may well equate to those harms caused by segregation or attributed to exclusionary zoning practices. 15
FHA regulations apply to zoning actions, and are critical to use of public financing by the 960 Franklin Project. Full disclosure in the EIS includes data, information, and analysis that allows City agencies and HUD to consider all negative effects of gentrification in weighing whether the discretionary zoning acts for the 960 Franklin Avenue Project promote housing opportunity, a predicate to use of public funds.
In addition, the EIS socioeconomic analysis should analyze how the 960 Franklin Avenue Project furthers the goals and requirements of the Consolidated One-Year Action Plan submitted by the City of New York in its annual application to the United States Department of Housing and Urban Development’s Office of Community Planning and Development (HUD-CPD). The Consolidated Plan is the basis for formula entitlement grans. t funds (Community Development Block Grant (CDBG), HOME Investment Partnership (HOME), Emergency Solutions Grant (ESG), and Housing Opportunities for Persons with AIDS (HOPWA)) to address affordable housing, homelessness, supportive housing services and community development need.
D. Disclosure of impacts or compliance interference under applicable substantive laws
The evaluation of environmental “impacts” includes identification, disclosure, and analysis of any aspect of the proposed project[s] that is subject to laws, rules, and regulations other than SEQRA, CEQR, or Executive Order 91 process requirements. Actions and effects that extend beyond the impact category and represent potential for violations of, or compliance interference with, laws, regulations, Orders on Consent, Administrative Orders, or any other enforcement action issued by Federal, State, or municipal authorities covering the operation and management area of the project[s] must be evaluated and disclosed. In the case of the 960 Franklin Project, these include (but are not limited to) the Clean Water Act, the Clean Air Act, Local Law 152, and the Fair Housing Act, inter alia.
II. Scope of Environmental Analysis
The DSOW has improperly “Segmented” analysis of the 960 Franklin Avenue project from companion rezoning on contiguous lots
The DSOW does not include all the lots the Proposed Action will rezone, in contravention of SEQRA and related City law and regulations on “segmenting” actions.
Segmentation is not strictly prohibited by SEQRA, but it is disfavored; the New York State Department of Environmental Conservation (DEC) SEQRA regulations provide that a lead agency permissibly may segment review if “the agency clearly states its reasons therefor and demonstrates that such review is no less protective of the environment.” However, courts disallow segmentation of a project “when a project developer wrongly excludes certain activities from the definition of his project for the purpose of keeping to a minimum its environmentally harmful consequence, thereby making it more palatable to the reviewing agency and community.” 16
There is a combined total of 145,366 square feet (sqft) being rezoned in the 960 Franklin Avenue project, however a significant portion is not being considered and analyzed within the DSOW. Block 1192, Lots 1, 40, 77 and 85 (totaling 26,868 sqft) are included in this rezoning but the proponent and lead agency are segmenting out this portion and declining to provide the public the required environmental assessment of this interrelated rezoning.
The foremost requirement of SEQRA is to take a “hard look” at impacts of proposed Agency action. A hard look particularly includes assessing a Reasonable Worst Case Development Scenario under the CEQR Technical Manual. 17 This segmentation and wrongful elimination of several lots being rezoned from the EIS will lead to particularly misleading disclosures to the public, prevent full disclosure and assessment of the RWCDS, and undermine the hard look required by law.
In this case, the applicant and DCP have stated that the block 1192 parcels don’t have development potential, with no legal basis for this exclusion. Lots 77 and 85 (1015 and 1035 Washington Avenue) are jointly owned, 6-story, rent stabilized residential buildings which each have dual R8A and R6A zoning that impose height limits of 12 and 6 stories.
The intention to expand the building envelop of these lots is confirmed by actions only a few years ago when the owner attempted to build on top of the existing building to take advantage of the R8A increased height capacity. Those permits were denied due to safety considerations for the tenants in the existing building below.
However, where zoning designations permit larger building envelopes, an owner may request a “Hardship Variance” from the Board of Standards and Appeals (BSA) to develop lots to the authorized envelop capacity.
The economic reality of development has proven time and again that an increase of more than 50% of floor area is more than enough incentive for a landlord or developer to destroy the existing structure and rebuild at the greater capacity. The R9D, with no height limits, would afford the developer/owner heights as high as 40 stories based upon the square footage of both properties combined.
Changing the current R6A areas (6/7 story height limits) to RD9 (no height limit) increases the building capacity by 300%; a BSA hardship variance would not otherwise require a ULURP process or environmental review to implement. The possibility of a BSA hardship variance application (for which there is a 95% approval rate) requires that a “hard look” must include the impacts of all development that can occur as a result of the Proposed Action.
Chapter 2, Section 320 of the CEQR Technical Manual recognizes that discretionary actions like the 960 Franklin Avenue Rezoning permit a range of development scenarios to occur even though the action may be sought in order to facilitate a specific development. The CEQR Manual specifies that the scenario with the worst environmental consequences is chosen for analysis. In order that this Reasonable Worst Case Development Scenario (RWCDS) of the Proposed Action be accurate, environmental impacts from redevelopment of ALL the lots affected by the discretionary zoning action sought must be analyzed.
Changes to the improperly segmented Lots 1, 40, 77 and 85 in Block 1192 (totaling 26,868 sqft) from the current R6A (12 story height limits) to RD9 (no height limit) that increases building capacity by 300% are part of the RWCDS. The DSOW must include a properly calculated RWCDS that fully discloses potential additional development, especially as it is likely to alter the neighborhood character, overload assets and resources in contravention of law, and alienate parkland assets. A proper hard look requires accurate depictions of the Action Scenario with a full, unsegmented RWCDS, and reasonable alternatives that do not induce worst case impacts and contravene law.
The DSOW Fails to Include Project Alternatives
An EIS must contain an evaluation of “alternatives to the proposed action,” ECL §8-0109(2). The analysis of alternatives has been called the “driving spirit” of the SEQRA process. The SEQRA regulations require that a Draft EIS must include an alternatives analysis comparing the proposed action to a “range of reasonable alternatives...that are feasible, considering the objectives and capabilities of the project sponsor.” (§ 617.9(b)(5)(v)).
The current scope fails to meet this legal requirement, and therefore reasonable alternative must be included. Without Action and With Action are not “Alternatives” as the law contemplates, but merely restatements of the current status quo and the stated proposal. Alternatives can include different design and construction alternatives under zoning changes other than the current proposal, or new projects consistent with current density and neighborhood recognition provisions under the 1991 contextual zoning.
B. The DSOW fails to Include Required Cumulative Impact Analysis
SEQRA implementing regulations state that all draft EISs must include “reasonably related short-term and long-term impacts, cumulative impacts, and other associated environmental impacts (emphasis added). 18 The SEQRA Handbook, recently released in its fourth edition, provides further guidance on the requirements for cumulative impact analysis, describing the multiple instances when cumulative impacts can occur:
- when the incremental or increased impacts of an action, or actions, are added to other past, present and reasonably foreseeable future actions
- a single action or a number of individually minor but collectively significant actions taking place over a period of time
- multiple actions are in close enough proximity to affect the same resources (examples include construction along a single road segment, hydrological connections, or demands on the same water or sewer system)
Cumulative impacts must be assessed when actions are proposed, or can be foreseen as likely, to take place simultaneously or sequentially in a way that the combined impacts may be significant. Assessment of potential cumulative impact assessment should be done under the following circumstances:
- If two or more simultaneous or subsequent actions themselves are related because —
- One action is an interdependent part of a larger action or included as part of any long range plan,
- One action is likely to be undertaken as a result of the proposed action or will likely be triggered by the proposed action,
- One action cannot or will not proceed unless another action is taken or one action is dependent on another, or
- If the impacts of related or unrelated actions may be incrementally significant and the impacts themselves are related.
- Resources for road and vehicular capacity, especially the impacts of congestion and traffic on emergency response time, air pollution and greenhouse gas emissions
- Resources for solid waste, including controlled transfer station capacity allocated under the NYC Solid Waste Management Plan and limits of Local Law 152
- Resources for sunlight and air that will be taken up by shadow and sunglare by new and enlarged built infrastructure
- Resources for sewage treatment capacity, including pipes, intercepts, regulators, water treatment plants, NPSDES discharge capacity, Combined Sewer Overflow (CSO) capacity, including capacity available under CSO Best Management Practice Requirements (BMP capacity), in particular, the developments sharing the sewage carrying capacity of the Owl Head Wastewater Treatment Plant Drainage Area.
- A Civil/Structure/Financial analysis of engineering requirements for the Proposed Action
- An Civil/Structure/Financial analysis of engineering requirements for the RWCDS
- An Civil/Structure/Financial analysis of engineering requirements without a shuttle train retaining wall
- FRESH Program Provisions: The Development Site has enough square footage of commercial space to apply for the FRESH program after a building permit has been issued. This program, that allows the penetration of height limits (15ft.), must be assessed in the studies that are conducted.
- RWCDS as basis for Shadow Calculations: Section 314.2 of Chapter 8 of the CEQR Technical Manual
requires all possible configurations of the “allowable building envelope” must be analyzed, 22 which must then include the envelope configurations made possible by the unsegmented zoning changes to all the lots occurring in the proposed action. In other words, the shadow studies must be based upon the unsegmented “Worst Case Scenario” within the that three-dimensional model of the proposed project that includes future use of all FAR capacity being granted—the worst case shadows must be based on the “worst case” for actual construction on the totality of the unsegmented lots being rezoned, including all possible heights and bulk. - Sun-Glare: The proposed design of the 960 Franklin Project includes massive glass curtain walls that reflect dangerous glare (sometimes referred to as “deathrays” 23). This “solar reflectivity” can cause serious damage such as melting plastic car parts and create hazardous glare to neighboring buildings and nearby traffic. Most importantly for the proposed project, solar reflectivity can also raise surface temperatures on adjacent properties and kill vegetation (90% of the window glass built in America has the ability to produce 200 degrees Fahrenheit temperatures on surroundings from reflected glare). Reflectivity and glare also invalidate building energy models for surrounding structures. The DSOW and EIS must use accurate and available Computational Fluid Dynamics (CFD) to study and predicts location of reflected light from the unsegmented proposed action, the intensity of these reflections, and the related temperature increase originated by the reflected light on the surrounding area.
- Floral Calculations: The Shadows and Reflective Glare have the potential not to impact but to destroy the plant life in the openspace and conservatories of the Brooklyn Botanic Garden (BBG). The DSOW must specifically analyze harm to the unique and valuable plant species that are tended, maintained and grown in the greenhouses and beds, including interference with specific temperate zones, light, and air amounts required for the park and plant life, as well as the visitors using the BBG Park.
- Public Housing Residences are sunlight-sensitive resources: Since Jacob Riis first published How the Other Half Lives, public and affordable housing investment in New York City has sought to overcome the darkness and despair of early tenement housing. For over a century after its publication, New York’s zoning laws were repeatedly updated to assure all apartment rooms had light. Public housing projects were built in what is known as the tower-in-the-park style—an adaptation of contemporary housing complexes pioneered by Le Corbusier—to provide L-shaped apartment design that came together tetris-style in green, open space to ensure every unit had light shining in the apartment throughout the day. These historic zoning and public investment in housing remain sunlight-sensitive assets; the DSOW must include evaluation of the Jackie Robinson Houses and Park for shadow and reflectivity damage.
- Inconsistency with the provisions of a Consent Order or other applicable regulatory program
- Significantly increased wastewater or combined flows that would affect sanitary or combined sewer pumping stations, regulators, or interceptors with limited or no existing capacity
- Loadings that would exceed capacity per specific SPDES parameters and limits.
- Brooklyn Botanic Garden (including interior open space and buildings as well as border areas) including psychological elements of tranquility loss
- Jackie Robinson Houses
- Jackie Robinson Houses Playground
- Schools and Learning Impacts
- Transfer stations have the available capacity to accept the new load from 960 Franklin Avenue considering the cumulative demand for waste handing in the area;
- Sufficient hauling and transfer capacity is available accounting for holidays, weekends, and periods when one or more transfer facilities are closed
- Sufficient hauling and transfer capacity is available accounting for daily, weekly, and seasonal fluctuations in waste generation—such as cyclical construction seasons and restaurants’ busy seasons—that regularly and predictably require a transfer station’s full capacity; and
- Can permitted transfer station capacity handle the cumulative impacts of 960 Franklin and related projects waste handling requirements on individually busy days given daily capacity limits set forth in the permits (not averages or other non-specific, overly generalized calculations)
- Will transfer station capacity limits increase trips and related air emissions and congestion?
- The extent to which the cumulative impacts of 960 Franklin and related project development in the waste-shed are consistent with the New York City Department of Sanitation Commercial Waste Zones: A Plan to Reform, Reroute, and Revitalize Private Carting in New York City, released November 7, 2018
- Slack capacity at transfer stations in the area’s waste shed (including times periods when the facility is not even open or permitted to be open to accept waste) is sufficient for cumulative requirements
- A project would likely diminish habitat for a resident or migratory endangered, threatened, or rare animal species or species of special concern.
- A project would likely result in the loss of plant species that are endangered, threatened, rare, vulnerable or rare for the City.
- A project would likely result in the loss of part or all of a resource that is important because it is large, unusual, the only one remaining in the area where the project is to take place, or occurs within a limited geographic region.
- A project would, either directly or indirectly, be likely to cause a noticeable decrease in a resource’s ability to serve one or more of the following functions: wildlife habitat; food chain support; physical protection (e.g., flood protection); water supply; pollution removal; recreational use; aesthetic or scenic enhancement; commercial productivity; or microclimate support.
- A project that would be likely to directly or indirectly contribute to a cumulative loss of habitat or function which diminishes that resource’s ability to perform its primary function; and that loss would be inconsistent with the current natural resources policies of the City. 27
Most of these factors and conditions apply to the incrementally significant commercial and dwelling developments occurring in the geo-locational area of the Proposed Project that all feed or draw from the same sewage system components, airshed, road and transit, and solid waste management capacity. In the view of New York State Department of Environmental Protection (DEP), cumulative impacts do not have to be associated with one sponsor or applicant. They may include indirect or secondary impacts, long term impacts and synergistic effects. 19 Either the impacts or the actions themselves can be related.
Multiple resource categories are affected by cumulative impacts from this project and other simultaneous, subsequent, and proximate actions completed or under consideration. This includes (but is not limited to) all lots being rezoned in this action for development of 960 Franklin Avenue, the Bedford Union Armory, development, the Cornell Realty Project, other developments in the Crown Heights vicinity such as 111 Montgomery Street (a 12-story building with 163 residences ranging in size from studios to three bedrooms), 995 President Street (a seven-story apartment building), and 1050 Pacific Street (a two-building commercial complex), and projects in the Borough of Brooklyn that share and load into the same or common resources including, but are not limited to:
In the last case, it is important to note that New York City has been under a Consent Order for violating Water Quality Standards due excess hazard material loading into water bodies from Combined Sewer Overflow since 1992. 20 On November 3, 2010, New York City entered into an additional consent order with the NYS Department of Environmental Conservation (NYSDEC) (DEC File No. R2-20080312-141) to resolve Clean Water Act violations relating to "CSO BMPs" ("2010 CSO BMP Order"). The City violated the 2010 CSO BMP Order, the Schedule of Compliance, and Required Action 3(e) provisions of that order by failing to submit an approvable plan for review and approval with implementation schedule to incorporate and implement best practices for CSO controls at wastewater treatment plants, including the Owl Head plant in whose sewer shed the 960 Franklin Project is located.
The need for comprehensive cumulative impacts analysis for incremental (and constant) additions to limited sewage carrying capacity is further underscored by specific requirements of the CEQR Technical Manual regarding conditions subject to legal compliance actions. Section 420.1 of Chapter 13 (Wastewater Treatment Plants and Collection Facilities) specifies that “inconsistency with the provisions of a Consent Order or other applicable regulatory program” indicates significant impacts on WWTPs, interceptors, regulators, and pumping stations may occur. As the Department of City Planning is on
notice of the multiple Consent Orders and other regulatory program requirements, the incremental accumulation of development projects that must be analyzed at least includes all sewage loading added to the Owl Head Drainage area since the 2012 Consent Order update, and possibly all loading added since the original non-compliance occurred (please see the more detailed comments in the Wastewater Treatment/Drainage Basin/Clean Water Act Compliance section below).
Similar cumulative impacts analysis requirements apply to the significant solid waste impacts to the area from this and other projects, and are discussed in more detail below. In addition, to the extent HUD monies are used for the project (discussed above) the federal NEPA law and regulations for cumulative impacts must also be met by the EIS. The Scope of Work must be revised to include all necessary Federal and State cumulative impacts analysis. Finally, the Scope must include cumulative impacts to air pollution and greenhouse gases from vehicular travel increases (including residents, deliveries, and their commercial activity the project will create) as well as the increases from additional energy production the Proposed Action, prior and reasonably expected future zoning changes will require (increased emissions from electricity generating plants, heating and cooling, and cooking gas).
C. Specific Analysis Areas Under the CEQR Manual
Zoning, Socioeconomic and Neighborhood Condition
All of the fallowing elements of zoning, socioeconomic activity and neighborhood character must be included in the analysis scope:
Urban design impact requires consideration of the degree to which a project would result in a change to the built environment’s arrangement, appearance, or functionality such that the change would negatively affect a pedestrian’s experience of the area, a disclosure concept that overlaps with displacement and other adverse impacts discussed throughout these comments. Building luxury development in a low to moderate income community of color will have multiple negative effects, and the DSOW especially must be clear on the types, amounts, and sizing of the unsegmented development will be.
Neighborhood Character: Neighborhood character is an amalgam of various elements that give neighborhoods their distinct "personality.” These elements may include a neighborhood’s land use, urban design, visual resources, historic resources, socioeconomics, traffic, and/or noise. CEQR Manual Chapter 21, Section 210 requirement for a baseline Neighborhood Character assessment is appropriate since the Proposed Project will adversely impact the multiple categories listed.
In order to determine the negative effects luxury developments will have on the community it would be imperative that a detailed list of all apartments, their sizes, and prices proposed under all “affordable” categories by the developer be disclosed in the analysis, along with an in-depth analysis of what the existing AMI of the current community (Crown Heights South) based upon the 2010 census, and not the entire district of Councilwoman Laurie Cumbo. This is crucial because right next door to Crown Height South is a whiter and wealthier community and their income levels should not be included in the Crown Height South data, especially since they are more than a quarter a mile away from the rezoning area.
Community Facilities and Services: The proposed actions would exceed the threshold for introducing 50 public elementary or intermediate or 150 high school students. According to the Draft Scope of Work, based on the improper segmentation of the project regarding zoning lots, inaccurate FAR application, and lack of cumulative impacts analysis among all projects affecting the area community services, the Proponent is not planning on conducting a Student Population assessment. The DSOW must be revised to include: 1) an accurate assess the number of residential units (per the segmentation and cumulative impact comments contained herein), and 20 proper estimates of Student Population enrollment impact as required by CEQR.
In addition, the Proposed Action will enable Large Scale Development along an open Train Line. There project scale (especially after segmentation is eliminated) proposed by the developer will affect the MTA Shuttle line. The Proposed Project site adjoins an open train line, separated by a retaining wall. The height of the five proposed building rang from 483 ft. to unknown levels, ad will create a tremendous vertical force in excess of the allowable levels from a 90ft building under currently applicable standards (a 400% increase). The foundation of the development has to be strong enough to support the weight of the building which will have an impact on the retaining wall adjacent to the MTA tracks. The DSOW would be revised to include the following additional analyses:
The differential results will properly disclose accurate financial information on costs to protect the shuttle and prevent use of “after-the-fact” hardship variances to secure developable building area not otherwise approved by due process of law. 21
Parking: The DSOW must specifically assess the effects of additional cars when building over 1500 new residential units while parking spaces are reduced from 463 to 180 on street congestions, traffic, curb availability, deliveries, and other baseline conditions currently in the neighborhood character and flow.
Shadow Analysis
The DSOW states that proposed actions would facilitate the development of a new structure that exceeds 50-feet when compared to existing conditions. Shadows cast by the proposed buildings could affect sunlight sensitive resources in the study area. The required shadows assessment must include the following key elements:
Wastewater Treatment/Drainage Basin/Clean Water Act Compliance
The proposed 1,178 dwelling units of the 960 Franklin Rezoning is more than double the 400 unit threshold for assessment of wastewater and stormwater conveyance systems in the EIS to identify possible significant adverse impacts, including compliance interference with State mandates necessary to meet water quality standards. Currently, New York City’s sewage system is operating under multiple administrative and consent orders dating back to 1992 for permit violations and combined sewer discharges (see Note 18 above) that detail violations in all areas of sewage system management: State Pollution Discharge Elimination standards, Combine Sewer Overflow controls, and sewer pipe backup elimination. All three issues apply to the area of Brooklyn in which this project and many more are looking to hook into this already overcapacity system.
The Water Distribution and Sewer System affected by the proposed 960 Franklin Rezoning encompasses infrastructure, pumping, flow, flow control, treatment, and discharge capacities of the Owl Head drainage basin served by the Owl’s Head Wastewater Treatment Plant (OHWWTP). The OHWWTP has been in operation since 1952, treating an average of 94 million gallons of wastewater per day (mgd) in dry weather in a plant designed to process up to 120 mgd.
NYC DEP operates 14 wastewater treatment plants (WWTPs) that receive wastewater flows from large, multi-neighborhood geographic areas within the City referred to as WWTP service areas (also referred to as drainage basins or sewer sheds) (see Map). New York City sewage pipes carry both sanitary sewage from buildings and stormwater (from rain and snow) in the same system of pipes and cache basins. In periods of dry weather, the dual system conveys sanitary sewage to treatment plants. During and after wet weather events, combined sewers must carry both loads, and to prevent treatment plant and street flooding, as well as to protect drainage areas and private property, structures known as regulators allow up to double the amount of dry weather
flow to reach the WWTP.
However, once the wet weather flow exceeds two times dry weather flows, it is diverted by the regulator to a Combined Sewer Overflow (CSO) and is dumped directly into the water surround the City without being treated.
Even a relatively small amount of storm water—one-twentieth of an inch of rainfall—can overwhelm aging and clogged system components and trigger CSO discharges. The New York State Department of Environmental Conservation (DEC) has identified CSOs as the single largest source of pathogens to the New York Harbor system, due to their contribution of fecal coliform. Besides the human waste, any oil, industrial waste or household garbage that happens to be on the street when a rainstorm begins are swept by the flowing street water into the CSO system as well. The toxic soup flows untreated out of pipes that feed directly into the waterways. The Proposed Project is one of dozens that will generate additional sewage treatment requirements in the Owls Head drainage area, and add to the treatment load of a near-capacity OHWWTP as well as non-compliant discharges from CSOs serving the Owls Head WWTP sewer-shed.
The DSOW states correctly cites the CEQR Technical Manual, requirements call for detailed analysis of sanitary or stormwater discharges from the Proposed Project that: could affect the capacity of portions of the existing sewer system; exacerbate combined sewer overflow (CSO) volumes/frequencies; or contribute greater stormwater pollutant loadings to receiving water bodies. 24 Section 420.1 of Chapter 13 (Wastewater Treatment Plants and Collection Facilities) of the Technical Manual recognizes that significant impacts on WWTPs, interceptors, regulators, and pumping stations may occur if the project would result in:
Modifications to the 2005 CSO Consent Order agreed in 2011 included fixed dates for submittal of Long-Term Control Plans (LTCP) on the treatment plants to reach water quality standards, to include an LTCP for OHWWTP. In addition, Coney Island Creek, which receives OHWWTP sewer shed CSO discharges, is included on New York State’s List of Integrated Report (IR) Category 4a/b/c Waters - May 2018. 25
Therefore, under section 420.1, the Draft Scope of Work must provide detailed analysis of the Proposed Project’s direct and cumulative effects on the OHWTP drainage area, discharges and combined sewer overflow into the Coney Island Creek and the East River from the Owls Head WWTP drainage area, and sewer backup issues.
The DSOW should evaluate whether a “Hookup Moratorium” is appropriate for the area pending execution of the 2016 Long Term Control Plan for the OHWWTP, and full compliance with the Consent and Administrative Orders noted above. Ongoing violations of the Clean Water Act such as those occurring now have resulted in serious consideration of a “hookup moratorium” in the past, a situation that may be again applicable given the overwhelming volumes of development added to the OHWWTP Drainage Area as well as the millions of additional square feet currently under construction, permitted, or planned in an area draining to an impaired water.
Noise
The DSOW states the proposed actions could have the potential to result in mobile and stationary sources of noise and introduce new sensitive receptors. The CEQR Technical Manual identifies noise-sensitive locations called “receptors” as generally the subject of most noise impact analyses, and defines receptors as “an area where human activity may be adversely affected when noise levels exceed predefined thresholds of acceptability or when noise levels increase by an amount exceeding predefined thresholds of change.” 26 The Manual states that receptors may be indoors or outdoors, the former including residences, health care facilities, nursing homes, schools, houses of worship, court houses, public meeting facilities, museums, libraries, and theaters; the latter include, but are not limited to, parks, outdoor theaters, golf courses, zoos, campgrounds, and beaches. It is already a foregone conclusion that the community will have a tremendous increase in noise to key receptors that must be analyzed in the DSOW:
Solid Waste and Sanitation Services
This category of impact analysis was improperly left out of the DSOW. New York City’s 8 million residents and millions of businesses, construction projects and non-resident employees generate 14 million tons of waste and recyclables per year. This amount is so vast that waste is handled by two separate systems — private, fee-based firms collect from commercial entities while the New York City Department of Sanitation (DSNY) serves residential buildings, government agencies and many nonprofit organizations. Of the 3.8 million tons of solid waste that DSNY collects annually, 14% is recycled, 76% is sent to landfills and 10% is converted to energy at a waste-to-energy facility.
DSNY has been building a network of four new marine transfer stations in Queens, Manhattan and two in Brooklyn to dramatically reduce the distance trucks travel in collecting refuse, and shifting the city toward an entirely barge- and rail-based system in transporting waste toward its final destination.
These transfer stations are critical as waste going to landfills often travels long distances to states like Pennsylvania, Ohio, Virginia and South Carolina. The capacity of these transfer stations has been capped under Local Law 152, which in turn caps the amount of refuse that can actually be processed once collected. New development in the Proposed Action area since the Local Law was passed is continuing, and with it increasing and cumulative demand for solid waste handling capacity from DSNY and private haulers that creates increasing and cumulative impacts.
Therefore, the evaluation of solid waste must assess and disclose the following factors affecting solid waste management in the 960 Franklin Avenue geographic waste-shed in the wake of Local Law 152 (N.Y.C. Admin. Code §28 – 318.1):
Natural Resources
This category of impact analysis was improperly left out of the DSOW. Although the BBG Parklands contain “improved areas,” in conjunction with Prospect Park it provides permanent and migratory habitat to over 170 bird species who migrate to and through this greenspace every year. The DSOW must evaluate whether impacts from the Proposed rezoning action are significant in light of several categories of natural asset value listed in the CEQ Technical Manual:
In addition, State and Federal impact analysis requirements (which also apply here for reasons detailed throughout these comments) require analysis of whether the Proposed Action will harm or destroy plant life on which migratory birds feed, harm or destroy habitat, and cause flight death. 28 BBG experts indicated during the Scoping Hearing on March 12 that if this development is approved over half of their plant life will be gone within 10 years and causing ripple effects through the surrounding areas. Therefore, full analysis to include affected species, use levels, and interactive impacts from glare and other building features noted herein is required.
III. Summary
The addition of a non-contextual, out-of-scale tower project to the affordable, working family neighborhood of Crown Heights will create not only environment, socioeconomic, and gentrification impacts to the people and parklands of this neighborhood, but is likely to add cumulative loading to the built and natural infrastructure systems of the area sufficient to interfere with the compliance schedule for the City of New York to meet statutory requirements it had violated for decades. MTOPP urges the City to appoint the proper lead agency, confirm obvious cumulative impacts, develop workable alternatives that meet the current zoning limitations, and abandon any plan for Tower construction that will take irreplaceable assets from the Brooklyn Botanic Gardens.
Thank you for the opportunity to submit these comments and participate in the EIS process.
Very truly yours,
for
MTOPP
Movement To Protect People
cc: Senator Charles Schumer
Senator Kirsten Gillibrand
US Department of Housing and Urban Development
NYS Department of Homes and Community Renewal
NYC Department of Housing Preservation and Development
US Environmental Protection Agency Region 2
NYS Department of Environmental Conservation
NYC Department of Environmental Protection
New York State Comptroller Thomas DiNapoli
Mayor Bill De Blasio
New York City Comptroller Scott Stringer
Public Advocate Jumaane Williams
State Senator Kevin Parker
State Senator Zellnor Myrie
State Assemblyperson Walter Mosley
City Council Speaker Corey Johnson
City Council Member Inez Barron
City Council Member Laurie Cumbo
Brooklyn Borough President Eric Adams
NYC Mayor’s Office of Environmental Coordination
1. Notice of Lead Agency Determination and Review, CEQR Number 19 DCP095K (letter to Hillary Semel, Mayors Office of Environmental Coordination from Marissa Lago, Director of Department of City Planning), February 8, 2019.
3. 24 CFR §58.1 Purpose and applicability.
(a) Purpose. This part provides instructions and guidance to recipients of HUD assistance and other responsible entities for conducting an environmental review for a particular project or activity and for obtaining approval of a Request for Release of Funds.
(b) Applicability. This part applies to activities and projects where specific statutory authority exists for recipients or other responsible entities to assume environmental responsibilities.
5. In a recent report to the New York City Council, HPD confirmed that only about $105 million, or 10 percent of HPD’s Fiscal 2019 budget is comprised of City tax-levy funds. The second largest funding category, Community Development Block Grants (CDBG), are federally sourced, and together with the Federal Rental Assistance (Section 8 program) make up 86 percent of the agency’s budget for Fiscal 2019. Report to the Committee on Finance and the Committee on Housing and Buildings on the Fiscal 2019 Executive Budget for the Department of Housing Preservation and Development, May 14, 2018, p. 3.
6. 42 U.S. Code § 5304(g) (1) In order to assure that the policies of the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.] and other provisions of law which further the purposes of such Act (as specified in regulations issued by the Secretary) are most effectively implemented in connection with the expenditure of funds under this chapter, and to assure to the public undiminished protection of the environment, the Secretary, in lieu of the environmental protection procedures otherwise applicable, may under regulations provide for the release of funds for particular projects to recipients of assistance under this chapter who assume all of the responsibilities for environmental review, decision-making, and action pursuant to such Act, and such other provisions of law as the regulations of the Secretary specify, that would apply to the Secretary were he to undertake such projects as Federal projects. The Secretary shall issue regulations to carry out this subsection only after consultation with the Council on Environmental Quality.
(2) The Secretary shall approve the release of funds for projects subject to the procedures authorized by this subsection only if, at least fifteen days prior to such approval and prior to any commitment of funds to such projects other than for purposes authorized by section 5305(a)(12) of this title or for environmental studies, the recipient of assistance under this chapter has submitted to the Secretary a request for such release accompanied by a certification which meets the requirements of paragraph (3). The Secretary’s approval of any such certification shall be deemed to satisfy his responsibilities under the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.] and such other provisions of law as the regulations of the Secretary specify insofar as those responsibilities relate to the releases of funds for projects to be carried out pursuant thereto which are covered by such certification.
8. According to the NEPA (40 CFR 1500-1508) and Part 58, the responsible entity is required to ensure that environmental information is available before decisions are made and before actions are taken. In order to achieve this objective, Part 58 prohibits the commitment or expenditure of CDBG funds until the environmental review process has been completed and, if required, the state receives a release of funds.
– States and UGLG may not spend either public or private funds (CDBG, other Federal or non-Federal funds), or execute a legally binding agreement for property acquisition, rehabilitation, conversion, repair or construction pertaining to a specific site until environmental clearance has been achieved.
– States and UGLG must avoid any and all actions that would preclude the selection of alternative choices before a final decision is made — that decision being based upon an understanding of the environmental consequences and actions that can protect, restore and enhance the human environment (i.e., the natural, physical, social and economic environment).
– Activities that have physical impacts or which limit the choice of alternatives cannot be undertaken, even with the state or other project participant’s own funds, prior to obtaining environmental clearance.
11. The State Office of Parks, Recreation and Historic Preservation specifies in its rules that airspace is under the jurisdiction, custody and control of park management. See, Office of Parks, Recreation and Historic Preservation Regulations 9 NYCRR Title 9, Subtitle I, Chapter 1, Subchapter A, Section 371.3. Territorial application: The provisions of this Chapter shall be effective within, upon and in the airspace above all property that is presently or shall in the future be under the jurisdiction, custody or control of the office unless otherwise provided.
12. For example, the sale of air and light capacity from the Hudson River Park to nearby development projects required a 2013 amendment by the State legislature to the Hudson River Park Act of 1998.
14. Computational Fluid Dynamics (CFD) is now commonly used to address the angle and intensity of reflected sunlight from a building's facade. CFD simulations can determine whether reflected glare will present problems for motorists, pedestrians and adjacent buildings, but in the case of parks and open space, such calculations also disclose the glare absorption (like shadow absorption) that constitutes unauthorized use of park airspace and acreage assets. Current technology and analysis systems can simulate glare along with shadows through a solar year, identifying potential number of days, hours, and even minutes within an identified day that solar reflections, shadowing and glare intensity occur, thereby fully disclosing any evidence of non-authorized park asset use, along with plant harm or destruction and visitor discomfort.
15. 24 CFR §100.500 Discriminatory effect prohibited.
Liability may be established under the Fair Housing Act based on a practice's discriminatory effect, as defined in paragraph (a) of this section, even if the practice was not motivated by a discriminatory intent. The practice may still be lawful if supported by a legally sufficient justification, as defined in paragraph (b) of this section. The burdens of proof for establishing a violation under this subpart are set forth in paragraph (c) of this section.
(a)Discriminatory effect. A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.
17. See Develop Don’t Destroy (Brooklyn), Inc. v. Empire State Dev. Corp., 94 A.D.3d 508, 511, 942 N.Y.S.2d 477, 480 (1st Dep’t 2012)
20. The SEQRA Handbook, Div. of Envtl. Permits, N.Y. State Department of Envtl. Conservation (3d ed. 2010) at 83.
21. The NYS Department of Environmental Conservation and New York City have entered into CSO-related Orders on Consent starting June 26,1992 (Case No. R2-3351-90-12) ("the 1992 Order"), followed by modifications on September 19,1996 (Case No. R2-3351-90-12) ("the 1996 Order"), January 14,2005 (Case No. C02-20000107-8) ("the 2005 Order"), April 14,2008 ("the 2008 Order"), and September 3, 2009 ("the 2009 Order"). The 2005 Order was issued to address numerous violations of the 1992 and 1996 Orders, and to require the implementation of projects and facility plans culminating in CSO Long-Term Control Plans. The 2005 Order superseded the 1992 and 1996 Orders and was twice modified by the 2008 and 2009 Orders. New York City is also under a 2014 CSO BMP Order on Consent, DEC File No. R2-20140203-112 (April 25, 2014), and a USEPA Adminsintrateive Compliance Order, CWA-02-2016-3012 (August 31, 2016) for sewer backups (This order notes that New York City has made progress in responding to complaints in recent years, but it does not have a comprehensive plan to prevent and further reduce the number of sewer backups) including in areas where development continues at a gallop).
22. Under the New York City Board and Standard and Appeal rules, an owner may seek a hardship variance within the MIH parameters and forgo their “required” affordable units if some unforeseeable expense will be incurred by the developer. Undisclosed engineering costs could be later used as a “back-door” method of adding unauthorized FAR and residences to the legally allowable and acceptable building envelop approved in the zoning action.
23. “The building envelope depicting the worst case scenario must include the maximum allowed floor area, all rooftop mechanical equipment, parapets and any other parts of the building.”
24. The undesirable designation of “death-ray building” has a basis in history. Archimedes used an array of mirrors to set adversaries’ warships on fire during the Siege of Syracuse (214–212 BC). This piece of weaponry has been known as “the Death Ray” ever since. Today’s death rays emit from tall glazed buildings earning them the nickname “fryscrapers.”
25. Chapter 13, section 330 specifies that “more detailed assessment may be required if increased sanitary or stormwater discharges from the Proposed Project are predicted to affect the capacity of portions of the existing sewer system, exacerbate combined sewer overflow (CSO) volumes/frequencies, or contribute greater pollutant loadings in stormwater discharged to receiving water bodies.”
26. As part of Clean Water Act requirements for periodic assessments of water quality, Section 303(d) of the Act requires states to identify “Impaired Waters” where specific designated uses are not fully supported, and for which the state must consider the development of a Total Maximum Daily Load (TMDL) or other strategy to reduce the input of the specific pollutant(s) that restrict waterbody uses in order to restore and protect such uses. The waters detailed on the IR list are impaired, but are excluded from the Clean Water Act 303(d) List because TMDL cap on pollution discharges is not required because an alternative plan is in place (IR Category 4b), or the impairment is due to pollution, not a pollutant (IR Category 4c).
28. Based upon the preliminary drawings it is clear that a reflective glass will be used on the outer surface of these large buildings. It is a proven fact that reflective glass causes “bird death” because they will either see themselves in the glass, the green of the Prospect Park and Botanic Garden or the sky. All of these images will cause them to simply crash right into these structures, causing instant death.