Opposition Brief — Wilder v. New York State Urban Development Corp.
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JOSEPH F. SPANIOL, JR.
CLERK
—_—
STEPHEN F. WILDER, BRENDAN GILL, IMRE J. ROSENTHAL,
STEPHEN ROSENTHAL, ROBERT NEUWIRTH, LORI JEAN SAIGH,
and the WHITBY TENANTS’ ASSOCIATION,
Petitioners,
Vv
LEE M. THOMAS, as Administrator of the United States Environmental
Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY; REGION II of the UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; NEW YORK STATE URBAN DEVELOP-
MENT CORPORATION; VINCENT TESE, as Chairman of the New York
State Urban Development Corporation; TIMES SQUARE REDEVELOP-
MENT CORPORATION; ROBERT M. HALL, as President of the Times
Square Redevelopment ; NEW YORK STATE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION; HENRY G. WILLIAMS, as
Commissioner of the New York State Department of Environmental Con-
servation, DEPARTMENT OF ENVIRONMENTAL PROTECTION OF
THE CITY OF NEW YORK; HARVEY W. SCHULTZ, as Commissioner
of the Department of Environmental Protection of the City of New York;
MARIO M. CUOMO, as Governor of the State of New York; and
EDWARD I. KOCH, as Mayor of the City of New York,
Respondents.
RESPONDENTS’ BRIEF IN OPPOSITION TO A PETITION
FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
a
Berue, Kass & CASE
Attorneys for Respondent New York
State Urban Development Corporation
45 Rockefeller Plaza
New York, New York 10111
(212) 765-1800
Of Counsel:
New York STATE URBAN STEPHEN L. Kass*
DEVELOPMENT CorPORATION JEAN M. McCarro.i
Gaz S. Port DesoraAH GOLDBERG
JoserpH C. PETILLO *Counsel of Record
(For further appearances see inside cover) \
Hon. RospertT ABRAMS
Attorney General of the
State of New York
Attorney for the New York
State Respondents
120 Broadway
New York, New York 10271
(212) 341-2478
Of Counsel:
O. Peter SHERWOOD
Solicitor General
JouN ProuprFit*
C. MICHAEL BrYCE
Assistant Attorneys General
PeTer L. ZIMROTH
Corporation Counsel of the
City of New York
Attorney for the New York
City Respondents
100 Church Street
New York, New York 10007
(212) 566-4330
Of Counsel:
LEONARD KOERNER*
Fay L&oussis
*Counsel of Record
i
ie
Statement Pursuant to Rule 28.1
A. New York State Urban Development
Corporation
Non-Wholly owned subsidiaries:
1. Apollo Theatre Redevelopment
Corporation -
Parent Companies: New York State
Urban Development Corporation
and Harlem Urban Development
Corporation.
2. New York Convention Center
Development Corporation -
Parent Companies: New York
State Urban Development Corpora-
tion and Triborough Bridge and
Tunnel Authority.
3. New York State Mortgage Loan
Enforcement and Administration
Corporation -
Parent Companies: New York State
Urban Development Corporation
and New York State Project
Finance Agency.
B. Times Square Redevelopment
Corporation
Parent Company: New York State
Urban Development Corporation (Note:
the Times Square Redevelopment
Corporation was dissolved on
September 29, 1986).
ii
TAB OF CONTENTS
Statement Pursuant to Rule 28.1. .
Table Of Authorities . «.<«-«4s+s -s
STATEMENT OF THE CASE. ..... .-
A. Environmental Review and
Approval of the Project... .
B. State Court Proceedings ....
C. Federal District Court
Proo~egimege « 2 eo ts te we ttl
D. The Second Circuit's
ES ee ee eee ee
REASONS FOR DENYING THE WRIT... .
POINT I: THIS CASE IS FACT-
BOUND AND RAISES NO
GENERAL POINT OF LAW. .
POINT II: THE DECISION IN
THIS CASE DOES NOT
CONFLICT WITH DECISIONS
IN OTHER FEDERAL
CIRCUIT COURTS. ... .
POINT III: THE DECISION IS NOT
INCONSISTENT WITH
DECISIONS OR POLICIES
OF THIS COURT .... .
CONCLUSION . . . « « « «© « «© © @ «@
25
32
36
42
iii
A OF AUTHORITIES
Cases: Page
Action for Rational
Transit v. West Side
Highway Project,
669 F.2d 614
(OR Gees Bes ss ct tt ts sl ELE
Baltimore Gas &
2 j - Vv. Natural
Resources Defense
Council, 462 U.S. 87
PT Ce ame Veg |g? 39
Broadway Plus and
Rosenthal & Rosenthal,
Inc. v. Metropolitan
Transportation Authority
of the State of New York,
No. 1447/89 (Sup. Ct. N.Y.
Cty. filed
January 20, 1969). « « « « « 12n
Council of Commuter
Organizations v.
Metropolitan
Transportation
Authority, 683 F.2d 663
(a6 Gane BOR) «+ s « » 34, AS, 16
G&A Books, Inc. v.
Stern, 604 F. Supp.
898 (S.D.N.Y. 1985),
aff'd, 770 F.2d 288
(2d Cir.), cert. denied,
106 S. Ct. 1195 (1986) ... 5n
iv
Jack Vv. W
State Urban Development
Corporation, 110 A.D.2d
304, 494 N.Y.S.2d
700 (1st Dep't 1985),
aff'd, 67 N.Y.2d 400,
494 N.E.2d 429,
503 N.Y.S.2d 298 (1980). . . passim
Kleppe v. Sierra Club,
427 U.8. BOW C3976). 2 6 os 38
Kremer _v. Chemical
Construction Corp.,
456 U.S. 461 (1982). . . 36, 37, 39
League to Save Lake
Vv. ounday,
598 F.2d 1164 (9th Cir.),
cert. denied, 444
O.B. Gen taverns «<6 6 8s 15
New York v. Kleppe, 427 U.S.
SST LEE iy ee ee, 39
Rose Vv ew
Stat ban Development
Corp., No. 3020/85
(Sup. Ct. N.Y. Cty.
June 25, 1985), aff'd
in part and modified
in part sub nom. Jackson
v. New York State
Urban Development Corp.,
110 A.D.2d 304,
494 N.Y.S.2d
700 (list Dep't 1985),
aff'd, 67 N.Y.2d 400,
494 N.E.2d 429,
503 N.Y.S.2d 298 (1986). . . 9n, 13
Rosenthal & Rosenthal,
Inc. v. New York State
t a
605 F. Supp. 612 (S.D.N.Y.),
aff'd, 771 F.2d 44 (2d Cir.
1985), cert. denied, 106 Ss.
GG. 1866 (3906). «2 0 tw 5n
Schw Vv.
Administrator of Bronx,
24 N.Y.2d 65, 246
N.E.2d 725, 298 N.Y.S.2d
a 18
Suburban O'Hare Comm'n
v. Dole, 787 F.2d 186
(7th Cir.), cert. denied,
1 2 SS. Se” tl ae 15
Wilder v. Thomas,
654 F. Supp. 1500
(S.D.N.Y. 1987),
aff'd, 854 F.2d 605
[oe Gab. BOOS) «ce eo ts es 6 6
vi
Statutes and Regulations:
Clean Air Act,
42 U.S.C. §§ 7401
Se ee a eal
40 Code of Federal
Regulations § 50.8 (1988). . 8n
New York State Air Quality
Implementation Plan for
Control of Carbon Monoxide
and Hydrocarbons in New
York City Metropolitan
ee ee a el
New York State
Environmental Quality
Review Act, N.Y. Envtl.
Conserv. Law §§ 8-0101
et seq. (McKinney 1984
& Supp. 1988)... .... . passim
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1988
No. 88-1103
STEPHEN F. WILDER, BRENDAN GILL, IMRE
J. ROSENTHAL, STEPHEN ROSENTHAL, ROBERT
NEUWIRTH, LORI JEAN SAIGH, and the
WHITBY TENANTS' ASSOCIATION,
Petitioners,
Vv.
LEE M. THOMAS, as Administrator of the
United States Environmental Protection
Agency; UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; REGION II of the
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY; NEW YORK STATE URBAN DEVELOPMENT
CORPORATION; TIMES SQUARE REDEVELOPMENT
CORPORATION; ROBERT M. HALL, as President
of the Times Square Redevelopment Cor-
poration; NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION; HENRY G.
WILLIAMS, as Commissioner of the New
York State Department of Environmental
Conservation; DEPARTMENT OF ENVIRONMENTAL
PROTECTION OF THE CITY OF NEW YORK;
HARVEY W. SCHULTZ, as Commissioner of
the Department of Environmental Protec-
tion of the City of New York; MARIO M.
CUOMO, as Governor of the State of New
York; and EDWARD I. KOCH, as Mayor of
the City of New York,
Respondents.
RESPONDENTS' BRIEF IN OPPOSITION
TO A PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
STATEMENT OF THE CASE
This brief is submitted on behalf
of the New York State Urban Development
Corporation, the Times Square Redevelop-
ment Corporation, and Robert M. Hall
(collectively, "UDC"); all other New
York State respondents; and the New York
City respondents (collectively, the
"respondents") in opposition to the
petition of Stephen F. Wilder et al.
(the "petitioners") for a writ of cer-
tiorari to the United States Court of
Appeals for the Second Circuit (the
"Petition"). The petitioners seek
review of the portion of the Second
Circuit's opinion and judgment in Wilder
v. Thomas, 854 F.2d 605 (2d Cir. 1988)
(PA 1-30)1, that precluded them from
relitigating under the Clean Air Act
(the "CAA"), 42 U.S.C. §§ 7401 et seg.,
issues that had already been fully and
fairly addressed in state administrative
proceedings pursuant to New York's
State Environmental Quality Review Act
("SEQRA"), N.Y. Envtl. Conserv. L.
§§ 8-0101 et seq., and three levels of
state court review.
In the only part of the decision
contested by the petitioners, the Second
lupa _" identifies citations to
the Appendix attached to the Petition.
"RA" refers to the Appendix submitted
by the respondents and attached to this
brief. The corresponding pages of the
Joint Appendix submitted to the Second
Circuit in this case are identified by
"(JA __}" in the respondents' Appendix.
Circuit merely applied New York's es-
tablished doctrine of collateral estoppel
to the specific facts of this case to
dispose of three of the petitioners'
six claims. The holding of the case is
therefore narrowly confined to the
facts presented below. Because the
Second Circuit's opinion presents no
conflict with either the decisions and
policies of this Court or decisions of
other federal courts of appeals, this
Court should deny the petition for a
writ of certiorari.
A. Environmental Review and
Approval of the Project
This case is one of 41 lawsuits that
"seek to forestall construction of the
proposed 42nd Street Development Project
("the [P]roject") in New York City."
Wilder v. Thomas, 854 F.2d at 607
(PA 1-2).2 The Project, a joint effort
by UDC and the City of New York, includes
construction of four major office build-
ings, a hotel, a wholesale mart, res-
taurants, retail spaces, and ancillary
parking facilities; renovation of eight
historic theaters; and modernization of
the Times Square subway station. The
goals of the Project are to eliminate
the blight, physical decay, and crime
that characterize West 42nd Street and
to restore the area as an economically
2Every lawsuit decided to date has
either been dismissed or resolved in
favor of the Project. In two prior
cases decided by the Second Circuit,
the plaintiffs (including some of the
petitioners in this action) also sought
review by this Court. In both instances,
the petitions for writs of certiorari
were denied. See Rosenthal & Rosenthal
v. New York State Urban Development
Corp., 605 F. Supp. 612 (S.D.N.Y.),
aff'd, 771 F.2d 44 (2d Cir. 1985),
cert. denied, 475 U.S. 1018 (1986); G&A
Books, Inc. v. Stern, 604 F. Supp. 898
(S.D.N.Y. 1985), aff'd, 770 F.2d 288
(2d Cir.), cert. denied, 475 U.S. 1015
(1986).
productive entertainment and commercial
center. See Jackson v. New York State
Urban Development Corporation, 67 N.Y.2d
400, 411-12, 494 N.E.2d 429, 503 N.Y.S.2d
298, 301-02 (1986).
Before approving the Project, UDC
was required to comply with several New
York statutes, including SEQRA. Pursuant
to SEQRA, UDC issued a draft environmen-
tal impact statement ("DEIS") in February
1984. Thereafter, extensive public
hearings were conducted, and written
comments on the DEIS were received and
reviewed. See Jackson, 67 N.Y.2d at
412, 494 N.E.2d 429, 503 N.Y.S.2d at
302. Based on these 240 written and oral
public submissions, UDC revised the
Project's overall environmental analysis
and issued a final environmental impact
statement ("FEIS") containing more than
1,000 pages of text, tables, figures,
and {liustrations. See id. Although
not required by SEQRA to do so, UDC
solicited written comments on the FEIS
as well. See id.
The FEIS focused heavily on the
Project's traffic and air quality im-
pacts. In particular, it described in
detail the methodology employed in
predicting impacts of the Project on
carbon monoxide concentrations in the
Project area. UDC assumed "worst case"
traffic and air quality conditions for
this analysis, which was carried out
for two separate parking scenarios (one
with 320 parking spaces in the Project
and the other with 920 spaces). See
RA 23. In carrying out this air quality
analysis, UDC compared the Project's
anticipated "worst case" impacts both
against expected carbon monoxide con-
centrations in the absence of the Project
and against the national ambient air
quality standards ("NAAQS") for carbon
monoxide established by the federal
Environmental Protection Agency ("EPA")
pursuant to the CAA.3 The FEIS concluded
that, provided UDC approved an extensive
series of transportation-related measures
designed to mitigate traffic and air
quality impacts of the Project, the
Project with 320 parking spaces would
not cause any violation of the 9 ppm
NAAQS for carbon monoxide. See RA 2-3,
5-10.
UDC's Directors, to whom the FEIS
and the comments thereon were submitted
for review, incorporated the recommended
3For the purposes of this dispute,
the relevant NAAQS for carbon monoxide,
as established by EPA, is nine parts per
million (9 ppm) over an eight-hour
period. See 40 C.F.R. § 50.8(a) (1)
(1988). An additional standard, which
the Project also met, is 35 ppm for a
one-hour period. See id. at
§ 50.8(a) (2).
transportation-related mitigation
measures into the Project. See Wilder
v. Thomas, 854 F.2d at 611 (PA 9).
They then specifically found that, with
such mitigation measures, the completed
Project would cause no violations cf
the 9 ppm NAAQS for carbon monoxide. 4
4after issuance of the FEIS, but
before Project approval, UDC added 25
more parking spaces under the wholesale
mart included in the Project. See RA
22. Before incorporating this change
into the Project, however, UDC con-
ducted a detailed Environmental Assess-
ment and determined that the inclusion
of 25 additional parking spaces would
have no significant impacts on traffic
or air quality and would continue to
satisfy the 9 ppm NAAQS for carbon
monoxide. As explained further below,
the inclusion of these additional 25
parking spaces was also fully litigated
through three tiers of state courts in
a lawsuit challenging the adequacy of
UDC's traffic and air quality analysis
and its mitigation measures. See Rosen-
thal _v. New York State Urban Development
Corp., No. 3020/85 (Sup. Ct. N.Y. Cty.
June 25, 1985), aff'd in part and
modified in part sub nom. Jackson v. New
York State Urban Development Corp., 110
A.D.2d 304, 494 N.Y.S.2d 700 (1st Dep't
1985), aff'd, 67 N.Y¥.2d 400, 494 N.E.2d
429, 503 N.Y¥.S.2d 298 (1986).
10
See PA 108. On October 4, 1984, after
making this and other detailed environ-
mental findings, UDC's Directors approved
the Project.> See Wilder v. Thomas,
854 F.2d at 610 (PA 8).
The New York City Board of Estimate
then conducted public hearings on the
Project, and on November 9, 1984, also
approved the Project. See id. at 611
(PA 10). In its resolution of approval,
the Board of Estimate expressly concurred
in and adopted UDC's environmental
“The petitioners' statement of the
facts materially misrepresents the
Project's air quality impacts (as indis-
putably disclosed in the FEIS), and, as
a result, the issues before the courts
below. As the petitioners' counsel
knows, the 9.3 ppm carbon monoxide
concentration referred to on page 7 of
the Petition is for the Project with
920 parking spaces, which was not adopted
by UDC's Directors. By contrast, the
Project that was approved (with 345
parking spaces) was found to satisfy
the 9 ppm standard. See RA 2-3. Even
during construction, there is no longer
any possibility of the Project's exceed-
ing the NAAQS. See id. at 3-4.
~ ~ eolraiil
11
findings, including the finding that
with the mitigation measures identified
in the FEIS, the NAAQS for carbon
monoxide would not be violated by the
approved Project.© See id.
B. State Court Proceedings
After approval of the Project,
various of the petitioners in this case,
their corporate entities, or their
counsel brought 13 separate lawsuits in
connection with the Project.’ In par-
6The petitioners do not, because
they cannot, cite any authority for
their false claim that the New York City
Department of Environmental Protection
("DEP"), which also reviewed the
Project's FEIS, found that violations of
the NAAQS would persist after comple-
tion of the Project, even with mitigation
measures. See Petition, at 7-8. DEP
in fact found that the Project would
meet the NAAQS even during its construc-
tion period. See RA 13-19.
7These suits, in addition to the
SEQRA proceeding discussed below, in-
clude: seven state court proceedings
pursuant to SEQRA, New York's Eminent
Domain Procedure Law, the New York
(continued...)
12
ticular, they commenced a state court
proceeding challenging UDC's approval
of the Project on the grounds that it
violated SEQRA. The principal SEQRA
claim was a challenge to the adequacy
of the FEIS traffic and air quality
analysis and related mitigation measures,
including an allegation that the FEIS
analysis was wrong in concluding that
the Project would not cause violations
of the 9 ppm NAAQS for carbon monoxide.
7(...continued)
State Urban Development Corporation
Act, or New York City's Uniform Land
Use Review Procedure; five state court
proceedings seeking production of docu-
ments pursuant to New York's Freedom of
Information Law; and a federal court
action alleging a violation of the
United States Constitution. A 14th suit,
challenging the Project's subway improve-
ments, was filed just two weeks ago. See
Broadway Plus Corp. an osenthal &
Rosentha a etro j ranspor-
tation Authority of the State of New
York, et al., No. 1447/89 (Sup. Ct.
N.Y. Cty. filed January 20, 1989).
13
After extensive briefing and oral
argument, the New York State Supreme
Court dismissed all the traffic and air
quality claims and remanded two non-
traffic claims to the agency. On cross-
appeals, a unanimous panel of the Appel-
late Division, First Department, specifi-
cally upheld the FEIS traffic and air
quality analysis, and dismissed the
entire lawsuit. That dismissal was
then unanimously affirmed, in a lengthy
opinion, by the New York State Court of
Appeals. See Jackson, supra, aff'g 110
A.D.2d 304, 494 N.Y¥.S.2d 700 (1st Dep't
1985), aff'g in part and modifying in
part Rosenthal v. New York State Urban
Development Corp., No. 3020/85 (Sup.
Ct. N.Y. Cty. June 25, 1985).
CG. Federal District Court Proceedings
The day after the Appellate Division
dismissed this SEQRA challenge, the
14
petitioners filed their first complaint
in this action. That complaint alleged
that the Project would cause violations
of the NAAQS for carbon monoxide or
would interfere with reasonable further
progress in achieving ay pn with
the NAAQS. The respondents moved to
dismiss the complaint on the basis of
res judicata and collateral estoppel,
as well as the well established rule
barring CAA citizen suits alleging
direct violations of the NAAQS. The
respondents pointed out that a citizen
suit is permissible under the CAA only
if it alleges violations of an "emission
standard or limitation," 42 U.S.C.
§ 7604, such as "a specific strategy or
commitment" in the EPA-approved State
Implementation Plan ("SIP") adopted by
a state to achieve compliance with the
NAAQS. Council of Commuter Organizations
15
v. Metropolitan Transportation Authority,
683 F.2d 663 (2d Cir. 1982); see Suburban
O'Hare Comm'n v. Dole, 787 F.2d 186,
197-98 (7th Cir.), cert. denied, 107 S.
Ct. 169 (1986); Action for Rational
Transit v. West Side Highway Project,
669 F.2d 614 (2d Cir. 1983); Leaque to
Save Lake Tanoe, Inc. v. Trounday, 598
F.2d 1164, 1173 (9th Cir.), cert. denied,
444 U.S. 943 (1979). Without reaching
the res judicata or collateral estoppel
issues, the district court (Griesa, J.)
dismissed the complaint, which it found
to be a "waste of [the court's] time,"
RA 12, for failure to allege any viola-
tion of New York's SIP. On its own
motion, the court gave the petitioners
leave to replead if they could allege
specific violations of the SIP at-
tributable to the Project.
16
The petitioners then submitted a
proposed amended complaint, purporting
to allege violations of the SIP resulting
from the Project. The district court
found that the proposed amended complaint
also failed to state a claim because
the supposed violations were: (1) really
alleged violations of the NAAQS, rather
than of the SIP, and thus were not judi-
cially cognizable; (2) not pleaded with
the specificity required by the Second
Circuit in Council of Commuter Organiza-
tions and Action for Rational Transit;
(3) in the case of the petitioners'
challenge to UDC's traffic mitigation
measures, already decided adversely to
the petitioners by the New York Court
of Appeals in Jackson; and (4) in the
case of reporting provisions allegedly
violated by the City and State respon-
dents (though not by UDC), not enforce-
17
able by means of a citizen suit. Having
twice failed to frame a legally suffi-
cient set of claims under the CAA, the
pevitiannice were denied permission to
file and serve the amended complaint.
The petitioners appealed that decision
to the Second Circuit.
D. The Second Circuit's Decision
The Second Circuit affirmed the
order of the district court. In affirn-
ing the denial of permission to file
the proposed amended complaint, the
Second Circuit held that: (1) the
petitioners' first claim merely restated
their improper challenge to compliance
with the NAAQS; (2) the third and sixth
claims alleged violations of requirements
not in fact imposed by the SIP; and
(3) the petitioners' second, fourth, and
fifth claims -- the only claims at
issue in this petition -- were barred
under the doctrine of collateral estop-
pel.8
The court correctly stated that
New York law imposed two requirements
for application of collateral estoppel:
first, "there must be an identity of
issue which has necessarily been decided
in the prior action and is decisive of
the present action, and, second, there
must have been a full and fair oppor-
tunity to contest the decision now said
to be controlling." Wilder v. Thomas,
854 F.2d at 617 (PA 20-21) (quoting
Schwartz v. Public Administrator of the
County of Bronx, 24 N.Y.2d 65, 71, 246
N.E.2d 725, 729, 298 N.Y.S.2d 955, 960
(1969)). The court found that, on the
8the petitioners' request for a
rehearing of the entire case by the
Second Circuit was denied on September
7, 1988.
19
facts of this case, both iirenents ~~ _
were satisfied.
The court found the petitioners
were trying to relitigate the adequacy
of UDC's traffic nitigation measures --
the very issue they had already litigated
in the state courts -- in the guise of
challenging alleged violations of the
SIP. The different standards contained
in SEQRA and the CAA did not preclude a
finding of identizy of issue in this
case because UDC (during its approval
process and in its FEIS) and the parties
(in their pleadings and arguments before
both the state ani federal courts) had
consistently looked to the NAAQS as the
standard that must be attained by the
Project. "Thus, even if UDC could have
applied a less stringent standard to
satisfy SEQRA's requirements, it did
not in fact do sco." Wilder v. Thomas,
854 F.2d at 619 (PA 25) (emphasis added).
Moreover, because both the parties and
the courts relied on the NAAQS in
evaluating UDC's compliance with SEQRA,
"the adequacy of the mitigation measures
under the CAA was, as a practical matter,
a necessary component in the state
court's decision." Id. at 620 (PA 26).
The Second Circuit also found that
the petitioners had a full and fair
opportunity to litigate the adequacy of
the mitigation measures. The court
noted initially that, even if the issue
had first been raised in federal court
pursuant to the CAA, review of the
sufficiency of the mitigation measures
would have been identical to that under-
taken by the state courts. This was so
because the SIP itself had designated
the SEQRA EIS process as the primary
mechanism by which New York was to
21
evaluate the air quality impacts of
individual projects and because the
standards for review of agency deter-
minations in New York State and in the
federal courts are essentially the
same. Id. at 619 (PA 25). Thus, the
petitioners received the same hearing
pursuant to SEQRA, and the same review
by the courts, that they would have
received if they had initially brought
their claims pursuant to the CAA.
Second, UDC's use of the federal NAAQS
when conducting the environmental review
pursuant to SEQRA meant that "the dif-
ferences in applicable law [were] a
matter of form rather than substance."
Id. at 620 (PA 27). These two facts, in
conjunction with a variety of additional
factors (including the fact that the
petitioners were represented by the
same counsel in both state and federal
22
courts) ,? persuaded the court that the
second requirement for application of
collateral estoppel had also been satis-
fied in this case.
As the above discussion shows, the
Second Circuit's holding as to the
second, fourth, and fifth claims was
extremely narrow. The Second Circuit's
opinion nowhere asserts, or even implies,
that SEQRA review generally bars all
claims pursuant to the CAA, as the
petitioners would have this Court
believe. To the contrary, the Second
Circuit carefully confined its holding
to the particular facts of this case,
where UDC incorporated the NAAQS into the
SEQRA process, which was specifically
designated in the New York SIP as the
primary mechanism for air quality review.
Under these circumstances, where both
9See id.
over ceee
i nbeehe SIRI A=; Wd
23
the federal and state standards and the
federal and state procedures for assess-
ing air quality impacts had effectively
been rendered identical, and where the
adequacy of that assessment had been
upheld by three tiers of state courts
applying virtually the same standard of
review as the federal courts, the court
found the petitioners collaterally
estopped from asserting CAA claims
challenging the FEIS conclusion that
the Project would not result in any
violations of the carbon monoxide (or
any other) NAAQS. 19 A decision as
10Both the district court and the
Second Circuit determined that the
petitioners' fourth and fifth claims,
although dressed up in different garb,
essentially raised complaints about the
adequacy of mitigation measures and the
sufficiency of the FEIS. See Wilder v.
Thomas, 659 F. Supp. at 1511 (PA 50),
aff'd, 854 F.2d at 621 (PA 29). These
claims, as well as the second clain,
were therefore properly precluded by the
state court litigation. Moreover, the
(continued...)
24
limited and fact-bound, and as clearly
correct, as this one does not merit
review by this Court.
10(.. .continued)
district court found that, to the extent
that the fourth and fifth claims alleged
the failure of state and city agencies
to submit adequate reports to the EPA,
those claims were not cognizable under
the CAA citizen suit provision. See
id. at 1510-11 (PA 50).
25
REASONS FOR DENYING THE WRIT
POINT I
THIS CASE IS FACT-BOUND AND
RAIS NO _G L_PO OF W
The petitioners in this case seek
review only of that portion of the
Second Circuit's decision holding them
collaterally estopped from asserting
their second, fourth, and fifth CAA
claims. The petitioners do not contest
the Second Circuit's articulation of
the doctrine of collateral estoppel
under New York law. Rather, they chal-
lenge the court's findings that: (1) the
petitioners already litigated in state
court the identical issue they seek to
litigate in federal court, namely the
adequacy of the Project's FEIS, see
Petition at 10-13; (2) this issue was
necessarily decided by the state court,
see Petition at 13; and (3) the
petitioners had a full and fair oppor-
26
tunity to litigate this issue in state
court, see Petition at 15-16. In other
words, the petitioners concede that the
Second Circuit applied the correct
general rule of collateral estoppel, as
it is firmly established in New York
law, but dispute the court's application
of the rule to the specific facts of
this case. The application of a well
established rule to the facts peculiar
to a single case is not a matter worthy
of a writ of certiorari. See Supreme
Court Rules, Rule 17(1).
In an attempt to manufacture an
issue worthy of review by this Court,
the petitioners repeatedly stretch the
Second Circuit's holding far beyond its
actual scope. The petitioners pretend
that the Second Circuit introduced a
general legal principle that all CAA
claims are barred by the prior litigation
27
of SEQRA claims. See Petition at 13,
14. Resolution of the questions pre-
sented by this case did not require so
sweeping a pronouncement, however, and
the Second Circuit therefore properly
refused to make it. Indeed, the Second
Circuit expressly acknowledged that "the
SEQRA standard .. . does not, on its
face, embody the absolute requirement
that the NAAQS be attained," Wilder v.
Thomas, 854 F.2d at 618 (PA 24), and
therefore SEQRA litigation would not
-necessarily preclude CAA claims. Never-
theless, the Second Circuit determined
that UDC's utilization of the federal
9 ppm standard for carbon monoxide in
this particular case rendered the dif-
ference between the two statutory stan-
28
dards of no practical significance.11
See id. at 618-19 (PA 24-25).
The Second Circuit's opinion not
only does not declare the far-reaching
and novel legal principle attributed to
it by the petitioners but contains
llype's FEIS utilized the 9 ppm
carbon monoxide NAAQS in order to ensure
compliance with section 3.6(A) of the
New York SIP, which provides in relevant
part:
[Ijf an EIS for a project
+ + Of the carbon monoxide stan-
dard, then the City commits t6
assure that mitigating measures
will be implemented by the Project
sponsor or City, so as to provide
for attainment of the standard by
December 31, 1987 and maintenance
of it thereafter.
PA 82 (emphasis added). The petitioners
fail to quote the underlined portion of
this provision, which conditions mitiga-
tion on the finding of a violation. See
PA 4. Because the FEIS identified no
violation of the carbon monoxide NAAQS,
UDC and the City could approve the
Project, as planned, without further
mitigation (beyond that already incor-
porated into the Project) and without
any conflict between UDC's SEQRA and
SIP obligations.
wo eeeesatng —
29
unmistakable indications that the Second
Circuit would reject such a principle.
The court repeatedly refers to specific
facts that ensured that the petitioners’
proposed claims pursuant to the CAA had
already been fully and fairly litigated
in the state proceedings challenging
UDC's compliance with SEQRA. Central
among these facts are: (1) UDC's utiliza-
tion of the federal NAAQS when conducting
environmental review of the Project
pursuant to SEQRA, (2) the New York
SIP's provision for using the SEQRA
process as the primary mechanism for
assessing “be quality impacts of a
project, and (3) the virtual identity of
the New York State and federal standards
for reviewing administrative deternina-
tions. The clear implication of the
Second Circuit's analysis is that where
these facts do not obtain, CAA claims
30
would not be barred. Collateral estoppel
could properly be applied in this case,
however, because the environmental
review of the Project conducted pursuant
to SEQRA incorporated federal standards
for air quality and determined that
those standards were in fact satisfied
by the Project.
The petitioners' protestations
that the Second Circuit's decision
"creates several areas of nonuniformity
in the national administration of the
Clean Air Act," Petition at 15, can now
be recognized as utterly preposterous.
The decision does not determine the
federal standard under the CAA by refer-
ence to a state standard, as the
petitioners claim, see id. at 15, 19;
rather, it permits SEQRA litigation to
bar the petitioners' citizen suit claims
pursuant to the CAA only because, as
31
contemplated by the SIP, UDC incorporated
the federal standard into the state air
quality review. Because the Second
Circuit's holding applies only when
state agencies apply the NAAQS in their
own environmental review, the decision
presents no threat to consistent enforce-
ment of the CAA.
32
POINT II
THE DECISION IN THIS CASE
DOES NOT CONFLICT WITH DECISIONS
IN OTHER FEDE CIRCUIT COURTS
The petitioners could not begin to
find conflicts between the decision in
this case and those in other federal
circuit courts without baldly misstating
the Second Circuit's holding, as they
have done here. Once the actual scope
of the Second Circuit's decision is
understood, the alleged conflicts im-
mediately evaporate.
The petitioners claim that the
Second Circuit applied the SEQRA standard
to the CAA claims. See Petition at 15,
19. The truth is precisely the reverse:
UDC applied the NAAQS throughout the
SEQRA process, as it was required to do
under the SIP. UDC and the City of New
York did not seek merely to minimize
air quality impacts; nor did they balance
33
social or economic considerations against
the value of clean air. Indeed, they
had no reason to do so because the 920-
parking-space alternative (to which the
Petition refers, on page 7, in citing a
carbon monoxide concentration of 9.3
ppm) was not part of the Project. UDC
and the Board of Estimate approved the
Project, with 345 parking spaces, only
upon finding that it would in fact comply
with the NAAQS -- and three levels of
state courts upheld that determination
in finding that UDC's traffic and air
quality analysis complied fully with
the requirements of SEQRA. Because the
petitioners could not challenge UDC's
compliance with the SIP -- which itself
mandated UDC's use of the SEQRA pro-
cess -- without relitigating precisely
the same issues already fully and fairly
litigated in the state courts, the
34
Second Circuit correctly recognized
that the petitioners' CAA claims were
barred.
Because the Project was found to
meet the NAAQS, neither UDC, the district
court, nor the Second Circuit was called
upon to decide whether economic or
social considerations are cognizable in
CAA enforcement proceedings. This
question was simply not raised by the
Project, included in any pleading,
briefed or argued by any party, or
discussed in either the district court
or Second Circuit opinions. Because
the Second Circuit did not (and, on
these facts, could not) reach this
issue, the decision in this case presents
no conflict with decisions of other
courts resolving the question either
ao
way. Because the alleged conflict is
entirely illusory, the petition for a
writ of certiorari should be denied.
36
POINT IIL
THE DECISION IS NOT INCONSISTENT
WITH DECISIONS OR POLICIES OF THIS COURT
The petitioners also claim that
the Second Circuit's decision is incon-
sistent with Kremer v. Chemical Construc-
tion Corp., 456 U.S. 461 (1982). See
Petition at 15-16. In Kremer, this
Court recognized that "judicial affir-
mance of an administrative determination
is entitled to preclusive effect." 456
U.S. at 481 n.21. This Court also
emphasized that the "state proceedings
need do no more than satisfy the minimum
procedural requirements of the Fourteenth
Amendment's Due Process Clause in order
to qualify for the full faith and credit
guaranteed by federal law." Id. at
481. The petitioners do not contest
the constitutionality of the state
administrative and judicial proceedings.
Thus, the very case with which the
37
petitioners claim this case is inconsis-
tent, is actually authority supporting
the Second Circuit's decision.
The petitioners pretend to find an
inconsistency by noting that the ad-
ministrative determination in Kremer
followed a hearing in which the "conm-
plainant [sic] had an opportunity 'to
rebut evidence submitted [to] or obtained
from the respondent.'" See Petition at
16 (quoting Kremer, 456 U.S. at 483).
They claim that they did not receive a
full and fair opportunity to litigate
their claims because they did not receive
a trial-type hearing before the admini-
strative agency. See Petition at 15-
16. They argue that when the agency
does not act in an adjudicatory capacity,
state proceedings are not entitled to
full faith and credit.
38
As the Second Circuit pointed out,
however, the petitioners would not be
entitled to an evidentiary hearing even
if their CAA claims were allowed.
Because the SIP designates the SEQRA
process as the mechanism for CAA review,
the federal court, like the state courts,
would review UDC's findings to determine
"whether the agency has complied with
the applicable law, identified the
relevant areas of environmental concern,
taken a ‘hard look' at them and made a
reasoned elaboration of the basis for
its determinations." Jackson, 110 A.D.2d
at 307-08, 444 N.Y.S.2d at 703; see
Wilder v. Thomas, 854 F.2d at 610 (PA
24) (quoting Kleppe v. Sierra Club, 429
U.S. 390, 410 n.21 (1976) ("The only
role for a court is to insure that the
agency has taken a ‘hard look' at en-
vironmental consequences.")); see also
39
Baltimore Gas & Electric Co. v. Natural
Resources Defense Council, Inc., 462
U.S. 87, 97 (1983); New York v. Kleppe,
427 U.S. 1307, 1311 (1976). Moreover,
"no single model of procedural fairness,
let alone a particular form of procedure,
is dictated by the Due Process Clause."
Kremer, 456 U.S. at 483. The petitioners
have received the only hearing to which
they are entitled, and, under Kremer,
the judicial affirmance of the results
of that hearing precludes relitigation
of the claims adjudicated in the state
proceedings.
The petitioners' argument that the
Second Circuit's decision will induce
(New York) litigants to bypass state
remedies and to channel environmental
litigation into the federal courts also
rests on the erroneous assumption that
federal litigants would be entitled to
40
a a
an evidentiary hearing. They claim
that "it would be a rare litigant that
would forego [sic] the benefits of a
full evidentiary hearing in federal
court . . . for a deferential review of
the administrative record in state
court ... ." See Petition at 24.
Citizens filing suit in federal court
to enforce compliance with the New York
SIP in circumstances such as these
would not be entitled to an evidentiary
hearing because "SEQRA's EIS process
was designated in the SIP as the primary
mechanism for indirect source review."
Wilder v. Thomas, 854 F.2d at 619 (PA
25). Therefore, the Second Circuit's
decision provides no incentive for
bypassing state court remedies.
The "bypass" argument also presup-
poses the accuracy of the petitioners'
misstatement of the Second Circuit's
—— |
41
holding. Once again, the petitioners
insist that the Second Circuit is per-
mitting every SEQRA action to preclude
all CAA claims. See Petition at 22.
The Second Circuit did not endorse such
a broad proposition. Indeed, the opinion
suggests that when a state EIS prepared
pursuant to SEQRA reveals a violation
of the NAAQS, litigants will have avail-
able both SEQRA and CAA actions. There-
fore, the Second Circuit's decision is
not inconsistent with this Court's
policy that federal remedies should
supplement, not supplant, state court
remedies.
42 ;
CONCLUSION
For the reasons stated above, the
Court should deny the petition for a
writ of certiorari.
Dated: New York, New York
February 2, 1989
Respectfully submitted,
STEPHEN L. KASS*
BERLE, KASS & CASE
Attorneys for Respondent
New York State Urban
Development Corporation
45 Rockefeller Plaza
New York, New York 10111
(212) 765-1800
Of Counsel:
JEAN M. McCARROLL
DEBORAH GOLDBERG
NEW YORK STATE URBAN
DEVELOPMENT CORPORATION
GAIL S. PORT
JOSEPH C. PETILLO
*Counsel of record
7001:001
43
HON. ROBERT ABRAMS
Attorney General of the
State of New York
Attorney for the New York
State Respondents
120 Broadway
New York, New York 10271
(212) 341-2478
Of Counsel:
JOHN PROUDFIT*
C. MICHAEL BRYCE
PETER L. ZIMROTH
Corporation Counsel of the
City of New York
Attorney for the New York
City Respondents
100 Church Street
New York, New York 10007
(212) 566-4330
Of Counsel:
LEONARD KOERNER*
FAY LEOUSSIS
*Counsel of Record
APPENDIX
RA-1
[JA 465]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
85 Civ. 8356 (TPG)
STEPHEN F. WILDER, BRENDAN GILL, IMRE J. ROSEN-
THAL, STEPHEN ROSENTHAL, ROBERT NEUWIRTH,
LORI JEAN SAIGH, and the WHITBY TENANTS’
ASSOCIATION,
Plaintiffs,
V.
LEE M. THOMAS, as Administrator of the United States En-
vironmental Protection Agency; UNITED STATES EN-
VIRONMENTAL PROTECTION AGENCY; REGION II of the
UNITED STATES ENVIRONMENTAL PROTECTION AGEN-
CY; NEW YORK STATE URBAN DEVELOPMENT CORPOR-
ATION; VINCENT TESE, as Chairman of the New York State
Urban Development Corporation; TIMES SQUARE REDEVEL-
OPMENT CORPORATION; ROBERT M. HALL, as President
of the Times Square Redevelopment Corporation; NEW YORK
STATE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION; HENRY G. WILLIAMS, as Commissioner of the New
York State Department of Environmental Conservation;
DEPARTMENT OF ENVIRONMENTAL PROTECTION OF
THE CITY OF NEW YORK; JOSEPH T. McGOUGH, JR., as
Commissioner of the Department of Environmental Protection
of the City of New York; MARIO M. CUOMO, as Governor of
the State of New York; and EDWARD I. KOCH, as Mayor of
the City of New York,
Defendants.
AFFIDAVIT OF IRWIN FRUCHTMAN
IN SUPPORT OF MOTION DISMISS
STATE OF NEW YORK _)
;a
COUNTY OF NEW YORK)
IRWIN FRUCHTMAN, being duly sworn, deposes and says:
RA-2
l. I am Vice-President-Construction of defendant
[JA 466]
Times Square Redevelopment Corporation (“TSRC”), a subsidiary
of the New York State Urban Development Corporation (“UDC”),
created to assist UDC in carrying out the 42nd Street Develop-
ment Project (the “Project”). I am fully familiar with the facts
set forth below and submit this affidavit in support of the mo-
tion of UDC and TSRC to dismiss the complaint in this action.
2. Before assuming my present duties, I served as Vice-
President-Construction of UDC from December 1984 to June
1985, and as Vice-President of TSRC until December 1984. In
my earlier position at TSRC, my principal responsibility was to
supervise the environmental analysis of the Project, including
preparation of both the draft environmental impact statement
and final environmental impact statement (“FEIS”) prepared by
UDC in discharge of its responsibilities under the New York State
Environmental Quality Review Act (“SEQRA’).
3. The FEIS includes a detailed analysis of the Project’s air
quality impact at the time of its scheduled completion in 1991.
That analysis, which was subjected to extensive public comment
in accordance with SEQRA, concludes that the Project will result
in no violation of applicable national ambient air quality stan-
dards (“NAAQS”) promulgated by the Environmental Protection
Agency (“EPA”) under the Clean Air Act (the “Act”). Attached
as Exhibit A hereto is Table 5-3, included in the FEIS, summariz-
ing the Project’s expected
[JA 467]
carbon monoxide impacts after giving effect to the detailed
mitigation measures incorporated in the Project: This table in-
dicates that at no location will the completed Project, as approved,
' The table shows projections for the Project with 320 parking spaces, which
is the number included in the Project as approved. An alternative with 920 spaces
was not adopted by UDC.
RA-3
cause carbon monoxide levels to exceed the applicable 8-hour stan-
dard of 9 parts per million (“ppm”) adopted by EPA under the
Act.
4. As part of its overall SEQRA responsibilities, UDC also
analyzed the environmental impacts of the Project’s construc-
tion phase. This analysis included, among other factors, an assess-
ment of air quality impacts during construction. Attached as Ex-
hibit B is Table 3-4, also included in the FEIS, summarizing ex-
pected carbon monoxide levels during the Project’s construction
phase in 1988. That table indicates that the 9 ppm standard will
not be exceeded at any of the Project’s air quality locations, with
one possible exception. Because of uncertainty at the time the
FEIS was prepared about the precise construction scenario, the
document did indicate a conditional exceedance at Broadway and
41st Street (which would have been caused by a temporary traf-
fic detour to permit renovation of the Times Square subway sta-
tion). However, the FEIS made clear that even this exception was
“unlikely.” This was so, according to the FEIS,
[JA 468]
because exceedance of the 9 ppm standard would occur only if
construction on the Project’s “Site 1” had been completed by 1988.
But if that Site is instead an empty lot in 1988 (which the FEIS
indicated was the more likely circumstance), the FEIS reported
that carbon monoxide levels at even that location “would not ex-
ceed 6.0 ppm.” FEIS at 3-26. (A copy of the section of the FEIS
that includes page 3-26 is attached as Exhibit C hereto).
5. Since completion of the FEIS and approval of the Project
by UDC, UDC has continued to review and refine its construc-
tion plans for the Project. As a result of that review, as well as
the delays attributable to prolonged litigation challenging the
Project, it is now certain that construction on Site 1 will not be
completed by 1988 (although demolition of existing structures
on that Site is expected to be complete by 1988). As a result, the
“unlikely” construction scenario referred to in the FEIS is not
expected to occur, and thus the possible temporary exceedance of
RA-4
the 9.0 ppm carbon monoxide standard referred to in the FEIS
is not expected to occur either.
/s/ Irwin Fruchtman
Sworn to before me this |
6th day of February, 1986.
/s/ Joseph C. Petillo
Notary Public
JOSEPH C. PETILLO
NOTARY PUBLIC, State of New York
No. 31-4834610
Qualified in New York County
Commission Expires March 30, 1987.
RA-5
[JA 469]
Table 5-3
MAXIMUM ONE- AND EIGHT-HOUR PREDICTED
CARBON MONOXIDE CONCENTRATIONS IN THE YEAR 1991 WITH THE PROJECT*
320 ON-SITE SPACES WITH MITIGATION
One-Heur Eight-Hour
Receptor Location HIWAY APRAC SONDEL** HIWAY APRAC SONDEL**
l 40th St. between 7.3 8.5 14.0 4.6 5.4 8.5
7th & 8th Aves.
2 4lst St. between 6.3 6.7 8.2 4.0 4.3 5.1
7th & 8th Aves.
3 42nd St. between 9.8 10.9 N/A 6.3 7.0 N/A
7th & 8th Aves.
4 43rd St. between 7.3 8.4 N/A 4.6 5.4 N/A
7th & 8th Aves.
§ 43rd St. between 7.2 7.3 N/A 4.6 4.6 N/A
Broadway & Ave.
of the Americas
* All values are given in parts per million (ppm). The values presented are the second highest for the year, since standards may
be exceeded once a year.
** Where theoretically applicable.
Exhibit A
RA-6
Table 5-3
MAXIMUM ONE- AND EIGHT-HOUR PREDICTED
CARBON MONOXIDE CONCENTRATIONS IN THE YEAR 1991 WITH THE PROJECT*
320 ON-SITE SPACES WITH MITIGATION
One-Hour Eight-Hour
Receptor : Location HIWAY APRAC SONDEL** HIWAY APRAC SONDEL**
6 8th Ave. between 10.5 9.9 N/A 6.7 6.3 N/A
4lst & 42nd Sts.
7 7th Ave. between 10.7 10.4 N/A 6.9 6.7 N/A
42nd & 43rd Sts.
8 Broadway between 7.6 7.3 14.1 4.8 4.6 8.6
42nd & 43rd Sts.
A Intersection of 8th 12.4 N/A N/A 8.0 N/A N/A
Ave. & 42nd St.
B Intersection of 7th 13.3 N/A N/A 8.6 N/A N/A
Ave. & 42nd St.
& Intersection of 11.5 N/A N/A 7.4 N/A N/A
Broadway & 42nd St.
* All values are given in parts per million (ppm). The values presented are the second highest for the year, since standards may
be exceeded once a year.
** Where theoretically applicable.
Exhibit A
RA-7
[JA 470]
Table 3-4
MAXIMUM ONE- AND EIGHT-HOUR PREDICTED
CARBON MONOXIDE CONCENTRATIONS IN THE YEAR 1988 WITH THE PROJECT*
320 ON-SITE SPACES WITH MITIGATION
One-Hour Eight-Hour
_ Receptor _ em Location HIWAY APRAC SONDEL** HIWAY APRAC SONDEL**
] 40th St. between 7.9 9.1 14.9 5.0 5.8 9.0
7th & 8th Aves.
2 4lst St. between 7.0 7.2 10.2 4.4 4.6 6.3
7th & 8th Aves.
3 42nd St. between 10.6 11.7 N/A 6.8 7.5 N/A
7th & 8th Aves.
4 43rd St. between 8.1 9.2 N/A 5.1 5.9 N/A
7th & 8th Aves.
5 43rd St. between 7.9 9.4 N/A 5.0 6.0 N/A
Broadway & Ave.
of the Americas
* All values are given in parts per million (ppm). The values presented are the second highest concentrations for the year since
standards can be exceeded once a year.
** Where theoretically applicable.
*** This concentration would occur between 4Ist and 42nd Streets, but only if Site 1 is built before Site 12. If Site 12 is built first,
Site 1 will be an empty lot in 1988 and, as a result, no SONDEL canyon will exist. Under such circumstances, eight-hour con-
centration at the Broadway receptor would be less than 9.0 ppm.
Exhibit B
RA-8
Table 3-4
MAXIMUM ONE- AND EIGHT-HOUR PREDICTED
CARBON MONOXIDE CONCENTRATIONS IN THE YEAR 1988 WITH THE PROJECT*
320 ON-SITE SPACES WITH MITIGATION
One-Hour Eight-Hour
Receptor Location HIWAY __APRAC SONDEL** HIWAY APRAC SONDEL**
6 8th Ave. between 11.8 11.2 N/A 7.6 7.2 N/A
4lst & 42nd Sts.
7 7th Ave. between 12.5 11.5 N/A 8.0 7.4 N/A
42nd & 43rd Sts.
8 Broadway between 9.2 9.2 16.5 5.9 5.9 10.0***
42nd & 43rd Sts.
A Intersection of 8th 13.8 N/A N/A 8.9 N/A N/A
Ave. & 42nd St.
B Intersection of 13.9 N/A N/A 9.0 N/A N/A
7th Ave. & 42nd St.
C Intersection of 12.6 N/A N/A 8.1 N/A N/A
Broadway & 42nd St.
* All values are given in parts per million (ppm). The values presented are the second highest concentrations for the year since
standards can be exceeded once a year.
** Where theoretically applicable.
*** This concentration would occur between 4lst and 42nd Streets, but only if Site 1 is built before Site 12. If Site 12 is built first.
Site 1 will be an empty lot in 1988 and, as a result, no SONDEL canyon will exist. Under such circumstances, eight-hour con-
centration at the Broadway receptor would be less than 9.0 ppm.
Exhibit B
[JA 471]
Carbon Monoxide Concentrations in the Project Area
Tables 3-3, 3-4 and 3-5 show maximum predicted one-and
eight-hour carbon monoxide concentrations at each of the ll
receptor locations in the year 1988, with and without the pro-
ject, both for the 320 and 920 parking space scenarios.
Table 3-6 summarizes the maximum predicted eight-hour car-
bon monoxide concentrations, using consistent models, at each
receptor location in 1988 without the project and with the pro-
ject with mitigation, and indicates for each location the incremen-
tal change due to the project with mitigation.
As can be seen from these tables, there are no violations of
the one-hour standard. However, there are several instances where
carbon monoxide concentrations exceed 9.0 parts per million over
eight hours.
Specifically, without the project, eight-hour violations are
shown at Receptor Locations 1 (40th Street), 6 (Eighth Avenue),
A (Intersection of Eighth Avenue and 42nd Street) and B (In-
tersection of Seventh Avenue and 42nd Street). At 40th Street
(where the violation is shown only with the SONDEL model),
the predicted concentrations under worst case meteorological con-
ditions are 10.1 ppm, while at Eighth Avenue, the predicted con-
centrations using APRAC are 9.9 ppm. At the Seventh and Eighth
Avenue intersections, the predicted concentrations under worst
case meteorological conditions are 9.7 and 10.6 ppm, respectively.
With the project and the 320 parking space scenario, with one
exception, there are no violations at the intersections or at any
of the Avenue or cross-street receptor locations. Using the
SONDEL model, however, there is one instance — on Broadway
(Receptor Location 8)— where an eight-hour concentration in
excess of 9 ppm is shown. There, the predicted 1988 concentra-
tion, with worst case meteorological and peak traffic conditions,
is 10.0 ppm compared to 8.3 ppm without the project. This is
Exhibit C
RA-10
a significant difference, but it is a temporary condition resulting
from a construction situation. More specifically, as noted in
Subsection F above, in 1988, construction work may
[JA 472]
still be underway on the Times Square subway station, resulting
in the continued closing of three lanes of Seventh Avenue bet-
ween 4lst and 42nd Streets. This, in turn, requires that some traf-
fic be diverted down Broadway as far as 41st Street to avoid the
construction bottleneck; and it is this diversion that results in the
reading of 10.0 ppm under worst-case meteorological conditions.
This situation is expected to persist for about a year, but once
the subway work is complete, the diversions will end and so will
the elevated levels of carbon monoxide.
Furthermore, the 10 ppm reading is itself unlikely. This is the
case because in 1988, Site 1 will probably be an empty lot, with
no construction expected there until 1989. If this is so, a SONDEL
canyon will not exist at the receptor location, due to the large
open area between 4lst and 42nd Streets. As a result, ventilation
will be greatly improved and eight-hour CO concentrations would
not exceed 6.0 ppm.
With the project and the 920 space parking scenario, the situa-
tion would be the same as for the 320 space scenario, with one
exception: on 40th Street, an eight-hour concentration of 10.1
ppm is predicted under worst-case meteorology. This is the same
as the predicted concentration without the project and thus would
not make the situation any worse than it would otherwise be;
nor would it be a legal impediment to the project under the State
indirect source permit regulations. Nonetheless, if it were subse-
quently deemed desirable to build as many as 920 on-site spaces,
some additional mitigation would probably be advisable. This
could be accomplished, for example by phasing in parking spaces
between 1988 and 199] or by restricting the number of available
parking spaces when adverse meteorological conditions are
predicted.
[JA 497]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
85 Civ. 8356 TPG
STEPHEN T. WILDER, et al., \
Plaintiff,
V.
LEE M. THOMAS, et al.,
Defendant.
June 26, 1986
2:45 p.m.
(Case called; both sides ready)
THE COURT: The reason I called you together is that in
struggling with these motions I suddenly remembered that there
is something called a motion for a more definite statement and
I honestly must say that I think at least as to some of the defen-
dants that would have been the
[JA 498]
appropriate motion because the complaint is far from definite
and it make it difficult for a defendant to really know what the
claim is that is being dealt with and it certainly makes it dif-
ficult for me to know what I am dealing with.
semanas
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Now, I just want to give you a little illustration and what I
am leading up to is I am not deciding any motion now. It has
been a waste of my time and my office’s time to have to deal
with such a complaint and
(Continued on next page)
[JA 499]
it was a waste of the defendant’s time to have to deal with such
a complaint and perhaps they should have thought of the mo-
tion for a more definite statement. But the real vice was to have
a complaint which is so lacking in any clear definition of what
the claim is.
Now, I would like to just illustrate this: There is in the plain-
tiffs memorandum, dated January 21, 1986, a section entitled
plaintiff's may maintain a citizens suit against the state and city
defendants because they are violating the SIP. There is a sec-
tion of about 10 pages beginning at page 28. Then there is a
kind of rambling discussion in of ways in which the SIP is
violated, mainly by reference to a letter from the EPA to the
Department of Environmental Conservation dated August 2,
1985. It’s as if the EPA is the plaintiff and of course the EPA
is not the plaintiff here. But in this kind of loose way that the
plaintiff's use in their presentation there is the discussion in the
brief, mainly a quotation from this letter.
RA-13
[JA 607]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
85 Civ. 8356 (TPG)
STEPHEN F. WILDER, BRENDAN GILL, IMRE J. ROSEN-
THAL, STEPHEN ROSENTHAL, ROBERT NEUWIRTH,
LORI JEAN SAIGH, and the WHITBY TENANTS’
ASSOCIATION,
Plaintiffs,
V.
NEW YORK STATE URBAN DEVELOPMENT CORPORA-
TION; TIMES SQUARE REDEVELOPMENT CORPORA-
TION; ROBERT M. HALL, as President of the Times Square
Redevelopment Corporation; NEW YORK STATE DEPART-
MENT OF ENVIRONMENTAL CONSERVATION; HENRY G.
WILLIAMS, as Commissioner of the New York State Depart-
ment of Environmental Conservation; DEPARTMENT OF EN-
VIRONMENTAL PROTECTION OF THE CITY OF NEW
YORK; JOSEPH T. McGOUGH, JR., as Commissioner of the
Department of Environmental Protection; MARIO M. CUOMO,
as Governor of the State of New York; and EDWARD I. KOCH,
as Mayor of the City of New York,
Defendants.
STATE OF NEW YORK )
ee
COUNTY OF NEW YORK )
HARVEY W. SCHULTZ, being duly sworn, deposes and says:
RA-14
1. Iam the Commissioner of the New York City Department
of Environmental Protection. I am familiar with the facts set
forth below and submit this affidavit in opposition to plaintiffs’
application to amend their complaint in this action and to cor-
rect certain misstatements contained in plaintiffs memorandum
in support of their application to amend.
[JA 608]
2. Plaintiffs have suggested that the City is failing to carry
out measures required by the New York State Implementation
Plan (“SIP”) to eliminate carbon monoxide “hot spots” by the
end of 1987. To the contrary, the City, through its Departments
of Environmental Protection and Transportation, has been
engaged in a vigorous program to identify candidate hot spots,
evaluate those at which control measures will be required to
meet all applicable carbon monoxide standards (including, in
particular, the 8-hour standard of 9 ppm) and implement the
control measures which are determined to be necessary to
achieve that standard. The review of final environmental im-
pact statements (“FEISs”) for individual development projects
to be undertaken in the City is a part, but only a part, of that
process. The bulk of the City’s efforts are directed towards the
hot spot locations themselves, because any given hot spot site
is a result of a far more complex aggregation of factors than
simply one single project.
3. As part of this ongoing process of monitoring and report-
ing contemplated by the SIP, the City has recently submitted
to the United States Environmental Protection Agency (“EPA”)
its 1985 drafts of two documents: (a) a report on “Reasonable
Further Progress in 1985 Toward Attainment of Carbon Monox-
ide Standards annexed hereto as Exhibit A, and b) a report on
the “Carbon Monoxide Control Program For Group IV Hotspot
Sites,” annexed hereto as Exhibit B. Together, these reports
evaluate the effectiveness of the steps taken to date to deal with
hot spots around the City, and also identify control measures
to be implemented with respect to hot spots that have been more
recently identified.
RA-15
[JA 609]
4. The Group IV Hotspot Report specifically addresses a
location at which the FEIS on the 42nd Street Development Pro-
ject (the “Project”) indicated the possibility of a temporary con-
struction period exceedance of the carbon monoxide standard:
Broadway between 42nd and 43rd Streets. The data developed
for the FEIS were reanalyzed using the Mobile 3 computer
model, the most current air quality model approved by EPA for
this purpose and one which has become available for use in New
York City after completion of the Project EIS. Using that model,
the Report demonstrates that the worst 8-hour carbon monox-
ide concentration, without any additional mitigation beyond
that contemplated by the Project itself, would be 8.6 ppm, below
the applicable standard of 9.0 ppm. Accordirgly, this site was
determined to be one at which the implementation of addition
control measures, beyond those committed to as part of the Pro-
ject itself, will not be required. See Group IV Hotspot Report
at Table I and III, pages 3 and 5.
5. The 1985 Reasonable Further Progress Report also
discusses, among other things, the proposed 42nd Street Tran-
sitway. The Report indicates that the environmental impacts of
the Transitway are now being reviewed, and that a draft en-
vironmental impact statement (“DEIS”) is expected to be com-
pleted by December 1986. This DEIS will evaluate the air quali-
ty impacts of the proposed Transitway, including the possibili-
ty that traffic diversion which it causes could result in a signifi-
cant increase in carbon monoxide concentrations at certain loca-
tions. Implementation of the Transitway proposal is contingent
on the DEIS findings as to the Transitway’s air quality impacts.
As part of its base case, the Transitway
[JA 610]
DEIS wii have to assume and take into account the completed
42nd Street Project, including the Project’s mitigation measures.
6. Plaintiffs allege that the City has failed to commit to
mitigation of the Project’s air quality impacts. This is erroneous.
RA-16
The City, a co-sponsor of the Project with the New York State
Urban Development Corporation, formally approved the Pro-
ject through Board of Estimate action on November 9, 1984.
When the Board of Estimate approved the Project, it explicitly
resolved that it “concurs in and adopts the UDC Findings,” which
were defined to include those findings made by UDC under the
State Environmental Quality Review Act. See Board of Estimate
Resolution, annexed hereto as Exhibit C, at pages 2-3, 9. The
UDC findings, in turn, included the identification of mitiga-
tion measures necessary to avoid adverse air quality impacts from
the Project. See UDC Findings, annexed hereto as Exhibit D,
at pages 23, 26-27. Thus, the mitigation measures identified by
UDC were a condition of City approval of the Project, and the
City has committed to their implementation.
/s) HARVEY W. SCHULTZ
Sworn to before me this
5th day of September, 1986
/s/ RICHARD E. JOSEPH
NOTARY PUBLIC
[notary public stamp illegible]
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[JA 697]
THE CITY OF NEW YORK
NEW YORK STATE IMPLEMENTATION PLAN
CARBON MONOXIDE CONTROL PROGRAM
FOR GROUP IV HOTSPOT SITES
Exhibit B
—————— enn
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[JA 703]
TABLE It
RE-ANALYSES OF HOTSPOT SITES IDENTIFIED IN 1984 FEISs USING MOBILE 3
Worst 8hr CO Worst 8hr CO | Models Used
Volume Speed AQ Impact W/O | AQ Impact With For
HOTSPOTS SITES (Veh./Hr) (mph) Mitigation (ppm) Mitigation Analyses Name of Project
768 EB 5.4 EB Mobile 3 Klein Development
1. 14th St. at Broadway 609 WB 8.2 WB 6.1 - Hiway 2 at Union Square
1108 NB 3.9 NB Mobile 3 Klein Development
2. Third Ave. 17-18 Sts. 748 SB 11.8 SB 8.0 - Hiway 2 at Union Square
Mobile 3 51 Story Building
3. Third Ave, 64-65 Sts. 2403 7.5 7.6 - Aprac at 3rd Ave, & 64th St.
Mobile 3
4. Broadway, 42nd-43rd Sts. | 1180 9.6 8.6 - Sondel 42nd St. Development
5. Lexington Ave., 52-53rd Mobile 3
Sts. 1454 4.1/6.0 11.9 8.9 Sondel Cadillac Fairview
6. 52nd St. Lexington to Mobile 3
3rd Aves. 598 5.0 8.7 _ Sondel Cadillac Fairview
7. 53rd St., Lexington to Mobile 3
3rd Aves. 584 6.2 7.3 ~ Sondel Cadillac Fairview
Bryant Park
8. 6th Ave. at 42nd St. 2134 4.1 9.4 8.4 From FEIS | Restaurant &
Restoration
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[JA 703]
TABLE Ill
RE-ANALYSES OF HOTSPOT SITES IDENTIFIED IN 1984 FEISs USING MOBILE 3
Worst 8hr CO Worst 8hr CO | Models Used
Volume Speed AQ Impact W/O | AQ Impact With For
HOTSPOTS SITES (Veh./Hr) (mph) Mitigation (ppm) Mitigation Analyses Name of Project
9. 5th Ave. at 42nd St. 2097 4.7 9.2 8.5 From FEIS Bryant Park
Restaurant &
Restoration
10. West St., Laight to 3842 NB 6.6/7.2 Mobile 3 Washington St.
Vestry Sts. 2306 SB 9.3/9.9 10.7 9.2 Hiway 2 6th Amended Plan
11. West St., Warren to 3483 NB 5.1/10.0 Mobile 3 Washington St.
Chambers Sts. 2208 SB 18.1/19.0 11.1 8.0 Hiway 2 6th Amended Plan
12. Canal St., Lafayette 1383 EB 3.1 EB See RFP for | Washington St.
to Broadway 885 WB 11.3 WB 7.5 1985, App. B | 6th Amended Plan
13. Church & Chambers Sts.| Chambers 8.8 - Mobile 3 Washington St.,
WBW-CH 441] 6.9 EB Hiway 2 6th Amended Plan
CH-BW 485 3.4 EB
BW-CH 519 3.1 WB
CH-WBW - 6.4 WB
Church
1500
6.8 NB
[JA 767]
NEW YORK STATE
URBAN DEVELOPMENT CORPORATION
Findings With Respect to
42nd Street Development Project
New York, New York
Part II
STATEMENT OF FACTS AND CONCLUSIONS
A. Proposed Project
4. Sites Within The Project Area
The Project area has been divided for planning purposes in-
to 12 separate sites (shown in Exhibit 2 hereto) and three major
clusters: the Seventh Avenue/Broadway sites (Sites 1, 2, 3, 4, and
12); the 42nd Street mid-blocks (Sites 5 on the north side of 42nd
Street and Sites 6 and 10 on the south side); and Eighth Avenue
(Sites 7 and 8). Two other mid-block sites (Sites 9 and 11) con-
tain existing structures which are expected to be retained.
5. Project Components
The Project’s several components reflect the goals outlined
above. These components may be summarized as follows:
On the Seventh Avenue/Broadway Sites (Sites 1, 3, 4 and 12),
a total of four new office buildings, ranging in height from 29
to 56 stories and containing approximately 4.1 million gross
square feet (including ancillary retail and public space), are pro-
posed to be developed. Additional office space will remain in
the Candler Building (Site 11), the Selwyn Building (part of Site
5) and the New Amsterdam Theater (part of Site 6).
Exhibit C
[JA 768]
On Sites 5, 6 and 10, the midblock sites, nine theater buildings
will be maintained, renovated or otherwise adapted to reuse.
As presently contemplated, most of these structures will be
returned to legitimate or institutional (non-profit) theater use.
However, the Empire (part of Site 10) will be renovated for retail,
restaurant, or mart-related conference use, and the Times Square
(part of site 5) is planned for retail or restaurant use. The Vic-
tory (intended for institutional use) and the Liberty (intended
for both institutional and mart related auditorium use) could
each be used for first-run movies on an interim basis until theater
use becomes feasible. Responsibility for acquiring, renovating
and operating each of the theaters will be shared among the
office, mart and theater developers (who will contribute funds
toward acquisition and renovation) and experienced theater
operators. Specific responsibilities, and intended uses, for each
of the theaters are summarized in Exhibit 3 hereto.
On Site 7, a new hotel, containing approximately 750 rooms,
ancillary facilities, retail uses and up to two cinemas, will be
constructed. On Site 8, a wholesale mart will be developed, con-
taining approximately 2.4 million gross square feet devoted to
computer and apparel wholesaling, as well as ancillary exhibi-
tion space and other support uses. Approximately 1.7 million
square feet will be used for computer wholesaling, while ap-
proximately 560,000 square feet will be used for apparel
wholesaling.
On Sites 9 and 11, the historic Candler Building (Site 11) and
the Carter Hotel (Site 9) will remain as part of the Project, with
the hotel’s 42nd Street entrance incorporated into Site 7. The
Project as originally presented proposed to retain and reclad the
existing One Times Square building on Site 2. However, the pro-
ject staff has recommended that the Project be modified to in-
corporate the alternative of substantially altering or complete-
ly replacing One Times Square in order to provide an increas-
ed sense of open space and visual focus in the Times Square area,
RA-22
thereby mitigating to some degree the bulk of the office towers.
UDC has determined to accept the staff's recommendation, and
the action as approved by UDC includes the substantial altera-
tion or replacement of One Times Square. The further option of
[JA 769]
taking no action at all with respect to One Times Square and
permitting the building to remain in its present state has been
considered and found to be environmentally acceptable if
replacement or substantial alteration proves to be infeasible.
New retail space will be included on virtually all of the 42nd
Street blockfaces. In addition, each of the new buildings will
contain its own offstreet truck loading bays. Below-grade parking
for up to a total of 245 vehicles will be provided under Sites
7 and 12; additional parking (presently intended to be less than
100 spaces) will also be provided under Site 8. (The office
developer has indicated it may seek approval for additional park-
ing on sites 3 and 4; if make, such a request will be evaluated
in accordance with applicable law and project goals.)
Finally, the Project includes improvements to accommodate
increased pedestrian, vehicular and transit traffic and to make
access to and use of the subways safer, more convenient and more
attractive, including a pedestrian bridge spanning Eighth Avenue
between 4lst and 42nd Street and linking the mart and the Port
Authority Bus Terminal, improvements on the Times Square sub-
way station and a traffic lay-by lane on Eighth Avenue between
40th and 43rd Streets.
Information concerning the proposed design, street-level treat-
ment and lighting of the Project is also set forth in the FEIS.
[JA 784]
Vehicular Traffic. Vehicular traffic has been analyzed for both
the project Area and a larger traffic impact zone extending to
Sixth and Tenth Avenues and 34th through 48th Streets. These
RA-23
areas have been studied for three peak periods, midday (12:00
noon to 2:00 p.m.), homebound for P.M. Peak (4:00 p.m. to 6:00
p.m.), and pre-theater (7:00 p.m. to 8:00 p.m.), in each case
assuming Wednesday (matinee day) conditions. During each of
these periods, the completed Project’s 1991 traffic volumes (in-
cluding autos, taxis, buses, limousines, and trucks) were added
to those which would be expected in that year without the Pro-
ject. This “worst case” analysis was carried out assuming no in-
crease in street capacity; no increased enforcement of traffic
regulations; no modification of existing traffic signals or other
controls; the inclusion of a new (100- or 700-car) garage under
the mart (producing a total of either 320 or 920 parking spaces
in the project as a whole); and the active use of all theater struc-
tures for legitimate or institutional purposes.
Using these assumptions, anticipated 1991 traffic volumes were
assigned on an unconstrained basis (that is, assuming no diver-
sion of either Project-generated or base traffic or peripheral
arteries or other modes) to individual streets throughout the traf-
fic impact area. The resulting volumes for each link have been
translated into a volume-to-capacity (V/C) ratio for that link,
for each of the peak hour periods studied. As would be expected,
V/C ratios for many links exceed 0.90, signifying serious con-
gestion during the peak hours, and, without mitigation, a
number of links within the project area and the theater district
exceed 1.00, indicating chronic overloads (at least on matinee
days) and upstream queues. As indicated above, under the worst-
case assumptions outlined above, such queuing could be expected
at Eighth Avenue south of 42nd Street, Seventh Avenue north
of 42nd Street, 42nd Street itself, several crosstown streets in
the theater and garment districts and, under certain cir-
cumstances, 40th Street between Broadway and Eighth Avenue.
To counter these impacts, a series of mitigation measures has
been incorporated into the project plan. These measures, the
impact of which has been quantitatively evaluated in the same
manner as the mitigated traffic impacts discussed above, include
(a) a new traffic lay-by lane on the east side of Eight Avenue
between 40th and 43rd Streets to provide standing and drop-
off space for buses and taxis that now block the eastern lane
———
ee ee
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of Eighth Avenue for this purpose; (b) a relocation of the Port
Authority taxi stand on the west side of Eighth Avenue (com-
bined with an appropriate no standing restriction) to facilitate
left turns onto westbound 42nd Street; (c) revised and effectively
enforced no standing regulations on Seventh Avenue between
4lst and 45th Streets (or, alternatively, a partial re-routing of
traffic from Seventh Avenue onto Broadway between 45th and
4lst Streets); (d) revised signal timing and no-standing regula-
tions on 42nd Street to facilitate through traffic and right turns
onto both Eighth Avenue for westbound vehicles and Seventh
Avenue for eastbound vehicles; (e) additional enforcement of
the foregoing measures by City traffic control agents, for whom
space will be provided within the project area; and (f) revised
signal timing on 43rd Street to improve crosstown flows. A
number of additional mitigation measures (minor signal tim-
ing changes, changes in no-standing regulation and the like) are
recommended for several adjacent streets in the garment center
and theater district.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.