Opinion
66024/2016
05-11-2017
The Mutual Aid Association of the Paid Fire Department of the City of Yonkers, New York, Inc. a/k/a LOCAL 628, I.A.F.F., AFL-CIO, Plaintiff, v. The City of Yonkers, THE CITY OF YONKERS CITY COUNSEL, THE CITY OF YONKERS DEPARTMENT OF HOUSING AND BUILDINGS, LOWE'S HOME CENTER, LLC, HORIZON AT RIDGE HILL, LLC, RIDGE HILL DEVELOPMENT CORPORATION, FC YONKERS ASSOCIATES, LLC, FOREST CITY RATNER COMPANIES, LLC, FOREST CITY RATNER COMPANIES, BRUCE RATNER, FOREST CITY ENTERPRISES, INC., FOREST CITY ENTERPRISES, L.P. and FOREST CITY REALTY TRUST, INC., Defendants
Silverberg Zalantis, LLP Attorneys for Plaintiff Via NYSCEF Robert A. Spolzino, Esq. Smith, Buss & Jacobs, LLC Attorneys for City of Yonkers Defendants Via NYSCEF DelBello Donnellan Weingarten Wise & Wiederkehr, LLP Attorneys for Defendant FC Yonkers Associates, LLC Via NYSCEF
Silverberg Zalantis, LLP Attorneys for Plaintiff Via NYSCEF Robert A. Spolzino, Esq. Smith, Buss & Jacobs, LLC Attorneys for City of Yonkers Defendants Via NYSCEF DelBello Donnellan Weingarten Wise & Wiederkehr, LLP Attorneys for Defendant FC Yonkers Associates, LLC Via NYSCEF Lawrence H. Ecker, J.
The following papers numbered 1 through 74 were read on the motion of HORIZON AT RIDGE HILL, LLC, RIDGE HILL DEVELOPMENT CORPORATION, FC YONKERS ASSOCIATES, LLC, FOREST CITY RATNER COMPANIES, LLC, FOREST CITY RATNER COMPANIES, BRUCE RATNER, FOREST CITY ENTERPRISES, INC., FOREST CITY ENTERPRISES, L.P. and FOREST CITY REALTY TRUST, INC. [collectively FC Yonkers defendants], made pursuant to CPLR 3211(a)(7) , for dismissal of the complaint [Mot. Seq. 1], the motion of THE CITY OF YONKERS, THE CITY OF YONKERS CITY COUNSEL, THE CITY OF YONKERS DEPARTMENT OF HOUSING AND BUILDINGS (collectively "the City defendants "), made pursuant to CPLR 3211(a)(7), for dismissal of the complaint [Mot. Seq. 2], and the motion of THE MUTUAL AID ASSOCIATION OF THE PAID FIRE DEPARTMENT OF THE CITY OF YONKERS, NEW YORK, INC. a/k/a LOCAL 628, I.A.F.F., AFL-CIO ("plaintiff"), by Order to Show Cause issued March 15, 2017, made pursuant to CPLR § 6311 seeking preliminary and permanent injunctive relief, as against the City and FC Yonkers [Mot. Seq. 3]:
PAPERS/NUMBERED
Mot. Seq. 1 Notice of Motion, Affirmation, Affidavit, 1 - 13 Exhibits - A-I, Memorandum of Law Affirmation in Opposition, Exhibit A, Affidavit 14 - 17 in Opposition (Rocha), Memorandum of Law Reply Affirmation, Exhibit 1, Reply Memorandum 18 - 20 of Law Mot. Seq. 2 Notice of Motion, Affirmation, Exhibits A-D, 21 - 27 Memorandum of Law Reply Memorandum 28 Mot. Seq. 3 Order to Show Cause, Affirmation, Affidavit (McGoey), 29 - 50 Exhibits A-R, Memorandum of Law [FC Yonkers] Affirmation in Opposition, Affidavit (Hardy), 51 - 60 Exhibits 1-7, Memorandum of Law [The City] Affirmation in Opposition, Exhibits A-C, 61 - 65 Memorandum of Law Reply Affirmation, Exhibits A-G, Memorandum 66 - 74 of Law
Plaintiff's opposition papers are intended to respond to Mot. Seq. 1 and Mot. Seq. 2. Plaintiff is advised that court rules require plaintiff to use numbered exhibit tabs.
Upon the foregoing papers and the oral argument held on March 8, 2017, the court determines as follows:
Plaintiff, a not-for-profit corporation, is the union of active firefighters of the City of Yonkers Fire Department. Defendants are The City of Yonkers, Yonkers City Council and Department of Housing and Buildings. In 2003, FC Yonkers submitted two petitions to amend the City of Yonkers Zoning Ordinance and obtain site plan approval in connection with a proposed Ridge Hill Project that would include mixed use residential and commercial development. As required by law, a SEQRA review process ensued. With respect to fire protection services for the Project, the Draft Environmental Impact Statement ("DEIS") [Pltf's Ex. B] provided, in pertinent part, under the section for "Mitigation Measures" as follows:
Section III (2) "Fire - The mitigation of significant impacts on fire protection will be addressed both by improvements to the infrastructure and the addition of new fire fighting and supervisory personnel......Based on the projected increase in residents, employees and retail/entertainment visitors, the Yonkers Fire Department may need to increase its current staffing and equipment as well as consider the construction of a new fire station......" [Pltf's Ex. B, May, 2004, page III.K-19].
The City Council accepted a Final Environmental Impact Statement ("FEIS") on or about May 24, 2005, held hearings in June, 2005, and received public comments on the FEIS until July 7, 2005. On December 9, 2005, the City Council adopted a Statement of Findings [Resolution No. 258-2005] that stated, in pertinent part:
"The mitigation of impacts on fire protection will be accomplished by improvements to the infrastructure and the addition of new fire fighting and supervisory personnel."[Pltf's Ex. E, pages 156-157]
On July 11, 2006, the City Council adopted Resolution No. 137-2006 to confirm and ratify its Statement of Findings, including mitigation measures relating to fire protection services and to supplement the findings regarding the project sponsor's financial contribution and obligation to the design and construction of a new firehouse. The Supplemental Findings state, in pertinent part:
"The Project Sponsor has, by way of implementing the Findings, offered to construct a firehouse to service Ridge Hill and the fire service district within which Ridge Hill lies, on land to be acquired or otherwise provided by the City of Yonkers at the City's cost. The Project Sponsor has agreed to undertake design and construction of the firehouse, provided that land acquisition and permitting will be undertaken by the City."[Pltf's Ex. G, Resolution No. 137-2006, page 5]
Toward this end, the Project Sponsor's financial obligation, as set forth in the resolution, was the lesser of the actual cost of constructing, but not of fitting out or furnishing the firehouse, or $3 million. The resolution establishes a contingency that if through no fault of the Project Sponsor, construction did not commence by the date which is four months prior to the grand opening of Ridge Hill, the Project Sponsor would have the option of delivering $3 million to the City to be held in escrow, in lieu of its undertaking to construct a firehouse. Upon the fifth anniversary of the date of the resolution, i.e., July 11, 2011, the funds would be returned to the Project Sponsor.
Site plan approval for the Ridge Hill Project was granted in 2006. Ridge Hill opened in 2011 and includes retail stores, restaurants and entertainment activities including LegoLand and a cinema multiplex. Building permits for the Lowe's Home Improvement Center were issued in October, 2015 and August, 2016.
In October, 2016, plaintiff brought this action pursuant to CPLR § 3001 seeking, inter alia, a declaratory judgment: a) that as a result of the failure of the City of Yonkers and the developers of the Ridge Hill Project to comply with certain State Environmental Quality Review Act ("SEQRA") mitigation measures allegedly mandating the construction and staffing of a new firehouse, there exists a significant threat to public safety and to the plaintiff members firefighters; b) directing the construction and staffing of the new firehouse; and pursuant to CPLR Article 63, a permanent injunction restraining and enjoining the City defendants from issuing any additional temporary certificates of occupancy for the proposed Lowe's Home Improvement Retail Center at the Ridge Hill Project or any further permits at the Ridge Hill Project until either: 1) the firehouse has been constructed and it is staffed with the necessary firefighting and supervisory personnel; or 2) there is a firm timetable ordered by the court and subject to the court's continuing oversight, review authority and jurisdiction for the construction and staffing of the firehouse. Motion Sequences 1 and 2: Defendants' Motions to Dismiss for Failure to State a
Cause of Action
Presently before the court are the FC Yonkers defendant's [Mot. Seq. 1] and the City defendants' [Mot. Seq. 2] separate motions to dismiss the complaint for failure to state a cause of action (CPLR 3211[a][7]). The causes of action are summarized as follows:
First Cause of Action: Declaratory Judgment pursuant to CPLR § 3001 that the firehouse must be constructed and staffed as required by the City Council's SEQRA determination (the Findings and Supplemental Findings), and that defendants be directed and be compelled by the court to construct and staff the firehouse.
Second Cause of Action: Declaratory Judgment pursuant to CPLR § 3001 that the City defendants, based upon their failure to comply with the mitigation measures under SEQRA, must take immediate action to acquire or provide land for the construction of the firehouse and commit to the addition of new firefighting and supervisory personnel, so that the firehouse can be staffed.
Third Cause of Action: Declaratory Judgment pursuant to CPLR § 3001 as against the City Council, as Lead Agency, that under SEQRA, the City Council has failed to meet its obligation as lead agency to ensure that conditions established through the SEQRA process were satisfied and direct that the City Council require the immediate construction and staffing of the firehouse in accordance with its SEQRA determination (the Findings and Supplemental Findings).
Fourth Cause of Action: Declaratory Judgment pursuant to CPLR § 3001 as against FC Yonkers that it immediately begin construction of the firehouse (on the land to be acquired or provided by the City) or immediately remit $3,000,000. to the City for the City to hold for the construction of the firehouse.
Fifth Cause of Action: Declaratory Judgment pursuant to CPLR § 3001 as against the City, City Council and the Building Department that the City and/or the City Council be directed to immediately proceed to acquire or provide land for the construction of the firehouse and commit to the addition of new firefighting and supervisory personnel, so that the firehouse can be staffed.
Sixth Cause of Action: Permanent Injunction pursuant to CPLR Article 63 against the City and the Building Department that the City and the Building Department be permanently enjoined and restrained from issuing any additional Temporary Certificates of Occupancy and/or Certificates of Occupancy for the Lowe's Improvement Center and/or the operation of the Ridge Hill Project, or any further permits at the Ridge Hill Center and/or operation of the Ridge Hill Project until either the firehouse has been constructed and it is staffed with the required firefighting and supervisory personnel and/or there is a firm timetable established by the court and subject to the court's continuing oversight, review authority, and jurisdiction for the operation and staffing of the firehouse.
Defendants contend in their respective motions to dismiss that plaintiff lacks standing to bring claims for declaratory relief based upon alleged SEQRA violations. They further contend that even if plaintiff has standing, the action is not ripe for judicial review in that no justiciable controversy exists. Lastly, they assert that an action for a declaratory judgment is an inappropriate remedy. The court will examine each of these issues.
Plaintiff is a not-for-profit corporation / labor union whose members are firefighters in the City of Yonkers. As such, and not contested, plaintiff is a legally cognizable entity that is authorized to commence litigation. Plaintiff essentially alleges the safety of its members, and the safety of the public at large, is imperiled by the lack of fire fighting facilities in Yonkers. They contend this was recognized by the defendants when the SEQRA findings were adopted by the City Council, as the lead agency, and as the legislative body that approved the zoning amendments leading to the construction of Ridge Hill. Plaintiff alleges there are facts that when proved will show the mitigation measures adopted as part of the SEQRA process must be implemented, essentially before it is too late, and a tragedy occurs, either at Ridge Hill, or elsewhere in Yonkers. Plaintiff emphasizes the recent approval of the Target construction project on Austin Avenue, in the immediate vicinity of Ridge Hill, the approval of which, it is alleged, was predicated upon the SEQRA findings as to the need for additional fire protection relative to the Ridge Hill project, will further exacerbate the already dangerous circumstances.
"A court can act 'only when the rights of the party requesting relief are affected', and therefore a controversy is not justiciable unless the party requesting relief has 'an interest sufficient to constitute standing to maintain the action.'" Acevedo v NYS Dept. Of Motor Vehicles, ___ NY3d ___ 2017 WL 1839057 [2017]; Society of Plastic Indus. v City of Suffolk, 77 NY2d 761, 772 [1991]; American Ins. Assn. v Chu, 64 NY2d 379, 383 [1985]. Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be addressed at the outset of litigation. To establish standing, plaintiff must show the existence of an "injury in fact" in order to demonstrate that it has "an actual legal stake in the matter being adjudicated." Society of Plastics Indus. v City of New York, supra at 769, 772.
It is well settled that 'the purposes of SEQRA...are to encourage productive and enjoyable harmony with our environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state. Society of Plastics Indus. v County of Suffolk, supra. To establish standing, within the context of environmental review under SEQRA, the harm that is alleged must be specific to the individuals who allege it, and must be different in kind or degree from the public at large. That more than one person may be harmed does not defeat standing. The number of people who are affected by the challenged action is not dispositive of standing. Standing rules should not be 'heavy handed' or applied "in an overly restrictive manner where the result would be to completely shield a particular action from judicial review." Sierra Club v Village of Painted Post, 26 NY3d 301, 311 [2015], quoting Matter of Assn. For a Better Long Is., Inc. v NYSDEC, 23 NY3d 1, 6 [2014]. Fire fighters are clearly within the ambit of danger when called upon to extinguish fires, as are the civilians who are affected directly or indirectly by a particular fire, in the event there is not sufficient protection resources available to protect the latter group. Further, the injuries that may befall plaintiff's members are not necessarily the same as may befall non-members who are nevertheless affected by the same potential peril. Hence, the court finds that plaintiff has standing to bring this action.
The issue of whether there is a justiciable controversy that allows the court to intervene is dependant upon whether the court is being called upon to render an advisory opinion, or to resolve a legitimate dispute between adverse parties. A controversy is said to exist where the plaintiff asserts rights which are actually challenged by the defendant. A justiciable controversy must involve a present, rather than hypothetical, contingent or remote, prejudice to the plaintiff. American Ins. Assn. v Chu, 64 NY2d, supra at 383. The dispute must be real, definite, substantial, and sufficiently matured so as to be ripe for judicial determination. Waterways Dev. Corp. v Lavalle, 28 AD3d 539 [2d Dept 2006].
An action for a declaratory judgment must be supported by the existence of a justiciable controversy. The primary purpose of a declaratory judgment action is to stabilize an uncertain or disputed jural relationship with respect to present or prospective obligations. Dupigny v St. Louis, 115 AD3d 638 [2d Dept 2014], quoting Chanos v MADAC, Inc., 74 AD3d 10071008 [2d Dept 2010].
Here, plaintiff alleges there is an obligation on the part of the defendants to comply with SEQRA mitigation measures relative to the construction of the firehouse on land acquired by the City, together with a contribution of $3,000,000. from FC Yonkers. The City argues the SEQRA process did not give rise to a contract and neither plaintiff nor the court may force the City to build a firehouse which is a discretionary function involving a determination by the City Council to spend taxpayers' money for a particular purpose. In response, plaintiff contends this is not a contract claim, but rather in the nature of enforcement of obligations of the parties under the SEQRA findings. They cite Committee for Environmentally Sound Development, Inc. v City of New York, 190 Misc 2d 359 [Sup Ct. NY County 2001] which held that under SEQRA, the lead agency has a continuing duty to ensure that conditions derived through the SEQRA process are followed by the project developers.
The court finds that plaintiff has sufficiently demonstrated, by affidavits and other submissions, that the facts, as developed, may compel affirmative action by the City pursuant to the SEQRA findings. Whether that time has come cannot be determined upon the papers before the court, but the matter does merit further consideration to the extent that issue should be joined in this case, followed by pre-trial disclosure proceedings, including the consideration of experts' opinions. For now, the court finds a justiciable controversy exists regarding the City's compliance with the SEQRA mitigation measures adopted in the Supplemental Findings by Resolution No. 137-2006.
Concomitant with the court's finding that there is a justiciable controversy, the court finds at this juncture, i.e., the pleadings stage, that plaintiff has demonstrated that declaratory judgment relief may lie. Plaintiff does not challenge the SEQRA findings, the adoption of the zoning resolutions, or the issuance of the building permits. Rather, plaintiff alleges the additional retail space at Ridge Hill, and Austin Avenue, will place further strain upon the resources of the Yonkers Fire Department, and that now, after 11 years, there is a compelling need for the action contemplated by SEQRA and the City's enactments to occur. Whether plaintiff is correct or not must be determined after further factual development. However, that effort should not be thwarted under the arbitrary guise of a procedural roadblock. Plaintiff does not challenge the actions taken by an administrative agency that would require the timely filing of an Article 78 Proceeding. Rather, it challenges the alleged disregard by the defendants of SEQRA mitigation measures that it describes as "mandatory". Defendants disagree and argue that it is purely a discretionary call on the part of the City as to whether, if at all, or when in the future, the City will build a firehouse, and whether FC Yonkers will be called upon to contribute $3,000.000 toward the firehouse's construction.
The complaint under review alleges the safety of plaintiff's members and the public at large is jeopardized by the City's non-action to date, due to deficiencies in the City's fire protection measures attributable to the failure of the City to implement the SEQRA findings. The court finds that at this pre-answer stage of the proceedings, it would be unjust to dismiss the complaint without affording plaintiff, and defendants, the opportunity to further develop the facts in each party's favor. The court finds there is an issue now placed before it that should not be lightly cast aside, or await the occurrence of a tragedy. Whether plaintiff will prevail is not the issue now, but only whether within the four walls of its complaint, a cause of action is stated against the City or F.C. Yonkers.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Davis v South Nassau Community Hosp., 26 NY3d 563, 572 [2015]; Anzora v Saxon Ave. Corp., 146 AD3d 848 [2d Dept 2017]. That is, such a motion to dismiss should be granted only where, even viewing the allegations as true, the plaintiff cannot establish a cause of action. Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409 [2001]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Anderson v Armentano, 139 AD3d 769 [2d Dept 2016].
The first cause of action seeks a declaratory judgment that the firehouse must be constructed and staffed as required by the City Council's SEQRA determination (the Findings and Supplemental Findings). This cause of action is sustained.
The second cause of action seeks a declaratory judgment that the City and/or the City Council is in violation of SEQRA and the City and/or City Council must take immediate action to acquire or provide land for the construction of the firehouse and commit to the addition of new firefighting and supervisory personnel. This cause of action is sustained.
The third cause of action seeks a declaratory judgment that the City Council, as lead agency under SEQRA, has failed to meet its obligation to ensure that conditions established through the SEQRA process were satisfied and direct that the City Council require the immediate construction and staffing of the firehouse. This cause of action is sustained.
The fourth cause of action seeks a declaratory judgment that FC Yonkers immediately begin construction of the firehouse (on land to be provided by the City) or immediately remit $3,000,000. to the City for the City to hold for the construction of the firehouse. This cause of action is sustained.
The fifth cause of action seeks a declaratory judgment that the City, the City Council and/or the Building Department have failed to meet their duty to the public of providing the general function of fire protection to protect the public health, safety and general welfare of its citizens and that the City and/or City Council be directed to immediately proceed to acquire or provide land for the construction of the firehouse and commit to the addition of new firefighting and supervisory personnel. This cause of action is dismissed, upon the finding that plaintiff represents only its members and not the general public. That the general public may be directly or indirectly affected by the outcome of this litigation does not give rise to plaintiff's authority to advocate for other than its own members.
The sixth cause of action seeks a permanent injunction is denied, as plaintiff has an adequate remedy at law, namely enforcement of the court's orders should plaintiff hereafter be granted the relief it demands by way of declaratory judgment.
Motion Sequence 3: Plaintiff's Motion for a Preliminary Injunction
The court finds that plaintiff has not, thus far in these proceedings, demonstrated that it can satisfy the test to be employed when considering the granting of a preliminary injunction, namely (1) likelihood of success on the merits; (2) irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor. See CPLR §§ 6311 and 6312. That the court has determined that four of six causes of action merit joinder of issue, and disclosure, signifies only that those causes of action state a cause of action. That being said, there is an insufficient showing by plaintiff that facts presently exist, other than by conjecture and speculation, that require the conduct of a hearing. DiFabio v Omnipoint Communications, Inc., 66 AD3d 635 [2d Dept 2009]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072 [2d Dept 2008]; Marders the Landscape Store v Barylski, 303 AD2d 465 [2d Dept 2003]. The application for a preliminary injunction is denied without a hearing.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby
ORDERED that the motion of defendants, made pursuant to CPLR 3211(a)(7) is granted as to the fifth and sixth causes of action, and denied as to the first, second, third and fourth causes of action; and it is further
ORDERED that defendants shall file their respective answers, within the time frame prescribed by statute, upon the filing of this Decision/Order in NYSCEF; and it is further
ORDERED that the motion of plaintiff, made pursuant to CPLR § 6311, for a preliminary injunction, is denied; and it is further
ORDERED that the parties shall appear at the Preliminary Conference Part of the Court, Room 811, on June 12, 2017, at 9:30 a.m.
The foregoing constitutes the Decision/Order of the court. Dated: May 11, 2017 White Plains, New York E N T E R, HON. LAWRENCE H. ECKER, J.S.C.