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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK - CIVIL TERM - PART 11
-------------------------------------------------------XIn the Matter of the Application of
CHELSEA BUSINESS & PROPERTY OWNERS ASSOCIATION,LLC, d/b/a, CHELSEA FLATIRON COALITION,
Petitioner,
For an Order Pursuant to Article 78 of theCivil Practice Law and Rules
Index No.-against- 113194/10
THE CITY OF NEW YORK, SETH DIAMOND, Commissionerfor the Department of Homeless Services for theCity of New York ("DHS"); GEORGE NASHAK, DeputyCommissioner for Adult Services for DHS; ROBERT D.LIMANDRI, Commissioner for the Department ofBuildings of the City of New York ("DOB") FATMAAMER, P.E., First Deputy Commissioner for DOB;JAMES P. COLGATE, R.A., Assistant Commissioner toTechnical Affairs and Code Development for DOB; VITOMUSTACIUOLO, Deputy Commissioner for the Department ofHousing, Preservation & Development of the City of NewYork; BOWERY RESIDENTS' COMMITTEE, INC.; 127 West 25th,LLC; and DANIEL SHAVOLIAN,
Respondents.-------------------------------------------------------X
60 Centre StreetMOTION New York, New York
February 7, 2011,
B E F O R E:
HONORABLE JOAN A. MADDEN,
Justice
A P P E A R A N C E S:
BRACEWELL & GIULIANIATTORNEYS FOR THE PETITIONER
1251 AVENUE OF THE AMERICASNEW YORK, NEW YORK 10020
BY: DANIEL S. CONNOLLY, ESQ.,RACHEL B. GOLDMAN, ESQ., AND: DAVID J. BALL, ESQ.,
CONTNUED:
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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APPEARANCES CONTINUED:
NEW YORK CITY LAW DEPARTMENTOFFICE OF THE CORPORATION COUNSEL
100 CHURCH STREETNEW YORK, NEW YORK 10007
BY: CHRISTOPHER G. KING, ESQ.,
GIBSON DUNN & CRUTCHER LLPATTORNEYS FOR RESPONDENT BRC
200 PARK AVENUENEW YORK, NEW YORK 10166
BY: RANDY MASTRO, ESQ.,
AND: GEORGIA K. WINSTON, ESQ.,
CLAUDE CASTRO & ASSOCIATES, PLLCATTORNEYS FOR RESPONDENT 127 W 25TH
355 LEXINGTON AVENUENEW YORK, NEW YORK 10017
BY: CLAUDE CASTRO, ESQ.,
VINCENT J. PALOMBO, RMR, CRROFFICIAL COURT REPORTER,
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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THE COURT: Good afternoon. Nice to see you
all again.
MR. CASTRO: Good afternoon, your Honor.
THE COURT: I will hear movant in support of
their preliminary injunction.
MR. CONNOLLY: Daniel Connolly from Bracewell
& Giuliani, on behalf of Chelsea Flatiron Coalition.
Good afternoon, your Honor.
The papers and briefing in this case are
significant and I don't want to over burden the record,
so I'll just focus on a couple of what I think are the
key issues here.
Just by way of quick catching us up, the
Court has already ruled in this case, and has sent a
portion of the case to be heard before the Bureau of
Standards and Appeals. That matter is scheduled for a
hearing, this is on the zoning piece of the action that
was commenced before your Honor back in October. That
hearing will take place on March the first, or the
first hearing, as we understand it, will take place on
March the first, and beyond that, I don't have any
other information. And so we will obviously not
discuss that aspect of the case today.
What is left before your Honor is our
application for a preliminary injunction for relief in
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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connection with other aspects of this project.
Again, this is the Bowery Residents Committee
is seeking to construct, renovation, do a gut
renovation of a facility at 127 West 25th Street, a
building that was both a factory and a warehouse
converted into a -- a homeless shelter, and what they
refer to as a vertical campus that will provide
services for the homeless residents.
There will be three identified groups of
residential homeless in the facility segregated into
one group of two hundred; another group of 96 and a
third group of 32 for a total of 328 homeless people --
will be the census of that facility.
THE COURT: Now, what is your understanding
as to who is operating those three separate groups, if
you can call them --
MR. CONNOLLY: The three are all operated by
the -- I'm going to call them BRC for ease of this
discussion, your Honor.
BRC will be operating all three programs.
They will be using --
THE COURT: So BRC has a contract with the
City regarding the operation of the two hundred bed
homeless shelter.
MR. CONNOLLY: Well, there's a little bit of
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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an issue. I'm not 100 percent sure, but in their
papers, BRC has indicated that --
THE COURT: Your argument is that all three
are actually City facilities and that they are going to
be completely funded by the City, if I understand your
argument correctly, and therefore they should be
considered City facilities for ULURP and certain other
legal requirements.
MR. CONNOLLY: That's correct. Again, it's
not my assertion, it is what is in the myriad of public
documents and public statements that have been --
THE COURT: How do you get there for each of
those facilities?
MR. CONNOLLY: How do I?
THE COURT: How do you get to that position
based upon the three different programs?
MR. CONNOLLY: So the first program is the
homeless -- the --
THE COURT: Two hundred bed --
MR. CONNOLLY: -- the two hundred bed
shelter. So there is a contract. There is a dispute,
I think, as to whether or not it's fully executed, but
there is a contract which we have been provided,
provides for the provision of those services by BRC
funded entirely by the City of New York.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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In addition, there's a program called the
reception center, which is a preexisting program funded
by the City of New York at a different location which,
according to statements made by the BRC --
THE COURT: Who operates that program at the
present time?
MR. CONNOLLY: BRC.
THE COURT: Is that the program that is at
the Lafayette Street facility?
MR. CONNOLLY: That's correct.
THE COURT: Okay.
MR. CONNOLLY: And so that facility will be
moved up to 127 West 25th Street under their plan and
so that's how you get to 296.
THE COURT: No, I understand the numerical
distinctions. I'm interested in the relationships.
MR. CONNOLLY: And the final program is the
32 bed detox center, which is also funded in part by
the City of New York, not necessarily by the Department
of Homeless Services, licensed by the State of New
York, but it again is for homeless individuals who fit
certain criteria, in this case, substance abuse
criteria --
THE COURT: It is an alcohol and substance
abuse crisis center -- that's what I recall from the
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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PROCEEDINGS
papers --
MR. CONNOLLY: That's my understanding.
And there is also, in terms of certain folks
who have mental illness or -- are not under --
sufficiently treated for medication or what have you, I
believe that program can serve those folks as well,
where they go into the reception center, whereas the
more -- the folks that were being treated or the
treatment is taking are in the regular two hundred bed
facility.
All three of these are run by the same staff,
run by the same organization. All the programs
dovetail together, in fact, according to BRC, that's
what this is all about, it's created an integrated
vertical campus, it is one facility and so in
addition -- and also beyond this, your Honor -- I don't
think we spent too much time discussing this, but there
are other programs in the facility that are not
residential.
So there is 328 bed capacity, but also there
are intake centers and day treatment facilities as
well, but all of it -- again, part of the value of the
program according to BRC is that it's all integrated
and everybody gets the benefits of all the services.
THE COURT: Are there certain cost savings or
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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PROCEEDINGS
efficiency concerns that they're all getting benefits
of the same program?
MR. CONNOLLY: I don't know, but I would
assume there's efficiencies of scale -- but the problem
is, your Honor -- I see what you're getting at, getting
me to the point quickly -- is that there is a law in
New York City that says you cannot have a facility
serving more than two hundred homeless people.
THE COURT: That's under the administrative
code, 312 -- 21 dash 312.
MR. CONNOLLY: Yes, and the reason for that
is the legislative history is very clear, this City has
a long history notwithstanding its enormous obligations
to provide for its neediest citizens has a history of
warehousing homeless in facilities that are too large,
that create both an unsafe environment for the
residents, but equally important provide an unsafe
environment for the community. And that is the purpose
and genesis behind that law, and there's really no
question about that. It's two hundred bed limit census
on -- when you look at the legislative history -- on a
particular facility.
And so the impact designed to be protected
against by that statute would be -- would have no
effect if it was funded by different sources, no effect
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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PROCEEDINGS
if it was -- if they tried to bifurcate it with walls
what have you. It's one facility, one census and in
this case is 328 beds.
And I think what is telling here, your Honor,
is in an effort to try to deal with this infirmity in
the situation, they cite this exception. And there is
an exception that was put into the law upon the closing
of Camp LaGuardia in 1998. And -- I'm sorry 2000 -- a
decade goes by --
THE COURT: That exception permits a facility
with four hundred or less beds --
MR. CONNOLLY: Allows the City two
opportunities to create facilities up to four hundred,
because the capacity that was lost in Camp LaGuardia is
Camp LaGuardia has a consensus of 1,700.
And so the City -- both the City and BRC say,
even if you ultimately rule that we do violate the
Administrative Code, Section 312 because it's too many
beds, it's still okay, your Honor, because -- it's
still okay, your Honor, because we have this exception.
The problem with that is that when you invoke
the Camp LaGuardia exception, you are essentially
acknowledging that this facility subject to ULURP as is
articulated specifically in the statute, the
Administrative Code statute.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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When you step back, it make sense because the
City is saying, okay, we're trying to be practical,
trying to live in the real world -- and so are we,
trying to live in the real world, so you're taking a
huge hit in capacity with the closure of Camp
LaGuardia, so we are going to give you a couple of
opportunities, a safety valve, but when we do we want
to make certain these types of mega facilities, i.e. in
excess of two hundred, all the protections, all the
rules, all the regulations are strictly adhered to
before you go ahead and do that.
So it's not just like a free pass and one of
the obligations if you're going to invoke that is
ULURP.
And of course ULURP, the key to the Uniform
Land Usury Review Process, ULURP, is that it provides
for levels of community input, and let's just taking a
quick step back, your Honor. What this is about,
obviously, is about having an opportunity to have the
community's voice heard, to have the impact of this
type of facility evaluated as it is supposed to be
evaluated. The various regulatory schemes, whether
they be the fair share review, the environmental
reviews of the State or of the City, or of ULURP, the
Uniform Land Review Process, all of this is designed to
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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PROCEEDINGS
give the community a voice so that the decisions that
are ultimately made by the City of New York are as
informed as they possibly can be.
It the quintessential part of the process
where we try to balance having eight-and-a-half million
people live together.
There is no question that the City has an
obligation to provide for its neediest citizens. It is
a legal obligation under the consent decree and there's
a moral obligation. We get that.
But the community also has rights and the key
to all of this, what makes us all coexist with
eight-and-a-half million of us in the City is that
these rights are evaluated. No one group gets a louder
voice than the other group. If we didn't have it that
way, we would have chaos, obviously.
And so these reviews aren't just, you know,
boxes that need to be checked on a form before you can
move forward with construction and to that point, if I
can just highlight two quick -- or three quick
things -- before I get to ULURP -- because we all agree
that CEQR, which is the City version, and SEQRA, State
and fair share have to be done, right, and then ULURP
is the little more complicated one and if the Court
desires, we will go into that in more detail.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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PROCEEDINGS
But just with respect to the State and City
environmental reviews, if I can for one second read:
With respect to compliance to SEQRA, it is noted that
SEQRA incorporates, quote, the consideration of
environmental factors into the existing planning,
review and decision-making processes of state and local
government at the earliest possible time -- quote from
the statute -- the purpose of SEQRA is to promote
efforts which will prevent or limit damage to the
environment and enhance human and community resources,
community character is specifically protected by
SEQRA -- and again, I'm quoting the statute -- at the
earliest possible point.
The City version of that say law says:
Expressly requires, quote, full compliance with its
provisions as a prerequisite to undertaking any
proposed action that may have a significant effect on
the environment. And the same --
THE COURT: What is the proposed action here?
Is the proposed action the contract with Bowery
residents? I'm assuming your argument is that the
action here is the renovation, or construction that is
going on in the in relation to the building itself?
MR. CONNOLLY: I think that's a fair
question. The proposed action that we're talking about
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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is both the construction and the occupancy. So what --
the relief we've asked for --
THE COURT: It's not the contract, it's the
construction and the occupancy --
MR. CONNOLLY: Well, we've also pled in the
course of these papers that the failure to register the
contract -- and that's another technical issue, which I
think is fully briefed and unless you want to hear more
about it, I don't need to go into it.
THE COURT: No, the registration is fully
briefed, counsel.
MR. CONNOLLY: Yes, I think that's right.
And look, I think the important issues
here -- I'm trying to stay as practical and in the real
world as possible and keep us focused --
THE COURT: Is your argument that the
compliance with the city and state environmental laws
is meaningless if it's done at the end stage of the
project as opposed to -- prior to the commencement of
the construction or -- construction, let me put
occupancy aside.
MR. CONNOLLY: And the answer to that is
absolutely, yes.
THE COURT: Now, you said construction or
occupancy --
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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MR. CONNOLLY: Or occupancy, absolutely, yes.
If we -- if sit a fate accompli -- that's the effort
here. The effort is to make this sort of a done deal,
to adjust the status quo such that it is a done deal
and as you try to voice your concern or try to get
input into the decision-making process as the laws
rules of the City of New York mandate, you are now
arguing against a done deal. And you are also putting
the petitioner, are you putting the City and putting
the Court in a position of having to make a decision
which is different now.
Right now there's nobody being housed in this
facility. Right now this facility doesn't exist. The
time to be having these discussions, the time for the
City of New York to be engaging in these reviews is
prior to spending City money on this facility, is prior
to occupying this facility, is prior to basically
making all the decisions. Because it makes the
conclusion forgone.
Obviously now the City --
THE COURT: So if they haven't occupied the
facility, that would be acceptable in your viewpoint to
conduct these reviews?
I think that's the City's argument at this
point and Bowery Residents that these reviews are being
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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conducted at this point.
MR. CONNOLLY: I think, no. Well, again,
practically speaking, I believe that we already have a
serious problem but this has not happened yet. And the
City has indicated in public statements in the past a
long time ago they were doing these reviews, they
weren't done. When we were all before you in oral
argument in November, they were going to be done by the
end of the year they told the Court. The Court sort of
questioned that, is it really going to be by the end of
the year.
They're still not done. They're still
telling you today you will see from the papers
submitted they are four to six weeks away which happens
to coincide nicely with the planned occupancy of this
facility and so I am troubled by that.
Having said that, if the Court is asking,
trying to be practical and live in the real world,
which we all have to do, if the Court is saying would
an injunction against the occupancy of this facility
while these reviews are going forward and until such
time as they comply with all the statutes, that is not
obviously something that I would object to.
I recognize --
THE COURT: It's not quite the way I phrased
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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it, counsel.
MR. CONNOLLY: I know.
THE COURT: I understand why you might want
to phrase it that way --
MR. CONNOLLY: I'm saying the harm is being
done every minute of every day. Last Saturday 25th
Street shut down while cranes were going in. They were
working feverishly on changing permanently the
character of this building.
THE COURT: That's the interior of the
building, as I understand it.
MR. CONNOLLY: Yes --
THE COURT: I understand it is a gut
renovation and it appears to be a gut renovation, but
it's my understanding it's the interior of the
building.
MR. CONNOLLY: You are 100 percent correct,
it is a gut renovation, it is being converted into a
homeless shelter and so it's --
THE COURT: How many stories is the building
again?
MR. CONNOLLY: It's 12 stories.
100000 square feet. And the -- as you probably recall,
I'll just say it, the idea is that all, I think, except
the top two floors will be homeless programs and health
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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care programs and the upper two floors will be offices
for -- executive offices for BRC.
And so the -- I apologize if I didn't really
answer your question, but my point is that the harm
that is being done -- and this is what the case law --
we get good guidance on this from Connor versus Cuomo,
Senior, and Stop BHOD versus the City of New York.
Those cases stand -- found the Court in almost
identical, conceptually identical -- Connors is, in
fact, a homeless case; and Stop BHOD is the Brooklyn
House of Detention, and the circumstances are
different, but in both places the Court said, look, I'm
balancing the equities, in reviewing the situation, it
is the fact that the law requires a community voice in
this process.
That has been taken away by moving forward
without the benefit of the community. That damage is
done. And there comes a point in time -- this comes
out of the Stop BHOD case, I may be citing Farrar
versus Dinkins -- but there comes a point in time where
if the reviews haven't been done, they ought to have
been done and now it's irreparable harm and both cases
are contexts where the courts issued preliminary
injunctions either from construction and -- or from --
THE COURT: BHOD involved a construction --
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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enlarging --
MR. CONNOLLY: Expansion.
THE COURT: -- expansion of the present
facility.
Here there's no expansion, it's internal
renovation.
MR. CONNOLLY: Again, your Honor, you are
correct, but I'm not sure that's the point. I think --
I know it is a distinction that BRC makes, but the
point is -- we're talking about a radical new never
before used purpose for this, right? And so --
THE COURT: Is that what you are -- is your
argument that this is going to change the character of
the community because of the nature of the use of the
building?
MR. CONNOLLY: Yes, I think -- and this is
the kind of thing that will be reviewed in an
environmental -- if they really do it -- in an
environmental review. Again, the character of the
community, the impact on the resources of the
community. These are all things that are legitimately
before the agency reviewing on a environmental level
fair share.
Think about this, in fair share, the whole
point of this is we take a community and before we
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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impose upon that community another social service
program which draws resources in ex -- to a degree
greater than the average citizen, before we do that,
we're supposed to do in New York City this analysis.
How burdened is this particular community so that we
spread it out. This goes back to this trying to have
some kind of order in a City of so many needs and so
many rights and varying, competing interests.
Eight-and-a-half million people.
So we have this regulatory scheme and it has
to be adhered to and when it's not adhered to, that's
when the community has no place else to go other than
to you, to the courts, and that's where we are.
The horse is out of the barn but it's not off
the property yet. And that's how I view it. I view it
as there's still an opportunity to bring this back in,
do the reviews, get a fair and honest assessment of
what is the impact in this community, allow the
community's voice to be heard in an orderly, informed
way and then the decisions will be made as they're
made.
Now, this is focusing on SEQRA and CEQR and
fair share, where we all agree -- there's one little
piece of it that is not contentious is that we all
agree those reviews need to be done.
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ULURP, on the other hand, is another story
and I think it's worth spending a few moments, your
Honor, allowing me just to focus the reasons why I
believe --
THE COURT: One moment.
(There is a pause in the proceedings.)
THE COURT: Go ahead.
MR. CONNOLLY: So with the Court's indulgence
I just will spend a couple of minutes about ULURP,
unless you want to stick with the environmental --
THE COURT: No.
I have the City charter here. Go ahead.
MR. CONNOLLY: Good old section 197.
So the City charter calls for Uniform Land
Use Review Process under certain circumstances and I
would say this project, your Honor, falls --
THE COURT: What does the Land Use Review
procedure entail, practically speaking?
MR. CONNOLLY: Practically speaking? That's
a great question because I have a chart here to answer
that question.
And what the chart screams out --
THE COURT: The only thing is I can't see the
chart. Did you submit it in your papers?
MR. CONNOLLY: It's not in our papers, your
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Honor. I've got copies.
THE COURT: Will you show counsel.
Do you object --
MR. CONNOLLY: It's off the City's website.
MR. MASTRO: I have no objection, your Honor.
MR. KING: No objection, your Honor.
MR. CONNOLLY: Do you mind if I pass that up.
(Handed)
MR. CONNOLLY: I apologize for the font. But
I'll tell you what -- in short, your Honor, what the
process calls out for is community involvement. It is
an opportunity for elected officials to weigh in. It
starts with the City Planning Commission; then it goes
to community boards, which are -- which represent the
citizens at the very, very local level; it then has
borough president review, which has its own
constituencies; then you have an opportunity for the
City Planning Commission again, and if it's passing all
these processes, and then on to the City council,
again, getting community benefit through elected
officials.
The point of ULURP is exactly what I was
discussing before, which is to say to create some kind
of order under land use projects. And so especially
when we're going to change in significant ways the
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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character of a neighborhood, the character of the use
and occupancy of a particular building, and so -- it's
not just there because it's onerous or it takes time or
what have you, it's there for important, legitimate
reasons and the question is why you work in this case.
And I submit to your Honor basically three
provisions of ULURP that we can focus on, and I will be
very, very brief in this regard.
You have your chart in front of you, so I'll
give you the exact cite, Section 197 C A 11 talks about
the acquisition of land by the City by lease. That's
issue number one. The question is -- if BRC and the
City will tell you it doesn't apply under these
circumstances, your Honor, because this is a lease
between a private group, BRC, and a private landlord,
Daniel Shavolian.
But the reality is that the way that the
courts have decided what constitutes whether or not it
is in fact a City lease is -- and quoting from the
Farrar versus Dinkins decision -- whether the City's
interest will so predominate the use of the land to the
exclusion of the owner that effect on the community
will be the same as if the City had taken title to the
land.
And so in that respect, I just want to go
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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through with you your Honor a couple of examples of how
much control the City of New York will have over this -
THE COURT: I think your argument as to
control is that the Bowery residents will operate it in
accordance with DHS policies and procedures, that their
monitors will have access with the clients' consent to
the facility; DHS, the only referral system and they
must accept their referrals and that they must be
filled to 95 percent capacity and I think those were
some of the arguments in your brief.
MR. CONNOLLY: And in addition, for example,
the rent --
THE COURT: The rent. You indicate that DHS
will be paying all of the rent.
MR. CONNOLLY: 100 percent of rent --
THE COURT: What is that based on?
MR. CONNOLLY: It's in the contract, your
Honor, between the City of New York and DHS. At 7.2,
it's also --
THE COURT: 7.2 million annually and 76.1
over the term.
MR. CONNOLLY: Over the term -- but almost as
important to that is there's also a provision that says
DHS acknowledges, quoting, the lease for the shelter
provides for annual increases in rent payments over the
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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term of the lease and DHS represents that the yearly
budgets for the operation of the shelter shall include
sufficient moneys to pay for the annual lease payments
and the yearly increases in rent. That's Article 10 E
of the contract.
And so you named the critical points, but it
goes a little bit deeper than that. BRC must consult
with and receive written approval from DHS before
initiating any structural change, including renovations
and room reconfigurations, divisions or change in use.
BRC must provide home -- I'm sorry, must -- the
services you mentioned that they have to provide access
for audit and approval -- BRC may not make any changes
in any major program component or changes in the level
of paid or unpaid staff without DHS's prior written
approval.
It goes so deep, your Honor, that DHS must
even approve not only the shelter directors but also
the shelter's maintenance superintendent for the
building. The City -- in other words, the City of New
York has complete control over this and there's -- BRC
has no termination rights, that's another factor in the
contract.
And so go back to the language for just a
moment of Farrar versus Dinkins where it says that the
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City's interest will so predominate the use of the land
to the exclusion of the owner, that effect on the
community will be the same as if the City had taken
title of the land itself.
This is the example, quite frankly --
quintessential example of what's being discussed in
Farrar versus Dinkins. This is a City facility, funded
the rent 100 percent, the programs as best we
understand it at least 80 percent, more than 50,
80 percent of the programs are funded by the City of
New York. And so as a result we believe that this is
subject to the Uniform Land Use Review Process on that
prong.
Second -- there's three.
Second, involves this Camp LaGuardia issue.
Both the City and BRC in their papers have indicated
that if you don't accept their idea of segregating the
programs, if you say yes that breaches the census,
they're ready to hit you with Camp LaGuardia the
exception.
Fortunately -- or unfortunately that
exception mandates a ULURP review under section --
21-315 of the Administrative Code. That's in -- so in
effect -- and I don't like lawyers who do this, so I'm
not going to say that they're conceding that it's
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ULURP, but if you're going to take that road -- and
look, it's hard enough to fight City Hall, and the
people working for City Hall, but you can't keep
changing the bar, so it either is or isn't. They
either are asserting the Camp LaGuardia exception, in
which case they are putting this facility into the
purview of ULURP, or they're not and they're violating
Section 312 of the Administrative Code. And so one way
or the other -- but you can't have it both ways and
since they both assert it in their papers, the argument
to the contrary, I will for purposes of the argument
take the position they have now tripped this facility
into a ULURP review.
And then finally, the final provision of
ULURP is -- involves if it is part of a housing plan or
program, and the record is replete, your Honor, with
examples of, and statements made by the deputy
commissioner of the of Homeless Services that this
program is part of the City's plan, in fact, in arguing
the irreparable harm, they are telling your Honor that
if you were to stop this from moving forward, the harm
that you would visit upon the City's plan and the
City's ability to meet its burdens under Callahan or
under -- its obligations pursuant to law that houses
the homeless -- and in each of these three ways this
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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proposed project cries out for a ULURP review.
The fact that there hasn't been one and we
are -- I know your Honor in her order back in January
had said there's a couple of questions you want the
City, New York City, to answer, one of which is, you
know, when is the construction going to be done. And
so let's assume the answer to that question is in the
next couple of weeks. We are this deep into the
project and they haven't begun the ULURP process.
There's no question that that also constitutes
irreparable harm.
You couple the failure to do ULURP, the
failure to CEQR, the failure to do SEQRA, the failure
to do fair share, the fact that the defense to all that
is -- except for ULURP -- the defense for all that is:
Your Honor, we're doing it. It's moot. It's not ripe.
It's all these other issues.
But we've been hearing that for a very long
time. Bear in mind, just contextually, this whole
project began between BRC and the City of New York back
in October of 2009. There were significant
communication, e-mail communication between the City
and BRC in November of 2009, in December of 2009. We
are now in February of 11, and none of these reviews
have been done.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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Now ULURP they're saying they don't think it
applies. In my view they're wrong. As a result,
uniform in all of this has been the community has been
denied. Decent people just like us have been denied
their voice. And they've been denied their voice based
upon the City and BRC ignoring its own regulatory
scheme, and thereby silencing us with the hope that by
the time you really can get in front of someone who can
decide this, it's going to be too late and the balance
of equities will be asking this Court to, yes, the
voice of the citizens matters, but I've got 328 soles
sitting in the building and we've seen decisions -- I'm
sure the Court has read decisions as well where it puts
the Court in an impossible position. This would never
have come to light if it hadn't been for the Wall
Street Journal writing an article about this in March
of -- or May of 2010.
The first public hearing of this in any way
was hosted by Community Board Four. Not by DHS. Not
by BRC.
Mr. Rosenblatt, the executive director of
BRC, says -- admits that he was surprised by the fact
that the Wall Street Journal published this article.
It was an accident. None of these reviews would have
been undertaken and as we sit here now in February --
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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THE COURT: Well, someone notified the
community board of the contract. I forgot who, it was
stated in the papers. Bowery residents -- who
notified --
MR. CONNOLLY: I can clarify that. In
February of 2010, DHS --
THE COURT: Department of Homeless
Services --
MR. MASTRO: That's several weeks before the
Wall Street Journal article.
MR. CONNOLLY: The Wall Street Journal
article was in May, four months later.
MR. MASTRO: Four months later.
THE COURT: All right, Counsel, do you --
given the hour --
MR. CONNOLLY: I know it's late and I do want
to talk about -- if the Court wants to hear about the
issues regarding irreparable harm and balancing the
equities, but we can do that if the Court is willing to
later.
THE COURT: I think you covered that in your
papers and you cite various cases.
MR. CONNOLLY: Thank you, your Honor,
MR. KING: Christopher King for the municipal
respondents, Corporation Counsel's office.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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Your Honor, I will try to be brief.
When petitioner's counsel -- first of all,
he's right when he says there's no dispute about CEQR
and fair share.
We are doing it, we are on track to complete
those reviews in the next four to six weeks.
THE COURT: Can you tell me this, Mr. King,
one of the arguments petitioner makes is the fact that
there been no reviews, either CEQR, SEQRA, fair share
or ULURP if needed prior to the construction and at
this point prior to the -- well, let me rephrase that,
prior to the construction and prior to entering into
the contract.
MR. KING: Well, construction -- as we
explained is being done -- and as-of-right buildings
permit.
There is no obligation to perform any review
of an as-of-right buildings permit, under the zoning
resolution or any other law in the City.
So as far as in terms of the construction,
there's simply no review requirement so there's no
harm.
With respect --
THE COURT: There's no, is no review
required -- isn't it purpose of the statute as
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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petitioners have said is to permit community
involvement into some of the decision-making --
MR. KING: Absolutely.
THE COURT: And isn't the fact that
construction is ongoing and there is a contract in
place, even if it hasn't been registered, that there's
a contract between the City and Bowery residents
regarding the operation of the facility and the nature
of the facility itself is, what, 328 beds --
MR. KING: Your Honor, the question --
THE COURT: -- with a variety of programs, so
isn't it the type of facility that under the statutes
are meant to have community input or involvement --
MR. KING: Absolutely.
THE COURT: -- in the decision-making process--
MR. KING: Absolutely, your Honor,
absolutely, absolutely.
THE COURT: Their argument is the
construction is going forward now, the contract is in
place.
MR. KING: The contract is not in place, your
Honor. And petitioner's counsel stands up in court and
says the contract is signed, he is not correct.
He may have been told that by somebody at the
Department of Housing Services, Homeless Services, it
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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is not correct. There is no final contract. This is
not a fait accompli, in fact, the contract might be
adjusted or changed based on a fair share review, the
fair share review that we are currently performing or
based on CEQR --
THE COURT: Is it the landlord who has taken
all the risks in this project --
MR. KING: Absolutely.
THE COURT: -- if this contract is not
approved then all the landlord will be left with a
building that's been renovated to comply with the terms
of this contract and if after reviews, the programs
cannot be housed in these facilities, then the landlord
has lost whatever investment the landlord may have had
in terms of renovation, is that it?
MR. KING: Right. That's entirely possible.
We hope that wouldn't happen but it's possible -- I
think BRC explained that they are at risk at this time.
THE COURT: BRC or the landlord?
MR. KING: BRC.
THE COURT: BRC is funding --
MR. MASTRO: Yes. The risk is BRC's risk,
your Honor. We are the ones funding all the
renovations to enter into a 33 year lease.
THE COURT: Are you expecting any
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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reimbursement from the City for the renovation?
MR. MASTRO: Your Honor, no, only in the
sense that we are hoping that the contract goes through
and therefore that will involve some longer term use of
the facility pursuant to a City contract, but we don't
have a guarantee of that, your Honor. We're the ones
assuming that risk, and I have to add that even the
contract the City is contemplating is much shorter than
the entire duration of this lease. It is a ten year
contract with two potential five year renewals. Ours
is a 33 year contract. So this is a classic case --
THE COURT: You will have a 33 year contract
with the --
MR. MASTRO: With the landlord. So this is a
classic case of one private party, a not-for-profit,
entering into a lease with another party a landlord --
THE COURT: Counsel, you will have your turn.
MR. MASTRO: Thank you, your Honor. I'm
sorry. I am ready.
MR. KING: I think Mr. Mastro agrees that it
is BRC's risk here.
In terms of there's been no public input
here, in terms of that, Mr. Connolly mentions --
THE COURT: Has there been public input?
MR. KING: There's been a hearing by the
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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Mayor's office --
THE COURT: There's -- excuse me?
MR. KING: There has already been a hearing
by the Mayor's office of contracts, a public hearing on
the record at which Mr. Connolly testified. It is --
THE COURT: Is that the November hearing?
MR. KING: I think the November hearing, yes.
There will be a consultation process as soon
as we finish the fair share review with the local
community board and there will also be notice, at a
minimum, of the CEQR review when it is complete.
THE COURT: Now, the fair share review, what
does that entail, procedurally?
MR. KING: It -- as Mr. Connolly said I think
by and large correctly it looks at the distribution of
community facilities in a neighborhood --
THE COURT: What type of community facilities
in this --
MR. KING: All types of community facilities.
THE COURT: Can you give me an example of
what --
MR. KING: A garbage transfer station would
be one. A police station. A school.
MR. CONNOLLY: Methadone --
MR. KING: Any kind of City facility which
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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would arguably constitute a City facility has to be
looked at. And the City considers whether there are
disparities in neighborhoods, and analyzes whether the
proposal will create or worsen disparities in a
neighborhood.
THE COURT: Who conducts that review.
MR. KING: In this case, it's the Department
of Homeless Services.
THE COURT: So the Department of Homeless
Services?
MR. KING: Yes, ma'am.
THE COURT: And then they conduct such a
review based upon data that's available --
MR. KING: Yes.
THE COURT: What is the next step?
MR. KING: Then they reach out to the
community board and there's either a meeting or an
opportunity to comment.
THE COURT: Sorry, they reach out to the
community --
MR. KING: The community board and the
borough president.
THE COURT: Are those separate?
MR. KING: It's basically the same process.
It's basically called an article eight letter that
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needs to go to the community board and to the affected
borough president.
And then after the consultation process is
concluded, the agency makes a decision, either to go
forward as originally proposed, to make a change, to
make an adjustment, not to go forward --
THE COURT: Are there public hearings held in
connection with that public review?
MR. KING: There is no public hearing
requirement in fair share, per se. It's called
consultation, that's what the law says.
THE COURT: So Department of Homeless
Services would make a determination?
MR. KING: Yes, your Honor.
And that process will go forward.
THE COURT: Now, what would be reviewed in
this situation? Because there seems to be some issue
here as to who is running what part of the facility --
MR. KING: In this situation --
THE COURT: I shouldn't say running, that's
an incorrect word.
MR. KING: For the purposes of fair share
review, it would be the two hundred bed homeless
facility.
THE COURT: Just the two hundred bed
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homeless.
MR. KING: Yes, your Honor.
THE COURT: What about the other 96 bed --
MR. KING: They're not City facilities, your
Honor. They're actually funded by -- they're actually
funded in part, some money from City Health, most of
the money from State Health. The actual money comes
from the State and is passed through City Health, under
the law the funding is passed through City Health,
they call a local government agency. They have no
approval --
THE COURT: According to the papers -- whose
papers -- I think this is the City's papers, New York
State, the Office of Alcohol and Substance Abuse
Services, under their auspices there will be the 32 bed
detox program.
MR. KING: Yes, your Honor.
THE COURT: That's under New York State --
MR. KING: That's a State program, your Honor.
THE COURT: That's a State program --
MR. KING: The City has involvement in that
program through some funding and through an advisory
role in relocating the facility. But the facility
cannot be relocated without State approval. And as I
think --
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THE COURT: And then the reception, what's
been called the reception, it's either 96 or 77 beds --
MR. KING: That's BRC's, your Honor. And BRC
runs that program, it's independent of DHS and City
health.
THE COURT: Now, is the City going to be
paying the rent for the entire building?
MR. KING: No, your Honor, no. We are paying
rent for the two hundred bed homeless shelter.
THE COURT: Who is paying the rent for the 32
bed detox program?
MR. KING: As I say, the funding in that is a
little more complicated. It's by and large State
funding and it's passed through City Health, State
regulations, all governed by the State Office of Mental
Health Regulations and the OASAS regulations.
Those are not City facilities, under any
reading of fair share.
THE COURT: And who would be paying the rent
for the 77 or what is it, 98 reception --
MR. KING: I don't know, your Honor. What I
can tell you is that we will be -- DHS, the City, will
be paying rent for the homeless shelter, two hundred --
THE COURT: What about the services that are
available?
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MR. KING: I'm not sure exactly how the
funding works and how it relates to the rent. But
that --
THE COURT: I see two other attorneys have
stood up. I ask you to both be seated.
MR. KING: That is not part of the DHS
contract.
So to answer your question, your Honor, what
would be reviewed under fair share would be the two
hundred bed homeless facility.
You know, this idea that we somehow concede
that if we go over the two hundred bed limit and avail
ourselves of the Camp LaGuardia exception, that we
have --
THE COURT: I read your papers. I know you
don't concede that, you say if, if, if, if --
MR. KING: And your Honor, the statute says:
If applicable, you will review a larger facility under
applicable CEQR, ULURP and/or fair share.
It's astounding to me that petitioner's
counsel stands here in court and reads a law and
doesn't mention the word applicable. And somehow turns
that into an admission that if we go over two hundred
beds, per se, ULURP is required. The law does not say
that.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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As I said, the ULURP review and fair share
review is ongoing.
In terms of whether the trigger for ULURP, as
Mr. Connolly argues, that DHS's agreement amounts to a
lease at the end of the day.
As the Farrar -- the First Department made
clear, your Honor, the law in this department is that
you have to surrender possession and control of the
premises in the same way that you would if you took
title to the property.
The City is not a party to the lease, okay.
Yes, we have a say in how our rental payments and other
payments are spent at this facility. To lend millions
of dollars to a not-for-profit and not put provisions
in an agreement to make sure our money, the City's
money, the people's money, is properly spent and spent
according to DHS standards, standards by the way, that
are also mandated by courts and for instance, the
Callahan litigation.
So the fact that we have a role in how the
money is spent does not mean that we are the lessee.
We are not on the lease, your Honor.
Let's say, for example, that we stopped
paying the City, and the agreement with DHS runs out,
or BRC stops paying the landlord, the landlord doesn't
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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have any rights against the City. We're not on the
lease. It's not a lease with the City.
And as numerous courts have made clear, your
Honor, that this type of funding agreement from a City
agency for the purposes of providing homeless services,
funding the agreement itself is not a lease. And it's
Luccia Plaza and Farrar and Davis V Dinkins, all those
cases, it's plainly not a lease.
Mr. Connolly also argues that this facility
is being built pursuant to a housing plan. That
provision of ULURP says a housing plan under Housing
Law.
This is not a housing plan under Housing Law.
In fact, it's not housing at all. It's temporary
emergency shelter. It is not housing under any stretch
of that provision of ULURP.
I would also just like to touch a little bit
on the harm here. You know --
THE COURT: Can I just ask you this in terms
of the number of beds. You are saying -- it is your
position that all the beds should be looked at
separately because there's only two hundred beds for
the City shelter and there's another 32 beds that are
part of a State program, although part of the funding
is from the City, and then there's the additional --
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additional beds run by Bowery residents --
MR. KING: Correct.
THE COURT: -- that it's permissible to have
a facility with over two hundred beds as long as the
funding is not from the same -- from the City --
MR. KING: No, your Honor, that's not what
I'm saying.
I'm saying the Ad Code says it's permissible
to have a facility over two hundred beds, any shelter
that's over two hundred bed census, if we have not yet
replaced Camp LaGuardia. Period.
THE COURT: Any shelter?
MR. KING: I'm sorry, your Honor.
THE COURT: Any shelter?
MR. KING: To the extent the Court is
inclined to consider BRC's reception beds as shelter
bets, and the detox beds also as shelter beds, we still
don't get over the four hundred limit.
And petitioner's counsel admits that we can
avail ourselves of that exemption. They just don't
want to it happen, they would rather have them
somewhere else. The contention that going over two
hundred beds, per se, requires a ULURP review is just
not correct. It does not -- that's not what the law
says.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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In terms of harm, your Honor, you know,
there's been a lot of talk about the lack of process
being, per se, harm here. And Mr. Connolly talks about
Stop BHOD, that's the seminal case, not BHOD. If you
go back and read that case carefully, your Honor, why
the injunction was issued there was because we were
proposing -- doubling the size, doubling the capacity
of a jail.
What other -- there was another claim IN that
case, too, that we could not reopen a jail that had
been closed for about four or five years. And the
petitioners in that case made the same arguments, that
they were being deprived of reviews because we were
reopening the facility, and the Court there denied the
preliminary injunction and allowed us to reopen the
facility at its current capacity.
Mr. Connolly cites Connor V Cuomo. That case
was actually a case that was not under the ULURP
provisions that he cited in his papers. It was
actually under an eminent domain procedure law
provision and it involved a case in which the State had
actually condemned the property, had taken it already.
And I will also note in that case Connor V Cuomo also
involved a completely new facility.
THE COURT: It involved, excuse me?
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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MR. KING: Anew facility. A brand new
facility.
So the idea that -- and your Honor, they may
be harmed. The question for the Court, your Honor, is
whether the harm now is permanent and irreparable and
we submit it is not and they have failed to demonstrate
Mr. Connolly talks a lot about harm and not
just about process, but he talks about -- and I just
want to touch upon the standing issue there.
Mr. Connolly talks about harm, and we don't think he's
right when he says deprivation of a process, which the
Court can impose is, per se, irreparable harm, but he
also alludes to other harms.
And the law is clear in this state,
particularly since the Court of Appeals came down with
a decision -- Save the Pine Bush, that it is not
sufficient, as petitioner's counsel would have you
believe, to say: We live nearby or we live next door,
there we are harmed. That is not the law in this
state.
Mr. Connolly is correct when he says
proximity can be an inference of harm. He is right on
that score. But, your Honor, the law is clear, you
must allege harm. You cannot just say: We live
nearby, therefor we are harmed.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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Some of the cases that he cites also, yes,
proximity was deemed an inference of harm, but in all
of those cases petitioners had alleged specific injury
that was different in kind than the public at large.
And -- Committee to Preserve Brighton Beach,
two cases with the same caption, similar caption. The
petitioners in that case all alleged that they were
either being deprived the use of a resource or that
they would be negatively impact by a use, and explained
what those impacts were. They couldn't use the park;
there was noise; there were air quality impacts; there
was traffic', there were all manner of allegations
about injury there, your Honor.
We have none of that here. For the first
time since this case has been filed I hear about
impacts about safety and impacts to community
character. There's none of that in petitioners'
papers, absolutely none.
So I would just say briefly, petitioners
still do not have standing unless -- until they can
actually allege injury which they have not done. And
that's I think enough for now. I'll turn it over to --
MR. CONNOLLY: Your Honor, can I very briefly
on the money issue -- this is a question --
THE COURT: Wait, let me hear Mr. Mastro.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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MR. CONNOLLY: It may help with his
discussion -- because it comes out of the mouth of his
client.
THE COURT: Excuse me?
MR. CONNOLLY: What I'm about to read comes
directly from his client -- written responses to
questions by the community board who asked the same
question you just asked --
THE COURT: Yes.
MR. CONNOLLY: Which is how much and what
types of funding is the City of New York providing to
BRC for the operation of this project and in what form?
The answer from BRC. Quote: The City of New
York is providing and is anticipated to provide
operating funding to BRC for the programs it operates
at 127 West 25th Street including the following: The
Chemical Dependency Crisis Center received funding
through a contract with the New York City Department of
Health and Mental Hygiene; the reception center --
which is the 96 beds -- the reception center receives
funding through a contract with the New York City
Department of Homeless Services; the two hundred bed
shelter will receive funding through a contract with
the New York City Department of Homeless Services; the
outpatient Fred Cooper Substance Abuse Services Center
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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PROCEEDINGS
receives funding through a contract with the New York
City Department of Health and Mental Hygiene. And the
home based case management program receives funding
from the New York City Department of Health and Mental
Hygiene and the New York City Human Resource
Administrations Adult Protective Services Division.
And with respect to the lease, according to
the contract, the full value of that lease is 7.2
million dollars per year, and under the contract, the
City of New York is going to pay that lease, in
addition to rent increases of the life of that lease.
THE COURT: Thank you.
I will hear you.
MR. MASTRO: Your Honor, I'll start right at
that point, because the fact of the matter is that the
contract itself that the City is now in the process of
reviewing has not sought to register yet. So there is
no contract in place. It is a proposed contract that
is undergoing CEQR and fair share review.
Under that contract, the City is only
committed Department of Homeless Services, if it were
to enter into the contract, to provide a minimum -- a
maximum level of payment per year, an annual amount not
to exceed 7.19 million for the operation of a two
hundred bed homeless shelter facility and related
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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services.
That's all this contract is about. And your
Honor, the fact of the matter is as this record shows
before you, there are multiple programs that my client,
BRC, my client, the real party interest here, a
not-for-profit, which is trying to provide necessary
Homeless Services, some at the City's request from the
Department of Homeless Services, some at the request of
the State and City departments of health, mental
hygiene, substance abuse, alcohol abuse; some programs
that BRC runs itself, like the reception center where
it hopes that when it runs a reception center at this
facility it may be able to reach agreement with the
City's Department of Homeless Services, but as
Mr. Nashak has sworn -- Deputy Commissioner has sworn
in his declaration, there's no agreement on that and it
is not part of the proposed contract at issue here.
So there's no agreement to pay the rent,
there is an agreement to -- in principle, that is now
being reviewed that has not been consummated, has not
been proposed to the City comptroller for registration,
it may or may not be proposed based on those reviews,
but it relates only to a two hundred bed homeless
shelter facility and related services.
THE COURT: What are the related services?
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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MR. MASTRO: Your Honor, there are --
THE COURT: And for whom are those services
to be provided?
MR. MASTRO: They're provided to the two
hundred -- related social services and otherwise to
help them adjust and hopefully find a better place in
life.
THE COURT: What about the services regarding
the 32 bed detox practice --
MR. MASTRO: Not paid for at all by the
City's Department of Social Services, not addressed in
this contract at all --
THE COURT: Is it a separate program --
MR. MASTRO: A separate program with the
City's Department of Health and Mental Hygiene and
there's also involvement in a role of the state
authorities in this regard including relating to
alcohol and substance abuse, both have a role in that
program and that will be separate with the City's
Department of Health and Mental Hygiene services. And
again, your Honor, the --
THE COURT: So I think the City's position
also is the 32 bed detox program is not part of a
shelter --
MR. MASTRO: It is not. The homeless shelter
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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we're talking about here, the proposed contract is for
a two hundred bed homeless shelter and related services
facility. This is going to be a vertical campus where
a number of different programs are going to be run; one
of them is the separate 32 bed detox center which is
separately funded with involvement of both State and
City health and mental health professionals.
And your Honor, the reception center, again,
uncontroverted sworn testimony, that is a BRC program
that the Department of Homeless Services has sometimes
funded in other locations. BRC is going to run a
reception center, literally, you have BRC personnel who
go out and try to find homeless on the street who may
need an immediate attention. That's what the reception
center is about, your Honor, and the fact of the matter
that's something that BRC runs. It doesn't come
through Department of Homeless Services intake
procedures to enter a shelter, that's why that
reception center isn't a shelter and that's what Deputy
Commissioner Nashak has so sworn.
So it is a vertical campus involving
different programs only one of which is a shelter
program that is the subject of this specific proposed
contract.
Now let me be crystal clear.
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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I've heard a lot of discussion about harm.
There is zero harm here to anyone as this case
presently exists. Couldn't possibly be.
I submit that there never will be any harm to
anyone in that community, BRC runs the best programs in
the City, that's why it is a not-for-profit and DHS has
contracted with them in various capacities.
But your Honor, remember where we were on the
issue of the Buildings Department permit. It's all
internal construction, nothing, no occupants, no
expansion of the site, all internal construction, where
my client BRC not-for-profit is taking all the risk and
has already spent millions. For them to have the
audacity to come here when it is law of the case that
there is no irreparable harm from the internal
construction going on there that my client is bearing
all the burden on, and where my clients -- we should
all remember -- has committed to your Honor that before
anyone moves in there we're going to give you 30 days
advance notice so that you could decide whether there
is truly any harm there and there is zero irreparable
harm here, and the case law is legion in this regard,
particularly, in the area of homeless housing.
Your Honor, I can cite case after case --
Dogertown Home Owners Association, Second Department
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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235-AD 2d 538 page 539; Spring Guard Community Civic
Association versus Homes for the Homeless, that's a
trial court level case in Queens County, 135 Misc 2d
689, 698 and, of course, your Honor's own decision in
this case that under these circumstances where all
we're talking about is preparing a building, there's no
irreparable harm.
Now I want to comment -- please, your Honor,
and I know the day is long, this case is so important
to my client. They have three different areas where
they are claiming some kind of right too relief; they
claim under ULURP, they claim under the Administrative
Code and they claim CEQR and fair share.
I want to start with that last one because
the claims in their complaint were that the City had
failed to do CEQR and fair share and that therefore
they should be compelled to do that. They even wanted
the contract to be compelled to be registered because
they haven't done -- well, then the City comes back and
says, in fact, we are doing them, we're in the process
of completing them. That means they have no claim left
on CEQR and fair share and I have to make one
distinction because the law is crystal clear, the City
didn't have to do fair share. That's what both the
Davis and the Farrar cases say, First Department and
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Second Department. Davis V Dinkins 206 AD 2d 365 pages
366 and 68, Second Department and Farrar versus
Dinkins, 218 AD 2d 89, 93 through 94, that's First
Department, both of them said that unless there is
something about this situation, that makes it
ULURPable, the City didn't even have to do a fair
share.
And then I'm going to come to ULURP because
they have two ULURP claims and let me explain what
ULURP is. ULURP is a special local law incorporated
into our charter that I had a little experience from my
days as deputy mayor. Your Honor, under ULURP, it has
to be very specifically related to the City being
directly involved in some action.
The first claim Mr. Connolly tries to raise
here is that ULURP is implicated because this is an
acquisition by the City of a lease.
The second and only other ULURP basis he
claims is that this is the City acting pursuant to a,
quote, housing and urban renewal plan and project, end
quote.
I challenge Mr. Connolly when he gets up
again to cite a single case to this Court where any New
York case has ever held that a contract to provide
Homeless Services with the City has ever been held by
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VINCENT PALOMBO - OFFICIAL COURT REPORTER
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any court anywhere in New York to be a ULURP lease or a
ULURP housing and urban renewal plan. There is none.
If I may point out on the question of the
lease. This isn't a lease between the City and a
landlord.
This is a not for profit that has itself
taken all of the risk of a 33 year lease with a
landlord, has spent millions to internally renovate a
building for the hope that the City will register a
contract that gives them only a ten year services
contract to provide shelter for two hundred homeless
individuals a night and related services.
Your Honor, that's a service contract. That
is not a lease by the City. ULURP requires a lease by
the City.
And your Honor, again, I can cite you many
cases, Mr. Connolly will be able to cite you none.
Because this is a contract to provide services and if I
may, briefly, there are cases completely on point.
In the matter of Luccia Plaza versus City of
New York 305 AD 2d 604, pages 605 and 606, Second
Department, 2003. That was a City contract, DHS with
the Doe Fund, the Doe Fund to provide shelter beds.
Same thing that we're talking about, they had
to renovate a site to provide homeless shelter beds.
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City enters into a contract with Doe and the Court
found unequivocally, quote, the contract between DHS
and the Doe Fund is not subject to ULURP, as it is not
a lease or functionally equivalent to a lease, but
merely an agreement by which the Doe Fund will acquire,
renovate and operate a transitional residence for
homeless men.
Same thing in Davis V Dinkins and Farrar V
Dinkins, both of which involve the City contracting
with transient hotels to provide beds. The transient
hotel providing those beds at those places, both the
First Department and the Second Department said: Not a
lease under ULURP, no ULURP obligations whatsoever. In
fact, there's never been a court that ever held that
there were ULURP obligations from the City contracting
for another party to have provided shelter beds.
Your Honor, second ULURP category, the only
other one Mr. Connolly cites in his papers, the only
one he argued today when there's a requirement because
this is supposedly a City, quote, housing and urban
renewal plan and project, end quote.
Again, uniformly rejected by the courts. A
service contract, DHS enters into regarding homeless
policy; West 97th Street and West 98th Street Block
Association Volunteers of America Greater New York 190
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