CFC - Reply Memo of Law

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 11

In 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 the Civil Practice Law and Rules

- against -

THE CITY OF NEW YORK; BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK; SETH DIAMOND, Commissioner for the Department of Homeless Services of the City of New York ("DHS"); GEORGE NASHAK, Deputy Commissioner for Adult Services for DHS; ROBERT D. LIMANDRI, Commissioner for the Department of Buildings of the City of New York ("DOB"); FATMA AMER, P.E., First Deputy Commissioner for DOB; JAMES P. COLGATE, R.A., Assistant Commissioner to Technical Affairs and Code Development for DOB; BOWERY RESIDENTS' COMMITTEE, INC.; 127 WEST 25th LLC; and DANIEL SHAVOLIAN,

Respondents.

Index No. 113194/10

Justice Madden

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PETITIONER'S AMENDED PETITION

BRACEWELL & GIULIANI LLP 1251 Avenue of the Americas New York, New York 10020 (212) 508-6100 Attorneys for Petitioner

TABLE OF CONTENTS Page

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TABLE OF AUTHORITIES ......................................................................................................... ii

PRELIMINARY STATEMENT ................................................................................................... 1

ARGUMENT................................................................................................................................. 3

I. BOTH THE FACTS AND LAW SUPPORT A FINDING THAT THE PROPOSED FACILITY IS A USE GROUP 3 NON-PROFIT INSTITUTION WITH SLEEPING ACCOMMODATIONS AND NOT A USE GROUP 5 TRANSIENT HOTEL ....................................................................................................... 3

A. The Proposed Facility Is a UG 3 Non-Profit Institution with Sleeping Accommodations ................................................................................................... 4

B. The Proposed Facility Is Not a UG 5 Transient Hotel........................................... 8

II. ULURP REVIEW IS REQUIRED .................................................................................. 12

A. The Contract Between DHS and BRC, As Well As the Terms of BRC's Lease and the Conditions of City Funding, Illustrate that the City is the De Facto Lessee of the Land, Subjecting the Proposed Facility to ULURP Review ................................................................................................................. 12

III. BRC'S PROPOSED FACILITY MUST ADHERE TO THE SHELTER SIZE LIMIT IMPOSED BY ADMINISTRATIVE CODE SECTION 21-312 AS THE CITY HAS NOT ACTUALLY INVOKED THE EXCEPTIONS SET FORTH IN ADMINISTRATIVE CODE SECTION 21-315(A)(6) ................................................... 15

IV. ADMIN CODE SECTION 21-312 IS NOT PREEMPTED BY STATE REGULATION................................................................................................................ 17

A. The State Has Not Evinced a Desire to Preempt Local Regulation of Homeless Shelters................................................................................................ 18

B. Administrative Code Section 21-312 Is Not Inconsistent with State General Law......................................................................................................... 21

C. To the Extent Admin Code Section 21-312 Is Inconsistent with State General Law, The Inconsistency Is Permitted In Light of the City's Special Local Problem in Combating Homelessness ....................................................... 24

CONCLUSION............................................................................................................................ 26

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TABLE OF AUTHORITIES

Page(s) Cases

Adkins v. Bd. of Appeals, 199 A.D.2d 261 (2d Dep't 1993)........................................................................................20, 23

Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372 (1989) ..............................................................................................................18

Appelbaum v. Deutsch, 66 N.Y.2d 975 (1985) ................................................................................................................9

City of New York v. Town of Blooming Grove Zoning Bd. of Appeals, 305 A.D.2d 673 (2d Dep't 2003)........................................................................................20, 23

Consol. Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99 (1983) ..............................................................................................18, 20, 22, 23

Council for Owner Occupied Hous., Inc. v. Koch, 462 N.Y.S.2d 762 (Sup. Ct. N.Y. Cty. 1983) ..........................................................................23

Council of N.Y. v. Giuliani, 172 Misc.2d 893 (Sup. Ct. Queens Cty. 1997) ........................................................................15

Cusick v. Kerick, 305 A.D.2d 247 (1st Dep't 2003) ...............................................................................................9

DeStefano v. Emergency Hous. Group, Inc., 281 A.D.2d 449 (2d Dep't 2001)........................................................................................20, 23

DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91 (2001) ..........................................................................................................22, 23

Ferrer v. Dinkins, 218 A.D.2d 89 (1st Dep't 1996)...............................................................................2, 12, 14, 15

Fischer v. Taub, 127 Misc.2d 518 (1st Dep't 1984)..........................................................................................8, 9

Incorporated Vill. of Nyack v. Daytop Vill., Inc., 78 N.Y.2d 500 (1991) ..............................................................................................................18

Jancyn Mfg. Corp. v. Suffolk Cnty., 71 N.Y.2d 91 (1987) ..........................................................................................................18, 23

Lucas v. Bd. of Appeals of Vill. of Mamaroneck, 57 A.D.3d 784 (2d Dep't 2008)..................................................................................................9

TABLE OF AUTHORITIES (continued)

Page(s)

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Lucia Plaza v. City of New York, 305 A.D.2d 604 (2d Dep't 2003)..............................................................................................14

Lyublinskiy v. Srinivasan, 65 A.D.3d 1237 (2d Dep't 2009)................................................................................................9

Manton v. N.Y.C. Bd. of Standards & Appeals, 117 Misc.2d 255 (Sup. Ct. Queens Cty. 1982) ..........................................................................5

McAdams v. Kelly, 851 N.Y.S.2d 64 (Sup. Ct. N.Y. Cty. 2007) ..............................................................................9

N.Y. City Health & Hosps. Corp. v. Council of N.Y., 303 A.D.2d 69 (1st Dep't 2003).........................................................................................22, 24

People v. Cook, 34 N.Y.2d 100 (1974) ..............................................................................................................24

People v. Halloran, 130 Misc.2d 569 (Just. Ct. Nassau Cty. 1985).........................................................................22

People v. Nemadi, 531 N.Y.S.2d 693 (Crim. Ct. N.Y. Cty. 1988) ..................................................................24, 25

Rampe v. Giuliani, 281 A.D.2d 609 (2d Dep't 2001)..............................................................................................22

Seawall Assocs. v. City of New York, 510 N.Y.S.2d 435 (Sup. Ct. N.Y. Cty. 1986) ..........................................................................25

The Westchester Square/Zerega Improvement Organization et al. v. Seth Diamond, et al., Index No. 260573/2009 (Sup. Ct. Bronx Cty. July 9, 2010) ............................................. 13-15

BSA Resolutions

BSA Resolution No. 307-06-A, dated June 19, 2007..................................................................5, 6

State Statutes and Laws

CPLR § 7803(3)...............................................................................................................................9

Mun. H. R. Law § 2(5)...................................................................................................................22

Mun. H. R. Law § 2(6)...................................................................................................................22

Mun. H. R. Law § 10(1)(ii)............................................................................................................22

TABLE OF AUTHORITIES (continued)

Page(s)

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18 NYCRR § 491.3(g) ........................................................................................................... passim

Social Services Law § 460 et seq...................................................................................................18

Social Services Law § 461 et seq...................................................................................................18

Social Services Law § 460-d(4)(a). .........................................................................................19, 20

Social Services Law § 461-a....................................................................................................19, 20

New York City Statutes and Rules

Administrative Code § 21-312 .............................................................................................. passim

Administrative Code § 21-315(a)(6)........................................................................................16, 17

Administrative Code § 21-315(b) ..................................................................................................16

Charter § 197-c ............................................................................................................................1, 2

Charter § 197-c(a)(11) .............................................................................................................12, 15

ZR § 11-21 .......................................................................................................................................3

ZR § 12-10 .................................................................................................................................8, 11

ZR § 51-00 ................................................................................................................................... 3-4

Constitutional Provisions

N.Y. Const. Article IX, § 2(c)(ii)...................................................................................................21

Petitioner, Chelsea Business & Property Owners' Association, LLC, d/b/a Chelsea

Flatiron Coalition ("CFC" or "Petitioner"), respectfully submits this reply memorandum of law in

further support of its Amended Verified Article 78 Petition, dated May 6, 2011, ("Amended

Petition" or "Am. Pet.") and in response to the opposition memoranda of law submitted by

respondents the City of New York ("City") and Bowery Residents' Committee, Inc. ("BRC")

(together, "Respondents").

PRELIMINARY STATEMENT

CFC submits this reply to Respondents' opposition and in further support of the Amended

Petition, which seeks to, inter alia: (1) enjoin the occupancy and operation of BRC's 100,000

square foot, 328-bed in-patient and out-patient drug, alcohol and mental health care facility and

homeless shelter for the mentally ill at 127 West 25th Street in New York, New York ("Proposed

Facility") pending compliance with all laws, rules and regulations; (2) reverse the determination

by the New York City Board of Standards and Appeals ("BSA"), which affirmed the New York

City Department of Buildings' ("DOB") issuance of permits and approvals to BRC for the

Proposed Facility; (3) compel the City to submit the Proposed Facility to ULURP in accordance

with New York City Charter ("Charter") Section 197-c; and (4) enjoin occupancy and operation

of the Proposed Facility unless and until it complies with the Administrative Code ("Admin

Code") Section 21-312 restriction on shelters exceeding 200 beds.

First, BSA's resolution finding that DOB properly designated the Proposed Facility a Use

Group ("UG") 5 transient hotel should be reversed by the Court because BSA failed to consider

substantial evidence, ignored prior precedent, misconstrued the plain language of the Zoning

Resolution of the City of New York ("ZR") and either ignored or improperly applied well-

established canons of statutory construction. See BSA Resolution No. 189-10-A, dated April 5,

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2011 and issued April 6, 2011, at R. 1-11.1 Accordingly, BSA's determination is arbitrary and

capricious, contrary to law and an abuse of discretion. Consequently, the Court need not defer to

the BSA, and the Court should annul BSA's determination.

Second, the City has refused to conduct a ULURP review prior to occupancy of the

Proposed Facility. Respondents continue to argue that ULURP is not required because the

Proposed Facility is not a City facility. However, the terms of the DHS contract with BRC for

the provision of homeless services ("Shelter Contract"), as well as BRC's lease for the Proposed

Facility and the millions of dollars of City funds being used to finance the construction and

capital costs of the Proposed Facility, illustrate the City's predominance and effective control of

the Proposed Facility. Although the Court has already determined that CFC did not establish a

likelihood of success on the merits on this issue, CFC respectfully submits that the First

Department decision in Ferrer v. Dinkins, 218 A.D.2d 89 (1st Dep't 1996) envisions conditions

such as these, where the Shelter Contract, lease terms and substantial City funding demonstrates

that the City's interests predominate the land, and creates a de facto lease with the City.

Consequently, the Proposed Facility is subject to ULURP prior to occupancy. See Charter

§ 197-c.

Third, the City refuses to enforce the statutory provision of the Administrative Code that

limits homeless shelters to 200 beds. See Admin Code § 21-312. Respondents claim that even if

the 328-bed capacity of the Proposed Facility violates the Administrative Code, the City is

permitted to construct shelters in excess of 200 beds pursuant to a statutory exception allowing

the opening of two, 400-bed shelters as a replacement for Camp LaGuardia ("Camp LaGuardia

Exception"). However, the City has not actually invoked the exception. It has merely stated that

1 Citations to "R." refer to the Record of Proceedings Before the Board of Standards and

Appeals, dated June 17, 2011.

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it is permitted to avail itself of the exception if and when it chooses to do so. Thus, even if the

Camp LaGuardia exception applies, as the Court found it would in its decision on CFC's

preliminary injunction, see Decision and Order of J. Madden, dated July 8, 2011 ("PI Decision"),

at 17, it is not properly before the Court. As such, the Court should enjoin operation of the

Proposed Facility as it violates the 200-bed limit, pursuant to the Administrative Code.

Finally, contrary to the City's allegations, the Department of Social Services ("DSS")

regulation, 18 NYCRR § 491.3(g) ("DSS Regulation"), does not preempt Admin Code Section

21-312. The DSS Regulation necessarily contemplates that the State scheme for the operation of

shelters will work in combination with the local laws and regulations governing the operation of

such facilities. Further, Admin Code Section 21-312 is not inconsistent with the DSS

Regulation. However, if the Court were to find the Administrative Code inconsistent with State

regulation, Admin Code Section 21-312 should be upheld because the City has a special local

problem of combating homelessness that exempts the local law from invalidation. Accordingly,

Admin Code Section 21-312 is valid, and Respondents must adhere to it.

In light of CFC's prior, extensive briefing on these issues, including the voluminous

exhibits already provided to the Court, and in the interest of preserving the Court's resources,

CFC respectfully refers the Court to the Amended Petition and addresses below only new, or

newly fashioned, arguments presented by Respondents.

ARGUMENT

I. Both the Facts and Law Support a Finding that the Proposed Facility Is a Use Group 3 Non-Profit Institution With Sleeping Accommodations and Not a Use Group 5 Transient Hotel

The purpose of the ZR is to "promote and protect public health, safety and general

welfare." ZR § 11-21. Further, "[t]he zoning districts established in this [ZR] . . . are designed

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to guide the future use of the City's land by encouraging the development of desirable residential,

commercial and manufacturing areas with appropriate groupings of compatible and related uses

and thus to promote and to protect public health, safety and general welfare." ZR § 51-00.

Accordingly, the proper designation, approval and location of uses in compliance with the

mandates of the ZR are the fundamental basis of the City's land use framework. However, as

explained in detail in the Amended Petition and below, the City has disregarded the purpose and

requirements of the ZR and has allowed BRC to construct a facility in a zone in which it would

otherwise be prohibited.

BSA's own precedent, the plain language of the ZR, accepted canons of statutory

interpretation and the substantial evidence provided to BSA and the Court by CFC establish that

the Proposed Facility is not a UG 5 transient hotel, as BRC claims, and is properly a UG 3 non-

profit institution with sleeping accommodations. However, BSA ignored the evidence presented

by CFC and irrationally and unreasonably affirmed DOB's issuance of permits and approvals for

the development of the Proposed Facility as a UG 5 transient hotel.

Thus, BSA's determination is arbitrary and capricious, contrary to law and an abuse of

discretion. Accordingly, CFC respectfully requests that the Court annul BSA's decision, and

enjoin occupancy and operation of the Proposed Facility.

A. The Proposed Facility Is a UG 3 Non-Profit Institution with Sleeping Accommodations

DOB has issued, and BSA has affirmed, permits for the Proposed Facility as a

combination UG 5 transient hotel and UG 6 professional offices, thereby permitting the Proposed

Facility to be sited as-of-right in the M-1 District in which it is located. See Am. Pet. at ¶¶ 75-

120. However, as set forth extensively in CFC's Amended Petition, pursuant to Respondents'

own statements, publications and solicitation materials, there is a fundamental nexus, or clear

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and necessary relationship, between the provision of sleeping accommodations and the medical

and social services offered at the Proposed Facility. See Am. Pet. at ¶¶ 234-57. Indeed, at the

March 1, 2011 BSA hearing, Vice-Chair Collins noted this fact, stating, "[W]hen you said that

there's no nexus between the programs, it seems to me that there clearly is . . . . The people who

sleep in the sleeping accommodations use the programs." BSA Hearing Transcript, attached as

Exhibit 66 to the Affirmation of Daniel S. Connolly, Esq. in Support of the Amended Verified

Petition, dated May 6, 2011 ("May 6, 2011 Connolly Aff."), at 57. Thus, the Proposed Facility is

properly, and consistent with BSA precedent, a "non-profit institution with sleeping

accommodations" under UG 3. See BSA Resolution No. 307-06-A (finding that a youth hostel

was not a UG 3 non-profit institution with sleeping accommodations because there was no clear

and necessary relationship between the provision of sleeping accommodations and the other

services offered at the facility, and citing a homeless shelter as the primary example of a facility

intended to be designated UG 3); see also Manton v. N.Y.C. Bd. of Standards & Appeals, 117

Misc.2d 255, 256 (Sup. Ct. Queens Cty. 1982) (where BSA found a clear nexus between the

philanthropic or non-profit purpose of drug rehabilitation and the provision of sleeping

accommodations, it called the facility a UG 3).

Such UG 3 facilities are not permitted as-of-right in M-1 districts, and if the Proposed

Facility were so designated, it would be prohibited in its current location, unless it were to obtain

a special permit or variance. See Am. Pet. at ¶¶ 11, 233, 238. Accordingly, the Court should

reverse and annul the decision of BSA, and should enjoin operation of the Proposed Facility.

Notably, the City barely responds to CFC's arguments concerning the BSA and ZR, and

merely recounts BSA's erroneous determination without offering any support for BSA's findings.

See City Opp. at 3-15. Accordingly, rather than occupy the Court's time by reiterating CFC's

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arguments here, CFC respectfully refers the court to the Amended Petition. See Am. Pet. at ¶¶

165-289.

BRC argues that CFC's contention that the Proposed Facility is more appropriately a UG

3 community facility is based upon a misstatement of the facts. However, it is BRC that

continues to unabashedly misconstrue the facts. While it is true that "the primary purpose of a

'philanthropic or non-profit institution with sleeping accommodations '. . . cannot be the

provision of sleeping accommodations," Respondent BRC's Memorandum of Law in Opposition

to Petitioner's Amended Petition ("BRC Opposition" or "BRC Opp.") at 17 (quoting BSA

Resolution No. 307-06-A at 3), it is equally true that where the primary purpose of the institution

is the provision of non-profit services, and where there is a nexus between those services and the

provision of sleeping accommodations, such as with a homeless shelters, the facility is properly a

community facility, not a hotel. See BSA Resolution No. 307-06-A at 4-5.

In the Amended Petition, CFC exhaustively identified the substantial evidence

establishing the interdependent nature of the sleeping accommodations and services offered at

the Proposed Facility. See Am. Pet. at ¶¶ 240-68. BRC would have the Court believe that there

is no nexus, that within each of BRC's comprehensive programs the provision of free sleeping

accommodations is entirely independent from the provision of the multitude of services to those

occupying the sleeping accommodations. However, BRC's mischaracterizations are unavailing.

Moreover, in addition to the evidence already provided by CFC to the Court, see id., the City's

arguments in its opposition to the Amended Petition further demonstrate that the primary

purpose of the programs at the Proposed Facility is the provision of services to the homeless,

which includes sleeping accommodations. See City Respondents' Memorandum of Law in

Opposition to the Petition ("City Opposition" or "City Opp.") at 30-31 ("The CDCC will provide

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physical and psychiatric support to people recovering from acute addiction to alcohol or other

substances, thus serving a distinct mission other than 'shelter.' . . . [Each program at the

Reception Center will] provide[] its clients with a level of service and support associated with a

smaller program.").

CFC has provided, literally, volumes of evidence to BSA and the Court demonstrating

that the services and the provision of sleeping accommodations at the Proposed Facility are, by

DHS's and BRC's design, necessarily and fundamentally integrated. Despite BRC's

representation that half the building will be devoted to providing medical and various social

services, and that the other half to a homeless shelter, CFC has consistently maintained that

BRC's insertion of a firewall and other contrivances, purportedly separating the facility's sleeping

accommodations from the medical and other social services, are a sham. See Am. Pet. at ¶¶ 258-

268.2 Indeed, the shared staff -- all of which are BRC employees -- operates throughout the

facility, further demonstrating the nonexistent separation. The evidence before DOB, BSA, and

now the Court establishes that the services available at the facility are primarily intended for the

residents, and that it would be difficult, if not impossible, given the very purpose of the Proposed

Facility, to separate them.

Additionally, the evidence before BSA evinces that it has always been, and continues to

be, BRC's and the New York City Department of Homeless Services' ("DHS") intent that the

services provided at the Proposed Facility be integrated with the sleeping accommodations. See

Am. Pet. at ¶¶ 61-74, 248, 252-256. Further, the provision of the non-profit services that

2 CFC notes that it is Respondents, not CFC, that "asserts that half the building will be

devoted to providing medical and various social services, and that the other half will be used for a homeless shelter." See PI Decision at 6.

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accompany the sleeping accommodations is not only a fundamental element of the mission of the

Proposed Facility, but also necessary to secure required state authorizations. Id. at ¶¶ 250-251.

Accordingly, this fundamental nexus between the services provided at the Proposed

Facility and the sleeping accommodations offered to those utilize the services requires that the

facility be designated a UG 3 community facility and not a hotel.

B. The Proposed Facility Is Not a UG 5 Transient Hotel

BRC mischaracterizes CFC's arguments as to why the Proposed Facility is not a UG 5

transient hotel. See BRC Opp. at 9 & n.4. CFC does not contend that the facility cannot qualify

as a UG 5 transient hotel because "it does not look like a 'traditional hotel'" or that it does not

"seem like a hotel." Id. Rather, CFC's contention is that the Proposed Facility is not, in fact, a

hotel, and that Respondents' interpretation of ZR Section 12-10 ignores the plain meaning of the

ZR language and ignores the word "hotel" in the definition of a UG transient hotel. See Am. Pet.

at ¶¶ 167-83.

As the First Department illustrated in Fischer v. Taub, 127 Misc.2d 518, 525-26 (1st

Dep't 1984), application of the terms of a statute in a vacuum, without consideration of the plain

meaning, or the statute as a whole, and without consideration of the purpose and intent of a

statutory provision, is unreasonable, irrational and contrary to canons of statutory construction.

See Am. Pet. at ¶¶ 175-78. BSA's refusal to apply Fischer because it addressed whether a

facility constituted a hotel under the Multiple Dwelling Law rather than the ZR is unfounded and

self-serving. The statutory interpretation principles elucidated in Fischer are equally instructive

in the context of the ZR and directly on point. To wit:

The fact that [a facility] provides its residents with certain services generally provided by hotels -- i.e., a reception desk, housekeeping, linen, laundry services, entertainment, activities program, beauty and barber shops -- does not render the [facility] a hotel where a) the facility is not open to the general public as is the

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traditional "inn"; b) the services performed by the operator for the benefit of the residents far exceed the ordinary and usual services performed by a hotel for its guests; c) these services are in any event performed by the operator pursuant to the mandate of the Social Services Law and regulations promulgated thereunder, not pursuant to the traditional business of inn keeping . . . .

Fischer, 127 Misc.2d at 525-26. Thus, here, although the Proposed Facility may provide its

clients with certain services generally provided by hotels, it does not render the Proposed Facility

a hotel.

BSA's determination of these issues should carry little weight with the Court. Ordinarily,

interpretation of the ZR by BSA and DOB must be "given great weight and judicial deference."

Appelbaum v. Deutsch, 66 N.Y.2d 975, 977-78 (1985). The Court of Appeals has made clear

that such deference is only afforded "so long as the interpretation is neither irrational,

unreasonable nor inconsistent with the governing statute." Id. A BSA decision "'which neither

adheres to its own prior precedent nor indicates its reasons for reaching a different result on

essentially the same facts is arbitrary and capricious' and mandates reversal." Lyublinskiy v.

Srinivasan, 65 A.D.3d 1237, 1239 (2d Dep't 2009) (quoting Lucas v. Bd. of Appeals of Vill. of

Mamaroneck, 57 A.D.3d 784, 785 (2d Dep't 2008)); see generally CPLR § 7803(3). Similarly,

"where [an] agency . . . fails to consider the credible evidence submitted by the petitioner, a court

may determine that the agency's actions were without foundation in law or fact and therefore,

arbitrary and capricious." McAdams v. Kelly, 851 N.Y.S.2d 64 (Table) (Sup. Ct. N.Y. Cty. 2007)

(citing Cusick v. Kerick, 305 A.D.2d 247 (1st Dep't 2003)). Here, BSA's interpretation is

irrational, unreasonable and inconsistent with the governing statutes. Further, BSA failed to

adhere to prior precedent without justification and failed to consider credible evidence presented

by Petitioner.

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BRC's suggestion that the Proposed Facility is appropriately classified a UG 5 transient

hotel because a few, similar facilities have also been so classified is of no moment. See BRC

Opp. at 11-12. As this litigation makes quite clear, the City is willing to improperly designate

Use Groups for shelters such as the Proposed Facility in order to circumvent ZR restrictions on

siting such facilities. Further, the overwhelming number of similar shelters that have been

classified as UG 3 community facilities, as well as the interpretation of the term "non-profit

institutions with sleeping accommodations" provided by the Department of City Planning

("DCP") to BSA in support of DOB's position in BSA Resolution No. 307-06-A, bespeaks the

true intent and purpose of the ZR. See Am. Pet. at ¶¶ 241 ("the term non-profit institution with

sleeping accommodation [w]as intended to apply to institutions for which the provision of

sleeping accommodations is necessary to the accomplishment of a community facility purpose of

providing . . . essential services for the residents . . . such as shelter for the homeless") (internal

quotations omitted), 269 (citing various BSA decisions wherein similar non-profit providers

sought variances from BSA to operate as UG 3 facilities in M-1 districts). BSA's acceptance of

the City's interpretation of the facility at issue here is ultimately at odds with the interpretation

offered by the City and adopted by the BSA in BSA Resolution No. 307-06-A. That alone

renders BSA's decision arbitrary and capricious.

BSA ignored overwhelming precedent showing that facilities similar to the Proposed

Facility are properly classified as UG 3 non-profit institutions with sleeping accommodations.

See Am. Pet. at ¶¶ 241-44 (analyzing BSA Resolution No. 307-06-A), 269-72 (addressing the

multitude of similar facilities recognized by BSA to be UG 3 community facilities).

Further, BSA irrationally refused to analyze whether the facility is a UG 3, concluding

that since it had already determined it was a UG 5 and since a building can be classified

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concurrently under multiple use groups, any analysis of UG 3 was superfluous. See BSA

Resolution No. 189-10-A at 9-11, R. 9-11. However, BSA's unreasonable position is entirely

inconsistent with canons of statutory construction and the purpose of the ZR. To permit a

building or proposed development to be two Use Groups under the ZR at the same time would

render the existence of Use Groups, as well as the restrictions imposed by the ZR on the

placement of Use Groups in zoning districts, both superfluous and meaningless. See Am. Pet. at

¶¶ 279-89.3

In a similar vein, BSA failed to consider abundant evidence showing that residents of the

Proposed Facility would stay longer than 30 days, thus violating the clear requirement under ZR

§ 12-10 that residents of UG 5 hotels be transient, defined as less than 30 days. See Am. Pet. at

¶¶ 224-234. Instead, BSA chose to defer to DOB's acceptance of BRC's alleged representations

that duration of stay would be less than 30 days, see BSA Resolution No. 189-10-A at 9-11, R. 9-

11, for which there is no evidence in the record nor in the affidavits submitted by BRC and the

City. Accordingly, BSA's disregard of precedent and evidence demonstrating that the Proposed

Facility is a UG 3 non-profit institution with sleeping accommodations, and not a UG 5 transient

hotel, as well as its interpretation of the relevant statutes, is arbitrary and capricious, contrary to

law and an abuse of discretion, requiring reversal of BSA's determination by the Court.

3 BSA pointed to examples in the ZR where certain uses may be classified within more

than one Use Group. See BSA Resolution No. 189-10-A at 10, R. 10. However, the mere fact that the legislature specifically identified these limited instances in which a use may be classified under more than one Use Group suggests that, in all other cases, a use may only be classified under one Use Group. Accordingly, only the legislature, not BSA, has the authority to dual designate a use.

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II. ULURP Review is Required

A. The Contract Between DHS and BRC, As Well As the Terms of BRC's Lease and the Conditions of City Funding, Illustrate that the City is the De Facto Lessee of the Land, Subjecting the Proposed Facility to ULURP Review

Respondents continue to contend that BRC is not a pass-through lessee for, or agent of,

the City, and therefore the City is not a de facto lessee of the Proposed Facility and,

consequently, subject the Proposed Facility to ULURP review. However, where, as here, the

operation of a shelter is subject to the control of the City, pursuant to the terms of its contract

with the City and the terms of the actual lease for the property, the City is the real lessee of the

property, requiring ULURP review.

As explained in CFC's Amended Petition, under Charter Section 197-c(a)(11) of the

New, "[a]cquisition by the city of real property . . . including . . . by purchase, condemnation,

exchange or lease" requires ULURP review. Whether the City has entered into a "lease" that

requires ULURP review under this section of the Charter, "the prevailing issue is whether or not

the City's interests will so predominate the use of the land, to the exclusion of the owner's, that

the effect on the community will be the same as if the City had taken title to the land." Ferrer,

218 A.D.2d at 94. Accordingly, the City need not actually be the lessee for ULURP to apply;

instead, where the City's interests in the land are pervasive, even in the absence of an actual lease

with the City, ULURP review is mandated because the City is acting as if it had taken title to the

land. A combination of the express terms of the contract between DHS and BRC for operation

of the Proposed Facility and BRC's lease with 127 W. 25th LLC ("BRC Lease") creates the very

situation contemplated by Ferrer that would require ULURP review.

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Here, the terms of the Shelter Contract indicate that DHS dictates the operation of the

200-bed component of Proposed Shelter.4 See Am. Pet. at ¶¶ 109-11 (identifying specific

provisions of the Shelter Contract, Exhibit 54 to the May 6, 2011 Connolly Aff.). As explained

in greater detail in CFC's Amended Petition, the Shelter Contract mandates, among other things,

that: (1) the shelter operate as part of the City's homeless services system; (2) only DHS may

refer homeless adults to the shelter and BRC must accept all homeless adults referred by DHS;

(3) DHS will pay BRC on a monthly basis not to exceed $7.2 million annually and $76.1 million

over the term of operations; (4) BRC has no termination rights; and (5) DHS reserves the sole

right to change the purpose of the shelter to comport with the needs of the City. See Am. Pet. at

¶¶ 109-11. Consequently, BRC may be considered a "state actor" with regards to the Proposed

Facility, in that BRC is acting as agent of the City and merely as a straw man. See Am. Pet. at

¶¶ 111-12; see Decision & Order, The Westchester Square/Zerega Improvement Organization et

al. v. Seth Diamond, et al., Index No. 260573/2009 (Sup. Ct. Bronx Cty. July 9, 2010), at 4,

attached as Exhibit 82 to the Affirmation of Daniel S. Connolly In Reply and Further Support of

Amended Verified Petition, dated July 15, 2011 ("Connolly Reply Aff.") (holding that although

the City did not have a formal lease for apartments used as shelter for the homeless, the City's

contract with a third party that actually rented the apartments rendered the lease, in "effect," one

with the City, as the third party was acting only as a "straw man . . . to achieve the goal of

DHS").

4 BRC further argues that the Shelter Contract only applies to a portion of the Proposed

Facility, evidencing that it is not a proxy for a lease of the Building. See BRC Opp. at 32. However, the CDCC receives its primary funding from New York City's DOH, see Exhibit 69 to the May 6, 2011 Connolly Aff., ¶ 33, and the Reception Center operates pursuant to a contract with, and is fully funded by, DHS, see id., ¶ 35. The CDCC funding and the Reception Center contract serves as further evidence of the City's control of the land upon which the Reception Center sits.

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In addition, as detailed in CFC's Amended Petition, the relevant conditions of the BRC

Lease, as well as the millions of dollars of City funds being used to finance the construction and

capital costs of the Proposed Facility, further highlight the City's pervasive use of the land. See

Am. Pet. at ¶¶ 114-15. BRC argues that the terms of the BRC Lease are not relevant to the

analysis because "the City has not agreed to certain essential terms such that a lease has been

created." BRC Opp. at 30. However, at a minimum, DHS insisted on specific terms in the BRC

Lease, as indicated by a provision in the BRC Lease which expressly allows BRC to assign the

lease to DHS without the landlord's consent. See Exhibit 7, Att. 8 to the May 6, 2011 Connolly

Aff., at § 10.2(a)(iii). As the City explained, this provision is a clause "DHS includes in all of its

shelter provider contracts to ensure that BRC's clients would not be without shelter in the

unlikely event that sudden financial difficulties or another unexpected crisis prevent BRC from

operating the Shelter." City Opp. at 21. Thus, the City reserves the right to backstop its straw

lessee.

Respondents rely on Lucia Plaza v. City of New York, 305 A.D.2d 604, 605 (2d Dep't

2003), to support their argument that the Shelter Contract does not create a de facto lease

requiring ULURP review. See BRC Opp. at 31. In Lucia Plaza, the Second Department found

that a contract between DHS and a shelter operator, the Doe Fund, did not create a lease, or its

functional equivalent, giving rising to ULURP review. Id. at 605-06. Lucia Plaza, however,

stands in contrast to the First Department's analysis articulated in Ferrer. See Ferrer, 218

A.D.2d at 94. Further, to the extent the contract in Lucia Plaza is similar to the Shelter Contract

here, and the Shelter Contract standing alone would not be sufficient, the relevant provisions in

BRC's lease, and the extensive funding provided by the City, support a finding that the City's

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interests so predominate as to render the lease, in effect, one with the City. See Westchester

Square, Ex. 82, at 4.

The Court has already suggested that it agrees with Respondents' position that ULURP is

not required, indicating that one of the controlling facts is that DHS is not a signatory to BRC's

lease. See PI Decision, at 14. However, as Ferrer and Westchester Square show, an actual lease

between the City and the lessor is not required so long as it can be shown the "City's interests

will so predominate the land," as they undoubtedly do here. 218 A.D.2d at 94.

Based upon the Shelter Contract terms, the BRC Lease provisions and the funding

conditions, it is clear that the City predominates the use of the land. Here, BRC is acting as an

agent for the City and pass-through lessee in order to allow DHS to circumvent ULURP review.

However, Charter Section 197-c(a)(11) demands a ULURP review in order to fully and fairly

address the potentially significant changes in land use that will occur as a result of the Proposed

Facility. As the application of ULURP must be "liberally construed" to give effect to the

statute's purpose and intent in controlling crucial land use decisions and ensuring local

community involvement in such decisions, the Court should not allow the City to circumvent its

legal obligations by hiding behind BRC. See Council of N.Y. v. Giuliani, 172 Misc.2d 893, 901

(Sup. Ct. Queens Cty. 1997).

III. BRC's Proposed Facility Must Adhere to the Shelter Size Limit Imposed by Administrative Code Section 21-312 As the City Has Not Actually Invoked the Exceptions Set Forth in Administrative Code Section 21-315(a)(6)

The Court has already found that all 328 beds at the Proposed Facility must be counted

together, and that this total count renders the Proposed Facility in violation of the 200-bed limit

imposed by Admin Code Section 21-312. See PI Decision at 17. Respondents' arguments

suggesting a different conclusion are without merit. Accordingly, the Court should grant the

Amended Petition and enjoin occupancy of the Proposed Facility.

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In response, Respondents contend that the Camp LaGuardia Exception found in Admin

Code Section 21-315(a)(6) permits the Proposed Facility to exceed the shelter size limit. See

BRC Opp. at 34-35; City Opp. at 31. However, that issue is not properly before the Court.

Pursuant to the Camp LaGuardia Exception, the City is permitted to open two, 400-bed shelters

as a replacement for Camp LaGuardia, a former 1,700-bed, armory-style shelter. See Admin

Code § 21-315(a)(6); Exhibit 55 to the May 6, 2011 Connolly Aff, ¶ 37. Yet, the City has not

invoked the exception nor taken any steps to authorize a facility that exceeds 200 beds pursuant

to the Administrative Code.5

More specifically, Respondents have not stated that they are, in fact, relying on the Camp

LaGuardia Exception, merely that it would be "permissible" for them to do so. City Opp. at 31;

see also BRC Opp. at 34 ("[T]here is nothing in the plain language of [Admin Code § 21-

315(a)(6)] that precludes the City from exercising that right now. Rather, it is the City's statutory

right to do so whenever it so chooses . . . ."). Consequently, the City has not provided the Court

with any evidence that it is invoking the exception or taking any procedural steps to construct

and operate a shelter pursuant to the Camp LaGuardia Exception. Thus, the exception is

essentially irrelevant at this time.

5 As noted in the Amended Petition, the City's invocation of the Camp LaGuardia

Exception further suggests that ULURP review is necessary. See Admin Code § 21-315(b) ("Each new shelter which replaces a shelter listed in subdivision of this section shall comply with applicable statutes, laws, rules and regulations, including, but not limited to, [ULURP]."); see also Am. Pet. at ¶ 309. The Court indicated in its decision on the preliminary injunction that this law stands for the proposition that ULURP is mandated only when it is applicable, not that ULURP is an example of a law that is always applicable. See PI Decision at 17. However, CFC respectfully submits that the plain language of the statute indicates that the City Council intended that ULURP is always an applicable law when Admin Code Section 21-315(a) exceptions are utilized. In light of the potentially tremendous impact on the community of opening such large shelters, CFC's interpretation of the provision is consistent with the legislative history and would support the purpose of ULURP: to ensure local communities are involved in the land use decisions that directly impact their homes and neighborhoods. See Am. Pet. at ¶¶ 313-17.

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Moreover, to allow the City to avoid the 200-bed shelter limit when it chooses by merely

saying that the Camp LaGuardia Exception would apply if invoked, without actually invoking it,

would enable the City to routinely cite to Camp LaGuardia in order to build multiple shelters in

excess of 200 beds, even though only two such shelters are permissible. See Admin Code § 21-

315(a)(6).

Accordingly, as the Proposed Facility exceeds the 200-bed limit imposed by law, and as

the Camp LaGuardia Exception is not properly before the Court, the Court should enjoin

operation of the Proposed Facility. Further, the Court should not permit the City to simply

reference the Camp LaGuardia Exception to circumvent the Administrative Code's restriction on

shelter size without evidence that it is formally invoking the exception and following some

procedures to do so.

IV. Admin Code Section 21-312 Is Not Preempted by State Regulation

Despite substantial briefing by the parties over the last nine months on the City's 200-bed

shelter limit law, as well as oral argument on the subject, the City raises for the first time in the

City Opposition that Admin Code Section 21-312 is preempted 18 NYCRR § 491.3(g), the DSS

Regulation, which requires that approvals of shelter capacity be done on an ad hoc basis taking

into account a number of factors.6 Notably, BRC does not make this argument. The City first

contends that "the State of New York has promulgated a detailed and comprehensive scheme of

regulations regarding homeless shelters which preempts local enactments pertaining to the same

issues." City Opp. at 24. The City also argues that the language of the Administrative Code

restriction on shelter size is inconsistent with the DSS Regulation. Id. at 27-29. The City

6 The Department of Social Services is now the New York State Office of Temporary and

Disability Assistance ("OTDA").

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misinterprets both the DSS Regulation, as well as the law on preemption, and, accordingly, its

arguments must fail.

A. The State Has Not Evinced a Desire to Preempt Local Regulation of Homeless Shelters

As the City correctly explains, the State legislature's intent to preempt local regulation

may be implied where the legislature enacts "a comprehensive and detailed regulatory scheme in

a particular area." City Opp. at 25 (quoting Consol. Edison Co. of N.Y. v. Town of Red Hook, 60

N.Y.2d 99, 105 (1983)). However, such a comprehensive statutory scheme is only evidence of

an intent to preempt. See Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372,

377 (1989). "That the State and local laws touch upon the same area is insufficient to support a

determination that the State has preempted the entire field of regulation in a given area . . . ."

Incorporated Vill. of Nyack v. Daytop Vill., Inc., 78 N.Y.2d 500, 505 (1991) (quotations

omitted). In fact, there can be no finding of preemption where the state's regulatory scheme does

not also suggest a "desire for across-the-board uniformity." Jancyn Mfg. Corp. v. Suffolk Cnty.,

71 N.Y.2d 91, 98 (1987).

There is little question that the State has enacted an extensive plan for regulating adult

care facilities, including shelters for adults. See, e.g., Social Services Law ("SSL") § 460 et seq.;

§ 461 et seq. However, this framework does not suggest the State's desire to preempt local

regulation. In fact, the language of the DSS Regulation compels the conclusion that the

legislature intended local law to work in conjunction with the regulation:

The capacity of a shelter for adults is limited to the capacity approved by the department . . . . Approvals of capacity will be based upon the department's determination of whether the shelter for adults can operate at the requested capacity in compliance with department regulations and applicable local codes concerning, but not limited to: the physical plant; environmental standards; the proposed program of services; and staffing ratios within a shelter for adults.

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18 NYCRR § 491.3(g) (emphasis added).

This regulation requires OTDA, in determining shelter capacity, to consider all applicable

local laws. The types of local regulations which are applicable and must be considered are not

only zoning, building and environmental codes, but also local laws specifically regarding shelter

operation. As such, the Administrative Code is not preempted by the DSS Regulation; instead, it

is clear that the legislative intent was to ensure compliance with local laws on shelter operation,

such as the City's limitation on shelter size.

More generally, the State scheme for the operation of adult care facilities such as the

Proposed Facility, envisions that State law work in combination with local laws and regulations

governing the operation of such facilities. See, e.g., SSL § 460-d(4)(a) ("The operating

certificate of any facility may be revoked, suspended or limited upon a determination by the

department that the facility has failed to comply with the requirements of state or local laws or

regulations applicable to the operation of such facility.") (emphasis added); SSL § 461-a

(requiring operators of adult homes or residents for adults to "biannually update and implement

plans for quality assurance activities," which include, among other things, "measurement of

adherence to local laws and regulations") (emphasis added). Thus, the City's suggestion that

"[t]he City Council cannot impose additional constraints on the operation of homeless shelters

because the State has already occupied the field," City Opp. at 27, ignores entirely the clear

intention of the State to allow municipalities to do just that.

The cases upon which the City relies to support its argument that the DSS Regulation

preempts local law are easily distinguishable and, thus, of little assistance in determining this

issue. For example, in Consolidated Edison Co. of N.Y. v. Town of Red Hook, the Court of

Appeals was faced with determining whether a local law requiring a proposed power plant

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operator to obtain a license from a town board in order to begin a site study was deemed invalid

because it was preempted by Article VIII of the Public Service Law. See 60 N.Y.2d 99, 104-05

(1983). It was clear from the declaration accompanying enactment of Article VIII, however, that

the purpose of the State statute was to provide a single certification procedure for the siting of

such facilities, at the expense of local laws. Id. at 105. Here, no such express purpose is

apparent from the governing SSL law or from the regulations promulgated thereunder. In fact,

as noted above, the SSL specifically envisions adherence by shelters to both State and local law.

See SSL §§ 460-d(4)(a), 461-a.

The City also suggests, rather broadly, that "the Social Services law has already been

deemed a comprehensive scheme that preempts local regulation in the area of homeless shelters."

City Opp. at 26 (internal quotations omitted). Tellingly, in the cases upon which the City relies

in support of this contention, the local law at issue required an additional certification that would

have undermined or contravened the certifications required by the State.7 See, e.g., City of New

York v. Town of Blooming Grove Zoning Bd. of Appeals, 305 A.D.2d 673, 674 (2d Dep't 2003)

(preempting local law requiring homeless shelters to receive special permits which forbade

residents from leaving the facility in direct contravention of SSL mandates that residents be

permitted to leave and return to the facility); DeStefano v. Emergency Hous. Group, Inc., 281

A.D.2d 449, 451 (2d Dep't 2001) (invalidating a local zoning ordinance requiring a special

permit for homeless shelters which abrogated the State's right under the SSL to issue an

operating certificate for shelters ); Adkins v. Bd. of Appeals, 199 A.D.2d 261 (2d Dep't 1993)

(voiding local ordinance requiring village certification of an adult home where the SSL provides

the State with sole responsibility to issue operating certificates for such facilities). In all of these

7 Notably, all of these cases were decided by the Second Department.

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cases, where only the State was permitted to certify the facility at issue, the relevant local law

imposed its own certification process and approvals. Here, Admin Code Section 21-312 does no

such thing. Accordingly, unlike in these cases, there are no competing State and City

certification approvals for City shelters. Again, as explained above, Admin Code Section 21-312

does not contravene State law. Rather, it supplements and coordinates with State law in

promotion of the same goal.

The City's position that the 200-bed shelter limit is preempted by the DSS Regulation is

even more questionable in light of the extensive legislative history of Admin Code Sections 21-

312 and 21-315. These provisions of the Administrative Code were enacted, in part, as a

response to the amendment repealing the State's prohibition on shelters of over 200 beds. See

Excerpts of the Legislative History of Local Law No. 57, attached as Exhibit 83 to the Connolly

Reply Aff., at 13-16. Not only was Local Law No. 57 supported by City officials, see Exhibit 77

to the May 6, 2011 Connolly Aff., but also by various members of the New York State

Assembly, see, e.g., Ex. 83, at 21-27. Clearly, the New York State Assembly would not support

passage of a local law that would be preempted by State laws.

B. Administrative Code Section 21-312 Is Not Inconsistent with State General Law

The City argues, in addition, that because Admin Code Section 21-312 is "directly in

conflict with the State regulation," it must be held invalid. 8 City. Opp. at 28. However, Admin

Code Section 21-312 is not in conflict with the State Constitution or any general state law.

The New York State Constitution requires that local laws be "not inconsistent" with the

State Constitution or "general law" of the State. N.Y. Const. Article IX, § 2(c)(ii). To

8 This argument is not equivalent to State law preemption. Rather, even if local law is

not preempted by the State legislature, it may be held invalid if it is inconsistent with the State Constitution or any general laws of the State.

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implement Article IX, the state legislature enacted the Municipal Home Rule Law ("MHRL"),

which prohibits local governments from adopting local laws inconsistent with the State

Constitution or any "general law" of the State. See MHRL § 10(1)(ii); DJL Rest. Corp. v. City of

New York, 96 N.Y.2d 91, 94 (2001). The MHRL defines "general law " as "[a] state statute

which in terms and in effect applies alike to all counties, all counties other than those wholly

included within a city, all cities, all towns or all villages." MHRL § 2(5) (emphasis added).

Similarly, the MHRL defines "law" as "[a] state statute, charter or local law." MHRL § 2(6)

(emphasis added). Notably, the definitions of "law" and "general law" do not include the

regulations of State executive agencies. Accordingly, there is no prohibition on a local law being

inconsistent with the regulations of an executive agency. See People v. Halloran, 130 Misc.2d

569, 572-73 (Just. Ct. Nassau Cty. 1985) (the "conflict must be between a State Law and Local

Law," not the regulations of the Department of Social Services); see generally Consol. Edison

Co., 60 N.Y.2d 99 (addressing whether local law is inconsistent with Article VII of the Public

Service Law); DJL Rest. Corp., 96 N.Y.2d 91 (analyzing whether local zoning resolution was

inconsistent with State's Alcoholic Beverage Control law); N.Y. City Health & Hosps. Corp. v.

Council of N.Y., 303 A.D.2d 69, 74-80 (1st Dep't 2003) (determining whether local law was

inconsistent with State's Health and Hospitals Corporation Act). But see Rampe v. Giuliani, 281

A.D.2d 609, 609-10 (2d Dep't 2001) (finding stipulation of settlement inconsistent with "State

law and regulations"). Thus, the City's argument that the Department of Social Services'

regulation regarding shelter certification is in conflict with Admin Code Section 21-312 must

fail.

However, assuming, arguendo, that the State intended to prohibit local laws that are

inconsistent with executive regulations, there is no inconsistency between the DSS Regulation

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and Admin Code Section 21-312. "[A] local law regulating the same subject matter is deemed

inconsistent with the State's overriding interests because it either (1) prohibits conduct which the

State law, although perhaps not expressly speaking to, considers acceptable or at least does not

proscribe . . . or (2) imposes additional restrictions on rights granted by State law." DJL Rest.

Corp., 96 N.Y.2d at 95 (quoting Jancyn Mfg. Corp., 71 N.Y.2d at 97); see also Consol. Edison

Co., 60 N.Y.2d at 108. Thus, "[t]he fact that both the State and local laws seek to regulate the

same subject matter does not in and of itself give rise to an express conflict." Jancyn Mfg. Corp.

v. Suffolk Cnty., 71 N.Y.2d 91, 97 (1987). Instead, only those local laws which would

"contradict or be incompatible with" State general laws must be invalidated. Council for Owner

Occupied Hous., Inc. v. Koch, 462 N.Y.S.2d 762, 765 (Sup. Ct. N.Y. Cty. 1983).

As explained above, the DSS Regulation, by its language, contemplates that local laws

such as Administrative Code Section 21-312 will regulate the operation of homeless shelters,

thereby precluding a finding that the two provisions are inconsistent. When approving the

capacity of shelters, OTDA is require to consider local codes that govern the operation of

homeless shelters. See 18 NYCRR § 491.3(g). It stands to reason, then, that Admin Code

Section 21-312 does not prohibit conduct that State law has deemed acceptable, a factor that the

courts analyzing this issue have determined is necessary to support invalidation of a local law.

See Town of Blooming Grove, 305 A.D.2d 673; DeStefano, 281 A.D.2d 449; Adkins, 199 A.D.2d

261. Instead, local laws such as Admin Code Section 21-312 provide complementary rules on

the operation of homeless shelters that supplement the State law governing homeless shelters and

which do not serve as an obstacle to fulfillment of the State law. See generally Council for

Owner Occupied Hous., 462 N.Y.S.2d at 765.

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The City contends that the situation here is similar to that addressed in N.Y. City Health

& Hosps. Corp. v. Council of N.Y., where the First Department determined that a local law

requiring the New York City Health and Hospital Corporation ("HHC") to hire "peace officers"

as security guards was inconsistent with State law establishing HHC. 303 A.D.2d at 74-80.

However, the legislative history of the State law establishing HHC showed that HHC was

created specifically to operate "free from control by city authorities." Id. at 76 (internal citation

omitted). Accordingly, the court found the local law inconsistent with State law on HHC

because, in part, State law gave HHC "complete autonomy to fix the guards' qualifications and

replace them." Id. at 69. This finding is clearly distinguishable from the laws at issue here.

There is no indication in the DSS Regulation nor the SSL that the State intends to operate and

regulate City shelters free from the control by City authorities. Quite the contrary, State law

necessarily envisions an interplay with local law.

C. To the Extent Admin Code Section 21-312 Is Inconsistent with State General Law, The Inconsistency Is Permitted In Light of the City's Special Local Problem in Combating Homelessness

Finally, assuming, arguendo, that Admin Code Section 21-312 is inconsistent with the

DSS Regulation, that inconsistency should be excused pursuant to well-established precedent

and the shelter limit law upheld because New York City's homeless problem far exceeds that of

any other municipality in New York State. As the Court of Appeals has explained, "[w]here

inconsistency with a general State law is shown, a local law will be upheld, despite the

inconsistency, if there is a special local problem supporting the variance." People v. Cook, 34

N.Y.2d 100, 109-10 (1974); see People v. Nemadi, 531 N.Y.S.2d 693, 699-700 (Crim. Ct. N.Y.

Cty. 1988) (acknowledging that, as the State's largest urban area, additional government control

by the City is necessary to meet the "special housing problems" of the City).

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There is little dispute that New York City's homeless problem is far different in scope and

kind from that faced by other municipalities in the State. "Eighty-five percent of the homeless

population in New York State is in New York City . . . ." Testimony of Coalition for the

Homeless, dated February 16, 2011, attached as Exhibit 84 to the Connolly Reply Aff.

Accordingly, the provision of housing for the homeless in New York City should be considered a

special problem which would permit an exception to the rule barring any inconsistency with

State law governing the operation and regulation of homeless shelters. See Nemadi, 531

N.Y.S.2d at 699–700.

The City contends that the DSS Regulation was "specifically developed to address the

needs of homeless people in the City." City Opp. at 28. If the City is correct, the DSS

Regulation, to the extent it is considered a State law, would not be a "general law," but a "special

law," one which only effects New York City. See Seawall Assocs. v. City of New York, 510

N.Y.S.2d 435, 445 (Sup. Ct. N.Y. Cty. 1986). A local law cannot be held invalid if it conflicts

with a State "special law." Id. The Court should not allow the City to have it both ways. Either

the DSS Regulation is a general law, whereby any inconsistency inherent in Admin Code Section

21-312 should be excused due to the City's unique issues in dealing with homelessness, or it is a

special law, whereby any inconsistency in the at Administrative Code is irrelevant to the

analysis. Accordingly, there can be no preemption of the Administrative Code.