First Department rules NYSDEC was not an “involved agency” in project’s environmental review. In 2008, the City’s Economic Development Corporation selected MMPI Piers LLC, a subsidiary of Vornado Realty Trust, to renovate Piers 92 and 94 along the Hudson River between West 52nd and West 55th Streets in Manhattan. The piers have been used as exhibition space and for trade shows, and Pier 92 has served as a cruise ship dock when Piers 88 and 90 have been in use. MMPI intended to expand Pier 94’s headhouse to increase exhibition space, build a new pavilion that could be used for free by the community for up to 30 days a year, alter Pier 92’s ground level to accommodate loading and unloading of trade show materials, and reconfigure the vehicle entrance and exit to alleviate traffic congestion.

MMPI conducted an environmental assessment, and the lead agency for the review, the Department of Small Business Services, found that the project would not have significant adverse environmental impacts and issued a negative declaration. The City Council approved the project in July 2009.

The Hell’s Kitchen Neighborhood Association and several residents filed an article 78 petition challenging the project’s environmental review. The neighborhood association argued, among other things, that the City ignored potential adverse impacts and should have prepared a full environmental impact statement. The neighborhood association also argued that the City should have designated the State Department of Environmental Conservation as an involved agency during the environmental review because the Pier 94 headhouse was adjacent to a tidal wetland and MMPI would need to obtain a DEC permit to redevelop the site.

A lower court granted the petition, ruling that the City adequately considered the environmental impacts, but erred by not designating DEC as an involved agency. The court annulled the negative declaration and subsequent discretionary approvals. The City and MMPI appealed.

The First Department reversed the lower court, reinstating the negative declaration and the project’s approvals. Referencing the State Environmental Conservation Law, the First Department found that the headhouse was not “adjacent” to a tidal wetland because it was on the landward side of the bulkhead, which was built prior to 1977 and runs from Battery Place to West 59th Street. Thus, the appellate court ruled that the City was not required to designate DEC as an involved agency because the agency had no approval authority over the project.

Hell’s Kitchen Neighborhood Assoc. v. NYC, 2011 N.Y. Slip Op. 00734 (1st Dep’t Feb. 8, 2011) (Attorneys: Michael A. Cardozo, Elizabeth I. Freedman, for NYC; Richard G. Leland, for MMPI; Albert K. Butzel, for Hell’s Kitchen Neighborhood Association).