New York's Highest Court Upholds NYC Approval of Affordable Housing Development at Community Garden Site

Petitioner began leasing a lot owned by the City of New York on a month-to-month basis in 1991. Starting in 2005, petitioner used the lot as a green space/sculpture garden. After the city identified the lot as a potential site for affordable senior housing in 2013, petitioner opened the space to the public directly through a gate on Elizabeth Street. The volunteer-operated garden currently was open for a limited number of hours per week. The proposed city project entailed construction of a seven-story mixed-use building that would include 123 units of affordable senior housing and at least 6,700 square feet of publicly accessible open space. The project was subject to review under the State Environmental Quality Review Act (SEQRA) and, because the project involved the transfer of city property to private developers, to review under the Uniform Land Use Review Procedure (ULURP). The city approved the proposed project. Petitioner then filed an Article 78 court appeal to challenge both the negative declaration issued by HPD and the approval of the ULURP application by both the NYC Planning Commission and the City Council. The Appellate Division upheld the city's approval of the project, and petitioner then appealed to New York's highest court.

The Court of Appeals again upheld the project. HPD had identified appropriate areas of concern, took the necessary "hard look," and rationally determined that the project wouldn't have a significant adverse impact on the environment. The court found that the project would be built to construction standards that would minimize its energy impact. And HPD wasn't required to address "every conceivable environmental impact." The court found that petitioner pointed to no published standards for assessing climate change concerns in a project of this type in general or in the specific areas of urban heat and stormwater runoff. The negative declaration was properly issued where, as here, "the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion." Petitioner's other concerns, relating to the project's compliance with local zoning requirements, weren't the proper subject of this proceeding. 

A dissenting judge disagreed with the court's decision, arguing that HPD failed to take the requisite hard look at the climate change impact of the project, including the reduction in open space, and didn't provide a reasonable elaboration for its ruling.

Matter of Elizabeth St. Garden, Inc. v. City of New York: App. No. 60, 2024 NY Slip Op 03321 (Ct. App.; 6/18/24; Wilson, CJ, Garcia, Singas, Cannataro, Troutman, Halligan, Rivera [dissenting], JJ)