FISHER V. GIULIANI 720 N.Y.S.2d 50 (2001) CASE BRIEF

FISHER V. GIULIANI

720 N.Y.S.2d 50 (2001)

NATURE OF THE CASE: Giulianai (D) appealed from a judgment of the Supreme Court, which granted an article 78 petition to the extent of vacating and annulling the adoption of the Theater Subdistrict zoning map change and text amendments, enjoining the transfer of development rights pursuant to the subject resolution, and directing respondent Department of City Planning to prepare an Environmental Impact Statement.

FACTS: In 1982, New York City amended its Zoning Resolution in response to the destruction of several theaters. These amendments created a new 'Theater Subdistrict' that restricted the demolition of designated theaters and attempted to make them more viable by permitting the transfer of development rights to nearby parcels. In 1998, further amendments to the Zoning Resolution were adopted in an effort to assure the vitality of this irreplaceable asset. The 1998 amendments authorize the transfer of development rights from designated theaters to receiving sites anywhere within the Theater Subdistrict. The transfer is limited to a 20% increase in the base Floor-to-Area ratio (FAR) of the receiving site. The Zoning Map was also amended to extend the western boundary of the Theater Subdistrict to include the west side of Eighth Avenue between 42nd Street and 45th Street, which is the westernmost fringe of the Special Clinton District, a neighboring residential area. An additional discretionary mechanism was also established in the Theater Subdistrict. Thus, at certain sites in the district, including sites on Eighth Avenue, a developer may obtain an additional 20% of the base FAR via special permit or discretionary authorization. The Theater Subdistrict amendments establish urban design controls such as street wall, height, and setback requirements. These design controls would constrain tower-type construction that had been permissible under prior zoning provisions. The Department of City Planning (DCP), conducted an environmental assessment and examined development trends in the larger midtown area during the 10-year period between 1983 through 1993. DCP determined that the amendments did modestly increase the density of particular sites via the transfer of development rights from theaters. The higher density of specific sites would accommodate the projected demand for space-it would not change the overall demand. DCP concluded that any potential development would give rise to less than 50 peak-hour vehicle trips at any given intersection in the area. This additional traffic would have no significant impact on air quality. Because the amendments would not induce development different in kind or magnitude from that which was already expected to take place, the DCP concluded that the change in zoning would not result in any significant displacement. Eventually, after two other public hearings by different agencies, the New York City Council held public hearings involving the testimony of approximately 100 people, found that no significant environmental impact would result from the proposed action and approved the amendments and map change (subject to certain modifications). Fisher (P) commenced this CPLR article 78 proceeding, seeking to challenge the adequacy of the environmental review and consequent negative declaration. Ps also alleged that the proposed amendments were not within the scope of the City's zoning power. The Supreme Court annulled the Theater Subdistrict Amendments and the Zoning Map Change and directed the DCP to prepare an Environmental Impact Statement. This appeal resulted.

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