The contextual rezoning of Sunset Park, Brooklyn, and the decision in Chinese Staff & Workers' Ass'n v. Burden: the basic principles governing limited judicial review of environmental challenges in New York endure.

• Author: Natrella, Elizabeth S.

1. INTRODUCTION

   Just over twenty-five years after its decision in Chinese Staff & Workers Association v. City of New York ("Chinese Staff I"), (1) the New York State Court of Appeals had occasion to consider another environmental challenge by the same group, to the 2009 contextual rezoning of Sunset Park, Brooklyn, in Chinese Staff & Workers' Association v. Burden ("Chinese Staff II"). (2) The two cases ended in different results, but they were unified by the same underlying principles of environmental review.

   This article will review the background of the litigation and the Chinese Staff II decision, why the result differed from Chinese Staff I, and why certain belated novel issues and twists interjected into the Chinese Staff H Court of Appeals litigation necessarily failed. The primary issue presented in both cases was whether the lead agency had comported with state and city environmental laws--i.e., the State Environmental Quality Review Act ("SEQRA"), ECL sections 8-0101 et seq., and its city counterpart, City Environmental Quality Review Rules of the City of New York ("CEQR"), 62 RCNY sections 5-01 et seq.--as to the respective actions at issue, a luxury high rise development on a vacant lot in Chinatown, Manhattan (Chinese Staff I), and a rezoning of a 128-block area of Sunset Park, Brooklyn (Chinese Staff II). (3) The eventual focus by the petitioners in both cases was the factor of alleged secondary displacement, as part of the analysis of the potential socioeconomic impacts and effect on neighborhood character. (4)

   Below, we first examine the 2009 contextual rezoning and litigation in Chinese Staff II, leading to the trial court and appellate division decisions. (5) Thereafter, we briefly examine the earlier Chinese Staff I decision. (6) Finally, we review the Court of Appeals' Chinese Staff II decision, including its implicit rejection of several novel challenges, and the reasons why the Chinese Staff II unanimous affirmance followed from the Court of Appeals' jurisprudence over the last quarter century after its reversal in Chinese Staff I. (7)

2. BACKGROUND OF THE CHINESE STAFF II LITIGATION: THE 2009 CONTEXTUAL REZONING OF SUNSET PARK, BROOKLYN

   In 2009, the New York City Councils approved changes to the City of New York's zoning map (9) to rezone a 128-block area of the Sunset Park neighborhood in Brooklyn, which is predominantly residential, with some commercial corridors along Fourth, Fifth, Seventh, and Eighth Avenues (hereinafter referred to as "the Rezoning"). (10) The Rezoning was a contextual zoning plan that was developed through a participatory public process in close consultation with Brooklyn Community Board 7, (11) and other community participants, following a thorough study by the New York City Department of City Planning ("DCP"). (12)

   The Rezoning plan addressed two pressing needs identified by the community: protection of the existing low- and mid-rise built character of the area and creation of incentives for much-needed affordable housing. (13) Those needs were addressed by: (1) applying contextual zoning districts and appropriate commercial overlay districts to ensure that new development was consistent with the neighborhoods' building patterns; and (2) applying the City's Inclusionary Housing Program to create opportunities and incentives for affordable housing along Fourth and Seventh Avenues, which are areas that have good access to public transportation and could support increased development. (14)

   Contextual zoning is a planning tool that has been employed in the City and elsewhere in order to meet the needs of addressing outmoded zoning which no longer fits the existing land uses. (15) A contextual zoning or rezoning "ensures development of buildings with densities and forms that are consistent with existing land uses through the mapping of 'contextual districts,' which regulate total floor area, building height, and streetwall height and alignment." (16)

   The concept of contextual rezonings has been utilized throughout New York City, (17) and the country, (18) in recent years. Such rezonings respond to "community concerns about new construction that differs dramatically from the prevailing built character of the neighborhood, but which is allowed by the existing, often out-of-date zoning." (19) Contextual rezonings "creat[e] predictability in the height and bulk of new buildings" through height limits and other regulations. (20)

   In this case, the contextual rezoning involved approximately "128 blocks of the Sunset Park neighborhood in Brooklyn Community District 7 ... generally bounded by Third Avenue, 28th Street, 63rd Street, and 8th Avenue." (21) Sunset Park is a "predominantly residential neighborhood," and "[m]ost blocks in the area consist of three- and four-story row houses and apartment buildings, mostly on the side streets, while some buildings rise to five or six stories and are predominantly located along the avenues." (22) These buildings "often include ground floor commercial uses" when "located along the commercial corridors of Fourth, Fifth, Seventh and Eighth Avenues." (23) Additionally, "[t]here are also small areas of detached and semi-detached housing on the southwest corner of the rezoning area" and "[c]ommunity facilities such as schools and churches are common." (24)

   The history of the Sunset Park neighborhood reveals a wealth of diverse residents and waves of immigrants over time, including Irish, Polish, Norwegian, Finnish, and Italian, to, more recently, Latino/Hispanic and Asian, as well as Muslim. (25) According to one source, about half of Sunset Park's one hundred thousand residents are Hispanic, including Dominicans, Ecuadorians, Nicaraguans, Puerto Ricans, and Mexicans. (26) Additionally, the Asian population, "including many from Canton, China and Hong Kong, as well as Malaysia and other nations, represent over two-fifths of Sunset Park's community ... [with a] thriving 'Chinatown' ... located on Eighth Avenue in Sunset Park." (27)

   In the years prior to 2009:

   Sunset Park's unique, low-rise neighborhood character ha[d] been increasingly threatened with development pressures that would have resulted in construction of buildings that were out of scale with the neighborhood character.... Although the proposed developments were inconsistent with Sunset Park's neighborhood character, they were permitted under the area's then-existing zoning laws. (28) Such laws included outdated zoning districts that had been in place over a majority of the area since the current New York City Zoning Resolution was adopted in 1961: (29)

   In particular, the original 1961 zoning districts did not place street wall (the portion of a building facing the street) or overall building height limits on development, allowing construction of tall, slender buildings surrounded by open space.... (30) By mapping contextual zoning districts, in the majority of the rezoned area, the Rezoning resulted in a "downzoning"--that is, the rezoning of a tract of land to a lesser density with a lower floor area ratio ("FAR"), (31) meaning less development is allowed in those areas under the Rezoning than was allowed under the old zoning. Prior to the Rezoning, the entire area was zoned R6 except for a small portion of Fifth Avenue that was zoned with a commercial C4-3 district; under the Rezoning, over sixty-five percent of the area was rezoned from R6 to R6B (which decreased maximum permitted residential density by eighteen percent). (32) Thus, because one of the main goals of the Rezoning was to eliminate the possibility of out-of-scale building in the area, the Rezoning eliminated the previously available Height Factor option and placed height and bulk limits on buildings, replacing the R6 district with R6A, R6B, and R7A zoning districts. (33)

   In addition, as part of the contextual zoning, two limited areas along Fourth and Seventh Avenues were rezoned to R7A, which provided a modest increase in allowable residential density (an upzoning), but also removed the previous incentive to develop to even greater densities in buildings with community facilities. (34) Most of the potential increases in residential density along Fourth and Seventh Avenues are only available through application of an Inclusionary Housing Program bonus, which allows developers to utilize the increased density by providing permanently affordable housing as a condition of the new development. (35)

   Finally, the Rezoning also adjusted the boundaries of the commercial zoning overlay zoning districts in Sunset Park in order to conform the commercial zoning to preexisting uses and better reflect the existing commercial character of the rezoned blocks. (36) In order to preclude encroachment of commercial uses on the residential side streets, the size of the commercial overlay districts were reduced from one hundred fifty feet in depth under the old zoning to one hundred feet under the new zoning (37)

3. THE SEQRA/CEQR ENVIRONMENTAL REVIEW RESULTING IN A NEGATIVE DECLARATION WITH RESPECT TO THE REZONING

   Because the New York City Department of City Planning ("DCP"), acting on behalf of the City Planning Commission ("CPC"), as the lead agency for environmental review purposes, determined that the Rezoning, which involved a change in allowable use for over twenty-five acres, qualified as a Type I action, (38) it prepared a thorough Environmental Assessment Statement ("EAS") (39) to identify and consider the areas in which the proposed zoning changes might create significant environmental impacts. (40) In so doing, it utilized guidelines set forth in the City's CEQR Technical Manual. (41)

   Based on the analysis contained in the EAS, (42) which was issued on April 17, 2009, DCP determined that the Rezoning did not have the potential to result in significant adverse impacts on the environment and, therefore issued a negative declaration, because preparation of a more in-depth Environmental Impact Statement ("EIS")...