CFC - Reply Memo of Law in Further Support of PI

8/3/2019 CFC - Reply Memo of Law in Further Support of PI

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: IAS PART 11

In the Matter of the Application of

CHELSEA BUSINESS & PROPERTYOWNERS' 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; SETH

DIAMOND, Commissioner for the Department

of Homeless Services for the City of New York("DHS"); GEORGE NASHAK, Deputy

Commissioner for Adult Services for DHS;

ROBERT D. LIMANDRI, Commissioner for theDepartment 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; VITO MUSTACIUOLO, Deputy

Commissioner for the Department of Housing,Preservation & Development of the City of New

York; 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 PRELIMINARY INJUNCTION

BRACEWELL & GIULIANI LLP

1251 Avenue of the Americas

New York, New York 10020

(212) 508-6100

Attorneys for Petitioner


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TABLE OF CONTENTS

Page

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

STATEMENT OF FACTS ............................................................................................................ 4

ARGUMENT................................................................................................................................. 4

I. Failure to Comply with Legally Mandated Processes Compels Entry of aPreliminary Injunction to Preserve the Status Quo................................................ 4

II. CFC Has Demonstrated a Likelihood of Success on the Merits............................ 6

A. The Proposed Facility Violates the Administrative Code.......................... 7

B. The Proposed Facility Is a City Facility Subject to ULURP ..................... 9

1. The DHS-BRC Contract Illustrates that DHS's CompleteControl Over the Shelter Establishes a Lease Subject to

197-c(a)(11) .............................................................................. 10

2. The Proposed Facility Is Part of a Homeless Housing Planand Therefore Subject to 197-c(a)(8)........................................ 13

C. CFC's Contract Registration, Fair Share and SEQRA/CEQRClaims Are Ripe and Likely to Succeed.................................................. 15

D. CFC Has Standing.................................................................................... 17

III. CFC Has Established That It Will Suffer Irreparable Harm................................ 20

IV. The Balance of the Equities Favors CFC............................................................. 23

CONCLUSION............................................................................................................................ 24


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TABLE OF AUTHORITIES

Page(s)

CASES

9th & 10th St. L.L.C. v. Bd. of Standards & Appeals,10 N.Y.3d 264 (2008) ..........................................................................................................6, 21

9th & 10th St. L.L.C. v. Bd. of Standards & Appeals,No. 116091/05, 2006 WL 2000128 (Sup. Ct. N.Y. Cty. July 18, 2006) .............................6, 21

Brown v. City of New York,No. 09 Civ. 6834, 2010 WL 3565171 (S.D.N.Y. Mar. 2, 2010) .............................................13

Buffalo News, Inc. v. Buffalo Enters. Dev. Corp.,84 N.Y.2d 488 (1994) ..............................................................................................................13

Chatham Green, Inc. v. Bloomberg,1 Misc.3d 434 (Sup. Ct. N.Y. Cty. 2003) ................................................................................22

City Council of Watervliet v. Town Bd. of Colonie,3 N.Y.3d 508 (2004) .....................................................................................................................16

Cmty. Serv. Soc'y v. Cuomo,167 A.D.2d 168 (1st Dep't 1990).............................................................................................19

Comm. to Pres. Brighton Beach & Manhattan Beach, Inc. v.

Planning Comm'n of City of New York, 259 A.D.2d 26 (1st Dep't 1999) ...............................18

Comm. to Pres. Brighton Beach v. Council of City of N.Y.,214 A.D.2d 335 (1st Dep't 1995).................................................................................18, 19, 20

Cmty. Bd. 3 v. New York,101 Misc.2d 189 (Sup. Ct. Queens Cty. 1979) ..........................................................................5, 21

Connor v. Cuomo,161 Misc.2d 889 (Sup. Ct. Kings Cty. 1994).......................................................................5, 20

Council of City of N.Y. v. Giuliani,172 Misc.2d 893 (Sup. Ct. Queens Cty. 1997) ..........................................................................9

Davis v. Dinkins,154 Misc.2d 518 (Sup. Ct. Queens Cty. 1992),

rev'd on other grounds, 206 A.D.2d 365 (2d Dep't 1994) ...................................................6

Davis v. Dinkins,206 A.D.2d 365 (2d Dep't 1994)....................................................................................6, 12, 19


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TABLE OF AUTHORITIES(continued)

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-iii-

Dennis v. Buffalo Fine Arts Acad.,No. 2007-2220, 2007 WL 840996 (Sup. Ct. Erie Cty. Mar. 21, 2007) .....................................6

Dental Soc'y of State v. Carey,61 N.Y.2d 330 (1984) ..............................................................................................................18

Dodgertown Homeowners Ass'n, Inc. v. City of New York,235 A.D.2d 538 (2d Dep't 1997)..............................................................................................22

Doe v. Dinkins,192 A.D.2d 270 (1st Dep't 1993).............................................................................................23

Douglaston Civic Ass'n, Inc. v. Galvin, 36 N.Y.2d 1 (1974).........................................................20

Ferrer v. Dinkins,

218 A.D.2d 89 (1st Dep't 1996).........................................................................................10, 12

Golden v. Steam Heat, Inc.,216 A.D.2d 440 (2d Dep't 1995)..............................................................................................22

Granger Group v. Town of Taghkanic,77 A.D.3d 1137, 1143 (3d Dep't 2010)..........................................................................................17

Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church ,146 Misc.2d 500 (Sup. Ct. N.Y. Cty. 1989) ......................................................................19, 22

Holden v. Bd. of Trs. of Cornell Univ.,80 A.D.2d 378 (3d Dep't 1981)................................................................................................13

J.A. Preston Corp. v. Fabrication Enters.,68 N.Y.2d 397 (1986) ................................................................................................................4

Lai Chun Chan Jin v. Bd. of Estimate,115 Misc.2d 774 (Sup. Ct. N.Y. Cty. 1982),

rev'd on other grounds, 101 A.D.2d 97 (1st Dep't 1984) ....................................................9

Marcus Garvey Park Homes Hous. Dev. Fund Corp. v. Franco,12 Misc.3d 840 (City Civ. Ct. N.Y. Cty. 2006).......................................................................13

Mauldin v. New York City Transit Auth.,64 A.D.2d 114 (2d Dep't 1978)..................................................................................................9

Midtown S. Pres. & Dev. Cmty v. City of New York,130 A.D.2d 385 (1st Dep't 1987).............................................................................................18


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N.Y. Civ. Liberties Union v. New York,4 N.Y.3d 175 (2005) ..................................................................................................................9

Neighborhood In Nineties, Inc. v. City of New York Bd. of Standards & Appeals ,24 Misc. 3d 1239(A) (Sup. Ct. N.Y. Cty. 2009)......................................................................18

O'Reilly v. Grumet,308 N.Y. 351 (1955) ..................................................................................................................5

Orth-O-Vision, Inc. v. City of New York,101 Misc.2d 987 (Sup. Ct. N.Y. Cty. 1979) ........................................................................5, 20

Policemen's Benevolent Assoc. of Westchester County, Inc. v.

Board of Trustees of Village of Croton-on-Hudson,21 A.D.2d 693 (2d Dep't 1964)............................................................................................5

Spring-Gar Cmty. Civic Ass'n, Inc. v. Homes for the Homeless, Inc. ,135 Misc.2d 689 (Sup. Ct. Queens Cty. 1987) ........................................................................22

Stop BHOD v. City of New York,22 Misc. 3d 1136(A) (Sup. Ct. Kings Cty. 2009)............................................................passim

Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead,69 N.Y.2d 406 (1987) ........................................................................................................18, 19

W. 97th-W. 98th Streets Block Ass'n v. Volunteers of Am. of Greater New York,

153 Misc.2d 321 (Sup. Ct. N.Y. Cty. 1991) ............................................................................23

W. 97th-W. 98th Sts. Block Ass'n v. Vols. of Am. of Greater N.Y.,190 A.D.2d 303 (1st Dep't 1993).............................................................................................18

Wallabout Cmty. Ass'n v. City of New York,5 Misc. 3d 1010(A) (Sup. Ct. N.Y. Cty. 2004)........................................................................18

Wyndham Co. v. Wyndham Hotel Co.,236 A.D.2d 220 (1st Dep't 1997)...............................................................................................4

STATUTES

Administrative Code 21-308(1)(a)-(c)........................................................................................13

Administrative Code 21-308(1)(d) .............................................................................................13

Administrative Code 21-312(b) ....................................................................................................7

Administrative Code 21-315(a)(6)................................................................................................8


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Administrative Code 21-315(b) ..........................................................................................2, 8, 10

Charter 197-c(a)(5) .....................................................................................................................14

Charter 197-c(a)(8) ...........................................................................................................3, 10, 13

Charter 197-c(a)(11) .........................................................................................................3, 10, 13

Charter 612(a)(1) ........................................................................................................................13

CPLR 7803(1)...............................................................................................................................9

TREATISES

Siegel, N.Y. Prac. 570 (4th ed.) ....................................................................................................5

13 WEINSTEIN,KORN &MILLER,NEW YORK CIVIL PRACTICE 6301.05[2] (2d ed. 2005)............3


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

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

support of its request for preliminary injunctive relief 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").1

PRELIMINARY STATEMENT

Respondents are attempting to render the 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") afait accompli by

completing construction, allocating public funds and moving residential patients into the

Proposed Facility. This is precisely the kind of situation that compels preliminary injunctive

relief. Preserving the status quo is essential where, as here, the ultimate relief -- community

participation and adherence to the legally required process -- becomes meaningless after

construction is complete and operations have commenced.

CFC's Verified Petition, dated October 7, 2010 ("Verified Petition"), and Memorandum

of Law in Support of Preliminary Injunction and Verified Petition, dated October 7, 2010 ("CFC

Opening Brief") more than establish CFC's entitlement to a preliminary injunction not only

barring further construction, but also prohibiting the expenditure of public funds and occupation

of the Proposed Facility. Respondents' opposition fails to dispute CFC's allegations and makes

misleading and irrelevant arguments that are devoid of merit.

1 As used herein, the "City" collectively refers to all City agency respondents.


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First, it is apparent that CFC is likely to succeed on the merits of its remaining, non-

stayed claims. The Proposed Facility's 328 beds violates 21-312 of the Administrative Code of

the City of New York ("Administrative Code"). Respondents make no attempt to refute CFC's

comprehensive application of the statute's terms and legislative history. Further, Respondents'

attempt to artificially divide the various programs within the Proposed Facility in an effort to

twist the scope of the regulation is unavailing and ignores Respondents' repeated, public

statements that the purpose of the Proposed Facility is to create an "integrated," "vertical

campus" where all residents will share the benefits of the same BRC staff, programmatic space

and program services.

Second, realizing the infirmity of their position, Respondents suddenly claim they are

exempt from 21-312. Respondents claim that they can exceed the 200-bed limit by virtue of

the exception in 21-315, which permits two, 400-bed shelters to replace certain older City

homeless shelters. Thus, the City concedes that the Proposed Facility is in fact one shelter that

violates the Administrative Code bed limit. Of course, there is no evidence to support this recent

development.

However, if Respondents persist with their claim that the Proposed Facility is replacing

Camp LaGuardia, a former 1,700-bed, City facility that closed in 2007, then, by invoking 21-

315, Respondents admit that the Uniform Land Use Review Procedure ("ULURP") is applicable

to the Proposed Facility. See Administrative Code 21-315(b).

Even without Respondents' admission, CFC is likely to establish that ULURP applies.

The express terms of the DHS-BRC contract for the shelter ("DHS-BRC Contract") demonstrates

that DHS completely controls the shelter. Under the DHS-BRC Contract, DHS will pay all rent

and rental increases for the entire building, DHS has exclusive referral rights, BRC must accept


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all DHS-referred homeless residents, BRC cannot terminate the contract and DHS has approval

over all changes to the infrastructure or programs. The law is clear that such provisions create a

lease with the City, and therefore render the Proposed Facility subject to ULURP under New

York City Charter ("Charter") 197-c(a)(11).

The Proposed Facility is also subject to ULURP under 197-c(a)(8) because its creation

is part of the City's plan to house the homeless. Indeed, DHS Deputy Commissioner George

Nashak admits as much in his affidavit.

CFC is also likely to succeed on the merits of its contract registration, Fair Share and

environmental review claims. While the City now alleges that all these reviews are underway

and argues that CFC's claims are, therefore, moot and/or unripe, the City conveniently stops

short of committing to actually complete any of these reviews or actually register the DHS-BRC

Contract before the Proposed Facility opens. Tellingly, the City's timetable for completing the

land use reviews and registering the contract -- in the event either is actually done -- perfectly

aligns with BRC's publicly stated plans to open the Proposed Facility in March or April. Since

CFC did not merely seek to enjoin construction, but also occupancy and operations until all

required reviews had been completed, these issues are properly before the Court.

In an effort to distract the Court from the overwhelming factual and legal basis favoring

CFC's preliminary injunction request, Respondents disingenuously raise standing. However, as

demonstrated below, CFC clearly has standing. Respondents' standing argument is predicated

upon a single, misconstrued irrelevant case.

Respondents' contentions regarding the lack of irreparable harm and the balance of the

equities are no more persuasive. First, CFC will be irreparably harmed without a preliminary

injunction. The City's failure to abide by the regulatory regime that requires community input


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early in the land use process constitutes irreparable harm. That harm stems not from the status or

the type of construction, but rather from the denial of the community input itself. After-the-fact

reviews do not meet the letter or spirit of the law and deprive the impacted community of their

voice.

Second, the balance of the equities tips in favor of CFC. Respondents' failure to conduct

these reviews before construction began was a decision of their own accord. Their claim of

financial inequity therefore rings hollow. In addition, while CFC does not deny the importance

of homeless housing, the delay in opening the Proposed Facility cannot outweigh the need to

comply with the law.

STATEMENT OF FACTS

For a full recitation of the relevant facts, CFC respectfully refers the Court to the

Statement of Facts set forth in the Verified Petition, which is incorporated by reference herein. 2

ARGUMENT

I. Failure to Comply with Legally Mandated Processes CompelsEntry of a Preliminary Injunction to Preserve the Status Quo

Provisional relief is essential and properly awarded to maintain the status quo pending

litigation. See Wyndham Co. v. Wyndham Hotel Co., 236 A.D.2d 220, 221 (1st Dep't 1997)

(citingJ.A. Preston Corp. v. Fabrication Enters., Inc., 68 N.Y.2d 397, 405 (1986)). Here, as

Respondents are racing to complete construction of the Proposed Facility and commence

operations, thereby inextricably altering the status quo, injunctive relief is necessary.

2 For the convenience of the Court, CFC will provide specific citations to the VerifiedPetition where applicable.


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Respondents are attempting to render the Proposed Facility afait accompli. This is

precisely the injustice that preliminary injunctive relief is designed to prevent. Preserving the

status quo is essential where, as here, the ultimate relief -- community participation and

adherence to the legally required process -- becomes meaningless after construction is complete

and operations have commenced.3

Courts have noted that "[w]here the community's role is limited to recommendation, it is

essential that it be empowered to make its recommendations at the very beginning of the land use

review process before an action is implemented." Connor v. Cuomo, 161 Misc.2d 889, 897 (Sup.

Ct. Kings Cty. 1994) (granting preliminary injunction based on City's failure to perform ULURP

review). Courts have further recognized that

Government officials must conduct legally mandated reviews andsolicit community input as an integral part of the decision-makingprocess in the land use context. These legally mandatedobligations are each designed to protect the community and toallow them input and participation on important land use decisionsby the City.

Stop BHOD v. City of New York, 22 Misc. 3d 1136(A), 2009 WL 692080, at *13 (Sup. Ct. Kings

Cty. 2009). Accordingly, "it would be an effective end-run around these salutory safeguards

mandating community participation if [action] were permitted to be implemented without

3 The City's contention that there is some sort ofper se proscription on injunctive relief inArticle 78 proceedings is simply wrong. See City Opp. Br. at 11. "[I]t is reasonably clear todaythat even outright injunctive relief, if appropriate, is available in an Article 78 proceeding."Siegel, N.Y. Prac. 570 (4th ed.). One need only look at the countless Article 78 proceedings inwhich injunctive relief has been issued to realize the error in the City's position. See, e.g.,O'Reilly v. Grumet, 308 N.Y. 351, 358 (1955) (explaining that there is no wholesale prohibitionon obtaining injunctive relief in an Article 78 proceeding); Policemen's Benevolent Ass'n ofWestchester County, Inc. v. Bd. of Trs. of Vill. of Croton-on-Hudson , 21 A.D.2d 693, 694-95 (2dDep't 1964) ("Moreover, injunctive relief such as that sought in the petition at bar is obtainable inan article 78 proceeding.") (citing cases); Stop BHOD v. City of New York, 22 Misc. 3d 1136(A),2009 WL 692080, at *13 (Sup. Ct. Kings Cty. 2009); Cmty. Bd. 3 v. New York, 101 Misc.2d 189(Sup. Ct. Queens Cty. 1979).


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employing the procedure embodied in these charter amendments for community involvement."

Orth-O-Vision, Inc. v. City of New York, 101 Misc.2d 987,999 (Sup. Ct. N.Y. Cty. 1979)

(granting preliminary injunction based on City's failure to perform mandatory ULURP review).

Thus, to ensure proper procedures are followed and the community is heard, construction

must be halted, the occupancy and use of the Proposed Facility delayed and distribution of public

funds restricted until all legally mandated reviews are complete. See Verified Petition, 14-18,

266, 296, 330 & Prayer for Relief. Such relief is compelled by the relevant case law and should

be granted here. See 9th & 10th St. L.L.C. v. Bd. of Standards & Appeals, 10 N.Y.3d 264, 270

(2008) ("It would create needless problems if [an applicant] built a . . . building, only to find that

it could not use it in a legally-permitted way. The City would then face a choice between

waiving the legal restrictions and requiring the building to remain vacant or be torn down.")

(emphasis added); see also 9th & 10th St. L.L.C. v. Bd. of Standards & Appeals, No. 116091/05,

2006 WL 2000128, at *5 (Sup. Ct. N.Y. Cty. July 18, 2006), rev'd on other grounds, 10 N.Y.3d

264 (2008) ("Once erected, the building cannot be unbuilt (without great expense), and its impact

on the neighborhood cannot be undone."); Davis v. Dinkins, 154 Misc.2d 518, 524-25 (Sup. Ct.

Queens Cty. 1992) (relying upon equitable considerations in denying request for preliminary

injunction that would otherwise require closure of operational homeless housing), rev'd on other

grounds, 206 A.D.2d 365 (2d Dep't 1994).

II. CFC Has Demonstrated a Likelihood of Success on the MeritsTo obtain a preliminary injunction, CFC must "show a reasonable probability of success."

Dennis v. Buffalo Fine Arts Acad., No. 2007-2220, 2007 WL 840996, at *2 (Sup. Ct. Erie Cty.

Mar. 21, 2007). CFC need not show conclusively that it will prevail. See 13 WEINSTEIN,KORN

&MILLER,NEW YORK CIVIL PRACTICE 6301.05[2] (2d ed. 2005). As demonstrated in the


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Verified Petition and CFC Opening Brief, and further demonstrated below, CFC is likely to

succeed on the merits of its claims.

A. The Proposed Facility Violates the Administrative CodeRespondents admit that the Proposed Facility will shelter in excess of 200 residents

through a combination of programs all run by the same provider in the same building -- an

"integrated service center" within a "vertical campus." Accordingly, the Proposed Facility

violates the 200-bed limit imposed by Administrative Code 21-312(b).4

Respondents' contention that only the 200-bed portion of the Proposed Facility is a

shelter is misleading and wholly unsupported. Further, Respondents make no effort to address

the definition of "shelter," which encompasses not only the 200-bed shelter, but also the 36

detoxification beds and 96 Reception Center beds. See Verified Petition, 257-58; see alsoid.,

204-14. DHS Deputy Commissioner Nashak's claim that the 96-bed Reception Center, which

will provide "short-term housing" for the homeless is "not in fact shelter" is absurd.5 Affidavit of

George Nashak in Opposition to Petitioner's Request for a Preliminary Injunction, dated January

24, 2011 ("Nashak Aff."), 23.

4 Contrary to Respondents' contention that this claim is stayed pending resolution of theBSA appeal, CFC alleged that both New York City Department of Buildings and DHS failed toenforce Administrative Code 21-312 and requested relief enjoining construction andoccupancy of the Proposed Facility until Respondents complied with all applicable laws. SeeVerified Petition, 13, 94.

5 Respondents' attempt to disclaim the relocation of the 96 Reception Center beds, seeCity Opp. Br. at 7, 20, is belied by (1) BRC's own representations to the Court, see ReplyAffidavit of Lawrence Rosenblatt in Support of Application by Order to Show Cause to StayProceedings, dated November 4, 2010, 3, 4; (2) Respondents' repeated public statements thatthose beds will be relocated, see Verified Petition, 35, 174; and (3) by BRC's own oppositionbrief, see BRC Opp. Br. at 15 n.8.


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Similarly, Respondents' repeated attempt to cast CFC's case as involving only the DHS-

contracted 200-bed shelter, rather than the full Proposed Facility, mischaracterizes the matter

before the Court and reveals the weakness in their arguments. The Proposed Facility is

predicated upon the compatibility of its programs and ability to offer all residents, regardless of

program, social services housed within the same facility, which Respondents freely admit. See

Nashak Aff., 21 ("DHS has reached an understanding with BRC that [the other programs in the

Proposed Facility] will also be available to users of the [200-bed shelter] . . . ."). Their claim that

each program involves a separate contract ignores the fact that these unified programs will share

not only the same BRC staff, but also programmatic space, including a common cafeteria, exam

rooms, nursing stations, offices, outdoor rooftop space and entryway. See Verified Petition,

71-77, 259. Residents will be required to participate in the programs provided, regardless of

bed location. See id.

Moreover, the entire basis of Respondents' argument fails to address the legislative

history of Administrative Code 21-312. That legislative history illustrates the purpose behind

the law: to limit the census of any single building being used to house any combination of adult

care facilities to no more than 200 beds. See id., 260-63.

Respondents' case is further undermined by its eleventh-hour claim that it can exceed the

shelter size limitation under 21-315 because the Proposed Facility replaces Camp LaGuardia.

Respondents claim this exception in the alternative because they recognize that they are in

violation of the law. Notably, however, by claiming that the Proposed Facility qualifies under

the exception to 21-312 contained in 21-315(a)(6), Respondents concede that the Proposed

Facility is a City facility subject to ULURP pursuant to the terms of 21-315(b). Section 21-

315(b) states: "Each new shelter which replaces a shelter listed in subdivision a of this section


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shall comply with applicable statutes, laws, rules and regulations, including, but not limited to

[ULURP]." (emphasis added). Respondents' argument demonstrates that they have and continue

to try to avoid legal review.6

Consequently, CFC has firmly established a likelihood of success on the merits of its

claim that the Proposed Facility violates Administrative Code 21-312's size limit.

B. The Proposed Facility Is a City Facility Subject to ULURP7CFC has established and Respondents, as indicated above, have conceded that the

Proposed Facility is subject to ULURP review. As an initial matter, application of ULURP must

be "'liberally construed'" in order to give effect to the statute's purpose and intent in controlling

crucial land use decisions and ensuring that the local communities are involved in land use

decisions that directly impact their homes and businesses. Council of City of N.Y. v. Giuliani,

172 Misc.2d 893, 901 (Sup. Ct. Queens Cty. 1997) (quotingMauldin v. New York City Transit

Auth., 64 A.D.2d 114, 117 (2d Dep't 1978));Lai Chun Chan Jin v. Bd. of Estimate, 115 Misc.2d

774, 777 (Sup. Ct. N.Y. Cty. 1982), rev'd on other grounds, 92 A.D.2d 218 (1st Dep't 1983);

Verified Petition, 299-301, 314.

6 Respondents' invocation of the 21-315 exception is contrary to Respondent DHSCommissioner Seth Diamond's statement to New York City Council Speaker Christine C. Quinnthat DHS would not use the Camp LaGuardia exception. See Affirmation of Daniel S. Connollyin Further Support of Preliminary Injunction, dated Feb. 1, 2011 ("Connolly Reply Aff."), 3.

7To the extent that Respondents contend that CFC's claim compelling the City to conduct

a ULURP review is unripe, CFC may seek to compel an agency to take action when the agencyhas "failed to perform a duty enjoined upon it by law." CPLR 7803(1); N.Y. Civ. LibertiesUnion v. New York, 4 N.Y.3d 175, 184 (2005). The City has unequivocally exclaimed that"DHS will not submit a ULURP application for the proposed Shelter." Nashak Aff., 32. TheCity has similarly represented that no other City agency will conduct a ULURP review. See CityOpp. Br. at 16.


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As described above, by alternatively pleading that the Proposed Facility is exempt from

the 200-bed shelter limit imposed by Administrative Code 21-312 because it is replacing Camp

LaGuardia, Respondents have conceded, as a matter of law, that the Proposed Facility qualifies

as a City facility subject to ULURP. See Administrative Code 21-315(b). In addition, as

described at length in CFC's Verified Petition and CFC Opening Brief, (1) the DHS-BRC

Contract, (2) the terms of BRC's lease, including the provision permitting assignment to the City,

and (3) the use of City funds from multiple City agencies, including the New York City

Department of Health and Mental Hygiene ("DOH"), the New York City Office of Management

& Budget ("OMB") and DHS, to recoup construction costs and finance installation of essential

medical and shelter equipment undeniably renders the project a City facility subject to ULURP.

See Verified Petition, 297-304, 307-19; CFC Opening Brief at 10. The statements of DHS

Deputy Commissioner George Nashak and documents provided in opposition to CFC's ULURP

claim only further establish CFC's likelihood of success on the merits on its ULURP claim.

1. The DHS-BRC Contract Illustrates that DHS's Complete ControlOver the Shelter Establishes a Lease Subject to 197-c(a)(11)

Charter 197-c(a)(11) requires ULURP review for "[a]cquisition by the city of real

property . . . including . . . by . . . lease." An agreement constitutes a "lease" where it grants "the

exclusive right to use and occupy that land . . . rather than a mere temporary privilege." Ferrer

v. Dinkins, 218 A.D.2d 89, 93 (1st Dep't 1996). In determining whether the City has entered into

a "lease," thereby subjecting it to ULURP review under 197-c(a)(11), "the prevailing issue is

whether or not the City's interests will so predominate the use of the land, to 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." Id. at 94.


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The express terms of the DHS-BRC Contract leave no doubt that DHS completely

controls the 200-bed component in the "vertically integrated" Proposed Shelter. Indeed, the

contract expressly proclaims the City's predominate use of the land: "[BRC] shall work with

[DHS] to ensure that the Shelter is operating as part of the City's homeless services system" and

"[BRC] shall operate the Shelter in accordance with . . . [DHS] policies and procedures."

Nashak Aff., Ex. C, art. 2.A.2., 2.A.3 (emphasis added); see id., art. 2.X ("[T]he Court-appointed

monitoring agency for the City's shelters . . . is entitled access to the Shelter and Shelter clients,

with the client's consent."). Moreover, the fact that "[DHS] shall be the only referral system and

[BRC] shall accept all homeless adults referred to it by [DHS]," id., art. 2.C.1 (emphasis added),

in addition to the fact that DHS requires BRC to "operate the Shelter at an average of 95% of the

Shelter's full capacity" establishes the City's exclusive and predominate use of the Proposed

Facility, id., art. 2.F.1; see Affirmation of Daniel S. Connolly in Support of Preliminary

Injunction and Verified Petition, dated October 7, 2010 ("Connolly Aff."), Exs. 62 at 2, 3-4 & 63

at 4, 5. In exchange, DHS will pay BRC on a monthly basis not to exceed $7.2 million annually

and $76.1 million over the term of operations. See Nashak Aff., Ex. C, art. 10.B, D.

Nevertheless, "[DHS] acknowledges that [BRC]'s lease for the Shelter provides for annual

increases in rent payments over the term of the lease [and DHS] represents that the yearly

budgets for the operation of the Shelter shall include sufficient monies to pay for the annual lease

payments and the yearly increases in rent."8Id., art. 10.E (emphasis added)

Crucially, the DHS-BRC Contract term runs from September 1, 2010 to June 30, 2021,

may be extended at DHS's unilateral option for two, five-year terms and may be terminated only

8 Thus, DHS appears to be funding BRC's lease for the entire Proposed Facility, not justthe 200-bed component.


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by DHS; BRC has no termination rights. See id., art. 9.A, 9.B; id., Ex. C, app. A, art. 10.

Additionally, DHS may change the purposes of the Shelter at any time to comport with "the

needs of the City." Id., art. 13 (emphasis added).

Numerous other provisions make even clearer that DHS maintains operational and

decision-making control and review over the entire shelter. For example, BRC must "consult

with, and receive written approval from, [DHS] before initiating any structural changes,

including renovations and room reconfigurations, divisions or change in use." Id., art. 5.A.1

(emphasis added). Similarly, Article 2 sets forth, in detail, the services that BRC must provide

the homeless residents and DHS retains audit and approval authority over the manner in which

BRC provides those services. Id., art. 2.H-R, Y. Indeed, BRC may not make "[c]hanges in any

major program component; or . . . [c]hanges in the level of paid or unpaid staff" without DHS's

prior written approval. Id., art. 2.V.1. DHS must even approve not only the shelter directors, but

also the shelter's maintenance superintendant. See id., arts. 7.F, 5.A.1.d.

A thorough examination of the DHS-BRC Contract provides more evidence of the City's

complete domination of the operation and terms of the shelter. When viewed in conjunction with

the arguments made and facts alleged in the Verified Petition, see 313-19, there can be no

doubt that DHS's complete control of the Proposed Facility "so predominate[s] 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.

Respondents' cases are wholly inapposite. As an initial matter, a number of those cases

concerned only oral agreements with existing hotels, as opposed to the written agreement for a

new facility with a social service provider at issue here. See Ferrer, 218 A.D.2d at 90;Davis,

206 A.D.2d at 366. More importantly, none of the cases cited by Respondents involved leases


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that, like here, firmly set the lease term and payment terms, restricted alteration of the facility,

prevented change of the services or denied the social service provider termination rights. And

none contained a provision establishing that the shelter was for the exclusive use of the City for

purposes of "the City's homeless services system." Nashak Aff., Ex. C, art. 2.A.3.

It can fairly be said, then, that BRC is a "state actor" with regards to the Proposed Facility

acting as an agent of the City. See generally Brown v. City of New York, No. 09 Civ. 6834, 2010

WL 3565171, at *3 (S.D.N.Y. Mar. 2, 2010);Marcus Garvey Park Homes Hous. Dev. Fund

Corp. v. Franco, 12 Misc.3d 840, 842-44 (City Civ. Ct. N.Y. Cty. 2006) (where entities are

subject to stringent City regulations, they act not as private actors but as agents of the City);

Buffalo News, Inc. v. Buffalo Enters. Dev. Corp., 84 N.Y.2d 488 (1994);Holden v. Bd. of Trs. of

Cornell Univ., 80 A.D.2d 378 (3d Dep't 1981).

Consequently, CFC has established a likelihood of success on the merits of its claim that

the Proposed Facility is subject to ULURP review under Charter 197-c(a)(11).

2. The Proposed Facility Is Part of a Homeless Housing Planand Therefore Subject to 197-c(a)(8)

Housing plans and projects conducted pursuant to city and state law require ULURP

review. See Charter 197-c(a)(8); Verified Petition, 307-12. All actions taken and money

spent by DHS in combating homelessness are pursuant to statutorily-required plans, which detail

the City's homeless housing needs, projected budgets and "projected number of facilities to be

constructed or rehabilitated to accommodate homeless individuals and families." Administrative

Code 21-308(1) (d); see id., 21-308(1)(a)-(c); Charter 612(a)(1).

Deputy Commissioner Nashak states that the DHS-BRC Contract is "part of [DHS's] plan

to meet projected needs." Nashak Aff., 15; see id., 13 ("[W]e are procuring significant

capacity to ensure we meet the projected demand."). Yet, despite explaining the "legal and


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morale mandate" to house the homeless, the Mayor's focus on the issue and the ever increasing

demand for shelter services that led to DHS "adjust[ing] its capacity projections upward to . . .

explore options for expanding capacity," id., 9-14; City Opp. Br. at 5-7, at the same time the

City denies that the Proposed Facility is part of any homeless housing plan. The City would

have the Court -- and the taxpaying public -- believe that the City is haphazardly proposing

budgets and spending tens, if not hundreds, of millions of dollars on homeless housing without

any plan.

As recent cases and news articles make clear, the Proposed Facility is not just another

shelter, but part of a fully planned and budgeted expansion of the City shelter system.

9

See

Leslie Albrecht, City Officials Skip Out on UWS Homeless Shelter, DNAINFO.COM, dated

January 26, 2011, Mosi Secret, Move to Double Capacity of a Shelter Raises Fears, THE NEW

YORK TIMES, dated Jan. 19, 2011, and Patrick Rocchio, Highbridge protests 200-bed men's

homeless shelter, YOURNABE.COM, dated Jan. 12., 2011, attached as Exhibits 1, 2, and 3,

respectively to the Connolly Reply Aff. The Proposed Facility is the result of an RFP for shelter

services subject to a standard form contract that incorporates the Proposed Facility into "the

City's homeless services system." Nashak Aff., Ex. C, art. 2.A.3; see Connolly Aff., Exs. 52, 62

at 2, 3-4 & 63 at 4, 5.

Again, the City's only response is to side-step CFC's allegations, here creating a straw

man, by arguing that the Proposed Facility is not a ULURP "site selection" under Charter 197-

c(a)(5). Of course, CFC never argued that 197-c(a)(5) applied. The City makes disturbing and

misleading statements in support of this red herring.

9 It is not surprising that, like here, the City is accused of circumventing all legalprocesses in constructing these shelters.


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For example, the City claims that "the City is not expending any capital funds in

conjunction with the Shelter." City Opp. Br. at 18. The City cites a paragraph of Nashak's

affidavit that claims DHS is not using any "capital" funds. However, that factual proposition is

unsupported -- and indeed is contradicted -- by the documentary evidence. First, nearly the

entire Proposed Facility cost -- over 80 percent -- is absorbed by the City, including DOH, OMB

and DHS. See Connolly Aff., 13.

Second, Nashak's citation to pages 15-16 of the DHS-BRC Contract only speaks to

BRC's responsibility for maintenance and replacement of furnishings and equipment. Of course,

BRC applied to OMB -- another City agency -- for $1.4 million in capital funding to purchase

that furniture and equipment. See Connolly Aff., Ex. 18 at B1-B-4; see id., 13. As part of that

purchase, and as codified in the DHS-BRC Contract, the City retains ownership and a lien on the

furniture and equipment. See id., Exs. 18 at III-1; see Nashak Aff., Ex C, app. B, art. 2; Verified

Petition, 137, 144-46.

Accordingly, it is clear that BRC's Proposed Facility is a DHS-controlled, City facility

created in response to its legally required housing plan for the homeless.

C. CFC's Contract Registration, Fair Share and SEQRA/CEQRClaims Are Ripe and Likely to Succeed

While Respondents concede that registration of the DHS-BRC Contract with the Office

of the Comptroller and the SEQRA/CEQR and Fair Share reviews are required and are allegedly

underway, Respondents' never state that these reviews will be completed, and never commit to

completing them, before the Proposed Facility's slated Spring 2011 opening. Respondents'

assertions, then, that CFC's claims are not ripe or are moot fall flat. Moreover, these omissions

are stark and significant. Respondents' unwillingness to represent that it will comply with laws


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that it admits are applicable provides the very justification for preliminary injunctive relief

barring occupancy or use of the Proposed Facility.

Further, the timing associated with Respondents' compliance with these laws warrants

granting injunctive relief. The City appears only to have commenced these reviews after CFC

initiated the immediate proceeding. At the November 5, 2010 hearing the City flip-flopped

between indicating it had started the reviews and that it would only undertake them after the

DHS-BRC Contract was registered. See November 5, 2010 Hr'g Tr. at 50-53, attached to

Connolly Reply Aff. as Exhibit 4. Now, Respondents claim that all necessary reviews will be

completed within four to six weeks. See BRC Opp. Br. at 9; Nashak Aff., 6. Conveniently, the

City's timetable for completing the land use reviews and registering its eleven-year, $76 million

contract with BRC -- in the event either is actually done -- perfectly aligns with BRC's publicly

stated plans to open the Proposed Facility in March or April. See Winnie McCroy, Chelsea

Flatiron Coalition spars with City over BRC shelter, CHELSEA NOW, January 26, 2011, attached

to Connolly Reply Aff. as Exhibit 5. For its part, BRC is only willing to represent that the

Proposed Facility will open in "Spring 2011," and will neither provide a firm opening date nor

commit to delay the opening until the Article 78 proceeding or BSA appeal are complete.

These same uncertainties compelled the court in Stop BHOD v. City of New Yorkto reject

the City's ripeness arguments. 2009 WL 692080, at *6. There, as here, the evidence showed that

the City respondents had already decided to take the very action being contested, e.g.,opening

the facility. Id. at *5. The matter was nevertheless ripe because "petitioners [had] shown that

the point [had] been reached at which there must be any necessary compliance with the statutory

scheme." Id.; see alsoCity Council of Watervliet v. Town Bd. of Colonie, 3 N.Y.3d 508 (2004)

(concluding that SEQRA review was necessary even though city had only taken preliminary


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steps towards project); Granger Group v. Town of Taghkanic, 77 A.D.3d 1137, 1143 (3d Dep't

2010) (concluding that preliminary injunction was not premature because it was issued after

agency "granted site plan approval for the project").

Here, construction at the Proposed Facility is nearly complete and it appears that BRC

plans to open the Proposed Facility before registering the contract. Further, despite the City's

contention that the DHS-BRC Contract will not take legal effect until the Comptroller registers

the contract, the fact is that DHS has approved and signed the agreement.10

The situation where

compliance with the statutory scheme has not been reached but occupancy occurs is imminent.

Accordingly, a preliminary injunction is warranted here to require the City to complete

the process it alleges it has begun, and to do so on an appropriate timetable -- before construction

is completed and the Proposed Facility is occupied and operational.

D. CFC Has StandingIn a further attempt at obfuscation, Respondents attach an anemic claim that CFC lacks

standing.11

CFC has more than satisfied the standing requirements, and Respondents' attempt to

shoehorn this meritless allegation into their likelihood of success argument should be rejected.

10 Despite the City's assertion to the contrary, DHS, in its response to a Freedom ofInformation Law ("FOIL") appeal, represented to CFC that "[t]he contract was awarded onNovember 8, 2010." See Letter from DHS Deputy General Counsel Douglas C. James, datedNovember 18, 2010, attached to the Connolly Reply Aff. as Exhibit 8. Additionally, during atelephone conversation with Mr. James on December 1, 2010, regarding DHS's FOILproduction, Mr. James stated that the contract had been signed by DHS on November 8, 2010.

11 Respondents are well aware of CFC's standing. Indeed, BRC attaches CFC's detailedexplanation of its standing, which CFC was required to submit as part of the ongoing BSAappeal. See Affirmation of Randy M. Mastro in Support of Opposition to Petitioner's Motion fora Preliminary Injunction, dated January 25, 2011, Ex. F; see also Affidavit of Michael L. Tracy,dated December 21, 2010, attached to the Connolly Reply Aff. as Exhibit 6, which was


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The courts have repeatedly stated that "it is desirable that land use disputes be resolved

on their own merits rather than by preclusive, restrictive standing rules." Sun-Brite Car Wash,

Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 413 (1987); see also

Comm. to Pres. Brighton Beach & Manhattan Beach, Inc. v. Planning Comm'n of City of New

York, 259 A.D.2d 26, 33 (1st Dep't 1999) (quoting Sun-Brite). It is beyond cavil that community

groups like CFC have standing to pursue the land use claims asserted here. See, e.g., Comm. to

Pres. Brighton Beach, 259 A.D.2d at 31-33 (agreeing with community group in land use case

that it was "entitled to a presumption of standing based on their physical proximity to the"

challenged project); Comm. to Pres. Brighton Beach v. Council of City of N.Y., 214 A.D.2d 335,

336 (1st Dep't 1995) (concluding that standing existed to raise land use challenge where

community group "was formed specifically to preserve neighborhood character"); see alsoW.

97th-W. 98th Sts. Block Assoc. v. Vols. of Am. of Greater N.Y., 190 A.D.2d 303 (1st Dep't. 1993)

(action by block association);Midtown S. Pres. & Dev. Cmty v. City of New York, 130 A.D.2d

385 (1st Dep't 1987) (action by business and citizen group); Neighborhood In Nineties, Inc. v.

City of New York Bd. of Standards & Appeals, 24 Misc. 3d 1239(A) (Sup. Ct. N.Y. Cty. 2009)

(action by block association); Wallabout Cmty. Ass'n v. City of New York, 5 Misc. 3d 1010(A)

(Sup. Ct. N.Y. Cty. 2004) (action by community group).

It is also beyond question that CFC adequately alleged organizational standing. Under

the well developed law on standing, associations have standing to sue where (1) any one or more

of its individual members have standing, (2) the association is protecting an interest germane to

its purposes and (3) the association can appropriately act as representative without the need for

originally provided to the BSA in connection with CFC's response to the BSA Notice ofComment.


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the individual members to participate. See, e.g., Dental Soc'y of State v. Carey, 61 N.Y.2d 330,

333-34 (1984). As an association created for the purpose of challenging Respondents' actions

with respect to the Proposed Facility and whose membership consists of numerous individual

members who own property and reside adjacent to, within 400 feet of and in close proximity to

the Proposed Facility, CFC has standing to pursue the instant Article 78 proceeding.12

First, CFC stated that it "was formed . . . by a group of citizens who reside or work and

own property in the Chelsea and Flatiron neighborhoods" and that "CFC has over dozens of

members that reside in adjacent buildingsor live within close proximity" to the Proposed

Facility. Verified Petition, 19. CFC further states that it was "formed to represent the legal

interests of affected area business and property owners and residents." Id., 26. In addition,

contrary to Respondents' contention, CFC specifically identifies the ways in which its members

will be harmed -- in a manner different than the public at large -- by the Proposed Facility.13 See

id., 260, 264, 280, 281, 296, 297, 300, 311, 320, 327-30.

12 Respondents mischaracterize Save the Pine Bush, Inc.v. Common Council of Albany,13 N.Y.3d 297 (2009), to no avail. That case does not concern pleading requirements, butwhether, in the purely environmental harm context, "environmental harm can be alleged only bythose who own or inhabit property adjacent to, or across the street from, a project site." Id. at305. Accordingly, the case is factually and legally inapposite. Even so, the court in Save thePine Bush actually found that the plaintiffs there did have standing.

13 An allegation of close proximity alone gives rise to an inference of damage or injurythat enables a nearby owner to challenge a land use decision without proof of actual injury. See,e.g., Sun-Brite, 69 N.Y.2d at 414 ("[I]t is reasonable to assume that, when the use is changed, aperson with property located in the immediate vicinity of the subject property will be adverselyaffected in a way different from the community at large."); Comm. to Pres. Brighton Beach &Manhattan Beach, 214 A.D.2d at 336 (applying Sun-Brite to SEQRA and ULURP challenges), Davis v. Dinkins, 206 A.D.2d 365, 366 (2d Dept. 1994) (applying Sun-Brite to Fair Sharechallenge); Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 146 Misc.2d500, 505 (Sup. Ct. N.Y. Cty. 1989) ("As a threshold issue, the court holds that plaintiffs, asproperty owners immediately adjacent to the Church, have standing to seek judicial review of theCity's conduct without pleading or proving any special damages, because adverse effect or


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Second, CFC was formed specifically for the purpose of challenging Respondents' blatant

attempts to circumvent the established, legally mandated processes at issue in this proceeding.

Therefore, CFC is serving an interest not only germane to, but indeed the sine qua non of its

purpose. See, e.g., Comm. to Pres. Brighton Beach, 214 A.D.2d at 336.

Third, CFC more than satisfactorily represents the interests of its members. CFC's rapid

formation and retention of counsel within days of learning of the Proposed Facility development

further establishes its credentials as an appropriate association to represent its members' interests.

See, e.g., Douglaston Civic Ass'n v. Galvin, 36 N.Y.2d 1, 8 (1974).

Consequently, CFC has adequately alleged its members' standing and sufficiently pled its

organizational standing.

III. CFC Has Established That It Will Suffer Irreparable HarmCFC has sufficiently alleged irreparable harm to block both the construction as well as

the occupancy and use of the Proposed Facility. "Where, as here, a regulatory regime is

implemented to ensure community involvement in government decision-making or to protect the

public from potential harm, the government's failure to follow the law, in itself, constitutes

irreparable harm to the community." Stop BHOD, 2009 WL 692080, at 13 (citing Connor, 161

Misc.2d at 896). In Stop BHOD, the court granted the petitioner community group a preliminary

injunction against the funding and construction of a prison after concluding that the deprivation

"of the opportunity for input and to make recommendations" on the proposed prison "at the very

aggrievement can be inferred from their proximity to the Church."); see alsoCmty. Serv. Soc'y v.Cuomo, 167 A.D.2d 168, 170 (1st Dept. 1990) (rejecting contention that complaint was"insufficient for failure to allege that the conduct of lawsuits is included among the purposes forwhich [organizational plaintiffs] are chartered").


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beginning of the review process" "would thwart the very purposes of the legally mandated

reviews" and constitute irreparable harm. Id.; see Orth-O-Vision,101 Misc.2d at 999 (granting

preliminary injunction based on City's failure to perform mandatory ULURP review because "it

would be an effective end-run around these salutory safeguards mandating community

participation if [action] were permitted to be implemented without employing the procedure

embodied in these charter amendments for community involvement"); see also Cmty. Bd. 3, 101

Misc.2d at 191 ("This court, having determined that the statutory requirements for the

implementation of this particular facility located at 33-32 89th Street, Jackson Heights, Queens,

were not followed as set forth in the applicable statute, must necessarily impose the stricture for

that noncompliance, to wit, issue a temporary injunction to halt any and all preparation of the

said site.").

The City's failure to abide by the regulatory regime that requires community input

constitutes irreparable harm that stems not from the status or the type of construction, but rather

from the denial of the community input itself. CFC's claim of irreparable harm is founded upon

BRC's continued construction and imminent occupancy in spite of the City's failure to conduct

the necessary reviews.

Clearly, after-the-fact reviews do not meet the letter or spirit of the law and deprive the

impacted community of their voice. See, e.g., Stop BHOD, 2009 WL 692080, at 13. CFC and

the community will be irreparably harmed by being forced to live with the effects of an illegal

facility that should never have been constructed and should never have been allowed to open.

Moreover, reviews after the status quo has been radically altered and the neighborhood

drastically impacted are meaningless. See 9th & 10th St., 10 N.Y.3d at 270 ("It would create

needless problems if [an applicant] built a . . . building, only to find that it could not use it in a


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legally-permitted way. The City would then face a choice between waiving the legal restrictions

and requiring the building to remain vacant or be torn down."); see also 9th & 10th St, 2006 WL

2000128, at *5 ("Once erected, the building cannot be unbuilt (without great expense), and its

impact on the neighborhood cannot be undone.").

While BRC argues that the Court's Decision and Order already rejected the possibility of

irreparable harm, that argument is plainly wrong. Indeed, the Court expressly stated that such

claims were not stayed and would be addressed at the preliminary injunction hearing. See

Decision and Order at 8. Respondents' attempts to distinguish Stop BHOD ring hollow and it is

of no moment that the City has claimed it is now conducting SEQR/CEQR and Fair Share

reviews. Where BRC continues construction on the Proposed Facility and intends to occupy the

Proposed Facility, likely before the reviews are complete, -- the harm to CFC has already been

done. The continuing violations must be enjoined. At the very least, Respondents must be

enjoined from occupying or operating the Proposed Facility.

Respondents' three key cases allegedly supporting their position are inapposite. None of

the plaintiffs in those cases contend, as CFC does here, that failure to abide by required land use

reviews constitutes irreparable harm. See Golden v. Steam Heat, Inc., 216 A.D.2d 440, 442 (2d

Dep't 1995) (alleging only that adult establishment may adversely impact commercial district);

Greentree, 146 Misc.2d at 512 (alleging only "speculative fears of crime, drugs and diminution

of property values"); Spring-Gar Cmty. Civic Ass'n, Inc. v. Homes for the Homeless, Inc. , 135

Misc.2d 689, 693 (Sup. Ct. Queens Cty. 1987) (alleging only inconvenience and restriction of

use and enjoyment of property and depreciation of property value). Respondents' additional

cited cases either provide no direction on the issues they purport to explain or are clearly

distinguishable. SeeDodgertown Homeowners Ass'n, Inc. v. City of New York, 235 A.D.2d 538


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(2d Dep't 1997) (providing no discussion on irreparable harm); Chatham Green, Inc. v.

Bloomberg 1 Misc.3d 434, 440-41 (Sup. Ct. N.Y. Cty. 2003) (deciding issue based on balance of

the equities).

Therefore, in the absence of a preliminary injunction, CFC will be irreparably harmed by

the denial of its right to participate in the legally mandated reviews at the earliest possible time,

and to have them completed prior to City action -- not after.

IV. The Balance of the Equities Favors CFCWhile CFC recognizes the increased need for homeless housing and the City's legal

obligation to provide such housing, that need does not outweigh the need to adhere to the law.

Certainly, BRC's suggestion that it may suffer financial detriment if it is required to halt

construction does not change the balance. BRC should not now be permitted to complain that a

court's directive to remedy their violation might cause it harm. SeegenerallyDoe v. Dinkins,

192 A.D.2d 270, 276 (1st Dep't 1993). If there is any harm, it was self-inflicted by acting

without proper review and approvals. See Letter from Daniel S. Connolly to BRC Executive

Director Lawrence ("Muzzy") Rosenblatt, dated July 8, 2010, attachedto Connolly Reply Aff. as

Exhibit 7.

Respondents' failure to conduct these reviews before construction began was a decision

of their own accord. Indeed, the City acknowledges that they are proceeding at their own risk.

See Nashak Aff., 29. The City's claimed inequity is therefore unpersuasive. In fact, at least

one court has determined that the balance of the equities tip in favor the community group since

denying them a voice in the planning process would leave the City "less likely to fully and fairly

evaluate the potential impact" of the project. SeeStop BHOD,2009 WL 692080, at *13. The

City's cited case law -- BRC cites no case law -- is irrelevant. It either does not address


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CFC - Reply Memo of Law in Further Support of PI

Documents

Transcript of CFC - Reply Memo of Law in Further Support of PI