[NYguy]

The plan still stands...


https://caselaw.findlaw.com/court/ny-supreme-court-appellate-division/116753950.html

Supreme Court, Appellate Division, First Department, New York.

]IN RE: AAG MANAGEMENT, INC., et al., Petitioners–Appellants, v. NEW YORK STATE URBAN DEVELOPMENT CORPORATION doing business as Empire State Development, Respondent–Respondent, New York State Public Authorities Control Board, Respondent, Vornado Realty Trust, Intervenor–Respondent. National Trust for Historic Preservation in the United States, The New York Landmarks Conservancy, The Preservations League of New York State, The Historic Districts Council and The Penn Community Defense Fund, Amici Curiae.


Decided: December 10, 2024

......Here, the GPP and accompanying detailed neighborhood conditions study analyzing each site and lot “spelled out” the facts supporting the determination (see Yonkers Community Dev. Agency, 37 N.Y.2d at 484, 373 N.Y.S.2d 112, 335 N.E.2d 327).  This included poorly located subway entrances, narrow sidewalks, inadequate plazas and streetscapes, a derelict passage between Penn Station and the Herald Square subway station, inconsistent zoning, underutilization of lots, and outmoded building stock, among other things.  

It is enough that ESD presented facts showing “the site was outmoded, underbuilt and insufficiently utilized” (Matter of Don't Destroy [Brooklyn], 59 A.D.3d at 325, 874 N.Y.S.2d 414;  see also Jo & Wo Realty Corp. v. City of New York, 157 A.D.2d 205, 218, 555 N.Y.S.2d 271 [1st Dept. 1990], affd on other grounds 76 N.Y.2d 962, 563 N.Y.S.2d 727, 565 N.E.2d 476 [1990]).  Contrary to petitioners’ contention, Supreme Court did not simply “rubber stamp” ESD's findings (see Yonkers Community Dev. Agency, 37 N.Y.2d at 485, 373 N.Y.S.2d 112, 335 N.E.2d 327).

As to the civic project finding, we reject petitioners’ contention that ESD failed to find “that adequate provision has been, or will be, made for the payment of the cost of acquisition, construction, operation, maintenance and upkeep of the project” (Uncons Laws § 6260[d][3]).  

The GPP specified that prior to the commencement of any development contemplated thereunder, ESD must enter into contracts with developers setting forth all material terms of the transaction including funding mechanisms, hold public hearings on notice allowing for public consideration of each contract, hold a vote by the ESD directors regarding the approval of each contract, apply to the Public Authorities Control Board (PACB) seeking approval of funding, and receive PACB approval based on a finding at that time that “there are commitments of funds sufficient to finance the acquisition and construction of such project” (Public Authorities Law § 51[3]).  This process ensures that the requisite funding will be available when needed.  

Contrary to petitioners’ contention, the plain language of the UDCA does not require ESD to produce cost and revenue estimates at the time of GPP adoption (see Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d 328, 335, 756 N.Y.S.2d 115, 786 N.E.2d 14 [2003]).  

As ESD is responsible for the administration of the UDCA, which tasks ESD with determining whether a project qualifies as a civic project, we uphold its rational interpretation here (see Matter of Johnson v. Joy, 48 N.Y.2d 689, 691, 422 N.Y.S.2d 56, 397 N.E.2d 746 [1979];  Matter of Barklee Realty Co. v. New York State Div. of Hous. & Community Renewal, 159 A.D.2d 416, 416, 553 N.Y.S.2d 112 [1st Dept. 1990], lv denied 76 N.Y.2d 709, 563 N.Y.S.2d 61, 564 N.E.2d 671 [1990]).

We have considered petitioners’ remaining arguments and find them unavailing.