FILED: NEW YORK COUNTY CLERK 04/01/ :07 PM INDEX NO /2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/01/2019

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1 STATE OF NEW YORK SUPREME COURT : COUNTY OF NEW YORK In the Matter of the Application of the SIERRA CLUB; FRIENDS OF FORT GREENE PARK; MICHAEL GRUEN, As President of the CITY CLUB OF NEW YORK; MARYLOU HOUSTON; SUDIP MUKHERJEE; JUDITH SCHRAEMLI; VERICE WEATHERSPOON; HUI-LING HSU, Individually and as President of FRIENDS OF FORT GREENE PARK; KELLY SCHAEFFER; ENID BRAUN; and LUCY KOTEEN, AMENDED VERIFIED PETITION Petitioners, Index No /2019 For a Judgment Pursuant to CPLR Article 78 of the New York Civil Practice Laws and Rules vs. THE DEPARTMENT OF PARKS AND RECREATION OF THE CITY OF NEW YORK; THE CITY OF NEW YORK, Respondents. Petitioners, by their attorneys, LIPPES & LIPPES, Richard J. Lippes, of counsel, respectfully alleges as follows: I. INTRODUCTION 1. This proceeding is brought by the Petitioners to protect and preserve the historic landscape of Fort Greene Park in Brooklyn, New York. The City of New York Department of Parks and Recreation intends to significantly change the landscape of the Park, including taking down 58 mature trees, changing the entrance way to the Park, adding various impervious surfaces to it, and otherwise destroy the historic landscaping developed by America's most famous landscape architects. Furthermore, the New York City Parks and Recreation Department 1 of 14

2 does not believe they have any obligations under the New York State Environmental Quality Review Act, et. seq. of the New York State Environmental Conservation Law (hereinafter cited as "SEQRA"), and has improperly designated this project as a Type II exempt action, and therefore has not done any environmental assessment or prepared an environmental impact statement, despite the significant adverse environmental consequences that will ensue if the Parks Department's landscape plan goes forward. II. PARTIES 2. Petitioner Sierra Club is a national grassroots not-for-profit conservation organization formed in 1892, under the laws of the State of California. Its purposes include practicing and promoting the responsible use of the earth's ecosystems and resources, and protecting and restoring the quality of the natural and human environment, including dedicated parks of the United States. Indeed, the protection of parks is a key aspect of Sierra Club's work. The Sierra Club has approximately 800,000 members nationwide, with approximately 54,000 members in New York State and approximately 14,000 members in New York City, including members who use and enjoy Fort Greene Park and whose conservation, aesthetic, and recreational interests, are injured by the environmental damage that will be caused to Fort Greene Park (hereinafter cited as "the Park"). The Sierra Club and its members further suffer informational injury and an injury to its public participation rights as a result of the New York Department of Parks and Recreation decision to ignore SEQRA and not do an Environmental Impact Statement. 3. Petitioner Friends of Fort Greene Park is an unincorporated association, which brings this Petition by and through its President, Hui-Ling Hsu. Its membership is made up of individuals who regularly use the Park, and work to preserve its historic landscape. 2 2 of 14

3 4. Petitioner The City Club of New York is a not-for-profit corporation, incorporated under the laws of the State of New York. Its mission is the betterment of the City of New York, and its members use and enjoy the Park and its historic landscape. It seeks to preserve the Park's historic landscape, which it believes will be destroyed if the plans for the Park go forward. 5. Petitioner Marylou Houston resides at 130 Saint Edwards Street, Apt. 9A, Brooklyn, New York. As such, she lives across from the Park and regularly uses and enjoys both attending the Park and viewing it from her apartment building. 6. Petitioner Sudip Mukherjee resides at 130 Saint Edwards Street, Apt. 7D, Brooklyn, New York. As such, he lives across from the Park and regularly uses and enjoys both attending the Park and viewing it from his apartment building. 7. Petitioner Judith Schraemli resides at 135 Ashland Avenue, Apt. 8D, Brooklyn, New York. As such, she lives across from the Park and regularly uses and enjoys both attending the Park and viewing it from her apartment building. 8. Petitioner Verice Weatherspoon resides at 130 Saint Edwards Street, Apt. 8C, Brooklyn, New York. As such, she lives across from the Park and regularly uses and enjoys both attending the Park and viewing it from her apartment building. 9. Petitioner Hui-Ling Hsu is President of the Friends of Fort Greene Park, and resides at 122 Ashland Place, Apt. 2N, Brooklyn, New York. She has a long standing history of working to preserve the historic landscape of the Park, and lives nearby the Park. 10. Petitioner Kelly Schaeffer resides at 191 Willoughby Street, Apt. 12K, Brooklyn, New York, and is a regular user of the Park and resides nearby it. 11. Petitioner Enid Braun resides at 116 Adelphi Street, Brooklyn, New York, and is a regular user of the Park and lives nearby it. 3 3 of 14

4 12. Petitioner Lucy Koteen lives two blocks from the Park. She is a regular user of the Park and enjoys the historic landscape of the Park. She has spent long hours attempting to convince the Parks Department to preserve the historic landscape, and to oppose the current Park plans to significantly and adversely change the landscape of the Park. 13. Respondent New York City Department of Parks and Recreation (hereinafter cited as "NYC") is a department of the City of New York, which is located at The Arsenal, 830 Fifth Avenue, New York, New York and if SEQRA was properly complied with, would have been the lead agency to undertake SEQRA compliance responsibilities, either by its commissioner or through the Office of the Deputy Mayor. As such, they are responsible for assuring that the procedural and substantive mandate of SEQRA is carried out to the fullest practical extent. Nevertheless, they improperly designated this project an exempt Type II, and therefore they determined that SEQRA did not apply to this project and ignored their SEQRA responsibilities. III. FACTS 14. Fort Greene Park, one of New York City's oldest and most beautiful parks, was designed in 1867 by the farther of American Landscape Architecture, Frederick Law Olmsted and his partner Calvert Vaux. The Park's major character is typical of Olmsted and Vaux. It has winding paths, it invites the visitor to walk around them and experience a new view at every turn- a vista, a patch of flowers, a trellis. Surprise is the dominate feature. 15. As well as the historic Olmsted and Vaux landscape design, along a hillside, a small stately entry building leads into the tomb of the remains of some 11,000 patriots captured by British soldiers in the Revolutionary War, and imprisoned on ships until they died. At the turn of the 20th century, it was decided that the prison ship martyrs deserved a more significant 4 4 of 14

5 memorial. The nationally noted landscape architects of McKim, Mead and White, were chosen to supply this new memorial. They made the hillside containing the tomb into a grand staircase, 100 feet wide, leading from the base, past the tomb entrance, to the top of the hill at the middle of the Park. From the base, they projected a broad promenade. 16. The next improvement to the Park occurred when a segment of the promenade paying was replaced by AE Bye's beveled mounds of lawn for children's play. Historian Michael Gotkin provided testimony to the Landmarks Commission on November 21, 2017 indicating that: "AE Bye's landscape mounds were resonant of burial of mounds, a nod to the mass graves of prisoners of war that expanded the concept of the Martyrs memorial, and also restored, and reinterpreted, Olmsted and Vaux's concept of unprogrammed space." green open (The Affidavit of Michael Gotkin is attached hereto as Exhibit "A".) 17. NYC's plan would obliterate the design footprint laid out by these generations of respected landscape architects over the past 150 years in the Park. These plans include "restoration" of the grandiosity of the portion of the Park as designed by McKim, Mead and White by creating an exaggerated version of it. The plan would remove the 1936 Gilmore and Clarke's stonewall which is about three feet high at the northwest corner of the Park so as to eliminate the "boarder" between Myrtle Avenue and the Park. A broad entrance would be open at the northwest corner as the new entrance in line with the promenade so that the promenade and the monument would be visible from the street. The new promenade would be 43 feet wide and the current landscape floral garden circle near the entrance at the northwest end of the promenade would also be replaced with a hardscape fountain. 5 5 of 14

6 18. Olmsted and Vaux were noted for not allowing pointed corners or having entranceways to their design parks at the corners. All of the landscape architects who followed Olmsted and Vaux at the Park respected their landscape plan by assuring that the corners remain rounded. For example, Gilmore Clarke designed a rounded retaining wall at the northwest corner of the Park in Belgian blocks were recycled from streets and reused to pave the edges of sidewalks surrounding the entire Park. Workers during the era of The Great Depression laid the blocks by hand and created a pattern of impressive oval at the northeast corner of the Park. AE Bye continued the use of Belgian block to create the two mounds, the feature which restored and elevated the greenery in place, resonant of burial mounds, and promoted a performance function of unprogrammed play. 19. New York City in house designers based their design on rejected plans by McKim, Mead and White. Their proposal would break the Olmsted tradition by proposing a corner entrance, taking down the Gilmore Clarke northwest corner wall, replacing the original northeast corner Belgian Block Oval with pink-tinted concrete pavers, and leveling the entire AE Bye mounds, and in so doing, removing 83 mature shade trees and endangering more during construction. 20. Therefore, with the aesthetic issues presented above as background, the proposed Park project would include serious significant adverse environmental issues, including: Intentional removal of at least one third of the mature trees from the affected area of the Park. Probable removal of a great many more trees as a result of excessive intended pruning, and the natural consequences of construction. 6 6 of 14

7 The addition of approximately 13,314 square feet of impermeable pavement along the promenade both by creating the promenade and by replacing the mounds with concrete. Addition of inaccessible, fenced-in tree pits to compensate for the loss of usable greenery. Consequent interference with wildlife habitat. Radical change of character due to opening a wide new entry at the northwest corner on Myrtle Avenue, removing the mounds, and destroying mature trees. 21. The indicated changes to the Park landscape will destroy historic aesthetic enjoyment obtained from viewing and using the Park and enjoying the landscape plans of these great and noted historic landscape architects of the last 150 years. As such, the Petitioners are less likely to use the Park, and the public will lose the benefit of the famous landscape plans of Olmsted and Vaux, McKim, Mead and White and the other well known landscape architects. LACK OF SEORA COMPLIANCE 22. The responsibilities of an agency pursuant to SEQRA are specified in the regulations promulgated pursuant to SEQRA, and are contained at 6 N.Y.C.R.R According to the regulations promulgated pursuant to SEQRA: The basic purpose of SEQR is to incorporate the consideration of environmental factors into the existing planning, review and decision-making processes of state, regional and local government agencies at the earliest possible time. To accomplish this goal, SEQR requires that all agencies determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement. 7 7 of 14

8 6 NYCRR 617.1(c). 24. Further, the regulations indicate that: In adopting SEQR, it was the legislature's intention that all agencies conduct their affairs with an awareness that they are stewards of the air, water, land and living resources, and that they have an obligation to protect the environment for the use and enjoyment of this and all future generations. 6 NYCRR 617.1(b) 25. The regulations contained at 6 NYCRR indicate that an EIS must be prepared if the proposed action "may include the potential for at least o_n_e significant adverse environmental impact." 6 NYCRR 617.7(a)(1) [emphasis added]. 26. Conversely, to determine that an EIS will not be required for an action, "the lead agency must determine either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant." 6 NYCRR (a)(2). 27. In determining whether there may be significant adverse environmental impacts, the regulations at 6 NYCRR list the following factors, among others, which if they exist, would require the preparation of an environmental impact statement: (ii) The removal or destruction of large quantities of vegetation or fauna; substantial interference with the movement of any resident or migratory fish or wildlife species; impacts on a significant habitat area; substantial adverse impacts on a threatened or endangered species of animal or plant, or the habitat of such a species; or other significant adverse impacts to natural resources;... (iv) The creation of a material conflict with a community's current plans or goals as officially approved or adopted; (v) The impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or of existing community or neighborhood character; 8 8 of 14

9 ... (viii) A substantial change in the use, or intensity of use, of land including agricultural, open space or recreational resources, or in its capacity to support existing uses;... (xi) Changes in two or more elements of the environment, no one of which have a significant impact on the environment, but when considered together result in a substantial adverse impact on the environment;" 6 NYCRR 617.7(c)(1). 28. An EIS provides the lead agency with all of the appropriate information concerning the effects of the project. Moreover, in considering whether to prepare an EIS, the lead agency must consider not only issues involved with the specific action that the lead agency is being asked to take, but all potential significantly adverse consequences of the project including those issues or permits that may be issued by other agencies. Just as surely, the EIS provides the public with this information, allowing them to knowledgeably provide input and comment on the environmental review process. 29. The lead agency is required to apply a "hard look standard" in fulfilling its SEQRA responsibilities, which requires an agency to: (1) Identify all areas of environmental concern; and (2) Take a hard look at the environmental issues identified; and (3) Provide a reasoned elaboration for the decisions that are made, including whether or not to do an environmental impact statement. 30. Even though the areas of significance are specifically indicated and would apply to the Parks Department proposed landscape changes, as previously indicated, they improperly determined that this project is an exempt Type II action. As such, they neither identified the areas of environmental concern, took a hard look at them, nor provided a reasonable elaboration 9 9 of 14

10 concerning whether or not at least one significant adverse environmental consequence may ensue or not. Therefore, the Parks Department has violated the requirements of SEQRA, and as such, they must be enjoined from proceeding with any of their landscape plans until SEQRA has been fully complied with. 31. There are three different categories of actions pursuant to the SEQRA regulations. Type I actions are those actions that are more likely than not to have at least one significant adverse environmental effect, and therefore it is likely that an environmental statement would be required. 32. Type II actions are listed in the regulations. They are considered so minor in terms of adverse effects on the environment, if any, that no further SEQRA review is necessary. 33. All other actions that are neither Type I or Type II are considered unlisted actions, and carry no presumptions that there will or will not be significant environmental effects. 34. As previously indicated, the Respondents designated this project as an exempt type II project. They based this determination on the following to the file: "The New York State Environmental Quality Review Act (SEQRA), implemented by Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) Part 617 generally applies to discretionary agency decision making. The SEQRA regulations (6 NYCRR 617-5(c)) set forth a list of Type II actions or classes of actions that have been predetermined not to have a significant impact on the environment or are otherwise precluded from environmental review under Environmental Conservation Law. Article 8. As the proposed work described above consists of routine agency work involving reconstruction, rehabilitation, and maintenance of existing park facilities, and no threshold under section applies to this action, the proposed project is consistent with the Type II classifications listed in 6175(c)(1), (2), (6), and (20): Section 617.5(0Xi): maintenance or repair involving no of 14

11 substantial changes in an existing structure or facility; Section 617.5(0X2): replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, unless such action meets or exceeds any of the thresholds in section of this part. Section 617.5(0X6): maintenance of existing landscaping or natural growth Section 617.5(0X20): routine or continuing agency administration and management, not including new programs or major reordering of priorities that may affect the environment The work is designed for the routine agency rehabilitation, management and maintenance of the Park. Therefore, pursuant to the sections listed above. NYC Parks has determined that the proposed Fort Greene Park Repair and Reconstruction is a Type II action having no potential for significant adverse environmental review." impacts and is not subject to further environmental (emphasis added) (August 30, from Owen Mille to the file, received by the petitioners pursuant to a FOIL request on March 30, 2018.) 35. In spite of the Respondents determination that "no threshold under section applies", in Fact that determination is incorrect since this project is actually a Type I project to which the exemptions do not apply. 36. In relevant part, Section 617.5(b) indicates: "Each of the actions on an agency Type II list must: (1) in no case, have a significant adverse impact on the environment based on the criteria contained in Section 617.7(c) of this Part; and (2) not be a Type I action as defmed in Section of this Part." 37. Therefore, if this action either may have at least one significant adverse effect of 14

12 concerning the issues listed in the list, as indicated in Paragraph 28 of this petition, or if the action is otherwise a Type I action, the Type II exemptions do not apply. 38. In fact, this Park project is a Type I action. 39. Section 617.4(b)(6)(i) makes a non-residential project or action that involves the physical alteration of 10 acres or more, a Type I action. Moreover, the 10 acre threshold is reduced to 2.5 acres by Section 617.4(b)(10) where a project is "occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland,..." 40. Since the work at the park far exceeds the alteration of 2.5 acres, it is a Type I project and therefore the type II exemptions do not apply. 41. Since the Respondents determined that no SEQRA review was necessary, they have violated the procedural requirements of SEQRA. FOR A FIRST CAUSE OF ACTION: VIOLATION OF SEOR 42. Petitioners repeat, and reallege and incorporate each paragraph hereinbefore mentioned. 43. Since SEQRA requires every agency to comply with SEQRA's requirements in determining whether or not a project may have at least one significant adverse environmental consequence, and if it does, require the drafting of an Environmental Impact Statement, the Parks Department and the City of New York have violated the requirements of SEQRA. 44. Therefore, any approvals to go forward with the Parks new landscape plans must be voided, and a permanent injunction should be entered until such time as SEQRA has been fully complied with of 14

13 WHEREFORE, Petitioners respectfully request that the Court void any actions of the New York City Department of Parks and Recreation concerning their proposed landscape plans, and further issue an injunction enjoining any activities by the Department of Parks and Recreation concerning the advancement of this project, until such time as the New York State Environmental Quality Review Act is fully complied with, and for such other and further relief that the Court deems just and proper. No prior request for this relief has been made in this or any other court. DATED: Buffalo, New York April 1, 2019 Yours, etc., RICHARD J. LIPPES, ESQ. LIPPES & LIPPES 1109 Delaware Avenue Buffalo, New York Telephone: (716) of 14

14 ATTORNEY VERIFICATION RICHARD J. LIPPES, ESQ., being duly sworn, deposes and says: He is the attorney for Petitioners and this proceeding in that the foregoing AMENDED PETITION is true to its knowledge except as to matters therein stated upon information and belief and as to those matters, he believes them to be true. The grounds for his belief as to all matters not stated upon his knowledge are based upon his investigation of the facts and circumstances in this action, and the reason why the verification is not made by the Petitioners is that the Petitioners reside in a county other than the county where your deponent maintains his law office. Richar Lippes Swo to before me, this 1" da of April, 201. No ary Pub ic MARIA PuO tary T w York My Cominiss on 14 of 14