Fighting City Hall Co-ops and Condos Can Be Successful

According to a well-worn truism, "You can't fight City Hall." In the old days, that was true—particularly when it came to public works projects. If the city wanted to do it, there was no one to say 'no,' except at the ballot box, when it was generally too late. However, that situation changed in the second half of the 20th century, when the historical preservation and environmental movements arose. Now, not only can you fight City Hall, you can win—just not every time. Battling against City Hall's army of lawyers requires picking the right battle, the right plaintiff, the right statute, and the right forum. Between the Second Avenue Subway, the Waste Disposal Center and the large structure of toilets in Brooklyn blocking resident’s views to name a few, there has never been a time in co-op and condo history where buildings have needed to fight City Hall.

The Right Battle

The axis of any battle is the Environmental Impact Statement (EIS) required under federal, state, and city law. The process requires not just that there be a study of the various impacts of a given public project, but that the public be given an opportunity to comment on it. A revised study takes comments into account. Thus, for the attorney "fighting City Hall," the job often lies in preventing litigation, by marshaling the parties that would be adversely affected by the project, having the hard science to show the impact, and making the presentation to the decision makers—which in New York City often includes the local community boards.

However, community board input is not determinative. For example, opponents of the Second Avenue subway convinced Community Board 9 to oppose the use of eminent domain to acquire land for the project. The EIS noted but overrode the objection. Generally speaking, opposition to a long-awaited or popular project is going to be the wrong battle. Objectors normally contest such overrides using CPLR Article 78 that usually requires a showing that the agency was "arbitrary and capricious."

Jackson v. NY Urban Dev., is a hornbook for New York's entire law on environmental review of municipally-sponsored projects. Environmental Conservation Law at ECL 8-0105(6) requires projects to consider "land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character." Since under the ECL, every state and municipal agency is a potential sponsor of a project, all of them may be the "lead agency" to prepare an EIS.

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