cfc - 2.7.11 pi oral argumen transcript

8/3/2019 CFC - 2.7.11 PI Oral Argumen Transcript

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VINCENT PALOMBO - OFFICIAL COURT REPORTER

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK - CIVIL TERM - PART 11

-------------------------------------------------------XIn the Matter of the Application of

CHELSEA BUSINESS & PROPERTY OWNERS ASSOCIATION,LLC, d/b/a, CHELSEA FLATIRON COALITION,

Petitioner,

For an Order Pursuant to Article 78 of theCivil Practice Law and Rules

Index No.-against- 113194/10

THE CITY OF NEW YORK, SETH DIAMOND, Commissionerfor the Department of Homeless Services for theCity of New York ("DHS"); GEORGE NASHAK, DeputyCommissioner for Adult Services for DHS; ROBERT D.LIMANDRI, Commissioner for the Department ofBuildings of the City of New York ("DOB") FATMAAMER, P.E., First Deputy Commissioner for DOB;JAMES P. COLGATE, R.A., Assistant Commissioner toTechnical Affairs and Code Development for DOB; VITOMUSTACIUOLO, Deputy Commissioner for the Department ofHousing, Preservation & Development of the City of NewYork; BOWERY RESIDENTS' COMMITTEE, INC.; 127 West 25th,LLC; and DANIEL SHAVOLIAN,

Respondents.-------------------------------------------------------X

60 Centre StreetMOTION New York, New York

February 7, 2011,

B E F O R E:

HONORABLE JOAN A. MADDEN,

Justice

A P P E A R A N C E S:

BRACEWELL & GIULIANIATTORNEYS FOR THE PETITIONER

1251 AVENUE OF THE AMERICASNEW YORK, NEW YORK 10020

BY: DANIEL S. CONNOLLY, ESQ.,RACHEL B. GOLDMAN, ESQ., AND: DAVID J. BALL, ESQ.,

CONTNUED:


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APPEARANCES CONTINUED:

NEW YORK CITY LAW DEPARTMENTOFFICE OF THE CORPORATION COUNSEL

100 CHURCH STREETNEW YORK, NEW YORK 10007

BY: CHRISTOPHER G. KING, ESQ.,

GIBSON DUNN & CRUTCHER LLPATTORNEYS FOR RESPONDENT BRC

200 PARK AVENUENEW YORK, NEW YORK 10166

BY: RANDY MASTRO, ESQ.,

AND: GEORGIA K. WINSTON, ESQ.,

CLAUDE CASTRO & ASSOCIATES, PLLCATTORNEYS FOR RESPONDENT 127 W 25TH

355 LEXINGTON AVENUENEW YORK, NEW YORK 10017

BY: CLAUDE CASTRO, ESQ.,

VINCENT J. PALOMBO, RMR, CRROFFICIAL COURT REPORTER,


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THE COURT: Good afternoon. Nice to see you

all again.

MR. CASTRO: Good afternoon, your Honor.

THE COURT: I will hear movant in support of

their preliminary injunction.

MR. CONNOLLY: Daniel Connolly from Bracewell

& Giuliani, on behalf of Chelsea Flatiron Coalition.

Good afternoon, your Honor.

The papers and briefing in this case are

significant and I don't want to over burden the record,

so I'll just focus on a couple of what I think are the

key issues here.

Just by way of quick catching us up, the

Court has already ruled in this case, and has sent a

portion of the case to be heard before the Bureau of

Standards and Appeals. That matter is scheduled for a

hearing, this is on the zoning piece of the action that

was commenced before your Honor back in October. That

hearing will take place on March the first, or the

first hearing, as we understand it, will take place on

March the first, and beyond that, I don't have any

other information. And so we will obviously not

discuss that aspect of the case today.

What is left before your Honor is our

application for a preliminary injunction for relief in


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connection with other aspects of this project.

Again, this is the Bowery Residents Committee

is seeking to construct, renovation, do a gut

renovation of a facility at 127 West 25th Street, a

building that was both a factory and a warehouse

converted into a -- a homeless shelter, and what they

refer to as a vertical campus that will provide

services for the homeless residents.

There will be three identified groups of

residential homeless in the facility segregated into

one group of two hundred; another group of 96 and a

third group of 32 for a total of 328 homeless people --

will be the census of that facility.

THE COURT: Now, what is your understanding

as to who is operating those three separate groups, if

you can call them --

MR. CONNOLLY: The three are all operated by

the -- I'm going to call them BRC for ease of this

discussion, your Honor.

BRC will be operating all three programs.

They will be using --

THE COURT: So BRC has a contract with the

City regarding the operation of the two hundred bed

homeless shelter.

MR. CONNOLLY: Well, there's a little bit of


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an issue. I'm not 100 percent sure, but in their

papers, BRC has indicated that --

THE COURT: Your argument is that all three

are actually City facilities and that they are going to

be completely funded by the City, if I understand your

argument correctly, and therefore they should be

considered City facilities for ULURP and certain other

legal requirements.

MR. CONNOLLY: That's correct. Again, it's

not my assertion, it is what is in the myriad of public

documents and public statements that have been --

THE COURT: How do you get there for each of

those facilities?

MR. CONNOLLY: How do I?

THE COURT: How do you get to that position

based upon the three different programs?

MR. CONNOLLY: So the first program is the

homeless -- the --

THE COURT: Two hundred bed --

MR. CONNOLLY: -- the two hundred bed

shelter. So there is a contract. There is a dispute,

I think, as to whether or not it's fully executed, but

there is a contract which we have been provided,

provides for the provision of those services by BRC

funded entirely by the City of New York.


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In addition, there's a program called the

reception center, which is a preexisting program funded

by the City of New York at a different location which,

according to statements made by the BRC --

THE COURT: Who operates that program at the

present time?

MR. CONNOLLY: BRC.

THE COURT: Is that the program that is at

the Lafayette Street facility?

MR. CONNOLLY: That's correct.

THE COURT: Okay.

MR. CONNOLLY: And so that facility will be

moved up to 127 West 25th Street under their plan and

so that's how you get to 296.

THE COURT: No, I understand the numerical

distinctions. I'm interested in the relationships.

MR. CONNOLLY: And the final program is the

32 bed detox center, which is also funded in part by

the City of New York, not necessarily by the Department

of Homeless Services, licensed by the State of New

York, but it again is for homeless individuals who fit

certain criteria, in this case, substance abuse

criteria --

THE COURT: It is an alcohol and substance

abuse crisis center -- that's what I recall from the


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papers --

MR. CONNOLLY: That's my understanding.

And there is also, in terms of certain folks

who have mental illness or -- are not under --

sufficiently treated for medication or what have you, I

believe that program can serve those folks as well,

where they go into the reception center, whereas the

more -- the folks that were being treated or the

treatment is taking are in the regular two hundred bed

facility.

All three of these are run by the same staff,

run by the same organization. All the programs

dovetail together, in fact, according to BRC, that's

what this is all about, it's created an integrated

vertical campus, it is one facility and so in

addition -- and also beyond this, your Honor -- I don't

think we spent too much time discussing this, but there

are other programs in the facility that are not

residential.

So there is 328 bed capacity, but also there

are intake centers and day treatment facilities as

well, but all of it -- again, part of the value of the

program according to BRC is that it's all integrated

and everybody gets the benefits of all the services.

THE COURT: Are there certain cost savings or


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efficiency concerns that they're all getting benefits

of the same program?

MR. CONNOLLY: I don't know, but I would

assume there's efficiencies of scale -- but the problem

is, your Honor -- I see what you're getting at, getting

me to the point quickly -- is that there is a law in

New York City that says you cannot have a facility

serving more than two hundred homeless people.

THE COURT: That's under the administrative

code, 312 -- 21 dash 312.

MR. CONNOLLY: Yes, and the reason for that

is the legislative history is very clear, this City has

a long history notwithstanding its enormous obligations

to provide for its neediest citizens has a history of

warehousing homeless in facilities that are too large,

that create both an unsafe environment for the

residents, but equally important provide an unsafe

environment for the community. And that is the purpose

and genesis behind that law, and there's really no

question about that. It's two hundred bed limit census

on -- when you look at the legislative history -- on a

particular facility.

And so the impact designed to be protected

against by that statute would be -- would have no

effect if it was funded by different sources, no effect


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if it was -- if they tried to bifurcate it with walls

what have you. It's one facility, one census and in

this case is 328 beds.

And I think what is telling here, your Honor,

is in an effort to try to deal with this infirmity in

the situation, they cite this exception. And there is

an exception that was put into the law upon the closing

of Camp LaGuardia in 1998. And -- I'm sorry 2000 -- a

decade goes by --

THE COURT: That exception permits a facility

with four hundred or less beds --

MR. CONNOLLY: Allows the City two

opportunities to create facilities up to four hundred,

because the capacity that was lost in Camp LaGuardia is

Camp LaGuardia has a consensus of 1,700.

And so the City -- both the City and BRC say,

even if you ultimately rule that we do violate the

Administrative Code, Section 312 because it's too many

beds, it's still okay, your Honor, because -- it's

still okay, your Honor, because we have this exception.

The problem with that is that when you invoke

the Camp LaGuardia exception, you are essentially

acknowledging that this facility subject to ULURP as is

articulated specifically in the statute, the

Administrative Code statute.


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When you step back, it make sense because the

City is saying, okay, we're trying to be practical,

trying to live in the real world -- and so are we,

trying to live in the real world, so you're taking a

huge hit in capacity with the closure of Camp

LaGuardia, so we are going to give you a couple of

opportunities, a safety valve, but when we do we want

to make certain these types of mega facilities, i.e. in

excess of two hundred, all the protections, all the

rules, all the regulations are strictly adhered to

before you go ahead and do that.

So it's not just like a free pass and one of

the obligations if you're going to invoke that is

ULURP.

And of course ULURP, the key to the Uniform

Land Usury Review Process, ULURP, is that it provides

for levels of community input, and let's just taking a

quick step back, your Honor. What this is about,

obviously, is about having an opportunity to have the

community's voice heard, to have the impact of this

type of facility evaluated as it is supposed to be

evaluated. The various regulatory schemes, whether

they be the fair share review, the environmental

reviews of the State or of the City, or of ULURP, the

Uniform Land Review Process, all of this is designed to


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give the community a voice so that the decisions that

are ultimately made by the City of New York are as

informed as they possibly can be.

It the quintessential part of the process

where we try to balance having eight-and-a-half million

people live together.

There is no question that the City has an

obligation to provide for its neediest citizens. It is

a legal obligation under the consent decree and there's

a moral obligation. We get that.

But the community also has rights and the key

to all of this, what makes us all coexist with

eight-and-a-half million of us in the City is that

these rights are evaluated. No one group gets a louder

voice than the other group. If we didn't have it that

way, we would have chaos, obviously.

And so these reviews aren't just, you know,

boxes that need to be checked on a form before you can

move forward with construction and to that point, if I

can just highlight two quick -- or three quick

things -- before I get to ULURP -- because we all agree

that CEQR, which is the City version, and SEQRA, State

and fair share have to be done, right, and then ULURP

is the little more complicated one and if the Court

desires, we will go into that in more detail.


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But just with respect to the State and City

environmental reviews, if I can for one second read:

With respect to compliance to SEQRA, it is noted that

SEQRA incorporates, quote, the consideration of

environmental factors into the existing planning,

review and decision-making processes of state and local

government at the earliest possible time -- quote from

the statute -- the purpose of SEQRA is to promote

efforts which will prevent or limit damage to the

environment and enhance human and community resources,

community character is specifically protected by

SEQRA -- and again, I'm quoting the statute -- at the

earliest possible point.

The City version of that say law says:

Expressly requires, quote, full compliance with its

provisions as a prerequisite to undertaking any

proposed action that may have a significant effect on

the environment. And the same --

THE COURT: What is the proposed action here?

Is the proposed action the contract with Bowery

residents? I'm assuming your argument is that the

action here is the renovation, or construction that is

going on in the in relation to the building itself?

MR. CONNOLLY: I think that's a fair

question. The proposed action that we're talking about


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is both the construction and the occupancy. So what --

the relief we've asked for --

THE COURT: It's not the contract, it's the

construction and the occupancy --

MR. CONNOLLY: Well, we've also pled in the

course of these papers that the failure to register the

contract -- and that's another technical issue, which I

think is fully briefed and unless you want to hear more

about it, I don't need to go into it.

THE COURT: No, the registration is fully

briefed, counsel.

MR. CONNOLLY: Yes, I think that's right.

And look, I think the important issues

here -- I'm trying to stay as practical and in the real

world as possible and keep us focused --

THE COURT: Is your argument that the

compliance with the city and state environmental laws

is meaningless if it's done at the end stage of the

project as opposed to -- prior to the commencement of

the construction or -- construction, let me put

occupancy aside.

MR. CONNOLLY: And the answer to that is

absolutely, yes.

THE COURT: Now, you said construction or

occupancy --


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MR. CONNOLLY: Or occupancy, absolutely, yes.

If we -- if sit a fate accompli -- that's the effort

here. The effort is to make this sort of a done deal,

to adjust the status quo such that it is a done deal

and as you try to voice your concern or try to get

input into the decision-making process as the laws

rules of the City of New York mandate, you are now

arguing against a done deal. And you are also putting

the petitioner, are you putting the City and putting

the Court in a position of having to make a decision

which is different now.

Right now there's nobody being housed in this

facility. Right now this facility doesn't exist. The

time to be having these discussions, the time for the

City of New York to be engaging in these reviews is

prior to spending City money on this facility, is prior

to occupying this facility, is prior to basically

making all the decisions. Because it makes the

conclusion forgone.

Obviously now the City --

THE COURT: So if they haven't occupied the

facility, that would be acceptable in your viewpoint to

conduct these reviews?

I think that's the City's argument at this

point and Bowery Residents that these reviews are being


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conducted at this point.

MR. CONNOLLY: I think, no. Well, again,

practically speaking, I believe that we already have a

serious problem but this has not happened yet. And the

City has indicated in public statements in the past a

long time ago they were doing these reviews, they

weren't done. When we were all before you in oral

argument in November, they were going to be done by the

end of the year they told the Court. The Court sort of

questioned that, is it really going to be by the end of

the year.

They're still not done. They're still

telling you today you will see from the papers

submitted they are four to six weeks away which happens

to coincide nicely with the planned occupancy of this

facility and so I am troubled by that.

Having said that, if the Court is asking,

trying to be practical and live in the real world,

which we all have to do, if the Court is saying would

an injunction against the occupancy of this facility

while these reviews are going forward and until such

time as they comply with all the statutes, that is not

obviously something that I would object to.

I recognize --

THE COURT: It's not quite the way I phrased


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it, counsel.

MR. CONNOLLY: I know.

THE COURT: I understand why you might want

to phrase it that way --

MR. CONNOLLY: I'm saying the harm is being

done every minute of every day. Last Saturday 25th

Street shut down while cranes were going in. They were

working feverishly on changing permanently the

character of this building.

THE COURT: That's the interior of the

building, as I understand it.

MR. CONNOLLY: Yes --

THE COURT: I understand it is a gut

renovation and it appears to be a gut renovation, but

it's my understanding it's the interior of the

building.

MR. CONNOLLY: You are 100 percent correct,

it is a gut renovation, it is being converted into a

homeless shelter and so it's --

THE COURT: How many stories is the building

again?

MR. CONNOLLY: It's 12 stories.

100000 square feet. And the -- as you probably recall,

I'll just say it, the idea is that all, I think, except

the top two floors will be homeless programs and health


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care programs and the upper two floors will be offices

for -- executive offices for BRC.

And so the -- I apologize if I didn't really

answer your question, but my point is that the harm

that is being done -- and this is what the case law --

we get good guidance on this from Connor versus Cuomo,

Senior, and Stop BHOD versus the City of New York.

Those cases stand -- found the Court in almost

identical, conceptually identical -- Connors is, in

fact, a homeless case; and Stop BHOD is the Brooklyn

House of Detention, and the circumstances are

different, but in both places the Court said, look, I'm

balancing the equities, in reviewing the situation, it

is the fact that the law requires a community voice in

this process.

That has been taken away by moving forward

without the benefit of the community. That damage is

done. And there comes a point in time -- this comes

out of the Stop BHOD case, I may be citing Farrar

versus Dinkins -- but there comes a point in time where

if the reviews haven't been done, they ought to have

been done and now it's irreparable harm and both cases

are contexts where the courts issued preliminary

injunctions either from construction and -- or from --

THE COURT: BHOD involved a construction --


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enlarging --

MR. CONNOLLY: Expansion.

THE COURT: -- expansion of the present

facility.

Here there's no expansion, it's internal

renovation.

MR. CONNOLLY: Again, your Honor, you are

correct, but I'm not sure that's the point. I think --

I know it is a distinction that BRC makes, but the

point is -- we're talking about a radical new never

before used purpose for this, right? And so --

THE COURT: Is that what you are -- is your

argument that this is going to change the character of

the community because of the nature of the use of the

building?

MR. CONNOLLY: Yes, I think -- and this is

the kind of thing that will be reviewed in an

environmental -- if they really do it -- in an

environmental review. Again, the character of the

community, the impact on the resources of the

community. These are all things that are legitimately

before the agency reviewing on a environmental level

fair share.

Think about this, in fair share, the whole

point of this is we take a community and before we


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impose upon that community another social service

program which draws resources in ex -- to a degree

greater than the average citizen, before we do that,

we're supposed to do in New York City this analysis.

How burdened is this particular community so that we

spread it out. This goes back to this trying to have

some kind of order in a City of so many needs and so

many rights and varying, competing interests.

Eight-and-a-half million people.

So we have this regulatory scheme and it has

to be adhered to and when it's not adhered to, that's

when the community has no place else to go other than

to you, to the courts, and that's where we are.

The horse is out of the barn but it's not off

the property yet. And that's how I view it. I view it

as there's still an opportunity to bring this back in,

do the reviews, get a fair and honest assessment of

what is the impact in this community, allow the

community's voice to be heard in an orderly, informed

way and then the decisions will be made as they're

made.

Now, this is focusing on SEQRA and CEQR and

fair share, where we all agree -- there's one little

piece of it that is not contentious is that we all

agree those reviews need to be done.


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ULURP, on the other hand, is another story

and I think it's worth spending a few moments, your

Honor, allowing me just to focus the reasons why I

believe --

THE COURT: One moment.

(There is a pause in the proceedings.)

THE COURT: Go ahead.

MR. CONNOLLY: So with the Court's indulgence

I just will spend a couple of minutes about ULURP,

unless you want to stick with the environmental --

THE COURT: No.

I have the City charter here. Go ahead.

MR. CONNOLLY: Good old section 197.

So the City charter calls for Uniform Land

Use Review Process under certain circumstances and I

would say this project, your Honor, falls --

THE COURT: What does the Land Use Review

procedure entail, practically speaking?

MR. CONNOLLY: Practically speaking? That's

a great question because I have a chart here to answer

that question.

And what the chart screams out --

THE COURT: The only thing is I can't see the

chart. Did you submit it in your papers?

MR. CONNOLLY: It's not in our papers, your


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Honor. I've got copies.

THE COURT: Will you show counsel.

Do you object --

MR. CONNOLLY: It's off the City's website.

MR. MASTRO: I have no objection, your Honor.

MR. KING: No objection, your Honor.

MR. CONNOLLY: Do you mind if I pass that up.

(Handed)

MR. CONNOLLY: I apologize for the font. But

I'll tell you what -- in short, your Honor, what the

process calls out for is community involvement. It is

an opportunity for elected officials to weigh in. It

starts with the City Planning Commission; then it goes

to community boards, which are -- which represent the

citizens at the very, very local level; it then has

borough president review, which has its own

constituencies; then you have an opportunity for the

City Planning Commission again, and if it's passing all

these processes, and then on to the City council,

again, getting community benefit through elected

officials.

The point of ULURP is exactly what I was

discussing before, which is to say to create some kind

of order under land use projects. And so especially

when we're going to change in significant ways the


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character of a neighborhood, the character of the use

and occupancy of a particular building, and so -- it's

not just there because it's onerous or it takes time or

what have you, it's there for important, legitimate

reasons and the question is why you work in this case.

And I submit to your Honor basically three

provisions of ULURP that we can focus on, and I will be

very, very brief in this regard.

You have your chart in front of you, so I'll

give you the exact cite, Section 197 C A 11 talks about

the acquisition of land by the City by lease. That's

issue number one. The question is -- if BRC and the

City will tell you it doesn't apply under these

circumstances, your Honor, because this is a lease

between a private group, BRC, and a private landlord,

Daniel Shavolian.

But the reality is that the way that the

courts have decided what constitutes whether or not it

is in fact a City lease is -- and quoting from the

Farrar versus Dinkins decision -- whether the City's

interest will so predominate the use of the land to the

exclusion of the owner that effect on the community

will be the same as if the City had taken title to the

land.

And so in that respect, I just want to go


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through with you your Honor a couple of examples of how

much control the City of New York will have over this -

THE COURT: I think your argument as to

control is that the Bowery residents will operate it in

accordance with DHS policies and procedures, that their

monitors will have access with the clients' consent to

the facility; DHS, the only referral system and they

must accept their referrals and that they must be

filled to 95 percent capacity and I think those were

some of the arguments in your brief.

MR. CONNOLLY: And in addition, for example,

the rent --

THE COURT: The rent. You indicate that DHS

will be paying all of the rent.

MR. CONNOLLY: 100 percent of rent --

THE COURT: What is that based on?

MR. CONNOLLY: It's in the contract, your

Honor, between the City of New York and DHS. At 7.2,

it's also --

THE COURT: 7.2 million annually and 76.1

over the term.

MR. CONNOLLY: Over the term -- but almost as

important to that is there's also a provision that says

DHS acknowledges, quoting, the lease for the shelter

provides for annual increases in rent payments over the


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term of the lease and DHS represents that the yearly

budgets for the operation of the shelter shall include

sufficient moneys to pay for the annual lease payments

and the yearly increases in rent. That's Article 10 E

of the contract.

And so you named the critical points, but it

goes a little bit deeper than that. BRC must consult

with and receive written approval from DHS before

initiating any structural change, including renovations

and room reconfigurations, divisions or change in use.

BRC must provide home -- I'm sorry, must -- the

services you mentioned that they have to provide access

for audit and approval -- BRC may not make any changes

in any major program component or changes in the level

of paid or unpaid staff without DHS's prior written

approval.

It goes so deep, your Honor, that DHS must

even approve not only the shelter directors but also

the shelter's maintenance superintendent for the

building. The City -- in other words, the City of New

York has complete control over this and there's -- BRC

has no termination rights, that's another factor in the

contract.

And so go back to the language for just a

moment of Farrar versus Dinkins where it says that the


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City's interest will so predominate the use of the land

to the exclusion of the owner, that effect on the

community will be the same as if the City had taken

title of the land itself.

This is the example, quite frankly --

quintessential example of what's being discussed in

Farrar versus Dinkins. This is a City facility, funded

the rent 100 percent, the programs as best we

understand it at least 80 percent, more than 50,

80 percent of the programs are funded by the City of

New York. And so as a result we believe that this is

subject to the Uniform Land Use Review Process on that

prong.

Second -- there's three.

Second, involves this Camp LaGuardia issue.

Both the City and BRC in their papers have indicated

that if you don't accept their idea of segregating the

programs, if you say yes that breaches the census,

they're ready to hit you with Camp LaGuardia the

exception.

Fortunately -- or unfortunately that

exception mandates a ULURP review under section --

21-315 of the Administrative Code. That's in -- so in

effect -- and I don't like lawyers who do this, so I'm

not going to say that they're conceding that it's


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ULURP, but if you're going to take that road -- and

look, it's hard enough to fight City Hall, and the

people working for City Hall, but you can't keep

changing the bar, so it either is or isn't. They

either are asserting the Camp LaGuardia exception, in

which case they are putting this facility into the

purview of ULURP, or they're not and they're violating

Section 312 of the Administrative Code. And so one way

or the other -- but you can't have it both ways and

since they both assert it in their papers, the argument

to the contrary, I will for purposes of the argument

take the position they have now tripped this facility

into a ULURP review.

And then finally, the final provision of

ULURP is -- involves if it is part of a housing plan or

program, and the record is replete, your Honor, with

examples of, and statements made by the deputy

commissioner of the of Homeless Services that this

program is part of the City's plan, in fact, in arguing

the irreparable harm, they are telling your Honor that

if you were to stop this from moving forward, the harm

that you would visit upon the City's plan and the

City's ability to meet its burdens under Callahan or

under -- its obligations pursuant to law that houses

the homeless -- and in each of these three ways this


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proposed project cries out for a ULURP review.

The fact that there hasn't been one and we

are -- I know your Honor in her order back in January

had said there's a couple of questions you want the

City, New York City, to answer, one of which is, you

know, when is the construction going to be done. And

so let's assume the answer to that question is in the

next couple of weeks. We are this deep into the

project and they haven't begun the ULURP process.

There's no question that that also constitutes

irreparable harm.

You couple the failure to do ULURP, the

failure to CEQR, the failure to do SEQRA, the failure

to do fair share, the fact that the defense to all that

is -- except for ULURP -- the defense for all that is:

Your Honor, we're doing it. It's moot. It's not ripe.

It's all these other issues.

But we've been hearing that for a very long

time. Bear in mind, just contextually, this whole

project began between BRC and the City of New York back

in October of 2009. There were significant

communication, e-mail communication between the City

and BRC in November of 2009, in December of 2009. We

are now in February of 11, and none of these reviews

have been done.


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Now ULURP they're saying they don't think it

applies. In my view they're wrong. As a result,

uniform in all of this has been the community has been

denied. Decent people just like us have been denied

their voice. And they've been denied their voice based

upon the City and BRC ignoring its own regulatory

scheme, and thereby silencing us with the hope that by

the time you really can get in front of someone who can

decide this, it's going to be too late and the balance

of equities will be asking this Court to, yes, the

voice of the citizens matters, but I've got 328 soles

sitting in the building and we've seen decisions -- I'm

sure the Court has read decisions as well where it puts

the Court in an impossible position. This would never

have come to light if it hadn't been for the Wall

Street Journal writing an article about this in March

of -- or May of 2010.

The first public hearing of this in any way

was hosted by Community Board Four. Not by DHS. Not

by BRC.

Mr. Rosenblatt, the executive director of

BRC, says -- admits that he was surprised by the fact

that the Wall Street Journal published this article.

It was an accident. None of these reviews would have

been undertaken and as we sit here now in February --


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THE COURT: Well, someone notified the

community board of the contract. I forgot who, it was

stated in the papers. Bowery residents -- who

notified --

MR. CONNOLLY: I can clarify that. In

February of 2010, DHS --

THE COURT: Department of Homeless

Services --

MR. MASTRO: That's several weeks before the

Wall Street Journal article.

MR. CONNOLLY: The Wall Street Journal

article was in May, four months later.

MR. MASTRO: Four months later.

THE COURT: All right, Counsel, do you --

given the hour --

MR. CONNOLLY: I know it's late and I do want

to talk about -- if the Court wants to hear about the

issues regarding irreparable harm and balancing the

equities, but we can do that if the Court is willing to

later.

THE COURT: I think you covered that in your

papers and you cite various cases.

MR. CONNOLLY: Thank you, your Honor,

MR. KING: Christopher King for the municipal

respondents, Corporation Counsel's office.


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Your Honor, I will try to be brief.

When petitioner's counsel -- first of all,

he's right when he says there's no dispute about CEQR

and fair share.

We are doing it, we are on track to complete

those reviews in the next four to six weeks.

THE COURT: Can you tell me this, Mr. King,

one of the arguments petitioner makes is the fact that

there been no reviews, either CEQR, SEQRA, fair share

or ULURP if needed prior to the construction and at

this point prior to the -- well, let me rephrase that,

prior to the construction and prior to entering into

the contract.

MR. KING: Well, construction -- as we

explained is being done -- and as-of-right buildings

permit.

There is no obligation to perform any review

of an as-of-right buildings permit, under the zoning

resolution or any other law in the City.

So as far as in terms of the construction,

there's simply no review requirement so there's no

harm.

With respect --

THE COURT: There's no, is no review

required -- isn't it purpose of the statute as


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petitioners have said is to permit community

involvement into some of the decision-making --

MR. KING: Absolutely.

THE COURT: And isn't the fact that

construction is ongoing and there is a contract in

place, even if it hasn't been registered, that there's

a contract between the City and Bowery residents

regarding the operation of the facility and the nature

of the facility itself is, what, 328 beds --

MR. KING: Your Honor, the question --

THE COURT: -- with a variety of programs, so

isn't it the type of facility that under the statutes

are meant to have community input or involvement --


THE COURT: -- in the decision-making process--

MR. KING: Absolutely, your Honor,

absolutely, absolutely.

THE COURT: Their argument is the

construction is going forward now, the contract is in

place.

MR. KING: The contract is not in place, your

Honor. And petitioner's counsel stands up in court and

says the contract is signed, he is not correct.

He may have been told that by somebody at the

Department of Housing Services, Homeless Services, it


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is not correct. There is no final contract. This is

not a fait accompli, in fact, the contract might be

adjusted or changed based on a fair share review, the

fair share review that we are currently performing or

based on CEQR --

THE COURT: Is it the landlord who has taken

all the risks in this project --


THE COURT: -- if this contract is not

approved then all the landlord will be left with a

building that's been renovated to comply with the terms

of this contract and if after reviews, the programs

cannot be housed in these facilities, then the landlord

has lost whatever investment the landlord may have had

in terms of renovation, is that it?

MR. KING: Right. That's entirely possible.

We hope that wouldn't happen but it's possible -- I

think BRC explained that they are at risk at this time.

THE COURT: BRC or the landlord?

MR. KING: BRC.

THE COURT: BRC is funding --

MR. MASTRO: Yes. The risk is BRC's risk,

your Honor. We are the ones funding all the

renovations to enter into a 33 year lease.

THE COURT: Are you expecting any


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reimbursement from the City for the renovation?

MR. MASTRO: Your Honor, no, only in the

sense that we are hoping that the contract goes through

and therefore that will involve some longer term use of

the facility pursuant to a City contract, but we don't

have a guarantee of that, your Honor. We're the ones

assuming that risk, and I have to add that even the

contract the City is contemplating is much shorter than

the entire duration of this lease. It is a ten year

contract with two potential five year renewals. Ours

is a 33 year contract. So this is a classic case --

THE COURT: You will have a 33 year contract

with the --

MR. MASTRO: With the landlord. So this is a

classic case of one private party, a not-for-profit,

entering into a lease with another party a landlord --

THE COURT: Counsel, you will have your turn.

MR. MASTRO: Thank you, your Honor. I'm

sorry. I am ready.

MR. KING: I think Mr. Mastro agrees that it

is BRC's risk here.

In terms of there's been no public input

here, in terms of that, Mr. Connolly mentions --

THE COURT: Has there been public input?

MR. KING: There's been a hearing by the


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Mayor's office --

THE COURT: There's -- excuse me?

MR. KING: There has already been a hearing

by the Mayor's office of contracts, a public hearing on

the record at which Mr. Connolly testified. It is --

THE COURT: Is that the November hearing?

MR. KING: I think the November hearing, yes.

There will be a consultation process as soon

as we finish the fair share review with the local

community board and there will also be notice, at a

minimum, of the CEQR review when it is complete.

THE COURT: Now, the fair share review, what

does that entail, procedurally?

MR. KING: It -- as Mr. Connolly said I think

by and large correctly it looks at the distribution of

community facilities in a neighborhood --

THE COURT: What type of community facilities

in this --

MR. KING: All types of community facilities.

THE COURT: Can you give me an example of

what --

MR. KING: A garbage transfer station would

be one. A police station. A school.

MR. CONNOLLY: Methadone --

MR. KING: Any kind of City facility which


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would arguably constitute a City facility has to be

looked at. And the City considers whether there are

disparities in neighborhoods, and analyzes whether the

proposal will create or worsen disparities in a

neighborhood.

THE COURT: Who conducts that review.

MR. KING: In this case, it's the Department

of Homeless Services.

THE COURT: So the Department of Homeless

Services?

MR. KING: Yes, ma'am.

THE COURT: And then they conduct such a

review based upon data that's available --

MR. KING: Yes.

THE COURT: What is the next step?

MR. KING: Then they reach out to the

community board and there's either a meeting or an

opportunity to comment.

THE COURT: Sorry, they reach out to the

community --

MR. KING: The community board and the

borough president.

THE COURT: Are those separate?

MR. KING: It's basically the same process.

It's basically called an article eight letter that


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needs to go to the community board and to the affected

borough president.

And then after the consultation process is

concluded, the agency makes a decision, either to go

forward as originally proposed, to make a change, to

make an adjustment, not to go forward --

THE COURT: Are there public hearings held in

connection with that public review?

MR. KING: There is no public hearing

requirement in fair share, per se. It's called

consultation, that's what the law says.

THE COURT: So Department of Homeless

Services would make a determination?

MR. KING: Yes, your Honor.

And that process will go forward.

THE COURT: Now, what would be reviewed in

this situation? Because there seems to be some issue

here as to who is running what part of the facility --

MR. KING: In this situation --

THE COURT: I shouldn't say running, that's

an incorrect word.

MR. KING: For the purposes of fair share

review, it would be the two hundred bed homeless

facility.

THE COURT: Just the two hundred bed


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homeless.


THE COURT: What about the other 96 bed --

MR. KING: They're not City facilities, your

Honor. They're actually funded by -- they're actually

funded in part, some money from City Health, most of

the money from State Health. The actual money comes

from the State and is passed through City Health, under

the law the funding is passed through City Health,

they call a local government agency. They have no

approval --

THE COURT: According to the papers -- whose

papers -- I think this is the City's papers, New York

State, the Office of Alcohol and Substance Abuse

Services, under their auspices there will be the 32 bed

detox program.


THE COURT: That's under New York State --

MR. KING: That's a State program, your Honor.

THE COURT: That's a State program --

MR. KING: The City has involvement in that

program through some funding and through an advisory

role in relocating the facility. But the facility

cannot be relocated without State approval. And as I

think --


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THE COURT: And then the reception, what's

been called the reception, it's either 96 or 77 beds --

MR. KING: That's BRC's, your Honor. And BRC

runs that program, it's independent of DHS and City

health.

THE COURT: Now, is the City going to be

paying the rent for the entire building?

MR. KING: No, your Honor, no. We are paying

rent for the two hundred bed homeless shelter.

THE COURT: Who is paying the rent for the 32

bed detox program?

MR. KING: As I say, the funding in that is a

little more complicated. It's by and large State

funding and it's passed through City Health, State

regulations, all governed by the State Office of Mental

Health Regulations and the OASAS regulations.

Those are not City facilities, under any

reading of fair share.

THE COURT: And who would be paying the rent

for the 77 or what is it, 98 reception --

MR. KING: I don't know, your Honor. What I

can tell you is that we will be -- DHS, the City, will

be paying rent for the homeless shelter, two hundred --

THE COURT: What about the services that are

available?


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MR. KING: I'm not sure exactly how the

funding works and how it relates to the rent. But

that --

THE COURT: I see two other attorneys have

stood up. I ask you to both be seated.

MR. KING: That is not part of the DHS

contract.

So to answer your question, your Honor, what

would be reviewed under fair share would be the two

hundred bed homeless facility.

You know, this idea that we somehow concede

that if we go over the two hundred bed limit and avail

ourselves of the Camp LaGuardia exception, that we

have --

THE COURT: I read your papers. I know you

don't concede that, you say if, if, if, if --

MR. KING: And your Honor, the statute says:

If applicable, you will review a larger facility under

applicable CEQR, ULURP and/or fair share.

It's astounding to me that petitioner's

counsel stands here in court and reads a law and

doesn't mention the word applicable. And somehow turns

that into an admission that if we go over two hundred

beds, per se, ULURP is required. The law does not say

that.


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As I said, the ULURP review and fair share

review is ongoing.

In terms of whether the trigger for ULURP, as

Mr. Connolly argues, that DHS's agreement amounts to a

lease at the end of the day.

As the Farrar -- the First Department made

clear, your Honor, the law in this department is that

you have to surrender possession and control of the

premises in the same way that you would if you took

title to the property.

The City is not a party to the lease, okay.

Yes, we have a say in how our rental payments and other

payments are spent at this facility. To lend millions

of dollars to a not-for-profit and not put provisions

in an agreement to make sure our money, the City's

money, the people's money, is properly spent and spent

according to DHS standards, standards by the way, that

are also mandated by courts and for instance, the

Callahan litigation.

So the fact that we have a role in how the

money is spent does not mean that we are the lessee.

We are not on the lease, your Honor.

Let's say, for example, that we stopped

paying the City, and the agreement with DHS runs out,

or BRC stops paying the landlord, the landlord doesn't


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have any rights against the City. We're not on the

lease. It's not a lease with the City.

And as numerous courts have made clear, your

Honor, that this type of funding agreement from a City

agency for the purposes of providing homeless services,

funding the agreement itself is not a lease. And it's

Luccia Plaza and Farrar and Davis V Dinkins, all those

cases, it's plainly not a lease.

Mr. Connolly also argues that this facility

is being built pursuant to a housing plan. That

provision of ULURP says a housing plan under Housing

Law.

This is not a housing plan under Housing Law.

In fact, it's not housing at all. It's temporary

emergency shelter. It is not housing under any stretch

of that provision of ULURP.

I would also just like to touch a little bit

on the harm here. You know --

THE COURT: Can I just ask you this in terms

of the number of beds. You are saying -- it is your

position that all the beds should be looked at

separately because there's only two hundred beds for

the City shelter and there's another 32 beds that are

part of a State program, although part of the funding

is from the City, and then there's the additional --


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additional beds run by Bowery residents --

MR. KING: Correct.

THE COURT: -- that it's permissible to have

a facility with over two hundred beds as long as the

funding is not from the same -- from the City --

MR. KING: No, your Honor, that's not what

I'm saying.

I'm saying the Ad Code says it's permissible

to have a facility over two hundred beds, any shelter

that's over two hundred bed census, if we have not yet

replaced Camp LaGuardia. Period.

THE COURT: Any shelter?

MR. KING: I'm sorry, your Honor.

THE COURT: Any shelter?

MR. KING: To the extent the Court is

inclined to consider BRC's reception beds as shelter

bets, and the detox beds also as shelter beds, we still

don't get over the four hundred limit.

And petitioner's counsel admits that we can

avail ourselves of that exemption. They just don't

want to it happen, they would rather have them

somewhere else. The contention that going over two

hundred beds, per se, requires a ULURP review is just

not correct. It does not -- that's not what the law

says.


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In terms of harm, your Honor, you know,

there's been a lot of talk about the lack of process

being, per se, harm here. And Mr. Connolly talks about

Stop BHOD, that's the seminal case, not BHOD. If you

go back and read that case carefully, your Honor, why

the injunction was issued there was because we were

proposing -- doubling the size, doubling the capacity

of a jail.

What other -- there was another claim IN that

case, too, that we could not reopen a jail that had

been closed for about four or five years. And the

petitioners in that case made the same arguments, that

they were being deprived of reviews because we were

reopening the facility, and the Court there denied the

preliminary injunction and allowed us to reopen the

facility at its current capacity.

Mr. Connolly cites Connor V Cuomo. That case

was actually a case that was not under the ULURP

provisions that he cited in his papers. It was

actually under an eminent domain procedure law

provision and it involved a case in which the State had

actually condemned the property, had taken it already.

And I will also note in that case Connor V Cuomo also

involved a completely new facility.

THE COURT: It involved, excuse me?


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MR. KING: Anew facility. A brand new

facility.

So the idea that -- and your Honor, they may

be harmed. The question for the Court, your Honor, is

whether the harm now is permanent and irreparable and

we submit it is not and they have failed to demonstrate

Mr. Connolly talks a lot about harm and not

just about process, but he talks about -- and I just

want to touch upon the standing issue there.

Mr. Connolly talks about harm, and we don't think he's

right when he says deprivation of a process, which the

Court can impose is, per se, irreparable harm, but he

also alludes to other harms.

And the law is clear in this state,

particularly since the Court of Appeals came down with

a decision -- Save the Pine Bush, that it is not

sufficient, as petitioner's counsel would have you

believe, to say: We live nearby or we live next door,

there we are harmed. That is not the law in this

state.

Mr. Connolly is correct when he says

proximity can be an inference of harm. He is right on

that score. But, your Honor, the law is clear, you

must allege harm. You cannot just say: We live

nearby, therefor we are harmed.


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Some of the cases that he cites also, yes,

proximity was deemed an inference of harm, but in all

of those cases petitioners had alleged specific injury

that was different in kind than the public at large.

And -- Committee to Preserve Brighton Beach,

two cases with the same caption, similar caption. The

petitioners in that case all alleged that they were

either being deprived the use of a resource or that

they would be negatively impact by a use, and explained

what those impacts were. They couldn't use the park;

there was noise; there were air quality impacts; there

was traffic', there were all manner of allegations

about injury there, your Honor.

We have none of that here. For the first

time since this case has been filed I hear about

impacts about safety and impacts to community

character. There's none of that in petitioners'

papers, absolutely none.

So I would just say briefly, petitioners

still do not have standing unless -- until they can

actually allege injury which they have not done. And

that's I think enough for now. I'll turn it over to --

MR. CONNOLLY: Your Honor, can I very briefly

on the money issue -- this is a question --

THE COURT: Wait, let me hear Mr. Mastro.


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MR. CONNOLLY: It may help with his

discussion -- because it comes out of the mouth of his

client.

THE COURT: Excuse me?

MR. CONNOLLY: What I'm about to read comes

directly from his client -- written responses to

questions by the community board who asked the same

question you just asked --

THE COURT: Yes.

MR. CONNOLLY: Which is how much and what

types of funding is the City of New York providing to

BRC for the operation of this project and in what form?

The answer from BRC. Quote: The City of New

York is providing and is anticipated to provide

operating funding to BRC for the programs it operates

at 127 West 25th Street including the following: The

Chemical Dependency Crisis Center received funding

through a contract with the New York City Department of

Health and Mental Hygiene; the reception center --

which is the 96 beds -- the reception center receives

funding through a contract with the New York City

Department of Homeless Services; the two hundred bed

shelter will receive funding through a contract with

the New York City Department of Homeless Services; the

outpatient Fred Cooper Substance Abuse Services Center


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PROCEEDINGS

receives funding through a contract with the New York

City Department of Health and Mental Hygiene. And the

home based case management program receives funding

from the New York City Department of Health and Mental

Hygiene and the New York City Human Resource

Administrations Adult Protective Services Division.

And with respect to the lease, according to

the contract, the full value of that lease is 7.2

million dollars per year, and under the contract, the

City of New York is going to pay that lease, in

addition to rent increases of the life of that lease.

THE COURT: Thank you.

I will hear you.

MR. MASTRO: Your Honor, I'll start right at

that point, because the fact of the matter is that the

contract itself that the City is now in the process of

reviewing has not sought to register yet. So there is

no contract in place. It is a proposed contract that

is undergoing CEQR and fair share review.

Under that contract, the City is only

committed Department of Homeless Services, if it were

to enter into the contract, to provide a minimum -- a

maximum level of payment per year, an annual amount not

to exceed 7.19 million for the operation of a two

hundred bed homeless shelter facility and related


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services.

That's all this contract is about. And your

Honor, the fact of the matter is as this record shows

before you, there are multiple programs that my client,

BRC, my client, the real party interest here, a

not-for-profit, which is trying to provide necessary

Homeless Services, some at the City's request from the

Department of Homeless Services, some at the request of

the State and City departments of health, mental

hygiene, substance abuse, alcohol abuse; some programs

that BRC runs itself, like the reception center where

it hopes that when it runs a reception center at this

facility it may be able to reach agreement with the

City's Department of Homeless Services, but as

Mr. Nashak has sworn -- Deputy Commissioner has sworn

in his declaration, there's no agreement on that and it

is not part of the proposed contract at issue here.

So there's no agreement to pay the rent,

there is an agreement to -- in principle, that is now

being reviewed that has not been consummated, has not

been proposed to the City comptroller for registration,

it may or may not be proposed based on those reviews,

but it relates only to a two hundred bed homeless

shelter facility and related services.

THE COURT: What are the related services?


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MR. MASTRO: Your Honor, there are --

THE COURT: And for whom are those services

to be provided?

MR. MASTRO: They're provided to the two

hundred -- related social services and otherwise to

help them adjust and hopefully find a better place in

life.

THE COURT: What about the services regarding

the 32 bed detox practice --

MR. MASTRO: Not paid for at all by the

City's Department of Social Services, not addressed in

this contract at all --

THE COURT: Is it a separate program --

MR. MASTRO: A separate program with the

City's Department of Health and Mental Hygiene and

there's also involvement in a role of the state

authorities in this regard including relating to

alcohol and substance abuse, both have a role in that

program and that will be separate with the City's

Department of Health and Mental Hygiene services. And

again, your Honor, the --

THE COURT: So I think the City's position

also is the 32 bed detox program is not part of a

shelter --

MR. MASTRO: It is not. The homeless shelter


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we're talking about here, the proposed contract is for

a two hundred bed homeless shelter and related services

facility. This is going to be a vertical campus where

a number of different programs are going to be run; one

of them is the separate 32 bed detox center which is

separately funded with involvement of both State and

City health and mental health professionals.

And your Honor, the reception center, again,

uncontroverted sworn testimony, that is a BRC program

that the Department of Homeless Services has sometimes

funded in other locations. BRC is going to run a

reception center, literally, you have BRC personnel who

go out and try to find homeless on the street who may

need an immediate attention. That's what the reception

center is about, your Honor, and the fact of the matter

that's something that BRC runs. It doesn't come

through Department of Homeless Services intake

procedures to enter a shelter, that's why that

reception center isn't a shelter and that's what Deputy

Commissioner Nashak has so sworn.

So it is a vertical campus involving

different programs only one of which is a shelter

program that is the subject of this specific proposed

contract.

Now let me be crystal clear.


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I've heard a lot of discussion about harm.

There is zero harm here to anyone as this case

presently exists. Couldn't possibly be.

I submit that there never will be any harm to

anyone in that community, BRC runs the best programs in

the City, that's why it is a not-for-profit and DHS has

contracted with them in various capacities.

But your Honor, remember where we were on the

issue of the Buildings Department permit. It's all

internal construction, nothing, no occupants, no

expansion of the site, all internal construction, where

my client BRC not-for-profit is taking all the risk and

has already spent millions. For them to have the

audacity to come here when it is law of the case that

there is no irreparable harm from the internal

construction going on there that my client is bearing

all the burden on, and where my clients -- we should

all remember -- has committed to your Honor that before

anyone moves in there we're going to give you 30 days

advance notice so that you could decide whether there

is truly any harm there and there is zero irreparable

harm here, and the case law is legion in this regard,

particularly, in the area of homeless housing.

Your Honor, I can cite case after case --

Dogertown Home Owners Association, Second Department


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235-AD 2d 538 page 539; Spring Guard Community Civic

Association versus Homes for the Homeless, that's a

trial court level case in Queens County, 135 Misc 2d

689, 698 and, of course, your Honor's own decision in

this case that under these circumstances where all

we're talking about is preparing a building, there's no

irreparable harm.

Now I want to comment -- please, your Honor,

and I know the day is long, this case is so important

to my client. They have three different areas where

they are claiming some kind of right too relief; they

claim under ULURP, they claim under the Administrative

Code and they claim CEQR and fair share.

I want to start with that last one because

the claims in their complaint were that the City had

failed to do CEQR and fair share and that therefore

they should be compelled to do that. They even wanted

the contract to be compelled to be registered because

they haven't done -- well, then the City comes back and

says, in fact, we are doing them, we're in the process

of completing them. That means they have no claim left

on CEQR and fair share and I have to make one

distinction because the law is crystal clear, the City

didn't have to do fair share. That's what both the

Davis and the Farrar cases say, First Department and


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Second Department. Davis V Dinkins 206 AD 2d 365 pages

366 and 68, Second Department and Farrar versus

Dinkins, 218 AD 2d 89, 93 through 94, that's First

Department, both of them said that unless there is

something about this situation, that makes it

ULURPable, the City didn't even have to do a fair

share.

And then I'm going to come to ULURP because

they have two ULURP claims and let me explain what

ULURP is. ULURP is a special local law incorporated

into our charter that I had a little experience from my

days as deputy mayor. Your Honor, under ULURP, it has

to be very specifically related to the City being

directly involved in some action.

The first claim Mr. Connolly tries to raise

here is that ULURP is implicated because this is an

acquisition by the City of a lease.

The second and only other ULURP basis he

claims is that this is the City acting pursuant to a,

quote, housing and urban renewal plan and project, end

quote.

I challenge Mr. Connolly when he gets up

again to cite a single case to this Court where any New

York case has ever held that a contract to provide

Homeless Services with the City has ever been held by


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any court anywhere in New York to be a ULURP lease or a

ULURP housing and urban renewal plan. There is none.

If I may point out on the question of the

lease. This isn't a lease between the City and a

landlord.

This is a not for profit that has itself

taken all of the risk of a 33 year lease with a

landlord, has spent millions to internally renovate a

building for the hope that the City will register a

contract that gives them only a ten year services

contract to provide shelter for two hundred homeless

individuals a night and related services.

Your Honor, that's a service contract. That

is not a lease by the City. ULURP requires a lease by

the City.

And your Honor, again, I can cite you many

cases, Mr. Connolly will be able to cite you none.

Because this is a contract to provide services and if I

may, briefly, there are cases completely on point.

In the matter of Luccia Plaza versus City of

New York 305 AD 2d 604, pages 605 and 606, Second

Department, 2003. That was a City contract, DHS with

the Doe Fund, the Doe Fund to provide shelter beds.

Same thing that we're talking about, they had

to renovate a site to provide homeless shelter beds.


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City enters into a contract with Doe and the Court

found unequivocally, quote, the contract between DHS

and the Doe Fund is not subject to ULURP, as it is not

a lease or functionally equivalent to a lease, but

merely an agreement by which the Doe Fund will acquire,

renovate and operate a transitional residence for

homeless men.

Same thing in Davis V Dinkins and Farrar V

Dinkins, both of which involve the City contracting

with transient hotels to provide beds. The transient

hotel providing those beds at those places, both the

First Department and the Second Department said: Not a

lease under ULURP, no ULURP obligations whatsoever. In

fact, there's never been a court that ever held that

there were ULURP obligations from the City contracting

for another party to have provided shelter beds.

Your Honor, second ULURP category, the only

other one Mr. Connolly cites in his papers, the only

one he argued today when there's a requirement because

this is supposedly a City, quote, housing and urban

renewal plan and project, end quote.

Again, uniformly rejected by the courts. A

service contract, DHS enters into regarding homeless

policy; West 97th Street and West 98th Street Block

Association Volunteers of America Greater New York 190


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cfc - 2.7.11 pi oral argumen transcript

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