WALTER B. TOLUB, J.
Asian American Legal Defense and Education Fund, New York City (Stanley Mark of counsel), for petitioners.Michael A. Cardozo, Corporation Counsel, New York City (Carrie Noteboom of counsel), for respondents.WALTER B. TOLUB, J.
This application involves a recently rezoned area of Manhattan which sits within part of Manhattan's Community District 3 (“CD3”). The 111 block area represents the third largest rezoning in New York City (the City) to take place since 1961, and stretches from Bowery and Third Avenue on the west, to Avenue D on the east, and from East 13th Street on the north, to East Houston, Delancey and Grand Streets on the south (the “Rezoning Area”). The Rezoning Area is largely made up of two longstanding residential communities comprised mostly of 19th century tenements with supporting institutional uses. Both areas are historically significant, and readily recognized by New Yorkers and non-New Yorkers alike.
The East Village is oft recognized from contemporary portrayals in television and film and its proximity to multiple institutions of higher education. The Lower East side is known for having been the most famous immigrant neighborhood in the United States at the turn of the 20th Century.
By this Article 78 special proceeding, petitioners seek an order annulling the Final Environmental Impact Statement (“FEIS”) dated September 26, 2008 prepared by respondent, the New York City Department of Environmental Planning (“DCP”) on the grounds that the DCP failed to both take a hard look at the socioeconomic impact of the rezoning and account for the cumulative impact of the rezoning with other pending developments. Petitioners additionally seek the issuance of an order directing respondent DCP or any other lead agency to prepare a new Environmental Impact Statement that conforms with the requirements of New York State Environmental Quality Review Act (“SEQRA”) (ECL § 8–0101 et seq.) and the City Environmental Quality Review Act (“CEQR”)(62 RCNY § 5–02 et seq.). Background
Petitioners are comprised of entities, organizations, and individuals who live and work within the rezoning area, all of whom will ultimately be affected by the rezoning. Petitioner Chinese Staff and Workers Association (“CSWA”) is a membership organization for Chinese workers located in Chinatown. CSWA organizes Chinese workers to fight for their legal and human rights in both the workplace and the broader community. Petitioner National Mobilization Against Sweatshops (“NMASS”) is a membership organization located in the Lower East Side which is dedicated to ending sweatshop conditions. Petitioner Chinese Restaurant Alliance is a membership organization located in Chatham Square, advocating on behalf of the rights of restaurant workers and owners.
Petitioners Zhi Liang Chen and Susan Howard are rent-stabilized tenants who respectively reside on Ludlow and Norfolk Streets, both of which are within the rezoned area. Petitioner Yolanda Donato Hernandez is a resident at the Jacob Riis public housing project on Avenue D, an area which is within the 1/4 mile secondary study area of the rezoning. Petitioner Norma Ramirez is a resident at the Seward Park Housing Cooperatives on Grand Street, also located within the 1/4 mile secondary study area of the rezoning. Petitioner Steven Wong is the Director of the Chinese Restaurant Alliance, and both resides and works in Chatham Square, an area which is located just outside the 1/4 mile secondary study area.
The 1/4 mile “secondary study area” will be discussed infra.
Petitioners claim that contrary to respondents' analyses, the Rezoning accelerates and concentrates luxury development in low-income communities of color, thereby creating a disproportionate adverse impact in these neighborhoods. Petitioners further claim that the DCP's FEIS is deficient because it failed to consider five elements: (1) the disproportionate impact of the rezoning on lower-income communities of color; (2) significant socioeconomic differences of the neighborhoods in the Rezoning Area; (3) indirect displacement of low-income populations of color both inside and outside of the proposed Rezoning Area; (4) displacement of businesses, and (5) the availability of affordable housing. History of the Rezoning Area
The building types and scales in the Rezoning Area are predominately low- and mid-rise multiple dwelling apartments and row houses built to the street line. The buildings include 19th and early 20th Century tenement buildings ranging from four to seven stories in height (see, Exhibit 1, City Planning Commission Report (“CPC”) dated October 7, 2008, Report C 080397A ZMM; Affidavit of Edith Hsu–Chen ¶ 9).
The City Planning Commission (“CPC”) is designated as the Lead Agency for the purposes of undertaking the environmental review for the Rezoning.
Edith Hsu–Chen is the Director of DCP's Manhattan Office.
Since 1961, the majority of the Rezoning Area has been subject to a zoning resolution which allowed for development out of scale with the prevailing low-and mid-rise neighborhood character due to a lack of street wall and overall building height limits on development. The result, as evidenced by very recent construction, has been the development of tall, slender, buildings surrounded by open space in parts of this area of New York City. Genesis of the Rezoning Plan
A “street wall” is a wall or portion of a wall of a building which faces a street (Zoning Handbook at 112; Respondents' Exhibit 12).
Recognizing the very active real estate market which has developed in the Rezoning Area over the last ten to fifteen years, and concerned with a strong demand for housing, a need to promote the development of affordable housing in the area, and the desire to preserve the unique character of neighborhoods (Respondent's Memorandum of Law p. 4–5; CPC Report C 080397A ZMM at 31; FEIS at 1–3), the City began the process of rezoning this expansive area. It is respondents' position that the Rezoning is designed to preserve the low- and mid-rise character of these East Village and Lower East Side neighborhoods, and to ensure that new development is channeled to specific locations that are better suited for such development, providing opportunities for new housing, and to encourage the development of affordable housing.
Between 1990 and 2000 this area experienced a 7.6% increase in housing units, a higher growth rate than that experienced in the Borough of Manhattan (1.7%) and the City as a whole (7.0%). Median contract rents increased 35.7% (from $689 to $934) (FEIS at 3–7; Affidavit of Edith Hsu–Chen, ¶ 17).
It is no secret that there is presently a city-wide rental vacancy rate of less than 3%, and the City continues to have enough of a supply shortage to warrant a “housing emergency” (Affidavit of Edith Hsu–Chen, ¶ 16).
The proposed zoning is the product of a three-year process. According to the papers, DCP's proposal was the result of advocacy of CB3 and the East Village Community Coalition, along with support of elective representatives of City Council Districts 1 and 2 (Exhibit 1, CPC Report C 080397(A) ZMM at 31). Other Civic groups joined in the advocating for the rezoning, and the DCP consulted with the New York City Department of Housing and Development (HPD) before finalizing the rezoning proposal ( id.).
On May 2, 2008, the DCP, the agency responsible for advising and assisting the Mayor, Borough Presidents, and the City Council with the physical planning and public improvement aspects of all matters related to the City, proposed zoning map and text amendments which collectively, are known as the East Village/Lower East Side Rezoning (the “Rezoning”)(see, Exhibit 1, Report C 080397A ZMM; Affidavit of Edith Hsu–Chen ¶¶ 8–9).
To better understand the Respondents' Rezoning Plan requires a more comprehensive, but brief, overview of the 1961 Zoning area, and a short introduction to concept of Contextual Zoning as well as a brief overview of the City's Inclusionary Housing Program.
A more comprehensive explanation of City zoning rules, regulations, and methodology for calculation is found within the papers submitted by the parties in this proceeding. The court is only including the most relevant of the information for both simplicity and brevity.
Prior to the rezoning, the vast majority of the 111 block area affected was zoned as R7–2, which allows a maximum floor ratio (“FAR”) of 3.44 for residential uses and 6.5 for community facilities (FEIS at 1–3, Figure 1–2; Affidavit of Edith Hsu–Chen, ¶ 14–16). The southwestern portion of the Rezoning Area was zoned as C6–1, which allows the same FAR for residential and community facilities as R7–2 areas, but also allows for commercial development at a maximum 6 FAR ( id.). As previously mentioned, both of these zoning districts lack limitations on street wall height and overall building height.
FAR is a means of determining a “total zoning floor” area permitted to be built on a zoning lot. Each zoning district has a FAR control, which, when multiplied by the lot area of the zoning lot, generates the maximum amount of floor area allowable in a building on the zoning lot. The higher the FAR, the greater the bulk allowed (Zoning Handbook 105–106; Affidavit of Edith Hsu–Chen, ¶ 14, Footnote 3).
The Rezoning uses contextual zoning districts to guide development to an appropriate scale and form that is more reflective of the existing buildings within a neighborhood (Respondent's Memorandum of Law p. 6; FEIS 1–3). Areas which had been zoned as R7–2 and C6–1 have been rezoned under the new plan to the following zoning classifications: R7A, R7B, R8A, R8B, C4–4A, C6–2A and C6–3A (FEIS 1–4; Affidavit of Edith Hsu–Chen, ¶ 29). The locations of these zoning areas are scattered throughout the 111 block area.
Respondents claim that the benefits of contextual zoning districts include more effective regulation of the height and Secretary is directed to prescribe procedures to aid in administering the statute. These procedures, set forth in Rev. Proc. 2013-34, 2013-43 I.R.B. 397, outline seven threshold conditions that must be satisfied for the Internal Revenue Service to grant relief under section 6015(f). Rev. Proc. 2013-34, sec. 4.01(7), 2013-43 I.R.B. at 399-400. We consider these factors in the light of the particular facts and circumstances, but we are not bound by them. See Molinet v. Commissioner, T.C. Memo. 2014-109.
Because of the straightforward nature of the record we need not address all the threshold conditions, circumstances, and factors listed. Instead we focus only on the seventh threshold condition, which requires that "[t]he income tax liability from which the requesting spouse seeks relief * * * [be] attributable (either in full or in part) to an item of the nonrequesting spouse or an underpayment resulting from the nonrequesting spouse's income" unless a specific exception applies.
The Commissioner may consider granting relief regardless of whether the underpayment is attributable to the requesting spouse if any of the following exceptions applies: (1) attribution is solely due to operation of community property law; (2) nominal ownership; (3) misappropriation of funds; (4) abuse; or (5) fraud committed by the nonrequesting spouse. See Rev. Proc. 2013-34, sec. 4.01(7). On these facts we need focus only on abuse. (As to nominal ownership, as explained above, we do not credit petitioner's disavowal of any ownership interest in the face of her 2008 return position and her failed memory.)
Rev. Proc. 2013-34, sec. 4.03(2)(c)(iv), 2013-43 I.R.B. at 402, states that "[a]buse comes in many forms and can include physical, psychological, sexual, or emotional abuse, including efforts to control, isolate, humiliate, and intimidate the requesting spouse, or to undermine the requesting spouse's ability to reason independently and be able to do what is required under the tax laws."
We take all facts and circumstances into account in determining the presence of abuse. Id. sec. 4.01. A requesting spouse must establish: (1) that she was the victim of abuse before the return was filed, and (2) that, as a result of that abuse, she was not able to challenge the treatment of any items on the return or was not able to question the payment of any balance due reported on the return, for fear of the nonrequesting spouse's retaliation. Id. sec. 4.01(7)(d).
On her Form 8857 petitioner indicated that she was a victim of spousal abuse or domestic violence during the 2007 tax year. Petitioner testified that in 2007 Mr. Butler threatened her with a firearm and that she reported this incident to the police.
The record also shows that on August 21, 2008, petitioner requested and was granted a temporary restraining order against Mr. Butler and that on September 25, 2008, the sheriff escorted Mr. Butler to retrieve his belongings from the house shared with petitioner.
The Court does not dispute the circumstances of petitioner's marriage; however, to support relief under section 6015(f), claims of abuse require substantiation or at least specificity with regard to the allegations. See, e.g., Deihl v. Commissioner, T.C. Memo. 2012-176 (holding that the taxpayer was not entitled to relief under section 6015(f) when her testimony was not credible and she failed to substantiate alleged abuse with a police or medical report), aff'd, 603 Fed. Appx. 527 (9th Cir. 2015). Petitioner did not link the 2007 threats or actions giving rise to the 2008 restraining order to the 2007 return, nor did she provide enough details to allow the Court to do so. Petitioner did not show that as a result of abuse she was not able to challenge the treatment of any items on the return for fear of Mr. Butler's retaliation. Instead of claiming that abuse affected her ability to challenge the treatment of items on the 2007 return, petitioner testified she did not recall filing the 2007 return because of poor health and believed she did not do so. More importantly, petitioner claimed tax losses of Azalea on her 2008 return filed in 2009, after the restraining order was in place against Mr. Butler. Therefore, petitioner has failed to meet her burden of proving that abuse affected her 2007 return position.
Because petitioner failed to meet the threshold requirements under Rev. Proc. 2013-34, 2013-43 I.R.B. 397, we need not address: (1) whether she is entitled to a streamlined determination of equitable relief under sec. 4.02 or (2) whether she is entitled to be considered for relief under the equitable factors in sec. 4.03. See id., 2013-43 I.R.B. at 400-403. --------
On the basis of our examination of the record before us and the parties' arguments at trial, we find petitioner is not entitled to relief under section 6015(b),(c), or (f) for 2007.
In reaching our holding, we have considered all arguments made and evidence offered, and, to the extent not mentioned above, we conclude they are moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered for respondent.
paragraph" id="pa36">
CEQR does not require review of a proposed action when it would not otherwise be required by SEQRA (
Markowitz v. Bloomberg, 2 Misc.3d 558, 567,
766 N.Y.S.2d 815 [Sup. Ct. Kings Co.2003] ).
Proposed projects which may have a significant effect on the surrounding environment must be reviewed under SEQRA (ECL § 8–0109[2]; Akpan, 75 N.Y.2d 561, 569, 555 N.Y.S.2d 16, 554 N.E.2d 53). Potential environmental concerns must be assessed and further evaluated in order to determine whether or not a significant environmental impact may result ( Matter of New York City Coalition to End Lead Poisoning, 100 N.Y.2d 337, 763 N.Y.S.2d 530, 794 N.E.2d 672). The requirements of SEQRA are substantive, and the lead agency undertaking the review, which here, is the CPC, is required to “act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects” (ECL § 8–0109[1]; See also, Akpan, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53; Matter of Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 417–418, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986] ). Compliance with SEQRA's obligations however, is governed by a rule of reason, as the extent to which particular environmental factors are to be considered varies in accordance with each proposal ( id.)
The result, is that the lead agency must conduct a thorough analysis in assessing the significance of a proposed action and whether that action may have a significant adverse impact on the environment ( Matter of New York City Coalition to End Lead Poisoning, 100 N.Y.2d 337, 763 N.Y.S.2d 530, 794 N.E.2d 672 [2003]; 6 NYCRR 617.7[b][3] ). Once complete, the lead agency must then present a written statement containing its reasoned elaboration with references to any applicable supporting documentation ( 6 NYCRR § 617.7 [b][4] ). The initial environmental analysis is then most often followed by an Environmental Impact Statement, and then, where necessary, as it was in the instant application, a FEIS. Judicial Authority
This is heralded as the initial environmental analysis by the lead agency. The initial analysis includes a study of “the same areas of environmental impact as would be contained in an EIS, including both the short-term and long-term effects as well as the primary and secondary effects of an action on the environment” ( Chinese Staff and Workers Association, 68 N.Y.2d 359, 364, 509 N.Y.S.2d 499, 502 N.E.2d 176).
The Rezoning was only approved after a three-year process which began in August of 2005 with a DCP meeting with community members. Meetings and information sessions were held in 2005 and 2006(Respondents' Memorandum of Law p. 10). A Positive Declaration and a Draft Scope of Work for the Draft Environmental Impact Statement were issued on May 25, 2007 (Respondents' Exhibits 6 and 7). In June of 2007, the public was invited to comment on the methodologies to be used in preparing the EIS (FEIS 27–1 to 27–45). A Draft EIS was completed in May of 2008 and subject to public hearings and modifications. CB3 approved the Draft EIS, with conditions expressed, on May 27, 2008 (CPC C 080397(A) ZMM at 20). In June of 2008, DCP filed a modified ULURP application which included an expanded IHP, extending the coverage to Chrystie Street. The modified proposal was referred out to CB3 and the Borough President on July 7, 2008, and adopted by the CPC (CPC C 080397(A) ZMM at 20). Again, with conditions expressed, the Manhattan Borough President recommended approval of the Rezoning on August 11, 2008. The CPC then held a joint public hearing on the DEIS and the applications for the Rezoning on August 13, 2008, at which forty-seven speakers testified in favor of the Rezoning, and twenty-four speakers, including petitioner CWA, testified in opposition (Affidavit of Edith Hsu–Chen, ¶ 43). The FEIS, consisting of 27 chapters, was completed on September 26, 2008 (see Respondents Exhibits), and was unanimously approved by the CPC on October 7, 2008, and by the City Council on November 19, 2008.
“A court's authority to examine a SEQRA review conducted by an agency that was required to do so is limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” ( Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164, 664 N.E.2d 1226 [1996] ). Thus, the singular question before this court is “whether the agency identified the relevant areas of environmental concern, took a hard look' at them and made a reasoned elaboration' of the basis for its determination” ( Matter of Jackson, 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429; Gernatt Asphalt Products, 87 N.Y.2d 668, 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226; Matter of New York City Coalition to End Lead Poisoning, 100 N.Y.2d 337, 348, 763 N.Y.S.2d 530, 794 N.E.2d 672). The court's role is not to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the reviewing agency ( Fisher v. Giuliani, 280 A.D.2d 13, 720 N.Y.S.2d 50 [1st Dept. 2001]; Neville v. Koch, 79 N.Y.2d 416, 583 N.Y.S.2d 802, 593 N.E.2d 256 [1992] ).
Petitioners' argument in support of invalidating the FEIS is largely based upon the claim that respondents failed to consider all of the socioeconomic impacts of the Rezoning, and in particular, the impact the Rezoning would have on individuals of varied ethnic and racial groups with respect to residential and business displacement. Petitioners' arguments are supported solely by a Hunter College study conducted on the Rezoning (Tom Angotti and Kate Ervin, Analysis of Draft Environmental Impact Statement, East Village/Lower East Side Rezoning [Hunter College Center for Community Planning and Development, August 2008] ) (the “Hunter College Study”), which heavily criticizes the FEIS for its claimed failure to analyze a multitude of areas, including the disparate socioeconomic effects on the rezoning on tenants in public housing and rent-stabilized housing (Petition Exhibit A, Affidavit of Dr. Tom Angotti). The Study also claims that the FEIS fails to analyze a reasonable worst case scenario, as required by CEQR ( id.).
The problem with this argument, setting aside the volatility of the current economic climate which is indiscriminately currently decimating businesses and displacing residents in this City, is that respondents' assessment of socioeconomic impacts in the FEIS followed the two-step approach set forth in the CEQR manual, and is supported with a reasoned elaboration' of the basis for its determinations.
Socioeconomic analyses within CEQR and SEQRA are guided by the CEQR Technical Manual, which sets forth a two-step approach to analyzing potential impacts. First, a preliminary assessment is conducted to learn about the effects of the proposed action in relation to existing conditions and future trends, in order to rule out the possibility of significant adverse impacts, or to determine a more detailed analysis of the issue is required (Affidavit of Eric Kober, ¶ 26). Then, if the preliminary assessment reveals the action's effects could be significant in the context of existing conditions and future trends, then a detailed analysis is conducted ( id. See generally CEQR Technical Manual 3B–2 to 3–B4).
Eric Kober is the Director of the Housing, Economic, and Infrastructure Planning Division at the New York City Department of City Planning.
The study is always comprised of a “primary” and a “secondary” area. The primary area encompasses the study site (Affidavit of Eric Kober, ¶ 28–30). The secondary area, which does not carry a mandatory radius, is the adjacent area likely to be affected by the action ( id.). With respect to the Rezoning, the primary area was the entire 111 block section of Manhattan. The secondary area extended 1/4 mile from the Rezoning Area. Contrary to petitioner's assertions, respondents chose 1/4 mile radius because the Rezoning does not seek to transform the East Village and the Lower East Side into a new neighborhood. To the contrary, as explained by respondents, any new development is scattered and limited relative to what already exists. (Affidavit of Eric Kober, ¶ 23–34).
Moreover, contrary to the claims advanced by petitioners, the study provides reasoned elaboration' of the basis for respondents' conclusion concerning its “Reasonable Worst Case Scenario” and projected development of affordable housing units calculations. Again, the figures used to calculate these numbers were based on CEQR Technical Manual methodologies and using known factors including current