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161040/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2019
Petitioners-Plaintiffs,
- against -
Respondents-Defendants.
------------------------------------------------------------------------X
Petitioners-plaintiffs, by their attorney, Ruskin Moscou Faltischek, P.C., as and for their
Nature of Proceeding
1. Based on the Mayor's plan entitled Turning the Tide on Homelessness in New
York City ("Plan"), the City is undertaking a program to build ninety (90) new homeless shelters
throughout the City to replace existing cluster housing for the homeless. However, instead of
shelters, the site selection has been delegated to private developers who give no consideration as
to whether a site is appropriate given the community where it is to be located, or whether it will
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raise a concern with surrounding communities because the site may be adjacent to public schools
"approve"
2. The Respondents-defendants then the site without any of reviews they
are required to undertake by law, such as under the New York State Environmental Quality
Review Act ("SEQRA") and New York City Fair Share Rules, where concerns regarding the
impact on community character, public services, traffic, etc., are required to be considered before
a decision is made to develop a site as a shelter. Instead, it is only after a site has been approved
that the required reviews are done, delegating the reviews to an afterthought and defeating the
entire purpose of the relevant statutes. This process was used to approve the selection of the
property located at 78-16 Cooper Avenue, Glendale, Queens, New York ("Premises") as a
shelter.
3. As fully set forth below, the Respondents-defendants have adopted the Plan which
sets forth the discretionary decision to discontinue the existing cluster housing for homeless
individuals and families, and replacing the cluster housing with community shelters. The Plan
was adopted without any review under SEQRA, with the Respondents-defendants not even
government decision that will displace more than 10,000 individuals from their current living
arrangements.
Profit entities to submit sites for the community shelters to be developed under the Plan. Then,
without undertaking even any site specific reviews required by law, the Respondents-defendants
"approve"
locations, such as the Premises, for the community shelters, and only then begin the
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reviews required by law, ignoring that the whole purpose of these reviews is to consider the
days'
a thirty notice that a shelter will be built at the Premises. This failure to undertake the
required reviews prior to deciding to locate a shelter at the Premises has resulted in the ill-
advised decision to place a homeless shelter at this location even though it is near schools, lacks
emergency services, and the area is underserved open space, healthcare facilities, public
days'
6. Accordingly, the thirty (30) notice that a shelter will be built at the Premises
should be vacated, and the development of a homeless shelter at the Premises should be enjoined
until the appropriate reviews required by law are completed. Further, this Court should declare
that the development of the Premises as a homeless shelter is part of the Plan, and the
development of the Premises as a homeless shelter without SEQRA review of the Plan is
Jurisdiction
Petitioners-plaintiffs'
7. This Court has jurisdiction over the claims pursuant to
Venue
8. Venue is proper in this County under C.P.L.R. §7804(b) and §506(b) because this
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Parties
A. Petitioners-Plaintiffs
Glendale, New York 11385, which is approximately 2,000 feet from the Premises.
76th
10. Petitioners-plaintiffs Debbie and Robert Kueber ("Kuebers") reside at 77-54
Street, Glendale, New York 11385, which is approximately 750 feet from the Premises.
Place, Glendale, New York 11385, which is approximately 2,000 feet from the Premises.
76th
12. Petitioner-plaintiff Walter E. Clayton, Jr. ("Clayton") resides at 68-60 Street,
Middle Village, New York 11379, which is approximately 1,000 feet from the Premises.
74th
13. Petitioner-plaintiff Richard Huber ("Huber") resides at 77-58 Street,
Glendale, New York 11385, which is 1,000 feet from the Premises.
Aubrey Avenue, Glendale, New York 11385, which is 750 feet from the Premises.
Central Avenue, Glendale, New York 11385, which is 750 feet from the Premises.
72nd
16. Petitioner-plaintiff Michael J. Papa ("Papa") resides at 71-41 Street,
Glendale, New York 11385, which is 1,000 feet from the Premises.
Glendale, New York 11385, which is approximately 1,000 feet from the Premises.
Glendale, New York 11385, which is approximately 1,200 feet from the Premises.
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located at 79-41 Cooper Avenue, Glendale, New York 11385, and is adjacent to the Premises.
Wenzels, Papa, Yodice, Catalano, and Triumph would all suffer specific particular harm by the
conversion of the Premises into a homeless facility without the proper goverñmêñtal reviews and
when the building under construction does not comply with the applicable building codes. As a
result of their close proximity to the Premises, the increase strain on open space, educational,
sewer, water, police, fire protection and other public facilities will directly impact these
petitioners; the neighborhood character of where petitioners reside and do business will be
effected; the excessive traffic in the immediate vicinity of the Premises will be exacerbated,
causing specific harm to the Petitioners. Further, the harm and impact on these petitioners is
different and/or greater than the impact on the general population of New York City.
incorporated civic association formed in 1928 whose members reside in the immediate vicinity
of the Premises.
incorporated civic association formed in 2005 whose members reside in the immediate vicinity
of the Premises.
civic association formed in 1942 whose members reside in the immediate vicinity of the
Premises.
association formed in 1926 whose members reside in the immediate vicinity of the Premises.
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organizations whose purpose is to promote the general welfare of the residents within their
geographic area, including protecting their membership from governmental actions which will
harm their communities. These organizations have members who are located in the immediate
geographical vicinity of the Premises, and who, like the individual petitioners, will suffer
specific and particular harm from the project, including a detrimental impact from the increased
demand for public services in the area, including open space, educational, sewer, water, parking
and traffic, which is different in form and intensity to the impact on the general population of the
27. Each of the Petitioners-plaintiffs has suffered specific particular harm by the
decision to develop the Premises as a homeless shelter without compliance with applicable laws.
The lack of environmental review, and the failure to comply with other applicable laws, will
deprive Petitioners-plaintiffs of the process required by law before a homeless shelter is built at
the Premises. This lack of review will result in the increase strain on open space, educational,
sewer, water, police, fire protection and other resources, and the change in the character of their
neighborhood, not being considered before a decision to place a shelter at the Premises is made,
directly impacting the Petitioners-plaintiffs. Further, as a result of their close proximity to the
Premises, the harm and impact on these Petitioners-plaintiffs is different and/or greater than the
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B. Respondents-Defendants
29. At all relevant times, respondent-defendant Bill Di Blasio has been the Mayor of
the City.
an agency within New York State, and oversees the New York City Department of Homeless
Services.
31. At all relevant times, respondent-defendant Steven Banks ("Banks") has been the
Commissioner of DSS.
32. The City, Bill Di Blasio, DSS and Banks are all a body or officer as defined by
C.P.L.R. §780(a).
A. The Plan
33. Mayor de Blasio has adopted the Plan and has begun to implement it, including
the decision to close cluster housing and replace them with community shelters, displacing over
34. The Plan states that the City will discontinue the use of cluster sites and
commercial hotel facilities and replace them with community shelters to be built and/or
expanded.
We will get out of all 360 cluster sites and commercial hotel
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Over the course of this plan, we will get out of every single one of
the 360 cluster apartment sites and commercial hotel facilities and
replace them with approximately 90 new shelters. We will also
renovate and expand the capacity of approximately 30 existing
shelters. On average we will be adding 60 beds to families with
children sites and 108 beds to single sites. This will shrink the
number of places homeless people are housed by about 50%,
* * *
The City will open approximately 20 new shelters annually for the
next five years to get to the goal of opening approximately 90 new
shelters. With our new shelters, residents will not have to move far
rolling basis over the next seven years. The City will open 12
37. Accordingly, pursuant to the Plan, the City will terminate all three hundred sixty
(360) cluster apartment sites and commercial hotel facilities. At the time the Plan was adopted,
ten thousand (10,000) homeless individuals resided in approximately three thousand (3,000)
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cluster apartments at these sites, and seventy-five hundred (7,500) New Yorkers occupied rooms
in these hotels. The total number of homeless in these facilities was almost a third of the people
38. The residents of the cluster apartments and commercial hotels will be moved to
thirty (30) expanded existing shelters and ninety (90) new shelters, with the priority of placing
new shelters in areas where the DHS does not currently have a facility. Twenty (20) new
shelters shall be opened annually. Plan, PP. x, 85. Also, existing shelters shall be enlarged. The
City has identified thirty (30) underutilized shelter sites that will be renovated by adding an
average of one hundred eight (108) beds in single adult shelters or sixty-two (62) units in family
comprehensive policy adopted at the discretion of the Mayor to address homelessness throughout
the City, and contains specific discretionary decisions on the quantity and quality of homeless
B. Premises
41. The Premises is currently a vacant former factory with a four story masonry
building. To the north and south of the Premises are one and two family residential properties,
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and immediately to the west of the Premises is a single family home. A map of the immediate
43. There are no multi-family apartment buildings in the immediate vicinity of the
Premises.
44. The Respondents-defendants have an on-going Request for Proposals ("RFP") for
the developrneni of homeless shelter by not-for-profit entities in accordance with the Plan.
As set forth on the web site for the Department of Homeless Services:
Open-Ended RFP
In order to meet its legal and moral obligation to provide shelter to
eligible New Yorkers in need, DHS maintains an open-ended
Request for Proposal process through which non-profit social
service providers submit proposes to augment capacity. Although
DHS does not target specific areas to open shelters, the agency
strives to keep families near their communities as much as
45. Pursuant to the RFP, the not-for-profits identify sites without undertaking any
"approve"
defendants, without undertaking any review, then the locations that will be developed
as a shelter.
46. Westhab, a not-for-profit, has submitted the Premises as a location for a homeless
shelter.
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47. Respondents-defendants approved the location and announced that the Premises
48. The Respondent-defendants then issued a thirty (30) day notice (Exhibit 4), which
provides:
Glendale, NY 11385
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indicate that the development of the Premise as a homeless shelter was contingent on anything.
51. Yet, there is no dispute that no SEQRA review was undertaken prior to the
adoption of the Plan, and no SEQRA or Fair Share review was done before the Premises was
53. Simultaneously with the issuance of a thirty day notice, the application was
Summary of Argument
A. SEQRA Violations
54. As fully set forth in the accompanying memorandum of law, SEQRA was adopted
to assure that environmental concerns are reviewed and addressed prior to a governmental body
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55. In the context of an urban setting, environmental concerns include the impact
upon schools, open space and parks, traffic, noise, the provision of goverñmêñtal services, and
56. Both the regulations implementing SEQRA, as well as case law interpreting the
statute, mandate that when an action is part of a comprehensive plan, the environmental impacts
of just one isolated action is not permitted, but the entire plan must be reviewed.
57. SEQRA requires a step by step process starting with the designation of a lead
agency, an initial hard look to determine if the proposed action may have environmental impacts,
and if it does, the preparation of an environmental impact statement before a decision is made as
to whether to proceed.
58. Here, apparently none of this has been done for the Plan of which the project at
the Premises is a part, and until SEQRA is complied with regards to the Plan the project should
be enjoined.
59. As to any contention that only the potential impacts of the project at the Premises
60. The development of a shelter at the Premises is clearly part of the actions to be
taken under the Plan. In fact, the notice that the shelter was going to be built clearly states that
the shelter is one of the community shelters being built to replace cluster housing. The Plan is a
massive undertaking, which will clearly impact the City and the area surrounding the Premises.
61. Accordingly, the project cannot be viewed in isolation, and until the Plan is
properly vetted under SEQRA, the project should not proceed. See discussion in accompanying
Memorandum of Law of Chinese Staff and Workers Ass 'n v. City of New York, 68 N.Y.2d 509
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62. In any case, a decision to proceed with the Project has been made without even a
site specific SEQRA review, and should be enjoined for this reason also.
defendants have made clear that the Premises is going to be a homeless shelter.
64. Further, any contention that a final decision has not been made would be
community shelter. Accordingly, the Respondents-defendants actions are ripe for judicial
review. See discussion in accompanying Memorandum of Law of Matter of Cor Route 5 Co.
LLC v. Village of Fayetteville, 147 A.D.3d 1432, 46 N.Y.S.3d 765 (4th Dep't 2017) and other
authorities.
65. And any attempt to correct this deficiency after the fact is clearly prohibited as a
Taxpayers Association, Inc. v. Town Board of the Town of Queensbury, 55 N.Y.2d 41, 447
66. Accordingly, the thirty day notice should be vacated and the development of the
67. In 1989 the City Charter ("Charter") was amended to include the Fair Share
Rules that now govern the location of "city facilities". Charter §§ 203, 204.
city needs that is located on real property owned or leased by the city or is operated by the city or
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69. The Fair Share Rules require that "citywide statement of needs concerning
facilities"
be submitted by the mayor to the city the council, borough presidents, borough boards
70. Following the passage of the Fair Share Rules, Appendix A to Title 62 of the
RCNY was added and governs the criteria for the location of City Facilities.
71. Article 3(a) of Appendix A to Title 62 of the RCNY includes within the definition
72. Strict scrutiny of the relevant RCNY guidelines is required with respect to the
accommodations"
73. Upon information and belief, persons that require "sleeping in
Facility"
a "City are more likely than other persons to require and make use of other City
services.
74. According to a February 2017 Council report entitled Doing Our Fair Share,
"beds-to-population"
Facilities the annually required index has not been completed by the City
75. Upon information and belief, in selecting the Premises as a homeless shelter for
the Defendants-respondents did not comply with the Fair Share Rules.
76. As set forth above; College Point hosts numerous governmental facilities.
77. Accordingly, before the Premises was selected for a community homeless shelter
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(a) preliminarily and pounanently enjoining this use of the real property located at
78-16 Cooper Avenue, Glendale, Queens, New York ("Premises") as a homeless shelter or to
provide other homeless services because a proper review under the New York State
Enviroñmêñtal Quality Review Act ("SEQRA") was not completed prior to a decision to develop
(b) vacating the notice that the shelter will the opened at the Premises until SEQRA
review is undertaken;
(c) declaring that the development of the Premises as a homeless shelter is part of the
plan adopted by Respondents-defendants for homeless services throughout the City of New York
and SEQRA review shall not be segmented by limiting the review to just the Premises;
(e) together with the costs and disbursements of this proceeding; and
(f) granting such other and further relief as the Court deems proper.
By:
E. Christopher Murray
Attorney for Petitioners-Plaintiffs
East Tower, 15th Floor
1425 RXR Plaza
(516) 663-6600
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ATTORNEY'S VERIFICATION
The undersigned, an attorney admitted to practice in the Courts of the State of New York,
states the following upon information and belief, and under penalty of perjury pursuant to
CPLR §2106:
plaintiffs, and as such, I am fully familiar with all the facts and circumstances herein.
2. I have read the foregoing Verified Petition and Complaint and know the contents
thereof, that same is true to my knowledge, except as to those matters therein stated to be alleged
3. Affirmant further states that the sources of his knowledge and information are
reports and investigations, conversations, writings, transcripts, memorandum and other data
concerning the subject matter of the proceeding, including the fact that affirmant has represented
E. CHRISTOPHER MURRAY
881006
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