In the Matter of the Application of
LANDMARK WEST!; ARLENE SIMON, individually and in her capacity as President of LANDMARK WEST!; the HISTORIC DISTRICTS COUNCIL; DOCOMOMO US/New York Tri-State; CHRISTOPHER LONDON; SUE MELLINS; SOPHIA DEBOER and JULIET HARTFORD,

Petitioners,

For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,

-against-
AMANDA M. BURDEN, Chair of the New York City Planning Commission; the New York City Planning Commission; ROBERT R. KULIKOWSKI, Assistant to the Mayor for the Deputy Mayor for Economic Development and Rebuilding; ANDREW ALPER, President of the New York City Economic Development Corporation; the New York City Economic Development Corporation; MARTHA K. HIRST, Commissioner of the New York City Department of Citywide Administrative Services; the New York City Department of Citywide Administrative Services; the MUSEUM OF ARTS AND DESIGN; and HOLLY HOTCHNER, Director of the Museum of Arts and Design,

Respondents.

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Index No.

VERIFIED PETITION

Petitioners, by their attorney, Antonia Levine Bryson, allege:

Preliminary Statement

1. This proceeding concerns the fate of Two Columbus Circle, a unique and innovative building designed by one of the twentieth century’s major architects. This freestanding, human scale building, only nine stories high, frames the southern edge of Columbus Circle, and its distinctive appearance has become a familiar feature of the Manhattan landscape. That New York City is on the verge of losing this signature image has precipitated this claim.

2. For years, the preservation community and concerned individuals have persistently, continuously and unsuccessfully beseeched the New York City Landmarks Preservation Commission (LPC) to hold a public hearing to discuss whether the building merits designation as a New York City landmark. Petitioners contend that the LPC’s reluctance to host a public discussion of this undeniably significant building is related to New York City’s efforts, during those same years, to gain control of and sell the building, with maximum economic return. The City’s economic objectives infected the process for considering the potential landmark status of the building and subsequently tainted the environmental analysis that it performed in order to gain legal authorization for the sale.

3. The City intends to transfer the building to the New York City Economic Development Corporation (EDC), so that EDC may sell it to the Museum of Arts and Design (Museum), which has plans to destroy the building as it currently exists. The State and City environmental review laws required the City to assess whether the destruction of the existing building will impair the City’s artistic heritage and rob it of an important historic resource, prior to making any transfer. The City’s assessment of these factors was plainly deficient. It failed to follow the proper rules for review, allowing it to artificially reduce the stature of the building and dismiss its historical, architectural and cultural significance.

4. This is a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR), the State Environmental Quality Review Act (SEQRA), Environmental Conservation Law (ECL) §§ 8-0101 et seq., and the City Environmental Quality Review (CEQR), Executive Order No. 91 of 1977, as amended. Petitioners seek a judgment annulling, vacating and setting aside the determination of respondents the New York City Planning Commission (CPC), Robert R. Kulikowski, Assistant to the Mayor, and the New York City Department of Citywide Administrative Services (collectively, “City Respondents”) to abandon this important piece of New York City cultural and architectural history without adequately considering the consequences of its loss. Their approval of the disposition of this City-owned structure to EDC and ultimately to the Museum was therefore arbitrary, capricious, and not in accordance with law.

5. Petitioners seek an order: (1) nullifying and setting aside the negative declaration and the determinations of the City Planning Commission, the Department of Citywide Administrative Services, and Robert R. Kulikowski, Assistant to the Mayor, based upon the negative declaration, to approve the disposition of Two Columbus Circle to EDC, for ultimate sale to the Museum; (2) declaring that City respondents’ disposition of Two Columbus Circle without first preparing an environmental impact statement (EIS) is unlawful; and (3) restraining City respondents from disposing of Two Columbus Circle until City respondents have (i) prepared an EIS which fully analyzes the impacts of destroying or altering the existing building at Two Columbus Circle, and develops appropriate mitigation should there be significant adverse impacts and (ii) issued appropriate findings under SEQRA and CEQR based upon the EIS.

Jurisdiction and Venue

6. This Court has jurisdiction pursuant to Article 78 of the CPLR to review a final action by the bodies or officers responsible for authorizing the disposition of Two Columbus Circle.

7. Venue is proper in New York County pursuant to § 506(b) because, among other reasons, New York County is where the material events at issue took place and are taking place, and is where the City respondents have their principal offices.

Parties

8. Petitioner Arlene Simon is a resident of 27 West 67th Street. She moved there in 1960, a few years before the completion of Two Columbus Circle, and has lived with the notable presence of this building for most of her adult life. She considers the building one of the treasures of her neighborhood and depends upon it to provide a sense of well-being in her daily life. Looking south from the nearby corner, at 67th Street and Central Park West, she sees the building at Two Columbus Circle framing her view.

9. Ms. Simon has long been an activist in her community, and has focused on historic preservation for the last 20 years. She was the moving force behind the listing of West 67th Street on the National Register of Historic Places, and was instrumental in organizing the community to advocate for landmarking the Second Church of Christ Scientist on 68th Street and Central Park West. She is the founder and President of Landmark West! (LW), whose offices are at 45 West 67th Street.

10. LW is a nonprofit community organization dedicated to preserving the best of the Upper West Side’s architectural heritage from 59th to 110th Streets between Central Park West and Riverside Drive, in Manhattan. Since 1985 it has worked to achieve landmark status for individual buildings and historic districts, and to protect them against insensitive change and demolition. It has been advocating for the preservation of Two Columbus Circle for more than five years.

11. Petitioner Historic Districts Council (HDC) is the citywide advocate for New York City’s landmarked properties and for properties worthy of preservation. HDC is a nonprofit organization incorporated under the laws of the State of New York dedicated to preserving the integrity of the New York City Landmarks Law and to furthering the ethic of preservation. Formed in 1971, HDC pursues its mission through community outreach, educational programs and direct advocacy. It has been advocating for the preservation of Two Columbus Circle for at least four years.

12. HDC has a number of people who associated with it who live and/or work in the vicinity of Two Columbus Circle. For example, Joseph S. Rosenberg is on the Board of Advisors of HDC and is a past President and contributing member. He has lived at the Osborne Apartments at 203 West 57th Street for over ten years; it is also his place of business. He uses the subway and other services at Columbus Circle frequently and considers Two Columbus Circle to be an important part of his daily life and sense of neighborhood. Another is David Freudenthal. He is the Treasurer of HDC and has served on its Board of Directors for six years. He has resided at 240 Central Park South, directly across the street from Two Columbus Circle, for eleven years.

13. Petitioner Christopher London, Ph.D. has resided on the Upper West Side since 1978 and currently lives and works on Central Park West. He is an architectural historian, is the author of three books on architecture and design, and is keenly attuned to the architectural character of his neighborhood. He has been active in various preservation efforts in New York City, and is a board member of Defenders of the Historic Upper East Side. He see Two Columbus Circle framing his view as he walks out the front door of his residence, and when he visits Lincoln Center, which he does frequently, since he is also the President of Naumburg Orchestral Concerts, Inc., a nonprofit organization that sponsors free public concerts in Central and Damrosch Parks.

14. Petitioner London also serves on the Board of petitioner HDC, where he is Chair of the Public Review Committee. In that capacity, he reviews and assesses on behalf of HDC proposed changes to New York City’s landmarked properties and submits comments to LPC during its formal review process.

15. Petitioner DOCOMOMO US/New York Tri-State is a chapter of DOCOMOMO US, a national working party of DOCOMOMO, an international organization founded in the Netherlands in 1990. DOCOMOMO stands for “DOcumentation and COnservation of buildings, sites and neighborhoods of the MOdern MOvement.” DOCOMOMO US/New York Tri-State was organized in 1995 and works to identify and document important modern buildings in the New York region and advocate for their preservation. DOCOMOMO US/New York Tri-State has been advocating for the preservation of Two Columbus Circle for at least four years.

16. Petitioner Sue Mellins has lived at 2 West 67th Street, at the corner of Central Park West, for 40 years. She has history of activism in preservation and community issues on the Upper West Side and is a longtime contributor to LW. Central Park West functions as her front yard and Two Columbus Circle is a daily presence in her life. Its loss would compromise her quality of life.

17. Petitioner Sophia deBoer has lived at 25 Central Park West, between 62nd and 63rd Streets, for 24 years. From her apartment on the tenth floor, she has a view of Two Columbus Circle. The building is a vital presence in her daily life, and its loss would have a severe and negative impact on her sense of place and neighborhood identity.

18. Petitioner deBoer has been active in community preservation issues since 1997, when she joined her neighbors in an effort to prevent the construction of an overscaled tower over the 63rd Street YMCA. She feels strongly about the importance of good architecture and its powerful ability to enrich, or in its absence deprive, the lives of the city’s inhabitants.

19. Petitioner Juliet Hartford is the daughter of Huntington Hartford, the art collector who commissioned the construction of Two Columbus Circle to house his collection of nineteenth and twentieth century art. She is a model and artist who has lived in New York City her entire life. She considers Two Columbus Circle to be part of her family legacy, and has been a longtime advocate for its preservation.

20. The building at Two Columbus Circle is a monument to her father’s passionate interest in art and architecture, and to his philosophy of civic engagement. To petitioner Hartford it provides a tangible connection to her father and her family heritage.

21. In 1999, petitioner Hartford gathered numerous celebrity signatures on a letter to then Mayor Giuliani urging that the building be preserved. In the same year she spearheaded the production of a television documentary about her family and its connection to the creation of this special building.

22. Respondent Robert R. Kulikowski is Assistant to the Mayor of the City of New York for the Deputy Mayor for Economic Development and Rebuilding. The Office of the Deputy Mayor for Economic Development and Rebuilding served as lead agency under SEQRA and CEQR for the environmental review of the disposition of Two Columbus Circle and determined that the disposition did not have a significant effect on the environment. Mr. Kulikowski signed the Negative Declaration on behalf of the Deputy Mayor for Economic Development and Rebuilding.

23. Respondent Andrew Alper is President of EDC. Respondent EDC is a local development corporation established pursuant to §1411 of the Not-for-Profit Corporation Law that acts on behalf of the City for real estate development and related financial assistance. EDC chose the Museum as the entity to which the City of New York will dispose of the building at Two Columbus Circle. EDC will obtain possession of the building from the Department of Citywide Administrative Services once the Uniform Land Use Review Procedure is complete, and intends to dispose of the building to the Museum.

24. Respondent Martha K. Hirst is Commissioner of the Department of Citywide Administrative Services. Respondent Department of Citywide Administrative Services is the agency that currently has possession of the building, and that commenced the Uniform Land Use Review Procedure to gain authorization for its disposition to EDC.

25. Respondent Amanda M. Burden is the Chair of the CPC. Pursuant to §197-c (10) of the New York City Charter, respondent CPC is required to review applications by any person or agency for the sale, lease, exchange or other disposition of the real property of the City. Respondent CPC reviewed and approved the disposition of Two Columbus Circle to EDC.

26. Respondent Museum of Arts and Design is a nonprofit institution engaged in the study and exhibition of contemporary craft and decorative arts of the 20th century. The Museum has been selected by EDC as successful applicant for the building at Two Columbus Circle, and intends to relocate all of its activities and functions to that site. Prior to relocation, it will fully renovate the exterior of the building and replace the existing architecture with a new design by a new architect.

27. Respondent Holly Hotchner is the Director of the Museum of Arts and Design.

Background

Two Columbus Circle

28. The building at Two Columbus Circle was commissioned by Huntington Hartford, an heir to the A&P supermarket fortune, to house his collection of representational art and display it to the public. It is a masterwork by Edward Durell Stone, a significant and prolific American architect. Affidavit of Robert A.M. Stern, FAIA, sworn to October 29, 2003, ¶ 4 (“Stern Aff.”) Author and critic Tom Wolfe has called it “one of the most important buildings in the history of twentieth century architecture.” Exhibit 19 Stone’s work is covered in almost every textbook or reference source on modern architecture in the United States, and in hundreds of reviews and articles. Stone was a leader of the architectural profession, and Two Columbus Circle came at crucial time in his career, when he was actively challenging the prevailing Modernism. Stern Aff. ¶ 4. The building marks a significant point in architectural history because it was among the first to challenge then-existing theories of design, and proved prescient in its rethinking of architectural principles. Stern Aff. ¶ 10

29. The building’s design was a radical departure from that Modernist style, which favored sleek outlines and utilitarian materials such as glass and steel, and disfavored ornamentation. Two Columbus Circle has a marble façade and an open grillwork base with colored granite inserts. The body of the building has no windows, as is customary for museums, but its corners are punctuated by portholes, which both let in natural light and serve as decorative elements. The building sits on a small site at the edge of Columbus Circle, and its curving façade reflects and enhances the geometry of the circle. Exhibit 1.

30. In addition to its architectural distinction, Two Columbus Circle has become an icon in the New York City landscape. Its prominent site at the southern end of Columbus Circle makes it visible from a wide spectrum of locations. Given its unusual form, human scale at nine stories high, and stand-alone quality, it gives character and a sense of place to this central neighborhood.

History of Ownership

31. The museum founded by Huntington Hartford at Two Columbus Circle lasted only a few years, and the building eventually became the property of Gulf & Western Corporation, which at the time owned the building to the north of Columbus Circle that is currently the Trump International Hotel. In 1980, the Gulf & Western Foundation donated Two Columbus Circle to the City of New York, on the condition that the City use the building solely as “its principal public facility for visitors’ services and cultural affairs and for no other purpose.” Exhibit 2. The agreement between Gulf & Western Foundation and the City explicitly provided that if the City did not use the building as specified, “all right, title and interest acquired by the City pursuant to this deed shall terminate and all interest in the Premises shall revert to the Foundation, its successors and assigns.” Ibid. Upon information and belief, the City did use the building as its principal facility for visitors’ services and cultural affairs from the 1980s through approximately 1997.

32. Upon information and belief, sometime in 1994, John Dyson, then Deputy Mayor of the City of New York, decided that Two Columbus Circle should be sold to a private developer for redevelopment. In order to gain complete control of the property so that he could effectuate such a sale, Deputy Mayor Dyson had EDC purchase the reverter interest in the property from Viacom Corporation, the successor in interest to Gulf & Western Foundation, for ten dollars ($10). That transaction was part of a complex corporate retention deal between the City and Viacom, executed in October 1994. Exhibits 3 and 4.

33. By March of 1996, Deputy Mayor Dyson informed the heads of the Department of Cultural Affairs and the New York City Convention and Visitors Bureau that EDC intended to issue a Request for Proposals (RFP) to purchase and redevelop Two Columbus Circle, and that EDC anticipated releasing the RFP “in the near future.” Exhibit 5.

34. Upon information and belief, EDC issued at least one RFP for sale of Two Columbus Circle during the latter 1990s, but failed to designate any person or entity as the successful applicant. In March 2000, EDC issued a new RFP, pursuant to which the Museum of Art & Design was eventually designated as the successful applicant. Exhibit 6.

35. The 2000 RFP sought to maximize the economic benefits to the City from the sale of the property. It stated

The goal of this project is to create a redevelopment opportunity that responds to today’s real estate market. Proposals may either reuse the existing building or include construction of a new building, subject to the Design Guidelines herein, and in accordance with the New York City Zoning Resolution and any other regulations affecting the Site. The project must be compatible with the community while maximizing the economic benefits to the City.
Ex. 6, p. 3.

36. Upon information and belief, some time in the latter part of 2002 or early part of 2003, EDC selected the Museum as the successful applicant for the building, and began the work necessary to effectuate the sale of the building to the Museum.

History of Efforts To Designate Two Columbus Circle As A Landmark

37. In 1994, at approximately the same time Deputy Mayor Dyson conceived his plan to redevelop the property and reap the benefits, Two Columbus Circle became thirty years old. As a result, it met one of the criteria for designation as a New York City Landmark. The New York City Landmarks Law, NYC Administrative Code §§25-301 et seq. (Landmarks Law), defines a landmark as

Any improvement [building, structure, place, work of art, and/or object], any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.
Landmarks Law §25-302(n); see also Exhibit 7, CEQR Technical Manual, Section F, p. 3F-5. From that time to the present day, there has been great interest in assessing whether Two Columbus Circle deserves designation as a City landmark. Over the ensuing years, petitioners and other City, State and national groups dedicated to historic preservation, as well as interested individuals, have written to and lobbied the Landmark Preservation Commission (LPC) in pursuit of a LPC hearing at which the worthiness of the building as a landmark would be discussed. The Landmarks Law provides that the LPC must hold a hearing prior to designating a landmark. Landmarks Law § 25-303b.

38. Over those years, the LPC has consistently refused to hold such a hearing. It maintains that its research staff and Designation Committee did review the building internally in 1996, and declined to recommend to the full Commission that a hearing be held. It has never disclosed what happened at that review, despite requests to do so, and has refused all entreaties to reconsider, despite its power to do so.

39. In early 2000, petitioners and others were led to believe that EDC was about to select an entity to receive the building in response to the RFP they had issued in the late 1990s (the RFP that preceded that which resulted in the selection of the Museum). This prompted a rally in support of holding a public hearing at LPC on the building, and follow-up letters to the LPC. Exhibit 8.

40. An April 17, 2000 letter from the New York Landmarks Conservancy to the LPC specifically urged reconsideration, and noted the failure of process inherent in the LPC’s refusal to do so.

The fate of this building has sparked widespread public interest in landmark designation on the part of many who were previously unfamiliar with the process. It is difficult to explain to them that a decision made years ago, in committee attended only by a few Commissioners and staff, is the final word on the fate of this prominent structure…The Landmarks Commission has an otherwise excellent record…but the designation committee process is an exception. People simply find it unfair and unacceptable that worthy buildings can be demolished without any opportunity for the public to be heard and without any action on the part of the full Commission.
Exhibit 9.

41. In 2001, pursuant to request from LW and others, City Council held its own hearing, calling upon LPC to hold a hearing on the building, among other things. There was no response from the LPC to this effort.

42. Throughout 2002, the requests to LPC continued, again prompted by the uncertain status of the building due to the new, as yet unconsummated RFP. Those requests continued once the selection of the Museum was announced, since there was no indication that the Museum would preserve the building. Exhibit 10. LPC held steadfast in its refusal to reconsider the 1996 review of its Designation Committee. Exhibit 11.

43. Preservation groups and interested individuals also attempted to have the building listed on the State and National Registers of Historic Places. In June 2000, petitioner HDC wrote to Bernadette Castro, Commissioner of the New York State Office of Parks, Recreation and Historic Places, and the official responsible in the first instance for nominating sites to the Registers, and urged her to place Two Columbus Circle on the Registers. HDC reiterated its request in letters dated December 2000 and September 2002. Exhibit 12.

44. On January 6, 2003, Commissioner Castro responded to these requests. She neither declared the building eligible nor declined to declare it eligible. Rather, she wrote that she “preferred” not to issue a “formal” declaration of eligibility “at this time,” but wished to work with the new owners (the Museum) to “try to affect (sic) a satisfactory outcome.” Exhibit 13.

The Environmental Review

45. The transfer of Two Columbus Circle from the Department of Citywide Administrative Services to EDC required compliance with SEQRA and CEQR. Under the City’s CEQR procedures, the first steps in the process of environmental review are the selection of a “lead agency” and the preparation of an Environmental Assessment Statement (EAS). 62 RCNY § 5-03; CEQR § 6-02(g) The Office of the Deputy Mayor for Economic Development and Rebuilding was selected as the lead agency (although such selection appears to be contrary to 62 RCNY § 5-03). The EAS for the transfer of Two Columbus Circle was prepared for EDC by a consultant, Philip Habib & Associates. Exhibit 14 (The EAS is composed of the EAS itself, a 7-page document, five attachments and an Appendix. The attachments are titled: Project Description, Attachment A; Analyses, Attachment B; Historic Resources, Attachment C; Urban Design & Visual Resources, Attachment D; and Transit & Pedestrians, Attachment E. All except Attachment E are included in Exhibit 14. Unfortunately, the numbering scheme in the different Attachments is not consistent).

46. The lead agency was required to determine whether the proposed transfer of the building for ultimate sale to the Museum had the potential for significant adverse effects on the environment. CEQR § 6-07(a) If there were such a potential, the lead agency was required to prepare an EIS. CEQR § 6-07(b)(3) The lead agency uses the EAS to assist in the determination of whether there is a potential for significant adverse effects. CEQR § 6-07(a)(1)

47. The EAS describes the Museum’s plan for “renovating” the building. Ex. 14, p. 1. The Museum will “remove the existing white marble exterior shell of the building and re-sheath the exterior façade. It would also enclose the building’s open ground floor arcade by extending the building’s first floor to the building’s footprint and add new window openings to all four sides of the building.” Ex. 14, p. 4. The ground floor arcade would be enclosed with glass walls. Ex. 14, Attachment B, p. 7. In other words, the Museum will completely change the exterior look of the building so that it is no longer the building that was designed by Edward Durell Stone.

48. Indeed, the Museum has hired an architect, Brad Cloepfil, of Allied Works Architecture, who has designed the new look of the building, with the intent of associating that new look with the new presence of the Museum at the building. The Museum has announced that the total makeover of the building will cost $50 million, and that it will undertake a fundraising campaign to secure the necessary dollars.

49. Pursuant to SEQRA and CEQR, an assessment of an action’s potential to have a significant adverse effect on the environment includes assessing its effect upon historic resources. Among the criteria for making a determination of significance is whether the proposed action will impair the “character or quality of important historical, archeological, architectural or aesthetic resources (including the demolition or alteration of a structure which is eligible for inclusion in an official inventory of such resources).” CEQR §6-06(a)(5); 6 NYCRR §617.7(c)(1)(v). Notably, the criteria encompass “important” historic resources; they are not limited to historic resources that have been previously granted some kind of official or protected status. If a potential for significant adverse impacts to an important historical or architectural resource exists, City respondents are required to issue a positive declaration and prepare an EIS.

50. The CEQR Technical Manual (Manual) provides guidance for City agencies in the procedures and substance of the CEQR process. Ex. 7, p. i. The Manual contains a chapter on the technical analyses used to identify significant adverse impacts. Ibid. That chapter includes a section on the proper analysis of historic resources. According to the Manual, historic resources include buildings that are designated New York City Landmarks or are listed on the State and/or National Register of Historic Places, as well as “properties not identified by one of the programs listed above, but that meet their eligibility requirements.” Ex. 7, p. 3F-1. Further, the Manual advises “The passage of time or changing perceptions of significance may justify reevaluation of properties that were previously determined ineligible for the Register or for designation as City Landmarks.” Ex. 7, p. 3F-11.

51. In light of the law and guidance, the EAS does not properly analyze whether the Museum’s plan for re-creating the building has the potential to significantly affect an important historical and architectural resource. Further, it mischaracterizes the facts in order to support its result. Accordingly, it decides, practically without discussion, that destroying Two Columbus Circle as it currently exists has no potential to impair an important historic resource.

52. The EAS notes correctly that the building is not a New York City Landmark. It does not, however, then discuss whether the building meets eligibility criteria for designation as a landmark. Instead, it relies on the action of the LPC Designation Committee in declining to recommend the building for designation in 1996, which it implicitly finds was tantamount to a determination of non-eligibility. However, there is nothing in the Landmarks Law that prohibits reconsideration of the building for designation, and there has never been a public hearing to consider whether designation is appropriate. NYC Landmarks Law §25-303b. The building clearly meets the eligibility criteria as set forth in the Landmarks Law, and the EAS should have undertaken an analysis of the potential impacts of its demise.

53. Indeed, earlier drafts of the EAS correctly concluded that the building is eligible for LPC designation. In versions of the EAS dated October ’02 and January ’03, the phrase “it is eligible for New York City Landmarks Preservation Commission’s designation” appears at pages B-6 and C-9, respectively (emphasis supplied). Exhibit 15. Not only has this phrase been eliminated from the final version, Ex. 14, pp. 7, C-10, but the EAS now includes the statement that the building is not eligible for designation, an extraordinary assertion that is not further explained, and that is based upon a one-page form from the LPC, dated 1/24/03, presumably executed subsequent to the revision of the draft. Ex. 14, Attachment B, p. 7 and Appendix A. Curiously, Attachment C to the EAS, which contains a more complete discussion of the potential for impacts on historic resources than the earlier text, does not indicate that the building is not eligible for designation, only noting that the LPC’s Designation Committee declined to recommend the building to the full Commission for consideration. Ex. 14, p. C-10.

54. The EAS also mischaracterizes the state of affairs with respect to the eligibility of the building for listing on the State and/or National Register of Historic Places. It states flatly that the building is not eligible for such listing. Ex. 14, pp. 6-7, C-10. That is not correct.

55. Although properties typically must be at least 50 years old to be eligible for listing, younger properties that are of exceptional importance to a community, state, region or the nation may still be eligible. Ex. 7, p. 3F-4. The 50-year criterion is merely guidance. Petitioner HDC has sought, since at least the year 2000, to have the appropriate State agency, the New York State Office of Parks, Recreation and Historic Preservation, place Two Columbus Circle on the State and National Registers. Ex. 12. By letter dated January 6, 2003 (to LW), the State Commissioner responded to the request for listing by deferring an eligibility determination at this time. She did not make a determination that the building is not eligible for listing. Ex. 13.

56. The eligibility criteria for listing a property on the National and/or State Register are multi-faceted. Ex. 7, pp. 3F-2 to 3F-4. Generally, a property must represent a significant part of the history, architecture or culture of an area. It will embody distinctive characteristics of a period, or represent the work of a master, and maintain its special setting and location. In light of these criteria and the status of the requests to list the property, the EAS should have undertaken an analysis of the impacts of the disposition of the building on this important historic resource.

57. To the contrary, the EAS contains no discussion of what the loss of this building may mean to the community surrounding it, the public at large, the City of New York, the historic preservation community, or the state and nation. While the EAS states

As the building at Two Columbus Circle is such an unusual structure that occupies a critical, highly visible location in Midtown Manhattan, this attachment examines the potential for the proposed project to adversely affect significant architectural features and cultural associations of this structure
it does no such thing. Ex. 14, p. C-2. After reciting the history of the building and noting that it was (1) designed by “one of America’s most important and admired” architects; (2) is an innovative use of space; (3) has its own sense of place; (4) has “endured a significant amount of public scrutiny, praise, and criticism”; and (5) “is a unique, ornamental structure that attempts to synthesize historic and decorative motifs and materials with a modern structural form,” the EAS simply concludes that the destruction of Two Columbus Circle will cause no impacts because the building is not a landmark or on the State or National Register. Ex. 14, pp. C-10, 11.

58. On March 26, 2003, respondent Kulikowski, on behalf of the Office of the Deputy Mayor for Economic Development and Rebuilding, issued a Negative Declaration, declaring that the proposed disposition would not have a significant adverse effect on the environment. Exhibit 16. The declaration was based upon the information contained in the EAS, and states that it was made pursuant to 6 NYCRR Part 617.7 (sic). In the section headed “Reasons Supporting this Determination,” the declaration sets forth why the disposition will have no adverse effects on land use, zoning, urban design/visual resources, traffic, transit and pedestrians. There is no mention of any effect on historic resources.

The Uniform Land Use Review Procedure

59. Upon information and belief, with the Negative Declaration complete City respondents could commence the Uniform Land Use Review Procedure (ULURP), New York City Charter §197-c, which is required prior to any disposition of City-owned property. Under ULURP, it is the CPC that has the authority to approve or disapprove the disposition, with the advice and counsel of the affected community board and the Borough President. On March 31, 2003, the ULURP application, which included the Negative Declaration, was certified as complete, and was referred to the affected community board and the Borough President, in accordance with ULURP rules. On May 8, 2003, Community Board Five voted 18 in favor, 8 opposed and 1 abstention to approve the disposition. The Borough President also approved the disposition.

60. The CPC held a hearing on the ULURP application on June 18, 2003. There were seven speakers in favor of the application and twenty-four speakers in opposition. Exhibit 17.

61. Petitioners LW and HDC testified in opposition to the application. Primarily, petitioners appealed to the CPC to call upon the LPC to hold a hearing for the purpose of considering whether to designate the building as a landmark, prior to a final determination on the application for disposition of the property. Exhibit 18 It is the deeply held conviction of petitioners that this controversial, culturally and historically prominent building has not had its “day in court” and has not received fair treatment from the LPC. Their convictions were echoed by others, including the Municipal Art Society, the Preservation League of New York State, the New York Landmarks Conservancy, as well as individuals, including architects, planners, architectural and urban historians, members of the Columbus Circle community, and the public at large. Inasmuch as the determination of the CPC would allow the Museum to gain control of the building (with one caveat) and begin its announced plan to rip off the façade, this moment represented the last possible time for such a hearing to be scheduled.

62. Indeed, the looming deadline for the building’s execution apparently prompted Tom Wolfe, a well-known writer on many cultural topics, including architecture, to issue his own plea for saving the building that was prominently featured in The New York Times. Exhibit 19.

63. The imminent loss of the building, and an evolving understanding of the building’s significance in the history of twentieth century architecture in America, also provoked a new flurry of requests to the LPC. Exhibit 20. For example, the Municipal Art Society of New York, a leading civic organization that was instrumental in the preservation of Grand Central Station, reiterated its many earlier requests to the Commission for a public hearing on the status of the building, and indicated that its own Preservation Committee had reevaluated the building and was of the opinion that it should be designated a landmark.

The complex issues surrounding 2 Columbus Circle are not just about whether one likes or admires the building’s design. More relevant to the discussion is what the building means to New York City…even people who dislike the building are realizing that it represents a significant moment in the history of Modernism and the styles that followed it.
Exhibit 20.

64. Similarly, the National Trust for Historic Preservation, the nation’s major organization dedicated to the preservation of our national heritage, wrote to respondent Burden that

To transfer a potential landmark building to a private owner, without protections or restrictions, could have very unfortunate consequences…the fabric of our culture is composed of many elements from many time periods, and each element contributes to our understanding of our country’s growth and development. To lose the façade of 2 Columbus Circle to inappropriate development would be unfortunate for the City of New York as well as admirers of architectural innovation nationwide.
Exhibit 20.

65. At the CPC hearing, petitioners also addressed the defects in the EAS analysis of the impact of the disposition on the historic resource represented by the building.

66. On July 2, 2003, the CPC issued its report approving the disposition of Two Columbus Circle to EDC. Ex. 17.

67. Upon information and belief, pursuant to §384(b)(4) of the New York City Charter, the disposition of Two Columbus Circle to EDC requires the approval of the Manhattan Borough Board. Upon information and belief, such approval has not yet taken place.

Legal Requirements

68. SEQRA and CEQR provide that “no agency involved in an action shall carry out, fund, or approve the action until it has complied with the provisions” of those laws. 6 NYCRR §617.3(a); CEQR §6-01.

69. SEQRA and CEQR require that an agency, before taking an action, take a “hard look” at the potential effects upon the environment of any such action. 6 NYCRR §617.2(b). SEQRA and CEQR define “environment” to mean the conditions that will be affected by a proposed action, including objects of historic or aesthetic significance. ECL §8-0105(6); CEQR §6-02(f). An action may have a significant adverse impact on the environment if it will impair the character or quality of important historical, archeological, architectural or aesthetic resources. 6 NYCRR §617.7(c)(1)(v); CEQR §6-06(a)(5).

70. Prior to approving the disposition of Two Columbus Circle to EDC for sale to the Museum, respondents CPC, DCAS, and Kulikowski were required to thoroughly analyze the relevant areas of environmental concern to determine if the action had the potential for significant adverse impacts on the environment, and set forth their determination of significance in written form containing a reasoned elaboration of the basis for the determination. 6 NYCRR §617.7(b) The Negative Declaration did not thoroughly analyze the relevant area of environmental concern and did not contain a reasoned elaboration of the basis for the determination.

71. SEQRA and CEQR require the preparation of an EIS for any action that may have a significant effect on the environment (emphasis supplied). ECL §8-0109(2); 6 NYCRR §617.7(a); CEQR §6-07(b)(3). The disposition of Two Columbus Circle to EDC for sale to the Museum may have a significant effect on the environment and therefore required the preparation of an EIS.

72. SEQRA and CEQR require that for any action subject to an EIS, all adverse environmental impacts revealed in the EIS must be avoided or minimized to the maximum extent practicable. ECL §8-0109(8); 6 NYCRR §617.11(d)(5); CEQR §6-12(b)(2). SEQRA and CEQR also require that, when an agency decides to approve an action which may have a significant effect on the environment, it consider reasonable alternatives, and determine that the action which it eventually chooses to approve is one that minimizes or avoids adverse environmental effects to the maximum extent practicable. 6 NYCRR §617.11(d)(5); CEQR §6-12(b)(1).

FIRST CAUSE OF ACTION

73. The determinations of CPC, DCAS and the Office of the Deputy Mayor to approve the disposition of Two Columbus Circle were arbitrary, capricious, and in violation of law because they were based upon a Negative Declaration that was defective, inadequate, and not in compliance with SEQRA and CEQR.

SECOND CAUSE OF ACTION

74. The approval of the disposition of Two Columbus Circle to respondent EDC without the preparation of an EIS was arbitrary, capricious and a violation of law. EDC intends to sell Two Columbus Circle to the Museum, which intends to replace the existing design. The loss of this cultural icon and important and well-known building by a major American architect will have a significant adverse impact on the environment and requires the preparation of an EIS prior to its disposition.

WHEREFORE, petitioners respectfully request judgment against respondents:

A. Nullifying and setting aside the determination of respondents CPC, Department of Citywide Administrative Services and Kulikowski approving the disposition of Two Columbus Circle to respondent EDC;

B. Nullifying and setting aside the Negative Declaration issued by respondent Kulikowski, and adopted by respondent CPC, finding that the disposition of Two Columbus Circle will not have a significant effect on the environment;

C. Declaring that the disposition of Two Columbus Circle to EDC without the prior preparation of an EIS is unlawful;

D. Restraining City respondents from disposing of Two Columbus Circle until they have prepared an EIS that fully analyzes the impacts of the disposition, discusses the reasonable alternatives thereto, and provides appropriate mitigation for impacts that cannot be avoided;

E. Granting such other relief as the Court deems just and proper.

Dated: New York, New York
November 3, 2003

Respectfully Submitted,

___________________________

Antonia Levine Bryson, Esq.
Attorney for Petitioners
Urban Environmental Law Center
475 Park Avenue South, 16th floor
New York, NY 10016
(212) 483-9120