SUPREME COURT OF THE STATE OF NEW YORK

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IN THE MATTER OF THE APPLICATION OF
FOREST HILLS LEGAL DEFENSE FUND,
JOSEPH TIRACO, and PAUL BETANCOURT,

AFFIRMATION IN SUPPORT OF
PRELIMINARY INJUNCTION

           -against-

Index No.

METROPOLITAN TRANSPORTATION
AUTHORITY and HOME DEPOT, U.S.A. INC.

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        JACK L. LESTER, an attorney duly admitted to practice in the courts of the State of New York, affirms, under the penalties of perjury, the following to be true:

I . This affirmation is submitted in support of petitioners' application for injunctive relief

2. Petitioner has successfully established the grounds necessary for the granting of a preliminary injunction in this proceeding.

3 . A party seeking a preliminary injunction must establish all of the following: a likelihood of success on the merits; irreparable injury if the relief is not granted- and a balancing of the equities in their favor. State of New York v. Fine, 72 NY2d 967, 968, 969 (1988); Grant Co v. Sropi, 52 NY2d 496, 517 (1981)- Hoppman v. Stein, 141 AD2d 332 (Ist Dept. 1988)- Merrill Lynch v. Burr, 140 AD2d 589, 592 (2d Dept. 1988).

4. Petitioner has met all of the above requirements.

5. The MTA, as lead agency, has determined that a proposal for a 136,996 square foot hardware store with a 668 car parking lot will not have a significant effect on the environ-ment. This decision defies logic and defines the phrase "arbitrary and capricious'.

6. This decision shields the project from public review or comment and forecloses the preparation of an EIS.

7. The SEQRA, Article 8 of the New York Environmental Conservation Law, states it purpose in Section 8-0101:

It is the purpose of this act to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environmental and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human, and community resources important to the people of the state.

8. In the section of the legislature findings and declaration, Section 8-0103, the statute expresses the legislative intent as to SEQRA's interpretation and administration. Thus, in Section 8-0103(6), it is stated that:

it is the intent of the legislature that to the fullest extent possible the policies, statutes, regulations, and ordinances of the state and its political subdivisions should be interpreted and administered in accordance with the policies set forth in this article.

And in Section 8-0103(9), the statute states:

It is the intent of the legislature that all agencies which regulate activities of individuals, corporations, and public agencies which are found to affect the quality of the environment shall regulate such activities so that due consideration is given to preventing environmental damage.

The term "environment" is intended to be very broad. It is defined in Section 8-0105(6) as:

the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character.

9. One commentator has noted that "SEQRA is considered by many to be an environmental bill of rights, establishing environmental values as equal to other public values in governmental action." Marsh, Symposium on the New York State Environmental Quality Review Act, Introduction -- SEQRA's Scope and Objectives, 46 Alb. L. Rev. 1097 (1982). A court has recently pointed out that:

SEQRA's purpose is to compel the agencies principally responsible for the ultimate action-taking decision to give the environment its deserved due in deciding whether the specific proposal under consideration is to proceed ***.

Glen Head v. Town of Oyster Bgy, 88 AD2d 484, 485, 453 NYS2d 732,734 (2d Dept. 1982).

10. SEQRA gives the environment its "deserved due" by both procedural and substantive means. Matter of Town of He@etta v. Department of Environmental Conservation of State of NY, 76 AD2d 215, 220, 430 NYS2d 440, 445 (4th Dept. 1980). The primary procedural requirement is the preparation of an EIS as prescribed by Section 8-0109(2). The EIS is to be a "detailed statement" covering nine specified topics. SEQRA explains an EIS's objective (Section 8-0109(2)):

... The purpose of an environmental impact statement is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action.

11. The regulations promulgated by the Commissioner of the State Department of Environmental Conservation in order to implement SEQRA, located at 6 NYCRR 617.14, likewise point out that:

An EIS provides a means for agencies to give early consideration to environmental factors and it facilitates the weighing of social, economic, and environmental issues in planning and decision making.

An EIS should assemble relevant and material facts upon which the decision is to be made, should identify the essential issues to be decided, should evaluate all reasonable alternatives, and on the bases of these, should make recommendations.

12. The role of the EIS was summarized in Webster Associates v. Town of Webster 85 AD2d 882,884, 446 NYS2d 955, 958 (4th Dept. 198 1):

An EIS is an ... alarm bell' whose purpose is to alert responsible public officials to environmental changes before they have reached ecological points of no return" [citation omitted]. (Matter of Town of Henrietta v. Department of Environmental Conservation of State of NY ' 76 AD2d 215, 220, 430 NYS2d 440). It is intended to compel "agencies to give serious weight to environmental factors in making discretionary choices" (Monroe County Conservation Council v. Volpe, 472 F2d 693, 697). It requires decision makers to take a "hard-look" at the environmental considerations of a proposed project (H.O.M.E. S. v. New York State Urban Dev. Corp., 60 AD2d 222, 223, 418, NYS2d 827,
supra), and to take those considerations into account "to the fullest extent possible" (town of Henrietta v. Department of Environmental Conservation of State of NY, 76 AD2d 215, 233, Town of Henrietta v. Department of Environmental Conservation of State of N.Y 76 AD2d 215, 233, 430 NYS2d 440).

13. The substantive obligation was also recognized in Town of Henrietta v Department of Environmental Conservation of Stateof NY , supra, 430 NYS2d at 445. There, the court pointed out that [SEQRA] "cannot be construed as merely procedural or informational since it states that all approving agencies involved in an action must actually consider the EIS and formulate its decision on the basis of all the adverse environmental impacts disclosed therein Id. at 446. [emphasis added]

This substantive obligation, in turn, places even greater importance on the EIS and the adequacy of its analysis. For as the court went on to state:

Since SEQRA requires an approving agency to act affirmatively upon the adverse environmental impacts revealed in an EIS (ECL 8-0109, subds. [1] and [8]), an EIS filed pursuant to SEQRA must also be recognized as not a mere disclosure statement but rather as an aid in an agency's decision making process to evaluate and balance the competing factors.

14. The MTA has attempted to analyze this project as if it were limited to their 22,000 square foot parcel. This is clearly not the case. It is the sale of the MTA parcel that enables the entire project to go forward. The MTA piece is an integral part of the larger puzzle.

15. A lead agency must consider the cumulative effect of other simultaneous or subsequent actions that are included in any long-range plan of which the action under consideration is a part. See Sun Co. v. City of Svracuse Indus. Dev., 209 AD2d 34, 625 NYS2d 371 (AD 4th Dept. 1995).

16. In this proceeding, it is incandescently clear the MTA is violating their statutory and regulatory mandate to consider reasonably related long-term, short-term, and cumulative effects, including other simultaneous or subsequent actions included in any long-range plans that are likely to be undertaken as a result of their sale to Home Depot. See Matter of Loniz Is. Pine Barriers SociM v. Planninp, Bd. Of Town of Brookhaven, 80 NY2d 500, 512-513, 591 NY2d 982, Matter of Village of Westbury v. Dgpartment of Transportation of State of NY, 75 NY2d 62, 68-71, 550 NYS2d 604, Onondaga Landfill Sys. v. Flacke, 81 AD2d 1022, 440 NYS2d 788.

17. The failure to grant a preliminary injunction in this case unfortunately may render the Court's ultimate decision ineffectual. Allowing the harm sought to be enjoined to go forward may be irreversible and render any future determination by the Court or any reviewing agency meaningless as it pertains to the residents of Forest Hills, Queens. See Schlosser v. United Presbyterian Home at Syosset Inc., 56 AD2d 615, 319 NYS2d 881 (2d Dept. 1977).

Construction affecting the subsoil may be environmentally irreversible absent a detailed disclosure on the potential impacts. (See letter annexed as Exhibit "A!'.)

18. The potential environmental harm caused to the residents of Forest Hills cannot be reasonably calculated until the dictates of SEQRA are complied with in this matter.

WHEREFORE, Petitioners respectfully request that the relief requested in the Order to Show Cause be granted including costs and legal fees.

Dated: July , 1997
New York, New York

JACK L. LESTER

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