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,

VERIFIED PETITION
Index No.

          -against-

METROPOLITAN TRANSPORTATION

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

         Petitioners, Joseph Tiraco and Paul Betancourt, allege:

1. This is an application pursuant to Article 78 of the Civil Practice Law and Rules by which petitioners challenge as illegal, arbitrary, capricious, and an abuse of discretion respondents' failure to comply with relevant statutes and regulations in authorizing the approval of a "Negative Declaration" under the State Environmental Quality Review Act ("SEQRA!').

2. This approval was granted in connection with the Long Island Railroad's ("LIRR") sale of approximately 0.5 acres of land known as block 3886, lot 450 in Forest Hills, County of Queens, City and State of New York ("Site").

3. This approval was granted without requiring the preparation of an Environmental Impact Statement ("EIS") pursuant to SEQRA.

4. The sale of this property by the Metropolitan Transportation Authority to Home Depot U.S.A. will allow Home Depot to construct a mega-store of 136,996 square feet, including a 16,252 square foot garden center and a parking lot for 668 cars.

5. Petitioner, Forest Hills Legal Defense Fund, Inc. ("Forest Hills"), is a community organization/association representing homeowners, co-op owners, condominium owners, and residents living and working in close proximity to the proposed Home Depot development. These are individuals who would be affected by the impact of increased traffic, congestion, noise, and pollution.

6. Petitioner, Joseph Tiraco, is an officer of Forest Hills and lives and works in close proximity to the proposed Home Depot development.

7. Petitioner, Paul Betancourt, is an officer of Forest Hills and resides in close proximity to the proposed Home Depot development.

8. Respondent, Metropolitan Transportation Authority ("MTA") is a corporate and political body constituting a public benefit corporation. The MTA consists of a chair and sixteen other members appointed by the Governor and with the advice and consent of the Senate. The MTA is a state agency responsible for the continuance, development, regulation, and improvement of commuter transportation in New York State, including the LIRR as well as the sale and development of property under its control.

9. Respondent, Home Depot U.S.A. Inc. ("Home Depot"), is a corporation doing business in New York as a large mega-store for the retail sale of hardware and related items.

10. In or about May 15, 1997, the Board of Directors of the MTA approved a Negative Declaration prepared in connection with the LIRR's sale of land to Home Depot.

11. The MTA/LIRR, as lead agency, determined that the proposed sale "would not have a significant effect on the environment."

12. Home Depot plans to develop a hardware mega-store comprising 136,996 square feet, including a 16,252 square foot garden center and a parking lot for 668 cars, as a result of this purchase.

13. The MTA has proposed widening the eastbound travel way on Metropolitan Avenue by 120 feet approaching Woodhaven Boulevard, installing a traffic signal at the intersection of Metropolitan Avenue and Trotting Course Lane, installing a traffic signal at the intersection of Woodhaven Boulevard and 73rd Avenue, and extending eastbound barriers separating mainline and service road traffic on northbound Woodhaven Boulevard for 150 feet to 73rd Avenue. The above actions are being proposed without the preparation of an EIS or public comment or review.

14. The mega-store is to be located at the intersection of Woodhaven Boulevard and Metropolitan Avenue in Forest Hills, Queens. Currently, the site contains vacant land, abandoned manufacturing facilities, and warehouses.

15. In order for Home Depot to develop the property to accommodate the plans for a mega-store, it must purchase property currently owned by the MTA, along the Montauk Branch of the LIRR. Moreover, the MTA must take certain steps regarding the flow of vehicular traffic, necessitating the approval of the New York City Department of Transportation.

16. Additionally, to accommodate the Home Depot proposal, the MTA plans to overhaul parking regulations along the intersection of Metropolitan Avenue and Woodhaven Boulevard. This action is being contemplated without any public review or the preparation of an EIS.

17. The MTA action in selling their parcel to Home Depot contemplates a series of transactions inextricably interwoven. The NTA sale will trigger planning, contracting, demolition, construction, and traffic plans for a geographic area far greater than the 0.5 acre strip controlled by the MTA.

18. The sale of the MTA parcel is only one piece or phase of a large project involving far reaching environmental consequences for the Forest Hills Community.

19. For example, upon information and belief the site contains subsurface contamination requiring investigation and remediation. This analysis is being shielded from public review and comment by virtue of the MTA's failure to conduct an EIS. The traffic, congestion, pollution, and neighborhood character impacts will be denied public scrutiny if this plan is permitted.

20. The physical conditions affected by the MTA action in selling their parcel to Home Depot will include the air, water, noise, congestion, and community or neighborhood character for a large residential portion of Queens, New York.

21. The sale approved by the MTA is part of a long range plan for Home Depot that includes other related actions with significant environmental impacts.

22, Home Depot is in the process of putting together an assemblage of property at the intersection of Woodhaven Boulevard and Metropolitan Avenue in Forest Hills, Queens. The MTA parcel is an integral piece or phase of the project for which all other parts of the project are dependent. The MTA parcel is 22,980 square feet of the planned 136,000 square foot megastore.

23. Petitioners repeat and reallege each and every allegation contained in paragraphs I through 22 of this petition.

24. Under SEQRA, Environmental Conservation Law ("ECL") §§8-0101 et seq ., and the SEQRA regulations at 6 NYCRR 617.11(5), all agencies are required to prepare an EIS on any proposed action which may have a significant effect upon neighborhood character. ECL §80109(2).

25. SEQRA, in Section 8-0103(6), declares 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." SEQRA further states, in Section 8-0103(9), that "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.

26. The primary method for determining and evaluating the environmental consequences of a proposed action is the preparation of an EIS mandated by SEQRA in Section 8-0109.

27. The state regulations implementing SEQRA, 6 NYCRR in Part 617, specify that:

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 basis of these, should make recommendations. 6 NYCRR 617.14(b).

28. By virtue of Home Depot's proposed development's significant impact on traffic, congestion, pollution, sub-surface conditions, and neighborhood character, the failure of MTA to issue a positive declaration and conduct an EIS was unlawful, arbitrary, capricious, and an abuse of discretion.

29. Petitioners repeat and reallege each and every allegation contained in paragraphs I through 28 of this petition.

30. SEQRA, ECL §8-0101 et seq., and the SEQRA regulations at 6 NYCRR 617.3(k) prohibit the practice of segmenting a project's environmental review.
6 NYCRR 617.3(k) states:

(k) "Actions commonly consist of a set of activities or steps (e.g., for capital projects the activities may include planning, design, contracting, demolition, construction, and operation). The entire set Of activities or steps shall be considered the action, whether the agency decision making relates to the action as a whole or to only apart of it." (emphasis added)

(1) "Considering only a part or segment of an action is contrary to the intent of SEQRA. If the lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance and any subsequent EIS the supporting reasons and must demonstrate that such review is clearly no less protective of the environment.

31. The approach of "segmentation" without a clearly articulated rationale is prohibited by virtue of the fact that looking only at a single piece or phase of a project, the full implications and impact of the project will tend to be understated and certainly shielded from the scrutiny of decision-makers. Pace Environmental Law Review, Fall 1987 "DEC Part 617 Regulations, as amended: A Guide to the implementation of SEQRA" -- at p. 6 1, Peter R. Poden.

32. Segmentation prejudices the commenting process in that relevant and material information is blocked from public view. Public involvement in decision making is thwarted as a result of dividing the informational flow into separate, distinct, and seemingly unrelated review.

33. To omit an integral part of the project from review or to postpone that review to a later date violates the primary function of an EIS "to insure a fully informed and well-considered decision." See Monroe v. Volpe, 472 F2d 693, 697 (2d Cir. 1972). In order to fulfill its role, the EIS must set forth sufficient information for the general public to make an informed evaluation and for the decision-maker to "consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action." County of Suffolk v. Secretary of Interior, 562 F2d 1368, 1375 (2d Cir. 1977), cert denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed2d 764 (1978).

34. The MTA's failure to examine Home Depot's proposal as a whole was unlawful, arbitrary, capricious, and an abuse of discretion.

Wherefore, Petitioner respectfully requests that the Court grant the relief requested in the Order to Show Cause with such other relief as to this Court seems just and proper, including attorneys' fees and costs.

Dated: July , 1997
New York, New York

JACK LESTER
747 Third Avenue
New York, New York 10017
(212) 832-5357

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