ELR Citation: ELR 20773
No(s). 2767/86 (N.Y. Sup. Ct. Feb 19, 1986)

The court holds that a citizens' group is barred by the doctrines of laches and virtual representation from moving to enjoin a major development project in Brooklyn, New York, on the grounds that city officials and the developer violated the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). The project, which qualified for federal funding under the Urban Development Action Grant Program, was first challenged in federal court by a different plaintiff on NEPA and NHPA grounds. A settlement agreement was reached in the federal suit modifying the original project plan. The court holds that petitioner's three-and-one-half-month delay in filing this suit after the federal settlement was unreasonable, and thus petitioner's action is barredby the doctrine of laches. It is highly unlikely that petitioner's members, intimately involved in the efforts to block this project from the outset, were unaware of the federal settlement, and any additional delay would doom the project. The court holds that petitioner is collaterally estopped from obtaining injunctive relief. Although petitioner was not a named party in the federal suit, the court holds that it was so closely aligned with the federal plaintiffs that its state court action is barred by the doctrine of virtual representation. Petitioner chose to participate in community opposition to the project and to monitor and assist in the federal litigation instead of exercising its right to intervene and thus is bound by the federal settlement.

Even if petitioner is only estopped from raising issues related to the original plan, the court holds that respondents have substantially complied with the requirements of the law for the modified plan. Respondent's decision not to prepare a supplemental environmental impact statement after the plan was modified to narrow the building to reduce the blockage of light and air and to add two floors was not arbitrary and capricious. Respondents also substantially complied with the notice requirements of the city's Uniform Land Use Review Procedure and the safety requirements in the federal settlement. Finally, the court rejects petitioner's claims of political influence and lack of competitive bidding.

Counsel for Petitioner
Thomas M. Kennedy
Lewis, Greenwald, Kennedy & Lewis
232 W. 40th St., New York NY 10018
(212) 382-0029

Counsel for Respondents
David Paget
Sive, Paget & Riesel
425 Park Ave., New York NY 10022
(212) 421-2150