Dale Degenshein and Richard Siegler in Legal/Financial on January 14, 2014
The New York City Department of City Planning performed a lengthy study before the launch of the program and held more than 150 public meetings, presentations and demonstrations. The DOT asserted that in determining individual station sizes, its planners used a computer model to analyze surrounding land use, population, tourism rates, subway turnstile counts and other data.
Announced a year in advance, a docking station was installed in April 2013. After receiving complaints from the Cambridge, the DOT removed an approximately 16-foot section of the station that was directly in front of the building entrance. The following month, the Cambridge co-op board commenced the proceeding challenging the DOT's right to erect any bike station in front of the building.
The agency moved to dismiss, saying the co-op did not have standing to sue. The court determined otherwise. The DOT next argued that the claim must be dismissed because the department had the absolute right to promote, facilitate and regulate travel on New York City streets and highways, so long as it was not acting in an arbitrary and capricious manner, contrary to law or in an abuse of discretion. The court found that the decision to install the docking station in front of the Cambridge fit squarely within DOT guidelines and could not be considered arbitrary or capricious.
The Cambridge asserted that the bike-share station should be removed because DOT failed to notify the local community board and the Landmarks Preservation Commission of the location prior to its installation. In making this claim, the Cambridge relied on a DOT station map from March 2013 that was only a general map, and which specifically stated "[t]his map is for illustrative purposes only. Station placements are neither exact nor final; locations are subject to change... ." In contrast, the bike-share station was specifically identified as being in front of the Cambridge building on a map dated April 27, 2012.
Finally, the co-op also asserted that DOT's decision to install the station in front of the building violated the Americans with Disabilities Act, alleging that the station made the building inaccessible to disabled residents. The court first noted that DOT removed that portion of the station that was directly in front of the building entrance. Moreover, the Cambridge failed to assert any specific disturbance, such as alleging that access to a curb ramp was disturbed, for example.
The court concluded that DOT had established that it conducted a sufficient review, set guidelines, complied with environmental and other laws and determined that placement of a bike-share station in front of the building did not have a significant adverse impact.
It is apparent that the Cambridge board asserted good, solid and extensive arguments to challenge the placement of bike-share stations in front of its building. However, it is very difficult for a co-op or condo to meet the requirements imposed, i.e., was the action of DOT in installing a station in front of their building arbitrary and capricious?
We note that this is a trial-level case, that there are other cases pending and that we do not know how appellate courts will treat the issue when it is presented to them.
This case also reminds us that co-op and condo boards must be diligent about following local politics and familiarizing themselves with the issues under consideration by their local community boards. We find several situations where an item on a community board's agenda is belatedly brought to a board's attention, so that the building has to scramble to present its case.
Often, the board is not advised of an item that — in its opinion — may affect its building, so that no director appears at a community board hearing to contest the issue. Boards and managing agents should keep abreast of local issues, so that they can identify projects of concern and provide timely comment on actions for which a city agency or a private organization has requested permission.
Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan. Dale J. Degenshein is a special counsel for that firm.
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