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THE CITY OF NEW YORK
MICHAEL A. CARDOZO LAW DEPARTMENT tel: (212) 788-1574 Corporation Counsel 100 CHURCH STREET fax:(212)788-1619 NEW YORK, NY 10007
April 30, 2004 fat usr" By Email and Mail
Hon. Jaclyn Brilling, Secretary NYS Board on Electric Generation Siting and the Environment Three Empire State Plaza Albany, New York 12223-1350
Re: Case Ol-F-1276 - TransGas Energy Systems, LLC
Dear Secretary Brilling:
Pursuant to Your Honor's Notice of Schedule for Filing Exceptions, issued April 1, 2004, I haye enclosed an original and twenty-fiye copies of the City of New York's Brief Opposing Exceptions. Thank you for your consideration.
Respectfully submitted.
William S. Plache Assistant Corporation Counsel Enyironmental Law Division
Exhibit Exchange List
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-ijOiSSiPvfcs^50 Case Ol-F-1276
NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT
In the Matter of
Application of TransGas Energy Systems, LLC for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a 1,100 Megawatt Combined Cycle Cogeneration Facility in the Borough of Brooklyn, New York
THE CITY OF NEW YORK'S BRIEF OPPOSING EXCEPTIONS
MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for the City of New York 100 Church Street New York. NY. 10007
Of Counsel: William S. Plache Tel: (212) 788-1574 NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT
IN THE MATTER
ofthe- Case Ol-F-1276 Application filed by TransGas Energy Systems LLC For a Certificate of Environmental Compatibility and Public Need to Construct and Operate a Nominal 1,100 megawatt generating facility in the Borough of Brooklyn, New York City
THE CITY OF NEW YORK'S BRIEF OPPOSING EXCEPTIONS
PRELIMINARY STATEMENT
Pursuant to the Secretary's Notice, issued April 1, 2004, the City of New York
(City) submits this brief in opposition to TransGas Energy Systems, LLC's (TGE) Brief on
Exceptions. TGE seeks a certificate of environmental compatibility and public need under
Article X of the Public Service Law to construct a 1,100 megawatt electric and steam cogeneration plant on the East River waterfront on the border of the Greenpoint and
Williamsburg sections of Brooklyn, New York. The City generally supports the construction of new, clean and efficient sources of power. However, because siting a power plant at the location proposed by TGE is fundamentally at odds with existing and planned land uses in the surrounding area, including the City's plan to acquire the site itself to create a public park, the
City opposed the TGE project in this proceeding.
In a Recommended Decision issued April 1, 2004 (RD), the Hearing Examiners held that the Board should deny TGE's application for a certificate. Significantly, the
Examiners' determination was based largely on the fact that the project conflicted with the City's 'land use plans for the area, as well as other major flaws inherent in the proposal. In its brief,
TGE takes exception to several aspects of the RD. In this brief, the City responds to four of the exceptions raised by TGE: Exception C - in which TGE takes exception to the RD's assessment of reliability benefits of the proposed project; Exception H - in which TGE takes exception to the RD's analysis of the project's steam component; Exception J - in which TGE takes exception to the RD's finding that the project conflicts with future land uses; and Exception K - in which
TGE takes exception to the RD's determination that the project is not consistent with the City's
New Waterfront Revitalization Program (NWRP).
PROCEDURAL HISTORY AND STATEMENT OF FACTS
The City respectfully refers the Board to the RD for a complete and accurate statement of facts and procedural history.
ARGUMENT
POINT I
TGE EXCEPTION C: THE EXAMINERS' ASSESSMENT OF THE PROJECT'S ALLEGED RELIABILITY BENEFITS WAS PROPER
In the RD, the Examiners found that while "the New York City market requires new electric capacity, and reasonably soon, .... it is not apparent that the acquisition of such capacity should come at the expense of the City's plans for redeveloping a scarce resource, namely the East River waterfront in Greenpoint and Williamsburg." RD at 116. In challenging this well-reasoned conclusion, TGE contorts the facts in an attempt to portray its project as essential to fulfill the City's energy needs.
First, TGE greatly overstates the City's need for additional capacity. TGE claims that the RD "exposes NYC to a potential, and unneeded, energy crisis." TGE Brief at 14. This statement mischaracterizes the City's future energy requirements. The New York City Energy
Policy Task Force recently issued a Report to Mayor Bloomberg titled, "New York City Energy
Policy: An Electricity Reserve Roadmap," dated January 2004 (Task Force Report). The Task
Force Report concludes that the City will need about 3,780 megawatts of new electricity
resources by 2008. Task Force Report at 9. Only 665 megawatts of that total projected need,
however, are necessary to accommodate load growth. Id. The remaining need requirements are not necessary to ensure reliability. Instead, they are included to reflect the goals of reducing
energy and capacity prices (1000 megawatts) and replacing potential power plant retirements.
The only scheduled retirement is the 875 megawatt NYPA Poletti plant, which, if circumstances permit, is scheduled to go off line in 2008. Even the Poletti retirement, however, is contingent upon there being sufficient replacement capacity. Otherwise, Poletti will remain operational until 2010.
The 665 megawatt load growth requirement will be provided by plants already completed or under construction. These include: KeySpan Ravenswood, which is complete (250
MW); Con Edison's East River repowering, which is under construction (125 MW); and the
NYPA Poletti expansion, also under construction (500 MW). Task Force Report at 11. That total of 875 megawatts of additional supply from projects under construction exceeds the projected 2008 load growth demand of 665 megawatts. Distributed resources provides for another 300 megawatts. Accordingly, even if only those plants that are currently under construction or already completed are in service by 2008, the City will nonetheless meet projected demand growth need. There is no risk of the "energy crisis," despite TGE's alarmist statements. r Second, TGE disregards all remaining transmission and in-City generation projects that are not yet under construction. Proposed power plants, excluding TGE, will provide
2082 megawatts. See Task Force Policy at 19 (as corrected by the TGE Brief on Exceptions at
14). In addition, proposed transmission projects will provide an additional 2550 megawatts, for
a total of 4632 megawatts of additional capacity from proposed transmission and generation projects (exclusive of TGE). This 4632 megawatts plus the 875 megawatts already under
construction and the 300 megawatts provided by distributed resources, is more than sufficient to
address the City's need for an additional 3,780 megawatts by 2008. The RD properly took these projects into account. As stated in the RD, the Task Force Report "has identified many
anticipated generation, transmission and distributed resources that could be used to meet a net need of 2,605 megawatts (3,780, less 1,175 representing projects under construction and
distributed resources) of additional capacity by 2008, and that need could be met without
construction of the proposed facility." RD at 122.
TGE, however, claims that the Examiners should not have relied on other projects because they are "very uncertain." TGE Brief at 15. TGE's claims are a smokescreen. There is no reason to believe that the TGE project is any more viable than any of the other proposed projects. Throughout this proceeding, TGE has used its status as a merchant generator as both a
sword and a shield. It does so again in its Brief on Exceptions. While an applicant under Article
X is not required to provide financing information, TGE consistently portrays itself as more economically sound than other proposed projects. Relying on the Article X exemption, however,
TGE has refused to provide any basis for this assertion. TGE has merely hidden behind unfounded claims that its steam component provides the financial incentive that other projects dack. It was shown in the proceedings, however, steam is not the magic bullet that TGE has portrayed it to be. The Examiners saw through TGE's tactic, and stated:
there has been no showing that the applicant has any greater access to financing. To be sure, there was no requirement that TGE, as a merchant developer, provide such information in its application, but the lack of that information in this proceeding undermines a finding that the proposed facility would be a demonstrably available resource whose construction should be authorized to the detriment of implementing the City's LUAWP [Greenpoint/ Williamsburg Land Use and Waterfront Plan].
RD at 116-17. The Examiners thus recognized that TGE is no more viable than other proposed projects.
Because planned projects and projects already under construction will provide sufficient capacity to address the City's future energy needs, and because TGE is no more certain to get underway than other projects, TGE's project should not be certified "to the detriment of implementing the City's [land use plans]." RD at 116-17.
POINT II
TGE EXCEPTION H: THE EXAMINERS' DETERMINATION WITH RESPECT TO THE STEAM COMPONENT OF TGE'S PROPOSAL WAS PROPER
The Examiners held that "the proposed facility, viewed as a combination of electric and steam plant," was not consistent with the most recent State Energy Plan and could not be selected pursuant to an approved procurement process." RD at 19-20. In support of this conclusion, the Examiners cited the PSC's Order Concerning Phase II Steam Plant Report in
Consolidated Edison Company of New York, Inc. - Steam Rates et al.. PSC Cases 96-S-1065
(December 2, 1999). There, the PSC concluded that "a competitive steam market is not feasible dn New York City at this time." RD at 20. Thus, the Examiners held that there was no evidence showing that the steam marked had changed since 1999 "so that the PSC would be inclined to conclude that TGE's entry into that marked would be pursuant to "competition" (or any other approved procurement process.)" RD at 21. In addition, the Examiners cited the Task Force
Report demonstrating that there is no apparent need for new steam generation or transmission facilities in New York City. RD at 21.
TGE claims that the Examiners applied the wrong legal standard by inquiring whether the steam component met the criteria of PSL 168(a)(i) or (ii). TGE states that "the
Board ... should, as required by its October 16 Ruling, look at the entire Application, including the benefits of having an additional steam supply for Con Edison." TGE Brief at 27. That is, however, exactly what the Examiners did. They reviewed the PSC's ruling from the Steam Rate
Case, which held that there is no room for competition in the New York City market. They reviewed the Task Force Report from January 2004, which concluded that "even with a successful effort to promote steam-powered chilling to relieve loads on the electric system, existing and committed steam capacity is likely to remain sufficient throughout the planning period." RD at 21. The Examiners looked for the benefits of adding additional supply to the
Con Edison steam system - and found none. Because TGE does not like the outcome of that inquiry, it accuses the Examiners of applying the wrong legal standard. The Examiners actions, however, are consistent with the Recommended Decision in KevSpan-Ravenswood, Case 99-F-
1625. As recognized by the RD, "by the time of the Siting Board's decision, it was clear there would be no steam sales from Ravenswood to Con Edison." RD at 83.
In its Brief on Exceptions, TGE attempts to find independent support for its unfounded claims that the steam proposal will be beneficial to the City. In particular, TGE refers -to testimony submitted by New York City in the Consolidated Edison Company of New York,
Inc. Steam Rates et al.. Case 03-S-1672, in an effort to find a contradiction between the City's position in that case and the Task Force Report's conclusion that there is already an ample supply of steam. TGE Brief at 30-31. TOE cites the fact that the City "has urged Con Edison to aggressively market steam service to major development projects" to somehow imply that the steam system is insufficient to meet expected steam demands Id, citing Testimony of City witness Paul Chemick. However, this statement shows exactly the opposite. There is an overabundance of steam capacity, which needs to be addressed by finding additional customers for steam. This is wholly consistent with the Task Force Report.
As stated in the Task Force Report, the estimate for peak steam demand for the winter of 2003-04 was 10.8 million Ibs/hr. The system's peak capability for delivery is approximately 12.8 million Ibs/hr. Id at 18. Moreover, the net effect of the 3.0 million Ibs/hr repowering of the East River plant, less the retirement of the Waterside facility (2.9 million
Ibs/hr), will be an additional 100,000 Ibs/hr. Thus, there is a 2 million Ib/hr steam capacity surplus.
The Task Force Report further notes that "steam system loads have been stable or falling due to increasing efficiency in steam use or conversion of some steam-powered chilling to electricity." Id. at 18. Accordingly, the City's recommendations for additional marketing and expansion of the steam system emphasize the need to find additional customers for steam cooling, during the summer, when the company's sales have lagged, and the surplus is greatest.
The focus is not on increasing peak wintertime sales. Therefore, the City's position in the current Con Edison Steam Rate Case is consistent with the Task Force Report, and supports the Examiners' conclusion that the proposed facility, with steam generation, is not selected pursuant
to an approved procurement process and is not consistent with the most recent state energy plan.
POINT III
TGE EXCEPTION J: THE EXAMINERS' DETERMINATION THAT THE PROPOSED FACILITY WOULD CONFLICT WITH FUTURE LAND USES WAS CORRECT
In June 2003, the New York City Department of City Planning released the
Greenpoint-Williamsburg Land Use and Waterfront Plan (LUAWP), which details the rezoning
and land use initiatives for the neighborhood in which the Bayside site is located. The plan proposes, among other things, the re-zoning of large sections of Greenpoint and Williamsburg
away from heavy industry and manufacturing uses to residential and mixed residential, light
industrial and commercial uses, to reflect present land uses and trends. The rezoning and land use proposal will convert a continuous two mile stretch of the waterfront property from North 3rd
Street to the Newtown Creek, which currently maintains an M3 zoning designation - allowing for heavy manufacturing uses - into either residential districts or park. See LUAWP at 54. Thus, the rezoning proposal establishes a framework for the conversion of large, vacant and underused areas along the East River waterfront in the Greenpoint and Williamsburg neighborhoods for residential use. See Testimony of Regina Myer, NYC Department of City Planning, Tr. at 1546.
These changes are necessary to allow the ongoing expansion of new residential and mixed uses to continue, as such uses are generally not permitted in M3 districts. See NYC Zoning
Resolution § 41-13. In addition, many of the current Ml districts in the upland area would be converted to residential districts or to mixed use districts which would allow existing light manufacturing uses to coexist with new residential development. Myer, Tr. at 1546. The Bayside site is within the area covered by the land use plan. The LUAWP
includes the proposed acquisition of the Bayside site, the site of TGE's proposed electric
generating station, and approximately 20 additional acres of adjacent property for a public park.
See the Proposed Zoning map and Waterfront Access Plan map, pages 54 and 55 respectively of
Exhibit A to the City's Issues Statement; see also Myer, Tr. at 1547. This public park will adjoin
an existing State park along the waterfront. Myer, Tr. at 1547. The proposed park, together with
the additional public open space created under the Waterfront Access Plan, will enhance the public's use and enjoyment of the waterfront, will serve as a catalyst for encouraging private
development along the waterfront and will serve as a valuable amenity to the residential uses that will emerge under the rezoning. Myer, Tr. at 1547 - 48. Additionally, in the event that New
York City's bid to host the 2012 Olympics is successful, the Bayside property has been
designated as a potential site for Olympic events, such as archery or beach volleyball.. Myer, Tr.
1548. The 28-acre public park is the centerpiece of the waterfront rezoning. That park will provide a recreational haven for the people who will reside in the residential units that will be
created both to the north and to the south of the park under the rezoning.
TGE takes exception to the Examiners' assessment of the project's compatibility with future land uses on two separate grounds. First, TGE claims that because the City's
LUAWP is not yet approved, it was improper for the Examiners to consider the project's consistency with that plan. Then TGE attempted to demonstrate that even if the project is reviewed for consistency with the LUAWP, the Examiners' determination that it was inconsistent was improper. A. The Examiners' Examination of the Project's Consistency With Proposed Land Uses Was Proper
1. Contrary To TGE's Claims. The LUAWP Is A Reality. And Is Not Speculative
The Examiners assessed whether the project was consistent with the City's
LUAWP and proposed rezoning. They correctly concluded, "Because of the City's proposal to
rezone the Greenpoint and Williamsburg waterfronts and include the Bayside Fuel site in
mapped parkland, ... development of the proposed facility is incompatible with future land
uses." RDat68.
TOE disputes this determination on a number of grounds - none of which has any merit. The underlying theme that transcends each of TGE's arguments against this
determination, however, is TGE's attempt to portray the LUAWP as speculative, and unlikely to
come to fruition. TGE's portrayal relates to both the mapping of the Bayside site and surrounding sites as public park, which TGE describes as "illusory," and the proposed rezoning of the entire Greenpoint and Williamsburg waterfront area. TGE Brief on Exceptions at 39.
TGE presents the City's proposal as an ad hoc maneuver to create a conflict between the plant and a proposed Olympic venue, and TGE relies on this underlying mischaracterization of the
City's comprehensive land use plans to support all of its arguments pertaining to land use.
The reality, which TGE refuses to accept, is that the City's plans for the area, including the mapping of the Bayside site as public park, are the result of over a decade of sound urban planning efforts. The plans are the direct outgrowth of the Greenpoint and Williamsburg
197-a Plans, which were initiated in 1989. As the Examiners recognized,
TGE's characterization of the rezoning contemplated by the LUAWP as a 'deviation' from the Williamsburg Waterfront 197-a plan is misplaced. It is clear that plan, which is the product of a planning process lasting more than a decade, envisions residential development of, and public
10 access to, the East River waterfront, and it does not contemplate redevelopment of existing industrial uses into new industrial uses, especially a power plant.
RD at 74. TGE ignores the history of the development of the LUAWP in an attempt to mislead
the Board into concluding that the City's plans will never be realized. It ignores the fact that the plan already reflects the true character of the neighborhood, as it has evolved over the past
several decades from an area characterized by heavy industry to a growing residential
community in need of additional housing and recreational resources. It ignores the years of
thought and preparation that went into the LUAWP and the broad community support behind it.
Moreover, the Department of City Planning held an environmental scoping hearing on the LUAWP on November 13, 2003, and the plan is expected to be certified by the
City Planning Commission as complete under the City's Uniform Land Use Review Procedure
(ULURP) in June, 2004. There is simply no basis for TGE's characterization of the plan as
speculative.
2. Evaluation of the Project's Consistency With Proposed Land Uses Is Consistent With the PSC Article X Regulations
TGE claims that the RD employs an incorrect legal standard by assessing the project's consistency with the LUAWP. TGE Brief on Exceptions at 39. TGE states, "The RD ignores the only relevant Article X regulation, 16 NYCRR 1001.3(b)(l)(i), that solely requires an evaluation of existing and approved land uses." TGE continues, "There is no mention anywhere of unapproved land uses or proposed zoning." Id.
However, 16 NYCRR 1001.2(c), which is also relevant, despite TGE's claim to the contrary, states, "The no-action altemative discussion should evaluate the adverse or beneficial site changes that are likely to occur in the reasonably foreseeable future, in the absence of the proposed facility." As discussed above, the City's land use plans, including the proposed
n rezoning and the park mapping, are changes that are likely to occur in the reasonably foreseeable
future. Thus, the Examiners took official notice of the LUAWP, and held that it would represent
the no-build alternative. See August 4, 2003 Procedural Ruling. By stating that the Board may
only consider existing or approved land uses, and completely ignoring 16 NYCRR 1001.2(c), it
is TGE that is attempting to apply an improper legal standard. Moreover, TGE's arguments
against the Examiners' determination that the LUAWP represents the no-build alternative should
not be entertained at this stage of the proceeding. Those arguments could only have been raised
in an interlocutory appeal of the August 16,2003 Issues Ruling.
TGE argues that "comparing a plant to proposed zoning is an open invitation to a municipality to block needed generation facilities." TGE claims that the situation is analogous to
the issue addressed by the New York State Court of Appeals in Consolidated Edison Co. of N.Y. v. Town of Red Hook. 60 N.Y.2d 99 (1983). The case is not on point. In Red Hook, the Court
struck down a local law requiring a party to obtain a license prior to conducting a site study. The law was passed after the utility announced its intention to construct a power plant. The type of mischief at issue in Red Hook, which took the form of an ad hoc local law adopted as a knee-jerk reaction to a proposed power plant, has no relevance to the City's land use plan. The LUAWP, including the rezoning and park mapping, is not a mere local law, or an additional local approval for the project, but is, rather, a blueprint for the development, over the next several decades, of a vast stretch of unique waterfront property. The LUAWP is the inevitable culmination of more than a decade of city planning initiatives, which began in 1989, and were finally adopted in the form of the Greenpoint and Williamsburg 197-a Plans in December 2002, a year before the TGE application was filed. Therefore, contrary to TGE's claims, the Board's consideration of the
12 • LUAWP will not be "an open invitation to a municipality to block needed generation facilities."
TGE Brief on Exceptions at 39.
Moreover, under PSL § 168(2)(e), the Board is required to assess whether the
project is in the public interest. This determination cannot be made without an assessment of the
LUAWP. The proposed plant would be the only manufacturing use that could be constructed
within the two mile stretch of waterfront property that is proposed for redevelopment under the
LUAWP. The entire two-mile stretch of the East River waterfront from North 3rd Street to the
Newtown Creek will be rezoned as residential districts or mapped as park. No new manufacturing uses will be permitted in that area as-of-right. Even if the plant met Ml zoning
criteria, which, as discussed below, it does not, it would still conflict with the City's plan to
create exclusively residential and public park land along those two miles of waterfront. The
LUAWP represents a once in a lifetime opportunity to reclaim a large stretch of the Brooklyn waterfront and create a 28-acre public park around the Bushwick Inlet. The Board cannot, as
TGE would have it, ignore the City's plans to acquire the Bayside site and rezone the neighborhood, when it assesses whether the project is in the public interest under PSL §
168(2)(e).
3. The Proposed Park Mapping of the Bayside Site Is An Integral Part of the City's Land Use Plan
TGE claims that the City's proposal to convert the Bayside site into a public park
"is entirely outside the scope of the present zoning and mapping actions that are under formal consideration pursuant to [ULURP]." TGE Brief on Exceptions at 39. TGE further states, "there is no proposed action for the Bayside site." Id. at 40. The record clearly shows that these statements are false. In fact, as the RD recognized, "the City points out that the proposed parkland acquisition is the centerpiece of the City's plan to improve the recreational and open
13 • space uses along the waterfront, and will function as vital support to the planned residential
development of the area." RD at 69.
As is shown on the proposed zoning map, which appears on page 54 of the
LUAWP, the Bayside site, together with several sites to the north and south, will be mapped as parkland. Changes to the City map, including the mapping of the Bayside site as a park, will travel through the ULURP process together with the other provisions in the LUAWP. Following the completion of the ULURP process, those changes will become official once the City map is filed in the County Clerk's Office. The process of mapping the Bayside site as park is, in fact, underway, as the park mapping application was officially filed with the Department of City
Planning on April 23, 2004.
TGE makes much of the fact that there is no proposal to change the M3 zoning designation of the Bayside site independent of the park mapping. TGE Brief on Exceptions at
40, 42. However, once the property is acquired for use as a park, it will lose its zoning designation. The park designation will not be overlaid on the MB designation, but will, upon acquisition, replace that designation altogether. See NYC Zoning Resolution § 11-13 ("District designations on zoning maps do not apply to public parks").
4. The Project Is Inconsistent With Existing and Approved Land Uses In Any Event
Even if the Board were to consider only existing or approved land uses, as TGE suggests, the project is wholly inconsistent with the Greenpoint and Williamsburg 197-a Plans, which were adopted by the City Council in December 2001, a year before TGE filed its application. Each plan calls for the re-zoning of longstanding vacant industrial property from manufacturing to residential and mixed use districts, and for public improvements, open space
14 and access to the East River waterfront. With respect to the Bayside site specifically, the
Williamsburg 197-a Plan states:
.. .there are still a few viable heavy industrial uses on the waterfront, notably the fuel oil depot south of the Bushwick Inlet and the sugar refinery north of the Williamsburg Bridge. These facilities provide a significant number of jobs and should be supported. However, if land uses change and development opportunities arise on any Of these sites, they should be rezoned to permit the same level of uses listed above [high performance light manufacturing, contextual medium-density residential, medium- density commercial, and mixed use], with ample provision for Waterfront access and public open space.
Williamsburg 197-a Plan at 9-10. It is particularly significant that Bayside Fuel was one of only two industrial sites that were mentioned as viable industries on the Williamsburg waterfront.
The other was the Domino Sugar refinery, which has, since the adoption of the 197-a Plan, ceased operating. See RD at 74. Moreover, while the Bayside Fuel depot was at the time of the
197-a Plan considered to be a viable industry worthy of preserving in the rapidly changing area, the proposed use of the site for a 1,100 MW power plant was not envisioned for the area. TGE's proposal to replace the once viable use with a 1,100 MW power plant thus triggered the provision advising, "if land uses change and development opportunities arise in any of these sites, they should be rezoned... with ample provision for waterfront access and public open space." Williamsburg 197-a Plan at 9-10. Thus, the Examiners properly found that the
Williamsburg 197-a Plan "envisions residential development of, and public access to, the East
River waterfront, and it does not contemplate redevelopment of existing industrial uses into new industrial uses, especially a power plant." RD at 74.
TGE's proposed power plant is, therefore, inconsistent with the 197-a Plans.
Those plans have been approved by the City Planning Commission and the City Council, and
15 , thus represent "existing or approved land uses." Even if the Board were to limit its enquiry to the project's consistency with existing or approved land uses, despite the governing regulations, the project would still be hopelessly inconsistent with approved 197-a Plans. Significantly, TGE does not address the project's consistency with the Greenpoint or Williamsburg 197-a Plans in its
Brief on Exceptions, and, in fact, fails to mention those plans at all.
B. The Examiners Correctly Held that the Two Million Gallon Fuel Oil Storage Tank Is Inconsistent With Planned Land Uses
In the RD, the Examiners noted that "the facility's large fuel storage tank would be located near to the publicly accessible waterfront (whether or not that includes a walkway on the proposed facility's site) and light industrial (Ml) uses, in disregard of the buffering requirements reflected in the City's zoning scheme for purposes of protecting public health and safety." RD at 72. TGE has maintained throughout this proceeding that it is a light industry, and is appropriate for an Ml zoning district under the City's Zoning Resolution. The Examiners, however, concluded that because TGE would maintain a 2 million gallon fuel oil storage tank on site, the proposed facility did not meet Ml zoning standards, and was incompatible with proposed land uses in the surrounding area.
The underlying flaw with all of TGE's arguments on this issue is that TGE fails to recognize that the zoning restrictions prohibiting a 2 million gallon fuel oil storage tank in all but the most heavy industrial districts, which are adequately buffered from residential and recreational uses, is critical to the protection of public health and safety. Thus, TGE states,
"there is no evidence suggesting there is a health or safety problem, and the RD does not discuss any." TGE Brief on Exceptions at 44. This statement misses the point. The purpose of restricting, under the Zoning Resolution, the amount of free burning material that may be maintained within districts adjacent to residences, is the protection of public health and safety. It
16 ,is not necessary for the RD to "discuss" any health or safety problems, as those problems are recognized under the Zoning Resolution, per se.
TGE also argues that Bayside Fuel currently maintains 5 million gallons of fuel storage on the site. TGE Brief on Exceptions at 43. This is irrelevant, as Bayside Fuel will not exist in the future. The fact that TGE has an option agreement to acquire the Bayside site shows that Bayside plans to vacate the site imminently. If for some reason Bayside changes course and does not leave the site voluntarily, the City intends to acquire the site by eminent domain.
Accordingly, there will be no fuel tanks in the area in any event.
TGE also states that even applying the Ml standard, the oil storage would be a grandfathered non-conforming use. That is also irrelevant. The fact remains that the non- conforming use would pose substantial risk to the health and safety of the public that would live in the residential buildings surrounding the facility as a result of the rezoning, as well as to those using the proposed waterfront park. Nothing presented in TGE's Brief on Exceptions undermines the RD's conclusion that the fuel oil storage tank is incompatible with future land uses. In a desperate last ditch effort by TGE to overcome its problems with respect to this issue, it raises the possibility that it could empty the tank in the summer. The Board should not entertain this discussion.
17 POINT IV
TGE EXCEPTION K: THE EXAMINERS CORRECTLY FOUND THAT THE PROJECT IS INCONSISTENT WITH THE CITY'S NEW WATERFRONT REVITALIZATION PROGRAM
A. The Examiners Properly Compared The Project With The City's Land Use Plans In Reaching Its Determination That the Project Was Not Consistent With The NWRP
The City's New Waterfront Revitalization Program (NWRP) was adopted as a
197-a Plan by the Council of the City of New York on October 13, 1999, and subsequently
approved by the New York State Department of State with the concurrence of the United States
Department of Commerce in the exercise of its authority under the federal Coastal Zone
Management Act, 16 USCA §§ 1451-64. The NWRP is the City's principal coastal zone
management tool, and it establishes the City's policies for development and use of the waterfront
and provides the framework for evaluating the consistency of all discretionary actions in the
coastal zone with those policies. When a proposed project is located within the coastal zone and
requires a local, state, or federal discretionary action, a determination of the project's consistency
with the policies and intent of the NWRP must be made before the project can proceed.
A proposed action or project may be deemed consistent with the NWRP when it
will not substantially hinder and, where practicable, will advance one or more of the ten NWRP
policies. RD at 97. The Examiners correctly held that the project is not consistent with the
City's NWRP. RD at 117. TGE raises, in vain, exceptions to this determination.
First, TGE claims that the RD misinterprets the no-action alternative. TGE Brief
on Exceptions at 46. Although TGE recognizes that the Article X regulations, 16 NYCRR §
1001.2(c), require an evaluation of "adverse or beneficial site changes that are likely to occur in the reasonably foreseeable future, in the absence of the project," TGE concludes that "under no
18 scenario could the proposed rezoning be characterized as 'likely to occur."' TGE Brief on
Exceptions at 46. As shown above, TGE's conclusion that the rezoning is not likely to occur is a baseless rejection of all the evidence showing that the rezoning is a reality.
Secondly, TGE claims that there is no basis for the Examiners to have compared the consistency of proposed project with the NWRP relative to the consistency of the no action alternative - the LUAWP. Here again, TGE is in denial. As discussed above, the City's
LUAWP, which includes the mapping of the Bayside site as a park, together with a major rezoning initiative, is moving forward. TGE would have the Board proceed in a vacuum, without any recognition of the fact that one of the most significant land use initiatives in City history is underway. TGE claims that Article X and the NWRP require that the Board make its determination without even considering the LUAWP, notwithstanding that certification of the plant would foil the City's plans for the centerpiece of the land use initiative - the 28 acre park encompassing the Bushwick Inlet - and would undermine the City's opportunity to reclaim for the benefit of its residents one of the most unique and visually stimulating stretches of waterfront property in the world. Neither Article X nor the NWRP is that short sighted. The RD's contemplation of the LUAWP as a no-action alternative is wholly consistent with both 16
NYCRR § 1001.2(c) and the NWRP.
Indeed, TGE acknowledges that the NWRP provides that "reviewers will be guided by descriptions, standards and criteria set forth in each policy, as well as any relevant recommendations in the Comprehensive Waterfront Plan, the Borough Waterfront Plans, and adopted 197-a plans for areas within the coastal zone." TGE Brief on Exceptions at 47. Just as adopted 197-a plans guide reviewers assessing coastal consistency, so does the LUAWP, which, as shown above, is the direct outgrowth of the 197-a plans. And, for that matter, the Examiners'
19 II' t , inconsistency determination is further supported by the fact that the plant cannot be reconciled
with the 197-a plans, which are specifically referenced in the NWRP as bases for a consistency
analysis.
B. TGE's Exceptions With Respect to Specific NWRP Policies Are Incorrect
1. NWRP Policy 1
Policy 1 of the NWRP is to "Support and facilitate commercial and residential
redevelopment in areas well-suited to such development." Paragraph 1.1. A. of Policy 1 states:
"Criteria to determine areas appropriate for reuse through public and private actions include: the lack of importance of the location to the continued functioning of the designated Special Natural Waterfront Areas or Significant Maritime and Industrial Areas ("SMIAs"); the absence of unique or significant natural features or, if present, the potential for compatible development; the presence of substantial vacant or underused land; proximity to residential or commercial uses; the potential for strengthening upland residential or commercial areas and for opening up the waterfront to the public; and the number of jobs potentially displaced balanced against the new opportunities created by redevelopment."
The City's LUAWP and rezoning proposal is a prime example of the
incorporation Of NWRP Policy 1.1. A into zoning and land use decisions. Policy 1.1. A supports
and facilitates commercial and residential development that would revitalize the waterfront. The
presence of substantial vacant and underutilized land in the area, and the proximity of the
Bayside site to a stable upland community that would benefit from connections to the waterfront
exactly fit the criteria of Policy 1.1. A., which in turn, helps determine areas appropriate for reuse
as new housing and open space opportunities. Consistent with Policy 1.1.A, the rezoning
proposal converts all M3 districts in this area to residential districts.
20 I < ' > In contrast, notwithstanding TGE's assertions, the proposed 1,100 megawatt
power plant, an industrial use suitable for heavy manufacturing district, would be incompatible
with the goals of advancing residential and open space development in the area. These goals will
be achieved by the creation of a public park at the Bayside site, and the incorporation of the
Bushwick Inlet into that park, to advance and support new residential and recreational uses. By
placing a new industrial use in an area determined to be well-suited to commercial and
residential development, and on a site determined to be well-suited for a public waterfront park,
TGE's proposal substantially hinders Policy 1.1.A. As the Examiners recognized, the City's
plans for this waterfront area in general, and for the site in particular, would be thwarted by the
construction of the proposed power plant. RD at 112.
For the same reasons, the project violates Policy 1.2.A, which is to "Encourage
non-industrial development that enlivens the waterfront and attracts the public." TGE's proposal
to locate a 1,100 megawatt power plant on the Bayside site substantially hinders this policy.
TGE's claims that the plant will be "visually appealing" does nothing to mitigate this substantial
hindrance.
2. Policy 8
Policy 8 of the NWRP encourages both physical and visual public access to the
waterfront. Paragraph 8.2.A. states:
Encourage the development and maintenance of high quality public spaces in appropriate locations, particularly those that would facilitate connection of existing waterfront public access spaces and allow continuous access along the shore. The requirements of the New York City Zoning Resolution should guide the location and quality of public access areas.
21 r > ' » • ,As described above, the LUAWP will incorporate continuous public access along the water's
edge. The Bayside site, which is adjacent to (or, depending upon the property line, close to) the
southern shore of the Bushwick Inlet, is essential to the parkland mapping because of its location
on the Bushwick Inlet. Inclusion of the Bayside site in the park will allow water based recreation
around the inlet, and continuity with the rest of the 28-acre park that will exist both to the south
of the site and on the north shore of the inlet.
In its Brief on Exceptions, TGE attempts to show consistency with Policy 8.1 and
Policy 8.3. Significantly, TGE completely ignores Policy 8.2. The reason TGE completely
disregards Policy 8.2 is because it cannot reconcile the project with that policy. The siting of the
proposed power plant would prevent the development of the public park and prevent and
continuous access along the shoreline. Thus, the project would substantially hinder Policy 8.2.
Accordingly, the Examiners properly determined that the proposed 1,100
megawatt power plant would be inconsistent with the policies and intent of the NWRP, and
would have adverse impacts on the City's plans to redevelop the East River waterfront in
Brooklyn.
C. TGE Does Not Satisfy The NWRP Four-Part Override Test For Projects That Are Inconsistent With One Or More Of the Ten NWRP Policies.
A project that substantially hinders one or more policies of the NWRP, as the
TGE project does, can still be approved under the NWRP if it satisfies all parts of a four part
override test. RD at 112-113. Because the Examiners determined that the project substantially
hinders Policies 1, 8 and 9 of the NWRP, they assessed the project against the four-part test. RD
at 112-117. The Examiners correctly held that TGE cannot pass the four-part test. Most
significantly, TGE takes exception to the Examiners' determination with respect to the fourth
part, which requires the applicant to show that "the action would result in an overriding local
22 / v • » rpublic benefit." RD at 113. In its Exception A, TGE claims that "the RD erroneously omits or
minimizes project benefits," and thus "erroneously concluded there was no statewide or regional
benefit that the Project offered for the Coastal Zone Management ('CZM') consistency
certification." TGE Brief on Exceptions at 8. TGE then discusses the possible economic and
environmental benefits of the project. Id. at 9-12.
In its discussion, however, TGE ignores the major impact of its project - its effect
on the City's long term plans for the area. Absent from TGE's statement of the project benefits
is any reference to the fact that the City has proposed one of the most comprehensive land use
initiatives in City history, and that the project flies in the face of that initiative. The public
benefit prong of the NWRP four-part test requires a balancing of public benefits against public
harm. In this case, all of the projected benefits are completely outweighed by the adverse
impacts that the plant would have on the City's land use plans, including the park acquisition.
As the Examiners held, "While savings projections [resulting from the project] are interesting,
they should be given little weight as a countervailing benefit to be balanced against palpable
adverse environmental impacts that would result from construction of the proposed facility." RD
at 119.
The adverse impacts that the TGE project will have on the sound urban planning
goals for the two-mile stretch of Brooklyn waterfront, as well as the upland community, are
insurmountable. The project, therefore, could never be determined to be consistent with the
NWRP.
23 ' t CONCLUSION
For the foregoing reasons, the City respectfully requests that the Board adopt the
Recommended Decision, and deny certification TGE's proposed facility.
Dated: New York, New York April 30,2004
MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for the City of New York 100 Church Street, Room 6-131 New York, New York 10007 (212)788-1574
By: IJJUM**~ S f^Vfj/jt^ William S. Plache Assistant Corporation Counsel Environmental Law Division
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