What do you do, as a private party, when you want to overturn or halt an administrative agency’s action? As we previously discussed in the context of private corporations, you file an Article 78 petition. This type of proceeding is commonly used for everything from attempting to overturn an e-cigarette ban, to a declaratory judgment to force the city to accept and post advertisements expressing a particular point of view on religion.
Recently, various groups have utilized Article 78 seeking to reverse the redesign of certain streets to exclude bike lanes and remove bike-share stations. The bike-share suits have sought to challenge bike-share stations in front of the Plaza Hotel, in Soho’s Petrosino Square, at 99 Bank Street, and a Brooklyn station in front of 150 Joralemon Street. The two bike lane suits have sought to remove bike lanes in Kips Bay on 37th Street between First Avenue and the East River Greenway and in Park Slope, on Prospect Park West between Union Street and Bartel Pritchard Square.
The law is well settled that courts may not overturn an administrative agency’s decision or action if that action had a rational basis and was not arbitrary and capricious. Goldstein v. Lewis, 90 A.D.2d, 748, 749 (1st Dep’t 1982). Typically, an administrative agency’s decision will not be overturned simply because the court would have reached a contrary conclusion. Sullivan County Harness Racing Assoc. v. Glasser, 30 N.Y.2d 269, 278 (1972). Instead, if a court finds that the action does not have a sound basis in reason and was taken without regard to available facts, that action will be deemed arbitrary. Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester Co., 34 N.Y.2d 222, 231 (1974).
This is no easy feat, as proved by the recent bike lane and bike-share station litigation. The bike-share station cases and the bike lane case disputing the Kips Bay bike lane have been dismissed. The dismissed cases have common points – namely, failing to meet the statute of limitations and failing to prove that DOT acted in an arbitrary and capricious manner. As was pointed out by more than one court, the fact that the plaintiffs disagreed with the location chosen by DOT does not in and of itself make DOT’s actions arbitrary and capricious.
From 2007 until last year, New York City saw a decline of new condominium development. The seven year decline is most likely attributable to the economic downturn and its aftermath. That phase is now behind us. According to the New York Times, at least 6,500 new units are expected across 100 buildings below 96th Street in Manhattan. This is a more than 100% increase from last year, which saw 2,500 new units across 59 buildings. A number of these new units will be in towers near West 57th Street, which are in the beginning stages of construction and expected to open sales later this year.
What does this mean in terms of condominium sales for 2015? Practically speaking, an influx of new development will trigger a reduction in sales prices. The increase in inventory signifies a move from a seller’s market to a buyer’s market. Yet, while the number of “entry level” units priced at less than $1,700 per square foot is also expected to rise, rising land costs means that selling at this price point equals very little in the way of profit for developers. Units in this range, then, will likely be in buildings that start at a lower cost basis or with land that was purchased a few years ago.
While this increase in development indicates good things on the horizon for consumers, a number of market-watchers have concerns that this many high rise, luxury condominiums going on the market at the same time may result in a slow-down in sales. This impact has already occurred at One57, the midtown luxury tower by Extell Development. Still other people do not see a problem and have hypothesized that international and domestic buyers may simply be waiting for the newest buildings to go on the market. Regardless of when they buy, they will certainly have quite a bit from which to choose.