Jeffrey Glen: We are really pleased that we are going to
be representing the Common Council of RIRA (the Roosevelt Island
Residents
Association) and therefore all the residents of the Island in
their whole general approach to assuring that the development
that will occur out here is in keeping with the Master Plan and
in keeping with the needs as articulated at the turn of the
century by those who you who live here.
DeForest and Duer is the third oldest firm in the City, founded
in 1842. The firm's strengths over the years have been
principally in not-for-profit representation. We represent St.
Luke's-Roosevelt, a lot of the work at Columbia Presbyterian, a
lot of the work in the not-for-profit development in the
City...
We are a firm of 24 lawyers, essentially all partners from
various backgrounds. I was head of litigation for New York City.
Bob Cook (who will advise RIRA on non-litigation development
issues) was at Brown and Wood. What you get is partner
representation.
As we see our role, it's in two areas and we hope not a third.
The role is to advise the residents of the Island on issues that
pertain to the Island development. That may mean technical land
use work; for example, there will be Environmental Impact
Statements [EIS] coming up in the future, for sure, although
there was an EIS on that at one point. Southpoint, if there is a
Southpoint [will involve] technical work, but there will also be
work that affects development in a somewhat oblique but necessary
way. For example, when more development is proposed for this
Island, it will necessarily impact on the traffic patterns that
currently exist. This is a small environment. The spill-over
effects are something that developers tend to ignore, and
government often overlooks. We are acutely aware of those
issues. It is a small environment, and people have to look at it
in a large context. We are also very experienced in the
economics of development. Building out here on Roosevelt Island
has certain advantages and certain disadvantages...
In my view, the best representation of community groups is to
tell you what the parameters within which development must occur,
and then for the group to handle the politics. The power is with
the people who are involved in the process. It is true that
developments are affected and can be changed and halted by
litigation. It's expensive. Invariably, the government is on
the other side because it's part of the development. That means
that their lawyering comes free. You cannot go dollar-for-dollar
against the government and big developers. What you have to do
is pick your issues and hit them carefully.
Let's take Southpoint as an example. We all know that in the GDP
(General Development Plan) Southpoint is designed to be parkland
-- the Roosevelt memorial and the possibility of some kindred
ancillary uses. It is not designed in the Master Plan to have
two 26-story in it. I start from that premise: that we are
preserving the original goals in our work on Southpoint. Do you
need to anticipate litigating Southpoint? I hope not. The goal
is to stay out of court. We will, of course, tell you if we
believe things are marching along that can only be stopped by
bringing a lawsuit. We will advise you what kind of a suit can
be brought, estimates on cost, what your chances are, but our
hope is that we'll never have to get there.
...
As far as what we do with you, it's what you ask for. We have a
retainer situation for two reasons -- so that you have a call on
our time, and if you want us to come out here to give you advice,
we're here. If there is a hearing on something and you want to
have counsel at the hearing, we here for you. Secondly, and
really very important, because you're here for the long haul, you
now have one of the city's primary development firms that can
only work for you in the context of all the development of
Roosevelt Island.
We are single-mindedly your lawyers on this stuff.
[Responding to question from Jose Baca:]
Patrick was saying is that one of the things you want to keep
here is the [demographic] mix. Is it a good idea to permit some
luxury, or not, in, for example, the Southtown project? Is the
mix that a particular developer comes with the right mix for the
present residents? If a consensus forms that there is too much
or too little, or not enough planned parking or too much...
[Responding to question from Linda Heimer:]
It is our experience
that if our role is to prevent a particular proposed project --
if you're trying to stop something from happening -- one thing
that's very important is not to jump in too early. If you jump
in too early, several things happen. The first things is that if
the government believes that it is engaged in a process, and you
attempt to stop it before it's gotten anywhere, you can guarantee
that your legal fees will be astronomical, because the inertia of
the governmental process is to let things continue. Hopefully,
at the end of the day they die of their own weight. That happens
frequently. But to attempt to come in early when you don't have
a huge war chest is probably not a good tactic.
[Second,] It is extraordinarily unlikely that any development for
Southpoint or for Octagon Park could proceed anywhere without a
full EIS. Can't guarantee it. But the law of New York is quite
good that what's called "major impact" requires a full EIS.
Surely the Marriott project requires one. Under both the RIOC
statute and the State environmental statutes, there is a fairly
elaborate set of public hearings which precede the production of
any EIS.
I believe that if a well-informed and powerful citizens group,
such as this, makes a substantial contribution in the public
hearing process of the EIS, two things will happen. One is you
may actually get things changed because the developer may see
that it's easier to buy these people off than to fight them. A
second possibility is that if you articulate the positions well
and the EIS that comes out does not incorporate it, you've
created a good litigation tool. You may well decide that the
first thing to spend any substantial money on in the Southpoint
fight is an environmental consultant, not a legal consultant.
Under Jerry Blue you couldn't make predictions about RIOC. But
if they run like a moderately rational agency, I do not believe
they will attempt to avoid the open hearing process. It's in
their statute, it's in the environmental statutes. I can't
overemphasize the importance of having a well-articulated
position at those hearings, because when hearings are given to
the public you've got to use them. You can't avoid them. But
you don't need to have me stand up and say it. In fact, lawyers
are the worst possible people to talk at hearings, because
everybody knows they're mouthpieces. I don't think the cost of
that is going to exceed the retainer.
We have undertaken for six months to work for you for $600 a
month, on the assumption that roughly 20 hours of work will occur
if there's no litigation and no hearings in the first six months.
I believe that is unlikely that you'll exceed the kind of target
we're looking at. You are not hiring us to engage in a
litigation at this point. I don't have to spend ten hours a day
taking depositions of the Jerry Blues of the world. What you
want now is the answers to a series of fairly pinpointed
questions. For example, let's assume that a motion is calendared
for the RIOC Board to have RIOC direct the potential developer of
Southpoint to retain within 60 days experts to start an EIS --
RIOC tells the developer to move faster. You will probably at
that point want to ask me, "Is this the time for us to seek an
injunction?" At which point I will spend an hour looking at that
problem and give you some advice on it.
Second example: Let's assume that a set of hearings is convened
by RIOC into the general question, "Is it time to take a new look
at the GDP?" We have a series of different possibilities coming
on, should we take a generic look at the GDP? That would be
something where you would probably want some counseling as to how
to respond to that kind of a global inquiry coming from
government. ... That probably would take us ten hours... how to
present your positions on a large-scale hearing thing. We do
not believe that there is any substantial likelihood that some
process will begin in the very short term that will lead to a
final designation of a developer for Southpoint. We think you're
looking well down the line on that. It's also not at all clear
from an economic viewpoint that anyone genuinely wants to go
ahead with the kind of money they're talking about. The push
hasn't been moving.
How much will things cost if litigation hits the fan? The kind
of lit that typically comes up in land use starts out generally
with an application by a community group to stop something from
happening, because typically developers get the go-ahead from
government. And they don't have to sue anybody. ItQ's that you
have to try to stop it. There is virtually no cost to our doing
the legal research on that because over the last ten years we
have done so much of that work that we have probably done every
case in the area that would be coming up. The question is how
much does it cost for you to get your lawyers cranked up to go
into court to try and get that initial injunction? You're
probably looking at a minimum of $10,000 and a maximum of
$30,000, if that kind of thing happens. I don't anticipate that
kind of problem coming up for at least a year or so. It may
never come up. If it does, that's what you're looking at. If it
does, you'll have weeks, if not months, of lead time to decide
whether you actually want to spend your money on this kind of
thing. You'll have the benefit of our advice to say, "Here are
your chances of initial success, and ultimate success," which may
be two very different things. [For example...] Here's the cost
to slow it down so you can start mobilizing the community...
[Responding to question from Shirley Margolin:]
Here's how the EIS works, in a nutshell. A lead agency is
designated by the government. In this situation it would be odd
if RIOC did not designate itself to be the lead agency. Under
the lease and the GDP it is 80% likely that any development at
Southpoint would require a modification of the ground lease and a
modification of the development plan, and if so, it is 90% likely
that if RIOC didn't ask the City to join them in that process and
you asked me to sue them, we would win that particular little
piece of litigation. But I don't think they're going to do that.
I don't think they're going to try to cut the City out, because
politically, it's just too nutsy to do. Assuming that RIOC
decides that it wishes to go ahead to enable something to happen
at Southpoint, it will initiate an EIS process, and it can do it
2 ways. In theory, the government can do it itself. [But] It is
extremely unlikely that RIOC would get an appropriation from the
legislation to do its own EIS. Consequently what is very likely
is that if RIOC continues to stay in bed with the Jamal operation
(which proposed the twin-tower hotel for Southpoint), they will
invite them to initiate an EIS process with making RIOC the lead
agency, meaning that's where the material comes to. The City's
role in that will be as a resource, not as a player. The various
city agencies that operate on the Island will be contacted in the
EIS process and will give their input. The City may well decide
it has a view. But it may simply be a resource in the process.
If the EIS does not consider the effect of modifications in the
lease and the GDP, I believe it would be rejected by anybody
looking at it. Consequently it's very likely that the Mayor's
office and the City Planning Commission will be asked for their
views on the environmental impact of various types of changes in
the lease and GDP. How long would that process take? Minimum,
six months, maximum, probably ten. At the end of the process a
large number of volumes of unreadable and uncarryable stuff gets
dumped on the desk of somebody over at RIOC and that the is the
proposed or preliminary EIS. Then there's another hearing
process. I suspect that the city planning commission would give
comments on the preliminary EIS.
What's the role of the Land Use Committee of the City Council or
the Council per se? It's probably the role that they want to
take. There is nothing in the environmental impact process that
says the local political power must participate or can't
participate. It's really what they want to do. By the time this
all happens we're going to have a new Mayor. Is it going to be
good, bad, or neutral from your viewpoint of what should happen
at Southpoint to get your local council people involved at the
EIS level or do you want to hold them back? My general feeling
on this is that the time to pull the politicians out is when they
are trying to change the lease. But that may change. So, in a
nutshell, I think the City Planning Commission will be involved
as a resource. I think they will probably comment. The Police
Department, the Fire Department, the Sanitation Department will
give their input to any EIS and that's going to be important
impact on this Island because of the geography. There are things
that we would raise. For example, "Have you asked the Corps of
Engineers for their view?" That's always a good bunch to ask
because they are really slow at doing anything.
[Responding to a Mark Ponton question about Southtown:]
I don't know whether the Southtown that is about to be built is
considered a major modification or a minor modification under the
law. If somebody were to ask me, "What do you think is the point
of vulnerability on Southtown?" the first thing that I would look
at is to see whether whatever changes occurred from the plan that
was approved by the Board of Estimate fall within the concept of
major modification. Because if they do, it raises a very
interesting legal point (and "interesting" always means delay),
which is, "Does the City Council take up where the Board of
Estimate left off when they got rid of the Board of Estimate?"
If RIRA wanted to attempt to stop Southtown (and I must say until
you mentioned it, nobody has said that to me), if that were the
position, the initial place I would look at is whether there was
an appropriate process in changing whatever was changed from the
Board of Estimate approval, and the one thing I can be absolutely
sure about is that, six years later, something's been changed.
That's where the legal vulnerability would be. But to start that
kind of an action you have to be very convinced that you're
willing to carry it through to the highest court in New York
State, because you can be guaranteed that if you win [in a lower
court], the government will appeal, and once the government
appeals, it's as if you hadn't started. because under the rules,
government filing a notice of appeal essentially wipes out the
lower court decision; you start again at the higher level. ...
Construction usually doesn't start because the banks won't fund
it in that situation, but it's not a legal issue, it's because
you can't get the economics. Having said all of that, knowing
nothing about Southtown, I have no idea if you want to do
something seriously or not, I have never seen a major project in
the City of New York that was the subject of litigation that
didn't have at least a six-month delay simply by bringing the
case. It's just the way the world works.
[Responding to question from Graham Cannon:]
Let me answer that in a way that is really direct and cruel.
Unless RIRA wants to pay me to look into that, for me to shoot
from the hip on how to mitigate traffic impact on a plan I
haven't read, is not what a lawyer should do. What I would do,
sir, because time is really important on the Southtown thing, if
there is a substantial body of people within the RIRA community
that want to have a hard look taken at whether the Southtown
that's being built can be improved, I think that's something you
should do very quickly, and then, come to us if you want to do it
and we can start talking about what it would cost you.
If you have identified a problem which is not fully analyzed in
the existing EIS, which is now, I think, six years old, because
of changes in the plan, in theory you could go to court to see if
a judge agrees that it's a sufficiently major change to require
an updating of the EIS. So the answer is, there is a legal
process available to you. Whether it's applicable in this
situation, I can't begin to tell you.
[Responding to question from Jose Baca:]
...If you know what you're talking about, and you say, "This
design is foolish," what you may be able to do is make them take
a "hard look" at your position. But if they do so and then
disagree with you, that's democracy.
[End of partial transcript]
me, state its purpose and define its parameters. You, the
community, responded by contributing almost $10,000 with another
$10,000 in pledges. You did this virtually without anyone asking
you to, because you knew how much was at stake. We're here
tonight to ask you to do it again.