SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

ALTERNATIVE SOUTHTOWN DESIGN COMMITTEE,

Petitioner,

For a Judgment Pursuant to Article 78 of
the Civil Practice Law and Rules

-against-

ROOSEVELT ISLAND OPERATING CORPORATION,

Respondent.

    Petitioner, Alternative Southtown Design Committee, is an unincorporated association of residents affected by a proposed housing project approved by Respondent for construction on a vacant site on Roosevelt Island, New York, called "Southtown". Respondent is the State agency responsible for developing the Island.

    The proposed project is a modification of an earlier one which was not built. The original project, however, was reviewed in an environmental impact statement ("EIS"), as mandated by the State Environmental Quality Review Act ("SEQRA"). In contrast, the modified project has not been subjected to the EIS process.

    Petitioner brings this Article 78 proceeding to challenge the approval of the modified project. It contends that the changes to the project give rise to "new" and "significant" adverse environmental impacts. SEQRA requires that they be analyzed in a "supplemental" EIS.

    Petitioner also seeks to annul the Respondent's approval of the modified project because it conflicts with the "General Development Plan" ("GDP") for Roosevelt Island that controls its development.

    As a consequence of these violations, Petitioner requests an order (i) annulling Respondent's decision to approve the modified project; (ii) requiring Respondent to further modify the project so that it conforms to the GDP; and (iii) requiring Respondent to prepare, file and circulate a "supplemental" EIS.

    The Court is respectfully referred to the Petition for a statement of the background of Roosevelt Island and the Southtown site, as well as for the various proposals made for its development.

    Of particular significance to this proceeding are the following facts:

        1.    Since enactment of SEQRA, all prior proposals for development on Roosevelt Island have been subjected to the EIS process.

        2.     Respondent's request for proposals for Southtown's development stated it "may require an updated SEQRA review". Petition, Para. 25.

        3.    Respondent's approval of the modified project was conditioned upon the developers obtaining an environmental consultant's report having the specific result that "there would be no significant impact on the environment." Petition, Para. 45.

        4.    Respondent has repeatedly recognized that all development "must" adhere to the Island's "General Development Plan". Petition, Para. 18, 20 and 26.

    Set forth below is a summary comparison of the differences between the original project proposed in 1990 and the modified project approved in 1999. References to exhibits hereinafter mentioned will refer to those attached to the Petition.

	Original Project (Exhibit L)	Modified Project (Exhibit H)
1.	A large Commons Area separates Blackwell House and the existing Northtown from the proposed Southtown.	No Commons Area.
2.	Nearest Southtown building is approximately 320 feet from Blackwell House.	Nearest Southtown building across street from Blackwell House, less than 100 feet. Second building also close to the House.
3.	Shadow analysis shows almost no shadows cast on Blackwell House.	No shadow analysis made; shadows will be constantly on House.
4.	Unobstructed view of Queensboro Bridge from existing Main Street in Northtown.	View of Bridge blocked by construction of 16 story "wall" which is backside of building.
5.	North-South orientation of Roosevelt Island maintained; views of Southtown from Northtown and vice versa continued; no visual or physical separation of communities.	North-South orientation eliminated; no view of Southtown from Northtown and vice versa; barrier created in Northtown, and loss of continuity.

    To accomplish this goal, SEQRA requires a "lead agency" to determine whether its actions to approve a project "may" have a "significant impact on the environment." If so, an environmental impact statement ("EIS") must be prepared, circulated and filed. To signify the scope of SEQRA, the word "impact" is defined as "to change or have an effect on any aspect of the environment". Part 617.2 (r).

    The use of the word "may" should be noted: it is the possibility of a significant impact that triggers SEQRA's requirement of an EIS, not its probability or certainty. This standard is more demanding than that under the Federal law upon which SEQRA was modeled. It requires an EIS only for action "significantly affecting" the environment. In contrast, SEQRA requires an EIS for any action which "may" have a significant effect. See H.O.M.E.S. v.N.Y.State Urban Dev., 69 A.D. 2d 222, 418 N.Y.S.2d 827 (4th Dept. 1979) at 832.

    Thus, the statute places a heavy responsibility on officials considering a project requiring that "all agencies conduct their affairs with an awareness that they are stewards" and have an "obligation to protect the environment for...this and future generations."

    In WEOK Broadcasting v. Planning Board of Lloyd, 79 N.Y. 2d 373, 592 N.E.2d 778, 583 N.Y.S. 2d 170 (1992) at 173-175, the Court of Appeals summarized the requirements of SEQRA as follows:

    1.    The purpose of SEQRA is "to inject environmental considerations directly into governmental decision making."

    2.    In furtherance of that purpose, "the information obtained by lead agencies through the SEQRA process enables the State and local officials to intelligently assess and weigh the environmental factors, along with social, economic and other relevant considerations, in determining whether or not a project or activity should be approved or undertaken in the best overall interest of the people."

    3.    "SEQRA seeks to strike a balance between social and economic goals and concerns about the environment by requiring an agency to engage in a systematic balancing analysis in every instance".

    4.    "Aesthetic considerations are a proper area of concern in the balancing analysis inasmuch as the Legislature has declared that the 'maintenance of a quality environment...that at all times is healthful and pleasing to the senses' is a matter of State-wide concern."

    5.    The lead agency must take a "hard look" at the proposal "before making its final determinating and must set forth a reasoned elaboration for its determination."

    6.    "...an agency's compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals."

    7.    "Where an agency fails to take the requisite 'hard look' and make a reasoned elaboration, or its determination is affected by an error of law, or its decision was not rational, or is arbitrary and capricious, or not supported by substantial evidence, the agency's determination may be annulled.".

    The regulations under SEQRA address the issue of when a "supplemental" EIS is required. Thus, Part 617.9(a)(7): "Preparation and Content of Environmental Impact Statements, Environmental impact statement procedure," states:

"Supplemental EIS.

(i)   The lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from:

('a') changes proposed for the project;"

"Whether the UDC properly issued its negative declaration that the project will have no significant impact on the environment...depends upon whether it made a thorough investigation of the problems involved and reasonably exercised its discretion...To support UDC's determination, the record must show that it identified the relevant areas of environmental concern, took a 'hard look' at them...and made a 'reasoned elaboration' of the basis of its determination." 418 N.Y.S.2d at 832.

    In adopting the "hard look" standard, the Court of Appeals articulated the role of the court as follows:

"In reviewing the issuance of a negative declaration our task is to determine whether the agency 'made a thorough investigation of the problems involved and reasonably exercised its discretion...The limited issue for review is whether the decision makers identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for their determination." HAR Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, 549 N.Y.S.2d 638, 548 N.E.2d 1289 (Ct. App. 1989) at 640 and 642.

    Therefore, in this Article 78 challenge to Respondent's determination to approve the modified project, Petitioner must demonstrate that (i) the original project has been "changed" and gives rise to "new" and "significant" adverse impacts; (ii) these have not been previously studied in the EIS for the original project; (iii) Respondent has not "thoroughly investigated" these new impacts or taken the requisite "hard look" at them; and, thus, its determination should be annulled.

    In response to these contentions, Respondent must demonstrate that it (i) identified the significant areas of environmental impact; (ii) thoroughly investigated and took a 'hard look' at them; and (iii) made a reasonable elaboration as to why the proposed project did not raise new and significant, adverse environmental impacts so as to require the filing of a "supplemental" EIS.

B.	New Adverse Environmental Impacts:

    Amongst the new adverse environmental impacts resulting from the modified project are the following:

        1.    The modified project calls for construction of two high rise buildings close, and substantially contiguous, to an historic resource, "Blackwell House". This construction will cause shadows to be cast all day long on that small frame farmhouse, dwarfing its character and scale, and creating a permanent negative visual impact.

        2.    The modified project will block views from the existing "Northtown" community of the Queensboro Bridge, another historic Island resource. Instead of continuing to see the Bridge, existing residents will view the back of a 16 story building resulting in a permanent negative visual impact.

        3.    The modified project eliminates the North-South orientation of the Island, visually and physically cutting off the existing community in Northtown from the new one in Southtown. This not only results in a permanent negative visual impact but impairs the character and urban design of the Island by eliminating a sense of continuity that now exists amongst its buildings. In effect, Southtown will be a separate town from Northtown, the opposite of the existing Island's design and character as well as in conflict with the Island's "General Development Plan".

        4.    Finally, the modified project eliminates the large, open, buffer space between Blackwell House and the Southtown site which is called the "Commons" in the original project. That open area helped preserve the scale of Blackwell House, as well as provided space and distance in which to continue to view the historic Queensboro Bridge from the existing community. Since, no wall existed to block views of the Bridge from the existing community, the two sites, Northtown and Southtown, were also integrated with a sense of continuity between them. All this is impaired by the modified project's elimination of the Commons.

    Petitioner contends that these changes are "significant" since they alter the urban design and visual character of the Island and permanently impair two of its historic resources, As a consequence, Petitioner contends that Respondent was required by law to prepare and file a "supplemental" EIS.

C.	Case Law Involving Changes to a Project and the Need for a Supplemental EIS:

    In general, courts have been reluctant to annul an agency's determination that changes to a project are "not" significant and that it has taken a sufficiently "hard look" at the possible adverse environmental impacts involved. As the Court of Appeals stated:

"Agencies have considerable latitude evaluating environmental effects...[and] while judicial review must be meaningful, the courts may not substitute their judgment for that of the agency..." Akplan v. Koch, 75 N.Y. 2d 561, 555 N.Y.S.2d 16, 554 N.E.2d 53 (1990) at 555 N.Y.S.2d 20.

    It further indicated that:

"it is not the court's role to evaluate de novo the data presented to the agency...[and] the court must...be guided by a rule of reason and refrain from substituting its judgment for that of the agency." Akplan, supra at 21.

    Thus, Petitioner recognizes that this Court should not lightly overturn Respondent's "negative declaration of non- significance" and its conclusion that the modified project contained "no change" in the project and will "not" result in any "new or substantially greater adverse environmental impacts" than the original project.

    However, when a project moves the location of its buildings, the courts have recognized that a "change" in the project has occurred that may give rise to new adverse impacts. For example, in Jackson v. N.Y.State Urban Development, 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E. 2d 429, (1986), the Court of Appeals upheld a "negative declaration of non-significance" and did not require the filing of a "supplemental" EIS where the project's buildings did not change, stating:

"UDC's analysis of the modifications [to a proposed project] showed that they would 'not involve any increase in the height, location or bulk of' the building, and would not have an adverse impact on social or street conditions, historic resources, energy, economics or aesthetics...On this basis, UDC determined that the site 7 modifications would have no significant environmental impact and found 'that the FEIS adequately and fully describes the environmental impacts of the Project after giving effect to such changes and developments in the Project." Jackson, supra, 503 N.Y.S.2d at 312,

    The First Department in Wilder v. N.Y.S. Urban Development Corp., 154 A.D.2d 261, 546 N.Y.S. 2d 95 (A.D. 1st Dept. 1989), also focused on whether the "height, bulk and location of a structure" remained the same in determining whether a "supplemental" EIS was required. In that case, the court upheld the agency's determination not to require the filing of a "supplemental" EIS because the building remained identical in its structure and location, with only its use changing from a wholesale mart to an office building. The court stated:

"Appellants have not stated in any way in which use of a building as a wholesale mart differs materially from the use of an identical structure as an office building (the height, bulk and location of the structure remaining the same)."

    In a Third Department case, Dreves v. NY Power Authority, 131 A.D.2d 182, 520 N.Y.S.2d 956 (A.D. 3rd Dept. 1987), the court concluded that a "supplemental" EIS was not needed because there was no change in the environmental impacts resulting from the changes made to the project. It stated:

"The larger number of channels [for a microwave communication system project] will not change the electromagnetic field created and, therefore, will not change the environmental impact."

    In a Fourth Department case, Main Seneca Corp. v. Erie County Indus. Dev., 125 A.D.2d 930, 510 N.Y.S.2d 326 (A.D. 4th Dept. 1986), the court upheld the agency's approval of a project without the filing of a supplemental EIS because the "EIS statement adequately addresses the impact of stadium construction upon parking" and the "repositioning of the stadium caused no significant effect". at 327.

    Finally, in Kahn v. Panic, 90 N.Y.2d 569, 664 N.Y.S.2d 584, 687 N.E.2d 402 (1997), the Court of Appeals annulled a negative declaration of non-significance by a lead agency and ordered the preparation of a supplemental EIS for a revised project that "differed dramatically" from an earlier project. The facts in that case are egregious because the lead agency's environmental consultant had identified areas of concern that were ignored by the agency in approving the modified project.

    The analysis in the aforementioned cases support Petitioner's contention that a "supplemental" EIS is required to analyze the modified project and its impacts. For example, as emphasized in both Jackson and Wilder, two buildings in the modified project have been "moved" and are to be built in the formerly preserved "Commons" area; they will negatively impact two historic resources, Blackwell House and the Queensboro Bridge. The changed location also means these buildings will cast shadows all day long on Blackwell House, an environmental impact not studied previously since the buildings of the original project were located much further away from Blackwell House and the "Commons" area was preserved. As noted in Dreves and Main Seneca Corp,, when changes to a project do give rise to new impacts which are significant, a supplemental EIS is required. Finally, as in Kahn, the two projects in the instant case are very different, and the Court's conclusion therein is apt here::

"Despite the Board's reliance on the EIS prepared in connection with the Delco project [original project], the impact of the project proposed by LCS Realty [modified project] differed dramatically from the Delco project..." Kahn, supra, at 586.1

    Finally, the court should note that since enactment of SEQRA all prior proposals for development on Roosevelt Island (Northtown Phase II and the Southtown original project) were subjected to the EIS process under SEQRA. Only Respondent's decision herein challenged seeks to avoid such a review.

D.	Respondent Improperly Relied Upon a Flawed Environmental Report that was Conditioned on a Specific Result

    Respondent's approval of the modified project was made in reliance on an environmental report, attached as Exhibit K, which was prepared for its consideration by a consulting firm hired by the private developers. Respondent's approval of the modified project, however, was conditioned on a specific result: only if the report showed no new environmental impacts existed, Exhibit L, p.2, Para.V.

    This condition improperly affected Respondent's review. It's duty under SEQRA required it to "thoroughly investigate" and take a "hard look" at new and significant impacts, not rely on a report that was pre-conditioned to conclude none existed. This reliance is analogous to the failure of a lead agency to take cognizance of new material which was highly relevant and at the heart of environmental objections to a project. See Glen Head v. Town of Oyster Bay, 88 A.D.2d 484, 453 N.Y.S.2d 732 (2nd Dept. 1982).

E.	New Impacts Not Previously Studied in the EIS nor Adequately Reviewed in the Environmental Report

    The new impacts of the modified project not "thoroughly investigated" by Respondent concern (i) the historic resources of Blackwell House and the Queensboro Bridge as well as (ii) the visual character and urban design of Roosevelt Island.

    To assist the court in reviewing Respondent's determination to avoid filing a "supplemental" EIS on the basis that the modified project represented no "change" to the project and did not give rise to any "new" "significant" impacts not previously addressed in the EIS for the original project, set forth below is an analysis at how these areas of environmental concern are treated in the EIS as compared to the consultant's report relied upon by Respondent. The comparison demonstrates Respondent's failure under SEQRA to take the requisite "hard look" at these impacts.

        1.    Blackwell House:

    The EIS for the original project indicated that the "Commons" area would provide "open space, complementing Blackwell Park, which surrounds the house, and creating a buffer between the project and North town". Exhibit G, p. S-5-7. Its closest buildings to Blackwell house are approximately "320 feet away... more than twice as far from Blackwell House as North town is...". Exhibit P, p. II.E-11.

    Even with that buffer space, the original project was considered to have a negative visual impact on Blackwell House by the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP"). Exhibit G, p. S-6.

    In contrast to the original project, the modified project calls for a building 16 stories high to be built across the street from Blackwell House, less than 100 feet away, in the very "Commons" area preserved in the original project to provide a buffer between the historic Blackwell House and the Southtown buildings. If the original project created a negative visual impact according to OPRHP, a fortiorari, the modified project creates an even more significant and greater negative visual impact.

    Despite the elimination of the Commons and placement of two buildings close to Blackwell House, the consultant's report gives an erroneous and cursory treatment of these impacts, stating:

"The 1990 project would be developed with an open space buffer between the South town building closest to Blackwell House. Current plans show that two of the new South town buildings would be closer to Blackwell House than the 1990 plans. However, there would still be open space buffers to maintain the historic context of the House." Exhibit K, p. 5.

    This summary treatment of the impact on Blackwell House not only ignores the negative visual impact on Blackwell House cited in the EIS by buildings which were far more distant from it than those in the modified project, but is erroneous in suggesting that "open space buffers" will still exist "to maintain the historic context of the House." As the court can see in Exhibit H, the building closest to Blackwell House in the modified project is placed right in the open space buffer "Commons" area and across the street from Blackwell House. Thus, no open buffer area will exist. Moreover, these two buildings will dwarf Blackwell House's character and impair its historic context.

    It is also erroneous and a gross exaggeration for the consultant's report to conclude that "Similar visual effects would result from the revised program." Exhibit K, p.5. This cannot be accurate since the two buildings placed next to Blackwell House will create far more significant impacts on that small frame farmhouse than the original project,

    Shadows on Blackwell House were an impact specifically studied in the EIS for the original project since they impair the visual impact of that historic 18th century wooden frame farmhouse. See Exhibit O and Q, pp. II.F-11,12. The EIS indicated that "the proposed development would cast shadows on Blackwell House in the winter (December 21) for a short time after noon, but these shadows would be well off the house by 3:00 P.M.". Petition, Exhibit G, p. S-6. A complete shadow analysis was made in the EIS which is attached to the Petition as Exhibit O.

    In contrast to the EIS, no analysis has been made of the shadows to be cast on Blackwell House by the modified project. Instead, an erroneous and generalized one sentence statement is contained in the consultant's report: "Shadows from the proposed modified program would not be significantly different from those analyzed in the 1990 FEIS". Exhibit K, p. 6.

    This too cannot be accurate. Shadows will be cast, all day long, on Blackwell House by two of the proposed buildings, one 16 story high across the street and the other 21 stories high on the east side (Queen's side) and to the south of Blackwell House.

    2.    Queensboro Bridge

    The EIS for the original project was also concerned with the views from Main Street in North town of the South town site and Queensboro Bridge. The original project maintained these views. As the EIS stated:

"Since the nearest buildings would be shorter than the Queensboro Bridge, the Bridge would continue to dominate the landscape below...From most perspectives, views of the Bridge would not change." Exhibit G, p. S- 6/7.

    Despite the preservation of Bridge views, the "OPRHP has stated that the proximity of the proposed project would have a negative visual impact on the Queensboro Bridge." Exhibit G, p. S-6.

    In contrast to this analysis of the impact of the original project on the historic Bridge, no analysis was even made of this issue in the consultant's report relied upon by Respondent. It is silent, yet the placement of a 16 story building across Main Street and Blackwell House, at the very beginning point of the South town site (when approached from the existing community), results in a complete screening of the Bridge. If the original project presented a negative visual impact according to OPRHP, a fortiorari, the modified project presents a more significant adverse impact on this historic resource.

    These examples of how the historic resources of Blackwell House and the Queensboro Bridge were analyzed in the EIS for the original project and then dealt with summarily or not at all in the consultant's report relied upon by Respondent to avoid filing a "supplemental" EIS, demonstrates that Respondent has not "thoroughly investigated" the impacts nor taken the "hard look" required by SEQRA.

    3.    Visual Character and Urban Design:

    The EIS for the original project indicated that "From North town....[current views] would be replaced by views of the landscaped Commons and the new residential buildings [and] distinct view corridors to the Bridge would be created down Main Street". Exhibit G, p. S-7.

    The EIS also stated:

"The proposed project would establish a coherent image of the site from all vantage points. From North town, the view south from Main Street would open up into the large landscaped Commons...At the same time, the proposed project would provide a sense of enclosure to Blackwell Park and the Meditation Steps..." Exhibit Q, p. II.F- 8.

    This "coherent image" and the North-South orientation is eliminated by the modified project because of the 16 story wall created by the backside of the first building to be constructed across from Blackwell House. It will block all views of South- town as well as of the Queensboro Bridge in the distance. Instead of a "coherent image" of Southtown from "all vantage points", the modified project will separate it from Northtown, create a barrier between the two communities, and, thus, permanently impair the Island's visual character and urban design.

    As the courts have noted, the "hard look" standard of judicial review of a determination made under SEQRA must have a "degree of detail devoted to the analysis of each issue...considering the nature and magnitude of the proposed action and the significance of its potential impact." Aldrich v. Pattison, 486 N.Y.S.2d 23, 107 A.D.2d 258 (2nd Dept. 1985) at 36.
    The cursory treatment of shadows and the ignoring of the impact on the historic Queensboro Bridge are just two examples of the failure of the environmental report to identify new and significant adverse impacts of the modified project. Respondent's reliance of such a flawed report makes clear that it failed to meet the "hard look" test in sufficient detail as required by Aldrich, supra.

POINT II.

THE MODIFIED PROJECT VIOLATES THE GENERAL DEVELOPMENT PLAN FOR ROOSEVELT ISLAND

    The "General Development Plan" ("GDP") for Roosevelt Island (Exhibit B) sets forth criteria for its development, covering such topics as the "Basic Program", "Land Use", "Design Criteria" and "Circulation" requirements. [The Island itself is leased to Respondent by the City of New York pursuant to a 99 year Lease made on December 23, 1969 which has the GDP attached thereto.]

    Respondent has repeatedly recognized that all Island development must conform to the GDP; that it "controls" the process and determines what can be built.. Petition, Para. 20. This follows from the Lease itself which states the lessee's obligation is "to prepare designs, plans and specifications for the Improvements called for by the General Development Plan." The word "Improvements" is defined in the Lease as those buildings "to be provided by Lessee pursuant to the General Development Plan." Even Respondent's enabling statute (McKinney's Unconsolidated Laws, Ch. 26) refers to the GDP as being included in the Lease:

"Section 6390: Powers and duties..."The urban development corporation and the corporation [Respondent] are hereby authorized to enter such agreements with the city as the corporation shall determine to amend, reform or supplement the lease (including the development plan referred to therein)..."

    Thus, there is no question that the modified project must conform to the GDP. Yet it fails to do so in these respects:

    1.    The GDP's "Design Criteria" provide that "Residential building elements in the South Town Area will include both low-and-mid-rise buildings, and residential towers, up to approximately twenty seven stories high, with adjacent lower rise elements..." Exhibit B, p.4.

    The modified project does not contain any "low buildings" nor do its residential towers contain "adjacent lower rise elements."

    2.    The GDP's "Basic Program" requires that "The public streets and pedestrian circulation system within the North and South Town areas will be based on a street system down the length of the Island with a loop within the South Town Area and related access roads, walkways and paths." Exhibit B, p.3.

    The modified project fails to include a loop system or related access roads, walkways and paths.

    3.    The GDP's "Land Use" section requires that the "Open Space Areas" include "Blackwell Park" which is described as "approximately six acres separating the North Town Area and the South Town Area, containing a landmark, the Blackwell House..." Exhibit B, p.4.

    The approximately six acres of Blackwell Park will be compromised by the construction of the 16 story building across the street from Blackwell House. The requirement that Blackwell Park be an open space "separating" Northtown from Southtown will be defeated by construction of that building since it will have the effect of separating the two communities rather than providing an open space between them.

    Because the modified project fails to conform to the GDP, Respondent's approval was unlawful.

    For the foregoing reasons, the Petition should be granted.

Dated: New York, New York
January 24, 2000

Respectfully submitted by

ROBERT CHIRA

_______________________

Attorney for Petitioner
ROBERT CHIRA & ASSOCIATES
909 Third Avenue, 27th Floor
New York, New York 10022
Tel. (212) 339-5525