b.    Second, the 1990 project maintained a view of the historic Queensboro Bridge from the existing community while the new project blocks it entirely. Instead of seeing the Bridge, all existing residents of Roosevelt Island will see a massive wall which is the backside of a new 16 story building that will straddle the one and only existing "Main Street".

c.    Third, the 1990 project maintained a "North/South" orientation to Roosevelt Island, allowing one to view the new project from the existing community. This meant that all residents of the existing community would be integrated with the new one to be built. The new project essentially eliminates that orientation so that only a wall permanently separating the existing community from the new one will be seen.

    9.    The legal grounds for this Petition are as follows:

        (a)   First, a violation of SEQRA and regulations promulgated thereunder has occurred by reason of Respondent's determination to approve the proposed housing development project without the preparation, filing and circulation of a "Supplemental" Environmental Impact Statement" under SEQRA. Had Respondent prepared such a "Supplemental" EIS and subjected the proposed project to full environmental review, the adverse impacts detailed in this Petition would have been scrutinized and mitigation measures adopted, if possible, or changes made to the project so as to avoid these impacts. However, Respondent has failed to prepare, file and circulate such a "Supplemental" EIS. This violated SEQRA as the cases in the accompanying Memorandum of Law demonstrate.

        (b)   Second, Respondent's determination to approve the proposed housing development violates the "General Development Plan" for Roosevelt Island which is part of the Lease made between the City of New York (which owns the land) and a predecessor State of New York agency which assigned the Lease to Respondent. The Lease mandates that all development projects on Roosevelt Island adhere to the General Development Plan. Petitioner alleges herein that a violation of the Lease and General Development Plan has occurred because the proposed project does not conform to the design criteria and other requirements of the General Development Plan. Had Respondent adhered to the General Development Plan in preparing a revised project, these concerns would not be present. Instead, Respondent proposes to build a project which violates its Lease and the General Development Plan for Roosevelt Island.

    10.    This Article 78 proceeding challenges the determination made by Respondent at its Board of Directors meeting on September 22, 1999, approving a plan and project for the development of an open and undeveloped area of the Island called "Southtown".

    11.    The Island is located in the East River between Manhattan and Queens. It is approximately 2 miles long, 800 feet wide at its widest point, comprises 147 acres and has a total resident population of approximately 8,200 persons.

    12.    The Southtown site occupies 19.3 acres of land between the Queensboro Bridge and the existing developed community to its north, known as "Northtown". It is parallel to, and approximates the distance between, 60th Street and 66th Street in Manhattan, while Northtown is parallel to, and approximates the distance between, 67th Street and 75th Street in Manhattan. Attached as Exhibit A are maps and photographs showing the location of Roosevelt Island and the Southtown site.

    13.    In 1969, the City of New York, which owns the Island, requested that the New York State Urban Development Corporation ("UDC") carry out a development program envisioned in a General Development Plan ("GDP") which became part of a Lease of the Island made between the City and UDC (the "Lease"). A copy of the GDP, which is incorporated into the Lease, as originally promulgated, and a copy as amended by the New York City Board of Estimate in 1990, are attached hereto as Exhibit B.

    14.    In 1984, Respondent "RIOC" was created by the Legislature (L.1984, C.899) to assume the administration of the Island from UDC and to assume UDC's obligations under the Lease.

    15.    At present, the Island's residential community consists of a "Northtown Phase I" containing approximately 2,141 low, moderate and middle income residential units, and a "Northtown Phase II" containing approximately 1108 residential rental units.

    16.    In addition to these residential apartment buildings, Roosevelt Island contains several designated New York City landmarks and historic structures listed on the New York State and National Registers of Historic Places, including (i) "Blackwell House", a small vernacular clapboard farmhouse built between 1796 and 1804, and (ii) the "Queensboro Bridge" which was built in 1909. Attached as Exhibit C is a map showing these and other "Historic Resources". Attached as Exhibit D are several photographic views of Blackwell House and the Bridge.

    17.    In 1986, a Final Environmental Impact Statement was issued in connection with the building of Northtown "Phase II", hereinafter called the "Northtown FEIS". A copy of the "Executive Summary" of the Northtown FEIS is attached hereto as Exhibit E.

    18.    The Northtown FEIS described the role of the GDP in the development of Roosevelt Island as follows:

"The ...Lease contemplated UDC's development of the Island in accordance with the General Development Plan, which (unlike the original Master Plan, which is a conceptual, nonbinding document) is the guiding document for development of Roosevelt Island." Exhibit E, at p. S-2, emphasis added.

    20.    In the RFP, Respondent stated that the development of Southtown "must be in accordance with the...GDP" and that "the GDP "controls the future development of Roosevelt Island". Exhibit F, at pages 3 and 6, emphasis added.

    21.    Thereafter, Respondent prepared a draft Environmental Impact Statement for the 1990 Project which was subjected to the full process of filing, circulation, public comment and hearings under the State Environmental Quality Review Act ("SEQRA").

    22.    In May 1990, after complying with SEQRA, Respondent adopted a Final Environmental Impact Statement for the 1990 Project which shall be referred to hereafter as the "1990 FEIS". A copy of the "Executive Summary" of the 1990 FEIS is attached as Exhibit G.

    23.    The 1990 Project for Southtown, however, was not built.

    24.    In 1996, Respondent, acting alone, issued a "Request for Qualifications" for developers of Southtown ["RFQ"], a copy of which is attached at Exhibit H.

    25.    In the RFQ, Respondent stated:

"[Approvals for the Southtown project may require an updated SEQRA review...[and] completing the SEQRA review process...will be the responsibility of RIOC." (Exhibit H, p.8, emphasis added).

    27.    In 1997, Respondent conditionally selected certain
private developers for Southtown's development.

    28.    In 1999, these developers submitted a "Modified Project and Plan", hereafter referred to as the "1999 Modified Project". A copy of their "Southtown Masterplan" for the 1999 Modified Project is attached hereto as Exhibit I.

    29.    However, unlike the 1990 Project and the still earlier Northtown Phase II project, the 1999 Modified Project has not been submitted for public comment or hearings under SEQRA.

    30.    SEQRA and its regulations require that residential housing projects and other types of developments be subjected to an environmental review process to determine whether any adverse environmental impacts would result from the project and to outline mitigation measures taken to lessen these impacts.

    31.    The statute and regulations require the preparation, filing and circulation to interested parties, including agencies of government and residential communities affected, of an "environmental impact statement" ("EIS") in draft form, followed by public hearings and a period for public comment; thereafter, a final EIS must be filed before any project can be built.

    32.    In the event that the project undergoes significant changes which produce new impacts, a "supplemental" EIS must be prepared, filed and circulated to detail the project changes and environmental impacts as well as the measures proposed to mitigate them.

    33.    In brief, as more particularly described below, Respondent has not prepared a Supplemental EIS for the project it approved on September 22, 1999 because Respondent has determined that none was required.

    34.    Instead, on September 22, 1999, Respondent adopted a "negative declaration of non-significance" under SEQRA, concluding that the 1999 Modified Project (i) contained "no change in the project" and (ii) "would not result in any new or substantially greater significant adverse environmental impacts." A copy of Respondent's determination, set forth in a resolution adopted by its Board of Directors, is attached hereto as Exhibit J and will be referred to hereafter as the "Determination".

    35.    In its Determination, Respondent referred to and relied upon an environmental report prepared by Allee, King, Rosen & Fleming, Inc., Environmental and Planning Consultants, dated April 6, 1999, which compared the 1990 Project with the 1999 Modified Project (hereafter referred to as the "Environmental Report"), a copy of which is attached hereto as Exhibit K.

    36.    In its Determination, Respondent made the following findings about the 1999 Modified Project as compared to the 1990 Project:

(i)   "that upon... comparison of the impacts it is found that:... "Historic Building" and "Visual Impacts" are very similar";

(ii)   "that the modifications of the Project will not change the Project nor have the conditions changed in a way which would create a significant environmental impact not previously or inadequately addressed in the May 1990 FEIS"...; and

(iii)   "that no Supplemental Environmental Impact Statement or further publication, filing or circulation is necessary in connection with the changes made since the May 1990 REIS was prepared..." (emphasis added).

(i)   the open space area between the land marked and historic Blackwell House and the Southtown site, called a "Commons" in the 1990 Project, has been entirely eliminated;

(ii)   two buildings (16 and 21 stories high) to be constructed in the 1999 Modified Project will be "substantially contiguous" and significantly closer to the historic Blackwell House than any of the buildings in the 1990 Project; and

(iii)   scenic views of both Southtown and the land marked and historic Queensboro Bridge from the one existing Main Street in Northtown will be substantially eliminated and significantly screened as compared with the 1990 Project which preserved such views;

(iv)   scenic view corridors from Southtown looking north and from Northtown looking south will be substantially eliminated by construction of a 16 story building in the center of the site closest to the existing Main Street as compared with the 1990 Project which preserved such view corridors; and

(v)   scenic views of the length and sweep of the west and east channels of the East River from the existing Main Street in Northtown will be blocked by reason of the placement of the buildings as compared with the 1990 Project which preserved such views.

(i)   The elimination of the "Commons" together with the construction of two buildings (16 and 21 stories high) substantially contiguous to Blackwell House, will result in a significant encroachment of, and negative visual impact on, Blackwell House, permanently impairing its character and setting;    

(ii)   The placement of two buildings (16 and 21 stories high) substantially contiguous to Blackwell House will cast shadows on Blackwell House significantly greater in scope and duration than any of the shadows that would have been created by the 1990 Project; these shadows will result in a negative visual impact on Blackwell House, permanently impairing its character and setting;

(iii)   The substantial elimination and significant screening of scenic views of the Queensboro Bridge from the one existing Northtown Main Street [through erection of a 16 story building], will result in a permanent negative visual impact on the Bridge;

(iv)   The erection of a 16 story building at the center of the Southtown site closest to the existing Main Street of Northtown will eliminate all North/South view corridors from both Southtown looking north and Northtown looking south, resulting in a permanent negative impact on the Island's visual character and urban design;

(v)   A coherent image of the Southtown site from vantage points in the existing Northtown community will be substantially eliminated by erection of the aforesaid 16 story building; this will visually and physically separate Southtown from the rest of the Island, resulting in a permanent negative impact on the Island's visual character and urban design.

(vi)   Scenic views of the length and sweep of the East River (both west and east channels) from the existing Main Street in Northtown will be substantially eliminated, resulting in a permanent negative impact on the Island's visual character and environment.

    40.    As an example of these adverse environmental impacts, Petitioner contends that all residents of Northtown who stroll along its existing Main Street to the subway or Tram station in Southtown will be faced with (i) the wall of a 16 story building at the end of the existing Main Street, (ii) the elimination of views of the Queensboro Bridge, (iii) the mass of two buildings (16 and 21 stories high) substantially contiguous to Blackwell House, (iv) shadows cast on Blackwell House for significant periods of the day, and (v) the blocking of views of the length and sweep of the East River.

    41.    Contrary to Respondent's findings and determination, Petitioner contends that

(i)   these new and different environmental impacts are not "very similar" to those already studied; and

(ii)   the modifications to the project do change the project and will create new and significant adverse impacts which have not been previously addressed or adequately addressed in the 1990 FEIS.

(i)   no study has been made of the shadows to be created on Blackwell House by the 1999 Modified Project's two buildings placed in the formerly preserved "Commons" area and from a third building substantially contiguous to Blackwell House;

(ii)   no attention has been given to the 1999 Modified Project's substantial elimination and significant screening of the views of the historic Queensboro Bridge from the one existing Main Street in Northtown; and

(iii)   no review has been made of the impact on the entire Island's visual character and urban design by reason of the 1999 Modified Project's visual and physical separation of Southtown from the rest of the Island.

    44.    According to the "Cost Allocation Agreement" for the 1999 Modified Project made between the private developers and Respondent, the Environmental Report relied upon by Respondent for its "negative declaration of non-significance" was prepared at the direction of, and paid for by the developers, not Respondent. See Exhibit L, at p. 2, Para. V.

    45.    Said Agreement provides that Respondent will approve the project, provided the Environmental Report showed "that there would be no significant impact on the environment." See Exhibit L at p.2, Para. V, emphasis added.

    46.    By reason of these arrangements, Petitioner contends that the developers had an incentive to obtain and have Respondent rely upon an environmental report showing no significant adverse impacts rather than having Respondent rely upon a report which was not conditioned on a specific result but which investigated the environmental impacts of the project so that Respondent could evaluate their significance.
    47.    As a consequence of the foregoing process, Petitioner contends that Respondent has been led into approving a flawed project and has abdicated its responsibilities as "lead agency" under SEQRA.
    48.    In addition, Petitioner contends that these actions have led Respondent to contravene its own RFQ for Southtown (see Exhibit H) where Respondent stated: "...completing the SEQRA review process will be the responsibility of RIOC.".

    49.    As a consequence of the aforementioned significant, adverse environmental impacts resulting from the 1999 Modified Project, contrary to Respondent's finding and determination, it was required to prepare, file and circulate a "Supplemental" Environmental Impact Statement pursuant to SEQRA, 6 NYCRR Part 617.9(a)(7), and hold a public hearing for comment before approving the 1999 Modified Project.

    50.    Set forth for reference in Exhibit M are the site plans and illustrative views of the Respondent's 1990 Project showing the "Commons" area which has been eliminated by the 1999 Modified Project.

    51.    Set forth for reference in Exhibit N is the view of the Southtown site and Queensboro Bridge from the existing Main Street which will now be substantially blocked by the 1999 Modified Project.

    52.    Set forth for reference in Exhibit O are the studies of shadows from Respondent's 1990 Project contained in the 1990 FEIS which will be significantly different and larger in scope and duration by reason of the changed placement of buildings in the 1999 Modified Project.

    53.    Set forth for reference in Exhibit P is the analysis of "Historic and Archeological Resources" of Roosevelt Island contained in the 1990 FEIS which has not been updated in view of the changes made in the 1999 Modified Project and their impact on historic Blackwell House and the Queensboro Bridge.

    54.    Set forth for reference in Exhibit Q is the complete analysis of the "Visual Character and Urban Design" of Roosevelt Island contained in the 1990 FEIS which has not been updated in view of the changes made in the 1999 Modified Project which visually and physical separate Southtown from the existing community.

    55.    Petitioner further contends that Respondent's Determination approving the 1999 Modified Project violated the GDP, as follows:

        (A)   the 1999 Modified Project does not contain any (i) "low buildings" nor (ii) "residential towers...with adjacent lower rise elements," as required by the GDP's "Design Criteria."

        (B)   upon information and belief, the 1999 Modified Project (i) does not contain a "loop within the South Town Area"; nor (ii) "related access roads, walkways and paths," as required by the GDP's "Basic Program"; and (iii) involves building in the six (6) acres dedicated under "Land Use" in the GDP to Blackwell Park, thus violating its purpose which the GDP describes as an area "separating the North Town Area and the South Town Area."

    56.    Petitioner repeats and re-alleges each and every paragraph set forth herein above.

    57.    In these circumstances, Respondent's "negative declaration of non-significance" and Determination approving the 1999 Modified Project violated SEQRA and the GDP; contravened its own RFQ; violated lawful procedure; was affected by an error of law; was neither reasonable nor supported by the evidence; and was arbitrary, capricious and an abuse of discretion; all in violation of the requirements of CPLR 7803(3).

    59.    In these circumstances, Respondent failed to perform duties enjoined upon it by law under SEQRA, the GDP and the RFQ, in violation of CPLR 7803(1).

    60.    Petitioner repeats and re-alleges each and every paragraph set forth herein above.

    61.    CPLR 8600 et seq. provides for the award of legal fees and other reasonable expenses in certain actions against the State and its agencies. The Court of Appeals has determined that such fees will be awarded when the government's position was not "substantially justified" which means not having a "reasonable basis" both in law and fact. See N.Y. State v. Kaladjian, 85 N.Y. 2d 346, 626 N.Y.S.2d 463 (1995).

    62.    Petitioner alleges that the Respondent's position in approving this project was not "substantially justified" and did not have a reasonable basis in law and fact, and thus reasonable attorneys fees, expenses and costs should be awarded to Petitioner.

WHEREFORE, Petitioner requests an order and Judgement:

        (i)   annulling Respondent's Determination to approve the 1999 Modified Project as vocative of lawful procedure, affected by an error of law, arbitrary and capricious or an abuse of discretion pursuant to CPLR 7803(3);

        (ii)   annulling Respondent's Determination to approve the 1999 Modified Project as vocative of duties enjoined upon it by law in violation of CPLR 7803(1);

        (iii)   ordering Respondent to revise the 1999 Modified Project so that it complies with the General Development Plan for Roosevelt Island;

        (iv)   ordering Respondent to prepare, file and circulate a Supplemental Environmental Impact Statement for any revised project pursuant to 6 NYCRR Part 617.9(a)(7);

        (v)   granting Petitioner its reasonable attorneys fees, costs and expenses of this proceeding pursuant to CPLR 8600 et.seq.; and

        (vi)   granting Petitioner such other and further relief as this Court deems just and proper.

Dated: New York, New York

January 20, 2000

ROBERT CHIRA & ASSOCIATES

By:_______________________
    Robert Chira

Attorneys for Petitioner
909 Third Avenue, 27th Floor
New York, New York 10022
Tel. (212) 339-5525