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 April 1, 2000 Supplemental coverage |
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RIRSD Memorandum of Law In Challenge of Southtown Plan STATE OF NEW YORK SUPREME COURT COUNTY OF NEW YORK
ROOSEVELT ISLANDERS FOR RESPONSIBLE SOUTHTOWN
DEVELOPMENT, against
ROOSEVELT ISLAND OPERATING CORPORATION,
Index No. 101327/2000
This Memorandum of Law is submitted in support of the Petition which challenges the decision by Respondent Roosevelt Island Operating Corporation ("RIOC") which on September 22, 1999 issued the approvals for the construction of the Southtown Plan and Project on Roosevelt Island. The Southtown Project involves a construction of numerous high rise residential buildings containing approximately 2,000 residential units. RIOC's approval should be annulled: it failed to comply with the strict procedural and substantive requirements of SEQRA and failed to take a "hard look" at the potential impacts of project development. Additionally funding for the project was allocated in violation of City Environmental Quality Review (CEQRA) and the project failed to comply the City's Uniform Land Use Review Procedure (ULURP). Further, the project was contrary to a legally binding plan for the community known as the General Development Plan (GDP). Finally RIOC violated its own standards and procedures in approving the project. A. Background of the Roosevelt Island Project. Roosevelt Island is a two-mile-long Island in the East River between Manhattan (roughly between 50th and 86th streets) and Queens. The respondent City owns Roosevelt Island, formerly known as Welfare Island, and all the pre-existing structures on the Island. On December 23, 1969 the respondent City, the New York State Urban Development Corporation ("UDC") and the Welfare Island Development Corporation entered into a Lease (the "Lease"), pursuant to which the respondent City leased substantially all of Roosevelt Island (excluding the two City hospitals) to UDC for a period of 99 years. This Lease has been modified from time to time by the parties. Respondent RIOC was created by Chapter 899 of the Laws of the State of New York of 1984 ("the RIOC Act") (McKinney's Unconsolidated Laws §6385 et seq.) to plan, develop, operate, maintain, and manage Roosevelt Island. Pursuant to an Assignment and Assumption Agreement dated July 21, 1988 UDC assigned and transferred to respondent RIOC all of its right, title and interest in the Lease. Annexed as Schedule 2 to the Lease was a general plan for the development of Roosevelt Island. The plan, known as the General Development Plan (GDP), was attached to and made a part of the Lease. (The GDP, as amended, is attached as Exhibit B to the Seevers and Wilhelm Affidavit). The Lease contemplated that UDC would develop the Island in accordance with the GDP. The GDP was developed based on a previously completed Master Plan for the Island. However, unlike the Master Plan, which was essentially conceptual, the GDP was intended to serve as the binding and guiding document for development of a new community on Roosevelt Island. The GDP provided that development would occur in two areas -- a Southtown area and a Northtown area. The GDP defined the details of a development program including, inter alia, the number of units to be built, the mixed nature of housing for low, moderate and market rate housing, square footage for office space, housing and commercial structures, defined amenities such as schools, libraries, and community facilities that would be provided and included specific provisions for traffic circulation, pedestrian travel, and open space. Pursuant to the GDP, the open space area, five parks linked by a system of pedestrian paths and walkways, would consist of a total of 51 acres -- about 1/3 of the total land area of the Island. Pursuant to the Lease and §6388 of the Unconsolidated Laws of the State of New York, the GDP can be modified only upon consent of the RIOC, the approval of the State Director of the Division of the Budget and approval of the respondent City. 1) Northtown The Northtown portion of the project was undertaken first. Development activity began in 1971 and was completed in 1989. This project, which was undertaken in two phases included, among other things, construction of infrastructure, a waterfront promenade, recreational areas and open space, residential buildings, commercial/retail space and playing fields. Upon completion, the project contained approximately 3244 rental units, as well as commercial and retail space. The project also included an aerial tramway connecting Roosevelt Island to Midtown Manhattan which was completed in 1976. Later in 1989, a subway station was also completed on the Island. 2) Southtown Southtown, the third phase of the Roosevelt Island development program, was planned in the GDP to be constructed on a site bounded by the East River on the east and west, Blackwell Park Sportsfield on the North and the Roosevelt Island Tram Station on the south. The site contains several existing structures: the vacant Central Nurses' Residence, the Subway Station, and a subway vent shaft. In or about May 1990, respondent RIOC proposed to revise the development plan in the GDP for the Southtown site. This revised plan and program (the 1990 Plan) would include the construction of nine predominately residential buildings, some retail and community office space, a day care center, community activity space, and substantial open space and recreational elements. Off site project - related development would include an expansion of the Motorgate parking garage. The 1990 Plan would contain 1,956 new dwelling units, and 29,100 square feet of ground-floor retail space facing a Town Square. Pursuant to the State Environmental Quality Review Act ("SEQRA"), Environmental Conservation Law (ECL) §8-0101 et. seq. RIOC prepared, reviewed and approved an Environmental Impact Statement which was a detailed study of the 1990 Plan and its potential effects on the environment. The aim of this study was to identify potential adverse impacts and choose options, alternatives and/or mitigation measures which would minimize any adverse impacts from the proposed project to the maximum extent practicable. On May 10, 1990, RIOC approved the Final Environmental Impact Statement ("FEIS")(1) and authorized its filing and circulation pursuant to SEQRA. The Board of Directors for RIOC adopted a "Findings Statement"(2) under SEQRA, 6 NYCRR §617.11 on June 14, 1990. Because the proposed Southtown development differed from the development plan defined in the GDP, RIOC was constrained to seek modification of the terms of the GDP in accordance with the requirements of the Lease and §6389 of the Unconsolidated Laws of the State of New York. Accordingly, on or about June 27, 1990, RIOC proposed 13 amendments to the GDP. On or about August 17, 1990 the City approved the proposed GDP amendments, except that the City rejected a proposed amendment which would have reduced the size of a park north of the project site, Blackwell Park, from 6 acres to 3 acres in size. (See Exhibit B, this resolution is attached to the GDP). The City also limited the proposed maximum height for residential towers in the project to up to approximately 27 stories. Despite these approvals and findings the Southtown project did not proceed. Sporadically from 1995 to 1999 RIOC held workshops and public forums to develop a new approach for Southtown. In July 1996, RIOC released a new request for qualifications and proposal to develop Southtown. The 1999 Southtown Proposal On or after April 10, 1997, after having circulated a Request for Qualifications, RIOC selected respondent Related and respondent Hudson to jointly prepare a revised plan and project for the Southtown site on Roosevelt Island. Sometime after April 1997, respondent Related and respondent Hudson prepared and submitted to RIOC a revised plan and project for the Southtown site (the 1999 Plan).(3) This revised plan and project for Southtown was substantially different in design, scope and impact, from the prior Southtown plan and project which was considered and approved by RIOC in 1990. For example, the 1999 Plan proposed a dramatically different urban design than the 1990 Plan; the buildings in the 1999 Plan encroached on open space and park area on the northern portion of the site (Blackwell Park) that in the 1990 Plan was designated for open space/park/and passive recreational use. The 1999 Plan modified the looped traffic pattern included in the 1990 Plan. The arrangement of the building structures in the 1999 Plan was dramatically different than the 1990 Plan and cut Southtown off from the Northtown site, rather than linking the two together as called for in the 1990 Plan. The design and location of the building structures in the 1999 Plan divided open space, and pedestrian flow, rather than linking or integrating these essential features as provided in the GDP and the 1990 Plan. Moreover, the 1999 Plan omitted design details, deferred critical decisions on such issues as parking, population mix and retail/commercial mix and siting until some unspecified date in the future. In April 1999, RIOC's consultant produced a memorandum which allegedly compared the impacts of the 1990 Southtown project (as evaluated in a 1990 FEIS) with the impacts of the of the 1999 Southtown project. - This document was titled: Southtown Project: Comparison of Design/Environmental Impacts of the 1990 FEIS Project with the 1999 Modified Program and Amendment to the April 1999 memo comparing Design/Environmental Impacts of the 1990 FEIS Project with the 1999 Modified Plan. Solely on the basis of this evaluation, respondent RIOC determined that "the changes made to the 1990 project and proposed amendments since preparation of the May 1990 FEIS would not result in any new or substantially greater significant adverse environmental impacts". On this basis RIOC decided not to make any determination of significance as required by SEQRA. By resolution passed by the RIOC Board of Directors on September 22, 1999 respondent RIOC:
This action followed. POINT I
RIOC FAILED TO COMPLY WITH SEQRA PROCEDURES A. SEQRA's Procedures Are Intended To Assure Careful Review of Environmental Consequences The SEQRA procedures provide an orderly format for all involved agencies and the public to consider the environmental impacts of a proposed action and take the appropriate steps necessary to avoid or mitigate the identified impacts. Courts have uniformly been vigilant in assuring that agencies follow those procedures strictly, because merely substantial compliance is insufficient. King v. Saratoga County Board of Supervisors, 89 N.Y.2d 341, 347 (1996). Strict and literal compliance with SEQRA's procedural requirements is not a matter of elevating form over substance. The Court of Appeals has stressed its importance: Nor is strict compliance with SEQRA a meaningless hurdle. Rather, the requirement of strict compliance and attendant spectre of de novo environmental review insure that agencies will err on the side of meticulous care in their environmental review. Anything less than strict compliance, moreover, offers an incentive to cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment. King v. Saratoga County Board of Supervisors, 89 N.Y.2d 341, 348 (1996). In a nutshell, those procedures require that agencies proposing to undertake an action review the potential environmental impacts as soon as practicable in the process. To do so an Environmental Assessment Form must be prepared. For Type I actions such as this, (4) a coordinated review amongst the involved agencies is required and there is a presumption that the project is likely to have a significant adverse impact on the environment and will require the preparation of an EIS. 6 NYCRR §617.4(a)(1). The SEQRA regulations provide a specific process for the establishment of the lead agency, which assumes primary responsibility for the environmental review. That process, set forth at 6 NYCRR § 617.6(b), requires all involved agencies to be notified, to be provided copies of the EAF and application and be given an opportunity to consider which agency should assume the role of lead. The process of establishing lead agency is not a mere formality. Each involved agency "has the responsibility to provide the lead agency with information it may have that may assist the lead agency in making its determination of significance". 6 NYCRR § 617.3(e). Thus, if an agency does not properly proceed with the establishment of lead agency, not only may the wrong agency be placed in that role, but more importantly in a case like this, the agency is denied the input and expertise of other involved agencies and cannot fulfill its obligations under SEQRA to take the requisite "hard look". Any agency proceeding in that manner is also violating another of the general rules of the SEQRA regulations which require a lead agency to "make every reasonable effort to involve project sponsors, other agencies and the public in the SEQRA process." 6 NYCRR § 617.3(d). In this case RIOC ignored all of the procedures associated with the establishment of lead agency, the commencement of the environmental review and the hard look required for a determination of significance. It did not circulate an EAF, application or any material to the involved agencies. It did not solicit input from involved agencies or the public. It did not even involve the advisory committees it purported to establish shortly before it began the review of the project. By proceeding along oblivious to the input of others, RIOC pursued its own single-minded agenda which was to obtain its latest development without concern for the environmental consequences of its actions. In its September 22, 1999 resolution, RIOC appears to be operating under the belief that it automatically continued in the role of lead agency initially established in 1989, despite the fact that any Southtown project had been under hiatus for nine years. RIOC also ignored that this proposal was clearly a new action resulting from workshops and public forums purportedly held sporadically from 1995 to 1999; that the new project was the result of a new Request for Qualifications and proposals and that the only similarity between the 1999 plan and the 1990 plan is that both involved residential development in the same area of the island and purported to be consistent with the GDP. However, RIOC ignored the clear provisions of the SEQRA regulations which place a temporal limit on an agency's role as lead agency. The regulations state: The lead agency will continue in that role until it files either a negative declaration or a findings statement or a lead agency is re-established in accordance with paragraph 617.6(b)(6) of this Part. [6 NYCRR § 617.6(b)(2)(iii)]. Thus, once RIOC filed its findings statement in 1990 its role as lead agency ceased. The end of that "action" was demonstrated by the subsequent abandonment of the original project and RIOC's decision to begin the process anew six years later when it began the formal search for a new project sponsor with a new vision for the development of Southtown. B. The 1999 Southtown Project is not a continuation of the 1990 Project It is, of course, well settled that an action consists of a series of steps and that a project may entail some modifications in its development which will not necessarily trigger a de novo review of the potential environmental impacts. The lead agency must simply consider the changes to the project, take a hard look to determine if a supplemental environmental impact statement is required. Jackson v. New York State Urban Development Corporation, 67 N.Y.2d 400, 503 N.Y.S.2d 298 (1986); Lazard Realty, Inc. v. New York State Urban Development Corporation, 142 Misc.2d 463 (Sup. Ct. N.Y. Co. 1989). However, in every case where that doctrine has been applied to deny a challenge to a project, the project was one continuous action that underwent some modifications, none of which contained significant physical changes to that which had been previously considered in an EIS. The Southtown project is a markedly different case. In Jackson v. New York State Urban Development Corporation, 67 N.Y.2d 400, 503 N.Y.S.2d 298 (1986), the case involved the redevelopment of Times Square. The project had multiple elements including 12 different sites with a variety of potential uses. An FEIS was prepared and findings were issued. In that part of Jackson which is relevant here, the Court noted that the FEIS stated that the configuration of the project was not final and that the developer of one of the sites may request modifications in the proposed use. That did happen, but the Court noted the changes "would not involve any increase in 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". Jackson 67 N.Y.2d at 429. Petitioners themselves did not allege that the changes would be significant, they only argued that any change required a supplemental EIS. The Court of Appeals disagreed noting that UDC had taken the hard look and since there were no increases in the size of the project or its location, that UDC had satisfied its obligations under SEQRA. Lazard Realty, Inc. v. New York State Urban Development Corporation, 142 Misc.2d 463 (Sup. Ct. N.Y. Co. 1989), which was decided by this Court, also involved the Times Square redevelopment project. Lazard involved a further change to one aspect of the Times Square project which was proposed three years after the original findings statement had been issued. That modification changed the use of Site 8 from a wholesale computer and apparel mart to one which could include all wholesale merchandise or interior furnishings. The petitioner was the developer of the International Design Center of New York, a rival interior furnishings mart in Long Island City, Queens. Petitioner was requesting a de novo environmental review. The court rejected the claim noting that it was a continuation of the original redevelopment scheme and that the project again, like Jackson, did not involve a physical change which would effect the environment. Without any change in the project that raised new or previously unconsidered environmental issues, the Court noted that there was no reason to reject the modification. The Court also noted that a de novo was not required since, although the potential use of Site 8 was being changed, there was no claim that UDC had abandoned the original project to require a new review. Lazard, 142 Misc.2d at 957.RIOC has clearly attempted to invoke the spirit of Jackson and Lazard to justify its truncated and ineffectual SEQRA compliance. In its September 22, 1999 resolution, RIOC recounts the 1990 measures including the approval of the FEIS and the Findings Statement and then makes an unexplained leap from 1990 to a series of forums and meetings from 1995 to 1999, never mentioning that the original project was abandoned. The resolution continues the facade of compliance by stating in the first "resolved" paragraph that "SEQRA anticipates that projects may change over a period of time." This is a blatant and cynical attempt to invoke Jackson and Lazard for a process which is totally different. Those cases involved one continuous project which was never abandoned and upon which work never stopped. There were never any allegations of physical changes in the project and in Jackson, there was never even an allegation of a changed environmental impact. Lazard, represented a challenge from an economic rival and the Court rightly gave the petitioner's argument little merit. In this case, the 1990 plan was abandoned, although that fact is not mentioned in either the September 1999 resolution or in the April 1999 comparison upon which the September resolution was based. The 1999 plan was the product of a new request for proposals and a new proposal which had only passing similarity to the 1990 plan, the similarity being a residential project in the Southtown area of Roosevelt Island. Beyond those most basic element, the similarities end.(5) If this project represents a continuation of the 1990 project and thus not requiring a de novo review, then the same could be said for any failed project site for which 9 years later another developer proposes a different development on the same site and the agency takes it upon itself to say that SEQRA was completed years before. The SEQRA regulations protect against this by specifically providing that a lead agency's role is terminated upon filing the Findings Statement. 6 NYCRR § 617.6(b)(2)(iii). Lazard and Jackson are consistent with that principle by providing a common sense allowance for modifications for a continuously implemented project. It does violence to the principles of SEQRA to avoid the important role of a procedurally de novo review to allow RIOC to proceed as it has. As noted above, the procedures of SEQRA are designed to assure a careful and conscientious ness review which prevents an agency from cutting corners. In this case petitioners are not arguing that the 1990 FEIS is without usefulness for an EIS on the 1999 plan. There may be information and analysis in the FEIS which is still relevant which can be used in a new EIS. If a positive declaration is issued for this project, as it should have been, RIOC could have undertaken scoping as provided in the SEQRA regulations. 6 NYCRR §617.8. Scoping would have identified the project changes and those parts of the 1990 EIS that are still relevant. Thus, while procedurally it would be de novo, it is not to say that everything previously considered would have to be re-examined at the same detail as before. However, as noted below, there are very significant differences between the 1990 and 1999 plans, and RIOC was without basis to say the differences were so minor as to not warrant an EIS.
IN ISSUING THE 1999 RESOLUTION, RIOC VIOLATED In issuing the 1999 Resolution, RIOC violated SEQRA's substantive and procedural requirements and failed to take a "hard look" at the potentially significant environmental impacts from the 1999 project. In order for the Court to determine that RIOC has complied with SEQRA, the record must disclose that the authority has (1) identified the relevant areas of environmental concern; (2) has taken a "hard look" at these relevant areas of environmental concern; and (3) has made a "reasoned" elaboration of the basis of its determination H.O.M.E.S. v. New York State Urban Dev. Corp. 69 A.D. 2d 222, 232 (4th Dept. 1979), Jackson v. New York State Urban Development Corporation, 67 N.Y. 2d 400 (1986); (See also Gerrard, Environmental Impact Review In New York §3.05[2][d] -[e]; §37.04 [3]; 6 N.Y.C.R.R.- §617.7(b)). Under SEQRA the legislature sought to encourage thorough and public review of environmental issues related to development proposals such as the Southtown project. As a threshold matter, as early in the process as possible the lead agency must make a "determination of significance: it can issue a negative declaration (determining that the project will not have a significant impact on the environment 6 N.Y.C.R.R. §617.7(a)(2)) which forecloses any further review under SEQRA; or it can issue a positive declaration (determining that the project may have a significant adverse impact on the environment 6 N.Y.C.R.R. §617.7(a)(1)) which requires the full and public Environmental Impact Statement process. The legislature, to encourage comprehensive environmental review, established a very low threshold for requiring preparation of an Environmental Impact Statement -- in effect a presumption that an EIS should be prepared. H.O.M.E.S. v. New York State Urban Development Corporation, 69 A.D. 2d 222, 232 [2nd Dept., 1979] (H.O.M.E.S.). The Environmental Conservation Law mandates that an EIS be prepared where there is to be any proposed action that "may" have a significant effect on the environment (ECL 8-0109[2] emphasis added). Because the operative word triggering the requirement is "may", there is a relatively low threshold for impact statements. Holmes v. Brookhaven Town Planning Board, 137 A.D. 2d 601; 603 (2nd Dept., 1988). The EIS is the key protection for the public and the environment to insure that projects are undertaken so as to minimize potential adverse impacts to the maximum extent practicable. The primary method of achieving the intended surveillance and protection is the requirement of the preparation and submission of an environmental impact statement for any action, including that requiring agency approval if it may have a significant effect on the environment. H.O.M.E.S. supra 69 A.D. 2d 222, 229. As noted above, the other option that RIOC could pursue under the appropriate circumstances is to issue a negative declaration -- a determination that the project will not have a significant impact on the environment. 6 N.Y.C.R.R. §617.7(a)(2). This determination forecloses any further review under SEQRA. However, in order to satisfy the "hard look" requirement, RIOC would have had to provide a "reasoned elaboration" justifying its conclusions - and providing specific reference to any documentation supporting its conclusion. See H.O.M.E.S. supra, See also 6 N.Y.C.R.R. §617.7(b). RIOC's 1999 Comparison and September 1999 Resolution does not fit either of the determination of significance options under SEQRA (i.e. positive declaration/EIS or negative declaration. 6 N.Y.C.R.R. §617.7)(6). In any event, regardless of how this "determination" should be characterized, it is clear from the facts, that contrary to SEQRA, in approving the 1999 Southtown Project, RIOC did not take a "hard look" at the relevant areas of environmental concern and failed to provide a reasoned elaboration for its' decision, that the project would not have any significant adverse environmental impacts. The 1999 comparison, the only SEQRA-type consideration given to the 1999 Southtown Project, either ignores obvious impacts, fails to provide any reasoned elaboration to support its conclusions regarding impacts that it does identify or relies upon critical "facts" that it concedes are preliminary and may change as the project evolves. Contrary to the RIOC's bald conclusion, the 1999 project is fundamentally different than the project proposed and approved in 1990 and concomitantly may have fundamentally different and significant impacts. The 1999 Project departs from the vision for the community as stated in the GDP, and considered in the 1990 FEIS/Project approval. Consequently, the new 1999 Project and its new and different impacts must be considered de novo in a fresh environmental analysis. A. The Changes to the Urban Design in the 1999 Plan may have significant and different impacts from the 1990 Plan on the character of the Southtown Community. RIOC ignored these potential impacts. Even from a casual comparison of the design of the 1999 Plan and the 1990 Plan, it is clear that these are very different projects. Indeed, in comparing project diagrams it is difficult to identify any common features. [See Seevers and Wilhelm affidavit, Exhibit E (hereinafter "S&W Affidavit).] The aim of the 1990 Plan was to create Southtown as a small self contained town, which actually had a downtown -- the Town Square. This square was designed to be a center for community activity and would contain retail and commercial establishments that could provide for the daily needs of the community, adding to the self contained town atmosphere. The design of the project would be a grid pattern which enhanced this small town character. The importance of the self-contained town, and the town square in particular, to creating the community planned in the GDP for Southtown is articulated in the GDP itself: The Town Square will be focus for Island life and together with Northtown, will contain commercial facilities sufficient for the daily needs of new community residents and persons working in new community offices. Office space, accommodations for transients, the police and fire services and public open spaces will be developed there. (S&W Affidavit, GDP Exhibit B at pg. 3.)According to the GDP this Town Square was to be located in Southtown. (S&W Affidavit, GDP Exhibit B at pg. 4.) The FEIS for the 1990 project underscored the positive contributions that this urban design would have for the character of the Southtown community. The grid-like pattern "would maximize view corridors and minimize shadows cast on open areas." FEIS II - F - II.(7) Moreover: The east-west alignment of the proposed street grid would roughly parallel streets in Manhattan, visually linking the skylines of both Islands. At the same time the dual roads running north and south, lined by buildings and open spaces, would establish internally oriented view corridors not available elsewhere on Roosevelt Island. FEIS 11.F-9 Further, the building design and massing would "maximize views". FEIS II. F-9 The FEIS found that the interior grid's defined streetwall and ground-floor retail and community uses would enliven sidewalks in the area. FEIS II F.10. Additionally: "The proposed Southtown would differ from the existing buildings of Northtown. The proposed development would be arranged on a grid of streets, creating a sense of more open space than in Northtown, which fronts on both sides of a narrow, central Main Street with a canyon-like effect." FEIS II.F-10 According to the 1990 FEIS, the Town Square was to be "the visual and functional center of the proposed project." The Town Square would be "enlivened" by its proximity to the retail shops and subway station. FEIS II. F-9 Moreover, the FEIS found that: In sum, the FEIS concluded: "The proposed plan would offer a distinctive urban design to Roosevelt Island while respecting the fundamental characteristics of existing developments: a pedestrian oriented environment, continuous, water front use, generous amounts of open space and a sense of a planned neighborhood. (Emphasis Added) FEIS II.F-11 The 1999 comparison essentially ignored these critical community character features of the 1990 Plan. It merely recognized that the grid design and the Town Square would be eliminated. It failed to consider that the new 1999 Plan would create a completely different sort of community than the 1990 Plan - a featureless, disconnected apartment complex -- one without a Town Center or downtown that would serve the needs of the community. One without the grid-like design that created a sense of place, was harmonious with adjacent community design and which integrated open space and street scape to create a sense of a planned community -- characteristics that were found to be critical in the GDP and 1990 FEIS. The 1999 comparison failed to note that without the commercial Town Center, the 1999 Plan omitted this critical feature of the officially adopted and mandated plan for the community as provided in the GDP. This fundamental change cut out the soul of the small town design and replaced it with a generic apartment complex with no small town character or sense of community. The 1999 comparison simply ignored these fundamental and critical changes and failed to appreciate or explain that the new plan would substitute a very different community from the community envisioned in 1990 - one which integrated the built structures around a vibrant, functional service/oriented Town Square. These radical changes and critical impacts cannot be overlooked or lightly dismissed in the RIOC's superficial "1999 comparison" , but must be subject to the scrutiny of a comprehensive environmental analysis. See e.g. Chinese Staff and Workers Ass. V. City of New York, 68 N.Y. 2d 359 (1986). B. The 1999 comparison ignores the fundamental changes and associated impacts that the 1999 project will have on the critical open space component of the Southtown Plan. Open space - its arrangement, massing and location was critical to the community character created in the 1990 Plan. The 1999 Plan fundamentally altered the open space component of the Southtown Plan -- alterations that can pose significant adverse impacts for the Southtown community. The 1999 comparison ignores these potentially significant impacts. Among other things, the GDP established that open spaces for the project shall be developed as parks. In particular the GDP established that Blackwell Park was to be approximately six acres in size and would separate the Northtown area and the Southtown area ... (S&W Affidavit, GDP Exhibit B at pg. 4.) As noted above, in spite of making other changes to the GDP, the Board of Estimate of the City of New York specifically rejected an amendment proposal to reduce the size of Blackwell Park below six acres. (S&W Affidavit, GDP Exhibit B as noted above, the Resolution is included at the end of the GDP in this Exhibit). Nevertheless, in violation of the GDP and contrary to the 1990 Plan, the 1999 Plan eliminates a significant portion of Blackwell Park reducing it from its mandated 6 acres. Petitioners have attached a diagram of the Blackwell Park area of the 1999 Southtown Project. (See S&F Affidavit Exhibit "F"). The cross hatching in this diagram indicates the area that would be encompassed by the 6 acre park. It is clear from this diagram that structures in the 1999 Plan substantially encroach upon and reduce this mandated open space. The GDP further provides that the open space areas will be interlinked by a system of pedestrian paths and walkways, that the entire waterfront of the island will be reserved for pedestrians and cyclists on a waterfront promenade suitable for use by emergency vehicles. In between each of these open space areas, the GDP provides that housing, shops, parking garage and other service and infrastructure facilities will be constructed. (S&W Affidavit, GDP Exhibit B at pg. 2-3.) The GDP further provided that open space areas will be developed to serve residents of the City as a whole as well as residents of the Island. (S&W Affidavit, GDP Exhibit B at pg. 3.) The interspersing of open spaces and developed spaces on an Island in the middle of New York City ... interlinked by a system of pedestrian paths ... where the entire waterfront is reserved for pedestrians and cyclists on a Waterfront Promenade ... is unique in New York City. Among other things, the GDP provides:
A neighborhood has focal points, which act as magnets to attract and bring people together. Manhattan Island has Central park. Roosevelt Island has its central park ... known as Blackwell Park. This Park was intended as a central focal point for the Northtown/Southtown community (See Affidavit of Seevers and Wilhelm). It has a soccer field, children's playgrounds and activity areas, basketball courts, and meditation steps. It is already heavily utilized by residents of Northtown. It spans the Island from east to west offering vistas of Queens, Manhattan, the 59th Street Bridge, and boats and ships passing by. The six acre size of the Park provides a grand open space at the end of the Main Street visual corridor, providing sunlight and southerly breezes. These common recreational areas of the Park would actually tie the Northtown and Southtown communities together as planned in the GDP. Most importantly, Blackwell Park is the place where children have been growing up for more than 20 years. It provides the memories and ties that make a community. All of these things comprise the entity called Blackwell Park. The 1990 FEIS recognized the critical value of the significant centralized open space/recreational resources, around and including Blackwell Park, to the character of the Southtown community and to the linkage of this community to the Northtown community. "The proposed development's variety of open spaces would strengthen the urban design and respond to the character of Roosevelt Island. These would include ... passive and active recreational spaces at the north and south ends of the project, and the Town Square ..." The commons, a landscaped junction between Northtown and Southtown, would enhance existing open space particularly Blackwell Park and the meditation steps, while providing a strong visual separation between the two developments (Southtown and Northtown). FEIS II-F-10 The 1999 proposal, which would significantly reduce the open space in this area is inconsistent with the GDP and would destroy Blackwell Park as the Central Park for the Northtown and Southtown communities.
These are significant impacts which should have been considered in the context of a SEQRA review. The 1999 Plan is a material conflict with the community's plans as officially adopted warranting SEQRA review. 6 N.Y.C.R.R. §617.7(c)(iv). As noted above, the original GDP and the subsequent modification in 1990 were officially adopted Plans by the City of New York for this New York City owned land. The later version of the GDP was also included in the 1990 FEIS, which showed Blackwell Park being preserved. The 1999 Plan destroys this critical resource for Southtown/Northtown. The impairment of the quality and character of the landscape architectural feature of this Park, and the destruction of this aesthetic resource is a significant impact which should have been considered in a SEQRA review. The substantial change in the use or intensity of use of this critical open space and recreational resources is similarly a significant impact warranting SEQRA review. 6 N.Y.C.R.R. §617.7(c)(iv). RIOC made some attempt to mitigate the effect of the destruction of the Blackwell Park by offering to build some park facilities elsewhere on the Island. This would have a similar effect as if someone were to disassemble Central Park and put high rise buildings in the center of that park. (See Affidavit of Seevers and Wilhelm). In any event, these mitigation measures should have been analyzed in the context of a SEQRA review. See Gerrard Environmental Impact Review In New York, §§ 6.01 and 6.02. The 1999 comparison understates the project changes and ignores the impacts that the 1999 Plan may have on the open space resources. Its premise apparently is that so long as the amount of open space remains the same, the configuration is irrelevant. As noted above, this view is unsupported by any analysis or data on the record and is wrong. Finally, the only statement that the 1999 comparison does make about the revised open space plan - that "new areas" of open space between buildings would evoke a feeling of "having secure inner court yards" (S&W Affidavit, 1999 comparison Exhibit D at 6), is unsupported by any analysis and is contrary to the GDP and the 1990 concept of the relation of open space and the project - i.e. that open space would be public and would serve to open up and tie the community together. Clearly the open space in the 1999 Plan is intended to create a very different community character than that envisioned in the GDP and 1990 Plan and EIS. These critical modifications and their potentially significant impacts on the character of the community should have been the subject of a careful, and public SEQRA review. C. The 1999 comparison failed to consider the impacts that the 1999 Plan's reduction in community services would have on community character. As noted above, the 1999 Plan essentially substitutes a featureless, centerless apartment complex, for the downtown oriented, small town, called for in the GDP and proposed in the 1990 Plan. Consistent with this change in design, the 1999 Plan eliminates much of the retail/commercial space which were to be located on the Town Square and which under the GDP were to be "sufficient for the daily needs of the new community". This commercial/retail space would be essentially cut in half under the 1999 Plan (29,100 gsf. to 15,000 gsf) (S&W Affidavit, 1999 comparison Exhibit D at 4). Instead of the commercially viable Town Square of the 1990 Plan, the 1999 Plan proposed a few small businesses selling convenience goods and neighborhood services. (S&W Affidavit, 1999 Comparison Exhibit D at 4.) Moreover, as to these heretofore critical components of the downtown oriented vision for Southtown in the 1990 Plan and GDP, the 1999 comparison concedes that its conclusions are incomplete: details of the proposed modifications have not been finalized, the project is expected to contain a mix of local, retail, commercial office, and community space. As noted in the Land Use discussion, the proposed project would need to re-examine the project demands for such uses and adjust the space allocation accordingly (S&W Affidavit, 1999 Comparison Exhibit D at 4). The GDP, the 1990 Plan, the 1990 EIS all recognize that a healthy commercial, retail center in the Town Square was critical if Southtown were to function as a cohesive town as opposed to a group of disconnected apartments. As to these critical components, the 1999 comparison concedes that this issue is not resolved, and will require further analysis. Nevertheless, the 1999 Resolution, which relies on this admittedly incomplete analysis, concludes that a future determination on this critical issue will not have significant impacts on the character of the community. This conclusion ignores common sense, the GDP, the 1990 EIS and the 1990 Plan. A decision on the mix of commercial/retail uses, and the amount and location of such uses, will be critical to determining the future of Southtown as either a coherent community with a viable downtown center, or a disconnected apartment complex with a few nearby convenience stores. RIOC's 1999 comparison is not based in fact, is conclusory and speculative. The determination of this critical issue must be considered in the context of a careful and public evaluation. D. The 1999 comparison failed to consider the effects of shadows on open spaces in the 1999 Plan In an urban setting such as the Southtown project shadows cast by the built environment on open spaces can pose significant adverse impacts. By casting open space in darkness they can make these areas less desirable for recreation, and other uses, they can re-enforce the canyon-like atmosphere along city streets and squares. For this reason the 1990 EIS carefully evaluated the shadow impacts of the 1990 Plan. (1990 EIS pg. 11.F-11 - 11.F-12.) The 1999 comparison in this case, without reference to studies, data, or any analysis, simply concludes that "shadows from the proposed modified program would not be significantly different from those analyzed in the 1990 FEIS. (S&W Affidavit, 1999 Comparison Exhibit D at 6). This conclusion has no factual support and is in fact unsupportable. As noted above, three of the buildings on the north end of the site will encroach well into Blackwell park and threaten to cast their shadows for a significant part of the day on what remains of this diminished open space area, as well as the historic Blackwell house. Similarly, the new "open space areas", in the 1999 comparison i.e. those areas between the tall apartment buildings, will be cast in shade from these nearby structures for a significant portion of the day. As a result, these areas are very likely to be shady, undesirable spaces which will not function as recreational or congregation areas, the aim for open space in the GDP and 1990 Plan. The 1999 comparison simply ignored these impacts and without basis concluded there would be no different shadow impacts between the two plans. Shadows, their effects on open space and urban character of the Southtown community are critical considerations in analyzing the impacts of design choices - the 1999 comparison ignored these impacts. E. The 1999 Comparison ignored the impacts of potential changes in the population and Socio/economic Mix for the community. Population and socio/economic mix are key elements in defining community character. See e.g. Chinese Staff and Workers Ass. v. City of New York, 68 N.Y. 2d 359 (1986). For Southtown and Roosevelt Island in general, the GDP envisioned a mixed community of market based units, assisted living units and subsidized housing. (S&W Affidavit, GDP Exhibit B at 2.) The 1990 Plan allowed that 40-60 percent of the units in Southtown would be market-rate housing and that the remainder would be affordable units. (S&W Affidavit, 1999 Comparison Exhibit D at 1 and 3). In 1990 the unit distribution for the affordable units would be 196 one bedroom units, 587 two bedroom units, and 195 three bedroom units. Id. In the FEIS, the expected population was roughly computed based on the number and type of units that the plan allowed. (S&W Affidavit, 1999 Comparison Exhibit D at 4). The 1999 comparison concluded, without any explanation that the 1990 Plan would not significantly change this plan and therefore, would have no impacts. However, upon closer inspection, the 1999 comparison belies its own conclusions:
If this is the case, then the 1999 comparison and its "environmental analysis" have failed to evaluate or assess the impacts on critical community socioeconomic characteristics that the 1999 Plan, with all market based units, would have, as compared to the mix of market rate and affordable units envisioned in the GDP and the 1990 Plan. The 1999 comparison simply ignored these impacts. Upon close inspection there is simply no basis for the 1999 comparison's conclusions regarding the 1999 Plan's impact regarding population or other socioeconomic issues. F. The 1999 comparison failed to consider the different construction impacts that the 1999 Plan could have on the community. The 1999 Plan projects that construction for the project will extend at least 7 years. (S&W Affidavit, 1999 Comparison Exhibit D at 9 and 10.) This compares with a three year program for the 1990 Plan. The 1999 Plan envisions more than doubling the construction period originally proposed in 1990. This modification has the potential for significantly greater and more extended impacts than the 1990 Plan by significantly extending construction-related impacts for the community including disruption of community life, road damage impacts, dust, and noise. (See Seevers and Wilhelm Affidavit). For example, the roadway on the island is not designed to accommodate heavy truck traffic and could be destroyed by this extended use. The road is brick on a sand base. Air pollution from construction vehicles driving down Main Street for this extended construction period would add to the air pollution in this air quality non-attainment area. Safety impacts would be augmented and exacerbated by virtue of the longer construction period. Id. The 1999 comparison ignores these new and longer impacts. The project impacts originally identified could be significant given the more than doubling of the construction period in the 1999 Plan. These new impacts must be at least considered and not so lightly dismissed without explanation. G. Traffic and Parking in the New Plan will be impacted by the 1999 Plan. The RIOC Board overlooked these impacts in its 1999 comparison. The 1999 comparison concedes "that changes may have occurred in base line traffic conditions since 1990 that could affect the operational capacities of the local street network", and that "the addition of the project - generated trips to these corridors could now have adverse effects not originally disclosed". (S&W Affidavit, 1999 Comparison Exhibit D at 6.) This concession alone should have been sufficient to require RIOC to make a determination of significance under SEQRA 6 N.Y.C.R.R. §617.7(c), but the RIOC Board simply determined on its own that there would be no impacts and ignored the aforementioned requirements at SEQRA. H. The 1999 Comparison Ignored Parking Garage/School/Library - Impacts The 1999 comparison concedes that the parking garage, school and library on Roosevelt Island may be undersized for the new project. (S&W Affidavit, 1999 Comparison Exhibit D at 5 and 7) -- how undersized remains a question. As noted above, the projected population for the community is speculative as the housing mix has yet to be determined. The 1999 comparison poses no solution for these impacts other than to assume that someone will build more space, if necessary. Apparently, the developer has made no commitment in this regard to address the impacts for the project it will undertake and profit from. The 1999 comparison ignores these impacts and is content to postpone addressing these until sometime in the distant future. SEQRA demands consideration of these issue now, before the project is undertaken. I. The 1999 Comparison Ignored Air Quality Impacts. Air pollutants generated by the RIOC project are expected to have a negative impact. New York City is in a non-attainment area and exceeds a number of air quality parameters. Analysis for air quality cannot be limited only to Carbon Monoxide (CO) as implied in the RIOC Memo comparing 1990 and 1999 Impacts. Potential pollutants of concern must include: CO, Particulates (PM), sulfur Dioxide (SO2), and Hydrocarbons and Nitrogen Oxides (Nox), plus Noncriteria Pollutants (from on-site contaminated materials), and Odors (from on-site contaminated materials and materials excavated from below the water table). Also Lead (Pb) should be included due to the proximity of elevated bridges and structures at or over the site, with lead paint, and the Key Span power plant adjacent to the River on the east side of the site. (See S&W Affidavit) Potential issues of concern are: induced traffic pollution from mobile sources has increased in many locations. Midday air pollution on the Queensboro Bridge has increased 28% over the 8-year period from 1990 to 1998; induced trucks and buses; and boilers from new on-site buildings. From the above it is clear that the 1999 project could have many potentially significant impacts regarding the Southtown community. The 1999 project is very different from the plan contemplated in the GDP and the 1990 Plan and FEIS. As noted above, its potentially significant impacts are likewise very different from those considered in the 1990 EIS. RIOC's 1999 Resolution and 1999 Comparison, contrary to SEQRA, ignored these areas of environmental concern, wrongly claiming they had been addressed in a prior EIS which was prepared for a demonstratably different project. As such, contrary to SEQRA, RIOC failed to take a hard look at the potential impacts and failed to provide a rational, reasoned elaboration for its determination to ignore the fundamental "determination of significance "requirements of SEQRA. 6 N.Y.C.R.R. §617.7(b). Accordingly, this determination should be annulled by this Court. J. RIOC Failed to Consider the Loss of the Octagon Park Improvements As discussed more fully in Point IV infra, the 1999 Resolution included an assumption that $3.4 million would be provided to finance Southtown is infrastructure improvements. Those funds would come from the New York City Department of Environmental Protection (DEP). DEP would provide the money by amending a 1994 agreement with RIOC, wherein DEP had agreed to pay for restoration of a DEP staging area used for construction of Water Tunnel No. 3 in Octagon Park and the construction of an Ecological Park within Octagon Park. In order for RIOC to avail itself of the DEP money for Southtown's needs, it had to forego the improvements to Octagon Park, located to the north of Northtown. RIOC completely ignored this additional impact to the open space character of the Island in its 1999 comparison document and the September Resolution. WITHOUT THE NECESSARY APPROVALS FOR AN AMENDMENT TO THE GENERAL DEVELOPMENT PLAN Any amendment of the development plan for Roosevelt Island referred to in the lease shall be subject to the review and approval of the director of the budget, and the corporation shall not enter into any agreement for the design or construction of any improvement provided for in any such amendment prior to such approval. Prior to 1999, RIOC had recognized that it could not approve any project or enter into any agreements inconsistent with the GDP until it had received approval from the City and director of the budget to the changes. In 1990 the proposed Southtown project differed in many respects from the GDP. At that time, after issuing its Statement of Findings, RIOC sought the City's agreement to changes to the GDP. The City, acting through the Board of Estimate, adopted RIOC's Statement of Findings and approved most, but not all of the proposed changes to the GDP. The City refused RIOC's request to amend the GDP by reducing Blackwell Park from 6 acres to 3 acres and also refused to change the height limit of residential towers from 27 stories to 30 stories. The City's refusal to reduce the size of the open space area known as Blackwell Park is particularly significant and relevant. In the original GDP, Blackwell Park is shown on an attached map for illustrative purposes, but its boundaries are not specifically defined. However, within the GDP itself it is clearly stated in the narrative of defined Open Space Areas as: Blackwell Park, approximately six acres separating the North Town Area and the South Town Area containing a landmark, the Blackwell House. (General Development Plan at 47 - 48). While the 1999 Southtown Plan is inconsistent with the GDP(8), that did not stop RIOC from approving it and authorizing its President and Chairman of the Board to negotiate and enter into agreements with Related and Hudson for the construction of the project. Without any reference to obtaining the prior approval of the City or the director of the budget, the RIOC Board (i) approved the Southtown Plan and Project; (ii) designated Related and Hudson as the Developer, (iii) authorized the President to negotiate a lease with the Developer for Phases I and II of Southtown and for the Chairman of the Board to execute the lease and (iv) authorized the President to take such action and execute such agreements to spend up to $4,560,000 for infrastructure costs associated with the Project. Since the resolution constituted a commitment and approval for legally binding agreements without the prior agreement or approval of the change in the GDP from the City and the director of the budget, the September 22, 1999 resolution is null and void. WHEN IT AGREED TO MODIFY A COMPENSATION CONTRACT TO PROVIDE FUNDS TO FACILITATE SOUTHTOWN During the construction of New York City Department of Environmental Protection's Water Tunnel No. 3, the work caused some removal and damage to the shoreline of Roosevelt Island, the riverside promenade and seawall. In 1994, DEP entered into a Memorandum of Understanding wherein DEP agreed to reimburse RIOC for work it had done to restore the areas of disturbance caused by Water Tunnel No. 3. Instead of a cash payment to RIOC, the Memorandum of Understanding provided for DEP to contract with RIOC to restore the DEP staging area; to create an Octagonal Ecological Park and build part of an access road to reach DEP facilities. The total value of the three projects was not specified, but could not exceed the amount of audited invoices for the seawall and promenade work. Although the Memorandum of Agreement was signed in 1994, the projects had progressed little, if at all by the Fall of 1999. On October 5, 1999, DEP and RIOC signed a Superseding Agreement to modify parts of the 1994 Memorandum of Agreement. The 1999 Agreement eliminated the construction of the three projects. Instead DEP agreed to pay RIOC "forthwith" $3, 400,242.84 representing supposedly audited invoices for the work restoring the promenade and seawall. That amount is almost exactly the amount necessary to meet the last provision of RIOC's September 1999 resolution to construct the infrastructure necessary for Southtown. In that resolution, the Board authorized the President to spend up to $4.56 million for Southtown infrastructure, however no more than $1.16 million of that amount could be RIOC funds. The balance was the $3.4 million to be paid by DEP upon amendment of the 1994 Agreement. DEP's decision not to build the other projects and instead to provide critical support for the construction of Southtown is clearly an action under CEQR.(9) Prior to agreeing to amend the 1994 Agreement, DEP should have considered the environmental consequences of its action. DEP did not prepare any of the necessary documents under CEQR. RIOC, at a minimum, was required to comply with the basic procedural requisites of CEQR. Prior to the City approving, funding or taking discretionary governmental action, the provisions of CEQR must be complied with. The procedures under CEQR are essentially the same as SEQRA. For projects subject to CEQR, the application is circulated to all involved city agencies for designation of the city lead agency 62 RCNY §5-03. An Environmental Assessment Statement ("EAS") is required to be prepared. 62 RCNY §5-05(b)(1). The lead city agency is required to determine if the EAS is complete (62 RCNY Ch. 5, app. A §6-05(b)) and to make a determination of significance. 62 RCNY Ch.5, app. A §6-07(a). The determination of significance will result in the issuance of a positive declaration requiring an EIS, a conditional negative declaration or a negative declaration. 62 RCNY Ch. 5, app. A §6-07. Along with the complete absence of CEQR procedural compliance, is the obvious disregard for the very real environmental consequences of DEP's action. Not only is DEP's agreement to modify the 1994 agreement a critical component of Southtown, it has an additional consequential negative effect by eliminating the restoration of the DEP staging area and foregoing the construction of an Ecological Park in Octagon Park. The DEP staging area is associated with the construction of a shaft for Water Tunnel No.3, and the area has created a significant disturbance of Octagon Park. The Ecological Park was supposedly intended to improve an important area of open space on the north side of the island, that is an area which has seen a steady deterioration due to neglect by RIOC. DEP's abandonment of those projects condemns Octagon Park to a steeper decline than it has already suffered. Thus, while DEP not only aided Southtown it affirmatively made a decision not to restore and build park area in another part of the island. As a result of DEP's actions, it facilitated the loss of approximately 3 acres in Blackwell Park and an undetermined area of Octagon Park. For DEP to close its eyes to the obvious environmental consequences of its actions without compliance with the environmental laws for which it is otherwise responsible, is unconscionable and the October 1999 agreement must be annulled. COMMITTED TO ENTER INTO A LEASE WITH THE DEVELOPER PRIOR TO OBTAINING THE NECESSARY NEW YORK CITY LAND USE APPROVALS RIOC has long claimed that it and the development it sponsors on Roosevelt Island are not subject to New York City land use controls including the Zoning Resolution of the City of New York or the Uniform Land Use Review Procedure ("ULURP"). City Charter §197-c. While that statement has been made, no citation for that position has ever been provided. We have searched the relevant legal authority and are unaware of any specific provision which exempts RIOC from complying with City zoning or ULURP. A. Unlike UDC, RIOC is Subject to Zoning There is no provision in the 1969 Lease for Roosevelt Island that specifically exempts the lessor or any of its sub-lessees or assignees from zoning or ULURP. While the Lease is silent on the issue, New York State Urban Development Corporation, the original lessee and RIOC's predecessor in interest was exempt from local zoning. That issue has been settled by the Court of Appeals in Floyd v. New York State Urban Development Corporation, 33 N.Y.2d 1, 347 N.Y.S.2d 161 (1973); Waybro Corp. v. Board of Estimate of the City of New York, 67 N.Y.2d 349, 502 N.Y.S.2d 707 (1986). In those cases the Court considered UDC's powers as set forth in § 6266 of the Unconsolidated Laws and the legislative history of the statute. The Court noted the language in §6266(3) wherein UDC, after consulting with local officials, was bound to comply with local laws, ordinances, codes, charters or regulations, except where UDC makes a determination that compliance is not feasible or practicable. In those cases UDC must comply with the state building construction code. The Court in Waybro Corp., noted the extensive provisions in §6266 for consultation with local officials and the mandate for public involvement and opportunity to comment on a project proposed by UDC. The Court ruled that the language of §6266, the comprehensive planning and public involvement process and the legislative history evidenced a clear legislative intent to give UDC the power to override local zoning. All of the elements which have led the courts to conclude that UDC is not subject to zoning are missing from RIOC's enabling legislation. Unconsolidated Laws §6389 of RIOC's enabling legislation is most closely analogous to §6266 of the UDC act. §6389 is nowhere near as comprehensive as the UDC act and does not evidence the same legislative intent to allow RIOC to ignore City zoning or planning approval. RIOC is specifically required to comply with all local laws, ordinances, charters, codes or regulations, but may substitute compliance therewith by complying with the state uniform fire prevention and building code. To the best of our knowledge, RIOC has not made such a determination to substitute the state building code for the New York City building code. Even if such a determination has been made, the lack of specific findings in the legislation and the lack of provisions requiring local consultation, cooperation with municipal officials and involvement of the public in the implementation of development proposals, evidences a legislative intent not to provide RIOC the same extensive powers granted UDC with respect to zoning. It is reasonable and appropriate that RIOC be subject to City zoning and planning so as to provide a means of protecting the interests of the existing residents of Roosevelt Island as further development plans are being proposed. Residents of the island moved there for the original vision encompassed in the GDP. They have a right to assure that further development will be consistent with that plan and City zoning. By moving to the island they did not forfeit their right to local representation or control of their neighborhood. When UDC was the responsible agency, it had in place a process which was, at least, an approximation of a zoning and planning process. RIOC has no such process. Other than seeking redress through the courts, island residents have no direct voice on the RIOC board. The RIOC Board members are unelected and unaccountable. Faced with such a situation, it is only through the City zoning and ULURP process that residents have a means for input in project review. Under the City Zoning Resolution, Southtown is considered a "Large-Scale Residential Development" as that term is defined in Chapter 8 of the zoning resolution. Article VII, Ch.8, §78-00. Those projects require the approval of the New York City Planning Commission and comprehensive review under ULURP. As discussed above, RIOC ignored SEQRA, the GDP and as shown here, City zoning and ULURP continuing its blatant disregard for sound planning and development. B. RIOC Ignored its own Procedures for Public Involvement RIOC also ignored its own policies and mechanisms it established to ostensibly facilitate public participation in its planning process. In November 1998, RIOC established by resolution a Long Term Strategic Planning Committee and a Capital Planning and Development Committee. Both committees were to advise the Board on issues related to development plans for Roosevelt Island, and the Capital Planning Committee was specifically tasked to advise the RIOC board on Southtown. Although the committees were ostensibly formed, their members were not appointed in accordance with the resolution by which they were established. Moreover, the committees did not meet to discuss the Southtown project and the RIOC Board did not seek the advice of the Capital Planning Committee before it approved the Southtown project. The November 1998 resolution establishing the committees constituted official RIOC rules of procedure which RIOC is bound and obligated to follow. Mary M. v. Clark, 118 Misc.2d 98, 460 N.Y.S.2d 424 (Sup. Ct. Cortland County 1983); Johnson v. Smith, 83 A.D.2d 721, 442 N.Y.S.2d 648 (3d Dep't 1981). Having acted it contravention of its rules of procedure, any action taken by RIOC is necessarily arbitrary and capricious and should be annulled. See Oset v. Can/Am Youth Services Inc., 212 A.D.2d 887, 622 N.Y.S.2d 152 (3d Dep't 1995); See also Johnson v. Smith, 83 A.D.2d 721, 442 N.Y.S.2d 648 (3d Dep't 1981). DIRECTORS QUALIFIED TO VOTE AT THE SEPTEMBER MEETING Upon information and belief the RIOC Board of Directors did not have a legally valid quorum when it met and voted on the September 22, 1999 resolution. Petitioners have requested documentation from RIOC as to the authority of the persons who were present at the September meeting to vote and information demonstrating the number of directors in office at the time of the meeting. Petitioners have made the request through the Freedom of Information Law. However, RIOC has to date refused to supply the requested information. RIOC's Deputy General Counsel has only replied in a letter dated March 13, 2000 to Margie Smith, one of the petitioners, that he will notify her on March 31, 2000 as to whether he will grant or deny her request. It is not coincidental that March 31st is the date that has been stipulated that RIOC will serve its answer and record to this proceeding. A. The Representatives of the Two Permanent Board Members may not have had Proper Authorization Section 6387 of the Unconsolidated Laws establishes the composition of the RIOC Board of Directors. The Board is composed of nine members comprised of the Commissioner of the New York State Department of Housing and Community Renewal, the Director of the New York State Division of the Budget and seven members appointed by the Governor with the advice and consent of the Senate. The seven members appointed by the Governor shall serve for terms of four years and until his successor shall be appointed and shall have qualified. Any action taken by the directors of RIOC shall be taken by majority vote of the directors then in office.. § 6387(4) provides that the Commissioner of the New York State Department of Housing and Community Renewal and the Director of the New York State Division of the Budget may designate an officer or employee of his respective division to represent him at meetings of the corporation. Such designation must be in writing and filed with the chairman or the secretary of the corporation. At the September 1999 meeting only four directors were present and all four voted in favor of the resolution. Neither the Commissioner of the Department of Housing and Community Renewal nor the Director of the Division of the Budget were present. The Commissioner was purportedly represented by Stephen Hicks and the Director purportedly represented by George Westerveldt. There is an open question as to whether the necessary letters of appointment were on file at the time of the meeting. If either or both of those gentlemen did not have valid letters of appointment, there would have been insufficient Directors voting for the resolution for the action to be valid. B. There is not a Sufficient Record Demonstrating the Number of Qualified Directors A similar situation may exist with respect to the Board as a whole. As set forth in §6387(2), the Board shall be composed of nine members. Other than the Commissioner and the Director, the seven other members appointed by the Governor serve for a term of four years and until his successor has been appointed and approved by the Senate. Therefore, vacancies on the Board cannot result from an expiration of term and the failure of the Governor to make a new appointment or the Senate to confirm the appointment. In those cases, the prior director continues to be in office. Vacancies can only occur if the director resigns, is removed for cause pursuant to §6387(3), or dies. This issue is relevant because Petitioners have never seen a proper delineation of which seats each of the directors holds and who is the successor to whom. At the time of the September vote, RIOC purported to have seven directors. In that case, the four directors who voted at the meeting were the bare minimum necessary to take action. If, however, either or both of the two vacancies were the result of directors whose terms had expired and the Governor had not made a new appointment or the Senate had not confirmed the appointment, then the number of qualified directors would be eight or nine. In that case, a minimum of 5 votes would be required for the Board to take action. Therefore it is critically important for RIOC to demonstrate the qualifications of each of its directors and the nature of the claimed vacancies.(10) Dated: March 17, 2000 Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, LLC By:Douglas H. Ward, Esq. Attorneys for Petitioners Executive Woods 5 Palisades Drive Albany, New York 12205 (518) 438-9907
Douglas H. Ward, Esq. NOTES:
1. Petitioners have not attached the FEIS. We assume this will be provided as part of the record and therefore will rely on the record rather than attaching this extremely lengthy document to these papers. 2. In spite of repeated requests of respondent RIOC's counsel and FOIL requests, RIOC has yet to produce the Finding Statement. On March 17, 2000, RIOC advised petitioners that it would not respond to the FOIL request until March 31, 2000 - coincidentally, this is the date RIOC must submit its return in this proceeding. Petitioners reserve the right to comment on this and any other document when and if it is produced as part of the record. 3. In spite of requests to respondent RIOC's counsel for this document and FOIL requests to RIOC, RIOC has yet to produce this document. Petitioners reserve the right to comment on this and any other documents when and if it is produced by RIOC as part of respondents' return. 4. The Southtown project is a Type I action because it is substantially contiguous to the Blackwell House which is listed on the National and State Registers of Historic Places [6 NYCRR §617.4(b)(9)] and it is substantially contiguous to designated open space (Blackwell Park) and exceeds 25 percent of the threshold for residential projects in a city of more than 1 million persons [6 NYCRR §§617.4(b)(10) and 617.4(b)(5)(v)]. 5. A full discussion of the differences between the 1990 and 1999 proposals and RIOC's failure to take a hard look is set forth in Point II, infra. 6. As explained supra these "determinations" do not meet SEQRA's specific procedural requirements for establishing lead agency and positive declarations or negative declarations. Consequently, the "determination" is a nullity as it does not constitute either of the decisional options for a determination of significance under SEQRA. 7. We have not attached the lengthy 1990 FEIS as we anticipate it will be included as part of respondents' return. 8. Other inconsistencies between the GDP and the 1999 Plan are discussed in Point II supra. 9. CEQR is the "City Environmental Quality Review," which is New York City's implementation of SEQRA -- the State Environmental Quality Review Act, and is implemented by Executive Order 91 and Rules of the City of New York ("RCNY"), tit. 62, Ch. 5. 10. If RIOC claims that the two vacancies were never appointed or confirmed by the Senate, then new questions arise concerning RIOC's authority to operate at all. RIOC's enabling statute specifically states that there shall be nine members of the Board, not up to nine members. If the full complement was never appointed at the inception of RIOC, then the Board was never empowered to act.
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