Earlier WIRE coverage. particularly since January, 2000, of the Southtown issues includes many diagrams, photos, aerial photographs, maps, and additional analysis. Click here for a list of articles.

Their objections center on a first building that allegedly would create a "wall" separating the existing Northtown residential complex from Southtown, rather than open space, which is seen as more likely to draw the two neighborhoods together. For some, preserving a high ratio of open space is key to arresting deterioration of a quality of life that they feel has gone downhill since the State withdrew financial support of Island operations and capital needs – arresting that deterioration and averting what could be a final nail in the coffin of a once-celebrated quality of life.

Residents also worry about the new neighbors, and express reservations on a plan top-heavy in studio and one-bedroom apartments that are not likely to be desired by the families the Island needs for long-term stability and a sense of settled community.

Another worry is that RIOC has sacrificed too much to get this particular development going – allegedly diverting millions of dollars from construction of Octagon Park (another quality-of-life issue) to pay for Southtown infrastructure, and then setting the developers' ground rents so low that the project adds little to the financial underpinning RIOC needs to run the Island. (In fact, the equivalent amount of money invested in simple bonds would pay better.)

Then there's the matter of unavoidable construction inconvenience – as much as a decade, perhaps, before it ends – and construction traffic likely to tear up Main Street and create pedestrian detours which, at times, could make getting to the subway or Tram a maze that would rattle a rodent.

The RIOC Viewpoint

Concerned with catching the wave of current economic conditions, RIOC simply wants to get on with Southtown. At least in some measure, today's RIOC simply must follow through on work started under Dr. Jerome Blue, who left the RIOC Presidency a year ago. Perhaps it's also a matter of pride to show that the organization did this particular thing right. And RIOC's motivations may also hinge on the additional income Southtown would produce for its operating budget.

The Lawyers' Translation

Making legal hay of all this sunshine and rain is another matter. The issues must be translated into something legally pleadable before a judge – something that can cite law and rely upon case precedents.

For the petitioning residents, that means pressing their interpretation of the Island's General Development Plan (GDP), part of the lease through which the State controls most of this 147 acres of property until 2068, and on finding ways to challenge RIOC's execution of the administrative steps in approving the plan.

The GDP requires a six-acre park separating Northtown and Southtown. That's physically impossible, given the layout of the Hudson/Related plan. In a nose-to-nose confrontation on this point, RIOC and the developers respond that it's physically impossible given the acreage set aside for Southtown.

On procedure, those suing complain that RIOC avoided a serious assessment of environmental impact – a process that could have consumed a year at a time when the developers were eager to get started because they have a tenant lined up for the first building.

On those claims have the lawyers placed their bets, couched in the language of litigation.

Judgment

The buck stops with the judge, of course – in this case, Justice Harold Tompkins of the State Supreme Court. Though he may draw upon resources within the Court system, in the final analysis it is his judgment which could be tested on appeal. It is therefore useful to imagine oneself in his shoes and robe to see a complex case from his perspective.

It happens that landowners and developers have gotten pretty good at finding their way through the approval processes, so the deck tends to be stacked against petitioners bringing Article 78 actions like those before Tompkins. When they can find it, judges in such cases prefer to find evidence of something fairly flagrant on the part of landowners or developers, rather than technicalities. So it helps, in playing imaginary judge, to be truly hard-nosed in evalutating a petitioner's chances.

But even on that rigid standard, RIOC appears to be highly vulnerable on two key points, either of which could provide the judge with sufficient grounds to send RIOC back through parts of the approval process.

General Development Plan

The General Development Plan is unequivocal in requiring a park of approximately six acres separating Northtown and Southtown. And in 1990, the City Board of Estimate reaffirmed that requirement by specifically rejecting a RIOC request for a GDP amendment that would have reduced Blackwell Park to about three acres.

This puts RIOC in a position of claiming, in effect, that the Board of Estimate rejection of the GDP change (even while it was approving several other changes) should simply be ignored or overridden. Trying to provide the judge with reasonable justification for such a ruling is a formidable argumentative challenge. In fact, RIOC's lawyers have argued that the Board of Estimate simply failed, out of some unsubstantiated confusion, to rubber-stamp a park reduction that was already fact because Eastwood and Rivercross had been overbuilt onto parkland. Yet both Rivercross and Eastwood had already been standing for well over a decade when the Board voted to retain the six-acre requirement.

So it's hard to imagine the judge going along with the notion that the City's lawmaking body of the time failed, in some bureaucratic muddle, to consider the realities of the situation. To do so would be an effective declaration that the City of New York is irrelevant, stripped of its landlord rights by virtue of the State's mistake in allowing construction on land set aside to be part of a park.

Environmental Impact

RIOC also appears particularly vulnerable on assessment of environmental impact. In fact, the calendar record seems to show that the agency pushed through a hurried ruling that a new Environmental Impact Statement (EIS) was unnecessary – that the EIS done in 1990 (for the Ramati plan) was sufficient because the 1990 and 1999 versions of Southtown are nearly identical.

Making that case is difficult. As the petitioning residents point out, buildings are in different positions, of different heights, casting longer shadows. Views are changed, and the main road is relocated. For far less, judges in similar cases have ruled that a full EIS is required.

The consultant opinion holding that no new EIS would have to be done in the Southtown case came from one of the City's most prestigious environmental consulting firms, Allee, King, Rosen and Fleming (AKRF), but it was funded by the developers, not RIOC, leading to a suggestion that its objectivity may have been compromised.

There's also evidence that RIOC allowed legal consultants only a week to provide it with advice that it need to undertake a new environmental assessment. Both consultants hedged. Neither produced a definitive opinion on the matter.

In the law, a "hard look" is required. That is, RIOC was supposed to examine the possible need for a new EIS rather rigorously. If the judge senses that the evidence shows such a hard look was avoided, he has sufficient grounds to rule that RIOC must go back through the process.

Relative Harm

Faced with a tangle of conflicting evidence and pleadings, and particularly if there's a relative balance between the sides, judges often will consider the relative harm that might result from deciding a case either way.

Looking to cause the least harm in his decision, Judge Tompkins might weigh the potential harm inflicted on the community by immediate construction of a plan not fully studied against the harm inflicted on RIOC and the developers by requiring a new EIS, which might delay construction a year. In the equation, that's permanent construction and potential permanent damage on one hand, weighed, on the other, against a year's delay to produce an EIS.

Appeal Potential

It's tempting to think that a judge must actually sift through every single issue in a case. But many cases contain single issues past which the judge need not look, because they are controlling – adequate in themselves as the basis for a ruling. Ruling on such a single issue, a judge can avoid producing findings in dozens of other matters that might provide fodder for appeals.

When a judge asks himself, as even the most courageous jurist must, about the likelihood of being overturned on appeal, such single issues – even seemingly minor ones – become important facets of a case. In this case, the EIS, or environmental impact study, might be taken as a kind of case-closer. Ruling that RIOC and the developers must produce a new, thorough EIS, complete with community hearings and a full-blown record, would generate a one-year delay – about the same delay that could be brought on by an appeal.

Earlier WIRE coverage. particularly since January, 2000, of the Southtown issues includes many diagrams, photos, aerial photographs, maps, and additional analysis. Click here for a list of articles.

While RIOC and the developers might appeal a ruling that a full EIS must be done, they might instead simply accept the one-year delay involved, and do the EIS. There is also the possibility, of course, that RIOC and the developers might elect to negotiate an end to the legal process – but that's a possibility that has been rejected so far.

Conclusions

Predictions are risky. But that temptation to see the future is powerful.

All things considered, despite the fact that developers and landowners almost always get their way in the end, the cases brought by the Alternative Southtown Design Committee and Roosevelt Islanders for Responsible Southtown Development (RIRSD) seem to invite judicial caution – a decision in favor of a further careful look before concrete is poured.

Time will tell – no decision is expected anytime before mid-July, and it could be longer.