HAROLD TOMPKINS, JUSTICE:
Roosevelt Island Operating Corporation's determination that no
supplemental environmental impact statement is required in
connection with the proposed 19.3 acre development of the
Southtown portion of Roosevelt Island is the matter before this
Court. It arises in the context of a challenge by an association
of certain Roosevelt Island residents, Alternative Southtown
Design Committee (Alternative) to a September 22, 1999 resolution
of the Board of Directors of the Roosevelt Island Operating
Corporation (RIOC) [See footnote 1]. This petition contends that
RIOC's determination violated the State Environmental Quality
Review Act, Environmental Conservation Law section 8-0101 et seq.
(SEQRA) as well as the General Development Plan (GDP) for
Roosevelt Island. Alternative has also moved to compel
additional specificity in RIOC's answer. Another group of
Roosevelt Island residents, Roosevelt Islanders for Responsible
Southtown Development (RIRSD) has sought to intervene in this
matter for the purpose of challenging the purported violation of
SEQRA and the GDP by RIOC.
The Court heard oral argument on these two applications on May
17, 2000, permitted additional papers to be submitted by May 24,
2000 and has reviewed all the extensive papers submitted. All
the motions are consolidated for disposition and decided as noted
below.
PROCEDURAL BACKGROUND
On December 23, 1969, the City of new York, which owns Roosevelt
Island, entered into a ninety-nine (99) year lease with the New
York State Urban Development Corporation for development of the
Island as outlined in the GDP. The Urban Development Corporation
carried out development of Northtown Phase I, the tramway and
other projects. In 1984, the Roosevelt Island Operating
Corporation Act, McKinney Unconsolidated Laws, sections 6385 et
seq. established RIOC as a public benefit corporation and
transferred the U.D.C.'s authority to it. RIOC developed
Northtown Phase II.
It then turned to the development of Southtown. Extensive
revision to the GDP were proposed to the Board of Estimate
including reduction in the amount of office space from two
hundred thousand (200,000) square feet to twenty thousand
(20,000) square feet, elimination of the Town Center on
Southtown, elimination of a shopping arcade, swimming pool,
library, school and other changes. These were adopted by the
Board of Estimate. A proposed reduction in the size of Blackwell
Park was not adopted. The Board of Estimate reduced the maximum
height permitted for the Southtown Towers to approximately
twenty-seven (27) stories. RIOC also went through the SEQRA
process and ultimately adopted a Final Environmental Impact
Statement (FEIS) in May 1990 for the site plan also known as the
Ramati Plan. Apparently due to poor economic conditions, no
bidders responded to the Requests for Proposals and the project
languished until 1996.
In 1996, a Request for Qualifications was issued by RIOC that
lead to the selection of Related Companies and Hudson Companies
as joint developers subject to approval of the final site plan.
Related/Hudson proposed a modified plan with the same number of
units (1,956), the same bulk, height and square footage. RIOC
directed Related/Hudson to submit an environmental assessment to
compare their plan with the 1990 Ramati Plan with respect to
potential environmental impact. RIOC directed the same firm that
prepared the 1990 FEIS be used to prepare the 1999 environmental
assessment. In April 1999, the environmental assessment was
issued concluding that potential environment impact was
comparable or less than that of the 1990 Ramati Plan and that
there would be no new or substantially greater significant
adverse impacts. RIOC also sought review by counsel of the
impact of this environmental assessment as to whether it would be
necessary to prepare a supplemental environmental impact
statement (SEIS). On September 22, 1999, the RIOC Board reviewed
the 1999 environmental assessment, and adopted a resolution
finding that the modifications would not change the Project nor
had the conditions changed so as to create a significant
environmental impact not previously addressed in the 1990 SEIS
and that therefore no SEIS was required. The revised Southtown
Plan was adopted and the President was authorized to negotiate
with a formal sublease and plan. On January 20, 2000,
Alternative commenced this petition to set aside the September
22, 1999 RIOC Board resolution. RIRSD filed its petition on
January 24, 2000. Apparently conceding the lateness of its
filing, RIRSD sought leave to intervene by motion on April 10,
2000, more than four (4) months after the RIOC Board's
resolution.
An amended petition by Alternative was filed on February 4, 2000.
RIOC answered the petition on March 24, 2000, stating in
substance that it had acted properly. On April 4, 2000,
Alternative moved for additional specificity in RIOC's answering
papers. The parties agreed to adjourn the proceedings by written
stipulation until May 17, 2000. On May 17, 2000, the Court heard
oral argument on the applications.
There are several secondary issues that the Court will address
prior to the dispositive matters. These are primarily of a
technical nature. RIOC asserts that Alternative lacks standing
to bring this proceeding. However, its chair has verified the
petition and under New York's expansive reading of standing to
bring a SEQRA challenge, see Matter of Mobil Oil Corp. v.
Syracuse Industrial Development Agency, 76 NY2d 428, 433 (1990),
Alternative has standing sufficient to raise this challenge.
The contention that RIOC's resolution lacked validity based upon
a purported inadequate number of board members is conclusively
rebutted by the affidavits of Kenneth Leitner, the Board's
Secretary. These affidavits established that on September 22,
1999, there were six (6) members of the Board, a majority of whom
approved the resolution. The Board has also established the
D.E.P. reimbursement for repair of damage to the seawall will not
be used for the development of Southtown. The Court also finds
that joinder of Related Company and Hudson Companies was not
necessary since they do not yet have a completed contract.
However, the Court joins Related, Hudson, and the City of New
York to the Alternative petition as additional parties since they
have all submitted papers on the underlying issues.
Alternative's motion for additional specificity in the answer is
denied. RIOC's answer raised the relevant facts sufficiently for
Alternative to submit a reply.
The final technical issue concerns the timeliness of RIRSD's
intervention. It is undisputed that RIRSD failed to meet the
four (4) month statute of limitations set forth in CPLR 217. The
Court is cognizant of the significant community support for RIRSD
as evinced by the petition annexed to its sur-reply papers.
However, RIRSD filed its petition on January 24, 2000, and sought
intervention on April 10, 2000, both beyond the statutory limit
and without any legitimate explanation for the delay. The
substantive objections as to the SEQRA and GDP issues have been
raised by Alternative. The Court therefore must deny
intervention by RIRSD and dismiss its petition as untimely, see
Dreves v. New York Power Authority, 131 AD 2d 182 (3rd Dept.
1987).
SEQRA AND THE REQUIRED REVIEW
The purpose of SEQRA is to incorporate the consideration of
environmental factors into the relevant decision making process,
see Jackson v. New York State Urban Development Corp., 67 NY2d
400, 414-415 (1986); H.O.M.E.S. v New York State Urban
Development Corporation, 69 AD2d 222, (4th Dept 1979). The
mechanism through which this is done is the Environment Impact
Statement (EIS). After initial preparation of a draft EIS,
solicitation of commentary, public hearings culminates in
issuance of a final EIS, see Jackson, supra. The procedures set
forth in SEQRA are to enable the environmental impact to be
weighed along with social, economic and other relevant factors,
see WEOK Broadcasting v Planning Board of the Town of Lloyd, 79
NY2d 373 (1992). Part of the SEQRA procedures require not only
identification and evaluation but also mitigation or amelioration
of the adverse environmental effects, see Jackson, supra at 415;
Williamsburg Around the Bridge Block Assn. v Giuliani, 223 AD2d
64, 70 (1st Dept. 1996). However, in reviewing the agency's
determination, the Court's role is limited. The Court may not
weigh the underlying merits or any lack of merit of the project,
see Jackson, supra at 416; Akpan v Koch, 75 NY2d 561, 570 (1990).
Rather, the Court's role is to ensure that the agency identified
the relevant areas of environmental concern, took a "hard look"
at them and presented a "reasoned elaboration" for its
determination, see Akpan, supra at 570-571; Har Enterprises v.
Town of Brookhaven, 74 NY2d 524 (1989).
The review to determine whether the agency took the required hard
look and has presented a reasoned elaboration is governed by the
traditional arbitrary and capricious standard applied to judicial
review of agency action, see H.O.M.E.S., supra at 234; Har
Enterprises, supra at 530.
In the context of this matter, the Court must review RIOC's
September 22, 1999 resolution that a supplemental EIS was not
required. The resolution determined that there were no
significant new adverse environmental impacts not addressed in
the 1990 FEIS. The 1999 environmental assessment examined the
proposed project and compared it with the 1990 plan. The 1999
environment assessment considered and compared land use,
population, housing, visual character, shadows, traffic, parking,
urban design, air quality, noise, transit and pedestrian issues,
municipal services, community resources, infrastructure,
contaminated materials and coastal zone management. The analysis
of the visual impact on Blackwell House, views of the Queensboro
Bridge, the visual character of Roosevelt Island, scenic views of
the East River, and in particular, the impact of shadows that
would be caused by the new buildings and the height changes of
the buildings are the subject of Alternatives challenge. The
resolution of the RIOC Board is based upon its determination
that, as elaborated in the 1999 environmental assessment, that
the negative effects were contemplated by and addressed in the
1990 FEIS. It concluded the reduced impacts presented by the
1999 Related/Hudson Plan were within the scope of the 1990 Ramati
Plan and were therefore already taken in account.
Petitioner's analysis of the environmental effects differs. It
contends that the effects are more severe, that they have not
been accorded sufficient weight and the review was cursory.
Behind these procedural objections is the substantive
disagreements with the merits of the project. This substantive
disagreement in essence seeks to require a particular result, see
Jackson, supra; Residents for a More Beautiful Port Washington,
Inc. v Town of North Hempstead, 149 AD2d 266 (2nd Dept. 1989).
Alternative contends that the impact of visual character and
shadows have not been properly considered. The fact that RIOC
came to a different conclusion does not mean that it did not
properly evaluate these environmental impacts. The evidence
submitted by RIOC, Related and Hudson indicate the visual impact
issues raised by Alternative was considered in the 1999
environmental assessment and relied upon by RIOC in the September
22, 1999 resolution. It is true that greater consideration and
more extensive analysis could have been done. There can always
be additional analysis and review. At some point, in order to
take action, an agency must decide the review performed is
sufficient and must come to a decision. Similarly, the assertion
that the delays in the project by themselves warrant a SEIS is
without foundation since mere passage rarely warrants an order
updating the information, Jackson, supra at 425; Lazard Realty v.
New York State Urban Development Corp, 142 Misc 2d 463 (Sup Ct
N.Y. Cty. 1989) Distilled to its essence, Alternative's argument
is that RIOC could not have come to its determination if it had
done sufficient analysis and review. This is a policy dispute
camouflaged as a procedural challenge. Since RIOC has performed
the requisite analysis required under SEQRA, the policy dispute
is all that remains.
Based upon the appropriate standard of review, as noted above, in
which the Court may not judge the wisdom of the plan, the Court
cannot say that RIOC did not take a hard look at the relevant
factors and produce a reasoned elaboration of the basis for the
decision, see Har Enterprises, supra at 529. Since petitioner
Alternative has not made such a showing, the challenge based upon
SEQRA must be dismissed, Residents, supra; Main Seneca Corp v.
Erie County Industrial Development Agency, 125 AD2d 930 (4th
Dept. 1986).
Similarly, the Court must review the claim of violation of the
GDP solely for whether Alternative has shown that the
determination is arbitrary or capricious. No change as a result
of the Related/Hudson plan is contemplated to Blackwell Park.
Any encroachment already exists as a result of prior
overbuilding. The determination that an open buffer area between
Northtown and Southtown will exist, although not in the precise
current manner, also cannot be set by the Court. The Court
cannot find the determination to be either arbitrary or
capricious.
The petition must therefore be dismissed in its entirety. [See
footnote 2.]
This decision constitutes the order and judgment of the Court.
Dated: July 5, 2000
s/Harold Tompkins
J.S.C.
FOOTNOTES
1. There is an underlying issue of concern to the residents of
Roosevelt Island concerning RIOC and their lack of participation
in their own governance. Former members of the RIOC Board have
prominent positions in Alternative and RIRSD. However, the
enabling statute places the appointing authority of the Board
with the Governor of New York State and the Mayor of New York
City with advise and consent of the Senate, Unconsolidated Laws,
section 6387. While residence on Roosevelt Island is required
for at least three of the seven public members of the Board,
there is a potential for concerns regarding self governance since
the Board is an appointive body. However, since this is the
structure set forth in the enabling statute, such concerns must
be left for review to the political arena..
2. Since the same reasoning applies to the RIRSD petition, the
Court would dismiss it on the same basis, if it had been timely
filed.
