by Dick Lutz

The State Supreme Court has ruled in favor of the Roosevelt Island Operating Corporation (RIOC) in residents' cases challenging Southtown.

The ruling is virtually certain to be appealed.

Text of Decision Related Editorial List of Past Articles Southtown Chronology

Justice Harold Tompkins ruled that Roosevelt Islanders for Responsible Southtown Development (RIRSD) filed its case late, missing a four-month window allowed for challenges to the RIOC resolution granting "final designation" to the developers and approving their plan. RIRSD's challenge was filed January 24, four months and two days after the clock started ticking September 22, 1999, with passage of the RIOC resolution.

RIRSD attorneys dispute the validity of Tompkins' ruling on the timeliness of their filing. January 22, the four-month anniversary of the RIOC resolution, fell on a Saturday. The group's petition was filed Monday, January 24.

[Under State law, the four-month period of opportunity for challenging a September 22 action would ordinarily expire on January 22 (not January 21). Another provision says that when the statute of limitations ends on a "Saturday, Sunday, or public holiday" it is extended to "the next succeeding business day."]

Tompkins granted the Alternative Southtown Design Committee (ASDC) "standing" in the case, but ruled against the group, headed by attorney Robert Chira, on each of its substantive points. In addition, the judge "joined" RIOC, the developers, and the City Department of Environmental Protection into Chira's suit, without those parties requesting it.

Both RIRSD and Chira had contended that the Hudson/Related plan for Southtown differed so much from the 1990 Ramati plan that a fresh review of the project's environmental effects should have been done.

But Justice Tompkins ruled that RIOC had satisfied the requirements of SEQRA, the State Environmental Quality Review Act. He characterized Chira's challenge as a "policy dispute camouflaged as a procedural challenge," summarizing its argument this way: "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." He concluded, "Since RIOC has performed the requisite analysis required under SEQRA, the policy dispute is all that remains."

Tompkins found that RIOC's consideration of environmental matters was adequate, saying, "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 [Final Environmental Impact Statement]." After listing all the items considered in the 1990 study, he wrote, "...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..."

The Court agreed with RIOC's contention that the six-acre Blackwell Park called for in the General Development Plan (GDP), was reduced by over-building of Rivercross and Eastwood onto parkland. The petitioners had argued that a 1990 decision of the City's Board of Estimate to leave language in the GDP requiring a six-acre park meant that the park "separating Northtown and Southtown" could not be reduced to a smaller size, as the Hudson/Related plan would do.

Without reviewing the RIRSD claims on the GDP matter (because he concluded their petition was not timely), Tompkins wrote that "the Court must review the claim of violation of the GDP solely for whether Alternative [ASDC] 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 of capricious."

"The petition must therefore be dismissed in its entirety," Tompkins concludes.

In a footnote, Tompkins deals with the question of resident influence over development of Roosevelt Island: "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... 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."

RIOC President Robert Ryan, when informed by The WIRE of the Court's decision early Wednesday afternoon, said, "From the start, RIOC believed that both cases were frivolous. We moved forward and fought the fight in support of our fiduciary responsibility to the citizens of this Island and the citizens of New York State. Obviously, the court agreed with us and we're going to move forwad with breaking ground on Southtown."

An appeal of the judge's ruling is all but certain, and, on Wednesday, attorneys for residents were already looking at possible grounds.

The decision appears to confuse the identities of two parties to the cases, at one point calling RIRSD an "intervenor." Actually, it was the Residents Assocation (RIRA) that petitioned to be admitted as an intervenor in the cases.

RIRSD, having been ruled out of the case by virtue of its filing papers on Monday, January 24 instead of Saturday, January 22, is likely to appeal the ruling on that point. The lead attorney for RIRSD commented, on Wednesday: "I'm studying the decision. With respect to the Court's decision on the statute of limitations issue, the Court is clearly wrong, and this issue was not even raised by any of the defendants, because they presumably realized that the suit was filed on time."

Ward continued, "It appeared to me that the court was confused about which parties it was addressing in its decision, and that may have been the basis for its error."

He added, "With respect to the rest of the decision, the Court, because it dismissed this case on statute of limitations grounds, did not really substantively address the core objections that my clients raised. This can all be brought out on appeal."

Asked about the possibility of an appeal of his case, Chira declined comment, for now, on that and on all other matters in the case.

The resident petitioners have 30 days to file notice of intent to appeal. In a statement issued today, the steering committee of RIRSD indicated that it does plan to carry the case forward:

"Although we had hoped to prevail early-on in the litigation process, we are encouraged that no decision was made on RIRSD's arguments. This preserves all our arguments for appeal.

"We knew at the outset that an Article 78 Challenge would be complex and arduous. We were and are prepared to go to the next round in litigation.

"The current decision contains errors that provide us with a solid foundation on which to enter an appeal. For example, the decision fails to recognize that our case was presented in a timely fashion; the decision fails to recognize that RIRSD is the petitioner, not the intervener in the case (in fact, the ruling never even recognized RIRA and their appeal for intervention); contrary to the Judge's footnote by which he based a portion of his decision, no former members of the RIOC Board have positions in RIRSD or on the Alternative Design Committee; etc.

"We remain confident, especially in light of all the errors made in this judgment, that our case will prevail when heard on appeal."

When contacted by The WIRE, RIRA President Patrick Stewart had not yet had an opportunity to read the decision, and had no comment.