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Southtown Appeals Raise
Basic Legal Development Issues
by Robert Laux-Bachand
Lawyers on both sides of the dispute over the Southtown
housing project have sharpened their arguments in briefs prepared
for an appeal to be argued next month. The case will guide
the course of Roosevelt Island development and has the potential
to affect the way many appointed boards in New York State conduct
their business.
The appeal is scheduled to be heard at 2:00 p.m. Tuesday,
June 12, in the Appellate Divison of the State Supreme Court at
25th Street and Madison Avenue.
The opponents of the housing plan, Roosevelt Islanders for
Responsible Southtown Development (RIRSD), the Alternative
Southtown Design Committee, and the Roosevelt Island Residents
Association (RIRA), are appealing the July 2000 decision of
Justice Harold Tompkins that dismissed their challenges to the
Southtown plan.
RIRSD, aided pro bono by the law firm of LeBoeuf, Lamb,
Greene & MacRae, is essentially trying to turn back the clock to
Sept. 22, 1999, when Southtown advanced on a 4-0 vote of the
Roosevelt Island Operating Corporation's Board of
Directors. RIRSD sued RIOC and its chosen developers, the
Related Companies and the Hudson Companies. Alternative,
in the person of Robert Chira, a lawyer who lives at Rivercross,
sued only RIOC. RIRA is still seeking to intervene in the
case as the representative of all Island residents.
Southtown's defenders, RIOC and Related/Hudson, are trying to
keep the 1,956-unit housing project on track. They portray
their opponents as dilatory in their tactics, and as attempting
to channel their dissatisfaction with the details of the project
into objections based on its supposed noncompliance with State
environmental law and the terms of the Island's General
Development Plan (GDP), part of the lease between New York City,
which owns the Island, and the State, which developed it as a
planned community.
A feeling of exasperation, particularly, is evident in
Related/Hudson's 44-page brief, prepared by Sive, Paget &
Riesel. The developers' lawyers vigorously dispute nearly
every factual and legal issue raised by the opponents, and
portray their clients as champions of the design and community
values embodied in the GDP. The two real estate companies
and RIOC are also trying to block the Residents Association's
attempt to intervene in the case, saying RIRA missed its filing
deadlines and failed to raise any new issues that weren't covered
in the other legal challenges.In its conclusion, RIRA
states: "Were this plan to be built, Northtown and
Southtown would merge in a massive residential cluster that is
antithetical to the enlightened planning that brought RIRA's
members to the Island to live, and would alter the income mix
that has produced the exciting and edifying community that RIRA
represents."
Not so on both counts, say RIOC and Related/Hudson.
The question of whether parkland will be lost is one of the
central facts still in dispute even as this case moves up the
judicial ladder, where questions of law normally move to the
forefront. And the question of income mix arose from
"early financial models Related/Hudson used to determine the
economic prospects of the first phase of the Southtown project,"
according to RIOC's lawyers, Carter, Ledyard &
Milburn.
"The economic success of the first phase will increase
Related/Hudson's ability to develop subsequent phases, including
the necessary affordable units, in the future," RIOC's lawyers
say. "The R/H site plan will follow the GDP's flexible
guidelines in providing for a mixture of affordable and
market-rate housing."
Aside from such factual disputes, the appeals raise several
technical issues: whether the RIOC Board's approval of the
project in 1999 was valid; whether RIOC complied with the
requirements of the State Environmental Quality Review Act
(SEQRA) in deciding not to conduct a new or supplemental
environmental impact study of the project, and whether the trial
court applied the proper standard in reviewing RIOC's
interpretation of the General Development Plan.
If the GDP is a contract, as LeBoeuf asserts in the RIRSD
brief, then RIOC, as a party to the lease, cannot unilaterally
change it, but must win the consent of its landlord, the
City. On the other hand, if the GDP "is neither a statute
nor a contract, but a planning document," as Carter, Ledyard
maintains in representing RIOC, then the judge, it could be
argued, properly allowed some leeway in RIOC's decision –
making the GDP question merely one aspect of the decision on a
new environmental review. LeBoeuf insists that the GDP and
environmental claims are separate issues.
Finally, RIRSD seeks to retain one arrow in its quiver should
all its others miss the mark. That is the contention that
Southtown requires approval by the City Planning Commission under
New York City's zoning laws. This element of RIRSD's case
was not dealt with in Tompkins' ruling last year, and the group
is asking the appeals court to remand this question to the trial
court should it decide that RIRSD will win a reversal only on the
one point to which all the rival camps agree: That
Tompkins, evidently confusing RIRSD with RIRA, incorrectly
dismissed RIRSD's original appeal for missing a filing deadline.
(RIOC's lawyers call it an inconsequential "acronymical
error.")
RIRSD and RIRA are asking the appellate judges to reverse
Tompkins and nullify RIOC's approval of Southtown. But if
RIRSD is granted a retrial only on the question of Tompkins'
obvious error, it wants to compel the lower court to consider
whether Southtown should be subject to a City Planning Commission
assessment of, for example, the "existing capacity of public
schools or other public facilities serving the area."
If RIRSD were to succeed in having the case remanded for a
zoning review, or in getting important elements of Tompkins'
decision reversed, the timetable for construction of Southtown
would be lengthened considerably, a consequence that the
developers have tried to contrast with their own desire to "add
2,000 units of badly-needed affordable and market-rate housing
within New York City."
Related/Hudson thus accuses its opponents of stalling, saying
that RIRSD, after its initial notice of appeal, "waited over
seven months... and Alternative over eight months, to perfect
[their] appeal[s] in [their] separate action[s] against
RIOC." During this period, the developers point out, the
design and construction of the first phase of Southtown had
already begun.
"By the end of June, infrastructure work for this phase will
be 40% complete and work on the individual buildings will begin,"
the developers said. "The petitioners' failure to
safeguard their interests by timely prosecuting their appeal
and/or seeking an injunction pending appeal is further reason for
denying the relief petitioners demand at this late date."
RIOC and the companies argue that the Southtown opponents
cannot raise issues on appeal that were not presented to the
trial court. Whether the urgency of erecting the buildings
falls into this category, too, will be a matter for the Appellate
Division to decide. In any event, the legal matters to be
argued when the appeal is heard on June 12 can be summarized
under three main headings: Blackwell Park; the
environmental review, and RIOC's 1999 vote.
Blackwell Park
Chira, the Residents Association and RIRSD all say that the
Southtown plan violates the legally-binding GDP by reducing the
size of Blackwell Park, which contains the landmark house of the
Island's 18th-century farmers. The GDP, they argue,
requires that "approximately six acres" separate Southtown from
Northtown, and RIOC cannot change this requirement. Only
3.86 acres will remain if Southtown is built as planned, the
opponents contend, and the buffer of space between the two
residential communities will be eliminated.
The court's mediation of this argument may well depend on its
notion of "approximately," because the land in question may be
little more than a half acre.
RIOC says that the positioning of Eastwood reduced Blackwell
Park from 6 to 3.86 acres, while also allowing for the creation
of a different park – Capobianco Field – north of
Eastwood. This shift in the configuration of the Island's
open spaces is documented in environmental impact statements and
assessments dating to 1972, as cited in the RIOC brief.
The "informal soccer field" at the north tip of the 19-acre
Southtown site, now fenced off, was never part of Blackwell Park,
RIOC says, and "exists solely because of the long delay in
completing Southtown." Thus, the plan does not, in itself,
reduce Blackwell Park, which, being on the east side of the
Island, never constituted a full buffer, anyway. The
buffer, RIOC says, will be a combination of Blackwell Park and
the Meditation Steps area on the west side of Main Street and
south of Rivercross.
Hudson and Related make the computation more specific:
"Even assuming, arguendo, that the 1990 GDP requires RIOC to
maintain 'approximately six acres' between Northtown and
Southtown as petitioners contend, the revised Southtown complies
with that condition by maintaining a 5.4 acre open space buffer
between the Northtown and Southtown buildings. That buffer
is consistent with the written description of 'open space areas'
contained in the 1990 GDP."
The companies' brief even quotes a letter to The WIRE
from David Kraut, a "soccer dad" and RIOC Board member,
who said that the soccer field was a "temporary measure" and that
the tendency to call it "Blackwell Field" was misleading.
In replying to the appeals, RIRSD says the linchpin of its
opponents' argument, a 1969 map attached to the original General
Development Plan, is not legally binding because it is meant only
to illustrate a "general development plan." It questions
the relevance of the information on Capobianco Field, says the
other statements about Blackwell Park are hearsay or
unpersuasive, and notes that the City Board of Estimate in 1990
specifically rejected RIOC's proposal to amend the GDP to reduce
the size of Blackwell Park. Most of the other amendments,
meant to pave the way for Southtown, were approved.
The Carter, Ledyard brief states: "In 1990, RIOC
sought to amend the GDP to formally recognize this de facto
encroachment. The Board of Estimate declined to do so for
unexplained reasons." The Board's action late on the
evening of Aug. 17, 1990, was one of its last official acts
before it went out of existence. Its powers have been
assumed by the Mayor and, as the brief says, with regard to the
GDP its "reasons (or lack thereof) will likely never be
known."
RIRSD's reply brief says that the Board's decision in 1990
"is a devastating fact for respondents since it indicates that
the Board, which had both special knowledge of and interest in
Roosevelt Island, rejected RIOC's view that the 1969 map had
fixed the boundaries of Blackwell Park."
RIRA makes the same argument in its appeal: "The Board
of Estimate's decision cannot be altered without seeking an
amendment to the GDP; any unilateral action by RIOC would amount
to an unauthorized exercise of legislative power."
Chira's original petition was notable for its emphasis on the
aesthetics of the new development. He contended that the
original plan for Southtown in 1990, by maintaining a large
buffer space, did not create a "significant visual impact" on the
Blackwell farmhouse. "In contrast, the 1999 project
provides for construction of a 16-story building practically on
top of and next to Blackwell House, permanently impairing its
visual character and creating day-long shadows on it."
The 1990 plan Chira alludes to was designed by Raquel Ramati
& Associates, for which RIOC commissioned a 600-page
Environmental Impact Statement (EIS). The Ramati plan was
never built, in part because of a real estate downturn, but also
because it posed, as Related-Hudson says, "formidable structural,
economic and design problems," including a proposed 28-story
tower over the subway line that bisects the Southtown site.
Building over the tunnel proved to be unfeasible, and when Hudson
and Related came on Board seven years later, they redesigned the
project.
The 1990 study was prepared by an environmental consulting
firm, Allee King Rosen & Fleming (AKRF). Related/Hudson,
at the suggestion of RIOC, hired the same company to assess the
new plan for Southtown. (A controversial decision, according to
LeBoeuf, which asserts that the choice of the same firm shows
that the "respondents are not interested in obtaining an unbiased
assessment.") One of the questions was whether the project
would create "significant new shadow impacts" not envisioned in
1990. Here is RIOC's statement on that point:
"Although some of the R/H Site Plan's buildings are somewhat
closer to Blackwell Park, they are also shorter. The two
northernmost buildings in the Ramati Site Plan were 21- and
26-story towers, as opposed to the more modest 9- to 16-story
northernmost building in the R/H Site Plan. Therefore,
though the R/H Site Plan's northernmost building would be closer
to Blackwell Park, by approximately 100 feet, it would also be 10
stories shorter and therefore would cast shorter, smaller
shadows."
Environmental Studies
Justice Tompkins ruled that the RIOC Board complied with the
proper standards and procedures in deciding not to perform a new
or supplemental EIS on the Southtown plan. It is not up to
the court to judge the merits of a project, he wrote.
"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."
In dismissing the environmental challenges to Southtown,
Tompkins said that Chira did not show that RIOC had failed to
perform the required analysis, or had acted in an "arbitrary or
capricious" manner – the standard of judicial review of an
agency action.
RIRSD is contesting this ruling on several fronts. The
LeBoeuf brief argues – in a highly technical reading of
SEQRA regulations, amendments and case law – that the 1999
plan for Southtown should be considered a new "action" under
State law. If the appeals judges were to accept this
conclusion, it would follow that RIOC failed to adhere to a long
list of procedural duties associated with a full-fledged
environmental review, any one of which, the brief says, would be
"fatal" to the 1999 RIOC resolution.
This part of the appeal appears to be a refighting of Lazard
Realty v. N.Y. State Urban Development Corp., a 1989 decision
involving the State's 42nd Street revitalization project.
In that case, RIOC's brief says, "The court reasoned that SEQRA
contemplates that projects, like the Southtown project, consist
of a series of steps from planning to implementation.
Therefore project modifications do not require an entirely new
SEQRA review."
More broadly, the Related/Hudson brief asserts that the
petitioners cannot support "their novel contention that the
revision of a site plan for construction of the same residential
development project, with the same number of residential units,
same maximum height and bulk and on the same parcel of land
requires a needless and profligate duplication of the EIS process
undertaken for the prior Southtown plan."
RIRSD's backup position is that RIOC should at least have
undertaken a Supplemental EIS, because, "At a mimimum, the 1999
plan posed potential adverse impacts on the environment that the
1990 Ramati plan did not pose." The "cursory findings"
of the RIOC-Related/Hudson assessment in 1999 "do not
constitute the sort of 'reasoned elaboration' which SEQRA
requires," the LeBoeuf brief argues.
Certain pitfalls seem to be built into this part of the
appeal. RIRSD says it is mounting only a procedural
challenge, "not a challenge to the wisdom of an agency's policy
choice." And yet, in order to show that the current Southtown
departs significantly from the 1990 proposal, the residents'
group posited a number of differences – such as changes in
open space, air quality, and in the Island's socioeconomic mix
and "community character" – that by their very nature must
be conjectural, or are rather easily rebutted by the other side's
factual assertions or even by its declarations of what it plans
to build in the future.
Thus, RIRSD's complaint that Blackwell Park "has a soccer
field and softball field" that will be lost to development may be
difficult to sustain if the court accepts the fact that the field
was never a part of the park. Seventy-seven percent of the
site now is supposed to be open space, compared to 45 percent in
the earlier plan, and Related/Hudson maintains that east-west
vistas will actually be enhanced, not diminished.
Likewise, "thanks to dramatic reductions in vehicle exhaust
emissions and cleaner burning fuel, air quality as a whole has
greatly improved since 1990, and will likely continue to
improve," RIOC's brief states.
Related/Hudson says RIRSD's appeal "lacks any substantiation
of its claims from experts skilled in the assessment of
socioeconomic impacts, visual impacts, shadows, traffic impacts,
impacts on community character or other areas explored in the
1990 EIS and the 1999 Environmental Assessment." And the
1999 assessment, RIOC argues, far from being a cursory finding,
was based on an "extensive review of the potential environmental
impacts" and therefore qualifies as the "hard look" that New York
law requires when site plans are changed.
The Environmental Quality Act, Related/Hudson says, "is not a
forum for a design competition. Nor does SEQRA require
that every neighbor be satisfied before a project may move
forward."
But Related/Hudson said it did respond to "a significant
number of public comments" when it formulated Southtown, and in
that sense it is not entirely immune from the same contradictions
associated with RIRSD's environmental appeal.
This is from the Sive, Paget & Riesel brief:
"Related/Hudson provided drop-off parking at every building to
minimize congestion on Main Street, which was a concern for many
residents. In addition, the plan revised the height and
setback of the proposed building closest to the Tram in order to
minimize any impact on the visual experience of arriving on the
Island. The revised plan also provided a sizable parcel of
open space in the southeast corner of Southtown for a vastly
improved, properly graded soccer/softball field, which was a
priority for many residents."
In other words, Related/Hudson argues that the new Southtown
is not only economically feasible, it's also, for the purposes of
satisfying Island residents, quite different from earlier
proposals, and better. But in terms of the State's
environmental law, its significance is the same as a plan offered
more than 10 years ago.
RIOC'S 1999 Vote
Looking for riddles? There are two in this part of the
appeal. RIRSD poses the first one with this question to
the appeals judges:
"Was the September 22, 1999, RIOC Resolution approving the
1999 Plan invalid because it was passed at a RIOC meeting without
a quorum, in violation of the General Construction Laws?"
RIRSD says that Justice Tompkins did not address the
question, even though his ruling stated: "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,"
establishing that on Sept. 22, "there were six members of the
Board, a majority of whom approved the resolution."
That ruling would appear to be fairly straightforward, except
for the fact that by law, RIOC is supposed to have nine Board
members, and that number is the basis for determining a quorum,
or the majority of a fully-constituted public body, RIRSD
argues. By this standard, the RIOC Board was short-handed
by one member when it approved Southtown, and its decision is
void.
RIRSD's argument hinges on the distinction between a voting
requirement and a quorum requirement: "Under New York law,
clear statutory language is needed to pre-empt the quorum
requirements of the General Construction Laws. Had the
Legislature intended to make the RIOC quorum vary with the number
of RIOC vacancies, it could have easily done so by simply stating
that 'the majority of officers then in office shall constitute a
quorum.'"
The rationale behind a quorum requirement is simple
democracy, RIRSD says: If the majority of officers then in
office were the standard, "then the RIOC Board could conceivably
dwindle to one member who could act on behalf of all of
RIOC."
The lawyers for RIOC take several approaches in countering
this argument. First, as a matter of procedure, they
contend that the "petitioners may not raise new issues for the
first time on appeal, particularly where RIOC might have offered
proof to refute their assertions." RIOC argues that
RIRSD's original petition dealt only with the question of a
majority vote, not a quorum. LeBoeuf counters that "purely
legal theories may be raised for the first time on appeal."
Second, while conceding that the RIOC statute lacks a quorum
requirement, the lawyers say it does provide that "any action
taken by the directors of the corporation shall be taken by
majority vote of the directors then in office."
Finally, the brief says, a looser interpretation of quorum
can be inferred from RIOC's history and purpose as a public
benefit corporation. Of the nine Board members, two are
top State officials – the Commissioner of the Division of
Housing and Community Renewal (DHCR) and the Budget Director, or
their designees – and seven are gubernatorial appointees
subject to Senate approval, of whom two must first be recommended
by the mayor. One of the mayoral choices must be an Island
resident.
This "cumbersome" law has created problems, RIOC
argues: "Until Dec. 28, 1999, one of the mayoral
recommendation positions had never been filled because none of
the various candidates had survived this lengthy process."
Another of the mayoral positions had been vacant since
1993. The third vacancy was created by the 1998
resignation of Island resident Ronald Vass and not filled until
April 2000. Historically, RIOC argues, the Board has had
to act without its full complement of directors, and its own
bylaws stipulate a quorum of the members then in office.
"To impose the quorum requirement urged by the petitioners
would severely restrict RIOC's ability to act at all,"
RIOC's attorneys argue, in just one of several explicit
statements suggesting that the technical requirements of the
democratic process must take a back seat to the job at hand
– RIOC's mission to "plan, design, develop, operate,
maintain and manage Roosevelt Island."
Strict application of the quorum requirements "would, without
justification, frustrate the purpose of the RIOC Act," the brief
says. "Thus, from the purposes of RIOC, it should be
inferred that a different quorum requirement was intended than
that which the General Construction Law would otherwise
require."
From a strictly legal standpoint, one of the most interesting
arguments here – and one with potential implications for
other New York governing bodies – involves a 1996 case,
Wolkoff vs. Chassin, which is cited by both sides in
Southtown. The Wolkoff case involved a dispute before a
medical disciplinary board, the Administrative Review Board (ARB)
for Professional Medical Conduct, made up of three professionals
and two laypeople. Only the physicians were in attendance
when the board voted 3-0 to affirm a finding of misconduct in the
Wolkoff case. The Appellate Division reversed the
decision, agreeing with the plaintiff that the decision had to be
made by the full board. But New York's highest court, the
Court of Appeals, reversed that ruling.
LeBoeuf cites the high court's decision to buttress its
argument that general State law must prevail on a quorum question
when the "plain language" of a board's statute is silent on a
quorum.
Carter, Ledyard, & Milburn, however, uses the Wolkoff case to
support an interpretation on a different tangent, saying that the
high court's use of the "more liberal General Construction Law to
validate the ARB's action" supports RIOC's understanding of its
enabling legislation.
"The laws of New York create scores of councils, commissions
and the like that have specific requirements as to the makeup of
their membership," the Court of Appeals said, in a section quoted
by RIOC's lawyers.
"For us to imply a requirement that the voice of each group,
constituency and appointing authority be represented in every
single official act performed by the body would impose an
unreasonable burden," the Wolkoff opinion says.
The ruling thus could be seen as creating a conflict in
judicial standards, and the Southtown case, in effect, invites
the Appellate Division to clarify what should take precedence in
a quorum case: A board's adherence to strict democratic
procedure, or to its duty to punish, or build, or regulate, for
example.
The second part of the riddle of Sept. 22, 1999, concerns two
of the four voters – Stephen Hicks, who represented the
DHCR Commissioner, and George Westervelt, who represented the
Budget Director. RIRSD argues that Hicks and Westervelt
lacked authority to cast their votes because their names were
among a roster of eight possible designees listed in letters from
the top State officials to RIOC, whereas the plain language of
the RIOC statute states that the budget director and housing
commissioner "may each designate an officer or employee of his
respective division to represent such member at meetings of the
corporation," not multiple designees.
In reply, RIOC's lawyers again caution against a literal
interpretation of the law, arguing that "petitioners' unduly
formulaic approach to the appointment process would hamper the
Board's ability to function effectively."
"A fair and reasonable interpretation of the RIOC Act allows
for multiple appointments," the brief states, because the State
agencies' appointees "are unlikely to live on Roosevelt Island
and therefore travel to and attendance at meetings could be
burdensome for any one individual." Under this argument,
any one of a number of possible appointees can serve the purpose
of representing the agencies' interests on Roosevelt Island, a
point reinforced by the brief's equation of the language "an
officer or employee" to mean "any representative so
designated."
RIRSD insists that the multiple appointments are illegal, and
it also sent Leitner, the Board's secretary, on a 15-year paper
chase to try and trace the reasons for the three vacancies.
RIRSD did not accept Leitner's affidavits to the trial court as
establishing that there were only six Board members at the time
of the vote, saying he had not produced RIOC files or other
evidence to show, for example, that previous Board members had
really quit. On appeal, Leitner said his search turned up
"no original document" or file that would serve as better
evidence.
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