Opinion
118270/04
Decided April 21, 2005.
Daniel Quart, Esq., New York, New York, for Petitioners.
Edward Lloyd, Reed Super, Vivian Mills, Rahu Agarwal, Columbia Environmental Law Clinic, Carter Ledyard Milburn LLP, Stephen L. Kass, Roosevelt Island Operating Corporation, Sive Paget Riesel PC, Steven Russo, New York, New York, for Respondents.
MEPT Octagon LLC and Gotham Construction Company LLC for Amicus Curiae.
Eliot Spitzer, Attorney General, Robert Emmet Hernan, Gregory J. Nolan, Assistant Attorneys General, New York, New York, Of Counsel.
This is an action by the Roosevelt Island Resident's Association ("RIRA") to enjoin construction of a residential development, restoration of an historic landmark, development of the open space area surrounding the landmark, and the renovation and realignment of a tennis court on Roosevelt Island as violative of the 2002 Open Spaces Law, the Public Trust doctrine, and ECL § 52-0907.
Facts
Roosevelt Island, The Master Lease RIOC
Roosevelt Island is located in the East River between Midtown Manhattan and Queens. It is approximately two miles long, 800 feet wide at its widest point, and consists of approximately 147 acres. Since 1969, Roosevelt Island has been a planned community developed in accordance with the terms of a 99-year Master Lease for Roosevelt Island from the City of New York (the "Master Lease"). The Roosevelt Island Operating Corporation ("RIOC"), a public benefit corporation and a political subdivision of the State of New York, was created to take responsibility for the development and operation of Roosevelt Island as lessee under the Master Lease. Its enabling statute provides that "it is in the public interest that [RIOC] plan, design, develop, operate, maintain and manage Roosevelt Island, [and] that [RIOC] have vested in it such powers as are necessary or convenient to effectuate those functions." NY Unconsol. § 6385 (McKinney 2005). RIOC's Board of Directors is composed of nine members, including the Commissioner of the New York State Division of Housing and Community Development ("DHCR"), who serves as the chairman and chief executive officer; the New York State Director of the Budget; and seven public members appointed by the Governor of the State of New York.
The General Development Plan for Roosevelt Island
Since the inception of the Master Lease, Roosevelt Island has been developed by RIOC and its predecessor, the New York State Urban Corporation ("UDC"), in accordance with the Master Lease and the broad programming reflected in the General Development Plan ("GDP") for Roosevelt Island. The GDP, created by architects Philip Johnson and John Burgee in 1969, is a five-page document attached to the Master Lease. It is a broad conceptual plan for Roosevelt Island, and has been amended numerous times over the years by agreement with the City of New York and RIOC, as contemplated in the Master Lease, to address the evolving needs and opportunities for the development of Roosevelt Island. The GDP sets forth the "Basic Program" for the development on Roosevelt Island of a "New Community" of approximately 5,000 units of housing, with public facilities and "Open Space Areas." The GDP states that "the object of the New Community is to make the maximum contribution to the present needs of the City consistent with the limitations of the Island site and of foreseeable available financing." It calls for the creation of two main residential areas, a "North Town" and a "South Town," as well as numerous public facilities and "Open Space Areas".
Open Space Areas under GDP and the RIOC Act
The GDP indicates five "Open Space Areas" on Roosevelt Island: "Southpoint park," "Sports park," "Blackwell park," "Lighthouse park," and portions of "Octagon park." While the GDP contemplates "develop[ing]" these open spaces "as parks," neither the RIOC Act nor the GDP designate or dedicate the Open Space Areas as parkland.
The GDP has been amended several times to meet the evolving needs of the Island, to take into account funding limitations, or to recognize de facto changes on the Island. Consequently, at least two of the five Open Space Areas explicitly contemplated by the GDP have been reduced in size by development activities. The "Sports Park," located underneath the Queensboro Bridge, was reduced in size from seven to five and one-half acres. "Octagon Park" was also reduced in size from 25 to 15 acres, ten years after the development of North Town Phase II encroached on that area. The GDP was actually amended in 1990 to reflect this fact.
Conversely, while some Open Space Areas have been reduced, other open space and park areas not contemplated by the GDP have been developed on the Island and enjoyed by the Island residents. Northtown Park (a.k.a. Copobianco Field), for example, is an approximately three-acre park that was built along with North Town and has been enjoyed by the public for many years. In addition, as part of the ongoing development of South Town, approximately 15 acres of public open space are being added, including a multiple-use sport field not contemplated in the GDP, which was built by the developer of South Town before the first residential structure went up.
The Open Space Area at Issue: Octagon Park
At issue is the Open Space Area indicated in the GDP known as Octagon Park. Located on the northwest side of Roosevelt Island, the Park was once the site of the New York City Lunatic Asylum, which was built in 1839. Its name derives from the Octagon Tower, the sole remnant of the Asylum. The Tower was the administrative center and main entrance of the Asylum, and served as the physical hub of two patient wings that extended west and south from it. The Asylum was abandoned in 1894, and all portions of the hospital, except the Octagon Tower, were demolished over time. The wings of the Lunatic Asylum were demolished in 1970, leaving piles of rubble and debris strewn about the areas surrounding the Tower. Two years later, the Octagon was listed in the National Register, and subsequently designated a New York City Landmark and New York State Landmark. The Tower itself was severely damaged by two serious fires, one in 1982, the other in 1999. While a precise date cannot be established, it is believed that a fence was constructed for public safety reasons around the 2.66-acre area encompassing the former Lunatic Asylum no later than the mid-1980s. A fence has encircled the site at least as early as 1987 and has remained in place ever since, discouraging, if not completely preventing, public access to the Octagon Site.
As noted above, Octagon Park has been reduced in size from the 25 acres indicated in the 1969 draft of the GDP to the 15 acres reflected in the GDP's 1990 amendments. In addition, the New York City Department of Environmental Protection ("DEP") has, since before signing the Master Lease, occupied as much as six acres of the "Octagon Park" area for construction staging and vehicular access as part of its ongoing construction of Water Tunnel No. 3, which passes beneath Roosevelt Island. The DEP staging area has been fenced and inaccessible to the public for many years, and today DEP continues to occupy approximately three acres in "Octagon Park."
Development of the Octagon Park Open Space Area
In addition to its other recommendations, the GDP has always called for the rehabilitation of the historic landmarks on Roosevelt Island, including the Octagon Tower, "if such . . . rehabilitation can be financed other than with financing from" RIOC. Despite this, very little of the area was improved for recreational use in the first two decades following the signing of the Master Lease. Development of the Island was focused, instead, on other areas. Only a few informal recreational amenities were created in that period. A picnic area, with barbeque pits and picnic benches, was created, apparently on an ad-hoc basis by Island residents, in the area west of the formerly fenced-off area. One resident, Petitioner Margie Smith, affirmed that she "attended picnics and barbeques at Octagon Park on numerous occasions over the years with many of [her] neighbors." Sherie Helstien, another resident, affirms that she has "been to numerous parties and leisurely events on the portion of land to the west of the Octagon Tower."
The Octagon Park Design Task Force, The Weintraub Plan, and Improvements Made Between 1989-1997
By 1989, however, RIOC's general intent to officially restore the Octagon Tower and improve Octagon Park became a public fact. That year, RIOC assembled a group that became the Octagon Park Design Task Force, comprised of representatives of the Island's community groups (including Petitioner RIRA), individual residents, RIOC's staff planners and the consulting landscape architecture and urban design firm Weintraub di Domenico. With the assistance of the Task Force, Weintraub di Domenico developed the "Octagon Park Design and Implementation Plan" ("the Weintraub Plan"). The Weintraub Plan, finalized in 1990, was "an urban landscape vision for Octagon Park, a road map that will provide guidance and offer direction for future development." It recommended programming for a future Octagon Park, including ball fields, community gardens, open lawn areas and an "ecological park." The Weintraub Plan recognized the funding challenges posed by the deteriorated conditions of the Octagon building itself. It left the future use of the Octagon Tower undetermined and stated that "the Octagon itself and its ultimate use are not part of this plan."
RIOC then sought and obtained funding under the Environmental Quality Bond Act ("EQBA") to carry out a portion of the Weintraub Plan. RIOC was awarded a $1 million grant and added more than $1 million of its own money. Using the funds, RIOC carried out approximately nine acres of improvements recommended in the Weintraub Plan, including, inter alia, the reconstruction of six tennis courts existing on the site. At the conclusion of this work, RIOC provided the Office of Parks, Recreation and Historic Preservation ("OPRHP") with a map consisting of a hand-drawn outline over the Weintraub Plan, roughly showing the areas improved using the EQBA monies. This map does not accurately reflect the actual layout of the improvements on the ground; it depicted the courts approximately 15-20 feet of where they actually stood, and fully aligned with one another.
Genesis of the Octagon Apartment Complex project ("the Project"): 1997 to February 2001
In 1997, RIOC issued a Request for Proposals ("RFP") for the development of certain waterfront areas on the Island. In 1999, Becker and Becker Associates ("Becker"), a highly regarded, Connecticut based architectural firm specializing in historic restoration, responded to the RFP with a proposal that included a residential development, to be built on the footprint of the old Lunatic Asylum. The proposal contemplated cleaning up the site and opening it up to public. It provided for expanding open space resources by enlarging and improving an existing picnic area as part of a new and long-contemplated "ecological park." The plan also provided for reconstructing and improving the six public tennis courts created under the Weintraub Plan. The centerpiece of the plan, however, was the restoration of the historic of the Octagon Tower.
According to Steve Marcus, the President of Petitioner RIRA, plans for the current Octagon Project were disclosed to the public no later that May of 1999. RIOC spent nearly two years reviewing the proposal, as it was refined by Becker after extensive consultations with relevant federal, state and New York City agencies, the public, and RIOC. On February 15, 2001, RIOC conditionally designated Becker as the developer of the "Octagon Project," and entered into a site control agreement with Becker to that further design, testing and environmental review would be performed. RIOC, as "lead agency" under the State Environmental Quality Review Act ("SEQRA"), then required Becker to prepare an Environmental Assessment Form and Supplemental Report (the "EAF") for the entire Octagon Project to review the Project's potential environmental impacts.
The 2002 Open Spaces Law
In July 2002, over a year into Becker's preparation of the EAF, the State Legislature passed the 2002 Open Spaces Law. The Open Spaces Law sets certain conditions for any non-park related construction or development on certain Open Space Areas indicated in the Roosevelt Island GDP. It provides:
Notwithstanding any other provision of this act, or any other law to the contrary, on or after the effective date of this section, no further development or construction for other than park purposes shall be permitted on any real property which is identified as open space areas in the general development plan as amended May 10, 1990 and approved by the board of estimate of the city of New York on August 17, 1990 and referred to in the lease defined in subdivision six of section two of this act, and on such real property shall remain open space areas for the duration of the lease unless such development or construction includes the reconstruction, restoration, rehabilitation or preservation of the historic landmarks located in such open space areas and furthers the use of the areas surrounding the historic landmarks as open space areas. Open space areas, as used in this section shall be limited to Lighthouse park, Octagon park, Blackwell park, and South Point park. McKinney's Unconsolidated Laws.
NY Unconsol. § 6394-a (McKinney 2005). The Open Spaces Law identifies Octagon Park as one of the four open spaces within its purview.
The EAF, Public Hearing, and RIOC's Formal Negative Declaration
Becker presented a draft of the EAF to RIOC some time prior to November 23, 2002. The EAF described the Project and exhaustively evaluated all of its potential environmental, land use, and socio-economic impacts. It included 39 separate figures, 23 tables and approximately 100 pages of analysis. It found that the Octagon Project would not have any significant adverse environmental impacts and would, in fact, bring a number of environmental benefits to the Island, including restoration of the Octagon Tower.
Although not required under SEQRA, RIOC's Board of Directors scheduled a public hearing to hear comments from interested members of the public regarding the Octagon Project's environmental and the EAF. RIOC also invited comments at that hearing on a proposed amendment to the GDP for Roosevelt Island specifically designed to permit the Octagon Project. Drafts of the EAF and the proposed GDP amendment were placed on RIOC's website and made available to the public. Notice of the hearing was published in the Roosevelt Island local newspaper, the Main Street WIRE, on November 23, 2002. The public hearing was held at the Chapel of the Good Shepard, in the middle of Roosevelt Island, and was attended by dozens of Island residents, including representatives of RIRA and its officer-petitioners in this proceeding.
A Final EAF and Supplemental Report were given to RIOC in January 2003. On January 30, 2003, the RIOC Board of Directors, after considering public comments on the EAF, issued a "negative declaration" for the Octagon Project under SEQRA, finding that the Project would have no significant adverse environmental impacts and, accordingly, did not require the preparation of a full environmental impact statement under SEQRA. The Board also authorized RIOC's president to enter into an agreement with the City of New York to amend the GDP.
RIOC and The City of New York Amend the GDP
On June 13, 2003, Mayor Bloomberg and acting RIOC President Patrick Siconofli signed an amendment to the GDP. Section 1 of the GDP now reads, in pertinent part:
Approximately 500 dwelling units may be developed in the Open Space Area in a building or buildings attached or adjacent to the existing remains of the Octagon Tower, together with associated parking and an ecological park. These dwelling units shall be in addition to the approximately 5,000 dwelling units provided for above and shall be developed in accordance with all laws and regulations applicable to projects of [RIOC] and in accordance with [The 2002 Open Space Law].
As amended, the GDP explicitly contemplates residential development of Octagon Park's open space.
Approvals from OPRHP, the Attorney General, and the State Comptroller
In response to public concerns that the Project's plans to shift and realign the tennis courts built under the Weintraub Plan constituted an impermissible alienation of parkland or open space under the 2002 Open Space Law, that part of the Project was redesigned. To further allay concerns, RIOC sought and obtained the opinion and approval of OPRHP. By letter dated October 13, 2004 from Kevin Burns, Chief of Grants for OPRHP and "agent for Commissioner Castro," OPRHP informed RIOC that the Project's plans for the tennis courts did not constitute alienation of parkland in violation of the EQBA project agreement.
RIOC then sought and obtained the necessary approvals for the Octagon Project from the Comptroller and the Attorney General, as required by the EQBA project agreements. By letter dated September 20, 2004 the Solicitor General, on behalf of the Attorney General, wrote to the OPRHP Commissioner and delivered an opinion that the Project and proposed lease would not affect the exemption of interest on any bonds or notes of the State of New York from the gross income of the owners thereof. By letter dated September 30, 2004, from General Counsel to the Comptroller, the Comptroller informed OPRHP that he "approves the lease, sublease and change of use of portions of the Projects."
The Current Octagon Project
After more than four years of review and obtaining necessary approvals, RIOC approved the Octagon Project on October 14, 2004 and authorized RIOC's President to enter into sublease with MEPT Octagon LLC ("MEPT"), the construction contractor, to carry out the Project.
As approved, the Octagon Project is a 500-unit residential development (including 100 affordable units) that will restore the Octagon Tower, and clean up the 2.4-acre site that was fenced and inaccessible to the public. The Project contemplates expanding open space resources by enlarging and improving an existing picnic area and "tot lot" as part of a new and long-contemplated "ecological park," and reconstructing and improving the six public tennis courts created under the Weintraub Plan by giving the a new surface, new and improved lighting, and new fencing.
The centerpiece of the Project is the restoration of the historic Octagon Tower. At a cost of more than $10 million, borne almost exclusively by MEPT, Octagon Tower is set to be restored to its former exterior appearance.
The residential portion of the Project will consist of two wings extending south and west from the restored Octagon Tower. The Project's two wings will echo the layout of the Lunatic Asylum, which had similar wings that were demolished in 1970, and will be separated by a courtyard that will include a swimming pool for Project residents. Within the rehabilitated Octagon Tower, there will be a public gallery and tenant amenities. The gallery will include displays featuring local artists and documentary themes, such as the historic development of Roosevelt Island as a planned community. The Project will also include a day care center open to the public. It will also utilize state-of-the-art "green building" technology, enabling the developer to design the building to consume 35% less energy than a comparable new building. All of these improvements will be carried out within an approximately 2.4-acre area not publicly accessible for many years.
In addition to the restoration of the Octagon Tower and the residential improvements, the Octagon Project includes improvements to certain adjacent public amenities and open space areas that serve the entire Island. A public "ecological park" will be created to the west of the new residences by opening up .30 acres of new open space and adding this area to an existing picnic and barbeque area. As part of the ecological park, the picnic area, tot lot and waterfront esplanade will be reconstructed and upgraded (replacing pavement with waterfront greenspace), and an existing waterfront emergency roadway will be relocated to the east of the Octagon Tower (between the tennis courts and the residential building). The upgraded and enlarged open space area will be planted with native species and will be marked with educational signage along an urban history trail. When completed, this ecological park area will comprise over 1.6 acres of landscaped waterfront open space for picnics, barbeques, educational use, and recreation.
During construction, the six existing tennis courts created under the Weintraub Plan have been temporarily taken out of service for utility installation and equipment staging. MEPT is required to reconstruct and improve these courts by the end of May 2005, in time for the 2005 playing season. The courts will be improved with new directional lighting (replacing inferior non-directional lighting), a new playing surface (replacing the cracked and uneven former surface), and new fencing. The courts will also be relocated slightly and re-aligned. The northern three courts will be moved approximately 15 feet to the east, and the southern three courts approximately five feet to the east in order to accommodate the relocation of the emergency fire lane and permit emergency access to the Octagon Tower once it is restored and reoccupied. The courts will thus conform more to their location on the map RIOC originally provided OPRHP. The location of the fire lane will allow the removal of the existing access road along the western edge of the site. The new roadway will also provide access to four parking spaces for tennis players and to a parking area serving the ecological park and a church and a public pier located immediately to the southwest of the ecological park.
Construction Already Underway
The sublease was signed on November 3, 2004. Construction began the next day and has proceeded continuously since that time. Substantial construction has already been completed, on both the Octagon Tower restoration and the construction of the residential wings. With respect to the Tower, work to reinforce the existing masonry has proceeded for over three months. During the week of March 7, the concrete "ringbeam," which will support the rebuilt dome on top of the structure, was completed. The steel work needed to support the interior stairway and landings is now being fabricated, and demolition of unsalvageable interior walls is being undertaken.
With respect to the residential buildings, excavation is now complete. The remaining basement walls are now being constructed. The two foundations are 90 percent completed. As of the time of the writing of this opinion, the reconstruction and upgrading of the tennis courts are to have begun and are expected to be substantially complete by the end of May 2005.
Petitioners Challenge to the Octagon Project
On December 29, 2004, more than five and a half years after the Project was made public and more than two months after approval and construction began, Petitioners RIRA, Steve Marcus, as President, Margie Smith, as Vice President, and Sherie Helstein, as Secretary, filed Notice of Claim against RIOC, MEPT Octagon LLC, and Gotham Construction Company, LLC, collectively Respondents seeking to nullify the RIOC approval and stop the Project. On January 27, 2005, Respondents cross-moved to dismiss the petition. On March 2, 2005, Petitioners moved for an Order to Show Cause for a Preliminary Injunction enjoining Respondents from performing any construction on the Project. On March 21, 2005, Respondents made a Cross-Motion to Dismiss. On March 23, 2005, Petitioners made a Cross-Motion for Leave to File an Amended Petition and for an Order Regarding the Timing of Answer and Hearing on Petition. Oral Arguments were heard on March 24, 2005, and Respondents filed a Verified Answer to the Petitioner's Amended Verified Petition on March 31, 2005.
Petitioners advance three independent grounds for injunctive relief: 1) the Project violates the 2002 Open Spaces Law; 2) the Project violates the Public Trust Doctrine; and 3) the Project's realignment and reconstruction of a tennis court near Octagon Park is an alienation of parkland under EQBA and thus violates ECL § 52-0907. Underlying Petitioners' arguments is its contention that the entire Octagon Park open space area is actually protected parkland. For the reasons discussed below, this court denies the injunction on all theories.
DISCUSSION
Standing
Respondents raise a threshold issue challenging petitioners' standing to bring this proceeding, citing Society of Plastics v. County of Suffolk, 77 NY2d 761 (1991). They assert that petitioners have failed to demonstrate a direct harm to themselves and have failed to show that the injury alleged comes within the interest sought to be protected by the statutory provision upon which they rely. This court concludes that the interests of justice require recognition of petitioners' standing. Assuming, arguendo, that the petition is meritorious, no valid purpose would be served by denying standing. If there is merit to this claim and these individuals and their association are deemed to lack standing, who would be the appropriate party to bring this claim. (Court notes that the Attorney General of the State of New York has filed an amicus brief in support of the petition.) Certainly the public interest would be ill-served if no one were found to have appropriate standing to challenge the possible alienation of parkland.
This court relies on the holding in Committee to Preserve Brighton Beach v. Planning Commission of the City of New York, 259 AD2d 26 (1st Dept. 1999). There, the court held that those living in proximity to a public park had standing to challenge the granting of a concession for the construction and operation of a recreational center. Petitioners' claim was that construction of a recreation center would interfere with their use and enjoyment of the park, and was violative of the city charter and/or state law. Under the totality of circumstances here, these petitioners have standing.
Injunction Is Denied
It is well established that the "drastic remedy of a preliminary injunction will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing such an undisputed right rests upon the movant." First Nat'l Bank of Downsville v. Highland Hardwoods, Inc., 98 AD2d 924, 926, 471 NYS2d 360, 363 (3rd Dep't 1983). To prevail on their request for an injunction, Petitioners must meet the heavy burden of demonstrating (1) irreparable injury; (2) a likelihood of ultimate success on the merits; and (3) that a balancing of equities favors the Petitioners' position. Aetna Ins. Co. v. Capasso, 75 NY2d 860, 552 NYS2d 918 (1990). While not passing on whether they have met the first and third of these requisite elements, this court finds that Petitioners' have not shown a likelihood of success on the merits on any of the three alternate grounds asserted.
The Project Does Not Violate the 2002 Open Spaces Law
Petitioners claim the Project is prohibited by the plain meaning of the 2002 Open Spaces Law.
"It is settled law that an agency's interpretation of the statutes it administers must be upheld absent demonstrated irrationality or unreasonableness. (Citations omitted). However, where 'the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency.' (Citations omitted). In such a case, courts are 'free to ascertain the proper interpretation from the statutory language and legislative intent.'" (Citations omitted)).
Seittelman v. Sabol 91 NY2d 618, 625, 674 NYS2d 253, 256 (1998). See also Matter of Dental Socy. v. Carey, 61 NY2d 330, 335, 474 NYS2d 262, 462 NE2d 362 ("Whether administrative action violates applicable statutes and regulations is a question within the traditional competence of the courts to decide."). This court holds that the Project in question is consistent with the plain language of 2002 Open Spaces Law and thus does not violate the statute. "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583, 673 NYS2d 966, 968 (1998). The Project fits comfortably within even a cursory reading of the statutory language.
The 2002 Open Spaces Law, which amended RIOC's enabling statute, provides:
Notwithstanding any other provision of this act, or any other law to the contrary, on or after the effective date of this section, no further development or construction for other than park purposes shall be permitted on any real property which is identified as open space areas in the general development plan as amended May 10, 1990 and approved by the board of estimate of the city of New York on August 17, 1990 and referred to in the lease defined in subdivision six of section two of this act, and on such real property shall remain open space areas for the duration of the lease unless such development or construction includes the reconstruction, restoration, rehabilitation or preservation of the historic landmarks located in such open space areas and furthers the use of the areas surrounding the historic landmarks as open space areas. Open space areas, as used in this section shall be limited to Lighthouse park, Octagon park, Blackwell park, and South Point park.
NY Unconsol. § 6394-a (McKinney 2005) (emphasis added). Specifically, the Octagon Project comes within the exception carved out for "development or construction for other than park purposes" insofar as it "includes the reconstruction, restoration, rehabilitation or preservation of the historic landmarks located in such open space areas and furthers the use of the areas surrounding the historic landmarks as open space areas."
Petitioners do not dispute that the Octagon Project meets the first prong of the exception, and for good reason. The Project "includes" the complete "restoration" of the outer structure, construction of a new cantilevered stairway and dome, and the replacement of other parts of the Octagon building destroyed by fire and neglect. Indeed, restoration of the historical Tower is the center piece of the construction.
The Project also "furthers the use" of the areas surrounding the Octagon Tower as open space areas. Prior to the commencement of construction of the Project, the areas "surrounding" the Octagon Tower contained rubble from the 1970 demolition of the two hospital wings and vegetation that had grown up in a haphazard manner, one-third of an acre of recreational area that was cut off by a roadway from the pedestrian promenade along the river's edge, and six tennis courts badly in need of rehabilitation to the east of the Octagon Site. The Octagon Project will further the use of each of these areas surrounding the Octagon Tower as open space areas. First, the Octagon Tower will add approximately one-third of an acre of open space that was previously fenced and inaccessible, by Petitioners' own estimate, for almost 20 years; second, the Project will create a new ecological garden and park, with a new playground, new landscaping and plantings of native species and an urban history trail with educational signage. Since the Project fits squarely within the plain language of the statutory exception to non-park construction or development, it does not violate the statute.
Petitioners do not seriously challenge these improvements to the open space areas to the east and west of the Octagon Project, nor do they deny that such improvements will "further the use" of such areas. Rather, they contend that the areas "surrounding" the Octagon Tower are limited to those immediately adjacent to the footprint of the Octagon Tower itself, and that it is those areas alone whose open space use must be furthered. We decline to adopt Petitioner's construction of the statute. Had the legislature intended to limit the area on which construction or development in Octagon Park could occur, it could have easily done so.
Petitioners further argue that Respondents' plan to place the residential development on approximately 2.4 acres of Octagon Park violates the plain meaning of the statute insofar as it results in net loss of some open space. Again, a cursory look at the statute indicates that mere reduction of open space does not violate the statute's plain meaning. In fact, the statute explicitly provides that "on such real property [i.e., that which is indicated as open space under the GDP as amended in 1990,] shall remain open space areas for the duration of the lease unless" certain conditions, i.e., restoration of historic landmarks and furthering of the use of open space qua open space, are met. NY Unconsol. § 6394-a (McKinney 2005) (emphasis added). In light of the history of the development of Roosevelt Island, as reflected in the GDP explicitly referenced by the legislature, these words evince a clear legislative policy choice to tolerate the sacrifice of open space area if it means being able to renovate a historical landmark and further the use of the remaining property as open space.
Insofar as the 2002 Open Spaces Law specifically incorporates the 1990 amendment to the Roosevelt Island GPD, it is probative of legislative intent on the matter. The 1990 amendment reflects the fact that Sport Park was reduced from seven to five and one-half acres, and Octagon Park lost 40% of its original acreage as the result of the residential development of Northtown Phase II. Notably, no legislative approval was ever sought for the reduction in size of either Octagon Park or the Sports Park. This, coupled with the clear statutory language quoted above, fairly indicates a legislative recognition of the difficult choices that even experts in historic preservation concede must be made. "'Often, unfortunately, in preservation (in order) to get something you have to give something else.'" Bradford McKee, When Preservation Equals Demolition, NY Times, March 31, 2005, at F1, F9 (quoting Richard Logstreth, a professor of American studies and head of the historic preservation program at George Washington University).
In essence, this concept of a trade-off is the rationale behind the 2002 Open Spaces Law. Indeed, at oral argument, the parties recognized this very principle, although they articulated a broad difference of opinion as to its application. The petitioners suggested that in return for the $10 million renovation and the annual upkeep for the Tower, a developer should be permitted a small café or bookstore. The respondents argued that such a suggestion defied economic reality; in order to fund the $10 million, something far more significant was required. Respondent suggests that 500 units of rental housing (100 of which are affordable units) are reasonable and proportionate. On a unit basis, this represents a contribution of $20,000 per apartment toward the Octagon Tower renovation. As discussed later in this opinion, the reasonableness of that trade-off is ultimately a decision delegated to the respondent.
Petitioners argue, in the alternative, that even if the Octagon Project is not prohibited by the plain meaning of the statute, the statute itself is ambiguous and recourse to legislative history must be had to ascertain legislative intent. Pointing to the Sponsor's Memorandum in Support of S.B. 5136c, the final Senate Bill that actually became law, Petitioners argue that the Legislature specifically intended to preclude any project that includes construction of a residential development on what the GDP considers open space area. The Memorandum, introduced by Roosevelt Island's State Senator Olga A. Mendez in April 2001, unequivocally states that the "purpose" of the bill was, inter alia, "[t]o designate open park space on Roosevelt Island as New York State parkland," and amend the RIOC Act to provide that "[t]he areas currently designated as open spaces by the Roosevelt Island Master Plan will become state parklands and no further development or construction will be permitted for other than park purposes." It further explains:
Currently in New York City there is a very limited amount of park land when compared to the number of residents. Many areas are being developed to provide additional housing. The intention of the Roosevelt Island Master Plan was to designate certain areas for the open space. In order to ensure that these open spaces are preserved they should be designated as parkland.
Therefore, any changes made to the Master Plan will not threaten the areas designated for open space.
Based on this Sponsor's Memorandum, Petitioners argue that the Legislature as a whole did not want the Octagon Project to go through when they passed the 2002 Open Spaces Law.
However, the Sponsor's Memorandum is but one piece of legislative history a court may look to divine legislative intent. See, e.g., New York v. Cypress Hills Cemetery, 208 AD2d 247, 622 NYS2d 300 (2nd Dep't 1995) (finding letters and various other memoranda to the Governor as probative of legislative intent). Indeed, when read in light of the legislative history in its entirety, the Sponsor's Memorandum in this case is of limited help in determining legislative intent. To be sure, the language and thrust of the Sponsor's Memorandum closely tracks and complements the unambiguous language of S.B. 5136 as originally introduced, which suggested adding the following language to the RIOC Act:
§ 10-a. Open space development prohibited. Notwithstanding any other provision of this act, or any other law to the contrary . . . real property which is designated as open space areas in the general development plan as amended May 10, 1990 and approved by the board of estimate of the city of New York . . . and referred to in the lease . . . shall be designated as New York state parkland and no further development or construction for other than park purposes shall be permitted on such real property for the duration of the lease. Open space areas, as defined in this section shall include but not be limited to . . . Octagon park."
(Emphasis added). However, even a casual look at the 2002 Open Spaces Law reveals that the language the Legislature finally adopted differs substantially from that found in the original Senate Bill. Effectively gutting the original Senate bill, the Legislature chose not to dedicate any Open Spaces on Roosevelt Island as New York State parkland. To the contrary, the 2002 Open Spaces Law strongly reaffirmed the status of Open Space Areas qua Open Space and provided circumscribed protection for only four of the five Open Space Areas indicated in the GDP. Such a move was completely inconsistent with the stated "purpose" of the original bill as set forth in the Supporter's Memorandum, i.e., to designate Roosevelt Island Open Space Areas as New York state parkland. Insofar as the Open Spaces Law as enacted explicitly nullifies the significance of key portions of Sponsor's Memorandum so heavily relied on by Petitioners, it casts significant doubt on the Memorandum's reliability and relevance as an indicator of general legislative antipathy toward the residential housing provided by the Project.
At the end of the day, whether any project "furthers the use" of the areas "surrounding" the Octagon Tower as an open space area requires subjective judgment. As the instant dispute points up, these judgment calls requires a careful weighing and balancing of overlapping and at times conflicting policy choices including, but not limited to, the costs of renovating Octagon Tower, the availability of alternate funding sources, the interests of Roosevelt Island residents, and the interests of New York City at large. By conceiving of the 2002 Open Spaces Law as an amendment to RIOC's enabling statute, the State Legislature has clearly committed delegated this determination to RIOC's discretion. See Matter of City of New York v. State of New York Comm. on Cable Tel., 47 NY2d 89, 92, 416 NYS2d 786, 390 NE2d 293.
("An administrative agency, as a creature of the Legislature, is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication.").
"[This court's] duty is not to second-guess the wisdom of what an administrative agency has done." Procaccino v. Stewart, 32 AD2d 486, 489, 304 NYS2d 55, 57 (1st Dep't 1969). To the contrary, it is well established that reviewing courts are not entitled to interfere in the exercise of discretion by an administrative agency unless it finds that there is no rational basis for the exercise or the action complained of is "arbitrary and capricious." NY CPLR 7803; Pell v. Board of Ed. of Union Free School Dist. No. 1, 34 NY2d 222, 356 NYS2d 833 (NY 1974). See also Summerson v. Barber, 93 AD2d 652, 463 NYS2d 325, (3rd Dep't 1983) ("Reasonable acts [by an agency] designed to further the regulatory scheme will be upheld" (citing Matter of City of New York v. State of New York Comm. on Cable Tel., 47 NY2d at 92, 416 NYS2d 786, 390 NE2d 293). This Court finds neither.
The principles set forth in the GDP, which sets forth the "Basic Program" for the development on Roosevelt Island, is probative of the reasonableness of RIOC's actions in approving the Octagon Project. The GDP states that "the object of the New Community is to make the maximum contribution to the present needs of the City consistent with the limitations of the Island site and of foreseeable available financing." (Emphasis added). Likewise, the GDP has always called for the rehabilitation of the historic landmarks on Roosevelt Island, including the Octagon Tower, "if such . . . rehabilitation can be financed other than with financing from" RIOC. When the Mayor of New York, who is politically accountable to all residents on Roosevelt Island, agreed to amend the GDP to allow 500 residential units to be built onto Octagon Tower, he made clear his estimation of "the present needs of the City." Consistent with the GDP, RIOC found a developer willing to build those units (which include 100 units of affordable housing), restore the historic Octagon Tower at a cost of upwards of $10 million, and make park improvements worth $1.5 million (excluding the cost of constructing the new tennis courts) in exchange for only 2.4 acres of open space and no money of its own, or public money. In addition, the development will bear the cost of maintaining Octagon Tower. Approval of such a development in light of the clear language of the statute and goals set forth in the GDP is hardly unreasonable, arbitrary, or capricious.
Petitioners make too much of the fact that the Project will devote some quantity of open space to a use other than for park purposes. When evaluating whether an agency's decisions are arbitrary or capricious, the factual bases of such decisions "should be looked at qualitatively as well as quantitatively." Delaware Hudson R.R. Corp. v. Public Service Comm., 285 A.D. 326, 136 NYS2d 510, (3rd Dep't 1954) (confirming a Public Service Commission's order to discontinue train service to Albany as neither arbitrary nor capricious). To that end, it should be emphasized that the Project's residential wings are being constructed in the approximate footprints of the former Lunatic Asylum. This site has been fenced and inaccessible to the public and is covered with rubble and debris from the demolition of the Asylum's wings. Moreover, the Project will make accessible at almost one third of an acre of open spaces previously inaccessible to the residents of Roosevelt Island and the City of New York for more than 20 years. Finally, it should not be forgotten that the New York City Department of Environmental Protection ("DEP") has, since before signing the Master Lease, occupied as much as six acres of the "Octagon Park" area for construction staging and vehicular access as part of its ongoing construction of Water Tunnel No. 3, which passes beneath Roosevelt Island. The DEP staging area has been fenced and inaccessible to the public for many years, and today DEP continues to occupy approximately three acres in "Octagon Park."
The Project Does Not Need Legislative Approval Under the "Public Trust Doctrine" Because the Octagon Park is Not Dedicated Parkland
Nor do Petitioners show likelihood of succeeding on the merits on its second claim, i.e., that the Project requires legislative approval because the Octagon Site is dedicated parkland and, as such impressed with the protections of the "public trust doctrine," which require express legislative authorization before it can be "alienated." Petitioners claim, in fact, that the entire 15 acres of "Octagon Park" as described in the GDP is parkland both by express dedication and by virtue of public use. The factual and legal predicates underlying this claim, however, are false.
To establish that property has been dedicated for public use, "there generally must be an unequivocal express or implied offer by the owner and, where required, an express or implied acceptance by the public." Angiolillo v. Town of Greenburgh, 290 AD2d 1, 10, 735 NYS2d 66, 73 (2nd Dep't 2001). The burden of demonstrating such dedication rests squarely with the Petitioners. Id. At 11. Here, there has been neither an express or implied dedication.
As noted above, the New York Legislature explicitly rejected a call to dedicate the Open Spaces as parkland. As the name of 2002 Law suggests, Octagon Park has been, and still is, considered "Open Space Area." If Octagon park had in fact been considered dedicated parkland, the 2002 legislation would have been completely superfluous. Indeed, it would defy logic for anyone to propose, let alone pass, legislation protecting, say, Central Park from construction or development for other than park purposes. The passage of the 2002 Open Spaces Law is conclusive evidence that the "Open Space Areas" on the Island were not parkland.
Nor does the GDP's reference to "Octagon park," so heavily relied on by the Petitioners, transmute the area into an expressly dedicated State or City park. The history of the development of Roosevelt Island demonstrates that the GDP "open space areas," including the "Octagon park" area, were not dedicated public parkland and enjoyed no such protection. As contemplated in the Master Lease, the GDP has been amended several times, including in 2003 for the Octagon Project, to reflect the most current development plans and the state of existing open space. In fact, the amendments to the GDP reduced the acreage planned for the "Sports park" (from 7 to 5.5 acres) and for "Octagon park" (from 25 to 15 acres). No legislative approval was ever sought for these amendments and it is not required now.
Moreover, there has been no implied dedication of the Octagon Site. In order to find dedication by implication, the evidence of the dedication through use must be unequivocal. Vague or contradictory evidence of parkland dedication is inadequate, as a matter of law, to establish that a particular site is parkland. See Douglaston Littleneck Coalition v. Sexton, 145 AD2d 480, 535 NYS2d 634 (2nd Dep't 1988) (testimony of parkland use was contradicted by official city map, which did not list site as parkland, and evidence that the site had bot been purchased exclusively for park purposes). Petitioners' allegations of sporadic and incidental use of the Octagon Site do not come close to establishing that area as parkland by implication. The Octagon Site has been long fenced and inaccessible to the public and has never been improved as parkland. Any public use of this area has been incidental and unauthorized. In fact, the history of the Octagon Site demonstrates that it was a hospital ruin, a rubble-strewn lot, a dumping area for the DEP, and a fenced enclosure that remained the subject of ongoing planning by RIOC for a variety of potential uses, including residential and commercial development.
Legislative Approval Is Not Required for the Relocation and Realignment of the Tennis Because The Project Does Not Violate ECL § 52-0907
Finally Petitioners assert that the entire Octagon Project must be stopped because the tennis courts built under the Weintraub Plan are being relocated and realigned in violation of ECL § 52-0907. Petitioners fail, however, to show a likelihood of success on the merits regarding this claim.
Article 52 of the Environmental Conservation Law implements the 1986 Environmental Quality Bond Act and includes provisions for the issuance of grants to municipal entities for municipal park projects, historic preservation projects, and urban cultural park projects. ECL § 52-0901. The EQBA grant programs are administered by the OPRHP pursuant to regulations promulgated at 9 NYCRR Part 437.
In 1991, RIOC entered into an EQBA "Project Agreement" with the OPRHP by which RIOC obtained $1 million to improve certain areas of "Octagon Park" pursuant to the Weintraub Plan. As required by the Project Agreement, RIOC used this money to carry out nearly nine acres of improvements to "Octagon Park" including a baseball/softball field, a football/soccer field, tennis courts, a bicycle trail, community gardens and a passive park area.
The municipal parks program includes restrictions on alienation that applies to park areas improved using EQBA grants. ECL § 52-0907; 9 NYCRR 437.6. Those provisions require "the express authority of an act of the legislature" and the substitution of other lands of equal or fair market value and "reasonably equivalent usefulness and location" to those being alienated, before parkland created or improved using EQBA money may be "sold or disposed of or used for other than park purposes." Such prohibited actions are referred to in the statute as "alienation." ECL § 52-0907. The statute specifically authorizes OPRHP's commissioner to enter into contracts to carry out projects under this program. ECL § 52-0901(4).
OPRHP administers the EQBA grant program. In that capacity, OPRHP recommends that municipalities and other entities consult with it regarding potential alienation issues prior to taking any action that may affect parkland. RIOC therefore contacted OPRHP and sought the agency's opinion regarding whether the slight relocation of the tennis courts and their temporary disruption constituted an alienation requiring legislative approval under the EQBA. On October 13, 2004, Kevin Burns, Chief of Grants, wrote to RIOC's General Counsel to inform him that OPRHP had determined that the relocation of the tennis courts, and their temporary disruption, did not constitute alienation in violation of the EQBA. OPRHP determined that the tennis courts' temporary disruption was "de minimis" and, referring to the Project's open space improvements and creation of an "ecological park," that "due to the fact that the tennis courts will be moved a mere 15 feet and that an additional .24 acres of parkland will be provided and 'mapped' for purposes of out EQBA grant project area, [OPRHP] does not consider this an alienation for the purposes of our grant contract."
OPRHP's determination is entitled to deference. See Kuntz v. Castro, 5 AD3d 1088, 773 NYS2d 707 (4th Dep't 2004) (upholding an OPRHP determination that a project did not result in unlawful alienation); see also Howard v. Wyman, 28 NY2d 434, 322 NYS2d 683 (1971) (stating that "the construction given statutes and regulations by the agency responsible for their administration, if not irrational and reasonable, should be upheld); Harder's Express, Inc. v. State Tax Comm'n, 70 AD2d 1010, 418 NYS2d 199, 200 (3rd Dep't 1979); New York Public Interest Research Group, Inc. v. Williams, 127 AD2d 512, 511 NYS2d 864, 866 (1st Dep't (1987) (a state agency "has broad powers to construe the statutes and regulations it administers). It is also firmly rooted in common sense. As noted, the tennis courts will not be adversely affected. Indeed, they will be reconstructed and improved. Furthermore, the shifting of the courts permits the relocation of the current access road in order to improve significantly the park areas in the vicinity of the Octagon Tower. Further, as previously noted, this access road will serve and support park uses, including the tennis courts. Under such circumstances, OPRHP's determination that the shifting of the tennis courts was not an alienation of parkland was rational.
Moreover, even assuming, arguendo, that this shifting did constitute alientation of EQBA parkland, such alienation is properly deemed de minimus. The well-recognized maxim de minimus non curat the law does not concern itself with trifles has been applied in a variety of contexts where failure to adhere strictly to statutory requirements is excusable because the alleged violation is so insignificant as to be totally inconsequential. See, e.g., Dworman v. New York State Div. of Hous. and Cmty. Renewal, 94 NY2d 359, 704 NYS2d 192 (1999) (applying the de minimis exception to income verification filing requirements); Flora Co. Ingilis, 233 AD2d 418, 650 NYS2d 24 (2nd Dep't 1996) (applying de minimis doctrine to excuse failure to comply with timing and filing requirements of CPLR); Staber v. Fidler, 110 AD2d 38, 493 NYS2d 161 (2nd Dep't 1985) (applying de minimis doctrine to excuse failure to comply strictly with Election Law requirements); Carol Mgmt. Corp. v. Comm'r of Dep't of Hous. and Cmty. Renewal, 140 Misc2d 673, 531 NYS2d 839 (Sup.Ct. Queens County 1998) (approving agency's application of de minimis exception to excuse landlord's failure to comply strictly with New York City Rent Stabilization Code); Young v. Bd. of Zoning Appeals, 62 Misc2d 147, 307 NYS2d 895 (Sup.Ct. Nassau County 1970), aff'd 35 AD2d 430, 317 NYS2d 396 (2nd Dep't 1970), aff'd 29 NY2d 685, 325 NYS2d 417 (1971) (applying the de minimis exception to excuse failure to comply strictly with setback requirements under zoning regulation). Furthermore, the Court of Appeals has held that it falls within a regulatory agency's discretion to determine whether or not the de minimis doctrine should be applied. See, e.g., Elkin v. Roldan, 94 NY2d 853, 704 NYS2d 201 (1999) (remanding matter to DHCR to consider "in its discretion" whether filing delay was so minimal as to be excusable under the de minimis doctrine).
The tennis courts' relocation will in no way affect their use by the public. They will remain open to the public, and be significantly improved. In fact, the emergency road to be built on the area will provide access to a small surface parking area adjacent to the proposed residential building, a portion of which will be available for the use of tennis players and other park users. The new road will permit the elimination of an existing emergency access road along the waterfront in the westernmost portion of the Project area, freeing up space to enhance and enlarge the "ecological park" and picnic area along the waterfront. Therefore, as OPRHP concluded, moving the courts a few feet does not constitute parkland alienation for the purposes of the EQBA grant obtained. OPRHP's determination that the Octagon Project did not cause alienation of parkland requiring legislative authorization, which Petitioners do not challenge in this proceeding, was rational, supported by the evidence and the law, and RIOC was entitled to rely on it in approving the Project.
Further, while Petitioners are found to have standing regarding the 2002 Open Spaces claim, this court finds that Petitioners lack standing as to any claim regarding the EQBA contract brought under the ECL. See Roosevelt Islanders for Responsible Southtown Development v. Roosevelt Island Operating Corporation, 291 AD2d 40, 57-58 (1st Dep't 2001) (rejecting petitioners standing to assert a claim that a development plan violated the Roosevelt Island GDP, on the grounds that they failed to establish that they were intended beneficiaries of the contract rather than merely incidental beneficiaries). It is up to OPRHP to police EQBA grants. Conversely, if petitioners have standing on this issue, then anyone in the entire state of New York would have standing, as well.
Indeed, the ECL argument seems to this court a desperate reach. That Petitioners even suggest that this entire Project should be stopped because tennis courts are being renovated and shifted a few feet calls into question Petitioners' good faith in bringing this proceeding. Moreover, if the Project itself goes forward, it would not be in anyone's interest to grant Petitioners' request to leave the tennis courts alone. Relocating the courts allows for the provision of parking for tennis court users, and construction of a road by which the tennis courts, and other public open space areas, can be accessed and that will free up space for the ecological park.
Laches
Although this court has determined that the petition must be dismissed for lack of merit, alternatively, this court finds that the petitioners are barred from seeking injunctive relief because of laches. The resolution finally authorizing the project was passed by RIOC on October 14, 2004, following many years of hearings, discussions and public comment in which the petitioners participated. Petitioners disingenuously suggest that on that date there was no definite indication that respondents planned to engage in any activity violative of the open space requirement or the public trust doctrine. On the contrary, the plans for this project had been fully vetted and there is no suggestion in these papers of anything relevant to the project that was not known to the petitioners on October 14, 2004. Equally obvious to the petitioners was the fact that construction would soon be undertaken at enormous expense. This was clear not only from the plans and the extensive public communications, but also from the fact that the area of construction was in plain view.
Similarly disingenuous is petitioners' assertion that they were delayed because the respondents failed to give them certain information necessary to file their petition. They do not and cannot cite any case law that compels tolling because they could not obtain certain documents.
The petition was initially filed "pro se" on December 29, 2004, more than two months following the resolution. Although petitioners respond that they were in compliance with the 120-day statute of limitations, that is irrelevant to the equitable issue of laches. To this day, the petitioners have not sought a Temporary Restraining Order although the magnitude and pace of construction is apparent to all and argue that it is respondents who are acting at their peril.
Under these facts, this court concludes that the petitioners are guilty of laches by not seeking to timely initiate this proceeding and to seek to enjoin the project. This failure on their part, if ignored, would work to the extreme prejudice of the respondents, who have now completed upwards of $15 million of construction. See Matter of Save the Pine Bush v. City of Albany, 281 AD2d 832 (3rd Dep't 2001); Perry-Gething Foundation v. Stinson, 218 AD2d 791 (2nd Dep't 1995), lv. den, 87 NY2d 810 (1996); Matter of Caprari v. Town of Colesville, 199 AD2d 705 (3rd Dep't 1993).
CONCLUSION
The respondents motion to dismiss is granted and the petition is in all respects dismissed. This constitutes the Decision and Judgment of the court.