Octagon Suit May Have Downside for Islanders Wanting Park Protection

News Analysis by Dick Lutz

Activist Islanders who brought suit against the Octagon Apartments project are still sorting out the ramifications of the Roosevelt Island Operating Corporation's decisive victory in the case, reported in the April 30 WIRE (on line at nyc10044.com/wire/2517/wire2517.html). The nearly air-tight decision of Supreme Court Justice William Wetzel seems to shut out possible rationales for an appeal.

Trouble is, for the RIRA leaders who brought the suit, the result seems to present the possibility - even the likelihood - of RIOC moves against other Island parkland. While the judge ruled that RIRA waited too long to bring its action against the project (a legal doctrine known as laches), the more serious concern rests on potential similarities between the Octagon circumstances and those at Southpoint Park.

. Octagon "Park" was considered a park. The judge ruled it's just "open space." Southpoint Park has the same status.

. Octagon Park had some areas fenced off, unavailable to the public. The judge took that into consideration in ruling that RIOC was, in effect, increasing the available open space or park space available to residents. Southpoint Park also has a major area fenced off, the subject of a park proposal from the Trust for Public Land.

. The judge ruled that RIOC used its lawful administrative discretion in trading open space for an apartment complex for the builder's restoration of the landmarked Octagon Tower. At Southpoint, the Renwick Ruin is also in need of restoration, presenting the possibility of another discretionary trade-off. The courts are loathe to second-guess the wisdom of discretion exercised by administrative bodies.

Lighthouse Park and Blackwell Park are also listed in the 2002 Open Spaces law and, in both cases, there are landmarks that might be restored. Blackwell House is in desperate need of restoration; the Lighthouse is already restored but might require further work at some future point.

While Wetzel's decision is not binding on other judges, they're likely to look at it. For that matter, another Island case of this kind could find its way into Wetzel's courtroom; he would certainly abide by his own precedents.

As for the decision itself, those who petitioned the court to rule against the apartments project still feel they got a bad deal. One of the attorneys who argued the case for RIRA, Reed Super of Columbia Law School's Environmental Law Clinic, told The WIRE this week, "We think that the judge's decision was wrong and that it's highly unfortunate that a law that was specifically passed to protect open spaces on Roosevelt Island from encroaching residential development was used to approve a massive apartment complex project that destroyed a significant chunk of Octagon Park."

But Super noted, "The judge specifically said, 'The only thing before me is Octagon Park.' The other parks mentioned in the 2002 Open Spaces Law were not part of this case, and Justice Wetzel said (paraphrasing), 'I'm not considering them here; I'm only dealing with Octagon Park.'"

One thing seems fairly clear from Wetzel's decision - that RIRA should have filed its case immediately. While the "Article 78" law providing for challenges against such construction allows four months for opponents to bring their cases to court, the separate legal doctrine of "laches" says, according to Wetzel's ruling, that they should have come to court immediately after RIOC gave a green light to the project - before the construction that began a week later. But Islanders likely to bring future suits of this kind note that the Residents Association doesn't have the funds to keep a lawyer on standby. And Super says, "Where laches is being interpreted in such a strict way that you have to get into court within a matter of days, it's really shutting the courthouse door to a majority of the citizenry - except for those wealthy enough to have an army of lawyers ready to go immediately. When Justice Wetzel said that the project was in the works for years, he missed the critical fact that until RIOC's October 14 vote, it appeared RIOC would not go forward with the project without legislative approval." (An earlier RIOC resolution had included a provision that specific approval would be sought for the project from the Legislature.)

As things stand, it appears the only likelihood of an appeal in the case - which must be filed by May 20 - is if Assemblymember Pete Grannis chooses to contest the case because, as he sees it, it distorts the intent of the law he sponsored in the State Legislature. Failing success in such a challenge, it would appear the only way residents could ensure that restoration of the Renwick Ruin won't become a trade-off in which an apartment complex goes up at Southpoint is to ask for, and get, a strengthening of the law - a change considered unlikely to make it past the governor's desk while George Pataki occupies the office.