Lawsuit filed against the Governors Island Rezoning – the submitted amended petition

This is the amended petition that has been submitted to the court. Approval Pending.

INDEX NO. 158809/2021
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/14/2022
FILED: NEW YORK COUNTY CLERK 02/14/2022 02:14 PM

FIRST AMENDED VERIFIED PETITION

STATE OF NEW YORK
SUPREME COURT : COUNTY OF NEW YORK

ROGER MANNING; METRO AREA GOVERNORS ISLAND
COALITION (M.A.G.I.C.); EAST RIVER PARK ACTION;
NEW YORK CITY FRIENDS OF CLEARWATER (NYCFC),
INC.; THE SOUTH STREET SEAPORT COALITION, INC.;
FRIENDS AND RESIDENTS OF GREATER GOWANUS
(FROGG); BOWERY ALLIANCE OF NEIGHBORS (BAN);
THE WESTERN QUEENS COMMUNITY LAND TRUST (WQCLT); ALAN J. GERSON; LOYAN BEAUSOLEIL;
GABRIEL WILLOW; KEVIN C. FITZPATRICK; KENT BARWICK; TOM FOX; YVETTE YASUI; STO LEN; TINE KINDERMANN; EILEEN MYLES; CYNTHIA RUSE; MARIE KOO; ERIN TURNER-D’ALONZO; MICHAEL PRIBICH; SAMUELLE GREEN; ELLEN BLUM; KATE BREHM; and GEORGE E. KROENERT;

For a Judgment Pursuant to Article 78 of the New York Civil Practice Laws and Rules

Petitioners,

-vs-

CITY COUNCIL OF THE CITY OF NEW YORK; THE OFFICE OF THE MAYOR OF THE CITY OF NEW YORK; NEW YORK CITY PLANNING COMMISSION; and THE GOVERNORS ISLAND CORPORATION, d/b/a THE TRUST FOR GOVERNORS ISLAND

Respondents.

Petitioners by their attorneys, Lippes & Lippes, Richard J. Lippes, Esq., of counsel, respectfully allege as follows:

I. INTRODUCTION

1. This proceeding is brought to challenge the zoning of parts of Governors Island in New York Harbor that allows for commercial, high rise and other urban uses that would destroy the tranquil nature of the island and adversely impact its flora and fauna. The basis of the proceeding is that the New York State Environmental Quality Review Act, Environmental Conservation Law § 8-0101 et. seq. [hereinafter cited as “SEQRA”] was not fully complied with prior to determining the approval of the zoning at issue. Moreover, the rezoning is inconsistent, and contrary to the requirements of restrictive covenants in the Deed which granted ownership to Governors Island. Also, the parkland on the southern portion of Governors Island is a public park, and the proposed rezoning allows for the alienation of portions of such parkland with non- park uses, which has not been approved as required by the New York State Legislature. For the foregoing reasons, it is respectfully submitted that the rezoning be voided and that an injunction enter enjoining any construction activity in the south part of the Island.

II. PARTIES

2. Petitioner Roger Manning is a musician, a part time web developer, and co- founder of community group Metro Area Governors Island Coalition (M.A.G.I.C.) which advocates preserving the unique green open space quality of Governors Island for the benefit of everyday New Yorkers. Manning has lived in the Hudson Square District of lower Manhattan for nearly 40 years and has been a regular on Governors Island since 2005. In recent years Manning has gone to Governors Island nearly every day during the public season. The bucolic traffic-free “country place in the city” environment is ideal for their self-organized music residency and finding respite from the city’s high-rise high-density environment. Its spaciousness and greenery also provide an ideal environment for fitness activity. Also, Manning has found that Governors Island serves as a unique place of human connectivity in the city for island visitors, artists, students, staff, environmentalists, and visiting former Coast Guard family members. New Yorkers open up to greeting passing strangers and spontaneous conversation.

3. Petitioner Metro Area Governors Island Coalition (M.A.G.I.C.), a grassroots coalition formed in November 2020, is an unincorporated association engaging individuals, community groups, and public officials in support of preserving the incredibly unique green open space and historic quality of Governors Island. Co-founder lower Manhattan resident Roger Manning filed this petition pro-se in September 2021. M.A.G.I.C.’s stated mission is to: promote increased public awareness of and involvement in the currently less-than-transparent process of determining the future of Governors Island; oppose the rezoning proposed that is the subject of this petition; research and aid in clarifying the realities of proposed plans for GI; assist in coming up with possible solutions to fulfill the needs of GI while preserving its uniquely welcoming openness and expansive parklands quality. M.A.G.I.C. is in support of the work on Governors Island by The Harbor School, Earth Matter, Grow NYC, Billion Oyster Project, NYC Audubon, Swale, Urban Soil Institute, 4Heads, Works on Water, West Harlem Art Fund, Pratt University, NYU and others. M.A.G.I.C. opposes the economically and ecologically irresponsible 2021 rezoning which attempts to re-purpose Governors Island away from actual public benefit. M.A.G.I.C. participants use all areas of Governors Island regularly.

4. Petitioner East River Park Action is a non-profit grassroots community group formed in 2019 after the Mayor de Blasio administration overrode a community-led flood prevention plan for East River Park. The park is used regularly by low and middle-income residents of the Lower East Side, East Village and other neighborhoods of lower Manhattan where the majority of East River Park Action members reside. The plan, which was a result of the Obama administration ReBuild by Redesign competition, involved four years of community- led planning and provided flood prevention with minimal destruction of the existing parkland and biodiversity. The highly criticized deBlasio administration plan that is currently destroying the entire 2.2-mile park was privately conceived and demolishes a network of five interconnected parks spanning 57.5 acres and 1000 trees in order to raise the area with infill 8-10 feet and place a substantially artificial park on top. Like the Lower East Side, the rezoned southern portion of Governors Island which sits only six feet above sea level was flooded during Hurricane Sandy. Governors Island should focus on readaptive use for its resilient existing buildings, not on placing a large new development in a particularly vulnerable flood plain, which, considering UN Scientists’ climate change predictions, is ill-advised. According to a Governors Island Corporation December 2021 presentation, the Lower East Side is #4 and East Village represents #9 on the list of the top 10 NYC neighborhoods to visit Governors Island. With 60% of East River Park closed to deconstruction until at least 2026, these residents will have an even greater need for Governors Island’s spacious outdoor environment with its recreational and fitness resources and its urban farm, educational, cultural and historic offerings. East River Park Action opposes the 2021 Governors Island Rezoning as it allows high-rise largely commercial private development to be built on top of urban farmland and loom over parkland, a historic district, and a school on a small, currently bucolic island and usurp acreage that should be used for increasingly needed public amenities.

5. Petitioner New York City Friends of Clearwater (NYCFC), Inc. is a chartered sloop club of the Hudson River Sloop Clearwater, Inc. NYCFC supports Clearwater by teaching to protect the Hudson River and related waterways and shores, including New York Harbor through education, advocacy, and celebration. Its membership includes individuals who regularly use Governors Island and surrounding waterways. NYCFC is opposed to the high-rise high- density development allowed by the rezoning on this public land that best serves the public and wildlife as minimally developed natural open space.

6. Petitioner The South Street Seaport Coalition, Inc. is an all-volunteer community- based 501(c)(3) non-profit organization whose mission is to craft a “plan for the future of the South Street Seaport Historic District that preserves its integrity and accepts place-making as its “highest and best use”. Public assets and open space should be used to maximize public benefits therein. Community Board 1 Members voted for the December 22, 2020 resolution by Manhattan Community Board One which strongly believes “that the proposed development on Governors Island must meet the restrictions, conditions and covenants as contained in the Deed from 2003”. The majority of the Seaport Coalition membership lives in the densely developed Seaport district, which is in short supply of natural open space and is in immediate proximity to the Governors Island ferries. Members use all parts of the Island regularly. The Seaport Coalition opposes the May 2021 rezoning on Governors Island and remains adamant that the city “ensure the protection and preservation of the natural, cultural and historic qualities of Governors Island, guarantee public access to this magnificent island, promote the quality of public education, and enhance the ability of the public to enjoy Governors Island and the surrounding waterways.”

7. Petitioner Friends & Residents of Greater Gowanus (FROGG), founded in 2002 as a community civic organization, was incorporated in 2009 as a 501(c)(3) organization. FROGG is located in the Gowanus section of Brooklyn, serving the community to the east of Governors Island. The Gowanus section of Brooklyn would be sharing a sewer shed under the proposed Governor’s Island rezoning. Furthermore, Governors Island currently provides key open space for our community use.

8. Petitioner Bowery Alliance of Neighbors (BAN) is a nonprofit grassroots organization working to protect residents, small businesses, the neighborhood and the historic character of the Bowery district of lower Manhattan. BAN members enjoy the historic character, programs, architecture, and serenity of the current Governors Island. BAN objects to the allowed building heights, large increase of motor vehicle parking, lack of contextual design, and disruption of programs already operating in the areas affected by the rezoning. Governors Island is a very unique place post-military that should never be turned over to luxury real estate

9. Petitioner The Western Queens Community Land Trust (WQCLT) is a non-profit organization made up of activists, small business owners, professors, artists, students and community members who work for democratic and equitable land use in western Queens. WQCLT includes members who use and enjoy Governors Island and whose conservation, aesthetic, and recreational interests are injured by nature of the development enabled by the Governors Island rezoning.

10. Petitioner Alan J. Gerson resides in the Greenwich Village district of Lower Manhattan. He has played a leading role in expediting and expanding Governors Island as a Park for all New Yorkers. From 2001-2009 Mr. Gerson served as New York City Council Member for District 1, in which Governors Island is located. He is the former Chair of the Lower Manhattan Redevelopment Committee, which conducted hearings regarding Governors Island. He continues to visit Governors Island and participate in the public process regarding the island’s future. He is opposed to the May 2021 rezoning.

11. Petitioner Loyan Beausoleil has lived in the Lower East Side of Manhattan since 1989 and is currently the Director at University Plaza Nursery School. She has long been active in bird wildlife study, conservation and educational work. In 2020 Ms. Beausoleil collected data for a year-long study of avian species richness on Governors Island. She has been in opposition to the rezoning as high-rise high-density development on this public land that best serves the public as minimally developed natural open space, will severely impact the experience for the people who enjoy Governors Island and the wildlife that depend on the island for year round resources.

12. Petitioner Gabriel Willow is an educator, naturalist, and artist who has lived in New York City since 1999. He has studied avian behavior and ecology in the Western and Northeastern U.S. and Mexico. He serves as a freelance teacher-naturalist leading tours for NYC Audubon and others. He regularly conducts educational tours covering all areas of Governors Island including the southern portion. He has been in opposition to this rezoning as it permits development that will severely impact both important habitat for migratory and breeding birds (a small pond in the Eastern Development Zone regularly hosts a greater diversity of migratory shorebirds than any other site in New York County) and perhaps more concerning, it will fundamentally alter the psychological experience of the island. Governors Island is one of the few places in the city where people can experience sweeping vistas and open skies. This planned construction will destroy wildlife habitat and exchange open air for more glass towers, eliminating the experience of open space, and creating a dangerous hazard for migratory birds. Glass structures are the leading cause of avian mortality in urban settings.

13. Petitioner Kevin C. Fitzpatrick is an award-winning author and tour guide who resides on the Upper West Side of Manhattan and has a 19-year relationship with Governors Island. He is the author of the first and only guidebook to the island, The Governors Island Explorer’s Guide (2016) which tour guides for the Trust for Governors Island, the Friends of Governors Island, and the National Park Service all use to give island tours. He has been leading public tours of Governors Island for 13 years, longer than any other Governors Island Guide. Fitzpatrick created the first Governors Island iPhone app (2012), the first island private website, governorsislandguide.com (2006), and social media @GovIslandGuide (2015). Since 2016 Fitzpatrick has organized multiple history events with the Governors Island National Monument (National Park Service Manhattan Sites) and the Trust for Governors Island first geocaching sites. In 2017 he rededicated three WWI memorials on Governors Island and was awarded a grant from 100 Cities/100 Memorials to complete the restoration on city property. He is the author of eight non-fiction books, all tied to New York City history. Fitzpatrick is a U.S. Marine Corps veteran and leads free tours for Veterans of the Island. The approved rezoning allows development detrimental to the public because it will destroy parkland and change the historic character of Governors Island. The Island was expanded by the U.S. Army more than 110 years ago and the Army successfully fended off all calls to develop the Island as an airport and keep it with park-like settings. Residents in the region, particularly families of low and medium income who reside locally, need New York Harbor parks and open space.

14. Petitioner Kent Barwick lives in the Little Italy neighborhood of Lower Manhattan. He helped generate support for the Federal transfer of Governors Island to New York City. He was appointed by Mayor Guiliani to serve on the Commission to advise how the City might use the Island. After extensive public hearings, public usage and the preservation of the scale of the Island was recommended. For several years, he served as a Director of the Governor’s Island Alliance – a non-profit cooperating with the City and State to plan the future Governors Island. He is President Emeritus of the Municipal Art Society of New York and a former Chair of the New York City Landmarks Commission. He served for many years as an advisor to the National Trust and Chair of the New England District of the Trust. He was an organizer of the Preservation League of New York State, the New York Landmarks Conservancy and the Historic Districts Council and has served on or still serves on the Boards of organizations concerned with specific structures and areas (the Park Avenue Armory, Historic Hudson Valley). He is currently the Chair of the City Club of New York, a civic organization established in 1893 to watch out over the City and we regularly take positions on Zoning, preservation and land-use issues. He has served on the board of Parks & Trails New York, authoring revisions to the NYC Landmarks Law to permit the designation of Scenic Landmarks ( Central Park, Prospect Park, Eastern Parkway). Served as Chairman of the NYC Landmarks Commission. He was an early organizer of South Street Seaport Museum. He organized the successful effort to create the 9/11 Tribute in Light, which is now staged annually. He supports preserving the scale of building as defined by the island’s historic district and National Monument structures adding that maintaining the balance of development with open space is critical and protecting that open space from shadow or being upstaged by inappropriately sized towers is essential to maintaining the unique qualities that make the Island special. The overall character of the island is that of an oasis of green surrounded by sea – you can smell the sea, something not encountered in the adjacent urban areas. Barwick continues to visit Governors Island.

15. Petitioner Tom Fox is a resident of Brooklyn NY. Has been involved in the politics of parks, waterfronts and open space greening and opening up the waterfront in NYC for public use over the past 45 years. He has spent a lifetime developing innovative projects, facilitating public-private partnerships, shaping public policy and spearheading efforts to revitalize abandoned waterfronts, protect nature and reclaim vacant land in the city. He is the founding co-chair of Brooklyn Bridge Park, first President of Hudson River Park, designed award winning 40-mile Brooklyn-Queens Greenway, several community gardens in the Lower East side Brooklyn and the Bronx. Mr. Fox created New York Water Taxi to open public access to NYC waterways and connect the parks cultural attractions and neighborhoods on the waterfront (model for NYC Ferry system). He operated Water Taxi Beach on Governors Island for 5 years, provided transport to concerts and major events on Governors Island for 8 years, and received an annual award from Governors Island Alliance. He has participated in the public process determining the future of Governors Island since 2002 and continues to visit Governors Island. He considers the City’s May 2021 approved rezoning an inappropriate use of this public resource and harmful to a sustainable future for New York City.

16. Petitioner Yvette Yasui resides in the 2nd district of Lower Manhattan NYC. She is a member of the PS276 Battery Park City School PTA, the Stuyvesant High School Parents Association, a supporter of Manhattan Youth/Downtown Community Center, DLL – Downtown Little League and DSL-Downtown Soccer League, all located in Lower Manhattan. She is regularly on Governors Island, particularly the southern area, for outdoor activities with family and community. She is against the approved rezoning as it allows development detrimental to open spaces for children and families, art spaces, and community gathering.

17. Petitioner Sto Len resides in Glendale, Queens. He is an artist and organizer with Works on Water artist collective on Governors since 2016. He helped organize events and the coordination of a residency program for close to 100 artists with installations throughout the island over the course of 4 years. He is concerned that the rezoning threatens the very assets that make the Island one of the most unique public spaces in NYC and which have developed with hard work over many years. He is concerned that the rezoning threatens Governors Island as an oasis away from the city yet just a short ferry ride away, as an escape from high rise buildings, from commercial businesses, and all of the trappings that come with retail-geared traffic; a beautiful historical public park and the people that come there are able to appreciate its nature and views without them being obstructed by hotels and stores; as a home to a burgeoning community of stewards who have been working tirelessly to create space for art, gardening, climate awareness, water access and diverse cultural programming for the public for free. He supports keeping the expansiveness of the green spaces open to the public and creating more areas for gatherings, picnics, walking trails, water access points, sporting activities, gardens, outdoor events and performances, public artworks, a museum, and to restore the outdoor pool as well as the movie theater. He supports preserving Governors Island as a public space for New Yorkers and accessible by all New Yorkers – privatizing and prioritizing profit and real estate developers is a big mistake.

18. Petitioner Tine Kindermann has resided in Lower Manhattan/East Village since 1993. She is a visual Artist and a board member of LESPMHA (Lower East Side People’s Mutual Housing Association, low-income housing non-profit). She has visited Governors Island frequently since 2008 and has participated in artist residencies and exhibits with New York- based non-profit arts group, 4heads. She describes Governors Island as a much-needed green space accessible from both Lower Manhattan, where we are currently losing important green space (East River Park), and Brooklyn. It is a place where people from all backgrounds meet. One of the unique qualities of GI is that there is no car traffic. This is where Hasidic girls learn how to ride a bike. She is concerned that the commercial rezoning and the proposed developments would destroy the unique qualities of Governors Island and turn it into what the rest of the city already looks like, steel and glass, parking lots and college fraternity parties. What the city needs is more green space, not less. This is public land and should be for the people of this city and not a select few. As a native Berliner, she has seen that a city can keep a huge piece of desirable real estate free from developments and leave it as a green space for the people (the Tempelhofer Feld, a former airport and now a 355 acres green space in the heart of Berlin). She adds that the City wouldn’t build on Central Park. Governors Island is Lower Manhattan’s Central Park. She supports Governors Island existing with a forest on the South end. Wilderness that can be explored. Wildlife centers. Replanting the nut trees native to Pagganck (Lenape name for Governors Island). Educational cultural spaces in the historical buildings.

19. Petitioner Eileen Myles has been a Lower Manhattan resident since 1974. They are an award-winning American poet and writer who has produced more than twenty volumes of poetry, fiction, non-fiction, libretti, plays, and performance pieces over the last three decades. They have served as Artistic director of St. Mark’s in the East Village, a Professor of Writing and a Visiting Writer at various universities including Columbia and New York University. Myles has been visiting Governors Island since 2005 for cultural events and to partake in the remarkable abundant open landscape. Myles has advocated for the prevention of over- development on Governors Island highlighting that, particularly with the potential loss of Lower Manhattan’s East River Park, the proximity to Governors Island’s open space is ever more valuable and crucial to Lower Manhattan residents’ collective and individual sanity and well being. They add that there’s nothing like Governor’s Island and it should be preserved for public use in perpetuity.

20. Petitioner Cynthia Ruse is a resident of Greenwood, Brooklyn. She is an artist with New York-based non-profit arts group, 4heads and is a frequent visitor to Governors Island utilizing Open park space, sky and sunset views. She recognizes Governors Island as a rare and special place, providing accessible open green spaces to all, a true refuge and escape easily reached within the context of daily city life. She is concerned that once development allowed by rezoning starts there will be no turning back. High rises cars, dorms etc would irrevocably change this unique and needed environment, and also open the island up for further encroachment. For Governors Island she supports usage would genuinely benefit everyone including environmental organizations and publicly engaged, pioneering, non-profit arts organizations, accessible public recreation facilities, combined with preservation of the green open spaces open throughout the year. She recognizes that the need to move the island towards a place of financial sustainability is real and understandable, but not at the cost of the rare beauty that presently exists. She is concerned that any development allowances be balanced with strict protections so that the important and unique gifts of this place are preserved for present and future generations.

21. Petitioner Marie Koo, a resident of Elmhurst, Queens is an artist and a freelance translator. She has visited Governors Island every summer for the outdoors, art spaces, the urban farm, etc since 2013. She exhibited at the Governor’s Island Art Fair in 2015 and 2017. She is concerned that NYC does not have enough affordable open spaces and has too much luxury housing/retail/office space, much of which is empty. She is concerned that, with current south island commercial rezoning, the public will lose something unique and precious, and the developers will end up with unwanted inventory and artists will be displaced by retail spaces that no one asked for. She supports more natural space on Governors Island for ocean related and other activities.

22. Petitioner Erin Turner-D’Alonzo who is a resident of Bedford Stuyvesant, Brooklyn is a visual artist, a set designer, and a teacher. She has visited Governors Island since 2017 and has been active on Governors Island as a resident with New York-based non-profit arts group, 4heads for the art fairs and artists residencies and for collaborations with Works on Water. She often goes to ride her bike throughout the season and enjoy the parks, the solitude one can find, watching the weather off the south side of the island, and visiting the gardens. She recognizes Governors Island as unique to the tapestry of NYC. As a nature lover and someone who has been active in environmental movements, she believes that it is important to save and preserve our public spaces and wild spaces. Being on a small island in the harbor where one can see the urban city around them but hear the cicadas and crickets in the summer, the birds, is something that is not found easily in the city. She has expressed that this rezoning, which essentially facilitates recreating Manhattan on the south portion of the island, will completely destroy everything that she loves about visiting. It will take away the refuge for artists to participate in an artist and project driven geography. This is our opportunity to maintain and make thrive a beautiful reprise from the other reality that NYC mainly has to offer. She supports preserving Governors island as a space for artists, scientists, and programs that foster community driven spaces and the perfect place it has been for families to enjoy riding bikes and picnicking, and for people to visit all the amazing project spaces the island has to offer and where one can still hear waves and cicadas and crickets in the middle of the summer, and smell the salt air.

23. Petitioner Michael Pribich has resided in Lower Manhattan since 1990. He is a visual artist examining social justice issues surrounding labor. He has visited Governors Island since 2018. He values viewing the water, skyline, sunsets. He is opposed to the current rezoning as he is concerned that it endangers the unique and beautiful Governor’s Island experience with open space and open vistas. He supports relaxed, multi-use spaces and events that leave little impact on the land.

24. Petitioner Samuelle Green has been a resident of Bedford Stuyvesant, Brooklyn since 2000. He has visited Governors Island since 2017 and has participated as an artist in the New York-based non-profit arts group, 4heads’ Governors Island Art Fair. He values the island as a beautiful escape from the hustle and bustle in the city and would hate to be there and feel like he never left Brooklyn surrounded by new construction, high-rises, stores. Preserve it as is.

25. Petitioner Ellen Blum is a Lower Manhattan resident. She is an artist with New York-based non-profit arts group, 4heads and is a frequent visitor to Governors Island utilizing its park open spaces. She is concerned that the high towers, cars, hotels and dorms permitted on south part of the island by the rezoning will compromise the island as a refuge and open green space for New Yorkers from every walk of life and visitors to the city – that the rezoning would detract from the opportunity to preserve the incredibly unique green open space quality of Governors Island and usage that genuinely benefits the public.

26. Petitioner Kate Brehm is a resident of Williamsburg, Brooklyn who has visited Governors Island since 2009. She is a puppeteer and theater artist and has been a part of the Governor’s Island Art fair as a participant as well as a viewer at that and other events for many years. She finds Governor’s Island to be a unique and magical oasis away from city life and yet so nearby. The feeling of tranquility due to the absence of cars is what she loves the most. It allows for a walking culture among people on the island who are inclined to meet and talk to one another casually. The fact that art dominates the island as an activity is essential to her sense that it is an oasis away from the hubbub of the city

27. Petitioner George E Kroenert is a resident of Jackson Heights, Queens. He has visited Governors Island since 2008 and has been an artist associated with New York-based non- profit arts group, 4heads for many years. He is retired from NYC Parks Dept, Capital Division, Construction. In 2008, his NYC Parks Capital “Schoolyards to Playgrounds” team was presented with a Capital “Best of Parks” award at the very south tip of the island – serene and beautiful even before the welcome addition of the current park had been installed. He is concerned that the current rezonings allowed usage is not the highest and best use of the south island, saying that we really do not need anymore “white elephant” type commercial space in NYC

28. Respondent City Council of the City of New York is the legislative body of the City of New York. It was necessary for them to approve the rezoning.

29. Respondent City Planning Commission is an agency of the City of New York, who was responsible for recommending whether or not the rezoning should be approved.

30. Respondent Office of the Mayor of the City of New York is the Mayor of the City of New York. The Mayor also had to approve the rezoning. The office of the Mayor of the City of New York also had to approve the rezoning, and acted as the lead agency for SEQRA purposes.

31. Respondent The Governors Island Corporation, d/b/a the Trust for Governors Island is the legal owner of the Island Property and is subject to all the restrictions in the transfer deed. The Trust is a nonprofit organization created by the City of New York. Along with the NYC Small Business Services, the Trust applied for the zoning changes at issue here. . As such, they are made a Respondent herein in order to effectuate the relief requested.

III. FACTS

32. Governors Island is a 172-acre island in New York Harbor, within the New York City borough of Manhattan. It is located approximately 800 yards south of Manhattan Island, and is separated from Brooklyn to the east by the 400-yard-wide Buttermilk Channel. In 1800, New York State transferred the Island to the U.S. government. The U.S Army was based there until 1965. The Coast Guard took over until 1996.

33. On January 31 2003, pursuant to a federal statute which required the federal government to convey ownership of Governors Island, it did so in two conveyances. First it conveyed 22 acres of the northern portion of the island to the National Trust for Historic Preservation (“National Trust”). The deed, hereinafter “the transfer deed” or “the Deed,” named the portion being conveyed “the Monument Property.” It includes two historic forts and several other buildings and the immediate area around the structures. The Deed named the remainder of the island “the Island Property.”1
34. The Deed from the federal government to the National Trust for Historic Preservation contained a number of restrictive covenants. Relevant here are the Real Estate Use Covenants, which provide, in relevant part, as follows:

2. Real Estate Use Covenants. The Granter and the Grantee hereby covenant and agree that the restrictions, conditions and covenants set forth below in this Paragraph 2 (collectively the “Real Estate Use Covenants”) shall be binding upon and enforceable against the Island Property, the Island Property Owner and the Governors Island Operator, in favor of and enforceable by the Monument Operator and the Governors Island Operator.

2.1. General. (a) The restrictions, conditions and covenants contained herein are intended to ensure the protection and preservation of the natural, cultural and historic qualities of Governors Island, guarantee public access to this magnificent island, promote the quality of public education, and enhance the ability of the public to enjoy Governors Island and the surrounding waterways, thereby increasing the quality of life in the surrounding community, the City, the State and the United States.

2.3. Permitted Uses. The Island Property shall serve as an educational and civic resource of special historic character and as a recreational and open space resource for the people of the City, the State and the United States. In furtherance thereof, the Island Property shall be used, maintained and occupied only for any combination of the following uses set forth in this subparagraph 2.3 (the “Permitted Uses”):
  (a) Public Benefit Uses: A portion of Governors Island, comprising not less than ninety (90) acres thereof, including the Monument Property shall be used for the following uses set forth in this subparagraph 2.3(a) (collectively the “Public Benefit Uses”):
      (i) Parkland: Exclusive of the Monument Property, public parkland of at least forty (40) acres (no less than twenty (20) acres of which shall be contiguous), located primarily south of Division Road, which shall be dedicated and used as such in perpetuity (the “Parkland Restriction Term”).
     (ii) Educational Uses: From and after the date hereof and for a period of thirty (30) years from the Master Plan Effective Date (the “Educational Uses Restriction Term”), not less than twenty (20) acres of the Island Property, shall be used for one or any combination of the following educational purposes, including: classrooms, libraries, offices, auditoriums, incubators, research facilities, campus facilities, conference facilities, student and faculty housing, student services and dining facilities (the “Educational Uses”).

Deed § 2.4. Prohibited Uses. Without limiting the foregoing, from and after the date hereof and during the fifty (50) year period commencing on the Master Plan Effective Date (the “Prohibited Uses Restrictions Term”), no portion of the Island Property shall be used for any of the following purposes (collectively the “Prohibited Uses”):
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(b) Industrial or manufacturing uses;

1 The Deed may be found in New York City’s ACRIS database, at https://a836-acris.nyc.gov/DS/DocumentSearch/DocumentImageView?doc_id=2003020300771002.

35. On the same day, January 31, 2003, the National Trust conveyed the Monument
Property back to the federal government, specifically to the National Park Service, which now owns the Monument Property. This deed specifically incorporated by reference the restrictive covenants of the transfer deed. The Monument Property was subsequently named a National Monument and added to the National Register of Historic Places.

36. On the same day that the United States government conveyed the Monument Property to the National Trust, it conveyed the remainder of the island to Governors Island Preservation and Education Corporation (“GIPEC”), which was formed as a partnership of New York City and New York State to be responsible for the planning, redevelopment and ongoing operations for the remaining 150-acres of Governors Island that constitute the Island Property. This deed made the grantee subject to all the restrictive covenants contained in the transfer deed.

37. In 2010, GIPEC conveyed its interest in the Island Property to the Governors Island Corporation, d/b/a the Trust for Governors Island, which now owns the Island Property. That conveyance too made the grantee subject to all the restrictive covenants contained in the transfer deed.

38. The end result of these transactions is that the Monument Property is owned by the National Park Service and the Island Property is owned by the Trust for Governors Island. Both are subject to all the restrictions in the transfer deed.

39. On May 27th 2021, the New York City Council passed Resolution No. 1667, which approved with minor modifications the decision of the City Planning Commission on Application No. N 210126 ZRM, for an amendment of the text of the Zoning Resolution. Resolution No. 1667 was enacted following the application of Governors Island Corporation d/b/a The Trust for Governors Island, and NYC Small Business Services pursuant to Section 201 of the New York City Charter, for an amendment of the text of the Zoning Resolution of the City of New York, to modify Article XIII, Chapter 4, expanding the Special Governors Island District, and to amend related Sections, to facilitate up to 3,775,000 square feet of commercial, educational and community facility development across 34 acres on Governors Island, Manhattan, Community District 1.

40. On that same date, the New York City Council passed Resolution No. 1668, which approved the decision of the City Planning Commission on ULURP No. C 210127 ZMM, a Zoning Map amendment. Resolution No. 1668 was enacted following the application of Governors Island Corporation d/b/a The Trust for Governors Island, and NYC Small Business Services pursuant to Sections 197-c and 201 of the New York City Charter for an amendment of the Zoning Map, Section No. 16a changing from an R3-2 District to a C4-1 District and establishing a Special Governors Island District, which in conjunction with Resolution No. 1667 would facilitate up to 3,775,000 square feet of commercial, educational and community facility development across 34 acres on Governors Island, Manhattan, Community District 1.

41. The Special Governors Island District had been applied to the historic district (north area) of Governors Island in 2013 and expands allowed uses – primarily commercial. The C4-1 zoning approved for the southern part of Governors Island increases allowed structure heights, previously only 35 feet, to a whopping 225 feet, plus a 40-foot allowance for permitted rooftop obstructions, and provides for 3,775,000 million square feet of development across 34 acres – three times the density of the U.S. Coast Guard’s previous development in the same area.

42. In defiance of the requirement of the deed, the zoning does not provide for 40 acres of dedicated Parkland. The current 40 acres of parkland area in the south island area has not been formally dedicated as parkland, but only zoned as “Open Space.”

43. The approved zoning violates both the letter and the spirit of the Deed, which was intended to “ensure the protection and preservation of the natural, cultural and historic qualities of Governors Island,” Deed ¶ 2.1, so that the Island would serve as “an educational and civic resource of special historic character and as a recreational and open space resource.” Deed ¶ 2.3, and undermines the island’s primary benefit to everyday New Yorkers from all boroughs as a uniquely welcoming natural spacious urban refuge and area for and arts and education by:

(a) Allowing high-rise (225ft plus) high density (3,775,000M sq ft across 34 acres) development on an island of completely low-rise structures (historic and other), vast open green spaces, and countless mature trees.
(b) Creating parking for 200 vehicles on a traffic free island.
(c) Allowing displacement of a thriving urban farm and other environmental projects.
(d) Boxing in and casting shadows on the open space subarea (current south island parkland), historic district, and Urban Assembly New York Harbor School with high-
rise development.
(e) Allowing building heights rising to 3 times the height of and blocking views from the south island’s 70 ft “Outlook Hill.”
(f) Including no provisions regarding architectural style. 20
(g) Allowing structures to cover 20% of the open space subarea (current parkland).

A. VIOLATION OF THE NEW YORK STATE ENVIRONMENTAL QUALITY REVIEW ACT

44. Pursuant to SEQRA, the “lead agency”, that agency that is responsible for approving or disapproving the rezoning and is also responsible for SEQRA determinations, and as such have the responsibility to assure that all laws and regulations pursuant to SEQRA were carried out.

45. According to the regulations promulgated pursuant to SEQRA:

The basic purpose of SEQR is to incorporate the consideration of environmental factors into the existing planning, review and decision-making processes of state, regional and local government agencies at the earliest possible time. To accomplish this goal, SEQR requires that all agencies determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement.

6 NYCRR §617.1(c).

46. Further, the regulations indicate that:

In adopting SEQR, it was the legislature’s intention that all agencies conduct their affairs with an awareness that they are stewards of the air, water, land and living resources, and that they have an obligation to protect the environment for the use and enjoyment of this and all future generations.

6 NYCRR § 617.1(b)

47. In the instant rezoning action, the lead agency determined that there may be significant
adverse environmental effects, and therefore, decided to do an Environmental Impact Statement. However, the lead agency determined that since not all of the details of the project on Governors Island was known when the Environmental Impact Statement was prepared, they decided to do a Generic Environmental Impact Statement.

48. The SEQRA regulations indicate when a Generic Environmental Impact Statement may be drafted and what it should contain:

“(a) Generic EISs may be broader, and more general than site or project specific EISs and should discuss the logic and rationale for the choices advanced. They may also include an assessment of specific impacts if such details are available. They may be based on conceptual information in some cases. They may identify the important elements of the natural resource base as well as the existing and projected cultural features, patterns and character. They may discuss in general terms the constraints and consequences of any narrowing of future options. They may present and analyze in general terms a few hypothetical scenarios that could and are likely to occur. A generic EIS may be used to assess the environmental impacts of:

(1) a number of separate actions in a given geographic area which, if considered singly, may have minor impacts, but if considered together may have significant impacts;
(2) a sequence of actions, contemplated by a single agency or individual;
(3) separate actions having generic or common impacts; or
(4) an entire program or plan having wide application or restricting the range of future alternative policies or projects, including new or significant changes to existing land use plans, development plans, zoning regulations or agency
comprehensive resource management plans.

6 NYCRR § 617.10(a)

49. The regulations go on to indicate that:

“(c) Generic EISs and their findings should set forth specific conditions or criteria under which future actions will be undertaken or approved, including requirements for any subsequent SEQR compliance. This may include thresholds and criteria for supplemental EISs to reflect specific significant impacts, such as site specific impacts, that were not adequately addressed or analyzed in the generic EIS.

50. Petitioners do not fault the Respondents in preparing a Generic EIS, as oppose to a site specific EIS. However, even with the Generic EIS, there must be some discussion of the environmental impacts that are probable under the amended rezoning.

51. In the instant action, the EIS defers consideration of adverse environmental impacts on many areas where the potential uses of the south Governors Island in what is called “Development Zones” exist. As indicated in the Fact section of this Petition, the amended rezoning allows for specific uses. Therefore, it was incumbent upon the lead agency to at least analyze the specific allowed uses and their potential adverse environmental impacts, rather than deferring to a site specific proposal.

52. The lead agency is required to apply a “hard look standard” in fulfilling its SEQRA responsibilities, which requires an agency to:

(1) Identify all areas of environmental concern; and
(2) Take a hard look at the environmental issues identified; and
(3) Provide a reasoned elaboration for the decisions that are made.

53. Even where the Generic Environmental Impact Statement did consider certain adverse environmental impacts, in many instances they did not take an appropriate hard look at the environmental issues identified.

54. For example, concerning flora and fauna, the rezoning affects the entire Governors Island, and therefore, it was incumbent upon the lead agency to do a biological survey of potentially endangered plants and wildlife. In particular, there is 217 varieties of birds that fly along a migratory path over Governors Island. Many of these birds will stop on the island and use it as habitat, breeding and the like. Again, there has been no biological survey of the types of birds that migrate over Governors Island, or use it as habitat or breeding purposes. Without such a biological survey, the lead agency could not take a hard look at whether or not any of the avian species are endangered or threatened, and what the adverse effects may be on those avian species.

B. LACK OF ANY IDENTIFICATION OR CONSIDERATION OF LONG TERM AND CUMULATIVE EFFECTS

55. The consideration of cumulative effects is a mandatory non-discretionary  duty of the lead agency. In Part 617.7(c)(2) it is indicated that:

“(2) For the purpose of determining whether an action may cause one of the consequences listed in paragraph (1) of this subdivision, the lead agency must consider reasonably related long-term, short- term, direct, indirect and cumulative impacts, including other simultaneous or subsequent actions which are:
        (i) included in any long-range plan of which the action under consideration is a part;
       (ii)likely to be undertaken as a result thereof, or
       (iii)dependent thereon.”

(Emphasis Added)

56. Therefore, since the zoning amendment contemplates and allows various development in the two development zones of the south Island, the allowable uses are therefore “included any long-range plan of which the action under consideration is a part” is “likely to be undertaken as a result thereof” or “dependent thereon”.

57. Nevertheless, the Generic Environmental Impact Statement, for many of the proposed uses of the parkland which are now split into two development zones, the Generic Environmental Impact Statement dodges the environmental consequence of the proposed and allowed uses and generally states that because the Environmental Impact Statement is generic, these environmental consequences that cannot be considered until there is a site specific project to be considered.

C. THE USES INDICATED IN THE DEVELOPMENT ZONES ARE CONTRARY TO THE RESTRICTIVE COVENANTS IN THE DEED

58. As indicated in the Fact Section of this First Amended Petition, when ownership of Governors Island was transferred to the Governors Island Corporation d/b/a The Trust for Governors Island, the Deed included many restrictive covenants concerning the uses to be put on the land of the southern portion of the Island. For example, the Deed lists as prohibited uses, “industrial or manufacturing uses” without limitation.

59. However, the zoning amendment at paragraph ZR § 134-111, is inconsistent and contrary to the Deed, by expressly permitting “furniture manufacture; manufacture of pharmaceutical products, chemical compounding or packaging; manufacture of non-alcoholic beverages; food product manufacture …; and the manufacture of alcoholic beverages and breweries.

60. The reason this is an issue for SEQRA review is because, according to Respondents, the zoning amendment and the restrictive covenants in the Deed do not have to be consistent, and each is independent of the other. Indeed, the Respondents concede that if there is an inconsistency of allowable uses in the zoning amendment, it is the Deed’s restrictive covenants that preempt those inconsistent uses contrary to the restrictive covenant.

61. Where the Deed id mentioned in the Generic Environmental Impact Statement, Respondents generally and only state that the restrictive covenants in the Deed are still applicable and will apply to any proposed uses in the future.

62. However, for SEQRA purposes a review of all the adverse environmental consequences, must consider the terms of the restrictive covenants in the Deed, and not just the adverse environmental consequence of the environmental uses in the zoning amendment.

D. VIOLATION OF THE DEED’S RESTRICTIVE COVENANTS

63. As indicated in the SEQRA section of this First Amended Petition, in many ways the zoning amendment is inconsistent with and contrary to the restrictive covenants of the Deed.

64. The approved zoning violates both the letter and the spirit of the Deed, which was intended to “ensure the protection and preservation of the natural, cultural and historic qualities of Governors Island,” Deed ¶ 2.1, so that the Island would serve as “an educational and civic resource of special historic character and as a recreational and open space resource.” Deed ¶ 2.3, and undermines the island’s primary benefit to everyday New Yorkers from all boroughs as a uniquely welcoming natural spacious urban refuge and area for and arts and education by:

(a) Allowing high-rise (225ft plus) high density (3,775,000M sq ft across 34 acres) development on an island of completely low-rise structures (historic and other), vast open green spaces, and countless mature trees.
(b) Creating parking for 200 vehicles on a traffic free island.
(c) Allowing displacement of a thriving urban farm and other environmental projects.
(d) Boxing in and casting shadows on the open space subarea (current south island parkland), historic district, and Urban Assembly New York Harbor School with high-rise development.
(e) Allowing building heights rising to 3 times the height of and blocking views from the south island’s 70 ft “Outlook Hill.”
(f) Including no provisions regarding architectural style.
(g) Allowing structures to cover 20% of the open space subarea (current parkland).

65. ZR § 134-112 “Permitted uses in the open space subarea” is in blatant violation of the parkland restriction in the deed.

66. Deed ¶ 2.3 (i) (a) states, “Parkland: Exclusive of the Monument Property, public parkland of at least forty (40) acres (no less than twenty (20) acres of which shall be contiguous), located primarily south of Division Road, which shall be dedicated and used as such in perpetuity (the “Parkland Restriction Term”).”

67. Moreover, the zoning as enacted is radically inconsistent with these open spaces being parkland. It states outright that permitted uses in that area include not only “public parks,” but also “private parks.” ZR § 134-112(a). In other respect, too, the bulk regulations and the “permitted uses” are clearly inconsistent with this being a park. ZR § 134-24(b)(5) states:
In the Open Space Subarea, permitted obstructions shall include:

(i) #buildings or other structures# containing permitted #uses#, up to a height of not more than 25 feet;
(ii) #buildings or other structures# containing permitted theater #uses#, up to a height of not more than 35 feet; and
(iii) equipment and appurtenances associated with public parks and playgrounds, including, but not limited to, sculptures, works of art and other amenities referenced in Section 37-726 (Permitted obstructions).

Permitted obstructions set forth in provisions (i) and (ii) of this paragraph (5) shall occupy no more than 20 percent of the Open Space Subarea.

68. In other words, permanent buildings may be built that are 25 or 35 feet high, and they can cover up to 20 percent of the open space. Moreover, ZR § 34-112 allows those buildings to have cellars in which all the permitted uses, including manufacturing and commercial uses, such as stores not limited in size, are allowed. The meaning of the term “parkland” and its permissible uses are spelled out in a long line of cases applying the public trust doctrine, including Avella v. City of New York. All of this is in blatant violation of the Parkland Restriction in the Deed.

69. Whereas paragraph 2.3(a)(ii) of the Deed requires that 20 acres be set aside for Educational Uses, the zoning amendments fail to reserve any land for educational uses.

70. Therefore, as previously indicated, the restrictive covenants of the Deed are in fact contrary and inconsistent with the zoning amendments.

71. Respondents argue that since the Deed and zoning are two separate and independent documents, and that the restrictive covenants in the Deed controls, therefore, it is immaterial what the zoning may allow.

72. Passing a zoning amendment which is directly contrary and inconsistent with restrictive covenants in the Deed, has no rational basis in the record, and, it is respectfully submitted is arbitrary and capricious as a matter of law.

73. Petitioners acknowledge that generally, the only individuals or entities that can enforce restrictive covenants in a deed, are the signators to the deed.

74. However, Governors Island presents a unique and exceptional circumstance, since the Island is surrounded by water, so that no one actually lives nearby.

75. Therefore, if the kind of organizations and individuals who are Petitioners in the instant case, cannot enforce the Deed restrictions, there will be no one to enforce those restrictions except for the signators who have applied for the zoning amendment are in favor of it.

76. The old adage “where there is a wrong, there is a remedy” applies to this case, and Respondents should not be able to avoid any judicial review concerning the enforcement of the restrictive covenants due to the fact there is no one able to assure that the restrictive covenants are followed and remain in effect. Therefore, it is respectively submitted that the Court apply as an exception the ability of Petitioners to enforce the Deed in unique circumstances such as is presented in this Petition.

E. THE PUBLIC TRUST DOCTRINE HAS BEEN VIOLATED

77. Most of the southern portion of the Island currently exists as parkland,Respondents acknowledge that there is dedicated parkland in the south portion of the Island, and any portion of open space not dedicated, is certainly a de facto park.

78. Many of the allowed uses in the zoning amendment, including the manufacturing uses, hotel uses or other commercial uses, as well as allowing automobiles on the Island where automobile traffic is currently not allowed, all alienates for non-park uses.

79. As such, the Public Trust Doctrine requires that the Respondents obtain state legislative approval for such alienation of non-park use.

FOR A FIRST CAUSE OF ACTION: VIOLATION OF SEQRA

80. The allegations contained in paragraph “1” through “79” inclusive are hereby realleged as more fully set forth herein.

81. Since SEQRA requires every agency to comply with SEQRA requirements and apply the “hard look” standard to the preparation of the Generic Environmental Impact Statement, since the violations stated in this First Amended Petition would indicate that SEQRA was not complied with, therefore, the zoning amendment must be voided and a permanent injunction should be entered until such time as SEQRA has been fully complied with.

FOR A SECOND CAUSE OF ACTION:
THE RESTRICTIVE COVENANTS IN THE DEED HAVE BEEN VIOLATED BY THE USES ALLOWED IN THE ZONING AMENDMENT

82. The allegations contained in paragraph “1” through “81” inclusive are hereby realleged as more fully set forth herein.

83. There can be no question that the uses allowed by the amended zoning are inconsistent and contrary to the restrictive covenants in the Deed. Respondents impliedly acknowledged this fact, when they repeatedly indicate that where there are inconsistencies between the zoning ordinance and the Deed restrictive covenants, it is the restrictive covenants that must be complied with.

84. However, it is respectfully submitted that the Respondents’ approval of the zoning amendment, with full knowledge that the uses allowed and changes in the southern portion of Governors Island’s landscape are directly contrary to the requirements of the restrictive covenants, is arbitrary and capricious as a matter of law. As such, the zoning amendment cannot stand.

FOR A THIRD CAUSE OF ACTION:
THE ZONING AMENDMENT VIOLATES THE PUBLIC TRUST DOCTRINE

85. The allegations contained in paragraph “1” through “84” inclusive are hereby realleged as more fully set forth herein.

86. There also can be no question that the southern portion of the Governors Island is mostly parkland, and further, by carving the two development zones out of the parkland, the zoning amendment adversely affects the remaining parkland.

87. Since any alienation of either a dedicated park or de facto park for non-park uses requires New York State Legislative approval, and since no legislative approval has been requested by the Respondents, therefore, the zoning amendments must be voided.

WHEREFORE, for all of the foregoing reasons, it is respectfully submitted that the zoning amendment at issue be annulled and voided, and an injunction should enter until such time as all the laws of the State of New York are fully complied with.

DATED:
Buffalo, New York February 14, 2022

LIPPES & LIPPES
By: RICHARD J. LIPPES, ESQ., Of Counsel
1109 Delaware Avenue
Buffalo, New York 14209
Telephone: (716) 884-4800
Attorneys for Petitioners
rlippes@lippeslaw.com