Lawsuit filed against the Governors Island Rezoning

A lawsuit has been filed by M.A.G.I.C. co-founder Roger Manning against the City to nullify the rezoning for Governors Island’s southern area approved by the City Council on May 27th, 2021 as it violates the spirit and letter of the 2003 deed which is in place to protect Governors Island from efforts such as the deBlasio administration is guilty of here.

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LAWSUIT SUMMARY/EXCERPTS. (FULL lawsuit Below )

FILED: NEW YORK COUNTY CLERK 09/25/2021 12:10 AM
INDEX NO. 158809/2021

Corrected
VERIFIED PETITION
NYSCEF DOC. NO. 1

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ————————————————————————– x

ROGER MANNING,
Petitioner,
– against –
CITY COUNCIL OF THE CITY OF NEW YORK, BILL DE BLASIO, as 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

CAUSE OF ACTION

THE CITY COUNCIL’S ENACTMENT OF ZONING RESOLUTION TEXT AND MAP AMENDMENTS FOR GOVERNORS ISLAND THAT ARE IN VIOLATION OF COVENANTS IN THE NATIONAL TRUST DEED WAS ARBITRARY AND CAPRICIOUS.”

18. The City Council of the City of New York’s May 27, 2021 approval of zoning amendments for Governors Island that are in direct violation of restrictive covenants in the Deed was arbitrary and capricious.

21. 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).

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

24. […] 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.” This is significant because zoning can be changed at any time (as we see with this enactment), whereas dedicated parkland cannot be alienated without an express enactment by the State Legislature.

25. Moreover, the zoning as enacted is radically inconsistent with these open spaces being parkland. […]

28. The approved zoning also violates the Deed’s covenants regarding “Prohibited Uses.” Deed ¶ 2.4 lists certain “Prohibited Uses,” which include “Industrial or manufacturing uses,” without limitation.

WHEREFORE, the Petitioner respectfully requests that this Court:

(1) enter a judgment annulling the zoning amendments pertaining to Governors Island approved by the City Council of the City of New York on May 27, 2021 as they directly violate the restrictive covenants governing that property;

(2) grant a permanent injunction prohibiting any construction in violation of the deed covenants.

 

Here is the FULL LAWSUIT
FILED: NEW YORK COUNTY CLERK 09/25/2021 12:10 AM
INDEX NO. 158809/2021

Corrected
VERIFIED PETITION
NYSCEF DOC. NO. 1

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ————————————————————————– x

ROGER MANNING,
Petitioner,

– against –

CITY COUNCIL OF THE CITY OF NEW YORK, BILL DE BLASIO, as 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. ————————————————————————– x

Petitioner Roger Manning (“Petitioner”), Pro Se, as and for their Verified Petition pursuant to CPLR Article 78, alleges as follows:

FACTS

1. 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.

2. 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 National Trust 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

3. 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”): ****

(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.

4. 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 National Trust Deed. The Monument Property was subsequently named a National Monument and added to the National Register of Historic Places.

5. 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 National Trust Deed.

6. 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 National Trust Deed.

7. 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 National Trust Deed.

8. 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.

9. 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.

10. 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.

11. 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.” This is significant because zoning can be changed at any time (as we see with this enactment), whereas dedicated parkland cannot be alienated without an express enactment by the State Legislature. Moreover, the zoning as enacted is radically inconsistent with these open spaces being parkland.

12. 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).

PARTIES

13. 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.

14. Respondent City Council of the City of New York is the legislative body of the City of New York.

15. Respondent City Planning Commission is an agency of the City of New York.

16. Respondent Bill DeBlasio is the Mayor of the City of New York.

17. 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 National Trust 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.

CAUSE OF ACTION

THE CITY COUNCIL’S ENACTMENT OF ZONING RESOLUTION TEXT AND MAP AMENDMENTS FOR GOVERNORS ISLAND THAT ARE IN VIOLATION OF COVENANTS IN THE NATIONAL TRUST DEED WAS ARBITRARY AND CAPRICIOUS.”

18. The City Council of the City of New York’s May 27, 2021 approval of zoning amendments for Governors Island that are in direct violation of restrictive covenants in the Deed was arbitrary and capricious.

19. CPLR 7803(3) provides a cause of action for challenges to administrative actions that are “made in violation of lawful procedure,” “affected by an error of law,” or “arbitrary and capricious or an abuse of discretion.”

20. On May 27, 2021, the City Council of the City of New York approved zoning amendments for the island property that directly violated the restrictive covenants governing that property.

21. 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).

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

23. 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”).”

24. Yet 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.” This is significant because zoning can be changed at any time (as we see with this enactment), whereas dedicated parkland cannot be alienated without an express enactment by the State Legislature.

25. 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.

26. 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.

27. 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.

28. The approved zoning also violates the Deed’s covenants regarding “Prohibited Uses.” Deed ¶ 2.4 lists certain “Prohibited Uses,” which include “Industrial or manufacturing uses,” without limitation.

29. Yet ZR § 134-111 expressly permits “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.” This too is a clear violation of the Deed restriction.

WHEREFORE, the Petitioner respectfully requests that this Court:

(1) enter a judgment annulling the zoning amendments pertaining to Governors Island approved by the City Council of the City of New York on May 27, 2021 as they directly violate the restrictive covenants governing that property;

(2) grant a permanent injunction prohibiting any construction in violation of the deed covenants.

(3) Awarding Petitioners their costs, disbursements and expenses, including reasonable attorneys’ fees; and

(4) Granting such other and further relief as this Court may deem just and proper.

Dated: New York, New York September 28, 2021

Roger Manning, Pro Se
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