The appeal brief beautifully written by attorney John Low-Beer for the ongoing lawsuit to overturn the 2021 Governors Island rezoning has been filed. Excerpts below.
– NEW 1/03/24 our brilliant Reply Brief – download HERE
– Download the appeal brief: HERE
– NEW 10/20/23 Amicus led by D1 City Council Member Chris Marte: HERE
– All appeal related documents online: HERE
– Initial lawsuit HERE
This appeal aims to reverse the NY State Supreme Court December 2022 decision rejecting our petition (lawsuit) to overturn the 2021 Governors Island rezoning.
Excerpts
Our brief argues that it is arbitrary and capricious of the City to approve zoning that will impede or frustrate it from fulfilling its legal obligation to enforce the Deed.
The 2021 GI rezoning encourages violation of specific goals and restrictions in the Governors Island Deed:
A. The rezoning enables and encourages construction and uses that negate the primary goal of the deed: “Protection and preservation of the natural, cultural and historic qualities of Governors Island.”
B. Respondents’ [The City and The Trust] imposition of zoning on the purported “South Island Park” was Arbitrary and Capricious
C. The rezoning enables and encourages construction and uses that are unlawful on dedicated parkland.
D. The new zoning enables and encourages industrial and manufacturing uses that the deed explicitly prohibits.
In 2011, prior to beginning Phase 1 of the 2010 Master Plan, the City issued a Final Generic Environmental Impact Statement (“FGEIS”) which echoed the tone and the substance of the Master Plan. It described Governors Island as “An Island Like No Other,” “Carefree Island,” that “allows visitors to leave the big city behind.”
In 2020, the Trust proposed to increase the allowable density of the South Island from the 1.65 million square feet envisioned by the 2011 FGEIS to 4.25 million square feet (reduced to 3.75 million in the adopted zoning) and to allow industrial, manufacturing and commercial uses on all 80 acres
But not only is the City’s massive upzoning in conflict with the Deed Restrictions. The City has never produced even a smidgen of evidence to show that the goals of making Governors Island financially self-sufficient and establishing a world-class academic and scientific Climate Solutions Center require this much density, this much height, open spaces that are not protected as dedicated parkland, and industry and manufacturing everywhere. When the Community Board sought evidence to support the City’s suggestion that the proposed amount of development space was necessary to achieve their goals, Respondents refused to provide it.
In reality, it appears that the City is primarily interested in facilitating development to help the City’s economy, regardless of what the Deed Restrictions require. In 2020, the Office of the Mayor “announced that the [Governors Island] Center for Climate Solutions would play a key role in the Mayor’s economic recovery agenda, StrongerNYC. The Center for Climate Solutions is projected to create 8,000 direct new jobs and $1 billion in economic impact for New York City.”
These are laudable goals, but they are extraneous to the Deed and the carefully developed Master Plan.
There is a reason why Respondents do not want to dedicate the 40 acres as parkland: not doing so gives them flexibility in their development plans, such as permitting them to interpret the public trust doctrine as allowing construction over the entirety of the supposed park area (as they had originally proposed before reducing the buildable area to 20 percent), and allowing uses such as industry and manufacturing. Not dedicating parkland also forecloses any public trust doctrine challenges. Respondents’ failure to dedicate parkland in conjunction with their rezoning was arbitrary and capricious.