In the latest development in a legal face-off over the 28-acre, $1 billion luxury residential and commercial development at Garvies Point, attorneys for three parties argued their cases on appeal before a panel of judges in the state court system’s Appellate Division, Second Department in mid-October.
The two cases — one filed by over 100 residents of Glen Cove, Sea Cliff, and the surrounding area, and the other by the Village of Sea Cliff — were thrown out by a Nassau County judge in 2016. Now, they’re hoping to convince the appeals judges to overturn that lower court’s decision.
Amy Marion, attorney for the residents, said that based on the length of the lower court’s decision, she suspected that the judges hadn’t really read through the hundreds of pages of legal arguments that the parties had submitted. “The decision is so few lines,” she said, “that it is hard to tell whether they read [our filings].” The judges also did not address all of the issues that the documents raised, she said.
Brad Schwartz, a lawyer from Zarin & Steinmetz representing the city in this case, said that the judges at the hearing “clearly understood the issues,” and added that they “seemed to recognize in their questioning that a supplemental environmental impact statement is not required every time there’s a change of plans.”
The crux of Marion’s case revolves around Environmental Impact Studies. A three-year long EIS was conducted in 2011, in advance of the Glen Cove Planning Board’s approval of Master Development Plan for the project, which is being undertaken by real estate developer RXR.
Marion, herself a Sea Cliff resident, and her clients claim that two key developments since the master plan’s approval require that a supplemental environmental study be complete before the project — which celebrated a construction groundbreaking in late 2017 and is currently projected to be completed by 2020 — can continue.
First, the residents’ case claims that a 2015 amendment to the master plan — which among other changes, called for 1,100 units, 240 more than the 860 units originally called for — would have dramatically different impacts than those studied under the initial EIS.
In 2016, the Glen Cove-based environmental non-profit, The Committee for a Sustainable Waterfront, submitted comments to the Planning Board in which detailed “empirical evidence” of “incontrovertible discrepancies” between the amended site plan and the original, and repeatedly recommends additional study.
In a legal filing responding to Marion’s appeal, Michael Zarin, who is working with Schwartz on the case, argued that the Planning Board did in fact take the necessary, “hard look” at the potential environmental impact of the amendments, and determined that they would not be significantly different from the original plan. The “hard look,” according to the board’s 23-page resolution adopting the amended plan, included four months of deliberation, public comment and expert consultations.
Marion’s case goes on to claim that the discovery in late 2017 of contaminants on a parcel of land in the development area suggests a change in environmental conditions that should necessitate a new study. Further, she claims that the city’s attempts to reclassify the contaminated area as part of a remediation site were efforts at “subterfuge” by the city.
She told the Herald Gazette that while building her case, “I felt like I was writing a criminal appeal, like there was a conspiracy going on here.” She said that several attempts from the state’s Department of Environmental Conservation in which they attempted to clarify the lot’s status and borders were evidence that the city was trying to mislead the public.
Zarin’s brief claims that the residual contamination was acknowledged by the planning board and the DEC during the 2011 EIS period, and that the recently uncovered contamination constituted nothing new. Regarding the DEC’s clarifications, the brief continues, “Appellants distort correspondence from DEC when claiming that the agency ‘repeatedly admonished’ and ‘scolded’ the board,” and added that such clarifications are a normal part of planning and zoning matters.
The other lawsuit challenging the Garvies Point development, filed by the Village of Sea Cliff, relies on a Memorandum of Understanding from the year 2000 between the village and the city. The MOU, according to Village Administrator Bruce Kennedy, was meant to improve “good faith” cooperation between the two municipalities on development projects that would affect them both.
“The agreement clearly states that no building would exceed 65 feet,” Kennedy told the Herald Gazette. “They’ve doubled that.” He added that the plan, as it exists today, “more than tripled” the agreed-upon gross square footage of the project — 700,000 square feet.
In a separate brief, Zarin argues that the MOU is not a binding legal document, and that Glen Cove’s then-mayor, now Congressman Tom Suozzi was not authorized to sign the agreement because the City Council never voted on it.
Nevertheless, Kennedy argued, “both mayors sent out press releases,” at the time, and that, “the [Glen Cove] City Council was aware of it, and they didn’t object to it.”
Zarin wrote that Kennedy’s objections are sudden attempts to derail the project. “The village showed up at the last minute and launched its opposition,” the brief reads. It also accuses Kennedy of previously supporting the project, and attending a ceremony in November 2011, celebrating the progress of the project.
“I was bamboozled into showing up at that event,” Kennedy said. “It was promoted in the media as a cleanup event, and now they’re saying it was a ground breaking.” He added that he left the event after he saw RXR signs everywhere.