In a previous post, I referred to a decision issued November 24, 2009 by the New York court of appeals affirming that Extell and all its successors are bound by the terms of the 1992 Restrictive declaration. This decision also provided for monitoring compliance by the developer (in this case Extell), but there is no body that is currently empowered to perform this essential function!
The body that had been performing the monitoring and compliance function was the Riverside South Planning Corporation, RSPC. This role of RSPC was established in a four page Memorandum of Understanding (MOU) that was not part of the Restrictive Declaration. The MOU had a sunset clause, and the court ruled that the MOU has expired, and that therefore Extell has no obligation to RSPC.
The court went out of its way to explicitly affirm the fact that the Restrictive Declaration remains in force without sunset and without limit, "binding all successors for all time -- including Extell."
In a footnote, the court describes how the Declaration would be monitored:Under the Restrictive Declaration, the developer's
compliance with the plan is monitored by the Riverside South
Implementation Task Force, which consists of a representative of
the Mayor's office of Construction, the Director of the
Department of City Planning, another Mayoral appointee (a
Commissioner of an agency, at the election of the Mayor) and two
appointees of the Speaker of the State Assembly.
Where is the "Riverside South Implementation Task Force" today?
It appears that the RSPC was intended to play that role, but now that the court has ruled the original agreement empowering it is no longer in force, some entity (perhaps a revised or reconstituted RSPC!) needs to be empowered to play the role of monitoring Riverside South implementation.
Extell, the Carlyle Group and their lawyers know all this, of course. They know the terms of the Restrictive Declaration. They know it calls for oversight. They know the RSPC was set up to provide that oversight. When they discovered that the side letter establishing RSPC as the entity to provide that oversight had expired, the right thing to do is simple -- sign a new letter with RSPC. Instead, they shut out RSPC and said, in effect, that they could live without oversight just fine, thank you.
What they're banking on is that the Mayor and everyone else empowered by the document to appoint the overseeing Task Force will simply let the matter slide. And so far, they're getting away with it.
Mr. Mayor? Director of City Planning? Speaker of the State Assembly? Will you please remedy this situation?
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