Lawsuit filed against Riverside South.

In an effort to lessen the impact of the construction of Riverside South, a coalition of local community groups has filed a lawsuit.

The Coalition for a Livable West Side charges the city of New York did not uphold provisions of an earlier restrictive declaration and require the developer, Donald J. Trump, to further alleviate local subway conditions or address other environmental impacts.

Meanwhile, reports that Trump is exploring the construction of a gas|fired power plant to generate steam and electricity for the development is also generating heat from locals, even though they are already in the shadow of the Con Edison plant.

The previous 99-year restrictive "dec" was entered into in 1982 when the city granted the proposed Lincoln West development a change of zoning from the former Penn rail yards to residential use.

In giving its final approval last fall the project, encompassing 5,700 apartments and 110,000 square feet of commercial space in 16 buildings, the city created a new restrictive declaration.

"This lawsuit is about the abrogation of the old restrictive declaration without following procedures under the dec and under the Charter," said Madeleine Polayes, the president of the Coalition. "It's about not giving the Community Board ample notice."

Developer Donald J. Trump was unconcerned. "They always sue when you get zoning of any substantial size," he observed. "[The lawsuits] are not meaningful."

The Coalition for a Livable West Side is involved in another lawsuit directed against the city and Riverside South that protests an agreement between the city and state to exceed the capacity of the North River Sewage Treatment Plant. That,suit was filed in December and is still pending. It was brought by a coalition of community groups from five boroughs, including Sound Watch, the Bronx Council on Environmental Quality, the Queens Environment Campaign and tizens United Against Riverwalk.

John T. Van Der Tuin, counsel for the groups said the litigation is not directed so much at Riverside South but at the problems at the North River Sewage Treatment Plant.

"That project has a cumulative h,pact along with other projects affecting both the Hudson and East Rivers," he said.

It was precipitated by the Department of Environmental Protection seeking to increase the capacity at

CLARIFICATION The article "ComEx project survives community's lawsuit" requires some clarification. While the project has been referred to as the ComEx plan, "Comex" is actually an acronym for Commodity Exchange, Inc., one of the four exchanges involved in the project. The others are: The Coffee, Sugar & Cocoa Exchange, New York Futures Exchange, New York Cotton Exchange. In terms of bids for the purchase, Alan Hanson, spokesperson for the Commodity Exchange, said there were two merger bids presented to his exchange -- one from the Chicago Board of Trade and one from Coffee Sugar & Cocoa Exchanges. A merger transaction, he said, would not affect the plan to build a new headquarters for the four exchanges. North River by 20 million gallons a day to 190 million "gpd" -- basically increasing the city's ability to violate the Clean Water Act.

"The city's position is that because the State DEC entered into a consent decree with the city to permit the violation to continue, the citizen groups or others are barred from suing them on it," Van Der Tuin explained.

Although the groups sought unsuccessfully to intervene in that state administrative procedure, he did not see that as a bar to this lawsuit. "It's the city that operates the plant and it is the city's obligations to comply with the Clean Water Act," he noted.

Attorney Philip Pierce, who lives in nearby Lincoln Towers "and faces west," is the former president of his co-op and has taken on the latest lawsuit. He said the earlier 1982 restrictive declaration stated in its own terms that before it could be amended, modified or canceled the community board would have 30 days to look at it.

"The actual '92 declaration, when it was finally patched together, wasn't given to the community board until 12 days before the 30 days was up," he noted.

Pierce said case law regarding restrictive declarations indicates that even though the restrictive declaration takes the form of a separate contract, when used in conjunction with a zoning change, it becomes a part of that change.

Other cases state ,that once entered into, the declaration is for the benefit of the surrounding community, which has an interest in its enforcement.

The 1982 agreement provided that approximately $32 million was to go to the subway and for other community benefits and limited the size of the project to about a million square feet less than the current Riverside South proposal. "[The declaration] was one of the conditions when granting the zoning changes to allow the residential zoning," Pierce added.

In 1992, when the city agencies entered into the new restrictive declaration, Pierce said, they "purported" to cancel the 1982 declaration and worded it so that the only people who could enforce the declaration and bring a lawsuit was the city itself. "So no citizen could enforce it," he explained.

The 1992 restrictive declaration also "wipes out" other restrictions that went with the land such as the $32 million for the 72nd Subway, Polayes said. "The $7 million [for the Bronx rail yards] was put back in because [Bronx Borough President] Freddy Ferrer went after Donald Trump," she complained. "The mayor said he wanted this project and they wanted this through no matter what."

Polayes is concerned that if the older restrictive declaration could be wiped out with the stroke of a pen, there were numerous other restrictive decs that can also be changed or ignored by the city. The 7.9 million square foot Riverside South development is being planned to rise along an extended Riverside Drive from 59th Street to 72nd Street and eastward to Freedom Place. It will incorporate 22 acres of parkland after relocating a portion of the West Side Highway under the new residential buildings.