standard On a Range of New Developments, Legal Protections Leave Critics Wanting

Photo by Matthew Taub

Nineteenth Century Brownstones, Exempt From Park Slope’s Historic District, Will Be Demolished (Photo by Matthew Taub)

Across several neighborhoods, critics of unfettered development are finding that a range of legal protections once trusted to thwart outsized construction cannot necessarily be relied upon. Community groups and preservationists are retooling where they can, holding demonstrations, filing additional lawsuits and perfecting appeals. But in other instances, they have simply conceded defeat, and contested projects–permanently altering the aesthetics and experience of the community–are going forward.

‘Special’ Rezoning is Anything But: New York Methodist Hospital Expansion (Park Slope)

In Park Slope, existing laws and agreements are failing to protect a neighborhood’s character–despite earlier assurances that they would.

We are disappointed with today’s decision endorsing a plan to construct a massive medical complex in the middle of the largest historic district in New York City,” read a statement by Preserve Park Slope, a community group, after the City’s Board of Standards and Appeals (BSA) gave Methodist Hospital the go ahead in June for an expansion plan that would destroy historic nineteenth century brownstones and other modestly-priced housing to make way for “out of character” development, according to the preservationists. 

A rendering of the Methodist Hospital expansion (Preserve Park Slope)

A rendering of the Methodist Hospital expansion (Preserve Park Slope)

Unsatisfied with the Board’s inability to protect their neighborhood, the group filed a lawsuit earlier this month. They claim that a 2003 rezoning of the area (limiting much new development) granted a special exemption to the land owned by Methodist Hospital, but only with the understanding that the hospital would respect the height, bulk and setback restrictions for any new projects it embarked upon.

Now the Hospital is going back on that assurance, the preservationists claim, and the variances they sought–building out of height and scale, and destroying historic brownstones in the process–are a direct breach of this agreement.

“The process to secure approval of these variances has been conducted with complete disregard [for the] 2003 re-zoning of the area,” said Andrea Stewart, a member of Preserve Park Slope and a petitioner in the lawsuit, which remains pending.

The Hospital claims there were no such restrictions implemented when they were exempted from the 2003 rezoning. The prospects of the lawsuit is unclear.

The “Environmental Impact Study” – Under the Guise of Scrutiny, an Imprimatur for Development

In Brooklyn Heights, Prospect-Lefferts Gardens and beyond, “Environmental Impact Studies” have often provided a false cloak of due diligence while actually drumming up erroneous or outdated justification for developers’  plans, critics say.

What is an “Environmental Impact Study?”

According to the city, most discretionary land use actions trigger a City Environmental Quality Review (CEQR) process, whereby The City Planning Commission, together with the Department of City Planning (DCP) determine whether there are any potential adverse environmental effects of proposed actions by developers. Assessing their significance, these agencies may undertake an “environmental impact study “and propose measures to “eliminate or mitigate significant impacts.”

The “environmental” conditions that are to  considered as potentially affected by a proposed action include “physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health.”

But critics claim the process becomes skewed when developers have too large a role in the environmental impact study–at times even hiring the company performing such a review–or when, for a variety of reasons, the review is dated or, conversely, delayed, even by years.

The Outdated Review: Brooklyn Bridge Park

New towers planned for Pier 6 within Brooklyn Bridge Park are such an example: concerned residents recently sued to stop their construction, claiming a supplemental environmental review is needed. The original review–finding that the towers were appropriate and would not overcrowd the area–is a decade old, and fails to account for storm and hurricane threats (like superstorm Sandy), significantly increased vehicular and pedestrian traffic, a change in park finances and overcrowding in neighborhood schools, critics say.

The southern tip of Brooklyn Bridge Park, where towers are planned (Photo by Matthew Taub)

The southern tip of Brooklyn Bridge Park, where towers are planned (Photo by Matthew Taub)

“Planning must take into account current circumstances, and new consideration must now be given to what Brooklyn needs in terms of park space and services to accommodate park visitors as well as school, traffic and other infrastructure challenges faced by local residents,” Lori Schomp, a petitioner in the legal action along with fellow Willowtown resident Joseph Merz, told the Brooklyn Eagle.

A rendering of the proposed Pier 6 towers (via Brooklyn Eagle)

A rendering of the proposed Pier 6 towers (via Brooklyn Eagle)

Among the most critical infrastructural issues is school overcrowding: information obtained by the Eagle revealed that nearby middle school P.S. 8 operates at 119 percent capacity and is already bracing for 950 additional elementary school-aged children by 2017,  “a physically impossible task.”

Meanwhile, an analysis of projected income at Brooklyn Bridge Park, which must generate revenue and be self-sustaining, reveals the park is poised to reap a seven-fold increase in certain real estate taxes in coming years, raising as much as $200 million to fund park maintenance and operations.

“According to the park’s figures, the park only needs an additional $123 million…far less than hundreds of millions the park will receive from expiring tax breaks,” said Schomp, who is affiliated with “Save Pier 6” and also acts as a director of the People for Green Space Foundation. “Why build a skyscraper in a park that is already fully funded, especially given the construction boom in the downtown Brooklyn?”

Despite the pending lawsuit, the Brooklyn Bridge Park Development Corporation believes a judge will find the dated environmental review sufficient, and has voted to move forward with development, even unveiling renderings of the proposed new towers.

The Review That Never Was: Prospect-Lefferts Gardens

Worst of all is when such a review is never even performed–such was the case in Prospect-Lefferts Gardens, where a special benefit of state financing was on the line for a new tower overlooking Prospect Park.

Construction underway at 626 Flatbush Avenue

Construction underway at 626 Flatbush Avenue will ultimately yield a 23-story luxury rental property (Photo via Leah Margiulies)

“HFA’s initial assessment that 626 Flatbush would have no environmental impact, and therefore no that no impact study would be required (and that State bonds could be provided) is faulty and in violation of the SEQRA law,” said Leah Margulies, one of the Plaintiffs in the lawsuit against the new 23-story tower rising in the neighborhood. “This is not a ‘technicality,’ this is a state law. On the basis of this faulty decision, they gave the developer taxpayer financing.” Distraught, the group now plans to appeal.

Rendering of 626 Flatbush Avenue (Via The Hudson Companies)

Rendering of 626 Flatbush Avenue (Via The Hudson Companies)

The Prospect-Lefferts Gardens litigants are wrangling with a state environmental review process (since state financing is at issue), but similar issues are involved as with a city environmental study. In their underlying lawsuit, they argued that the HFA review was “arbitrary and capricious” because it didn’t fully take a “hard look” at each of these conditions as it would affect the neighborhood. HFA ‘s “negative declaration” (claiming no adverse environmental impact) allowed the state to approve the financing to the developer, but it should have been vacated, the litigants claimed, as a correct environmental assessment would ultimately trigger a full environmental impact study, revealing significant issues with the developer’s plans.

“HFA’s assessment was based on misinformation from [the developer] Hudson–including, among other inaccuracies, that they knew of no community opposition, despite Alison Novak’s meetings with residents who told her there was and would be opposition to the height of the building,” said Ethan Hallerman, a member of the Prospect Park East Network (PPEN) opposing the construction. “Residents also suggested that Hudson meet with the Community Board, which they did not do. Residents have also long expressed concerns about luxury development causing secondary displacement, which SEQRA requires consideration of.”

But in June, a judge threw out the lawsuit, claiming the area’s “as of right” development (with no height restrictions) meant the developers could build as they wish, and any truly “environmental” concerns were slight, if they existed at all.

Overlooked in this assessment was the effect the construction will have in pushing out surrounding residents. “The project will inevitably lead to the secondary displacement of residents of the PLG neighborhood who live immediately in its shadows,” says a portion of the petitioners’ memorandum of law. “Courts have recognized that secondary displacement is an eventuality in circumstances such as this.”

Political Leaders Enmeshed with Developers?

Finally, there are cases where residents feel their own elected leaders don’t have their best interests at heart, pushing development with scare tactics about more dire scenarios if concessions are not made now.

A flyer distributed at a "Bridging Gowanus" meeting -- some residents objected to the options as a false choice, with no option to halt or freeze development.

A flyer distributed at a “Bridging Gowanus” meeting — some residents objected to the options as a false choice, with no option to halt or freeze development.

“There are, of course, still people skeptical of the process, who feel it hasn’t been democratic enough, or that it was rigged from the beginning,” Councilmember Brad Lander conceded in a statement regarding regarding his “Bridging Gowanus” meeting series, which some residents felt had too much of a pro-development tilt.

A breakaway group, “Take Back Gowanus,” even formed to discuss the development issues facing their neighborhood on what they believed to be more conciliatory terms.

The squabble raised the specter that many neighborhoods are at risk for unfettered development, regardless of zoning status, since politicians and developers, already enmeshed, appear increasingly determined to undo height limits and other protections (and prevent new such restrictions) so as to allow development at all costs as a panacea to the housing crisis.

Though more affluent districts might successfully organize in opposition, what will happen to areas where residents have little resources, and far less political clout?

The East New York neighborhood has already been eyed for its transportation hub as the next pro-density destination, despite worries from the community that they may soon find a shift from being largely neglected to quickly displaced as one and two family homes are eyed for demolition, their lots converted to larger buildings with rents out of their price range.

Other Remedies Unexplored

In the race to add density, and the weakening of legal protections meant to maintain neighborhood character, other remedies have gone unmentioned: residency requirements for apartments (and conversely, taxation and other penalties for those who keep units empty), forbidding LLCs from buying and selling housing units (due to the nefarious nature of these legal entities), restricting where chain stores can open (due to their ability to artificially drive up rents and push out local businesses), reforming the incentives that give developers of mostly luxury buildings significant tax breaks and state financing for only a trickle of affordable housing, providing incentives for housing New Yorkers actually need (like Mitchell-Lama housing, but with accountable leadership), and repealing the Urstadt Law.

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