Appeals Court Focuses on Meaning of Four-Letter Word to Block Suit Against Two Bridges Development Plan
Above: An architectural rendering of the four new residential towers proposed for the Two Bridges neighborhood, which would contain more than 2,700 apartments. The tower at left is already largely complete, while the four to the right have sought permission to begin construction.
Below:The four towers proposed by developers (visible on the right) are described by City Hall as “minor modifications” to nearby (and much smaller) existing structures.
A coalition of community groups opposed to three massive real estate developments planned for the Lower East Side were dealt a setback on Tuesday, when the Appellate Division of the New York State Supreme Court reversed a trial-court ruling from last year that said the projects were required to undergo a more rigorous form of public review before final approval. The Appellate Division, in a unanimous decision, ruled that the administration of Mayor Bill de Blasio had not exceeded its legal authority in approving the plans. This followed a similar ruling, in August, that blocked a second suit, brought by Manhattan Borough President Gale Brewer and City Council member Margaret Chin, which also sought to veto the developments.
At issue is a cluster of super-tall residential towers proposed for the Two Bridges neighborhood of East River waterfront in Lower Manhattan. In February, 2020, the four planned towers (spread across three development sites) appeared to be dead when State Supreme Court Judge Arthur Engoron ruled in favor of opponents, by ordering the City Planning Commission (CPC) to start anew the process of okaying the proposed buildings. This ruling sought to decide a suit brought by a coalition of Lower East Side community organizations, including the Lower East Side Organized Neighbors, the Chinese Staff and Workers Association, and the Asian American Legal Defense Fund. That decision echoed a previous ruling (from August, 2019), in which Judge Engoron ruled similarly on the separate action brought by Ms. Brewer and Ms. Chin. In both cases, the Judge found that City Hall did not have the power to approve the projects.
City Council member Margaret Chin (left) and Manhattan Borough President Gale Brewer (center) at a June, 2019 rally called to build support for their lawsuit against the de Blasio administration’s development plans for the Two Bridges community.
The coalition of three developers who hope to build the towers (with structures reaching as high as 1,000 feet, and containing more than 2,700 apartments) appealed Judge Engoron’s decision in the case brought by the elected officials, however, and were granted a hearing last June, at which two judges pursued a line of questioning that evinced deep skepticism about the trial court’s ruling. Their queries focused on the technical issue of whether a “special permit” approved by the City for Two Bridges neighborhood in 1995 (authorizing a variance in zoning codes) should automatically trigger the full legal scrutiny of the City’s “uniform land use review procedure” (ULURP) in authorizing new projects. By statute, it must—but attorneys for the developers argued that the amount of time that has passed since made the question irrelevant, thus rendering ULURP unnecessary.
This distinction is crucial, because absent the legal requirement for ULURP, the City had already approved the proposal under a less-rigorous standard of review, limited to an environmental impact statement.
The validity of this standard (and the City’s decision to green-light the new towers) is predicated upon a determination, made by the City Planning Commission (CPC) in December, 2018, that the addition of four new skyscrapers to the community situated between the Manhattan and Williamsburg Bridges (which would more than triple the number of residences in the area) qualified as a “minor modification” to existing zoning for the neighborhood. If this claim by the CPC (which is controlled by Mayor de Blasio) is allowed to stand, it will preempt the legal authority of the City Council to review, and possibly veto, these projects. Within days of the CPC’s determination, Ms. Brewer and Ms. Chin filed a lawsuit against the de Blasio administration.
In that action, the Borough President and the Council member argued that, “such developments are required to be completed with the consultation and advice of the community, including the New York City Council, the Borough President and the Community Board.” They also charged that, “aside from the clear and incontrovertible statutory requirements mandating the application of ULURP, [the City’s] claim that this application, which includes the addition of more than 2,700 dwelling units in three skyscrapers on a single block, is simply a ‘minor modification’ is nothing short of irrational, arbitrary and capricious and is incorrect as a matter of law.”
Judge Engoron’s original decisions focused, in part, upon the issue of whether such large-scale, potentially transformative development qualified as a minor change to the fabric of the community. This emphasis opened the door for him to consider, also, the issue of gentrification in Two Bridges, because the City’s environmental review standard allows for evaluation of what it calls, “indirect residential displacement,” and whether, “a proposed project may either introduce a trend or accelerate a trend of changing socioeconomic conditions that may potentially displace a vulnerable population to the extent that the socioeconomic character of the neighborhood would change.”
A schematic from the Municipal Art Society illustrates the impact that the scale of the proposed new developments will have on the existing community of low-rise buildings.
The City argued that because nearly 700 of the new apartments would be set aside as affordable, gentrification in the Two Bridges community would actually be slowed, relative to what would happen if the projects were not built.
Judge Engoron disagreed, ruling that the, “irreparable harm here is two-fold. First, a community will be drastically altered without having had its proper say. Second, and arguably more important, allowing this project to proceed without the City Council’s imprimatur would distort the City’s carefully crafted system of checks and balances. Under ULURP, the City Council’s mandatory role is not merely to advise, but to grant or deny final approval (with the Mayor). Without ULURP, the City’s legislature is cut out of the picture entirely.”
The Appellate Division disagreed. It’s Tuesday ruling hinged upon the meaning of the word “such.” The City’s zoning resolution covering the Two Bridges projects says that, ““The requirements for findings as set forth in this Chapter shall constitute a condition precedent to the grant of any such modification by special permit or otherwise.”
The Appellate Division’s determined, somewhat narrowly, that the City, “persuasively argued that the word ‘such’ in that provision refers to the two immediately preceding sections, which address only authorizations and special permits.” The Appellate Division also found that the interpretation of the zoning resolution argued for by opponents of the projects, “would render the word ‘such’ meaningless. It does not avail petitioners to argue that the phrase ‘or otherwise’ must be construed to require findings as a condition precedent to other modifications to prevent the phrase ‘or otherwise’ from being rendered meaningless.”
On this basis, the Appellate Division unanimously reversed Judge Engeron’s decision in the suit brought by the coalition of community groups seeking to nullify the CPC’s approval of the Two Bridge’s developments.
These findings echoed the same panel’s similar, August decision, overturning Judge Engoron’s decision in the suit brought by Ms. Brewer and Ms. Chin, finding that, “the buildings described in the applications did not conflict with applicable zoning requirements and that, therefore, the CPC’s approval of the applications has a rational basis and is not contrary to law.” The decision, written by Associate Justice Ellen Gesmer, continued, “specifically, we find no error in CPC’s determination that the project did not require a special permit, and was therefore not subject to ULURP.”
Judge Gesmer noted that, “in reaching this result, we are mindful of petitioners’ concerns that their constituents have had limited input on the proposed development’s potential effects on their neighborhood, including increased density, reduced open space and the construction of a large number of luxury residences in what has been a primarily working class neighborhood of low to medium rise buildings. However, existing law simply does not support the result petitioners seek.”
The Appellate Division’s rulings notwithstanding, several hurdles remain before the proposed projects can move forward. The opponent behind either (or both) of these lawsuits may seek to have the Court of Appeals (New York’s highest judicial authority) overrule the Appellate Division. And in the wake of the economic slowdown triggered by the pandemic coronavirus, New York real estate values have entered a dramatic slump. Whether developers, lenders, and apartment dwellers have any appetite for thousands of new residential units in Lower Manhattan in the next few years remains far from clear.
In a separate (but related) development, an already-completed new skyscraper in Two Bridges is showing signs of acute distress. The One Manhattan Square condominium building (where 80 percent of the 815 apartments remain unsold) is now offering prospective buyers discounts of up to 20 percent from the original asking prices. This comes on the heels of a similar enticement unveiled last year, under which the developers offered to waive common charges on units within the building for up to a decade. This inducement could translate into a savings of more than a quarter of a million dollars.
A Shot in the Arm
Downtown Lags Five-Borough Averages for COVID Vaccination
Lower Manhattan is lagging behind the City-wide averages for rates of vaccination against COVID-19 among adults, according to data released by public health officials on Tuesday. (No data was made available for vaccination rates among children.)
While roughly 10 percent of New York’s overall adult population have been received at least one dose of the various two-jab regimens currently available, only one Downtown community approaches this benchmark: Southern FiDi, in the zip code 10004, with a nine-percent rate of partial vaccination. Elsewhere, many Lower Manhattan neighborhoods have partial rates as low as four percent, in Eastern FiDi (10005) and Greenwich South (10006).
I wonder if NYC DOH is tracking city residents who receive their vaccinations outside the city.
Since the State website seemed less cumbersome, and I could sign up for an earlier date, I got my first vaccine upstate, actually, way upstate, and I’ll get the second vaccine there too.
Media have carried stories about downstate people traveling to Utica, Plattsburgh, Potsdam, etc. to get vaccines earlier. Maybe that’s the explanation. Or, maybe, downtown people are just younger on average. This would explain why northern BPC, home of Brookdale Assisted Living, has more completed second vaccines.
To the editor:
I’m writing in response to a recent letter in your publication that decried the idea of a dedicated bike lane over the Brooklyn Bridge as, essentially, woke craziness.
As a bicycle commuter from Battery Park City for more than 20 years, let me give an alternative view.
I’m a member of the Park Slope Food Coop, and bike over the bridge frequently to get there. At least pre-Covid, this was a nightmare. The bridge is -always- overrun with tourists, who do not notice the (not very prominent) signs asking pedestrians to stay on one side, and cyclists on the other. Consequently, there are always pedestrians straying ignorantly into the cyclist side, and getting across the bridge on your bike is a matter of ringing your bell constantly, moving slowly, and sometimes coming to a complete halt so someone can take a selfie.
Cyclists avoid the bridge for this reason, but in my case, the alternative (the Manhattan bridge) would add two miles to my journey, which on 60-something legs, is not desirable. And if the Brooklyn Bridge were more easily navigable by bike, I’m sure the number of cyclists using it would soar.
I’ll note that only a minority of lower Manhattan dwellers own cars; and, at least judging by the number of bikes locked in racks in Gateway Plaza, more own bikes than cars. A Brooklyn bridge bike path would benefit thousands of people a day, reduce risks to pedestrians on the bridge, and get us one inch closer to making New York a world class city for cyclists — and one inch closer to our necessary carbon-free future.
The letter to which I am responding decries already high traffic on the bridge (by which they mean car traffic, because cyclists and pedestrians evidently don’t matter). To which I can only say: Then get out of your ecologically catastrophic death machine, and take the subway like a normal person.
For two days, passers-by enjoyed beautiful ice sculptures by New York City-based art collective Okamoto Studio on the outdoor plaza at Brookfield Place.
Happy Year of the Ox!
The Larceny of the Commons
City Planning Commission to Consider Endorsing Privatization of Public Space in Tribeca
On Tuesday, February 16, the City Planning Commission considered a request by the owner of large bank building in Tribeca, seeking to privatize in perpetuity a space it originally created as a public amenity. Community Board 1 (CB1) has strongly denounced this move.
Nine-Hundred Foot Tower Will Include 300-Plus Affordable Units
The boards of the Port Authority of New York and New Jersey and the Lower Manhattan Development Corporation (LMDC) have both approved the proposal by a development partnership that wants to erect a 900-foot-plus tower at Five World Trade Center, a now-vacant lot that occupies the three-quarter-acre square block bounded by Liberty, Greenwich, Albany, and Washington Streets. To read more…
To Broadsheet editor;
I was very disappointed to hear that Silverstein Properties won the bid with very little competition for other proposals, and was disheartened to learn that CB1 so actively supports it.
Those of us who have lived in this neighborhood for years and tried to weigh in on what should be built on the site after 9/11 were never listened to when we expressed our needs and concerns. The commercialization of this area, embodied by the poor tourist-centric aspects of the Occulus for example, are yet another failed result of development run amok at the expense of the local inhabitants. This building should be truly affordable and low-income. Now Silverstein offers a hollow claim of “affordable housing”, but affordable to whom? Middle class professionals can afford to live there but certainly not the working class increasingly forced into longer commutes to work in a city that will not house them. As a resident of this neighborhood for over 30 years I have watched as the city continues to accommodate the rich and the transient. We don’t need more hotels and luxury housing. That is a shallow and inhospitable environment for the rest of us.
And how sad and disappointing is it when the wishes of the family of deceased firefighter, Joseph Graffagnino, are not even heeded? As Todd Fine points out so tellingly, particularly in this age of Covid, Five WTC is destined to go the way of the failing Hudson Yards, because the property owners are so unwilling to envision an open-minded ideal of true affordable living and quality of life for all of its residents and workers. We could have had a new vision for redevelopment on this site, but continue with a cold cynical perspective of business as usual.
The Deutchebank fire on August 17, 2007 was a tragic circumstance that many community leaders had warned about when they tried to get LMDC to separate the toxic abatement from the demolition instead of doing it all at once. They didn’t heed us then and are not heeding us now. For those who weren’t there I am attaching a photo of the fire at the former Deutchebank, the site where firefighters Joeph P. Graffagnino, and Robert Beddia tragically lost their lives on that day. This was the horrific view from my roof. I hope that at least some form of tribute will be paid to these men on the site where they paid such a heavy price.
Despite America’s newly won independence, a bitter dispute over whether to have a capital and where to locate it almost tore the young nation apart. In this lecture, Watson will discuss the pivotal role played by George Washington in the struggle over the placement of America’s capital. This lecture will take place via Zoom.$5
A Shore Thing
HRPT Moves Ahead with Plans for ‘Beach,’ Park and Historic Sculpture for Gansevoort Peninsula
The Hudson River Park Trust (HRPT) has released a package of three requests for proposals (RFPs) intended to kickstart the process of transforming the Gansevoort Peninsula—a five-acre-plus chersonese that juts out from the West Side waterfront, between Gansevoort and West 13th Streets—into a new public amenity.
Plans call for a scenic beach (more for viewing the water than public bathing, owing to concerns about hygiene and safety), along with a 56,000-square-foot ballfield for use by local youth leagues, a playground, an outdoor “river gym” (consisting of rust-proof calisthenics equipment), a dog run, and public restrooms.
Suspect in Chambers Street Subway Stabbing Taken Into Custody
A suspect in the October murder of a man at the Chambers Street subway station of the J and Z trains (located beneath the Municipal Building and across the street from City Hall) has been taken into custody.
On Wednesday, officers from the NYPD’s Warrant Squad arrested 29-year-old Amado Garzon Morales, a resident of New Brunswick, New Jersey, who was tracked down in the Richmond Hill section of Queens.
Transit Hub Becomes Venue for Multiple Violent Crime
The Fulton Center subway and retail complex (at the corner of Broadway and Fulton Street) has been the scene of several violent assaults in recent days. On Friday, January 29, shortly after 11:00 pm, a gang of six young people (four male and two female) quietly entered the Dunkin Donuts location within the facility, and crept up behind a man who was placing an order at the counter. To read more…
CLASSIFIEDS & PERSONALS
Swaps & Trades, Respectable Employment, Lost and Found
No judgment for those of you who will want to drop those new year’s resolutions (or whatever other health kicks you’ve got going on) after reading this PSA:
NYC Restaurant Week launched this week, as hundreds of hot spots citywide have been lining up special delivery deals through February 28.
Promotions include lunch or dinner with a side for $20.21, two-course brunches and lunches ($26) and three-course dinners ($42), mostly Monday through Friday. (Some participating restaurants are honoring those prices on weekends.)
Dozens of restaurants south of Chambers Street plan to take part in NYC Restaurant Week, including Brooklyn Chop House, The Fulton, Crown Shy, Stone Street Tavern, The Dead Rabbit and more.
The Restaurant Week website lists several more tempting options to treat yourself — even if it means playing it a little fast and loose with your commitments to fitness. (We won’t tell.)
1930 – Elm Farm Ollie becomes the first cow to fly in an aircraft and be milked while in flight. Charles Lindbergh was the pilot.
1229 – The Sixth Crusade: Frederick II, Holy Roman Emperor, signs a ten-year truce with al-Kamil, regaining Jerusalem, Nazareth, and Bethlehem with neither military engagements nor support from the papacy.
1478 – George, Duke of Clarence, convicted of treason against his older brother Edward IV of England, is executed in private at the Tower of London.
1861 – In Montgomery, Alabama, Jefferson Davis is inaugurated as the provisional President of the Confederate States of America.
1885 – Adventures of Huckleberry Finn by Mark Twain is published in the United States.
1930 – While studying photographs taken in January, Clyde Tombaugh discovers Pluto.
1930 – Elm Farm Ollie becomes the first cow to fly in a fixed-wing aircraft and also the first cow to be milked in an aircraft.
1943 – World War II: The Nazis arrest the members of the White Rose movement.
1970 – The Chicago Seven are found not guilty of conspiring to incite riots at the 1968 Democratic National Convention.
1977 – The Space Shuttle Enterprise test vehicle is carried on its maiden “flight” on top of a Boeing 747.
2001 – FBI agent Robert Hanssen is arrested for spying for the Soviet Union. He is ultimately convicted and sentenced to life imprisonment.
2010 – WikiLeaks publishes the first of hundreds of thousands of classified documents disclosed by the soldier now known as Chelsea Manning.
2013 – Armed robbers steal a haul of diamonds worth $50 million during a raid at Brussels Airport in Belgium.
1201 – Nasir al-Din al-Tusi, Persian scientist and writer (d. 1274)
1745 – Alessandro Volta, Italian physicist, invented the battery (d. 1827)
1848 – Louis Comfort Tiffany, American stained glass artist (d. 1933)
1862 – Charles M. Schwab, co-founded Bethlehem Steel (d. 1939)
1892 – Wendell Willkie, American captain, lawyer, and politician (d. 1944)
1898 – Enzo Ferrari, founded Ferrari (d. 1988)
1922 – Helen Gurley Brown, American journalist and author (d. 2012)
1931 – Toni Morrison, American novelist and editor, Nobel Prize laureate (d. 2019).