Judge extends TRO on Brooklyn Bridge Park’s Pierhouse project
Harsh words in fight between BBP and Heights preservationists
To the disappointment of developers, a Brooklyn judge on Monday extended a partial Temporary Restraining Order (TRO) on the Pierhouse development at Pier 1 in Brooklyn Bridge Park.
State Supreme Court Justice Lawrence Knipel extended the TRO on the penthouse of “Parcel B,” the shorter section of the project, pending his decision on a lawsuit filed by the preservationist group Save the View Now (STVN).
After hearing extensive arguments from attorneys representing Brooklyn Bridge Park, developer Toll Brothers and plaintiffs Save the View Now, Justice Knipel told the packed courthouse that he hoped to render a decision within 45 days. “You won’t be waiting long,” he promised.
STVN maintains that both sections of the hotel/residential project are taller than originally promised, partially blocking the view of the Brooklyn Bridge from the Promenade. The height limits were negotiated by the Brooklyn Heights Association and preservationist Otis Pearsall, among others, in 2005.
The current park board members, however, claim the height of the buildings is permitted under city law.
Attorneys for STVN on Monday made their case that the city’s zoning rules don’t apply to the project, and that the park’s board played loose with the facts and obscured the final plans.
Attorneys for the park and the project’s developers, however, argued that STVN’s lawsuit was barred by a four month statute of limitations.
They ridiculed the idea that STVN’s head Steven Guterman, who they characterized as a savvy Wall Streeter, failed to notice that the project was roughly 30 feet taller than the agreed-upon 100 foot height until just this year.
They also said that the public had many opportunities over the years to review the project plans and raise objections.
“It was a long, long presentation,” Guterman told the Brooklyn Eagle after the hearing. “I think the arguments on the table are pretty clear. The defense thinks we’re too late and we don’t. The judge seemed to understand the argument that the defense team has violated the agreements put together in 2005 and we now have to wait for him to rule.”
“The Pier 1 development project was permitted in the Park’s General Project Plan of 2005 and went through an extensive, good-faith public design process beginning in 2011,” a Brooklyn Bridge Park spokesperson said on Tuesday. “We look forward to a swift decision from the court which will allow us to move forward with new parkland construction and secure essential long-term funding for park maintenance and operations.”
Author Daniela Gioseffi, one of the plaintiffs in the case, told the Eagle on Monday, “The decision should be about protecting the most iconic piece of architecture [the Brooklyn Bridge] that this country has. It’s big money against the people’s right to their icon, that’s what it comes down to.”
“I didn’t like the way the other lawyers were criticizing Guterman’s personal life,” said Heights resident Neddi Heller. “They belittled him. Why would you question that something was going to be built to block the view of the Brooklyn Bridge after you were told it would never be more than 100 feet?”
She added, “I felt at the end the judge was fairly sympathetic with the ideas and he asked questions – what is a bulkhead, what are the mechanicals?”
The Legal Details:
During the course of the hearing counsel on both sides used strong language to characterize the actions of the other.
Jeffery S. Baker, Esq., of Young/Sommer LLC, counsel for STVN, accused the defendants—the City of New York, the Brooklyn Bridge Park Corporation, the Economic Development Corporation, and the developers Toll Brothers and Starwood—of having “denied facts” concerning restrictions on the height and bulk of the Pierhouse buildings, and of going through “mental gymnastics” to assert there are “inconsistencies” concerning those restrictions.
He noted that the defendants referred to city zoning rules that, he said, are not applicable to the project. In any event, if zoning rules were to be applied, he said, the ones mandating “contextual” compliance, applicable in areas where there are special concerns about preserving views and the like, should have been invoked.
Baker concluded that the defendants’ actions had caused “permanent harm to the public” and noted that the developers anticipated a return on their investment in the Pierhouse project of $700 million.
“The public has a right to count on their public officials and appointees,” Baker told the judge.
Counsel for the City, David Paget, Esq. of Sive Paget & Riesel, P.C., concentrated on arguing that plaintiffs’ action is barred by a four month statute of limitations that applies to Article 78 proceedings; that is, proceedings under New York law appealing decisions of government agencies to the courts.
Baker had earlier argued that this was not an Article 78 proceeding but rather one for a declaratory judgment, and that in any event there was no appealable “decision” of any agency until March of this year, when Brooklyn Bridge Park Corporation President Regina Myer responded to a letter from Brooklyn Borough President Eric Adams in which she stated the grounds for allowing the Pierhouse to be constructed as it is being done.
Paget noted the “remarkable coincidence” that STVN filed its suit exactly four months after Guterman “had an epiphany” that the Pierhouse structure was blocking views of the Brooklyn Bridge. He then listed a number of dates, ranging from 2011 to 2014, when, he said, actions had been taken that should have put anyone concerned on notice that the Pierhouse was going to be built as it is being built.
Scott E. Mollen, Esq., of Herrick, Feinstein LLP, counsel for Toll Brothers, began by endorsing Mr. Paget’s argument that STVN’s action is time barred.
“No project,” he said, “has had more discussion” than Pierhouse. Mollen ridiculed Guterman’s supposed realization in December of last year that the Pierhouse was obscuring views, noting that, as former director of global operations for a unit of the financial services giant AIG, Guterman (whom Mollen repeatedly referred to as “Mr. Gutenberg”) was skilled at “due diligence.”
Mollen showed photos illustrating that Pierhouse allows more of a view of the Brooklyn Bridge from the Promenade horizontally, if not vertically, than did the warehouse building that was there before. He also produced drawings that, he said, showed that the building on Parcel B, including its penthouse, which is the subject of the TRO issued in April, will not exceed the 55 foot height limit.
Finally, he urged the court to lift the TRO, noting that it was affecting the approximately 375 workers on the project, and that there was a danger that, in today’s booming construction market, subcontractors might walk off the project to go elsewhere.
Baker replied by noting that the penthouse and mechanicals on the Parcel B structure, as shown in the drawings, actually go to 67 feet above ground level. He characterized the photos showing less horizontal view obstruction as a “red herring,” noting that the purpose of agreement limiting the height of the structures was to preserve views of the arc of the Brooklyn Bridge roadway.
Justice Knipel asked whether the statute of limitations might have begun to run when the building on Parcel A—the hotel structure—was “topped off” in September of 2014. Baker replied that there was no appealable affirmative action until Myer’s letter of March 2015, and that not all of the Parcel A structure was topped off until January of this year.
Afterward, there was colloquy among Justice Knipel and the attorneys concerning the meaning of the 100 foot limit on the Parcel A structure. Justice Knipel then announced that he would leave the TRO in place until he renders his decision.
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