Judge throws out Brooklyn Bridge Park Pierhouse lawsuit
Community groups mull appeal
State Supreme Court Justice Lawrence Knipel on Thursday threw out a lawsuit attempting to block construction of part of the Pierhouse residential/ hotel complex at 130 Furman Street in Brooklyn Bridge Park.
The suit, brought by the Brooklyn Heights Association (BHA) and advocate group Save The View Now (STVN), claimed that a section of the $6 million residential penthouse apartment atop the Pierhouse extends into the protected Brooklyn Heights Scenic View District (SV-1), blocking iconic views of parts of the Brooklyn Bridge as seen from the Promenade.
Justice Knipel dismissed the suit on the grounds that the issue had already been decided in previous court appearances and that the community groups waited too long to file their claims.
In September 2015 and again in December 2015, Knipel dismissed earlier lawsuits against the Pierhouse, making this the third loss for the advocates in court.
The suit was brought against Brooklyn Bridge Park, New York City, Empire State Development Corporation, Brooklyn Bridge Park Corporation, developers Toll Brothers Real Estate and Starwood Mortgage Capital, and Pierhouse (Brooklyn Pier 1 Residential Owner).
In his decision, Justice Knipel mentioned the difference between two surveys: one created by the Santec Corporation in 2012 for the city, and one created by Arkadiusz Jusiega for the plaintiffs.
The community groups said that the Santec survey moved reference point “A,” used to frame the scope of SV-1, from the face of the Promenade to a point hanging in mid-air over the Brooklyn Queens Expressway.
The Jusiega survey places point A on the face of the Promenade. Based on this placement, Jusiega writes, “It is my professional opinion that the penthouse wall encroaches 19.25 [feet] inside the Scenic View Reference Line …”
Justice Knipel did not rule on the placement of point A per se. Instead, he noted in his decision that plaintiffs had failed to protest a representation made by NYC’s Corporation Counsel at a prior court appearance (in April 2015) that “nothing pierces the scenic view plane.”
Plaintiffs had “conceded that point and chosen not to pursue their contentions relating to SV-1,” Knipel wrote. “To now rejuvenate prior SV-1 contentions would violate the ancient legal doctrine of res judicata, the matter was (already) judged,” he wrote.
The groups also failed to challenge the final determination of SV-1 until ten months after the Department of Buildings posted it on its website, Knipel wrote. The time provided to contest a zoning approval is 45 days, and the time provided to challenge a governmental determination via Article 78 is four months.
BHA told the Brooklyn Eagle that the group’s Executive Committee is meeting Wednesday morning and the matter of an appeal is on the agenda. It is unknown if BHA will be making a final decision on an appeal at that time.
STVN’s Steven Guterman called Knipel’s decision very unfortunate.
“It rewards the defendants for misleading and outright lying to the public and the courts. The decision is based on time limitations, not the merits of the case,” he said.
“In all documents produced by defendants from 2005 through 2013 the Scenic View Framing line is in the correct position, the exact same position that was determined by our surveyor,” Guterman said. “Yet in their court filing they claim the ‘new interpretation’ was presented in 2012 and Judge Knipel used that incorrect fact as the basis for time barring our claim. The shrinkage of the Scenic View Area did not occur until 2015, and the fact the SV-1 region had been shrunk so that Toll Brothers could oversize the penthouse was never publicly disclosed.”
Brooklyn Bridge Park said it had no comment on Knipel’s decision.
The SV-1 district extends over an area west of the Brooklyn Heights Promenade to protect the views of the Lower Manhattan skyline, Governors Island, the Statue of Liberty and the Brooklyn Bridge.