Brooklyn Heights Pier 6 fight now in judge’s hands for decision

Applause in courtroom following arguments

November 15, 2017 By Mary Frost Brooklyn Daily Eagle

The case of the Brooklyn Heights Association vs. two controversial towers in Brooklyn Bridge Park is in the hands of the judge now. Rendering courtesy of ODA-RAL Development Services / Oliver’s Realty Group

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The judge overseeing the legal battle over two residential towers going up at Pier 6 in Brooklyn Bridge Park tried several times to encourage the adversaries to reach a settlement during Wednesday’s final day of oral arguments at the Civil Branch in Manhattan.

But the Brooklyn Heights Association (BHA) and the park, along with the towers’ developers, chose to fight on.

The Manhattan courtroom of state Supreme Court Justice Carmen St. George has been consistently packed over the course of four hearings. St. George took the case over in August from Justice Lucy Billings, reassigned to oversee asbestos cases.

St. George, who has taken an active interest in the case, left no opportunity behind to encourage both sides to consider building one taller tower — which would house both affordable and luxury units — rather than the 28- and 14-story towers currently proposed for the Pier 6 site at the southern end of the park.

As it stands, the 28-story tower (Tower A) will house luxury units while the shorter tower (Tower B) will house 100 units of affordable housing, a priority of Mayor Bill de Blasio’s administration. The mayor has been pushing hard for the development through his proxy on the park’s board, Deputy Mayor Alicia Glen.

When arguments turned to the reliability of real estate prices in New York City, St. George interjected, “Which is why one tower makes sense.”

When park attorney David Paget talked up the park’s “quintet of affidavants” who favored building the tower, St. George asked, “Has the quintet ever considered one big tower and the use of other space for non-remunerative uses — perhaps in another space nearby?”

When park attorney Haley Stein claimed that moving the 100 affordable apartments to Tower A would entail the loss of an up-front payment of $72 million and PILOT (Payments in Lieu of Taxes) income of $1.2 million — figures objected to by BHA attorney Richard Zeigler, who said they weren’t in the record — the judge said that she would be happy to revisit the discussion of raising the height of the building to make up for the loss.

“Why not one building?” St. George asked.

Stein replied that that would require raising the tower more than 100 feet, and the option was never presented to the board.

“Present it now,” the judge suggested. “Before I make my ruling, you should consider it,” she warned.

Stein and Paget attempted to make the case that what the park did in approving the Pier 6 project was “reasonable and rational — to rely on its experts, on the financial data, to not put the park at risk and to not take on millions in debt.”

BHA’s Zeigler maintained that the park made several errors of law, including violating the park’s General Project Plan (GPP), and by acting as the lead agency when it comes to the project’s environmental review. Zeigler said that ESD is the lead agency in this case, and ESD did not consider the issue of whether a Supplemental Environmental Impact Statement (SEIS) was needed.

Wednesday’s legal arguments were so compelling to those in attendance that applause broke out at the hearing’s conclusion, and St. George thanked both sides for their “fantastic” preparation.

BHA attorney Zeigler said after the hearing, “We had a full and fair opportunity to argue our position with Justice St. George, and we look forward to her ruling.” He added, “She was very generous with her time.”

His sentiment was echoed by Eric Landau, president, Brooklyn Bridge Park, who said following the hearing, “We’re pleased to have presented our case and now look forward to the judge’s ruling.”

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Some of the arguments:

BHA says Pier 6 project violates General Park Plan

In June 2016, the park’s board voted to approve the joint venture of RAL and Oliver’s Realty Group to develop the two residential buildings at the Pier 6 site.

BHA says the park’s approval of the project, however, violates the law that governs development at the park. An agreement with the city, codified in the General Project Plan (GPP), says “the intention [of the developments] being to build only what is necessary to support annual maintenance and operations.”

The BHA argues that local real estate values have increased dramatically, thus bringing in more income than the park projected, and says that the park corporation hasn’t made a case showing financial need for the Pier 6 development.

Park attorney Paget, however, challenged that reading of the meaning of the word “intention” in the GPP.

The word “’intention’ can’t be conflated with ‘mandatory,’” he told the court, maintaining that there is no “mandatory requirement to maximize revenue at every development in the park.”

St. George asked BHA attorney Zeigler if affordable housing was a necessary part of the project.

While BHA supports affordable housing, “the GPP does not permit it,” he said. The GPP would have to be modified to allow for affordable housing, he said.

Maritime maintenance method

Attorneys representing the park argued that the park corporation board, with input from experts, had determined that income from the entire Pier 6 development is needed to fund the park, especially since the park plans to pre-emptively replace all of the timber piers much of the park rests on.

In February, Brooklyn Bridge Park President David Lowin contended that without the Pier 6 development, the park would run out of money “almost immediately” if it launched this pre-emptive maritime maintenance program. If, however, the park maintains its marine infrastructure on an as-needed basis, he said, the park would run out of money by 2028.

Park attorney Stein said the park needed $100 million up front to start the pre-emptive maintenance.

“Every year it’s delayed costs the park millions,” she maintained.

The judge, however, told Stein she was not in agreement with this financial assessment and its consequences.

“Thank you for letting me know that,” Stein said.

Need for a new environmental study? Who’s in charge?

BHA’s Zeigler said that a Supplemental Environmental Impact Statement (SEIS) is needed due to the changes that have taken place in the surrounding area since 2005, when the original environmental impact study was carried out.

These changes include, for example, overcrowded schools. Last year, Sub-district 2’s schools were operating at 108 percent of capacity, and substantial development in the area is expected to drive enrollment to roughly 135 percent capacity, even without Pier 6.

In 2015, community groups, officials and local residents testified before the Empire State Development Corp. (ESD) that an SEIS should be required in light of the exploding development and changed conditions in Brooklyn. ESD directors at that time left the door open to consideration of an SEIS.

According to law, only the lead agency can decide if an SEIS needs to be carried out.

Park attorney Paget said that it was unlawful under SEQRA for ESD to continue to be lead agency after 2010, as that role moved to the park. It was the park that determined that no further environmental study needed to be done.

According to Paget, the only thing that remains of ESD’s responsibility as a lead agency is the responsibility to determine if there is compliance with the GPP. ESD only acts if a modification to the GPP is needed, he said.

Zeigler, however, pressed the case that ESD, not the park, remains the lead agency in this respect.

According to the RFP issued by Brooklyn Bridge Park Corporation in July 2014, ESD, on behalf of the Brooklyn Bridge Park Development Corporation (BBPDC) “will act as the lead agency and review the proposal to confirm its compliance with SEQRA (State Environmental Quality Review Act).

This was never legally changed, Zeigler said.

“The day before the board meeting, Brooklyn Bridge Park Corporation sent a letter to ESD saying ‘we’re going to be lead agency,’” Zeigler said. “There was no public discussion, no record that ESD acquiesced.”

As lead agency, ESD was legally required to take the “hard look” in order to make a “reasoned decision,” Zeigler said. “ESD took no hard look at how circumstances changed from 2005 to 2016 … and issued no elaboration.” He claimed the park’s stance represents an “error of law.”

St. George asked, “If ESD is the lead agency that should make that decision, then this case should be sent back for the purpose of an environmental study over the past 11 years to decide if it should be built?”

The environmental study is an important “threshold argument,” Zeigler responded. If the court goes no further than this point, it could decide that the lead agency never weighed in on the question.

A new environmental study would, at the least, delay construction on the project.

Throughout the seven months of the lawsuit, legal counsel for BHA was up against multiple major law firms representing city and state agencies and private developers. BHA is suing the Brooklyn Bridge Park Corporation (BBPC); Empire State Development Corporation (ESD) and its subsidiary, the Brooklyn Bridge Park Development Corporation; and developers RAL Development Services and Oliver’s Real Estate Group.