Boerum Hill residents stage court battle against 80 Flatbush upzoning

July 11, 2019 Lore Croghan

The City Council approved upzoning for 80 Flatbush Ave. last year. Rendering by Alloy Development/Luxigon

A vote for dense development

The upzoning the Educational Construction Fund and Alloy Development obtained through the city’s ULURP, or Uniform Land Use Review Procedure, increased the site’s floor area ratio to 15.7 from 6.5.

Floor area ratio is the total square footage on all the floors of a building divided by the square footage of the land on which it stands. Higher FAR numbers mean denser development.

A Boerum Hill block association is fighting a legal battle against the city over the upzoning of 80 Flatbush Ave. Rendering by Alloy Development/Luxigon

Hearings during the ULURP process drew testimony from both fierce opponents and strong supporters of the project. Community Board 2 voted resoundingly against the application. The board’s vote, however, was advisory only, and the City Council voted in favor.

The Boerum Hill residents who are pursuing the suit hope that if it’s successful it “may establish a recalibration — not only in New York City, but in other major urban environments — towards a responsible, livable and modern concept of urbanization,” they said in a press release.

The argument against

In 2004, the Special Downtown Brooklyn Zoning District designated the block where the 80 Flatbush Ave. site is located as a buffer between low-rise brownstone Boerum Hill and high-rise Downtown Brooklyn.

“The destruction of this buffer for profit constituted unlawful and constitutionally impermissible spot zoning,” a June 27 memorandum by residents’ attorney Walter Jennings asserts.

Jennings argues in the memorandum that this amounted to “illegal contract zoning”— in other words, zoning granted by a municipality that benefits a private company and not the general public.

The skyscraper across from the Williamsburgh Savings Bank Clocktower is 80 Flatbush Ave. Rendering by Alloy Development/Luxigon

“The City Respondents made a deal with the Developer Respondent, a private company, to change the zoning at the 80 Flatbush site to allow the Developer Respondent to build a luxury housing skyscraper in a single-family-home, low-density area, in consideration for the Developer Respondent’s promise to build schools and a negligible amount of affordable housing,” he asserts.

“Indeed, what occurred here was not zoning, it was legislative action, bought and sold,” he added.

The rezoning was “arbitrary and capricious and an abuse of discretion” and will cause “drastic environmental and land-use impacts” in residential Boerum Hill, Jennings wrote.

The argument in favor

In a May 3 memorandum, lawyers for the Educational Construction Fund and the government entities targeted by the lawsuit assert that “the Project is designed to address multiple compelling community needs” and “certainly is not designed for the sole benefit of Respondent Developer.”

The development will deliver “public benefits to support the general welfare of the community” worth approximately $220 million, the lawyers wrote.

School construction will be worth $110 million. There will be a new building that Khalil Gibran International Academy can move into so it can vacate its current 19th-century home, which is located on the 80 Flatbush site. The developer has also agreed to construct a new 350-seat elementary school and 200 units of affordable housing worth an estimated $120 million.

“80 Flatbush went through an exhaustive public review process that included more than 120 community stakeholder meetings, received overwhelming support from the City Planning Commission and the City Council, and has broad support in the neighborhood and citywide,” said a spokesperson from Alloy Development.

As for the Boerum Hill residents’ challenge to the constitutionality of the 80 Flatbush rezoning, the respondents’ attorneys cite a Court of Appeals ruling.

That ruling says, “Because zoning is a legislative act, zoning ordinances and amendments enjoy a strong presumption of constitutionality and the burden rests on the party attacking them to overcome that presumption beyond a reasonable doubt.”

Oral arguments in the case are set for July 19 before Justice Melissa Crane in Manhattan Supreme Court.

Follow reporter Lore Croghan on Twitter.

Update (3:30 p.m.) — This story has been updated with comment from Alloy Development.