Boerum Hill

Lawyers trade barbs in 80 Flatbush upzoning case

July 19, 2019 Lore Croghan
A Manhattan judge heard oral arguments on Friday in a case opposing 80 Flatbush Ave.’s upzoning. Rendering by Alloy Development/Luxigon

The City Council’s approval of the upzoning of 80 Flatbush Ave. last year “was anything but a rubber stamp,” a lawyer for the New York City Educational Construction Fund said in a court hearing on Friday.

“Public benefits drove this project,” Lawrence Bartelemucci asserted in oral arguments before Manhattan Supreme Court Justice Melissa Anne Crane.

The public benefits the 80 Flatbush mega-project will deliver include a new elementary school and a high school to replace Khalil Gibran International Academy, office space and 200 units of affordable housing, he said.

The suit brought by the 400 & 500 State Street Block Association and its steering committee seeks the annulment of the upzoning — which changed 80 Flatbush’s floor area ratio, or FAR, 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.

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A floor area ratio of 18 was sought originally.

The upzoning also enables the New York City Educational Construction Fund and Alloy Development — which is also being sued by the block association — to construct an 840-foot skyscraper, a 510-foot-tower, 670 market-rate apartments and retail space.

The other entities being sued are the City Council and the City Planning Commission.

The City Council approved upzoning for 80 Flatbush Ave. last year. It’s the skyscraper across from the Williamsburgh Savings Bank. Rendering by Alloy Development/Luxigon
The City Council approved upzoning for 80 Flatbush Ave. last year. It’s the skyscraper across from the Williamsburgh Savings Bank. Rendering by Alloy Development/Luxigon

In her oral argument, Assistant Corporation Counsel Rachel Moston said the fact that the City Council modified the zoning to make the project smaller shows that its approval was not a rubber-stamping.


Moston represents the City Council and the City Planning Commission.

One tower’s height was reduced by 50 feet and the other by 146 feet. The number of residential units was cut and the size of the office space was reduced.

“Zoning is not static,” Moston also said. “The needs of the city change.”

‘A pre-packaged behemoth of a deal’

The City Council voted to upzone the 80 Flatbush site at the conclusion of a Uniform Land Use Review Procedure, or ULURP. Hearings in this public review process were full of impassioned testimony from opponents and supporters. Community Board 2 voted against the rezoning proposal — but community boards’ decisions are purely advisory.

Michelle Itkowitz, a lawyer and a member of the block association’s steering committee, argued before Justice Crane that the project was driven by a need to maximize Alloy Development’s profits.

When the New York Educational Construction Fund, a public corporation, “yoked itself” with private company Alloy through 36 months of negotiations and property acquisition, “it became all about the numbers, Your Honor — getting the numbers needed to pay the bondholders,” said Itkowitz.

In Educational Construction Fund projects, schools are constructed on properties that also have non-scholastic space. They are partly paid for through bonds on the non-school portion of the property.

Itkowitz argued that the Educational Construction Fund’s dealings with Alloy put the City Council in a position of having to give Alloy the zoning it wanted — and compelled the City Council to cross a line between proper and improper conduct.

And the modifications the City Council made to the rezoning proposal resulted in just a 3 percent reduction in the size of the 80 Flatbush development, she said.

“There’s a line between all the stuff we’ve come to expect in politics as usual, between what gets legislation over the line … and a pre-packaged behemoth of a deal that legislation is constrained to approve,” Itkowitz said.

Bartelemucci called these “baseless claims.”

After the hearing, a spokesperson for Alloy reiterated the comment they gave the Brooklyn Eagle for a story we published on July 11.

“It’s a shame that a small handful of wealthy homeowners are making a last-ditch effort to derail a project that will deliver so many public benefits,” the spokesperson said.

“We believe the record will show that the process was lawfully observed and that the decisions reached were well-grounded in the law.”

A Boerum Hill block association sued the city and the developer of 80 Flatbush Ave. over upzoning that was approved last year. Rendering by Alloy Development/Luxigon
A Boerum Hill block association sued the city and the developer of 80 Flatbush Ave. over upzoning that was approved last year. Rendering by Alloy Development/Luxigon

If Justice Crane decides in the block association’s favor, it could “establish a recalibration not only in New York City, but in other major urban environments towards a responsible, livable and modern concept of urbanization,” the group said in a press release issued earlier this month.

A decision in the City Council, the Educational Construction Fund and Alloy’s favor could discourage other community groups from mounting legal challenges to upzoning measures after the City Council has voted them into law.

The 80 Flatbush site, located at the edge of Boerum Hill, is bounded by State Street, Third Avenue, Schermerhorn Street and Flatbush Avenue.

Follow reporter Lore Croghan on Twitter.


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