Crown Heights

Lawsuit inches forward against Franklin Avenue rezoning near Brooklyn Botanic

August 2, 2019 Lore Croghan
Activists say the Brooklyn Botanic Garden is threatened by towers that could be built nearby on Carroll and Crown streets. Eagle photo by Paul Frangipane

A Brooklyn judge is taking it one step at a time in a legal challenge to Crown Heights developments that activists say would cast harmful shadows on the Brooklyn Botanic Garden.

Brooklyn Supreme Court Justice Reginald Boddie focused on a single procedural issue at a Friday hearing in the lawsuit against rezoning for high-rise apartment construction at 931 Carroll St. and 40 Crown St.

Boddie heard arguments solely on whether the Article 78 case should be dismissed because of the manner in which the suit was served on defendant — or respondent, as it’s called in this type of suit — Cornell Realty Management. (An Article 78 proceeding refers to the fact that government entities and officials are being sued.)

Cornell’s counsel, Maya Petrocelli of Abrams Fensterman, argued the case should be dismissed because a representative for petitioners — which means plaintiffs, in this case — handed the service papers to a lawyer for Cornell. That attorney was not authorized to receive the suit on Cornell’s behalf, Petrocelli asserted.

The judge did not consider motions concerning the other respondents: City Councilmember Laurie Cumbo, the Department of City Planning, its Director Marisa Lago, its Brooklyn Director Winston Von Engel and the city Buildings Department.

Activist Alicia Boyd, who’s in the second row of stairs in the center of the picture, poses with people who are concerned about shadows that could be cast on the Brooklyn Botanic Garden by nearby developments. Eagle photo by Lore Croghan
Activist Alicia Boyd, who’s in the second row of stairs in the center of the picture, poses with people who are concerned about shadows that could be cast on the Brooklyn Botanic Garden by nearby developments. Eagle photo by Lore Croghan

Alicia Boyd, one of the petitioners, cited case law to rebut Petrocelli’s argument. Boyd and her fellow petitioners — LaShaun Ellis and Michael Hollingworth — are handling the case pro se, meaning without a lawyer.

The judge said he would not dismiss the case. Instead, he scheduled a Sept. 9 “traverse hearing,” which means both sides will bring witnesses and documentation concerning the service of a suit, and the judge will decide whether it was properly carried out.

At one point, to compliment Boyd’s effectiveness in the courtroom, the judge asked her, “Are you going to law school soon?”

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Nevertheless, he told the neighborhood activist that traverse hearings are complicated and she and her fellow petitioners might want to hire a lawyer to handle the proceeding for them.

In April, the petitioners won a temporary restraining order barring all construction at 931 Carroll St. and 40 Crown St., including the pouring of concrete.

Boddie said on Friday that this order will remain in place until the September hearing.

The City Council upzoned these sites in a December 2018 vote that was the culmination of a Uniform Land Use Review Procedure, or ULURP, called the Franklin Avenue Rezoning.

The petitioners’ supporters filled the courtroom on Friday. Many wore flowers in their hair or clothing with floral designs to show their concern for shadows they believe the developments would cast on famous 52-acre Brooklyn Botanic Garden for more than three hours per day.

Neighborhood zoning enacted in 1991 to protect BBG capped new development at around seven stories.

An Article 78 suit challenges the zoning for the towers in this drawing. Rendering via the Department of City Planning
An Article 78 suit challenges the zoning for the towers in this drawing. Rendering via the Department of City Planning

Earlier this week, the century-old garden opened an exhibition called “Fight for Sunlight” focused on the threat posed by twin towers, each 39 stories tall, proposed for the Spice Factory. That property is not a target of Boyd, Ellis and Hollingsworth’s lawsuit — it’s in the same neighborhood as the sites on Carroll and Crown streets but is separate from them.

“There is nothing that is sacred to developers,” Boyd said at a press conference after Friday’s hearing. “If we do not demand that justice is done, justice will not be done.”

Follow reporter Lore Croghan on Twitter.

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  1. Ro from Park Slope

    It’s time for a moratorium on construction. Why are we doing this to our blocks? to our quality of life? Who is the winner? Save our neighborhoods. Save our skies. Fill all the empty apartments that people use as “investments” for themselves and not for the community.