Gowanus group, augmented by well-known environmental lawyer, files suit against rezoning plan

March 1, 2022 Brooklyn Eagle Staff

A bridge over the Gowanus Canal, showing the area as it would appear under the rezoning plan. Rendering courtesy of Department of City Planning

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This past November, after years of debate, the City Council overwhelmingly passed the Gowanus Rezoning Plan. Among the plan’s active supporters were then-Councilmember (and now Comptroller) Brad Lander, the Gowanus Canal Conservancy, the Fifth Avenue Committee, and then-Councilmember Steve Levin.

In August of that year, then-Borough President (and now Mayor) Eric Adams, according to Eagle articles, also said he supported the plan — but with the caveat that as part of it, the city would provide nearly $300 million in capital funding for NYCHA’s Gowanus Houses and Wyckoff Houses.

However, the opponents of the rezoning plan, especially the community coalition Voice of Gowanus, haven’t been dormant by any means.

This week, the group, augmented by friends and Residents of Greater Gowanus (F.R.O.G.G.) and area residents, filed a new lawsuit “vigorously attacking the profoundly illegal rezoning, highlighting multiple violations of federal and state environmental law.”

Attorney Richard Lippes, a veteran of the Love Canal and Three Mile Island environmental legal battles, serves as counsel to Voice of Gowanus. He said the suit rises to another level because of the what the group termed “the unique cocktail of health and safety risks and ongoing environmental injustice not addressed by government officials in Gowanus.”

Gowanus residents rallied in 2019, calling for a moratorium on the neighborhood’s rezoning. Eagle file photo by Scott Enman

“I have tried many environmental law cases in my decades as a lawyer, but the Gowanus rezoning involves an exceptionally egregious set of failures to comply with the law,” said Lippes. “This is one of the most complex cases I have seen: the cascading, overlapping failures to comply with state and federal laws is stunning. This is not your run-of-the-mill environmental case. It rises to another order of magnitude entirely.”

The suit attacks what it terms the failure of the Gowanus rezoning to abide by the National Environmental Protection Act and the National Historic Preservation Act. It also asserts that the rezoning’s environmental impact statement violated the New York State Environmental Quality Review Act, Environmental Conservation Law and the New York State Historic Protection Act.

“Gowanus is not just any old neighborhood. It has a unique and complex set of dangerous toxic pollution, flooding, and sewage overflow problems that have plagued our most vulnerable populations for decades,” said Katia Kelly of Voice of Gowanus, a petitioner in the suit. “We tried to warn city officials they were getting it deeply wrong—as did the EPA and Congressmember Nydia Velazquez—but the city refused to listen. Instead they sold out to developers, putting thousands of people unjustly at risk. So, we’ll see them in court.”

In September 2021, Velazquez and Assemblymember Jo Anne Simon called on the city to re-do the environmental impact study for the rezoning in the wake of Hurricane Ida. They claimed the study did not adequately take into account the impact of climate change in Gowanus or combined sewer flow into the canal, according to an Eagle article at the time.

According to the new lawsuit, City Planning failed to file a Findings Statement regarding the proposed Gowanus rezoning as required by state law. An environmental impact statement alone is not sufficient to comply with the law, the lawsuit says, and the city chose to treat Gowanus differently than other neighborhoods while violating the law.

In addition, multiple state and federal agencies such as U.S. EPA were not formally included in the rezoning process as “Involved Agencies” as required, the lawsuit charges. The suit also makes several other charges — for example, it says that the rezoning failed to engage in required state and federal historic preservation review procedures.

“EPA has confirmed that toxic chemicals have migrated off the heavily polluted site of a former manufactured gas plant which was approved for housing and a school under the rezoning,” said Steve Marcus of Voice of Gowanus, a petitioner and also a member of the EPA’s Gowanus Superfund Community Advisory Group.

Supporters of the rezoning plan have said that, in Levin’s words, it “truly benefits the community by providing up to 3,000 permanently affordable apartments, substantial investments in the capital needs of Wyckoff Gardens and Gowanus Houses, and improvements in our public spaces and drainage infrastructure.”

At the same time, then-Parks Commissioner Gabrielle Fialkoff said, “Built on parks and public space equity, the Gowanus plan offers a model of green urbanism, not just for New York City but for the rest of the country.”