It was the second legal victory in as many months for City Hall in a matter involving a development project approved over community opposition.

An appeals court on Thursday sided with the de Blasio administration in one element of a tangled legal dispute over a proposed development in the Two Bridges neighborhood.

It was the second legal win in as many months for City Hall in a matter involving a development project approved over community opposition. In July, an appeals court ruled that the 2018 Inwood rezoning, which a local judge had annulled, had been proper. That case could now go to the state’s highest court.

This week’s ruling in Two Bridges addressed just one of three lawsuits against the plan.

The controversy is over three applications* filed by four developers for three new mixed-use high-rise projects involving four towers: a 1,008-foot rental tower at 247 Cherry Street by JDS Development Group, a 798-foot dual-tower project at 260 South Street by L+M Development Partners and CIM Group (a joint application), and a 730-foot building at 259 Clinton Street by Starrett Corporation.

According to environmental review documents, the four towers would bring in 11,000 square feet for retail and over 2,700 new residential units to the area; 25 percent of those units will be affordable, and 200 of those 690 affordable units would be set aside for seniors (although the details of how affordability will be measured have yet to be shared).

A ‘minor’ modification?

Two Bridges used to be an Urban Renewal Area, where the city sought to remove blight and create mixed-income housing and employment opportunities. In 1972, the area was designated as a Large-Scale Residential Development (LSRD) area, a district in which the city allows flexibility from normal land-use regulations in order to facilitate the most space-efficient and beneficial site plans for large apartment buildings that span multiple property lots.

A significant element of the controversy over the Two Bridges proposals is the de Blasio administration’s determination that they represented only a “minor modification” of the existing special permit on the parcels and therefore did not require a full public review.

Manhattan Borough President Gale Brewer and local Councilmember Margaret Chin both said the project’s size did not allow it to be a minor modification, and therefore it must undergo a public review process because of its impact on density, construction and traffic on the Two Bridges neighborhood, which serves a historically working class community. 

The City Council and Brewer also contended that the proposed development (the 1,008-foot rental tower at 247 Cherry Street by JDS Development Group) would require the lifting of a 1986 deed restriction at 80 Rutgers Slip, a senior affordable housing building. According to the lawsuit, that deed restriction ensures low-income housing for residents “with disabilities and the elderly in perpetuity,” which the lawsuit alleges was never disclosed by the developers or the Department of City Planning (more details of the lawsuit can be read here).

Last August, a state Supreme Court judge released a decision in favor of the City Council and Brewer’s lawsuit contending that the proposed development must go through the public review process, known as Uniform Land Use Review Procedure or ULURP for the large-scale development proposed for the Two Bridges area. Supreme Judge Arthur Engoron ruled in favor of the Council and Borough President Gale Brewer in their lawsuit saying any other measure would cause “irreparable harm.”

Welcomed by developers

In the latest ruling, the Supreme Court, Appellate Division, First Judicial Department panel of judges said in their decision: “[W]e find, as a matter of law, that the buildings described in the applications did not conflict with applicable zoning requirements and that, therefore, the [City Planning Commission’s] approval of the applications has a rational basis and is not contrary to law. Specifically, we find no error in CPC’s determination that the project did not require a special permit, and was therefore not subject to the Uniform Land Use Review Procedure (ULURP). Accordingly, the Supreme Court’s order should be reversed.”

The de Blasio administration welcomed the ruling.

“New York is more than ready for 700 new affordable homes, new and improved open spaces, an ADA-accessible subway station and $12.5 million in improvements to NYCHA. This ruling now makes it possible. The Planning Commission was on firm legal ground as it moved these important projects forward without subjecting them to ULURP procedures.  The Court reached the right result and New Yorkers will reap the benefits sooner because of it,” said James E. Johnson, Corporation Counsel for the city’s Law Department, in an email statement to City Limits.

In a statement, the developers said, “We applaud the court’s decision, which makes clear that these projects were lawfully approved and comply with zoning that’s been in place for more than 30 years. Private investments in affordable housing and essential community infrastructure are even more critical as the city emerges from the COVID-19 crisis.”

The project’s critics did not say whether or not they planned to appeal.

“We, the City Council and the Manhattan Borough President, sued the administration here because we believed that the community needed a seat at the table for a proposal which would add close to 3,000 units of majority luxury housing within a three block radius in a historically affordable and diverse waterfront neighborhood, and will pierce through a low-income senior building,” said City Council Speaker Corey Johnson, Chin and Brewer in a statement to City Limits. “We’re disappointed in today’s decision to overturn the lower court’s ruling in our favor and are evaluating our options.” 

Decision: Opponents had options

The four-judge panel wrote in their decision the Zoning Resolution, which establishes the zoning districts for the city and the regulations governing land use and development, allows the City Planning Commission to issue special permits to waive, vary or modify certain zoning resolution provisions relevant to large-scale residential districts (LSRD) and the zoning resolution provides for “greater flexibility” within LSRDs. It also said the petitioners, in this case the City Council and Brewer’s office, had plenty of opportunities to mitigate the issues and concerns raised by the community beforehand.

“In reaching this result, we are mindful of petitioners’ concerns that their constituents have had limited input on the proposed development’s potential effects on their neighborhood, including increased density, reduced open space and the construction of a large number of luxury residences in what has been a primarily working class neighborhood of low to medium rise buildings. However, existing law simply does not support the result petitioners seek,” wrote the judges.

“Petitioners could have taken steps to amend the [Zoning Resolution] to prohibit buildings of this scale in the area, and/or to amend ULURP to add to the categories of land use actions requiring review, through legislation and/or referendum. In addition, petitioners could have taken steps before expiration of the Two Bridges Urban Renewal Plan by its own terms in 2007 to amend the [Zoning Resolution] to include the Urban Renewal Plan’s greater restrictions, including a preference for low to medium rise buildings. Petitioners could have also sought to change the zoning classification of the Two Bridges neighborhood. Having failed to do so, petitioners cannot seek a remedy in the courts,” read the decision.

“The appellate division made it very clear that the City Planning Commission has the right under the current law to do what they did. I think this is just another indication where the Appellate Division is saying to the lower courts, ‘You cannot legislate.’ If groups believe that the law is wrong, then they have ample recourse through their local City Council to change the rules. But you can’t change the rules through the courts,” said Ross Moskowitz, a real estate and land use partner at the law firm Stroock. “This decision, plus the recent decision allowing Inwood rezoning to proceed are all positive news for development going forward. Hopefully, this will give lower courts some pause before rendering these decisions that are getting overturned.”

Other cases persist

There are two other lawsuits on the Two Bridges development proposal which have also been appealed by the de Blasio administration and the developers. 

In February this year, Engoron said the city had failed to abide by zoning rules governing “large-scale residential districts” like Two Bridges as he ruled on two separate lawsuits brought by the Lower East Side Organized Neighbors, Chinese Staff & Workers Association, Youth Against Displacement and National Mobilization Against Sweatshops, Good Old Lower East Side (GOLES), Tenants United Fighting for Lower East Side (TUFF-LES) and Committee Against Anti-Asian Violence (CAAAV) lawsuit.

“The remaining suits do not argue that the changes require ULURP,” said Paula Segal, who represents Good Old Lower East Side (GOLES), Tenants United Fighting for Lower East Side (TUFF-LES) and Committee Against Anti-Asian Violence (CAAAV) lawsuit. “We are arguing that the changes require ‘authorization’ by the City Planning Commission, which can only be done if the City Planning Commission makes specific enumerated findings in the [Zoning Resolution].”

Segal said the CPC never made those findings or “even purport to grant an “authorization.”” In the City Council and Brewer lawsuit contended ULURP was necessary. The Appellate Division, First Department, ruled it was not. 

*Clarification: This story was edited after the initial publication mentioned there was a joint application by all four developer groups. It has been clarified to reflect there are three seperate applications, one of which is a joint application.