New York Court Denies Challenge to Affordable and Market-Rate Residential Development Bordering Brooklyn Bridge Park


By: Jonathan Kalmuss-Katz

On February 15, 2018, a New York State Supreme Court Justice dismissed a challenge to the development of two residential buildings upland from Pier 6 in Brooklyn Bridge Park (the “Pier 6 Development”), affirming the Brooklyn Bridge Park Corporation’s (“BBP”) approval of a project that will generate necessary revenues for the Park’s operations and maintenance and provide 100 units of affordable housing.  Sive, Paget & Riesel defended the suit on behalf of the New York State Urban Development Corporation; the Brooklyn Bridge Park Development Corporation; and, as co-counsel with the New York City Law Department, BBP.

The Pier 6 Development, which is currently under construction, occupies the last of five parcels that were set aside for residential and commercial development in the Park’s General Project Plan (“GPP”).  After the BBP Board approved development leases in June 2016, the Brooklyn Heights Association (“BHA”) filed suit the following month to overturn those approvals.  BHA argued that BBP had violated the GPP by approving development that was not necessary to support Park finances and violated the State Environmental Quality Review Act (“SEQRA”) by failing to prepare a Supplemental Environmental Impact Statement (“SEIS”), among other claims.

The suit was initially assigned to Justice Lucy Billings, who denied BHA’s request to preliminarily enjoin the construction of the Project in August 2017.  The case was later re-assigned to Justice Carmen Victoria St. George, who heard additional oral argument in the fall and winter of 2017 and authored the decision dismissing BHA’s petition.

Justice St. George rejected BHA’s claim that the GPP requires BBP to “reduce the height or footprint of a proposed building when Park finances permit it” and upheld BBP’s approval of affordable housing in one of the project buildings.  In dismissing BHA’s challenge to the financial necessity of the market-rate development, the Court held that BBP was entitled “to make conservative projections to ensure [the Park’s] future financial stability” and that BHA’s disagreement with BBP’s expert financial analyses did not provide a basis for reversal.

With respect to SEQRA, the Court found that BBP had taken a hard look at project changes, new information and changed circumstances since the Park’s 2006 Final Environmental Impact Statement and rationally determined that the Pier 6 Development did not require the preparation of an SEIS.  The Court upheld BBP’s use of the City Environmental Quality Review (“CEQR”) Technical Manual to guide the project’s SEQRA review and explained that BBP was not required to reevaluate project alternatives in light of changes to the Park’s financial condition, as “finances are not within the scope of a SEQRA review.”

Sive, Paget & Riesel has represented BBP and other governmental entities with respect to the creation of the Park and the development of other Park-adjacent properties.  For additional information on the Court’s recent decision or the development of Brooklyn Bridge Park, contact David Paget or Jonathan Kalmuss-Katz.