Judges Side with Developers in Multiple Lower Manhattan Disputes
In recent weeks, New York courts have delivered setbacks to multiple teams of Lower Manhattan activists fighting to stop large development plans they deem harmful to their communities. In addition to the recent reversal of a court victory for opponents of the proposed tower at 250 Water Street in the South Street Seaport (“It’s Hard to Fight City Hall,” July 7, 2023, BroadsheetDAILY), a separate decision from the State Supreme Court’s Appellate Division ruled on June 27 that a proposal to build affordable housing for low-income seniors on the site of the City-owned Elizabeth Street Garden can proceed.
On the site of the current garden, the City plans to build Haven Green, which is slated to include 123 units of senior housing, a headquarters for Habitat for Humanity New York City, and a flexible community activity space. The “deeply affordable” apartments (with monthly rents ranging from $331 to $761) will be set aside for seniors with incomes ranging between $20,040 and $40,080 per year, with about 30 percent of the apartments reserved for seniors who were once homeless.
Critics of the plan, who wish to preserve the open space and propose to locate a comparable affordable housing project on another City-owned lot nearby, argued that the City’s Department of Housing Preservation and Development (HPD) had been “arbitrary and capricious” in its finding that the project would not have negative impact on community’s environment. (This determination by HPD expedited the development process, because it meant that a full environmental review was not legally required.) Last November, a State Supreme Court ruling handed these opponents a victory, finding “the reduction in open space ratios is sufficient to indicate the presence of a significant adverse impact.”
But in June, the Appellate Division of the Supreme Court’s First Judicial Department reversed this win, ruling that HPD appropriately “identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination.” Barring a further review by the State’s Court of Appeals, this ruling may clear the way for the Haven Green project to proceed.
In a parallel development, opponents of the planned development of a cluster of super-tall residential towers proposed for the Two Bridges neighborhood of East River waterfront in Lower Manhattan were dealt a loss by State Supreme Court Judge Arlene Bluth in April, when she dismissed a suit brought under the New York Constitution’s newly enacted “Green Amendment.” This measure, ratified in 2021, promises that “each person shall have a right to clean air and water, and a healthful environment.”
The opponents argued that three separate development projects (which will create a total of 2,700 new apartments in four towers), all proposed for sites within a few blocks of each other, would negatively affect local air quality, the amount of nearby open space, and result in the loss of light. This was the first legal action brought under the Green Amendment.
“How the Green Amendment will be interpreted over time is unclear,” Judge Bluth acknowledged, while also ruling that, “the Court hesitates to create a brand-new route to challenge developments on an environmental basis, which is exactly what plaintiffs’ action would entail…. The substantive rights conferred by the Green Amendment surely do not create a right to recast previously rejected efforts to stop a development.”
“The problem for this Court is that the demands here are based upon what plaintiffs contend is going to happen—a prediction is not a basis to sustain a cause of action,” she continued, while cautioning that her decision “does not stand for the proposition that the Green Amendment is merely a statement of principles.”
As with the case of Haven Green, this decision may signal the final green light that will allow the Two Bridges projects to proceed.