“Chop off the illegal top floor, no matter what it costs…” That is the strongly-felt opinion of opponents of the Pierhouse project at Pier 1, which partially blocks the view of the Brooklyn Bridge from the Brooklyn Heights Promenade.
But the lawyers arguing in court Thursday used more moderate language in a fight that could be settled, according to the judge, in about three weeks.
After hearing extensive arguments from attorneys representing a group fighting the height of the Pierhouse hotel/condo complex in Brooklyn Bridge Park and the agencies and corporations backing the project, State Supreme Court Justice Lawrence Knipel on Thursday said he would review the written and oral arguments before rendering a decision.
Save The View Now (STVN), a preservationist group fighting to preserve the view of the Brooklyn Bridge, brought what it said was new evidence proving Brooklyn Bridge Park Corp. (BBPC) and developer Toll Brothers “misled the public” about the height of the Pierhouse development. STVN is also suing the city and the Empire State Development Corp. (ESD).
STVN’s attorney Jeffrey S. Baker, from the law firm Young/Sommer LLC, told the judge that the complex’s bulkheads are larger than allowed under the zoning resolution.
“They should have brought the whole building down a floor,” he said.
Lawyers for the developer and the Empire State Development Corp (ESD) called the argument ludicrous.
“It’s tiresome to hear unprofessional remarks attributing villainy to government entities,” one said.
In June, Justice Knipel had ruled that construction could proceed on the Pierhouse, saying the developers complied with the law and the Modified General Project Plan (MGPP). Knipel also ruled that the plaintiffs waited too long to sue, pursuant to Article 78, which covers challenges to government actions.
STVN says recently-obtained copies of leases show that Pierhouse’s bulkhead includes illegal structures, including an enclosed kitchen, food service and preparation areas, six elevators and vestibules and a room for pool equipment.
Baker argued the oversize structures were not mentioned in the leases, which, he said, the group had trouble obtaining after the city set up roadblocks.
STVN submitted an affidavit from architect Lori Bonaventura detailing numerous runarounds and denials in her quest (as well as attempts by a hired expediter) to obtain copies of the leases from the Department of Buildings (DOB). Bonaventura testified that the group only received copies after the intercession of state Sen. Daniel Squadron.
“When we were finally able to get a full set of plans, it was nowhere near the zoning allowance,” Baker said.
Baker also argued that the action was not an Article 78 proceeding, where it would fall under a four-month statute of limitations.
“No evidence submitted identified where there was a government action that brings this under Article 78,” he argued.
Justice Knipel questioned Baker’s assertion that there was no distinct government action that would have triggered an Article 78 proceeding, saying that there were four points when the plaintiffs could had sued, including in September 2014 when a topping off ceremony for Pierhouse was held.
“Isn’t building an action?” he asked.
“No, the developer built the building, not the government,” Baker said. “There is no documentary evidence that approval was given by the government. There is no action or approval by Brooklyn Bridge Park in writing that says you can do this.”
He added that the plans were not filed by the Department of Buildings, but by Toll Brothers. DOB merely checked to see if the plans complied with the zoning resolution, he said.
“Simply because the government sat back doesn’t mean the government did anything,” he said.
He also asserted that the complex was on two zoning lots, not one, as the developer had said, which would affect the zoning requirements.
Steven Barshov, outside counsel for the Empire State Development Corp. (ESD), countered that it didn’t matter whether the Pierhouse was on one lot or two. “They had discretion what type of zoning applied,” he said.
When Justice Knipel asked Baker to speculate on what the park would need to do, Baker said, “They may have to change the General Project Plan to do what they want to do. Stop construction . . . or simply lower the height of the building. Literally take a haircut.”
Too late, says BBP
Attorneys for Brooklyn Bridge Park, Toll Brothers and ESD argued that the action was “basically a disguised Article 78, dressed up as a declaratory judgement.”
“The complaint they drafted, and the proposed amended complaint, attacked government action — Brooklyn Bridge Park’s conduct and decisions,” a park attorney said, calling the legal challenge a “rearguard motion made too late.”
The park’s attorneys also mocked the idea that the leases should be considered new evidence, and maintained that Save The View Now simply did not exercise due diligence.
“Mr. Baker knew the leases existed,” he told the judge. “It was public knowledge. Show me a single step they took prior to your decision to obtain the leases. Did they file a FOIL request, hire an expediter or hire an architect?”
“Plaintiffs did not have copies of the leases in their possession. Does that rise to legal justification? Did they not know where to go to find the leases?” he asked.
Attorneys for the park and ESD also poo-pooed the idea that residents didn’t know how high the building was.
The height of the buildings was “widely publicized” in articles, on websites and at meetings, they asserted.
“We didn’t know” is no excuse when “the building is going up right in front of their face,” one said, adding that the developer had already invested hundreds of millions of dollars and was employing numerous people.
Park and ESD attorneys also argued that the city used the zoning regulations for “guidance” but was not required to adhere to them entirely.
Following the hearing, STVN founder Stephen Guterman said told the Brooklyn Eagle, “It’s very clear that the bulkheads do not conform to zoning resolutions. The defendants admit it. Now they’re saying, ‘We’ll just use them for guidance.’ Brooklyn Bridge Park is back stepping.”
He added, “We think it’s a good thing [Justice Knipel] is taking in the oral arguments along with the written commentary.”
In a joint statement, developers Toll Brothers and Starwood told the Eagle, “Our recently filed papers reinforce our belief that the New York State Supreme Court judge correctly ruled Pierhouse is being built in conformance with the approved project plan. We remain confident that the Court will find these so-called new claims lack merit and are time barred.”
Daniela Gioseffi, one of the plaintiffs in the action, “We’re not big lawyers, we’re just the people trying to save a great cultural icon being destroyed by big money. It’s obscene.”
Noting that the mayor controls the park board, she added, “This will destroy Mayor de Blasio’s legacy – it goes against his tale of two cities. The Promenade is the people’s park. He’s letting the oligarchs win over the people.”