Brief in Support of Preliminary Injunction

Brief in Support of Preliminary Injunction

Alicia Boyd’s Support for Petitioner’s Preliminary Injunction

The Petitioners are seeking a Preliminary Injunction to prevent the property owners from developing their properties under the new zoning laws until a final determination has been made in the case.

There are three conditions that Petitioners must meet in order for a Preliminary Injunction to be granted.

1. Probability of Success on the Merits of the Case
2. Irrevocable Harm Done if the Preliminary Injunction is Not Granted
3. Balance of Equities in Favor of the Petitioners

Probability of Success on the Merits of the Case

Petitioners have a high probability of success on the merits of the case, because the courts have a very low threshold for cities conducting a EIS for proposed developments, especially where the development is breaking a Community Plan that was put in place to prevent the exact condition that is now occurring.  In this case a 1991 Community Plan was passed to protect The Brooklyn Botanic Garden (BBG) and the community from high rise towers and the new zoning broke that plan to build high rise towers.

Additionally, the Courts and the law are very clear that all possible developments must be considered together, called “cumulative impacts” so the the full environmental effects of proposed developments may be disclosed.  However, this did not occur.  In fact, over half of the lots being rezoned were never assessed nor was the larger development project being proposed by Continuum right next door.

Irrevocable Harm

Irrevocable harm means that if Petitioners did win, and the developers were allowed to build before the case has been decided, it would make their winning meaningless, because the builder will not be able to un-build their development.  Thus Petitioners and the Community would suffer irrevocable harm if the developers are allowed to build while the case is pending.

Additionally, the whole point of the lawsuit is that an EIS was not done and if one is done lawfully, it is possible that the developers would not be allowed to build as tall as the current rezoning allows.  An EIS would “mitigate” the negative consequences thus forcing the developers to reduce the heights of their buildings.

The Balance of Equities are in Favor of Petitioners

Damage To BBG
This means the court has to decide who would be harmed the most by the Preliminary Injunction: the Developers who will not be able to build or the Petitioners who represent the public and BBG within the lawsuit.  Please note that BBG is a public asset, despite it being run by a private non-profit organization.  BBG belongs to the people and thus the people have a right to protect it within a lawsuit.

Petitioners have provided the court with sworn statements by BBG’s staff that were done on March 25, 2019 to establish that harm would be caused by this proposed development. One of BBG’s staff members testified that over half of the plant collection of BBG plant life will be destroyed within 10 years.  Also there are 23 areas within BBG that will be negatively affected by these developments along with thousands of plant life and a few hundred being rare species.

Damage to the Birds

The New York City Audubon Society, which is highly respected and well known non-profit science-base conservation who’s mission is to protect the 350-plus bird species, also gave testimony as the endangerment of over 291 species of birds that pass through BBG and call BBG its home.  The proposed development which is currently a wall of reflective glass, would result in thousands of birds experiencing brain trauma, neck injury and/or death.

Alienation of Park Land

One of the most important findings is the fact that BBG is actually a specialized park, who’s primary purpose is to develop and maintain a garden and scientific inquiry for the public.  This land was given to New York City from the State of New York for this purpose in 1897.  Petitioners assert that just as air-rights are being transferred and built, the air and sunshine over the garden are a part of the BBG and when a developer takes away that air and sunlight and by doing so interferes with BBG’s ability to function as to its primary mandate, then the city is engaging in the “Alienation of Park Land”.  That means they are giving away the part of the park, to the developers.

However, there are state laws that prevents municipalities within New York State from giving away park land/air without authorization from the state legislator through an legislative decree.

The developers have actually stated that no one has even attempted to develop the land that was rezoned and thus a Preliminary Injunction isn’t even necessary.  However, two months after the lawsuit was filed the new property owners of 1 out of 16 lots that were rezoned, has submitted building plans under the new zoning laws.  This permit however, was not granted because of the current case under review by the court and the TRO that is in place.

Motions To Dismiss

Both Respondent City and Cornell have placed Motions To Dismiss papers against the Article 78 claiming that Petitioners did not include necessary parties onto the lawsuit and because there is a 4 month statute of limitations, which has expired, (on April 26, 2019) the case should be dismissed.

This means that instead of fighting the merits of the Article 78, the City and the developer simply want the case dismissed because a necessary party has not been included in the lawsuit.

Cornell has made claims that they sold both properties that they were representing during the rezoning after the application had been certified and a negative declaration done by DCP, thus an EIS was not conducted. Thus by selling the property, before the the rezoning was finalized, Cornell believes they should be removed from the lawsuit and the new owner of one of the properties CP VI should have been placed on the lawsuit. However due to the 4 month the statute of limitations having expired, the new owners can not be joined and thus the lawsuit should be dismissed.

The City is basically stating the same thing, except they are making the claim that new owners CP VI were replaced on the rezoning application and Cornell Realty was removed off of it.