{"id":1545,"date":"2022-12-28T20:03:13","date_gmt":"2022-12-29T00:03:13","guid":{"rendered":"https:\/\/mtopp.org\/?p=1545"},"modified":"2023-01-03T13:17:25","modified_gmt":"2023-01-03T17:17:25","slug":"holding-on-by-a-thread","status":"publish","type":"post","link":"https:\/\/mtopp.org\/index.php\/2022\/12\/28\/holding-on-by-a-thread\/","title":{"rendered":"Holding On By A Thread!!"},"content":{"rendered":"\n\n\n
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Holding on by a Thread<\/strong><\/div>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n\n
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\u00a0On November 9, 2022,\u00a0 we found out that the City and the Developer\u2019s appeal to our successful petition to invalidate the Crown Heights Rezoning was overturned by the 2nd Department in their 4-page decision<\/a>.\u00a0 Of course it came as a shock considering Judge Boddie, the Supreme Court Judge,<\/a> in his 24-page decision<\/a>, did a wonderful and detailed job at showing how the City and the Developers had violated the law and had not performed the required environmental reviews regarding water and sewage impacts.\u00a0 It was clear that we had a stellar case and even our oral arguments in front of the 2nd Department showed how powerful our case was.<\/span><\/div>\n


\nWhat <\/strong><\/span>Was the Main Issue?<\/strong><\/span><\/p>\n

The City and the Developers made the claim that the rezoning of three city blocks from height limits of 6\/7 to 20 story\u00a0buildings would only produce an additional 287 apartments.<\/span><\/p>\n

On the other hand, our evidence showed that just considering 3\/10\u2019s of the land being rezoned, that an additional 200 apartments would be created bringing the number to 437.\u00a0 The law says any rezoning that produces an additional 400 apartments would have to conduct an Environment Impact Statement, \u201cEIS\u201d on water and sewage.\u00a0 However by forging the numbers the developers did not.<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n

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How to Predict the Number of Apartments<\/strong><\/span><\/p>\n

The basic concept in determining the largest number of apartments in a development project is based upon the average size of the apartments.\u00a0 The larger the average sized apartment, the fewer apartments a developer can build. The Developers used the average of 1,000 square feet (Dwelling Unit Factor \u201cDUF\u201d 1,000) in their rezoning application to get a smaller number of apartments, but in reality they planned and could use a DUF 680 to get another 200 additional apartments for just one out of the three projects this rezoning covered.<\/span><\/p>\n

The Evidence\u00a0That Was Produced In This Case.<\/strong><\/span><\/p>\n

Our Evidence\u00a0\u00a0 \u00a0<\/strong>
\n<\/span><\/p>\n

1. CEQR Manual Procedures\u00a0\u00a0 \u00a0<\/a> Pg. 2-10 (2nd paragraph) Which says you must use DUI 680 \u201cZoning Regulation and the smallest number of apartment that can fit into a building.” \u00a0 \u00a0<\/span><\/p>\n

2. Developers Testimony during the ULURP hearings: Page 20 transcribed testimony<\/a>, where they stated that\u00a0they were going to use the DUI 680, the smallest number of apartment sizes.<\/span><\/p>\n

3. Developer\u2019s Building Plans <\/a>which stated they were going to use the DUI of 680, pg 3.<\/span><\/p>\n

4. New York City Zoning Regulations<\/a> – Districts R6-R10 \u00a0=\u00a0DUF 680 (this rezoning was R8), which gets the maximum amount of apartments.<\/span><\/p>\n

 <\/p>\n

Their Evidence<\/strong><\/span><\/p>\n

A self-serving affidavit by a low-level\u00a0employee, named Kevin Kraft,<\/a>\u00a0(2nd Department copied his statement in their decision pg. 3)\u00a0from the Department of City Planning, whom the developers (Cornell and Continuum) had spent over $142, 229 to lobby for this rezoning.\u00a0 Mr. Kraft declared that any rezoning outside of Manhattan will get a DUI 1,000 for the reasonable worst case scenario (worst that can happen).\u00a0<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n\n
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We have one last legal maneuver<\/strong>. And that is go to the Court of Appeals<\/strong> in New York State, which is suppose to oversee the Appellate Division and ensure they do their job, especially when reversing the lower court\u2019s decision.<\/p>\n

But the Court of Appeals only accepts 5% of the cases<\/strong>, which means that the Appellate Court has most of the power and if the developers have control over \u201cthat\u201d court that is all that they need.\u00a0<\/span><\/p>\n

Yes, we filed a Temporary Restraining Order\u00a0 <\/strong>which was not signed<\/strong>, and we filed a Motion for Leave to Appeal to the Court of Appeals<\/a> which has not been decided.\u00a0 Thus, for the first time since this case <\/strong>has\u00a0begun the developers have a legal right to begin building <\/strong>while we wait to see if the Court of Appeals accepts our appeal.<\/p>\n

Let’s not forget that the Developers broke the TRO twice <\/strong>when we were in the lower Court and one time when we were in the Appellate Court.\u00a0<\/strong> Did anything happened to them? Of course not!\u00a0<\/strong> We got arrested <\/strong>trying to protect the TRO and they didn\u2019t even get a slap on the wrist.<\/strong><\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n

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\u00a0We Have Not Given Up<\/strong><\/span><\/p>\n

No we have not given up<\/strong>, because this case is too important<\/strong> not in just protecting the community and the Brooklyn Botanic Gardens (expect 3 hours of shadows on BBG<\/strong> if this rezoning is approved), but the fact that every future development project will be affected<\/strong>, as developers will down play their projects to avoid environmental reviews.\u00a0<\/span><\/p>\n

We filed our legal papers and<\/a> requested for Leave to Appeal.<\/strong>\u00a0 The return date was yesterday,\u00a0 December 27, 2022, thus we expect to find out if your case has been accepted or rejected sometime next year. (All smiles)\u00a0<\/span>
\nPlease attend Our City Of Yes Town\u00a0Hall<\/u> Wed. Jan. 11, 2023 at 7 pm via Zoom<\/u><\/strong><\/span><\/p>\n

If one thing this journey has taught us is to fight before the changes are done and the decisions are made. \u00a0As a result we are now educating you on Mayor Eric Adams’ City of Yes, and its proposals. \u00a0Another post will be added with more information but if you want to register please click here.<\/a><\/span><\/strong><\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n

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History and Review<\/strong><\/span><\/div>\n

Community Plan<\/strong><\/span><\/p>\n

I<\/span>n 1991 a community plan was passed into law<\/strong>, that prevented development of tall buildings<\/strong> along the Brooklyn Botanic Garden “BBG<\/strong>“, to protect <\/strong>the community and the BBG. \u00a0Three sites <\/strong>were identified as A, B, C with height limits of 60\/70 feet.\u00a0<\/span><\/p>\n

Developers Buy Land In\u00a0Anticipation<\/span>\u00a0of Rezoning!<\/span><\/strong>
\nIn <\/span>2014 Cornell Realty <\/strong>\u00a0began buying up properties within sites A, B, and <\/span>Continuum brought site C.<\/strong>\u00a0 At the same time a\u00a0request was submitted to the Department of City Planning “<\/span>DCP<\/strong>” to <\/span>rezone all along the BBG<\/strong> and Prospect Park, by C<\/strong><\/span>ommunity Board 9<\/strong>. \u00a0However, the community residents pushed back against the request and <\/span>it was\u00a0<\/strong><\/a>rescinded<\/u><\/strong><\/span>.<\/span><\/span>\u00a0\u00a0<\/span><\/p>\n

If this rezoning request had been process, then the <\/span>land along BBG <\/strong>would have been<\/span> rezoned<\/strong> under a community plan, but because of <\/span>community resistance<\/strong><\/span><\/a>, DCP has <\/span>been powerless<\/strong> to move forward with a <\/span>district wide rezoning<\/strong>. \u00a0As a result the owners of the properties have decided to <\/span>place private applications<\/strong> to rezone with DCP.<\/span><\/p>\n

In <\/span>2017 <\/strong>Cornell submitted a rezoning application for sites <\/span>A, and B,<\/strong> but <\/span>withdrew it <\/strong><\/a>when the local <\/span>Councilperson Laurie Cumbo <\/strong>refused to <\/span>entertain this application<\/strong> because she was facing a <\/span>serious challenge<\/strong> to her seat and didn’t want another <\/span>controversial rezoning plan to occur<\/strong>. \u00a0<\/span><\/p>\n

After Cumbo\u00a0won her re-election campaign<\/span><\/a><\/strong>, Cornell resubmitted its application and <\/span>got Cumbo’s approval <\/strong>and thus the City Council’s approval, in December of 2018, based upon a “<\/span>Miracle Deal”<\/span><\/a>\u00a0<\/strong>of affordable housing, <\/span>which never existed.<\/span><\/a>\u00a0<\/span>In 2022,\u00a0Cumbo was appointed by Mayor Eric Adams as Commissioner for NYC Dept. of Cultural Affairs<\/span><\/span><\/strong><\/p>\n

In<\/span> April 2019<\/strong>, we\u00a0<\/span>filed a lawsuit\u00a0against the City and Developer<\/strong>, stating that the City <\/span>failed to conduct its environmental review lawfully<\/strong> and the <\/span>Developers lied <\/strong>on their application to avoid looking at <\/span>environmental consequences.<\/strong><\/p>\n

During the course of the lawsuit<\/span>, the <\/span>City <\/strong>has been planning\u00a0and<\/span>\u00a0scheming\u00a0<\/span><\/strong>with the Developers,<\/strong> granting them<\/span> permits to violate the TRO <\/strong>under an <\/span>voluntary environmental clean up program<\/strong> and an \u00a0<\/span>old permit<\/strong> that was issued in <\/span>2015 under the old zoning<\/strong> regulations. \u00a0This has resulted in <\/span>f<\/span><\/a><\/span>ive people being arrested.<\/span><\/a><\/span><\/p>\n

As a result \u00a0we\u00a0demanded that both Civil and Criminal Charges<\/a> be brought against the City and The Developers for violating the TRO.<\/p>\n

In December of 2020,<\/strong> after almost a 2 year fight, we won the case on the merits. \u00a0Mr. Carone from Abrams and\u00a0Fensterman <\/strong><\/a>was the lead attorney for Cornell Developers. \u00a0Mr. Carone currently is Mayor Eric Adams, right hand man, holding the position of Chief of Staff and was instrumental in supporting Eric Adams bid for Mayor.<\/p>\n

Judge Boddie null and voided the Franklin Ave Rezoning application<\/strong> <\/a>agreeing with the fact that they had not conducted a proper environmental review process as is required by law.<\/span><\/p>\n

Judge Boddie <\/strong>agreed with us that the Department of City Planning had behaved\u00a0arbitrarily and\u00a0capriciously\u00a0<\/strong>by not ensuring that Cornell took a “hard look”<\/strong> at the\u00a0water and sewage negative\u00a0environment impacts, which is based upon the State’s Environmental Laws.<\/strong> \u00a0The developers had “played”<\/strong> with the number of residential units<\/strong> and thus avoided their legal\u00a0responsibility. \u00a0They reported that the rezoning (three full city blocks)\u00a0would only produce about 250 additional apartments\u00a0when in fact they had submitted building plans<\/strong> that called for 580 units.\u00a0<\/strong><\/span><\/span><\/p>\n

Just recently the developers\u00a0violated the law for the third time,\u00a0by attempting to build with a\u00a0permit that was unlawful<\/strong>, despite the fact that the zoning was null and void. \u00a0We went back in front of Judge Boddie. \u00a0The Department of Buildings stated they made an “error<\/em>” with the building permit <\/strong>and thus voided it (after we appeared in Court), and the developers closed up the site with no further construction.<\/span><\/p>\n

Further Update:<\/strong><\/span>
\nThe Developers filed for an expedited\u00a0hearing process<\/strong> with the Appellate Division 2nd Department, which was granted <\/strong>allowing their appeal to be heard a lot faster than others. \u00a0They claimed they needed this development project to help with the housing crisis.<\/strong> \u00a0However, we had to filed three motion<\/strong>s to get them to comply with the requirement of producing <\/strong><\/span>all<\/u><\/strong><\/em> evidence including transcripts<\/strong> with their appeal. \u00a0They refused to submit transcripts, documents<\/strong> and even removed key pages of documents (tampering) within documents<\/strong>\u00a0which proved our case in the lower court.<\/span><\/p>\n

Without these\u00a0essential<\/span>\u00a0documents and transcripts our case would have been damaged<\/strong> and we would not have been able to prove what we had done in the lower court<\/strong> that got our win. \u00a0These motions that we had to file, made the completed appeal process\u00a0longer than normal time, <\/strong>thus the expedited\u00a0process was forgone due to their intentional actions to sabotage\u00a0the record.\u00a0<\/strong><\/span><\/p>\n

In the end they produced eight\u00a0volumes of evidence<\/strong>, including transcripts, orders and temporary orders. \u00a0Each volume was approximately 500 pages, making the record from the lower court over\u00a040,000 pages.<\/strong> \u00a0We worked hard to win this case and we are eternally grateful to your continued support.<\/span><\/p>\n

On October we held our hearing on this case in front of the 2nd Department.<\/strong> \u00a0It appeared unlike the other cases that no hard questions<\/strong> were asked to the City or the Developer, in fact they had lawyers who could not even answer the Justices questions <\/strong>because\u00a0they did not know the facts of the case.<\/strong> \u00a0At the end Alicia Boyd, who was representing us got a standing ovation for her work<\/strong>. \u00a0It was truly impressive and a sight to see.<\/p>\n

However, despite this performance and the evidence being in our favor,<\/strong> the 2nd Department on November 9, 2022,\u00a0came back with a decision that based upon the evidence and the law that Judge Boddie’s decision to null and void the Franklin Ave rezoning should be reversed.\u00a0<\/strong><\/p>\n

We filed a month later, a motion to appeal to the Court of Appeals returnable on December 27, 2022<\/strong> and we filed an temporary restraining order to prevent any development from occurring while the case is being considered for appeal. \u00a0However that order was not signed<\/strong>, with no explanation as to why.\u00a0<\/span><\/p>\n

This is the End!<\/strong><\/span><\/p>\n

This is truly the\u00a0last legal step of this case.<\/strong> \u00a0We showed that the developers had violated State Law<\/strong> by not looking at negative environmental consequences and the City failed in their responsibilities<\/strong> to ensure that they did.<\/p>\n

We showed the Court of Appeals that if the 2nd Department’s decision<\/strong> is upheld that it will weaken the environmental review<\/strong> process and herald in a case of pure corruption as developers downplay<\/strong> what they can build (DUF 1,000)\u00a0and\u00a0then once a rezoning is accomplished they can build to the maximum the law allows (DUF 680).<\/p>\n

Thus,\u00a0this case will have far reaching consequences<\/strong> than just\u00a0the negative impacts that will occur to the Brooklyn Botanic Garden and the community.<\/p>\n

If our case is accepted we will have to write a brief and submit it. There are no oral arguments and everything would be decided on the papers submitted.\u00a0<\/strong><\/span><\/p>\n

Whatever way it goes\u00a0we will keep you informed<\/strong>. And we continue to thank you<\/strong> for all of your support,\u00a0commitment and your continued\u00a0belief in justice and the courts.\u00a0<\/strong><\/span><\/span><\/div>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n","protected":false},"excerpt":{"rendered":"

Holding on by a Thread \u00a0On November 9, 2022,\u00a0 we found out that the City and the Developer\u2019s appeal to our successful petition to invalidate the Crown Heights Rezoning was overturned by the 2nd Department in their 4-page decision.\u00a0 Of course it came as a shock considering Judge Boddie, the […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1,9,8],"tags":[],"class_list":["post-1545","post","type-post","status-publish","format-standard","hentry","category-updates","category-fight-against-rezoning","category-legal-actions"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/posts\/1545","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/comments?post=1545"}],"version-history":[{"count":3,"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/posts\/1545\/revisions"}],"predecessor-version":[{"id":1548,"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/posts\/1545\/revisions\/1548"}],"wp:attachment":[{"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/media?parent=1545"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/categories?post=1545"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mtopp.org\/index.php\/wp-json\/wp\/v2\/tags?post=1545"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}