BROOKLYN COURT ISSUES TEMPORARY RESTRAINING ORDER STOPPING ULURP REVIEW OF ARROW LINEN’S CONTROVERSIAL REZONING PROPOSAL
Members of Housing Not High Rises Claimed Public Review of Arrow’s Rezoning Proposal Should Await Final Action on City of Yes for Housing Opportunity
Appellate Division grants NYC Department of City Planning Stay Until Four-Justice Panel Decides After September 16, 2024
September 6th, 2024 Brooklyn, New York –
A controversial rezoning and development proposal in Brooklyn is now at the center of a heated court battle pitting a grassroots community group seeking to build affordable housing versus the New York Department of City Planning (“DCP”) and Arrow Linen Supply, an industrial laundry company planning to build twin luxury towers on its commercial site in South Slope / Windsor Terrace.
On Wednesday, Kings County Supreme Court Judge Hon. Lisa Ottley issued a temporary restraining order (“TRO”) in response to a petition from the pro-housing community group called Housing Not Highrises which argued the community’s right to meaningful participation in the Uniform Land Use Review Procedure (“ULURP”) was compromised given the contradictory information in Arrow’s application, which describes two 13-story towers, or a suggestion that two 19-story towers might be allowed if City Of Yes Housing Opportunity is also approved in ULURP. Judge Ottley ruled in favor of Housing Not Highrises issuing the TRO to pause Arrow’s rezoning proposal for predominantly luxury apartments in a neighborhood currently zoned for 3-stories and in need of affordable housing.
But today, lawyers for the NYC Department of City Planning won a stay in Judge Ottley’s TRO granted by the Appellate Division. A four-Justice panel will review additional written arguments and make a decision on the status of the original TRO sometime after September 16, 2024. In the meantime, Arrow Linen’s rezoning proposal will continue its path through the Uniform Land Use Review Procedure (“ULURP”) process with a Community Board 7 hearing this Monday, September 9, 6:30PM at Holy Name Shepherd’s Hall, 245 Prospect Park West, Brooklyn, N.Y.
If the Appellate Division decides to leave the TRO in place, a hearing on the preliminary injunction motion is scheduled to occur sometime after November 7, 2024.
Judge Ottley’s ruling was seen as a major victory for Housing Not Highrises, a pro-housing non-profit with more than 2,000 members across South Slope, Windsor Terrace and adjacent neighborhoods which is proposing to build a project of seven to nine stories with 100% affordable housing as an alternative to the Arrow Linen plan.
Four members of Housing Not Highrises filed a petition in Kings County Supreme Court (in a CPLR article 78 proceeding) and presented their case before Judge Ottley to challenge a decision by the New York City Department of City Planning (“DCP”) to put Arrow’s proposal into the Uniform Land Use Review Procedure (“ULURP”) review process. The petition claims that meaningful public review of the proposal cannot occur until after final action on the Mayor’s City of Yes for Housing initiative, since that initiative would significantly increase the zoning that Arrow seeks for its properties, and thus the scope and size of the Arrow project cannot be known until after City of Yes. Judge Ottley’s ruling temporarily stopped the ULURP process for Arrow’s application until the court reaches a final decision which may come in early November. The Appellate Division’s stay today allows ULURP to continue until its decision sometime after September 16.
“The TRO is a huge victory for our community and for anyone who believes that the community has a right to participate in land use decisions in a meaningful way,” said Velma McKenzie, one of the petitioners named in the proceeding. “While the Mayor’s City of Yes initiative is pending, there’s no concrete way for the community to know what’s at stake with Arrow’s proposal. We hope the Appellate Division sees the logic in this and decides to reinstate the TRO.”
The legal argument in the petition–which was filed in Kings County Supreme Court and is available on the Housing Not High Rises website–is straightforward. The ULURP proceeding for a rezoning application begins when DCP certifies that the application is complete. And under DCP’s regulations, to be complete, a land use application must fully and accurately describe the parameters of the zoning designation that the applicant is seeking to obtain.
But Arrow’s land use application is incomplete, the petition asserts, because Arrow cannot provide that information about the zoning designation it requests: due to the intervening City of Yes initiative, the zoning designation that Arrow is seeking will change materially between now and the end of the ULURP process for Arrow’s application as currently scheduled. “Arrow’s land use application is incomplete,” the petition explains, “because it cannot provide a concrete answer to the most basic question posed by a rezoning application—if the rezoning application is granted, what will Arrow be permitted to build on its properties?” According to the petition, ULURP review of Arrow’s proposal should wait until after final action on the Mayor’s City of Yes initiative.
“We hope to be able to preserve the ability of our community to meaningfully participate in Arrow’s monumental rezoning proposal” said Jay Goldberg, one of the petitioners in the case. “If Arrow’s ULURP process is paused until after City of Yes for Housing Opportunity is complete, it will allow the community to comment on what can actually be built, and not on speculation. This is what we had asked our Council Member Shahana Hanif to do for us, but instead, we had to take our own action in court.”
Together with their challenge, the group of petitioners sought a temporary restraining order halting the ULURP review of Arrow’s proposal until the Court issues a decision on the petitioners’ claims. As the petitioners explained, meaningful public participation in land use decisions is one of the core principles of ULURP:
“In the decades before the ULURP procedure was adopted, land use decisions in New York City were handled by a central authority run by Robert Moses, whose well known history of pushing controversial projects in so-called blighted neighborhoods without any public input had devastating effects on the City and its communities and residents. In 1975, ULURP was established in the City’s Charter to fix that problem and to address the “perceived need for informed local community involvement in land-use planning, for adequate technical and professional review of land-use decisions and for final decision-making by a politically accountable body.” Meaningful public participation in land-use decisions is thus one of the main reasons that ULURP exists, and actions that interfere with that participation undermine the core concerns that prompted ULURP’s creation in the first place.”
While the community would be irreparably harmed if public review of Arrow’s proposal proceeded while City of Yes was pending, neither DCP nor Arrow would be harmed by a brief delay to await final action on City of Yes. DCP’s mission is to ensure that the public has a meaningful opportunity to participate in land use decisions. And as the petitioners explained, Arrow had no credible interest in frustrating the community’s opportunity to participate in the review of its rezoning proposal. To the contrary, “a responsible developer should welcome the opportunity to safeguard that important public right.”
The Honorable Lisa S. Ottley agreed and issued the temporary restraining order halting the ULURP process until the Court can determine whether to issue a more formal preliminary injunction during the pendency of the proceeding. If the Appellate Division reinstates the TRO, a hearing on the preliminary injunction motion is scheduled to occur sometime after November 7, 2024. In the meantime, the Appellate Division’s stay of the restraining order means that the community will have to review a rezoning proposal at Monday’s CB7 hearing without knowing for sure what the proposal will mean if it is granted.
“It’s hard to overstate the hope that the court has given us,” said Luz Torres, one of the named petitioners in the proceeding. “I own one of the buildings that Arrow wants to rezone and I’ve felt helpless that a private company and a government agency could conspire to do something to my property that I don’t want. I’ve been shut out of this process entirely; it’s incredibly disempowering. The Court’s decision, should it hold, is truly a moment of justice for the people.”
Julia Melzer, whose home sits near the Arrow Linen property and who presented the petitioners’ case in Court, said: “We just laid out the evidence that Arrow Linen’s proposed upzoning to 13 stories from the current three-story zoning does not adequately account for what could be added if the Mayor’s City of Yes for Housing plan is approved. That could boost the Arrow buildings up to 19 stories plus another 55 feet of roof-top mechanicals. And the vast majority of those apartments would be market-rate luxury units. We have an alternative plan to build more apartments that are 100% affordable in buildings that are seven to nine stories and fit in with the surrounding community. We want affordable housing, not luxury highrises that will displace existing tenants.”
