Wednesday evening, the DUMBO Neighborhood Foundation held a meeting at 66 Water Street to discuss the litigation that DNF has begun in an attempt to have the courts reverse the City’s decision to let the Dock Street project proceed. Barry Silverstein and Gus Sheha, neighborhood residents and principals of DNF, spoke about the various aspects of the case. Silverstein and Sheha, along with DNF itself, are the petitioners-plaintiffs in the action, and the respondents-defendants are the City of New York, various City branches and agencies (including the City Council, the Planning Commission, and the School Construction Authority), and Two Trees (the Walentas’ development company).
The complaint, as filed in Supreme Court, Kings County, on October 8, 2009, sets forth eleven causes of action. The first eight of these, referred to as the “Article 78 proceeding” for the state statute authorizing the relief they seek, relate to both the decision by City planning officials to classify the Dock Street project as a “General Large Scale Development” (“GLSD”), a decision which allowed the officials to grant special exemptions relating to the bulk of the structure and to the inclusion of a large underground parking garage, and also to the officials’ failure to apply to the project the special bulk restrictions applicable to waterfront development under the City Zoning Rules. The complaint asks the court to declare that the law required a determination that the project is not a GLSD, that the waterfront rules apply, that the officials’ actions were “contrary to law, arbitrary, capricious and an abuse of discretion” and, therefore, “should be overturned.”
As the language quoted from the complaint indicates, courts are reluctant to second-guess the decisions of administrative agencies unless petitioners can show that the actions of the officials have been truly egregious. Mr. Silverstein, who spoke about this part of the action, said that, despite the burden, he was confident that petitioners have a good case, because the law and the facts are on their side. The law requires that, to qualify as a GLSD, a project must occupy at least 1.5 acres. The actual size of the lot to be occupied by the proposed Dock Street building is only about 1.4 acres; to meet the size requirement, Two Trees’ application added the lot immediately to the north on Water Street, on which 66 Water, the building in which the meeting was held, stands, as well as two lots on the other side of Water: the one with the building housing the Almondine Patisserie and the one with the Galapagos Art Space. Two Trees has no plan to alter these buildings or do anything to tie them in with the proposed new building; therefore, according to Silverstein, inclusion of these lots to meet the 1.5 acre requirement is clearly a sham. Moreover, the lots on the west side of Water are in a waterfront area. If any part of the project falls within that area, Silverstein said, the Zoning Rules applicable to that area must be applied to the entire project. This would mean the proposed Dock Street building would violate bulk restrictions in force for buildings in that area.
The remaining three causes of action relate to alleged failures to comply with environmental review requirements under state (SEQRA) and city (CEQR) statutes. Specifically, they allege failure to consider the: (1) specific environmental concerns arising from the project’s impact on a waterfront area; (2) impact of siting a middle school in the Dock Street building; and (3) effect of a multistory building at the Dock Street site on the visual “bowl” of low rise buildings surrounding the Bridge. These causes of action were referred to by Mr. Sheha, who discussed this part of the lawsuit, as the “collusion proceeding”, because what is believed to lie behind the alleged failures to comply with SEQRA and CEQR requirements is a pattern of collusion between both elected and appointed City officials, on the one part, and Two Trees on the other. In the course of his discussion, Mr. Sheha said that he was surprised by “how blatant the money trail was” between Two Trees, in the form of campaign contributions, and elected officials who, after in some instances declaring themselves against the project, ended by voting for it.
Two Trees has moved for summary judgment on the Article 78 proceeding. This means the judge will have to decide whether, if the facts as alleged in the complaint are viewed in the light most favorable to the petitioners, the petitioners have a valid cause of action under the law. If the judge decides they do, the motion will be denied and the action will proceed to pre-trial discovery. Petitioners are also seeking to bifurcate the action; that is, to separate the trial of the Article 78 proceeding, which petitioners believe is more amenable to quick resolution, from the collusion proceeding, which is more complex. Oral argument on the motion for summary judgment is scheduled for June 15.
