When Mayor Bill de Blasio signed an executive order approving virtual rezoning hearings, the administration thought it was a matter of time before its application to rezone Gowanus would advance.
Then Brooklyn Judge Katherine Levine threw a wrench in that plan.
In a similar case, she ruled last week that the city must increase public access to hearings before a proposal to rezone a site in Crown Heights could move forward. Community groups battling both the Crown Heights and Gowanus rezonings have argued in lawsuits that hearings for the city’s land use review process need to be held in person.
Though de Blasio issued an executive order on March 13 explicitly suspending a city rule that requires in-person meetings for Uniform Land Use Review Procedure hearings, Levine said last week that she is “not dealing” with the order.
The application to rezone 80 blocks in Gowanus was halted in January in response to the lawsuit by community groups. In addition to demanding in-person meetings, the complaint accused the Department of City Planning of not properly notifying the public of its intention to start the rezoning process.
Though Levine has yet to rule in the Gowanus case, the city seems to face a choice: Reach a settlement that allows the rezoning application to proceed or take a chance on winning the case before it is too late. The de Blasio administration’s final day is Dec. 31, and the rezoning review takes seven months.
Both options come with risks for the city. If it reaches an agreement to set up a public space for residents to watch the hearings, it may be expected to do so for other Ulurp applications — and could call into question applications already approved following remote hearings. The city restarted virtual land use proceedings in September after freezing reviews for six months.
Elise Wagner, a partner in Kramer Levin’s land use department, said the city may work to resolve this issue quickly in the Gowanus case but reserve its right to object to the premise that it was legally obligated to provide better public access.
“If this went up on appeal, there’s a good chance it would be overturned,” she said of a potential adverse ruling by Levine.
There are a few reasons to believe the city would win. Other controversial projects held up by lower court decisions, including the Inwood rezoning, four towers planned for Two Bridges and a condo tower at 200 Amsterdam, were recently greenlighted by the Appellate Division.
However, should the city rely on the courts, it would be racing against the clock. Not only does Mayor Bill de Blasio leave office at the end of December but so do the two City Council members crucial to the Gowanus rezoning’s fate: Brad Lander and Steve Levin.
The administration is also keen on completing a proposed rezoning of Soho and Noho. A fight is already brewing over that proposal, and the Gowanus case could give opponents ammunition.
Jason Zakai, a lawyer for plaintiff Voice of Gowanus, said Levine was right to uphold the temporary restraining order in the case involving 960 Franklin Avenue, a Bruce Eichner residential project in Crown Heights.
“We have engaged with the city and we are open to continued discussions to see if we can work out a solution to the major problems presented by the proposed hearings, including lack of access, transparency, and public participation,” he said in a statement.
An attorney for the city declined to comment on its strategy.
Michelle de la Uz, who heads Fifth Avenue Committee, one of the joint venture partners behind a six-building affordable housing project dubbed Gowanus Green that hinges on the rezoning, said the court case is jeopardizing the city’s fair housing goals, as the rezoning is the mayor’s first in a predominantly white neighborhood.
De la Uz, a former City Planning Commission member, said virtual hearings have increased public participation.
“I think for the people that oppose this rezoning, they are using the virtual public process as a way to stop things for those of us who want to have a broad discussion,” she said.
Members of Voice of Gowanus disputed in a City Limits op-ed that Gowanus is a white and affluent neighborhood, calling it an oversimplification that overlooks past displacement. The group has also argued that more toxins must be cleaned up before the former industrial area is rezoned. Lander has also said the city will need to commit funding to NYCHA housing to gain his support.
In a letter to the judge Tuesday, attorneys for Gowanus Residents, Owners, and Workers (GROW) asked Levine to set a date for a conference to determine if a settlement is possible. The group, which supports the rezoning, has intervened in the lawsuit.
GROW’s letter states that if an agreement isn’t reached, the judge should set a hearing for “immediately afterwards” on the city’s motion to dismiss the case. The motion has been held up, however, and was just processed by the court on Tuesday. The letter stresses that the “burden of the delay of the Ulurp process has fallen” on the group.
Ken Fisher, one of GROW’s attorneys, said it is critical that this issue is resolved, not just for Gowanus but for all pending land use applications. According to City Planning, more than 160 Ulurp applications have either been filed or are in the midst of the review procedure.
“Every one of them could be at risk of this type of lawsuit until this issue gets resolved,” Fisher said. “It has tremendous implications for the entire application process.”