Elizabeth Street Garden to Take Fight to Court of Appeals

The battle over a sculpture garden in Little Italy is back on.

A state appellate court on Thursday ruled that a group seeking to preserve the Elizabeth Street Garden can appeal to the state’s highest court, in order to argue that the city wrongfully approved plans for a 123-unit affordable apartment building.

“This order will allow us the opportunity to explain to the highest court in the state that saving Elizabeth Street Garden is essential to the Little Italy neighborhood and to protect open green space across the city and state,” the group, which goes by Elizabeth Street Garden, said in a statement. “We are grateful for this opportunity but the challenge is not over.”

The court granted the group’s request for leave to file an appeal with the Court of Appeals, a move that is not automatically available in cases where the appellate court’s decision was unanimous.

The decision is somewhat unusual, given the appellate court’s unanimous decision in June reversing a lower court’s ruling that the city’s environmental review of the project was not sufficient. It is typically more difficult for a party to convince the appellate division to allow a case to proceed to the Court of Appeals: In such cases, the division is essentially allowing the party to question its unanimous decision against them.

The city’s legal team indicated that they believe the appellate court was right to reverse the lower court’s decision.

“The granting of leave says nothing about how the case will turn out,” a spokesperson for the city’s Law Department said in a statement. “We are confident in our position and look forward to making our case to support this important project for seniors who urgently need access to more affordable housing.”

In 2019, a group led by Joseph Reiver, the son of a gallerist who began leasing the vacant site from the city in 1991, sued to block developer Pennrose’s plans for senior housing on the site. Three years later, a state Supreme Court judge nullified the project’s environmental assessment, agreeing with the group that a more rigorous environmental impact statement was needed to determine the effect of building housing at the garden site.

The environmental assessment had determined that the project would not have a negative impact on the surrounding area’s environmental and cultural resources. But the state court disagreed that the project would not result in a significant loss of open space on the half-acre site. The plan includes preserving .15 acres of public space adjacent to the apartment building.

The city appealed the decision, and won a reversal in June.

The project underscores the challenges of building housing in New York, even projects that dedicate 100 percent of apartments to low-income seniors. Nearby, the city is seeking to build another affordable housing project at 388 Hudson Street, a site that Elizabeth Street Garden has long suggested as an alternative to plans for the sculpture garden. That project is also facing some pushback.

Meanwhile, state and city officials have shown support for simplifying environmental review requirements or even, in some cases, exempting certain projects to speed up housing development.