Court Denies Second Bid To Halt Brooklyn Bridge Park Construction

The Kings County Supreme Court has once again dismissed, on statute of limitations grounds, an action commenced by Save the View Now (“STVN”) against the Pierhouse hotel/condo complex currently being built in Brooklyn Bridge Park.   STVN previously sought a temporary restraining order and a preliminary injunction halting construction of the two buildings that comprise the Pierhouse, on the ground that the structures violated the building height limitations set forth in the 2006 Modified General Project Plan (“MGPP”), which governs the development of Brooklyn Bridge Park.  The request for injunctive relief was denied as untimely, but STVN returned to court in August 2015 with what is argued to be newly discovered evidence.

Pier 1 Development

The Pierhouse development located in Pier 1 of the park includes two buildings.  Throughout the approval and construction of the Pierhouse there has been much discussion about the negative impact the development would have on the views of the Brooklyn Bridge and Manhattan skyline as seen from the Brooklyn Heights Promenade.  As recognized by Judge Knipel in his first decision, the panorama is “an iconic, world-class view worthy of the maximum protection the law can afford.”  STVN argues that these views are being compromised because the Pierhouse has exceeded the maximum height permitted under the MGPP, which was designed to protect the views of from the promenade.

According to STVN, the current construction, which is nearing completion, rises taller than the height limitations set forth in the MGPP.  The Brooklyn Bridge Park defendants argue that the structures are within those limitations when measurements are calculated in a fashion consistent with industry standards and relevant zoning codes.

Indeed, after Hurricane Sandy in October 2012, the Federal Emergency Management Act issued updated preliminary flood maps that put the Pier 1 development in a flood zone.  The City also adopted changes to the New York City Zoning Resolution and the Building Code that increased the requisite elevation of new construction in flood zones and limited the circumstances under which building mechanical systems could be placed in basements or cellars below the flood elevation.  Based on these post-Sandy regulatory modifications, the Pierhouse was redesigned to relocate certain electrical equipment from the basement to the roof.  (Judge Knipel noted in his first decision that the buildings were not required to be redesigned to comply with zoning changes, but ultimately were to qualify for Federal flood insurance and provide increased safety in the event of another flood.)  The Zoning Resolution, although overridden by the MGPP and not binding on the Brooklyn Bridge Park development, provides that certain rooftop mechanical equipment, such as bulkheads, parapets, and other rooftop elements, are permitted obstructions that are excluded from any applicable height limit.  Based on these considerations, the Brooklyn Bridge Park defendants argue that the height of the Pierhouse complies with the MGPP.

Statute of Limitations Issues

In April 2015, STVN sought declaratory relief enjoining construction of the Pierhouse, which purportedly violated the MGPP, among other things, and negatively impacted the views from the Promenade.  The Brooklyn Bridge Park defendants moved to dismiss the action, contending that the case was barred by the four-month statute of limitations governing Article 78 proceedings.  Even though framed as a declaratory judgment action, the Brooklyn Bridge Park defendants argued that the action was actually a disguised Article 78 proceeding challenging government conduct (i.e., the approval of the development of the Brooklyn Bridge Park).

The Court agreed, and in June 2015 denied STVN’s motion for a preliminary injunction.  The Court held that STVN was unlikely to succeed on the merits because the applicable four-month statute of limitations began to run when it was “aggrieved by the governmental action.”  It concluded that this may have happened “as far back as December of 2006 when the MGPP was adopted,” or “in 2011 or 2012 when the height measurement definitions implicit in the MGPP were explicitly published,” or most likely “in 2013 when final plans were filed with the New York City Department of Buildings and construction comments,” but “certainly … no later than September of 2014 when the northern [taller] building reached its maximum height.”  The action, however, was not commenced until seven months after that time.

Newly Discovered Evidence

In July 2015, STVN moved to amend its complaint and renew its motion for a preliminary injunction based on newly-obtained copies of leases and building plans.  In the opposition to the initial motion, the Brooklyn Bridge Park defendants had argued that the action was untimely because the proceeding accrued “at the latest … on June 19, 2012, when [Brooklyn Bridge Park], after public disclosure in the RFP Amendment of their interpretation of the MGPP height limitation, approved [the Brooklyn Bridge Park defendants’] proposal and entered into leases for the Pier 1 development site.”  The Brooklyn Bridge Park defendants, however, never produced copies of the lease agreements.

In its papers, the STVN argued that the dispute does not involve any “final agency action” that can be challenged in an Article 78 proceeding because of the ongoing process required for the project – to wit, the development was authorized by leases with government agencies, built in accordance with plans approved by government agencies, and constructed pursuant to building permits issued by government agencies and, therefore, there was no final agency determination.

In addition, STVN argued that the building plans show the Brooklyn Bridge Park defendants failed to disclose the true content and nature of the rooftop structures and bulkheads.  Rather than containing only necessarily mechanical equipment, STVN contended that the newly discovered plans show that the bulkheads had been redesigned to contain a kitchen, food service and preparation areas, an outdoor shower, five separate elevator lobbies, and a separate room for pool equipment.  According to STVN, the plans also show additional structures, including food and bar areas, raised decks, awnings, and a structured canopy for a wedding/event space.  STVN argued that these improvements are not considered Permitted Obstructions under the Zoning Resolution and should therefore not be excluded from applicable height limits.

In opposition, the Brooklyn Bridge Park defendants asserted that the “newly” discovered materials were all public records readily available to STVN at the time of its initial motion for injunctive relief and, therefore, could not serve as the proper basis for a motion to renew, which requires the movant to show a “reasonable justification for the failure to present such facts on the prior motion.”  CPLR 2221(e).  The Brooklyn Bridge Park defendants also argued that the Zoning Resolution was only used for general guidance and did not have to be following in every technical particular because the MGPP overrode the Zoning Resolution itself.

On September 21, 2015, Judge Knipel once again denied STVN’s request for preliminary injunction, adhering to its prior decision granting the motion to dismiss on statute of limitations grounds.  The decision concluded that STVN “failed to demonstrate any connection between the provisions of these leases and the expiration of the statute of limitations.”

With respect to the objections to the revised bulkhead plans, the Court noted that the areas designated for food preparation and other activities are outside the bulkheads and only illustrative of potential rooftop activity that does not impact the structure or building fixtures.  However, the Court ultimately held that it did not need to determine whether or not the Brooklyn Bridge Park defendants violated any alleged obligation to comply with the Zoning Resolution because the expiration of the statute of limitations had rendered that point moot.

STVN filed a notice of appeal on October 2, 2015.

It will be interesting to see whether the Appellate Division will uphold Judge Knipel’s decision to dismiss the action on statute of limitation grounds (despite his own inability to point to any exact date of any final agency action which STVN should have challenged), or conclude that the lower court erred in applying a four-month statute of limitations.  We will continue to follow the case.

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