Brooklyn Supreme Court tosses lawsuit against Gowanus rezoning

photo of gowanus canal in rezoning area
A Kings County Supreme Court justice has dismissed a lawsuit that sought to overturn the Gowanus rezoning, citing a weak argument and technical issues.
File photo by Kirstyn Brendlen

The Kings County Supreme Court has dismissed a lawsuit that sought to overturn the Gowanus Rezoning, citing a technical error with the suit and holes in the petitioners’ arguments.

Community groups Voice of Gowanus and Friends and Residents of Greater Gowanus, along with a number of private citizens of the neighborhood, filed the Article 78 petition against New York City and several city agencies involved in the rezoning in February, alleging that the city’s environmental review of the massive upzoning was inadequate and that the respondents had violated state environmental law.

The city filed a motion to dismiss in May, disputing the lawsuit’s claims of breaking environmental law and defending the environmental review — and said that the petitioners, who filed the lawsuit in court on February 28, did not serve the paperwork to the city until April, after the four-month statute of limitations for such suits had passed.

On June 28, Justice Consuelo Mallafre Melendez granted the city’s motion to dismiss the case, putting an end to months of contentious back-and-forth between the parties.

“This rezoning went through a very thorough city review process and will create housing, jobs, and increased open space for the Gowanus neighborhood,” said Nick Paolucci, a spokesperson for the city’s law department. “We are pleased the court dismissed the case.”

Grounds for dismissal

In the decision, Melendez wrote, first and foremost, that the lawsuit was not filed within the statute of limitations required by law. Richard Lippes, the attorney representing Voice of Gowanus and the other petitioners, filed the suit with the court in late February, but did not serve the city with the papers until late April — after even the built-in extended service period.

Lippes asked for a retroactive extension, with Melendez denied, saying his explanation for missing the deadline was not sufficient. The petitioners said a denial based on a technicality would prevent the case from being heard on its merits — but Melendez said they had failed to prove the strength of their arguments.

Voice of Gowanus is outraged that Judge Mallafre Melendez has dismissed our case against the City of New York on the basis of a filing detail,” said member Linda La Violette. “By doing so, the judge set aside significant laws that are meant to protect communities like ours.”

In the petition, Voice of Gowanus and the other parties, represented by environmental lawyer Richard Lippes, alleged that the city had failed to take a “hard look” at the immediate and long-term environmental impacts of the rezoning — especially with regard to sewer infrastructure and flooding. 

The lawsuit in particular focuses on the rezoning’s draft and final Environmental Impact Statements, which each declare the rezoning “would not result in a significant adverse impact on the City’s water supply, wastewater treatment, or stormwater management infrastructure,” based on analyses conducted by the city.”

Lippes argued the EIS “did not adequately” deal with CSO overflow and discharges to the Gowanus Canal.

But, in her decision, Melendez said that he had “either [failed] to point to any specific shortcomings in the FEIS or support these shortcomings with any substantive evidence other than their own opinions.”

The only document in support of their opinions is a letter from EPA official Doug Garbarini, head of the New York branch of the agency’s Superfund and Emergency Response Division, which, Melendez states, was written about the draft statement — not the final.

“Therefore, all EPA concerns expressed therein clearly predate the analysis and findings of the FEIS,” Melendez wrote.

outside of brooklyn supreme court gowanus rezoning lawsuit
A Brooklyn Supreme Court justice said the petitioners did not serve the lawsuit in time, and did not have enough reason to receive a retroactive extension on the filing deadline. File photo by Colin Mixson

Most of the concerns detailed in the 2021 letter regarding the DEIS persisted in the FEIS — specific data, tables, and paragraphs cited in the letter were unchanged in the final document. In his letter, Garbarini noted that the data used in the DEIS was inconsistent from page to page — and that the numbers also differed from data presented by the city to the EPA separately.

“For these reasons, as noted, with the information presented, EPA cannot assess what the net CSO discharge impacts will be from the proposed rezoning,” Garbarini wrote.

Melendez reinforced the fact that the city’s studies found that the rezoning would have no significant adverse effect on CSO discharge, and dismissed further allegations made in the lawsuit, including that the city had violated federal historic preservation laws.

“Based on the foregoing, the court finds that Petitioners failed to present any factual or legal arguments to support the merits of their claim that the Respondent’s environmental review was capricious, an abuse of discretion or affected by an error of law,” Melendez wrote. 

According to court documents, Lippes filed to appeal the decision on July 15.

Gowanus rezoning continues

Meanwhile, work will continue on the upzoning, which received nearly-unanimous approval from the city council in November. Touted by then-mayor Bill de Blasio as the first such rezoning to take place in a “whiter, wealthier neighborhood,” the project is expected to bring around 8,000 new apartments, including 3,000 affordable apartments, to Gowanus.

The city has also pledged to invest in two public housing developments in the neighborhood and to install new storm sewers on flood-prone streets, but the last few months have seen some hiccups for the project.

In May, EPA and local elected officials said they were caught off guard by construction at the infamous Public Place Brownfield site, the toxic future home of an all-affordable housing development. The construction prompted Voice of Gowanus to file for an injunction against the city, seeking to temporarily stop all construction related to the rezoning.

fence with signs outside public place gowanus rezoning
Unexpected construction at Public Place, a toxic Brownfield site within the bounds of the Gowanus rezoning, raised the alarm for local elected officials and community members in May. File photo by Kirstyn Brendlen

At that time, Assemblymember Jo Anne Simon told Brooklyn Paper that she was concerned about the city’s continued noncompliance with federal orders to build two CSO retention tanks, which will help stem the flow of CSOs into the canal. 

Lippes and Voice of Gowanus referenced concern about the tanks in the lawsuit, and Garbarini also noted the city’s noncompliance in his letter last year. At a meeting of the Gowanus Canal Community Advisory Group last month, EPA representative Brian Carr said the agency has been in regular discussions with the city regarding the tanks.

The agency has previously threatened to fine the city up to $60,000 per day for each day the city has violated orders.

“Either the city is going to say that they are going to drop some of their major arguments and seek to collaborate finally with EPA, or EPA is going to seek penalties,” Carr said. “We are in a position to do that when the political decision is made to take that step, and the city doesn’t really have much in the way of recourse about that.”