Lawsuit Against Rezoning Along the Brooklyn Botanic Garden
Click on the subject within the table of contents to review the summary of the legal documents.
Table of Contents
Article 78 Petition
1. Memorandum of Law in Support of Article 78
2. Temporary Restraining Order and Order to Show Cause
3. Preliminary Injunction Brief – Alicia Boyd’s Support for Preliminary Injunction
Probability of Success
Irrevocable Harm
Balance of Equities in Favor of Petitioners
4. The City and Developers’ Motions To Dismiss
5. Memorandum of Law in Opposition to Cornell’s Motion To Dismiss
Limited Circumstances
Relation-Back Doctrine
Table of Disputed Facts
6. Memorandum of Law for Petitioners Motion For Discovery (Request for Documents)
Discovery Requests
7. The City and Developer’s Objection to Petitioners Request for Discovery
8. Petitioners Response in Further Support for Discovery and to Amend Caption
Copies of Certified and Uncertified rezoning application
Other Minor Objections of Cornell
Please note if you want to read the original documents filed in court then please click on the document in the below summaries.
Article 78 Petition
Memorandum of Law in Support of Petition
The lawsuit is an Article 78 Petition called Boyd vs. Councilwoman Laurie Cumbo index #1518/19. Councilwoman Laurie was named in this lawsuit because it was her deciding vote that allowed it to be passed into law. She had stated it was based upon a "Miracle Deal" where an additional 100 apartments were going to be created targeting residents who make $100,000 a year, in a community who's medium income is $40,000 a year. This means that all the apartments would be severe rent burden to the existing population. Also the deal was never realized or part of the rezoning. It was fake!
The lawsuit includes three Petitioners: Alicia Boyd, Lashaun Ellis and Michael Hollingsworth, and seven Respondents: Councilwoman Laurie Cumbo, Department of City Planning (DCP), NYC Planning Commission (CPC), Brooklyn Director of DCP Winston Von Engle, Chairperson of CPC Marisa Lago, NYC Department of Building (DOB) and Cornell Realty [Management] LLC (Cornell).
Details
A rezoning change was passed by the City Council in December 2018, granting a private developer, Cornell, the right to break the Community Plan of 1991, by building up to 230 ft. in Community Board 9's only height limited zone of 60/70 ft., along the Brooklyn Botanic Garden.
The main argument against the rezoning is that the lead agency, DCP, did not conduct an Environmental Impact Statement “EIS”, because Cornell misrepresented their numbers and didn't conduct their Environmental Assessment Statement “EAS” according to the Law.
TRO Under Order to Show Cause
Petitioners’ Order to Show Cause for a Temporary Restraining Order was granted on April 18, 2019. This is currently preventing any of the property owners from pouring any cement while the Preliminary Injunction that has been requested by Petitioners is being decided.
Brief in Support of Preliminary Injunction – Alicia Boyd’s Support For Petitioners’ Preliminary Injunction
The Petitioners are seeking a Preliminary Injunction to prevent the property owners from developing their properties under the new zoning laws until a final determination has been made in the case. There are three conditions that Petitioners must meet in order for a Preliminary Injunction to be granted.
- Probably of Success on the Merits of the Case
- Irrevocable Harm Done if the Preliminary Injunction is Not Granted
- Balance of Equities in Favor of the Petitioners
Probably of Success on the Merits of the Case
Petitioners have a high probability of success on the merits of the case, because the courts have a very low threshold for Cities conducting EISs for proposed developments, especially where the development is breaking a Community Plan that was put in place to prevent the exact condition that is now occurring. In this case a 1991 Community Plan was passed to protect The Brooklyn Botanic Garden (BBG) and the community from high rise towers and the new zoning broke that plan to build high rise towers.
Additionally, the Courts and the law are very clear that all possible developments must be considered together, called “cumulative impacts” so the the full environmental effects of proposed developments may be disclosed. However, this did not occur. In fact, over half of the lots being rezoned were never assessed nor was the larger development project being proposed by Continuum right next door.
Irrevocable Harm
Irrevocable harm means that if Petitioners did win, and the developers were allowed to build before the case has been decided, it would make their winning meaningless, because the builder will not be able to un-build their development. Thus Petitioners and the Community would suffer irrevocable harm if the developers are allowed to build while the case is pending.
Additionally, the whole point of the lawsuit is that an EIS was not done and if one is done lawfully, it is possible that the developers would not be allowed to build as tall as the current rezoning allows. An EIS would “mitigate” the negative consequences thus forcing the developers to reduce the heights of their buildings.
The Balance of Equities are in Favor of Petitioners
Damage To BBG
This means the court has to decided who would be harmed the most by the Preliminary Injunction: the Developers who will not be able to build or the Petitioners who represent the public and BBG within the lawsuit. Please note that BBG is a public asset, despite it being run by a private non-profit organization. BBG belongs to the people and thus the people have a right to protect it within a lawsuit.
Petitioners have provided the court with sworn statements by BBG’s staff that were done on March 25, 2019 to establish that harm would be caused by this proposed development. One of BBG’s staff members testified that over half of the plant collection of BBG plant life will be destroyed within 10 years. Also there are 23 areas within BBG that will be negatively affected by these developments along with thousands of plant life and a few hundred being rare species.
Damage to the Birds
The New York City Audubon Society, which is highly respected and well known non-profit science-base conservation who’s mission is to protect the 350-plus bird species, also gave testimony as the endangerment of over 291 species of birds that pass through BBG and call BBG its home. The proposed development which is currently a wall of reflective glass, would result in thousands of birds experiencing brain trauma, neck injury and/or death.
Alienation of Park Land
One of the most important findings is that fact that BBG is actually a specialized park, who’s primary purpose is to develop and maintain a garden and scientific inquiry for the public. This land was given to New York City from the State of New York for this purpose in 1897. Petitioners assert that just as air-rights are being transferred and built, the air and sunshine over the garden are a part of the BBG and when a developer takes away that air and sunlight and by doing so interferes with BBG’s ability to function as to its primary mandate, then the city is engaging in the “Alienation of Park Land”. That means they are giving away the part of the park, to the developers.
However, there are state laws that prevents municipalities within New York State from giving away park land/air without authorization from the state legislator through an legislative decree.
The developers have actually stated that no one has even attempted to develop the land that was rezoned and thus a Preliminary Injunction isn’t even necessary. However, two months after the lawsuit was filed the new property owners of 1 out of 16 lots that were rezoned, has submitted building plans under the new zoning laws. This permit however, was not granted because of the current case under review by the court and the TRO that is in place.
Motions To Dismiss
Both Respondent City and Cornell have placed Motions To Dismiss papers against the Article 78 claiming that Petitioners did not include necessary parties onto the lawsuit and because there is a 4 month statute of limitations, which has expired, (on April 26, 2019) the case should be dismissed.
This means that instead of fighting the merits of the Article 78, the City and the developer simply want the case dismissed because a necessary party has not been included in the lawsuit.
Cornell has made claims that they sold both properties that they were representing during the rezoning after the application had been certified and a negative declaration done by DCP, thus an EIS was not conducted. Thus by selling the property, before the the rezoning was finalized, Cornell believes they should be removed from the lawsuit and the new owner of one of the properties CP VI should have been placed on the lawsuit. However due to the 4 month the statute of limitations having expired, the new owners can not be joined and thus the lawsuit should be dismissed.
The City is basically stating the same thing, except they are making the claim that new owners CP VI were replaced on the rezoning application and Cornell Realty was removed off of it.
Memorandum of Law in Opposition to Cornell’s Motion To Dismiss
Prevailing laws states that when it comes to rezoning challenges, not all the properties owners within the parameters of the rezoning need to be on the lawsuit. This is because rezonings can sometimes have hundreds of properties within the rezoned area, making it almost impossible to commence a lawsuit, if all property owners are to be a part of the lawsuit. Therefore, only owners who fall under “limited circumstances” need to be on the lawsuit. These would be property owners who obtained some type of permit or permission in regards to the new zoning laws, and/or is the applicant of the rezoning application etc..
Relation-Back Doctrine
There is also something called the relation-back doctrine which states that if a property owner is suppose to be on the lawsuit but has a relationship with a party that is on the lawsuit and these two parties rise and fall together, (having the same interest), then the property owner who is not on the lawsuit does not have to be on it. The other party who is already on the lawsuit is exercising the rights of both parties.
To deal with these two prevailing concepts of law “limited circumstances” and “relation-back” , Cornell stated that they sold the properties during the middle of the rezoning process and thus they have no further relation and were no longer affiliated with any of the properties and they had no more interest regarding the rezoning itself. Cornell also made the claim that CP VI was the new applicant on the rezoning application after the application itself was certified and Cornell was removed off of the application.
Petitioners in their paper show that there is whole host of contradictory evidence, based upon documents obtained from the government and sworn testimonies during the ULURP hearings by Cornell's Lawyers, which show that the above position of Cornell isn’t true.
- Cornell Realty Management LLC never owned any of the properties so it was impossible for them to sell them during the rezoning.
- Cornell Realty was represented by their lawyer at each of the hearings during the entire ULURP process, thus they maintained their interest in this rezoning all the way to the end.
- Cornell Realty stated that new property owners CP VI were their agent.
- Both Cornell Realty and CP VI had the same attorney representing them during the ULURP process, which shows their shared interest.
- Cornell stated that the final price of the sale of the property to CP VI was contingent upon the rezoning passing. If it passed they would be able to make another 18.5 million dollars. This proves that Cornell interest remained until the end of this rezoning.
- All the official documents continued to list Cornell as the applicant of record, even now the documents state it was Cornell’s application.
Memorandum of Law in Opposition to City's Motion To Dismiss
The City is also filed a Motion to Dismiss based upon the same rational “necessary party”.
Here the City is claiming that Cornell Realty Management was replaced on the Certified ULURP application by CP VI. This is to ensure that CP VI can now fit into the “limited circumstances” category, for as stated above being 1 out of 16 property owners isn’t enough to be a necessary party.
The City however, has failed to produce evidence of this change. No government entity is taking responsibility for making this change, the official records does not reflect this change and it is very possible that this change could not be done due to the procedural guidelines regarding Certified ULURP applications.
The Below Graph Show all of the Contradictory Evidence and statements.
ULURP Application |
ULURP Hearings |
Affidavits |
Government Documents |
|
Cornell was the owner of the small and large sites at the start of the rezoning. |
Yes |
Yes |
Yes |
No (ACRIS) |
Cornell Crown was the owner of the large site. |
No |
N/A |
No |
Yes (ACRIS) |
931 LLC was the owner of the small site. |
No |
N/A |
No |
Yes (ACRIS) |
Cornell sold off the large site. |
N/A |
Yes |
Yes |
No (ACRIS) |
CP VI became the new applicant on the ULURP application. |
No |
Yes |
Yes |
N/A |
Cornell was removed from the ULURP application. |
No |
No mention |
Yes |
N/A |
DCP put CP VI on the ULURP application. |
No mention |
No mention |
No mention |
No |
CP VI is the agent of Cornell. |
N/A |
Yes |
No |
N/A |
Cornell remained the owner of small site. |
N/A |
Yes |
No |
No (ACRIS) |
Cornell and CP VI had an arm's length transaction. |
N/A |
Yes |
No |
N/A |
The $64 million sale of the large site bet. Cornell and CP VI was contingent on a successful rezoning. |
N/A |
Yes |
No |
N/A |
Cornell and CP VI had a Community Benefit Agreement tied to the large site. |
N/A |
Yes |
No |
N/A |
Cornell is the owner of 931 LLC and Cornell Crown. |
N/A |
Yes |
No |
No (N.Y. State & Delaware) |
Memorandum of Law for Petitioners Motion For Discovery
As a result of these very contradictory statements made by Cornell and the City to get this case dismissed, Petitioners have requested Discovery to determine what is fiction and what is fact.
Case laws states that when there is a discrepancy in facts pertaining to a Motion to Dismiss, the issues of a fact must first be settled before the Motion To Dismiss can be decided.
Discovery Requests
- LLC’s Information
Detailed Information regarding the LLC’s membership, to determine how Cornell Realty is connected to the any of the 16 property lots contained within the rezoning.
- Procedures of DCP and CPC.
Procedures and protocols of the Department of City Planning and City Planning Commission regarding succession (changing of applicant) of Certified ULURP application along with the requirements of applicants regarding private rezoning application. (Petitioners believe that this rezoning is actually unlawful because Cornell Realty Management LLC never owned any of the properties).
- CP VI Certified Application
The Certified application of CP VI being the new applicant on the ULURP application. (All that has been given to Petitioners is an uncertified, unaccepted, unnumbered rezoning application, and the laws states only certified application may be processed via the ULURP process.)
- Doing Business As Form
Doing Business Database Form for Cornell Realty. This form gives more information about who are the owners of the LLC and their connection with the City, to expose conflict of interest issues. (The City gave CP VI’s but refused to give Cornell’s)
- Arms Length Agreement
Arms-Length Business Agreement between Cornell Realty and CP VI for the sale of one of the 16 lots contained within the rezoning parameters. An arms-length agreement denotes that the parties are separate entities and are not working on behalf of each other or for one party. However, Cornell stated that CP VI was its agent, and if that is true then the arms-length agreement would be unlawful.
- 1991 EAS and Studies
The Full EAS and the studies for the Community Plan of 1991. The City has stated that the Department of City Planning can not find this EAS, however, 6 other government entities were given a copy, for it went through the ULURP process and the law states that these records must be maintained.
- Community Agreement
The fully executed Community Agreement Plan that Councilwoman Laurie Cumbo stated on the record, was done in regards to this rezoning. (Currently Petitioners simply have a list of promises on a letterhead, with no signatures attached.)
Respondents Objection to Petitioners Request for Discovery
Both the City and Cornell have objected to the Petitioners request for discovery. They simply stated that the court should only review the documents in the middle of the rezoning application, when CP VI became the owners of one of the properties.
The City also suggests that the court should only review when the CP VI became the owner of one of the properties. The City also produced an uncertified, undocumented, unnumbered rezoning application, as “proof” that Cornell was replaced on the rezoning application by CP VI. However, they never stated which agency did this act, nor produced a certified application.
Petitioners Response in Further Support for Discovery and to Amend Caption
Cornell failed to provide any further proof of the many contradictory statements and evidence that was presented. They simply attached prior evidence to make it appear as if they were adding something new to the case when in fact they were not.
Petitioners point out that the City’s evidence of the succession of CP VI onto the ULURP application is defective in that this application was never officially received by DCP’s Intake Department, never given a number and never have been a part of the official records of the rezoning application. Below is an example of CP VI Uncertified Application and a copy of a Certified Rezoning Application.
It is also noted that without the affixed date stamp there is no proof that this application and the letter that came with it, wasn’t simply produced after this lawsuit was filed.
The City also produce the Doing As Business form for CP VI, who’s application wasn’t entered into the system or certified, but refused to provide Cornell’s who’s application was entered into the system and was certified. This proves that this information is purposely being hidden from the Court and the Petitioners.
The City also produced a FOIL denial for the EAS that was performed in 1991 Community plan, making the assumption that because one out of the seven government entities which stated they couldn’t find the EAS should prevent the Court from requesting the EAS. Especially in light of the fact that by law these records are to be maintained within the governments' files and should be available for review.
Petitioner assert that this information is purposely being denied for it would show exactly how high a development may go based upon the City’s calculations and analysis, before any damage is done to BBG.
This is important because the Courts as a rule do not attempt to assess or to judge the studies conducted by the City.. The are taken at face value. Therefore, the City's studies would prove or disprove that Cornell’s studies were defective.
Copy of CP VI’s Uncertified Application
Copy of a Certified Application 
The City Charter, which is the law that has created and empowered the ULURP process states clearly that only a certified application may proceed through the ULURP process.
Other Minor Objections
Cornell also made objections to minor issues that have occurred within the paperwork, but are merely mistakes that the law allows to be corrected. Petitioners believe this is done to simply waste time and make Petitioners expend time and energy having to defend against minor errors that can be easily corrected and no prevailing case laws that will allow a case to be dismissed. This includes not including their full name on the caption; not presenting all of the reliefs within one document, making the claim that service was not performed on them, despite an affidavit of service being filed, their attorneys showing up at each hearing and court appearance and their owner, Mr Hager stating that he didn’t give permission to his attorney to accept service.