Showing posts with label Lightstone Group. Show all posts
Showing posts with label Lightstone Group. Show all posts

Wednesday, August 7, 2013

rendering by Lightstone Group

Meanwhile, back in Brooklyn....
'Save Gowanus' is planning a rally on Thursday night at the Carroll Street bridge to protest the Lightstone Group's 12 story, 700 unit project at 363-365 Bond Street on the shores of the Gowanus Canal.

Save Gowanus is composed of Gowanus residents and home-owners living near the site on Bond Street between Carroll Street and 2nd Street, as well as members of civic groups Friends of Bond (FOB) and Friends and Residents of Greater Gowanus (FROGG)

Mayoral candidate Bill Thompson is scheduled to attend and will be speaking with concerned community members about the impact the Lightstone apartment complex will have on the community and on the Gowanus flood zone.

From a FROGG press release:
"This is not a rally to endorse Thompson's mayoral candidacy; instead, it is a chance "to bring broader attention to the issue of irresponsible development (which endangers scale, zoning, schools, transit and health and safety) in the context of the mayoral race.
It is extremely urgent that as many of you attend as possible. Please invite your neighbors as well. We need to show all our elected representatives how important this issue is to our community. They've already heard from the developers and their lobbyists; now it's our turn to be heard. This is the protest that will hopefully help bring attention to our issue in the media and the mayoral race."

***UPDATE  From Save Gowanus

Tonite's rally, which will be attended both by the media and by Mayoral candidate Bill Thompson, is still scheduled to happen at the Carroll Street Bridge.

However, in chance of rain, we'll be moving indoors to the community room of Mary Star of the Sea, 41 1st Street.

Keep your eyes peeled to the website, savegowanus.org, to find out if the rally has been moved to that indoor location.




Thursday, July 11, 2013

photo credit:Jeff Anzulewicz

Meanwhile, back in Gowanus...
I am still in France but have received a string of emails from Gowanus residents reporting that workers began tearing down the roof of an old brick building at 363-365 Bond Street, between 1st and 2nd Street yesterday. The building is located on the site of the 700-unit, 12 story Lightstone Group development.

According to reports, a crew of about 25 men with pick axes and saws started demolishing the rooftop of the building yesterday afternoon. Gowanus residents became concerned when they realized that no permits had been posted. More troubling was the fact that no asbestos monitoring equipment was present on site and the crew did not wear any protective gear.

Residents contacted Councilman Brad Lander's office and Community Board 6 to ask that the work be done according to local laws, with proper permits, and proper protections for workers and the local community. They also placed several calls to 311. Inspectors came out to the site later in the day and work stopped yesterday afternoon at about 2 pm.
Today, a crew was back building a plywood fence around part of the building. In addition, red and yellow caution tape with the words "Danger-Asbestos" has been put up.
NYC Department of Buildings has recorded a 'pre-filing' for the site on its web site. A permit for a plywood fence has also been recorded. There is, however, no sign of a demolition permit.

In addition, Lightstone has applied for the NY State  Department of Environmental Conservation Brownfield Cleanup Program. The program requires that any action on the site be first approved by the agency. It is likely that demolition work would also need to be approved.

This not a very good start for Lightstone Group and its highly contentious project.  Stay tuned for more...it's bound to be a long hot summer in Gowanus.




Tuesday, June 4, 2013

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Just a reminder to everyone in the community.

Save Gowanus, an association "dedicated to the responsible and sustainable development of the area surrounding the Gowanus Canal", is holding a very important meeting on the impact of the proposed 12-story, 700-unit Lightstone Group development at 363-365 Bond Street tonight, Tuesday, June 4th.

Please take the time to attend to hear an update on legal issues, fundraising, and getting support from local politicians.
'Save Gowanus' Meeting Tonight
Tuesday, June 4th @ 7 PM
Mary Star of the Sea
41 1st St. (bet. Hoyt and Bond)

To read more on this issue, click here.
Stay connected to Save Gowanus via their website or via their Facebook page.




Wednesday, May 29, 2013

image via Save Gowanus

Save Gowanus, an association "dedicated to the responsible and sustainable development of the area surrounding the Gowanus Canal", is holding its next meeting on the proposed Lightstone Group development at 363-365 Bond Street on Tuesday, June 4th.
Please take the time to attend to  hear an update on legal issues, fundraising, and getting support from local politicians.
Tuesday, June 4th @ 7 PM
Mary Star of the Sea
41 1st St. (bet. Hoyt  and Bond)

And if you can, stop by to meet and talk to members of Save Gowanus at the Carroll Park Fair, Sun. June 2nd 11-6.

Please also take time to tell NYS Department Of Environmental Conservation to safeguard our community from impacts of Lightstone’s Brownfield Cleanup by emailing your comment regarding Lightstone's application before June 1st.

You can do so by sending the following letter prepared by Save Gowanus.
(Click here to send it directly from their web site.)

The New York State Department of Environmental Conservation (NYS DEC)
Brownfield Cleanup Program (BCP)
John Grathwol, NYS DEC- Division of Environmental Remediation,
Remedial Bureau B,
625 Broadway,
12th Floor,
Albany, NY 12233-7016


Response to Brownfield Cleanup Program (BCP) application and Remedial Investigation Work Plan (RIWP) from LSG 400 Carroll Street LLC and LSG 363 Bond Street LLC for a site known as 400 Carroll Street and 363 Bond Street, site ID #C224173. This site is located in the City of Brooklyn, within the County of Kings, and is located at 400 Carroll Street and 363 Bond Street 11231

Redevelopment and Brownfield Cleanup Programs must take place in the context of our post-Sandy, climate change world. In Dec 2010 NYS issued the Sea Level Rise Task Force Report to the Legislature. The task force also recommends that city, county and state governments seriously consider abandoning whole areas of the coast altogether, to allow vegetation to gradually migrate away from the shoreline and give nature a chance to build more natural barriers to rising seas, hurricanes and severe storms known to hit the Northeast frequently. The report offered no other real solutions to this growing problem.

We are deeply concerned that the State of New York may be financially supporting and encouraging new large-scale residential development in flood-prone coastal districts which will also be subjected to the rising level of the sea. We are particularly concerned that such new large scale developments, while being designed in a manner to protect the new structures from flooding, will result in negative impact to flooding conditions in existing surrounding neighborhoods. We also are concerned about the prospects of adding large numbers of new residential buildings in flood districts that would require evacuation during storm conditions, even though the new structure may have sufficient freeboard to prevent flood damage to the building.

We believe that the State of NY should not extend state funding, in any form, to brownfield redevelopment sites in coastal areas that carry risks of of creating additional flood harm in the adjacent upland communities by altering region-wide coastal flooding and stormwater drainage patterns. We ask that any such property brought into the NYS Brownfield Cleanup Program that is in a coastal area, be required to provide an objective and thorough region-wide hydrological impact study that describes how the area drainage would change given the proposed development.

We also ask that any brownfield remedy carried out in such an area be assessed and evaluated for its effectiveness under storm and flooding conditions. We ask that a detailed explanation be given on how the remedy and the proposed redevelopment construction will function as sea level base lines rise over the coming decades and century. The citizens should know if the re-investment of their tax dollars are being put to a good or frivolous use.



Stay connected to Save Gowanus via their website or via their Facebook page.





Thursday, May 9, 2013

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Gowanus Rain 9-23-11 B
Rendering of proposed Lightstone Group's Project on shore of Gowanus Canal
image credit: Lightstone Group



It would seem appropriate that on a day that saw heavy rains and flash flooding in the Gowanus area, our elected officials sent a letter to City Hall to ask if the "potential for adverse hydrologic impacts upon surrounding properties resulting from re-grading of large sites within flood hazards areas" has fully been investigated.

In the letter addressed to Deputy Mayors Cas Holloway and Robert Steele yesterday , Councilmember Lander, Congresswoman Velázquez and State Senator Montgomery specifically mention the 12 story, 700-unit Lightstone Group's project at 363-365 Bond Street.

Lightstone intends to re-grade their building site by raising the site of the development by two feet at First Street to address FEMA's recently released post-Sandy Advisory Base Flood Elevations and to comply with changes to the Building Code.

Since the Gowanus Canal was originally engineered to drain the upland marshland surrounding the canal in order to keep water away from residences in Carroll Gardens and Park Slope, this change in hydrology raises serious concerns about flooding and drainage in the Gowanus area. It may mean more problems for nearby residents, who deal with flooded basements on an regular basis.

Lander, Velazquez and Montgomery are asking City Planning "if re-grading could-even in a limited set of circumstances- lead to such impacts, how will such impacts be evaluated?
For example, would the Department Of Buildings confer with the Department of Environmental Protection before approving building permits for a re-graded site in a flood hazard area, such as that planned for 363-365 Bond Street?"

Further, Lander, Velazquez and Montgomery believe that " it would be better to bring all stakeholders to the table to develop a comprehensive plan for the infrastructure, flood protection, and land use regulations needed for a safe, vibrant, and sustainable Canal area. We should seize this opportunity to create an innovative model for low-lying, mixed-use waterfront areas on a warming planet."

It is encouraging that our Electeds recognize the hydrological impact to surrounding areas if developers like Lightstone's are allowed to re-grade the Gowanus area.

We need a new hydrological study before any new development moves forward.



Saturday, April 27, 2013

illustrations courtesy of Lightstone
Gowanus residents, together with civic groups Friends of Bond (FOB) and Friends and Residents of Greater Gowanus (FROGG), have organized a meeting regarding the 12-story, 700-unit Lightstone Group project that is moving forward at 363-365 Bond Street, between Carroll Street and 2nd Street.
In 2009, the development site, adjacent to the polluted Gowanus Canal,  was spot-rezoned from manufacturing to residential.  In March 2013NYC's Department of City Planning (DCP) approved the plans and drawings for Lightstone's as-of right project.
The purpose of the meeting is to discuss "concerns as to how this development could adversely affect" the neighborhood.  One of these concerns relates to the fact that the site sits in a FEMA Flood Zone A and was severely flooded during Hurricane Sandy in October 2012 as well as during Hurricane Irene the previous year. To address FEMA's recently released post-Sandy Advisory Base Flood Elevations and changes to the Building Code, Lightstone plans to raise the site of the development by two feet at First Street.
How the change in grade will affect surrounding buildings has not yet been fully explained to local residents of this flood-prone area.
Many area residents have asked for further studies of the area and upgrades to infrastructure before any development along the Canal is allowed to move forward.  Councilman Brad Lander, whose district includes most of Gowanus, seems to agree. “In the wake of Hurricane Sandy, I continue to believe it is a mistake to move forward with dense, high-rise, residential development without a comprehensive plan for infrastructure and land use regulations that Gowanus needs," Lander stated.

The community meeting has been scheduled for:
Wednesday, May 1
6:45 pm
Mary Star of the Sea, 
41, 1st Street (between Bond and Hoyt Streets)

And just as an aside: Does anyone know what these un-marked barrels,  which appeared on the Lightstone development site at 2nd Street recently, contain?  The fence around the property was destroyed during Hurricane Sandy, so it is entirely unprotected.  Perhaps someone dumped them there?
It is my understanding that Lightstone Group has not yet purchased the land, so they may not yet have control over it.
It would be interesting to find out who is responsible for keeping the site safe.

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Monday, March 18, 2013

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NYC Department Of City Planning Hearing for Lightstone Group's Gowanus development  
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Commissioner Betty Chen, Commissioner Michelle De La Uz, and Amanda Burden,  Chair of the NYC Department Of City Planning
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Commissioner Michelle De La Uz and City Planning Chair Amanda Burden
(De La Uz is the executive director of the 5th Ave. Committee. During the Lightstone discussion, she recused herself, since the developer has contracted with the 5th Avenue Committee to manage the affordable units included in the project.)
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 Amanda Burden,  Chair of the City Planning Commission
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Purnima Kapur, City Planning Brooklyn Director
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Aline Fader, representing NYC DCP Brooklyn Office, presents Lightstone's newest plan
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Aline Fader and colleague present Lightstone Groups's as-of-right project

Just a few days ago, it was announced that Lightstone Group is proceeding with its 500,000 square feet mixed-use housing development on the shores of the Gowanus Canal at 363-365 Bond Street as an as-of-right development and has abandoned the minor modification which it had previously requested of NYC's Department of City Planning (DCP).

During DCP's review session on Monday afternoon, representatives of the Brooklyn DCP office explained that Lightstone, apparently wanting to avoid the risk of legal action,  has withdrawn its minor modification application and has decided to pursue the as-of-right development under zoning granted in 2009.
This project had come in front of the commission once before in September 2012 as a 'minor modification' of the original 2009 special permit project previously granted to Toll Brothers.

This as-of-right development is nevertheless subject to City Planning Commission approval because the 2009 special permit project was made subject to a restrictive declaration that was attached to the plans and drawings.

One of the purposes of the restrictive process was to help insure that the key urban design principals of the special permit project, which ensures that the taller portions of the development should be on the canal side and the lower portions should be along Bond Street, would be respected.

The second restriction has to do with Waterfront Zoning Regulations, which did not apply to the Gowanus Canal at the time of the original approval in early 2009.  However, later the same year, the City Council made the canal subject to the zoning regulations and water front open space will now be required in connection with the as-of-right project under those provisions.

The original 2009 project provide public open space along the canal that was designed "in the spirit of" the Waterfront Regulations. It did not strictly adhere to them.  Lightstone has modified the drawings to allow the requited waterfront public access area to be included, resulting "in a net increase of open space on the Southern block, where the building is being pushed back by approximately 20 feet."

To address FEMA's recently released Advisory Base Flood Elevations and  changes to the Building Code,  the site will be raised by 2 feet at First Street. Lightstone will elevate the ground floor of the building approximately 1.1 foot and make the street level parking garage a "bath tub structure".

At yesterday's DCP session, Lightstone sought approval for the plans and drawings for the as-of right project.
The Planning Commission votes unanimously to grant the approval.

However, at a later date, the applicant will need to seek a Waterfront Certificate from Chair Amanda Burden in regards to the design of the waterfront open space. The certificate will specify the design of the open space and certify that it meets the zoning requirements. The applicant is expected to file the application later this year.

"And at that point, and only at that point, will the developer be able to begin construction. So it's really a two-step process" a representative of the Brooklyn DCP office was quick to point out during the presentation.




Sunday, March 17, 2013

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Old rendering of Lightstone Development next to the Gowanus Canal (credit: Lightstone Group)
Lightstone new rendering
New Rendering Of Lightstone Development
(Via Councilman Lander's office)
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New elevation drawings for Lightstone Project. Click here for enlarged view
(Via Councilman Lander's office)
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Lightstone Development site, Canal at Carroll Street during Sandy (photo credit: Margaret Maugenest)
Second Street at canal during storm (photo credit: Triada Samaras)
Sandy flooding at First Street near Canal (photo credit: Carl Teitelbaum)

***Important Information For All Carroll Gardens/Gowanus Residents***

Tomorrow, Monday March 18
at 1 pm
Spector Hall, 22 Reade Street, New York, New York

There is some very important information that was circulated late last week on Lightstone Group's proposed large-scale Gowanus development at 363-365 Bond Street, between Carroll Street and 2nd Street.
According to Councilman Brad Lander's office, which informed several Gowanus residents on Thursday evening, Lightstone is proceeding with the project "as of right" and has abandoned the minor modification which they had previously requested of NYC's Department of City Planning (DCP).

In 2012, hoping to piggy-back on the former Toll Brothers project at the same site, Lightstone had sought DCP's approval for variations in the base height of the project, building heights and footprints of portions of the buildings, relocation of parking entrances, changes to the location and design of the open space, and changes to the number of residential units from 447 to 700.  DCP considered these changes "minor" modification's, which are subject to review and approval only by the Commission, rather than 'major' modifications that require the initiation of a new ULURP.

DCP was going to rule on this matter in November 2012, but the hearing never took place because of Hurricane Sandy. The community was told that DCP and its Brooklyn office were first waiting for the release of Federal Emergency Management Agency's new post-Sandy "Advisory Base Flood Elevations (ABFE)", which indicate significant expansion of the flood plains.
The ABFEs for the Gowanus area were published very recently.

Perhaps concerned about new flood regulations in Zone A and of legal challenges, Lightstone has re-configured the proposed 700-unit development so that it can move forward according to the site's existing zoning. To address the fact that the land sits squarely in FEMA's flood zone A and to comply with new waterfront development rules, Lightstone has pulled away slightly from the water and increased the grade at First Street.

City Planning has placed the Lightstone item back on its calendar for tomorrow, Monday March 18, at 1 pm, Spector Hall, 22 Reade Street, New York, New York. (It's the 9th agenda item).  The meeting is open, but no comments will be accepted from the public.
All important information can be found here: http://www.nyc.gov/html/dcp/pdf/luproc/reviewsession.pdf?r=031813

I urge everyone to attend. This project will most likely serve as the blueprint for the over-all rezoning for the Gowanus Canal and will create repercussions for neighboring residents.  The plan to raise the entire site will most likely increase flooding in nearby properties.  

Councilman Brad Lander, who has previously asked Lightstone to withdraw its application, issued the following comment on Friday:  “In the wake of Hurricane Sandy, I continue to believe it is a mistake to move forward with dense, high-rise, residential development without a comprehensive plan for infrastructure and land use regulations that Gowanus needs.” 



Tuesday, November 27, 2012

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363-365 Bond Street
Image of proposed development courtesy of The Lightstone Group
To read the letter in its entirety, click here

Brooklyn Law School Community Development Clinic  recently sent a letter to Amanda Burden, Chairperson of New York City's Department Of City Planning (DCP) on behalf of Friends And Residents of Greater Gowanus (FROGG) urging her agency to take no further action on the Lightstone Group's application for a modification to its previously approved special permit related to a proposed large- scale general development project at 363-365 Bond Street in Gowanus, Brooklyn.

Hoping to piggy-back on the former Toll Brothers project, which called for 447 condo units on the shores of the Gowanus Canal, Lightstone is seeking DCP's approval for variations in the base height of the project, building heights and footprints of portions of the buildings, relocation of parking entrances, changes to the location and design of the open space, and changes to the number of residential units from 447 to 700.
DCP considers these changes "minor" modification's which are subject to review and approval only by the Commission, rather than 'major' modifications, which would require the initiation of a new ULURP.

After researching the legality of this matter, Brooklyn Law School Community Development Clinic concluded that :

*DCP’s consideration and administrative approval of “minor modification” applications outside the Uniform Land Use Review Procedure1 (“ULURP”) is ultra vires and therefore null and void.

*DCP’s determination does not carry the force of law because the rule that DCP applies to evaluate proposed modifications was not adopted pursuant to the strict requirements of the City Administrative Procedure Act2 (“CAPA”). 
*DCP's failure to account for the proposed increase in floor area, a mandatory consideration under DCP's impermissible rule, "was arbitrary and capricious and in violation of applicable law. " N.Y.C.P.L.R. 7803 (3).

The findings confirm what many Gowanus area residents have been suspecting for a long time: that the DCP 'minor modification' process was flawed from the beginning and that it allowed the developer to circumvent the usual ULURP process.

Ironically, Brooklyn Law School Community Development Clinic's letter was delivered to Amanda Burden in time to be considered for DCP's deliberations on the Lightstone matter that were scheduled for Monday Oct 29th, 2012, the day Hurricane Sandy flooded the city and this proposed development site with a 14 foot storm surge. The meeting has yet to be rescheduled.

You can read the Brooklyn Law School letter in its entirety after the jump by clicking here

BLS Legal Services Corp. Community Development Clinic 

David Reiss
Director 




October 26, 2012

DirectorAmanda Burden,
New York City Department of City Planning

22 Reade Street
New York, New York 10007


Dear Ms. Burden,
We write on behalf of the Friends and Residents of Greater Gowanus (FROGG). FROGG is a not-for-profit community organization devoted to the preservation of the history and heritage of the Gowanus area in South Brooklyn. The Lightstone Group (“TLG”) submitted an application to the Department of City Planning (“DCP”) for a modification (M 090048(A) ZSK) to its previously approved special permit (C 090048 ZSK) related to a proposed large- scale general development project at 363-365 Bond St., Brooklyn, New York. DCP now seeks to approve the application based on its “determination” that the proposed modifications are “minor.” See David Karnovsky’s letter to Brad Lander (“Karnovsky Letter”), attached. FROGG vigorously opposes DCP’s approval for the following reasons:
I. DCP’s consideration and administrative approval of “minor modification” applications outside the Uniform Land Use Review Procedure1 (“ULURP”) is ultra vires and therefore null and void. 
II. DCP’s determination does not carry the force of law because the rule that DCP applies to evaluate proposed modifications was not adopted pursuant to the strict requirements of the City Administrative Procedure Act2 (“CAPA”). 
III. DCP’s failure to account for the proposed increase in floor area, a mandatory consideration under DCP’s impermissible rule, was “arbitrary and capricious and in violation of applicable law.” N.Y. C.P.L.R. 7803(3).

I. DCP’s consideration and administrative approval of “minor modification” applications outside ULURP is ultra vires and therefore null and void. 

DCP argues that a “minor modification” to a previously approved special permit does not require a new ULURP application and is not subject to City Council review. See Karnovsky Letter. Admittedly, DCP has the authority to approve “minor modifications” to special permit applications during the ULURP process.

This is apparent in Windsor Owners Corp. v. City Council of City of New York, 23 Misc.3d 490 (Sup. Ct., N.Y. Cty. 2009). There, as is proper under the ULURP rules, the City Council proposed modifications to a ULURP application and “remanded” it to the City Planning Commission (“CPC”) for review. The CPC applied the criteria set forth in 62 R.C.N.Y § 2-06(g) (5), to determine that the modifications were “minor,” meaning that the plan did not have to go through ULURP again and was not subject to additional public hearing. However, the CPC’s determination was subject to, and ultimately received, City Council approval.

The Karnovsky Letter failed to cite any legal authority that would extend Windsor’s holding to previously approved ULURP applications. If DCP relies on Section 2-06 of the ULURP rules as a textual basis for its “authority” here, such reliance is misplaced. As Windsor makes clear, that section applies to proposed modifications during the ULURP process, before the City Council makes its final decision.

In addition, even if DCP’s authority to approve “minor modifications” extended to previously approved special permits, The Karnovsky letter also failed to explain why such approval is not subject to City Council review. While it is true that not all special permit applications or modifications thereto are automatically subject to Council approval, City Council may, in any case, “take up” the application for an up or down vote. See New York City Charter §§ 197-d(b)(2)-(3) & 197-c(a)(4); 62 R.C.N.Y § 2-06(g)(5)(ii). Thus, DCP’s stated course of action -- to consider and approve TLG’s application despite the fact it is outside ULURP -- is outside the scope of its legislatively delegated authority and is therefore null and void.3 See Eastport Alliance, 13 A.D.3d at 529; Old Dock Assoc. v. Sullivan, 150 A.D.2d 695, 697 (2d Dep’t. 1989).

II. DCP’s determination does not carry the force of law because the rule that DCP applies to evaluate proposed modifications was not adopted pursuant to CAPA’s strict requirements.

Even if legislature had authorized DCP’s administrative approval mechanism, the standard by which DCP evaluates proposed modifications is a “rule” subject to CAPA4, and was not adopted in accordance with CAPA’s strict rulemaking requirements. CAPA provides the following definition:

5. "Rule" means the whole or part of any statement or communication of general applicability that (i) implements or applies law or policy, or (ii) prescribes the procedural requirements of an agency including an amendment, suspension, or repeal of any such statement or communication.
a. "Rule" shall include, but not be limited to, any statement or communication which prescribes... (iii) standards for the issuance, suspension or revocation of a license or permit...
N.Y.C. Charter § 1041 (emphasis added). 

This definition is broad by design. See Report of the New York City Charter Revision Commission: December 1986—November 1988, at 86 (Apr. 1989) (“The term “general applicability” encompasses any statement or communication that applies similarly to members of a class, regardless of the number of members in any such class....The definition is intended to be construed broadly to accommodate the act’s basic objectives.”).

New York Courts have broadly interpreted CAPA’s definition of “rule” as well. In 1700 York Assoc. v. Kaskel, 182 Misc.2d 586 (Civ. Ct., N.Y. Cty. 1999), the Court found that a city agency’s policy prohibiting the keeping of ferrets as domestic pets was a “rule” under CAPA. The agency based its policy on its interpretation of 24 R.C.N.Y. § 161.01(a), which prohibits keeping an “animal of a species which is wild, ferocious, fierce, dangerous or naturally inclined to do harm” in a residential dwelling. Finding no previous judicial interpretations of the term “general applicability” under CAPA, the Court turned to judicial interpretations under the State Administrative Procedure Act (SAPA) § 102(2)(a)(i), since the “term is used so similarly” there. Id. at 593. The court provided as follows:

A statement “of general applicability” is “a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme.” The statement need not regulate the general public; if a policy is to be “invariably applied across-the-board” to the segments of the population within its ambit “without regard to individual circumstances or mitigating factors.... [it] falls plainly within the definition of a ‘rule.’
Id. (internal citations omitted).
Since the policy in question extended “invariably across the board” to anyone who had a pet ferret, the Court concluded that this decision constituted a “rule” of “general applicability” which was not adopted pursuant to CAPA’s rulemaking requirements and was thus not entitled to the “force and effect of law.” Id. at 593-94 (quoting Schwartfigure v. Hartnett, 83 N.Y.2d 296, 301 [1994]). See Cordero v Corbisiero, 80 N.Y.2d 771, 773 (1992) (The Court of Appeals struck down the State Racing and Wagering Board’s policy of imposing one-race suspensions on horse jockeys for certain infractions, concluding it was a “rule” under SAPA because it was one “of general applicability which prescribe[d] a procedure or practice requirement of the agency.”)

The New York County Supreme Court in Callahan v. Carey, 2012 N.Y. Slip Op. 30400(U) (Trial Order), defined the contours of CAPA’s “rule” definition, including a description of the characteristics that distinguish a “rule” from an “interpretive policy” not subject to CAPA. The Court, also relying on interpretations of SAPA for guidance, explained as follows:

CAPA's rule making process is mandated when an agency establishes precepts that remove its discretion by dictating specific results in particular circumstances. Only a fixed general principle to be applied by an administrative agency, without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers, constitutes a rule or regulation that must be formally adopted. Rules are not implicated where there is the ability for ad hoc decision making or where decision makers are vested with significant discretion to independently exercise their professional judgment. Nor are rules implicated by interpretative statements, or statements of general policy, that have no legal effect.
Id. (citations omitted).
Citing the Court of Appeals, The Supreme Court acknowledged that rules are “generally broader and [have] more direct public impact than.... interpretative policies,” and there is “no clear bright line between [the two].” Id. The inquiries necessary to make the distinction, therefore, are “necessarily circumstance driven,” and “turn on matters of degree.” Id.
In that case, the procedure in question “sets forth the standards by which [the Department of Homeless Services (“DHS”)] will determine whether individuals who apply for temporary housing assistance are eligible.” Id. The policy stated that “DHS will utilize this Procedure to determine whether an applicant for THA is an eligible homeless person. This determination will be based on an assessment of whether the applicant has a viable housing option where s/he can live even on a temporary basis...” Callahan, 2012 N.Y. Slip Op. 30400(U) (emphasis in original). DHS is then required to make its determination based upon the “totality of the applicant's circumstances, with an analysis of each applicant's situation in accordance with all relevant factors including those enumerated in [the policy].” Id. Despite the ad hoc nature of the standard and its “broad language,” the court concluded the procedure was nonetheless a “rule” subject to CAPA because it applied to all applicants for temporary housing and was based on “criteria that are outcome determinative...” Id.

DCP’s criteria for determining whether proposed modifications are “minor” are those set forth in the ULURP rules governing the CPC’s authority to determine whether modifications proposed by Council during ULURP, require the initiation of a new ULURP application. The rules provide as follows:

[The City Planning Commission] shall have fifteen (15) days to review [Council’s proposed modification] and to determine: ... (ii) whether the modification requires the initiation of a new application. In making this determination, the Commission shall consider whether the proposed modification: (A) increases the height, bulk, envelope or floor area of any building or buildings, decreases open space, or alters conditions or major elements of a site plan in actions (such as a zoning special permit) which require the approval or limitation of these elements; (B) increases the lot size or geographic area to be covered by the action; (C) makes necessary additional waivers, permits, approvals, authorizations or certifications under sections of the Zoning Resolution, or other laws or regulations not previously acted upon in the application ... 
If the Commission has determined that no additional review is necessary ..., it shall so report to the Council. The Commission may also transmit any comment or recommendation with respect to the substance of the modification, and any proposed further amendment to the modification which it deems as necessary or appropriate.  
62 R.C.N.Y § 2-06(g)(5)(ii) (emphasis added). 
As case law and legislative history make clear, DCP’s informal “adoption” of these criteria to evaluate whether a proposed modification is “minor” constitutes a “rule” subject to CAPA for several reasons. First, DCP concedes that these considerations generally apply to all applications for “minor” modifications. Second, as in Callahan, the use of the word “shall” in 62 R.C.N.Y § 2-06(g)(5)(ii) removes DCP’s discretion by mandating the consideration, which necessarily renders “certain” of these criteria to be “outcome determinative.” See Callahan, 2012 N.Y. Slip Op. 30400(U). In fact, DCP’s policy has stronger characteristics of a “rule” than did the policy in Callahan, since one might argue that the policy in that case implicitly allowed some level of discretion insofar as determinations were to be based on the “totality of the applicant’s circumstances.” Id. No such language appears in 62 R.C.N.Y § 2-06(g)(5)(ii).5 Finally, CAPA’s basic goal -- “to provide an open process in agency rulemaking” -- supports finding DCP’s policy to be a “rule.” See New York City Charter Revision Commission, Summary of Final Proposals 6, 1988. Accordingly, since DCP’s rule was not promulgated according to CAPA’s strict requirements, including those for notice, comment, public hearing, and publication, it does not carry the “force and effect of law.” 1700 York Assoc., 182 Misc.2d at 586.

III. DCP’s failure to account for the proposed increase in floor area, a mandatory consideration under DCP’s impermissible rule, was “arbitrary and capricious and in violation of applicable law.” N.Y. C.P.L.R. 7803(3).

As discussed above, DCP generally considers a modification to be “minor” so long as it does not “increase the extent of any previously granted waivers of underlying use or bulk regulations” or “require new waivers or forms of approval not encompassed within the prior action.” Karnovsky Letter. These criteria are “generally those set forth in Section 2-06(g)(5)(ii) of the ULURP Rules....” Karnovsky Letter.

DCP failed to then properly apply its self-imposed, albeit impermissible, rule to TLG’s application. Specifically, 62 R.C.N.Y § 2-06(g)(5)(ii) mandates that CPC consider increases in floor area. TLG’s proposed modification does, in fact, increase the floor area of the project by 2,834 square feet. See Amanda Burden’s letter to Brooklyn Community Board 6, attached. The Windsor court explained that a modification is minor so long as it does not exceed the original plan with respect to any of the criteria under section 2-06(g)(5)(ii). 23 Misc.3d at 501. If it does exceed the original, despite whether the increase still complies with the underlying zoning restriction, it is a “significant modification” that “require[s] a new ULURP application and public hearing.” Windsor Owners Corp. 23 Misc.3d at 501. The Karnovsky letter is conspicuously silent as to this enlargement. Since consideration of all the factors in Section 2-06(g)(5)(ii) is mandatory, and since the increase in floor area constitutes a “significant modification,” DCP acted in “violation of applicable law” (“applicable” insofar as DCP conceives it, anyway). See N.Y. C.P.L.R. 7803(3).
***

For all the reasons outlined above, FROGG respectfully requests that DCP takes no further action on TLG’s application, which includes making a determination on the application at the upcoming City Planning Commission review session on Monday, October 29, 2012, as such action exceeds DCP’s statutory authority, violates CAPA, and is arbitrary and capricious in violation of applicable law.
Sincerely,

Brooklyn Law School Community Development Clinic
Grady Southard, Legal Intern
Jeffrey Ling, Legal Intern
Sarah Udashkin, Legal Intern

cc: 

City Planning Commission
David Karnovsky, Esq.
Hon. Brad Lander
Craig Hammerman, District Manager, Brooklyn Community Board 6 Purnima Kapur, Director, DCP Brooklyn office
Aline Fader, Planner, DCP Brooklyn office
Hon. Velmanette Montgomery, New York State Senator, 18th Senate District Hon. Nydia Velázquez, U.S. Representative, 12th Congressional District




1 N.Y.C. Charter §§ 197-c & -d; 62 R.C.N.Y § 2-01 et seq. 
2 N.Y.C. Charter §§ 1041 - 1046
3 Moreover, “[w]here a local land use agency acts without jurisdiction in approving or denying a site plan, special
permit, or other land use application, a challenge to such an administrative action, as ultra vires, is not subject to the 30–day limitations period” for land use determinations. Eastport Alliance v. Lofaro, 13 A.D.3d 527, 529 (2d Dep’t. 2004).
4 CAPA applies here despite N.Y.C. Charter § 1041(b)(vi), which exempts certain ULURP actions from CAPA’srequirements. If we assume that that the DCP mechanism at issue (1) is a ULURP action, and (2) that it qualifies for this exemption, DCP would exceed its scope of authority by not subjecting its determination to Council Review as ULURP would require. Thus, either CAPA applies, or DCP’s mechanism is null and void. See Eastport Alliance, 13 A.D.3d at 529.
5 Any level of “discretion” this section might seem to grant to CPC say, for example,-- based on its right to propose additional modifications that it deems “appropriate” -- would necessarily be limited by the provision’s intended context. Even if the drafters would otherwise endorse CPC’s “adoption” of this provision under these circumstances, surely they would not intend for the word “appropriate” to give CPC unfettered discretion even where there is no Council review.




Tuesday, November 13, 2012

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700-unit Lightstone Group Development (credit: Lightstone Group)
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Lightstone Development site, Canal at Carroll Street during Sandy (photo credit: Margaret Maugenest)

It would seem that Hurricane Sandy and the massive flooding caused by the storm is causing some politicians to take a stand against building in low-lying areas.
I just received a letter from Councilman Brad Lander's office that was sent to David Lichtenstein, COE of Lightstone Group in regards to the company's proposed Gowanus development at 363-365 Bond Street.  The site, adjacent to the Gowanus Canal, is located in a Flood Zone A and was evacuated both during Hurricane Irene in August 2011 and during Hurricane Sandy just two weeks ago.

This is a brave step for Councilman Lander and I applaud him for it.

Below is his letter to David Lichtenstein.



November 13, 2012

Mr. David Lichtenstein
Chairman and CEO
The Lightstone Group
460 Park Avenue #1300
New York, NY 10022

Dear Chairman Lichtenstein:

I write to urge the Lightstone Group to reconsider – and, for the time being, withdraw – the application you have submitted to the New York City Planning Commission for 363-365 Bond Street, on the banks of the Gowanus Canal, in the wake of Hurricane Sandy.

As you know, Hurricane Sandy brought an unprecedented storm surge that inundated waterfront neighborhoods, caused billions of dollars in damage, and left tens of thousands of New Yorkers without electricity, heat, or safe shelter. Within my district, many of those most impacted by the storm live and work near the Gowanus Canal, which overflowed its banks and flooded neighboring homes and businesses. As you are no doubt aware, the site of your proposed development was under several feet of water during the storm.

In the wake of the storm, alongside our ongoing relief and recovery efforts, it is essential to rethink our approach to the development of areas along the water’s edge, which are most vulnerable to severe weather – especially those that flooded during Hurricane Sandy. I believe it would be a serious mistake for you to proceed as though nothing had happened, without reconsidering or altering your plans, and putting over 1,000 new residents in harm’s way the next time an event of this magnitude occurs.

I therefore urge you to withdraw your application for 363-365 Bond Street, and to take part in a planning dialogue that engage local stakeholders, elected officials, and public agencies at every level of government to account for the high risk of future storm surges. With this approach, we can turn this moment of disaster into an opportunity for thoughtful planning and infrastructure investments that will lead to sound, long-term, balanced development. Without such planning, we can expect to again see the high costs and, more importantly, the tragic impacts such storms have on our city.

If you agree to withdraw your application at this time, I will be glad to work with you in the future as we develop new plans for the area. If you choose not to reconsider in light of what we have learned from Hurricane Sandy, but instead push forward with your existing proposal unchanged, I will urge the City Planning Commission to reject your application. As I believe you are aware, I also have serious questions about the public process for consideration of “minor modifications,” which does not appear to be based in any applicable legal framework from the City Charter, Administrative Code, Local Law, or agency rules.

I therefore urge the Lightstone Group to take strong leadership by withdrawing and reevaluating your proposed project. Working together – with local stakeholders, elected officials, public agencies, and the development community – I believe we can formulate guidelines for waterfront development and create a future for the Gowanus Canal area that turns the destruction our city has seen over the last two weeks into a thoughtful, sustainable, long-term plan for our future.

Thank you for your consideration.

Sincerely,
Brad Lander
City Councilmember, District 39

CC: Kasra Sanandaji, Senior Vice President, Investments, The Lightstone Group
Ethan Geto, Principal, Geto & de Milly
Purnima Kapur, Director, Brooklyn Borough Office, NYC Dept. of City Planning
Craig Hammerman, District Manager, Brooklyn Community Board 6

Monday, November 12, 2012

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Proposed Lightstone Development next to the Gowanus Canal (credit: Lightstone Group)
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Lightstone Development site, Canal at Carroll Street during Sandy  (photo credit: Margaret Maugenest)
Second and Bond Streets during storm (photo credit: Triada Samaras)
Sandy flooding at First and Bond Streets near Canal (photo credit: Carl Teitelbaum)

On November 13th***, NYC's Department Of City Planning will be reviewing The Lightstone Group's application for "minor modifications" to the previously approved land use actions at 363-365 Bond Street on two blocks right next to the Gowanus Canal. One of those minor modifications is to increase the number of units from 447 to 700, which doesn't seem so very minor at all.

In 2009, after a Uniform Land Use Review Process (ULURP) that was set in motion by Toll Brothers, a national development company, the property was spot re-zoned by City Planning from manufacturing to special mixed-use, which allows housing.
After the Gowanus Canal was declared a Superfund Site by the US Environmental Protection Agency in 2010, Toll Brothers decided to abandon plans for their proposed condo development.

Lightstone revived the project and is planning a 700-unit rental complex. In order to proceed, they just need City Planning's approval.  (It is important to note that Lightstone could start construction on the previously approved 447 unit building immediately.)

Many Gowanus residents have warned that the building site is in a flood zone A and that the infrastructure, especially the sewer system in the Gowanus area is dreadfully antiquated.  
After Hurricane Sandy and the ensuing flooding, these concerns are well founded.

The group Friends And Residents Of Greater Gowanus (FROGG) just released the  statement below aimed at NYC Planning and Chairperson Amanda Burden to address the 'new reality' about the vulnerability of our shoreline and the risks of bringing more residents to a flood plain.

BROOKLYN RESIDENTS, SMALL BUSINESSES BLAST NY CITY PLANNING’S DECISION TO CONSIDER A NEW 700-UNIT APARTMENT COMPLEX IN CONTAMINATED ZONE A
Development would be the first approved since Superstorm Sandy despite being in a flood-prone, mandatory evacuation zone along a hazardous Superfund site; Brooklyners upset at the prospective rise in insurance costs from the eventual bail out of this building in the next storm; City Planning to discuss approval November 13.***
Brooklyn residents and small businesses are outraged that the New York City Planning Commission will consider a proposal to build a gigantic 8 to 12 story apartment complex to house over 1400 residents on the banks of the Gowanus Canal, which is a hazardous federal Superfund site. Their proposed site was under more than 10 feet of toxic, sewage- contaminated water during Hurricane Sandy.
After the mandatory evacuation order for Zone A and the continuing devastation from the hurricane, many Gowanus residents have still not been allowed to return to their damaged buildings. Other high rises in the neighborhood, such as the Gowanus Houses, are still without power and heat a week after the storm. The EPA is currently conducting street-level site sampling to determie whether the cancer-causing contaminants from the canal’s toxic sediments linger and are harmful to citizens. It’s in this dystopian environment that the Lightstone Group is applying
to build an apartment complex. “It is lunacy for the city to consider this project in light of the damage from the hurricane,” says Linda Mariano, co-chair of the community advisory group Friends and Residents of the Greater Gowanus (FROGG). “We are calling for a full moratorium on development and all up-scale zoning changes in any waterfront district.”
A 2010 State Sea-Level Task Force Report recommends " restriction of new development and redevelopment in high- risk areas”. That’s because the costs of dealing with a storm’s aftermath is too costly to New York taxpayers. The dollars to bail out residents during future storm surges raises everyone’s taxes as well as insurance rates.
The NY City Planning Commission will discuss this project at a November 13 meeting at which the public is not allowed to speak. Unlike other proposals for new developments, the Lightstone project is slipping backdoor through a loophole in the city planning process. The proposal will not go through a city ULURP hearing or have to file and environmental impact statement because of
an earlier area spot zoning in 2009. However, given the federal government’s designation of the Gowanus Canal as a Superfund site in 2010 and the incredible damage and displacement
from Hurricane Sandy, it is irresponsible for the City Planning Commission to greenlight such a development at this time.
Lightstone has said that despite the storm, it will proceed with building, claiming that they plan to raise the grade of their development to offer protection to the new residents. However, the surge brought in by Sandy exceeded their proposed elevation changes. And even if their buildings are above the flood plain,  all their of nearly 1400 residents will still need to be evacuated in the next storm– a task made more complicated by the city’s evacuation route also being underwater for high tides during the storm. Furthermore, in Sandy’s wake, new developments can’t only seek to impede a flood by trapping storm water, but also need to be evaluated as to whether they can assist in the speedy drainage of future storm surges, something Lightstone’s proposal does not include.
“Flood water would not only find another path, it would go further up each side of the Canal to find open or other accessible space,” says Diane Buxbaum, a neighborhood resident and environmentalist “It makes no sense to continue building on our shore areas. Creating open areas and trying to restore some link to wetlands is the better choice.”
More than 500 Brooklyn residents and small businesses have signed a petition decrying the development, and it is also opposed by a large number of community groups incluing FROGG (Friends and Residents of Greater Gowanus), CORD (Coalition for Responsible Development) and the Central Brooklyn Independent Democrats, among others.
These allies call upon Governor Cuomo, Mayor Bloomberg, Congresswoman Nydia Velasquez and Councilman Brad Lander and other elected officials, acting under the power of the current “State of Emergency,” to take the first steps in addressing the effects of hurricane and storm surge catastrophes by calling for a moratorium on development and all up-scale zoning changes in any waterfront district that was affected by the storm surge of hurricane Sandy. They call for Amanda Burden and the NY City Planning to put an immediate moratorium on the review or approval of any pending projects planned for Zone A, including that of the Lightstone Group, until new guidelines for such development have been created. To do otherwise would not only be foolish, but irresponsible and costly to the community as well. As Governor Andrew Cuomo recently stated, “We have a 100-year flood every two years now.” The NY City Department of Planning must acknowledge this fact, and act accordingly.
We must rebuild following Sandy – but not at the water’s edge. Let’s not create new and costly regional flood control problems.

*** The hearing on this development was delayed. The date apeared on NYC Department of City Planning's online calendar prior to Hurricane Sandy, but was removed after the storm. No word yet on when it will be rescheduled.