Opening Salvo in Elizabeth Street Garden Lawsuit Against the City

Posted on: November 19th, 2020 at 5:12 am by

Photo: Elizabeth Street Garden

City Council voted to redevelop Elizabeth Street Garden in favor of the Haven Green affordable, senior housing mixed-use project last year, but two lawsuits filed prior to that determination are only now circulating the court system.

Yesterday, Manhattan Supreme Court Judge Debra James heard oral arguments from both legal teams as well as and the city’s defense counsel.

While the proceedings are the first step in the effort to halt destruction and redevelopment of  Elizabeth Street Garden, Judge James stressed that oral arguments are not part of a hearing or a trial, and that no witnesses or evidence would be heard. Instead, the forum provided both sides with the opportunity to verbally reference documents already filed with the court.

Needless to say, a long legal battle is ahead. One which will ultimately decide the fate of the beloved community garden. As reported, two separate lawsuits were filed, one by Friends of Elizabeth Street Garden, represented by preservationist attorney Michael Gruen and another by Elizabeth Street Garden Inc,, the group that now maintains and programs the garden, whose legal team is led by attorney Norm Siegel. (Both of whom appeared together at the Community Board hearing on the subject during the City’s Uniform Land-Use Process last year.)

Attorney Norman Siegel at the mic with Michael Gruen waiting in the wings to speak at CB2

So here’s what we know so far…

While the crux of the case hinges on whether or not the city should have completed an Environmental Impact Statement prior to the ULURP, the fact that the garden site is on a block-through lot facing both Elizabeth Street and Mott Street is more significant now than during the ULURP and in HPD’s proposal for affordable housing on the site.

Petitioners argued that the Haven Green project does not comply with the Special Little Italy District (SLID) zoning rules regarding the requirement for street frontage, and should have sought an exemption prior to the ULURP process. Or at least made that point known.

Attorney Norm Siegel argued that:

The SLID zoning regulations make clear that every front building wall will extend along the full length of its full lot line. The through-lot as such the case here has two streets, therefore, two lot lines. Yet the proposed design is set back at least 60 feet from the Mott street side.

Translation – any building on that lot should have a continuous frontage on both sides of the street, something that the initial HPD request from developers did not contemplate. Further, they argue that because the public project proceeded without the knowledge of this exemption, the Environmental Assessment Statement (EAS) was fatally flawed.

Moving forward, the orientation of the garden lot to the street is becoming as important as the size of the post-development open space itself.

Historically, the garden has been an open, block-through lot with access to both Mott and Elizabeth Streets. While the proposal for Haven Green appears to maintain both access points, it’s important to note that none of the renderings released by Pennrose Properties, the lead developer of Haven Green, showed the Mott Street side frontage, only an interior view from that side. The original rendering disseminated to the press was not made available during their previous presentation before CB2 during the public review process, and it no longer appears on the Haven Green website.

The Elizabeth Street side is not fully enclosed, either; there is an opening that team Haven Green calls a “breezeway.” Legal counsel for the Garden took exception to City Council maintaining this entryway tunnel as part of the open space component of Haven Green (even though it is covered).

Attorneys representing the city responded that there is an inherent paradox in the petitioners’ case in that they are arguing for open space while highlighting a zoning restriction requiring more enclosure. And with the use of a visual diagram, continued to deny that the SLID zoning restricts a set-back on the Mott Street side.

The attorneys for ESG also argued that the SLID zoning regulations exist to preserve the historic character of the neighborhood. No other development in the vicinity has the layout, or setback from the sidewalk sought by Haven Green. All the buildings are contiguous to the streetscape.

But it was on this point when arguments were cut short for time. Yet, not before attorneys for Elizabeth Street Garden declared that the diagram shown by the respondents in their presentation had not been submitted in the court records.

For now, the case has been adjourned to December 4, when the city will get a chance to complete oral arguments.

Outside the legality, though, it’s becoming clear that the Elizabeth Street Garden site presents more of a unique design challenge than the city initially led on.

While the fate of the garden is now in the hands of the legal system, the idea of razing and redevelopment seems a losing battle in the court of public opinion.  Open, green space has become a priority for residents citywide since the outset of the pandemic. Especially in Little Italy, which the city admitted was a neighborhood with a low ratio of persons to open space. Just one year later, the Haven Green project appears outdated to those supporting the garden and the environmental cause.

Funding the affordable senior housing with commercial and retail space at the expense of green space, is both unreliable and an antiquated model. It’s also worth noting that office space is already on the rise across the street from the garden. Two buildings are undergoing demolition for new development.

But at Haven Green, co-developer Habitat for Humanity would be taking the ground floor office space as its new headquarters. What remains of the open space will at times be open to the public, but still private space. Both nonprofit organizations defending the garden in the courts have long since maintained that a larger, nearby city-owned property is a better suited alternative given the competition between affordable housing and open, green space.

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