Judge partially lifts restraining order on Gowanus rezoning application

Move offers some hope that rezoning will be able to proceed

Judge Katherine Levine (Levine via Facebook; Getty)
Judge Katherine Levine (Levine via Facebook; Getty)

If a city agency makes a small change to its website, will a “usual Joe Schmo in Gowanus” know what that means?

That, more or less, was the subject of a nearly two-hour hearing Thursday on a lawsuit that seeks to stop the Brooklyn neighborhood’s rezoning from moving forward.

Kings County Supreme Court Judge Katherine Levine didn’t rule on that issue directly, but agreed to partially lift a temporary restraining order on the rezoning, allowing the Department of City Planning to release the remainder of the proposal’s application.

She said she is “predisposed” to allow the application to be certified, which would officially kickstart the city’s public land-use review process, but called on the city to find ways to ensure more people have access to virtual hearings held as part of the Uniform Land Use Review Procedure. She floated the idea of installing public computers in the Park Slope Armory.

“There’s lots of creative ways for these people to get on Zoom,” she said. “I want you to think about this.”

Thursday’s hearing was focused on a lawsuit filed earlier this month by a coalition of neighborhood groups, which argues that the city can’t move forward with the rezoning because it failed to adequately provide the public with a pre-certification notice. Under a 2019 charter revision, City Planning is required to post a detailed summary of a project on its website at least 30 days before certifying a Ulurp application, in addition to notifying the borough president and community boards. Last week, Judge Donald Kurtz temporarily halted the city from certifying the application on Jan. 19.

An attorney for the city, Christopher King, pointed to a December email alerting the affected community boards members and borough presidents of the planning department’s intention to certify the application on Jan. 19. The email included a link to the agency’s Zoning Application Portal (ZAP), which provides information on the status of zoning proposals.

Jason Zakai, an attorney representing the coalition, argued that the link led to no specific information about the project.

“There’s a couple of clicks involved,” King said. “But the borough president and community boards are well aware of ZAP and how to navigate it.”

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The judge responded by cautioning the parties against getting “nasty because some of us are more computer-savvy.” She also said that the email looked like “A Beautiful Mind” — as in, it included a ton of numbers that didn’t tell her much about the project.

King said the change in the application’s status, shown near the top of the page, from “pending” to “noticed” served as an adequate certification notice. He also emphasized that the Gowanus plan is the culmination of four years of work and community engagement.

Levine questioned whether the aforementioned “Joe Schmo from Gowanus” would know to look for that change on the website, absent having a “secret friend” who received the email sent to public officials or experiencing “an epiphany” that something was happening with the rezoning.

The lawsuit also claims that Ulurp can’t be held remotely, and that members of the public are entitled to testify in-person.

“You simply cannot band together with your community in the same way with a virtual-only platform,” Martin Bisi, a member of one of the neighborhood groups, wrote in an affidavit supporting the lawsuit. “And I worry about the elderly and other[s] in the community who don’t have access to the internet.”

Another hearing is scheduled for Tuesday, at which point the issue of accessibility to Ulurp proceedings will be addressed. But on Thursday, Levine indicated that she was not swayed by this argument.

“Guess what? Our operating virtually isn’t as good as doing it in-person. That’s life,” Levine said, noting that the parties in the lawsuit can’t hear each other as well during virtual hearings compared to in-person proceedings. “That’s too bad. That’s Covid.”

Ironically, aside from the parties involved in the lawsuit, the virtual hearing was only available to those approved by the judge, namely members of the press. So, access to a hearing on a lawsuit focused on the limited access afforded by virtual proceedings was restricted.

The city is seeking to rezone 80 blocks in Gowanus, which would pave the way for the construction of an estimated 8,200 residential units, of which 3,000 would be affordable. City Planning is eager to complete the rezoning before the end of the de Blasio administration, something King emphasized on Thursday.

However, the administration has yet to commit to including capital funding for two local New York City Housing Authority developments in its proposal. Support from Brooklyn Council members Brad Lander and Steve Levin, who have major sway over the rezoning’s approval, have said that their support relies on this funding.