Judge’s two years of silence stymies Little Italy project

Affordable housing developer Pennrose now going over jurist’s head

Justice Debra James and Elizabeth Street Garden (NYCourts, Elizabeth Street Garden, Getty)
Justice Debra James and Elizabeth Street Garden (NYCourts, Elizabeth Street Garden, Getty)

At this rate, the statues in Elizabeth Street Garden might talk sooner than the judge deciding its future.

For three years, the would-be developers of Haven Green have been shackled by a lawsuit aiming to stop 123 affordable apartments for low-income and formerly homeless seniors from being built at the Little Italy site.

Though the project received City Council approval, it has been hamstrung by the litigation, despite arguments having concluded nearly two years ago: For reasons unknown, Judge Debra James still has not issued a ruling.

The development team, led by Philadelphia-based Pennrose, have taken the rare step of contacting the judge’s manager in an effort to resolve the case.

In a letter to Administrative Justice Adam Silvera, who oversees management and operations of Manhattan’s civil courts, Pennrose’s lawyer, Ken Fisher of Cozen O’Connor, writes that recent economic uncertainty makes it all the more important that the courts wrap up the case.

“It is imperative — particularly given the market changes and economic environment over the last several months — to resolve these issues promptly and allow the planned development to proceed,” Fisher wrote.

Lucian Chalfen, a spokesperson for the courts, said Silvera had not yet received the letter. “He will immediately address the respondent’s concerns with the presiding judge regarding the pending decision,” Chalfen said.

Although James has not issued an injunction to pause the project, the lack of a decision has caused problems for Haven Green. “The pendency of the proceeding itself has had a chilling effect on the ability to proceed with the project,” Fisher wrote.

The main issue is likely financing: Web archives show that in March, the project’s website included a timeline that estimated the developers would secure funding in December 2021. The date has since been pushed back a year. Lenders tend not to finance projects with lawsuits hanging over them.

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The judge’s silence is not for lack of reminders from Pennrose. The firm has written her three letters in the 20 months since arguments ended, all to no avail. Meanwhile, debate over the garden’s future has become a hot-button issue in the press and political arena.

Opponents to the development gained a powerful ally when Dan Goldman became the Democratic nominee in New York’s 10th Congressional District. Goldman was considered the most moderate candidate in the crowded primary, which included lawsuit plaintiff and Assembly Member Yuh-Line Niou, but he has sided with the project opponents, saying housing should not be pitted against green space.

Many vacant sites slated for housing became gardens decades ago when activists asked to use them until the city was ready to proceed with development. But when the time came, gardeners refused to give them up — in some cases, chaining themselves to bulldozers.

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The fight over the Elizabeth Street Garden goes back to 1991, when local gallerist Allan Reiver leased an empty, city-owned parcel between Prince and Spring Streets for $4,000 per month. In 2012, then-Council member Margaret Chin slated the site for development, and five years ago, the city tapped Pennrose, in partnership with Habitat for Humanity and Brooklyn nonprofit RiseBoro, to build affordable housing there.

Soon after the plans were approved by the City Council, park supporters and elected officials sued the city to stop the project, arguing that Elizabeth Street Garden provided critical green space in an area severely lacking it.

The court battle has come to epitomize the dysfunction of apartment construction in the city. Multifamily project filings are already expected to plummet because the state failed to renew the 421a tax break.

At the same time, staffing shortages at the Department of Housing Preservation and Development have made it even more time-consuming to finance affordable projects. Inflation and the uncertainty in the lending market have compounded matters.