Developers for Brooklyn Bridge Park Corporation had notified BHA in late June that they intended to begin construction on July 19, following an expected July 18 court appearance. While the judge rescheduled the appearance, the developers refused to hold off on construction.

Even as the arguments unfolded in Supreme Court, Civil Term in Manhattan on Thursday, trucks and earth movers began to roll at the development site in the park. (See video at brooklyneagle.com.)

BHA said on Wednesday that they were concerned that “intense noise of the pile driving activity will make the Pier 6 children’s play areas virtually unusable this summer, and will also be intrusive for other park visitors and nearby residents.”

The developers filed plans to hammer more than 400 100-foot steel beams 90 feet into the ground to reach bedrock at both Parcels A and B. This activity will take at least a month, though the exact length of time was disputed by attorneys.

Developers are currently assembling a 10-foot-tall noise-abating fence, as required by law. BHA’s lead attorney Richard Ziegler expressed doubt that the fence would be effective, given the six-story height of the hammer at the top of the pile-driving device.

Billings, however, did not buy BHA’s argument that allowing the noisy pile driving to commence before the case was argued on August 4 would constitute irreparable harm, nor would it violate environmental code.

“It’s noise,” she told Ziegler. “I’m not going to issue a temporary restraining order between now and Aug. 4. I will revisit the issue Aug. 4.”

She warned the developers, however, that they were assuming the risk of beginning construction before the outcome of the case was clear. Work starts “at their peril,” she said.

While Billings declined to issue a TRO on Thursday, BHA attorneys used the opportunity to bolster their case about the legality of the document governing construction in the park — the General Project Plan, or GPP. Brooklyn Bridge Park allows development only because the park is supposed to be self-sustaining, and the GPP limits development to only what is financially necessary to support the park.

Ziegler argued the document’s applicability to the issue and made a distinction between Parcel A, where luxury housing is planned, and Parcel B, where affordable housing would go.

The distinction is that Parcel B has no financial purpose, he said. “No one can read the GPP and come to the conclusion that a development parcel could be used for a non-financial purpose.”

Ziegler’s arguments appeared to make somewhat of an impression on the judge.

“At least you compelled me to try to make a decision on the general proceedings as soon as possible,” she told him.

Reactions to the ruling

David Lowin, vice president for real estate at Brooklyn Bridge Park Development Corp., said in a statement following the hearing, “We are gratified that the judge agreed with us and decided not to grant the temporary restraining order.”

BHA attorney Ziegler told the Brooklyn Eagle, “It was a very good opportunity for us to address what the judge described as her own skepticism that she has previously expressed in our prior arguments, and we addressed them head on. And I asked her to look at our recent briefs that also deal with that skepticism very directly, and I’m confident that when she reads those briefs she will realize there’s much more merit to our position that she had previously been thinking.”

Peter Bray, executive director of BHA, told the Eagle, “People are going to have to put up for the next two weeks with a lot of pile driving and a lot of noise at the height of the summer season.”

He added, “I think that the merits of the BHA’s case were really in clear view before the judge today and on the hearing record.”

Henry B. Gutman, a member of the Brooklyn Bridge Park Corp., said, “For the second hearing in a row, Mr. Zeigler’s argument has made it crystal clear that their objection here is to the affordable housing, period.  Every reference was to parcel B, that’s the affordable housing … and there’s no ambiguity about it.”

Bray responded to Gutman’s charge by noting that BHA has always been against unnecessary development in the park, even before the affordable housing issue arose.

“That’s a straw man,” Bray said. “There are always a large number of laudable policy goals that you can fulfill with any piece of land. This land was supposed to be part of the park, unless it was needed to support the park.”

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