Brooklyn Heights

Judge to Pier 6 developers: ‘Build if you dare’

Limited injunction against Brooklyn Bridge Park project

August 4, 2017 By Mary Frost Brooklyn Daily Eagle
A judge issued a “very limited” injunction on Friday enjoining Brooklyn Bridge Park and developers from “undertaking any construction that may not be undone” at Pier 6, where two controversial residential towers are planned. Rendering courtesy of ODA-RAL Development Services-Oliver's Realty Group
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Build all you want — but you better be ready to undo it all if you lose your case, was the message Brooklyn Bridge Park’s Pier 6 developers heard at Civil Supreme Court in Manhattan on Friday.

New York State Supreme Court Justice Lucy Billings issued a “very limited” injunction enjoining the park and developers from “undertaking any construction that may not be undone” at Pier 6, where two controversial residential towers are planned.

The Brooklyn Heights Association, however, was aiming for a complete halt to construction, which will begin with roughly six weeks of pile driving during the height of the summer season.

A spokesperson for the park said the limited injunction would have no effect on ongoing construction at Pier 6.

“We’re pleased with the judge’s decision today, which denies the plaintiffs the injunction they were seeking for a second time. Today’s outcome does not affect our progress and construction will proceed as planned. We look forward to providing essential long-term park funding, much-needed affordable housing and union construction jobs through the Pier 6 project,” the spokesperson said.

Richard Ziegler, lead attorney for the Brooklyn Heights Association (BHA), which filed the lawsuit, accentuated the positive, called the ruling “a very significant step” by the court.

“The preliminary injunction means the park and developers are now enjoined from taking any steps in the construction process that they won’t be willing to undo in the event the court ultimately concludes that the BHA is correct and the project should not have proceeded,” he told the Brooklyn Eagle.

Ziegler said he took the judge’s ruling as a sign that she believed in the strength of the BHA’s case.

“There are two elements to get a preliminary injunction. A key element is a showing by a petitioner that it’s likely going to prevail in the end. Another is that there is irreparable harm from the conduct the petitioner is challenging. The court made it quite clear that while she agreed that we have made a showing of irreparable harm, it was a modest showing because it was just … noise and inconvenience. But the granting of the preliminary injunction strongly suggests that the court found that we were right in our argument that we will ultimately likely prevail,” he said.

Billings’ written decision, however, contradicted Ziegler’s assessment. In denying the remainder of the preliminary injunction sought by BHA, she wrote, “This denial is also based on the lack of a convincing showing that petitioner is likely to prevail on the merits of its claim and its own concession that, even if petitioner prevails, the likely result will allow at least part of the construction currently planned, even if delayed or on a lesser scale.”

The judge left the door open, however, to the argument that traffic congestion during construction might cause irreparable harm, even if the noisy pile driving doesn’t. In her decision, she wrote that the denial of the broader preliminary injunction is “without prejudice” to a future showing by BHA that the traffic congestion caused by the construction in fact poses a danger to public safety, “as the traffic congestion, unlike the noise, is not expected to decrease with the next phases of excavation and pouring concrete.”

New judge assigned to the case

This is the park and BHA’s final appearance before Billings, who has been reassigned to be in charge administratively of every asbestos case in New York County. The case has been reassigned to Justice Carmen St. George, who was sworn in as a state Court of Claims judge in June.

The state Court of Claims is the forum for civil litigation seeking damages against the state of New York.

Zeigler said that St. George, as a practical matter, would “look at what Justice Billings ruled. This is the only ruling she’s issued in this case, and the ruling is one that clearly takes petitioners’ claims extremely seriously. It doesn’t prejudge the outcome, but it does strongly suggest that Justice Billings believes that BHA is likely to prevail in the end.”

After Billings issued her decision, an attorneys for developers RAL Development Services and Oliver’s Realty Group commented that there would be “significant financial damage in stopping now.”

Billings, however, reiterated that the work was not necessarily stopping. “You’re just not doing anything that can’t be undone.”

Pile driving to commence

The developers are getting ready to pile drive more than 400 100-foot steel beams 90 feet into the ground to reach bedrock at two parcels in the park. 

Developers have built a 10-foot-tall noise-abating fence, as required by law. 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 said that there would be “irreparable harm,” but it was not severe.

BHA to post $8,000 bond

Billings said that Friday’s ruling was not significantly different than one she issued on July 20, when she warned the developers that they were assuming the risk of beginning construction before the outcome of the case was clear. Work starts “at their peril,” she said.

BHA told the judge the organization was able to post a $5,000 bond to back up the injunction, an amount attorneys for the park and developers scoffed at. Billings, however, said she didn’t see significant downside cost to the park and other respondents.

“Given the lack of economic impact, the [$5,000] is not far off the mark,” she said. Billings ultimately set the bond at $8,000, an amount BHA said it could raise by the middle of the following week.

Zeigler again used his time before Billings to make BHA’s 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 brought up the distinction between Parcel A, where luxury housing is planned, and Parcel B, where affordable housing would go. Since the GPP allows only development that is financially necessary, that would eliminate Parcel B, which would not produce income, he said.

As Billings’ replacement, St. George will review the hearing record and documents. It is not yet know if she will schedule a hearing before ruling on the case.

 

Story updated on Aug. 8 with language from the judge’s decision regarding the strength of the plaintiff’s case.

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