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Group fighting to ‘Save the View’ of Brooklyn Bridge argues Pierhouse case in Appeals Court

October 20, 2017 By Mary Frost Brooklyn Daily Eagle

Save The View Now representative Steve Guterman, center, and noted preservationist Otis Pearsall, left, following Friday’s arguments at Appellate Court in Brooklyn. Photo by Mary Frost

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A community group fighting to preserve the view of the Brooklyn Bridge from the Brooklyn Heights Promenade presented their last, best arguments before the Appellate Court in Brooklyn on Friday.

Save The View Now (STVN), headed by Heights resident Steven Guterman, is hoping to reverse a decision issued in 2016 by state Supreme Court Justice Lawrence Knipel siding with the developers of the bulky Pierhouse hotel/residential complex in Brooklyn Bridge Park.

The complex is 30 feet taller than the 100 foot height limit agreed to after lengthy negotiations with the community in 2005. At issue is whether the park and developers broke their promises to the community — but the outcome may depend on who knew the limit was breached and when, and whether or not the group’s lawsuit was filed within the short timeline allowed in lawsuits against the city.

The building now blocks iconic views of parts of the Brooklyn Bridge as seen from the Promenade.

Save the View Now’s counsel Jeffery S. Baker, Esq., of Young/Sommer LLC went up against defense attorneys for the city and developer Toll Brothers Real Estate, who argued that publicly available documents displayed a rendering of the building’s three-story bulkhead, and that “any reasonable person” or their agent could have discovered the change before the time limit ran out.

An attorney for the defendants mocked the idea that STVN’s Guterman had an “epiphany” when he walked out of his Brooklyn Heights apartment and realized that the height of the Pierhouse was much higher than agreed upon.

“He claimed he didn’t know until Dec. 22 that there was a bulkhead. … There was a clearly recognizable bulkhead in excess of 100 feet in height, and evidence that the plaintiff knew that” after the Sept. 10, 2014 topping out, the attorney said, adding that there was a “firestorm” of controversy at that time regarding the assertions that the building was too high.

A presiding judge asked why, given “a group that expressed concern [the Brooklyn Heights Association] about the height of the building from its inception, when it became clear that it was going to be higher, in the spirit of good faith, not make the interested parties aware?”

“We did,” was the defending attorney’s reply, claiming that multiple meetings were held in 2013 and successive years revealing there would be a bulkhead exceeding the 100-foot limit. He also said that there were multiple opportunities for STVN and BHA to learn about the change in height.

“Did they hire an expediter? Go to the public record?” the attorney asked.

An attorney for the developer said the change was “available to the public. You don’t have to have it delivered to your home.”

STVN’s attorney disputed the availability of the notice, however.

“There was no documentary proof of any approvals, no open process,” he said. He said that BHA had asked for details but never received them, and the Community Advisory Council (CAC) was not informed. “They asked for drawings; there weren’t any,” he said. “They were led down a primrose path. They were not shown anything.”

He added, “We immediately made notice to renew based on information in the lease. We did not delay,” he said. “We preserved our rights.”

Responding to the developer’s claim that it would be disastrous to lop off 30 feet of the building at this point, STVN’s attorney said, “They were on notice that they proceeded at their own risk.”

When asked by a presiding judge why the original height plans were changed, an attorney for the defendants said that a major cause was Hurricane Sandy, when it developed that the baseline had to be raised because the building was located in a floodplain, and the mechanicals had to go on the roof.

Cases on appeal are usually decided within 60 to 90 days.

Following the arguments, STVN’s Guterman told the Eagle, “We’re very thrilled that the judges were very engaged, asked good questions for both sides, and clearly seemed to understand that what was built did not match what was shown to the community in 2005. That was very clear. Now we have to see whether they think the Statute of Limitations has passed or not. We’ll just have to wait for that.”

In a statement, Brooklyn Bridge Park said, “Not only does this building meet all legal requirements, but there was a robust public process around it and the case was brought well after the statute of limitations.”

The park added, “Like the other development projects in the park, it [Pierhouse] generates much needed revenue to maintain and operate the park.”

Brooklyn Heights Association Executive Director Peter Bray told the Eagle, “We’ve heard these same arguments made before in Justice Knipel’s courtroom, about when the community could have known or should have know this, that or the other, things. I think the thing that I take away from what I heard today is the attorneys for the city, the state and the developer all trying to justify the fact that they broke a fundamental commitment to the community not to block the view of the Brooklyn Bridge. And however they want to argue their side of it, the fact is that there was a promise made to the community and they didn’t live up to it.

“Whether the court agrees that on Statute of Limitations grounds that the community won’t prevail doesn’t take away from the fact that there’s a commitment to communities that, in my view, should be adhered to, and not just on narrow legal grounds,” Bray said.

Bray added, “If you look at the magnitude of the promise that was made, it was incumbent upon them [the city, developers and park] to say clearly all the concerned parties that we’re going to violate that agreement to maintain a height that doesn’t block the view of the Brooklyn Bridge.”

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Plaintiffs in the case are Save the View Now, represented by its president Steven Guterman, Daniela Gioseffi and Cristina Page, by their attorneys Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC. Their complaint is against City of New York, New York State Urban Development Corporation d/b/a Empire State Development Corporation, Brooklyn Bridge Park Development Corporation, Brooklyn Bridge Park Corporation, Toll Brothers Real Estate, Inc. and Starwood Mortgage Capital LLC.