Brooklyn developer still cannot build housing. Middleland Inc. sought to rezone three lots on DeKalb Avenue and Spencer Street in Brooklyn and remove a 1975 restriction recorded on the site that limited its use to accessory parking for an adjacent IBM plant, closed since 1993 and now occupied by a Home Depot. Middleland planned to construct housing on its site.

Despite the Planning Commission’s approval, the City Council rejected both of Middleland’s requests, citing the need for jobs in central Brooklyn and Community Board 3’s unanimous disapproval. 2 CityLand 148 (Nov. 15, 2005).

Middleland challenged the decision, arguing in its article 78 petition that the Council based its denial on discriminatory comments made by community board members during the board’s hearing when members characterized the project as “segregated housing” and commented that “these people” were “milking the county.”

Middleman also argued that the recorded restriction constituted an unconstitutional taking since the property could only be used by IBM. The City responded that the IBM language was descriptive only, and Middleland could lease the property to other nearby manufacturing plants.

Justice Wayne Saitta agreed with Middleland in part, ordering the Council to void the restriction since it operated as an illegal taking. Because the language limited use to one owner and parking for an “adjacent manufacturing use,” it eliminated any viable future use of the property. The court rejected the City’s claim that an “adjacent manufacturing plant” could lease the site, pointing out that a Home Depot, not a plant, occupied the adjacent lot, and it had no need for additional parking.

The court refused to overturn the rezoning, finding no evidence that the discriminatory comments had an effect on the council members. Judge Saitta stressed that discriminatory intent cannot be imputed. The court noted that the Council acts in its legislative capacity when it votes on a rezoning, entitling it to the strongest presumption of validity and restricting article 78 petitions to cases where the Council acted arbitrarily.

Middleland Inc. v. City Council, N.Y.L.J., Jan. 17, 2007, at 23 (KingsCty.Sup.Ct.) (Saitta, J.) (Michael A. Cardozo, for Council; Richard Lobel, Sheldon Lobel, for Middleland.)