Split court upholds Sunset Park rezoning plan

Dissent argued that City only belatedly added consideration of rezoning’s impact on low-income residents. In April 2009, the Department of City Planning proposed a 128-block contextual rezoning of Sunset Park, Brooklyn. Planning sought to preserve the residential neighborhood’s built character while allowing new construction at a height and scale consistent with existing development. The proposal called for establishing height limits, mapping new commercial overlays to allow a wider range of uses, and applying the inclusionary housing program along certain corridors to encourage the creation of affordable housing and allow increased residential development. After conducting an environmental assessment, Planning determined the rezoning would have no significant adverse impacts and issued a negative declaration. Residents and community groups opposed to the plan claimed that Planning had not adequately considered the rezoning’s socio-economic impact, and argued that it would lead to the displacement of low-income residents. The City Council approved the plan in September 2009. 6 CityLand 135 (Oct. 15, 2009).

A coalition led by the Chinese Staff and Workers’ Association challenged the rezoning’s environmental review. The coalition claimed that by excluding from the assessment certain properties, including lots under 5,000 sq.ft., the City underestimated the opportunities to develop market-rate housing that would be created by the rezoning. According to the coalition, additional market-rate housing would raise neighborhood rents and accelerate the displacement of low-income tenants. The coalition also claimed that the City had not adequately analyzed the impacts of the new commercial districts. In response, the City submitted affidavits claiming that certain lots were excluded from the assessment because building code requirements and tenant relocation regulations made redevelopment of the sites unlikely. 

The lower court dismissed the challenge, finding that the City considered the rezoning’s potential impacts and provided a reasonable elaboration of its negative declaration. 7 CityLand 64 (May 15, 2010). The coalition appealed, arguing that the submitted affidavits improperly supplemented the City’s environmental assessment.

In a split 3-2 opinion, the First Department affirmed the lower court, ruling that the City’s environmental assessment had a rational basis. The First Department found that because the assessment was sufficient “standing on its own,” the City had properly relied on supplemental affidavits to respond to specific issues raised by the coalition.

In dissent, Justice Sheila Abdus-Salaam wrote that the assessment’s discussion of the rezoning’s impact was conclusory and lacked adequate analysis of the data. Justice Abdus-Salaam contended that the City’s supplemental affidavits did not elaborate on the assessment, but were first attempts at providing a reasoned elaboration. Justice Karla Moskowitz joined in dissent.

Chinese Staff & Workers’ Ass’n v. Burden, 2011 N.Y. Slip Op. 06417 (1st Dep’t Sept. 8, 2011) (Attorneys: John C. Gray, for coalition; Michael A. Cardozo, Elizabeth S. Natrella, Leonard Koerner, Carrie Noteboom, and Haley Stein, for NYC).

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