Goodlawyas: Three Lawyers Who Challenge New York’s Real Estate Empire

In New York, land-use, zoning and preservation disputes can put communities through the ringer, especially if they’re not operating as a unified front against high-powered, wealthy and experienced teams of developers.  In additon, neighborhoods can be fragmented, which creates a disconnect among citizens who may share the same fate as their peers but might not be informed on the nuances of city land-use policy.

That’s where Hiller, Lester and Siegel enter the fray. Their collective goal is to even the stakes, and over the last five or so years, they’ve never been busier.

All three lawyers voted for Mayor Bill de Blasio in his first mayoral campaign. Hiller said he thought de Blasio would be “the greatest mayor in a generation.” They’ve all since changed their tunes upon seeing first hand the effects of the city’s land-use policy under this current administration, which has made it a point publicly to align itself with the development lobby. (The mayor’s office did not respond to an inquiry about land-use disputes.)

Until de Blasio first took office, Hiller, 52, rarely fielded land-use, zoning or preservation cases. “I used to get maybe two or three a year,” he told Commercial Observer. “Now, I have 17 active matters and these [cases] represent around 60 percent of my practice. We have to turn away business because we just don’t have the time.”

The “avalanche” of cases began following his involvement in disrupting the redevelopment of Tribeca’s Clock Tower Building at 346 Broadway in 2016. The plan by co-developers the Elad Group and the Peebles Corporation was to convert the property into a 151-unit luxury condominium building, close off the 19th-century mechanical clock tower to the public and convert it to a private penthouse with an electrified clock.

Hiller filed suit on behalf of area preservationists, and a State Supreme Court judge ruled in early 2016 against the developers, nixing the mechanical clocks alteration. The city’s Landmarks Preservation Commission (LPC), which designated the clock an interior landmark in 1987, had actually approved the closing of the clock suite.

Hiller, teaming with Lester, 64, then won a decision from the LPC in May 2017 to deny part of an owner’s development application to add apartments to the roof of the Hopper-Gibbons House, a landmark building at 339 West 29th Street between Eighth and Ninth Avenues. It’s the only preserved stop from the Underground Railroad in Manhattan.

The appellate division of the New York Supreme Court ruled on Feb. 24, 2015, that Tony Mamounas—the building’s owner—required approval from the LPC in order to finish the fifth-story addition, and the LPC decision in May 2017 marked the third application denial from the developer to try to make the development work.

Friends of the Hopper-Gibbons House Underground Railroad Site led the fight against the addition for nearly a decade, assisted by the Historic Districts Council, the Lamartine Place Block Association, Save Chelsea and some elected officials.

“Once I get in front of a judge that’s engaged on the issues, if I have a good case, I’m going to win it,” Hiller said.

To garner appeal for the building, Hiller had a plan. He sent one of his former associates to Swarthmore College in Southeastern Pennsylvania to pick through its archives. Stashed there was information related to the Hopper-Gibbons House and runaway slaves, or freedom seekers, from the 5th District of Georgia—the stomping ground of civil rights leader and Democratic Congressman John Lewis.

Hiller, trying to appeal to the Congressional Black Caucus, found that two slaves left from Lewis’ district and traveled through the Hopper-Gibbons House on their way to Canada.

Hiller was then retained by the Central Park West Neighbors Association to combat Brooklyn-based developer Joseph Brunner’s proposed conversion of the First Church of Christ, Scientist at 10 West 68th Street into a 34-unit luxury apartment building at the Board of Standards and Appeals (BSA). The community group won 3-2.

At the time of the decision, Manhattan Borough President Gale Brewer, who lives near the church, told The New York Times, “I said to all my neighbors, ‘See? It’s possible.’ ”

Siegel, 74, is a well-known civil rights lawyer. The Brooklyn Borough Park native and former executive director of the New York Civil Liberties Union traveled to Atlanta in 1966—straight out of Brooklyn College—to begin work as a legal representative for the American Civil Liberties Union during the Civil Rights Movement. From 1966 to 1972 he spent time in the Deep South, including hubs like Memphis, Tenn., and Birmingham, Ala., where he learned what it took to win community interest cases.

“All of these things I learned over the years during my first amendment cases, police misconduct cases and civil rights cases, I now take that 50 years of experience and turn it into representing a community group,” Siegel said. He has represented the community against the development of Pacific Park in Brooklyn—formerly Atlantic Yards—as well as small business owners and community members against the Columbia University Manhattanville expansion.

Developers often deploy influential lawyers and lobbyists, some of whom are former members of the administrative agencies to which they’re appealing. They encounter few hurdles in smoothly navigating the approvals processes. Leveling the playing field begins with heavy community participation, including showing up at hearings and making their voices heard as well as lobbying the City Council at the earliest stages.

“New York City residents have to organize colloquially,” Lester said. “I would like to see neighborhood groups reach across neighborhood lines to form a citywide coalition of community groups. That hasn’t happened yet but perhaps some day it will.”

The city’s history in land-use policy is rooted in community action. The Uniform Land Use Review Procedure (ULURP) was established in the late 1970s in response to community activism—over two decades after the implementation of community boards by Manhattan Borough President Robert F. Wagner in 1951. The 12 community boards he established became the city’s first formal platforms for neighborhood participation.

“As people began to understand their rights and what their options are, then they would reach out for legal help,” Lester said. “That’s how these things germinate, and it hasn’t really changed since I started doing this in 1990…While these cases are hard to win, if the community is organized and you do the proper investigation and research, very often you can prevail.”

Lester is a Queens native who has won numerous victories that have led to policy changes in his nearly 28 years of experience practicing community law in the city. He’s represented the Stuyvesant Town-Peter Cooper Village Tenants’ Association since 1990 and has served as counsel to the New York State Senate Finance Committee.

Lester said while his practice is mostly rooted in housing disputes, around a quarter of his work is in land use and zoning. He’s currently locked in a tenant harassment suit against Kushner Companies over alleged actions taken against tenants to attempt to force them out at 184 Kent Avenue in Williamsburg, Brooklyn.

“The community benefits from transparency, open government and the democratic process, and developers generally gain traction when they can work undercover, behind closed doors,” Lester said. “It’s the old battle: open government versus closed-door governing. Developers thereby gain influence with the decision makers so long as the process remains covert, and of course, that’s wrong from a democratic standpoint.”

Scott Mollen, a partner at law firm Herrick Feinstein and a seasoned commercial litigator who has represented developers in land-use and zoning disputes, said developers determine “at the earliest stage” whether a development could be built as-of-right or if discretionary approvals are required.

“In certain cases, community opposition may arise early in the process and opponents may make their arguments to the administrative agencies while the approval process is ongoing,” Mollen said. “In those situations, the developers have some insight as to what the legal arguments will be or what will be utilized by the opponents.

“Some opponents will not only commence Article 78 proceedings, challenging government action, but they’ll seek to get a temporary restraining order and preliminary injunctions in order to obtain injunctive relief,” Mollen added. “The opponents must demonstrate a likelihood of success on the merits that there’s threat of immediate, irreparable harm and an imbalance in the equities.”

Mollen has successfully litigated on behalf of developers for recent projects, including Toll Brothers and Starwood Capital Group’s Brooklyn Bridge Park Pierhouse at 130 Furman Street in Brooklyn Heights, and is currently co-counsel for developers SJP Properties and Mitsui Fudosan America in the dispute over their proposed 670-foot tower at 200 Amsterdam Avenue on the Upper West Side.

“Developers want to be in a position where the government approves their plans because that then puts the burden on the opposition to convince the court that the government has acted in an arbitrary and capricious manner, and therefore, the government approval should be overturned,” Mollen said. “They do not want to be in a situation where, instead of a local community group, it’s the government that’s challenging the developers’ plan.”

Siegel is currently representing the Belmont Park Community Coalition (BPCC) in challenging the viability of the state’s proposed $1 billion mixed-use Belmont Park Arena project in Elmont, Long Island—for the National Hockey League’s New York Islanders, which is expected to be finished in 2021—claiming sports venues don’t spur sufficient economic growth.

“Norman Siegel can sniff out a rotten back-room deal better than anyone,” Tammie Williams, a BPCC board member and organizer, said in statement upon hiring Siegel.

The BPCC recently questioned the Empire State Development Corporation (ESD) over alleged conflicts of interest related to the funding of the project’s Environmental Impact Statement, which ESD officials told CO will probably cost around $1 million. BPCC asked ESD for $50,000 at a recent meeting to pay for its own report, and ESD shot it down. An official at ESD told CO it’s about not putting the burden of paying the bill on taxpayers.

The developer, New York Area Partners (a joint venture between Sterling Development and Oak View Group) put aside $1 million in an imprest account (a petty cash system to be managed by ESD) to pay for environmental reviews and other incidentals, according to ESD.

“The environmental impact study being done by AKRF [an environmental consultant] is an independent analysis, with all areas of study explicitly mandated by the SEQRA [State Environment Quality Review Act],” ESD Press Secretary Amy Varghese said. “SEQRA requires that every potential environmental impact—from traffic and air quality to open space and visual resources—be scrutinized, and that mitigation measures be recommended for significant impacts. The Belmont project has already been altered in response to robust public input, and as the EIS process progresses, ESD will continue to identify ways to enhance the project in consultation with the community.”

Siegel was joined by throngs of supporters in a recent meeting with ESD. He likes to fill hearings and courtrooms with his clients—something he learned to do in the Civil Rights Movement. He wants judges to look beyond any stereotypical notions they may have about these arduous cases and see the human element.

“In the South… if you had a race issue in Alabama, the courtroom would have a lot of black faces,” Siegel said. “The white judge would have to look at the audience, and it then becomes a real, human issue and not an abstract thing.”

All three lawyers said they remember every case they’ve had. Even in defeat, they believe there’s victory in educating the public and leading them through the process. The key is to keep the community unified and motivated to continue to participate in land-use disputes.

“Courts are generally loath to overturn governmental decisions, so you have to prove that the governmental decision is illegal, arbitrary or capricious—that’s the standard, and that’s a high bar to overcome,” Lester said. “It was always the community getting involved very early on with the local officials and doing their research. When they get involved at the end of the process, it’s a little more difficult, and that’s where the developers have the greatest success.”

In a controversial loss in the appeals process for Hiller on June 25, the New York City’s Board of Standards and Appeals approved plans to allow developer Gamma Real Estate to move forward with development on a contentious 800-foot-tall residential skyscraper in Sutton Place, effectively crushing the efforts of the East River Fifties Alliance (ERFA), the community group built nearly two years ago to stop the project. The decision came after the ERFA’s successful campaign to change the zoning law to outlaw the 64-story, as-of-right project and other skyscrapers in the area.

“The fight to preserve our residential communities against super-tall buildings will likely have to continue in court before a judiciary less likely to be tainted by the political process after today’s irresponsible decision by the Board of Standards and Appeals,” New York City Councilman Ben Kallos, who represents the members of the ERFA, said in a statement at the time of the BSA decision. “The board ruled in favor of a bad acting developer against a lawful rezoning that was the result of a grassroots effort by the local community and elected officials.”

Real Estate Board of New York President John Banks said in a prepared statement at the time of the BSA verdict: “The Board of Standards and Appeals made a sensible decision, recognizing the importance of as-of-right development to our city’s continued growth and success… New York City needs predictability, continued investment and new housing, and the BSA’s decision helps achieve that.”

REBNY Senior Vice President Michael Slattery told CO that the trade organization is concerned that an increase in opposition might stifle lender sentiment, affecting growth and construction in one of the city’s trademark industries.

“With those that are being challenged by communities—reasonable or not—lenders are beginning to question [a project’s] validity,” Slattery said. “The more that this happens the more you get concerned. We’re more concerned that what we have is more projects being challenged at BSA, and it creates that doubt. They’re not confident because they’ve had as-of-right developers [and there are still hurdles]. People like to lend in New York because it’s a safe bet.”

Lisa Mercurio, the director of communications for the ERFA, told CO, “[Sutton Place] was a community-led initiative, with elected representatives. It was a ‘whom is New York for’ kind of issue. A community-led coalition came forward with support, and the fact legislative change is something they didn’t want tells you we’re not on the same side of the coin. Our community was always about building it right, not do not build. It sends a message to every community group.”

The struggles between communities and developers in the tri-state area will never dissipate, but the communities’ chances seem to rely on what they can achieve collectively in their cities.