How a Legal Fight Over Zoom Could Tank de Blasio’s Most Ambitious Rezoning

Then, last month, just as the city was getting ready to kick-off the rezoning process, local community group Voice of Gowanus sued the Department of City Planning, alleging that online public hearings conducted on Zoom were illegal and inequitable. City law states that the local community board has to conduct a public hearing on a rezoning in a “convenient place of public assembly.”

Voice of Gowanus’ lawyer, Jason Zakai, claimed in his court filing that “virtual hearings are simply no substitute for in-person hearings.” And he noted that residents who don’t have access to reliable internet — like those in the New York City Housing Authority’s Gowanus Houses — are not able to participate in online meetings. Essentially, the rezoning should be put on hold until after the pandemic — whenever that might be.

Zakai said in a statement that he and Voice of Gowanus “are confident in our legal arguments, which are premised on obtaining increased public transparency and access. On a rezoning plan of this size and scale, which is one of the biggest, if not the biggest, in the City’s history, and which is located at an EPA Superfund Site, it is critical that the maximum amount of public participation, including in-person hearings, be permitted.”

Naturally, the city disagrees. Its lawyers pointed out that participation was much higher in the online meetings than in-person ones, with hundreds of people watching and signing up to testify at hearings that might draw a few dozen people in person.

An average of 266 people attended three remote meetings last fall, which was nearly double the average attendance of in-person meetings held between 2016 and 2019, according to an affidavit filed by Jonathan Keller, a city planner who has helped develop the rezoning plan for the neighborhood over the past five years. And nothing in the text of the city law prohibits holding public meetings online.

In response to the suit, state Supreme Court Judge Donald Kurtz issued a temporary restraining order that completely halted the public review process for the rezoning. The next judge to take up the case, Katherine Levine, partially rolled back the order on Jan. 28 and allowed the city to release the text of the zoning application, but nothing else.

At a Feb. 5 hearing, Judge Levine said that she would not allow certification until the city figures out how to “meet the requirements of ‘public assembly'” by enabling internet access for Gowanus residents who lack it. 

However, the political subtext of the lawsuit is clear. Councilmember Lander and Mayor Bill de Blasio, both of whom pushed for the Gowanus rezoning, will be out of office at the end of this year. Their replacements may be less supportive of rezonings in general, jeopardizing 13 years of work on the Gowanus project by city planners and local organizations. If Voice of Gowanus is able to delay the start of the seven-month public review process until the summer, Lander’s newly elected replacement would end up deciding the fate of the rezoning.

“This is clearly a ploy to slow down the rezoning process,” said Jeff Braun, a land use lawyer at Kramer Levin. “And if that’s the strategy, to slow down the process until there’s a new mayor and a new councilmember, then it’s working.” He also felt that if the judge ruled in favor of Voice of Gowanus, the decision could open up the possibility of legal challenges to other rezonings that have been conducted over Zoom since the pandemic began.

The suit also raises questions about who wins and loses by delaying the rezoning, particularly in the midst of a pandemic that has exacerbated the city’s homelessness crisis and devastated its communities of color.

“This would be the first neighborhood-wide rezoning that the de Blasio administration does in a majority-white, upper-income neighborhood, so there are fair housing consequences in terms of not moving forward,” said Michelle de la Uz, head of Fifth Avenue Committee (FAC), a nonprofit developer and housing advocacy group, which has favored the rezoning.

De la Uz, who recently resigned from her role as a City Planning commissioner, has been working with two other neighborhood groups, Arts Gowanus and Southwest Brooklyn Industrial Development Corporation, to distribute wifi hotspots and laptops to NYCHA tenants and other people in the neighborhood who may not have reliable internet. They’ve also provided digital skills training for those who don’t know how to use Zoom.

FAC also noted in a recent court filing that in-person meetings privilege older, wealthier homeowners over lower-income residents, who are more likely to have child care obligations or work that prevents them from attending. In-person meetings would also pose a significant public health hazard during a time when COVID-19 continues to sicken thousands of New Yorkers.

The week ending Feb. 19 saw 19,319 confirmed cases of coronavirus in the five boroughs, and the citywide positivity rate stood at nearly 8.4 percent, according to the Department of Health. And the brief highlighted the fair housing enforcement issue.

“If the Gowanus rezoning does not go forward, whether because of an affirmative denial or inaction amounting to a pocket veto, the city’s policy will be tantamount to the classic exclusionary zoning more commonly associated with suburbs like Garden City and Huntington, in Long Island in New York,” the group’s lawyers wrote.

The nonprofit developer is also working on a major project that won’t happen without the rezoning. The development, Gowanus Green, will include six buildings with 950 units of affordable housing, a public school, retail, community facilities, and a 1.5-acre public park. The Bluestone Organization, the Hudson Companies and Jonathan Rose Companies are developing the complex, which is being constructed on the site of a former gas plant.

Eric McClure, who serves on the local community board and heads the transit lobbying group StreetsPAC, argued that the people behind the lawsuit have been vocal critics of redeveloping the industrial waterfront neighborhood.

“Everybody who submitted an affidavit has been a critic of the rezoning for years,” he said. “And, to my knowledge, they’ve all been present at every meeting that’s happened.”

He added, “Any effort to make the process more accessible is good. I just can’t imagine someone is going to walk into the Park Slope Armory and see people watching the [Uniform Land Use Review Procedure] hearings,” referring to one of the judge’s suggestions for making the hearings easier to access. “The idea of setting up viewing at the Park Slope Armory, which is nowhere near Gowanus, seems ridiculous.”

An attorney and Gowanus resident who’s been following the lawsuit outlined its purpose even more bluntly. “It has nothing to do with the pandemic or equity concerns, it’s all laundered NIMBYism,” he said. “They just want to drag this out. If they can get to like May, June, they’ve won by default.”

Katia Kelly, who is named as a petitioner in the suit and runs the neighborhood blog Pardon Me For Asking, has publicized Voice of Gowanus’ efforts and criticized the rezoning plan on her website.  Her husband, Glen Kelly, sits on the community board and provided an affidavit in support of the lawsuit.

Kelly argued that her opposition to the rezoning was about its environmental impact. She worried about bringing 20,000 new residents to the neighborhood when federal cleanup of the Gowanus Canal had only begun last year and is expected to last for another decade. She also explained that the future Gowanus Green site—a former manufactured gas plant—has coal tar buried more than 150 feet below the surface, and expressed skepticism that the developers or the city would clean the site well enough to prevent future residents from being exposed to toxins. 

“Why not clean it right the first time and then see what you can put there?” asked Kelly. “If you can’t get the coal tar out, maybe acknowledge that and put a different use? This is not about development, this is about environmental justice.”

The developers of Gowanus Green countered that they have an extensive cleanup plan that will make the site safe for tenants and schoolchildren. “To question whether the site can and will be cleaned to a standard that is safe for its planned residential and school uses is deeply misleading,” said a Gowanus Greens spokesman. “We are working with an array of city, state and federal agencies on the scope of our additional site investigation. All of those agencies will need to endorse our environmental cleanup plans, thus ensuring that the remediation of the site will make it safe to occupy.”

As for the online meetings, she felt that it wasn’t fair to host a public meeting where attendees couldn’t see who was in the room.

“If we are asked to have this process virtually, it is asking us to fight with our hands tied behind our backs,” she said.

Critics of the rezoning have said that the city planning department has chosen not to release the environmental impact statement — which analyzes the impact of the proposed zoning on the neighborhood — for political reasons. However, a DCP spokesman told Commercial Observer that it was prohibited from releasing the analysis by the judge’s order, which prevents the city from taking steps toward certifying the rezoning. Releasing the impact statement is one of those steps, as required by city law.

Ultimately, some people involved in the rezoning believe Judge Levine will allow the land use process to move forward soon.

“She hints that that seems to be what she’s planning to do, but she’s looking at the law to see if she can ask the city to do more than what they’ve already done on making land use hearings accessible,” de la Uz said. “I think that the Gowanus rezoning and the SoHo rezoning are what the legacy should be for the de Blasio administration. We should be rezoning communities that are majority white, where there’s opportunity for growth, where low- and moderate-income people can afford to live. We’re going to have 3,000 units of truly affordable housing as a result of the rezoning, and a significant percentage of those units are going to be for homeless families or homeless individuals.

“One of the comments from the opposition is that there’s not a rush to rezone,” she added. “People who are spending more than 40 or 50 percent of their income on rent would probably disagree with the idea that there isn’t urgency for affordable housing.”