NYC Low-Income Housing Project Runs Up Against Green Space Rules

Judges on New York’s highest court grappled Wednesday with how to resolve a dispute over New York City’s environmental impact reviews for projects that encroach on open green space.

The nonprofit operating a Manhattan sculpture garden, which has leased the land from the city since 1991, claims the city’s Department of Housing Preservation and Development violated the State Environmental Quality Review Act by failing to complete a full environmental impact statement when it proposed building a seven-story mixed-use building for low-income senior housing on part of the garden’s land. The project, the garden says, will remove critical green space that helps reduce greenhouse gas emissions, and the city should have taken that into account in its review.

The New York Court of Appeals questioned both the remedy Elizabeth Street is seeking, as well as where the court could look to establish standards for how the city would consider climate change and greenhouse gas emission reductions in its reviews of proposed building projects.

“That’s the novel issue—is that we need to make some statement that climate change is obviously a concern?” asked Associate Judge Jenny Rivera during oral argument.

“Yes, right on, your honor,” said Elizabeth Street Garden’s attorney, Norman Siegel of Siegel Teitelbaum & Evans LLP.

Siegel said the court can look at the 2012 consent decree between the city and state Department of Environmental Conservation that aims to improve the overall water quality in New York Harbor waters, as well as a 2017 New York City executive order aligning the city’s climate goals with those of the Paris Climate Agreement when thinking about what standards the city should follow in its reviews under the law.

The city, represented by Jamison Davies of the New York City Law Department’s appeals division, said the Environmental Quality Review Act is only intended to guide policymakers when making decisions, and doesn’t dictate reviews on a granular level.

Several of the judges acknowledged that the project will reduce the available green space in the city and could possibly even burden other surrounding parks.

“I get that it’s in Manhattan in a very populated area of Manhattan,” Associate Judge Anthony Cannataro said. “It’s no surprise it’s below the benchmark. But could you not argue that in an area that’s so far below what is ideal that every bit of reduction in green space is even more critical because you’re dealing with an incredibly scarce resource?”

The city in 2018 issued a “negative declaration " for the mixed-use project, meaning that it would have no significant environmental impacts. That declaration was vacated by a trial court, which agreed with Elizabeth Street that the preservation department failed to properly scrutinize the project’s impact on the neighborhood, and remanded the matter for a full environmental impact statement.

The state appellate court modified the ruling by confirming the negative declaration and dismissed the suit, saying the city undertook a thorough assessment of the relevant environmental concerns and made a reasonable determination. Elizabeth Street Garden is appealing the appellate court’s decision.

The case is Elizabeth St. Garden Inc. v. The City of New York, N.Y., No. APL-2023-00163, 5/15/24.