The Contextual Rezoning of Sunset Park, Brooklyn, and the Decision in Chinese Staff & Workers' Association V. Burden: The Basic Principles Governing Limited Judicial Review of Environmental Challenges in New York Endure

By Natrella, Elizabeth S. | Albany Law Review, Winter 2012 | Go to article overview

The Contextual Rezoning of Sunset Park, Brooklyn, and the Decision in Chinese Staff & Workers' Association V. Burden: The Basic Principles Governing Limited Judicial Review of Environmental Challenges in New York Endure


Natrella, Elizabeth S., Albany Law Review


I. INTRODUCTION

Just over twenty-five years after its decision in Chinese Staff & Workers Association v. City of New York ("Chinese Staff I"), (1) the New York State Court of Appeals had occasion to consider another environmental challenge by the same group, to the 2009 contextual rezoning of Sunset Park, Brooklyn, in Chinese Staff & Workers' Association v. Burden ("Chinese Staff II"). (2) The two cases ended in different results, but they were unified by the same underlying principles of environmental review.

This article will review the background of the litigation and the Chinese Staff II decision, why the result differed from Chinese Staff I, and why certain belated novel issues and twists interjected into the Chinese Staff H Court of Appeals litigation necessarily failed. The primary issue presented in both cases was whether the lead agency had comported with state and city environmental laws--i.e., the State Environmental Quality Review Act ("SEQRA"), ECL sections 8-0101 et seq., and its city counterpart, City Environmental Quality Review Rules of the City of New York ("CEQR"), 62 RCNY sections 5-01 et seq.--as to the respective actions at issue, a luxury high rise development on a vacant lot in Chinatown, Manhattan (Chinese Staff I), and a rezoning of a 128-block area of Sunset Park, Brooklyn (Chinese Staff II). (3) The eventual focus by the petitioners in both cases was the factor of alleged secondary displacement, as part of the analysis of the potential socioeconomic impacts and effect on neighborhood character. (4)

Below, we first examine the 2009 contextual rezoning and litigation in Chinese Staff II, leading to the trial court and appellate division decisions. (5) Thereafter, we briefly examine the earlier Chinese Staff I decision. (6) Finally, we review the Court of Appeals' Chinese Staff II decision, including its implicit rejection of several novel challenges, and the reasons why the Chinese Staff II unanimous affirmance followed from the Court of Appeals' jurisprudence over the last quarter century after its reversal in Chinese Staff I. (7)

II. BACKGROUND OF THE CHINESE STAFF II LITIGATION: THE 2009 CONTEXTUAL REZONING OF SUNSET PARK, BROOKLYN

In 2009, the New York City Councils approved changes to the City of New York's zoning map (9) to rezone a 128-block area of the Sunset Park neighborhood in Brooklyn, which is predominantly residential, with some commercial corridors along Fourth, Fifth, Seventh, and Eighth Avenues (hereinafter referred to as "the Rezoning"). (10) The Rezoning was a contextual zoning plan that was developed through a participatory public process in close consultation with Brooklyn Community Board 7, (11) and other community participants, following a thorough study by the New York City Department of City Planning ("DCP"). (12)

The Rezoning plan addressed two pressing needs identified by the community: protection of the existing low- and mid-rise built character of the area and creation of incentives for much-needed affordable housing. (13) Those needs were addressed by: (1) applying contextual zoning districts and appropriate commercial overlay districts to ensure that new development was consistent with the neighborhoods' building patterns; and (2) applying the City's Inclusionary Housing Program to create opportunities and incentives for affordable housing along Fourth and Seventh Avenues, which are areas that have good access to public transportation and could support increased development. (14)

Contextual zoning is a planning tool that has been employed in the City and elsewhere in order to meet the needs of addressing outmoded zoning which no longer fits the existing land uses. (15) A contextual zoning or rezoning "ensures development of buildings with densities and forms that are consistent with existing land uses through the mapping of 'contextual districts,' which regulate total floor area, building height, and streetwall height and alignment. …

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