This is an aerial view of the 142-150 South Portland Ave. design. Rendering via the Department of City Planning

The city violated the law in rezoning a Fort Greene development site, a lawyer for neighborhood residents argued before a judge on March 19 in a court case that could have implications for development projects around the city.

This case is significant because it challenges a trend of developers easily winning the City Planning Commission’s permission to disregard zoning that protects neighborhoods from dense, high-rise development – zoning that was established with the consensus of community residents, elected officials and the City Planning Commission itself.

When the City Planning Commission and the City Council voted in 2018 to permit developers of 142-150 South Portland Ave. to build a 13-story tower, the city flouted the 2007 rezoning of Fort Greene and Clinton Hill “to the detriment of local residents,” Jack Lester said in his March 19 oral arguments before New York Supreme Court Justice Lynn Kotler.

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Their decisions resulted in illegal “spot zoning,” Lester argued.

This development could be “the gateway to all those drooling Downtown Brooklyn mega-developers who’re attempting to invade our human-scale blocks.”

Sandy Reiburn of Preserve Our Brooklyn Neighborhoods



Case law defines this as zoning that allows an owner to use his property in a way that is totally different from others in the surrounding area – and that owner is the only one who benefits, while owners of surrounding properties suffer harm.

Lester represents a group called Preserve Our Brooklyn Neighborhoods and more than 50 individual residents. They filed suit last October against the City Planning Commission, the City Council, Metropolitan Development Group Design and Construction and the Hanson Place Seventh-Day Adventist Church.

The church owns the development site.

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The rezoning the developer and church won allows them to construct a 13-story residential building, which is taller than what’s normally allowed by the neighborhood zoning.

The project’s 100 apartments will be affordable units for tenants with widely varying incomes. The church will house its music ministry and its service programs on the first floor. There will be medical offices in the cellar.

Thirty-two apartments are for tenants earning 80 percent of area median income. This means a single person with an annual income of $58,480, according to data provided by Preserve Our Brooklyn Neighborhoods.

The other units are for tenants earning 100 percent of area median income, meaning an individual who makes $73,100 per year, or 130 percent of area median income, meaning a single person with an annual income of $95,030, the data indicates.

‘Zoning is not static’

Lester argued at the March 19 hearing that the 2007 rezoning of 99 blocks of Fort Greene and Clinton Hill provides developers with incentives to construct affordable housing in the area – and the church and developer shouldn’t have been given additional sweeteners to do so.

Elizabeth Kim, a New York City Law Department attorney, countered Lester’s arguments by saying the 142-150 South Portland Ave. rezoning should be considered legal because it was meant to promote the welfare of the community.

And the 2007 neighborhood rezoning was not meant to last “for time immemorial,” Kim said.

“Zoning is not static,” she argued.

So what happens next?

Justice Kotler could make her decision in a matter of weeks.

If she decides the Fort Greene residents are right, the church and developer can build a 70-unit affordable apartment project that’s 95 feet tall. Such a decision would send a message to New York City developers that they can’t always expect to be able to disregard zoning that was crafted with community members’ consensus.

If she decides the church and developer are right, they’ll start work on their 13-story project. And other developers may redouble their efforts to get zoning variances for high-rise development in Fort Greene and Clinton Hill.

Plaintiffs sound off to the Brooklyn Eagle

The Brooklyn Eagle asked the residents who filed the suit for comment before the March 19 hearing.

Sandy Reiburn of Preserve Our Brooklyn Neighborhoods responded by calling the upzoning of 142-150 South Portland Ave. a “misbegotten scheme” that could be “the gateway to all those drooling Downtown Brooklyn mega-developers who’re attempting to invade our human-scale blocks.”

Joan Reutershan said, “If the South Portland structure is built, what will stop other developers from following the precedent, in effect further dismantling the approved zoning?”

Ernest August said, “Under the fig leaf of ‘affordable housing,’ the De Blasio Administration has eviscerated neighborhoods along with the small businesses that help give them definition.”

Follow Brooklyn Eagle reporter Lore Croghan on Twitter.