Judge Delays Affordable Housing Plan, But the Plan is Only Delayed

By Arthur Z. Schwartz

On November 2nd defenders of the Elizabeth Street Garden, between Prince and Spring Streets, scored a victory in their long-running bid to block an affordable housing development in Little Italy.

State Supreme Court Judge Debra James nullified the environmental impact statement for what the City calls the Haven Green project, the affordable senior-housing development slated for the Elizabeth Street Garden site. This is a blow for the City and a development group led by Philadelphia-based Pennrose in their now-five-year quest to get the project approved.

The city’s so-called Negative Declaration had asserted that the proposed 123-unit apartment building for formerly homeless seniors would have no negative impact on the surrounding area’s environmental and cultural resources.

Judge James concluded that the study failed to fully consider the development’s impact on open space in the neighborhood. She ordered that the City must conduct a full Environmental Impact Statement in light of rapidly fading green space in underserved neighborhoods. While this by no means saves Elizabeth Street Garden indefinitely, it is a major win for those who have been organizing for the one acre park’s survival since 2016.

Opponents of the project, called Friends of Elizabeth Street Garden, have long argued that it would destroy one of the few parks in Little Italy. Developers countered that their proposal would include 6,700 square feet of public open space and a 13,000-square-foot community garden, but James found that they failed to prove that the reduction in open space would be made up for by the new amenities.

The ruling is the latest chapter in a long-running battle over the city-owned site in Little Italy that dates back to 2012, when the city earmarked the site for affordable housing and moved to end its decades-long lease with the art dealer who had transformed it into a sculpture-studded garden.

The ruling will likely mean delay, not death, for the affordable-housing development—which was approved by the City Council in 2019 and is slated to have 123 deeply affordable studio apartments. But supporters of the garden seem to believe that the ruling may open the door for negotiations with the Eric Adams administration over their preferred plan to build affordable housing about a mile away at 388 Hudson Street, another city-owned lot. (Critics say that 388 Hudson, at Clarkson Street, is already slated for 100 units of affordable housing.)

ONE OF THE FEW PARKS IN LITTLE ITALY: The Elizabeth Street Garden. Photo credit: Friends of Elizabeth Street Garden Website.

The battle over Elizabeth Street Garden started a decade ago, when the city first tried to end its month-to-month lease with Allan Reiver, the antiques dealer who had been renting the lot since 1991. After the city moved to take back the garden for affordable housing, Reiver started opening it up for more public events, like readings and yoga classes, and formed a nonprofit in 2016. In 2019, however, the City Council voted to allow the 123-unit deeply affordable senior-housing project — for people earning $18,744 to $37,548 a year — to move forward. Margaret Chin, the district’s City Councilmember at the time (she’s since been term-limited out), staked her election on the issue. And won. “In my City Council district, there are over 5,000 seniors on waiting lists for senior housing, and citywide there are over 200,000 waiting for senior housing,” Chin stated at the time. “Chin, the affordable-housing project’s champion, has been term limited, and was succeeded by Christopher Marte, a longtime supporter of the garden.

The Elizabeth Street Garden filed numerous lawsuits, including one challenging the environmental-review process; rather than carrying out a full review, the city filed what is called a negative declaration — asserting that the project would have no negative impact on the surrounding area’s environmental and cultural resources. Then, last fall, it moved to evict the garden so that Pennrose, the developer it’s partnering with, could secure financing and break ground. The ruling stops that eviction in its tracks.

A spokesperson for the city’s Department of Housing Preservation and Development said that it will appeal the ruling: “This decision is disappointing, and we will be appealing it. That appeal could take a year or more. And there’s another danger to the project: If the city doesn’t win its appeal, the court could decide that amending the environmental-impact statement means the project needs to be reapproved by the City Council. And the Council generally defers to the sitting Council Member on land use issues. 

The environmental-review process has frequently been weaponized to stop development and other changes to the urban landscape, blocking or at least stalling everything from bike lanes to commercial development.[Note: the author used the environmental laws to stop the 14th Street Busway for half a year back in 2019, in a lawsuit undermined by the COVID Pandemic.] Marte is also suing, along with several neighborhood groups, to stop three luxury towers from going up in Two Bridges, arguing that the construction of the towers would violate New Yorkers’ newly established constitutional right (passed via a ballot proposal in 2021) to “clean air and a healthful environment” be updated to take the impact of the pandemic into account.

Last month, senior-advocacy group LiveOn NY testified before the City Council about the City’s need for more senior affordable housing. Its research found that there are more than 200,000 older adults languishing on waiting lists for affordable housing through the HUD 202 program, each waiting for seven to ten years on average for a unit to become available. And while some can continue to make their current living situations work for the decade it takes to get housing, others aren’t so lucky: Roughly 2,000 older New Yorkers are living in homeless shelters, a number that is expected to triple by 2030 without significant intervention.

It is a shame that the need for affordable housing gets pitted against the need for green space.

Arthur Z. Schwartz does environmental litigation for the non-profit Legal Foundation Advocates for Justice and chaired the Parks and/or Waterfront Committees of Community Board 2 for one year.