Community
approval is perhaps the hardest thing for a developer to do. Whatever the
developer does, there will always be naysayers. Should these naysayers
intervene when it comes to preventing the bulldozer from moving in? The following interview with Fisher was carried out by The Commercial Observer.
And
here is what the partner at Cozen
O’Connor Kenneth Fisher has to say concerning this matter.
The Commercial Observer: It seems that most, if not all, of your work is done outside the courtroom.
Mr. Fisher: A substantial part of my practice is land-use and zoning
work, so those usually wind up in litigation only when there is a
challenge—and those challenges usually come from some objector in the
community.
For me, a recent example would be: I did the entitlements for the Dock
Street DUMBO project for Two Trees. There was a litigation, which I
handled and won, together with the corporation counsel’s office,
obviously. Then there was an appeal for that, and we won the appeal in
the Spring. And they’ve started site demolition, and they are going to
start construction shortly.
So how essential is land-use litigation for developers, then?
I think the sort of macro observation that I would make is that land-use
litigation over the last year or two has been “the dog that didn’t
bark.” There have been challenges to most of the major actions, and some
minor actions, that have come through City Planning and the City
Council. Most of them have failed.
How did the opposition to the Dock Street development fail?
The proposal calls for a 17-story building in close proximity to the
Brooklyn Bridge, with a 300-seat public middle school in the base, the
core-and-shell of which is being donated by Two Trees. Also some
neighborhood retail and parking.
There was some degree of controversy over whether views of and from
the Brooklyn Bridge would be impacted. But, you know, I think that the
people who were most agitated were the people whose views from their own
apartments would be impacted.
While there was active organized opposition, there was also active
support—as a result of which, as many people testified for the project
has testified against it at the public hearings, and it was ultimately
approved not just by the City Council and the Planning Commission, but
it was approved by the Community Board.
A lot of the opposition dropped by the wayside when the council gave
the go-ahead to the project. But there were a couple of dissidents who
brought a lawsuit, and they challenged everything from the rationale of
the project to the design solution that we developed with City Planning
to the adequacy of the environmental assessment. All of that was
dismissed at the trial court level.
If you’re, say, Jamestown Properties, how would you
prepare yourself for ongoing community opposition over projects like the
proposed Chelsea Market expansion?
I once published a letter in the New York Times; I said I had a dream
that the mayor announced an agreement with the Almighty to build a
stairway to Heaven. And when they announced the location, half the
people said that it would lead to gentrification, the other half said it
would bring in the riffraff, and everybody agreed that it would be bad
for traffic.
The point of the story is that no matter how benign a project is, it’s going to upset somebody.
What kind of project do you think upsets people the most?
What gets attention are the “baby carriages in front of the bulldozers”
projects. NYU is a situation like that, where the people who were
opposed to NYU weren’t particularly interested [in] negotiating. They
simply wanted to preserve Greenwich Village the way it was [yesterday].
It wasn’t a question [of] putting in a day-care center or making it
bigger or smaller for a lot of them. There are others who wanted to
engage, and the result was that the council got NYU to make some changes
just before they gave the final go-ahead. That’s the give-and-take and
the back-and-forth of the process. But it’s not Newtonian, because
governments are bodies in motion that don’t always stay in motion, and
reactions are never equal and opposite.
Source:
The Commercial Observer