Un-Change That You Can Believe In?: Is The Brooklyn Heights Association Going To Endorse Greater Density In The Neighborhood As A Way For Its Neighborhood To Regain Historic Character? (It’s Being Discussed.)

The corner of Montague and Henry Streets: On left, the current problematic vista; On right, the view as some Brooklyn Heights Association trustees may hope that it will be approved, restoring the neighborhood's historic flavor. (Click to enlarge for better consideration)  Note: The rendering of this proposal triples the office real estate brokerage space of Brown Harris Stevens, a not unlikely result of the addition of this much real estate to the neighborhood.

Nothing is official or publicly disclosed yet, but rumors are out that there is dissension and disagreement at the Brooklyn Heights Association as a result of an idea proposed by an emergent faction of the board that is raising hackles with the others.  It all stems from the fact that there is a sense that the Brooklyn Heights neighborhood, the first neighborhood in New York City to be designated an historic district, has fast been losing its historic character.  - Oh for history’s sake!

How can Brooklyn Heights regain, restore and reestablish the historic flavor and character that has made it so deliciously revered as one of the city’s most special areas to stroll through and that invariably attracts and is recommended to tourists and to visitors coming from everywhere?

Brooklyn Heights historic area boundaries.

The reason the question has presented itself in a nagging way that is far from easy to sidestep is because of the visual intrusions of the tall glass towers shrieking modernity that have recently been built ringing the perimeter of what is officially the protected historic part of the neighborhood.  The protected part of the neighborhood is actually smaller than many presume, ending, for example on Montague Street at the boundary of Clinton Street. The poster child for such “back to the impending future” intrusions is the super-tall luxury condominium tower, replacing what was once Brooklyn's second most important library at the corner of Tillary and Clinton where they intersect at Cadman Plaza West.

That tower, developed by David Kramer and his Hudson Companies, was endorsed and promoted by the Brooklyn Heights Association.  Destruction of the public library to create the tower also created a financial windfall for the neighborhood’s elite Saint Ann’s School, which was, no doubt, influential in the politics that sent the tower soaring up to dominate the skies of the historic neighborhood from all sorts of vantages.  It is possible that when the BHA endorsed the luxury tower they never realized just how visually dominant it would be in so much of the neighborhood.

But now, according to the rumors, one emerging faction of the Heights Association is pointing out that, while the tower is seen looming from many of the key streets and intersections of Brooklyn Heights, there are places where it can’t be seen because view of it is still blocked by the older historic buildings making up the fabric of the neighborhood since it was officially designated historic by the Landmarks Commission on November 23, 1965.  The same faction of the BHA (basically the core group that lobbied to sell the library) are pointing out that the visual intrusions of the tower are not always that bad, and are they are saying that there is, in this observation, the seeds of a solution to make the unsightly tower less “sightly” . . . Or, if you will, make the tower less Brooklyn Heights Historic District “sitely.”

Other candidates for “historical enlargement”: At left, the creamy white Supreme Court Appellate Division building on Pierrepont and Monroe Streets; and, at right, a series of townhouses on Monroe Street that no longer feel cloistered away from the bustle of the moderns age. ( The Supreme Court building attracted film crews for many an episode “Law and Order.”  If the success of “Law and Order” can result in six spin-off series, which it did, why can’t recognition of the attractiveness of the Supreme Court building equally justify addition of another half dozen similarly beautiful floors?  The demand will be to fill those extra floors with condos, not more justice manufacturing.)

The answer being proposed is to bring greater density to the Brooklyn Heights and allow the truly historic buildings of Brooklyn Heights to express their historic influence more fully by building extra floors matching and multiplying the same historic flavor those buildings contribute to the neighborhood now.  If those buildings rise up enough extra floors they can blot out the visibility of Kramer's One Clinton luxury condo tower and perhaps also diminish the conspicuousness of the other glass-glazed luxury hulks that have bounded up into the skies elsewhere on the neighborhood’s periphery.

With nobody currently on the board of the BHA officially talking, the internal politics and arguments being exchanged are, as yet a little unclear.  However, Hank (Henry) Gutman, a former BHA board member and currently on the board of the Brooklyn Bridge Park corporation and on the board of the Brooklyn Public Library that sold the Business, Career and Education federal depository library to create Kramer's luxury tower, seems to have an inside line on the development oriented thinking that is behind the proposal.  Gutman says “allowing the extra density unlocks the real estate value historic neighborhood designations invariable trap unused in their neighborhoods, and that unlocking of value will serve as an engine for quick restorative development that will assist the Heights neighborhood to regain its historic flavor.”

Gutman said that, if the Heights Association proposes this solution, he strongly believes the de Blasio administration will accede and work with the BHA to implement it.  Among other things, says Gutman:

This is consistent with other goals of the city.  The city needs to grow and become more dense.  It’s a city policy to add density along subway lines and at the transit hubs where those lines converge.  Right now Brooklyn Heights, sitting atop the convergence of a huge proportion of the city’s subway lines, is hogging our subway lines without giving any density back.  It’s time for the neighborhood to give back! 

Gutman is hopeful about the future of similar proposals in the future: “If implemented successfully in Brooklyn Heights, I am sure it’s the kind of thing that can be programmatically replicated in other neighborhoods throughout the city,” says Gutman.

Another thing to think about says Gutman is how this would address what he considers the almost inherently elitist nature of historic neighborhoods.  “Nobody is making historic neighborhoods anymore,” says Gutman, “yet, given the crap people are building these days [Gutman wouldn’t comment on Kramer’s work], everybody wants to live in them.   Given the automatic scarcity that results, the neighborhoods become enclaves for the wealthy who outbid everyone else.” . .

. . . “This is the solution,” says Gutman, “now, by adding greater density, we will be building more historic places where people can live.”  . . . . And, says Gutman, it sort of goes along with something else he has always liked to say, which is“if you know how to create history, you'll be a winner when it's all said and done.”

Is this a proposal that the Brooklyn Heights Association will be promoting?  As far as anyone knows, it’s only being discussed at this point, but what may the clincher for endorsement by the BHA is another related proposal that would be combined with it . . .

. . .  The extra density to hide modern towers proposal would create multiple extra tall buildings of a historic character throughout the Heights neighborhood.  They would all have additional steel columns to ensure support for the extra floors, and could perhaps also have more.  There is a feeling that, if done right, the new taller-than-average historic character towers scattered throughout the neighborhood could also become the supports upon which to rest a new, but temporary overhead bypass for the BQE to allow the repairs to the BQE's existing structure without tearing down the promenade.  That would substitute for the Department of Transportation’s (hard to believe) plan for repair and modification of the Brooklyn Heights Promenade that involves six years during which a six-lane highway would run along the Heights in place of the promenade.

A red line tracks how a BQE bypass over taller "extra historical" buildings could cut through the historic district to save the promenade from the DOT plan.  Once upon a time, Robert Moses wanted to run the BQE through the middle of Brooklyn Heights which would have involved tearing down much of historic Brooklyn Heights.  In contradistinction, this plan, with a similar BQE route, builds up and creates more of the historic district.

The BHA has said it very much opposes the reviled DOT plan.  Gutman thinks the historic towers supporting a bypass would be a much better plan.  And City Councilman Steve Levin, who usually keeps his constituents guessing about his actually stance on development issues until the very last minute (and who says he opposes the DOT promenade plan) has, in this case, already said, it's “exactly the plan to replace the DOT plan” that he has been “on the look out for.”

I wanted to get this article out as soon as possible to let New Yorkers know what is being considered as soon as possible, but this publication may be a little premature.  Gutman thinks the BHA factions are about to resolve their differences and says he thinks the BHA may come out to announce a more definitive proposal, as soon as today, April 1st.

Example of how "extra historical" buildings could support BQE bypass.

Appellate Court Hearing on View-Blocking Brooklyn Bridge Park Development: Who Knew What And When As A Community Needed Protection? (In the audience Mr. Gutman nods.)

Outside after Friday, the 20th Appellate Court argument: Center background in suit and blue shirt Hank Gutman member of the defendant Brooklyn Bridge Park Corporation, Center in trench coat Otis Pratt Pearsall who sought protection for views from the Promenade, foreground in red tie Steven Guterman who started plaintiff Save The View Now organization to object to view-blocking Pierhouse hotel/residential complex being oversized.

Friday, the 20th, there was an Appellate Court argument on Monroe Place about whether the already mostly constructed “bulky Pierhouse hotel/residential complex in Brooklyn Bridge Park” should be reduced in size because it is 30 feet taller than the view plane height limit negotiated with the community in 2005.   Technically, the hearing was about whether the community group Save The View Now was within the statute of limitations when it brought its lawsuit.  In bigger picture terms, the discussion and questions being asked by the judges involved who knew what when in terms of protecting the community from the encroachment that now blocks the iconic view of the Brooklyn Bridge the public previously enjoyed when visiting the Brooklyn Heights Promenade.

It was explained to the court by a lawyer defending the development and the quasi-governmental Brooklyn Bridge Park Corporation that oversaw it that there were decisions to alter the building by putting additional (view-blocking) mechanical equipment on top of it because of Hurricane Sandy, which hit New York City as Superstorm Sandy October 29, 2012.

When after that was it that, the Brooklyn Bridge Park Corporation made the decision and was the building’s taller height ever made official with any sort of publicly released and available approval document?  That did not appear clear from any response to the judge’s questions.  And, presuming something like that actually happened, when it was incumbent upon members of the public to notice that the assured height limit negotiated in 2005 was being cast aside so that the public needed to take action to protect itself.

One thing I found particularly interesting during the hearing arguments of the lawyers for the Brooklyn Bridge Park Corporation and the developer (Toll Brothers) was to watch Hank Gutman (Henry B. Gutman).  Although sitting in the audience, Hank Gutman tends to be very much a central player:

    •    Mr. Gutman is on the board of the  Brooklyn Bridge Park Corporation, which, with him there, has been promoting maximum development within the “park” for some time now.

    •    Mr. Gutman is also a trustee on the Brooklyn Public Library board, which has been promoting sale of its libraries to turn them into redevelopment projects, like the Brooklyn Heights Library sale benefitting developer David Kramer and his Hudson Companies (plus also benefitting Kramer’s architect, Marvel Architects, the same firm working on and doing the calculations determining how tall the Pierhouse Building would be.)

    •    Mr. Gutman was also on the board of the Brooklyn Heights Association (having also been an officer there too) until the beginning of 2011 when he resigned in protest over a lawsuit the neighborhood brought against improper development in Brooklyn Bridge Park.

    •    Lastly, Mr. Gutman (along with a fellow BBPC trustee also involved in pushing library sales, David Offensend) was one of the first to buy condos in the extra-tall Pierhouse building that was the subject of the litigation.  In theory, any applicable law was interpreted such that the trustees’ purchase of apartments was not considered a breach of ethics.

What was interesting to watch about Mr. Gutman was the way he was nodding his head affirmatively to help communicate to the court that everyone knew that the building was going to be extra tall, so much taller than originally expected.  `Did the community know?’  Gutman nodded his head.  `The Brooklyn Heights Association knew?’: This was when the fellow in the chair immediately in front of Gutman swiveled around happily excited to confer with the nodding Gutman.  That man looked like a lawyer; you know, the briefcase, the suit, the haircut, etc.  Gutman is a lawyer too.

Nodding Mr. Gutman was first out of the court house.

The nodding, or subtle gestures to hopefully communicate with the court, is typical and permitted courtroom decorum.  Members of the audience are not supposed to actually talk or be disruptive, but, like a public hearing, you sort of hope that maybe you’ll have a lot of people on your side of the case in the court room and that subtle facial expressions during the arguments will get picked up upon. . . .  Then there is the subject of chuckling (sometimes absurdities will provoke that reaction in you if you don’t want to actually cry): The United States Justice Department is prosecuting a woman who chuckled during a United States Senate hearing when it was asserted that the record of racial discrimination by Attorney General nominee Jeff Sessions was a “clear and well-documented” record of “treating all Americans equally under the law.”  Senator Elizabeth Warren was silenced and kicked out of the Senate Chamber for attempting to introduce facts that would have set the record on this straight.

I was fascinated by how firm and opinionated Mr. Gutman seemed to be about how everybody knew what they supposedly knew.  I remember back to February 3, 2015 when the there was a vote by the Brooklyn Bridge Park Community Advisory Committee (CAC) calling for a halt to the building’s construction.  The CAC is supposed to be comprised of members from the community to represent it and is supposed to exist to help keep track of what is happening with respect to Brooklyn Bridge Park.  The CAC that night voted for a halt in construction partly based on the fact that the CAC had not been informed of how the building would be extra tall blocking the views that were supposed to be protected.  The CAC may have no actual powers, but at the meeting the BBPC described the CAC as the “primary vehicle for communicating with the public.”

Brooklyn Eagle coverage of the CAC vote meeting attended by a public very upset about the oversized development.

At the meeting the Brooklyn Bridge Park Corporation representatives provided their explanation of how the building had become so extra tall.  What I remember asking myself and listening carefully for at that meeting was what the Brooklyn Bridge Park Corporation board knew and approved.  That’s the BBPC board that Mr. Gutman is on.  It seemed to me that violating the agreed upon view protections, something so important to the community, something giving so much extra benefit to the developer in terms of extra building rights, was something that the BBPC board should have approved. . . What did the BBPC board know and when?  - It would seem that in a rational world the board should have had to debate and formally approve it.  I didn’t hear anything about that.

Instead, I heard the most obfuscatory explanations about how the much bigger building just sort of happened at staff level, ostensibly for a conglomeration of strange and obscure technical reasons.  I quote:

When you are dealing with height, height should be a very easy thing to understand, but when you are dealing with a building’s it’s more complicated to understand, which involves a question of where are you measuring from and where are you measuring to?  One of the questions I like to bring up on that is with respect to One Freedom Tower and, is it the tallest building in America or not.  Do you count the spire as height?  There are a lot of questions. . . .[the public audience got impatient at this point and started complaining volubly] . .

     . .  So we got questions from developers about where do you start counting from and where do you count to?  And we went to the ESDC [the Empire State Development Corporation, the nominal state authority parent of the city-controlled BBPC, an obscure quasi-governmental authority famous for having the freedom from being exempt from rules and getting to make them up instead.  The exemption enjoyed by ESDC and BBPC as its nominal subsidiary includes exemption from the standards of NYC zoning and NYC’s normally applicable ULURP process for public review]  A construct that ESDC uses for a lot of project plans is that whenever you have project plan those project plans are specific, and then you have a design attached to them. The general plan you have for Brooklyn Bridge Park, as you saw, is actually very general, and people have had problems with people asking questions that are not covered in the general project plan.  And what they have done in order to deal with that discrepancy is that in those cases they would defer to the local zoning plan [from which they are exempt].  The project plan does not actually say what the hundred feet is or where you measure it to.  Let’s look at how the New York City zoning code answers those two questions, and then the New York City zoning code there is a height restriction and there are lots of ways to calculate . . 

One would think that in order to implement the agreement with the community about preserving views, one would naturally look first and foremost to the BBPC's overall basic project plan for the building.  That plan had no need to be subject to any limiting constraints, but the BBPC representative went on to explain how BBPC instead chose to go outside the project plan to refer to NYC zoning (to which it was not subject) to pick a higher-up starting point to measure the building (referring to the floodplain calculations) and also allow things like “basically mechanical things, back of generators, HVAC equipment, elevator overrides, things like that . . to exceed height restrictions.”  He said, they then told developers they could exceed the height limitations these ways, “having got that instruction from ESDC.”

Thereafter when Superstorm Sandy happened, the BBPC representative said things got even worse for the community in terms of the building’s extra height.  The representative explained, floodplain elevations were changed to raise the building up higher “and that changed all the math that was involved.”  That extra elevation for the starting point at the bottom of the building was additional to the other changes blamed on Sandy at the court hearing about moving view-blocking mechanicals to the roof to make it taller at its top.  Naomi Klein warns us about “disaster capitalism”: When disasters strike, the monied interests take advantage of those disasters in self-serving ways.

The logic of these calculations didn’t go by unchallenged when they were explained at that February 3, 2014 CAC meeting: Local community activist Tony Manheim said that given that the BBPC project plans "trump" New York City zoning when desired, “It’s a little bit disingenuous to take advantage of avoiding New York City zoning when it’s convenient to do so and then cherry pick zoning practices to allow the exceeding of height limitations by bulkheads which somehow seem to also include a bar and café.”

The Sandy related changes that made the building still bigger were, according to the ESDC representative, being made until September 2013.  If construction of the building started in summer of 2013 as was stated at the court hearing, that would mean that Sandy related design changes were being made even after construction started.  At the hearing it was discussed that people in the community were first beginning to notice that the building was getting too tall in September 2014.  The plaintiff organization Save the View Now was formed because of this in December of 2014.

Mr. Gutman’s nodding of his head doesn’t necessarily indicate anything beyond that fact that he wanted the court to rule that the community knew and that Brooklyn Heights Association knew about the extra large size of the building at times early enough to cause the statute of limitation impediments the team of development supporting attorneys were arguing should defeat the case.  It doesn’t necessarily mean that Mr. Gutman (a BBPC board member), or the BBPC board knew at these or these (or other even earlier) times of the building’s extra large size.  (Rather than it being just the BBPC staff engaging in technical interpretation somersaults).  But it makes me wonder and sort of gives me that feeling that this was pretty much the case. . . .

. . . And if that is so, I have to ask: Brooklyn Bridge Park Corporation is a governmental entity endowed with enormous governmental power- Doesn’t it thereby stand to reason that it owes a responsibility to the public to be absolutely clear, and should clearly alert the public when it is not planning to honor an agreement about protecting an important identified and agreed to public interest?  Is the BBPC entitled to play cat and mouse games about what it is doing?

Notwithstanding Mr. Gutman’s head nodding, it was not until very late in the game that public really figured out or knew what was going on.

At the hearing the development defending attorneys argued that the community reacted to the size of the building with “Rip Van Winkle” tardiness.  It was asserted that community had “inquiry” notice, “constructive” notice, and “actual” notice of the bigger building and the mechanicals “above the roof of the building.”  Leave it to lawyers to come up with assertions involving such parsed out multiplicities.   There was no assertion of “information gotten by pulling teeth” notice, “cat and mouse game triumph” notice, or “able to decipher technological gobbledygook” notice.  I also heard no direct explanation of what notice the Community Advisory Committee, the BBPC’s “ the “primary vehicle for communicating with the public,” got when it believes it got no notice and that instead the BBPC “dribbled out” information in a way that was deliberately intended to be uninformative.

It was even hinted that maybe notice letting the public know didn’t even matter: A development lawyer made the dodgy assertion that the “view was improved” by the project.  It was affirmatively asserted there was no stealth or concealment on the part of BBPC.

Respecting the Brooklyn Heights Association the argument was particularly interesting.  The lawyers defending the development’s size argued that by virtue of a December 2011* letter from BHA President Jane McGroarty that referred to an acceptable height for the building that was “exclusive of mechanical equipment” the record showed that Brooklyn Heights Association, the “the dominant civic organization” of a community of what was “not a bashful community,” had notice and was aware and was not objecting to the ultimate height of the building.

    (* Hank Gutman had left the BHA board earlier that year.)

Really?  Is that a good argument?  December 2011 was nearly a year before Superstorm Sandy and the cascade of rejiggering alterations with all the “math” involved changing (concluding September 2013) that, among other things, put an unexpected and atypical amount of extra stuff on the building’s roof making it taller.

There is other stuff we could brawl about here like what people are referring to the “bulkheads” being permitted on top building.  If you think you know buildings “bulkheads” might sound relatively innocuous and if you Google images of “bulkheads” for examples, the small slant-roofed minimalist protrusions you’ll see are not likely to suggest to you what has been constructed atop this building under the “bulkhead” rubric. .  including, as Tony Manheim put it, “a bar and café” ?

Crowd lingers to analyze after the hearing. Plaintiff attorney Jeff Baker on highest steps.

 This article is not intended to parse the exact legal arguments that forayed into the field at the Friday appellate court hearing, nor analyze the relative strength of the arguments and why certain arguments should perhaps logically prevail.  This musing over the situation is more for the purpose of giving a general feel for what is happening and the overall context in which it is taking place.

Closer up: Plaintiff attorney Jeff Baker on steps, Steve Guterman in red tie.

Will the appellate judges issue an order that could result in 30 feet being removed from the top of the unexpectedly tall view-blocking building?  People find that outcome startling to imagine, but it is absolutely within the judges' power to do so, although situations of this type presenting precedent are rare.  And, as counsel for the plaintiffs told the court, the defendants knowingly proceeded to build at their own risk.

The judges by their tone and skepticism seemed to at least consider that the community was likely treated badly.  But when do judges these days ever decide against the money?  One thing we might expect is something we have seen before in these situations: An opinion that scolds the BBPC and public development officials (including its board?), but then protects the monied interests from lose of their ill gotten gains despite such a judicial upbraiding.

This was in the first posting of Save The View Now December 31, 2015 to alert the community about the building's height.