Continued Fight over Towers Near the Botanic Garden
Continued Fight over Towers Near the Botanic Garden
August 20th I was sitting in Judge Reginald Boddie's Court, Room 456, at 360 Adams Street to hear his ruling on the case of Boyd vs. Cumbo, the City Planning Department, and Cornell Realty, in which the plantiffs representing MTOPP (Movement to Protect the People) were trying to undo the rezoning of areas on Franklin Avenue, done so that two 16-story buildings could be erected. The defendants were claiming they had not been served properly and thus could not be sued. Judge Boddie refused to dismiss the case and instead scheduled a “traverse” to hear evidence so that he could decide if the case should proceed or be dismissed. The “traverse” was scheduled for September 9th. Just as during the session on the 20th, the court was packed with supporters of MTOPP, so was it similarly filled on the 9th. Every seat was occupied by concerned citizens, each wearing a flower, either in their hair or lapel. The court date on the 9th was an anticlimax. At issue was whether Cornell Realty's lawyer had been served properly. Ms. Wright, their lawyer, was served in a timely manner according to instructions she gave to Ms. Pruden, the person serving the papers, and afterwards acknowledged being served. Cornell Realty claimed she was not authorized to accept papers even though she was their lawyer. Ms. Wright decided not to come to court and apparently refused to take a call from the current lawyer for Cornell Realty. As she would not give evidence, Judge Boddie ruled Cornell had been served and set another date to proceed with the case – Oct. 7th. When I spoke to Alicia Boyd, who is representing MTOPP, she told me that she was not surprised. She said that if Ms. Wright had come to court she might have been in danger of perjuring herself. She believes the defendants are attempting to wear down the plantiffs by using delay to add to the expenditure of time and money in the case. She said she was confident the preliminary objections by the defendants would be swept away. Meanwhile she asked Judge Boddie to proceed with discovery so she that she can collect information about how the rezoning had taken place, in particular, how it had been passed without an environmental impact study. After the court session was over those who came to court assembled on the court house steps with Ms Boyd, everyone showing high spirits and good morale.
So we were all were waiting for the Oct 7th meeting to see how the case would proceed. However, on Sept. 12 I got a call saying the court date had been changed and the next session would be on Sept. 17. MTOPP was hoping their supporters would turn out again to support the suit. I promised to do my best to be there and report on the new developments. September 17 came and I managed to make it down to court a third time. Again a large crowd of supporters of the lawsuit filled the court room. Judge Boddie was conducting a hearing on discovery. Alica Boyd, as the leader of MTOPP had submitted a list of items needed both to deal with the motion to dismiss the case and to proceed with its substance. When the session began Boddie read the list of items Boyd had asked for and then began going through it with the lawyers for Cornell Realty and the City Department of Planning to get a response. Right at the start the lawyer for Cornell told the court that Cornell would be appealing Boddie's ruling not to dismiss on the basis that Cornell had been properly served papers through Ms. Wright. The issue is of importance because on many documents Cornell is listed as an applicant for Land Use Revision, and Ms. Wright said in hearings that Cornell was the owner. Cornell's lawyer said Ms. Wright was not telling the truth – that in fact CPVI was the owner. Judge Boddie asked why Cornell did not correct the record. The lawyer said the testimony was not given under oath. Boddie asked whether Cornell only tells the truth under oath. It was an awkward moment and that question brought the exchange to an end.
Another issue was that Cornell and CPVI have an Arm's Length Agreement, meaning that they are two separate and equal entities in a business venture. Boyd had asked to see the Agreement, which would shed light on the question of who owned the properties when as proper applications for rezoning can only be made by owners. The Cornell lawyer strenuously objected that the agreement was irrelevant and that it contained sensitive and private information related to business matters. She repeated this several times. As ownership is very relevant to the zoning question, she was not convincing. Boddie asked if he alone might see the Agreement. The Cornell lawyer still objected reiterating the Agreement was not relevant.
The lawyer for the city also had trouble responding on another issue saying that the application had been “revised” or “modified” when a new name was put on it. She claimed that name referred to the same entity so there was no need to put in information about that entity. This seemed questionable as Cornell and CPVI have an Arms Length Agreement based on them being separate entities. Also the city's lawyer said the attempt to find the 1991 Community Plan agreement to zone at six or seven stories could not be found, and in particular a “shadow study” done then could not be found considering the issue of how tall buildings would affect the Botanic Garden. So City Planning, having lost the agreement, apparently decided to ignore it Instead it depended on a shadow study done by Cornell, an interested party.
Boyd also wanted to see the “procedures, rules, and guidelines” for how an application gets certified. Again the city could not come up with a clear response, claiming that these regulations were publicly available, but then the lawyer could not verify that these rules had been followed in the rezoning application.
Also Councilwoman Cumbo had said a new Community Agreement had been executed as part of the rezoning, but no such agreement has been produced. There was a dispute about whether the lawyer for the city represented Cumbo. She asserted that she did but she that she did not have the Community Agreement. Boyd also wanted to get information about the various corporations involved in the deal as sellers and buyers so that it would be possible to find out what relationships existed between them. Here too was a lack of information. In view of the missing information Boddie had the city fill out several affidavits so it would be clear what documents they did not have.
So it seemed the session went well for Boyd. However, Boddie did point out that the Brooklyn Botanic Garden was not objecting to the 16-story buildings. Boyd's response was the garden is an institution that serves the public that gets funds from the city and that citizens have an interest in what happens there whether corporate management takes a position or not.
At the end of the session, Boddie spoke in favor of a negotiated settlement though he said he did not know what that would look like. Boyd said she was always ready to talk, but the other side seemed less open to negotiation. The lawyer for Cornell said she stands by her position and the city lawyer said that it was not able to negotiate when the issue had already been decided. Boddie asked the parties to meet with him privately. He told both partied that if Boyd won, the developers would just come back with a new plan, and if the developers won, Boyd would continue the fight in other ways. He said an agreement would be a “win-win.” The conflict would come an end, and both parties would get something, and so the session came to an end.
On October 7th the story will continue. That is the next time the court will meet.
– John DeWind