TGE’s dream – denied (again)

TransGas Energy System’s latest legal gambit has fallen flat. In a terse decision [pdf], the New York State Court of Appeals has denied TGE’s motion to appeal a prior appellate court ruling.

This all goes back to TGE’s 2002 acquisition of rights to the Bayside Fuel Oil site at North 12th Street and Kent Avenue. In 2004, the New York State Board on Electric Generating Siting and Environment voted to deny TGE’s application to build an above-ground power plant on the site. In May, 2005, the City rezoned the site for parkland. In March, 2008, the siting board rejected a revised TGE plan for an underground plant on the same site, and in September, 2009, the Appellate Court upheld that siting board decision. And now, the Court of Appeals has refused to hear TGE’s appeal (“motion for leave to appeal denied”).

If you are keeping score at home, that’s community 4, TGE 0. (Actually it’s worse than that – TGE has had a series of smaller rejections over that time.)

Despite the fact that this has gone completely under the radar, this is very big news for Williamsburg and Greenpoint. The City can now move ahead with condemnation proceedings to acquire the property. And the City might be able to afford it too – with no viable power plant use (and massive environmental remediation needed), the value of the property is considerably less.

In other words, we are one step closer to a park on the Bushwick Inlet. (And from what I understand, TGE’s option on the Bayside site expires in a couple of months, so maybe this time TGE’s plan is not only merely dead but really most sincerely dead.)

Marty Markowitz has decided to split the difference on Rose Plaza. He is recommending approval (with modifications) on the basic rezoning of the Certified Lumber site (the change from manufacturing to residential use) and disapproval (with modifications) on the applicant’s special permit applications (to increase the height of some buildings, etc.).

Reading between the lines, Markowitz’s thinking seems to be that the base rezoning is consistent in height and density with other waterfront rezonings and that the applicant is providing the basic level of affordable housing (20%) in exchange.

The biggest issue for the BP on the rezoning itself was the guarantee of affordability. Even though the applicant says they plan to use the Inclusionary Housing program and other benefits to provide 20% of the units as affordable housing, those units are not guaranteed. A developer (the applicant or someone down the line) could decide that the density bonus and tax abatements are not worth the extra cost of building the affordable housing and just do a market-rate project. In response to prodding from Markowitz, the applicant has committed to a deed restriction guaranteeing that at least the 20% affordable housing will be built. Good on Marty for that.

The special permits are another issue in that they add value to the project over and above the base rezoning. With the special permits, there would be fewer towers (which represents an efficiency of scale in construction costs) and those towers would be taller (creating better views and higher psf sales prices). In exchange for that added value, Markowitz lays out a menu of modifications, which he “hopes the City Planning Commission and the City Council will give strong consideration to.”

These modifications (which also appear to be the conditions for the approval of the base zoning) include: 33% affordable housing (with the portion above the 20% as moderate- to middle-income housing); a higher proportion of two- and three- and four-bedroom units in the project; the inclusion of a supermarket in the retail portion of the project; the rebuilding of the entire Division Avenue street end (not just half, as the applicant is now obligated); and a strong, non-binding, participatory role for Community Board 1 on issues such as design, environmental clean up and the like.

With the exception of the supermarket, these modifications match very closely the issues cited by CB1. From the applicant’s point of view, the rezoning might be the most important thing, but going forward, CPC and the Council have a pretty clear – and consistent – road map for what will make this a good project. That is probably why people on both sides of the issue think this is an “excellent resolution”.

On Monday, the City Council approved the Broadway Triangle rezoning by a vote of 36 to 10, with 4 abstentions (Gotham Gazette and the Times both have excellent coverage of the vote and the process). The final agreement worked out by the council included an additional 10,000 square feet of public open space (at the cost of about 40 units of affordable housing), and vague promises to provide assistance to relocate businesses in the area. Also, Councilmember (and soon to be Public Advocate) was heard making noises about HPD’s process of sole-sourcing development rights here and elsewhere.

All of that is on top of the basic outlines of the plan that have been in place from the beginning – a substantial amount of affordable housing within a manageable and sustainable zoning envelope.

Proponents are citing a figure of 800+ plus units of affordable housing, while the opponents say that “much of the affordable housing… is not mandatory, but it is part of the city’s inclusionary housing program“. The truth lies somewhere in between. The number of units on city-owned sites is about 600 (and that is after the loss of 40 units for the additional open space). Those units are guaranteed to be affordable. The difference between 600 and 800 is the inclusionary housing program, and those units are not guaranteed. In fact, if the past any indication, it is likely that none of those additional will be built. But even if they are not, and the rest of the rezoning area is built out fully with market-rate units, this rezoning will still generate over 40% affordable housing.

Part of the reason the rezoning reaches that percentage (a number the entire community fought for in the 2005 waterfront rezoning) is that the overall zoning is contextual to the rest of the community. The R6A and R7A implemented as part of this rezoning does not seek to supersize development – it keeps development within a reasonable and sustainable density (again, something the entire community fought for in 2005).

But it’s not over yet.

The Observer was a tad premature in its assessment of the Council’s approval “seeming to conclude a saga over the large below-market rate housing site in Brooklyn that has been pushed relentlessly by Assemblyman Vito Lopez”.

That’s because last night, a judge “granted the Broadway Triangle Community Coalition’s application to halt implementation of the City’s controversial rezoning of the 30 acre Urban Renewal Area at the border of Williamsburg and Bedford Stuyvesant in Brooklyn.”