Here’s Why a Judge Mentioned the Marquis de Sade While Dismissing a Lawsuit Against the Pfizer Rezoning

A lawsuit that had temporarily halted the development of the controversial Pfizer Project has been dismissed, clearing the way for developers to build on the southwest corner of the Broadway Triangle in Brooklyn. 

The lawsuit, filed on behalf of community groups, was an attempt to require the City of New York to study how the residential development might, tangentially, increase racial segregation. Judge Arthur F. Engoron, in his decision, called the suit “well-intentioned, passionately argued, and occasionally produces a glimmer of plausibility.” However, the judge noted that New York City has been experiencing a never-ending “housing crisis” since the end of World War II. To fix this, the priority should be building. “The City needs more housing… a lot more,” he said.

The Broadway Triangle– a plot of land north of Flushing Avenue and south of Broadway Avenue– has a long history, dating back to 1989, when the land was deemed an urban renewal zone. In 2009, the City Council rezoned the area, from industrial to residential, which resulted in a similar lawsuit about fair housing and racial segregation that was resolved last year. The Pfizer Project came about when Pfizer sold their 4.2-acre plot of land in the Broadway Triangle to Harrison Realty LLC, which is half-owned by the Rabsky Group, in 2012 for $12.4 million. In 2015, Rabsky Group applied with the City to rezone the land. They planned to build an apartment building with commercial space.

Some community members were wary because the governor and mayor have both publicly accused the Rabsky Group, along with 50 others, of benefiting from the 402a tax abatement while failing to offer the affordable units required to qualify for the tax break. The 2015 rezoning required public hearings, which erupted into chaos. Both in 2016 and 2017, City Council meetings about the Pfizer Project were shut down by protesters. 

Neighbors, concerned about gentrification, wanted to either stop the development altogether, or ensure that the apartments offered ample low and middle-income housing. A problem with the Pfizer Project is that, while technically in Community Board 1, it sits directly adjacent to Community Board 3 and 4. Any upward pressure on prices caused by a glitzy new development might affect these adjacent communities. Community Board 1, Williamsburg, is predominantly white (including a large population of Hasidic Jews). However, Community Board 3, Bedford-Stuyvesant, is historically black and Community Board 4, Bushwick, is historically Latino. Residents of Community Board 3 and 4 were concerned that people of color would be unfairly affected by the new apartments, yet left out of consideration for the coveted affordable apartments. Half of affordable units are generally reserved for those already living within the Community board of the development. This would become a central contention in the lawsuit.

On February 28 of this year, the attorneys at Brooklyn Legal Services filed a lawsuit on behalf of community groups, including Churches United for Fair Housing, and Los Sures Lucha. The judge granted a temporary order to cease development while the case was heard.

“There is a long history of racial segregation in Williamsburg, dating back decades,” said Adam Meyers, an attorney for Brooklyn Legal Services. “In 2012, a judge stopped the City from moving forward with development following the Broadway Triangle rezoning, due in part to the City’s failure to consider and address racial impacts. With the Pfizer sites rezoning, we’re going to see these patterns of segregation get worse.” The 2012 case found that the development overwhelmingly benefitted the Hasidic Jews who live in the neighborhood, to the exclusion of people of color. The two partners of Rabsky Group, Simon Dushinsky and Isaac Rabinowitz, are both Hasidic.

The primary aim of the lawsuit was to enforce the Fair Housing Act (FHA). The FHA requires cities and states that receive funds from federal Department of Housing and Urban Development to “affirmatively further fair housing.” This mandate, known as AFFH, was the a fundamental premise of the lawsuit. The assertion was that the City, as a named defendant in the suit, is supposed to proactively protect against segregation.

Brooklyn Legal Services argued that rezoning violates the FHA AFFH mandate by increasing segregation. One argument was that the “bedroom mix,” or number of one to four bedroom apartments the developers build, was biased. The claim was that more three and four bedroom apartments favor Hasids, who tend to have larger families.

The goal of the lawsuit was to get a permanent injunction against development, and force the City to conduct a “racial impact study.”

But Judge Goronson made it clear that he believes the process of getting a building built was already bogged down in bureaucracy: “to build any new housing, a developer must go through an arduous, Byzantine review process that seems like Rube Goldberg, Franz Kafka, and the Marquis de Sade cooked it up over martinis.” He goes on to list the eleven agencies and numerous public hearings a developer must endure before starting their project. 

In a footnote, the Judge mentions that the City’s Final Environmental Impact Study “clocks in at over three inches thick.” Then it goes on to wonder: “Could even more study possibly provide more information?” 

The judge cites a Supreme Court case in which the tangential effects of development, like increasing prices in neighboring communities, called “disparate impacts,” were found to be considerable. But there are limitations. The Supreme Court wrote that “if the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system.” The judge didn’t want more rules to discourage real estate developers from developing. 

Judge Engoron couldn’t find any distinct barriers that would cause segregation, and thus dismissed the case.

Also noted was that the lottery process determining who will live in the affordable apartments is not run by the developers, but is run by the City. This makes the potential for discrimination, violation of equal protection under the law, and equal rights much harder to establish.

“This decision allows Harrison Realty to move forward on a development that will negatively impact people and communities of color in North Brooklyn.” said Meyers. He added that Brooklyn Legal Service and their clients are planning an appeal.

But now that the case has been dismissed, building is set to begin on the site.