(Photos: Pooja Salhotra)

Following a nearly three-hour long virtual hearing on Friday, the fate of Elizabeth Street Garden, a 20,000-square-foot public green space, continues to hang in the balance.

Friday’s hearing was just the latest milestone in a legal battle that began over a year ago, when two separate lawsuits were filed in an effort to preserve Elizabeth Street Garden, located in the heart of Nolita. New York City Council voted last summer in favor of the Haven Green project, which would replace the garden with housing for low-income senior citizens. Manhattan Supreme Court Judge Debra James has now heard oral arguments from both legal teams that filed the suits, as well as from the city and potential developers Pennrose, RiseBoro and Habitat NYC. Judge James has taken the case under advisement, leaving both the city and garden advocates in limbo.  

“We’re keeping our fingers crossed and hoping for the best,” said Norman Siegel, the lawyer representing Elizabeth Street Garden. He declined to comment on how he thought the hearing went, saying it’s the judge’s job to interpret it. 

At the hearing, legal arguments focused on the minutiae of the city’s zoning laws and sometimes hinged on the definition of words like “vacant” and phrases like “front facing wall.” The site proposed for the Haven Green project is city-owned land that, since 1990, has been leased month-to-month to Allan Reiver, an art gallerist who owns the adjacent building. Reiver cleared the space and planted grass, trees and bushes, and he populated the garden with large outdoor statues from his collection. The space opened to the public in 2013.

In essence, representatives of Elizabeth Street Garden (ESG), the non-profit operating the garden, argue that the city is violating zoning laws and that they failed to adequately consider potential adverse environmental impacts of the Haven Green project. Zoning regulations for the Special Little Italy District, in which the garden sits, require that “front building walls extend along the full length of its full front line.” The Elizabeth Street Garden lot is a through lot, meaning it is bounded on both sides by streets- Elizabeth on one side and Mott on the other.  

On Friday, lawyers argued over the implications of this somewhat unique layout. The new proposed building is set back a bit from the Mott Street lot line, a design feature that ESG claims is in violation of zoning laws.  

“A front building wall is any wall that faces a street,” argued Siegel, representing ESG. “There are two front lines, so it needs two front building walls.”  

In addition to the arguments over zoning laws, both of the lawsuits contend that the city should have completed an Environmental Impact Statement (EIS). Joseph Reiver, executive director of Elizabeth Street Garden, says that if such an assessment were made, it would be obvious that the garden cannot be repurposed. 

“We are confident in the case,” Reiver said. “If a truthful, transparent Environmental Impact Statement was done, it would show how vital the garden is and how much of a negative impact it would be to destroy it.” 

The city, meanwhile, has emphasized that the number of adults over 65 in New York living in poverty has increased over the last decade and that the new development would provide 123 much-needed affordable studios for senior citizens. A representative for Habitat for Humanity also noted that part of the new building would be community space used to “advance its charitable mission citywide” by providing services in education, health and community programming. Developers also dispute ESG’s claim that an Environmental Impact Statement was legally necessary. They say that they have responded to one of the major environmental concerns raised– a loss of green space– by ensuring that the new development will feature 8,000 square feet of open space. 

As Judge James deliberates over the two lawsuits over the next few weeks, her role is to determine whether the city has followed the law in its planning to repurpose the space. Both sides emphasized this point, noting that the judge is not charged with deciding whether affordable housing or public green space is superior over the other.

Quoting the court of appeals in a previous decision, Ken Fisher, representing Pennrose, explained in his closing argument: “It’s not the role of the court to weigh the desirability of any action, or to choose among alternatives, but to assure itself that the agency has satisfied the [State Environmental Quality Review Act] procedurally and substantively. That is this case here.”