NYC's Elizabeth Street Garden

Should it be developed into something else? How to think about this land use issue

This post is a summary review of the Elizabeth Street Garden debate, with some of my thoughts on it. Feel free to add more relevant information or nuance in the comments, and I’ll update the piece as necessary.

If you live in New York City, there’s a decent chance that you’ve heard rumblings about the Elizabeth Street Garden; it’s a city-owned plot of land that has been privately leased month-to-month and developed into a community garden over time.

But after a decade-long fight, the city is finally ending the lease and developing the land into a mix of (low) income-restricted housing, office space, and public green space—this project is called Haven Green. You can read about it in The New York Times, Bloomberg, The New York Times again, etc.

It has divided a lot of people, and I’ve gotten an atypical number of questions from my own social group asking what I think of it. I am obliging with this post, but I have two notes before plunging in.

First: as with most things in government and law, this is more technically complicated that you might expect. Many people are presenting simplistic takes either out of ignorance or bad faith. If that’s you, I look at your posts like this:

Second: this issue is near its end, as I’ll explain. ESG has no further legal recourse to block Haven Green, which has regulatory approval. The energy you’re seeing on social media and broadly online is the excitement of “something happening,” not “there’s something you can do.” Many people who haven’t followed the issue very closely (or at all) now suddenly feel pressured to have an opinion or pick a side, even though the proper time to have effectively done that is years ago.

But you don’t have to pick a side right this second; focus first on understanding what is happening, not what ought to happen. Recognize that you’re in the middle of a standard online memetic fight. Regardless of where you finally come down on ESG and Haven Green, I am your political friend as long as you make a good faith effort anchored in concrete legal understanding.

OK, here’s what I think:

First: does the city have the legal right to develop the site?

Yes. The city has the legal right to develop the site as they’re planning to do. The city owns the site, and ESG has only ever been on a month-to-month lease. I’m addressing this question first, because if the answer is “no” then nothing else really matters—ESG is right, and the city should not proceed with its plans.

What are the legal issues at play? ULURP & CEQR

In order to develop the site (remove ESG and replace it with Haven Green), the city must comply with ULURP (the Uniform Land Use Review Procedure)¹ and CEQR (the City Environmental Quality Review process).

Why ULURP? Because the city is giving a piece of city-owned property to a private party to develop (a “disposition of city property”).² Every time you do that, you have to pass through ULURP, which requires review by: the CPC (City Planning Commission), the relevant community board, the relevant borough president, the city council, and the mayor (see this flow chart).

Why CEQR? A project must pass through environmental review if it “…need[s] discretionary approvals or permits from any city agency…”, among other things. That means this project! The environmental review can be more or less rigorous, depending on the nature of the project (see this flow chart).

Both were completed. The city conducted an environmental review and sent the project successfully through ULURP, concluding those processes in June 2019. You can find the EAS (Environmental Assessment Statement) here, and all documents related to the city council’s successful conclusion of the ULURP process here.

ESG sued the city, alleging non-compliance with both ULURP and CEQR grounded in violations of SEQRA (State Environmental Quality Review Act). They ultimately lost. The state lower court agreed with ESG about CEQR, and required Haven Green to undergo much more extensive environmental review. The city appealed; the appellate court ruled unanimously against ESG, and the state’s highest court agreed in June 2024. They found that the city complied with the law, and cleared the way for Haven Green to proceed as soon as September 2024.

ESG obviously disagrees with the courts. What do we do with that?

I’m not going to provide a blow-by-blow review of the ESG litigation in this post (take me to coffee and we can get into it). But I agree with the appellate and high courts after reading their opinions. The high court’s opinion is a particularly nice, plain English recitation of fact and finding if you’re interested.

The city followed the letter of city and state environmental review procedure, and the judiciary properly stayed neutral with regard to the desirability of the project undergoing review.³ Per the high court:

The Court's role is not "to weigh the desirability of any action or choose among alternatives," but to ensure that "agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process"…

This doesn’t mean I’m endorsing the city’s action to develop Haven Green over ESG. But it seems clear that the law gives the city the right to do, and that they’ve done what’s required to proceed. You don’t have to like the law to recognize it!

Second: what are the costs and benefits of developing Haven Green over ESG?

If you agree that the law gives NYC the right to develop Haven Green on the present site of ESG—I think it clearly does—the next question is: is it a wise decision to make? What are the costs and benefits?

This is where the decision becomes hard and messy.

The options for the site are:

• Keep it as ESG

• Develop Haven Green

Each option pits the following valid interests against each other:

• Beautiful, public green space

• Housing supply in a supply crisis

Naturally, both sides have sought to address this concern:

• ESG proposed a “win-win” plan that keeps ESG and supplies Haven Green-like housing on other sites in the same area of the city.

• Haven Green increased the amount of public green space in its new development (even after the city council required them to expand it a first time before approving their land use application⁴), making it similar to the size of ESG.

The question you now have to ask yourself is: what are the merits of each side’s proposal? Which balances costs and benefits better? Which results in the better net win?

ESG’s proposal

ESG’s core proposition is that there are many other sites that would provide at least as much housing as Haven Green—and probably much more—and that 123 units of housing is not nearly enough advantage to outweigh the cost of losing the garden. ESG contends that other local sites should be developed to achieve the city’s housing production goals, and ESG should be left alone.

As they say in their proposal: “A funding transfer from Haven Green, in collaboration with upzonings from the Council, can realize up to approximately 705 new affordable housing units and preserve Elizabeth Street Garden.”

Elizabeth Street Garden Proposal, “A Win - Win Solution,” p.5

While I commend them for offering an alternative and not simply saying “no,” any observer of New York City government will immediately raise their eyebrows at “funding transfer” and “upzonings from the Council.” They make development seem much easier than it is. Even if you don’t need a change in zoning, housing development in New York City can still get hung up for a variety of reasons—Haven Green is an example of just that. ESG does not address the hurdles that the other development sites might face. It is not enough to say that they could be done, but that they could plausibly be done. The city is trying to develop more on its own property, and the mayor recently issued an executive order about that, but our burdensome regulatory environment makes that challenging.

And when anyone questions why ESG would be replaced by such a relatively small building (seven stories, 123 units), they don’t need to look any further than the Special Little Italy District that was created in 1977. Section 109-124 places a height limit of 75 feet or seven stories, in addition to building bulk limits, as explicitly noted in city council testimony as well.⁵ The size of Haven Green is not just an inability to think big, but rather a zoning constraint. This points at something important: the best way to minimize future conflicts like ESG-Haven Green is to do large upzonings throughout the city—otherwise aligning the constellation of political will, financing, and legality of housing will continue to be overly difficult.

Haven Green’s proposal

Haven Green argues that it strikes a good balance between the city’s desperate need of more housing and the need to maintain public green space. They say they will provide public space with more regular hours than ESG, and that it will be of similar quantity (if different in particulars). Further, those in favor of development point out nearby Sarah Roosevelt Park and other green spaces in the area. ESG’s neighborhood is also leafy and tree-lined generally.

The area around Elizabeth Street Garden. Pictures taken by me on August 28, 2024.

Haven Green is correct in saying that if ESG goes away, people will still have options. And it’s harder for people to imagine what Haven Green’s new green space will look like before it’s materialized, so they underweight that. It’s also true that ESG is probably more pleasant and beautiful than most of those options in the honest view of many people. This isn’t either/or—all of the above can be true, even if people on Twitter don’t acknowledge that.⁶

Whether you’re in favor of ESG or Haven Green, it’s OK to recognize ESG’s special beauty and be sad if it goes away

ESG is a special creation! Volunteers turned an unused city lot into a truly unique, beautiful thing. There’s room to question how open they really were to the public in the past, and the validity of their litigation, but they made something one shouldn’t be quick to dismiss.

In his testimony to the city council in May 2019, Elizabeth Street Garden executive director Joseph Reiver said:

It's one thing to read about the garden, but it's another thing to entirely experience the garden in person, and before you make this decision on this matter I urge you, and because it will affect thousands of people, I urge you and I formally ask you as individuals to come to the garden, visit the garden, and meet the community. Meet them face-to-face and learn why we are all here today and what we're working so hard to protect. So I urge you to vote no against this development.⁷

He’s right. People should visit—visiting the park (just like taking a good, honest look at the plans for Haven Green) is an example of what’s required to not merely take someone else’s word for something. I empathize greatly with a plea for people to look at things for themselves to see what’s true.

But you probably can’t visit right now, so here’s a short video tour of the garden from Wednesday, August 28, 2024:

Third: recriminations and lambastery, or “aren’t the other guys bad and operating in bad faith??!”

I’m not going to get into these much, but I want to mention that there is a whole other dimension to the ESG debate that is more directly unpleasant than legal analysis. I don’t think any of them materially impact my analysis here, but it’s worth noting them.

Here are things people say:

• ESG is privately owned (via a lease), and they only really opened to the public when they were threatened with affordable housing in in 2012/3, and only really opened to the public in 2016. They have only become the public space they’re claiming to be to forestall development, otherwise they would have stayed more restricted.

• Haven Green is the product of “back room deals” between the city council and developers, and is part of a larger pattern of playing favorites in land-use decisions.

• The area around ESG has produced essentially no new housing in the modern era. If ESG supporters were operating in good faith, they would have long championed development in order to minimize pressure to develop sites like ESG.

• Haven Green proponents are blind to the special beauty of ESG, and are killing the city. They don’t care about anything but money.

You’ll drive yourself crazy trying to treat all of these sentiments like gospel, simply because many of them rely on motivated reasoning and either/or thinking. The reality of this situation is messy, and requires a “both/and” approach to acknowledging the truth.

YIMBY mixed emotions: comments for the pro-housing people

• I have seen commentary online and in person that is painfully dismissive of a beautiful garden that has been built by people who care about it, and who—given the right push and legal incorporation—could be enabled to make it something even greater. You do not have to play down the beauty of ESG to be in favor of Haven Green.

• They rightfully see how beautiful the garden is, and feel appropriate pangs about removing it. They have seen so many bad-faith people say, “I’m in favor of building…just not here” that they never want to say that. But in this case, they feel like maybe that’s true! They feel conflicted! That’s OK. It doesn’t make you bad.

• The Brooklyn Botanical Garden is also fighting with a housing developer. People have confused the two issues both online and in person with me. There’s noise on the line.

Inadequate advocate: comments for the ESG team

The Elizabeth Street Garden deserves better advocates than its current leadership, even if they have had a principal hand in creating it. Its current leaders and spokespeople are inadequate advocates. They, and others, should learn some hard lessons and go forward more productively into the future. Why? Because:

• The ESG team has engaged in bad faith litigation,⁸ and used tactics that many others use to tie up everything in the courts before it can be built. Despite the merits of their garden, there are fewer sure ways to lose my sympathy than bad faith, dilatory litigation.

• They are sore losers. Per ESG: “The de Blasio administration and Council Member Chin have repeatedly ignored constituents and local community groups, who overwhelmingly support saving Elizabeth Street Garden.” People point to all the community board resolutions, the community letters, the press, etc, and say the community has been “ignored.” This is incorrect—they just lost the political fight. Many elected officials, businesses, and others took their side and spoke up publicly—the ESG even lists them on their site. At the end of the ULURP process, the Council heard from ESG supporters directly on top of all that. It is not a good faith move for them to say they were ignored. They weren’t. They just lost. They don’t have to like it (why would they?), but that’s the reality.

• Unfortunately: of all the nice things to say about ESG—and there are many—many of those things are said about “historic parking lots” too. People across the city will block development on any legal pretext they can grab, and they do. This habit, encouraged by laws that allow litigation based on those pretexts, means that ESG has to explain why they are different from the “historic parking lot” people. ESG hasn’t helped itself by using the same tools—dilatory litigation—as the parking lot people.

Finally: ESG is currently running a letter-writing campaign to the mayor and the city’s Department of Housing Preservation and Development to save the garden, to which they have recruited celebrities. If I were in their shoes, I’d be tempted to do the same. What else can you do when you’ve lost in every other arena? But they should fully recognize what they’re asking for: setting and reinforcing a precedent that tells anyone who tries to build in NYC that it’s never a sure bet; that if a pressure campaign comes along, the government might fold (despite previously giving the legal go-ahead) and pull the plug on your project despite years and years of effort and money.

While ESG says other sites should be developed instead of Haven Green, one of their methods of achieving this result (a pressure campaign after due regulatory approval) would ensure that all future development in NYC would be more difficult, including those sites. For the sake of rational rule of law, I am glad the city is holding firm here:

But Adolfo Carrión Jr., the housing commissioner, was unmoved. “They are a tenant that’s about to not be a tenant,” he said, adding that “until the moment this site is ready for development, it could be used by this group.”

…

“It really doesn’t matter who sends a letter,” Carrión said. “I’m sure that the letter writers they’ve recruited in some cases don’t have the whole context of the history of the site, let alone the understanding of the crisis that we’re facing.”

Conclusion: face the music

What many people want from each other here is to pick a side: ESG or Haven Green—which is better?⁹ Honestly, I can see reasonable people coming down on either side. ESG is beautiful, and you can’t just recreate something like that. But you can still make something good in a different way, and I think Haven Green will probably do that, especially with community help and involvement.

But even if I had come down firmly on the ESG side, my extreme aversion to dilatory litigation on SEQRA grounds drains all of my sympathy. ESG really snatched defeat from the jaws of victory in the sympathy department.

My view: Haven Green is happening.¹⁰ ESG is making it seem like this decision is still in the works, but it’s not. It’s done. The courts have ruled, and the city is wisely not reversing course at the last second, damaging NYC’s overall ability to encourage development. ESG would be wise to accept this and move on productively: help upzone the city and remove SEQRA-based causes of action and ensure that Haven Green/ESG-type conflicts are less common in the future. That is the reality of the situation. I wish we could have Haven Green and ESG and more housing everywhere. But we will not get that.

Beyond a stiff upper lip, now is the time for stick-to-it-iveness, mental toughness, and a positive attitude. If Haven Green is the future, lean into it. It will come with affordances and opportunities, and the ESG community is in a good place to take advantage of them.¹¹

Useful primary sources

Regulatory approval

• Haven Green Environmental Assessment Statement CEQR No. 18HPD105M (November 9, 2018)

• The city council ULURP proceedings considering Haven Green (concluded June 2019)

• The New York City Department of City Planning’s Zoning Application Portal that tracks the progress of Haven Green through ULURP.

Litigation

Note: in New York State, the highest court is not called “The Supreme Court.” The Supreme Court is the third highest court, the Appellate Division is the second, and the Court of Appeals is the first. I would apologize, but it isn’t my fault.

• The New York State lower court ruling in November 2022, in part against Haven Green

• The New York State appeals court ruling in June 2023, against ESG

• The New York State high court ruling in June 2024, against ESG

1. New York City Charter, §197-c

2. New York City Charter, §197-c, subsection a: “…development or improvement of real property subject to city regulation shall be reviewed pursuant to a uniform review procedure in the following categories…Sale, lease (other than the lease of office space), exchange, or other disposition of the real property of the city, including the sale or lease of land under water pursuant to section sixteen hundred two, chapter fifteen, and other applicable provisions of law”

3. I can be accused of many things, but happily acknowledging the legal validity of onerous environmental review, and judicial deference thereto, is not one of them. Help me, Thomas Hochman!

4. See the following excerpt of the modified project summary attached to Resolution 985 of 2019 approving the Haven Green land use application:

Approximately 6,700 square feet of open space that is open to the public in perpetuity.  In addition, non-profit office space, community room, exercise room, social services space, storefront commercial space

A minimum of approximately 8,400 square feet of open space that is accessible to the public in perpetuity, of which a minimum of approximately 6,700 square feet of space shall be open to the sky and of which a minimum of approximately 1,700 square feet of such space need not be open to the sky (and may constitute community facility space under the New York City Zoning Resolution).   

In addition, the project can include: non-profit office space, community room, exercise room, social services space, and/or storefront commercial space.

5. Transcript of the Minutes of the Subcommittee on Landmarks, Public Siting, and Maritime Use, New York City Council; May 2, 2019. Page 20, lines 15-17.

6. I think this tweet is directionally correct, but it’s not as kind as I prefer.

7. Transcript of the Minutes of the Subcommittee on Landmarks, Public Siting, and Maritime Use, New York City Council; May 2, 2019. Page 71, lines 2-11.

8. The most obvious example of this is claiming more extensive environmental review is required for zoning-related reasons. Every level of court in New York State rejected those claims. A sample from the appellate division decision (emphasis added):

Similarly, the zoning-related claim under ULURP fails because CPC and the Council were reviewing only whether the proposed “disposition of the real property of the city” was appropriate, not “[d]esignations of zoning districts” or “[s]pecial permits ... under the zoning resolution” (NYC Charter § 197-c[a][3], [4], [10]). Nor did petitioners challenge compliance with zoning laws before CPC or the Council…

9. In many ways this is not the important question, though, because it’s not relevant. Haven Green is gong to happen. If you’re just now getting caught up with the debate, and you like ESG, the relevant question is now: “How do we make sure this doesn’t happen again, and what were the factors that led us here today?” Those people would be wise to examine the origins of the housing crisis, especially their neighborhood’s role in it, as well as the bad-faith actions of the ESG team.

10. Some sort of executive/administrative, congestion-pricing-style back peddling is possible, but it doesn’t seem like the likely option.

11. It seems like Haven Green is open to working with the community, and their proposal has changed a lot in response to city council and citizen feedback. In 2019 ULURP comments, New Yorkers for Parks’ executive director hit on the need for this and said:

In sum, all too often, the narrative around neighborhood development unfortunately pits the creation of affordable housing against open space. While the Elizabeth Street Garden has provided a unique opportunity for public access in the past five years, we respect the City’s right to move forward with affordable housing on this location. We have found no binding evidence of this land ever being promised as parkland, and although we understand the frustration of community members who have come to cherish the Garden, we also understand that difficult choices must be made by the City in light of the dwindling opportunities to create deeply affordable housing in high-income neighborhoods like Little Italy/NOLITA.

We encourage the City and development team to rethink the open space proposals, to ensure that they offer maximum public use and benefit, and we are heartened by the inclusion of open space in the current site proposal. The Haven Green project represents a unique opportunity for the City to rethink its vision for new affordable housing, and we hope that considerations of maximizing open space in tandem with housing will be a benefit to all New Yorkers in all neighborhoods.