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Brooklyn Daily Eagle – A lawsuit in which low-income Latino and Asian immigrants in Sunset Park sued to stop a proposed 128-block rezoning of the neighborhood was defeated on appeal last week.

The Appellate Division First Department’s five-judge panel handed down a 3-2 decision on Thursday, upholding a lower court’s decision that the city acted properly by rezoning the neighborhood with expanded commercial use and new height limits on buildings.

City officials have said the rezoning will preserve the neighborhood’s character with new, lower height limits maintaining low- to mid-rise buildings, incentives for affordable housing, and a commercial rezoning that will increase activity along certain avenues.

The Chinese Staff & Workers’ Association, five churches and two Sunset Park residents had sued to halt the rezoning of more than 25 acres in their neighborhood, an area roughly bordered by Third Avenue, 28th Street, 63rd Street and Eighth Avenue, claiming it would ultimately displace low-income Latino and Asian immigrant communities. The petitioners claimed the city failed to conduct an adequate environmental review, but the court disagreed.

However, the 3-2 decision was a narrow win for the city, said South Brooklyn Legal Services staff attorney Rachel Hannaford, who represented Sunset Park community groups in this lawsuit.

“We are encouraged by the two dissenting justices who recognized the inadequacy of the environmental review,” Hannaford said.

Hannaford said they may ask the Court of Appeals to hear the case, hoping that New York’s high court will side with the dissenters.

“Obviously we’re disappointed with the decision, but we do fully agree with the dissenting opinion,” said Bethany Li of the Asian American Legal Defense and Education Fund. “It’s rare you get two judges dissenting.”

Hannaford and Li said that in an unusual step, a fifth justice who had not heard oral arguments cast the deciding vote in the city’s favor. The four justices present on the day of oral arguments were split evenly in the decision released Sept. 8, while the original fifth justice recused himself from bench during arguments and was replaced by a different justice who did not hear oral arguments.

Hannaford said that she had never seen an exchange of justices like this before.

By Samuel Newhouse, Brooklyn Daily Eagle

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Immigrant Groups File Lawsuit to Stop Sunset Park Rezoning in Brooklyn (August 20, 2009)