UPDATED: Judge dismisses Bruckner Boulevard rezoning lawsuit

meeting attendees stand up with their arms up at a rowdy meeting about the Bruckner rezoning
A judge dismissed a lawsuit intended to invalidate the Bruckner Boulevard rezoning.
Photo Aliya Schneider

A lawsuit hoping to overturn the Bruckner Boulevard rezoning plans was dismissed by Justice Leticia Maria Ramirez in Bronx Supreme Court on Monday.

The Article 78 lawsuit — a type of legal challenge that allows people to challenge government decisions — was filed by Buffalo-based land use attorney Richard Lippes on Feb. 13. Lippes is representing a group of Throggs Neck residents against the rezoning called the Bronx Coalition Against Up Zoning Inc., which is led by John Cerini, a 52-year-old accountant and insurance agent who runs local businesses Bronx Tax Man Corp. and Capital Shield Agency.

Lippes told the Bronx Times on Tuesday that he expects to discuss whether his clients want to appeal the case “fairly quickly.”

“We’re obviously disappointed with the decision, but this is a battle, not a war, and we hope to win the next battle, assuming my clients wish to continue,” Lippes told the Bronx Times.

Lippes would not say whether he believes an appeal would be effective, adding that he has faced successes and losses over the 53 years he has been practicing.

“It’s difficult to judge what a court would do, and prognosticating that is not a very worthwhile effort,” he said.

The City Council approved the rezoning unanimously on Oct. 12, 2022 after City Councilmember Marjorie Velázquez — who is up for reelection in November — turned on her long-held position against the project and encouraged her colleagues to approve it. The project is anticipated to bring 348 apartments to the low density East Bronx neighborhood of Throggs Neck, including 192 income-restricted — 99 of which are reserved for seniors and 25 for veterans. It has faced fierce backlash from local residents who have branded the project as an upzoning that will ruin the low density designation they enjoy in their slice of suburbia.

Kristy Marmorato, a Republican who will challenge Velázquez in the November election, called the ruling “very unfortunate.”

“Our community spoke and we will continue to fight to have our voices heard,” she told the Bronx Times.

Lippes argued in the lawsuit that the city’s planning department did not adequately conduct the required environmental review for the rezoning project.

During the approval process for the rezoning, the NYC Department of City Planning found in March 2022, and again in August 2022, that an environmental impact statement would not be required because the project would not have any significant adverse environmental effects.

But Lippes countered that the department ignored or put off issues that would have negative impacts on the environment, thus requiring the impact statement, an additional step in the application process. He cited traffic, noise and shadows, and said the 3 to 8 story buildings would “destroy the street scape” of the neighborhood. Additionally, he said there are indications of hazardous substances on site, and the city Planning Commission improperly put off determining whether they will have negative impacts.

The city responded by pointing out “fatal errors” in the lawsuit, and argued that the points in the suit were simply “quibbles with details of the environmental review that pass by the true engine driving the litigation,” which is that they “simply do not like” the project.

The city argued that the case should be dismissed because Lippes did not properly serve the city with the lawsuit in time and that the rezoning applicant Throggs Neck Associates LLC — the property owners — were not listed as respondents on the lawsuit along with the city.

Lippes later added the property owners to a revised lawsuit and served Angel Yangal, a store clerk at Super Foodtown, which sits on the project site. But Yangal is not involved with the development effort — he is simply an employee of the grocery store.

“I do not understand why these documents were handed to me and I have no knowledge whatsoever of this legal proceeding,” Yangal wrote to the court.

In her order granting the city’s request to dismiss the case, the judge agreed that Throggs Neck Associates LLC should have been listed as a respondent – saying it would be unjust to go forward with the case without giving the developer a chance to defend the rezoning – and that it was past the statute of limitations once Lippes added the developer to the suit. She further noted that even if the court considered Lippes’ environmental arguments, she would not stand by them since the city made the necessary effort to consider the environmental effects of the project.

Regardless of whether the opposition decides to appeal the judge’s ruling, the rezoning has energized locals afraid of what other changes could come to their neighborhood.

“This challenge doesn’t end with Bruckner,” Cerini told the Bronx Times in February, after the lawsuit was filed. “It’s going to continue to be a virus that hits our community year after year, so our intention is to continue to fight any developer that wants to build buildings throughout this community.”

Throggs Neck Associates LLC declined to comment for this article.

The Bronx Times reached out to Cerini for comment and is awaiting response. The city did not respond to a request for comment.

This article was updated at 4:56 p.m. on Aug. 16 to include details from the judge’s order once it was made available.

Correction: This article was updated at 6:48 p.m. on Aug. 15 to reflect that the case was decided on Monday, not Tuesday. The eTrack notification was sent out on Tuesday.

Reach Aliya Schneider at aschneider@schnepsmedia.com or (718) 260-4597. For more coverage, follow us on Twitter, Facebook and Instagram @bronxtimes