CITY LANDarchive.citylaw.org/cityland/wp-content/uploads/sites/39/...CITY LAND 118 Volume 5 CITY LAND September 15, 2008 CENTER FOR NEW YORK CITY LAW ADVISORY COUNCIL COMMENTARY Stanley

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SEPTEMBER 15, 2008 center for new york city law VOLUME 5, NUMBER 8

CITYLAND

rant, they found that the plans sogreatly misrepresented what wasactually at the site that staff called it“the worst application they had seenin 18 years.”

Avella asked Council SpeakerChristine Quinn to file a complaintwith the State against Qdoba’s archi-tect since the site was in her district.He also added that the architect had“put their license on the line” by signing and stamping inaccurateplans. Avella concluded that itshould not be Council’s responsibili-ty to review the accuracy of applica-tions; rather, the onus should be onthe reviewing agency, the Depart-ment of Consumer Affairs, who inAvella’s view, did not sufficientlyreview the application.

Council: Qdoba Mexican Grill (August14, 2008).

September 15, 2008 Volume 5 CITYLAND

Highlights

CITY COUNCILDCA, architect criticized . . . . . . .117Rockaway rezoning OK’d . . . . . .119NoHo HD extension . . . . . . . . . . .119New site safety laws . . . . . . . . . . .121TDR on Lexington . . . . . . . . . . . . .121220 blocks rezoned in Queens . .121Hudson Yards modified . . . . . . . .122

CITY PLANNING COMMISSIONE.Village/LES Rezoning heard . .122Hospital may expand over FDR .124Hunter’s Pt. plan questioned . . .125Whitney looking Downtown . . .125New courthouse for St. George . .126

DEPARTMENT OF CITY PLANNINGNew application requirement . .126

LANDMARKSLadies’ Mile design rejected . . . . .127Fred Bland joins LPC . . . . . . . . . .128

DEPARTMENT OF BUILDINGSComptroller audits DOB . . . . . . .128

COURT DECISIONSVested rights claim denied . . . . .128DOI subpoenas preservationist .129EDC may reclaim landmark . . .129

CITYLAND PROFILELynn Kelly . . . . . . . . . . . . . . . . . . . .130

CHARTSDCP Pipeline . . . . . . . . . . . . . . . . .120ULURP Pipeline . . . . . . . . . . . . . .121BSA Pipeline . . . . . . . . . . . . . . . . . .124Landmarks Actions . . . . . . . . . . . .127Citylaw.org New Decisions . . . . .131

CITY COUNCIL

Sidewalk Cafe

Chelsea, Manhattan

Avella calls for investigationof architect

Avella criticizes DCA for sloppy review of questionable application.Council Member Tony Avella faultedthe Department of Consumer Affairsand argued for action against thearchitect who filed inaccurate plansin Qdoba Mexican Grill’s applicationfor an unenclosed sidewalk cafe at 216 Eighth Avenue in Chelsea.Qdoba had previously filed a petitionto withdraw its application due toCouncil’s concerns.

Avella explained, at the August12th hearing before the Council’sSubcommittee on Zoning & Fran-chises, that when Council’s staffinspected Qdoba’s Chelsea restau-

Hospital For Special Surgery’s proposed 12-story building over the FDR Drive at East 71st Street. See story on page 124. Image: Hospital for Special Surgery/Smith-Miller + Hawkinson Architects.

CITYLAND

118 Volume 5 CITYLAND September 15, 2008

CENTER FOR NEW YORK CITY LAW ADVISORY COUNCIL

COM M E NTARY

Stanley S. Shuman,ChairArthur N. Abbey ’59Sheila Aresty ’94Harold Baer, Jr.David R. BakerAnthony ColesEdward N. CostikyanPaul A. CrottyRichard J. DavisMichael B. GerrardJudah GribetzKathleen Grimm ’80

Eric Hatzimemos ’92Michael D. HessLawrence S. Huntington ’64William F. Kuntz IIEric LaneRandy M. Mastro Richard MatasarRobert J. McGuireFrancis McArdleJohn D. McMahon ’76Thomas L. McMahon ’83Gary P. Naftalis

Steven M. PolanNorman RedlichJoseph B. RoseErnst H. Rosenberger ’58Rose Luttan RubinFrederick P. SchafferFrederick A.O. Schwarz, Jr.O. Peter SherwoodEdward WallaceRichard M. WeinbergPeter L. ZimrothJames D. Zirin

St.Vincent’s proposal for O’Toole raises a fundamental issueSt. Vincent’s plan to demolish the O’Toole Building in order to build a new hospital facility poses a

major threat to the Landmarks Law. The O’Toole Building, formerly the National Maritime Union’s JosephCurran Building located on Seventh Avenue and West 12th Street in Manhattan, was built in 1963 with an unforgettable nautical look. Because O’Toole lies within the Greenwich Village Historic District, St. Vincent’s filed a hardship application requesting permission to demolish the building. Permissionhinges on how the Landmarks Preservation Commission defines hardship. Does hardship relate mainly to the individual structure, or to the institution which owns the structure?

St. Vincent’s purchased the building in 1973 and has continuously used it for outpatient services anddoctor’s offices. The building is therefore economic, but St. Vincent’s wants to build a new hospital toweron the site. It claims hardship since without the new tower on the O’Toole site (or some other site) it cannot also demolish and/or renovate its other property across Seventh Avenue where it plans to buildadditional medical facilities and where a private developer would build residential condos, a key tofinancing the project.

Hardship up to now has always centered on the economic capacity of the owner to maintain the land-marked building. St. Vincent’s cannot meet that test since the building is in economic use, and even if St. Vincent’s could not maintain the building, there are purchasers who would be pleased to convertO’Toole to other economic uses.

What St. Vincent’s seeks is a ruling that the most advantageous way to meet its future needs would beto demolish O’Toole. That argument strikes directly at the landmark idea, and would, if fully embraced,open the law to attacks from other charitable and non-charitable institutions which could make a similarcase for demolishing the old to accommodate the new. St. Vincent’s deserves passionate City support, but not in a way that opens the door for broad attacks on the City’s inventory of historic properties. The City should help St. Vincent’s devise a new plan more consistent with the Landmarks Law.

Ross Sandler

Ross SandlerExecutive Editor and Director,Center for New York City Law

Melanie Cash ’02Associate DirectorManaging Editor

Frank Berlen ’07Editor, CityLand

Lebasi LashleyArt DirectorPetting Zoo Design

Shlomit Aroubas ’07William Vidal ’07Fellows

Natalie Amar ’08Peter Schikler ’08Melissa Wagner ’08Fellows

Kristin DagganSubscription Coordinator

Jesse DennoStaff WriterPublication Prod. Assistant

The Center expresses appreciation to the individu-

als and foundations supporting the Center and its

work: The Steven and Sheila Aresty Foundation,

The Robert Sterling Clark Foundation, Fund for

the City of New York, The Durst Foundation,

The Charina Endowment Fund, The Murray

Goodgold Foundation, Jerry Gottesman, The Marc

Haas Foundation, The Prospect Hill Foundation,

and The Revson Foundation.

CITYLAND (ISSN 1551-711X) is published 11 timesa year by the Center for New York City Law at NewYork Law School, 57 Worth St., New York City, NewYork 10013, tel. (212) 431-2115, fax (212) 941-4735,e-mail: [email protected], website: www.city-law.org © Center for New York City Law, 2008. Allrights reserved. Printed on recycled paper. Mapspresented in CITYLAND are from Map-PLUTOcopyrighted by the New York City Department ofCity Planning. City Landmarks and Historic Dis-tricts printed with permission of New York CityLandmarks Preservation Commission.

POSTMASTER: Send address changes to CITYLAND, 57 Worth Street, New York, New York10013-2960. Periodicals postage paid at New York,New York.

CITYLAND ADVISORY BOARD

Kent Barwick Andrew BermanMolly BrennanAlbert K. Butzel

Howard GoldmanDavid KarnovskyRoss Moskowitz ’84Frank Munger

Carol E. RosenthalMichael T. SillermanPaul D. Selver

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district for Beach 116th Street. Youngreplied that there had already beenextensive discussions over the issueand that the City Planning Commis-sion believed the R7A designationwas needed to spur reinvestment.Avella then accused Planning of hav-ing an unwritten policy that everydownzoning plan must also includean up-zoning elsewhere.

Hank Iori, a member of the landuse subcommittee of Queens Com-munity Board 14, warned that the as-of-right R7A construction would notencourage retail growth along Beach116th Street. According to Iori, thearea’s high water table would ulti-mately cause developers to use theground floor for parking, not retail.Iori testified that only a special usedistrict for Beach 116th Street wouldensure sound growth of commercialdevelopment. The meeting closedwithout a vote.

When the Subcommittee metthe next day, Avella said that “98 per-cent of the rezoning is supported bythe community board and the com-munity,” and that the only point ofcontention was Beach 116th Street.Avella proposed to remove the R7Aarea and approve the rest of the plan.

Council Member Joseph Adda-bbo, Jr., whose district includesBeach 116th Street, opposed Avella’sproposal. Addabbo explained thatan abandoned hotel and vacantbuildings already litter Beach 116thStreet; he feared further deteriora-tion and warned against leaving itout. With the upcoming mayoralelection and Planning’s low stafflevel, Addabbo felt it was too risky towait for the creation of a special usedistrict, which would require its owntrip through the ULURP process.

Following Addabbo’s state-ments, only Avella voted to carve outBeach 116th Street. A second votethen passed, approving the full 280-block rezoning plan without change.Council Member Simcha Felderexplained his yes-vote by stating thatit was due to support of the plan byRockaways’ Council Members JamesSanders, Jr. and Addabbo. Felder

added that if a large matter such as arezoning occurred in his district, hehoped that other Council Memberswould trust that he knew what wasright for his own district.

Review Process:Lead Agency: CPC, Neg. Dec.Comm. Bd.: QN 14, App’d, 32-12-2Boro. Pres.: App’dCPC: App’d, 11-0-0Council: App’d, 49-0-3

Council: Rockaway NeighborhoodRezoning (August 14, 2008).

CITY COUNCIL

Designation

NoHo, Manhattan

Bowery SRO not a hurdle to designation

Council votes to include Bowery SROin NoHo historic district extension.On September 4, 2008, the CityCouncil voted to approve the pro-posed NoHo historic district exten-sion and ended the debate overwhether the Whitehouse Hotelshould be included within the district. The approval adds 56 more buildings, all between La-fayette Street and Bowery, to the district. Landmarks voted to desig-nate the area in May after hearingtestimony from residents such asartist Chuck Close, elected officials,and preservationists. 5 CityLand 42 (April 15, 2008).

Of the six property owners whoinitially opposed designation, only

CITY COUNCIL

Rezoning

Rockaway, Queens

Rockaway rezoningapproved without change

Avella’s plan to remove Beach 116thStreet defeated. On August 14, 2008,the City Council approved theDepartment of City Planning’srezoning proposal for the Rockawaypeninsula in Queens. The rezoningplan impacts 280 blocks, extendingsix miles from the Nassau Countyline to Beach 130th Street, includingthe neighborhoods of RockawayPark, Rockaway Beach, Somerville,Far Rockaway, and Edgemere.

Zoning in the Rockaways hasremained largely unchanged since1961. In the past several years,increasingly out-of-scale develop-ment has endangered the built character of the neighborhood. To address this concern, City Plan-ning’s comprehensive plan includesreplacing many existing R3, R4, R5,and R6 districts with contextual zon-ing districts. 5 CityLand 89 (July 15,2008). Other highlights include pro-hibiting construction of new semi-detached housing in Rockaway Parkin favor of detached homes, and theextension of commercial zoning intoa residential district in Far Rockaway.To encourage reinvestment in theRockaways, blocks adjacent to pub-lic transit have been up-zoned,including Beach 116th Street to anR7A district.

Significant opposition to theup-zoning of Beach 116th Streetremained when it reached Council’sZoning & Franchises Subcommitteehearing. Chair Tony Avella ques-tioned City Planning’s John Young asto why the R7A designation alongBeach 116th Street remained despiteopposition from local residents.Avella asked Young to remove Beach116th Street from the plan, and to“take a little more time and do a bet-ter job.” Avella then recommendedthat Planning create a special use


Beach 116th Street included in Rockawayrezoning. Photo: CityLand.

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Metro Sixteen Hotel LLC, owner ofthe Whitehouse Hotel at 342 Bowery,remained opposed when the issuereached Council. Metro planned todemolish the existing four-storybuilding, which operates as an SROand is one of the few remaining Bowery “flophouses.” Once demol-ished, Metro proposed to build anine-story luxury hotel.

Current Whitehouse residentstestified before Council’s Subcom-mittee on Landmarks, Public Siting& Maritime Uses, detailing thehotel’s squalid conditions. One resi-dent said “you would not even wantyour dog or cat living there.” Resi-dents urged the Subcommittee toexclude the Whitehouse from desig-nation, saying that its exclusionwould allow the developer to pro-vide them with a relocation pay-ment. A planning consultant hiredby Metro challenged the inclusion of Bowery buildings in the NoHo Historic District, explaining that the Bowery had a completely differ-ent development history and aes-thetic from NoHo. A Bowery residentechoed the sentiment, stating “I do not live in NoHo, I live in the Bowery,” and “I don’t even knowwhat NoHo is.”

Council Member Alan Gerson,who represents NoHo and support-

ed designation at Landmarks, testi-fied that he was working with Land-marks and Subcommittee Chair Jes-sica Lappin to find a solution thatserved both the welfare of the White-house’s residents and preserved theintegrity of the historic district.Council Member Charles Barronstated that he hoped that “some-thing can be worked out” for theSRO’s tenants, and that he thoughtpeople should be given a higher pri-ority than historic preservation orthe hotel’s profits. The meetingclosed without a vote.

When the Subcommittee re-convened on September 4th, coun-sel for Metro announced that it had withdrawn its opposition to designation following meetings with Gerson and Landmarks. ChairLappin thanked the owners for making concessions, and called thesite “a unique property with uni-que challenges.” Gerson testifiedthat his office would work with the owners to aid the hotel’s resi-dents and to ensure the “expeditedconsideration” of applications filedat Landmarks.

Council Member Lewis Fidlerstated that he was “troubled by the

resolution,” and did not see any ben-efit in designation. Gerson respond-ed that the hotel occupied a mid-block site, and that Landmarks’ over-sight was necessary to ensure thatdevelopment was appropriate, andadded that his resolution was thebest way to take care of the 22 resi-dents “as soon as possible.” Lappinadded that, whether or not the hotelwas included in the district, thebuilding would not remain in its cur-rent condition, and there was no rea-son for the owners not to haveimproved the conditions of the resi-dents. Ultimately, only CouncilMembers Miguel Martinez andJames Oddo voted against approval.

The Land Use Committee metimmediately thereafter, where ChairMelinda Katz expressed her discom-fort with making an agreement withan agency over which Council hadno oversight or control. However,since Gerson had the support of themajority, Katz supported designa-tion. The proposal was passed to thefull Council, which also approved.

Council: NoHo Historic District Exten-sion, Manhattan (September 4, 2008).

Volume 5 CITYLAND September 15, 2008

Whitehouse Hotel. Photo: Kristin Daggan.

CITY PLANNING PIPELINE

New Applications Filed with DCP — August 1 - 31, 2008APPLICANT PROJECT/ADDRESS DESCRIPTION ULURP NO. REPRESENTATIVE

ZONING TEXT AND MAP AMENDMENTS

HPD Gateway Estates II, BK Rezone (R6 to R7A/C2-4, R6/C2-4); 090079ZMK;UDAAP & disp. (2,385-units); amend 090082HAK;Fresh Creek URP; spec. perm (bulk 090078HUK;mod. to const. shopping ctr.); spec. 090080ZSK;perm (mod. sign regs) 090081ZSK

Boyle Auto Wrecker Blondell Commons, BX Rezone (M1-1 to R7-1/C2-4 & R7-1); 090085ZMX; Erik Palatnik PCspec. perm (underground garage) 090086ZSX

SPECIAL PERMITS/OTHER ACTIONS

55 Broaway LLC 55 Broadway, MN Spec. perm (enlarge ground fl. space) 090069ZSM Wachtel & Masyr

CAS 304 W. 47th St., MN Transfer dev. rights for mixed use bldg 090072PPM

Axton LLC 721 Amsterdam Ave., MN WSURA LSRD modification 090066ZAM Herrick Feinstein

CUNY Crown St., BK Demap one block of Crown St. 090065MMK

DEP E.153rd St., Maj. Deegan Establish combined sewers 090067MDXBldg., BX

NPD/CFD/DIT/CAS 1200 Waters Pl., BX Site selection, acq. of prop. (911 ctr.) 090070PCX

NPD/CAS NYPD Vehicle Storage Site selection, new facility 090087PSQFacility, QN

Operating Grp. LLC 47-04 30th Pl., QN Spec. perm (parking facility) 090084ZSQ Fredrick Becker

Dominick Desimone 99 Victory Blvd., SI Auth. to const. 3-story mixed-use bldg. 090074ZAR PAPA Architect

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echoed Community Board 5’s con-cerns that allowing a text amend-ment for one building in the SpecialMidtown District could set a poten-tially dangerous precedent.

The Subcommittee approvedthe proposal without comment, asdid the Land Use Committee and full Council.

Review Process:Lead Agency: CPC, Neg. Dec.Comm. Bd.: MN 5, Den’d, 36-0-1Boro. Pres: Den’dCPC: App’d, 10-1-0Council: App’d, 49-0-3

Council: 610 Lexington Ave. (August 14,2008).

CITY COUNCIL

Rezoning

Laurelton, Queens

Laurelton rezoning approved

Council approves 220-block rezoningwithout modification. On Septem-ber 4, 2008, the City Council ap-proved the rezoning proposal forLaurelton, a Queens communitynear the border of Nassau County.The plan includes lower-density and contextual rezoning for ap-proximately 215 blocks, an up-zoning from C8-1 and R3-2 to R5Dalong Merrick and Spring Boule-vards, and commercial overlaychanges to more closely match exist-ing commercial development.

The plan culminates over six

CITY COUNCIL

Legislation

Citywide

Local laws aim to increaseconstruction safety

Workers must complete constructionsafety course; concrete safety manag-er must supervise large projects.On August 14, 2008, the City Councilpassed two local laws intended toincrease construction site safety.

Intro 790-A requires that a sitesafety plan include a statement thatall workers, within the five previouscalendar years, have completed asite safety course approved by eitherOSHA or by the Commissioner ofDOB. The new law also requires thatall workers receive a site-specificsafety orientation.

The Council also passed Intro783-A, which requires concrete contractors to designate a concretesafety manager to supervise when2,000 cubic yards or more of concreteare poured. The law allows the Commissioner of Buildings to re-quire the presence of a concrete safety manager at smaller projects if deemed necessary. Concrete safe-ty managers must have five yearsexperience in concrete operationsand must have completed a 30-hourcourse approved by the Commis-sioner that qualifies the individualunder OSHA standards.

Council: Intro 790-2008A; Intro 783-2008A (August 14, 2008).

CITY COUNCIL

Special Permit/Rezoning

Midtown, Manhattan

Council OKs air rights trans-fer from Seagram Building

Lord Norman Foster design ap-proved. On August 14, 2008, the City Council approved the specialpermit and zoning text amendmentproposed by Aby Rosen, developer of a 63-story hotel and residential

building at 610 Lexington Avenue,adjacent to the Seagram Building.The special permit grants a trans-fer of development rights from the landmarked Seagram Building,and the text amendment allows, inpart, height and setback modifica-tions by way of special permit and an accessory off-street loading berth waiver on streets with curb cut restrictions. 5 CityLand 105 (Aug. 15, 2008).

Speaking on behalf of the appli-cant at Council’s Zoning & Franchis-es Subcommittee hearing, KramerLevin attorney Michael Sillermanstated that as-of-right constructionwould create a wedding cake struc-ture, and that the modificationswould create harmony between the Lord Norman Foster-designedbuilding and the Seagram Building.Sam Schwartz, of Sam SchwartzEngineering, stated that the absenceof a loading berth within the sitewould not create a significant in-crease in traffic congestion becauseof mitigation measures such as ded-icated service elevators, nighttimedeliveries, and off-duty police offi-cers for parking enforcement.

Veronika Conant, President ofthe West 54-55 Street Block Associa-tion, testified in opposition, statingthat a text amendment was not necessary to achieve the stated goals of the project. Instead, she sug-gested using an existing provision of the zoning law that allows for bulk modifications. Conant then


ULURP PIPELINE

New Applications Certified into ULURPPROJECT DESCRIPTION COMM. BD. ULURP NO. CERTIFIED

79 Crosby St. Spec. permit (hotel, retail uses) MN 2 080505ZSM 8/11/2008

Phipps Plaza S. Zoning map amendment MN 6 070137ZMM 8/11/2008

Hunt’s Pt. Food Ctr. City map amendment BX 2 070443MMX 8/11/2008

Shops at Gateway Spec. perm. (no-limit fl. area) BK 5 080051ZSK 8/11/2008

Astoria Blvd. Rez. Zoning map amend. (R4 to C2-2) QN 3 060021ZMQ 8/11/2008

E. 181st De-Mapping City map amendment BX 6 050187MMX 8/25/2008

Public Safety Site selection, acq. of prop. (911 BX 11 090070PCX; 8/25/2008Answering Ctr. II ctr.); City map amendment 080197MMX

Voting Mach. Facility Site selection, acq. of prop. QN 1 090056PCQ 8/25/2008

NYPD Vehicle Storage Site selection (vehicle storage) QN 13 090087PSQ 8/25/2008

Beach 84th St. Pier Disposition of property QN 14 090064PPQ 8/25/2008

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glazing requirements. 5 CityLand104 (Aug. 15, 2008).

Right before the City Council’sLand Use Committee voted on thetext, City Planning staff presentedtwo small changes. The original textallowed developers to obtain a build-ing permit for a project without pre-cluding the possibility of laterincreasing the proposed building’ssize through an air rights transferfrom the MTA’s rail yards or throughthe use of the Hudson Yard DistrictImprovement Bonus. Council Mem-ber Melinda Katz criticized this text at the Council’s July hearing. The final text requires developers,prior to receipt of a building permit,to send a letter to Planning outlin-ing whether the project includes the transfer of air rights from the rail yards or uses either the inclu-sionary housing or the districtimprovement bonuses.

A second modification ad-dressed concerns about the pro-posed setback rules along West 34thStreet and Tenth Avenue. Under thefinal text, recesses to the street wallcan begin at a height of 50 feet alongTenth Avenue and 60 feet along West34th Street, up from the 30-footheight originally proposed.

With the two modifications, the Land Use Committee approvedthe proposal unanimously. Follow-ing the vote, Katz explained that she had brought up her concernswith Planning more than a monthbefore the vote, adding that it shouldnot have been as difficult as it was tomake modifications.

Council: Special Hudson Yards, Clinton & Midtown Text Amendments (August 14, 2008).

CITY PLANNING COMMISSION

Hearing

E.Village/Lower East Side, Manhattan

Lower East Side rezoningplan fiercely debated

City Planning’s proposal challengedby issues related to affordable hous-

years of research, planning, andcommunity outreach. Laurelton res-idents first approached the Depart-ment of City Planning in 2002, citingnumerous residential developmentsof attached, semi-detached, andmultifamily structures out-of-char-acter with the existing neighbor-hood. In response, Planning pro-posed a rezoning that would preventlot subdivision and preserve the one-and two-family detached housingcharacter of the community yet stillallow for modest residential andcommercial retail growth along Lau-relton’s primary thoroughfare.

After the City Planning Com-mission heard the proposal in Au-gust, it approved the plan withoutmodification. It agreed that existingzoning, unchanged since 1961, hadcontributed to development thatwas inconsistent with the neigh-borhood’s one- and two-family character. Like Community Board13, Queens Borough President HelenM. Marshall, and the Commission,the Council found all aspects of the plan appropriate and approvedthe proposal.


ULURP ProcessLead Agency: CPC, Neg. Dec.Comm. Bd.: QN 13, App’d, 35-0-0Boro. Pres.: App’d CPC: 11-0-0Council: App’d, 49-0-3

Council: Laurelton Rezoning (Septem-ber 4, 2008).

CITY COUNCIL

Text Amendment

Hudson Yards, Manhattan

Hudson Yards text modified

Air rights text and new setback ruleslightly changed to respond to Coun-cil’s concerns. The City Councilapproved 12 significant text amend-ments to the Hudson Yards zoningtext after the Department of CityPlanning made two small modifica-tions. Overall, the final text encom-passes the transfer of developmentrights from the MTA’s eastern railyards, the use of the Hudson YardsDistrict Improvement Bonus, andthe relocation of subway entrancesfor the No. 7 line. The final text alsoencompasses several design issuessuch as street wall setbacks, side-walk widening rules, and window

Rezoning of Laurelton community. Proposed Zoning Map used with permission of the New York CityDept. of Planning. All rights reserved.

123

With at least 100 of its membersprotesting outside, the Coalition toProtect Chinatown/LES spoke inopposition. The Coalition believesthat the proposed higher densityzoning along Chrystie Street,Delancey Street, and Avenue D willencourage “a wall of luxury high-rises around Chinatown and theLower East Side,” ultimately dividingCommunity Board 3 into two orthree separate communities. Speak-ers for the Coalition suggested thatthe Commission scrap the proposedplan and create a new one thatincluded all of Community Board 3.The Coalition was also concernedthat affordable housing targeted upto 80 percent of area mediumincome would not prevent mostlocal residents from being priced-out of the neighborhood.

Borough President ScottStringer admitted that the Coalitionhad some legitimate concerns, butstated that scrapping the plan would not address them. Stringercalled for the City to commitresources to a future rezoning in Chinatown. Christopher Kui, ofAsian Americans for Equality, agreedthat Chinatown should have its ownrezoning process. Kui offered hissupport for the plan, but pressed theCommission to exclude ChrystieStreet and include it in a futurerezoning of Chinatown.

The Commission has un-til October 10, 2008 to vote on the proposal.

CPC: Hearing on East Village/LowerEast Side Rezoning (C 080397 ZMM, C080397(A) ZMM – rezoning); (N 080398ZRM, N 080398(A) ZRM – text amend.)(August 13, 2008).

CITYLAND Note: At the Commis-sion’s post-hearing meeting, ChairAmanda Burden stated that theMayor’s Office, through its Commu-nity Affairs Unit, is convening withleadership in Chinatown to addressthe community’s concerns.

At the hearing, Council Mem-ber Rosie Mendez testified that a plan was needed to stem overde-velopment and stop the loss ofaffordable housing in her district.Mendez believes that the currentplan, with some modifications andadditions, can achieve the right bal-ance of “development, preservation,and tenant protection.” DavidMcWater, Susan Stetzer, andDominic Pisciotta, all from Commu-nity Board 3, stressed the need toinclude the anti-harassment andanti-demolition restrictions thatgovern the Special Clinton District,and also requested that the Citycommit to ensuring that 30 percentof housing built under the new zon-ing be permanently affordable tohouseholds earning less than 80 per-cent of the area medium income.

ing and protecting Chinatown.On August 13, 2008, the City Plan-ning Commission heard extensivetestimony on a plan to rezone 111blocks in the East Village and LowerEast Side of Manhattan. The Depart-ment of City Planning began thepublic review process for the original proposal in May 2008, 5 CityLand 72 (June 15, 2008), andthen later filed modifications afterreviewing Community Board 3’s recommendations. The modifica-tions apply the Inclusionary Hous-ing Program to certain proposed R7Aareas, replace a portion of a C6-2Azoning district with a C6-3A districtalong Chrystie Street, and eliminatea text change designed to encouragenon-conforming commercial uses in the mid-block areas of proposedR8B districts.


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Rezoning of East Village/LES. Proposed Zoning Map used with permission of the New York City Dept. ofPlanning. All rights reserved.

124

that any further setback of the build-ing’s north face would not improveviews, and that the design, as is, represents a fair compromise be-tween institutional expansion andenvironmental impact.

ULURP ProcessLead Agency: CPC, FEISComm. Bd.: MN 8, App’d, 31-3-2Boro. Pres.: App’d CPC: 11-0-0Council: Pending

CPC: Hospital for Special Surgery (N070145 ZRM – text amend.); (C 060333ZSM – special permit, dev. indemapped airspace); (C 060440 MMM– City map amend.); (C 070171 ZSM –dev. over streets) (August 11, 2008).CITYADMIN


Text Amendment/Special Permit

Lenox Hill, Manhattan

Traffic and obstructed viewsat issue in Bedpan Alley

Hospital for Special Surgery proposes12-story building over FDR Drive.On August 11, 2008, the City Plan-ning Commission unanimouslyapproved the Hospital for SpecialSurgery’s special permit applicationto build a new 86,869 sq.ft., 12-storyoutpatient center on a 21-ft. highdeck over the FDR Drive betweenEast 71st Street and the mid-blockline of East 72nd Street. The newtower, known as the River Building,would connect to the hospital’s East Wing Building through anenclosed pedestrian bridge over East71st Street. The Commission alsoapproved a special permit applica-tion for an additional three storiestotaling 51,000 sq.ft. to the East WingBuilding, a City map amendment toeliminate portions of the FDR Drivefor structural columns, and a textamendment allowing the hospital toapply for a special permit to modifyloading-berth requirements.

Since the River Building wouldbe classified as a hospital facilityadding more than 10,000 sq.ft. offloor area in a residential district, one additional off-street loadingberth would normally be required.The hospital proposed to modify the requirement with a text amend-ment, allowing it, by application of special permit, to use its two existing loading berths in its WestWing Building to satisfy the loading-berth requirement.

When the project reached theCommission for a hearing, severalspeakers in opposition testified thatthe number of trucks already usingthe existing loading-berths createconsiderable traffic on East 71stStreet. They had reservations aboutsupporting a plan that brought moredeliveries to the area without provid-ing more off-street loading space.

Local residents of the Edgewaterbuilding, located at 530 East 72ndStreet, also expressed concern thatthe River Building’s 190-foot heightwould ruin their panoramic view ofthe East River.

The Commission acknowl-edged residents’ concerns of trafficcongestion and blocked views, butconsidered both unpersuasive. Itfound that the hospital’s pledge to ensure appropriate use of an 85-ft. long commercial loading zoneon the south side of East 71st Street,along with an increase in loadingactivity on East 70th Street, wouldalleviate traffic congestion. TheCommission also noted that the East 70th Street loading facility and existing loading berths wouldadequately serve the River Build-ing’s additional needs because materials could be transportedacross the pedestrian bridge, elimi-nating the threat of increased activi-ty at grade level. As for the obstruct-ed views, the Commission found


BSA PIPELINE

New Applications Filed with BSA — July 30 - Aug. 29, 2008

APPLICANT PROJECT/ADDRESS DESCRIPTION APP. NO. REPRESENTATIVE

VARIANCES

SoBRO Dev. Corp. 1778 S. Blvd., BX Res. and commerc. in C8-3 215-08-BZ Howard S. Weiss

Samuel Jacobowitz 95 Taafe Pl., BK Ext. 1-fam dwelling in M1-1 220-08-BZ Moshe M. Friedman

Samaritan Found. 130-15 89th Rd., QN Convert, enlg. comm. fac. 210-08-BZ Sheldon Lobel PC

Cheon Park 40-69 94th St., QN Enlg. day care center 207-08-BZ Eric Palatnik PC

Paul Chait 737 Elvira Ave., QN Expand yeshiva (yards, parking) 206-08-BZ Eric Palatnik PC

SPECIAL PERMITS/OTHER ACTIONS

Pamela Equities 268 Park Ave. S., MN Permit phys. cult. est. 198-08-BZ Mitchell S. Ross

Avi Babayof 1245 E. 23rd St., BK Enlarge 1-family dwelling 203-08-BZ Sheldon Lobel PC

D. Eisenstadt 2117 Avenue M, BK Enlarge 1-family dwelling 208-08-BZ Fredrick A. Becker

Valeri Geval 1624 Shore Blvd., BK Leg., mod., 1-fam. dwell. enlgmt. 216-08-BZ Eric Palatnik PC

APPEALS

Oliver Dev. 131 Second Pl., BK N/A 212-08-A Greenberg Traurig

Salvatore Basile 184 10th St., BK Sprinkler system recommendation 209-08-A FDNY

Breezy Pt. Co-op 171 Bayside Dr., QN Const. in mapped st. bed 200-08-A Gary D. Lenhart

Breezy Pt. Co-op 26 Roosevelt Walk, QN Const. in mapped st. bed 204-08-A Gary D. Lenhart

Breezy Pt. Co-op 32 Tioga Walk, QN Build 1, 1-family dwelling 205-08-A Valentino Pompeo

Breezy Pt. Co-op 434 Oceanside Ave., QN Const. in mapped st. bed 211-08-A Gary D. Lenhart

Breezy Pt. Co-op 68 Hillside Ave., QN Const. in mapped st. bed 213-08-A Joseph A. Sherry

Vincent Falcone 82 Signal Hill Rd., SI Dwelling not on mapped st. 218-08-A Philip L. Rampulla

EXTEND CONSTRUCTION PERIOD

Steven Reich 126 First Pl., BK Ext. time to complete const. 217-08-BZY Bryan Cave

Did you know? Coney Island Creek was filled duringconstruction of the Belt Parkway,transforming Coney Island into apeninsula in the early 20th century.

125


Hearing

Hunter’s Point, Queens

EDC plan elicits debate overaffordable housing

Opponents claim Hunter’s PointSouth will not adequately addresslack of affordable housing in Queens.On August 13, 2008, the City Plan-ning Commission heard testimonyon the Hunter’s Point South Redevel-opment Plan. The plan aims to createan affordable, middle-income com-munity and waterfront park on 30acres of Long Island City waterfront.

Originally owned by the PortAuthority of New York and New Jersey, the City purchased the site in 2006 and assigned the New YorkCity Economic Development Cor-poration to create a plan that wouldincrease the affordable housingstock in Queens. In 2007, EDCannounced a plan that included low-, mid-, and high-rise residentialareas, 11 acres of open space,ground-floor retail, and approxi-mately 5,000 new housing units, 60percent of which would be afford-able to middle-income families.

At the Planning Commission’spublic hearing, an EDC representa-tive stated that, out of all the majorU.S. cities, New York City has thesmallest number of middle-incomefamilies, and that the EDC plan, thelargest affordable housing project inthe last 30 years, will allow the City to

publicly financed project on publicland” excludes the majority of families living in Queens. Weinstocksuggested that 20 percent of the unitsbe affordable to those making lessthan $25,000, and 30 percent of the units be affordable to those mak-ing less than $48,000. This wouldensure that 50 percent of the unitsare within the price range of those ator below the median income forQueens’ residents.

The Commission has until September 29, 2008 to vote on the proposal.

CPC: Hearing on Hunter’s Point South(C 080381 MMQ - rezoning); (N 080363ZRQ – text amend.); (C 080276 MMQ –City map amend.); (C 080364 PQQ – acq.of property); (C 080365 HAQ – UDAAP).


Disposition/Special Permit

West Village, Manhattan

Additional space for theWhitney Museum approved

Downtown satellite would anchorsouthern end of High Line. On August11, 2008, the City Planning Commis-sion approved the Whitney Muse-um’s plan to build a six-story,175,000-sq.ft. building at 555 WestStreet in the West Village of Manhat-tan. The proposal includes 50,000sq.ft. for new indoor exhibits, 97,400sq.ft. for museum support facilities,and 27,600 sq.ft. for a maintenanceand operational facility at the south-ern terminus of the High Line elevat-ed park. The site is bounded by Gan-sevoort Street, Tenth Avenue, LittleWest 12th Street, and WashingtonStreet, just outside the GansevoortHistoric District.

In order to facilitate the newdevelopment, the Commissionapproved four applications withoutmodification: disposition of City-owned property to the NYC Eco-nomic Development Corporationfor eventual sale to the Whitney, siteselection and acquisition of the HighLine facility for the Department of

prevent more middle-income fami-lies from being priced-out of living inQueens. Helen M. Marshall, Bor-ough President of Queens, testifiedthat without more affordable hous-ing, City workers, who provide vitalservices and “represent an impor-tant part of our tax base,” will contin-ue to leave the City. According toMarshall, EDC’s plan can helpreverse that trend.

Ruth Viznauskas, AssistantCommissioner for new constructionfinance at the Department of Hous-ing Preservation and Development,also spoke in favor of the plan. Shestated that the affordable compo-nent of the plan targets families offour that have a combined income of$55,000-$158,000. Viznauskas addedthat the community had requestedmore units be made affordable forfamilies making less than $55,000,but she stated that doing so wouldcreate a significant funding gap.According to Viznauskas, the originalplan called for 100 percent of theunits to be rentals, but HPD added ahome-ownership option in responseto the community’s request.

Elena Conte, representing thePratt Center for Community Devel-opment, voiced her disapproval ofthe current plan. Of the proposedunits “not one would be affordable toa family of four making less than$61,450,” she stated. According tothe Pratt Center, more than sixty per-cent of Queen’s households earn lessthan the proposed minimum afford-able income of $55,000. Conte also


Proposed Hunter’s Point South development. Image: FXFOWLE Architects, LLP, Tom Schaller.

asked HPD and EDC to sharetheir financial models with thePratt Center so it could verifyHPD’s position that providingaffordable units for those mak-ing less than $55,000 was noteconomically feasible.

A number of local resi-dents also voiced their oppo-sition to the project’s lack of affordable units. HannaWeinstock, a communityorganizer with Queens Col-lege, testified that it is “com-pletely unacceptable that a

126

permit for the 660-space parkingfacility since only 69 spaces would beas-of-right. The plan also calls for theacquisition of private property toreplace the 501 parking spaces lostduring construction.

The northern section of theproject site, formerly known as the Quarantine Grounds, was usedas a burial ground in the mid 1800s. In order to preserve the cemetery’sremains, the proposal calls for amemorial green on the northwestcorner of the site. If approved by Council, the courthouse would be the new home for Staten Island’s Civil, Criminal, and Lower Criminal Courts.

ULURP ProcessLead Agency: DASNY, FEISComm. Bd.: SI 1, App’d, 33-0-0Boro. Pres.: App’d CPC: 11-0-0Council: Pending

CPC: Staten Island Court House (C 080379 PSR – site selection); (C 080380 ZSR – special permit, park-ing); (C 080378 PCR – acquisition)(August 11, 2008). CITYADMIN

DEPARTMENT OF CITY PLANNING

Rule Adoption

Citywide

Additional disclosurerequired of applicants

New rule requires applicants to sub-mit Doing Business Data Form.The Department of City Planningrecently enacted a rule requiring thesubmission of an additional dis-closure form with each new ULURPand zoning text amendment appli-cation. The rule stems from LocalLaw 34 of 2007, the campaignfinance reform law, which mandatesthat City agencies maintain a data-base of all companies, their principalofficers and owners, and certain sen-ior managers that engage in busi-ness dealings with the City. The lawseeks to ensure that the City’s pro-curement and award processes are

Review ProcessLead Agency: DSBS, Neg. Dec.Comm. Bd.: MN 2, App’d, 43-0-0Boro. Pres.: App’dCPC: 11-0-0Council: Pending

CPC: Whitney Museum of American Art(N 080406 ZRM – text amend.); (C080407 PCM – acquisition); (C 080408PPM – disposition); (C 080409 ZSM –special permit, use and bulk) (August11, 2008). CITYADMIN


Site Selection/Special Permit

St. George, Staten Island

Courthouse, 660-spacegarage approved

Existing surface parking lot makesway for consolidation of civil andcriminal courts. On August 11, 2008,the City Planning Commissionapproved three applications neededto facilitate construction of the newStaten Island Supreme Courthouseand parking garage. The site, ownedby the Department of Transporta-tion, occupies most of the St. GeorgeMunicipal Parking Field, roughlybounded by Central Avenue, HyattStreet, St. Mark’s Place, and VictoryBoulevard. The five-story court-house is an as-of-right development,but the project requires a special

Parks and Recreation, a special per-mit allowing museum use in an M1-5 district, and a zoning text amend-ment that allows height and setbackmodifications to accommodate theRenzo Piano design.

Highlights of the plan include a10,400-sq.ft. open space along Gan-sevoort Street, known as the Largo,which would display art from theWhitney’s collection and wouldserve as a public-gathering placebefore giving way to the museum’smain entrance. A stairway extendingfrom the High Line would connectthe Largo, and by extension, theWhitney, to the elevated open spaceabove. Also, Piano’s design wouldallow for the maximum amount ofair and light to reach the High Linesince the bulk of the building is locat-ed on the western portion of the siteand steps down to the east in a seriesof terraces towards the elevated park.

Unlike the Whitney’s previousplan to construct a nine-story towernext to its Marcel Breuer building onthe Upper East Side, the new propos-al has garnered widespread commu-nity support. Proponents believe thedowntown location will attract abroader audience to both the Whit-ney Museum and the High Line, aswell as provide the museum withspace to properly display larger con-temporary pieces.


New courthouse and parking garage proposed for Staten Island. Image: Polshek Partnership Architects LLP.

127

free of improper influence.As of April 14, land use appli-

cants now need to complete a DoingBusiness Data Form each time theyfile a ULURP or zoning text amend-ment application. Under the newlaw, principal officers including theChief Executive Officer, the ChiefFinancial Officer, and the ChiefOperating Officer, or their functionalequivalents, must all be listed. Prin-cipal Owners, defined as those whoown or control ten percent of theentity, must also be listed.

The form requires individualsto provide various contact informa-tion. Irrespective of whether theapplicant is already included in theCity’s VENDEX database, no applica-tion will be considered without thenew form unless specifically exempt.Exemptions include homeownersmaking applications regarding theirone-, two-, or three-family dwellingsand certain neighborhood and com-munity non-profits. Applicationsfiled prior to, but not certified as of,April 14, are still subject to the newdisclosure rule.

A Doing Business Data Formmust be included with every individ-ual application filed by an organiza-tion, whether or not the information

Kramer Levin attorney PaulSelver, representing owner BannerAssociates, testified that both struc-tures were as-of-right. Architect JackBeyer of Beyer Blinder Belle present-ed the design plans for both struc-tures. He stated that the surroundingarea is characterized by a variety ofuses and architectural styles, includ-ing townhouses and loft buildings.While the new tower would rise high-er than its immediate neighbors,Beyer claimed it was appropriate forthe district and for a block whereevery building is “distinctively readas individual.” The 25-foot widetower would be divided into threeaesthetically distinct sections at itsbase, shaft, and top. Facade materi-als would include granite, limestone,brick, masonry, and glass, with alu-minum spandrels and mullions. Apenthouse encasing the boiler andmechanical equipment would occu-py the 16th floor, and is necessary,according to Beyer, because the cel-lar would be given over to amenities.

The addition to the garage,whose style Beyer described as utili-tarian, would include two stories setback five feet, a third story set back 15feet, and a brick facade with metal-framed casement windows. As partof the project, the developer wouldrestore the original garage.

Preservationists expressedreservations about the garage addi-tion’s visibility and design aspects ofthe tower. Leo Blackman, Vice Presi-dent of The Drive to Protect theLadies’ Mile District, testified thatthe tower’s penthouse “should beeliminated entirely or reduced to onestory,” and that the glass and steelcanopy “is out of character withLadies’ Mile.” Nadezhda Williams,from the Historic Districts Council,found that the addition to the garagewas not sufficiently set back or inte-grated with the existing structure.Community Board 5 submitted a let-ter of objection stating that the prox-imity of residential apartments to thegarage’s parking use was inappropri-ate and the tower’s height was exces-sive and out-of-proportion.


Landmarks Actions Taken in Late July/August 2008FINAL PERMITS TO BE ISSUED AFTER LANDMARKS RECEIVES CONFORMING PLANS

ADDRESS LANDMARK/HISTORIC DISTRICT DESCRIPTION CASE NO. APP’D

July 29, 2008

West Broadway, MN Tribeca South, West HDs Inst. flood mitigation measures 09-1281 Yes

93 Grand St., MN SoHo-Cast Iron HD Alter storefront 08-7529 Yes

35 Wooster St., MN SoHo-Cast Iron HD Legalize access lift 08-6504 No

44 Ninth Ave., MN Gansevoort Market HD Replace infill, inst. signs 09-0802 Yes

425 W. 22nd St., MN Chelsea HD Alt. facade, const. rear add. 08-3557 Yes

361 W. 22nd St., MN Chelsea HD Construct rooftop addition 08-7304 W/Mod

August 5, 2008

20 W. 44th St., MN Mechanics’ Institute Report to CPC (mod. bulk) 08-7067 W/Mod

230 Park Ave., MN Helmsley Building Inst. reception station, art 08-8327 Yes

799 Park Ave., MN Upper East Side HD Install fence, HVAC equip. 08-8369 Yes

12 E. 78th St., MN Metropolitan Museum HD Construct roof, rear adds. 08-8309 Yes

24 W. 119th St., MN Mount Morris HD Construct rear addition 08-8178 W/D

32 Hicks St., BK Brooklyn Heights HD Install infill 09-1630 Yes

36 Grace Ct., BK Brooklyn Heights HD Alt. facade, const. rear add. 09-1055 W/Mod

24 Willow St., BK Brooklyn Heights HD Const. dormer at roof 09-1366 Yes

380 Henry St., BK Cobble Hill HD Inst. HVAC units, sound screens 08-0171 W/Mod

21 Tompkins Pl., BK Cobble Hill HD Lower parlor window sills 09-1629 No

90 Park Pl., BK Park Slope HD Legalize fence, alter stair 09-0793 Yes

1510 Albemarle Rd., BK Prospect Park South HD Mod. windows, doors, terrace 09-0899 Yes

has changed. A person who believesthey have been erroneously includ-ed in the database may submit arequest for removal.

Department of City Planning,http://www.nyc.gov/html/dcp/html/luproc/ulurp.shtml.

LANDMARKS PRESERVATIONCOMMISSION

Certificate of Appropriateness

Ladies’ Mile, Manhattan

Controversial 16-story building and garage addition heard

Commissioners and preservationistscall for revisions to development.On August 5, 2008, Landmarks heardtestimony on a proposal to build a three-story addition to a 1926garage at 21-25 West 20th Street, and a new 16-story building at 19West 20th Street in the Ladies’ MileHistoric District. The plan calls forthe garage’s parking use to beretained, with a three-story residen-tial addition. The new 16-story resi-dential building would replace anexisting parking lot.


Commissioner Stephen Byrnssaid that the project was “headed inthe right direction,” but suggested areduction in the size of both thegarage addition and penthouse, andobjected to the anodized aluminumcanopy. Commissioner Libby Ryanfound the addition excessively bulkyand visible, and the materials inap-propriate. With respect to the overallcomposition of the project, Ryanclaimed it looked like the new towerwas “spilling over” on to the garage.Tierney agreed with the general con-sensus, and asked the applicants toreturn with an amended proposal.

LPC: 19-25 West 20th Street, Manhattan(COFA #09-0250) (August 5, 2008).CITYADMIN

LANDMARKS PRESERVATIONCOMMISSION

Commission Appointment

Citywide

Fred Bland approved asLandmarks commissioner

Architect will occupy Jan Pokorny’sseat. On September 4, 2008, the CityCouncil Committee on Rules, Privi-leges & Elections approved FredBland as the newest member ofLandmarks, filling a vacancy opensince Jan Pokorny passed away onMay 20th after serving on Land-marks for over a decade. Bland is anarchitect, currently a managing part-ner at Beyer Blinder Belle. Prominentprojects by Bland include China’sShanghai Cultural Plaza, the MarkMorris Dance Group Building at theBrooklyn Academy of Music, and therecently approved addition to theDomino Sugar Factory in Brooklyn. 5 CityLand 92 (July 15, 2008).

Representatives from theMunicipal Art Society and the Land-marks Conservancy testified in sup-port of Bland’s appointment, as didCouncil Member David Yassky. Thefull Council unanimously approvedBland’s appointment.

Three Commissioners Appointed to the

Landmarks Preservation Commission,LPC Press Release, Sept. 4, 2008.

DEPARTMENT OF BUILDINGS

City Comptroller Audit

Citywide

Audit faults Buildings onenforcement procedures

Audit found inadequate follow-up onviolations; DOB to implement most,if not all,of Comptroller’s recommen-dations. City Comptroller William C. Thompson issued an audit reporton Buildings’ handling of BuildingCode and other violations. The audit determined that Buildings’ follow-up efforts on violations wereinsufficient, not only because of program deficiencies, but alsobecause Buildings lacked theauthority to re-inspect flagged siteswithout a warrant and to compelproperty owners to remedy viola-tions. As a result, many violationshave remained outstanding forextended periods of time.

The audit focused on two ofBuildings’ programs, the Certificateof Correction Audit Program, whichensures the integrity of certificates ofcorrections filed by property ownersin response to issued violations, andthe Hazardous Re-inspection Pro-gram, which ensures that hazardousconditions have been rectified. Theaudit found that in both programs,inspectors were not able to accessproperties nor were property ownersrequired to, or had an incentive to,give inspectors access. Also, in caseswhere the Hazardous Re-inspectioninspectors could not access a prop-erty, they sometimes failed to leaveproper notice asking owners to con-tact Buildings to arrange an inspec-tion. The Comptroller advised Build-ings to ensure that inspectors left therequisite notices, and recommend-ed evening inspections when a day-time attempt proved unsuccessful.In Fiscal Year 2007, the audit foundthat Buildings failed to inspect one-third of the owner-submitted certifi-

cates of correction and 20 percent ofthe audited properties in the Haz-ardous Re-inspection program.

The audit made 11 recommen-dations on how to improve Build-ings’ re-inspection programs.Among them, the audit suggestedthat Buildings deny building permitsto owners with outstanding viola-tions. Buildings agreed to work withthe Law Department to define itsauthority to withhold permits, and, ifnecessary, pursue legislation granti-ng Buildings the authority to denypermits when appropriate.

Follow-up of Violations Issued by Buildings, MG07-125A, NYC Comp-troller William C. Thompson, Jr. (June 23, 2008).

COURT DECISIONS

Article 78

Van Cortlandt Village, Bronx

Court upholds BSA rulingdenying vested rights

Bronx developer claimed non-com-pliance with zoning law was mini-mal and should not impede vesting of rights. Developer GRA V LLCapplied for an excavation and foun-dation permit from the Departmentof Buildings for construction of a 63-unit apartment building in a neigh-borhood of one- and two-familybuildings within the Bronx’s VanCortlandt Village. Despite an Admin-istrative Code requirement that per-mit applications be accompanied bya lot diagram survey prepared by alicensed surveyor, the developeronly included a Sanborn map signedand stamped by its architect. Build-ings accepted the Sanborn map inlieu of the survey, relying on thearchitect’s seal, and issued the foun-dation permit to the developer.

Aware that the City was in theprocess of downzoning the neigh-borhood to restrict development toone- or two-family buildings, thedeveloper moved quickly with con-struction, completing excavationand 85 percent of the foundation by

129September 15, 2008 Volume 5 CITYLAND

the day the City Council approvedthe rezoning. After Buildings issued astop-work order, the developer fileda request to continue work, arguingthat it had acquired a vested right tocontinue. While Buildings did notinitially oppose the developer’srequest, a survey submitted byneighbors showed the developer’sSanborn map was inaccurate. Thedeveloper submitted its own survey,confirming that the Sanborn mapinaccurately marked the adjacentbuilding’s footprint, failing to show it was set back 1.9 feet from the street line. As a result, the develop-er’s proposed structure, bound by the “narrow streets” zoning require-ment not to build any closer to thestreet line than the nearest adjacentbuilding, pierced the setback area at three small points. Following the submission, Buildings deniedthe request.

The developer appealed to BSA.Buildings opposed, arguing thatsince the proposed structure piercedthe setback area, the permit wasinvalid, and that a valid permit isnecessary to establish vested rights.The developer countered that thenon-compliance was minimal, andthat because it had not yet built theabove-ground structure, the build-ing could still be modified to complywith the setback requirement.

BSA denied the request, con-cluding that the above-groundbuilding plans could not be separat-ed from the foundation. As a result,the foundation permit was invalidbecause it was accompanied by aninaccurate boundary survey, and theproposed structure would violate thesetback requirement based on theinaccuracy. 2 CityLand 120 (Sept. 15,2005). The developer then filed anArticle 78 petition, which a lowercourt denied.

On appeal, the First Depart-ment upheld BSA’s determination,ruling that BSA was entitled to defer-ence and had a rational basis forfinding that the permit was invalid.The court agreed that the proposedabove-ground structure must be

considered together with the foun-dation permit for both validity andvesting purposes. The court empha-sized that the developer was aware ofthe proposed zoning changes andtook the risk by relying on a Sanbornmap instead of an accurate survey.The court reaffirmed that a claim forcommon law vested rights cannot besupported in reliance on an invalidpermit, even where Buildings erro-neously issued the permit due to itsown failure to initially notice that theapplication failed to comply withCode provisions.

GRA V LLC v. Srinivasan, 2008 N.Y. SlipOp. 06432, (1st Dep’t July 29, 2008)(Attorneys: Sheldon Lobel, P.C., forGRA; Michael A. Cardozo, Victoria Scal-zo, Stephen J. McGrath, Virginia Waters, for BSA).

COURT DECISIONS

DOI

Citywide

Court affirms DOI’s subpoena power

Preservationist allegedly altered con-tents of letter from Manhattan Bor-ough President Scott Stringer. In 2006,Landmarks held a hearing to consid-er the designation of the Dakota Sta-bles, a building on the Upper WestSide. Shortly before the hearing, theowner of the Dakota Stables pulledpermits and began stripping thefacade of the building. 3 CityLand157 (Nov. 15, 2006). At the hearing,Virginia Parkhouse, a LandmarksWest! volunteer, read a letter fromBorough President Scott Stringerinto the record, allegedly changingits contents. Parkhouse stated thatStringer wanted Landmarks to desig-nate the Dakota Stables when in real-ity the letter merely asked Land-marks to hold a public hearing on theissue of designation. Lindsay Miller,another Landmark West! representa-tive, signed in as representingAssembly Member Linda Rosenthal,and allegedly changed the text of herletter to read that Rosenthal advocat-

ed for designation instead of onlyrequesting a public hearing.

After the hearing, Stringer andRosenthal complained to Land-marks, and Landmarks referred thematter to the Department of Investi-gation. DOI investigated, ultimatelyasking Miller and Parkhouse forinterviews. Parkhouse refused tocomply, and DOI followed with asubpoena, which she challenged,claiming it interfered with her rightto free speech and that DOI was notauthorized to subpoena private citi-zens. A lower court disagreed andupheld the subpoena.

On appeal, the First Depart-ment affirmed DOI’s authority tosubpoena private citizens. The courtfound that DOI was investigatingLandmarks’ public hearing proce-dures, not targeting Parkhouse. Thecourt rejected the constitutionalargument, ruling that DOI’s investi-gation did not amount to the chillingof free speech because it was notaimed at the content of her speech.Even if the investigation was aimedat the content of Parkhouse’s testi-mony in front of Landmarks, itwould be permissible because DOIwas charged with ensuring that thepractices of City agencies were legit-imate and did not lead to abuse.

Parkhouse v. Stringer, 2008 NY Slip Op.06625, (1st Dep’t Aug. 19, 2008) (Attor-neys: Whitney North Seymour, Jr.,Gabriel North Seymour, for Parkhouse;Michael A. Cardozo, Alan G. Krams,Leonard Koerner, for Stringer).

COURT DECISIONS

EDC

East Harlem, Manhattan

EDC action withstandsmotion to dismiss

Court allows EDC lawsuit seeking toreclaim Harlem landmark fromdeveloper. In 2003, the New York CityEconomic Development Corpora-tion sold a run-down landmark,known as the Corn Exchange Bank,to Corn Exchange LLC. The deed


CITYLAND PROFILES

Lynn Kelly on the future of Coney Island

required Corn Exchange to rehabili-tate the building, restore the exteriorto its original state, and to establish anon-profit culinary institute in a por-tion of the renovated space. CornExchange had 36 months to com-plete the renovations and obtain anew certificate of occupancy. The

deed also included a provision that ifCorn Exchange failed to perform,commence, or complete construc-tion, or if it failed to use the premisesin five years as a culinary school,EDC could reacquire the premises.

After the time to restore andrehabilitate passed, EDC com-

menced an action to establish itsright of re-entry and to eject CornExchange, claiming that the Ex-change had breached a restrictivecondition in the deed and that EDCwas entitled to obtain title to thepremises. Corn Exchange moved todismiss, arguing that the provision

E ver sinceLynn Kelly

was appointedPresident of theConey IslandDeve lopmentC o r p o r a t i o n[CIDC] last year,she knew that

Under the current zoning scheme,amusement operators have divested,vacant lots have increased, and operat-ing a restaurant is considered an ille-gal use. New zoning, Kelly states, isrequired to preserve this “incredible historic resource.”

In 2005, the Department of City Plan-ning and the CIDC proposed a compre-hensive rezoning of Coney Island covering19 blocks from the New York Aquarium toWest 24th Street, and from MermaidAvenue to the boardwalk. After the com-munity reviewed the proposal, Kelly earli-er this year announced modifications toaddress the public’s concerns. Accordingto Kelly, the public thought the plan wastoo seasonal, required more year-roundattractions, and needed to be fairer tolandowners. In response to those con-cerns, the plan was modified to increaseopportunities for enclosed amusementsand to give existing landowners a chanceto develop their property. As a result, newmapped parkland decreased from 15 to 9acres, much to the chagrin of someamusement enthusiasts.

Opposition. Shortly after the Citymodified the original plan, Dick Zigunresigned as one of the 13 directors at theCIDC. Zigun, a sideshow producer and theso-called mayor of Coney Island, has fer-vently spoken out against the plan. Hebelieves that the new plan will lead to a“mallification” of the amusement core,allowing for big-box retail to replaceamusement rides and prevent ConeyIsland from becoming a world-classtourist attraction. Zigun has called forprotest and hinted at the possibility oflegal action.

Kelly states that opposition to therevised plan comes from “a narrowly

focused group that doesn’t live in thearea” and only represents the interests ofthe amusement industry. She attributestheir opposition mostly to nostalgia, andis disappointed that they are willing tosettle for the status quo of vacant lots,illegal uses, and Coney’s annual winterhibernation. Kelly emphatically states thatthere will be “no mall in Coney.” Sheadmits that while the new zoning willallow for over 500,000 sq.ft. of retail inConey West and Coney North, Coney Eastwill be reserved for “entertainmentretail,” such as bowling, arcades, tattooparlors, and freak-shows. Kelly is quick tostate that the local community over-whelmingly supports the plan because itwill create thousands of permanent jobsfor local residents, provide sorely-neededcommunity facilities, and revamp thelocal economy by creating the largesturban entertainment destination in theUnited States.

No time to lose. Kelly fears that if thenew zoning plan is not approved soon,Coney Island may be lost forever. Sheexplains that Thor Equities currently owns60 to 65 percent of Coney East and four-and-a-half of the five acres zoned foramusement rides. She notes that there isno guarantee that Thor will allowAstroland rides to remain on its propertybeyond Labor Day 2008. Kelly states thatif the plan was scrapped, there would benothing stopping Thor from asking BSAfor a variance that would allow construc-tion for malls and luxury condominiums.From Kelly’s perspective, zoning will “actas an insurance policy,” permanently pre-serving the character of Coney Island forgenerations to come.

— Frank Berlen

time was of the essence. Her mission:restore Coney Island to its former promi-nence, and do it quickly, or lose theopportunity forever.

Kelly, a former Deputy Director of theCity’s Art Commission, joined the NewYork City Economic Development Corpo-ration in 2001. Over the next six years,she managed a portfolio of developmentprojects and land sales of more than $50million. Appointed President of the CIDCby Mayor Bloomberg in April 2007, Kellytook on the responsibility of saving “thePeople’s Playground.”

At the turn of the 20th century, ConeyIsland attracted millions of day-trippers toa vivacious yet affordable entertainmentdestination. Amusement parks drewthrill-seekers while the beach and board-walk provided all New Yorkers relief fromthe City’s sweltering summer heat. By the1970s, however, Coney Island was strug-gling to survive. Dreamland, Luna, andSteeplechase amusement parks had allclosed; newly-constructed housing proj-ects for low and moderate income fami-lies dotted the skyline, encouraging fur-ther divestment. Mayor Bloomberg, inconjunction with the City Council and Bor-ough President Marty Markowitz, formedthe CIDC in 2003 to reinvigorate the area.

The first step. Kelly says that the top priority is rezoning Coney Island.

131September 15, 2008 Volume 5 CITYLAND

New Decisions Added to CITYADMINwww.citylaw.org – August 2008*

CITY COUNCIL

RES. NOS. PROJECT DESCRIPTION DATE

1586 Averne East, QN UDAAP by HPD (26 lots) 8/14/2008

1587-88 Rockaway Neighborhood Rezoning, QN Zoning map amendment; increase 8/14/2008minimum off-street parking regs

1589-90 610 Lexington Ave., MN Zoning text amend (transfer dev. rights 8/14/2008from landmarks); const. 63-story bldg.

1591 Qdoba Grill, MN Revocable consent (sidewalk cafe) 8/14/2008


PROJECT NAME DESCRIPTION LOCATION ULURP NO. DATE

Delury Sq. Park City map amend. (est. park) MN 1 C080336MMM 8/11/2008

Whitney Museum Zoning text amend. (height & setback); MN 2 N080406ZRM; 8/11/2008site selection, acq. of prop. (maint. & C080407PCM;operations fac.); disp. of prop., easements; C080408PPM;spec. permits (use, height, setback) C080409ZSM

33 Great Jones St. Special permit (retail use in M1-5B) MN 2 C070450ZSM 8/11/2008

Hospital for Spec. Surgery Spec. permit (12-story hospital in demapped MN 8 C060333ZSM; 8/11/2008air space); City map amend. (close portion C060440MMM;of FDR Dr.); zoning text amend.; spec. permit N070145ZRM;(enlarge hospital) C070171ZSM

Laurelton Rezoning Zoning map amendment QN 13 C080462ZMQ 8/11/2008

Staten Island Ct. House Acq. of property (parking lot); acq. of SI 1 C080378PCR; 8/11/2008property (courthouse, garage); special C080379PSR;permit (591-space garage) C080380ZSR

BOARD OF STANDARDS & APPEALS

ADDRESS DESCRIPTION ACTION CASE NO. REPRESENTATIVE

614 W. 58th St., MN Special permit (const. 6-story school) App’d 58-08-BZ Fried Frank Harris

181-05 Harding Expwy., QN Ext. time to obtain C of O (Mobil station) App’d 713-55-BZ Walter T. Gorman

126 Oceanside Ave., QN Enlarge 1-family dwelling App’d 48-08-A Joseph A. Sherry

7-05 152nd St., QN Special permit (day care ctr.) App’d 114-07-BZ Joseph Morsellino

33-57 59th St., QN Const. 2-fam. dwelling (yards) App’d 109-07-BZ Jeffrey A. Chester

305 Hillside Ave., QN Enlg. 1-fam. dwelling not fronting mapped st. App’d 49-08-A Joseph A. Sherry

154-04 Harding Expwy., QN Ext. time to obtain C of O (Mobil station) App’d 728-29-BZ Walter T. Gorman

15/589 Carmela Ct., SI Compl. const., obtain C of O (minor dev.) App’d 104-08-BZY— Anthony J. Tucci119-08-BZY

LANDMARKS PRESERVATION COMMISSION

ADDRESS LANDMARK/HISTORIC DISTRICT DESCRIPTION CASE NO. APP’D ISSUED

CERTIFICATE OF APPROPRIATENESS

52 Greene St., MN SoHo HD Replace infill, install lighting 09-2176 Yes 7/23/2008

415 W. 13th St., MN Gansevoort Market HD Install infill, alter loading dock 09-0033 No 7/30/2008

12 E. 78th St., MN Metropolitan Museum HD Construct 5-story rear yard addition 09-2700 Yes 8/8/2008

1035 Fifth Ave., MN Metropolitan Museum HD Install windows 08-8148 No 7/29/2008

271 Adelphi St., BK Fort Greene HD Paint chimney fence 09-2195 Yes 7/22/2008

*Bold indicates the decision is covered in this issue. The symbol † indicates that the decision was covered in a previous issue. City Council decisions available in hard-copy format at the Center for New York City Law.

in the deed was not a condition thatit failed to meet, but rather acovenant or promise that the Ex-change breached, and therefore, theEDC would, at most, be entitled tomoney damages.

Justice Judith J. Gische agreedwith EDC and dismissed the motion,ruling that the cited provision in thedeed was a restrictive condition that allowed the EDC to reacquire

title to the premises if Corn Ex-change failed to perform. Justice Gische ruled that the parties’ intentdetermined whether the cited provi-sion was a condition or a covenantand in this case, it was clear from the deed that the EDC and Corn Ex-change intended to create a condi-tion. The provision’s express lan-guage created a condition thatrequired Corn Exchange to perform

and gave the EDC the right to re-enter and re-acquire the prem-ises if Corn Exchange failed to meetthe requirement.

New York Economic Development Corp.v. Corn Exchange LLC, Index No.405031/07 (N.Y.Cty.Sup.Ct. July 16,2008) (Gische, J.) (Tina Isselbacher, forEDC; Alan J. Stone, Joseph S. Genova,John K. White Jr., David W. Wechsler, forCorn Exchange).

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CITY LANDarchive.citylaw.org/cityland/wp-content/uploads/sites/39/...CITY LAND 118 Volume 5 CITY LAND September 15, 2008 CENTER FOR NEW YORK CITY LAW ADVISORY COUNCIL COMMENTARY Stanley