In a statement provided to ENR, the developers said the ruling "defies more than 40 years of precedent in the city’s zoning laws." The firms added: "We will appeal this decision vigorously in court and are confident that we, and the city, will prevail on the merits."

Gerrymandered?

The New York Board of Standards and Appeals in September 2017 had upheld the building permit for a 55-story “pencil” condominium tower, 200 Amsterdam, to be built on a gerrymandered lot with 39 sides near Lincoln Center on Manhattan's Upper West Side, after it was challenged by neighborhood groups.

A year ago, New York Supreme Court Judge W. Franc Perry told the board to reconsider its decision, saying it was inconsistent with zoning rules. The board last year upheld the permit for a second time, arguing that it was in keeping with a past misinterpretation of zoning rules that was corrected in 2018.

Judge Perry disagreed, and on Feb. 13 ordered the permit to be revoked.

He also held the owner responsible for any “harsh results” from the invalidation of the permit, noting in his order that the validity of the permit was challenged before construction proceeded past installing the footers.

The owner also had agreed that it could not rely on its construction progress or expenditures to support the argument that it would be entitled to continue or complete the project, the judge said.

In the complicated world of zoning in New York City, a memo from 1978 essentially allowed developers to purchase unused development rights of other buildings and lots to add to the height of a proposed building.

New York City Council members said in a 2018 letter that such gerrymandering opens up loopholes for skirting provision of the zoning laws.

“We urge the Board of Standards and Appeals to prohibit the use of gerrymandered zoning lots in New York City,” said the letter, signed by 17 council members.

Appeal Planned

Elizabeth Goldstein, president of the Municipal Art Society of New York, a case plaintiff, said the judge’s decision averts a dangerous precedent that would ultimately have affected every corner of the city.

The directive to partially demolish the building is appropriate given the “wildly inaccurate interpretation” of the zoning regulations,” she said.

“We hope this decision will be a signal to the development industry that the days of flouting the zoning code in search of greater heights and bigger profits is over,” saud Olive Feud, president of the Committee for Environmentally Sound Development.

But, the developers argue, Judge Perry's ruling "ignores the thoughtful decision of the [city Dept. of Buildings] to grant the permit, which was upheld by the [board] following exhaustive document review and testimony over a two-year period."

The firms also decried what they called "retroactively applying new interpretations of the city’s zoning to previously approved projects."

Attorney Paul Selver of Kramer Levin, an attorney representing the developers, told ENR that the judge found that a zoning lot that includes partial tax lots is illegal, so the ruling could invalidate the certificates of occupancy of "20 buildings across New York City ... including seven certificates of occupancy on the Lincoln Towers block" and the Lincoln Square Synagogue.

Selver claims that "prospective investors in NYC property" might be loathe to build new developments if the ruling stands. 

The developers say they invested over $300 million to acquire the land and design the condo tower "in reliance on the DOB’s consistent, 40-year-old interpretation of the statute."

The developers say they will appeal Perry's decision to the New York Court of Appeals.

The city Dept. of Buildings did not comment on the ruling or on its effect on permits

Site construction team sources say the project remains "on a good track," and that there have been "no changes on site" since the ruling. 

One said the ruling was a "surprise out of left field."