A community group claimed victory over Gamma’s Sutton Place tower. It might be short-lived

To the relief of an Upper East Side community group, Gamma Real Estate’s tower won’t violate new zoning rules until at least next year. But there’s no guarantee that the developer won’t build beyond that.

On Monday, the East River 50s Alliance (ERFA) — the community group fighting Gamma’s condominium building, Sutton 58 — announced that the developer was restricted to zoning rules approved by the City Council last November until at least January 2019. The victory, however, is limited and appears to be more of a product of the developer’s construction timeline than court action.

According to the transcript from an Oct. 12 hearing, an attorney for Gamma, Jeffrey Braun, told the court that Gamma’s planned 64-story tower wouldn’t violate the new zoning rules “until some point in 2019.” Under new regulations, the project would have to adhere to “tower on a base” standards, which will require 45 to 50 percent of the building to be built below 150 feet. The developer estimates such restrictions would ultimately limit the tower to 20 stories.

The community group has pushed back against building a large tower at 428-432 East 58th Street for more than two years, first against the Bauhouse Group and then Gamma, which foreclosed on Bauhouse and took over development plans. ERFA filed a lawsuit in August, seeking to reverse the city’s Board of Standards and Appeals decision that the new zoning rules didn’t apply to Gamma’s project. An attorney for ERFA, Michael Hiller, said Braun’s statement is effectively a court order since it was said on-the-record in court.

“ERFA’s concerns have been alleviated for now, since the developer has capitulated, at least for the moment, with respect to the relief requested in the lawsuit,” he said in an email.

Council member Ben Kallos, who is a co-plaintiff in ERFA’s lawsuit and co-founder of the group, said the fact that Gamma is constructing a base for the tower that will adhere to the new zoning until next year shows that the developer has doubts that it will succeed in court.

“I’ve rarely seen a developer who is building something as of right, hedge their bets,” Kallos told The Real Deal on Wednesday. “They would build a tower that is as noncompliant as possible.”

Braun, an attorney for Gamma, noted that there’s no court order limiting construction. He said his statement to the court that the tower wouldn’t violate new zoning until next year merely reflects the fact that construction of the building’s superstructure is in its early stages.

“It does not reflect any lack of confidence on the developer’s part in its right to complete this project,” he said. “To the extent that ERFA suggests otherwise, ERFA is misrepresenting the facts.”

A hearing is slated for Dec. 11, when ERFA will argue for further restrictions on Gamma’s planned tower.