Neighbors sue to block Extell’s UWS tower after city OKs amended plans

Building contains mechanical spaces which push penthouses higher
By Kevin Sun | April 25, 2019 05:48PM

Gary Barnett and a rendering of 50 West 66th Street

UPDATED, April 26, 11:17 p.m.: The back-and-forth over Extell Development’s 770-foot Upper West Side tower is now headed to court.

Weeks after the Department of Buildings renewed permits for the development at 50 West 66th Street, the City Club of New York — which nearly killed Barry Diller’s Pier 55 project— and several of the project’s neighbors have filed a lawsuit against the developer, seeking to halt construction due to alleged zoning violations.

“Plaintiffs need immediate relief because Defendants’ construction has reached a stage where arguments about vested rights and potential mootness are looming,” the lawsuit states. “Even where courts have ultimately found that a building violates zoning, they have proven reluctant to order demolition.”

The lawsuit alleges two major violations at the development. First, the building contains massive structural voids that allow Extell to build higher and pricier penthouses without adding residential space. Though current zoning rules do not contain any limitation on the height of a building’s mechanical floors, officials are looking to close this loophole by counting “unusually large” mechanical spaces toward a building’s height limit.

In January, the DOB announced its intent to revoke Extell’s permits if zoning issues were not addressed. It now appears that they have been, as far as the city is concerned.

Instead of one massive 160-foot mechanical floor, the amended plans include two 64-foot floors and one 48-foot floor. The developer was also required to add elevator stops within those floors to secure Fire Department approval of its emergency access plan.

“Safety is our highest priority, for residents and first responders alike,” a DOB spokesperson said in a statement. “DOB has approved amended plans for the building’s mechanical floors that satisfy safety-related objections and bring the project into compliance with the city’s Zoning Resolution.”

The plaintiffs remain unconvinced, noting that “there is no mechanical equipment yet imagined by humans that requires a 48- or 64- foot tall clearance for accessory use in a residential building.”

Furthermore, the plaintiffs say that the DOB’s threat to revoke permits actually ended up giving Extell more time to “establish facts on the ground.”

Landmark West, a local non-profit, had been appealing with the Board of Standards and Appeals to reverse a previous DOB decision in support of the project. But when the DOB rescinded its previous decision in January, the appeal was also halted.

“DOB’s arbitrary and capricious back-and-forth, by halting LW’s administrative journey midstream, has severely prejudiced Plaintiffs, causing them to lose at least five months of time while Extell was building,” the lawsuit states.

The second zoning complaint stems from the fact that the project straddles two zoning districts, with towers permitted on the side facing West 66th Street, but not on the side facing West 65th Street, and the lawsuit alleges that Extell improperly mixed and matched different rules to its advantage, boosting the total amount of floor space it could build, while minimizing the amount that had to go into the base of the building.

The plaintiffs also bring up previous accusations that the entire project was premised on a bait-and-switch: “Extell comes to this Court with unclean hands. It has for two years proceeded with construction under false pretenses, relying on a permit for a 25-story building that it never intended to build.”

In a response filed on Thursday, the firm’s lawyers argued that the plaintiffs have no urgent need to halt construction.

“The Project’s foundation only was completed about two weeks ago, and the Project Site is basically a hole in the ground today,” the response states, adding that a halt in construction would incur significant one-off costs, monthly carrying costs, and disrupt the work of suppliers and contractors.

The response includes a nod to the city’s efforts to curb mechanical voids in the future. “If this legislation is enacted in its current form (or with minor modifications to its current form), the Project would not comply with these newly enacted provisions,” the response acknowledges, while emphasizing that Extell “is legally entitled to complete the Project despite any change in the Zoning Resolution.”

“The building complies with all applicable zoning and code requirements and the request to halt the project was denied at yesterday’s hearing. We are confident that we will prevail in this litigation,” a spokesperson for Extell said on Friday.

The City Club of New York previously sued to block the construction of Barry Diller’s Pier 55. After years of delays, the billionaire abandoned the project in September 2017, but Gov. Cuomo announced the following month that he had brokered a deal between the developer and the project’s opponents.

Update: This story has been updated to include a statement from Extell Development.