The city has thrown its weight behind developers fighting to save their condominium tower from deconstruction.
In an appeal filed Tuesday, Mayor Bill de Blasio’s Law Department challenged a state judge’s February ruling that revoked a permit issued for 200 Amsterdam Avenue.
The ruling, which frowned on the gerrymandered 39-sided zoning lot that developers used to construct their 668-foot building, followed years of challenges that went back and forth between the Board of Standards and Appeals and the court.
The appeal comes one day after the Department of Buildings clarified that zoning lots can no longer be comprised of partial zoning lots — a central issue in the case. The clarification put the agency in the somewhat unusual position of promulgating a policy at odds with a previous position it is defending in court.
“It’s disappointing and it’s not the right position for the city to take, but we will proceed,” said Richard Emery, the lawyer representing the tower’s opponents, the Committee for Environmentally Sound Development and the Municipal Art Society.
On the other side, a spokesperson for the developers, SJP Properties and Mitsui Fudosan America, applauded the city for “taking a stand against a legally flawed court ruling that seeks to apply a new policy, not adopted until after the court handed down its decision, retroactively to a project that has been already built, with zoning that has been approved and consistently upheld by the Department of Buildings and Board of Standards and Appeals.”
Shortly after the city appealed, the developers filed an appeal of their own, asking the court to overturn the ruling, which could require it to remove about 20 floors of the 52-story tower.
Following the plaintiffs’ original challenge in 2017, the developers argued the permit was supported by historic interpretation of zoning laws allowing zoning lots to be composed of partial tax lots, which the BSA affirmed.
Then, in 2018, the Department of Buildings issued a draft bulletin offering a conflicting interpretation, which triggered debate in court about whether the bulletin applied to the development. The BSA found it should not.
“DOB properly exercised its authority by identifying an erroneous interpretation of the zoning resolution and by publishing a proposed amendment to correct the error,” Judge W. Franc Perry wrote in the ruling now being appealed. “BSA, however, balked in its duty.”
The case is being closely followed by the real estate industry. Carlo Scissura, president of the New York Building Congress, argued that the court’s decision “would set a dangerous precedent that unnecessarily increased uncertainty and risk in our industry, threatening already constructed and occupied buildings, as well as recent gains in job growth and investment.”
However, in an earlier interview with TRD, Municipal Art Society President Elizabeth Goldstein disputed the idea that other buildings would be at risk.
Emery said that while the tower’s opponents are not calling for deconstruction while appeals are underway, they are asking for construction at the project to stop. Work is continuing on the Upper West Side building, where a number of units are in contract.
The question of whether construction should have continued while the legal back and forth played out is a point of contention. In his ruling, Perry noted that the developers were aware of the risks posed by constructing the tower and “must bear the responsibility for any harsh results arising from the invalidation of the permit.”
But Kramer Levin attorney Paul Selver argued the developers had strong grounds to believe the decision would go in their favor, given earlier decisions by the DOB, BSA — and by the court itself, which could have stopped construction, but did not.
“Even if the determination was that the zoning lot was improper, there was so much history to the interpretation that we were relying on that the decision would not be retroactive,” he told TRD in February.
Amid the uncertainty, one thing is clear: The Buildings Department’s latest clarification means developers will no longer be able to get permits in the way the Amsterdam Avenue project did.
“The developers of 200 Amsterdam took advantage of a decades-old zoning interpretation to create a gerrymandered 39-sided zoning lot in order to construct a luxury building that is one of the tallest on the Upper West Side,” city spokeswoman Jane Meyer said in an email.
“We are closing this loophole so that developers will no longer be able to cobble together partial tax lots for new buildings.”
Meanwhile, the outcome of the case — like the tower itself — will remain up in the air until the appeals run their course, which will likely take months.
Write to Sylvia Varnham O’Regan at [email protected]