BY SYDNEY PEREIRA | A city agency has given the go-ahead to developers building a 64-story tower on the Upper East Side. The Board of Standards and Appeals (BSA) decision arrives after years of advocacy against the tower — including a community-based rezoning effort led by the East River 50s Alliance (ERFA) in an attempt to halt the project.
The board’s June 26 decision in favor of the developer effectively exempts the tower at 3 Sutton Place — also known as 430 East 58th St. — from a 10-block stretch of rezoning in the East 50s.
“They [the developers] trumped the democratic process,” Michael Hiller, ERFA’s lawyer, said after a public hearing last Tuesday, June 19, anticipating that the BSA decision would favor the developer. “I just think that’s outrageous.”
ERFA plans to take the decision to court. The organization said in a statement that the BSA decision was no surprise.
“The East River 50s Alliance will now take the community’s fight against this monstrous, out-of-place megatower to the courts and away from a city agency,” the group said in a statement. “Unfortunately for the community and the City at large, the [BSA] abrogated its responsibilities under the Zoning Resolution, including especially its obligation to independently assess the invalidity of ill-gotten, after-hours work variances and alleged street closure permits that allowed the tower’s developer to engage in a race to complete the foundation. The Board committed multiple errors of law based upon a misapprehension of what the Zoning Resolution provides.”
The developer, Jonathan Kalikow of Gamma Real Estate, did not respond to multiple requests for comment.
City Councilmember Ben Kallos at a 2016 rally held by the East River 50s Alliance in support of the neighborhood’s rezoning initiative. | Photo by Jackson Chen
The decision hinged on whether substantial foundation work on the site at 3 Sutton Place had been completed by Nov. 30, 2017 — when the Sutton Place rezoning was approved by the City Council. Opponents of the Gamma Real Estate tower, including East Side Councilmember Ben Kallos, said the permits to close the streets and work after hours from the Department of Buildings and Department of Transportation were fraudulent. To obtain these permits, there had to have been a public safety threat to leaving the construction incomplete, but Kallos and ERFA activists insist there was no public safety threat justifying the permits.
“I think after-hours variances are a bane in the existence of every New Yorker who wants to get a good night’s sleep or enjoy their weekend,” Kallos said. “It’s bad enough that the Department of Buildings is granting them for the wrong reasons.”
If the DOB gives out such variances “like candy,” the councilmember argued, the BSA vote could have at least sent the message that such variances cannot be used to fast-track foundation work.
“I’m disappointed by the fact that they said this was for public safety but by closing the street it actually endangered people’s safety,” Kallos added.
BSA chair Margery Perlmutter said at last week’s public hearing that disputing the DOB permits would set a dangerous precedent when the department issues such permits to protect public safety quite often. It would stifle construction work, particularly when there are varied and complex reasons for why contractors would need after-hours permits, she added.
The BSA did not respond to a request for comment.
The board’s announcement came just one week after the New York Daily News reported that the law firm representing the developers, Kramer Levin Naftalis & Frankel, had lobbied Mayor Bill de Blasio’s two top aides to push the City Planning Commission (CPC) to vote in favor of exempting the developers from the community-based rezoning efforts. De Blasio also owes the firm $300,000 for his own legal fees in connection with 2016 and 2017 federal and state probes into his fundraising practices. The mayor denied any conflict of interest, telling NY1’s Errol Louis that he would pay back the fees if the City Council created a mechanism for him to legally raise the defense funds.
The CPC approved the rezoning last fall, but grandfathered the Gamma project from the new zoning. The City Council approved the rezoning without the grandfathering clause, sending the ultimate decision to the BSA.
The BSA approval of the developer’s appeal is a loss for ERFA’s organizing in the community, and opponents of the tower feel the decision will send a negative message to other neighborhoods advocating for zoning that meets residents’ needs. ERFA attorney Hiller added that the group went through a lengthy democratic process to fight against the tower and was still thwarted through this latest decision.
“It is not just galling but outrageous that the citizens of the East River 50s Alliance did exactly what they were supposed to do,” Hiller said. “They contacted their public officials. They did it by the book. They got the zoning change.”
Though groups including ERFA are often written off as NIMBYs, ERFA activist Lisa Mercurio said the group has never said they don’t want the developer to build at all. The key issue, Mercurio said, is the vulnerability left open by outdated zoning and loopholes in the zoning text for developers to build megatowers.
“Again, this community never said you can’t build, we just said build it right,” she said. “It would be very much embraced if this developer would come up with a gorgeous boutique hotel for this site.”
She added that an Ian Schrager-type hotel would be coveted by the community, since it would likely bring new shops, restaurants, and younger people to the neighborhood.
“That would keep things lively and that would bring a younger community up and in,” she said. “Can’t [the developers] open up [their] mind to the other relevant possibilities that would be revenue-generating forevermore?”